1. A resolution of the Senate which recites the refusal of a
witness to answer questions asked of him by a committee pursuing an
investigation under authority from the Senate, and which directs
that he be attached and brought before the bar of the Senate "to
answer such questions pertinent to the matter under inquiry as the
Senate through its said committee or the President of the Senate
may propound," expresses the purpose of the Senate to elicit
testimony in response to questions to be propounded at its bar, and
in deciding whether the witness must attend, it is not material to
consider whether the information sought to be elicited from him by
the committee was pertinent to the inquiry which it had been
directed to make. P.
279 U. S.
612.
2. Exercise by the Senate of its judicial power to judge of the
elections, returns, and qualifications of its members, Const., Art.
I, § 5, cl. 1, necessarily involves the ascertainment of facts, the
attendance of witnesses, the examination of such witnesses, with
the power to compel answers to pertinent questions, to
determine
Page 279 U. S. 598
the facts and apply the appropriate rules of law, and, finally,
to render a judgment which is beyond the authority of any other
tribunal to review. P.
279 U. S.
613.
3. In the exercise of this power, the Senate may dispense with
the services of a committee and itself take the testimony, or,
after conferring authority on its committee, it may, at any stage,
resume charge of the inquiry and deal with the subject without
regard to the limitations that were put upon the committee and
subject only to the restraints of the Constitution. P.
279 U. S.
613.
4. It is not to be assumed, in advance of a witness'
interrogation at the bar of the Senate, that constitutional
restraints will not be faithfully observed. P.
279 U. S.
614.
5. When one who, upon the face of the returns, has been elected
to the Senate and who has a certificate from the Governor of his
state to that effect, presents himself to the Senate claiming the
right of membership, the jurisdiction of the Senate to determine
the rightfulness of the claim is invoked, and its power to
adjudicate such right immediately attaches by virtue of § 5 of
Article I of the Constitution, empowering it to judge of the
elections, returns and qualifications of its "members." P.
279 U. S.
614.
6. Whether, pending this adjudication, the credentials should be
accepted, the oath administered, and the full right accorded to
participate in the business of the Senate is a matter within the
discretion of the Senate. P.
279 U. S.
614.
7. Refusal by the Senate to seat the claimant pending the
investigation does not deprive the state of its "equal suffrage in
the Senate" within the meaning of Article V of the Constitution. P.
279 U. S.
615.
8. The power of the Senate to require the attendance of
witnesses, when judging of the elections, returns, and
qualifications of its members is a necessary incident of the power
to adjudicate in nowise inferior under like circumstances to that
exercised by a court of justice, and includes in some cases the
power to issue a warrant of arrest to compel such attendance. P.
279 U. S.
616.
9. The warrant may issue without previous subpoena where there
is good reason to believe that otherwise the witness will not be
forthcoming. P.
279 U. S.
616.
10. The Senate, having sole authority under the Constitution to
judge of the elections, returns, and qualifications of its members,
may exercise in its own right the incidental power of compelling
the attendance of witnesses without the aid of a statute. P.
279 U. S.
618.
11. The act of the Senate in issuing its warrant for the arrest
of a witness is attended by the presumption of regularity which
applies to the proceedings of courts. P.
279 U. S.
619.
Page 279 U. S. 599
12. It is to be assumed that the Senate will deal with the
witness in accordance with well settled rules and discharge him
from custody upon proper assurance, by recognizance or otherwise,
that he will appear for interrogation when required. P.
279 U. S.
619.
13. If judicial interference can be successfully invoked by the
person so arrested, it can only be upon a clear showing of
arbitrary and improvident use of the power constituting a denial of
due process of law. P.
279 U. S. 620.
29 F.2d 817 reversed.
Certiorari,
post, p. 827, to review a judgment of the
circuit court of appeals reversing a decision of the district
court, 25 F.2d 733, which discharged a writ of habeas corpus sued
out by Cunningham and remanded him to the custody of the
Sergeant-at-Arms of the Senate, who had arrested him under a
warrant issued pursuant to a resolution of the Senate.
Page 279 U. S. 609
MR. JUSTICE SUTHERLAND delivered the opinion of the Court.
The questions here presented for determination grow out of an
inquiry instituted by the United States Senate in respect of the
validity of the election of a United States Senator from
Pennsylvania in November, 1926. The inquiry began before the
election, immediately after the conclusion of the primaries, by the
adoption of a resolution appointing a special committee to
investigate expenditures, promises, etc., made to influence the
nomination of any person as a candidate or promote the election of
any person as a member of the Senate at the general election to be
held in November, 1926.
