1. Deputies, with authority to execute warrants, may be
appointed by the Sergeant-at-Arms of the Senate, under a standing
order of the Senate, such appointments being sanctioned by practice
and by acts of Congress fixing the compensation of the appointees
and providing for its payment. P.
273 U. S.
154.
2. Such deputy may serve a warrant of attachment issued by the
President of the Senate and addressed only to the Sergeant-at-Arms,
in pursuance of a Senate resolution contemplating service by
either. P.
273 U. S.
155.
3. A warrant of the Senate for attachment of a person who
ignored a subpoena from a Senate committee is supported by oath
within the requirement of the Fourth Amendment when based upon the
committee's report of the facts of the contumacy, made on the
committee's own knowledge and having the sanction of the oath of
office of its members. P.
273 U. S.
156.
4. Subpoenas issued by a committee of the Senate to bring before
it a witness to testify in an investigation authorized by the
Senate are as if issued by the Senate itself. P.
273 U. S.
158.
5. Therefore, in case of disobedience, the fact that the
subpoena, and the contumacy related only to testimony sought by a
committee is not a valid objection to a resolution of the Senate,
and warrant issued thereon, requiring the defaulting witness to
appear before the bar of the Senate itself, then and there to give
the desired testimony. P. 158.
6. Each house of Congress has power, through its own process, to
compel a private individual to appear before it or one of its
committees and give testimony needed to enable it efficiently to
exercise a legislative function belonging to it under the
Constitution. P.
273 U. S.
160.
7. This has support in long practice of the houses separately,
and in repeated Acts of Congress, all amounting to a practical
construction of the Constitution. Pp.
273 U. S. 161,
273 U. S. 167,
273 U. S.
174.
8. The two houses of Congress, in their separate relations, have
not only such powers as are expressly granted them by the
Constitution, but also such auxiliary powers as are necessary and
appropriate
Page 273 U. S. 136
to make the express powers effective, but neither is invested
with "general" power to inquire into private affairs and compel
disclosures. P.
273 U. S.
173.
9. A witness may rightfully refuse to answer where the bounds of
the power are exceeded or the questions are not pertinent to the
matter under inquiry. P.
273 U. S.
176.
10. A resolution of the Senate directing a committee to
investigate the administration of the Department of Justice --
whether its functions were being properly discharged or were being
neglected or misdirected, and particularly whether the Attorney
General and his assistants were performing or neglecting their
duties in respect of the institution and prosecution of proceedings
to punish crimes and enforce appropriate remedies against the
wrongdoers, specific instances of alleged neglect being recited --
concerned a subject on which legislation could be had which would
be materially aided by the information which the investigation was
calculated to elicit. P.
273 U. S.
176.
11. It is to be presumed that the object of the Senate in
ordering such an investigation is to aid it in legislating. P.
273 U. S.
178.
12. It is not a valid objection to such investigation that it
might disclose wrongdoing or crime by a public officer named in the
resolution. P.
273 U. S.
179.
13. A resolution of the Senate directing attachment of a witness
who had disobeyed a committee subpoena to such an investigation,
and declaring that his testimony is sought with the purpose of
obtaining "information necessary as a basis for such legislative
and other action as the Senate may deem necessary and proper,"
supports the inference, from the earlier resolution, of a
legislative object. The suggestion of "other action" does not
overcome the other part of the declaration, and thereby invalidate
the attachment proceedings. P.
273 U. S.
180.
14. In view of the character of the Senate as a continuing body,
and its power to continue or revive, with its original functions,
the committee before which the investigation herein involved was
pending, the question of the legality of the attachment of the
respondent as a contumacious witness did not become moot with the
expiration of the Congress during which the investigation and the
attachment were ordered. P.
273 U. S.
180.
299 Fed. 620 reversed.
Appeal from a final order of the district court in habeas corpus
discharging the respondent, Mally S.
Page 273 U. S. 137
Daugherty, from the custody of John J. McGrain, Deputy Sergeant
at Arms of the Senate, by whom he had been arrested, as a
contumacious witness, under a warrant of attachment, issued by the
President of the Senate in pursuance of a Senate resolution.
Page 273 U. S. 150
MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.
This is an appeal from the final order in a proceeding in habeas
corpus discharging a recusant witness held in custody under process
of attachment issued from the United States Senate in the course of
an investigation which it was making of the administration of the
Department of Justice. A full statement of the case is
necessary.
The Department of Justice is one of the great executive
departments established by congressional enactment, and has charge,
among other things, of the initiation and prosecution of all suits,
civil and criminal, which may be brought in the right and name of
the United States to compel obedience or punish disobedience to its
laws, to recover property obtained from it by unlawful or
fraudulent means, or to safeguard its rights in other respects, and
also of the assertion and protection of its interests when it or
its officers are sued by others. The Attorney General is the head
of the department, and its functions are all to be exercised under
his supervision and direction. [
Footnote 1]
Harry M. Daugherty became the Attorney General March 5, 1921,
and held that office until March 28, 1924,
Page 273 U. S. 151
when he resigned. Late in that period, various charges of
misfeasance and nonfeasance in the Department of Justice after he
became its supervising head were brought to the attention of the
Senate by individual senators and made the basis of an insistent
demand that the department be investigated to the end that the
practices and deficiencies which, according to the charges, were
operating to prevent or impair its right administration might be
definitely ascertained and that appropriate and effective measures
might be taken to remedy or eliminate the evil. The Senate regarded
the charges as grave and requiring legislative attention and
action. Accordingly, it formulated, passed, and invited the House
of Representatives to pass (and that body did pass) two measures
taking important litigation then in immediate contemplation out of
the control of the Department of Justice and placing the same in
charge of special counsel to be appointed by the President,
[
Footnote 2] and also adopted a
resolution authorizing and directing a select committee of five
senators:
"to investigate circumstances and facts, and report the same to
the Senate, concerning the alleged failure of Harry M. Daugherty,
Attorney General of the United States, to prosecute properly
violators of the Sherman Anti-Trust Act and the Clayton Act against
monopolies and unlawful restraint of trade; the alleged neglect and
failure of the said Harry M. Daugherty, Attorney General of the
United States, to arrest and prosecute Albert B. Fall, Harry F.
Sinclair, E. L. Doheny, C. R. Forbes, and their coconspirators in
defrauding the government, as well as the alleged neglect and
failure of the said Attorney General to arrest and prosecute many
others for violations of federal statutes, and his alleged
failure
Page 273 U. S. 152
to prosecute properly, efficiently, and promptly, and to defend,
all manner of civil and criminal actions wherein the government of
the United States is interested as a party plaintiff or defendant.
And said committee is further directed to inquire into,
investigate, and report to the Senate the activities of the said
Harry M. Daugherty, Attorney General, and any of his assistants in
the Department of Justice which would in any manner tend to impair
their efficiency or influence as representatives of the government
of the United States."
