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

and (save and except by their participation as
members in the introduction of and assent to said
Official acts and proceedings of said House, which
these defendants did and performed as members OF
the said House of Representatives in the due dis
charge of their duties as members OF said House,
and not otherwise.
(Which are the same several supposed tres
| passes whereof the said Hallet Kilbourn hath
above in his said declaration complained against
these defendants and not other or different with
this, that these defendants do aver that the said
Hallet KilbouTn, the now plaintiff, and the said
Hallet kilbourn in the said resolutions, orders,
! and warrants respectively mentioned, was and is
one and the same person. and that at the said
eral times in this plea mentioned, and during all
| the time therein mentioned, the said Congress OF
the United States was assembled. and sitting-to
Wit, at Washington aforesaid in the county afOre
said and these defendants were and are members
OF the House of Representatives Of the Houses
of said Congress, and as such members, in said
participation i'll the action of the House above
set forth, voted in favor of said resolutions and
orders as above set forth, and saving and except
ing said participation in the action OF the House
as set forth in the body of this plea they had no
concern or connection in any manner or way with
SAID supposed treSpaSSeS complained OF against
them by the plaintiff, and this these defendants
are ready to verify"
The argument before us has assumed n very wide
range, and includes the discussion of almost every
suggestion that can well be conceived on the sub
lect. The two extremes of the controversy are the
proposition on the part of the plaintiff, that the
House of Representatives has no power whatever
TO punish for a contempt of its authority and on
the part of defendants that such power undoubt-
eddy exists, and when that body has formally ex-
ercised ii it must be presumed that il was right
fully exercised.
This latter proposition assumes the form of ex-
preston sometimes used with reference to courts
ofiusice of general jurisdiction, that having the
power to punish for contempts, the Judgment OF the
House that person is guilty of such contempt is
conclusive everywhere.
COnceding for the sake of the argument that
there are cases in which of the two bodies that
make together the Congress of the United States
may punish for CONTEMPT of its authority or dis
of Its
by the most ardent advocate of their power i'll that
respect that it is unlimited.
The power of Congress itself, when acting
through the concurrence of both branches, is a
power dependent solely on the Constitution. Such
powers rs are not found in that instrument, either
by express grant or by fair implication from what
is granted reserved tothe States respectively,
| or 10 the people" OF course neither branch of
! Congress, when acting separately, can lawfully
exercise more power than is conferred by the Con-
stltutlon on the whole body, except iii the few in
stances where authority Is conferred on either
House separately As i'll the case of impeachments.
| No general power of intlicting punishment by the
| strUnent. II contains i'll the provision that
10 person shall be deprived of life, lib
| crty, or property without due process of
law" the strongest implication against pun
| iShment by order of the legislative body.
1t has been repeatedly decided by this court, and
by others of the highest authority that this means
trial in which the rights of the party shall be de-
! cided by tribunal appointed by law, which trib
unal is to DC governed by rules of law previously
]
/ TO adjudgG ii man guilty of Il crime and lnttlct
! the punishment would be conceded by all think
| ing men to be unauthorized by anything in the
! Constitution. That instrument, however, Is not
wholly silent to the authority of the separate
| branches of Congress TO intict punishment 1t
authorizes each House to iniiict punishment on its
own members The third clause of the fifteenth
section OF the first article declares that " Each
House may determine the rules OF its proceedings,
punish its members for disorderly behavior,
and, with the concurrence OF twO-tblrds, eXpel a
member" And in the clause just preceding it is
said that they "may be authorized 10 compel the
attendance of absent members, in such manner
and under such penalties each House may pro-
vide. These provisions are equally instructive in
what they authorize and i'll what they do not au
thOrize. There is, therefore, no express power in
that instrument conferred on either House OF Con-
grcSS to punish for c0ntemptS.
The advocates of the existence of this power
have therefore resorted to an implication of its
existence founded on two principal arguments.
These are: l, its existence i'll the House Of Com
mons of England, from which country We it is
law: and, >, the necessity of such power to ena
bic the two Houses of Congress to perform the
duties and exercise the powers which the COnSti
tuition has conferred on them.
