National Republican. (Washington City (D.C.)) 1872-1888, 1881-03-01


two Houses, and holds with an incontroyertible
logic that when the rights of the citizen are at
stake IN court of justice il must if these privi
leges are set up to his prejudice examine for itself
into the nature and character ofthose laws and de-
eide upon their extent and effect upon the rights of
the parties before the court While admitting as he
does in the subsequent case of the Sheriff of Mid
dlesex, in IL Adolphus & Ellis, that when person
is committed by the House of Commons for con-
tempt in regard to matter of which that house
had jurisdiction, no other court can relieve the
party from the punishment which it may lawfully
lnilct. he holds that the question of the jurisdic
ton OF the House is always open to the inquiry of
the courts in where that question is properly
presented
But perhaps the most satisfactory discussion of
this subject as applicable 10 the proposition that
the two Houses of Congress are invested with the
same power of Furnishing for contempt, and with
the same peculiar privileges, and the same power
of enforcing them, which belonged by ancient
usage to the Houses of the English Parliament, is
to be found in some recent decisions of the Priyy
Council. That body is by its constitution vested
with authority to hear and decide appeals from
the courts of the provinces and colonies of the
kingdom.
The leading case is that of Kelly vs. Carson and
others, 4 Moores Privy Council Cases Is, decided
Chancellor LyndhurSt, Lord Brougham, Lord
Denman, Lord Abinger, Lord Cottenham, Lord
Campbell, Vice Chancellor Shadwell the chief
justice of the common pleas, Mr.. Justice Erskine,
DR.. Washington, and Mr.. Baron Parke, who deliy
cred the opinion, which seems TO have received
the concurrence of all the eminent Judges named
reputation of the judges who sat in the case and
agreed to the opinion it would be difficult to find
one more entitled on that score to be received as
conclusive on the points which it decided.
The case was an appeal from the Supreme Court
of Judicature of Newfoundland. John Kent, one
of the members of the house of assembly of that
island, reported to that body that Kelly, the ap
pellant. had been guilty of a contempt of the
privileges of the house in using toward him re-
proaches, in gross and threatening language, for
observations made by Kent in the house, adding,
your privilege shall not protect you" Kelly
was brought before the house, and added to his of
Tense by hosterouS and violent language, and was
finally committed to jail under an order of the
house and the warrant of the speaker The appel
liant sued Carson, the speaker, Kent, and other
the facts above stated and relied on the authority
of the house as sufficient protection. The judg-
ment of the court of Newfoundland was for the de-
PENDANTS holding the plea good
This Judgment was supported in argument be-
fore the Privy Council on the ground that the leg
iSlatiye assembly of Newfoundland had the same
parliamentary rights and PRIVILEGES which be-
longed by usage to the Parliament Of England
and that if this were not it was necessary Incl
dent to every body exercising legislative functions
to punish for contempt of its authority. The case
its previous Judgment in the case of Beaumont VS.
Barrett. Moore p. C. Cases, 76, was much urged
in which both those propositions had been asserted
in the opinion of Baron Parke. Referring to that
case as an authority for the proposition that the
power to punish for q contempt was incident
to every legislative body, the opinion of Baron
" There is no decision of q court of justice, nor
other authority in favor of the right except that
of the case of Beaumont VS.. Barrett, decided by
the judicial committee, the members present being
Lord Brougham, Mr.. Justice BoSanquet, Mr.. Justice
Erskine, and myself Their lOrdships do not con-
slider that case as one by which they ought to be
bound in deciding the presentquestion. TheOpiniOn
Oftheir lordships, delivered by myself Immediately
after the argument was closed, though it clearly
legislative assembly, was not the only ground on
which that Judgment rested, and, therefore, was
in some degree extra judicial; and beside this, it
was stated to be founded entirely the dictum of
Lord Peterborough in Burdett vs.. Abbott, which
dictum, all think, cannot be taken as authority
for the abstract proposition that every leg
islative body has the power OF commit
his lordship with reference to the peculiar powers
of Parliament, and ought not we all think, to be
extended any further. We all. therefore, think
that the opinion expressed by myself in Beau
mont Barrett ought not to affect our decision in
the present case, and there being no other author
ity on the subject, we decide according to the
principle of the common law that the house of
assembly have not the power cOntended for. They
are local legislature, with every power reaSOna-
bly, necessary for the exercise of their functions
and duties, but they have not what they errOne-
Ously supposed themselves to poSSesS-the same
