Kilbourn v. Thompson,
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103 U.S. 168 (1880)
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U.S. Supreme Court
Kilbourn v. Thompson, 103 U.S. 168 (1880)
Kilbourn v. Thompson
103 U.S. 168
1. for refusing to answer certain questions put to him as a witness by the House of Representatives of the Congress of the United States concerning the business of a real estate partnership of which he was a member, and to produce certain books and papers in relation thereto, was, by an order of the House, imprisoned for forty-five days in the common jail of the District of Columbia. He brought suit to recover damages therefor against the sergeant-at-arms, who executed the order, and the members of the committee, who caused him to be brought before the House, where he was adjudged to be in contempt of its authority. Held, that, although the House can punish its own members for disorderly conduct, or for failure to attend its sessions, and can decide cases of contested elections and determine the qualifications of its members, and exercise the sole power of impeachment of officers of the government, and may, where the examination of witnesses is necessary to the performance of these duties, fine or imprison a contumacious witness -- there is not found in the Constitution of the United States any general power vested in either House to punish for contempt.
2. An examination of the history of the English Parliament and the decisions of the English courts shows that the power of the House of Commons, under the laws and customs of Parliament to punish for contempt, rests upon principles peculiar to it, and not upon any general rule applicable to all legislative bodies.
3. The Parliament of England, before its separation into two bodies, since known as the House of Lords and the House of Commons, was a high court of judicature -- the highest in the realm -- possessed of the general power incident to such a court of punishing for contempt. On its separation, the power remained with each body, because each was considered to be a court of judicature and exercised the functions of such court.
4. Neither House of Congress was constituted a part of any court of general jurisdiction, nor has it any history to which the exercise of such power can be traced. Its power must be sought alone in some express grant in the Constitution, or be found necessary to carry into effect such powers as are there granted.
5. The court, without affirming that such a power can arise in any case other than those already specified, decides that it can exist in no case where the House, attempting to exercise it, invokes its aid in a matter to which its authority does not extend, such as an inquiry into the private affairs of the citizen.
6. The Constitution divides the power of the government which it establishes into the three departments -- the executive, the legislative, and the judicial -- and unlimited power is conferred on no department or officer of the government. It is essential to the successful working of the system that the lines which separate those departments shall be clearly defined and closely followed, and that neither of them shall be permitted to encroach upon the powers exclusively confided to the others.
7. That instrument has marked out, in its three primary articles, the allotment of power to those departments, and no judicial power except that above mentioned is conferred on Congress or on either branch of it. On the contrary, it declares that the judicial power of the United States shall be vested in one Supreme Court and such inferior courts as the Congress may from time to time ordain and establish.
8. The resolution of the House under which K. was summoned and examined as a witness directed its committee to examine into the history and character of what was called "the real estate pool" of the District of Columbia, and the preamble recited, as the grounds of the investigation, that Jay Cooke & Co., who were debtors of the United States, and whose affairs were then in litigation before a bankruptcy court, had an interest in the pool or were creditors of it. The subject matter of the investigation was judicial, and not legislative. It was then pending before the proper court, and there existed no power in Congress, or in either House thereof, on the allegation that an insolvent debtor of the United States was interested in a private business partnership, to investigate the affairs of that partnership, and consequently no authority to compel a witness to testify on the subject.
9. It follows that the order of the House declaring K. guilty of a contempt of its authority and ordering his imprisonment by the sergeant-at-arms is void, and affords the latter no protection in an action by K. against him for false imprisonment.
10. Anderson v. Dunn (6 Wheat. 204) commented on, and some of the reasoning of the opinion overruled and rejected.
11. The provision of the Constitution that, for any speech or debate in either House, the members shall not be questioned in any other place exempts them from liability elsewhere for any vote, or report to or action in their respective Houses, as well as for oral debate. Therefore the plea of the members of the committee that they took no part in the actual arrest and imprisonment of K., and did nothing in relation thereto beyond the protection of their constitutional privilege, is, so far as they are concerned, a good defence to the action.
This is an action for false imprisonment brought by Hallett Kilbourn against John G. Thompson, Michael C. Kerr, John M. Glover, Jeptha D. New, Burwell P. Lewis, and A. Herr Smith. The declaration charges that the defendants with force and arms took the plaintiff from his house, and without any reasonable or probable cause, and against his will, confined him in the common jail of the District of Columbia for the period of forty-five days. The defendant Kerr died before process was served upon him.
