.. ' - . CONGRESSIONAL RECORD: CONTAINING THE PROCEEDINGS AND DEBATES OF THE • . . FORTY-],OURTH CONGRE-SS, FIRST SESSION; ALSO SPECIAL SESSION OF . 1,HE SENA1,E• . VOLUME IV. WASHINGTON: G 0 VERN MEN T PRINTING 0 F F ICE, 18 7 6. / • • • VOLUME IV, PART III. CONGRESSIONAL RECORD. FIRST SESSION, FORTY-FOURTH CONGRESS. . ·) . 1876. CONGRESSIONAL RECORD-SENATE. 2001 tract that cannot be enforced in despite of the will of the party who or fail to perform the act or duty required by the said writ or writs, the court from · f t t Th C tit t•100 which said writ issues may, upon the application of the person for whose benefit makes it. Th at 18 the very essence 0 a con rae · e ons u the writ is issued, besides or instead of proceeding against the defendant by attach- has guarded tllat great right by saying that the State shall not pa8S any ment, direct that the act required to be done shall be done by some person ap- . law impairing the obligation of a contract. Now let this law be pointed-by the court. passed, and the reRult is that only such tax can be collected as is in Now, suppose the board of supervisors or county commissioners, or accordance with State legislation, and such will be collected. The whatever the name of the office may be that levies the tax in the dif- people of the country will see that there is power in the Federal ferent counties or cities for the benefit of a railroad or any other cor- courts to enforce their judgments, and consequently that the bonds poration that has had bonds given to it for certain specific pmpl)ses, of these cities will be paid and are good, and these bonds, which are shall fail to levy a tax for the purpose of paying the bontls or the in- now bearing 8 and 10 per cent., can be refunded at 5 or 6 per cent., tarest thereon, is it intended by this bill that the United States court, at a great saving to the municipality. It is clearly for the benefit of if the supervisors shall disobey the writ u,nd refuse to levy the tax, tLe debtors as well as of the crediters. shall then appoint a board of supervisors t,o levy that taxf Is that I trust, Mr. President, that this act will receive the approbation of the meaning of this bill f the Senate. Mr. FRELINGHUYSEN. Does the Senator want an answer T Mr. INGALLS. Mr. President, the Senator from New Jersey bas Mr. LOGAN. Yes, sir; to that quE:'.stion. certainly been remarkably 'frank and candid in his statement of the Mr. FRELINGHUYSEN. My frien(l speaks about the act being for objects and purposes of this bill. If I did not JD.isunderstand him, the benefit of milroads. be admitted that it was to be enacted in the interest of thfl bond- Mr. LOGAN. No, I do not. I only ask the question in reference to holders of this country n.nd of the railroad corporations of this conn- an:v corporation. . try, and to enforce whatever rights they may deem themselves to Mr. FRELINGHUYSEN. I only wish to say in reference to that sub- have in the several States against defuulting municipal n.n d town- ject, that I do not know of any railroad that has any· interest in this ship corporations. Before we can properly discuss or consider the law. I never beard of one. · merits of this bill, its constitutional right, the authority of tllis body Mr. ~ARGENT. I can give the Senator an instance if he wants it. to enactit,sofarasitcan, into a law,ldesiretoask.bimforinformation Mr. FRELINGHUYSEN. I never beard of any railroad that had what corporations and what States are those against which he pro- any interest in this act. I only wished to repel the int.imatim:i that 'Poses to enforce the provisions of this bill f I understood him to say this was an act introduced in favor of railroads. I suppose that very that there were certain States and that there were certain corpora- few railroads hold these bonds; but that they have been distributed tiona which bad issued bonds in favor of the construction of certain throughout the country and are held largely. I know there are some railroads; that when the coupons matured, the corporations had been held by poor people in my State. I saw a statement that in the State in default; that when default bad occurred, the bondholders of the of Maine the savings-banks bad a million of them. corporations had proceeded to the Federal courts to enforce their Now in answer to my friend's question, I certainly understand that rights; judgment being obtained and a mandamus being callecl for by this act where the State has directed that such a sum shall be levied to compel 'Ule officers of those municipal corporations to levy a tax for the payment of that interest, and the oounty officers, the assessor to pay the judgments thus obtained, the officers upon whom that or collector or supervisor, omit to obey the rqandate of the court, then duty was imposed had resigned. . the court has power to appoint other persons to perform that duty. This is not then a law general in its objects or purposes, but specific, Mr. LOGAN. · That was exactly what I thought the bill meant. and intended to be enforced against certain corporations in certain Mr. FRELINGHUYSEN. Exactly, and I so stated. States in this country. Now, I desire to know from him, as be pos- Mr. LOGAN. If it means that, it is in violation of every principle sesses that information, what are the corporations and what are the known to our institutions, and I will demonstrate it. Suppose any States that this bill is intended to affect T State in her State constitution provides that the taxes shall be levied Mr. FRELINGHUYSEN. It is not necessaeythat I should answer in the different counties by a board of supervisors. There then is a that questiou 1 inasmuch as the hypothesis upon which it is based constitutional provision pointing out the mode and manner in which has no foundation. This bill proposes a law general in its provisions, taxes are levied. 'fben, following that, those taxes are collected by a and whic:h. applies to every part of the United States; it applies to tax-gatherer or tax-collectA>r. If the constitution of the State points everybody against whom a mandamus rqay issue. The necessity of out the mode andmannerof assessment for taxation, I ask what power the case, the evil which this law is intended especially t.o remedy, I Congress has to confer that _autbority upon a United States court T stated to be that railroads had been built with money collect.ed from If the boa.rcl of supervisors or county commissioners shall refuse, or poor people throughout the country, and where the debtors m:tde . fail1 or neglect to levy that tax, how can we say that the court sba.ll default in payment they had resorted to this unjustifiable and un- appoint a board of supervisors for that county to do it in violation of commendable trickery to avoid the payment, of the judgment. the constitution of that State T What authority have we to do that f Mr. INGALLS. The Senator from New Jersey cn.nnot avoid the issue Where does Congress get that power to invade the rights of a State that has been pres!:led upon him in that way. He certainly did say in violation of its own constitution, in order that the Federal court t-h at the necessity for the passage of this law arose from the fact that shall have power. to levy a'nd assess taxes and then appoint tax-gath- certain corporations in this country liacl defaulted in the payment of erers? I should like t~ know where that power is derived from. I interest upon bond~:~ issued for railmad corporations and for the con- should like to understand it. struction of railroads in this country. That was his distinct. aver- Mr. FRELINGHUYSEN. My friend asks his questions in rather a · ment; that was the allegation he made as to the necessity for the peremptory manner if he is only seeking information. If be under- enactment of this bill into a law; and certainly the Senator from stands me to say that the Congress of the United States have a right New Jersey is aware that for nearly one hundred years the processes to pa.ss a law to authorize the Federal courts to tax the people of this of the Federal courts of this country have been enforced wit.h out re- county, be very much misunderstands me. I do not suppose that sort to such extraordinaryprovisionsns these. As be himself admits, there is any constitution of a State in the Union that bas any 'Pro- the necessity for the enactment of this law is of recent origin; it is vision in favbr of the officers of the State evading their duty. I do a new feature in judicial legislation; it is a new power that is sought not suppoRe t hat the constitution of Illinois .makes it one of the con- to be conferred upon the Federal courts to g~ve them authority to stitntional rights of tliat State· that a contract shall be avoided by appoint officers in municipal corporations and in the different States the resignation o1 a, subordinate officer. · of t.his country to enforce their decrees as against defaulting debtors. As to where we get this authority, it is very plain. The Constitu- He certainly made the allegation that the necessity for the pa.ssage tion says that Congress 'shall have the power to establish inferior of this law arose from the fact that there were certain defaulting mu- courts, and to pass all laws to carry that provision into effect. It nicipal corporations in this country against whom the decrees of the says that the judicial power of the United States shall be vested in courts could not lJ~ enforced by the ordinary process that has been the Federal courts. This is rendering perfectly nugatory all power; sufficient for nearly one hundred years of our national existence. He it is rendering the mandate of the courts idle. They give judgment; also named specifically the State of Iowa as one of the States of this but what is t.be judgment worth? The State has done its duty; it has Union which had rendered it necessary to resort to some peculiar. provided by law for the collection of that money; it ha.s appointed method of legislation in order to enforce the decrees of courts. Now, the officer to perform th~ du_ty, and the State, when it is a Statejudg- sir, I desire to know from the Senator, before we are called upon to ment, as in Iowa, gives the State courts the power to do just this pass this bill, what are the States in this Union in ~hicb it is pro- thing. And now, we being under obligation to protect the national posed