[Hinds' Precedents, Volume 3]
[Chapter 53 - Punishment of Witnesses for Contempt]
[From the U.S. Government Publishing Office, www.gpo.gov]
PUNISHMENT OF WITNESSES FOR CONTEMPT.\1\
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1. Cases of Rounsaven, Whitney, and Simonton. Sections 1666-
1669.
2. Cases of Chester, Wolcott, and Williamson. Sections 1670-
1873.
3. Various cases of action by the House. Sections 1674-1683.
4. Cases of Wikff and Woolley. Sections 1684-1686.
5. Witnesses yielding on arraignment. Sections 1687-1688.
6. Cases of Stewart and Irwin and others. Sections 1689-1694.
7. Louisiana investigation of 1877. Sections 1695-1698.
8. Cases of Seward and Owenby. Sections 1699-1701.
9. Senate cases of Admire, Purcell, and others. Sections 1702-
1706.
10. Practice and procedure as to arrests and punishment.
Sections 1707-1719.
11. Witnesses in contempt before joint committees. Sections
1720,1721.
12. The Senate cases of Hyatt and others. Sections 1722-1724.
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1666. The case of Nathaniel Rounsavell, a recalcitrant witness, in
1812.
A witness having declined to answer a pertinent question before a
select committee, he was arraigned before the House, and, persisting in
contumacy, was committed.
In 1812 the opinion of the House seems to have been against
permitting counsel to a contumacious witness arraigned at the bar of
the House (footnote).
On April 6, 1812,\2\ after the closing of the doors and a secret
session, the doors were opened and the following preamble and
resolution were agreed to:
Whereas on the 3d day of April, 1812, a committee was appointed to
inquire whether there has been any, and, if any, what, violation of the
secrecy imposed by this House during the present session as to certain
of its proceedings, etc.; and it appearing to this House, by a report
made by said committee, that, in pursuance of the powers vested in
them, they had called before them Nathaniel Rounsavell for the purpose
of obtaining his testimony relative to the subject of the inquiry, and
that he has refused to answer on oath certain interrogatories pertinent
to the subject about which the committee were empowered to inquire:
Therefore,
Resolved, That the Sergeant-at-Arms be directed to bring the said
Nathaniel Rounsavell immediately to the bar of this House, to answer
such interrogatories as may be propounded to him by the Speaker, under
the direction of the House.
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\1\ Two important cases, that of Hallet Kilbourn in the House (see
sections 1608-1611 of Volume II) and Elverton R. Chapman in the Senate
(see sections 1612-1614 of Volume II), might also be included in this
chapter, but are classified rather with reference to the prerogatives
of the House.
\2\ First session Twelfth Congress, Journal, pp. 276, 277, 280;
Annals, p. 1266.
Sec. 1667
Then the House resolved that certain questions be put, the first
being ``From the conversation of what Member did you collect the
information of which you spoke in your deposition before the committee,
given on the 4th instant?''
Rounsavell then appeared at the bar of the House, in the custody of
the Sergeant-at-Arms, and the Speaker administered him an oath of
truthfulness.
Then Rounsavell refused to answer, and it was resolved that he be
committed to the custody of the Sergeant-at-Arms until further order of
the House. An attempt to interdict his communication with anyone except
the Sergeant-at-Arms during confinement failed, 62 to 22.
April 7 the Speaker laid before the House a letter from Rounsavell in
which the latter declared that he had no intention of treating the
House with disrespect or indecorum, or of violating any of its
privileges, or of appearing contumacious in the publication of any of
its secret proceedings, etc.
Then it was voted that he should be brought to the bar and
questioned. This was done and he professed his readiness to reply. But
then a resolution was adopted purging him of contempt, and declaring
that, by reason of the explanation of a Member, it was not necessary to
inquire further. The Speaker then directed the Sergeant-at-Arms to
discharge him.\1\
1667. In 1837, for refusing to obey the subpoena of a committee,
Reuben M. Whitney was arrested and tried at the bar of the House.
Discussion of the right of the House to punish for contempt, with
reference to English precedents.
In the resolution ordering the arrest and arraignment of Whitney the
House at the same time gave him permission to have counsel.
The House ordered that Whitney, under arrest for contempt, should be
furnished with a copy of the report as to his alleged contempt before
arraignment.
On January 17, 1837,\2\ the House agreed to this resolution:
Resolved, That so much of the President's message as relates to the
``conduct of the various Executive Departments, the ability and
integrity with which they have been conducted, the vigilant and
faithful discharge of the public business in all of them, and the
causes of complaint, from any quarter, at the manner in which they have
fulfilled the objects of their creation,'' be referred to a select
committee, to consist of nine members, with power to send for persons
and papers, and with instructions to inquire into the condition of the
various Executive Departments, the ability and integrity with which
they have been conducted, into the manner in which the public business
has been discharged in all of them, and into all causes of complaint
from any quarter at the manner in which said departments, or their
bureaus or offices, or any of their officers or agents of every
description whatever, directly or indirectly connected with them in any
manner, officially or unofficially, in duties pertaining to the public
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\1\ The Annals show that Rounsavell was an editor of the Alexandria
Herald, who gave the information to be published in the Georgetown
paper called the Spirit of Seventy-six. The information concerned
proceedings on the embargo, which went on behind closed doors, and
which was published before the injunction of secrecy was removed. The
debate on the case of Rounsavell occupied two days in the House. There
was doubt of the power of the House to compel the witness to answer,
one Member saying that parliamentary history furnished them but one
precedent, that of Wilkes. On the other hand, it was urged that as the
House had the power to inquire it must have the power to make that
inquiry effectual. The question of allowing the prisoner counsel came
up, but it was replied that he was a witness, not a prisoner.
\2\ Second session Twenty-fourth Congress, Journal, p. 232.
Sec. 1668
interest, have fulfilled or failed to accomplish the objects of their
creation, or have violated their duties, or have injured and impaired
the public service and interest; and that said committee, in its
inquiries, may refer to such periods of time as to them may seem
expedient and proper.
The following were appointed as the committee: Messrs. Henry A.
Wise,\1\ of Virginia; Dutee J. Pearce, of Rhode Island; Henry A.
Muhlenberg, of Pennsylvania; Robert B. Campbell, of South Carolina;
Edward A. Hannegan, of Indiana; Gorham Parks, of Maine; Levi Lincoln,
of Massachusetts; Abijah Mann, jr., of New York, and John Chaney, of
Ohio.
On February 9,\2\ Mr. Wise made a report, in pursuance of the
following proceeding of the select committee, which he handed in at the
Clerk's table:
Reuben M. Whitney, who has been summoned as a witness before this
committee, having, by letter,\3\ informed the committee of his
peremptory refusal to attend, it becomes the duty of the committee to
make the House acquainted with the fact: Therefore,
Resolved, That the chairman be directed to report the letter of
Reuben M. Whitney to the House, that such order may be taken as the
dignity and character of the House require.
On the succeeding day this report was discussed and various
propositions were made--to arrest Whitney for contempt, to summon him
to appear and show cause why an attachment should not issue against him
for contempt, and to cause the committee to report to the House certain
circumstances occurring in the committee room during an examination of
Whitney on a preceding day. The letter of Whitney was apparently read
to the House, but does not appear in the Journal. There was a question
as to the right of the House to punish for contempt in such a case, and
elaborate arguments were made to show that the precedents of the
English parliament could not be followed so far by a house of powers
limited by a written constitution.
Finally, the House, by a vote of 99 yeas to 86 nays, agreed to the
following:
Resolved, That whereas the select committee of this House, acting by
authority of the House under a resolution of the 17th of January last,
has reported that Reuben M. Whitney has peremptorily refused to give
evidence in obedience to a summons duly issued by said committee, and
has addressed to the committee the letter reported by said committee to
the House: Therefore,
Resolved, That the Speaker of this House issue his warrant, directed
to the Sergeant-at-Arms, to take into custody the person of Reuben M.
Whitney, that he may be brought to the bar of the House to answer for
an alleged contempt of this House; and that he be allowed counsel on
that occasion should he desire it.
1668. The case of Reuben M. Whitney, continued.
In the Whitney case the validity of the subpoena, signed only by the
chairman of a committee, was challenged, but sustained.
The respondent retired while the House deliberated on the mode of
procedure in a case of contempt.
A person on trial at the bar of the House for contempt was given
permission to examine witnesses.
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\1\ Mr. Wise belonged to the minority party, and was made chairman
according to the old usage, because he moved the resolution.
\2\ Journal, pp. 367-372; Debates, pp. 1685-1707.
\3\ For this letter see House Report No. 194, Second session Twenty-
fourth Congress, journal of the committee, p. 83. Mr. Whitney declares
that he had been insulted and menaced, and declined to appear until his
wrongs should be redressed and his safety assured.
Sec. 1668
In a trial at the bar of the House both questions to witnesses and
their answers were reduced to writing and appear in the Journal.
In a trial at the bar of the House for contempt a committee was
appointed to examine witnesses for the House.
Rule adopted in the Whitney case for disposing of objections to
questions proposed to witnesses.
When a case is on trial at the bar of the House, Members are examined
in their places.
In the Whitney case a proposition to examine the respondent was ruled
out of order while witnesses were being examined.
On February 11 \1\ the Speaker announced to the House that the
Sergeant-at-Arms had made return of the service of the warrant against
Reuben M. Whitney, and that the said Whitney was in custody.
This announcement was made during proceedings on another matter, at
the conclusion of which Mr. John Calhoon, of Kentucky, offered this
resolution, which was agreed to:
Resolved, That Reuben M. Whitney, now in custody of the Sergeant-at-
Arms, be brought to the bar of this House to answer for an alleged
contempt of the House in peremptorily refusing to appear and give
evidence as a witness, on a summons duly issued by a select committee
acting by the authority of this House, under a resolution of the 17th
of January last, and in the matter of a letter, expressing said
refusal, addressed by the said Reuben M. Whitney to the committee, and
by the committee referred to the House; and that he be forthwith
furnished with a copy of the report of said committee, and of the
letter aforesaid.
On the succeeding day the Speaker announced to the House that Reuben
M. Whitney was in the custody of the Sergeant-at-Arms, without the bar,
awaiting the further order of the House in the premises; and that he
had been furnished by the Clerk with the copies of papers, as directed
by the order of the 11th instant.
Whereupon, on motion of Mr. John M. Patton, of Virginia, it was
Ordered, That Reuben M. Whitney be brought to the bar of the House.
Reuben M. Whitney was then brought to the bar of the House by the
Sergeant-at-Arms, when the Speaker addressed him as follows:
Reuben M. Whitney: You have been brought before this House, by its
order, to answer the charge of an alleged contempt of this House, in
having peremptorily refused to give evidence in obedience to a summons
duly issued by a committee of this House; which committee had, by an
order of the House, power to send for persons and papers.
Before you are called upon to answer, in any manner, to the subject-
matter of this charge, it is my duty, as the presiding officer of this
House, to inform you that, by an order of the House, you will be
allowed counsel should you desire it. If you have any request to make
in relation to this subject, your request will now be received and
considered by the House. If, however, you are now ready to proceed in
the investigation of the charge, you will state it; and the House will
take order accordingly.
To which the said Reuben M. Whitney answered as follows:
The undersigned answers that his refusal to attend the committee,
upon the summons of its chairman, was not intended, or believed by him,
to be disrespectful to the honorable the House of Representatives; nor
does he now believe that he thereby committed a contempt of the House.
His reasons for refusing to attend the committee are truly stated in
his letter to that committee.
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\1\ Journal, pp. 378-382; Debates, pp. 1735-1754.
Sec. 1668
He did not consider himself bound to obey a summons issued by the
chairman of the committee.
He had attended, in obedience to such a summons, before another
committee, voluntarily and without objection to the validity of the
process; and would have attended in the same way before the present
committee but for the belief that he might thereby be exposed to insult
and violence.
He denies, therefore, that he has committed a contempt of the House;
because,
First. The process upon him was illegal, and he was not bound to obey
it; and,
Secondly. Because he could not attend without exposing himself
thereby to outrage and violence.
If the House shall decide in favor of the authority of the process,
and that the respondent is bound to obey it, then he respectfully asks,
in such case, that, in consideration of the peculiar circumstances in
which he is placed, as known to the House, the committee may be
instructed to receive testimony upon interrogatories to be answered, on
oath, before a magistrate, as has been done in other instances in
relation to other witnesses; or that the committee be instructed to
prohibit the use or introduction of secret and deadly weapons in the
committee room during the examination of the witnesses.
And, in case he shall think it necessary, he prays to be heard by
counsel, and to be allowed to offer testimony on the matter herein
submitted.
R. M. Whitney.
The House was proceeding to consider the method of procedure when Mr.
John M. Patton, of Virginia, made the point of order that the
respondent ought to retire during the deliberations.
The Speaker \1\ said that such had been the uniform course in former
cases, and, believing it to be the sense of the House, he would direct
the Sergeant-at-Arms to take Reuben M. Whitney from the bar, which was
done.
Propositions were then made for the appointment of a committee of
privileges to report a mode of procedure, and also that the respondent
be discharged. Finally, under the operation of the previous question,
the House agreed to the following resolution proposed by Mr. Samuel J.
Gholson, of Mississippi:
Resolved, That Reuben M. Whitney be now permitted to examine
witnesses before this House in relation to his alleged contempt, and
that a committee of five be appointed to examine such witnesses on the
part of this House; that the questions put shall be reduced to writing
before the same are proposed to the witness, and the answers shall also
be reduced to writing. Every question put by a Member, not of the
committee, shall be reduced to writing by such Member, and be
propounded to the witness by the Speaker, if not objected to; but, if
any question shall be objected to, or any testimony offered shall be
objected to by any Member, the Member so objecting, and the accused or
his counsel, shall be heard thereon; after which the question shall be
decided without further debate. If parol evidence is offered, the
witness shall be sworn by the Speaker and be examined at the bar,
unless they are Members of the House, in which case they may be
examined in their places.
The following committee was then appointed: Messrs. Gholson, of
Mississippi; Levi Lincoln, of Massachusetts; Francis Thomas, of
Maryland; Benjamin Hardin, of Kentucky, and George W. Owens, of
Georgia.
Reuben M. Whitney was then again placed at the bar and the resolution
adopted by the House was read to him; and, being asked by the Speaker
if he was ready to proceed in the trial of the case, he answered:
I am not ready to proceed at this time, and ask to be indulged until
Wednesday next to make preparation. I herewith hand in a list of names
of sundry persons, and respectfully request that they be summoned to
attend as witnesses in the trial of the case.
This list, which appears in the Journal, contains the names of four
Members of the House and two citizens.
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\1\ James K. Polk, of Tennessee, Speaker.
Sec. 1668
It was then
Ordered, That further proceedings in this trial be postponed until
Wednesday next; and that Reuben M. Whitney be furnished with a copy of
the resolution adopted by the House this day.
It was also
Ordered, That subpoenas issue for the witnesses named by Reuben M.
Whitney, with directions to attend on Wednesday, the 15th of February
instant.
On February 15, 1837,\1\ the Sergeant-at-Arms was directed to place
Reuben M. Whitney at the bar of the House; whereupon Reuben M. Whitney
was placed at the bar of the House, accompanied by Walter Jones and
Francis S. Key, as his counsel.
The Speaker addressed him as follows:
Reuben M. Whitney: You stand charged before this House with an
alleged contempt of the House, in having peremptorily refused to give
evidence in obedience to a summons duly issued by a committee of this
House, which committee had, by an order of the House, power to send for
persons and papers.
You will say whether you are now ready to proceed to trial, in the
mode prescribed by the order of the House, of which you have been
informed, or whether you have any request to make of the House before
you are put upon your trial; if you have, it will now be received and
considered by the House.
To which the said Reuben M. Whitney answered as follows: ``I am ready
to proceed to trial.''
A motion was then made by Mr. George N. Briggs, of Massachusetts, in
the words following:
Whereas, by the Eleventh rule of this House, all acts, addresses, and
joint resolutions shall be signed by the Speaker; and all writs,
warrants, and subpoenas, issued by order of the House, shall be under
his hand and seal, attested by the Clerk; \2\
And whereas, the subpoena by virtue of which Reuben M. Whitney, now
in the custody of the Sergeant-at-Arms of the House, by order of the
House, for an alleged contempt, for refusing to appear and give
testimony before one of the select committees of the House, was not
under the hand and seal of the Speaker, attested by the Clerk, but
signed by the chairman of the said select committee; therefore,
Resolved, That the refusal of Reuben M. Whitney to appear before said
committee was not a contempt of this House.
Resolved, That said Whitney be forthwith discharged from the custody
of this House.
In the course of debate on this resolution Mr. Abijah Mann, jr., of
New York, said that this question had been raised in several other
cases, notably in the committee sent to Philadelphia to investigate the
affairs of the Bank of the United States. In the latter case the
committee were called upon to issue the highest process in its power;
and the question was then raised and mooted, with a former Speaker or
with the present, he was not certain which, whether the process issued
by that committee, under the powers given them to send for persons and
papers, should be signed by the Speaker of the House and attested by
the Clerk. The committee decided, and in that decision, if he was not
mistaken, the incumbent of the chair coincided, that the summons the
committee were authorized to issue, by the power to send for persons
and papers, need only be signed by the chairman of that committee. When
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\1\ Second session Twenty-fourth Congress, Journal, pp. 407-417;
Debates, pp. 1760-1773.
\2\ For the forms of this rule at different periods, see sections 251
of Volume I and 1313 of Volume 11 of this work.
Sec. 1668
the House issued an order or warrant in a particular case, under this
rule, the Speaker must issue the summons under his hand and seal, and
it must be attested by the Clerk; but when the power was granted to a
committee to send for persons and papers in a particular case, a
summons signed by the chairman of the committee was sufficient.
The motion of Mr. Briggs was ordered to lie on the table by a vote of
157 yeas to 33 nays.
The House having voted to proceed, those witnesses who were Members
of the House were called and sworn. Mr. John Fairfield, of Maine, was
first examined. To the first question, addressed by the accused to the
witness, Mr. John Calhoon, of Kentucky, objected, and was heard in
support of his objection. The counsel of the accused was also heard in
support of the interrogatory.
The Speaker was about to put the question, ``Shall the interrogatory
be propounded to the witness?'' when Mr. John Bell, of Tennessee, asked
the sense of the House to be taken whether, under the order of the
House, the Member objecting to a question has not the right to reply to
the counsel of the accused.
And the question being put to the House, ``Shall a Member who objects
to a question have the right to reply to the counsel of the accused?''
And it passed in the negative--yeas 94, nays 103.
Then the question was put, ``Shall the interrogatory be put to the
witness?'' and it passed in the affirmative--yeas 131, nays 52.
While the witness was framing his answer Mr. John Chambers, of
Kentucky, offered the following resolution:
Resolved, That the further examination of witnesses in the case of
Reuben M. Whitney be suspended until he be examined on oath, touching
the contempt of this House alleged against him; and that the committee
appointed to examine witnesses in his case proceed to examine him
accordingly.
The Speaker decided that, at this stage of the proceeding, the
resolution was not in order.
Mr. Chambers having appealed, the appeal was laid on the table--yeas
104, nays, 66.
Mr. Fairfield then answered, and was questioned by the committee and
by various Members.
Then, on motion of Mr. Thomas, it was
Ordered, That further proceedings in the case of R. M. Whitney be
postponed until 12 o'clock to-morrow; and that the Clerk of the House
furnish to the three other witnesses, Members of this House, who are
sworn, copies of all the questions that have been propounded to the
witness just examined, that they may be prepared to answer them in
writing to-morrow.
The examination of witnesses was continued until February 20,\1\ the
record of questions and answers appearing in the Journal. From the
examination it appeared that there had been personal difficulty between
the respondent and Messrs. Peyton and Wise of the investigating
committee, and that there had occurred in the committee room a
difference which had seemed likely at one time to result in the use of
weapons. The idea that the witness had been deterred by fear from
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\1\ Journal, p. 489; Debates, p. 1879.
Sec. 1669
responding to the subpoena of the committee was broached. Finally Mr.
Amos Lane, of Indiana, offered this resolution:
Resolved, That it is inexpedient to prosecute further the inquiry
into the alleged contempt of R. M. Whitney against the authority of
this House; and that the said Whitney be now discharged from custody.
This resolution was agreed to, yeas 99, nays 72.
And the said Reuben M. Whitney was discharged accordingly.
1669. James W. Simonton, a witness before a House committee, was
arrested and arraigned at the bar for declining to answer a material
question.
In the absence of the Sergeant-at-Arms his deputy, by special
resolution of the House, was empowered to serve a warrant.
Form of arraignment of a recalcitrant witness at the bar of the
House.
A witness arraigned at the bar of the House for contempt was
permitted to answer orally.
A recalcitrant witness, having remained obdurate when arraigned at
the bar, was committed to custody.
