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.
Page 103 U. S. 169
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.
Page 103 U. S. 170
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,
Page 103 U. S. 171
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
Page 103 U. S. 172
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
Page 103 U. S. 173
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
Page 103 U. S. 174
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
Page 103 U. S. 175
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:
Page 103 U. S. 176
"
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"
"Attest:"
"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,
Page 103 U. S. 177
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
Page 103 U. S. 178
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.
Page 103 U. S. 181
MR. JUSTICE MILLER, after stating the case, delivered the
opinion of the court.
The argument before us has assumed a very wide range, and
includes the discussion of almost every suggestion that can well be
conceived on the subject. The two extremes of the controversy are
the proposition on the part of the plaintiff that the House of
Representatives has no power whatever to punish for a contempt of
its authority, and, on the part of defendants, that such power
undoubtedly exists, and when that body has formally exercised it,
it must be presumed that it was right fully exercised.
This latter proposition assumes the form of expression sometimes
used with reference to courts of justice of general jurisdiction
that, having the power to punish for contempts, the judgment of the
House that a person is guilty of such contempt is conclusive
everywhere.
Conceding for the sake of the argument that there are cases in
which one of the two bodies that constitute the Congress of the
United States may punish for contempt of its authority or disregard
of its orders, it will scarcely be contended by the
Page 103 U. S. 182
most ardent advocate of their power in that respect that it is
unlimited.
The powers of Congress itself, when acting through the
concurrence of both branches, are dependent solely on the
Constitution. Such as are not conferred by that instrument, either
expressly or by fair implication from what is granted, are
"reserved to the States respectively, or to the people." Of course,
neither branch of Congress, when acting separately, can lawfully
exercise more power than is conferred by the Constitution on the
whole body, except in the few instances where authority is
conferred on either House separately, as in the case of
impeachments. No general power of inflicting punishment by the
Congress of the United States is found in that instrument. It
contains in the provision that no "person all be deprived of life,
liberty, or property, without due process of law" the strongest
implication against punishment by order of the legislative body. It
has been repeatedly decided by this court, and by others of the
highest authority, that this means a trial in which the rights of
the party shall be decided by a tribunal appointed by law, which
tribunal is to be governed by rules of law previously established.
An act of Congress which proposed to adjudge a man guilty of a
crime and inflict the punishment would be conceded by all thinking
men to be unauthorized by anything in the Constitution. That
instrument, however, is not wholly silent as to the authority of
the separate branches of Congress to inflict punishment. It
authorizes each House to punish its own members. By the second
clause of the fifth section of the first article,
"Each House may determine the rules of its proceedings, punish
its members for disorderly behavior, and, with the concurrence of
two-thirds, expel a member,"
and, by the clause immediately preceding, it "may be authorized
to compel the attendance of absent members in such manner and under
such penalties as each House may provide."
These provisions are equally instructive in what they authorize
and in what they do not authorize. There is no express power in
that instrument conferred on either House of Congress to punish for
contempts.
The advocates of this power have, therefore, resorted to an
Page 103 U. S. 183
implication of its existence founded on two principal arguments.
These are, 1, its exercise by the House of Commons of England, from
which country we, it is said, have derived our system of
parliamentary law; and 2d, the necessity of such a power to enable
the two Houses of Congress to perform the duties and exercise the
power which the Constitution has conferred on them.
That the power to punish for contempt has been exercised by the
House of Commons in numerous instances is well known to the general
student of history, and is authenticated by the rolls of the
Parliament. And there is no question but that this has been upheld
by the courts of Westminster Hall. Among the most notable of these
latter cases are the judgments of the Court of King's Bench in
Brass Crosby's Case, 3 Wil. 188, decided in the year 1771;
Burdett v. Abbott (14 East, 1), in 1811, in which the
opinion was delivered by Lord Ellenborough, and
Case of the
Sheriff of Middlesex (11 Ad. & E. 273), in 1840. Opinion
by Lord Denman, Chief Justice.
It is important, however, to understand on what principle this
power in the House of Commons rests, that we may see whether it is
applicable to the two Houses of Congress, and, if it be, whether
there are limitations to its exercise.
While there is, in the adjudged cases in the English courts,
little agreement of opinion as to the extent of this power and the
liability of it exercise to be inquired into by the courts, there
is no difference of opinion as to its origin. This goes back to the
period when the bishops, the lords, and the knights and burgesses
met in one body, and were, when so assembled, called the High Court
of Parliament.
They were not only called so, but the assembled Parliament
exercised the highest function of a court of judicature,
representing in that respect the judicial authority of the king in
his Court of Parliament. While this body enacted laws, it also
rendered judgments in matters of private right which, when approved
by the king, were recognized a valid. Upon the separation of the
Lords and Commons into two separate bodies, holding their sessions
in different chambers, and hence called the House of Lords and the
House of Commons, the judicial
Page 103 U. S. 184
function of reviewing by appeal the decisions of the courts of
Westminster Hall passed to the House of Lords, where it has been
exercised without dispute ever since. To the Commons was left the
power of impeachment, and perhaps others of a judicial character,
and jointly they exercised, until a very recent period, the power
of passing bills of attainder for treason and other high crimes
which are in their nature punishment for crime declared judicially
by the High Court of Parliament of the Kingdom of England.
It is upon this idea that the two Houses of Parliament were each
courts of judicature originally which, though divested by usage and
by statute, probably, of many of their judicial functions, have yet
retained so much of that power as enables them, like any other
court, to punish for a contempt of these privileges and authority
that the power rests.