After the Pennsylvania primaries, Cunningham was subpoenaed, and
appeared before this committee. Among other things, he testified
that he was a member of an organization which supported William. S.
Vare for Senator at the primary election; that he had given to the
chairman of the organization $50,000 in two installments of $25,000
each prior to the holding of the primaries. He had been clerk of a
court for 21 years. and was then receiving a salary of $8,000 a
year. He paid the money to the chairman in cash, but refused to say
where he obtained it, except that he had not drawn it from a bank.
He would not say how long the money had been in his possession;
said he had never inherited any, but declined to answer whether he
had made money in speculation. In short, he declined to give any
information in respect of the sources of the money, insisting that
it was his own, and the question where he had obtained it was a
personal matter. He further said that he had learned the trick from
a former Senator of "saving money and putting it away and keeping
it under cover;" that this Senator "was a past master in not
letting his right hand know what his left had done,
Page 279 U. S. 610
and he dealt absolutely in cash. The "long green" was the
issue."
Mr. Vare was nominated and elected at the succeeding November
election. The special committee thereafter submitted a partial
report in respect of Cunningham's refusal to testify. In January,
1927, Vare's election having been contested by William B. Wilson
upon the ground of fraud and unlawful practices in connection with
the nomination and election, the Senate adopted a resolution
further authorizing the special committee to take possession of
ballot boxes, tally sheets, etc., and to preserve evidence in
respect of the charges made by Wilson. In February, 1927,
Cunningham was recalled, and, questions previously put to him
having been repeated, he again refused to give the information
called for, as he had done at the first hearing.
At the opening of Congress in December, 1927, the Senate adopted
an additional resolution reciting, among other things, that there
were numerous instances of fraud and corruption in behalf of Vare's
candidacy, and that there had been expended in his behalf at the
primary election a sum exceeding $785,000. Expenditure of such a
large sum of money was declared to be contrary to sound public
policy, and the special committee was directed to inquire into the
claim of Vare to a seat in the Senate, to take evidence in respect
thereto, and report to the Senate; in the meantime, it was
resolved, Vare should be denied a seat in the Senate. By a
subsequent resolution, the committee on privileges and elections
was directed to hear and determine the contest between Vare and
Wilson.
The special committee, in March, 1928, reported its proceedings,
including testimony given by Cunningham, recited his refusal to
give information in response to questions, as hereinbefore set
forth, and recommended that he be adjudged in contempt of the
committee and of the Senate. The Senate, however, did not adopt the
recommendation
Page 279 U. S. 611
of the committee, but instead passed a resolution reciting
Cunningham's contumacy and instructing the President to issue his
warrant commanding the sergeant-at-arms or his deputy to take the
body of Cunningham into custody, and to bring him before the bar of
the Senate,
"then and there or elsewhere, as it may direct, to answer such
questions pertinent to the matter under inquiry as the Senate,
through its said committee, or the President of the Senate, may
propound, and to keep the said Thomas W. Cunningham in custody to
await further order of the Senate."
The warrant was issued and executed, and thereupon Cunningham
brought a habeas corpus proceeding in the federal District Court
for the Eastern District of Pennsylvania.
In his petition for the writ of habeas corpus, Cunningham
averred that he was arrested under the warrant by reason of an
alleged contempt, and that, by reason of his refusal to disclose
his private and individual affairs to the special committee, the
Senate had illegally and without authority adjudged him to be in
contempt and had issued its warrant accordingly. A return was made
to the writ denying that the Senate had adjudged Cunningham in
contempt and, in substance, averring that the warrant by which he
was held simply required that he be brought to the bar of the
Senate to answer questions pertaining to the matter under inquiry,
etc.
The district court, to which the return was made, after a
hearing and consideration of written briefs and oral arguments,
entered an order discharging the writ and remanding Cunningham to
the custody of the sergeant-at-arms. A written opinion was handed
down by Judge Dickinson sustaining the power of the Senate to
compel the attendance of witnesses under the circumstances above
set forth and holding that the Senate had not proceeded against
Cunningham for a contempt, but, by its resolution, had required his
arrest and production at the bar of the
Page 279 U. S. 612
Senate simply to answer questions pertinent to the matter under
inquiry.
United States ex rel. Cunningham v. Barry, 25
F.2d 733.