Form of resolution authorizing investigation of published statements
that Members had entered into corrupt combinations in relation to
legislation.
Instance wherein a newspaper correspondent was expelled from the
House for an offense connected with pending legislation.
On January 9, 1857,\1\ the House agreed to the following:
Whereas certain statements have been published charging that Members
of this House have entered into corrupt combinations for the purpose of
passing and of preventing the passage of certain measures now pending
before Congress; and whereas a Member of this House has stated that the
article referred to ``is not wanting in truth:'' Therefore,
Resolved, That a committee, consisting of five Members, be appointed
by the Speaker, with power to send for persons and papers, to
investigate said charges; and that said committee report the evidence
taken, and what action, in their judgment, is necessary on the part of
the House, without any unnecessary delay.
On January 21,\2\ Mr. James L. Orr, of South Carolina, from this
committee, made the following report:
That during the progress of their investigation they have summoned as
a witness J. W. Simonton, the correspondent of the New York Times; that
among others, the following question was propounded to him: ``You state
that certain Members have approached you, and have desired to know if
they could not, through you, procure money for their votes on certain
bills; will you state who these Members were?''
And the said Simonton made thereto the following response: ``I can
not, without a violation of confidence, than which I would rather
suffer anything.''
In response to other questions of similar import, he said: ``Two have
made them direct; others have indicated to me a desire to talk with me
upon these subjects, and I have warded it off, not giving them an
opportunity to make an explicit proposition.''
To the question, ``What do I understand you to mean when you say
these communications were made direct?''
Simonton replied. ``I mean that, after having obtained my promise of
secrecy in regard to them, they have said to me that certain measures
pending before Congress ought to pay; that parties interested
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\1\ Third session Thirty-fourth Congress. Journal, p. 201; Globe, pp.
274-277.
\2\ Journal, pp. 269-271; Globe, p. 403.
Sec. 1669
in them had the means to pay; that they individually needed money, and
desired me specifically to arrange the matter in such way that if the
measures passed they should receive pecuniary compensation.''
The committee were impressed with the materiality of the testimony
withheld by the witness, as it embraced the letter and spirit of the
inquiry directed by the House to be made, but were anxious to avoid any
controversy with the witness. They consequently waived the
interrogatory that day to give the witness time for reflection on the
consequences of his refusal, and to give him an opportunity to look
into the law and practice of the House in such cases, notifying him
that he would, on some subsequent day, be recalled. This was the 15th
of January instant. On Tuesday, the 20th instant, the said J. W.
Simonton was recalled, and the identical question first referred to was
again propounded, after due notice to him that if he declined the
committee would feel constrained to report his declination to the House
and ask that body to enforce all its powers in the premises to compel a
full and complete response. To that interrogatory he made the following
reply, and we give it in full, that no injustice may be done to
Simonton in this report. He said:
``Before stating the determination to which I have come on this
subject I desire to say that I do not here dispute the power of the
committee and I have not heretofore declined to answer the question
upon any such ground. I have all respect for the committee and the
House. I do not decline in order to screen the Members; my declination
was based upon my convictions of duty. Since I was last before the
committee, in deference to their judgment and wishes I have examined
the case of Anderson v. Dunn, to which they referred me, and have
considered very fully what I ought to do, in view of that decision as
well as in view of other considerations. The result of my deliberations
upon the subject has been to confirm me in the opinion that, whatever
penalty I may suffer, I can not answer that question. I beg the
committee to understand that I have no other motive whatever in
declining but the simple one that I have stated before--that I do not
see how I can answer it without a dishonorable breach of confidence.
The answer to the question can by no possibility be supposed to reflect
discredit upon myself, and I presume that my statement of that motive
is corroborated by the facts as they appear before the committee. I
must insist upon declining to answer that question.''
The House will preceive that the foregoing statement shows the
materiality of the testimony, and the duty of the committee to insist
upon its disclosure. It shows the settled and deliberate purpose of the
witness to withhold such testimony rightfully and properly demanded,
and the absolute necessity for the House to interpose, with promptitude
and firmness, its authority, if it intended to expose and punish
corruption which may exist among its Members by ordering the
investigation your committee have been pursuing, etc.
The committee consider it unnecessary to enter into an elaborate
argument to establish the power of the House in this case. The summons
issued under the hand of the Speaker, and was tested by the Clerk of
the House; and the contumacy of the witness is a contempt of that
authority. If there is doubt whether this authorizes the arrest of the
party in contempt, and his confinement until the contempt is purged,
besides the right to inflict other punishment afterwards, it seems to
your committee that none will question the authority of the House when
they recur to the statute book. By an act passed May 3, 1798 (1 U. S.
Statutes, 554), authority is given to the President of the Senate, the
Speaker of the House of Representatives, a Chairman of the Committee of
the Whole, or a chairman of a select committee of either House, to
administer oaths to witnesses in any case under their examination, and
willful, absolute, and false swearing before either is declared perjury
and is punishable as such. Here is express authority to swear
witnesses; and false swearing is punishable as perjury. Is it, then, no
contempt of the authority of this House (and the committee are acting
as and for the House in this investigation) for a witness to refuse to
testify to material facts within his knowledge?
The committee concur unanimously in the opinion that the House is
clothed with ample power to order the party into custody, there to
remain until released by the same authority or upon the expiration of
the present Congress. The committee recommend the adoption of the
following resolution:
``Resolved, That the Speaker issue his warrant, directed to the
Sergeant-at-Arms, commanding him (the said Sergeant-at-Arms) to take
into custody the body of the said James W. Simonton, wherever to be
found, and the same forthwith to have before the said House,'' at the
bar thereof, to answer as for a contempt of the authority of this
House--accompanied by a bill (H. R. 757) more effectually to enforce
the attendance of witnesses on the summons of either House of Congress
and to compel them to discover testimony.\1\
-----------------------------------------------------------------------
\1\ This bill became the act of January 24, 1857 (Stat. L., Vol. II
p. 155).
Sec. 1669
The resolution ordering the arrest of Simonton was agreed to, yeas
164, nays 16.
A warrant pursuant to the said resolution was accordingly prepared,
signed by the Speaker, under the seal of the House, attested by the
clerk, and delivered to William G. Flood, clerk of the Sergeant-at-
Arms, the latter being absent.
Subsequently, on motion of Mr. Orr, the House agreed to the
following:
Resolved, That in the absence of A. J. Glosbrenner, Sergeant-at-Arms,
on the business of the House, it is ordered that William G. Flood,
clerk of the Sergeant-at-Arms, be authorized and directed to execute
the orders of the House, directed to the Sergeant-at-Arms, during the
absence of the said Sergeant-at-Arms.
Soon after William G. Flood appeared at the bar of the House and
reported that he had executed the warrant of the Speaker, and that he
had the body of J. W. Simonton at the bar of the House.
Thereupon a question arose as to the proper mode of procedure. Mr.
Henry Winter Davis, of Maryland, proposed this resolution:
Resolved, That the Speaker do read to the person in custody the
proceedings of the House touching the alleged contempt of the prisoner,
and do call on him to show cause why he should not be committed for his
refusal to answer the questions propounded to him by the select
committee, and that he have leave to be heard now, or to-morrow at 1
o'clock, and that he have the aid of counsel if he desires it, and that
in the mean time he remain in the custody of the Sergeant-at-Arms.
This resolution was criticised on the ground that it opened again the
question of the witness's contempt, which was ascertained and was the
justification of the arrest. Finally the House agreed to the following
substitute resolution, presented by Mr. Robert P. Trippe, of Georgia,
and, modified in accordance with suggestions from Mr. Orr:
Resolved, That the Speaker do forthwith inform J. W. Simonton of the
charge upon which he has been arrested, and propound to him the
question: Are you ready to show cause why you should not be further
proceeded against for the said alleged contempt, and do you desire to
be heard in person or by counsel, now or at what time?
The said J. W. Simonton was thereupon arraigned, when the Speaker
addressed him as follows:
James W. Simonton: You have been arrested by the order of the House,
and now stand at its bar charged with an alleged contempt of its
authority in refusing to answer questions propounded to you by the
select committee appointed to make investigations in relation to
certain charges made against the honor and character of the House. The
report of the committee, upon which the arrest has been made, will be
read to you.
The said report having been read, the Speaker resumed:
The resolution which has been read to you has been adopted by the
House, and in virtue thereof you have been arrested and now stand at
the bar chax-ged with the offense named. In obedience to the
instructions of the House, I now put to you the following
interrogatories: ``Are you ready to show cause why you should not be
further proceeded against for the said alleged contempt, and do you
desire to be heard in person or by counsel, now or at what time?''
In response to the address of the Speaker, the witness at the bar
signified his desire to answer orally. The Speaker thereupon propounded
the question: Shall he have leave to answer orally?
Thereupon a discussion arose, Mr. Hunphrey Marshall, of Kentucky,
insisting that the witness should purge himself of contempt in writing
and under oath; but the House decided the question in the affirmative.
Sec. 1670
Mr. Simonton thereupon addressed the House at some length, concluding
with the request that he might be heard further hereafter by counsel.
The House then considered the disposition of the respondent, several
propositions being made--to confine him in the common jail, to expel
him from his reporters' seat on the floor, etc.; but finally the
following was agreed to, yeas 136, nays 23:
J. W. Simonton having appeared at the bar of the House, according to
its order, and the cause assigned for the said contempt being
insufficient: Therefore,
Resolved, That the said J. W. Simonton be continued in close custody
by the Sergeant-at-Arms, or, in his absence, by Mr. William G. Flood,
during the balance of this session, or until discharged by the further
order of the House, to be taken when he shall have purged the contempt
upon which he was arrested, by testifying before said committee.
On February 2 \1\ Mr. Kelsey, claiming the floor on a question of
privilege, offered this resolution, which was agreed to without debate:
Resolved, That the Sergeant-at-Arms of this House be, and he is
hereby, instructed to bring James W. Simonton, now in his custody by
order of the House, before the select committee appointed on the 9th
ultimo, to answer, on the summons of the Speaker, such questions as may
be propounded to him touching the subject-matter of said investigation
by said committee.
On February 9 \2\ Mr. Kelsey, from the select committee, reported
that J. W. Simonton had again been summoned before the committee, and
his answers to the questions propounded to him were such as to render
unnecessary any further examination. Under these circumstances they did
not desire that he be detained longer in custody, and therefore
recommended the adoption of the following:
Resolved, That James W. Simonton, now in custody of the Sergeant-at-
Arms of this House, be discharged.
This resolution was agreed to.
On February 28, on report of the committee, Simonton was expelled
from his seat as a reporter on the floor.
1670. In 1857 the House arrested and arraigned at its bar Joseph L.
Chester, a contumacious witness.
A contumacious witness arraigned at the bar of the House was required
to answer in writing and under oath.
A contumacious witness having given a respectful and sufficient
answer at the bar of the House was ordered to be discharged.
On January 16, 1857,\3\ Mr. William H. Kelsey, of New York, as a
question of privilege, from the Select Committee on Certain Alleged
Corrupt Combinations,\4\ reported the following preamble and
resolution:
Whereas Joseph L. Chester has been duly summoned to appear and
testify before a committee of this House, appointed, in pursuance of a
resolution passed on the 9th instant, to investigate certain charges of
corrupt combinations of Members of this House for the purpose of
passing and of preventing the passage of certain measures during the
present Congress; and whereas the said Joseph L. Chester has neglected
to appear before said committee pursuant to said summons; therefore,
-----------------------------------------------------------------------
\1\ Journal, p. 338; Globe, p. 538.
\2\ Journal, p. 384; Globe, p. 630.
\3\ Third session Thirty-fourth Congress, Journal, p. 241; Globe, p.
356.
\4\ See preceding section for authorization of this committee.
Sec. 1670
Resolved, That the Speaker issue his warrant, directed to the
Sergeant-at-Arms, commanding him, the said Sergeant-at-Arms, to take
into custody the body of the said Joseph L, Chester, wherever to be
found, and the same forthwith to have before the said House, at the bar
thereof, to answer as for a contempt of the authority of this House.
It being objected that the House had no power to arrest the man, it
was replied by Mr. James L. Orr, of South Carolina, that the language
of the resolution was exactly that used for the arrest of the man who
offered a bribe to Mr. Lewis Williams in 1818,\2\ a case in which the
Supreme Court had sustained the right of the House.
The resolution was then agreed to and a warrant was issued
accordingly.
On January 24 \2\ the Sergeant-at-Arms appeared at the bar of the
House and reported that, in pursuance of the warrant of the Speaker of
the 16th instant, he had arrested Joseph L. Chester, and had him then
at the bar of the House.
Mr. Kelsey submitted the following resolution, which was agreed to
under the operation of the previous question:
Resolved, That the Speaker propound to Joseph L. Chester the
following questions, viz:
What excuse have you for not appearing before the select committee of
this House pursuant to the summons served on you on the 14th instant?
Are you ready to appear before said committee and answer to such
proper questions as shall be put to you by said committee?
Mr. John Letcher, of Virginia, moved that the respondent be required
to answer in writing and under oath. After debate as to the practice in
analogous cases in the States, the motion was agreed to. The said
Chester was conducted from the bar by the Sergeant-at-Arms.
On January 26 the Sergeant-at-Arms appeared at the bar and announced
that Joseph L. Chester, heretofore arrested under the warrant of the
Speaker, was now ready to answer the questions which the House had
directed should be propounded to him.
The said Chester was arraigned thereupon and the following questions
put to him by the Speaker:
(Here follow the two questions as above.)
Thereupon the said Chester handed to the Clerk, as his answer to the
said interrogatories, a paper which was read, and appears in the
journal of the House. This answer appears with the fact that it was
sworn to and subscribed, duly certified by a justice of the peace. It
is as follows:
To the Honorable Speaker of the House of Representatives of the United
States:
To the first interrogatory propounded to me under the resolution of
the House of the 24th instant, I respectfully answer that in departing
from this city the day after having been subpoenaed to appear before
the committee, I neither entertained nor intended any disrespect
whatever to the committee or to the House; but having made arrangements
before the service of the subpoena to leave for my home in Philadelphia
on private business of emergency, after having been absent for a period
of six weeks, I could not, without great detriment to my own affairs
postpone my visit. I had every reason to believe that the committee
would yet be in session some days, and, not having read the subpoena
carefully, nor observed the clause requiring me not to depart without
leave; and presuming that my appearance before the committee on Monday
morning at farthest would be in sufficient time for their purpose, I
left, announcing to Russell Frisbie, jr., with whom I board, my
intention to return the next night,
-----------------------------------------------------------------------
\1\ See section 1607 of volume II of this work.
\2\ Third session Thirty-fourth Congress, Journal, pp. 291, 292, 302,
303; Globe, pp. 458, 475, 476.
Sec. 1671
if possible, so as to be before the committee even on Saturday. Indeed,
I did not imagine, under the exigencies of my own private affairs, that
it was absolutely necessary that I should appear before the committee
on the exact day; and, had not the recent storm intervened, I should
have been of my own accord before the committee on Wednesday last,
without the services of the Sergeant-at-Arms. That officer I am sure
will bear me witness that I evinced no disposition, either by habeas
corpus or otherwise, to evade the arrest or a return to Washington. So
occupied was I with my business at home that I did not even read or
hear of the proceedings of the House in my case until late on Saturday,
the 17th, when I went quietly to my home and there remained with my
family awaiting the arrival of your officer. From all which I trust
that your honorable body will attribute to me no disrespect nor
disposition to avoid its mandate.
To the second interrogatory, I answer that I am entirely ready and
willing so to appear and answer.
Joseph L. Chester.
And then it was
Ordered, That inasmuch as the answers of Joseph L. Chester are
respectful and sufficient he be discharged from custody.
1671. In 1858 the House imprisoned John W. Wolcott for contempt in
refusing as a witness to answer a question which he contended was
inquisitorial, but which the House held to be pertinent.
A committee, in reporting the contumacy of a witness, included a
transcript of the testimony, so as to show in what the contempt
consisted.
A witness contumacious before a committee is not given a second
opportunity in the committee before the House orders his arrest for
contempt.
Form of warrant and return in case of arrest of a witness for
contumacy.
Form of arraignment adopted in the Wolcott case.
In the Wolcott case the respondent, when arraigned, presented two
answers, each in writing, sworn and subscribed, one of which appears in
the Journal, while the other does not.
In the Wolcott case the House provided that the resolution ordering
him to be taken into custody should be a sufficient warrant.
On January 15, 1858,\1\ the House had agreed to the following
resolution:
Resolved, That a committee of five Members be appointed to
investigate the charges preferred against the Members and officers of
the last Congress growing out of the disbursements of any sum of money
by Lawrence, Stone & Co., of Boston, or other persons, and report the
facts and evidence to the House, with such recommendations as they may
deem proper, with authority to send for persons and papers.
The committee was, on January 18, constituted as follows: Messrs.
Benjamin Stanton, of Ohio; Sydenham Moore, of Alabama; John C. Kunkel,
of Pennsylvania; Augustus R. Wright, of Georgia, and William F.
Russell, of New York.
On February 11\2\ they made a report of the contumacy of John W.
Wolcott, of Boston, Mass., bringing to the attention of the House the
following testimony:
Q. Had you any funds placed in your hands, belonging to any of the
manufacturers in Massachusetts, for the purpose of influencing Members
of Congress upon the passage of the tariff act?--A. I had not.
-----------------------------------------------------------------------
\1\ First session Thirty-fifth Congress, Journal, pp. 178, 185.
\2\ Journal, p. 371; Globe, pp. 684-692.
Sec. 1671
Q. Were you ever authorized by any of them to make any promises of
future benefits, in the event of the passage of that act?--A. I was
not.
Q. Did you, after the close of the last session of Congress, receive
from the manufacturers, either in Boston or elsewhere, any funds,
money, negotiable securities, or anything of that sort, to be used in
that way?--A. No, sir.
Q. Did you, at any time during the months of March or April, 1857,
receive from Mr. Stone any negotiable securities, or money, or credits
of any kind?--A. Never. Never for any such purpose as that, either
directly or indirectly.
Q. Did you receive at any time in the early part of March a
considerable sum of securities for any purpose?--A. Never for any
purpose connected with the tariff, either to be paid to Members of
Congress, for the purpose of influencing their action, or to be paid to
their agents.
Q. Nor for their benefit?--A. Nor for their benefit, either directly
or indirectly.
Q. Nor in satisfaction of previous arrangements or promises?--A. Nor
in satisfaction of previous arrangements or promises.
Q. Did you receive any securities at any time during the month of
March last to the amount of $30,000 at one time?--A. Not for any
purpose of that sort.
Q. Did you ever for any purpose?--A. Well, that would be a matter of
strictly private business; I did not for the purpose of influencing
Members of Congress or their agents.
The committee report that thereupon the witness asked and was granted
time to consult counsel in regard to his obligation to answer the last
question. On March 11 he again appeared and peremptorily refused to
answer, as follows:
Q. Did you receive from the firm of Lawrence, Stone & Co. some time
in March last a sum of securities or money of the amount of $30,000,
more or less?--A. I did not, in March last nor at any other time,
receive from Lawrence, Stone & Co. any money or securities of any
amount for the purpose of influencing, or to be used in influencing,
directly or indirectly, the action or vote of any Member or officer of
the present or last Congress upon the tariff or any other act or
measure considered by Congress, or before it, or contemplated to be
before it; nor did I ever pay or promise to pay, directly or
indirectly, any money or pecuniary consideration to any officer or
Member of any Congress for his vote or services in the passage of, or
to influence his action in relation to, the tariff or any other law;
nor did I ever give any money or securities to any person for the
purpose of being paid to any officer or Member of Congress for his vote
or influence, directly or indirectly, upon any act under the
consideration of Congress; nor have I any knowledge that any such act
or thing was done by any other person.
I am advised by my counsel, Messrs. Reverdy Johnson and James M.
Keith, whose opinion I have obtained since the present question was
propounded to me, that the above answer is a full answer to everything
which such a question may involve, falling under the jurisdiction of
the House of Representatives, touching the inquiry which the committee
axe constituted, and could only be constituted, to investigate. And,
acting under the same legal advice, I most respectfully submit that the
question in its present form is not of itself ``pertinent'' to the only
inquiry which the House, in this instance, has a legal right to
institute.
If, acting under such a power, a committee of the House can compel a
witness to answer such a question as this except by saying that he did
not use at all, directly or indirectly, any money, coming from any
quarter, to influence, directly or indirectly, the action or vote of
any Member of Congress, and that he has never paid any money to any one
for such a purpose, and has no knowledge that any money was used for
that purpose, or any other illegal purpose, regarding Congress or any
of its officers, I respectfully submit that it gives to the committee
or the House the right to inquire into my private business and social
relations, which, except so far as they may tend to prove the alleged
improper influencing of Members of Congress in some official duty, is
as much beyond the jurisdiction of the House, and, of course, of the
committee, as it would be beyond their power to investigate the private
business and social relations of any other citizen, without such a
charge or implication of corruption, or attempt to corrupt Congress or
any of its Members, having been made.