exclusive privileges which the law of England
has annexed to the House of Parlia
ment." In another part OF the opinion
the subject is thus disposed of: 1t is said how
ever, that this power belongs to the House of Com
of England; and this, it is contended affords
incident by the common law, to an assembly with
analogous functions. But the reason why the
House of Commons has this power is not because
it is representative body with legislative ftInc
tons, but by virtue of ancient usage and prescrip
ton; the ler ct cORsuesdO parliament, which forms
part of the common law of the land, and accord
ing to which the High Court of Parliament before
its division, and the House of Lords and Commons
since, are invested with many privileges, that of
punishment for contempt being one" Theopinion
also discusses at length the necessity of this
power in a legislative body for its protec-
ton, and to enable it to discharge its law
making functions, and decides against the propo-
Stion. But the case before us does not require us
to go so far, as we have cited it to show that the
powers and privileges of the House of Commons
of England on the subject of punishment for con-
tempts rests on principles which have no applica-
ton to other legislative bodies and certainly can
have none to the House of Representatives of the
United States-a body which is in no sense
court, which exercises no functions derived from
its once having been part of the highest
court of the realm, and whose functions, so far
as they partake in any degree of that character,
are limited to punlShlng ltS own members and de-
termining their election. The case however, which
we have just been considering was followed in the
same body by Fenton VS.. Hampton, II Moore's
Law Reports, Priyy Council Appeals, 1913, i'll both
of which, on appeals from other provinces of the
kingdom the doctrine of the case of Keillyys. Car
son and Others is fully reaffirmed.
We are of opinion that the right of the House of
Representatives to punish the citizen for con-
tempt of its authority or breach of its privileges
practices of the two Houses of the English Paria-
ment nor the adjudged cases in which the English
courts have upheld these practices. Nor can it be
said that taking what has fallen from the English
Judges and especially the later cases on which we
have just commented, that much aid is given to
the doctrine that this power exists as one neceS-
sary to enable either House of Congress to eXer-
else successfully their function of legislation.
This latter proposition is one which We do not
propose to decide i'll the present case, because we
are able to decide it without passing upon the ex
istencp or non existence of such power in aid of
the legislative function.
AS we have already said, the Constitution ex-
pressly empowers each House to punish its own
members for disorderly behavior. We see no
reason to doubt that this punishment may in a
proper case be imprisonment, and that it may be
for refusal to obey some rule on that subject made
by the House for the preservation of order.
So, also, the penalty which each House isauthor-
lied to inflict in order to compel the attendance
of absent members may be imprisonment and
this may be for violation of some order or stand
ing rule on that subject.
Each house is by the Constitution made the
Judge of the election and qualification of its mem
bers. In deciding on these it has an undoubted
right to examine witnesses and inspect papers,
subject to the usual rights of witnesses in such
cases; and it may be that witness would be sub
ject to like punishment at the hands of the body
engaged in trying contested election for refus-
ing 10 testify that he would if the were pend
ing before court of judicature.
The House of Representatives has the sole right
TO impeach officers of the Government, and the
Senate to try them. Where the question of such
impeachment Is before eltneF Oouy actlnS IN It's
appropriate sphere on that subject we see no rea-
son to doubt the right to compel the attendance of
witnesses, and their answer to proper questions,
in the same manner and by the use Of the same
means that courts of justice can in like cases.
Whether the power of punishment in either
House by fine or Imprisonment goes beyond this or
not, we are sure that no person can be punished
for contumacy as witness before either House
unless his testimony is required in matter into
which that House has jurisdiction to inquire, and
we feel equally sure that neither of these bodies
possesses the general power of making inquiry into
the private affairs of the citizen.
1t is believed to be one of the chief merits of the
American system of written constitutional law that
all the powers intrusted to governments, whether
dividedinto the three grand de-
paTtments of the executive, the legislative and the
judicial. That the functions appropriate to each
of these branches of Government shall be vested
in separate body Of public servants, and that the
perfection of the system requires that the lines
which separate and divide these departments
shall be broadly and clearly defined; 1t