Appellant, while United States Attorney for the Southern
District of New York, conducted a grand jury investigation which
led to the indictment of a member of the House of Representatives.
Acting on charges of misfeasance and nonfeasance made by the member
against appellant in part before the indictment and renewed with
additions afterward, the House by resolution directed its Judiciary
Committee to make inquiry and report concerning appellant's
liability to impeachment. Such inquiry being in progress through a
subcommittee, appellant addressed to the subcommittee's chairman
and gave to the press a letter, charging the subcommittee with
Page 243 U. S. 522
an endeavor to probe into and frustrate the action of the grand
jury, and couched in terms calculated to arouse the indignation of
the members of that committee and those of the House generally.
Thereafter, appellant was arrested in New York by the
sergeant-at-arms pursuant to a resolution of the House whereby the
letter was characterized as defamatory and insulting and as tending
to bring that body into public contempt and ridicule, and whereby
appellant, in writing and publishing such letter, was adjudged to
be in contempt of the House in violating its privileges, honor, and
dignity. He applied for habeas corpus.
Held:
(1) That the proceedings concerning which the alleged contempt
was committed were not impeachment proceedings.
(2) That, whether they were impeachment proceedings or not, the
House was without power by its own action, as distinct from such
action as might be taken under criminal laws, to arrest or punish
for such acts as were committed by appellant.
No express power to punish for contempt was granted to the House
of Representatives save the power to deal with contempts committed
by its own members. Constitution, Art. I, § 5.
The possession by Congress of the commingled legislative and
judicial authority to punish for contempts which was exerted by the
House of Commons is at variance with the view and tendency existing
in this country when the Constitution was adopted, as evidenced by
the manner in which the subject was treated in many state
constitutions, beginning at or about that time and continuing
thereafter.
Such commingling of powers would be destructive of the basic
constitutional distinction between legislative, executive, and
judicial power, and repugnant to limitations which the Constitution
fixes expressly; hence there is no warrant whatever for implying
such a dual power in aid of other powers expressly granted to
Congress.
The House has implied power to deal directly with contempt so
far as is necessary to preserve and exercise the legislative
authority expressly granted.
Being, however, a power of self-preservation, a means and not an
end, the power does not extend to infliction of punishment, as
such; it is a power to prevent acts which, in and of themselves,
inherently, prevent or obstruct the discharge of legislative duty
and to compel the doing of those things which are essential to the
performance of the legislative functions.
As pointed out in
Anderson v.
Dunn, 6 Wheat. 204, this implied power, in its
exercise, is limited to imprisonment during the session of the body
affected by the contempt.
Page 243 U. S. 523
The authority does not cease when the act complained of has been
committed, but includes the right to determine, in the use of
legitimate and fair discretion, how far from the nature and
character of the act there is necessity for repression to prevent
immediate recurrence,
i.e., the continued existence of the
interference or obstruction to the exercise of legislative
power.
In such case, unless there be manifest an absolute disregard of
discretion, and a mere exertion of arbitrary power coming within
the reach of constitutional limitations, the exercise of the
authority is not subject to judicial interference.
The power is the same in quantity and quality whether exerted on
behalf of the impeachment powers or of the others to which it is
ancillary.
The legislative power to provide by criminal laws for the
prosecution and punishment of wrongful acts -- not here
involved.
The case is stated in the opinion.
Page 243 U. S. 530
MR. CHIEF JUSTICE WHITE delivered the opinion of the Court.