In the case of
Burdett v. Abbott, already referred to
as sustaining this power in the Commons, Mr. Justice Bailey said,
in support of the judgment of the Court of King's Bench:
"In an early authority upon that subject, in Lord Coke, 4 Inst.
23, it is expressly laid down that the House of Commons has not
only a legislative character and authority, but is also a court of
judicature, and there are instances put there in which the power of
committing to prison for contempts has been exercised by the House
of Commons, and this, too, in cases of libel. If then, the House be
a court of judicature, it must, as is in a degree admitted by the
plaintiff's counsel, have the power of supporting its own dignity
as essential to itself, and without power of commitment for
contempts, it could not support its dignity."
In the opinion of Lord Ellenborough in the same case, after
stating that the separation of the two Houses of Parliament seems
to have taken place as early as the 49 Henry III, about the time of
the battle of Evesham, he says the separation was probably effected
by a formal act for that purpose by the king and Parliament. He
then adds:
"The privileges which have since been enjoyed, and the functions
which have been since uniformly exercised by each branch of the
legislature, with the knowledge and acquiescence of the other House
and of the king, must be presumed to be the privileges and
functions which then, that is, at the very period of
Page 103 U. S. 185
their original separation, were statutably assigned to
each."
He then asks,
"Can the High Court of Parliament, or either of the two Houses
of which it consists, be deemed not to possess intrinsically that
authority of punishing summarily for contempts which is
acknowledged to belong, and is daily exercised as belonging, to
every superior court of law, of less dignity undoubtedly than
itself?"
This power is here distinctly placed on the ground of the
judicial character of Parliament, which is compared in that respect
with the other courts of superior jurisdiction, and is said to be
of a dignity higher than they.
In the earlier case of Crosby, Lord Mayor of London, De Gray,
Chief Justice, speaking of the House of Commons, which had
committed the lord mayor to the Tower of London for having arrested
by judicial process one of its messengers, says:
"Such an assembly must certainly have such authority, and it is
legal because necessary. Lord Coke says they have a judicial power;
each member has a judicial seat in the House; he speaks of matters
of judicature of the House of Commons."
Mr. Justice Blackstone, in concurring in the judgment, said:
"he House of Commons is a Supreme Court, and they are judges of
their own privileges and contempts, more especially with respect to
their own members."
Mr. Justice Gould also laid stress upon the fact that the "House
of commons may be properly called judges," and cites 4 Coke's Inst.
47, to show that "an alien cannot be elected to Parliament,
because such a person can hold no place of
judicature."
In the celebrated case of
Stockdale v. Hansard (9 Ad.
& E. 1), decided in 1839, this doctrine of the omnipotence of
the House of Commons in the assertion of its privileges received
its first serious check in a court of law. The House of Commons had
ordered the printing and publishing of a report of one of its
committees, which was done by Hansard, the official printer of the
body. This report contained matter on which Stockdale sued Hansard
for libel. Hansard pleaded the privilege of the House, under whose
orders he acted, and the question on demurrer was, assuming the
matter published to be libelous in its character, did the order of
the House protect the publication?
Page 103 U. S. 186
Sir John Campbell, Attorney-General, in an exhaustive argument
in defence of the prerogative of the House, bases it upon two
principal propositions, namely, that the House of Commons is a
court of judicature, possessing the same right to punish for
contempt that other courts have, and that its powers and privileges
rest upon the
lex parliamenti -- the laws and customs of
Parliament. These, he says, and cites authorities to show it, are
unknown to the judges and lawyers of the common law court, and rest
exclusively in the knowledge and memory of the members of the two
Houses. He argues, therefore, that their judgments and orders on
matters pertaining to these privileges are conclusive, and cannot
be disputed or reviewed by the ordinary courts of judicature.
Lord Denman, in a masterly opinion, concurred in by the other
judges of the King's Bench, ridicules the idea of the existence of
a body of laws and customs of Parliament unknown and unknowable to
anybody else but the members of the two Houses, and holds with an
incontrovertible logic that, when the rights of the citizen are at
stake in a court of justice, it must, if these privileges are set
up to his prejudice, examine for itself into the nature and
character of those laws and decide upon their extent and effect
upon the rights of the parties before the court. While admitting,
as he does in
Case of the Sheriff of Middlesex (11 Ad.
& E. 273) that, when a person is committed by the House of
Commons for a contempt in regard to a matter of which that House
had jurisdiction, no other court can relieve the party from the
punishment which it may lawfully inflict, he holds that the
question of the jurisdiction of the House is always open to the
inquiry of the courts in a case where that question is properly
presented.
But perhaps the most satisfactory discussion of this subject, as
applicable to the proposition that the two Houses of Congress are
invested with the same power of punishing for contempt, and with
the same peculiar privileges, and the same power of enforcing them,
which belonged by ancient usage to the Houses of the English
Parliament, is to be found in some recent decision of the Privy
Council. That body is, by its constitution, vested with authority
to hear and decide appeals from the court of the provinces and
colonies of the kingdom.
Page 103 U. S. 187
The leading case is that of
Kielley v. Carson and
Others (4 Moo.P.C. 63), decided in 1841. There were present at
the hearing Lord Chancellor Lyndhurst, Lord Brougham, Lord Denman,
Lord Abinger, Lord Cottenam, Lord Campbell, Vice-Chancellor
Shadwell, the Chief Justice of the Common Pleas, Mr. Justice
Erskine, Dr. Lushington, and Mr. Baron Parke, who delivered the
opinion, which seems to have received the concurrence of all the
eminent judges named.