The committee in the report then go on to say that as they have
evidence that the firm of Lawrence, Stone & Co. paid to Wolcott, early
in March, 1857, the sum of $58,000 in two payments, one of $33,000 and
the other of $25,000, which
Sec. 1671
constituted a part of a charge of $87,000, which appeared on the books
of the firm to have been expended in procuring the passage of the
tariff of 1857, they believe it to be very material and important to
the elucidation of the matter referred to them to know from Mr. Wolcott
whether he admits the receipt of any such sum; and if so, how it was
expended.
The committee thereupon recommend the adoption of this resolution:
Resolved, That the Speaker be, and he is hereby, authorized and
required to issue his warrant to the Sergeant-at-Arms of this House,
commanding him to arrest the said John W. Wolcott wheresoever he may be
found, and have his body at the bar of the House forthwith to answer as
for contempt in refusing to answer a proper and competent question
propounded to him by a select committee of the House, in pursuance of
the authority conferred by the House upon said committee.
This resolution was debated at length in respect to the sufficiency
of the witness's answers; and also the House considered whether the
fact of the contumacy should not be certified to the district attorney
in accordance with the provisions of the statute recently enacted; also
whether the witness was actually in contempt until the House had passed
upon the questions propounded by the committee and given the witness a
second opportunity to answer.
An amendment proposed by Mr. Daniel E. Sickles, of New York, proposed
that the witness be again subpoenaed before the committee and that the
interrogatory be again propounded to him, and then, if the answer
should not be given freely and fully, the Speaker should issue his
warrant for the arrest of the witness and that he should be brought
before the bar of the House to show cause why he should not be punished
for contempt. This amendment was disagreed to.
The original resolution as reported from the committee was agreed to,
after a consideration of the answers of the witness and the powers of
the House.
On February 12,\1\ the Sergeant-at-Arms appeared at the bar of the
House and reported that, in obedience to the warrant of the Speaker of
the 11th instant, he had arrested John W. Wolcott, and now produced the
said Wolcott in person to answer the same. This return seems to have
been made in writing and to have been reported to the House by the
Speaker:
In obedience to the written warrant, I arrested the within-named John
W. Wolcott at his lodgings in this city (at Willard's Hotel) this 11th
day of February, 1858.
And now, February 12, 1858, I produce the within-named John W.
Wolcott in person at the bar of the House of Representatives to answer
as within ordered.
A. J. Glossbrennen,
Sergeant-at-Arms, Howe of Representatives, United States.
The warrant of the Speaker was as follows:
To A. J. Glossbrenner, Sergeant-at-Arms of the House of
Representatives:
You are hereby commanded to arrest John W. Wolcott, wheresoever he
may be found, and have his body at the bar of the House forthwith to
answer as for a contempt in refusing to answer a proper and competent
question propounded to him by a select committee of the House of
Representatives, in pursuance of the authority cord erred by the House
upon said committee.
Witness my hand and the seal of the House of Representatives of the
United States at the city of Washington this 11th day of February,
1858.
[l. s.]
James L. Orr, Speaker.
Attest:
J. C. Allen, Clerk.
-----------------------------------------------------------------------
\1\ Journal, pp. 373, 374; Globe, p. 690.
Sec. 1672
Mr. Stanton submitted, as in accordance with the established practice
of the House, the following resolution:
Resolved, That John W. Wolcott be now arraigned at the bar of the
House and that the Speaker propound to him the following
interrogatories:
``What excuse have you for refusing to answer the question propounded
to you by the select committee of this House, before whom you were
summoned to appear, as to whether you had received any sum of money
from Lawrence, Stone & Co. some time in March, 1857?
``Are you now ready to answer that and all other questions that may
be propounded to you by that committee?''
And that the said John W. Wolcott be required to answer the same in
writing and under oath.
This resolution was agreed to without division, and thereupon the
said Wolcott was arraigned and the interrogatories directed by the
foregoing resolution were propounded to him by the Speaker.
The said Wolcott then submitted a paper in writing, subscribed and
sworn to before the Speaker. This paper, which appears in full in the
Journal, disclaims all intention of contempt of the House and asks
until Monday, with the assistance of counsel, to purge himself of the
alleged contempt.
After some debate, the following was agreed to:
Resolved, That J. W. Wolcott have until Monday next, at 1 o'clock p.
m., to file his answers to the interrogatories propounded to him, and
that in the meantime he remain in the custody of the Sergeant-at-Arms,
with the privilege of seeing counsel.
On February 15,\1\ the Sergeant-at-Arms appeared at the bar of the
House with J. W. Wolcott, who submitted a paper in writing, under oath,
in answer to the interrogatories heretofore propounded to him. This
paper does not appear in the Journal of the House. It is a lengthy
argument to show that the committee had no right to ask any question
except such as related to the subject committed to them by the House by
the resolution authorizing the committee. But the last question was not
within the power of the House to authorize. It was not a pertinent
question to the inquiry and it invaded the private affairs of a
citizen. The decision of the Supreme Court in the case of Anderson v.
Dunn was reviewed briefly, as well as the act of January 24, 1857, and
the conclusion is reached that the committee had no authority to ask
any but questions pertinent to the inquiry. And the refusal to answer
an inquiry which was made without authority or was impertinent was not
contempt. The respondent called attention to the fact that he had
answered fully all the antecedent questions relating to the use of
money to influence improperly the House. But the last inquiry, in his
view, concerned his private business, which, he claimed, the House had
no power to inquire into.
1672. The case of John W. Wolcott, continued.
A resolution relating to the discharge of a person in custody for
contempt, is a matter of privilege.
Although the House imprisoned Wolcott for contempt, the Speaker also
certified the case to the district attorney, in pursuance of law.
The Journal did not record the Speaker's act in certifying the
Wolcott case to the district attorney.
-----------------------------------------------------------------------
\1\ Journal, p. 386; Globe, p. 711.
Sec. 1672
A witness imprisoned by the House for contempt was indicted under the
law, whereupon the House ordered his delivery to the officers of the
court.
The answer of the witness having been read, Mr. Stanton offered the
following:
Whereas John W. Wolcott has failed satisfactorily to answer the
questions propounded to him by order of this House and has not purged
himself of the contempt with which he stands charged: Therefore be it
Resolved, That the said John W. Wolcott be committed by the Sergeant-
at-Arms to the common jail of the District of Columbia, to be kept in
close custody until he shall signify his willingness to answer the
questions propounded to him by the select committee of this House, and
all other legal and proper questions that may be propounded to him by
said committee; and for the commitment and detention of the said John
W. Wolcott this resolution shall be a sufficient warrant.
Resolved, That whenever the officer having the said John W. Wolcott
in custody shall be informed by said Wolcott that he is ready and
willing to answer the questions heretofore propounded, and all proper
and legal questions that may hereafter be propounded to him by said
committee, it shall be the duty of such officer to deliver the said
John W. Wolcott over to the Sergeant-at-arms of this House, whose duty
it shall be to take the said Wolcott immediately before the committee
before whom he was summoned to appear for examination and to hold him
in custody, subject to the further order of the House.
After debate, and after the House had refused, yeas 34, nays 158, to
lay the resolutions on the table, they were agreed to, yeas 133, nays
55.
On March 22,\1\ Mr. Alexander H. Stephens, of Georgia, offered the
following resolution, with a preamble, as a question of privilege:
Whereas on the 15th day of February last, this House, by its
resolution, did commit John W. Wolcott to the common jail of the
District of Columbia for an infringement of the privileges of the House
in refusing satisfactorily to answer certain questions put to him by
order of the House, and is still held in custody under said order; and
whereas afterwards, in pursuance with the provisions of law, the
Speaker of the House did certify to the district attorney of the
District of Columbia the facts pertaining to said case,\2\ and the same
were laid before the grand jury of said District, and a presentment was
thereupon found against said Wolcott for the same offense; and whereas
the court in which said presentment is pending have determined that
said Wolcott can not be tried on said presentment so long as this House
hold him in custody under its rights of privilege: Therefore,
Resolved, That the Sergeant-at-Arms is hereby authorized and directed
to cause said Wolcott to be released from jail and to deliver him over
to the marshal of said District of Columbia, or other person authorized
to receive him, to answer to the presentment pending in said court.
Mr. John Letcher, of Virginia, made the point of order that this
resolution might not be presented as a question of privilege.
The Speaker \3\ said:
The witness is under execution of the sentence of the House. The
order of the House has not been executed. It is being executed. The
witness is in prison because of his breach of the privilege of the
House, inasmuch as he was adjudged to be guilty of a contempt of the
House in refusing to answer a proper and pertinent question propounded
to him by one of the committees of the House. The matter came before
the House as a question of privilege. He was imprisoned by virtue of
the order of the House arising out of that question of privilege; and
the Chair is of opinion that the resolution presented, under the
circumstances, involves a question of privilege.
Debate arose as to whether it would be advisable to release the
prisoner unconditionally or merely to suspend the execution of the
order of the House for the con-
-----------------------------------------------------------------------
\1\ Journal, p. 535; Globe, p. 1239.
\2\ The Journal does not appear to have any reference to this
certification.
\3\ James L. Orr, of South Carolina, Speaker.
Sec. 1673
venience of the court, but the latter proposition was disagreed to.
Also the House, by a vote of 22 yeas to 161 nays, disagreed to a
proposition to discharge the prisoner unconditionally.
The resolution of Mr. Stephens was then agreed to, yeas, 125; nays,
67. The preamble was also agreed to.\1\
1673. In 1858 the House arrested and arraigned J. D. Williamson for
contempt in declining to respond to a subpoena.
Form of subpoena and return used in the case of Williamson.
The Sergeant-at-Arms indorses on a subpoena his authorization of his
deputy to act in his stead.
The Sergeant-at-Arms, having arrested Williamson by order of the
House, made his return verbally.
Form of arraignment adopted in the case of Williamson.
A witness arraigned for contempt, having in his answer questioned the
power of the House, was permitted to file an amended answer, which was
printed in full in the Journal.
On February 1, 1858,\2\ Mr. Benjamin Stanton, of Ohio, from the
select committee appointed to investigate certain alleged corruption in
connection with recent tariff legislation, reported the following
preamble and resolution:
Whereas J. D. Williamson, of the city of New York, was, on the 27th
day of January, A. D., 1858, duly summoned to appear and testify before
a committee of this House, appointed to investigate certain charges
growing out of the alleged expenditure of money by Lawrence, Stone &
Co., of Boston, in the State of Massachusetts, to influence the passage
of the tariff of 1857, and has failed and refused to appear before said
committee pursuant to said summons: Therefore
Resolved, That the Speaker issue his warrant directed to the
Sergeant-at-Arms, commanding him to take into his custody the body of
the said J. D. Williamson wherever to be found, and to have the same
forthwith before the bar of this House to answer as for a contempt of
the authority of this House.
Mr. Stanton also reported for the information of the House the
subpoena and the returns thereon, and the answer of Mr. Williamson to
the officer of the House. The subpoena was as follows:
By the authority of the House of Representatives of the Congress of
the United States of America.
To A. J. Glossbrenner, Sergeant-at-Arms:
You are hereby commanded to summon Captain J. D. Williamson (of the
firm of Williamson, O'Reilly & Co., Trinity buildings, New York,) to be
and appear before the select committee of the House of Representatives
of the United States, appointed to investigate the charges preferred
against Members and officers of the last Congress growing out of the
disbursement of any sum of money by Lawrence, Stone & Co,, of Boston,
or other persons, to bring with him any papers in his possession
connected with or referring to the expenditure of money to procure the
passage of the law modifying the tariff, forthwith in their chamber at
their Capitol in the city of Washington, then there to testify touching
the matter of inquiry committed to said committee; and he is not to
depart without the leave of said committee.
James L. Orr, Speaker.
Attest:
J. C. Allen, Clerk.
-----------------------------------------------------------------------
\1\ Wolcott was admitted to bail in the court, and on March 17, 1859,
a nolle prosequi was entered by the United States District Attorney on
the payment of $1,000 and costs by the surety of Wolcott.--Senate
Miscellaneous Document No. 278, second session Fifty-third Congress, p.
275.
\2\ First session Thirty-fifth Congress, Journal, pp. 258, 285, 296,
305: Globe, pp. 505, 553, 581, 595.
Sec. 1673
Indorsed as follows:
Washington, January 26, 1858.
I hereby depute J. W. Jones for me and in my stead to execute the
within order of the Speaker.
A. J. Glossbrenner,
Sergeant-at-Arms, House of Representatives, United States.
I hereby certify that I served a copy of the within summons upon J.
D. Williamson, at the city of New York, on the 27th day of January,
1858, by delivering said copy to him personally, and I know the person
served to be the person named in said summons.
J. W. Jones.
The following letter was also read:
My Dear Sir: I most respectfully decline attending before the
committee of the House of Representatives at Washington, in relation to
the affairs of Lawrence, Stone & Co., according to a copy of a summons
I received from you in our office on the 27th instant, for reasons
which my attorney advises me are sufficient to prevent me from leaving
the city of New York.
J. D. Williamson.
A. J. Glossbrenner, Sergeant-at-Arms, etc.
These documents having been read, the House agreed to the preamble
and resolution without debate.
On February 3, 1858, the Sergeant-at-Arms appeared at the bar of the
House, and announced that he had executed the warrant of the Speaker,
issued on the 1st instant, for the arrest of J. D. Williamson, and
that, in pursuance thereof, he had the body of said Williamson now at
the bar of the House.
Mr. John Letcher, of Virginia, having asked if the return of the
Sergeant-at-Arms was in writing, the Speaker \1\ said that the
announcement that the witness was in custody was made verbally by the
officer, in accordance with the order of the House.
Mr. Stanton thereupon stated that the members of the committee had
approved a course similar to that pursued in the case of Chester in the
preceding Congress, and offered the following:
Resolved, That J. D. Williamson, esq., of the city of New York, now
in custody of the Sergeant-at-Arms on an attachment for contempt in
refusing obedience to the summons requiring him to appear and testify
before a committee of this House, be now arraigned at the bar of the
House, and that the Speaker propound to him the following
interrogatories:
``1. What excuse have you for not appearing before the select
committee of this House, in pursuance of the summons served on you on
the 27th ultimo?
``2. Are you now ready to appear before said committee and answer
such proper questions as shall be put to you by said committee?''
and that the said J. D. Williamson be required to answer said questions
in writing and under oath.
Then, on motion of Mr. Stanton,
Ordered, That J. D. Williamson be remanded to the custody of the
Sergeant-at-Arms, and that he have until 1 o'clock p.m. tomorrow to
make answer to the questions directed to be propounded to him by the
foregoing resolution.
On February 4, in accordance with the order, the Sergeant-at-Arms
appeared at the bar with the respondent and announced that the latter
was ready to answer the questions propounded to him.
The said Williamson was thereupon arraigned, and the interrogatories
were propounded to him as directed by the House.
-----------------------------------------------------------------------
\1\ James L. Orr, of South Carolina, Speaker.
Sec. 1674
Thereupon the said Williamson handed in the answers in writing and
under oath. The answers do not appear in the Journal. To the first
question he responded:
I was under the authority of the sheriff of the city and county of
New York, not to leave the city without his consent, and was so advised
by him and my counsel, with whom I consulted on the subject; also that
it always was my opinion, and is still, that neither the House of
Representatives nor the Senate has any legal right or authority to
compel me to come before them or their committees to divulge the
private transaction of my business which I see fit to transact in a
perfectly lawful manner, and which if divulged would destroy all the
business of my office, by which I am dependent on to support my family,
as no person would intrust their confidential business to a firm who,
to suit the different political parties that spring into power every
year, would call the firm before them to expose their most confidential
and private affairs, which concern only themselves, and which the
Constitution of our common country gives to every man who does not
violate any of the laws of the land, which I solemnly swear I have
never done or violated up to this day.
The respondent further states that he had at one time the intention
of testing the right of the House in this respect in the courts.
To the second interrogatory he responds that he will answer any
proper questions that do not require him to violate his oath or promise
or affect his integrity.
A discussion arose as to the proper course, in view of the question
of privilege which the respondent had raised as to the authority of the
House. The law prescribing method of procedure in the case of
contumacious witnesses was examined and considered in relation to the
powers which the House had formerly exercised.
Mr. Stanton proposed that the witness be remanded until the
succeeding day, when the question could be further considered, but
after discussion the House adopted the following substitute proposed by
Mr. Alexander H. Stephens, of Georgia:
Resolved, That J. D. Williamson have leave, by his request, to
withdraw his answers, and to submit amended answers, such amended
answers to be submitted tomorrow at 1 o'clock p.m.; and, in the mean
time, that said Williamson remain in the custody of the Sergeant-at-
Arms.
On February 5 J. D. Williamson appeared at the bar of the House and
submitted his amended answer, which appears in full in the Journal. The
respondent explains that when the subpoena was served he was under
heavy bonds, and that he was advised that they would be forfeited if he
left New York voluntarily, but that the bail would not be forfeited if
his attendance was compelled. He acted on this advice, not knowing that
he was thereby in contempt of the House. He states that he is ready to
go before the committee and answer ``such proper questions'' as should
be put by the committee. This answer is in writing and signed and sworn
to.
The answer having been read, on motion of Mr. Stanton it was
Ordered, That the said Williamson be discharged from the custody of
the Sergeant-at-Arms.
1674. A person who had failed to respond to a summons was arrested
and arraigned; and his excuse being satisfactory, the House ordered
that he be discharged when he should have testified.
The written and sworn answer of a witness arraigned for neglecting a
summons did not appear in the Journal.
Sec. 1676
On May 6, 1858, the House directed the Speaker to issue his warrant
for the arrest of Robert W. Latham, who had failed to respond to a
summons to appear and testify before the select committee appointed to
investigate the sale of property at Willets Point, Long Island, N. Y.
On May 15 the Sergeant-at-Arms appeared at the bar of the House with
the said Latham, announcing that the latter had ``appeared voluntarily,
this morning, at his office, and avowed himself ready to answer.'' The
Speaker thereupon asked the said Latham what excuse he had to offer,
and the latter submitted a written answer. This answer, which does not
appear in the Journal, shows that the witness had not intended to
refuse to obey the summons, but had left town under a misapprehension.
The House agreed to a resolution ordering his discharge when he should
have appeared before the select committee and given his testimony. In
this case the Sergeant-at-Arms appears, from the Globe account, to have
made the return on the warrant in writing.\1\
1675. On February 15, 1859,\2\ Mr. George Taylor, of New York, as a
question of privilege, from the select committee on the accounts of the
late Superintendent of Public Printing, presented a preamble and
resolution in the form usual at this time, for the arrest of John
Cassin, who had refused to appear before the committee as a witness.
The resolution was agreed to, and on February 17th the Sergeant-at-Arms
presented the said Cassin at the bar of the House. The House thereupon
adopted a resolution similar to that adopted in the case of Wolcott,
requiring the respondent to answer in writing and under oath, giving
his excuse for not appearing, and stating whether or not he would now
appear and answer. The respondent presented his answers, which do not
appear in the Journal, and they being satisfactory, the House ordered
his discharge.
1676. Persons in contempt for declining to testify or obey a subpoena
have frequently given their testimony and been discharged without
arraignment before the House.--On February 21, 1859,\3\ the House, in
the usual form, ordered the arrest of Harry Connelly, who had refused
to testify before the committee appointed to examine the accounts of
the late superintendent of public printing. On February 22 Mr. John
Covode, of Pennsylvania, from the same committee, as a question of
privilege, stated that Mr. Connelly, when he learned of the action of
the House, had presented himself before the committee to testify. The
committee, however, thought it proper that he should give himself up to
the Sergeant-at-Arms, who was executing the order of the House. This
had been done, and now Mr. Covode proposed an order that the said Harry
Connelly be discharged from the custody of the Sergeant-at-Arms. This
order was agreed to; so the said Connelly was discharged without being
arraigned before the House.
1677. On January 20, 1862,\4\ Mr. William S. Holman, of Indiana, from
the select committee appointed to investigate Government contracts,
presented the following resolution, which was agreed to:
Resolved, That the Sergeant-at-Arms be directed to bring before the
bar of this House Benjamin Higdon, of Cincinnati, Ohio, to answer to an
alleged contempt of its authority in refusing to obey a subpoena to
appear before the special committee for the investigation of Government
contracts.
-----------------------------------------------------------------------
\1\ First session Thirty-fifth Congress, Journal, pp. 750, 821;
Globe, pp. 2002, 2164.
\2\ Second session Thirty-fifth Congress, Journal, pp. 411, 430;
Globe, pp. 1039, 1090.
\3\ Second session Thirty-fifth Congress, Journal, pp. 451, 463;
Globe, pp. 1193, 1238.
