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


But we do not concede that the Houses of Con-
greSs possess this general power of furnishing for
contempt. The cases in which they can do this
are very limited, We have already attempted to
show. If they are proceeding in n matter beyond
their legitimate cogniZance, we of opinion
that this can be shown, and we cannot give our
assent TO the principle that by the mere act of
sertnS person to be guilty of contempt,
they thereby establish their right to fine
and imprison him beyond the power of
any court or any other tribunal what
ever to inquire into the grounds on which
the order was made. This necessarily grows out
of the nature of an authority which can only exist
i'll a limited class of cases, under special cir
cumStances; otherwise the limitation is unavail
ing and the power omnipotent. The tendency of
modern decisions everywhere is to the doctrine
that Inc jurisdiction of court or other tribunal 10
render q judgment affecting individual rights is
always open to inquiry when the Judgment is re-
lied on in any other proceeding-(See Williamson
vs.. Berry, How, 5I0 Thompson VS.. Whitman. Is
Wall, 457; Knowles vs.. The Gaslight and Coke
Company, 10 Wall, IS; Pennover vs.. Nef, 90 L. s.
The case of Anderson VS.. Dun was decided be-
fore the case of St0ekdale VS.. HanSard, and the
we have referred: twas decided as case of the
first impression in this court and undoubtedly
under pressure of the strong rulings of the Eng
Houses of Parliament. Such is not the doctrine
however, of the English courts to-day. In the
case of StOckdale vs. Hansard, 9 Ad. &
tot Commons) IS not court of law at
all in the sense in which that term can
alone be properly applied here. Neither originally
nor by appeal can it decide matter in litigation
between two parties; ii has no means of doing so:
it claims no such power; power of inquiry and
accusation it has but it decides nothing udicially
except when it is itself party, i'll cases of con-
tempt Considered merely as reSOlu-
tions or acts, have yet TO learn that this court
is 10 be restrained by the dignity or the power of
any body however exalted, from iearlessly, though
respectfully examining their reasonablencss aud
Justice when the rights of third persons in
litigation before depend upon it, Again,
ilIStra-
ton, an extreme case: the House of
Commons resolves that any one wearing dress of
particular manufacture is guilty of q breach of
privilege and orders the arrest of such persons by
the constable of the parish. An arrest is made
and action brought, to which the order of the
House is pleaded as u justification. In such case
the plaintiffs counsel would insist on the dis
tinctiOn between privilege and power, and no law
yer can seriously doubt that it exists but the argr
ment confounds them and forbids us to inquire
into any particular case, whether it ranges under
the one or the other. can find no principle which
SrlstainS this
The case of Kelly VS.. Carson and others. in /
Moore P. c. Report Ii, from which we have before
quoted so largely, held that the order of the
sembly finding the plaintiff guilty of a contempt
defense to the action for imprisonment.
And it is to be observed that the Of Anderson
VS.: Dun was cited there i'll argument
But we have found no better expression of the
true principle on this subject than the language
of Mr.. Justice Hoar in the Supreme Court of Massa
chuSetts, reported in Il Gray, Us, i'll the case of
Durham vs. MOrriSy. That case i'll which
the plaintiff was imprisoned under order OF the
house of Representatives the Massachusetts Leg
islature for refusing 10 answer certain questions
witness and to produce certain books and papers.
The opinion or statement rather, was concurredin
by all the court, including the venerable Chief
JuSticeShaW.
The House of Representatives says the court is
not the final judge OF its own power and privi-
leges in in which the rights and liberties of
the subject are concerned but the legality of its
action may be examined and determined by this
court That house is not the legislature. but only
part of il, and is therefore subject in its action
to the law in common with all other bodies,
officers. and tribunals within the commonwealth.
Especially is it competent and proper for this
court To consider whether it, proceedings are i'll
conformity with the constitution and laws
because, living under a written constitution, no
branch or department of the Governments is su-
Prcme, and it is the province and duy Of the jul
diGal department to determine in cases regularly
brought before them whether the powers Of any
branch OF the Government, and even those of the
Legislature III the enactment OF laws, nave been
exercised in conformity TO the Constitution; and
IL they have not, to treat their acts null aud
void. The House of Representatives. the power
under the Constitution to inprisOn for contempt
and the power is limited to the cases expressly pro
yided for by the Constitution. or to cases where
the poweris necessarily implied from these constitu
tiOnal functions and to the proper performance of
which it is essential"
In this statement of the law. and in the prin-
cipleS there laid down. we fully concur.
