The power of Congress to punish contempts and breaches of privilege

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A doubt has never ceased to exist in the minds of many lawyers, notwithstanding the decision in Anderson vs. Dunn, 6 Wheaton's Rep., 204, whether general power to adjudicate and inflict punishment for contempts and breaches of privilege, has been vested by the Constitution in the Senate and House of Representatives of the United States ; and expressions of this doubt have been revived as often as any noticeable instance of its exercise has attracted attention.

It has been felt that a claim of power affecting personal liberty, which is not referred to by any word in the Constitution, but is based wholly upon an implication from nect^-dty, stands upon grounds which are uncertain ; and that it has not been rendered unquestionable even by long usage. A candid inquiry into the sufficiency of these grounds seems, therefore, not to be improper, or to come too late. It is hoped that the following discussion preserves that character. And it should be added, that such an inquiry recognizes the necessity that these offenses should be punished ; it proposes nothing more than a consideration of the provisions which the Constitution has made for that purpose. It is incumbent upon any person who questions a power which assumes to be settled by authority and practice, to exhibit at the outset, as fully as possible, the argument in its behalf. Instances of its exercise showing how early they began, and the reasoning by which they have been vindicated, will therefore be now presented.

On the 28th of December, 1795, upon information given by several members in their places, of an attempt made by one Robert Randall to corrupt them, the House of Representatives directed the Speaker to issue his warrant of arrest, and on the next clay Randall was taken in custody. He was detained until the 6th of January, when the House, by a vote of seventyeight to seventeen, came to the following resolution : That it appears to this House that Robert Randall has been guilty of a contempt to and a breach of the privileges of this House, by attempting to corrupt the integrity of its members in the manner laid to his charge." And thereupon it was resolved : " That the -aid Robert Randall be brought to the bar, reprimanded by the Speaker, and committed to the custody of the Sergeant-at-Arms, until the further order of this House." Pursuant to this resolution, Randall was brought to the bar, reprimanded, and remanded to the custody of the Sergeant, by whom he was detained until the 13th of January, when he was discharged by order of the House on payment of fees.

Five years later, in March, 1800, occurred the case <>f William Duaiic. A bill had been introduced in the Senate by Ross, of Pennsylvania, prescribing the mode of deciding disputed elections of President and Vice-President, of which the principal feature was the appointment by ballot of a joint committee of both bouses, with power to decide absolutely on the validity of any objections to any of the electoral votes. In reference to this bill, Duane had charged in the Aurora, a newspaper published in Philadelphia, that it was got up by a secret caucus of Federal Senators, who controlled all the proceedings of that body, with the design to deprive Pennsylvania of her vote at the ensuing presidential election. The Senate, upon the report of a committee of privileges, to whom this publication had been referred, resolved that it contained " assertions and pretended information, respecting the Senate and their proceedings," " false, defamatory, scandalous, and malicious, tending to defame the Senate, and to bring them into contempt and disrepute, and to excite against them the hatred of the good people of the United States, and that the said publication was a high breach of the privileges of the Senate." Having appeared at the bar in obedience to a summons, Duane asked permission to be assisted by counsel, which was granted, with the limitation that they should be heard only as to such questions of fact as might arise, or in excuse or extenuation of his offense. Dallas and Thomas Cooper, to whom he applied, declined to act as counsel, since they were not to be allowed to dispute the constitutionality of the proceeding. Duane, claiming that he was deprived, under the restrictions which the Senate had seen fit to impose, of all professional assistance, declined any further voluntary attendance upon that body ; and the Senate voted that he was guilty of contempt in refusing to appear ; directing the Sergeant-at-Arms to arrest him, and to hold him in custody until further orders. Hildreth's Hist, of the U. S., Vol. 2, p. 352, 2d Series.

This proceeding of the Senate performed substantially the office of an ordinary prosecution for libel, and their formally expressed resolution had, to a remarkable degree, the ring of an indictment.

In January, 1818, another attempt to corrupt its members was brought to the attention of the House of Representatives. A member in his place informed the House that John Anderson had attempted to bribe him, with a view to influence his action on certain claims then pending there. Upon an unanimous vote the Speaker issued his warrant, Anderson was taken into custody, and was subsequently brought to their bar from time to time, as directed, until finally, on the 16th of January, the House came to the following resolution : " That John Anderson has been guilty of a contempt and a violation of the privileges of the House, and that he be brought to the bar of the House this day, and be there reprimanded by the Speaker for the outrage he has committed, and then discharged from the custody of the Sergeant-at-Arms."