\4\ Second session Thirty-seventh Congress, Journal, pp. 210, 336;
Globe, pp. 400, 909.
Sec. 1678
On February 20 Mr. Holman presented in the House a report of the
Sergeant-at-Arms in which he states that Mr. Higdon was arrested on
February 4 at Cincinnati, but that before the arrest and after the
issuing of the attachment he had gone before the committee and been
permitted to testify on condition that he would pay the expenses of the
Government growing out of the attachment. Mr. Higdon had paid this sum
and was in Cincinnati in legal custody. Before going to the expense of
bringing him to Washington it was desirable that the House should take
action.
Thereupon it was
Ordered, That Benjamin Higdon be released from the service of the
Speaker's warrant heretofore issued by the order of the House for his
arrest.
1678. On January 14, 1863,\1\ Mr. William S. Holman, of Indiana, from
the select committee on Government contracts, offered the following:
Whereas Simon Stevens, a witness subpoenaed by the select committee
of the House of Representatives on Government contracts, in their
examination of the facts in connection with the ``terms,
considerations, and profits of the labor contract for the storing,
hauling, and delivery, etc., of foreign goods in the city of New
York,'' concerning which said committee were directed by the House to
make inquiries, refused to answer the following inquiries propounded to
him by said committee:
``How much money in the aggregate has been paid over, under the labor
contract, to William Allen Butler, or to his account, or to Mr. George
W. Parsons, his law partner, for account of Mr. Butler?''
``You say you held the contract from May 11, 1861, until its
expiration, by its own terms, September 5, 1862. State the net profits
of that contract during that time.''
Now therefore
Resolved, That the Sergeant-at-Arms be directed to bring the said
Simon Stevens before the bar of this House to answer said contempt.
On January 16 Mr. Holman announced to the House that Simon Stevens
had been brought to the Capitol by the Sergeant-at-Arms and had
appeared before the committee and answered the interrogatories
satisfactorily. Therefore Mr. Holman offered the following, which was
agreed to:
Ordered, That Simon Stevens, now in the custody of the Sergeant-at-
Arms, be discharged upon the payment of costs.
1679. On January 24, 1867,\2\ Mr. Robert S. Hale, of New York, as a
question of privilege, submitted the following preamble and resolution:
Whereas J. F. Tracy was duly summoned to appear before the Joint
Select Committee on Retrenchment to testify relative to an inquiry
directed by a resolution of this House; and whereas the said Tracy has
refused or neglected to obey the subpoena duly served upon him:
Therefore
Resolved, That the Sergeant-at-Arms be directed to produce the body
of said J. F. Tracy before the bar of the House to answer for his said
contempt.
On the next day a proposition was made to reconsider the vote by
which the preamble and resolution had been agreed to, a request having
been made that Mr. Tracy might be allowed to attend an important
meeting of the directors of the railroad of which he was president. The
House, however, laid on the table the motion to reconsider, on the
ground that private business should not be allowed to interfere with
the mandate of the House. On January 28, 1867, Mr. Hale informed
-----------------------------------------------------------------------
\1\ Third session Thirty-seventh Congress, Journal, pp. 192, 202;
Globe, pp. 314, 370.
\2\ Second session Thirty-ninth Congress, Journal, pp. 252, 260, 279;
Globe, pp. 710, 753, 810.
Sec. 1680
the House that Mr. Tracy had appeared before the committee, testified,
and satisfied them that he intended no contempt against the House.
Therefore, on motion of Mr. Hale,
Ordered, That all further proceedings under the process against J. F.
Tracy be suspended and that he be discharged from custody upon the
payment of the fee.
1680. On July 20, 1867,\1\ Mr. James F. Wilson, of Iowa, as a
question of privilege, and by direction of the Judiciary Committee,
offered the following preamble and resolution:
Whereas Lafayette C. Baker was, on the 2d day of July, 1867, duly
summoned to appear and testify before a standing committee of this
House on the Judiciary, changed with the investigation of certain
allegations against the President of the United States, and has
neglected to appear before said committee pursuant to said summons,
therefore,
Resolved, That the Speaker issue his warrant directed to the
Sergeant-at-Arms, commanding him to take into custody the body of said
Lafayette C. Baker, wherever to be found, and to have the same
forthwith brought before the bar of the House to answer for contempt of
the authority of the House in thus failing and neglecting to appear
before said committee.
On November 26 (a recess from July 20 to November 21 having
intervened) Mr. Wilson announced to the House that Mr. Baker had
appeared before the committee and testified, and the case did not seem
to be of enough importance to ask further action of the House.
Accordingly, on motion of Mr. Wilson:
Ordered, That L. C. Baker, heretofore arrested under order of the
House, be discharged upon the payment of costs.
1681. On November 25, 1867, the Senate ordered the arrest of Edward
E. Dunbar, a contumacious witness. On November 29 Mr. George F.
Edmunds, of Vermont, on whose motion the arrest had been ordered,
reported that the witness had appeared before the Committee on
Retrenchment, answered the questions, and explained that he intended no
contempt. Therefore, by direction of the committee, Mr. Edmunds
reported a resolution for the discharge of the witness, which was
agreed to.\2\
1682. On April 4, 1874,\3\ the Committee on the Judiciary reported a
preamble and resolution providing for the arrest of George H. Patrick,
who had failed to appear before the committee and bring with him
certain papers, as commanded by a subpoena issued by the committee in
the course of its examination of the charges against Judge Richard
Busteed.
The resolution and preamble were agreed to.
On April 20 the committee proposed the following, which was agreed
to:
Resolved, That George H. Patrick, a witness in proceedings for the
impeachment of Richard Busteed, United States district judge of the
district of Alabama, and against whom the attachment of the House
issued as for contempt, having appeared and testified before the
subcommittee on the Judiciary, and his explanation of his previous
nonattendance being satisfactory to the House, be, and he is hereby,
discharged from arrest.
-----------------------------------------------------------------------
\1\ First session Fortieth Congress, Journal, pp. 244, 270; Globe,
pp. 757, 796.
\2\ First session Fortieth Congress, Globe, pp. 780, 810.
\3\ First session Forty-third Congress, Journal, pp. 715, 716, 843;
Record, pp. 2796, 3217.
Sec. 1683
1683. In 1860 a proposition to arrest a Government official for
refusing to produce a paper which he declared to be entirely private in
its nature, was abandoned after discussion.--On April 6,1860,\1\ Mr.
John Covode, of Pennsylvania, from the select committee on the subject
of the alleged interference of the Executive with the legislation of
Congress, submitted a report accompanied by the following resolution:
Resolved, That the Speaker issue his warrant, directed to the
Sergeant-at-Arms, commanding him (the said Sergeant-at-Arms) to take
into custody the body of Augustus Schell, and the same forthwith to
bring before the House, at the bar thereof, to answer as for a contempt
of the authority of this House in refusing to produce a paper when
thereunto required by committee of this House.
The select committee, of which Mr. Covode was chairman, was
authorized by the resolution creating it to make an inquiry suggested
by a letter of the President referring to ``the employment of money to
carry elections,'' and was directed by the resolution to--
inquire into and ascertain the amount so used in Pennsylvania, and any
other State or States, in what districts it was expended, and by whom,
and by whose authority it was done, and from what sources the money was
derived, and report the names of the parties implicated. And for the
purpose aforesaid said committee shall have power to send for persons
and papers and to report at any time.\2\
Mr. Schell, who was collector of the port of New York at the time of
this examination, was required by the committee to give a list of
certain contributors to a fund which had been raised in New York for
use in New York and Pennsylvania in the election of 1856. Mr. Schell
declined to furnish the list on the ground that it would involve a
breach of confidence, and expressed the opinion that--
the power was not given the committee to ask for the production of a
paper entirely private in its character.\3\
The committee, in the report which they made to the House
recommending the arrest of Mr. Schell for contempt, reported the
questions propounded to him and his answers thereto, and expressed the
opinion that the information required was ``material to the proper
investigation of the matters referred to them by the House.'' This
report was signed by Mr. Covode, Mr. A. B. Olin, of New York, and Mr.
Charles R. Train, of Massachusetts. Messrs. Warren Winslow, of North
Carolina, and James C. Robinson, of Illinois, signed minority views, in
which the ground was taken that inquiries by the House into the acts of
individual citizens in the States, if made at all, must be made of
objects within its jurisdiction. ``It may,'' they say, ``in the first
place, act on individual persons, private citizens, or others, in the
maintenance of its own parliamentary prerogatives; secondly, it may
inquire into facts in order to legislate thereon, and, thirdly, it may
investigate the conduct of public officers with a view to their
impeachment before the Senate.'' The minority then go on to argue that
the question propounded to Schell had no relation essential to either
of the three named objects.
On April 9 this report was recommitted.
-----------------------------------------------------------------------
\1\ First session Thirty-sixth Congress, Journal, pp. 678, 695, 699;
Globe, pp. 1577, 1623-1625.
\2\ Reports H. of R., No. 648, Journal of the committee, p. 60, first
session Thirty-sixth Congress.
\3\ Report No. 648, p. 64, Report No. 331, first session Thirty-sixth
Congress.
Sec. 1684
1684. In 1862 Henry Wikoff was imprisoned by the House for refusing
to testify before a committee.
A witness having responded orally, when arraigned for contempt, it
was required that the answer be in writing.
It is for the House and not the Speaker to determine whether or not a
person arraigned for contempt shall be heard before being ordered into
custody.
The House, having ordered a person into custody ``until he shall
purge himself of said contempt,'' he was, on purging himself,
discharged without further order.
On February 12, 1862,\1\ Mr. John Hickman, of Pennsylvania, from the
Committee on the Judiciary, reported the following preamble and
resolution, which were agreed to by the House:
Whereas Henry Wikoff, a witness subpoenaed by the Committee on the
Judiciary in their examination of the facts in connection with the
alleged censorship over the telegraph, concerning which said committee
were directed by the House to make inquiry, has stated that a portion
of the substance of the message of the President of the United States,
communicated to Congress on the 3d day of December last, was
transmitted by telegraph, through his agency, to the New York Herald
prior to the receipt of the said message by Congress, and has refused
to state from whom he received the matter thus revealed to the public:
Therefore,
Resolved, That the Sergeant-at-Arms be directed to bring the said
Henry Wikoff before the bar of this House to answer said contempt.
On the same day the Sergeant-at-Arms appeared at the bar of the House
and reported that he had executed the warrant of the Speaker, issued
this day, for the arrest of Henry Wikoff, and that he had the body of
the said Wikoff then at the bar of the House.
The said Wikoff having been arraigned, the Speaker addressed him as
follows:
Henry Wikoff: You have been arrested by order of the House and now
stand at its bar charged with an alleged contempt of its authority in
refusing to answer a question propounded to you by the Committee on the
Judiciary, which was directed to make inquiry as to an alleged
censorship over the telegraph. What have you to say in answer to this
charge of contempt?
The said Henry Wikoff having responded orally, Mr. Thaddeus Stevens,
of Pennsylvania, raised a question that the response should be in
writing, in order that the record might be complete. Thereupon, on
motion of Mr. Hickman, the response was reduced to writing and
submitted to said Wikoff and approved by him, as follows:
Nothing; but that while hoping not to be considered wanting in any
respect to the Judiciary Committee or to the House, the information
which the committee demanded of me was received, such as it was, under
a pledge of strict secrecy, which I felt myself bound to respect.
Mr. Hickman thereupon presented the following:
Whereas Henry Wikoff, a witness subpoenaed to appear and testify
before the Committee on the Judiciary in the matter of the
investigation by said committee into the alleged telegraphic censorship
of the press, and refusing to answer certain questions propounded to
him on his examination, upon being brought before the bar of the House
has failed to satisfy the House of the propriety of his refusal:
Therefore,
-----------------------------------------------------------------------
\1\ Second session Thirty-seventh Congress, Journal, pp. 298, 302,
310; Globe, pp. 775, 784, 785, 831.
Sec. 1685
Resolved, That the said Henry Wikoff, by reason of the premises, is
in contempt of this House, and that the Sergeant-at-Arms be directed to
hold said Henry Wikoff in close custody until he shall purge himself of
said contempt or until discharged by order of the House.
The previous question having been demanded, Mr. Charles A. Wickliffe,
of Kentucky, raised a question of order that the prisoner should not be
deprived of his opportunity to be heard by the previous question.
The Speaker \1\ held that this was a matter for the House to
determine by its vote on the motion for the previous question.
The resolution was then agreed to.
On February 14, Mr. Hickman, from the Committee on the Judiciary,
reported that the witness had answered the question propounded to him
by the said committee and had thereby purged himself of the contempt of
the House for which he was held in custody.
The Journal then has this entry:
The said Wikoff is therefore, under the terms of the resolution
directing his arrest, released from custody.
1685. The case of Charles W. Woolley, in contempt of the House in
1868.
An instance wherein the managers of an impeachment were endowed by
the House with the functions of an investigating committee.
With the adjournment of a court of impeachment the functions of the
managers cease, but the House may continue them to complete an
investigation already begun.
Pending consideration of a question of contempt the Speaker admitted
as privileged a resolution relating to the existence of the committee
which suggested the proceedings.
A contumacious witness should not be proceeded against for contempt,
either before the House or under the law, until he has been arraigned
and answered at the bar of the House.
A person under arrest for contempt is arraigned before being required
to answer.
The answers at the arraignment in the Woolley case were in writing
and one was sworn to, but neither appears in the Journal.
In the Woolley case the House did not furnish to the respondent a
copy of the report of the committee at whose suggestion he was
arraigned.
On May 16, 1868,\1\ the House agreed to the following:
Whereas information has come to the managers which seems to them to
furnish provable cause to believe that improper and corrupt means have
been used to influence the determination of the Senate upon the
articles of impeachment exhibited to the Senate by the House of
Representatives against the President of the United States: Therefore,
Be it resolved, That for the further and more efficient prosecution
of the impeachment of the President the managers be directed and
instructed to summon and examine witnesses under oath, to send for
persons and papers, to employ a stenographer, and to appoint
subcommittees to take testimony, the expenses thereof to be paid from
the contingent fund of the House.
-----------------------------------------------------------------------
\1\ Galusha A. Grow, of Pennsylvania, Speaker.
\2\ Second session Fortieth Congress, Journal, p. 698; Globe, p.
2503.
Sec. 1685
On May 25,\1\ under instruction by the managers, Mr. Benjamin F.
Butler, of Massachusetts, submitted a report, accompanied by a
transcript of testimony, showing that a witness, Charles W. Woolley, of
Cincinnati, had both evaded the committee and declined to answer
certain questions as to the receipt and disbursement of a sum of money,
alleging that they were not material. The committee therefore
recommended the adoption of the following resolution:
Resolved, That Charles W. Woolley, a witness heretofore duly summoned
before the Committee of Managers of this House, and who, as appears by
the report of the managers, has refused to answer proper inquiries put
to him in the course of the investigation ordered by the House, and who
has not attended upon the sessions of the committee according to its
orders, but has, in contempt thereof and the orders of this House, left
the city of Washington and remained absent and has not yet reported
himself to the committee, be forthwith arrested by the Sergeant-at-Arms
and be brought before the House at its bar by the warrant of the House
duly issued by the Speaker under his hand and the seal of the House,
and that said Woolley be detained by virtue thereof by the Sergeant-at-
Arms until he answer for his contempt of the order of the House and
abide such further order as the House may make in the premises.
Mr. Charles A. Eldridge, of Wisconsin, raised the question that the
witness should be dealt with under the statute rather than by the
process proposed by the Managers.
The Speaker \2\ said:
The Chair overrules the point of order on the ground that the uniform
usage of the House from the Twelfth Congress down to the present time
has been that where a witness is before a committee of the House that
is authorized to send for persons and papers and refuses to testify he
is first to have an opportunity to explain to the House of
Representatives why he refuses to testify. He can not be held to answer
until the committee shall present the question to the House and the
House shall, at its bar, through the Speaker, present to him the
question and ascertain why he has refused to answer it. The very
statute at large quoted by the gentleman from Wisconsin was enacted
subsequent to the refusal of a witness before a committee to testify
after having been imprisoned by the order of the House for his
persistent refusal. The committee who had the subject under
consideration reported this law, which is to be found on page 155,
volume 11 of the Statutes at Large. It reads as follows:
``Shall, in addition to the pains and penalties now existing, be
liable to indictment as for a misdemeanor.''
Previous to that time there had been no power of punishment except
the power of the House of Representatives, and that power ended
whenever the House adjourned. If therefore a witness, just at the close
of a constitutional term of Congress, on the 3d of March, should refuse
to testify, the House of Representatives could not imprison him for a
longer time than until the 4th of March, when their term expired. The
bill reported by that committee was passed with the general assent of
all parties in Congress, was signed by the President, and become a law.
And it goes on to provide that: ``When a witness shall fail to testify
as above, and the facts shall be reported to the House, it shall be the
duty of the Speaker to certify the fact, under the seal of the House,
to the district attorney of the District of Columbia.''
This law was enacted in 1856 or 1857. The Chair was a Member of the
House at the time, and remembers the enactment of the law, because a
witness not only refused to testify before the committee, but when
brought to the bar of the House still further refused to testify.
In debate on the resolution the point was made that the House had no
right to make the proposed inquest into private affairs.
The resolution was agreed to.
-----------------------------------------------------------------------
\1\ Journal, p. 729; Globe, pp. 2575-2581.
\2\ Schuyler Colfax, of Indiana, Speaker.
Sec. 1685
On May 26 \1\, the Sergeant-at-Arms appeared at the bar of the House
having in custody the body of Charles W. Woolley. Thereupon a question
arose as to the proper course of procedure, and the Speaker cited the
precedent in the case of the witness John Cassin, in the Thirty-fifth
Congress, saying that the witness could not be heard until the House
had adopted some order on the subject.
Thereupon, Mr. Butler, following the precedent referred to by the
Speaker, offered the following resolution, which was agreed to:
Resolved, That Charles W. Woolley, esq., of the city of Cincinnati,
Ohio, now in custody of the Sergeant-at-Arms on an attachment for a
contempt in refusing or neglecting obedience to the summons requiring
him to appear and testify before the committee of managers of the
House, be now arraigned at the bar of this House and that the Speaker
propound to him the following interrogatories:
1. What excuse have you for refusing to answer before the managers of
impeachment of this House in pursuance to the summons served on you for
that purpose?
2. Are you now ready to appear before said managers and answer such
proper questions as shall be put to you by said managers of
impeachment?
The said Woolley was thereupon arraigned and the interrogatories, as
directed in the foregoing resolution, were propounded to him by the
Speaker.
The said Woolley thereupon handed in a paper, subscribed and sworn to
by himself,\2\ in which he protested that he had not been guilty of
contempt of the House, stated that he had not been able to obtain a
copy of the report of the managers on which the resolution of arrest
was based, and so had not seen the specific inquiries proposed to him
and referred to, and finally asking that he be allowed a reasonable
time to examine the report and consult counsel.
Mr. Charles A. Eldridge, of Wisconsin, moved that he be furnished
with a copy of the report, and that he have until 12 o'clock on the
next day to make further answer, and that in the meantime he remain in
the custody of the Sergeant-at-Arms. After debate the motion was laid
on the table, yeas 93, nays 30.
The House then resolved itself into Committee of the Whole to attend
the impeachment proceedings in the Senate, and after some time
returned, and the House resumed its session, after the chairman of the
Committee of the Whole had reported that the respondent (Andrew
Johnson) had been declared acquitted on the second and third articles,
and that the court of impeachment had adjourned sine die.
The question of the contumacious witness was then resumed, and the
House, by a vote of 95 yeas and 28 nays, agreed to the following:
Resolved, That the Speaker of the House again propose to C. W.
Woolley the questions contained in the resolution this day adopted, and
that said Woolley be informed that the House requires definite and
explicit answers to the questions propounded to be made forthwith.
Thereupon the Speaker again stated the questions, and the said
Woolley, in answer thereto, handed in ``a paper in writing.'' This
paper was subscribed by the witness, but not sworn to. No question
seems to have been made as to this point. The paper does not appear on
the Journal.
-----------------------------------------------------------------------
\1\ Journal, pp. 733-738; Globe, pp. 2585-2592.
\2\ This paper does not appear in the Journal, nor is it described
except as ``a paper in writing'' (Journal, p. 733).
Sec. 1686
In answer to the first question the witness explained that he had
been prevented by illness from attending sessions of the committee at
certain times, but that otherwise he held himself ready in every
particular to respond to the order of the House, except that he had
protested to the managers that their course of examination had
transcended his rights and privileges as a citizen under the
Constitution. He was not bound by the law of the land to submit to a
scrutiny into his private affairs. To the second question the witness
responded that he was ready to appear and answer proper questions,
protesting that he was in no way connected with an association or
combination having as its object the use of corrupt influence in
respect to the impeachment, and that no money drawn by him from any
bank in the city or owned or held by him, or subject to his authority
or control, was in any way used in connection with the said trial.