Measuring the weight of its authority by the reputation of the
judges who sat in the case and agreed to the opinion, it would be
difficult to find one more entitled on that score to be received as
conclusive on the points which it decided.
The case was an appeal from the Supreme Court of Judicature of
Newfoundland. John Kent, one of the members of the House of
Assembly of that island, reported to that body that Kielley, the
appellant, had been guilty of a contempt of the privileges of the
House in using towards him reproaches, in gross and threatening
language, for observations made by Kent in the House; adding, "Your
privilege shall not protect you." Kielley was brought before the
louse, and added to his offence by boisterous and violent language,
and was finally committed to jail under an order of the House and
the warrant of the speaker. The appellant sued Carson, the speaker,
Kent, and other members, and Walsh, the messenger, who pleaded the
facts above stated, and relied on the authority of the House as
sufficient protection. The judgment of the court of Newfoundland
was for the defendants, holding the plea good.
This judgment was supported in argument before the Privy Council
on the ground that the Legislative Assembly of Newfoundland had the
same parliamentary rights and privileges which belonged by usage to
the Parliament of England, and that, if this were not so, it was a
necessary incident to every body exercising legislative functions
to punish for contempt of its authority. The case was twice argued
in the Privy Council, on which its previous judgment in the case of
Beaumont v. Barrett (1 Moo.P.C. 59) was much urged, in
which both those propositions had been asserted in the opinion of
Mr. Baron Parke. Referring to that case as an authority for the
proposition that the power to punish for a contempt was
incident
Page 103 U. S. 188
to every legislative body, the opinion of Mr. Baron Parke in the
later case uses this language:
"There is no decision of a court of justice, nor other
authority, in favor of the right, except that of the case of
Beaumont v. Barrett, decided by the Judicial Committee,
the members present being Lord Brougham, Mr. Justice Bosanquet, Mr.
Justice Erskine, and myself. Their Lordships do not consider that
case as one by which they ought to be bound on deciding the present
question. The opinion of their Lordships, delivered by myself
immediately after the argument was closed, though it clearly
expressed that the power was incidental to every legislative
assembly, was not the only ground on which that judgment was
rested, and therefore was, in some degree, extra-judicial; but
besides, it was stated to be and was founded entirely on the
dictum of Lord Ellenborough in
Burdett v. Abbott,
which
dictum, we all think, cannot be taken as authority
for the abstract proposition that every legislative body has the
power of committing for contempt. The observation was made by his
Lordship with reference to the peculiar powers of Parliament, and
ought not, we all think, to be extended any further. We all,
therefore, think that the opinion expressed by myself in the case
of
Beaumont v. Barrett ought not to affect our decision in
the present case, and, there being no other authority on the
subject, we decide, according to the principle of the common law,
that the House of Assembly have not the power contended for. They
are a local legislature, with every power reasonably necessary for
the exercise of their functions and duties, but they have not what
they erroneously supposed themselves to possess -- the same
exclusive privileges which the ancient law of England has annexed
to the House of Parliament."
In another part of the opinion, the subject is thus disposed
of:
"It is said, however, that this power belongs to the House of
Commons in England, and this, it is contended, affords an authority
for holding that it belongs, as a legal incident by the common law,
to an assembly with analogous functions. But the reason why the
House of Commons has this power is not because it is a
representative body with legislative function, but by virtue of
ancient usage and prescription; the
lex et consuetudo
parliamenti, which forms a part of the common law of the land,
and according to which
Page 103 U. S. 189
the High Court of Parliament before its division, and the Houses
of Lords and Commons since, are invested with many privileges, that
of punishment for contempt being one."
The opinion also discusses at length the necessity of,this power
in a legislative body for its protection, and to enable it to
discharge its lawmaking functions, and decides against the
proposition. But the case before us does not require us to go so
far, as we have cited it to show that the powers and privileges of
the House of Commons of England, on the subject of punishment for
contempts, rest on principles which have no application to other
legislative bodies, and certainly can have none to the House of
Representatives of the United States -- a body which is in no sense
a court, which exercises no functions derived from its once having
been a part of the highest court of the realm, and whose functions,
so far as they partake in any degree of that character, are limited
to punishing its own members and determining their election. The
case, however, which we have just been considering was followed in
the same body by
Fenton v. Hampton (11 Moo P.C. 347) and
Doyle v. Falconer (Law Rep. 1 P.C. 328), in both of which,
on appeals from other provinces of the kingdom, the doctrine of the
case of
Kielley v. Carson and Others is fully
reaffirmed.
We are of opinion that the right of the House of Representatives
to punish the citizen for a contempt of its authority or a breach
of its privileges can derive no support from the precedents and
practices of the two Houses of the English Parliament, nor from the
adjudged cases in which the English courts have upheld these
practices. Nor, taking what has fallen from the English judges, and
especially the later cases on which we have just commented, is much
aid given to the doctrine that this power exists as one necessary
to enable either House of Congress to exercise successfully their
function of legislation.
This latter proposition is one which we do not propose to decide
in the present case, because we are able to decide it without
passing upon the existence or nonexistence of such power in aid of
the legislative function.
As we have already said, the Constitution expressly empowers
each House to punish its own members for disorderly behavior. We
see no reason to doubt that this punishment
Page 103 U. S. 190
may, in a proper case, be imprisonment, and that it may be for
refusal to obey some rule on that subject made by the House for the
preservation of order.