The resolution also authorized the committee to send for books
and papers, to subpoena witnesses, to administer oaths, and to sit
at such times and places as it might deem advisable. [
Footnote 3]
In the course of the investigation, the committee issued and
caused to be duly served on Mally S. Daugherty -- who was a brother
of Harry M. Daugherty and president of the Midland National Bank of
Washington Court House, Ohio -- a subpoena commanding him to appear
before the committee for the purpose of giving testimony bearing on
the subject under investigation, and to bring with him the
"deposit ledgers of the Midland National Bank since November 1,
1920; also note files and transcript of owners of every safety
vault; also records of income drafts; also records of any
individual account or accounts showing withdrawals of amounts of
$25,000 or over during above period."
The witness failed to appear.
A little later in the course of the investigation, the committee
issued and caused to be duly served on the same witness another
subpoena, commanding him to appear before it for the purpose of
giving testimony relating to the subject under consideration,
nothing being
Page 273 U. S. 153
said in this subpoena about bringing records, books, or papers.
The witness again failed to appear, and no excuse was offered by
him for either failure.
The committee then made a report to the Senate stating that the
subpoenas had been issued, that, according to the officer's returns
-- copies of which accompanied the report -- the witness was
personally served, and that he had failed and refused to appear.
[
Footnote 4] After a reading of
the report, the Senate adopted a resolution [
Footnote 5] following these facts and proceedings
as follows:
"Whereas, the appearance and testimony of the said M. S.
Daugherty is material and necessary in order that the committee may
properly execute the functions imposed upon it and may obtain
information necessary as a basis for such legislative and other
action as the Senate may deem necessary and proper: Therefore be
it"
"Resolved, that the president of the Senate
pro tempore
issue his warrant commanding the sergeant at arms or his deputy to
take into custody the body of the said M. S. Daugherty wherever
found, and to bring the said M. S. Daugherty before the bar of the
Senate, then and there to answer such questions pertinent to the
matter under inquiry as the Senate may order the President of the
Senate
pro tempore to propound, and to keep the said M. S.
Daugherty in custody to await the further order of the Senate."
It will be observed from the terms of the resolution that the
warrant was to be issued in furtherance of the effort be obtain the
personal testimony of the witness, and, like the second subpoena,
was not intended to exact from him the production of the various
records, books, and papers named in the first subpoena.
The warrant was issued agreeably to the resolution, and was
addressed simply to the sergeant at arms. That
Page 273 U. S. 154
officer, on receiving the warrant, indorsed thereon a direction
that it be executed by John J. McGrain, already his deputy, and
delivered it to him for execution.
The deputy, proceeding under the warrant, took the witness into
custody at Cincinnati, Ohio, with the purpose of bringing him
before the bar of the Senate as commanded, whereupon the witness
petitioned the federal district court in Cincinnati for a writ of
habeas corpus. The writ was granted and the deputy made due return,
setting forth the warrant and the cause of the detention. After a
hearing, the court held the attachment and detention unlawful and
discharged the witness, the decision being put on the ground that
the Senate, in directing the investigation and in ordering the
attachment, exceeded its powers under the Constitution. 299 F. 620.
The deputy prayed and was allowed a direct appeal to this Court
under § 238 of the Judicial Code as then existing.
We have given the case earnest and prolonged consideration
because the principal questions involved are of unusual importance
and delicacy. They are (a) whether the Senate, or the House of
Representatives, both being on the same plane in this regard, has
power, through its own process, to compel a private individual to
appear before it or one of its committees and give testimony needed
to enable it efficiently to exercise a legislative function
belonging to it under the Constitution, and (b) whether it
sufficiently appears that the process was being employed in this
instance to obtain testimony for that purpose.
Other questions are presented which in regular course should be
taken up first.
The witness challenges the authority of the deputy to execute
the warrant on two grounds -- that there was no provision of law
for a deputy, and that, even if there were such a provision, a
deputy could not execute the
Page 273 U. S. 155
warrant because it was addressed simply to the sergeant at arms.
We are of opinion that neither ground is tenable.
The Senate adopted in 1889, and has retained ever since, a
standing order declaring that the sergeant at arms may appoint
deputies "to serve process or perform other duties" in his stead,
that they shall be "officers of the Senate," and that acts done and
returns made by them "shall have like effect and be of the same
validity as if performed or made by the sergeant at arms in
person." [
Footnote 6] In actual
practice, the Senate has given full effect to the order, and
Congress has sanctioned the practice under it by recognizing the
deputies -- sometimes called assistants -- as officers of the
Senate, by fixing their compensation, and by making appropriations
to pay them. [
Footnote 7] Thus
there was ample provision of law for a deputy.
The fact that the warrant was addressed simply to the sergeant
at arms is not of special significance. His authority was not to be
tested by the warrant alone. Other criteria were to be considered.
The standing order and the resolution under which the warrant was
issued plainly contemplated that he was to be free to execute the
warrant in person or to direct a deputy to execute it. They
expressed the intention of the Senate, and the words of the warrant
were to be taken, as they well could be, in a sense which would
give effect to that intention. Thus understood, the warrant
admissibly could be executed by a deputy, if the sergeant at arms
so directed, which he did.
The case of
Sanborn v. Carleton, 15 Gray 339, on which
the witness relies, related to a warrant issued to the sergeant at
arms in 1860, which he deputed another to execute. At that time,
there was no standing rule or
Page 273 U. S. 156
statute permitting him to act through a deputy, nor was there
anything in the resolution under which the warrant was issued
indicative of a purpose to permit him to do so. All that was
decided was that, in the absence of a permissive provision, in the
warrant or elsewhere, he could not commit its execution to another.
The provision which was absent in that case and deemed essential is
present in this.
The witness points to the provision in the Fourth Amendment to
the Constitution declaring "no warrants shall issue, but upon
probable cause, supported by oath or affirmation," and contends
that the warrant was void because the report of the committee on
which it was based was unsworn. We think the contention overlooks
the relation of the committee to the Senate and to the matters
reported, and puts aside the accepted interpretation of the
constitutional provision.
The committee was a part of the Senate, and its members were
acting under their oath of office as senators. The matters reported
pertained to their proceedings and were within their own knowledge.
They had issued the subpoenas, had received and examined the
officer's returns thereon (copies of which accompanied the report),
and knew the witness had not obeyed either subpoena, or offered any
excuse for his failure to do so.
The constitutional provision was not intended to establish a new
principle, but to affirm and preserve a cherished rule of the
common law, designed to prevent the issue of groundless warrants.
In legislative practice, committee reports are regarded as made
under the sanction of the oath of office of its members, and where
the matters reported are within the committee's knowledge and
constitute probable cause for an attachment, such reports are acted
on and given effect, without requiring that they be supported by
further oath or affirmation. This is
Page 273 U. S. 157
not a new practice, but one which has come down from an early
period. It was well recognized before the constitutional provision
was adopted, has been followed ever since, and appears never to
have been challenged until now. Thus, it amounts to a practical
interpretation, long continued, of both the original common law
rule and the affirming constitutional provision, and should be
given effect accordingly. [
Footnote
8]
The principle underlying the legislative practice has also been
recognized and applied in judicial proceedings. This is illustrated
by the settled rulings that courts, in dealing with contempts
committed in their presence, may order commitments without other
proof than their own knowledge of the occurrence, [
Footnote 9] and that they may issue
attachments, based on their own knowledge of the default, where
intended witnesses or jurors fail to appear in obedience to process
shown by the officer's return to have been duly served. [
Footnote 10] A further illustration
is found in the rulings that grand jurors, acting under the
sanction of their oath as such, may find and return indictments
based solely on their own knowledge of the particular offenses, and
that warrants may be issued on such indictments without further
oath or affirmation, [
Footnote
11] and still another is found in the practice which recognizes
that, where grand jurors, under their oath as such, report to the
court that a witness brought before them has refused to testify,
the
Page 273 U. S. 158
court may act on that report, although otherwise unsworn, and
order the witness brought before it by attachment. [
Footnote 12]
We think the legislative practice, fortified as it is by the
judicial practice, shows that the report of the committee -- which
was based on the committee's own knowledge and made under the
sanction of the oath of office of its members -- was sufficiently
supported by oath to satisfy the constitutional requirement.