At this point in the proceedings, after the reading of the paper
submitted by the witness, Mr. Butler, in order to meet an objection
that had been urged, viz, that the power of the managers and their
functions had ceased with the adjournment of the court of impeachment,
offered the following resolution:
Resolved, That the managers, as a committee, be empowered and
directed to continue the investigation ordered by the resolution of the
House of the 16th instant, with all the powers and rights conferred
thereby, and to make such full investigation as will determine the
truth of the matters and things set forth in the preamble to said
resolution.
Mr. Charles A. Eldridge, of Wisconsin, made the point of order that
the resolution was out of order at this time and could be submitted
only by unanimous consent.
The Speaker overruled the point of order on the ground that it was
competent for any Member, pending the consideration of a question of
contempt of the authority of the House, to make motions relative to it.
It was a privileged resolution growing directly out of the
investigation. The Chair also expressed the opinion that the managers
had ceased to be in office.
Mr. Eldridge having appealed, the appeal was laid on the table.
The resolution was then agreed to, yeas 91, nays 30.
1686. The case of Charles W. Woolley, continued.
In 1868 a contumacious witness, Charles W. Woolley, who declined to
answer, for the alleged reason that the examination was inquisitorial,
was imprisoned for contempt.
A witness arraigned at the bar for contempt, and having already
submitted his written answers, was allowed by unanimous consent to make
a verbal statement.
A witness imprisoned for contempt before a committee purges himself
by stating to the House his readiness to go before the committee, and
not by testifying directly to the House.
An instance wherein the Speaker announced that he had certified to
the district attorney the case of a contumacious witness.
Reference to the circumstances attending the enactment of the law for
punishing contumacious witnesses.
Sec. 1686
Mr. George S. Boutwell, of Massachusetts, then offered the following:
Resolved, That the said Charles W. Woolley be committed to and
detained in close custody by the Sergeant-at-arms in the Capitol during
the remainder of the session or until discharged by the further order
of the House, to be taken when he shall have purged the contempt upon
which he was arrested, by testifying before the committee authorized to
continue the investigation which the managers were conducting when the
contempt was committed by said Woolley.
During the debate on this resolution the witness, at the bar of the
House, asked permission to make a statement.
The Speaker said that the permission would require unanimous consent.
There being no objection, the witness stated that he expected to
answer such questions as the House should think proper. In other words,
whenever the committee and himself differed as to the propriety of a
question he should be brought to the bar of the House and the House
should pass on it.
It was objected by Mr. Boutwell that such a course would virtually
defeat the powers of the committee.
The question was then taken and the resolution was agreed to, yeas
81, nays 28.
On May 28, 1868,\1\ Mr. John A. Bingham, of Ohio, from the committee,
reported the following resolution, which was agreed to, after a motion
to lay it on the table had been decided in the negative, yeas 28, nays
95:
Resolved, That Rooms A and B, opposite the room of the solicitor of
the Court of Claims, in the Capitol, be, and are hereby, assigned as
guardroom and office of the Capitol police and are for that purpose
placed under charge of the Sergeant-at-arms of the House with power to
fit the same up for the purpose specified.
Mr. Bingham then presented a preamble reciting the circumstances of
the refusal of the witness to testify on the ground that the question
invaded a privileged communication between attorney and client and
giving extracts from testimony of witness and another, and with this
preamble presented further:
And whereas your committee believe the reasons given by the witness
in declining to answer are wholly untrue and evasive and the refusal to
answer is a deliberate contempt of the authority of the House and done
for the purpose of concealing the fact and embarrassing public justice;
therefore,
Resolved, That said Woolley, for his repeated contempt of the
authority of the House, be kept until otherwise ordered by the House in
close confinement in the guardroom of the Capitol police by the
Sergeant-at-Arms until said Woolley shall fully answer the questions
above recited, and all questions put to him by said committee in
relation to the subject of the investigations with which the committee
is charged, and that meanwhile no persons shall communicate with said
Woolley, in writing or verbally, except upon the order of the Speaker.
These preambles and resolution were agreed to.
On May 30 \2\ the Speaker stated to the House that he had, in
accordance with the requirements of the law of January 24, 1857,
certified the facts in the case to the district attorney of the
District of Columbia. The Journal has in regard to this merely this
entry:
The Speaker having made a statement as to his action thus far in
regard to the recusant witness, C. W. Woolley, asked the instruction of
the House in regard to letters and telegrams to and from said Woolley.
-----------------------------------------------------------------------
\1\ Journal, pp. 747, 763-765; Globe, pp. 2643, 2669.
\2\ Journal, pp. 775, 776; Globe, pp. 2702-2706.
Sec. 1686
After debate as to the mode of procedure in such cases and the
inexpediency of making the Speaker in any sense the custodian of the
prisoner of the House agreed to the following:
Resolved, That the resolution relating to Charles W. Woolley be so
modified as to place the witness in the sole custody of the Sergeant-
at-Arms, subject to the order of the House, and that his counsel,
family, and physician have free access to the witness.
On June 8 \1\ Mr. Butler, as a question of privilege from the
committee, presented the following resolution, which was agreed to:
Resolved, That any communication from C. W. Woolley or his counsel,
placed in the hands of the Speaker, be sent to the committee of
investigation of this House, before which Woolley has been called to
testify, for examination and report.
On the same day Mr. Samuel Shellabarger, of Ohio, as a question of
privilege submitted the following resolution, which was agreed to
without objection, on the statement by Mr. Shellabarger that the
witness had indicated that he would purge himself:
Resolved, That Charles W. Woolley, now under the arrest of this House
for contempt of the authority of the House, be ordered to the bar of
the House for the purpose of making such statement as will purge him of
his contempt of such authority.
Accordingly the witness was brought before the House, and in response
to the question of the Speaker announced that he was ready to make a
statement, and proffered a paper.
At this point a question was raised as to the propriety of the
prisoner purging himself by a statement before the House, and it was
urged that the proper way was for him to go before the committee and
answer the questions. The precedent of Thaddeus Hyatt in the Senate was
referred to on this point. After debate, on motion of Mr. Shellabarger,
the House, by a vote of 93 yeas to 32 nays, agreed to the following:
Resolved, That in purging himself of the contempt of which Charles W.
Woolley is committed by this House said Woolley shall be required to
state whether he is now willing to go before the Committee of Managers
of the House before which he has been summoned to testify, and make
answer to the questions for the refusal to answer which he has been
ordered into custody, and if he answers that he is so ready to answer
before the said committee then the witness shall have that privilege so
to appear and answer as soon as said committee can be convened, and
that in the meantime the witness remain in custody; and in the event
that the said witness answer that he is not ready to so appear before
said committee and make answer to the said questions so refused to be
answered, then that the said witness be recommitted for continuance of
such contempt, and that such custody shall continue until the said
witness shall communicate to this House through said committee that he
is ready to make such answer.
Thereupon the Speaker propounded the questions to the said Woolley,
as required by the resolution, and the said Woolley answered as
follows:
As my client has testified in regard to the dispatches named in the
resolution, and as the resolution is an order of the House for me to
answer the questions, I will do so.
So the said Woolley was remanded to the custody of the Sergeant-at-
Arms with
-----------------------------------------------------------------------
\1\ Journal, pp. 816, 819, 820; Globe, pp. 2938, 2942, 2944-2947.
Sec. 1687
the privilege to appear before the committee and answer as provided for
in the resolution.
On June 11 \1\ Mr. Butler, from the committee, stated that the
witness had answered satisfactorily the questions, and the committee
proposed the following resolution, which was agreed to:
Resolved, That Charles W. Woolley, having appeared before the
Committee of Investigation and answered all questions put to him by the
committee or its order and thus purged himself of his contempt of the
House in that regard, be discharged from arrest and held only to appear
and make further answer if required, according to summons.
1687. A person whose arrest had been ordered for neglect to obey a
subpoena, having appeared and testified, the House arraigned him and
then discharged him.
Instance wherein the answer of a person arraigned for contempt was in
writing, but not sworn to and not recorded in the Journal.
On April 2, 1862,\2\ Mr. Henry L. Dawes, of Massachusetts, from the
Select Committee on Government Contracts, reported the following, which
was considered and agreed to under the operation of the previous
question:
Whereas on the 14th day of March last a subpoena was issued by the
Speaker of this House, summoning, among others, one Aaron Higgins--
sometimes called Aaron A. Higgins--by the name of A. Higgins, to appear
before the Committee on Government Contracts forthwith at the United
States Hotel in Boston, Mass., but that the said Higgins has hitherto
and still does refuse or neglect to obey said summons: Therefore,
Resolved, That the Speaker of this House be directed to issue his
writ of attachment against Aaron Higgins of Boston, Mass., sometimes
called Aaron A. Higgins, and cause him to be brought to the bar of this
House to answer as for his contempt in not obeying the said subpoena of
said Speaker issued March 14, 1862.
On April 9 the Sergeant-at-Arms, by S. J. Johnson, his deputy,
appeared at the bar with Aaron Higgins in custody, as commanded by the
Speaker's warrant of the 2d instant. The said Higgins having been
arraigned, the Speaker \3\ inquired of him what excuse he had to offer
for his contempt of the authority of the House in failing to obey its
subpoena to appear before the Select Committee on Government Contracts;
and the response of the said Higgins having been submitted and read to
the House,\4\ Mr. Dawes submitted the following preamble and
resolution:
Whereas Aaron Higgins, now at the bar of this House in contempt for
disobeying the subpoena of its Speaker, issued at the instance of the
Committee on Government Contracts, has appeared before said committee,
and answered under oath all such interrogatories as have been put to
him by their order: Therefore,
Resolved, That the Sergeant-at-Arms be directed to discharge said
Higgins from custody.
-----------------------------------------------------------------------
\1\ Journal, p. 838; Globe, p. 3069.
\2\ Second session Thirty-seventh Congress, Journal, pp. 498, 523;
Globe, pp. 1508, 1588.
\3\ Galusha A. Grow, of Pennsylvania, Speaker.
\4\ This is the entry of the Journal. The record of debates shows
that Higgins submitted a written answer explaining his failure to
respond to the subpoena. This statement was over his signature, but not
under oath. (Globe, p. 1588.)
Sec. 1688
1688. Instances wherein witnesses arraigned for contempt and agreeing
to testify have not been discharged until the testimony has been given.
Witnesses arraigned for contempt have frequently answered orally and
not under oath.
The order of arrest sometimes specifies that it shall be made either
by the Sergeant-at-Arms or his special messenger.
On January 28, 1869,\1\ the House ordered the arrest of Henry
Johnson, for contempt in refusing to appear before the Select Committee
on Election Frauds in New York, the resolution commanding the Sergeant-
at-Arms, or his special messenger, to arrest said Johnson and bring him
before the House. On February 3 the Sergeant-at-Arms appeared at the
bar of the House having the said Johnson in custody, and the House
agreed to the usual resolution providing for the arraignment of the
prisoner and his interrogation by the Speaker.
The Speaker having propounded the interrogatories, the witness
replied that he had never refused to answer the subpoena, and that he
was ready to answer any questions that might be put to him. The witness
was not sworn before making these answers, which were oral.
A motion was made to discharge the witness from custody, but after
debate the motion was tabled and the subject was postponed until the
following day, after the witness should have had the opportunity of
appearing before the committee and testifying.
On February 4 the chairman of the committee reported that the witness
had appeared and testified, and that it appeared that the failure to
appear in the first instance seemed due to some misunderstanding. The
House ordered the discharge of the witness.
On February 1,\2\ the House also ordered the arrest of Florence
Scannel, for contempt in declining to testify before the same
committee. On February 3 Mr. Scannel was arraigned and the usual
resolution was passed. Upon being interrogated he answered, orally and
not under oath, that he was ready to answer the question which he had
refused formerly to answer. Thereupon it was ordered that he should be
remanded to the custody of the Sergeant-at-Arms to appear before the
committee. On February 4, the witness having appeared before the
committee and testified, the House ordered that he be discharged on the
payment of costs. A motion to waive the payment of the costs was
decided in the negative.
On February 19 the House, by a single resolution, ordered the arrest
of John H. Bell, and David W. Reeve, recusant witnesses before the same
committee. On February 23 the two witnesses were brought to the bar
separately, and the usual resolution for the arraignment and
interrogating of them was adopted in each case. Each of the witnesses
answered orally, and not under oath, explaining why he had been
contumacious, and expressing readiness to attend and answer before the
committee.
-----------------------------------------------------------------------
\1\ Third session Fortieth Congress, Journal, pp. 226, 265, 271;
Globe, pp. 687, 833, 876.
\2\ Journal, pp. 250, 264, 271; Globe, pp. 771, 832, 877.
Sec. 1689
The House then laid on the table motions to discharge the witnesses,
in the latter case by a vote of 124 yeas to 33 nays, and the witnesses
were remanded to the custody of the Sergeant-at-Arms to appear before
the committee. On February 24,\1\ having answered, they were discharged
by the House.
1689. In 1873 Joseph B. Stewart was imprisoned for contempt of the
House in refusing as a witness to answer a question which, he claimed,
related to the relations of attorney and client, and therefore was
inquisitorial.
The House declined to commit to custody an alleged contumacious
witness until he had been arraigned and answered at the bar of the
House.
An instance wherein a person was arraigned at the bar without a
previous order of the House fixing the form of procedure.
An instance wherein a witness arraigned for contempt was allowed to
make an unsworn oral statement, which in fact was an argument as well
as an answer.
An alleged contumacious witness having been arraigned, the House
declared him in contempt and then proceeded to specify the manner in
which he might purge himself.
In the Stewart case the questions and answers at the examination were
recorded in the Journal, the answers being oral and not under oath.
On January 29, 1873,\2\ Mr. Jeremiah M. Wilson, of Indiana, from the
select committee who, by resolutions of the House of January 6 and
January 9, 1873, were directed to inquire into certain matters
connected with the Union Pacific Railroad Company and Credit Mobilier,
with authority to send for persons and papers, reported that evidence
had been produced before the committee tending to show that just before
the passage of the act of 1864, entitled, ``An act to amend an act to
aid in the construction of a railroad and telegraph line from the
Missouri River to the Pacific Ocean,'' etc., sums of money and a
quantity of bonds, property of the Union Pacific Railroad Company, were
brought to Washington and placed in the hands of one Joseph B. Stewart,
and by him in some way disposed of. Thereafter the said Joseph B.
Stewart was called and duly sworn as a witness, and testified in
substance as follows: That said bonds to the amount of $100,000 or
$150,000 were received by him, and that $30,000 were for his own fees;
that he did not pay over any of said bonds or their proceeds to any
Member of Congress or person connected with the Executive Department of
the Government, and that he acted in such transaction partly for the
railroad, partly for clients of his own, and partly as arbitrator
between the Union Pacific Railroad Company and such other persons, and
gave over the bonds to such other persons. The report goes on to state
that the committee asked the said Stewart for the names of the persons
to whom he gave the bonds, and that he declined to respond, alleging
that the transactions were between him as attorney and his clients, and
that he would
-----------------------------------------------------------------------
\1\ Third session Fortieth Congress, Journal, pp. 392, 425, 426, 442;
Globe, p. 1385, 1467, 1468.
\2\ Third session Forty-second Congress, Journal, pp. 269-272; Globe,
pp. 952-956.
Sec. 1689
make no statement to the committee about the business of his clients.
He persisted in this attitude, although he was informed by order of the
committee that he was not in this protected by the legal privilege
existing between counsel and client. The committee give in their report
a transcript of the questions and answers, and conclude: ``The
committee are of opinion and report that it is necessary for the
efficient prosecution of the inquiry ordered by the House that said
questions should be answered, and that there is no sufficient reason
why the witness should not answer the same, and that his refusal is in
contempt of this House.''
Therefore the committee recommended the following resolution:
Resolved, That the Speaker do issue his warrant, directed to the
Sergeant-at-Arms attending this House, or his deputy, commanding him to
take into custody, wherever to be found, the body of Joseph B. Stewart,
and the same in his custody to keep subject to the further order and
direction of this House.\1\
Debate at first arose over the question of the alleged privilege of
the transactions of the witness with his alleged clients, but Mr. John
A. Bingham, of Ohio, chairman of the Committee on the Judiciary
presently raised the point that the question presented was novel, and
not like a case where the charge was that a person had violated the
privileges of the House in the person of one of its Members. It was a
question whether the House of Representatives could hold a private
citizen to answer for any crime, unless he had acted to the hurt or
prejudice of the Government in connection with its own officials. The
witness denied that he had done that. This was not like the Burns case.
Mr. Bingham therefore offered the following substitute for the
resolution:
Resolved, That the Speaker do issue his warrant, directed to the
Sergeant-at-Arms attending this House, or his deputy, commanding him to
take into custody, wherever to be found, the body of Joseph B. Stewart,
and bring him forthwith to the bar of this House to show cause why he
should not be punished for a contempt.
This amendment was agreed to, yeas 126, nays 69. The resolution as
amended was then agreed to.
On January 30 \2\ the Sergeant-at-Arms appeared at the bar of the
House, having in custody the body of Joseph Stewart.
Thereupon the said Stewart was arraigned, and the following
interrogatory propounded to him by the Speaker \3\ without previous
order of the House:
What excuse have you for refusing to answer before the select
committee of this House in pursuance of the summons served on you for
that purpose?
The witness thereupon, without being sworn, proceeded to make an oral
response, which not only gave his reasons, but proceeded to argument,
at times reflecting on the conduct of the committee, and at such length
that a point of order was made by Mr. John Coburn, of Indiana, that the
person at the bar should be confined to a statement of facts.
-----------------------------------------------------------------------
\1\ The members of the committee signing the report were Messrs.
Wilson, Samuel Shellabarger, of Ohio; George F. Hoar, of Massachusetts;
Thomas Swann, of Maryland; and H. W. Slocum, of New York.
\2\ Journal, pp. 276-279; Globe, pp. 982-988.
\3\ James G. Blaine, of Maine.
Sec. 1689
The Speaker, however, ruled that the respondent might make an
argument.
Mr. Henry W. Slocum, of New York, having raised a question as to how
long the respondent might speak, the Speaker ruled that he would be
governed by the hour rule.
The witness having concluded, and having denied any disrespect of the
House, having declared the testimony presented to the House by the
committee was inaccurate, and having by assertion and argument advanced
the claim that the transactions of which the committee had interrogated
him were privileged between attorney and client, concluded with a
peroration in regard to the rights of the citizen under the
Constitution.
The reply does not appear in the Journal, either in full or in
substance.
Mr. Henry L. Dawes, of Massachusetts, offered the following
resolution, which was agreed to:
Resolved, That Joseph B. Stewart, having been heard by the House
pursuant to the order heretofore made requiring him to show cause why
he should not answer the questions propounded to him by the committee,
has failed to show sufficient cause why he should not answer the same,
and that said Joseph B. Stewart be considered in contempt of the House
for failure to make answer thereto.
Mr. Wilson then offered the following:
Resolved, That in purging himself of the contempt for which Joseph B.
Stewart is now in custody, the said Stewart shall be required to state
forthwith, or as soon as the House shall be ready to hear him, whether
he is now ready to appear before the committee of this House to whom he
has hitherto declined to make answers and make answers to the questions
for the refusal to answer which he has been ordered into custody, and
if he answers that he is ready to appear before the said committee and
make answer, then the witness shall have the privilege to so appear and
answer forthwith, or so soon as the said committee can be convened; and
that in the meantime the witness remain in custody; and in the event
that said witness shall answer that he is not ready to so appear before
said committee, and make answer to the said questions so refused to be
answered, then that said witness be remanded to the said custody, for
the continuance of such contempt, and that such custody shall continue
until the said witness shall communicate to this House, through the
Speaker, that he is ready to appear before the said committee and make
such answers, or until the further order of the House in the premises.
This resolution was agreed to after the House had negatived two
alternative propositions looking, one to confinement in the District
jail, and the other to a purging by going before the committee while in
custody.
The Speaker having propounded to said Stewart the following question,
viz:
Are you now willing to appear before the committee of this House to
whom you have hitherto declined to make answer and make answer to the
questions for the refusal to answer which you have been ordered into
custody?
The said Stewart replied as follows, viz:
I disclaim any contempt for the authority of this House or its
committee, and repeat, as in my testimony and before this House I have
stated, that I have fully answered all questions except the matter
which came, and solely came, to my knowledge in my relation as counsel,
and I respectfully protest against being requested to do so, and do
decline to disclose any matters confided to me as counsel.
And thereupon he was again taken into the custody of the Sergeant-at-
Arms.
The Journal gives the question and answer, the answer apparently
being oral and not under oath.9
Sec. 1690
On February 5 and 11,\1\ the Speaker laid before the House petitions
and papers from said Stewart, which were referred to the committee. The
first petition was introduced by the Speaker as a Member, the others
were presented by unanimous consent.