( )n the 14th of April, 1832, the Speaker laid before the House of Representatives a communication from a member, stating that on the evening of the previous day he had been attacked, knocked down by a bludgeon, and severely bruised and wounded by Samuel Houston, for words spoken in his place in the House. Thereupon, the usual warrant was issued, and Houston vrafi takes in custody by the Sergeant-at-Arms. On the 1 1th of May, it was resolved by the House : " That Samuel Houston has been guilty of a contempt and violation of the privileges of this House;" and on

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the same day the House passed a further resolution : " That Samuel Houston be brought to the bar of the House on Monday next, at twelve o'clock, and be there reprimanded by the Speaker for the contempt and violation of the privileges of the House of which he has been guilty, and that he be discharged from the custody of the Sergeant-at-Arms."

In March, 1848, John Nugent was summoned to appear at the bar of the Senate as a witness ; and, having appeared, he was sworn, but refused to answer certain interrogatories then propounded to him. For this reiasal, he was adjudged to have committed a contempt against the Senate, and was ordered into the custody of the Sergeant-at-Arms, there to remain until the further order of the Senate.

In January, 1857, J. W. Simonton was summoned as a witness before a select committee of the House of Eepresentatives, appointed to investigate charges that members of that House had entered into corrupt combinations for the purpose of securing the passage of certain measures by Congress; and during the progress of the investigation, certain questions were propounded to him, which he declined to answer. The committee reported this fact to the House, the Speaker was ordered to issue his warrant, and Simontori was immediately brought in custody to the bar. After he had been heard in his own defense, the House passed the following resolution: " Whereas, J. W. Simonton having appeared at the bar of the House, according to its order, and the cause assigned for the said contempt being unsatisfactory, therefore — - Resolved, That the said J. W. Simonton be continued in close custody by the Sergeant-at-Arms, or, in his absence, by Mr. William G. Flood, during the balance of this session, or until discharged by the further order of the House, to be taken when he shall have purged the contempt on which he was arrested, by testifying before the committee."

It is unnecessary, however, to set out all of the instances of the exercise of this power. Enough have been cited to show the kind of acts to which it has been held by the two houses of Congress to extend, and the manner of its use. It is proper, next, to state the arguments by which the power has been supported.

In Duane's case, notwithstanding counsel were not allowed to discuss the constitutionality of the Senate's proceedings, it was very fully discussed by senators themselves. A brief abstract of the debate has been preserved by Mr. Jefferson (Manual, Sec. 3). He says : "In declaring the legality of this order, it was insisted, in support of it, that every man, by the law of nature, and every body of men, possesses the right of self-defense ; that all public functionaries are essentially invested with the powers of self-preservation; that they have an inherent power to do all that is necessary to keep themselves in a condition to discharge the trusts confided to them ; that whatever authorities are given, the means of carrying them into execution are given by necessary implication ; that thus rve see the British P<trliament exercising the same poiver; and every court does the same; that if we have it not> we sit at the mercy of every intruder who may enter our doors or gallery, and, by noise and tumult, render proceeding in business impracticable; that if our trar be perpetually disturbed by news-

pap ( it will not be possible to exercise

our functions wic the requisite coolness and deliberation ; and we must therefore have a power to punish those disturbers of our peace and proceedings." . The commitment of John Anderson, in 1818, was followed by an action against the Sergeant-at-Arms of the House of Representatives, for assault and battery and false imprisonment, and at last the power to punish for contempt became the subject of judicial determination. Anderson vs. Dunn, 6 Wheaton, 204. (1821.)

The defendant pleaded specially, in justification, a resolution and a warrant, which set forth, in general terms only, that the plaintiff had been guilty of a breach of the privileges, and of a contempt of the dignity and authority of the House of Representatives. The legal effect of a mode of pleading which thus omitted to state the nature of the contempt, and whether it was committed in presence of the House or elsewhere, was to set up a power to punish contempts generally; and this claim was conceded by the decision of the Court.

Mr. Justice Johnson, delivering the opinion of the Court, said: "It is certainly true, that there is no power given by the Constitution to either House to punish for contempts, except when committed by their own members. * * Such power, if it exists, must be derived from implication." He then proceeded to state the reasons of the Court for implying it.

Briefly stated, his argument was, that the power to punish this class of injuries belonged to those bodies ex necessitate, " on the principle of seif-pr ration." And he proceeded to say : " In reply to cue suggestion that, on this same foundation of necessity, might be raised a superstructure of implied powers in the executive, and every other department and even ministerial officer of the Government, it would be sufficient to observe, that neither analogy nor 'precedent would support the assertion of such powers in any other than a legislative or judicial body?'