These are the facts: a member of the House of Representatives on
the floor charged the appellant, who was the
Page 243 U. S. 531
District Attorney of the Southern District of New York, with
many acts of misfeasance and nonfeasance. When this was done, the
grand jury in the Southern District of New York was engaged in
investigating alleged illegal conduct of the member in relation to
the Sherman Anti-Trust Law July 2, 1890, c. 647, 26 Stat. 209, and
asserted illegal activities of an organization known as Labor's
National Peace Council, to which the member belonged. The
investigation as to the latter subject not having been yet reported
upon by the grand jury, that body found an indictment against the
member for a violation of the Sherman Law. Subsequently calling
attention to his previous charges and stating others, the member
requested that the judiciary committee be directed to inquire and
report concerning the charges against the appellant insofar as they
constituted impeachable offenses. After the adoption of this
resolution, a subcommittee was appointed which proceeded to New
York to take testimony. Friction there arose between the
subcommittee and the office of the district attorney, based upon
the assertion that the subcommittee was seeking to unlawfully
penetrate the proceedings of the grand jury relating to the
indictment and the investigations in question. In a daily
newspaper, an article appeared charging that the writer was
informed that the subcommittee was endeavoring rather to
investigate and frustrate the action of the grand jury than to
investigate the conduct of the district attorney. When called upon
by the subcommittee to disclose the name of his informant, the
writer declined to do so, and proceedings for contempt of the House
were threatened. The district attorney thereupon addressed a letter
to the chairman of the subcommittee, avowing that he was the
informant referred to in the article, averring that the charges
were true, and repeating them in amplified form in language which
was certainly unparliamentary and manifestly ill tempered, and
which was well calculated to arouse the indignation not only of the
members of the
Page 243 U. S. 532
subcommittee, but of those of the House generally. This letter
was given to the press so that it might be published
contemporaneously with its receipt by the chairman of the
subcommittee. The judiciary committee reported the matter to the
House, and a select committee was appointed to consider the
subject. The district attorney was called before that committee,
and reasserted the charges made in the letter, averring that they
were justified by the circumstances, and stating that they would,
under the same condition, be made again. Thereupon the select
committee made a report and stated its conclusions and
recommendations to the House as follows:
"We conclude and find that the aforesaid letter written and
published by said H. Snowden Marshall to Hon. C. C. Carlin,
chairman of the subcommittee of the Judiciary Committee of the
House of Representatives, on March 4, 1916, . . . is as a whole and
in several of the separate sentences defamatory and insulting and
tends to bring the House into public contempt and ridicule, and
that the said H. Snowden Marshall, by writing and publishing the
same, is guilty of contempt of the House of Representatives of the
United States because of the violating of its privileges, its
honor, and its dignity."
Upon the adoption of this report, under the authority of the
House, a formal warrant for arrest was issued and its execution by
the Sergeant at Arms in New York was followed by an application for
discharge on habeas corpus, and the correctness of the judgment of
the court below, refusing the same, is the matter before us on this
direct appeal.
Whether the House had power under the Constitution to deal with
the conduct of the district attorney in writing the letter as a
contempt of its authority, and to inflict punishment upon the
writer for such contempt as a matter of legislative power -- that
is, without subjecting him to the
Page 243 U. S. 533
statutory modes of trial provided for criminal offenses,
protected by the limitations and safeguards which the Constitution
imposes as to such subject, is the question which is before us.
There is unity between the parties only in one respect -- that is,
that the existence of constitutional power is the sole matter to be
decided. As to all else, there is entire discord, every premise of
law or authority relied upon by the one side being challenged, in
some respects, by the other. We consider, therefore, that the
shortest way to meet and dispose of the issue is to treat the
subject as one of first impression, and we proceed to do so.
Undoubtedly what went before the adoption of the Constitution
may be resorted to for the purpose of throwing light on its
provisions. Certain is it that authority was possessed by the House
of Commons in England to punish for contempt directly -- that is,
without the intervention of courts, and that such power included a
variety of acts and many forms of punishment, including the right
to fix a prolonged term of imprisonment. Indubitable also is it,
however, that this power rested upon an assumed blending of
legislative and judicial authority possessed by the Parliament when
the Lords and Commons were one, and continued to operate after the
division of the Parliament into two houses, either because the
interblended power was thought to continue to reside in the
Commons, or by the force of routine, the mere reminiscence of the
commingled powers led to a continued exercise of the wide authority
as to contempt formerly existing long after the foundation of
judicial-legislative power upon which it rested had ceased to
exist. That this exercise of the right of legislative-judicial
power to exert the authority stated prevailed in England at the
time of the adoption of the Constitution and for some time after
has been so often recognized by the decided cases relied upon and
by decisions of this Court, some of which are in the
Page 243 U. S. 534
margin, [
Footnote 1] as to
make it too certain for anything but statement.