That the power 10 punish for contempt has been
exercised by the House of Commons i'll numerous
instances is well known to the general student of
history, and is authenticated by the rolls of the
Parliament. And there is NO question but that the
exercise of this power has been upheld by the
courts of Westminster Hall. Among the most nota-
BILE ofthese latter eases are the judgments Of the
Court of Kings Bench i'll the case of Brass Colby
Lord Mayor of London, 3 Wilson'S r., lSS, decided
in the year III; the of Burdctt IS. Abbott IA
EaSt's L., l. i'll lSil in which the opinion was de-
lvered by Lord Peterborough. and il the case of
the Sheriff of AIiddieseX, in II Adol.s & Ellis
r., 27S, in 1870 Opinion by Lord Pm: =. Chief
Justice.
1t is important, however, to understand om what
principle this power in the House OF CoIn;1i"IIs
rests, that we may see whether il is appicgD.,
the two Houses OF Congress- and, iii be, VIE
there are limitations TO its exercise.
While there is in the adjudged cases in the
English courts little agreement of opinion as to
the extent of this power and the liability Ofits eX
erCise 10 be inquired into by the courts there is
10 difference of opinion as 10 its origin. This
goes back to the period when the bishops, the
lords, and the knights and burgesses met in one
body, and were, when so assembled, called the
High Court of Parliament
They were not only called so, but the assembled
Parliament exercised the highest functions of ii
court of judicature, representing in that TeSpcci
the judicial authority of the King ill his Court 81
Parliament While this body enacted laws it also
rendered judgments in matters of private right
which, when approved by the King, were reco2
niZed rs valid. Upon the separation of the Lords
and Commons into two separate bodies holding
their sessions in different chambers and hence
called the House of Lords and the House of Com
mons, the judicial function of reviewing by ap-
peal the decisions of the courts of Westminster
Hail remained with the House of Lords, where it
has been exercised without dispute ever since.
To the Commons was left the power of impeach-
ment, and perhaps, others of judicial character,
and jointly they exercised, until very recent
period, the power of passing bills of attainder for
treason and other high crimes which are in their
nature punishment for crime declared judicially
by the High Court of Parliament of the Kingdom
of England.
II is upon this idea that the two Houses of Par
lament were each courts Of judicature originally,
which, though Invested by usage and by statute,
probably, of many of their judicial functions
have yet retained so much of that power en-
ableS them, like any other court, to punish for
contempt of these privileges and authority that
the power rests.
In the case Of Burdett vs. Abbott already re-
feTTeG to as sustaining this power i'll the Commons
Mr.. Justice Bailey said, i'll support of the judg
ment of the Court of Kings Bench: d" In an early
authority upon that subject, in IOrd Coke, 4 Inst,
~. il is expressly laid down that the House of
Commons has not only legislative character and
authority, but is also a court of judicature and
there are instances put there in which the power
of committing to prison for cOntempts has been eX
ercsed by the House of Commons, and this, too, in
cases of libel. If, then said he) the House be
court of iudicature, it must as is i'll degree ad-
mitted by plaintiffs counsel, have the power Of
ITSELF and without power of commitment for con-
tempts 1t could not support its dignity" In the
opinion of Lord Peterborough in the same case,
after stating that the separation OF the two Houses
of Parliament seems to have taken place as early
the forty-ninth of Henry Ill, about the time of
the battle of EYesham, he says the separation was
probably effected by formal act for that purpose
by the King and Parliament. He then adds:
The privileges which have since been enjoyed,
and the functions which have been uniformly
exercised by each branch of the Legislature,
with the knowledge and acquiescence of
the other House and of the King, must be
presumed to be privileges and functions which
them that is at the very period of separation,
statutabIy assigned to each" He then asks: " Can
the High Court of Parliament, or either OF the two
houses of which it consists, be deemed not to pos
sesS intriuscally that authority of Furnishing sum-
marily for contempts which is acknowledged to
belong, and is daily exercised as belonging to
every superior court eff law, of less dignity
doubtedly than itself?" This power is here dis
tiuctly placed on the ground of the judicial char
acter of Parliament, which is compared in that re-
and is said to be of a dignity higher than they.
In the earlier case of Colby. Lord Mayor of
London De Gray, Chief Justice, speaking of the