So also, the penalty which each House is authorized to inflict
in order to compel the attendance of absent members may be
imprisonment, and this may be for a violation of some order or
standing rule on that subject.
Each House is, by the Constitution, made the judge of the
election and qualification of its members. In deciding on these, it
has an undoubted right to examine witnesses and inspect papers,
subject to the usual rights of witnesses in such cases, and it may
be that a witness would be subject to like punishment at the hands
of the body engaged in trying a contested election, for refusing to
testify, that he would if the case were pending before a court of
judicature.
The House of Representatives has the sole right to impeach
officers of the government, and the Senate to try them. Where the
question of such impeachment is before either body acting in its
appropriate sphere on that subject, we see no reason to doubt the
right to compel the attendance of witnesses, and their answer to
proper questions, in the same manner and by the use of the same
means that courts of justice can in like cases.
Whether the power of punishment in either House by fine or
imprisonment goes beyond this or not, we are sure that no person
can be punished for contumacy as a witness before either House
unless his testimony is required in a matter into which that House
has jurisdiction to inquire, and we feel equally sure that neither
of these bodies possesses the general power of making inquiry into
the private affairs of the citizen.
It is believed to be one of the chief merits of the American
system of written constitutional law that all the powers intrusted
to government, whether State or national, are divided into the
three grand departments, the executive, the legislative, and the
judicial. That the functions appropriate to each of these branches
of government shall be vested in a separate body of public
servants, and that the perfection of the system requires that the
lines which separate and divide these departments
Page 103 U. S. 191
shall be broadly and clearly defined. It is also essential to
the successful working of this system that the persons intrusted
with power in any one of these branches shall not be permitted to
encroach upon the powers confided to the others, but that each
shall, by the law of its creation, be limited to the exercise of
the powers appropriate to its own department, and no other. To
these general propositions there are in the Constitution of the
United States some important exceptions. One of these is that the
President is so far made a part of the legislative power that his
assent is required to the enactment of all statutes and resolutions
of Congress.
This, however, is so only to a limited extent, for a bill may
become a law notwithstanding the refusal of the President to
approve it, by a vote of thirds of each House of Congress.
So, also, the Senate is made a partaker in the functions of
appointing officers and making treaties, which are supposed to be
properly executive, by requiring its consent to the appointment of
such officers and the ratification of treaties. The Senate also
exercises the judicial power of trying impeachments, and the House
of preferring articles of impeachment.
In the main, however, that instrument, the model on which are
constructed the fundamental laws of the States, has blocked out
with singular precision, and in bold lines, in its three primary
articles, the allotment of power to the executive, the legislative,
and the judicial departments of the government. It also remains
true, as a general rule, that the powers confided by the
Constitution to one of these departments cannot be exercised by
another.
It may be said that these are truisms which need no repetition
here to give them force. But while the experience of almost a
century has in general shown a wise and commendable forbearance in
each of these branches from encroachments upon the others, it is
not to be denied that such attempt have been made, and it is
believed not always without success. The increase in the number of
States, in their population and wealth, and in the amount of power,
if not in its nature to be exercised by the Federal government,
presents powerful and growing temptations to those to whom that
exercise is intrusted
Page 103 U. S. 192
to overstep the just boundaries of their own department and
enter upon the domain of one of the others, or to assume powers not
intrusted to either of them.
The House of Representatives having the exclusive right to
originate all bills for raising revenue, whether by taxation or
otherwise; having with the Senate the right to declare war, and fix
the compensation of all officers and servants of the government,
and vote the supplies which must pay that compensation, and being
also the most numerous body of all those engaged in the exercise of
the primary powers of the government -- is for these reasons least
of all liable to encroachments upon its appropriate domain.
By reason, also, of its popular origin and the frequency with
which the short term of office of its members requires the renewal
of their authority at the hands of the people -- the great source
of all power in this country -- encroachments by that body on the
domain of coordinate branches of the government would be received
with less distrust than a similar exercise of unwarranted power by
any other department of the government. It is all the more
necessary, therefore, that the exercise of power by this body, when
acting separately from and independently of all other depositaries
of power, should be watched with vigilance, and when called in
question before any other tribunal having the right to pass upon
it, that it should receive the most careful scrutiny.
In looking to the preamble and resolution under which the
committee acted, before which Kilbourn refused to testify, we are
of opinion that the House of Representatives not only exceeded the
limit of its own authority, but assumed a power which could only be
properly exercised by another branch of the government, because it
was, in its nature, clearly judicial.
The Constitution declares that the judicial power of the United
States shall be vested in one Supreme Court and in such inferior
courts as the Congress may from time to time ordain and establish.
If what we have said of the division of the powers of the
government among the three departments be sound, this is equivalent
to a declaration that no judicial power is vested in the Congress
or either branch of it, save in the cases
Page 103 U. S. 193
specifically enumerated to which we have referred. If the
investigation which the committee was directed to make was judicial
in its character, and could only be properly and successfully made
by a court of justice, and if it related to a matter wherein relief
or redress could be had only by a judicial proceeding, we do not,
after what has been said, deem it necessary to discuss the
proposition that the power attempted to be exercised was one
confided by the Constitution to the judicial, and not to the
legislative, department of the government. We think it equally
clear that the power asserted is judicial, and not legislative.
The preamble to the resolution recites that the government of
the United States is a creditor of Jay Cooke & Co., then in
bankruptcy in the District Court of the United States for the
Eastern District of Pennsylvania.