Clear also is it, however, that, in the state governments prior
to the formation of the Constitution, the incompatibility of the
intermixture of the legislative and judicial power was recognized,
and the duty of separating the two was felt, as was manifested by
provisions contained in some of the state constitutions enacted
prior to the adoption of the Constitution of the United States, as
illustrated by the following articles in the Constitutions of
Maryland and Massachusetts:
"That the house of delegates may punish, by imprisonment, any
person who shall be guilty of a contempt in their view, by any
disorderly or riotous behaviour, or by threats to, or abuse of
their members, or by any obstruction to their proceedings. They may
also punish, by imprisonment, any person who shall be guilty of a
breach of privilege, by arresting on civil process, or by
assaulting any of their members, during their sitting, or on their
way to, or return from the house of delegates, or by any assault
of, or obstruction to their officers, in the execution of any order
or process, or by assaulting or obstructing any witness, or any
other person, attending on, or on their way to or from the house,
or by rescuing any person committed by the house: and the senate
may exercise the same power, in similar cases."
Constitution of Maryland, 1776, Article XII.
"They [the house of representatives] shall have authority to
punish by imprisonment every person, not a member, who shall be
guilty of disrespect to the house, by any disorderly or
contemptuous behavior in its presence; or who, in the town where
the general court is sitting, and during the time of its sitting,
shall threaten harm to the
Page 243 U. S. 535
body or estate of any of its members, for anything said or done
in the house; or who shall assault any of them therefor; or who
shall assault or arrest any witness, or other person, ordered to
attend the house, in his way in going or returning; or who shall
rescue any person arrested by the order of the house."
"And no member of the house of representatives shall be
arrested, or held to bail on mean process, during his going unto,
returning from, or his attending the general assembly."
"The senate shall have the same powers in the like cases, and
the governor and council shall have the same authority to punish in
like cases:
Provided, That no imprisonment, on the warrant
or order of the governor, council, senate, or house of
representatives, for either of the above described offenses, be for
a term exceeding thirty days."
Constitution of Massachusetts, 1780, part second, chapter 1, §
3, Articles X and XI.
The similarity of the provisions points to the identity of the
evil which they were intended to reach. Clearly they operate to
destroy the admixture of judicial and legislative power as
prevailing in the House of Commons, since the provisions in both
the state constitutions and the limitations accompanying them are
wholly incompatible with judicial authority. Moreover, as under
state constitutions all governmental power not denied is possessed,
the provisions were clearly not intended to give legislative power
as such, for full legislative power to deal with the enumerated
acts as criminal offenses and provide for their punishment
accordingly already obtained. The object, therefore, of the
provisions could only have been to recognize the right of the
legislative power to deal with the particular acts without
reference to their violation of the criminal law and their
susceptibility of being punished under that law because of the
necessity of such a legislative authority to prevent or punish the
acts independently
Page 243 U. S. 536
because of the destruction of legislative power which would
arise from such acts if such authority was not possessed.
How dominant these views were can be measured by the fact that,
in various other states, almost contemporaneously with the adoption
of the Constitution, similar provisions were written into their
constitutions and continued to be adopted until it is true to say
that they became, if not universal, certainly largely predominant
in the states. [
Footnote 2]
No power was expressly conferred by the Constitution of the
United States on the subject except that given to the House to deal
with contempt committed by its own members. Article I, § 5. As the
rule concerning the Constitution of the United States is that
powers not delegated were reserved to the people or the states, it
follows that no other express authority to deal with contempt can
be conceived of. It comes, then, to this: was such an authority
implied from the powers granted? As it is unthinkable that in any
case from a power expressly granted there can be implied the
authority to destroy the grant made, and as the possession by
Congress of the commingled legislative-judicial authority as to
contempts which was exerted in the House of Commons would be
absolutely destructive of the distinction between legislative,
executive, and judicial authority which is interwoven in the very
fabric of the Constitution, and would disregard express limitations
therein, it must follow that there is no ground whatever for
assuming that any implication as to such a power may be deduced
from any grant of authority made to Congress by the Constitution.