The witness also points to the provision in the warrant, and in
the resolution under which it was issued, requiring that he be
"brought before the bar of the Senate, then and there" to give
testimony "pertinent to the subject under inquiry," and contends
that an essential prerequisite to such an attachment was wanting,
because he neither had been subpoenaed to appear and testify before
the Senate nor had refused to do so. The argument in support of the
contention proceeds on the assumption that the warrant of
attachment
"is to be treated precisely the same as if no subpoena had been
issued by the committee, and the same as if the witness had not
refused to testify before the committee."
In our opinion, the contention and the assumption are both
untenable. The committee was acting for the Senate and under its
authorization, and therefore the subpoenas which the committee
issued and the witness refused to obey are to be treated as if
issued by the Senate. The warrant was issued as an auxiliary
process to compel him to give the testimony sought by the
subpoenas, and its nature in this respect is not affected by the
direction that his testimony be given at the bar of the Senate,
instead of before the committee. If the Senate deemed it proper, in
view of his contumacy, to give that direction, it was at liberty to
do so.
Page 273 U. S. 159
The witness sets up an interlocutory injunction granted by a
state court at Washington Court House, Ohio, in a suit brought by
the Midland National Bank against two members of the investigating
committee, and contends that the attachment was in violation of
that injunction and therefore unlawful. The contention is plainly
ill founded. The injunction was granted the same day the second
subpoena was served, but whether earlier or later in the day does
not appear. All that the record discloses about the injunction is
comprised in the paragraph copied in the margin from the witness'
petition for habeas corpus. [
Footnote 13] But it is apparent from what is disclosed
that the injunction did not purport to place any restraint on the
witness, nor to restrain the committee from demanding that he
appear and testify personally to what he knew respecting the
subject under investigation, and also that what the injunction did
purport to restrain has no bearing on the power of the Senate to
enforce that demand by attachment.
Page 273 U. S. 160
In approaching the principal questions which remain to be
considered, two observations are in order. One is that we are not
now concerned with the direction in the first subpoena that the
witness produce various records, books, and papers of the Midland
National Bank. That direction was not repeated in the second
subpoena, and is not sought to be enforced by the attachment. This
was recognized by the court below, 299 F. 623, and is conceded by
counsel for the appellant. The other is that we are not now
concerned with the right of the Senate to propound or the duty of
the witness to answer specific questions, for as yet no questions
have been propounded to him. He is asserting, and is standing on
his assertion, that the Senate is without power to interrogate him,
even if the questions propounded be pertinent and otherwise
legitimate, which, for present purposes, must be assumed.
The first of the principal questions, the one which the witness
particularly presses on our attention, is, as before shown, whether
the Senate -- or the House of Representatives, both being on the
same plane in this regard -- has power, through its own process, to
compel a private individual to appear before it or one of its
committees and give testimony needed to enable it efficiently to
exercise a legislative function belonging to it under the
Constitution.
The Constitution provides for a Congress, consisting of a Senate
and House of Representatives, and invests it with "all legislative
powers" granted to the United States, and with power "to make all
laws which shall be necessary and proper" for carrying into
execution these powers and "all other powers" vested by the
Constitution in the United States or in any department or officer
thereof. Art. I, secs. 1, 8. Other provisions show that, while
bills can become laws only after being considered and passed by
both houses of Congress, each house is to be distinct
Page 273 U. S. 161
from the other, to have its own officers and rules, and to
exercise its legislative function independently. [
Footnote 14] Art. I, §§ 2, 3, 5, 7. But
there is no provision expressly investing either house with power
to make investigations and exact testimony to the end that it may
exercise its legislative function advisedly and effectively. So the
question arises whether this power is so far incidental to the
legislative function as to be implied.
In actual legislative practice, power to secure needed
information by such means has long been treated as an attribute of
the power to legislate. It was so regarded in the British
Parliament and in the colonial legislatures before the American
Revolution, and a like view has prevailed and been carried into
effect in both houses of Congress and in most of the state
legislatures. [
Footnote
15]
This power was both asserted and exerted by the House of
Representatives in 1792, when it appointed a select committee to
inquire into the St. Clair expedition and authorized the committee
to send for necessary persons, papers and records. Mr. Madison, who
had taken an important part in framing the Constitution only five
years before, and four of his associates in that work, were members
of the House of Representatives at the time, and all voted for the
inquiry. 3 Cong.Ann. 494. Other exertions of the power by the House
of Representatives, as also by the Senate, are shown in the
citations already made. Among those by the Senate, the inquiry
ordered in 1859 respecting the raid by John Brown and his adherents
on the armory and arsenal of the United States at Harper's Ferry is
of special significance. The resolution
Page 273 U. S. 162
directing the inquiry authorized the committee to send for
persons and papers, to inquire into the facts pertaining to the
raid and the means by which it was organized and supported, and to
report what legislation, if any, was necessary to preserve the
peace of the country and protect the public property. The
resolution was briefly discussed, and adopted without opposition.
Cong.Globe, 36th Cong. 1st Sess. pp. 141, 152. Later on, the
committee reported that Thaddeus Hyatt, although subpoenaed to
appear as a witness, had refused to do so, whereupon the Senate
ordered that he be attached and brought before it to answer for his
refusal. When he was brought in, he answered by challenging the
power of the Senate to direct the inquiry and exact testimony to
aid it is exercising its legislative function. The question of
power thus presented was thoroughly discussed by several senators
-- Mr. Sumner of Massachusetts taking the lead in denying the
power, and Mr. Fessenden of Maine in supporting it. Sectional and
party lines were put aside, and the question was debated and
determined with special regard to principle and precedent. The vote
was taken on a resolution pronouncing the witness' answer
insufficient and directing that he be committed until he should
signify that he was ready and willing to testify. The resolution
was adopted -- 44 senators voting for it and 10 against.