If the United States is a creditor of any citizen, or of anyone
else on whom process can be served, the usual, the only legal mode
of enforcing payment of the debt is by a resort to a court of
justice. For this purpose, among others, Congress has created
courts of the United States, and officers have been appointed to
prosecute the pleas of the government in these courts.
The District Court for the Eastern District of Pennsylvania is
one of them, and, according to the recital of the preamble, had
taken jurisdiction of the subject matter of Jay Cooke & Co.'s
indebtedness to the United States, and had the whole subject before
it for action at the time the proceeding in Congress was initiated.
That this indebtedness resulted, as the preamble states, from the
improvidence of a secretary of the navy does not change the nature
of the suit in the court, nor vary the remedies by which the debt
is to be recovered. If, indeed, any purpose had been avowed to
impeach the secretary, the whole aspect of the case would have been
changed. But no such purpose is disclosed. None can be inferred
from the preamble, and the characterization of the conduct of the
Secretary by the term "improvident," and the absence of any words
implying suspicion of criminality, repel the idea of such purpose,
for the secretary could only be impeached for "high crimes and
misdemeanors."
Page 103 U. S. 194
The preamble then refers to "the real estate pool," in which it
is said Jay Cooke & Co. had a large interest, as something well
known and understood, and which had been the subject of a partial
investigation by the previous Congress, and alleges that the
trustee in bankruptcy of Jay Cooke & Co. had made a settlement
of the interest of Jay Cooke & Co. with the associates of the
firm of Jay Cooke & Co., to the disadvantage and loss of their
numerous creditors, including the government of the United States,
by reason of which the courts are powerless to afford adequate
redress to said creditors.
Several very pertinent inquiries suggest themselves as arising
out of this short preamble.
How could the House of Representatives know, until it had
been.fairly tried, that the courts were powerless to redress the
creditors of Jay Cooke & Co.? The matter was still pending in a
court, and what right had the Congress of the United States to
interfere with a suit pending in a court of competent jurisdiction?
Again, what inadequacy of power existed in the court, or, as the
preamble assumes, in all courts, to give redress which could
lawfully be supplied by an investigation by a committee of one
House of Congress, or by any act or resolution of Congress on the
subject? The case being one of a judicial nature, for which the
power of the courts usually afford the only remedy, it may well be
supposed that those powers were more appropriate and more efficient
in said of such relief than the powers which belong to a body whose
function is exclusively legislative. If the settlement to which the
preamble refers as the principal reason why the courts are rendered
powerless was obtained by fraud, or was without authority, or for
any conceivable reason could be set aside or avoided, it should be
done by some appropriate proceeding in the court which had the
whole matter before it, and which had all the power in that case
proper to be intrusted to any body, and not by Congress or by any
power to be conferred on a committee of one of the two Houses.
The resolution adopted as a sequence of this preamble contains
no hint of any intention of final action by Congress on the
subject. In all the argument of the case, no suggestion has been
made of what the House of Representatives or the Congress
Page 103 U. S. 195
could have done in the way of remedying the wrong or securing
the creditors of Jay Cooke & Co., or even the United States.
Was it to be simply a fruitless investigation into the personal
affairs of individuals? If so, the House of Representatives had no
power or authority in the matter more than any other equal number
of gentlemen interested for the government of their country. By
"fruitless," we mean that it could result in no valid legislation
on the subject to which the inquiry referred.
What was this committee charged to do?
To inquire into the nature and history of the real estate pool.
How indefinite! What was the real estate pool? Is it charged with
any crime or offence? If so, the courts alone can punish the
members of it. Is it charged with a fraud against the government?
Here, again, the courts, and they alone, can afford a remedy. Was
it a corporation whose powers Congress could repeal? There is no
suggestion of the kind. The word "pool" in the sense here used, is
of modern date, and may not be well understood, but, in this case,
it can mean no more than that certain individuals are engaged in
dealing in real estate as a commodity of traffic, and the gravamen
of the whole proceeding is that a debtor of the United States may
be found to have an interest in the pool. Can the rights of the
pool, or of its members, and the rights of the debtor, and of the
creditor of the debtor, be determined by the report of a committee
or by an act of Congress? If they cannot, what authority has the
House to enter upon this investigation into the private affairs of
individuals who hold no office under the government.
The Court of Exchequer of England was originally organized
solely to entertain suits of the king against the debtors of the
crown. But after a while, when the other courts of Westminster Hall
became overcrowded with business and it became desirable to open
the Court of Exchequer to the general administration of justice, a
party was allowed to bring any common law action in that court, on
an allegation that the plaintiff was debtor to the king, and the
recovery in the action would enable him to respond to the king's
debt. After a while, the court refused to allow this allegation to
be controverted, and so, by this fiction, the court came from a
very limited to be one
Page 103 U. S. 196
of general jurisdiction. Such an enlargement of jurisdiction
would not now be tolerated in England, and it is hoped not in this
country of written constitutions and laws, but it looks very like
it when, upon the allegation that the United States is a creditor
of a man who has an interest in some other man's business, the
affairs of the latter can be subjected to the unlimited scrutiny or
investigation of a congressional committee.
We are of opinion, for these reasons, that the resolution of the
House of Representatives authorizing the investigation was in
excess of the power conferred on that body by the Constitution;
that the committee, therefore, had no lawful authority to require
Kilbourn to testify a a witness beyond what he voluntarily chose to
tell; that the orders and resolutions of the House, and the warrant
of the speaker, under which Kilbourn was imprisoned are, in like
manner, void for want of jurisdiction in that body, and that his
imprisonment was without any lawful authority.