This conclusion has long since been
Page 243 U. S. 537
authoritatively settled, and is not open to be disputed.
Anderson v.
Dunn, 6 Wheat. 204;
Kilbourn v. Thompson,
103 U. S. 168.
Whether the right to deal with contempt in the limited way provided
in the state constitutions may be implied in Congress as the result
of the legislative power granted must depend upon how far such
limited power is ancillary or incidental to the power granted to
Congress -- a subject which we shall hereafter approach.
The rule of constitutional interpretation announced in
M'Culloch v.
Maryland, 4 Wheat. 316, that that which was
reasonably appropriate and relevant to the exercise of a granted
power was to be considered as accompanying the grant, has been so
universally applied that it suffices merely to state it. And as
there is nothing in the inherent nature of the power to deal with
contempt which causes it to be an exception to such rule, there can
be no reason for refusing to apply it to that subject.
Thus, in
Anderson v. Dunn, supra, which was an action
for false imprisonment against the Sergeant-at-Arms of the House
for having executed a warrant for arrest issued by that body in a
contempt proceeding, after holding, as we have already said, that
the power possessed by the House of Commons was incompatible with
the Constitution and could not be exerted by the House, it was yet
explicitly decided that from the power to legislate given by the
Constitution to Congress there was to be implied the right of
Congress to preserve itself -- that is, to deal by way of contempt
with direct obstructions to its legislative duties. In
Kilbourn
v. Thompson, supra, which was also a case of false
imprisonment for arrest under a warrant issued by order of the
House in a contempt proceeding, although the want of right of the
House of Representatives to exert the judicial-legislative power
possessed by the House of Commons was expressly reiterated, the
question was reserved as to the right to imply an authority in the
House of Representatives to deal with contempt as to a
Page 243 U. S. 538
subject matter within its jurisdiction, the particular case
having been decided on the ground that the subject with which the
contempt proceedings were concerned was totally beyond the
jurisdiction of the House to investigate. But in
In Re
Chapman, 166 U. S. 661, the
principle of the existence of an implied legislative authority
under certain conditions to deal with contempt was again considered
and upheld. The case was this: Chapman had refused to testify in a
Senate proceeding, and was indicted under § 102 of the Revised
Statutes, making such refusal criminal. He sued out a habeas corpus
on the ground that the subject of the refusal was exclusively
cognizable by the Senate, and that therefore the statute was
unconstitutional as a wrongful delegation by the Senate of its
authority, and because to subject him to prosecution under the
statute might submit him to double jeopardy -- that is, leave him
after punishment under the statute to be dealt with by the Senate
as for contempt. After demonstrating the want of merit in the
argument as to delegation of authority, the proposition was held to
be unsound and the contention as to double jeopardy was also
adversely disposed of on the ground of the distinction between the
implied right to punish for contempt and the authority to provide
by statute for punishment for wrongful acts and to prosecute under
the same for a failure to testify, the Court saying that, "the two
being
diverso intuito and capable of standing together,"
they were susceptible of being separately exercised.
And light is thrown upon the right to imply legislative power to
deal directly by way of contempt without criminal prosecution with
acts the prevention of which is necessary to preserve legislative
authority, by the decision of the Privy Council in
Kielley v.