to authorize the Federal courts to appoint officers to carry out courts as a national Legislatttre, are under the same obligation to do it. their local laws f Mr. EDMUNDS. And no State has authority to confer this power ' Mr. FRELINGHUYSEN. The bill means just what it says, that it on the Federal comts. is intended by it that the Feder3l courts in all the States of the Union, Mr. McDONALD. I desire to ask the Senator from New Jersey if wherever the proper officers fail to perform their duty, shall have he proposes to press this bill at this time? A suggestion was made the power of appointing officers to perform that duty. That is all by the Senator from Virginia that it lie over to enable his colleague the answer that I have to make. I am not going into a specification. to be here, who desired to be heard upon it. · As to the State of Iowa, so far from that being in default, the State Mr. FRELINGHUYSEN. There are only about five minutes of the of Iowa has done more to remedy the evil than any other State. · morning hour )eft. I suppose the bill will go over at one o'clock at Mr. LOGAN. I wish to ask the Senator a question in reference to any rate. one point. The bill provides: Mr. LOGAN. A word in answer to the Senator from New Jersey in That whenever the circuit courts of the· United States shall, in the exercise of reference to the p'Ower of Congress. So far as the power of Congress their jurisdictiou, issue writs of mandamus or other commou·law writs, and tho is concerned to authorize courts for certain purposes, there is no dia- paL·ty or persons to whom said writs sh:tll be directed shall, for any cause, neglect pute; but wheri the Senator tells me that Congress has power to IV-126 2002 CONGRESSIONAL RECORD-SENATE. MAROH 28, authorize a. Federal court to levv a tax in a State for the benefit of an RELIEF OF SIOUX INDIANS. individual or corporation, I deny the power. It exists nowhere in the :Mr. WITHERS submitted t he following report: Constitution of the United States or in any authority given to Con- The committee of conference on the disagreein~ votes of t ~ e two Houses on the gress. amendment of the Senate to the bill (H. R. No. 2589) to supply a deficiency in the Mr. FRELINGHUYSEN. I entirely agree with my friend that the appropriations for certain Indians, having met, after full and free conference have United States ha.s no authority to confer any power on the Federal agreed to recommend, and do recommend, to their respective Houses as follows : That the Honse recede from their disa.g1-eement to the amendment of the Senate, courtiJ to levy a tax; but where the State has levied a tax by its law, :md agree to the same. where it has appointed its officers to perform the duty, and where it R. E. WITHERS, is a mere individual dereliction of that officer in doing what the State W. B. ALLISON, tells him to do, then I insist that the judgment of the Federal court R. J. OGLESBY, Maoogers on the part of the Senate. does not become nugatory and void at the will of that defaulting .JNO. D. C. ATKINS, officer. ROBERT HAMII,TON, Mr. LOGAN. Yes; but the point that I put to the Senator was not EUGENE HA.LE, · where the State had levied the tax, but where the officers of the State Managers on the part of the Home. had failed to levy the tax under the law; and this bill, if I can read, The report was concurred in. is intended to apply to that particular case. Suppose, for instance, CONSULAR AND DIPLOMATIC APPROPRIATION BILL authority is given to the officers of a county to levy a tax for a cer- The Senate, as in Committee of the Whole, resumed the considera- tain specified purpose, a;n~ they fail to do it, an~ then you get yo~r tion of the bill (H. R. No. 1594) making appropriations for tho con- writ of mandamus reqmrmg them to perform theu duty. If they fail sular and diplomatic service of the Government for the year ending to perform their duty, you have plenty of authority to proceed against June 30, 1877, and for other purposes, the pending question being on them to make them do it. But yo:u do not proceed against them for the amendment of the Committee on Appropriations, in line 13, to failing to perform a duty that they are required to perform under the insert after the word "Austria." the word "Italy; " so a.s to read: law, but you appoint men to perform that duty which they are re- For salaries of envoys extraordinary and ministers plenipotentiary to Spain, All8· quired to perform, without ·proceeding against them, and make them tria, Italy, Brazil, Mexico, Japan, and China, &c. . pay the expenses of the process. That is this bill. Mr. SARGENT. The Senate some time sincea-doptedaruleforfi.ve In other words, the Congress of the United States proposes to give minutes' debate, provided a majority should so vote, upon appropria- .authority to the United States courts to appoint county commissioners· tion bills. I do not wish to ask that it be enforced now; but I will and boards of supervisors to levy a tax for private purposes. That is suggest to Senators that, while full and free debate ought to be had this bill, and that is the scope and meaning of the bill. I say with- upon this bill, it might be wt'll to come within the spirit of that rule out fear of contradiction that, in myjudgment, this is the first time without actually adopting it. I will not ask that it be adopted on such a proposition ha.s ever been seen in Congress. How can such a this bill. I think the debate yesterday was not unreasonable. It .... power or authority be delegated by act of Congress to a Uri ted States illustra,ted both sides of the question. I clo not wish to object to rea- court! Why, sir, establish that precedent that Congress may dele- sonable debate; but I presume the debate ha.s pretty nearly termi- gate the power to a United States court to levy and a-ssess and collect natey three gentlemen rAp- longing to the Senator from Ohio cannot see the distinction between resenting either House and a final report, and we have here to take what has been done heretofore and this one uniform E;Jystem that seeks it in bulk or in whole by a single vote. to change the whole pra.ctice and the whole law of the Government I make these remarks for the purpose of directing attention to this in every one of its branches. Th8 distinction is wider than a barn- subject, and I do hope that a reform will be brought about by some door and it is deeper than a well; but yet he can see no difference one who will take the pains to correct the evil and if pos~?ible b1ing between that and an amendment that may have gone to re-organize the two Houses to a concurrence on the subject. the Navy, if you please, in years gone by; but that amendment did Mr. EDMUNDS. I think the evil of principle that has been dis- receive the consideration of the Naval Committee of this body and cussed, so far as bringin(J' the two Houses into collision or a state of it was thoroughly understood. Under this bill the changes proposed excitement in respect of each other, will turn out in practice, as in get no consideration from the appropriate committee eitheT of the always bUB, to be a very small one. I have nev.er known an instance House or of the Senate. . in the ten years that I have been here when either House has pr~ But I agree with the Senator fully in the wrong practice of putting posed anything new in an appropriation bil1, whether it came over legislative matters of great moment on the appropriation bills. There from the House -of Representatives in the body of the bill, or was may be some cases where the exigencies of the country may justify, attached to the bill here by way of amendment, to which the other nay may deman(l it, and the Senate almost unanimo-qsly would agree House seriously objected, where the proposing House did not recede to it. I think I should vote for a rnle to exclude everything that from it. Each House has always acted upon the principle that in an would not go in under the unanimous consent of the Senate, and appropriation bill, the evident object ~nil scope of which is to provide leave it only to such cases as the Senate would agree to unanimously. money to carry out existing laws, nothing should go into it that the I repeat that when one committee thus seeks to usurp all the ap- two Houses did not agree to; and when · one Rouse disagrees and propriate duties that belong to all the various committees, they do insists upon its disagreement, the other House recedes; I mean in more than any committee has the capacity of doing, and that it is a respect to what is called extraneous legislation, changing existine confined to matters For minister resident accredited to Denmark and Sweden and Norway, to reside afi'ecting the subjects-matter of the bills. · at such place as the President may from time to time direct in either of the states Now, :Mr. President, the condition of public business is this: Under named, $6,500. · the unbroken practice of the Senate for at lljast sixteen years the com- Under the existing law I believe theminlster to Denmark and also mittees on appropriations of.the two Houses have undertaken to amend the minister to Swetlen and Norway receive each $7,500. The House existing legislation in the way of reducing, increasing, or creating bill prepared, as has been assumed, by the Committee on Appropria- salaries upon simple appropriation bills. The objection in this body, tion, unites those together and provides for but one mip.ister, with a so far as my memory is concerned, has been co;nfined solely to the salary of $6,500. I think if the Commit.tee on Foreign Relations in small minority who have sat here. I can agree 'lith the Senator from the Senate were to consider this question fully a.nd carefully they Ohio that an appropriation bill ought to be that which its name flis- would be disposed rather to increa-se the compensation and the grade tinctly defines it to be: the appropriat.ion of money for the purpose of of the minister to Sweden and Norway than to reduce it. I know an carrying into effect existing laws. If those laws need amendment, let effort ha.s been made heretofore in this body to do this, but it failed on the committees to whom the consideration of the various subjects- one occasion on account of a rule of order. matter of law are confided by the two bodies take up t.he laws and I want to say with reference to Sweden and