POWER OF CONGRESS OVER WITNESSES. 



either House separately, as in the case of im- 

 peachments. The Constitution grants to Con- 

 gress no general power of inflicting punishment. 

 It authorizes each House to punish its own 

 members for disorderly behavior (Article I, 

 section 15, clause 3). And in the clause pre- 

 ceding it is said that they " may be authorized 

 to compel the attendance of absent members, 

 in such manner and under such penalties as 

 each House may provide." There is, however, 

 no express power conferred on either House to 

 punish for contempt. 



The advocates of the power argued in favor 

 of its implied existence on the ground of its 

 exercise by the British House of Commons, 

 from which, it was said, we derived our system 

 of parliamentary law. The Supreme Court 

 pointed out that the House of Commons was 

 anciently clothed with judicial functions, and 

 that by virtue of this fact it still retains, like 

 any other court, the power to punish for a 

 contempt of its authority. For that reason 

 this power of the English Commons rests on 

 principles which have no application 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 a court, 

 which exercises no functions derived from its 

 once having been a 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 punishing its own members and 

 determining their election. " We are of opin- 

 ion," said the Court, "that the right of the 

 House of Representatives to punish the citizen 

 for a contempt of its authority can derive no 

 support from the precedents and practices of 

 the English Parliament, nor the adjudged cases 

 in which the English courts have upheld these 

 practices." The Court then proceeded to indi- 

 cate what powers may be exercised by Con- 

 gress, as follows : 



As we have already said, the Constitution expressly 

 empowers eacli House to punish its own members for 

 disorderly behavior. We see no reason to doubt that 

 this punishment may in a proper case be imprison- 

 ment, and that it may be for refusal to obey some rule 

 on that subject made by the House for the preserva- 

 tion of order. 



So also, the penalty which each House is authorized 

 to inflict in order to compel the attendance of absent 

 members may be imprisonment, and this may be for a 

 violation of some order or standing rule on that subject. 



Each House is by the Constitution made the judge 

 of the election and qualification of its members. In 

 deciding on these, it has an undoubted right to exam- 

 ine witnesses and inspect papers, subject to the usual 

 rights of witnesses in such cases ; and it may be that 

 a witness would be subject to like punishment at the 

 hands of the body engaged in trying a contested elec- 

 tion, for refusing to testify, that he would if the case 

 were pending before a 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 impeach- 

 ment is before either body, acting in its appropriate 

 sphere on that subject, we see no reason to doubt the 

 right to compel the attendance of witnesses, and their 

 answer to proper questions, in the same manner and 

 by use of the same means that courts of justice can in 

 like cases. 



Whether the power of punishment in either House 

 by tine or imprisonment goes beyond this or not, we 

 are sure that no person can be punished for contumacy 

 as a witness before either House, unless his testimony 

 is required in a matter into which that House has ju- 

 risdiction 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 citi- 

 zen. . . . 



In looking to the preamble and resolution under 

 which the committee acted, before which Mr. Kil- 

 bourn refused to testify, we are of opinion that the 

 House of Representatives not only exceeded the limit 

 of its own authority, but assumed a power which 

 could only be properly exercised by another branch 

 of the Government, because the power was in its na- 

 ture clearly judicial. . . . 



What was this committee charged to do ? To in- 

 quire into the nature and history of the real-estate 

 pool. How indefinite ! 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 a fraud against the Government? 

 Here, again, the courts, and they alone, can afford a 

 remedy. Was it a corporation whose powers Congress 

 could repeal ? There is no suggestion of the kind. 

 The word u pool," in the sense here used, is of mod- 

 ern date, and may not be well understood ; but, in 

 this case, it means no more than that certain indi- 

 viduals are engaged in dealing in real estate as a com- 

 modity of traffic, and the gravamen of the whole pro- 

 ceeding is that a debtor of the United States may be 

 found to have an Interest hi the pool. Can the rights 

 of the pool, or of its members, and the rights of the 

 debtor, and of the creditor of the debtor, be deter- 

 mined by the report of a committee, or by an act of 

 Congress ? If they can not, what authority has the 

 House to enter upon this investigation into the pri- 

 vate affairs of individuals who held no office under 

 the Government ? 



The Court held that Sergeant - at - Arms 

 Thompson was liable to suit for false impris- 

 onment. But the other defendants were mem- 

 bers of the House, and for that reason their 

 case raised another important question. The 

 Constitution declares that Senators and Repre- 

 sentatives "shall, in all cases, except treason, 

 felony, and breach of the peace, be privileged 

 from arrest during their attendance at the ses- 

 sion of their respective Houses, and in going to 

 and returning from the same ; and for any 

 speech or debate in either House, they shall 

 not be questioned in any other place." After 

 citing this clause, Justice Miller said : " Is 

 what the defendants did in the matter in hand 

 covered by this provision ? Is a resolution 

 offered by a member, speech, or debate, within 

 the meaning of the clause ? Does its protec- 

 tion extend to the report which they made to 

 the House of Kilbourn's delinquency ? To the 

 expression of opinion that he was in contempt 

 of the authority of the House ? To their vote 

 in favor of the resolution under which he was 

 imprisoned? If these questions be answered 

 in the affirmative, they can not be brought iu 

 question for their action in a court of justice, 

 or in any other place. And yet, if a report, 

 or a resolution, or a vote, is not speech or de- 

 bate, of what value is the constitutional pro- 

 tection? ... It would be a narrow view of 

 the constitutional provision to limit it to words 

 spoken in debate. The reason of the rule is as 

 forcible in its application to written reports 



