698 



POWER OF CONGRESS OVER WITNESSES. 



trict of New York as a Democrat, where he 

 soon gained distinction. In this first term he 

 served upon the Committees of Private Land 

 Claims, of Commerce, and of Elections. He 

 was re-elected in 1870, and served upon the 

 Judiciary Committee. He was President of the 

 Democratic State Convention in 1871, and was 

 elected delegate to the Democratic National 

 Convention in the following year. He opposed 

 the nomination of Horace Greeley in this con- 

 vention, but, as is usual, did his utmost for his 

 election when nominated. He was re-elected 

 to the Forty-third Congress, and served again 

 upon the Judiciary Committee and upon a 

 special committee on the South, appointed to 

 investigate certain election frauds in Louisiana, 

 on which Mr. Potter rendered valuable service. 

 In 1875 he reported, from the Judiciary Com- 

 mittee, a resolution with reference to the presi- 

 dency, proposing that the term of office be six 

 instead of four years, and that hoth the Presi- 

 dent and Vice-President be ineligible for re- 

 election. Mr. Potter declined a nomination to 

 the Forty-fourth Congress, but was elected to 

 the Forty -fifth, as also to the Forty-sixth. He 

 took a prominent part in the discussions rel- 

 ative to the disputed electoral votes of the 

 States of Florida and Louisiana, in the presi- 

 dential election of 1876, which question was 

 finally settled, as is well known, by the ap- 

 pointment of the Electoral Commission, which 

 decided in favor of Hayes. Toward the close 

 of the session of the Forty-sixth Congress, Mr. 

 Potter moved for the appointment of a select 

 committee to inquire into these same frauds, 

 which was done. Mr. Potter's congressional 

 life ended with this Congress, though he was 

 urged to accept a nomination to the Forty- 

 seventh. In 1 879 he received the Democratic 

 nomination for Lieutenant-Governor of New 

 York, but failed of election, though the con- 

 test was so close that it was at first supposed 

 he was elected. The following year he went 

 abroad, making quite an extended tour. Since 

 then, until the time of his death, he was en- 

 gaged in the practice of his profession. His 

 death was quite unexpected, he being taken 

 suddenly sick in court while speaking upon a 

 railroad bond case before the Court of Ap- 

 peals, at Albany. The immediate cause of 

 death was an acute attack of Bright's disease. 

 POWER OF CONGRESS OVER WIT- 

 NESSES. The important question as to the 

 power of Congress to compel witnesses who 

 are not members to testify before one of its 

 committees, and to punish for contempt in case 

 of refusal, was raised in April by the refusal of 

 Jacob R. Shipherd to disclose the names of the 

 stockholders in the Peruvian company, and to 

 answer other questions put to him by the com- 

 mittee of the House, directed to inquire into 

 the course of this Government toward Chili 

 and Peru when Mr. Elaine was Secretary of 

 State. In view of the decision rendered early 

 in 1881 by the United States Supreme Court in 

 the Kilbourn case, the committee did not un- 



dertake to compel Mr. Shipherd to testify as to 

 the facts which he declined to disclose. In 

 that case the powers of Congress over witnesses 

 were elaborately discussed by the Supreme 

 Court. It appeared that in January, 1876, the 

 House of Representatives passed a resolution 

 which, after reciting that the Government of 

 the United States was a creditor of Jay Cooke 

 & Co., then in bankruptcy, and that that firm 

 had had a large and valuable interest in "the 

 matter known as the real-estate pool " in the 

 District of Columbia, provided for the appoint- 

 ment of a special committee of five to investi- 

 gate the affairs of the u real-estate pool." Hal- 

 let Kilbourn was summoned to appear before 

 this committee, and to bring with him certain 

 records, papers, and maps relating to the sub- 

 ject-matter of the investigation. He appeared, 

 but refused to produce the hooks and papers 

 called for, and also to answer the questions 

 put to him. He was thereupon adjudged guilty 

 of contempt of the authority of the House, and 

 by order of the House was arrested and sent 

 to jail, where, in consequence of his refusal to 

 testify as required, he was kept forty -five days, 

 at the expiration of which he was released by 

 a writ of habeas corpus granted by the Chief- 

 Justice of the Supreme Court of the District of 

 Columbia. Kilbourn then brought an action 

 for false imprisonment against Speaker Kerr, 

 John G. Thompson, the Sergeant-at-Arms, who 

 had made the arrest, and the members of the 

 House who constituted the special committee. 

 Mr. Kerr died before the service of process, 

 and the action abated as to him. Thompson 

 pleaded that in making the arrest he had acted 

 as Sergeant-at-Arms of the House and by its 

 orders. The other defendants alleged that 

 they were members of the House, and main- 

 tained that the order of arrest was an exercise 

 of lawful authority. The plaintiff demurred 

 to these pleas, and the demurrer being over- 

 ruled, judgment was rendered for the defend- 

 ants. An appeal was then taken to the United 

 States Supreme Court. The issue thus joined 

 raised the question as to the powers of the 

 House over witnesses who were not members. 

 On the part of the plaintiff it was contended 

 that the House of Representatives had no 

 power whatever to punish for a contempt of 

 its authority. The defendants, on the other 

 hand, maintained that such power undoubted- 

 ly existed, and when the House had formally 

 exercised it, it was to be presumed that it had 

 heen rightfully exercised. An elaborate opin- 

 ion on the subject was delivered by Justice 

 Miller, and concurred in by all the other jus- 

 tices. 



The Court pointed out that the power of 

 Congress itself, when acting through the con- 

 currence of both branches, is a power depend- 

 ent solely on the Constitution. Neither 

 branch, when acting separately, can lawfully 

 exercise more power than is conferred by the 

 Constitution on the whole body, except in the 

 few instances where authority is conferred on 