Cong.Globe, 36th Cong. 1st.Sess. pp. 1100-1109, 3006, 3007. The
arguments advanced in support of the power are fairly reflected by
the following excerpts from the debate:
"Mr. Fessenden of Maine: Where will you stop? Stop, I say, just
at that point where we have gone far enough to accomplish the
purposes for which we were created, and these purposes are defined
in the Constitution. What are they? The great purpose is
legislation. There are some other things, but I speak of
legislation as the principal purpose. Now, what do we propose to do
here? We
Page 273 U. S. 163
propose to legislate upon a given state of facts, perhaps, or
under a given necessity. Well, sir, proposing to legislate, we want
information. We have it not ourselves. It is not to be presumed
that we know everything, and if anybody does presume it, it is a
very great mistake, as we know by experience. We want information
on certain subjects. How are we to get if? The Senator says, ask
for it. I am ready to ask for it, but suppose the person whom we
ask will not give it to us. What then? Have we not power to compel
him to come before us? Is this power, which has been exercised by
Parliament and by all legislative bodies down to the present day
without dispute -- the power to inquire into subjects upon which
they are disposed to legislate -- lost to us? Are we not in the
possession of it? Are we deprived of it simply because we hold our
power here under a Constitution which defines what our duties are,
and what we are called upon to do?"
"Congress have appointed committees after committees, time after
time, to make inquiries on subjects of legislation. Had we not
power to do it? Nobody questioned our authority to do it. We have
given them authority to send for persons and papers during the
recess. Nobody questioned our authority. We appoint committees
during the session, with power to send for persons and papers. Have
we not that authority, if necessary to legislation?"
"
* * * *"
"Sir, with regard to myself, all I have to inquire into is: is
this a legitimate and proper object, committed to me under the
Constitution, and then, as to the mode of accomplishing it, I am
ready to use judiciously, calmly, moderately, all the power which I
believe is necessary and inherent, in order to do that which I am
appointed to do; and, I take it, I violate no rights, either of the
people generally or of the individual, by that course. "
Page 273 U. S. 164
"Mr. Crittenden of Kentucky: I come now to a question where the
cooperation of the two branches is not necessary. There are some
things that the Senate may do. How? According to a mode of its own.
Are we to ask the other branch of the legislature to concede by law
to us the power of making such an inquiry as we are now making? Has
not each branch the right to make what inquiries and investigation
it thinks proper to make for its own action? Undoubtedly. You say
we must have a law for it. Can we have a law? Is it not, from the
very nature of the case, incidental to you as a Senate if you, as a
Senate, have the power of instituting an inquiry and of proceeding
with that inquiry? I have endeavored to show that we have that
power. We have a right, in consequence of it, a necessary
incidental power, to summon witnesses if witnesses are necessary.
Do we require the concurrence of the other house to that? It is a
power of our own. If you have a right to do the thing of your own
motion, you must have all powers that are necessary to do it."
"The means of carrying into effect by law all the granted powers
is given where legislation is applicable and necessary, but there
are subordinate matters, not amounting to laws; there are inquiries
of the one house or the other house, which each house has a right
to conduct, which each has, from the beginning, exercised the power
to conduct, and each has, from the beginning, summoned witnesses.
This has been the practice of the government from the beginning,
and if we have a right to summon the witness, all the rest follows
as a matter of course."
The deliberate solution of the question on that occasion has
been accepted and followed on other occasions by both houses of
Congress, and never has been rejected or questioned by either.
Page 273 U. S. 165
The state courts quite generally have held that the power to
legislate carries with it by necessary implication ample authority
to obtain information needed in the rightful exercise of that
power, and to employ compulsory process for the purpose.
In
Burnham v. Morrissey, 14 Gray, 226, 239, the Supreme
Judicial Court of Massachusetts, in sustaining an exertion of this
power by one branch of the legislature of that commonwealth,
said:
"The House of Representatives has many duties to perform, which
necessarily require it to receive evidence, and examine witnesses.
. . . It has often occasion to acquire a certain knowledge of facts
in order to the proper performance of legislative duties. We
therefore think it clear that it has the constitutional right to
take evidence, to summon witnesses, and to compel them to attend
and to testify. This power to summon and examine witnesses it may
exercise by means of committees."
In
Wilckens v. Willet, 1 Keyes 521, 525, a case which
presented the question whether the House of Representatives of the
United States possesses this power, the Court of Appeals of New
York said:
"That the power exists there admits of no doubt whatever. It is
a necessary incident to the sovereign power of making laws, and its
exercise is often indispensable to the great end of enlightened,
judicious, and wholesome legislation."
In
People v. Keeler, 99 N.Y. 463, 482, 483, where the
validity of a statute of New York recognizing and giving effect to
this power was drawn in question, the Court of Appeals approvingly
quoted what it had said in
Wilckens v. Willet, and
added:
"It is difficult to conceive any constitutional objection which
can be raised to the provisions authorizing legislative committees
to take testimony and to summon
Page 273 U. S. 166
witnesses. In many cases, it may be indispensable to intelligent
and effectual legislation to ascertain the facts which are claimed
to give rise to the necessity for such legislation, and the remedy
required, and irrespective of the question whether, in the absence
of a statute to that effect, either house would have the power to
imprison a recusant witness, I cannot yield to the claim that a
statute authorizing it to enforce its process in that manner is in
excess of the legislative power. To await the slow process of
indictment and prosecution for a misdemeanor might prove quite
ineffectual, and necessary legislation might be obstructed, and
perhaps defeated, if the legislative body had no other and more
summary means of enforcing its right to obtain the required
information. That the power may be abused is no ground for denying
its existence. It is a limited power, and should be kept within its
proper bounds, and when these are exceeded, a jurisdictional
question is presented which is cognizable in the courts. . . .
Throughout this Union, the practice of legislative bodies, and in
this state, the statutes existing at the time the present
Constitution was adopted, and whose validity has never before been
questioned by our courts, afford strong arguments in favor of the
recognition of the right of either house to compel the attendance
of witnesses for legislative purposes, as one which has been
generally conceded to be an appropriate adjunct to the power of
legislation, and one which, to say the least, the state legislature
has constitutional authority to regulate and enforce by
statute."
Other decisions by state courts recognizing and sustaining the
legislative practice are found in
Falvey v. Massing, 7
Wis. 630, 635-638;
State v. Frear, 138 Wis. 173;
Ex
parte Parker, 74 S.C. 466, 470;
Sullivan v. Hill, 73
W.Va. 49, 53;
Lowe v. Summers, 69 Mo.App. 637, 649, 650.
An instructive decision on the question is also found in
Ex
parte Dansereau (1875), 19 L.C.Jur. 210, where the
Page 273 U. S. 167
legislative assembly of the Province of Quebec was held to
possess this power as a necessary incident of its power to
legislative.
We have referred to the practice of the two houses of Congress,
and we now shall notice some significant congressional enactments.