Carson, 4 Moo., P.C. 63, which was fully stated in
Kilbourn v. Thompson, supra, but which we again state. The
case was this: Kielley was adjudged by the House of Assembly of
Newfoundland
Page 243 U. S. 539
guilty of contempt for having reproached a member "in coarse and
threatening language" for words spoken in debate in the House. A
warrant was issued, and Kielley was arrested. When brought before
the House, he refused to apologize, and indulged in further violent
language toward the member, and was committed. Having been
discharged on habeas corpus proceedings, he brought an action for
false imprisonment against the Speaker and other members of the
House. As a justification, the defendants pleaded that they had
acted under the authority of the House. A demurrer to the plea was
overruled, and there was a judgment for the defendants. The appeal
was twice heard by the Privy Council, the court on the second
argument having been composed of the Lord Chancellor (Lyndhurst),
Lords Brougham, Denman, Abinger, Cottenham, and Campbell, the Vice
Chancellor (Shadwell), the Lord Chief Justice of the Common Pleas
(Tindal), Mr. Justice Erskine, Lushington, and Baron Parke.
The opinion on reversal was written by Parke, B., who said:
"The main question raised by the pleadings, . . . was whether
the House of Assembly had the power to arrest and bring before
them, with a view to punishment, a person charged by one of its
members with having used insolent language to him out of the doors
of the House, in reference to his conduct as a member of the
Assembly -- in other words, whether the House had the power, such
as is possessed by both Houses of Parliament in England, to
adjudicate upon a complaint of contempt or breach of
privilege."
After pointing out that the power was not expressly granted to
the local legislature by the Crown, it was said the question
was
"whether by law, the power of committing for a contempt, not in
the presence of the Assembly, is incident to every local
legislature."
"The statute law on this subject being silent, the
Page 243 U. S. 540
common law is to govern it, and what is the common law depends
upon principle and precedent."
"Their Lordships see no reason to think that in the principle of
the common law any other powers are given them than such as are
necessary to the existence of such a body, and the proper exercise
of the functions which it is intended to execute. These powers are
granted by the very act of its establishment, an act which, on both
sides, it is admitted, it was competent for the Crown to perform.
This is the principle which governs all legal incidents."
And, after quoting the aphorism of the Roman law to the effect
that the conferring of a given power carried with it by implication
the right to do those things which were necessary to the carrying
out of the power given, the opinion proceeded:
"In conformity to this principle, we feel no doubt that such an
Assembly has the right of protecting itself from all impediments to
the due course of its proceeding. To the full extent of every
measure which it may be really necessary to adopt, to secure the
free exercise of their legislative functions, they are justified in
acting by the principle of the common law. But the power of
punishing anyone for past misconduct as a contempt of its
authority, and adjudicating upon the fact of such contempt, and the
measure of punishment as a judicial body, irresponsible to the
party accused, whatever the real facts may be, is of a very
different character, and by no means essentially necessary for the
exercise of its functions by a local legislature, whether
representative or not. All these functions may be well performed
without this extraordinary power, and with the aid of the ordinary
tribunals to investigate and punish contemptuous insults and
interruptions."
There can be no doubt that the ruling in the case just stated
upheld the existence of the implied power to punish for contempt as
distinct from legislative authority and yet flowing from it. It
thus becomes apparent that, from a
Page 243 U. S. 541
doctrinal point of view, the English rule concerning legislative
bodies generally came to be in exact accord with that which was
recognized in
Anderson v.
Dunn, 6 Wheat. 204, as belonging to Congress --
that is, that, in virtue of the grant of legislative authority,
there would be a power implied to deal with contempt insofar as
that authority was necessary to preserve and carry out the
legislative authority given. While the doctrine of
Kielley v.
Carson was thus in substantive principle the same as that
announced in
Anderson v. Dunn, we must not be understood
as accepting the application which was made of the rule to the
particular case there in question, since, as we shall hereafter
have occasion to show, we think that the application was not
consistent with the rule which the case announced, and would, if
applied, unwarrantedly limit the implied power of Congress to deal
with contempt.