On February 28,\2\ near the close of the session and the Congress, on
motion of Mr. Horace Maynard, of Tennessee,
Ordered, That Joseph B. Stewart, now in the custody of the Sergeant-
at-Arms of the House, be discharged.
1690. In 1874 the House imprisoned in the common jail a contumacious
witness, Richard B. Irwin, who contended that the inquiry proposed by
the House committee was unauthorized and exceeded the power of the
House.
In the Irwin case the House asserted its authority as grand inquest
of the nation to investigate, with the attendant right of punishment
for contempt, in case of offenses in preceding Congress.
A proposed order to the Sergeant-at-Arms to hold a person in custody
in jail until the latter should have purged himself of contempt was
criticised and an unconditional order was agreed to.
A question as to the authorization required to enable a committee to
compel testimony.
In the Irwin case the respondent, on being arraigned, made an oral,
unsworn answer, which does not appear in the Journal.
In the Irwin case the questions which the respondent had declined to
answer in committee were proposed to him again at the bar of the House.
In the Irwin case the Journal does not record the responses of the
witness to the questions put by the Speaker.
On December 11, 1874,\3\ Mr. Henry L. Dawes, of Massachusetts, from
the Committee on Ways and Means, submitted as a question of privilege,
the following:
Whereas Richard B. Irwin was, on the 10th day of September, 1874,
duly summoned to appear and testify before a standing committee of this
House, on the Ways and Means, charged with the investigation of certain
allegations against the Pacific Mail Steamship Company, and has
neglected to appear before said committee pursuant to said summons:
Therefore,
Resolved, That the Speaker issue his warrant, directed to the
Sergeant-at-Arms, commanding him to take into custody the body of the
said Richard B. Irwin, wherever to be found, and to have the same
forthwith brought before the bar of the House, to answer for contempt
of the authority of the House in thus failing and neglecting to appear
before said committee.
On December 21 \4\ Mr. Dawes stated to the House that the witness had
explained satisfactorily to the committee his delay, and therefore the
committee recommended the following resolution, which was agreed to by
the House:
Resolved, That Richard B. Irwin be discharged from the custody of the
Sergeant-at-Arms on the warrant of the Speaker of this House, he having
given satisfactory reasons for having neglected to appear before the
Committee on Ways and Means in answer to the summons of this House.
-----------------------------------------------------------------------
\1\ Journal, pp. 319, 323, 362.
\2\ Journal, p. 518; Globe, p. 1919.
\3\ Second session Forty-third Congress, Journal, pp. 51, 52; Record,
pp. 62-64.
\4\ Journal, pp. 96, 97; Record, pp. 174-182.
Sec. 1690
Mr. Dawes then submitted a report from the committee, giving extracts
from the testimony of the said Irwin, wherein he had declined to answer
certain questions submitted to him by the committee as to the
disposition which he had made of $750,000 intrusted to him by the
officials of the Pacific Mail Steamship Company for the purposes of
procuring the subsidy during the period included between the months of
January and May, 1872, i.e., during the term of the preceding Congress.
The witness stated that this money was used by him in procuring the
passage of the subsidy bill, and paid to divers persons, but that he
paid none of it, nor had any understanding for the payment of any of
it, to any Member of the present or the preceding Congress, or any
officer of the present Congress, who was a Member or officer of the
preceding Congress, or to any person under the jurisdiction of the
House. When asked for the names of those employed by him he declined to
answer, alleging that the jurisdiction of the committee did not give it
authority to demand an answer to the question; that the jurisdiction of
the committee and the House was exhausted when it appeared that none of
the money was paid by him to any person under the jurisdiction of the
House; that the matter arose in a prior Congress, over which the
present committee and House were without jurisdiction; that as an
honorable man he had no right to disclose relations existing between
himself and others on a matter not within the jurisdiction of the
House; and finally that the committee was not empowered by any order or
resolution of the House to ask the question.
The committee concluded their report as follows: ``The committee are
of opinion, and report, that it is necessary for the efficient
prosecution of the inquiry ordered by the House that said questions
should be answered, and that there is no sufficient reason why the
witness should not answer the same, and that his refusal is in contempt
of this House.''
Therefore the committee recommended the adoption of the following:
Resolved, That the Speaker issue his warrant, directed to the
Sergeant-at-Arms, attending this House, or his deputy, commanding him
to take into custody forthwith, wherever to be found, the body of
Richard B. Irwin, and to bring him to the bar of the House, to show
cause why he should not be punished for contempt, and in the meantime
keep the said Irwin in custody to await the further order of the House.
As to the point made by the witness that the committee was not
formally authorized by the House to make this investigation, Mr. Dawes
showed that on January 12, 1874, the House referred to the committee
the testimony taken in the preceding Congress on the subject of this
subsidy; that on April 3, 1874, the House referred to the same
committee a resolution introduced by a Member and relating to the same
subject, and, finally, that on the 24th of March, 1874, the House
agreed to the following resolution:
Resolved, That the Committee on Ways and Means are hereby authorized
and empowered to send for persons and papers and administer oaths in
all matters from time to time pending and under examination before said
committee.
A general debate rose as to the power of the House to punish in this
case, and Mr. Alexander H. Stephens, of Georgia, contended that the
House could not punish, except according to law, and that the proper
course was to certify to the district attorney the case of the witness,
according to the act of 1857. The House had no
Sec. 1690
inherent, common-law right to punish. Mr. Benjamin F. Butler, of
Massachusetts, also held that the House might not punish this witness.
In investigations in relation to the impeaching power, the House could
punish; so also in a case of violation of the constitutional provision
that Members should be privileged while going and returning. There was
also the right of investigation in so far as it was intended to
instruct as to the duties before them. But the House had no right to
investigate as to past offenses in another Congress.
On the other hand Mr. Dawes contended that the House was, under the
Constitution, a grand inquest, with power to govern itself in all
matters pertaining to the just and fair exercise of its powers. The
House had never stripped itself of the power, but had repeatedly
punished for contempts of this power. It was further contended that the
statute did not take away the common-law right of the House to punish.
The resolution was agreed to.
On January 6 \1\ the Sergeant-at-Arms appeared at the bar of the
House having in custody the body of Richard B. Irwin. The said Irwin
was thereupon arraigned, and the following interrogatory was propounded
to him by the Speaker:
Are you now ready to answer the questions which have been addressed
to you by the Committee on Ways and Means, and which you have
heretofore refused to make answer to?
Thereupon the prisoner addressed the House orally, and not under
oath. This, address does not appear in the Journal. The witness denied
that he was in contempt of the House, since the House had never ordered
the investigation and he had never refused to answer any question that
the Committee on Ways and Means was authorized by the House to ask. He
denied that the papers referred to the committee or the resolution of
the House empowered the committee to make this investigation. He had
already stated under oath that he did not employ any persons subject to
the jurisdiction of this House, and that he did not pay or procure to
be paid any money to such person. He disclaimed any intentional
disrespect of the House, but denied the right of the House or the
committee to inquire into matters existing in confidence between
himself and other citizens beyond the jurisdiction of the committee.
Finally he contended that the House had no right under the Constitution
to deprive any citizen of liberty without due process of law.
Mr. Dawes thereupon submitted the following, which was agreed to:
Resolved, That the Speaker propose to the witness at the bar the
following questions:
First. Give the names of the persons whom you employed to aid you in
procuring the subsidy from Congress in 1872 for the Pacific Mail
Steamship Company.
Second. What was the largest sum paid by you to any one person to aid
you in procuring that subsidy?
The Speaker thereupon propounded the said questions to the said
Irwin. The Journal does not give the replies, merely stating, ``The
said Irwin having replied.'' The record of debates shows that the
prisoner declined to respond to the first question, but responded to
the second with the statement, ``Two hundred and seventy-five thousand
dollars.''
-----------------------------------------------------------------------
\1\ Journal, pp. 131, 132 , Record, pp. 291-296.
Sec. 1691
Thereupon Mr. Dawes submitted the following resolution, which was
agreed to:
Resolved, That Richard B. Irwin, having been heard by the House,
pursuant to the order heretofore made requiring him to show cause why
he should not answer the questions propounded to him by the committee
and by the Speaker of this House in pursuance of its order, has failed
to show sufficient cause why he should not answer the same; and that
said Richard B. Irwin be considered in contempt of the House for
failure to make answer thereto.
Then Mr. Ellis H. Roberts, of New York, from the committee, offered a
resolution like that adopted in the case of Stewart, providing for
keeping the prisoner in custody until he should purge himself of
contempt. But the resolution differed from the Stewart resolution in
that it specified that the Sergeant-at-Arms should keep the prisoner in
the common jail of the District. This resolution was criticised on the
ground that it made the commitment contingent on a certain event--that
is, on the answering of the witness. It was suggested that in habeas
corpus proceedings such a provision might be a source of weakness. The
resolution was also criticised because of the provision for confinement
in jail. This point was debated at length. It was urged that the House
had no control over the jail, that the jailer might refuse to receive
the prisoner, etc. On the other hand it was shown that the House had in
the case of Wolcott and others committed to the jail.
Finally Mr. Roberts withdrew the resolution proposed, and offered the
following which was agreed to:
Resolved, That Richard B. Irwin be remanded to the custody of the
Sergeant-at-Arms, to abide the further order of this House, and that
while in such custody he be permitted to be taken by the said Sergeant-
at-Arms before the Committee on Ways and Means, if he shall declare
himself ready to answer such questions as may be lawfully put to him,
including those asked of him by order of this House, and while he shall
so remain in custody the Sergeant-at-Arms shall keep the witness in his
custody in the common jail of the District of Columbia.
1691. The case of Richard B. Irwin, continued.
The Speaker, without order of the House and under the law, certifies
the case of a contumacious witness to the district attorney; but the
Journal may contain no record of his act.
A writ of habeas corpus being served on the Sergeant-at-Arms, who
held the witness Irwin in custody for contempt, the House, after
consideration, prescribed the form and manner of return.
The House having ordered the arrest of a person who had failed to
obey a subpoena from a committee, and who later made explanation, an
order was passed discharging him without arraignment.
After the adoption of the resolution the Speaker (Mr. Blaine) said
that the law was mandatory on the Speaker to certify a case of
contumacy to the district attorney. In the case of Stewart some
criticism arose because that was not done. In this case, therefore, in
the absence of an order from the House, he should certify the case. The
Journal does not appear to have any record of such an act.
On January 7 \1\ the Speaker laid before the House a petition from
Irwin representing that his confinement in jail would result in serious
injury to his health, and asking that the order be changed. The
petition also questions the authority of the House to imprison, and
states that no witness has been similarly imprisoned since the passage
of the act of 1857. After debate this petition was laid on the table.
-----------------------------------------------------------------------
\1\ Record, p. 314.
Sec. 1691
On January 8 \1\ Mr. Dawes presented a letter from two physicians,
representing that the confinement of the witness in the jail would be
attended by results pernicious to his health. After debate this letter
was presented to the Committee on Ways and Means.
Mr. Benjamin F. Butler, of Massachusetts, then offered the following,
which was disagreed to, yeas 34, nays 160:
Resolved, That pending the examination and report of the Committee on
Ways and Means upon the said subject, the Sergeant-at-Arms be, and is
hereby, instructed to retain said Irwin in his own custody, and not in
the common jail.
On January 14 \2\ the Speaker laid before the House a letter from N.
G. Ordway, Sergeant-at-Arms of the House, reporting as follows:
I respectfully report to you, and through you to the House of
Representatives, that on the 9th day of January, 1975, a writ of habeas
corpus was served upon me, directing me to produce the body of Richard
B. Irwin, detained in my custody, before Arthur MacArthur, one of the
judges of the supreme court of the District of Columbia, on the 12th
day of said January; that thereafter, on the 12th day of January
aforesaid, the time for producing the body of said Irwin was further
extended to January 14, at 11 o'clock a. m., at which time I appeared
before the said Judge MacArthur and presented, through my attorney,
Hon. Samuel Shellabarger, the writ and resolutions of the House of
Representatives upon which said Irwin was held in my custody. Whereupon
Judge MacArthur decided that no return would be received by him until
the body of the said Irwin was produced in court.
Inasmuch, therefore, as the production of the said Richard B. Irwin
by me would release him from my custody as an officer of the House of
Representatives and place him in the custody of the court, I asked for
delay until to-morrow, January 15, at 11 o'clock a. m., to obtain
further instructions from the House of Representatives.
Debate at once arose over the importance of the question presented.
Mr. Dawes contended that the doctrine of the Nugent case (8th
Philadelphia American Law Journal) applied:
Every court, including the Senate and House of Representatives, is
the sole judge of its own contempts; and in case of commitment for
contempt in such case, no other court can have a right to inquire
directly into the correctness or propriety of the commitment, or to
discharge the prisoner on habeas corpus.
On the other hand, it was pointed out by Mr. John A. Kasson, of Iowa,
that under sections 753, 755, 758 of the the Revised Statutes it was
made the duty of the judge to issue the writ, and that the person
making the return should at the same time bring the body of the
prisoner. On the other hand it was urged that if the body was brought
it would pass into the custody of the court, and so might escape. From
these divergent considerations there resulted three propositions: The
reference of the subject to the Committee on the Judiciary for
examination; a direction to the Sergeant-at-Arms to make return that he
held the prisoner in custody under the order of the House adjudging him
guilty of contempt, and a further direction not to bring the body of
the prisoner before the court; and a third proposition as follows:
Resolved, That the Sergeant-at-Arms be, and is hereby, directed to
make careful return to the writ of habeas corpus in the case of Richard
B. Irwin that the prisoner is duly held by authority of the House of
Representatives to answer any proceedings against him for contempt, and
that the Sergeant-at-Arms take with him the body of said Irwin before
said court when making such return, and retain said Irwin, and continue
to hold him subject to the further order of this House.
-----------------------------------------------------------------------
\1\ Journal, p. 145; Record, pp. 345-346.
\2\ Journal, pp. 179, 180; Record, pp. 471-478.
Sec. 1691
The first two propositions were rejected, but the third was agreed to
after being amended, on motion of Mr. George F. Hoar, of Massachusetts,
by striking out all after the word ``contempt.'' Thus the third
proposition, as amended, accomplished substantially the object of the
second.
On January 15 \1\ Mr. Dawes reported to the House that the Sergeant-
at-Arms had obeyed the order of the House, making return as directed.
Mr. Dawes submitted copies of both the writ of habeas corpus and of the
return of the Sergeant-at-Arms. The latter contained copies of the
warrants of the Speaker for the arrest and detention of Irwin.\2\ Mr.
Dawes further reported that the judge, after a hearing, had insisted on
the production of the body of Irwin in court.
Thereupon a debate arose again on the respective authorities of the
House and the court, and whether or not the House might disregard the
writ of habeas corpus. Mr. John A. Kasson presented from the Ways and
Means Committee a proposition, which, after modification, was as
follows:
Ordered, That the Sergeant-at-Arms, with the aid of counsel, make
known to the judge issuing the writ of habeas corpus requiring the body
of Richard Irwin to be brought before said judge, that he, the said
Sergeant-at-Arms, has said Irwin in his custody pursuant to an order of
this House, upon its judgment that the said Irwin was in contempt of
the House of Representatives in refusing to give testimony as a
witness, and is detained pending such examination, and for no other
reason; that the House of Representatives require of him to retain the
body of said Irwin in his custody until the said Irwin shall offer to
purge himself of said contempt, as provided by the order of this House,
and that he respectfully inform the judge that, as an officer of this
House, he can not disobey the orders thereof in this respect by
releasing in any way or transferring said Irwin from his custody; and
further,
Ordered, That he exhibit to the said judge a copy of the order of
this House, duly certified by the Clerk, adjudging the said Irwin in
contempt, and the warrant of the Speaker in execution thereof, together
with a copy of this order.
To this Mr. James B. Beck, of Kentucky, proposed as an amendment in
the nature of a substitute, the following:
Resolved, That the Sergeant-at-Arms be, and he is hereby, directed to
make careful return to the writ of habeas corpus in the case of Richard
B. Irwin that the prisoner is duly held by authority of the House of
Representatives to answer in proceedings against him for contempt, and
that the Sergeant-at-Arms take with him the body of said Irwin before
said court when making such return as required by law.
An amendment to add to the amendment the following: ``And that he be
further directed to obey the order of said court in the premises,'' was
disagreed to.
The question was then taken on the substitute proposed by Mr. Beck,
and it was agreed to, yeas 107, nays 64.
The original proposition as amended by the substitute was then agreed
to.
On January 19 \3\ Mr. Dawes presented documents to show that the
health of the prisoner was satisfactory, and stated that the committee
were not prepared to recommend any change in his place of confinement,
which was the jail.
On January 20 \4\ Mr. Dawes laid before the House a letter addressed
to the Speaker by Richard B. Irwin, in which the latter announced his
readiness to answer the questions. The letter having been read, Mr.
Dawes offered the following:
-----------------------------------------------------------------------
\1\ Journal, pp. 189, 190; Record, pp. 509-516.
\2\ Record, pp. 510, 511.
\3\ Record, p. 589.
\4\ Journal, p. 210; Record, p. 609.
Sec. 1692
Whereas, on the 6th instant, Richard B. Irwin was adjudged to be in
contempt of this House for refusing to answer a certain question or
questions propounded to him at the bar of the House and by the
Committee on Ways and Means; and whereas the House did thereupon order
the commitment of said Irwin to the custody of the Sergeant-at-Arms in
the common jail of the District of Columbia, to abide the further order
of this House; and whereas the said Irwin has this day stated in
writing to the Speaker that he is ready to answer the question or
questions which he has heretofore refused to answer, and others that
may be lawfully put to him: Therefore,
Resolved, That so much of the resolution of January 6 as required the
Sergeant-at-Arms to keep the said Irwin in the District Jail be, and
the game is hereby, rescinded and that upon answering the said question
or questions the said Irwin shall be discharged from the custody of the
Sergeant-at-Arms.
1692. A witness being arraigned for contempt in refusing to answer a
pertinent question asked by a committee agreed, when arraigned, that he
would answer if so ordered by the House.
A witness being ordered by the House to answer a pertinent question
before a committee, was then removed from the bar, and later, on report
of the committee that he had answered, was discharged.
On January 11, 1875,\1\ Mr. Henry L. Dawes, of Massachusetts, from
the Committee on Ways and Means, which had been charged with an
investigation of disbursements of money by the Pacific Mail Steamship
Company to procure the passage of the subsidy bill in the previous
Congress, reported that Charles Abert had declined to answer a
pertinent question, and was in the judgment of the committee in
contempt. Thereupon it was
Resolved, That the Speaker issue his warrant, directed to the
Sergeant-at-Arms attending this House, or his deputy, commanding him to
take into custody forthwith, wherever to be found, the body of Charles
Abert, and him to bring to the bar of the House, to show cause why he
should not be punished for contempt, and in the meantime keep the said
Abert in custody to await the further order of the House.
Subsequently the Sergeant-at-Arms appeared at the bar of the House
having in custody Charles Abert, alleged to be in contempt of the
House.
On motion of Mr. Dawes,
Ordered, That the Speaker propound to him the question: ``Will you
state to the Committee on Ways and Means the names of the persons to
whom you distributed $106,500 belonging to the Pacific Mail Steamship
Company, according to the directions of Mr. Irwin?'' and also: ``Will
you state the names of the person or persons who introduced to you
those individuals to whom you distributed any portion of said money?''
The Speaker having propounded the said questions the witness replied
that he would as far as he could on being ordered by the House.
The House then directed, by vote, that the witness should answer the
questions.
Then, without further order, the witness was removed from the bar by
the Sergeant-at-Arms, the Speaker \2\ holding that further order was
not necessary.
On January 12, on report of Mr. Dawes that the questions had been
answered, the House voted to discharge the witness.
-----------------------------------------------------------------------
\1\ Second session Forty-third Congress, Journal, pp. 159, 163;
Record, pp. 378, 379, 399.
\2\ James G. Blaine, of Maine, Speaker.
Sec. 1693
1693. A witness having, when arraigned for contempt, submitted an
answer disrespectful to the House, he was ordered into custody for
contempt.--On January 19, 1875,\1\ Mr. Henry L. Dawes, of
Massachusetts, from the Committee on Ways and Means, made a report that
in the opinion of the committee Charles A. Wetmore was in contempt for
refusing to answer a question arising in the investigation of the use
of money to secure the passage of the subsidy bill in the preceding
Congress. Thereupon the House adopted the usual resolution for the
arrest of Wetmore, and on the same day he was arraigned at the bar of
the House. The prisoner then asked until the succeeding day to prepare
his answer.
On January 20 the prisoner was again arraigned, and read a prepared
statement, after which the House
Resolved, That Charles A. Wetmore, having, under the guise and
pretense of answering to a charge of contempt, been guilty of a series
of gross and wanton insults to this House, in the presence of the
House, be, and hereby is, adjudged in contempt thereof, and committed
to the custody of the Sergeant-at-Arms, to be detained in the common
jail of the District until the further order of the House.