May 3, 1798, 1 Stat. 554, c. 36, Congress provided that oaths or
affirmations might be administered to witnesses by the President of
the Senate, the Speaker of the House of Representatives, the
chairman of a committee of the whole, or the chairman of a select
committee, "in any case under their examination." February 8, 1817,
3 Stat. 345, c. 10, it enlarged that provision so as to include the
chairman of a standing committee. January 24, 1857, 11 Stat. 155,
c.19, it passed "An act more effectually to enforce the attendance
of witnesses on the summons of either house of Congress, and to
compel them to discover testimony." This act provided, first, that
any person summoned as a witness to give testimony or produce
papers in any matter under inquiry before either house of Congress,
or any committee of either house, who should willfully make default
or, if appearing, should refuse to answer any question pertinent to
the inquiry, should, in addition to the pains and penalties then
existing, [
Footnote 16] be
deemed guilty of a misdemeanor, and be subject to indictment as
there prescribed; and, secondly, that no person should be excused
from giving evidence in such an inquiry on the ground that it might
tend to incriminate or disgrace him, nor be held to answer
criminally, or be subjected to any penalty or forfeiture, for any
fact or act as to which he was required to testify excepting that
he might be subjected to prosecution for perjury committed while so
testifying. January 24, 1862, c. 11, 12 Stat. 333, Congress
modified the immunity provision in particulars not material
Page 273 U. S. 168
here. These enactments are now embodied in §§ 101-104 and 859 of
Revised Statutes. They show very plainly that Congress intended
thereby (a) to recognize the power of either house to institute
inquiries and exact evidence touching subjects within its
jurisdiction and on which it was disposed to act; [
Footnote 17] (b) to recognize that such
inquiries may be conducted through committees; (c) to subject
defaulting and contumacious witnesses to indictment and punishment
in the courts, and thereby to enable either house to exert the
power of inquiry "more effectually;" [
Footnote 18] and (d) to open the way for obtaining
evidence in such an inquiry, which otherwise could not be obtained,
by exempting witnesses required to give evidence therein from
criminal and penal prosecutions in respect of matters disclosed by
their evidence.
Four decisions of this Court are cited and more or less relied
on, and we now turn to them.
The first decision was in
Anderson v.
Dunn, 6 Wheat. 204. The question there was whether,
under the Constitution, the House of Representatives has power to
attach and punish a person other than a member for contempt
Page 273 U. S. 169
of its authority -- in fact, an attempt to bribe one of its
members. The Court regarded the power as essential to the effective
exertion of other powers expressly granted, and therefore as
implied. The argument advanced to the contrary was that, as the
Constitution expressly grants to each house power to punish or
expel its own members and says nothing about punishing others, the
implication or inference, if any, is that power to punish one who
is not a member is neither given nor intended. The Court answered
this by saying:
Page 225:
"There is not in the whole of that admirable instrument, a grant
of powers which does not draw after it others not expressed but
vital to their exercise, not substantive and independent, indeed,
but auxiliary and subordinate."
Page 233:
"This argument proves too much, for its direct application would
lead to the annihilation of almost every power of Congress. To
enforce its laws upon any subject without the sanction of
punishments is obviously impossible. Yet there is an express grant
of power to punish in one class of cases, and one only, and all the
punishing power exercised by Congress, in any cases, except those
which relate the piracy and offenses against the laws of nations,
is derived from implication. Nor did the idea ever occur to anyone
that the express grant in one class of cases repelled the
assumption of the punishing power in any other. The truth is that
the exercise of the powers given over their own members was of such
a delicate nature that a constitutional provision became necessary
to assert or communicate it. Constituted, as that body is, of the
delegates of confederated states, some such provision was necessary
to guard against their mutual jealousy, since every proceeding
against a representative would indirectly affect the honor or
interests of the state which sent him. "
Page 273 U. S. 170
The next decision was in
Kilbourn v. Thompson,
103 U. S. 168. The
question there was whether the House of Representatives had
exceeded its power in directing one of its committees to make a
particular investigation. The decision was that it had. The
principles announced and applied in the case are that neither house
of Congress possesses a "general power of making inquiry into the
private affairs of the citizen;" that the power actually possessed
is limited to inquiries relating to matters of which the particular
house "has jurisdiction" and in respect of which it rightfully may
take other action; that, if the inquiry relates to "a matter
wherein relief or redress could be had only by a judicial
proceeding," it is not within the range of this power, but must be
left to the courts, conformably to the constitutional separation of
governmental powers, and that, for the purpose of determining the
essential character of the inquiry, recourse may be had to the
resolution or order under which it is made. The Court examined the
resolution which was the basis of the particular inquiry, and
ascertained therefrom that the inquiry related to a private real
estate pool or partnership in the District of Columbia. Jay Cook
& Co. had had an interest in the pool, but had become
bankrupts, and their estate was in course of administration in a
federal bankruptcy court in Pennsylvania. The United States was one
of their creditors. The trustee in the bankruptcy proceeding had
effected a settlement of the bankrupts' interest in the pool, and,
of course, his action was subject to examination and approval or
disapproval by the bankruptcy court. Some of the creditors,
including the United States, were dissatisfied with the settlement.
In these circumstances, disclosed in the preamble, the resolution
directed the committee
"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.
Page 273 U. S. 171
were interests, and the amount paid or to be paid in said
settlement, with power to send for persons and papers and report to
this house."
The Court pointed out that the resolution contained no
suggestion of contemplated legislation; that the matter was one in
respect to which no valid legislation could be had; that the
bankrupts' estate and the trustee's settlement were still pending
in the bankruptcy court, and that the United States and other
creditors were free to press their claims in that proceeding. And,
on these grounds, the Court held that, in undertaking the
investigation,
"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 case has been cited at times, and is cited to us now, as
strongly intimating, if not holding, that neither house of Congress
has power to make inquires and exact evidence in aid of
contemplated legislation. There are expressions in the opinion
which, separately considered, might bear such an interpretation;
but that this was not intended is shown by the immediately
succeeding statement (p.
103 U. S. 189)
that:
"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 a power
in aid of the legislative function."
Next in order is
In re Chapman, 166 U.
S. 661. The inquiry there in question was conducted
under a resolution of the Senate and related to charges, published
in the press, that Senators were yielding to corrupt influences in
considering a tariff bill then before the Senate and were
speculating in stocks the value of which would be affected by
pending amendments to the bill. Chapman appeared before the
committee in response to a subpoena, but refused to answer
questions pertinent to the inquiry, and
Page 273 U. S. 172
was indicted and convicted under the Act of 1857 for his
refusal. The Court sustained the constitutional validity of the Act
of 1857, and, after referring to the constitutional provision
empowering either house to punish its members for disorderly
behavior and by a vote of two-thirds to expel a member, held that
the inquiry related to the integrity and fidelity of Senators in
the discharge of their duties, and therefore to a matter "within
the range of the constitutional powers of the Senate" and in
respect to which it could compel witnesses to appear and testify.
In overruling an objection that the inquiry was without any defined
or admissible purpose, in that the preamble and resolution made no
reference to any contemplated expulsion, censure, or other action
by the Senate, the Court held that they adequately disclosed a
subject matter of which the Senate had jurisdiction, that it was
not essential that the Senate declare in advance what it meditated
doing, and that the assumption could not be indulged that the
Senate was making the inquiry without a legitimate object.
The case is relied on here as fully sustaining the power of
either house to conduct investigations and exact testimony from
witnesses for legislative purposes. In the course of the opinion
(p.
166 U. S.
671), it is said that disclosures by witnesses may be
compelled constitutionally "to enable the respective bodies to
discharge their legitimate functions," and that "it was to effect
this that the Act of 1857 was passed," and also:
"We grant that Congress could not divest itself, or either of
its houses, of the essential and inherent power to punish for
contempt in cases to which the power of either house properly
extended; but, because Congress, by the Act of 1857, sought to aid
each of the houses in the discharge of its constitutional
functions, it does not follow that any delegation of the power in
each to punish for contempt was involved."