At this point of the inquiry we are met by
Anderson
v. Dunn, 6 Wheat. 204, which in many respects is
analogous to the case now under consideration. Anderson sued Dunn
for false imprisonment, and Dunn justified under a warrant of the
House of Representatives directed to him as sergeant-at-arms of
that body. The warrant recited that Anderson had been found by the
House "guilty of a breach of the privileges of the House, and of a
high contempt of the dignity and authority of the same." The
warrant directed the sergeant-at-arms to bring him before the
House, when, by its order, he was reprimanded by the speaker.
Neither the warrant nor the plea described or gave any clew to the
nature of the act which was held by the House to be a contempt. Nor
can it be clearly ascertained from the report of the case what it
was, though a slight inference may be derived from something in one
of the arguments of counsel that it was an attempt to bribe a
member.
But, however that may be, the defence of the sergeant-at-arms
rested on the broad ground that the House, having found the
plaintiff guilty of a contempt, and the speaker, under the order of
the House, having issued a warrant for his arrest, that
Page 103 U. S. 197
alone was sufficient authority for the defendant to take him
into custody, and this court held the plea good.
It may be said that, since the order of the House, and the
warrant of the speaker, and the plea of the sergeant-at-arms do not
disclose the ground on which the plaintiff was held guilty of a
contempt, but state the finding of the House in general terms as a
judgment of guilty, and as the court placed its decision on the
ground that such a judgment was conclusive in the action against
the officer who executed the warrant, it is no precedent for a case
where the plea establishes, as we have shown it does in this case
by its recital of the facts, that the House has exceeded its
authority.
This is, in fact, a substantial difference. But the court, in
its reasoning, goes beyond this, and though the grounds of the
decision are not very clearly stated, we take them to be that there
is in some cases a power in each House of Congress to punish for
contempt; that this power is analogous to that exercised by courts
of justice, and that it being the well established doctrine that,
when it appears that a prisoner is held under the order of a court
of general jurisdiction for a contempt of its authority, no other
court will discharge the prisoner or make further inquiry into the
cause of his commitment. That this is the general rule, though
somewhat modified since that case was decided, as regards the
relations of one court to another, must be conceded.
But we do not concede that the Houses of Congress possess this
general power of punishing for contempt. The cases in which they
can do this are very limited, as we have already attempted to show.
If they are proceeding in a matter beyond their legitimate
cognizance, we are of opinion that this can be shown, and we cannot
give our assent to the principle that, by the mere act of asserting
a person to be guilty of a contempt, they thereby establish their
right to fine and imprison him, beyond the power of any court or
any other tribunal whatever to inquire into the grounds on which
the order was made. This necessarily grows out of the nature of an
authority which can only exist in a limited class of cases, or
under special circumstances; otherwise, the limitation is
unavailing and the power omnipotent. The tendency of modern
decisions everywhere
Page 103 U. S. 198
is to the doctrine that the jurisdiction of a court or other
tribunal to render a judgment affecting individual rights is always
open to inquiry when the judgment is relied on in any other
proceeding.
See Williamson v.
Berry, 8 How. 495;
Thompson
v. Whitman, 18 Wall. 457;
Knowles v.
The Gas-Light & Coke Co., 19
id. 58;
Pennoyer v. Neff, 95 U. S. 714.
The case of
Anderson v. Dunn was decided before the
case of
Stockdale v. Hansard and the more recent cases in
the Privy Council to which we have referred. It was decided as a
case of the first impression in this court, and undoubtedly under
pressure of the strong rulings of the English Courts in favor of
the privileges of the two Houses of Parliament. Such is not the
doctrine, however, of the English courts today. In the case of
Stockdale v. Hansard (9 Ad. & E. 1), Mr. Justice
Coleridge says:
"The House is not a court of law at all in the sense in which
that term can alone be properly applied here. Neither originally
nor by appeal can it decide a matter in litigation between two
parties; it has no means of doing so; it claims no such power;
powers of inquiry and of accusation it has, but it decides nothing
judicially except where it is itself a party, in the case of
contempts. . . . Considered merely as resolutions or acts, I have
yet to learn that this court is to be restrained by the dignity or
the power of any body, however exalted, from fearlessly, though
respectfully, examining their reasonableness and justice where the
rights of third persons in litigation before us depend upon their
validity."
Again, he says:
"Let me suppose, by way of illustration, an extreme case; the
House of Commons resolves that anyone wearing a dress of a
particular manufacture is guilty of a breach of privilege, and
orders the arrest of such persons by the constable of the parish.
An arrest is made and action brought, to which the order of the
House is pleaded as a justification. . . . In such a case as the
one supposed, the plaintiff's counsel would insist on the
distinction between power and privilege, and no lawyer can
seriously doubt that it exists; but the argument confounds them,
and forbids us to enquire, in any particular case, whether it
ranges under the one or the other. I can find no principle which
sanctions this."
The case of
Kielley v. Carson and Others (4 Moo.P.C.
63), from which we have before quoted so largely, held that
Page 103 U. S. 199
the order of the assembly finding the plaintiff guilty of a
contempt was no defence to the action for imprisonment. And it is
to be observed that the case of
Anderson v. Dunn was cited
there in argument.