On the succeeding day a letter of apology being presented to the
House from Wetmore, the House ordered his discharge.
1694. A witness arrested for contempt in refusing to answer, promised
to respond, and was thereupon discharged and ordered before the
committee.
In reporting the contumacy of a witness the committee appended to
their report extracts from the examination showing the circumstances.
Instance wherein a committee, in its discretion, kept testimony
secret.
On March 7, 1876,\2\ Mr. Washington C. Whitthorne, of Tennessee, from
the Committee on Naval Affairs, made a partial report stating that they
were charged under a resolution of the House of Representatives,
adopted January 14, 1876, with the duty of making inquiry into any
errors, abuses, or frauds that might exist in the naval service, and
were authorized to make inquires for periods in the past, and to send
for persons and papers. In pursuance of the power conferred upon them
by the House the committee had caused Alcaeus B. Wolfe, of Washington
City, to be summoned before them for the purpose of giving testimony,
and he had appeared on March 7, and after being sworn had testified in
a manner shown by extracts appended. These extracts show that witness
refused to answer whether or not he had ever carried any money to
anybody connected with the naval service; whether or not he knew of any
commissions or payments being made by contractors or claim agents to
any person connected with the naval service. The committee therefore
recommended this resolution, which was agreed to:
Resolved, That the Speaker issue his warrant, directed to the
Sergeant-at-Arms attending this House, or his deputy, commanding him to
take into custody forthwith, wherever to be found, the body of Alcaeus
B. Wolfe, and bring him to the bar of the House, to show cause why he
should not be punished for contempt, and in the meantime keep the said
Wolfe in custody to await the further orders of the House.
-----------------------------------------------------------------------
\1\ Second session Forty-third Congress, Journal, pp. 205, 208, 217,
227; Record, pp. 586, 597, 618, 640.
\2\ First session Forty-fourth Congress, Journal, pp. 530-534;
Record, pp. 1539, 1540.
Sec. 1695
On May 8 \1\ the Sergeant-at-Arms appeared at the bar of the House,
having in custody, as directed by the Speaker's warrant, the body of
Alcaeus B. Wolfe.
Mr. Whitthorne thereupon offered the following preamble and
resolution, which was agreed to:
Whereas it appears to the House that Mr. A. B. Wolfe has appeared
before the House Naval Committee and answered all questions that were
propounded to him by the committee: Therefore,
Resolved, That the witness, A. B. Wolfe, be discharged from the
custody of the Sergeant-at-Arms and ordered before the committee for
such other and further examination as they may chose to make touching
the matters before them by order of this House.
It appears from the record of debate that the witness had been
brought to the committee room by the Sergeant-at-Arms, and had promised
to answer the questions propounded. While this statement was being made
the witness, then at the bar of the House, fell in a fit. He was
removed from the Hall, and Mr. Whitthorne explained further that the
last clause of the resolution was inserted in order that the subpoena
issued by order of the Speaker should continue binding on the witness,
in case the committee should have further need of his testimony.
Mr. Whitthorne further stated that the committee deemed it proper
that the testimony given by the witness should remain in possession of
the committee alone and for the time be kept secret.
1695. The case of E. W. Barnes, in contempt of the House in 1877.
Form of subpoena duces tecum used for compelling production of
telegrams in 1877, but criticized as too general and verbally
defective.
A subpoena served by a deputy did not contain a certificate of the
deputy's appointment.
The House held valid a report transmitted by telegraph from an
investigating committee, and ordered the arrest of a person for
contempt on the strength of it.
A person having been arrested for contempt, a communication from his
counsel was laid before the House.
On December 21, 1876,\2\ the Speaker laid before the House a telegram
from Mr. William R. Morrison, of Illinois, chairman of the Select
Committee to Investigate the Recent Election in Louisiana,
communicating a record of the proceedings in the case of E. W. Barnes,
manager of the Western Union Telegraph Company in New Orleans, a
recusant witness. Under the authority given the committee to send for
persons and papers the committee had caused a subpoena duces tecum to
be issued in the following words and figures:
By Authority of the House of Representatives of the United States of
America.
To John G. Thompson, Esq.,
Sergeant-at-Arms, or His Special Messenger:
You are hereby commanded to summon E. W. Barnes, manager of the
Western Union Telegraph Company at New Orleans, La., to be and appear
before the Louisiana Affairs Special Committee of the House of
Representatives of the United States, of which Hon. William R. Morrison
is chairman, and with you bring all telegrams sent or received by
William Pitt Kellogg [here follow names of seven
-----------------------------------------------------------------------
\1\ Journal, p. 537; Record, pp. 1563, 1564.
\2\ Second session Forty-fourth Congress, Journal, pp. 127-134.
Sec. 1695
others], at the office of the Western Union Telegraph Company, New
Orleans, from and after, the 15th day of August, 1876, in their chamber
in the city of New Orleans, St. Charles Hotel, forthwith, then and
there to testify touching matters of inquiry committed to said
committee. Herein fail not, and make return of this summons.
Witness my hand and the seal of the House of Representatives of the
United States, at the city of Washington, this 13th day of December,
1876.
[seal.]
Samuel J. Randall, Speaker.
Attest:
George M. Adams, Clerk.
On this subpoena was indorsed:
Served personally with a copy of the within at one and one-half
o'clock p.m., December 13, 1876.
John G. Thompson, Sergeant-at-Arms.
By J. W. Polk, Special Messenger.
The witness, when he appeared before the committee, acting under
instructions from officers of the company, refused to produce the
telegrams, whereupon the committee voted to communicate the refusal to
the House. This was done in the form of a transcript of the proceedings
of the committee, signed by the chairman and attested by the clerk.
Annexed to the communication was a letter from President Orton, of the
telegraph company, in which he informed the committee that the company
would not permit its employees to furnish the telegrams, or at least
not until Congress should have approved the subpoenas of the committees
and directed that their demands be enforced.
The communication from Chairman Morrison having been read to the
House, Mr. J. Proctor Knott, of Kentucky, submitted this resolution:
Resolved, That the Speaker of this House issue a warrant, under his
hand and the seal of the House of Representatives, directing the
Sergeant-at-Arms of this House, either by himself or his special
deputy, to arrest and bring to the bar of the House without delay E. W.
Barnes, to answer for a contempt of the authority of this House and a
breach of its privileges, in refusing to produce to the special
committee, of which Hon. William R. Morrison is chairman, now sitting
in the city of New Orleans, certain telegraphic dispatches, in
obedience to a subpoena duces tecum, servied on him the 13th day of
December, 1876, and to be dealt with as the law under the facts may
require.
There was debate \1\ as to the validity of a report transmitted by a
committee in this way, but the Speaker sustained the proceeding. There
was also debate at length on agreeing to the resolution of arrest. Mr.
Garfield urged that a citizen should not be arrested on authority of a
report transmitted by an agency so prone to inaccuracy as the
telegraph; and Mr. George W. McCrary, of Iowa, urged that the subpoena
had been drawn too general in its terms, authorizing too extensive
inquiry into the private affairs of the citizen.
The resolution was agreed to by the House without debate.
On January 3, 1877,\2\ the Speaker, having stated that the Sergeant-
at-Arms, in pursuance of the order of the House, had taken into custody
E. W. Barnes, a recusant witness before the Select Committee to
Investigate the Recent Election in the State of Louisiana, the
Sergeant-at-Arms appeared at the bar of the House with the said Barnes.
The Speaker then laid before the House a communication, addressed to
the
-----------------------------------------------------------------------
\1\ Record, pp. 352-358.
\2\ Journal, pp. 149, 150; Record, p. 408.
Sec. 1696
Speaker by the counsel for the said Barnes, requesting delay in the
appearance of Mr. Barnes until they should have had time to confer with
him.
Mr. Knott submitted the following resolution, which was agreed to:
Resolved, That E. W. Barnes be allowed until Friday, the 5th day of
January, 1877, at 2 o'clock p. m., to make his answer at the bar of
this House to the charge of contempt of its authority and breach of its
privileges pending against him; and that said Barnes be remanded to the
custody of the Sergeant-at-Arms, and by him safely held until the
judgment of the House be had on said charge.
1696. The case of E. W. Barnes, continued.
In 1877 the House, in the course of an investigation of the recent
Presidential election, compelled the production of telegrams by an
employee of the Company having actual custody of them.
A witness arraigned for contempt was accompanied by his counsel; but
his request that he be heard by counsel was granted only to the extent
of being permitted to respond in writing.
In an arraignment in 1877 the answer of the respondent, prepared by
his counsel, was attested.
Discussion of the effect of a State law as a limitation on the right
of the House to investigate.
A person arraigned at the bar for contempt was permitted to amend his
answer.
On January 5, 1876,\1\ the hour of 2 o'clock having arrived, in
compliance with the previous order of the House, the Sergeant-at-Arms
appeared at the bar of the House, having in custody E. W. Barnes, a
recusant witness. Mr. Barnes was accompanied by his counsel.
Whereupon the following interrogatory was propounded to him by the
Speaker:
Mr. Barnes, it is the duty of the Chair to ask you what excuse you
have to offer for your failure to produce before the committee of this
House, sitting at New Orleans, on the 18th day of December, 1876, or
thereabouts, certain telegrams called for by subpoena duly served upon
you?
The said Barnes desiring to be heard by counsel,
Ordered, That leave be granted the witness to make his statement in
writing, to be read from the Clerk's desk.
The same having been read, Mr. Knott submitted the following
resolution, which was agreed to:
Resolved, That the report of the committee, the answer just read to
the House, and all other papers relating to the breach of the privilege
of this House and contempt of its authority, alleged to have been
committed by E. W. Barnes, now in custody and at the bar of the House,
be referred to the Committee on the Judiciary, with instructions to
report as early as practicable what action, in their judgment, should
be taken by the House in relation thereto.
The record of debates shows that the witness, in reply to the
question put by the Speaker, stated that, as the precedent in the case
of Kilbourn would prevent his being heard by counsel, he asked that his
written statement, prepared by his counsel, be read.
The Speaker expressed the opinion that this statement should be under
oath, but stated that he would be governed by the opinion of the House.
Some diversity
-----------------------------------------------------------------------
\1\ Journal, p. 164; Record, pp. 452-455.
Sec. 1696
of opinion was expressed; but the question did not come to issue, as it
appeared that the statement was duly attested.
On January 12, 1877,\1\ Mr. Knott, from the Committee on the
Judiciary, reported \2\ the following resolutions:
Resolved, That E. W. Barnes be required to produce to the select
committee of which Hon. William R. Morrison is chairman, the telegrams
mentioned in the subpoena which had not been sent to Mobile by order of
the superintendent before the service of the subpoena upon him on the
13th of December, 1876.
Resolved, That said Barnes be again brought to the bar of the House
and the Speaker then demand of him if he is now willing to produce to
said committee the telegrams mentioned in the subpoena which had not
been sent by him to Mobile before the 13th day of December, 1876, when
the subpoena was served on him, and whether he will do so.
Resolved, That if said Barnes shall answer that he is now willing to
produce said telegrams to said committee, and promises to do so, he
will be allowed to do so without unnecessary delay, and upon so doing
he shall be discharged from custody.
In reporting these resolutions the committee took the ground that the
messages were not privileged, on account of their transmittal by
telegraph. A telegraphic communication was not different from one
transmitted orally or on a piece of paper through the hands of a third
person. (Judge Cooley, and Henisler v. Freedman, 2 Parsons' Select
Cases, 274, and State v. Litchfield, 58 Maine, 267, are referred to on
foregoing branch of question.)
As to the contention of the witness that the legal possession and
control of the messages did not reside in him as a subordinate
employee, and that he could not produce them without a breach of duty,
the committee find, after discussing incidentally the law of the case,
and referring especially to Lord Ellenborough's opinion (Amy v. Long, 9
East., 473), that Barnes actually did have the authority, given him by
a general order of the telegraph company, to produce the telegrams at
the time the subpoena was served on him.
The plea of the witness that the subpoena was verbally defective in
the use of the word ``you'' for ``him,'' was dismissed as not made in
good faith.
The contention that the subpoena was in effect a ``general warrant,''
and within the prohibition of the Fourth amendment to the Constitution,
the committee dismisses on the authority of the case of The United
States v. Orville E. Babcock (3 Dillon's C. C. R., 567).
The contention that the law of Louisiana in relation to telegraph
messages, making them confidential, prevented the witness from
disclosing the messages, is thus treated by the report:
It has never been questioned that the House of Representatives has
the inherent power under the Constitution, from the very nature and
purposes of its organization, to institute any investigation which in
its judgment may be necessary to the proper discharge of any of its
functions, that in such investigations it has the power to examine
witnesses, and to require the production of any paper that may be
necessary to render the same effectual, and that its jurisdiction in
that regard is coextensive with the limits of the United States,
including Louisiana. It is, furthermore, certain that it may, in the
exercise of those powers, act through a committee regularly appointed
and authorized for that purpose. These principles are so universally
understood and admitted that it requires neither argument nor authority
-----------------------------------------------------------------------
\1\ Journal, pp. 212-214; Record, pp. 602-608.
\2\ House Report No. 99, Second session Forty-fourth Congress.
Sec. 1696
for their illustration. It follows, therefore, that the law of any
State which might, either directly or by implication, undertake to
abridge the exercise of any of these powers by the House would be in
derogation of its constitutional functions, and to that extent
absolutely void.
When the resolutions were offered on behalf of the committee, Mr.
Garfield noted the fact that they were so worded as to establish the
foundation of the contempt, if there should be any, in the present and
not past refusal to produce the messages.
The resolutions were then agreed to without debate.
The Sergeant-at-Arms thereupon appeared at the bar of the House
having in custody the witness, to whom the Speaker propounded the
following question:
Mr. Barnes, are you now willing to produce before the committee
sitting in New Orleans, of which William R. Morrison is chairman, the
telegrams mentioned in the subpoena which had not been sent by you to
Mobile before the 13th day of December, 1876, when the subpoena was
served upon you?
At the suggestion of Mr. George F. Hoar, of Massachusetts, approved
by the Speaker, the resolutions were read to the witness before he was
required to answer.
The question then being again put by the Speaker the witness
answered:
Mr. Speaker, when I left New Orleans I was necessarily superseded,
being under heavy bonds and being unwilling to be responsible for the
money and business of the office when not personally present; I am
therefore not at present in control of anything or any messages in the
New Orleans office. Should I come in possession of the messages again,
and should there prove to be any such messages there as are described
in the subpoena, I will willingly produce them.
The Speaker expressed the opinion that this was not the categorical
answer required by the practice of the House; but, on objection being
raised, did not insist that he might determine what was properly a
function of the House to determine.
Mr. Knott thereupon offered this resolution:
Resolved, That the answer made by the witness, E. W. Barnes, to the
questions propounded to him by the Speaker under the resolution of the
House is not deemed sufficient, and that he be remanded to the custody
of the Sergeant-at-Arms, and by him closely kept until he shall produce
to the committee all telegrams demanded from him and be discharged from
the custody by order of the House.
This resolution having been read, the witness asked leave to modify
his answer; and, by unanimous consent, on motion of Mr. Bernard G.
Caulfield, of Illinois, this request was allowed by the House. A
request of the witness that in returning his amended answer he might be
heard in verbal explanation through counsel, the Speaker held that this
request could only be granted by the House; and objection arising, the
request was not put to the House.
The witness thereupon answered:
I intended my answer to be such as the resolution seemed to me to
require. I thought it proper in candor to inform the House as to my
present circumstances. I am entirely willing to produce the messages,
and will do so if I can.
Mr. Knott withdrew the resolution previously offered by him and
offered the following:
Resolved, That the answer of E. W. Barnes, the witness, to the
questions propounded to him by the Speaker in obedience to the
resolution of the House is not deemed sufficient, and that said Barnes
is hereby adjudged to be in contempt of the authority of this House,
and to have committed a breach of its privileges in refusing to produce
telegrams to the special committee, of which William R. Morrison
Sec. 1697
is chairman, in obedience to the subpoena served upon him on the 13th
of December, 1876, and that he be remanded to the custody of the
Sergeant-at-Arms, to be held in such confinement by him until said
witness shall purge himself of his contempt by producing the telegrams
specified in the subpoena, which he had not sent to Mobile before the
subpoena was served upon him, to said select committee, or until he be
discharged from custody by the order of the House.
After brief debate, this resolution was agreed to, yeas 131, nays 72.
On January 16, 1877,\1\ the Speaker laid before the House the
following letter:
House of Representatives, January 16, 1877.
To the Honorable Speaker of the House of Representatives:
The undersigned would respectfully represent that he intended the
answer he made to the demand made by the Speaker of him when he was
last at the bar to be understood that he was entirely willing to
produce all the messages demanded by the committee to the utmost extent
of his power; and if allowed an opportunity he would honestly and in
good faith use every effort in his power to regain possession of said
messages for that purpose. He wishes to repeat that he is now willing
so to do if he shall be afforded an opportunity, and that if he should
fail he will still be amenable to the action of the House upon a view
of all the facts which have occurred or may transpire. And he now
respectfully asks the opportunity to make the effort to produce the
messages to the committee, which he can not do while he remains in
custody.
Yours, very respectfully,
E. W. Barnes.
On motion of Mr. Eppa Hunton, of Virginia, this letter was referred
to the Committee on the Judiciary.
On January 16 \2\ the following resolution was reported from the
Judiciary Committee (the Journal entry says ``by unanimous consent''),
and agreed to by the House:
Resolved, That E. W. Barnes be permitted to repair at once to New
Orleans, in the custody of a deputy sergeant-at-arms, for the purpose
of procuring the telegraphic dispatches heretofore mentioned in the
report of the Judiciary Committee of this House, and within ten days
bring them before the committee of investigation, at Washington, of
which Hon. William R. Morrison is chairman, and abide the further
action of this House.
On January 31, 1877,\3\ Mr. Knott, by unanimous consent,\4\ from the
Committee on the Judiciary, offered the following resolution, which was
agreed to:
Whereas E. W. Barnes has delivered to the select committee, of which
Hon. W. R. Morrison is chairman, the telegrams in his possession, in
pursuance of the order of this House:
Resolved, That said Barnes be, and he is hereby, discharged from
custody:
1697. An official of a telegraph company not being in actual
possession of dispatches demanded by the House, proceedings for
contempt were discontinued.
Verbal return of the Sergeant-at-Arms on presenting a witness under
arrest for contempt.
A report of an investigating committee, in the form of a letter to
the Speaker, relating to contempt of a witness, was presented as a
question of privilege.
-----------------------------------------------------------------------
\1\ Journal, p. 242; Record, p. 678.
\2\ Journal, p. 244; Record, p. 694.
\3\ Journal, pp. 346, 347; Record, p. 1154.
\4\ The Journal has the entry ``by unanimous consent.'' The Record
indicates that ``unanimous consent'' was not asked.
Sec. 1697
On January 9, 1877,\1\ the Speaker, as a question of privilege, laid
before the House a letter from Hon. William R. Morrison, dated at New
Orleans, La., December 29, 1876, in relation to the failure of William
Orton to respond to a subpoena duces tecum, in the following terms:
By authority of the House of Representatives of the Congress of the
United States of America.
To John G. Thompson, Esq.,
Sergeant-at-Arms, or his special messenger:
You are hereby commanded to summon William Orton, president of the
Western Union Telegraph Company, to be and appear before the select
committee of the House of Representatives of the United States, of
which Hon. William R. Morrison is chairman, to investigate the recent
election in Louisiana, and to bring with you all telegrams in your
possession or under your control received or sent by William E.
Chandler, etc. [names of 12 others given], from and at New Orleans,
La., Washington City, D. C., New York City, N. Y., since the 1st day of
September last, at their chamber, in the city of New Orleans, La., on
26th day of December, 1876, at the hour of 12 o'clock m., then and
there to testify touching matters of inquiry committed to said
committee; and he is not to depart without leave of said committee.
Herein fail not, and make return of this summons.
Witness my hand and the seal of the House of Representatives of the
United States, at the city of Washington, this 18th day of December,
1876.
[seal.]
Sam. J. Randall, Speaker.
Attest:
Geo. M. Adams. Clerk.
As a part of the communication of the chairman, were included letters
from Mr. Orton to Mr. Morrison and to Mr. Speaker Randall. In these
letters the writer called attention to the wording of the subpoena
which, by using the word ``you'' instead of ``him,'' seemed to assume
the possession of the telegrams by the Sergeant-at-Arms, and then went
on to say that he (Mr. Orton) ``had neither personally nor officially
any possession of them; that I have never had any control over them
except as an agent of the Western Union Telegraph Company, through and
by the cooperation of subordinate agents; that the Western Union
Telegraph Company has, without any knowledge or anticipation on my
part, taken from me all power and control over all messages now in the
possession of the company.'' He therefore asked to be excused. In his
letter to Mr. Morrison Mr. Orton alleged ill health also as an excuse
for not going to New Orleans.