Upon appeal, the circuit court of appeals reversed the district
court, holding that the arrest was in reality one for contempt,
but, if it should be regarded as an arrest to procure Cunningham's
attendance as a witness, it was void because a subpoena to attend
at the bar of the Senate had not previously been served upon him,
and that this was a necessary prerequisite to the issue of an
attachment. Treating the proceeding as one for contempt, that court
held that the information sought to be elicited, and which
Cunningham refused to give, was not pertinent to the inquiry
authorized to be made by the committee, and that Cunningham was
justified in declining to answer the questions in respect thereof.
Circuit Judge Woolley dissented, substantially adopting the view of
the district court. 29 F.2d 817.
The correct interpretation of the Senate's action is that given
by the district judge and by Judge Woolley. It is true the special
committee, in its report to the Senate, recited Cunningham's
contumacy and recommended that he be adjudged in contempt, but the
resolution passed by the Senate makes it entirely plain that this
recommendation of the committee was not followed. The Senate
resolution, after a recital of Cunningham's refusal to answer
certain questions, directs that he be attached and brought before
the bar of the Senate not to show cause why he should not be
punished for contempt, but
"to answer such questions pertinent to the matter under inquiry
as the Senate through its said committee or the President of the
Senate may propound. . . ."
We must accept this unequivocal language as expressing the
purpose of the Senate to elicit testimony in response to questions
to be propounded at the bar of the Senate, and the question whether
the information sought to be elicited
Page 279 U. S. 613
from Cunningham by the committee was pertinent to the inquiry
which the committee had been directed to make may be put aside as
immaterial.
It results that the following are the sole questions here for
determination: (1) whether the Senate was engaged in an inquiry
which it had constitutional power to make; (2) if so, whether that
body had power to bring Cunningham to its bar as a witness by means
of a warrant of arrest, and (3) whether, as a necessary
prerequisite to the issue of such warrant of arrest, a subpoena
should first have been served and disobeyed.
First. Generally, the Senate is a legislative body,
exercising in connection with the House only the power to make
laws. But it has had conferred upon it by the Constitution certain
powers which are not legislative, but judicial, in character. Among
these is the power to judge of the elections, returns, and
qualifications of its own members. Article I, § 5, cl. 1.
"That power carries with it authority to take such steps as may
be appropriate and necessary to secure information upon which to
decide concerning elections."
Reed v. County Commissioners, 277 U.
S. 376,
277 U. S. 388.
Exercise of the power necessarily involves the ascertainment of
facts, the attendance of witnesses, the examination of such
witnesses, with the power to compel them to answer pertinent
questions, to determine the facts and apply the appropriate rules
of law, and, finally, to render a judgment which is beyond the
authority of any other tribunal to review. In exercising this
power, the Senate may, of course, devolve upon a committee of its
members the authority to investigate and report, and this is the
general, if not the uniform, practice. When evidence is taken by a
committee, the pertinency of questions propounded must be
determined by reference to the scope of the authority vested in the
committee by the Senate. But undoubtedly the Senate, if it so
determine,
Page 279 U. S. 614
may in whole or in part dispense with the services of a
committee and itself take testimony, and, after conferring
authority upon its committee, the Senate, for any reason
satisfactory to it and at any stage of the proceeding, may resume
charge of the inquiry and conduct it to a conclusion or to such
extent as it may see fit. In that event, the limitations put upon
the committee obviously do not control the Senate, but that body
may deal with the matter, without regard to these limitations,
subject only to the restraints imposed by or found in the
implications of the Constitution. We cannot assume, in advance of
Cunningham's interrogation at the bar of the Senate, that these
restraints will not faithfully be observed. It sufficiently appears
from the foregoing that the inquiry in which the Senate was
engaged, and in respect of which it required the arrest and
production of Cunningham, was within its constitutional
authority.
It is said, however, that the power conferred upon the Senate is
to Judge of the elections, returns, and qualifications of its
"members," and, since the Senate had refused to admit Vare to a
seat in the Senate, or permit him to take the oath of office, that
he was not a member. It is enough to say of this that, upon the
face of the returns, he had been elected, and had received a
certificate from the Governor of the state to that effect. Upon
these returns and with this certificate, he presented himself to
the Senate, claiming all the rights of membership. Thereby the
jurisdiction of the Senate to determine the rightfulness of the
claim was invoked, and its power to adjudicate such right
immediately attached by virtue of § 5 of article I of the
Constitution. Whether, pending this adjudication, the credentials
should be accepted, the oath administered, and the full right
accorded to participate in the business of the Senate was a matter
within the discretion of the Senate. T his has been the practical
construction of the
Page 279 U. S. 615
power by both houses of Congress,
* and we perceive
no reason why we should reach a different conclusion. When a
candidate is elected to either house, he, of course, is elected a
member of the body, and when that body determines, upon
presentation of his credentials, without first giving him his seat,
that the election is void, there would seem to be no real substance
in a claim that the election of a "member" has not been adjudged.