But we have found no better expression of the true principle on
this subject than in the following language of Mr. Justice Hoar, in
the Supreme Court of Massachusetts, in the case of
Burnham v.
Morrissey, 1 Gray 226. That was a case in which the plaintiff
was imprisoned under an order of the House of Representatives of
the Massachusetts legislature for refusing to answer certain
questions as a witness and to produce certain books and papers. The
opinion, or statement, rather, was concurred in by all the court,
including the venerable Mr. Chief Justice Shaw.
"The house of representatives is not the final judge of its own
power and privilege in cases in which the rights and liberties of
the subject are concerned, but the legality of its action may be
examined and determined by this court. That house is not the
legislature, but only a part of it, and is therefore subject in its
action to the laws, in common with all other bodies, officers, and
tribunals within the Commonwealth. Especially is it competent and
proper for this court to consider whether its proceedings are in
conformity with the Constitution and laws because, living under a
written constitution, no branch or department of the government is
supreme, and it is the province and duty of the judicial department
to determine, in cases regularly brought before them, whether the
powers of any branch of the government, and even those of the
legislature in the enactment of laws, have been exercised in
conformity to the Constitution, and, if they have not, to treat
their acts as null and void. The house of representatives has the
power under the Constitution to imprison for contempt, but the
power is limited to cases expressly provided for by the
Constitution or to cases where the power is necessarily implied
from those constitutional functions and duties, to the proper
performance of which it is essential."
In this statement of the law, and in the principles there laid
down, we fully concur.
We must, therefore, hold, notwithstanding what is said in
Page 103 U. S. 200
the case of
Anderson v. Dunn, that the resolution of
the House of Representatives finding Kilbourn guilty of contempt,
and the warrant of its speaker for his commitment to prison, are
not conclusive in this case, and, in fact, are no justification,
because, as the whole plea shows, the House was without authority
in the matter.
It remains to consider the matter special to the other
defendants set out in their plea, which claims the protection due
to their character as members of the House of Representatives. In
support of this defence, they allege that they did not in any
manner assist in the arrest of Kilbourn or his imprisonment, nor
did they order or direct the same, except by their votes and by
their participation as members in the introduction of, and assent
to, the official acts and proceedings of the House, which they did
and performed as members of the House, in the due discharge of
their duties, and not otherwise.
As these defendants did not make the actual assault on the
plaintiff, nor personally assist in arresting or confining him,
they can only be held liable on the charge made against them as
persons who had ordered or directed in the matter, so as to become
responsible for the acts which they directed.
The general doctrine that the person who procures the arrest of
another by judicial process, by instituting and conducting the
proceedings, is liable to an action for false imprisonment where he
acts without probable cause is not to be controverted. Nor can it
be denied that he who assumes the authority to order the
imprisonment of another is responsible for the acts of the person
to whom such order is given when the arrest is without
justification. The plea of these defendants shows that it was they
who initiated the proceedings under which the plaintiff was
arrested. It was they who reported to the House his refusal to
answer the questions which they had put to him, and to produce the
books and papers which they had demanded of him. They expressed the
opinion in that report that plaintiff was guilty of a contempt of
the authority of the House in so acting. It is a fair inference
from this plea that they were the active parties in setting on foot
the proceeding by which he was adjudged guilty of a contempt, and
in procuring the passage of that resolution.
Page 103 U. S. 201
If they had done this in any ordinary tribunal, without probable
cause, they would have been liable for the action which they had
thus promoted.
The House of Representatives is not an ordinary tribunal. The
defendants set up the protection of the Constitution, under which
they do business as part of the Congress of the United States. That
Constitution declares that the senators and representatives
"shall in all cases, except treason, felony, and breach of the
peace, be privileged from arrest during their attendance at the
session of their respective Houses, and in going to and returning
from the same, and for any speech or debate in either House they
shall not be questioned in any other place."
Is what the defendants did in the matter in hand covered by this
provision? Is a resolution offered by a member a speech or debate
within the meaning of the clause? Does its protection extend to the
report which they made to the House of Kilbourn's delinquency? To
the expression of opinion that he was in contempt of the authority
of the House? To their vote in favor of the resolution under which
he was imprisoned? If these questions be answered in the
affirmative, they cannot be brought in question for their action in
a court of justice or in any other place. And yet if a report, or a
resolution, or a vote is not a speech or debate, of what value is
the constitutional protection?
We may, perhaps, find some aid in ascertaining the meaning of
this provision if we can find out its source, and, fortunately, in
this there is no difficulty. For while the framers of the
Constitution did not adopt the
lex et consuetudo of the
English Parliament as a whole, they did incorporate such parts of
it, and with it such privileges of Parliament, as they thought
proper to be applied to the two Houses of Congress. Some of these
we have already referred to as the right to make rules of
procedure, to determine the election and qualification of its
members, to preserve order, &c. In the sentence we have just
cited, another part of the privileges of Parliament are made
privileges of Congress. The freedom from arrest and freedom of
speech in the two Houses of Parliament were long subjects of
contest between the Tudor and Stuart kings and the House
Page 103 U. S. 202
of Commons. When, however, the revolution of 1688 expelled the
last of the Stuarts and introduced a new dynasty, many of these
questions were settled by a bill of rights, formally declared by
the Parliament and assented to by the crown. 1 W. & M., st. 2,
c. 2. One of these declarations is
"that the freedom of speech, and debates, and proceedings in
Parliament, ought not to be impeached or questioned in any court or
place out of Parliament."