The terms "legitimate functions" and "constitutional
functions"
Page 273 U. S. 173
are broad, and might well be regarded as including the
legislative function; but, as the case in hand did not call for any
expression respecting that function, it hardly can be be said that
these terms were purposely used as including it.
The latest case is
Marshall v. Gordon, 243 U.
S. 521. The question there was whether the House of
Representatives exceeded its power in punishing, as for a contempt
of its authority, a person -- not a member -- who had written,
published, and sent to the chairman of one of its committees an ill
tempered and irritating letter respecting the action and purposes
of the committee. Power to make inquiries and obtain evidence by
compulsory process was not involved. The Court recognized
distinctly that the House of Representatives has implied power to
punish a person not a member for contempt, as was ruled in
Anderson v. Dunn, supra, but held that its action in this
instance was without constitutional justification. The decision was
put on the ground that the letter, while offensive and vexatious,
was not calculated or likely to affect the House in any of its
proceedings or in the exercise of any of its functions -- in short,
that the act which was punished as a contempt was not of such a
character as to bring it within the rule that an express power
draws after it others which are necessary and appropriate to give
effect to it.
While these cases are not decisive of the question we are
considering, they definitely settle two propositions which we
recognize as entirely sound and having a bearing on its solution:
one, that the two houses of Congress, in their separate relations,
possess not only such powers as are expressly granted to them by
the Constitution, but such auxiliary powers as are necessary and
appropriate to make the express powers effective, and the other
that neither house is invested with "general" power to inquire into
private affairs and compel disclosures,
Page 273 U. S. 174
but only with such limited power of inquiry as is shown to exist
when the rule of constitutional interpretation just stated is
rightly applied. The latter proposition has further support in
Harriman v. Interstate Commerce Commission, 211 U.
S. 407,
211 U. S.
417-419, and
Federal Trade Commission v. American
Tobacco Co., 264 U. S. 298,
264 U. S.
305-306.
With this review of the legislative practice, congressional
enactments, and court decisions, we proceed to a statement of our
conclusions on the question.
We are of opinion that the power of inquiry -- with process to
enforce it -- is an essential and appropriate auxiliary to the
legislative function. It was so regarded and employed in American
legislatures before the Constitution was framed and ratified. Both
houses of Congress took this view of it early in their history --
the House of Representatives with the approving votes of Mr.
Madison and other members whose service in the convention which
framed the Constitution gives special significance to their action
-- and both houses have employed the power accordingly up to the
present time. The Acts of 1798 and 1857, judged by their
comprehensive terms, were intended to recognize the existence of
this power in both houses and to enable them to employ it "more
effectually" than before. So, when their practice in the matter is
appraised according to the circumstances in which it was begun and
to those in which it has been continued, it falls nothing short of
a practical construction, long continued, of the constitutional
provisions respecting their powers, and therefore should be taken
as fixing the meaning of those provisions, if otherwise doubtful.
[
Footnote 19]
Page 273 U. S. 175
We are further of opinion that the provisions are not of
doubtful meaning, but, as was held by this Court in the cases we
have reviewed, are intended to be effectively exercised, and
therefore to carry with them such auxiliary powers as are necessary
and appropriate to that end. While the power to exact information
in aid of the legislative function was not involved in those cases,
the rule of interpretation applied there is applicable here. A
legislative body cannot legislate wisely or effectively in the
absence of information respecting the conditions which the
legislation is intended to affect or change, and where the
legislative body does not itself possess the requisite information
-- which not infrequently is true -- recourse must be had to others
who do possess it. Experience has taught that mere requests for
such information often are unavailing, and also that information
which is volunteered is not always accurate or complete, so some
means of compulsion are essential to obtain what is needed. All
this was true before and when the Constitution was framed and
adopted. In that period, the power of inquiry, with enforcing
process, was regarded and employed as a necessary and appropriate
attribute of the power to legislate -- indeed, was treated as
inhering in it. Thus, there is ample warrant for thinking, as we
do, that the constitutional provisions which commit the legislative
function to the two houses are intended to include this attribute
to the end that the function may be effectively exercised.
The contention is earnestly made on behalf of the witness that
this power of inquiry, if sustained, may be abusively and
oppressively exerted. If this be so, it affords no ground for
denying the power. The same contention might be directed against
the power to legislate, and, of course, would be unavailing. We
must assume for present purposes that neither houses will be
disposed to exert the power beyond its proper bounds, or
without
Page 273 U. S. 176
due regard to the rights of witnesses. But if, contrary to this
assumption, controlling limitations or restrictions are
disregarded, the decisions in
Kilbourn v. Thompson and
Marshall v. Gordon point to admissible measures of relief.
And it is a necessary deduction from the decisions in
Kilbourn
v. Thompson and
In re Chapman that a witness
rightfully may refuse to answer where the bounds of the power are
exceeded or the questions are not pertinent to the matter under
inquiry.
We come now to the question whether it sufficiently appears that
the purpose for which the witness' testimony was sought was to
obtain information in aid of the legislative function. The court
below answered the question in the negative and put its decision
largely on this ground, as is shown by the following excerpts from
its opinion (299 F. 638-640):
"It will be noted that, in the second resolution, the Senate has
expressly avowed that the investigation is in aid of other action
than legislation. Its purpose is to 'obtain information necessary
as a basis for such legislative and other action as the Senate may
deem necessary and proper.' This indicates that the Senate is
contemplating the taking of action other than legislative, as the
outcome of the investigation -- at least the possibility of so
doing. The extreme personal cast of the original resolutions; the
spirit of hostility towards the then Attorney General which they
breathe; that it was not avowed that legislative action was had in
view until after the action of the Senate had been challenged, and
that the avowal then was coupled with an avowal that other action
was had in view -- are calculated to create the impression that the
idea of legislative action being in contemplation was an
afterthought."
"That the Senate has in contemplation the possibility of taking
action other than legislation as an outcome of the investigation,
as thus expressly avowed, would seem
Page 273 U. S. 177
of itself to invalidate the entire proceeding. But, whether so
or not, the Senate's action is invalid and absolutely void in that,
in ordering and conducting the investigation, it is exercising the
judicial function, and power to exercise that function, in such a
case as we have here, has not been conferred upon it expressly or
by fair implication. What it is proposing to do is to determine the
guilt of the Attorney General of the shortcomings and wrongdoings
set forth in the resolutions. It is 'to hear, adjudge, and
condemn.' It so doing, it is exercising the judicial function. . .
."
"What the Senate is engaged in doing is not investigating the
Attorney General's office; it is investigating the former Attorney
General. What it has done is to put him on trial before it. In so
doing, it is exercising the judicial function. This it has no power
to do."
We are of opinion that the court's ruling on this question was
wrong, and that it sufficiently appears, when the proceedings are
rightly interpreted, that the object of the investigation and of
the effort to secure the witness' testimony was to obtain
information for legislative purposes.
