National Republican. (Washington City (D.C.)) 1872-1888, 1875-01-19
THE JUDGMENT OF TIE COURT.
Phil Opinfon OF Justice Macarthur
The Jurisdiction OF the House OF
Representative Amrmed -
The RelatOF RemAnded
60 Jail.

rived, and the turtner nearing VI bAS ePPASesASH
for habeas corpus was begun.
Mr. Justice MaeArthur asked IN what order dc
counsel degire this matter 70 be argued.
Mr. Durant. I am quite willing to submit my
self to the court but believe have the right tc
The Court. AS that seems to be satisfactory
you can proceed, sir.
lean citizen is held in custody by an authority
claiming to be legal comes up 70 be considered
the mind Immediately addresses itself TO the
the Constitution or is the product Of an indePen-
dent power, vague and indeterminate. II he were
considering the matter as citizen, he would take
= differept view from that which he would take
in arguing this case as at law. But Il would De
we'll first TO consider the matter In the point o.
view Of citizen because all citizens were equal,
and the legislator, except when acting as legts-
lator was a citizen only. He quoted note from
Story on the Constitution, taken from Thomas
Jeferson's opinion in the case Of the editor, Du-
ane of the AnT0rd, who was brought before the
Senate Of the United States and held for con-
tempt, for publishing q libel. Mr.. Jefferson in
this note Insists that power in relation to con-
tempt Of House Of Congress should be confined
in the nsrroWest limits, caring for the inyioiaol
fty Of the citizen as well the inviOlabiltty OF
the member Of Congress.
He said il had been commended that 1t was the
right Of the House to determine what Tas S9p
ishment without appeal; in other WORDS, tHaS al
though the Supreme Court Of the United States
might determine law OF both Houses, approved
bvGhe President unconstitutional and void, yet
III cnuld not review the action OF one House IN
eases Of contempt an has been imDsrted
into This country above and beyond the Constitu-
tiOn He would therefore consider this Ter parhG-
1aenfi from its foundation. He proceeded to quote
Psfty's case from Lord Raymond, and Hansard's
case from Adolphus & Ellis, as showing that be-
tween the first and second decisions the right Of
The citizen had changed much in favor Of liberty.
He continued his citations, quoting the case OF
the sheriff Of Middlesex, 50 Common Law Reports,
page sc. -, ,,. !.
said that they established the existence Of
right, under the custom OF Parliament, Oy
which the House of Commons might imprtson tor
contempt. In this country the same power had
been claimed, as in the case OF Anderson VS.
Dunn, in 1871. The power was recognized oy tne
decided by that court that the House OF Repre-
seRtatives has power, drawn from some undenned
source TO imprisOn for contempt. However incon
sfstept such decision might be with the rights of
the citizen, il was the law Of this court. He did
not come to eentrOvert the power; his case was
within the rulings of the Supreme Court.
emust now, he said, revert TO principle &C
knOwIedged by every lawyer, that when there is
q difference between the common law and a
statute, the statute must prevail. (blaekstones
He Would also contend that not only did q new
statute operate to repeal an old one as to the same
sublect-matter, but also, that where anew statute
is made on the same subject, or reyises former
one it repeats all sections OF the former statute
an PGri HlGteTiG which are omitted in the revised
statute. In support Of this view he quoted num-
Now in this case the law stood in 1857 as it
stood in 1871. BY the decision OF the supreme
Court, the right Of the House to commit for con-
tempt was fully acknowledged, and Congress
took up the subject Of refusals to answer, and
passed a statute upon the subject. 1t is one OF
The most extraordinary statutes that ever was
passed by free government. 1t sweeps away all
The exceptions in favor OF the citizen. He must
divuIge secrets, he must betray confidence, he
must testify TO his own crime or ignomtny when
ever the Houses chose to question him. But this
law provides also the means Of punishment, de-
elares the refusal to answer a misdemeanOr, fixes
its punishment at fine OF 81, 900 and one year 5
Imprisonment, and that whenever such a case
occurs the Speaker Of the House shall certify the
case to the United States attorney for the Dis
trict OF Columbia, to be presented to the grand
Jury according TO the Constitution. And that
Of the House Of Representatives abundantIy
shows. The Speaker, under the order Of the
House, had transmitted the hGbeas corpus in this
case to the District Attorney, whose duty 1t was
to subject Mr.. Irwin to Indictment. Here was the
true cause. And on suggestion he would say nc
more.
FURTHER ARGUMENT USELESS.
Mr.. SheIIabarger rose to reply, but Judge Mac
Arthur signited to him that it was useless.
THE JUDGMENT OF THE COURT.