Norway, where we amend them. If by law, for instance, a salary is attached to a post, have a minister with a salary of $1,500, that if you look at the num- I hold it to l.m the duty of the Appropriation Committee to carry out ber of vessels belonging to tllose countries which cleared from our that law, anstimony; but an official paper or record produced by him is not withiu this case. the said privilege. · It will be observed from the reading of the resolution under which the colilmit.tee waa appointed and the preamble thereto that, on ac- The act makes no difference or distii1ction whatever as to the pro· count of an alleged improvident deposit by the Secretary of the Navy duction of papers by a witness and evidence by parol. Both are • with Jay Cooke, McCulloch & Co., of London, the Government has placed precisely upon the same footing. I will read again so far as become a creditor of Jay Cooke & Co., the banking-house which may be necessary to illustmte this from section 102: · failed in this city. Every person who, having been summoned as a witness by the authority of either House of Congress to give- testimony or to produce papers upon any matter under In other words, the indebtedness of Jay Cooke & Co. to the United inquiry before eit-her House or any committee of either House of Congress, will- Stat.es is because of an assignment by Jay Cooke, McCulloch & Co. fully makes default, &c. · . to the United States of claims against Jay 'Cooke & Co. in the sum Indeed in court-s of justice -they are upon the same footing. Mr. of something over one million and a half of dollars, these claims Greenleaf, as a note to section G58 it1 first volume of his work on evi~ having been proven in bankruptcy and thereafter assigned as collat- dence, quotes Chief Justice Shaw, as follows: eral securities to the Unit.ed States. . . There seems to be no difference, in principle, between compelling a wituess t.o It is further alleged in the preamble as a fact that Jay Cooke & produce a document in his possession, under asubprena dttceS tecum, in a. case where Co. bad a large and valuable interest in a certain real-estate pool the party calling the witness has a right to.the use of su.ch document and compel- heretofore partially inquired into. Therefore, for the purpose of ling him to give testimony, when the fa.cts fie in his own knowledge. bringing to light that interest so that it may be subjected as assets The witness by the common parliamentary law and by the act of to the payment of the claim of the Government this investigation Congress is not permitted to say that his answer would expose him was ordered. ro a criminal prosecution, or would violate professional confidence. That it was and is competent for Congress to thus find out on be- He is required to answer, and aa a matter of high prerogative right, half of the General Government what it can upon this subject, with a a-s also from considerations of public policy, the House is authorized view to other steps being taken by lhe Government, in court if you to require an answer, the law providing, however, that the testimony please, is just a-s manifest a-s it is that a citizen may hunt up and un- of the witness shall not afterward be used against him. derstand the fa-cts of his case before bringing snit or to determine The witness has said in his testimony before the committee that whether he will institute suit ·o r not. his answers would not criminate him. He does not clai..ID. to be an Before the committee and by the answer of the witness at the bar attorney, nor does he pretend that he hat~ not in his possession or under of the House great empha-sis was given to the fact that there waa no his control the books and papers ~ailed for; on. the contrary, it was person or party who had under oath filed specific charges or allega- conceded before the committM that ~e had. That these papers may tions. The ·w itness claims in effect that specific charges and allega- reasonably be expected to afford information pertinent to the inquiry tions should be made as a foundation before requiring him to answer with which the committee is charged cannot be doubted. No ques- questions. tion has ever been before raised in this House as to its right to com- I have shown what facts are averred in the resolution of the House. pel the production of papers. In the Credit Mobilier investigation Now whether the Government represented by the House is a party papers of all kinds. including letters of the most private character, of sufficient t1iguity and responsibility, the House must judge. The were examined. The books of one of the banking honses_of this city, wit.ness would place himself in the attitude of a party. I submit that covering a period of over one year, were freely overhauled by alid it is not for the witness, or a witness in any case, to demur to the before the committee. pleadings. He has no standing in court for that purpose. The rights of the witness under the fourth article of the Constit.u- The resolution under which the committee was appointed was not ~ion are not invaded by the common parliamentary law and the law of adopted upon the petition of memorialists making defhllte charges Qr Congress, nor by any action t:1ken thereunder by the committee or by allegations against some particular perRon or persons a-s to the com- the Honse. No unreasonable or any other kind of search or seizure mission of some defined wrongful or unlawful acts. of his papers is being attempted. He is asked to produce certain We are not trying a civil case upon issues made. There are no par- books and papers before the committee in answer to· a snbprena duces ties plaintiff and. defendant. We are. not trying a crimi~al charge teowrn. As I have said, this cannot be treated as a search or seizure, with Mr. Kilbourn as the defendant. We are trying to :find out what either reasonable or unreasonable. · we can, within the scope of the resolution, as to the subject-matter in- Can it be fairly claimed that to requiie the production of books volved therein. If when we get through we can make more specific and papers by sttbprena du.ces teoum is a viola,tion of his rights under allegations, they will be found in our report. But, sir, even then we the Constitution! If so, then it follows that a s-ubprena duces te.ount do not promise the witness or his counsel that our report will be should not issue in any case, that it is an . unconstitutional process, swornro. ' and that that fact has neve1· been discovered until now. It cannot be said that there must be some foundation laid or show- I have spoken thus at length about the subpren,a dttoes teottm because ing made a,s to the materiality of the papers, &c., calJ,ed for. I know of the talk of witness and his counsel about private papers and pri- of no court, State or Federal, where any such rule oi practice exists. vate business. It is well settle-d that if any objection exist-s as to the form or sub- :Mr. Speaker, the power of this House-as to c::ill..ing for and compel- stance of a subpama duces iecU'rn, such objection is presented and con- ling the giving of testimony, whether oral or written. is much greater sidered after the return of the su bpama. than that of the courts. The additional power is justified and predi- In some of the States statutes exist in aid of the common-law rule cated upon grounds of public policy, and, in the language of a most relating to parties to suits, by which one party may obtain an order eminent writer upon parliamentary law, "is considered to be funda- upon the other to produce upon the trial an instrument in writing mentally essential to the efficiency of parliamentary inquiry." or paper by filing affidavit and serving notice as to the character of I will now read from Cushing on Parliamentary Law, § 1001, as the evidence sought, and its materiality. follows: · This is resorted to when the party seeking the evidence is not will- , It bas already been seen that a witness before either house of Parlin.ment cannot ing to take his chances in proving by parol the contents of the instru- excuse himself from answering any question that may be put to him (with a single ment, if not produced, as he could do at common law, but prefers the exception presently to be noticed) on the ground that the answer would subject him production of the instrument itself, so that there may be no mistake to an action or expose him to a criminal proceeding, or be the means of divulging the secrets of his client, communicated to him in professional confidence, or be in about its contents. · breach of a. judicial oath, as a. grand juror, or of a voluntary oath as a freemason, However, no question was raised before the committee, nor by the or the like, some of which would be sufficient grounds of excuse in a court of jns· answer of the witness at the bar of the House, as to the sufficiency of tice. This ditl"erence between proceedings in Parliament and in the ordinary courts has been established upon grounds of puolic policy, and is considered to be funda- description of books and papers called for. · mentally essential to the efficiency of parliamentary inquiry. But while the law The act of 1857, as amended by the act of 1862 and as revised J nne of Parliament thus demands the disclosure of the evidence, it recognizes to the 22, 1874, is a-s follows : fullest extent the principle upon which the witness is excused from making such disclosure in the ordinary courts of· justice, q,nd protects him against the conse· SEC. 101. The President of the Senate, the Speaker of the House of Representa- quences which might ot,h erwise result from his testimony, the rule of Parliament tives, or a chairman of a Committee of the Whole, or of any committee of either being that no evidence given in either Honse can be used against the witness in any House of Congress, is empowered to administer oaths to witnesses in any case un- other place without the permission of the House, which is never granted provided der their examination. · • the witness tesfi.fies truly. SEc. 102. Every person who, having been summoned as a witness by the authority of either House of Congress to give testimony: or to produce papers upon any matter Again, on page 269, section 684, the same writer says: . under inquiry before either House or any committee of either House of Congres!