To hold otherwise would be to interpret the word "member" with a
strictness in no way required by the obvious purpose of the
constitutional provision, or necessary to its effective enforcement
in accordance with such purpose, which, so far as the present case
is concerned, was to vest the Senate with authority to exclude
persons asserting membership who either had not been elected or,
what amounts to the same thing, had been elected by resort to
fraud, bribery, corruption, or other sinister methods having the
effect of vitiating the election.
Nor is there merit in the suggestion that the effect of the
refusal of the Senate to seat Vare pending investigation was to
deprive the state of its equal representation in the Senate. The
equal representation clause is found in Article V, which authorizes
and regulates amendments to the Constitution, "provided, . . . that
no state, without its consent, shall be deprived of its equal
suffrage in the Senate." This constitutes a limitation upon the
power
Page 279 U. S. 616
of amendment, and has nothing to do with a situation such as the
one here presented. The temporary deprivation of equal
representation which results from the refusal of the Senate to seat
a member pending inquiry as to his election or qualifications is
the necessary consequence of the exercise of a constitutional
power, and no more deprives the state of its "equal suffrage" in
the constitutional sense than would a vote of the Senate vacating
the seat of a sitting member or a vote of expulsion.
Second. In exercising the power to judge of the
elections, returns, and qualifications of its members, the Senate
acts as a judicial tribunal, and the authority to require the
attendance of witnesses is a necessary incident of the power to
adjudge in no wise inferior under like circumstances to that
exercised by a court of justice. That this includes the power in
some cases to issue a warrant of arrest to compel such attendance,
as was done here, does not admit of doubt.
McGrain v.
Daugherty, 273 U. S. 135,
273 U. S. 160,
273 U. S. 180.
That case dealt with the power of the Senate thus to compel a
witness to appear to give testimony necessary to enable that body
efficiently to exercise a legislative function; but the principle
is equally, if not
a fortiori, applicable where the Senate
is exercising a judicial function.
Third. The real question is not whether the Senate had
power to issue the warrant of arrest, but whether it could do so
under the circumstances disclosed by the record. The decision of
the circuit court of appeals is that, as a necessary prerequisite
to the issue of a warrant of arrest, a subpoena first should have
been issued, served, and disobeyed. And undoubtedly the courts
recognize this as the practice generally to be followed. But
undoubtedly also, a court has power in the exercise of a sound
discretion to issue a warrant of arrest without a previous subpoena
when there is good reason to believe that otherwise the witness
will not be forthcoming. A statute of the United
Page 279 U. S. 617
States (U.S.Code, Tit. 28, § 659) provides that any federal
judge, on application of the district attorney and being satisfied
by proof that any person is a competent and necessary witness in a
criminal proceeding in which the United States is a party or
interested, may have such person brought before him by a warrant of
arrest, to give recognizance, and that such person may be confined
until removed for the purpose of giving his testimony, or until he
gives the recognizance required by said judge. The
constitutionality of this statute apparently has never been
doubted. Similar statutes exist in many of the states, and have
been enforced without question.
United States v. Lloyd, 4 Blatchf. 427, Fed.Cas. No.
15,614, was a case arising under the federal statute. The validity
of the statute was not doubted, although the witness was held under
peculiar conditions of severity, because of which the court allowed
him to be discharged upon his own recognizance in the sum of
$1,000.
In
State of Minnesota ex rel. v. Grace, 18 Minn. 398, a
similar statute was upheld and applied in the case of a material
witness where it was claimed that there was good reason to believe
that he would leave the state before the trial, and not return to
be present at the time of such trial. The court, using the words of
Lord Ellenborough in
Benett v. Watson, 3 Maule &
Selwyn 1, said (p. 402):
"The law intends that the witness shall be forthcoming at all
events, and it is a lenient mode which it provides to permit him to
go at large upon his own recognizance. However, this is only one
mode of accomplishing the end, which is his due appearance."
The witness, however, was discharged because of an entire
absence of proof of any intention on his part not to appear and
testify.
The comment of the court in
Crosby v. Potts, 8 Ga.App.