We must, therefore, hold Notwithstanding what
is said in the case of Anderson VS.. Dun that the
resolution of the House of Representatives finding
Mr.. kibourn guilty Of contempt, and the warrant
not conclusive in this case and in fact no jus
titicatiOn, because, as the whole plea shows, the
House was without authority in the matter.
1t remains TO consider the matter special to the
other defendants set out i'll their plea, which
claims the protection due to their character as
members ofthe House ofRepresentatiyes. Insup-
port of this defense they alegc that they did not
in any manner assist in the arrest of kiibOUrE or
his imprisonment nor did they order or direct the
same, except by their votes and by their participa
ton as members in the introduction of and as
sent to the official acts and proceedings of the
House, which they did and performed as members
Ofthe House in the due discharge of their duties,
and not otherwise.
As these defendants did not make the actual as
sault on the plaintiff, nor personally assist in
resting or combining him, they can only be held
guilty of the charge made against them as persons
who had ordered or directed in the matter, so as
to become responsible for the acts which they di
rected.
The general doctrine that the person who pro-
cures the arrest of another by judicial process by
nstituting and conducting the proceedings, is
liable to an action for false imprisonment, where
he acts without probable cause, is not to be
controverted. Nor can it be denied that he who
of another is responsible for the acts of the per
son to whom such order is given when the arrest
is without justification. The plea of these de-
PENDANTS shows that it was they who mi
tiated the proceedings under which plaintiff was
arrested TWAS they who reported to the House his
refusal to answerth questions which they had put
to him and to produce the books and papers which
they had demanded of him. They expressed the
opinion in that report that plaintiff guilty of
contempt of the authority of the House in so act
ing Ii is a fair inference from this plea that they
the active parties in setting on foot the pro-
ceeding by which he was adiudged guilty of
contempt, and in procuring the passage of that
resolution
If they had done this in any ordinary tribunal,
without probable cause, they would have been liza
BILE for the action which they had thus promoted
The House of Representatives is not an ordinary
tribunal. The defendants set up the protection of
the Constitution, under which they do business es
part of the Congress of the United States. That
Constitution declares that the Senators and Repre-
sentatiyes shall in all cases, except treason, fell
ony, and breach of the peace. be privileged from
arrest during their attendance at the session of
their respective Houses aud III going to and return
ing from the same; and for any speech or debate
in either House they shall not be questioned i'll any
other place
Is what the defendants did in the matter In hand
covered by this provision? Is a resolution offered
by member, speech, Or debate within the mean
the report which they made 10 the House of Kill
bourns delinquency? TO the expression of
opinion that he was in contempt of the authority
OF the House? To their vote in favor of the resolu
ton under which he was imprisoned? If these
questions be answered in the affirmative, they can
not be brought in question for their action in
court of justice in any other place. And yet, if
o report or a resolution, vote is not speech or
debate, of what value Is the constitutional protec
ton?
We may perhaps, find some aid in ascertaining
the meaning of this provision if we can find out
its source and fortunately, in this there Is no diff
Guilty. For while the trainers of the Constitution
did not adopt the Gec ct cORsuetHdO of the English
Parliament as whole, they did incorporate such
parts of it, and with it such privileges of Parlia
ment as they thought proper to be applied to the
TWO Houses of Congress Some of these we have
already referred to- as the right to make rules of
procedure, to determine the election and quaif-
cation of its members to preserve order DC. In the
sentence have just cited another part Ofthe privi
leges of Parliament are made privileges of Congress
The freedom from arrest and freedom of speech in
the two Houses of Parliament were long subjects of
contest between the Tudor and Stuart kings and
the House of Commons. When, however, the Tevo-
luton of 1888 expelled the last of the Stuars and
introduced new dynasty, many of these questions
were settled by bill of rights, formally declared
by the Parliament and aSsented to by the CROWN
Il William and Mary, statute, chapter p One
oftheSe declarations is that the freedom of speech
and debates, and proceedings i'll Parliament ought
not to be impeached or questioned in any court or
place out of Parliament"
nf Gfoal doll ri II e