It was conceded in this opinion that no executive officer could assume and exercise the power of punishment, "on the principle of self-preservation ; ' : and it was clearly held that a legislative assembly might assume and exercise it on that principle, because it had been determined by precedent to be "necessary" to such bodies as a means of self-preservation.

Mr. Justice Johnson's language did not, it is true, assume the form of an explicit statement of doctrine ; but the inevitable effect of his position was, that each house of our Congress was invested by the Constitution with power to use, for the purpose of self-preservation, whatever means the common laiv had determined to be necessary to that end in the case of legislative assemblies, and that the common law had determined the power to punish obstructors to be necessary to such bodies. If his language should seem to leave any uncertainty on this point, it should be remembered that Mr. Justice Story, who also sat in that case, evidently intended, in his Commentary, to give the same reasons which had prevailed in Anderson vs. Dunn; and his argument clearly supports this view of the case. He says : " Congress are required to exercise the powers of legislation and deliberation. The safety of the rights of the Nation requires this ; and yet, because* it is not expressly said that Congress shall possess the appropriate means to accomplish this end, the means are denied and the end may be defeated. * * * * We may resort to the common law to aid us in interpreting such instruments and their powers ; for that law is the common rule by which all our legislation is interpreted. It furnishes principles equally for civil and criminal justice, for public privileges and private rights. Now, by the common law, power to punish contemps of this nature belongs incidentally to courts of justice and to each house of Parliament. No man ever doubted or denied its existence as to our colonial assemblies in general, whatever may have been thought as to particular exercises of it." Story on the Con., Sees. 845, 846.

It is a very grave matter to question the legality of a practice which has continued from the earliest days of the Constitution to the present time, and the conclusiveness of the great authorities by which that practice has been supported.

If the question had related to the interpretation of particular terms in the Constitution, or to the extent of any express grant of power, early and long continued practice would, without the help of judicial decisions, have been conclusive. And if the grounds on which the power was rested by the decision referred to, had not, since that time, been re-examined by the tribunals of the country from which this doctrine has confessedly been borrowed, and been shown not to have been the basis on which it stood in England, nor to have constituted a general conclusion as to legislative assemblies, and to be therefore incapable to support the assumption of such power by any other legislative assemblies than the houses of Parliament, the question here discussed would have been regarded as closed by judicial authority. But, inasmuch as this claim of power has been based, not upon the interpretation of phrases, but upon general principles which are independent of forms of expression, and of any express grant, it is conceived that long practice is not conclusive. And inasmuch as the question which came before the English tribunal was substantially identical with the question considered in Anderson vs. Dunn, and has been differently decided, after the most deliberate reconsideration, it is hoped very sincerely that there is no disrespect to our own great tribunal in examining the argument as a question fairly open to discussion. As the result of such an examination it is proposed, in the following remarks, to show :

1st. That on general principle, the power to punish contempts cannot be implied as a power of self-protection, in the case of a legislative assembly.

2d. That the power of the House of Commons to punish for contempts does not stand upon the ground that it is necessary to a legislative assembly, as a power of self-protection ; and that its exercise by that body never established a conclusion of the common law that such a power was necessary to legislative assemblies.

3d. That if such a conclusion of the common law had existed, it would have been of no force in determining whether a similar power has, by implication, been granted to each house of our Congress.

4th. That, if such an implication might have been made on that ground, in the absence of any provision of the Constitution forbidding it, that implication has in fact been forbidden by affirmative provisions of that instrument.

We have first to consider the general principle on which the right of a party to take measures against other persons, for the purpose of self-protection, is based. The following is submitted as an analysis of that principle.

The possessor of a right, whether a private person, a functionary, or a body of functionaries, is entitled to its complete enjoyment, and is therefore entitled to have, in some way, remedies of protection adequate to secure such enjoyment. It is a principle of social organization that, primarily, the duty and power to provide remedies of protection belong to the organization itself, as sovereign over all its constituents ;. and does not belong to any of its constituents except with its consent. .