463, 468, is peculiarly apposite:
"It is a hardship upon one whose only connection with a case is
that he happens to know some material fact in
Page 279 U. S. 618
relation thereto that he should be taken into control by the
court and held in the custody of the jailer unless he gives bond
(which, from poverty, he may be unable to give) conditioned that he
will appear and testify; but the exigencies of particular instances
do often require just such stringent methods in order to compel the
performance of the duty of the witness' appearing and testifying.
There are many cases in which an ordinary subpoena would prove
inadequate to secure the presence of the witness at the trial. The
danger of punishment for contempt on account of a refusal to appear
is sometimes too slight to deter the witness from absenting
himself; especially is this true where there are but few ties to
hold the witness in the jurisdiction where the trial is to be held
and there are reasons why he desires not to testify, for when once
he has crossed the state line, he is beyond the grasp of any of the
court's processes to bring him to the trial or to punish him for
his refusal to answer to a subpoena. We conclude, therefore, that,
since the law manifestly intends that the courts shall have
adequate power to compel the performance of the respective duties
falling on those connected in any wise with the case, it may, where
the exigencies so require, cause a witness to be held in custody,
and in jail, if need be, unless he gives reasonable bail for his
appearance at the trial."
See also Ex parte Sheppard, 43 Tex.Cr.R. 372;
Chamberlayne, Modern Law of Evidence, § 3622.
The rule is stated by Wharton, 1 Law of Evidence § 385, that,
where suspicions exist that a witness may disappear or be spirited
away before trial in criminal cases, and when allowed by statute in
civil cases, he may be held to bail to appear at the trial and may
be committed on failure to furnish it, and that such imprisonment
does not violate the sanctions of the federal or state
constitutions.
The validity of acts of Congress authorizing courts to exercise
the power in question thus seems to be established.
Page 279 U. S. 619
The Senate, having sole authority under the Constitution to
judge of the elections, returns, and qualifications of its members,
may exercise in its own right the incidental power of compelling
the attendance of witnesses without the aid of a statute.
Compare Reed v. County Commissioners, supra, p.
277 U. S. 388.
The following appears from the report of the committee to the
Senate upon which the action here complained of was taken.
"A subpoena was issued for his appearance early in June. A
diligent search failed to locate him. Finally, Representative
Golder, of the Fourth District of Pennsylvania, communicated with
the committee, stating that Cunningham would accept service. His
whereabouts was disclosed, and he was served."
Upon examination by the committee, he repeatedly refused to
answer questions which the committee deemed relevant and of great
importance not upon the ground that the answers would tend to
incriminate him, but that they involved personal matters. These
questions have already been recited, and it is impossible for us to
say that the information sought and refused would not reflect light
upon the validity of Vare's election.
It is not necessary to determine whether the information sought
was pertinent to the inquiry before the committee, the scope of
which was fixed by the provisions of the Senate resolution. But it
might well have been pertinent in an inquiry conducted by the
Senate itself, exercising the full, original, and unqualified power
conferred by the Constitution. If the Senate thought so, and, from
the facts before it reasonably believing that this or other
important evidence otherwise might be lost, issued its warrant of
arrest, it is not for the court to say that, in doing so, the
Senate abused its discretion. The presumption in favor of
regularity, which applies to the proceedings of courts cannot be
denied to the proceedings of the houses of Congress when acting
upon matters within their constitutional authority. It fairly may
be assumed that the Senate will deal with the witness in
accordance
Page 279 U. S. 620
with well settled rules and discharge him from custody upon
proper assurance, by recognizance or otherwise, that he will appear
for interrogation when required. This is all he could properly
demand of a court under similar circumstances.
Here, the question under consideration concerns the exercise by
the Senate of an indubitable power, and, if judicial interference
can be successfully invoked, it can only be upon a clear showing of
such arbitrary and improvident use of the power as will constitute
a denial of due process of law. That condition we are unable to
find in the present case.
Judgment reversed.
* Among the typical cases in the House where that body refused
to seat members in advance of investigation, although presenting
credentials unimpeachable in form, was that of Roberts, in the
Fifty-Sixth Congress, where it was so decided after full debate by
a vote of 268 to 50. Cong. Record, vol. 33, pt. 2, p. 1217.
It was stated at the bar in this case that the Senate in 29
cases had, in advance of investigation, seated persons exhibiting
prima facie credentials, and in 16 cases had taken the
opposite course of refusing to seat such persons before
investigation and determination of charges challenging the right to
the seat.