>, It may be laid down therefore, first, t-h at every legislative assembly in the willfully makes default, or who, having appeared~ refuse.'! t.o answer any question United Stat~s possesses all the powers of jurisdiction in a. · general way which are pertinent to the question undt)r inquiry, shall be ueemed guilty of a misdemeanor, recognized by the common parliamentary J.a.w. 2010 CONGRESSIONAL RECORD-HOUSE . MARCH 28, Again, he says on page 272, close of section 695 : .A. an example of the exercise of this power on the part of the House In the foregoing, and all the States mentioned in this paragraph, as well tltose before the enactment of any statute upon the subject, I wish to invite wh ere constitutions do not as in those where they do contain the general clause the attention of the House and the memory of some of the older mem- above mentioned, it may be considered that each of the legislative branches has bers in service to the ca.se of James W. Simonton, correspondent of jurisdiction, a{lcording to the common parliamentary law, of all offenses committed against it by persons not members. · the New York Times. He ha,d refused to answer certain questions That the House has the right to punish for a contempt of its au- propounded by a special committee. The committee reported the fact thority cannot, I think, be seriously doubted. I think it clear that the to the House, and unanimously concurred in the opinion that Congress power of the House to punish fora.contemptof itsauthorityis possessed wa.s clothed with ample power to order the party into custody, there • by the House without regard to any statute and without any express to remain by the same authority or until the expiration of Congress. provision in the Constitution, as necessarily incident to its power of The committee at the same time recommended the passa~e of the act legislation a>S conferred by section 1 of article 1 of the Constitution. of 1857. But independent of that recommendation, and oefort) it be- In Barclay's I)igest, page 231, the following language is used: came a law, the House, underitsimpliedconstitutionalpower, adjndg d Simonton to be in contempt, and ordered him into close custody nntil The failure or refusal of a witness to appoor, or refusal to testify, is a breach of he should answer. the privileges of the House, and has been punished by commitment to the custody of the Sergeant-at-Arms, by expulsion from the floor as a reporter, and by commit- The next proposition I wish to affirm is that when the House bas ment to the common jail of th~ District of Columbia. adjudged a witness or other person to be in contempt of its authority, Reference is made to journals 1, 12, pages 276, 277 ; 2, 33, pages 315, that adjudication is a conviction, and the commitment in consequence 318; 2, 34, pa;ges 269, 277, 281, 384, 567 ; 1, 35, p~ges 371, 387 t9 389, 535, is execution, abd no court or other body can, if the House ha.s juris- to 539. diction, Teview the facts or discharge the witness, or lawfully do any The power of the House thus stated is not given as dependent on act which shall prevent the execution of the judgment or sentence of any statute, and the references made show conclusively that Mr. the House. • Barclay believes that power to e~st independently of any statute. I now read from 1 Kent's Commentaries, side page 236: Cooley, in his work on Constitutional Limitations, page 133, in speak- The decision of the Supreme Court in the case of Anderf!on is accompaniec:l with ing of the members of each House, says: . a course of reasoning which would see~ to be sufficient to place the authority of each House of Congress to punish con tempts and breaches of privileges on the most Each House has also the power to punish members for disorderly behavior and solid foundation, independent of the absolute authority of tho decisiOn. The con- other con tempts of its authority, as well as to exprl a member for any cause which stitutional exercise of the same authority by each house of Parliament has been re- seems to the body to render it unfit ~at he continue to occupy one of its seats. peatedly vindicated in Westminster Hall. It is a power inherent in all legislative This power is generally onumera.ted in the Constitution among those which the assemblies, and is essential to enable them to execute their great trust with ft·eo- two Houses may exercise, but it need not be specified in that instrument, since it dom and safety, and it has been frequently exercised, not onfy in Congress, but in would exist whether expressly conferred or not. It is a necessary and incidental the respective branches of the State Legislatures, and may be considered as indis- power to enable the House to per:(orm its high functions, and is necessary to the putably acknowledged and settled. (Story's Commentaries, volume ?• pages 305,317.) safety of the state. Again, he says, on page 134 : I will now read from Hurd's very able and exhaustive work upon Each House may- also pun.i sh contempts of its authority by other persons without Habeas Corpus, page 412. This work has become a standard text-book express authority from the Constitution therefor. _ upon the subject of habeas wrpus througl10ut the United States: I now call the attention of the House to the case of !\nderson 1;s, The right of punishing for contempt by summary conviction is inherent in all Dunn, reported in 6 Wheaton, 224. This opinion wa8 rendered March courts of justice, and essential w their protec'Li.on and existence. A commitment under such conviction is a commitment in execution, and tb_o judcrment o£ convic- 2, 1821, thirty-five years before the enactment of the law of 1857. The tion is not subject to review in any other court unless specially authorized by stat- court says: ute. It cannot be attacked lUlder the writ of hobeas em-pus except for such gross Notwithstanding the ~ge which has been taken by the plaintiff's counsel in defects as render the proceeding void. Brass Urosby's case, 3 Wilson, 183; Kcar- the discus ion of this ca.use, the merits of it really lie in a very-limited compass. nev's case, 7 Wheaton, 38; Yates's ca e, 4 Johnson, 318; McLaughlin's case, 5 The pleadings have narrowed them down to the simple inquiry whether the House Watts & Sergeant, 275; Johnson vs. Commonwealth, 1 Bibb, 602; Ex parte Alex- of Representatives can take cognizance of con tempts committed against themselves ander, 2Amencan Law Register, 44; Ex parte Nugent, 7 Pennsylvania Law Jour- under any circumstances. The duress complained of was sustamed under a war- nal, 107; State vs. White, T. U. P. Charlton, 123; Ex parte Hickey, 4 Smedes & rant issued to compel the party's appearance, not for the actual infliction of pun- Marshall, 749; State vs. Tipton, 1 Blackford, 166; Clark vs. The People, 1 Breese, ishment for an offense committed. Yet it cannot be denied that the power to insti- 266; Bickley vs. Commonwealth, 1 J. J. Marshall, :;77; Gist and others1'-"· Bowman *ute a prosecution must be dependent upon the power to punish. If the House of and others, 2 Bay, 182; Matter of Smithurst, 2 Sandford, New York superior conrt, Representa.tivespossessednoauthoritytopunishforcontempt, theinitiatingprocess 724; Lockwood vs. The State, 1 Carter, 161; Ex pa.rte Adams, 25 Missis ippi, 8E3; issued in tho assertion of that authority must have been illegal; there was a want The State vs. Woodfin, 5 Iredell, 199; Ex parte Williamson, 4AmericanLawRegis- of ,jnris£1iction to justify it. · ter, 27; Ex parte Nugent, 1 American Law Journal, N. S., 111. It is certainly true that there is no power given by the Constitution to eithe.r Again he says : House to punish for contempts, except when committed by their own members. Nor does the judicial or criminal power given to the- United States in any part ex- It is a rule esseiJtial to the efficient administration of justice that where a court pi·essly exteml to the infliction of punishment for contempt of either House or any is vested with jurisdiction over the subject-matter upon which it assum~ to act, one co-ordinat-e branch of the Government. Shall we therefore decide that no such and rt'gularly obtains Jurisdiction of the person, it becomes its right and duty to power exists 9 determme every question which may arise in the cause without interference from It is true that· such a power, if it exists, must be derived from implication, and any other tribunal. the genius and spirit of ourinstitutions are hostile to the exercise of implied powers. Cooley on Constitutional Limitations, on page 133, says : Had the faculties of man been competent to the framing of a system of government which would have left nothing to Implication it cannot be doubted that the effort Independently of parliamentary cU:Stoms and usages, our legislative houses have would have been made by the framers of the Constitution. Bot what is the fact 1 the power to protect themselves by the exvulsion and punishment of a member, There is not in the whole of that admirable instrument a grant of powers which and the. courts cannot inquire into the justice of the decisio», or even so much as does not draw after it others, not expressed, but vital to their exercise; not sub- examine the proceedings to see whether opportunity for defense was furnished or stantive and independent indeed, but auxiliary and subordinate. not. The idea is Utopian that gov(/rnment can exist without leaving the exercise of Judge Story, as to the power of one court to discharge upon habeas discretion somewhere. Pub1ic security against the abuse of such discretion must rest on responsibility and stated appeals to public approbation. Where all power corpus a person committed for contempt by another, says: is derived from the people and pubhc functionaries at short int-ervals deposit it at Adopting the words of Lord Chief Justice De Grey in Crosby's Case, 3 Wil on, the feet of the people, to be resumed again only at their will, individual fears may b.e 188, when the Ilouse of Commons adjudged anything to be a contempt or breach of alarmed by the monsters of imagination, but individual liberty can be in little danger. :privilege, their adjudication is a conviction, and their commitment in conse9.uenoo No one 1s so visionary as to dispute the assertion that the sole end and aim of IS execution. And no court can discharge on bail a prisoner that is in execution by all our institutions