Whether such primary power has been transferred to, and may be exercised by any person or body of persons subject to the sovereignty, is simply a question of fact ; and the fact of transfer or permission may be either expressed or implied. An implication that it may be thus exercised may be made on the following grounds : In order to secure complete enjoyment of a right, there must be remedies adapted to secure it from interruption or obstruction even for a single moment ; that is to say, from being injured at all. A functionary or body of functionaries is entitled, therefore, to remedies which shall instantly put a stop to an obstruction which is occurring, or actually and directly prevent one that is threatened. For example, they are entitled to have persons who are obstructing their functions at once removed, and to have persons who menace such obstructions excluded. But, to require a functionary who is suffering an obstruction, or who is likely to be interrupted, to invoke, for this kind of protection, an external interference, would be to require him to suffer the obstruction meantime, until that interference could be brought into action ; and would therefore be to deny him an adequate remedy. Indeed, to just the extent of such enforced endurance, his right not to be injured at all would be without any remedy. Since, then, he is entitled to a remedy which shall instantly arrest or perfectly prevent the injury, and since his own hand can furnish that remedy while no other agency can, it follows that the party himself is authorized to provide and apply remedies of this kind. His right to do so is implied from two facts: .that he is entitled to an instant cessation of injury ; and that the law which established him as a functionary, cannot in any other way furnish him a remedy adequate to that end. In other words, his authority arises ex necessitate.

In illustrating this right by example, we have adduced a case in which it accrues because remedies from an external source arrive too late. It is conceded, however, that the principle is broad enough to include cases where the only remedies which the law is capable of applying by an external agency, are, in contemplation of law, inadequate for any other reason. The probability of such cases is a matter which it is not necessary to determine. We shall therefore proceed upon an assumption that the right of self-protection stands upon the ground, that the remedy to which the party is entitled cannot be furnished or applied adequately in any other way.

The principle here stated is relied upon because it is found in every civilized system of jurisprudence, and is not peculiar to the common law. In that law itself it is enunciated as a principle of universal recognition. Blackstone, in speaking of the right of self-defense, says : " It [the law] considers that the future process of law is by no means an adequate remedy for injuries accompanied by force ; since it is impossible to say to what wanton lengths of rapine or cruelty, outrages of this sort might be carried unless it were permitted a man immediately to oppose one violence with another. Self-defense, therefore, as it is justly called the primary law of nature, so it is not, neither can it be in fact, taken away by the law of society." 3 Bl. 4. And in speaking of the right of a party to abate certain kinds of nuisances, he says : " The reason why the law allows this private and summary method of doing one's self justice, is because injuries of this kind, which obstruct or annoy such things as are of daily convenience or use, require an immediate remedy, and cannot wait the slow progress of the ordinary forms of justice."

And Kent says : " The municipal law of our own country, as well as of every other country, has left with individuals the exercise of the natural right of self-defense, in all those cases in which the law is either too slow or too feeble to stay the hand of violence." 2 Kent, 15.

Since this principle is of universal authority, it must apply to functionaries under our Constitution, and must determine the extent of their power to use measures of self-protection in the discharge of their functions.

It is important, before proceeding to apply it to the matter in question, to recapitulate the elements which unite in constituting the right to do any particular act for the purpose of self-protection.

As shown by the recognized operation of the principle, they are as follows :

First, the act to be done for that purpose must operate immediately and directly upon the injury against which protection is sought $ being permitted on the very ground that it is necessary as the only means of actually saving the party from being injured at all. Secondly, it must appear that it is his inherent right that the particular act which he undertakes to do, should be clone by some agency. Thirdly, it must appear that this remedy cannot be applied adequately by any other hand than his own ; in other words, that there is a necessity, in contemplation of law, that he shall have power to apply it himself.

Assuming these to be the elements of the principle of self-protection, we have next to consider whether power to punish comes within that principle.

It is obvious, in the first place, that punishment has no direct action upon injuries, whether past or future. It does not pretend to undo the past injury on account of which it is inflicted ; it has regard only to the future, and to possible injuries. But, even as to these, it is only an abuse of words to call it a preventive, in the sense required by the principle of self- protection. Undoubtedly it is characterized in the language of social science as a preventive of wrongs ; but it is not regarded even by that science, much less by the law, as having any direct operation toward that end, or any intrinsic capacity to attain it. Its only direct operation is to give warning ; to teach a lesson ; and that lesson may, or may not, have the secondary effect of diminishing the disposition of wrong-doers to commit injuries. Self-protective remedies are permitted on the ground that they are necessary to the actual saving of the party from being injured; but the capacity, even the tendency of punishment to avert injuries, depends upon the impressionability, the imagination, the audacity, the intelligence, of the persons who are to be warned and instructed by it. It may be inflicted without even touching the result that was hoped for ; and the end proves that its office is not actual prevention. Since, then, it operates upon something else than the injury, and is only an educational instrument, calculated to achieve its purpose, not by necessary but only by probable reaction upon the inclination to injure, and thereby upon the injury itself, it cannot be deemed a remedy of self-protection from injury. The latter authorizes a party to deal with a situation, with the wrong which is upon him, or which is approaching ; all secondary methods belong to the sovereign, whether a monarch or a community.