Thompson pleaded first the general issue, and secondly a special plea wherein he set forth that the plaintiff ought not to have or maintain his action because that long before and at the said time when the force and injuries complained of by him are alleged to have been inflicted, and during all the time in the said declaration mentioned, a congress of the United States was holden at the city of Washington, in the District of Columbia, and was then and there, and during all the time aforesaid, assembled and sitting; that, long before and at the time when said force and injuries are alleged to have occurred, and during all the time mentioned, he, the said Thompson, was, and yet is, sergeant-at-arms of the House of Representatives, and, by virtue of his office and by the tenor and effect of the standing rules and orders ordained and established by said House for the determining of the rules of its proceedings, and by the force and effect of the laws and customs of said House and of said Congress, was then and there duly authorized and required, amongst other things, to execute the command of said House, from time to time, together with all such process issued by authority thereof as shall be directed to him by its speaker; that, long before and at the time aforementioned, one Michael C. Kerr was the speaker of said House, and, by virtue of his office and by the tenor, force, and effect of said standing rules, orders, laws, and customs, was, among other things, duly authorized and required to subscribe with his proper hand, and to seal with the seal of said House, all writs, warrants, and subpoenas issued by its order; that, long before and during said time, one George M. Adams was the clerk of said House, authorized and required to attest and subscribe with his proper hand all writs,
warrants and subpoenas issued by order of said House; that it was, among other things, ordained, established, and practised by and under such standing rules, orders, laws, and customs that all writs, warrants, subpoenas, and other process issued by order of said House shall be under the hand of the speaker and seal of said House, and attested by said clerk, and so being under said hand and seal, and so attested, shall be executed pursuant to the tenor and effect of the same by the sergeant-at-arms; that said Kerr being such speaker, and said Adams such clerk, and the defendant such sergeant-at-arms, and while said Congress was in session, the House of Representatives, on the twenty-fourth day of January, 1876, adopted the following preamble and resolution:
"Whereas the government of the United States is a creditor of the firm of Jay Cooke & Co., now in bankruptcy by order and decree of the District Court of the United States in and for the Eastern District of Pennsylvania, resulting from the improvident deposits made by the Secretary of the Navy of the United States with the London branch of said house of Jay Cooke & Co. of the public moneys, and whereas a matter known as the real estate pool was only partially inquired into by the late joint select committee to inquire into the affairs of the District of Columbia, in which Jay Cooke & Co. had a large and valuable interest, and whereas Edwin M. Lewis, trustee of the estate and effects of said firm of Jay Cooke & Co., has recently made a settlement of the interest of the estate of Jay Cooke & Co. with the associates of said firm of Jay Cooke & Co., to the disadvantage and loss, as it is alleged, of the numerous creditors of said estate, including the government of the United States, and whereas the courts are now powerless by reason of said settlement to afford adequate redress to said creditors:"
"Resolved, that a special committee of five members of this House, to be selected by the speaker, be appointed to inquire into the matter and history of said real estate pool and the character of said settlement, with the amount of property involved in which Jay Cooke & Co. were interested, and the amount paid or to be paid in said settlement, with power to send for persons and papers and report to this House."
That, in pursuance and by authority of said resolution, said speaker appointed John M. Glover, Jeptha D. New, Burwell
B. Lewis, A. Herr Smith, and Henry O. Pratt, who were members of the House of Representatives, to constitute said committee, and the said committee, so appointed, duly organized in the city of Washington and proceeded to make the inquiry directed; that said committee, by the authority in them vested by said resolution, caused to be issued by the speaker, under his hand and the seal of the House of Representatives, and duly attested by the clerk, a subpoena to said Kilbourn, commanding him to appear before said committee to testify and be examined touching and in regard to the matter to be inquired into by said committee; that said Kilbourn was further commanded and ordered by said subpoena to bring with him certain designated and described record, papers, and maps relating to said inquiry; that, subsequently to the issue of the subpoena and before the time when the force and injuries complained of are alleged to have been inflicted, Kilbourn, in obedience to the subpoena, appeared before the committee and was examined by it in relation to and in prosecution of said inquiry, and, during his examination, said Kilbourn was asked the following question: "Will you state where each of the five members reside, and will you please state their names?", which question was pertinent and material to the question of inquiry before the committee, but he knowingly and willfully refused to answer the same; that he, although ordered and commanded by the subpoena to bring with him and produce before the said committee certain records, papers, and maps relating to said inquiry, still, when asked by the said committee,
"Mr. Kilbourn, are you now prepared to produce, in obedience to the subpoena duces tecum, the records which you have been required by the committee to produce?"