In
Stockdale v. Hansard, Lord Denman, speaking on this
subject, says:
"The privilege of having their debates unquestioned, though
denied when the members began to speak their minds freely in the
time of Queen Elizabeth, and punished in its exercise both by that
princess and her two successors, was soon clearly perceived to be
indispensable and universally acknowledged. By consequence,
whatever is done within the walls of either assembly must pass
without question in any other place. For speeches made in
Parliament by a member to the prejudice of any other person, or
hazardous to the public peace, that member enjoys complete
impunity. For every paper signed by the speaker by order of the
House, though to the last degree calumnious, or even if it brought
personal suffering upon individuals, the speaker cannot be
arraigned in a court of justice. But if the calumnious or
inflammatory speeches should be reported and published, the law
will attach responsibility on the publisher. So if the speaker, by
authority of the House, order an illegal act, though that authority
shall exempt him from question, his order shall no more justify the
person who executed it than King Charles' warrant for levying ship
money could justify his revenue officer."
Taking this to be a sound statement of the legal effect of the
Bill of Rights and of the parliamentary law of England, it may be
reasonably inferred that the framers of the Constitution meant the
same thing by the use of language borrowed from that source.
Many of the colonies, which afterwards became States in our
Union, had similar provisions in their charters or in bills of
rights, which were part of their fundamental laws, and the general
idea in all of them, however expressed, must have been the same,
and must have been in the minds of the members of
Page 103 U. S. 203
the constitutional convention. In the Constitution of the State
of Massachusetts of 1780, adopted during the war of the Revolution,
the twenty-first article of the Bill of Rights embodies the
principle in the following language:
"The freedom of deliberation, speech, and debate in either House
of the legislature is so essential to the rights of the people that
it cannot be the foundation of any accusation or prosecution,
action, or complaint in any other court or place whatsoever."
This article received a construction as early as 1808, in the
Supreme Court of that State, in the case of
Coffin v.
Coffin, (4 Mass. 1), in which Mr. Chief Justice Parsons
delivered the opinion. The case was an action for slander, the
offensive language being used in a conversation in the House of
Representatives of the Massachusetts legislature. The words were
not delivered in the course of a regular address or speech, though
on the floor of the House while in session, but were used in a
conversation between three of the members, when neither of them was
addressing the chair. It had relation, however, to a matter which
had a few moments before been under discussion. In speaking of this
article of the Bill of Rights, the protection of which had been
invoked in the plea, the Chief Justice said:
"These privileges are thus secured not with the intention of
protecting the members against prosecutions for their own benefit,
but to support the rights of the people by enabling their
representatives to execute the functions of their office without
fear of prosecutions, civil or criminal. I therefore think that the
article ought not to be construed strictly, but liberally, that the
full design of it may be answered. I will not confine it to
delivering an opinion, uttering a speech, or haranguing in debate,
but will extend it to the giving of a vote, to the making of a
written report, and to every other act resulting from the nature
and in the execution of the office. And I would define the article
as securing to every member exemption from prosecution for
everything said or done by him as a representative, in the exercise
of the functions of that office, without inquiring whether the
exercise was regular, according to the rules of the House, or
irregular and against their rules. I do not confine the member to
his place in the House, and I am satisfied that there are cases in
which
Page 103 U. S. 204
he is entitled to this privilege when not within the walls of
the representatives' chamber."
The report states that the other judges, namely, Sedgwick,
Sewall, Thatcher and Parker, concurred in the opinion.
This is perhaps the most authoritative case in this country on
the construction of the provision in regard to freedom of debate in
legislative bodies, and, being so early after the formation of the
Constitution of the United States, is of much weight. We have been
unable to find any decision of a Federal court on this clause of
section 6 of article 1, though the previous clause concerning
exemption from arrest has been often construed.
Mr. Justice Story (sect. 866 of his Commentaries on the
Constitution) says:
"The next great and vital privilege is the freedom of speech and
debate, without which all other privileges would be comparatively
unimportant or ineffectual. This privilege also is derived from the
practice of the British Parliament, and was in full exercise in our
colonial legislation, and now belongs to the legislation of every
State in the Union as matter of constitutional right."
It seems to us that the views expressed in the authorities we
have cited are sound, and are applicable to this case. It would be
a narrow view of the constitutional provision to limit it to words
spoken in debate. The reason of the rule is as forcible in its
application to written reports presented in that body by its
committees, to resolutions offered, which, though in writing, must
be reproduced in speech, and to the act of voting, whether it is
done vocally or by passing between the tellers. In short, to things
generally done in a session of the House by one of its members in
relation to the business before it.
It is not necessary to decide here that there may not be things
done, in the one House or the other, of an extraordinary character,
for which the members who take part in the act may be held legally
responsible. If we could suppose the members of these bodies so far
to forget their high functions and the noble instrument under which
they act as to imitate the Long Parliament in the execution of the
Chief Magistrate of the nation, or to follow the example of the
French Assembly in assuming the function of a court for capital
punishment, we are not prepared to say that such an utter
perversion of their powers to a criminal purpose would be screened
from punishment by the constitutional provision for freedom of
debate. In this, as in other matters which have been pressed on our
attention, we prefer to decide only what is necessary to the case
in hand, and we think the plea set up by those of the defendants
who were members of the House is a good defence, and the judgment
of the court overruling the demurrer to it and giving judgment for
those defendants will be affirmed. As to Thompson, the judgment
will be reversed and the case remanded for further proceedings.
So ordered.