It is quite true that the resolution directing the investigation
does not in terms avow that it is intended to be in aid of
legislation; but it does show that the subject to be investigated
was the administration of the Department of Justice -- whether its
functions were being properly discharged or were being neglected or
misdirected, and particularly whether the Attorney General and his
assistants were performing or neglecting their duties in respect of
the institution and prosecution of proceedings to punish crimes and
enforce appropriate remedies against the wrongdoers, specific
instances of alleged neglect being recited. Plainly the subject was
one on which legislation could be had and would be materially aided
by the information which the investigation was calculated to
elicit.
Page 273 U. S. 178
This becomes manifest when it is reflected that the functions of
the Department of Justice, the powers and duties of the Attorney
General, and the duties of his assistants are all subject to
regulation by congressional legislation, and that the department is
maintained and its activities are carried on under such
appropriations as, in the judgment of Congress, are needed from
year to year.
The only legitimate object the Senate could have in ordering the
investigation was to aid it in legislating, and we think the
subject matter was such that the presumption should be indulged
that this was the real object. An express avowal of the object
would have been better; but, in view of the particular subject
matter, was not indispensable. In the
Chapman case, where
the resolution contained no avowal, this Court pointed out that it
plainly related to a subject matter of which the Senate had
jurisdiction, and said: "We cannot assume on this record that the
action of the Senate was without a legitimate object," and also
that "it was certainly not necessary that the resolutions should
declare in advance what the Senate meditated doing when the
investigation was concluded." 166 U.S.
166 U. S. 669,
166 U. S. 670.
In
People v. Keeler, 99 N.Y. 463, where the Court of
Appeals of New York sustained an investigation ordered by the House
of Representatives of that state where the resolution contained no
avowal, but disclosed that it definitely related to the
administration of a public office the duties of which were subject
to legislative regulation, the court said (pp. 485, 487):
"Where public institutions under the control of the state are
ordered to be investigated, it is generally with the view of some
legislative action respecting them, and the same may be said in
respect of public officers."
And again:
"We are bound to presume that the action of the legislative body
was with a legitimate object, if it is capable of being so
construed, and we have no right to assume that the contrary was
intended. "
Page 273 U. S. 179
While we rest our conclusion respecting the object of the
investigation on the grounds just stated, it is well to observe
that this view of what was intended is not new, but was shown in
the debate on the resolution. [
Footnote 20]
Of course, our concern is with the substance of the resolution,
and not with any nice questions of propriety respecting its direct
reference to the then Attorney General by name. The resolution,
like the charges which prompted its adoption, related to the
activities of the department while he was its supervising officer,
and the reference to him by name served to designate the period to
which the investigation was directed.
We think the resolution and proceedings give no warrant for
thinking the Senate was attempting or intending to try the Attorney
General at its bar or before its committee for and crime or
wrongdoing. Nor do we think
Page 273 U. S. 180
it a valid objection to the investigation that it might possibly
disclose crime or wrongdoing on his part.
The second resolution -- the one directing that the witness be
attached -- declares that his testimony is sought with the purpose
of obtaining "information necessary as a basis for such legislative
and other action as the Senate may deem necessary and proper." This
avowal of contemplated legislation is in accord with what we think
is the right interpretation of the earlier resolution directing the
investigation. The suggested possibility of "other action" if
deemed "necessary or proper" is, of course, open to criticism in
that there is no other action in the matter which would be within
the power of the Senate. But we do not assent to the view that this
indefinite and untenable suggestion invalidates the entire
proceeding. The right view, in our opinion, is that it takes
nothing from the lawful object avowed in the same resolution and
rightly inferable from the earlier one. It is not as if an
inadmissible or unlawful object were affirmatively and definitely
avowed.
We conclude that the investigation was ordered for a legitimate
object; that the witness wrongfully refused to appear and testify
before the committee and was lawfully attached; that the Senate is
entitled to have him give testimony pertinent to the inquiry,
either at its bar or before the committee, and that the district
court erred in discharging him from custody under the
attachment.
Another question has arisen which should be noticed. It is
whether the case has become moot. The investigation was ordered and
the committee appointed during the Sixty-Eighth Congress. That
Congress expired March 4, 1925. The resolution ordering the
investigation in terms limited the committee's authority to the
period of the Sixty-Eighth Congress; but this apparently was
changed by a later and amendatory resolution authorizing the
committee to sit at such times and places as it might
Page 273 U. S. 181
deem advisable or necessary. [
Footnote 21] It is said in Jefferson's Manual: [
Footnote 22]
"Neither house can continue any portion of itself in any
parliamentary function beyond the end of the session without the
consent of the other two branches. When done, it is by a bill
constituting them commissioners for the particular purpose."
But the context shows that the reference is to the two houses of
Parliament when adjourned by prorogration or dissolution by the
King. The rule may be the same with the House of Representatives,
whose members are all elected for the period of a single Congress;
but it cannot well be the same with the Senate, which is a
continuing body whose members are elected for a term of six years
and so divided into classes that the seats of one-third only become
vacant at the end of each Congress, two-thirds always continuing
into the next Congress, save as vacancies may occur through death
or resignation.
Mr. Hinds, in his collection of precedents, says: "The Senate,
as a continuing body, may continue its committees through the
recess following the expiration of a Congress." [
Footnote 23] And, after quoting the above
statement from Jefferson's Manuel, he says: "The Senate, however,
being a continuing body, gives authority to its committees during
the recess after the expiration of a Congress." [
Footnote 24] So far as we are advised, the
select committee having this investigation in charge has neither
made a final report nor been discharged; nor has it been continued
by an affirmative order. Apparently its activities have been
suspended pending the decision of this case. But, be this as it
may, it is certain that the committee may be continued or revived
now by motion to that effect, and, if continued or revived, will
have all its original powers. [
Footnote 25]
Page 273 U. S. 182
This being so, and the Senate being a continuing body, the case
cannot be said to have become moot in the ordinary sense. The
situation is measurably like that in
Southern Pacific Terminal
Co. v. Interstate Commerce Commission, 219 U.
S. 498,
219 U. S.
514-516, where it was held that a suit to enjoin the
enforcement of an order of the Interstate Commerce Commission did
not become moot through the expiration of the order where it was
capable of repetition by the commission and was a matter of public
interest. Our judgment may yet be carried into effect, and the
investigation proceeded with from the point at which it apparently
was interrupted by reason of the habeas corpus proceedings. In
these circumstances, we think a judgment should be rendered as was
done in the case cited.
What has been said requires that the final order in the district
court discharging the witness from custody be reversed.
Final order reversed.
MR. JUSTICE STONE did not participate in the consideration or
decision of the case.
[
Footnote 1]
Rev.Stats. §§ 346, 350, 359, 360, 361, 362, 367; Judicial Code,
§§ 185, 212; 25 Stat. 858, 859, c. 382, §§ 3, 5; 26 Stat. 209, c.
647, § 4; 34 Stat. 816, c. 3935; 38 Stat. 736, c. 323, § 15;
United States v. San Jacinto Tin Co., 125 U.
S. 273,
125 U. S. 278;
Kern River Co. v. United States, 257 U.