is ilie safety and happiness of the citizen. But the relation be- another court. * * * It can do notbing where a person is in execution b.) the tween the action and the end is not always so direct and palpable as to strike the judge of the comt having competent jurisdiction. (See Kearney's Case, 7 Whea- 0ye of every observer. The science of government is the most abstruse of all ton, page 38.) · science~ ; if, indeed, th:l.t can be called a science which has but few fixed princi- ples, and practically consists in little more than the exercise of a sound discretion, Again, in the same case, he says : applied to \he exigencies of the state as they arise. It is the science of experiment. So that it is ·most manifest from the whole reasoning of the court in this case But if there is one maxim which necessarily rides over all others in the practical (Crosby's) that a writ of habeas oorpus was not deemed a proper remedy where a application of government, it is that the public functionaries must be left at liberty party was committed for a contempt by a court of competent jurisdiction; and to exercise the powers which the people have intrusted to them. The interests that, if granted, the court could not mquirc into the suffiCiency of the cause of com- and dignity of those who created them require the exertion of t.he powers indis- mitment. If, therefore, we were to grant the writ in this case, it would be apply- pensab1e to the attainment of the ends of their creation. Nor is a. casual conflict ing it in a manner not justified by principle or usarre; and we should be bound to with the rights of particular individuals any reason to be urged against the exer- remand the party, unless we were prepared to aban'aon the whole doctrine, so rea- oise of sucli powers. The wretch beneath tlie gallows may repine at the fate which awaits him, and yet it is no less certain that the laws uniier which he suffers were sonable, just,ann convenient, which has hitherto regulated this important subject. made for his security. The um·easonable murmurs of individuals against the re· The case of Kearney, in 7 Wheaton, just referred to, waa upon a st.raints of society have a direct tendency t-o produce that worst of all despotisms petition tp the Supreme Court of the United. States upon habeas corpus, which makes every individual the tymnt over his neicrhbor'srights. Thnt "the safety of the people is the supreme law !1 not only comports with, but addressed to the marshal of this District, commanding him to produce is indispensable to, the exercise of those powers in their public functionaries with- before the Supreme Court said Kea.rney, who had been committed for out which that safety cannot be guarded. On this principle it is that courts of contempt by the District circuit court for refusing to answer a ques- ju tice are universally acknowledged to be vested, by their very creation, with power to impose silence, respect, and decorum in their presence, and submission tion in a criminal.ca.se. to their lawful mandates, and, as a corollary to this proposition, to preserve them- The Crosby case was an English case, decided in 1771 by the court selves and their officers from the approach and insults of pollution. of common pleas. Mr. Justice Gould in that case (3 Wilson, page 203) It is true that tho courts of justice of the Unitecl States are vested, by express said: statute provision, with power to fine and imprison for contempts; but it does not follow, from this circumstance, that they would not have exercised that powoc I entirely concur in opinion with my lord chief ,iustice that this court hath no without the aid of the statute, or not, in cases, if such should occur, to which such cognizance of con tempts or breach of privilege of the House of Commons. They statute provision may not extend; on the contrary, it is a legislative assertion of are the only judges of their own privileges. this right, as incidenta.l to a grant of judicial power, aucl can only be considered eith r as an instanco of abundant caution, or a legi lative declaration that 'the Again, on page 204, he' sa,ys : power of punishing for cont-empt shall not extend beyontl its known and acknowl- Tho resolution of the House of Commons ~s an adjudication, and every court mtlllt edged limits of fine and imprisonment. judge of its own con tempts. . 1876. ·coNGRESSIONA1 RECORD-HOUSE. 2011 In the same case Mr. Justice Blackstone said: And is this not especially true as between this House and an inferior I concnr in the opinion that we cannot discharge the lord mayor. The present courtf · case is of great importance because the liberty of the subject is materially con- If upon a warrant issued upon indictment found by the grand jury cerned. The House of Commons is a supreme conrt, and they are judges of their of this District the witness should be arrested, he could not be taken own privileges and contempts, more especially wit.h reference to ~heir own mem· before the court f8r trial without passing out of the cust.ody into bers. H-ere IS a. member committed in execution by the judgment of his own House. .A.ll courts, by which I mean to incluflethetwo houses of Parliament and the courts which he has been committed. If taken before the said court, tried, of Westminster Hall, are uncontrolled in matters of contempt. The sole adjudica· and convict,ed, he must of necessity, if the judgment vf the court be tion of contempts, and the punishment thereof in any manner, belongs exclusively and without interference to each respective conrt. Infinite confusion and disorder executed, pass out of the custody fixed and destgnated by the Hou e, would follow if conrts conld by writ of habeas corpus examine and determine the for the reason that, if tried and convicted upon the indictment, the con tempts of others. The power to commit results from the first principles of jus- penalty must be imprisonment as well as a fine. tice; for,· if they have power to decide, they ought to have power t.o punish. No Before closing my remarks I wish to notice a theory presented by other court shall scan the judgment of a. superior court or the principal seat of jus- tice. As I said before, it would occasion the utmost confusiOn if every court of the witness in his answer made before the bar of the House. He this hall should have power to examine the commitments of the other courts of claims that the statute of 1857, as amended by the act of 1862 and as this hall for contempts; so that the judgment and commitment of each respective revised in 1874, was intended to and did divest the House of all power court, a.s to contempts, must be final and without control. · as to a recusant witness, except to have the fact certified, -as provided In Alexander Mm-my's ease, decided in B. R., A. D. 1751,1 Wilson, by the statute-, to the district attorney, to be by him brought to the 299, upon habeas corp1£B1 Wright, J., said: notice of the grand jury for their action. He says that the House, The House of Commons is undoubtedly a high court, and it is agreed on all by omitting in the revision the words" in addition to the pains and hltllds that they have power to judge of their own privile$es ; it need not appear penalties now existing,'' disarmed itself of a power whfch he admits to us what this contempt was, for if it did appear we conla not judge thereof. it possessed before. And therefore it follows: he says, that a commit- . Dennison, J., added: . ment for contempt wo1,1ld be a violation of ·the Constitution, inas- This conrt has no jmisdiction in the present case. We granted the habeas corpus, much as if he should afterward b~ punished for misdemeanor under not knowing what the commitment was; but now it appears to be for a contempt of the sta~ute, he would alt-ogether be .p unished twice for the same of- this privilege of the House of Commons. What these privileges are we do not fense. Let us examine these points or propositions for a moment and know; nor need they tell us what the contempt was, becaMe we cru;mot judge it. see if they willl)ear the test of reason and the well-settled rules of Some of these authorities and a great many others are cited in the construction. · case of John Nugent ex pa1·te, decided in the circuit court of this dis:_ At this point, before proceeding further, I wish to remark that it tiict in May, 1848. Let it be remembered that this case was before cannot be punishment twice for the same offense. One offense is a the enactment of the statute of 1857. It aro, e uptm habeas corpus, contempt of the authority of the House. The other offense is a pub- John Nugent being in the custody of Robert Beal, Sergeant-at-Arms lic offense. Both proceed from the same act, but are different offens(:) ·• of the Senate of the United States. It appears from the return Illade That this may be is too well settled to be doubted. I will read from to the writ by the Sergeant-at-Arms and other facts recited in the case Wharton's American Criminal T.