NV soIicitude in the case has been to preserve,
in IT'S full integrity and force, the trial by hGbeG,
corpus; because next to the jury trial, regard II
as enc Of the most invaluable privileges and rights
belonging to cur system Of government. have,
ouash the writ in this case. The petition upon
which the writ is founded was presented by cOun.
sci whose position at the par entities them 10 q
most respectful consideration, and could scarce
IL indulge the idea that frivolous or improVi
dent application would come from such source
and after some considerable reflection upon the
SUBJECT, concluded TO grant the writ. After the
writ OF hdbeGS corpus is allowed, the subsequent
proceedings are regulated by absolute statute
law. The officer to whom 1t is directed is required
to make return Of the writ and to bring along
with his return the body of the person in custody
before the officer who issued the writ. The rela
tor Is then secured the right by express pro
vision Of the statue Of denying the facts stated iI
that return and of introducing new facts upon thu
record that may be material in the case.
The further direction Of the law is that TIT
Judge shall then hear the case in q summary man
ner. These are all directions in the law, which
in my opinion do not rest in the discretion Of thu
court 10 execute or disregard; and which thu
officer issuing this writ has no option but TO OBJ
serve: and in all the proceedings which have takei
place up to this point l think may safely sal
that there have been no deYiatiOns from the re
Quirements OF the statute in this respect. Sine
the return came in, and since no fact in that re
mind what Il final result of this case must be-
did not feel ut liberty, however, at that par'icu
lar point in the case, TO act upon my own cOnTlc
lions, however clear they might have been, be
cause still regard 1t as the right secured by tn
law to the party to deny those facts and to intro
the remedy which he sought. And 1 therefor
say thst no Judge, in advance, has any right Il
say to any man seeking this invaluable remed!
that he shall not have It. after it has been denie
that he has such right by the other side, or by tn
ofheer holding him in custody. Now, have Lis
TO commit for contempt this morning, and tn
effect Of the statute Of 1857 upon that power.
There can be no doubt that either House o
Congress has the right Of committing for con
tempts, all cOntempts which infringe upon tn
order, the dignity or the purity of their legisla
that thoy have the power Of examination, Of in
VestigatiOn, and Of calling witnesses into thei
presence or before their committees, and Of ad
ministering oaths and putting Inquiries, and Q
Furnishing a refusal to answer. These powers {
the House are so very clearly established no'
that the learned counsel who has argued thi
morning has not impeached them, unless Cor
gress, by the enactment Of 1857, has abrogate
this almost indispensable power in Congress.
Is to be observed that the statute applies only
particular species OF contempt, and that is !
witnesses who refuse to answer questions upo
subjects Of investigation before Congress or b
TOre its committees. 1t is said that inasmuch q
Congress has created the act of q witness refu
ing to answer a misdemeauOr they have abolishe
it as to contempt l cannot 80 regard IT, II a q
statute for this as an offence does not merge tn
contempt, and does not abolish the power Of II
1t appears to me that it has not been so unde
stood from the time Of the enactment of the sta
ute; and believe this is the first time that tbs
ASPECT OF the case has ever been presented Il
judicial examination. There is nothing clearC
than that the same act may be both mtsd
EtTiEe another while the House was in session
and in its presence, It would be a contempt Of u
House and a misdemeanOr under the laws, II
answer to the proceedings in the House for col
tempt TO say that he was liable under the generl
law of the land to be punished for the misd
meapoF In the celebrated case OF Sam. HOu
ton who was brought before the bar Of the Hous
for contempt in striking a member OF Congress
for words spoken in debate, the power Of tn
House to punish him for contempt In the cas-
was disputed; but it was held to be within I'll
power Of the House upon the most solemn col
federation. And, after having been tried an
convicted and punished for contempt by III
House, he was prosecuted for misdemeanor, pro-
ably in this very court, or at all events in one
AL I'll Il hRWn dRfnnH0
action was his conviction before the House for n
contempt, aud that he could not twice be pul
iEhod for the same offence. The defence,
standing bis distinguished position, having 70
punished both for a contempt and for o mlsd
ineanOr before the two jurisdictions.
Now u has boon stated that the power Of Oh
House 10 punish for o contempt extends only
cUnhnem6ntI and that tho confinement term
mates with the session Of ConRressI aud that
the party we're found guilty OF D contempt b.
tWtnty.four hours before The period OF adiourl
m6nt that must be the nnit alton OF tho punisl
nenl Now this might be q very inadequate pr
lection 70 the House, and very inadequate pa
iGhment for party IN contempt. have no dou'
that Congress Intended that reeuIaut witneHnI
on wineries refusing 70 answer pertinent inqu
fieH upon proper subjects Of Investigation ahoul
bo punished beyond the power Of the H0uss
Yeaoh themI and that they therefore created n
sdebTe a mihdemehnoT 20 DO punished BY hne an
impTis6nmant In the courts Of lustloeI that On