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


exercise is Entrusted to overstep the just bound
aries of their own department and enter upon
the domain of one of the Others, or to assume
powers not intrusted to either of them.
The House of Representatives having the ex-
elusive right to originate bills of revenue whether
by taxation or otherwise; having with the Senate
the right to declare war, and to fix the eompensa-
ton of all officers and servants of the Government,
and vote the supplies which must pay that COM
pensation, and being, also, the most numerous
body of all those engaged in the exercise of the
primary powers of the Government, is for these
reasons least of all liable to suffer entertainments
upon Its appropriate domain.
! By reason, also, of its popular origin, and the
frequency with which the short term of Office of
its members requires the renewal ftheir authority
at the hands of the peOplethe great source of all
power in this country encroachments by that
body on the domain ofco- ordinate branches of the
Government would be received with less distrust
than a similar exercise of unwarranted power in
! any other department of the Government 1t is all
the more necessary therefore, that the exercise Of
power by this body, when acting separate from
and independent ofal other depositaries of power,
should be watched with vigilance, and, when
called in question before any other tribunal hav-
ing the right to pass upon it, that II should receive
the most careful scrutiny.
In looking to the preamble and resolution
Mr. kilbourn refused to testify, We are of opinion
| that the House of Representatives not only ex
ceeded the limit of its own authority, but assumed
| q power which could only be properly exercised
by another branch of the Governments because the
power was in its nature clearly judicial.
The Constitution declares that the judicial
|
supreme Court. and in such inferior courts as the
Congress may from time to time ordain If what
we have said Of the divisions of the power of the
| Government among the three departments
be sound, this is equivalent to decla-
ration that no judicial power is vested
IN the Congress, or either branch of it, i'll the
cases specifically enumerated to which we have
referred. We do not. after what has been said,
| deem 1t necessary to discuss the proposition that
directed to make was one that was judicial in its
| character. and which could only be properly and
successfully made by a court of justice. and if it
related to matter in which relief or redress could
be had only by judicial proceeding that the
I power attempted to be exercised was one cOnfided
by the Constitution to the judicial and not to the
| legislative department of the government. We
thing it equally clear that the power asserted is
Judicial and that it is not legislative.
The preamble to the resolution recites that the
! Government of the United States is a creditor of
Jay Cooke Co, then i'll bankruptcy in the District
Court of the United States for the Eastern District
| of PENNSYLVANIA.
of any one else on whom process can be served, the
usual, the only legal mode of enforcing payment of
the debt IS by resort to court of justice Forthis
purpose among others, Congress has created courts
Of the United states, and officers have been ap-
pointed to prosecute the pleas of the Government
IN these courts.
The District Court for the Eastern District of
Pennsylvania is one of them, and, according to
the recital of the preamble, had taken juris
dlctton of the Subject-matter of Jay Cooke
Cos indebtedness to the United States.
aud had the whole subject before it for
action at the time the proceeding in Con
gresS was initiated. That this Indebtedness re-
suited, as the preamble States from the improvi-
dcnce of a Secretary of the Navy, does not change
| the nature of the suit in the court nor vary the
remedies by which the debt is to be recovered. If
indeed any purpose had been avowed to impeach
the Secretary. the whole aspect of the case would
closed. None can be inferred from this preamble
and the Characterization of the conduct of the
Secretary by the term improyident, and the alb
sence of any words implying suspicion of crimi-
| idea 0r
| tary could only be lmpeached for high crimes
and misdemeanOrs."
The preamble then refers to the "real- estate
| pool in which it is said Jay Cooke & Co. had
| large interest. something well known and I'M
| derstood, and which had been the subject of
| partial investigation by the previous Congress,
| and alleges that the trustee in bankruptcy Of Jay
Cooke Il Co. had made settlement of the interest
of Jay Cooke & Co with the associates of the firm
of Jay Cooke IL Co, to the disadvantage and loss
| of their numerous creditors, including the Gov
ernment of the United States, by reason of which
| the courts are pOwerleSS to afford adequate re-
! dress to said creditors.
| Several very pertinent inquiries suggest them
| selves as arising out of this short preamble.