-aw on this point, volume 1, § 542. that the Senate had been· considering in secret executive session a He says: · treaty between the United States and the republic of Mexico. Nu- .A. person may be indicted for an a.ssa.nlt committed in view of the conrt though gent obtained in some way a copy of the treaty and certain amend- prevlOllilly fined for the contempt. The plea of atdrejois aoquit shall not avail ments made to the same and proceedings of the Senate thereon, and him, because the same act constitutes two offenses ; one viola.tea the law which protects courts of justice, and stamps an efficient character on their proceedings· furnished the same in his own handwriting to the editor of the New the other is leveled against the general law, which maintains tho public order and York Herald. He refused to tell from whom he received the treaty tranquillity. So when General Houston had been punished by the House of Repre- .and amendments, and was therefor adjudged guilty of contempt and sentatives for a contempt and breach of privilege, it was held that this action of committed until he should answer. The District circuit court. said: the Honse was no.bar t<1 an indictment for an assault and battery growing out of the-same tnnsaction. · These ca.ses"Bnd authorities, we think, show conclusively that the Senat.e of the United States has power to punish for contempt of its authoricy in cases of which Tb r · H t ' · d b th · e ru mg m ous on s case was rna e Y e CirCUl co 't urt · th' m IS it has jurisdiction; that every conrt, including the Senate and House of Repre- District. seutatives, is the solejullae of its own contempts 1 and that in case of the commit- I have shown that the House possessed the power, before the en- mont for contempt in su6'h a case no other court can have the right to inquire di· actment of the statute of 185?, to punish for a contempt of its an- rectly into the correctness or propriety of the commitment or to discharge thepris- tbority. The Supreme Court, in the case of Ander.son vs. Dunn, 6 onor on habeas corpus; and that the waiTant of commitment need not set forth the particular facts which constitute the alleged contempt. Wheaton, and other authorities which I have cited, declare that it js 'h t d · th f . d a power derived from constitutional implication, following as a nec- 'I e cour cone1u es m 11 e o owmg wor s: · . essary incident an expre&~ grant. After an anxio!J-~ anil careful consideration of _the whole case, the court is mi~ni- The act of 1857 in the first instance, and as amended and revised, !lJOusly of t_he _OP?Jll~n ~a~ iJ?.e Senate ! the Umted States .bas powe~, wheu actmg a. ever purported either by its title or text. to confer upon Congre s 0 m a case within Its JnrlBdiction, to punish all contempt of. Its a.uthonty; and that, '""1..1' '. · , • • • • the Jnisoner having been committed by the Senate for such a. contempt anu being the power to pumsh for a contempt, but manifestly from Its language still held and de~~ed. f?r that ~aus~ by their o.fficer, this court has, uROn the ha- proceeded upon the ~heory and fa~t that s~ch pow~r already existed. beas corpus, no Jun~diction to mqrure further mto the cause of coiDlDltment, and Now, can 1t be believed that this droppmg out m the revision of must remand the priBOner. · the words "in addition •to the pains and penalties now existinrr" Now what propositions are established by these authorities and stripped the House of the power which it possessed under the Co~- precedents f stitntion f Will it be believed that such wa-s the intention of Con- First. That the House has power-the same as a court-independ- gress f If a divestment of power so important and so long exercised ent of any statute, to punish for contempt of its authority in all cases had been intended, would not a purpose and change so radical have ·of which it has jurisdiction. provoked comment and debate at the time! Would not such pur- Second. That the House is the sole judge whether the facts in a pose have been declared by words used, not by words omitted f given·case constitute a contempt of its authority. The power of Congress as to the punishm~nt of contempt of jts au- . Third. That, if by order of the House there is a committal for an thority could not be affected by or in any manner dependent upon adjudged contempt of its authority, the commitment is in execution the words "in addition to the pains and penalties now existing," for of the judgment and order of the House. the reason that those words do not declare or describe the·character Fourth. That no court has the power to review the action of the of the " pains and penalties." The insertion of those words in the House in such cases, and cannot interrupt, suspend, or make n, break act of 1857 a-dded nothing to that statute; for if those pains and pen- in the execution of the judgment of the House upon habeas wrp!ts or alties already existed, no new or other life or force was given the otherwise. same by a mere reference to their existence in the act of 1857. It Cushing, in section 1011, says: follows, therefore, that the omis~:~ion of those words from the revision When a. witness refuses to .answer the questions he is directed to answer or pro- took nothing of substance from the act of 1857, for the reason, as duce a paper or other document, the :v.roceeding n.~a.inst him is intended not only as already stated, that the insertion of the same had added nothing to a punishment for his contempt, but also to compel him to obey the order: that act. Will not the Honse be permitted to complete the execution of its . The revision wa-s adopted .June -22, 1874. On the 15th of tho next judgment or 6entence without such interference as would withdraw January Richard B. Irwin was committed by this House because of the witness from the punishment imposed f his refusal to answer certain questions. The Speaker at the same Does not the power to adjudge guilty of contempt of necessity im- time certified, as required by law, the fact of this refusal to answer ply the power of punishment T the questions to the district prosecuting attorney. Would this action It will not be denied tbat·in a case of concurrent jurisdiction the of the Honse have been had without OJ1e word of comment or protest court first exercising jurisdiction rightfully acquires the control to th9 by the very members who ratified the revision, if it was intended exclusion of the other. Where-after indictment and before trial- in that revision to give "exclusive power to the court," as claimed a justice of the peace took jurisdiction of the same offense, before by the witness 7 This is too absurd to be entltled to further notice. whom the offender was tried and sentenced, the court held that the The answer of the witness further sayso: conviction and sentence were no bar to the indictment. (See 1 No one will say that the two Houses of Congress had not the right to disarm Wharton, § 541 ; 4 Te:x:as, 242 · 9 Texas, 43.) themselves of a. power which they thought might be better placed in the hands o£ Will not the same rule apply in this case t The jurisdiction cannot the judicial authorities. be said to be concurrent, for the offenses are different; but the Honse, For one I am very much inclined to doubt this. If the right to having exc]usi ve jurisdiction as to the contempt of its authority, must puni8h for a contemJlt is by implication conferred by the Constitution it not be the law of the case that its judgment shall be executed be- upon the H'luse as a -power necessary in aid of an express grant, I do fore another tribunal takes the control of the person of the witness T not believe that Congress can by words omitt-ed or expressed divest 2012 CONGRESSIONAL RECORD-HOUSE. MARCH 28, I itself of such organic element. or function; certainly not so that it let ~t not be forgotten ~at t~~ heariu~ :vas ll3;d after the re~sion of cannot resume its exercise agam at pleasure. 1874, after the words "m additton to enstmg pams and penalties" had The words "in. addition to existing pains and penalties," in the been omitted from the text. He says: statutes of 1857 and 1862, were surplusage and were very properly There can be no doubt that either House of Congress has the right of committing omitted in the revision. _ for contempts which infringe upon the order, the dignity, or punty of their legis- There are no words in the statute as revjsed which negative the lation, and for this purpose it is not denied but they have the power of examfua- common parliamentary law which Congress had always exercised as tion, of investigation, and of calling witnesses into their presence or before their committees, ana of administering oaths ahd putting inqwries, and of punishin,g a. to punishing for contempts. refusal to answer. The powers of the House are 80 clearly established now that • Sedgwick on Statutes, page 97, says: the learned counsel who has argued t.his morning has not impeached them, unless A general statute without negative words will not repeal the particular provis- Congress by the enactment of 1857 has abrogated this almo t indi pensable power ions of the former one unless the two acts are irreconcilably inconsistent. . in Congress. It is to h~ obseryed that the statute applies only to a.particnl:u sp cies of contempt, and that IS to witnesses who refuse to answer questions upon subjects And this is true aa to the effect of a statute upon the existing com- of investiption before Congress or before its committees. It is saifl that inasmuch · nl - th t il as Congress has created the act of a witness refusing to answer a misdemE\anor mon -law reme dY· The old one remams, u ess e ac necessar Y they have abolished it aa a contempt. I cannot 80 regard it. It appearst() me that abolishes it. (See Sedgwick on Statutes, 342.) tbrrpunishment provided in the statute for this as an offense does not merge tbe • Now, it seems to me that a much more plausible argument against contempt, and does not abolish the power of the House. It appears to me that it the power of the House to punish a witness for contempt than any has not been so understood from the time of the enactment of the statute, and I which I have yet heard would be found in the fact that the Consti- beliove this is the first time that that aspect of the case haseverbeon presentecl for judicial examination. There is nothing clearer than that the same act may be both tution, by e~ress provision, gives to each House the power to punish a misdemeanor and contem'{'t. If oce member should stiike another while the or expel its members; thus, by the application of a familiar maxim, House was in session and in Its presence, it would be a contempt of the House, and raising an implication against the power to punish any other than a misdemeanor under the laws, for which be could be punished. It would be n · h f And answer to the prooeedin~~:s in the House for contempt to sav that he was liable tiD- their own members. But the Supreme Court, m t e case o erson der the general law of tile land to be punished for the mis.demeanor. In the c le- vs. Dunn, say: brated case of Sam Houston, who was brought before the bar of the House for This argument proves too much; for its direct application would lead to the an- striking a member of Congress for words spoken in debat~, the power of the IIouse nibilation of almost every power of Congress. To enforce its laws upon any sub- to punish him for contempt in the case was aispnted; but it was held to be within ject without the sanction of punishment is obviously impossible. Nor did the idea the power of the Honse upon the most olemn consideration. And after bavin~ everoccurto anyone that the express grant in one class of cases repelled the assump- been tried, convicted, and punished for contempt by the House, he was prosecutea ti.on of the punishine: power in any other. for misdemewor, probably in this very court, or, at all events, in one of the local ~ tribunals here. His defense to that action was his conviction before the House for The court say further, in this connection: "Contempt, and that he could not be twice punished for the same offense. The truth is that this exercise of the powers given over their own members was The defense was of course overruled, and Mr. Houston. notwithstanding his dis- of such a delicat~ nature that a constitutional provision became nece8sary to assert tinguished position, having formerly been a member of the House, was punished or communicate it. Constituted as that body is of the deleA3>tes of confederated both for a contempt and for a misdemeanor before the two jurisdictions. · s.tates, some such p~ovisio~ was nece8sary to ~nard agai?