What does this implied power embrace? is thus the question. In
answering, it must be borne in mind that the power rests simply
upon the implication that the right has been given to do that which
is essential to the execution of some other and substantive
authority expressly conferred. The power is therefore but a force
implied to bring into existence the conditions to which
constitutional limitations apply. It is a means to an end, and not
the end itself. Hence, it rests solely upon the right of
self-preservation to enable the public powers given to be
exerted.
These principles are plainly the result of what was decided in
Anderson v. Dunn, supra, since, in that case, in answering
the question what was the rule by which the extent of the implied
power of legislative assemblies to deal with contempt was
controlled, it was declared to be "
the least possible power
adequate to the end proposed" (
19 U. S. 6
Wheat. 231), which was but a form of stating that, as it resulted
from implication, and not from legislative will, the legislative
will was powerless to extend it further
Page 243 U. S. 542
than implication would justify. The concrete application of the
definition and the principle upon which it rests were aptly
illustrated in
In re Chapman, 166 U.
S. 661, where, because of the distinction existing
between the two which was drawn, the implied power was decided not
to come under the operation of a constitutional limitation
applicable to a case resting upon the exercise of substantive
legislative power.
Without undertaking to inclusively mention the subjects embraced
in the implied power, we think from the very nature of that power
it is clear that it does not embrace punishment for contempt as
punishment, since it rests only upon the right of self-preservation
-- that is, the right to prevent acts which, in and of themselves,
inherently obstruct or prevent the discharge of legislative duty or
the refusal to do that which there is an inherent legislative power
to compel in order that legislative functions may be performed. And
the essential nature of the power also makes clear the cogency and
application of the two limitations which were expressly pointed out
in
Anderson v. Dunn, supra -- that is, that the power,
even when applied to subjects which justified its exercise, is
limited to imprisonment, and such imprisonment may not be extended
beyond the session of the body in which the contempt occurred. Not
only the adjudged cases, but congressional action in enacting
legislation as well as in exerting the implied power, conclusively
sustain the views just stated. Take, for instance, the statute
referred to in
In re Chapman, where, not at all
interfering with the implied congressional power to deal with the
refusal to give testimony in a matter where there was a right to
exact it, the substantive power had been exerted to make such
refusal a crime, the two being distinct the one from the other. So
also, when the difference between the judicial and legislative
powers is considered and the divergent elements which, in the
nature of things, enter into the determination of
Page 243 U. S. 543
what is self-preservation in the two cases, the same result is
established by the statutory provisions dealing with the judicial
authority to summarily punish for contempt -- that is, without
resorting to the modes of trial required by constitutional
limitations or otherwise for substantive offenses under the
criminal law. Act of March 2, 1831, 4 Stat. 487. The legislative
history of the exertion of the implied power to deal with contempt
by the Senate or House of Representatives when viewed
comprehensively from the beginning points to the distinction upon
which the power rests, and sustains the limitations inhering in it
which we have stated. The principal instances are mentioned in the
margin, [
Footnote 3] and they
all, except two or three, deal with either physical obstruction of
the legislative body in the discharge of its duties, or physical
assault upon its members for action taken or words spoken in the
body, or obstruction of its officers in the performance of their
official duties, or the prevention of members from attending so
that their duties might be performed, or, finally, with contumacy
in refusing to obey orders to produce documents or give testimony
which there was a right to compel. In the two or three instances
not embraced in the classes, we think it plainly appears that, for
the moment, the distinction was overlooked which existed between
the legislative power to make criminal every form of act which can
constitute a contempt, to be punished
Page 243 U. S. 544
according to the orderly process of law, and the accessory
implied power to deal with particular acts as contempts outside of
the ordinary process of law because of the effect such particular
acts may have in preventing the exercise of legislative authority.
And in the debates which ensued when the various cases were under
consideration, it would seem that the difference between the
legislative and the judicial power was also sometimes forgotten --
that is to say, the legislative right to exercise discretion was
confounded with the want of judicial power to interfere with the
legislative discretion when lawfully exerted. But these
considerations are accidental, and do not change the concrete
result manifested by considering the subject from the beginning.