In the next place, the principle of self-protection requires that the party should have an inherent right that the particular act which he undertakes to do, as a remedy, should be done by some agency, either public or private ; and it is not an inherent right of an injured party that any particular injury should be punished. Whether a particular kind of injury shall be subject to any punishment, and if so in what manner, is essentially a matter of polity, of public discretion ; not a matter upon which there can be a foregone conclusion of law. There are very many injuries for which every society deliberately omits to provide any punishment. We have a peculiarly appropriate illustration of this discretion, in the fact to which we shall have occasion to refer in another part of this discussion, that Congress has abolished all punishment for certain injuries which were once punished as contempts of the judicial power of the United States. On the other hand, it is observable that, for those acts which are punished in all communities, the penalties have always varied in degree and method, according to the circumstances and tempers of those communities. In a word, the immemorial and universal practice of mankind has determined that punishment waits upon the judgment and decision of the law-maker, and that it is not to be applied at all, whether by public tribunals or by the hand of the injured party, until the law-maker has prescribed the injuries for which, and the manner in which, it shall be applied. If then, the question whether a particular kind of injury shall be punished at all, is essentially a question of polity, of sovereign discretion, it is impossible that power to inflict punishment should be implied as a power of self-protection, accruing ex necessitate.

Finally, power to punish cannot be claimed as a remedy of self-protection on the ground that this remedy will be, in contemplation of law, inadequate, unless it may be applied by the hand of the injured

party.

The ground on which self-protective remedies are most commonly permitted is, that the same remedies applied by any external agency, must arrive too late ; that is, after the injury has been accomplished, or unduly protracted. It is sufficient to say that the remedy of punishment necessarily arrives after the injury has been accomplished, whether it is employed by the party or by the common tribunals. As this fact is not altered by permitting the party to exercise the power, no necessity arises that he should be substituted for the common tribunals.

This somewhat elaborate analysis of the general principle of self-protection, which is commonly stated very briefly, has been deemed important, in order to show how many considerations must be overcome by a party who claims that power to punish is, in any particular case, a power of self-protection. A complete reconsideration of a familiar principle sometimes becomes necessary, for the purpose of demonstrating how grave a matter it is to alter its boundaries.

It has been assumed, in making this analysis, that the ordinary principle of self-protection both establishes and limits that right, just as much in the cases of the separate houses of Congress, as in the cases of other functionaries of the Government ; unless the . self-protective powers of the former are distinguished, by implications of the Constitution, from those of the latter. This was substantially conceded in Anderson vs. Dunn, and the reasoning of the Court was intended to establish that distinction. We have, therefore, to consider next, whether the Constitution does imply a greater necessity and a larger extent of self-protective power in the cases of our legislative functionaries.

It had been urged by counsel, in Anderson's case, that if the principles of self-preservation conferred the power of punishment upon the House of Representatives, they conferred it equally upon the " executive, and every coordinate, and even subordinate, .branch of the government." Mr. Justice Johnson, in answer to this proposition, said : " But what is the alternative ? The argument leads to the total annihilation of the power of the House of Representatives to guard itself from contempts, and leaves it exposed to every indignity and interruption that rudeness, caprice, or even conspiracy, may meditate against it." So in Duane's case, it had been said by Senators: " If we have it not [namely, the power to punish], we sit at the mercy of every intruder who may enter our doors or gallery, and, by noise and tumult, render proceeding in business impracticable. If our tranquillity is to be perpetually disturbed by newspaper defamation, it will not be possible to exercise our functions with the requisite coolness and deliberation." And the learned Commentator on the Constitution has declared that "It is obvious that unless such a power, to some extent, exists by implication, it is utterly impossible for either House to perform its constitutional functions." Story on the Con., Sec. 845.

If it were true that, unless the power to inflict punishment may be exercised by the House itself, neither House can perform its functions, it would be difficult to resist an implication that such power is conferred by the Constitution ; for each House must perform its functions. But it is submitted that the assertions which have been quoted are simply not true. It can be shown, on the contrary, that, without assuming to themselves any such power, those bodies may be perfectly and adequately protected.