-St. their mutual jealousy, Mr. Speaker, in my jud2:ment it is very clear that the resolution smce every proceeding a~amst a representative worud mdirectly affect the honor ~ or interests of the State which sent him. • offered by the gentleman from Missouri [Mr. GLOVER] should be It is a very grave question whether, if the witness be taken before adopted. Unless all authority and precedent should be utterly disre- garded, the vote cannot be otherwise. the District court for trial, he does not then and there by operation of Mr. GLOVER. I now yield to the gentleman from Iowa, [Mr. KA.s- law cease to be in the custody of the Sergeant-at-Arms for any pur- SON.] How long time does the gentleman want.f . pose or in any degree. Now, if there is any doubt about this, shall Mr KASSON I 0 nl ·h f · I h not the House maintain an exclueive custody and J·nrisdi . ·ction until · · Y WlS a ew mmutes. ave no prepared notes. the clo e of the present session unless the witness shall answer sooner! I am not sorry that this question is again presented to the House At this point I will direct the attention of the House to the cas~ of for its careful review; and in common with the rest of the Honse, Barth vs. Clise, sheriff, 12 Walla-ce, 400. I read from page 402. Mr. I feel like making my acknowledgments to the gentleman from In- Justic·e Swayne delivered the opinion of the court. He says: diana. [Mr. NEW] for his careful and elaborate review of the author- By the co~ on law, upon the return of a writ of hal.Jeas corpus and the production •t· d d t th" b· t I ht h to t of the body of the party suing it out, the authority under which the original com- 1 Ies an prece en s upon L~ su ~ec · oug ' owever, say o mitment took place is superseded. After that time, and nntil the case is tinally dis- him that he has spent a great deal of time, it seems to me, in de bat- posed of, the safe-keeping of the prisoner is entirely nnder the control and direction ing points that do not arise on the question presented to the Hou e of the court to which the return IS made. The priSOner is detained, not under the by the papers submitted by the Speaker this morning. original commitment, but under the authority of the writ of habeas corpus. There is no question that this House, by precedent, by law, by And the court therefore held, aa the logical sequence of the law thus everything that constitutes authority, has the right to punish for con- declared, that the sheriff could not be held responsible for escape of the tempt the witnesses who refuse to obey its proper orders. I therefore prisoner while thus in the custody of the court and before a reman omit any reference to that part of the argument that relates to that or other order placing new duties on him. phaso of t.he question. But, Mr. Speaker, there are two points in this Again, if taken before the court in this District for trial, will he not case upon which my own mind has been in .great difficulty from the insist upon the right to give bail f Could the court admit him to bail beginning of the debate upon the contumacy of this witness. The without taking him out of the custody of the Ser~eant-at-Arms abso- first is that we have no settled rule that determines the limits of sub- lntely t If the court should deny him the privilege of giving bail, jects of which this House has the right to take jurisdiction. We have upon what theory would the refusal be founded except that the House certain classes of subjects over which unquestionably we have juris- was entitled to the custody of the witness t And if the House dur- diction: those relating to frauds practiced upon t.he House; those ing the contumacy of Mr. .Kilbonrn is entitled to keep him in the cos- relating to corruption and attempts at corruption of its members. We tody to which he has been committed, what argument can be made have had frequent investigations upon those subjects, and there is no against the adoption of the resolution t • debate about our right to demand and exa-ct from witnesses testimony I now ask the attention of members to a view of this question that relating to such matters. Of the question of impeachment the House · should not be overlooked. · has unquestionable jurisdiction, because it is conferred by the Con- It is the theory of the witness that all control of the House over stitution, and we have the right to 1·equire testimony upon the grounds him was terminated when the Speaker certified the facto£ his failure of impeachment within the range of our powers to impeach. We to testify to the district attorney; and that when he answers to the have the power of legislation, and we wish for information touching indictment he answers to the only complaint recognized by the law th!tt legislation, as in the preparation of a tariff bill; and we may as lawfully pending against him. summon before us witnesses from all parts of the country to give in- Section 102 requires the witness to give testimony and to produce formation relating to these subjects of legislation. papers if called for, and makes it a misdemeanor if he refuses to Now, admitting that there are these cla-&Ses of subjects over which answer any questioQ pertinent to the question und~r inquiry; and by our jurisdiction is undenied and-undeniable, the first question of dif- section 104 it is this refusal or failure to testify that the Speaker is ficulty in this case is, under what class of subjects pertaining to the required to certify to the district attorney, and which must by the clear jurisdiction of this House does this inquiry come upon which latter be laid before the grand jnry; for their action. But the_witness • the case before us is presented 7 It is said by the gentleman from has been committed by the House.because of his refusal to produce Indiana, and I believe he stated the point very carefully, that a cer- books and papers, as well as on account of his refusal to answer cer-. tain debtor of the United States, Jay Cooke & Co., having com- tain questions. . mittod an act of bankruptcy, conveyed by force of law to an as- Now, if the certificate of the Speaker need not have alluded to the signee appointed pursuant to law all their rights and property, and failure to pro<;luce the books and papers; and if, under the rule that that the United States in common with other creditors of Jay Cooke penal statutes must be strictly construed, the counts in the indict- & Co. are interested in the estate. That is true. . It appears, how- ment predicated upon the refusal to produce the books and papers ever, in this case that the assignee, under the powers conferred are invalid because not· authorized by the statute, what becomes of upon him by law, has effected u. settlement of Jay Cooke & Co.'s the theory and argument qf. the witness T Will not ·the House be interest in this nondescript thing that is known as a "real-estate· authorized to still bold the witness even under the theory of the wit- pool." ness, he not havihg yet produced the books and papers f Now the first question that troubles me upon the point of jurisdic- I will now close my remarks by reading from the opinion of Judge tion is this, shall the House of Representatives take from the conrt Mac Arthur, of the supreme court of this District, who refused upon its jurisdiction in a case of bankruptcy because of any alleged inter- ltabeas 001'JYU8 to discharge Richard B. Irwin. I invite special atten- est of the United States f The court has, it is said, ·affirmed the set- tion to the fact that this opinion was given aftermostelaborateargu- tlement made by the assignee with this company or copartnership ruent on both sides of the question by counsel eminent and able. And known a8 the "real-estate pool." The court has the right to set that 1876. CONGRESSIONAL RECORD-HOUSE. 2013 settlement a-side for fraud, to set it aside for mistake, to re-open it witness. Mr. Alexaillder H. Stephens, of Georgia, was a member of upon any ground that is within the privil~ge of the citizen or of the the House at the time. While the law aud the objects of the law Government. The court has that power. Is it pertinent to t he juris- were present in t he minds of the members, a question arose for its diction of the House to proceed as a prosecuting attorney to :find facts application. 