| How could the House OF Representatives know
until it had been fairly tried that the courts were
powcrlcss to redress the creditors of Jay Cooke &
| Co? The matter was still pending in court, and
what right had the Congress of the United States to
Interfere with suit pending in court of compe-
! tent jurisdiction? Again, what inadequacy of
power existed in the court, Or as the preamble as
| SumeS, in all courts, to give redress which could
lawfully be supplied by investigation by a COM
mittee of one House Of Congress, or by any act or
resolution of Congress on the subject? The case
| being one OF a judicial nature, for which the
power of the courts usually afford the only remedy
| it may well be supposed that those powers
were more appropriate and more efficient in aid of
| such relief than the powers which belong to
body whose function is exclusively legislative. If
the settlement to which the preamble refers as the
principal reason why the courts are rendered pow
! erless was obtained by fraud or was without arl-
thOrity, or for any conceivable reason could be set
aside or avoided it should be done by some appro-
pirate proceeding in the court which had the
| whole matter before it, and which had all the
power in that case proper to be Entrusted to any
! body, and not by Congress or by any power to be
conferred on committee of one of the two
| Houses
The resolution adopted as sequence of this pre-
ambe contains no hint of any intention of final
action by Congress on the subject. In all the argu
Irent OF the case no suggestion has been made of
what the House of Representatives or the Congress
conld have done in the way of remedying the
wrong or securing the creditors of Jay Cooke & Co.
| or even the United States. Was it to be simply
fruitess investigation into the personal affairs of
individuals? If SO, the House of Representatives
had no power or authority in the matter more than
any other equal number of gentlemen interested
for the government of their country. By fruitless
we mean that it could resutin no valid legislation
! on the subject to which the inquiry referred.
What was this committee charged to do?
To inquire into the nature and history of the
! real estate pool. How indefntel What was the
real estate pool? Is it charged with any crime or
! offense? If so, the courts alone can punish the
| members of it. Is it charged with fraud against
! they alone can afford remedy Was it a corpor-
| alton whose powers Congress could repeal? There
! is no suggestion of the kind. The word pool, in
! the sense here used, is of modern date, and may
| not be well understood; but in this case it can
| mean no more than that certain individuals
are engaged in dealing in real estate as a COM
| modify of traffic, and the gravamen of the whole
| proceeding is that debtor Of the United States
may be found to have an interest in the pool Can
rights of the debtor, and of the creditor of the
debtor, be determined by the report of committee
| or by an act of Congress? If they cannot what
authority has the House to enter upon this inVes-
tgation into the private affairs of individuals who
| hold no office under the Government.
| The Court of Exchequer of England was origi-
naly organized solely TO entertain suits of the King
| against the debtors of the Crown. But after
while, when the other courts of Westminster Hall
! became Overcrowded with business, and it became
! desirable to open the Court of Exchequer to the
| general administration of justice, party al
! lowed to sue for any cOmlnOn-laW action i'll that
court allegation that the plaintiffwas debtor
! to the King, and the recovery in the action
would enable him to respond to the kings debt.
| After q while the court refused to allow this
allegation to be controverted, and by this fic-
ton the court came from very limited to be one
| of general jurisdiction. Such an enlargement of
! jurisdiction would not now be tolerated in Eng
land. and it is hoped not in this country of written
constitutions and laws; but it looks very like it
when, upon the allegation that the United States
is creditor of man who has an interest in some
other mans business the affairs of the latter
be subjected to the unlimited scrutiny or invest-
CATION of congressional committee.
We are of opinion, for these reasons, that the
resolution of the House of Representatives author:
izing the investigation was in excess Of the power
conferred on that body by the Constitution; that
the committee, therefore, had no lawful authority
to require Mr.. KilbOurn to testify as wit
ness beyond what he voluntarily chose to tell
that the orders and resolutions of the House and
the warrant of the Speaker, under which Mr.. Kill
bourn was imprisoned, are, in like manner void
for want of jurisdiction in that body and that his
| imprisonment was without any lawful authority.
At this point of the inquiry we are met by the
case of Anderson Dun, decided by this court in
1921, reported in Wheaton, POI, and i'll many re-
spacts analogous to the one now under considera-
ton. In that case Anderson sued Dun for false
Imprisonment and Dun justified under war
rant of the House of Representatives directed
to him as Sergeant at-Arms of that body
The warrant recited that Anderson had been
found by the House guilty of a breach