Thus, we have been able to discover no single instance where, in
the exertion of the power to compel testimony, restraint was ever
made to extend beyond the time when the witness should signify his
willingness to testify, the penalty or punishment for the refusal
remaining controlled by the general criminal law. So, again, we
have been able to discover no instance, except the two or three
above referred to, where acts of physical interference were treated
as within the implied power unless they possessed the obstructive
or preventive characteristics which we have stated, or any case
where any restraint was imposed after it became manifest that there
was no room for a legislative judgment as to the virtual
continuance of the wrongful interference which was the subject of
consideration. And this latter statement causes us to say,
referring to
Kielley v. Carson, supra, that, where a
particular act, because of its interference with the right of
self-preservation, comes within the jurisdiction of the House to
deal with directly under its implied power to preserve its
functions, and therefore without resort to judicial proceedings
under the general criminal law, we are of opinion that authority
does not cease to exist because the act complained of had been
committed
Page 243 U. S. 545
when the authority was exerted, for to so hold would be to admit
the authority and at the same time to deny it. On the contrary,
when an act is of such a character as to subject it to be dealt
with as a contempt under the implied authority, we are of opinion
that jurisdiction is acquired by Congress to act on the subject,
and therefore there necessarily results from this power the right
to determine, in the use of legitimate and fair discretion, how far
from the nature and character of the act there is necessity for
repression to prevent immediate recurrence -- that is to say, the
continued existence of the interference or obstruction to the
exercise of the legislative power. And, of course, in such case, as
in every other, unless there be manifest an absolute disregard of
discretion and a mere exertion of arbitrary power coming within the
reach of constitutional limitations, the exercise of the authority
is not subject to judicial interference.
It remains only to consider whether the acts which were dealt
with in the case in hand were of such a character as to bring them
within the implied power to deal with contempt -- that is, the
accessory power possessed to prevent the right to exert the powers
given from being obstructed and virtually destroyed. That they were
not would seem to be demonstrated by the fact that the contentions
relied upon in the elaborate arguments at bar to sustain the
authority were principally rested not upon such assumption, but
upon the application and controlling force of the rule governing in
the House of Commons. But, aside from this, coming to test the
question by a consideration of the conclusion upon which the
contempt proceedings were based as expressed in the report of the
select committee which we have previously quoted, and the action of
the House of Representatives based on it, there is room only for
the conclusion that the contempt was deemed to result from the
writing of the letter, not because of any obstruction to the
performance of legislative
Page 243 U. S. 546
duty resulting from the letter, or because the preservation of
the power of the House to carry out its legislative authority was
endangered by its writing, but because of the effect and operation
which the irritating and ill tempered statements made in the letter
would produce upon the public mind, or because of the sense of
indignation which it may be assumed was produced by the letter upon
the members of the committee and of the House generally. But to
state this situation is to demonstrate that the contempt relied
upon was not intrinsic to the right of the House to preserve the
means of discharging its legislative duties, but was extrinsic to
the discharge of such duties, and related only to the presumed
operation which the letter might have upon the public mind and the
indignation naturally felt by members of the committee on the
subject. But these considerations plainly serve to mark the broad
boundary line which separates the limited implied power to deal
with classes of acts as contempts for self-preservation and the
comprehensive legislative power to provide by law for punishment
for wrongful acts.
The conclusions which we have stated bring about a concordant
operation of all the powers of the legislative and judicial
departments of the government, express or implied, as contemplated
by the Constitution. And, as this is considered, the reverent
thought may not be repressed that the result is due to the wise
foresight of the fathers, manifested in state constitutions even
before the adoption of the Constitution of the United States, by
which they substituted for the intermingling of the legislative and
judicial power to deal with contempt as it existed in the House of
Commons a system permitting the dealing with that subject in such a
way as to prevent the obstruction of the legislative powers granted
and secure their free exertion, and yet, at the same time, not
substantially interfere with the great guaranties and limitations
concerning
Page 243 U. S. 547
the exertion of the power to criminally punish -- a beneficent
result which additionally arises from the golden silence by which
the framers of the Constitution left the subject to be controlled
by the implication of authority resulting from the powers
granted.