'Vhat did t his House do under similar circumstances, in a case where the United States bas its agent,·its prosecuting attor- when, aa I say, their minds were fresh with the mot ives and the pur- ney: and its court, all of whom have proceeded and acted without any poses that controlled Congress in that act of legislation f Did they charge of irregularity ¥ . refuse to let the witness go before the court, or did they say that, I cannot, with my present conviction, deny the .power of the House having provided a substitute remedy and having by a law of Con- ' of Representati~es to examine into the action of this assignee in gress named the punishment, the contumacious witness should be bankruptcy and every actiop. of the court in the ca-se; for if you turned over to the court for that punishment f stra~ the power of the House you might say that you will discover I find in the Journal of thisHouseforthe .first session of the Thirty- ' facts that will justify you in impeaching the very judge by whose fifth Congress, under da~ of Ma1·ch 22, 1858, in the case of John W. sanction the settlement was made. But that is not alleged here. Wolcott, who was in jail for a con tempt of the Honse,.that Mr. Alex- This case has gone to the extremest verge to which I have known t,h e ander H. Stephens offered the preamble and resolution which I ask power of the House extended in making inquiries as to matters 1-e- the Clerk to read. fore the courts ; and if you have not by former legislation given The Clerk read as follows : power to the assignee and the court to protect fully the interests of W"bereas, on the 15th day of February last, this House·by its resolution did com- the United States, I should be obliged to admit and assert that it mitJohn W. Wolcott to the jail of the District of Columbia for an infringement of was your duty to see what further legislation is demanded by mak- put the privileges of the House in refusing satisfactorily to answer certain questions ing this investigation and then enacting such legislation. But with whereas to him by order of the House, and is still held in custody under said order;. and afterward, in ;pursuance of the provisions of law, the Speakerofthe House the power as complete as it is, with no allegation of a fraudulent set- did certify tQ t.he district attorney of the District of Columbia the fa~ts pertaining tlement, with no alle"ation of misconduct on the part of the court, I to said case, and the same were laid bbfore the grand jury of said Distlict, and a presentment was thereu~n found against said Wolcott for the same offense; and submit it to the judgment f)f the House that you are Qn this point whereas court in which said presentment is pending ha.ve determineu that said using discretionary power proballly vested in yon with more danger Wolcott the caunot be tried on said presentment so long as this House holds him in to the rights and personal liberties of the citizen than probability of custody under its rights of privilege: Therefore, good to the United States. . Resolved, That the Sergeant-at-Arms is hel"3by authorized and directed to cause said Wolcott to be released from jail, and to deliver him over to the marshal of said Here, then, I leave that subject, and simply state as my proposition, District of Columbia, or other person authorized to receive him, to answer to the wbep the appeal ~s now made properly to the discretion of the House, presentment pending in said cou:t. . . that on a review of its own order and investigation the House ought not to ta)!e this doubtful power, a-s against the court, for the punish- Mr. KASSON. Observe the identical condition of facts and of the ment of the witness. witness. The witness had been contumacious; he was sent to jail The second point to which I wish to call the attention of the House for a contempt; the Speaker had certified to the prosecuting author- arises in the statute of the United States referred to by the gentle- ities, under this very law, that he had thus been guilty of a contempt man from Indiana1 [:Mr. NEW:.] We have now a law of Con~ress, to of the House; the grand jury had found a presentment, but the court which of course this House assented, directing a certain purnshment could not try the witness because the House still held him. for contumacious witnesses. We have directed the very mode of pro- Now what did that House do f I do not wish to refer to any politi- ceeding against that witness. The Speaker, in pursuance of that cal majority, but in passing I may say that the political majority of law, has bro:1ght this witness before one of the courts of the country. that House was the same a8 the political majority of this. What did The court, exercising its jurisdiction, has found a bill of indictment that House do T Instead of insisting upon their right to punish still against him and present.ed him for a violation of law. The report is longer, to the expiration .o f that Congress, they said: "A remedy has made here now that we in holding this witness prevent the adminis- been provided by law; :fines and imprisonment have been designated tration of the law of Congress by the court; and therefore the ques- by the supreme legislative authority of the country; and without • tion is now presented to the House, Shall we, under the name of pun- saying that we have no right to hold him still longer, we turn him ishment for contempt, prohibit by our own action, as one House of over to the court to be tried as other citizens are tried for offenses Congrees, the execution of the duty of the courts enjoined upon them committed against the law." And this was the very next year after by the power of the two Houses in a formal act of Congress T the law in question was passed. Mr. HOAR. Will the gentleman allow me to ask him a question T Now, I snhmit to ge·n tlemen that with a precedent like that, of Mr. KASSON. Certainly. which I did not hear the gentleman from Indiana [1\fr. NEW] speak, Mr. HOAR. Do we . prevent itt Do we do anything more than it is our duty to proceed with ca-.;ttious steps before we say that a.s postpone itT one HonSt) we will refuse to a citizen and refuse to a court the power Mr. KASSON. We prevent it by postponing for the rea-son that a to execute the provisions of the law. · delay in justice may be repeated every session; at every session the To that resolution of lli. Stephens amendments were offered, pre- same witness may be brought up again and the court permanently senting other phases of the question, and the yeas and nays were deprived of the power to punish this witness so long as there is a called upon them. The subject was very carefully considered. Mr. Congress in session. · Phillips offered a substitute proposing a modification of the order, and 1\fr. COX. Will the gentleman allow me a question! the substitute 'Was voted down on the yeas ~nd nays-yeas 59, nays Mr. KASSON. Not just now; allow me to finish what I have to say 123. Another amendment was offered by Mr. Hughes, modifying it on this point. Thus, while the position that I desire the House shall still further, and that was voted down by the yeas and nays-yeas 22, not take may be within the discretion of the House, I think they should nays 161. And finally the House came back to the reso1ution of Mr. not put themselves in an attitude of hostility to the courts of the land Stephens, which I have had read by the Clerk, and that resolution ~ exercising an authority that Congress, embracing this· House, has was adopted on a yea and nay vote-yeas 125, nays 67. The prece- 1mposed upon the courts. They cannot try this contumacious wit- dent, therefore, is so complete and so conclusive. that I have ventured • ness until he is bE.fore them. They cannot even get from him a plea to detain the House thus long in bringing it before them for consid- of guilty or not guilty until he is before them at the bar on a criminal eration, and asking them whether it is not more discreet for us to fol- proceeding. This difficulty is not before the House for the :first time, low that :first precedent than it is to adopt a new one in contradiction and I beg gentlemen to observe that I am now submitting to their of it. · discretion, and not as a matter of right, the action they ought to take Mr. HURLBUT. I ask the gentleman from Missouri [Mr. GLOVER] under the circumstances. I am not certain, sir, as to the right of the to allow me to offer a substitute for his resolution. House to pursue the punishment of this witness for contempt in the Mr. GLOVER. I will permit it to be read for information. face of that statute and judicial action thereon, because the statute The Clerk read as follows : seems to. have put a limitation on the power of one Ho~ of Co.rigress Resolved, That the Sergoo.nt-at-A.nn.s be directed to deliver Hallet Kilbourn. now by providing that the identical contempt shall be punished in another in his oustodyforcontempt, to the marshal of the District of Columbia.. to be brought manner and by another tribunal; and they have put a limitation on before the proper le~al tribunal fol' trial according to the course of law for a mis. the extent of punishment by fixing a maximn,m :fine and a maximum demeanor for which ne is n~ion before t~e House or co~?mittee by which he shall be examilled, shall,·m addition to the pams and penalties now tempt m d~fymg Its anthonty. If thts t;Ort of subterfuge could ue existing, be liable to indictment as and for a misdemeanor in any court of the resorted to, then indeed would this Hou ;c be 11owerless to any extent United States having juri diction thereof, and on conviction shall pav a. fine not to comp.el the attendance of any witne ··,and you would have tho exceeding ·t,OOO and not less than 100, and suffer imprisonment in the common astoundmg spectacle of the highest court, 1ike the Parliament of jail not less than one month nor more than twelve months. · · England, powerless to enforce its ow,, order, impotent to compel the SEc. 2. And be i t further enacted, That no person examined and testifyina be- fore either House of Congress or any committee of either Honse shall be hefd to attendance and obtain the testimony of witnesses. • :mswer criminally in any court of justice, or snbject to any penalty or forfeitw.'C for This question has been fully and com1.Ietely settled by the rule laid any fact or act touching which be shall. be required to testify before either House down by Cushing's Law and Practice of Legislative A semblies one of Congress or any committee of either House as to which he shall have testified, whether before or :Uter the date ?f this act, and that no statement made or paper par~grapb of which has been already cited by the gentleman from produced by any mtness before mther House of Congre s or before any committee Indiana, [Mr. NEW.] Another paragTaph, No. 950, applies to the same of either House shall be competent testimony in any criminal proceedin"' against subject. It is as follows: such witness in any court of justice; and no witness shall hereafter be allowed to refn.sc to testify to any fact or to produce any paper touching which he sliall be 950. Witnesses that have been taken into or are in custody for lisobeyina the examined by either llouse of Congress or any committoo of either House for tho ?rder of the House for.their at tendance or for keeping out of tho way or abscfoml- reason tllitt hill testimony touching such fact or the production of such paper may mg are usually comlllltted t{) Newga.te, by way of punishment for their offense ten