knowingly and willfully refused to produce them; that, subsequently to these refusals and before the time when the force and injuries complained of are alleged to have been inflicted, to-wit, on the fourteenth day of March, 1876, the committee reported to the House, then sitting, the facts above stated, to-wit, the resolution creating the committee, the appointment of the members on said committee by the speaker, the issuing of the subpoena duces tecum to said Kilbourn, his appearance before the committee, and his refusal to answer the questions, and his further refusal to produce said
records, papers, and maps, and the committee further reported to said House as follows
"The committee are of opinion and report that it is necessary for the efficient prosecution of the inquiry ordered by the House that the said Hallet Kilbourn should be required to respond to the subpoena duces tecum and answer the questions which he has refused to answer, and that there is no sufficient reason why the witness should not obey said subpoena duces tecum and answer the questions which he has refused to answer, and that his refusal as aforesaid is in contempt of this House,"
as by the journal, record, and proceedings and report in the said House remaining, reference being thereto had, will more fully appear; that, on March 14, 1876, it was, in and by the said House, for good and sufficient cause to the same appearing, resolved and ordered that the speaker should forthwith issue his warrant, directed to the sergeant-at-arms, commanding him to take into custody the body of the said Kilbourn wherever to be found, and the same to have forthwith before the said House, at the bar thereof, to then and there answer why he should not be punished as guilty of contempt of the dignity and authority of the same, and in the meantime to keep the said Kilbourn in his custody to await the further order of the said House. Whereupon such speaker, on the fourteenth day of March, 1876, did duly make and issue his certain warrant under his hand and the seal of the House of Representatives, and duly attested, directed to the defendant, as such sergeant-at-arms, reciting that the House of Representatives had that day ordered the speaker to issue his warrant directed to the sergeant-at-arms, commanding him to take into custody the body of the said Kilbourn wherever to be found, and the same forthwith to have before the said House, at the bar thereof, then and there to answer why he should not be punished for contempt, and in the meantime to be kept in his, the said defendant's, custody to await the further order of the House; therefore it was required in and by said warrant that the defendant, as such sergeant-at-arms as aforesaid, should take into his custody the body of said Kilbourn, and then forthwith to bring him before said House, at the bar thereof, then and there to answer to the charges aforesaid, and to be dealt with by said House according to the Constitution
and laws of the United States, and in the meantime to keep said Kilbourn in his custody to await the further order of said House, and the said Kerr, so being such speaker as aforesaid, then and there delivered said warrant to the defendant as sergeant-at-arms to be executed in due form of law; that, by virtue and in execution of said warrant, the defendant as such sergeant, in order to arrest said Kilbourn and convey him in custody to the bar of the House to answer to the charge aforesaid, and to be dealt with by said House according to the Constitution and laws of the United States, in obedience to the resolution and order aforesaid, and to the tenor and effect of the said warrant, went to said Kilbourn, and then and there gently laid his hands on him to arrest him, and did then and there arrest him by his body and take him into custody, and did then forthwith convey him to the bar of said House, as it was lawful for the defendant to do for the cause aforesaid, and thereupon such proceedings were had in and by said House that said Kilbourn was then and there forthwith duly heard in his defence, and was duly examined by said House through its speaker, and was asked in said examination the following question, to-wit,
Mr. Kilbourn, are you now prepared to answer, upon the demand of the proper committee of the House, where each of these five members reside?
(meaning the members of the pool), which question was pertinent and material to the question under inquiry; but said Kilbourn did knowingly and willfully refuse to answer the question so asked; that said House, through its speaker, at the same time and place, asked said Kilbourn the further question, to-wit,
"Are you (meaning the said Kilbourn) prepared to produce, in obedience to the subpoena duces tecum, the records which you have been required by the committee to produce?"
(which said records were pertinent and material to the question under inquiry), but he knowingly and willfully declined and refused to produce them; that thereupon it was then and there resolved by said House as follows:
"Resolved, that Hallet Kilbourn having been beard by the House pursuant to the order heretofore made requiring him to show cause why he should not answer questions propounded to him by a committee
and respond to the subpoena duces tecum by obeying the same, and having failed to how sufficient cause why he should not answer said questions and obey said subpoena duces tecum, be and is therefore considered in contempt of said House because of said failure."
"Resolved, that, in purging himself of the contempt for which Hallet Kilbourn is now in custody, the said Kilbourn shall be required to State to the House whether he is now willing to appear before the committee of the House to whom he has hitherto declined to obey a certain subpoena duces tecum, and to answer certain questions and obey aid subpoena duces tecum, and answer said questions, and if he answers that he is ready to appear before said committee and obey said subpoena duces tecum and answer said questions, then said witness shall have the privilege to so appear and obey and answer forthwith, or so soon as said committee can be convened, and that, in the meantime, the witness remain in custody, and in the event that said witness shall answer that he is not ready to so appear before said committee and obey said subpoena duces tecum and make answer to said questions as aforesaid, then that said witness be recommitted to the said custody for the continuance of said contempt, and that such custody shall continue until the said witness shall communicate to this House through said committee that he is ready to appear before said committee and make such answer and obey said subpoena duces tecum, and that, in executing this order, the sergeant-at-arm hall cause the said Kilbourn to be kept in his custody in the common jail of the District of Columbia;"
as by the journal, record, and proceeding of the said resolution and orders in the said House remaining, reference being thereto had, will more fully appear.