It is suggested in argument that whatever be the general rule,
it is here not applicable because the House was considering and its
committee contemplating impeachment proceedings. The argument is
irrelevant, because we are of opinion that the premise upon which
it rests is unfounded. But, indulging in the assumption to the
contrary, we think it is wholly without merit, as we see no reason
for holding that, if the situation suggested be assumed, it
authorized a disregard of the plain purposes and objects of the
Constitution as we have stated them. Besides, it must be apparent
that the suggestion could not be accepted without the conclusion
that, under the hypothesis stated, the implied power to deal with
contempt as ancillary to the legislative power had been transformed
into judicial authority and become subject to all the restrictions
and limitations imposed by the Constitution upon that authority --
a conclusion which would frustrate and destroy the very purpose
which the proposition is advanced to accomplish, and would create a
worse evil than that which the wisdom of the fathers corrected
before the Constitution of the United States was adopted. How can
this be escaped, since it is manifest that, if the argument were to
be sustained, those things which, as pointed out in
In re
Chapman, 166 U. S. 661,
were distinct, and did not, therefore, the one frustrate the other
-- the implied legislative authority to compel the giving of
testimony and the right criminally to punish for failure to do so
would become one and the same, and the exercise of one would
therefore be the exertion of and the exhausting of the right to
resort to the other. Again, accepting the proposition, by what
process of reasoning could the
Page 243 U. S. 548
conclusion be escaped that the right to exert implied authority
by way of contempt proceedings insofar as essential to preserve
legislative power would become itself an exertion of legislative
power, and thus at once be subject to the limitations as to modes
of trial exacted by the guaranty of the Constitution on that
subject? We repeat, out of abundance of precaution, we are called
upon to consider not the legislative power of Congress to provide
for punishment and prosecution under the criminal laws in the
amplest degree for any and every wrongful act, since we are alone
called upon to determine the limits and extent of an ancillary and
implied authority essential to preserve the fullest legislative
power, which would necessarily perish by operation of the
Constitution if not confined to the particular ancillary atmosphere
from which alone the power arises and upon which its existence
depends.
It follows from what we have said that the court below erred in
refusing to grant the writ of habeas corpus, and its action must be
and it is therefore reversed, and the case remanded with directions
to discharge the relator from custody.
And it is so ordered.
[
Footnote 1]
Crosby's Case, 3 Wils. 188;
Burdett v. Abbot,
14 East 1;
Stockdale v. Hansard, 9 Ad. & El. 1;
Anderson v.
Dunn, 6 Wheat. 204;
Kilbourn v. Thompson,
103 U. S. 168.
[
Footnote 2]
1790, South Carolina, Article I, § 13; 1792, New Hampshire, Part
2, §§ 22 and 23; 1796, Tennessee, Article I, § 11; 1798, Georgia,
Article I, § 13; 1802, Ohio, Article I, § 14; 1816, Indiana,
Article III, § 14; 1817, Mississippi, Article III, § 20; 1818
Illinois, Article II, § 13; 1820, Maine, Article IV, Part 3, § 6;
1820, Missouri, Article III, § 19.
[
Footnote 3]
1795, attempt to bribe members of the House; 1800, publication
of criticism of the Senate; 1809, assault on a member of the House;
1818, attempt to bribe a member of the House; 1828, assault on the
Secretary to the President in the Capitol; 1832, assault on a
member of the House; 1835, assault on a member of the House; 1842,
contumacious witness; 1857, contumacious witness; 1858,
contumacious witness; 1859 contumacious witness; 1865, assault on a
member of the House; 1866, assault on a clerk of a committee of the
House; 1870, assault on a member of the House; 1871, contumacious
witness; 1874, contumacious witness; 1876, contumacious witness;
1894, contumacious witness; 1913, assault on a member of the
House.