S. 147,
257 U. S. 155;
Ponzi v. Fessenden, 258 U. S. 254,
258 U. S.
262.
[
Footnote 2]
Cong.Rec. 68th Cong. 1st Sess. pp. 1520, 1521, 1728; c. 16, 43
Stat. 5; Cong.Rec. 68th Cong. 1st Sess. pp. 1591, 1974; 43 Stat.
15, c. 39; 43 Stat. 16, c. 42.
[
Footnote 3]
For the full resolution and two amendments adopted shortly
thereafter,
see Cong.Rec. 68th Cong. 1st Sess. pp. 3299,
3409, 3410, 3548, 4126.
[
Footnote 4]
Senate Report No. 475, 68th Cong. 1st Sess.
[
Footnote 5]
Cong.Rec. 68th Cong. 1st Sess. pp. 7215-7217.
[
Footnote 6]
Senate Journal, 47, 51-1, Dec. 17, 1889; Senate Rules and
Manual, 68th Cong. p. 114.
[
Footnote 7]
41 Stat. 632, 1253; 42 Stat. 424, 1266; 43 Stat. 33, 58, 43
Stat. 1288.
[
Footnote 8]
Prigg v.
Pennsylvania, 16 Pet. 539,
41 U. S.
620-621;
The Laura, 114 U.
S. 411,
114 U. S. 416;
McPherson v. Blacker, 146 U. S. 1,
146 U. S. 35-36;
Ex parte Grossman, 267 U. S. 87,
267 U. S. 118;
Myers v. United States, 272 U. S. 52.
[
Footnote 9]
Ex parte Terry, 128 U. S. 289,
128 U. S. 307
et seq.; Holcomb v. Cornish, 8 Conn. 375; 4 Blackst.Com
286.
[
Footnote 10]
Robbins v. Gorham, 25 N.Y. 588;
Wilson v.
State, 57 Ind. 71.
[
Footnote 11]
Hale v. Henkel, 201 U. S. 43,
201 U. S. 60-62;
Regina v. Russell, 2 Car. & Mar. 247;
Commonwealth
v. Hayden, 163 Mass. 453, 455; decision of Mr. Justice Catron,
reported in Wharton's Cr.Pl. & Pr. (8th ed.) pp. 224-226.
[
Footnote 12]
See Hale v. Henkel, supra; Blair v. United States,
250 U. S. 273;
Nelson v. United States, 201 U. S. 92,
201 U. S. 95;
Equity Rule 52, 226 U.S. Appendix 15;
Heard v. Pierce, 8
Cush. 338.
[
Footnote 13]
"On the 11th day of April, 1924, in an action in the Court of
Common Pleas of said Fayette County, Ohio, in which said the
Midland National Bank was plaintiff and said B. K. Wheeler and
Smith W. Brookhart were defendants, upon the petition of said bank,
said court granted a temporary restraining order enjoining and
restraining said defendants and their agents, servants, and
employees from entering into said banking room and from taking,
examining, or investigating any of the books, accounts, records,
promissory notes, securities, letters, correspondence, papers, or
any other property of said bank or of its depositors, borrowers, or
customers in said banking room and from in any manner molesting and
interfering with the business and affairs of said bank, its
officers, agents, servants, and the business of its depositors,
borrowers, and customers with said bank until the further order of
said court. The said defendants were duly served with process in
said action and duly served with copies of said temporary
restraining order on said 11th day of April, 1924, and said
injunction has not been modified by said court and no further order
has been made in said case by said court, and said injunction is in
full force and effect."
[
Footnote 14]
Story Const. § 545
et seq.; 1 Kent's Com. p. 222.
[
Footnote 15]
May's Parliamentary Practice (2d ed.) pp. 80, 295, 299;
Cushing's Legislative Practice, §§ 634, 1901-1903; 3 Hinds'
Precedents, §§ 1722, 1725, 1727, 1813-1820; Cooley's Constitutional
Limitations (6th ed.) p. 161.
[
Footnote 16]
The reference is to the power of the particular house to deal
with the contempt.
In re Chapman, 166 U.
S. 661,
166 U. S.
671-672.
[
Footnote 17]
In construing § 1 of the Act of 1857, as reproduced in § 102 of
the Revised Statutes, this Court said in
In re Chapman,
166 U. S. 661,
166 U. S.
667:
"It is true that the reference is to 'any' matter under inquiry,
and so on, and it is suggested that this is fatally defective
because too broad and unlimited in its extent; but nothing is
better settled than that statutes should receive a sensible
construction such as will effectuate the legislative intention,
and, if possible, so as to avoid an unjust or an absurd conclusion,
Lau Ow Bew v. United States, 144 U. S.
47,
144 U. S. 59, and we think
that the word 'any,' as used in these sections, refers to matters
within the jurisdiction of the two houses of Congress, before them
for consideration and proper for their action, to questions
pertinent thereto, and to facts or papers bearing thereon."
[
Footnote 18]
This Court has said of the Act of 1857 that it was "necessary
and proper for carrying into execution the powers vested in
Congress and in each house thereof."
In re Chapman,
166 U. S. 661,
166 U. S.
671.
[
Footnote 19]
Stuart v.
Laird, 1 Cranch 299,
5
U. S. 309;
Martin v. Hunter's
Lessee, 1 Wheat. 304,
14 U. S. 351;
Ames v. Kansas, 111 U. S. 449,
111 U. S. 469;
Knowlton v. Moore, 178 U. S. 41,
178 U. S. 56,
178 U. S. 92;
Fairbank v. United States, 181 U.
S. 283,
181 U. S. 306
et seq.
[
Footnote 20]
Senator George said:
"It is not a trial now that is proposed, and there has been no
trial proposed save the civil and criminal actions to be instituted
and prosecuted by counsel employed under the resolution giving to
the President the power to employ counsel. We are not to try the
Attorney General. He is not to go upon trial. Shall we say the
legislative branch of the government shall stickle and halt and
hesitate because a man's public reputation, his public character,
may suffer because of that legislative action? Has not the Senate
power to appoint a committee to investigate any department of the
government, any department supported by the Senate in part by
appropriations made by the Congress? If the Senate has the right to
investigate the department, is the Senate to hesitate, is the
Senate to refuse to do its duty, merely because the public
character or the public reputation of some one who is investigated
may be thereby smirched, to use the term that has been used so
often in the debate? . . . It is sufficient for me to know that
there are grounds upon which I may justly base my vote for the
resolution, and I am willing to leave it to the agent created by
the Senate to proceed with the investigation fearlessly upon
principle, not for the purpose of trying, but for the purpose of
ascertaining facts which the Senate is entitled to have within its
possession in order that it may properly function as a legislative
body."
Cong.Rec. 68th Cong. 1st Sess. pp. 3397, 3398.
[
Footnote 21]
Cong.Rec. 68th Cong. 1st Sess. p. 4126.
[
Footnote 22]
Senate Rules and Manual, 1925, p. 303.
[
Footnote 23]
Vol. 4, § 4544.
[
Footnote 24]
Vol. 4, § 4545.
[
Footnote 25]
Hinds' Precedents, vol. 4, §§ 4396, 4400, 4404, 4405.