Whereupon said Kerr, so being such speaker, in pursuance of such standing rules and orders as aforesaid, and according to such laws and customs as aforesaid, and in execution of the order contained in said resolutions, did afterwards, to-wit, on the fourteenth day of March, 1876, duly make and issue his certain warrant, directed to the defendant, as sergeant-at-arms, in the following words, to wit:
"Forty-fourth Congress, First Session, Congress"
"of the United States"
IN THE HOUSE OF REPRESENTATIVES
March 4, 1876
"TO JOHN J THOMPSON, Esq."
"Sergeant-at-Arms of the House of Representatives"
"SIR -- The following resolution has this day been adopted by the House of Representatives:"
"Resolved, that, in purging himself of the contempt for which Hallet Kilbourn is now in custody, the said Kilbourn shall be required to State to the House whether he is no willing to appear before a committee of this House, to whom he has hitherto declined to obey a certain subpoena duces tecum and answer certain questions, and obey said subpoena duces tecum and make answer to said question, and if he answer that he is ready to appear before said committee and obey said subpoena duces tecum and answer said question, then said witness shall have the privilege to to appear and obey and answer forthwith, or so soon as the committee can be convened, and that, in the meantime, the witness shall remain in custody, and in the event that said witness shall answer that he is not ready to so appear before said committee and obey said subpoena duces tecum and make answer to said questions as aforesaid, then that said witness be recommitted to the said custody for the continuance of such contempt, and that such custody shall continue until the said witness shall communicate to this House, through said committee, that he is ready to appear before said committee and make such answer and obey said subpoena duces tecum; and that, in executing this order, the sergeant-at-arms shall cause the aid Kilbourn to be kept in his custody in the common jail of the District of Columbia."
"Now, therefore, you are hereby commanded to execute the same accordingly."
"In witness whereof I have hereunto set my hand and caused the seal of the House of Representative to be affixed the day and year above written."
"[SEAL] M. C. KERR, Speaker"
"GEORGE M. ADAMS, Clerk."
That by virtue and in execution of said warrant, according to its tenor and effect, the defendant, as such sergeant-at-arms,
in order to arrest the said Kilbourn and convey him in custody to the common jail of the District of Columbia, in obedience to the resolutions and orders aforesaid, went to him and then and there gently laid his hands on him to arrest him, and did then and there arrest him by his body and take him into custody, and forthwith convey him to the common jail of the District of Columbia, and did keep him in custody therein until the eighteenth day of April, 1876, when and on which day, in response to a writ of habeas corpus issued by order of the Chief Justice of the Supreme Court of the District of Columbia, and directed to the defendant as sergeant-at-arms, requiring him to produce the body of Kilbourn before the said Chief Justice at the courthouse in the city of Washington, in the District of Columbia, and by direction and order of the said House of Representatives the defendant, as sergeant-at-arms, conveyed the said Kilbourn in custody from the common jail of said District to said courthouse, and then and there delivered him into the custody of the marshal for the District of Columbia, nor has he had said Kilbourn in his custody since said delivery to said marshal.
Which are the same several supposed trespasses complained of, and no other.
The other defendants pleaded jointly the general issue, and a plea of justification similar to that of the defendant Thompson, except that they alleged themselves to have been members of the House of Representatives, and of a committee of that House, and that what they did was in that capacity, and was warranted by the circumstances.
They also added the following:
"And these defendants state that they did not in any manner assist in the last-mentioned arrest and imprisonment of the said Kilbourn, nor were they in any way concerned in the same, nor did they order or direct the same, save and except by their votes in favor of the last above-mentioned resolutions and order commanding the speaker to issue his warrant for said arrest and imprisonment, and (save and except) by their participation as members in the introduction of and assent to said official acts and proceedings of said House, which these defendants did and performed as members of the said House of Representatives
in the due discharge of their duties as members of said House, and not otherwise."
"Which are the same several supposed trespasses whereof the said Kilbourn hath above in his said declaration complained against these defendants, and not other or different, with this, that these defendants do aver that the said Kilbourn, the now plaintiff, and the said Kilbourn in the said resolutions, orders, and warrants respectively mentioned, was and is one and the same person, and that, at the said several times in this plea mentioned, and during all the time therein mentioned, the said Congress of the United States was assembled, and sitting, to-wit at Washington aforesaid, in the county aforesaid, and these defendants were and are members of the House of Representatives, one of the Houses of said Congress, and as such embers, in said participation in the action of the House as above set forth, voted in favor of said resolutions and orders as above set forth, and saving and excepting said participation in the action of the House as set forth in the body of this plea, they had no concern or connection in any manner or way with said supposed trespasses complained of against them by the plaintiff, and this these defendants are ready to verify."
The plaintiff demurred to the special pleas of the defendants. The demurrer having been overruled and judgment rendered for the defendants, the plaintiff sued out this writ of error.