The communication also gave minutes of the proceedings of the
committee, and is signed by the chairman and attested by the clerk of
the committee.
The same having been read, Mr. Eppa Hunton, of Virginia, offered a
resolution, which was agreed to, yeas 160, nays 31, providing for the
arrest of Mr. Orton. This resolution was substantially the same as that
agreed to in the case of Mr. Barnes.
On January 15, 1877,\2\ the Sergeant-at-Arms appeared at the bar of
the House having in custody William Orton, and said: ``In obedience to
the order of the House, I have arrested and now have at its bar the
witness, William Orton.''
The Speaker then said:
Mr. Orton, it is the duty of the Chair to ask you what excuse you
have to offer for your failure to appear before a committee of this
House, sitting at New Orleans, to testify and, further, to produce
before said committee, in compliance with the subpoena duces tecum,
duly served on you, and dated the 18th of December, 1876?
-----------------------------------------------------------------------
\1\ Second session Forty-fourth Congress, Journal, pp. 190-194;
Record, pp. 514-518.
\2\ Journal, pp. 219-226; Record, pp. 629-631.
Sec. 1698
Mr. Orton thereupon presented an attested statement in writing in
which were included copies of letters, dispatches, and other
communications which had passed between him and officers and Members of
the House, as well as transcripts of the records of his company showing
that he had no authority to produce telegrams. He disclaimed an
intention of contempt, and asked to be discharged from custody.
Thereupon the communication of Chairman Morrison, the answer of Mr.
Orton, and other papers relating to the case were referred to the
Judiciary Committee.
On January 17,\1\ by unanimous consent, Mr. Hunton submitted this
resolution, which was agreed to:
Resolved, That the Sergeant-at-Arms be, and he hereby is, authorized
and allowed to permit William Orton, a witness now in custody, to
return home to New York for consultation with and treatment by his
attending physicians, in the company of the Sergeant-at-Arms or his
deputy, to return on Friday, the 19th instant, to Washington.
On January 19 \2\ Mr. Hunton, from the Committee on the Judiciary,
submitted the following report, which was agreed to:
That they find from the proof before them that at the time and since
the service of the subpoena upon him the condition of Mr. Orton's
health has been such that it would have probably imperiled his life, or
at least postponed his recovery, to have made the journey to the city
of New Orleans when he was requested to appear, and that for that
reason he should not be held in contempt for failing to make his
personal appearance at the time and place designated.
It further appears that at the time of the service of the subpoena
upon him, and since, Mr. Orton has not had actual possession of the
dispatches demanded with the present capacity to produce them so as to
bring him within the rule laid down by Lord Ellenborough in Amey v.
Long, 9 East, 473, indorsed by the House in the recent matter of E. W.
Barnes. They therefore recommend that said Orton be discharged from
custody.
1698. In 1877 the House imprisoned members of a State canvassing
board for contempt in refusing to obey a subpoena duces tecum for the
production of certain papers relating to the election of Presidental
electors.
A subject being within the power of the House to investigate, it was
held that State officers might not decline to produce records on the
plea that they possessed them in their official capacities.
Several persons arraigned at the bar together for contempt made an
answer in writing and signed, but not sworn to.
A resolution relating to the place of imprisonment of persons in
custody for contempt was admitted as a matter of privilege.
At the end of a Congress the House, by a general order, directed the
discharge of all persons in custody for contempt.
On January 16, 1877,\3\ Mr. William P. Lynde, of Wisconsin, from the
Committee on the Judiciary, to which was referred the report of the
select committee to investigate the recent election in Louisiana in
relation to the contempt and breach of the privileges of the House by
J. Madison Wells, Thomas C. Anderson,
-----------------------------------------------------------------------
\1\ Journal, p. 243.
\2\ Journal, p. 258; Record, p. 753.
\3\ Second session Forty-fourth Congress, Journal, pp. 242, 246, 247;
Record, pp. 668-678, 695-704.
Sec. 1698
G. Casanave, and Louis M. Kenner, in refusing to produce to said
committee certain papers mentioned in a subpoena duces tecum duly
served upon them, and each of them, submitted a report in writing,
accompanied by the following resolution:
Resolved, That the Speaker of this House issue a warrant, under his
hand and the seal of the House of Representatives, directing the
Sergeant-at-Arms of this House, either by himself or his special
deputy, to arrest and bring to the bar of the House without delay J.
Madison Wells, etc. [giving names of the others], to answer for a
contempt of the authority of this House and a breach of privilege, in
refusing to produce to the special committee of which Hon. William R.
Morrison is chairman, now sitting in New Orleans, certain papers in
obedience to a subpoena duces tecum which was duly served upon them,
and to be dealt with as the law under the facts may require.
After debate, and on the succeeding day, the resolution was agreed
to, yeas 158, nays 81.
The report, giving reasons for the resolutions, was read from the
Clerk's desk by Mr. Lynde.\1\ The report began by stating that the
gentlemen named in the resolution--
claiming to be the returning board of canvassers for said State, have
refused to obey a subpoena duces tecum, duly issued and served upon
them, commanding them to appear before the committee now sitting in New
Orleans and bring with them ``all returns of elections, all
consolidated statements of supervisors of elections, all statements of
votes, and tally sheets for each polling place at the late election for
electors for President and Vice-President of the United States,
together with all affidavits, depositions, protests, and other written
proofs in their possession or under their control, touching the said
election in certain parishes,'' naming them.
The witnesses refusing to obey the subpoena have sent a written
communication to the investigating committee, claiming that these
papers are ``a part of the records of the returning officers of
elections for the State of Louisiana and are in the possession of the
returning officers in their official capacity;'' and submit that ``the
board of returning officers of elections for Louisiana is a body
created by the laws of Louisiana, with specific and well-defined
duties, partly ministerial and partly quasi-judicial; that their action
under the law of their creation is final to the extent provided by the
law, and is not subject to review by any State or national tribunal.''
Your committee do not feel called upon at this time to express an
opinion upon the question as to whether ``the action of the returning
officers is subject to review by any State or national tribunal,''
The Constitution of the United States, Article II, section 1,
provides that ``each State shall appoint, in such manner as the
legislature thereof may direct, a number of electors equal to the whole
number of Senators and Representatives to which the State may be
entitled in the Congress.''
The committee claimed for Congress the right to inquire whether the
persons claiming to be electors had been properly chosen, and that the
power to legislate on this subject rested in Congress alone. Charges of
fraud had been made against this returning board, and the witnesses
were subpoenaed to appear and testify in regard to the charges.
Your committee [continues the report] are of the opinion that these
charges are within the power and duty of the House to investigate, and
that the returning officers, either in their individual or official
capacity, can not conceal fraudulent acts or violations of law in the
appointment of electors * * * under the claim that in perpetrating the
fraud or violating the law they were acting in an official capacity as
State officers. Courts sometimes excuse public officers from producing
papers in their possession and custody upon the ground of public
convenience, and substitute secondary evidence or copies of such papers
for the original. But it is a rule adopted for public convenience and
is never applied when the original is necessary, as in a case of
forgery or perjury, or when the original alone can answer the purpose
and object of the investigation. * * * It is true that courts do not
require public officers to disclose secrets of state, but here are no
state secrets; these papers * * * are public in their
-----------------------------------------------------------------------
\1\ Record, p. 668.
Sec. 1698
character, and every American citizen is interested in them. Your
committee do not recognize the rights of any citizen or officer,
whether Federal or State, to defeat an investigation of either House
which may involve the existence of the Government by refusing to appear
and testify. If a State officer can be compelled to appear before a
committee of this House appointed to investigate a question involving
the existence of the Government, then it is for the House to determine
when the power shall be exercised.
Therefore the committee reported the resolution. This was debated at
length, it being urged in opposition that the appointment of electors
was a State function, and that to inquire into it was an invasion of
State sovereignty. The records of a State might not be thus taken by
authority of Congress. The positions of Presidents Jefferson and
Jackson as to production of papers were cited \1\ in this connection.
At the close of the debate the resolution was adopted, as stated above.
On January 27, 1877,\2\ the Sergeant-at-Arms appeared at the bar of
the House having in custody the bodies of those specified in the
resolution of arrest.
Thereupon the following interrogatory was propounded to the said
Wells, Anderson, Casanave, and Kenner:
It is the duty of the Chair to ask you what excuse you have to offer
for your failure to appear before a committee of this House, sitting in
the city of New Orleans, La., on the 12th day of December, 1876, and to
produce before the said committee certain books and papers called for
in the subpoena duces tecum duly served upon you.
To which the said Wells, Anderson, Casanave, and Kenner being
severally interrogated severally replied that they desired time for
consultation, and requested that they be allowed until Monday or
Tuesday next at 1 o'clock to make reply to said interrogatory.
Thereupon Mr. Lynde, from the Committee on the Judiciary, reported
the following resolutions:
Resolved, That J. Madison Wells, Thomas C. Anderson, G. Casanave, and
Louis M. Kenner be, and are hereby, adjudged to be in contempt for a
violation of the privileges of this House.
Resolved, That J. Madison Wells, etc., [names given] be, and are
hereby, ordered to appear before the special committee appointed to
investigate the recent election in Louisiana, of which Hon. William R.
Morrison is chairman, and produce all consolidated returns of
supervisors of election, all statements of votes and tally sheets for
each polling place in the late election for electors of President and
Vice-President, together with all affidavits, depositions, protests,
and other written proofs in their possession or under their control on
the 11th day of December, 1876, touching the said election in the
parishes of East Baton Rouge, etc. [here follows enumeration of
parishes], and that said witnesses be remanded to the custody of the
Sergeant-at-Arms, and be by him closely kept until the further order of
this House.
Pending action on these resolutions, by unanimous consent on motion
of Mr. John Hancock, of Texas, the respondents were allowed thirty
minutes for consultation, before replying to the said interrogatory.
The House thereupon proceeded to other business, and after a time the
Sergeant-at-Arms again appeared at the bar of the House having in
custody the bodies of the said Wells, Anderson, Casanave, and Kenner.
By unanimous consent leave was granted them to make reply to the said
interrogatory in writing, to be read from the Clerk's desk. This reply
\3\ cited the laws of Louisiana relating to the functions of the
returning board; claimed that public
-----------------------------------------------------------------------
\1\ By Mr. William P. Frye, of Maine, Record, p. 670.
\2\ Journal, pp. 313-317; Record, pp. 1065, 1072.
\3\ Record, p. 1069, 1070.
Sec. 1699
records and documents of the government were not to be wrested by
subpoena from sworn custody; claimed also that they should be proven by
examination and exemplified copies; asserted that the investigating
committee were tendered full, ample, and complete inspection of the
papers in question; asserted that to have surrendered the documents on
December 12, 1876, would have involved a violation of the sworn duties
of the respondents; and finally declared that on January 5, 1877, under
the terms of law, the papers demanded by the subpoena had been
deposited with the secretary of state of Louisiana.
This reply was signed by the respondents; but Mr. Lynde raised the
point that it was not sworn to. The Speaker \1\ said that the practice
of the House had varied, but of late it had tended in the direction of
requiring the oath.
Mr. Lynde, however, waived this point.
The reply having been read, the House then agreed to the two
resolutions under the operation of the previous question, the first
being agreed to yeas 145, nays 87, and the second, yeas 137, nays 77.
On February 8 \2\ Mr. Eugene Hale, of Maine, proposed as a question
of privilege a resolution directing the Sergeant-At-Arms to remove
Messrs. Wells and Anderson, ``now confined in this Capitol, to a place
more suitable'' and where the health of the witnesses might not be
endangered. The Chair decided the matter to be privileged.\3\ The
resolution was, on motion of Mr. S. S. Cox, of New York, referred to
the select committee on the late election in Louisiana with
instructions to investigate and report.
On March 2,\4\ three attempts were made to suspend the rules so as to
consider and pass a resolution discharging Messrs. Wells, Anderson,
Casanave, and Kenner from custody; but each time there was failure to
get a two-thirds vote in favor of the resolutions.
On March 2,\5\ (calendar day of March 3) Mr. J. Randolph Tucker, of
Virginia, by unanimous consent submitted the following preamble and
resolution, which were considered and agreed to:
Whereas all the investigations which have been directed by this House
have been virtually closed, and no more testimony can be taken by
reason of the near adjournment of the House, and the further
imprisonment of witnesses in contempt of the authority of this House
can not conduce to the truth sought by said investigations: Therefore,
Resolved, That the Sergeant-at-Arms be directed to discharge this day
all persons held by him under order of this House for contempt of its
authority.
1699. For declining to testify or to obey a subpoena duces tecum
commanding him to produce certain papers to be used in impeachment
proceedings against himself George F. Seward was arraigned for
contempt.
After consideration a committee concluded that an official threatened
with impeachment was not in contempt for declining to be sworn as a
witness or to produce documentary evidence.
-----------------------------------------------------------------------
\1\ Samuel J. Randall, of Pennsylvania, Speaker.
\2\ Journal, p. 401; Record, pp. 1359-1365.
\3\ Record, p. 1360.
\4\ Journal, pp. 616, 622, 631; Record, pp. 2109, 2131.
\5\ Journal, p. 640: Record, p. 2143.
Sec. 1699
A person before a committee declining to give evidence, the committee
tendered him oaths as a witness, which he refused.
Being arraigned for contempt, George F. Seward presented a written
statement signed by himself and counsel, but not attested, and this
answer appears in full in the Journal.
Form of a subpoena duces tecum issued by order of the House.
On February 22, 1879,\1\ Mr. William M. Springer, of Illinois, from
the Committee on Expenditures in the State Department, submitted a
report in regard to the alleged contumacy of George F. Seward. The
report set forth that the committee had been empowered by resolution of
the House to investigate the business of the State Department, past and
present, with power to send for persons and papers; that there had been
referred to the committee a memorial preferring charges of misconduct
in office against George F. Seward, late consul-general at Shanghai,
China, and at this time minister to China. The committee having failed
to obtain certain books and papers, the following subpoena duces tecum
was issued on February 19:
By authority of the House of Representatives of the Congress of the
United States of America.
To John G. Thompson, Esq.,
Sergeant-at-Arms, or his special messenger:
You are hereby commanded to summon George F. Seward to be and appear
before the Expenditures of State Department Committee of the House of
Representatives of the United States, of which Hon. William M. Springer
is chairman, and the said George F. Seward is hereby commanded and
required to diligently search for and bring with him and produce before
said committee all blotters, rough books, cashbooks, journals, and
ledgers kept and used in the office of the consul-general at Shanghai,
China, during his (said Seward's) incumbency of the office of consul-
general at Shanghai, including any that may have been taken by him
(said Seward) to Peking, China, in their chamber, in the city of
Washington, on the 20th day of February, 1879, at the hour of 10
o'clock in the forenoon, then and there to testify touching matters of
inquiry committed to said committee; and he is not to depart without
leave of said committee.
Herein fail not, and make return of this summons.
Witness my hand and the seal of the House of Representatives of the
United States, at the city of Washington, this 19th day of February,
1879.
[L. S.]
Sam. J. Randall, Speaker.
Attest:
George M. Adams, Clerk.
The report goes on to state that Mr. Seward appeared before the
committee on February 20 and answered the inquiry of the committee as
to his readiness to produce the books, by an argument of his counsel as
to the authority of the House to compel their production. The committee
thereupon adopted a series of resolutions reciting that the books in
question were public and not private; that they were necessary to the
inquiry; that said Seward had possession of the books and illegally
deprived the committee of their use, etc., and, finally, that, should
he fail to produce them, the chairman of the committee should tender to
him the following qualified oath:
You do swear that you will true answer make to such questions as may
be put to you touching the possession, custody, and whereabouts of the
books called for by the subpoena duces tecum served upon you?
-----------------------------------------------------------------------
\1\ Third session Forty-fifth Congress, Journal, pp. 496, 547, 555;
Record, pp. 1770-1777, 2005-2016.
Sec. 1699
And, further, it was resolved that the chairman should tender to him
the general oath, as follows:
You do solemnly swear that the evidence you will give touching the
matters of inquiry committed to this committee and the answers you will
give to the questions propounded to you by or on behalf of this
committee touching such matters shall be the truth, the whole truth,
and nothing but the truth, so help you God?
These oaths being successively tendered to the witness, he stood mute
in each case. Then his counsel presented an argument that the said
George F. Seward was protected by the constitutional guaranty that ``no
person shall be compelled in any criminal case to be a witness against
himself.'' The answer, therefore, denied the efficacy of the subpoena,
and also protested that the said Seward had not been heard by counsel
or otherwise on the matters of fact set forth by the committee in
regard to the books and papers in question, and denied that any books,
public in the light of the law, had been wrongfully withheld.
The committee, after referring to the law in regard to witnesses
summoned before committees, proceeded with an argument to show that an
investigation before a Congressional committee is not a criminal case
within the meaning of the Constitution. Mr. Seward was not a ``party,''
instead of a witness, simply because counsel and testimony had been
heard for and against him. The committee were investigating, but not
trying him.
Therefore the committee recommended the following:
Ordered, That the Speaker issue his warrant, directed to the
Sergeant-at-Arms attending this House, or his deputy, commanding him to
take into custody forthwith, wherever to be found, the body of George
F. Seward and him bring to the bar of the House, to show cause why he
should not be punished for contempt; and in the meantime keep the said
George F. Seward in his custody to abide the further order of the
House.
This report was signed by Messrs. Springer; Benjamin Dean, of
Massachusetts; Stephen L. Mayham, of New York, and Thomas Turner, of
Kentucky.
The minority of the committee, Messrs. Solomon Bundy, of New York,
Thomas M. Bayne, of Pennsylvania, and Mark H. Dunnell, of Minnesota,
submitted views, arguing at length to show that the inquiry was a
criminal case within the meaning of the Constitution, and also arguing
that the books required were not, as the committee report held, public
archives such as a consul was required by law or regulation to keep,
but were private books such as he should not be required to produce.
The minority therefore proposed the following resolutions:
Resolved, That the reasons given by Hon. George F. Seward, through
his counsel, to the committee are legally sufficient to excuse his
failure to produce the books described in the subpoena duces tecum, and
his standing mute when tendered the oaths required by the resolutions
of the committee, adopted by a majority of this committee, and his
conduct in the premises are not contumacious, but are excusable by the
Constitution and laws of the United States and the acts of Congress
pertaining thereto.
Resolved, That the Speaker should not issue his warrant directing the
Sergeant-at-Arms to take into custody the body of George F. Seward, to
the end that he be brought to the bar of the House to show cause why he
should not be punished for contempt.
The question being taken first on the resolutions of the minority,
they were disagreed to--yeas 119, nays 142.
The order proposed by the committee was then agreed to--ayes 105,
noes 47.
Sec. 1699
In the course of the debate on the above report reference was made to
the refusal of President Jackson, in 1837, to give to a committee
information on which impeachment proceedings might be founded.
On February 28 \1\ the Sergeant-at-Arms appeared at the bar of the
House having in custody the body of George F. Seward; whereupon the
said Seward was arraigned and the following interrogatory propounded to
him by the Speaker:
Mr. Seward, you are presented at the bar of the House, upon the order
of the House, under arrest on an alleged breach of the privileges of
the House, in refusing to answer certain questions propounded to you by
a committee of the House, which questions that committee was authorized
by the House to ask, and for standing mute when tendered an oath as a
witness, and for failing to produce certain books as required by a
subpoena duces tecum duly served on you. It is my duty now, by
authority of the House, to ask whether you are ready to take the oath
tendered to you by the chairman of the committee, to answer the
questions propounded to you by the committee, and to produce the books
as required by the subpoena duces tecum served on you.
The said George F. Seward, in response, presented a written
statement, signed by himself and counsel, but not attested under oath.
This statement appears in full in the Journal.
The statement contends that the committee were making the
investigation with a view to his impeachment, and that the subpoena was
void and inoperative because of the constitutional guaranty. This
guaranty applied to legislative bodies, as was shown by the case Ex
parte Emery (107 Mass.), wherein it was shown that an inquiry before a
legislative body should not be inquisitorial, and that in this country
the parliamentary usage was subordinated to constitutional provision,
although in England Parliament may have been above the common law. The
statement then presents the argument made by the minority of the
committee as to the nature of the books demanded.
The answer having been read, Mr. Springer submitted the following
resolution:
Resolved, That George F. Seward, having been heard by the House,
pursuant to the order heretofore made requiring him to show cause why
he should not respond to the subpoena duces tecum by obeying the same
so far as the same requires the production of the books described in
the subpoena duces tecum be, and is therefore, considered in contempt
of the House because of his failure to produce said books.
Mr. Bundy, in behalf of the minority of the committee, submitted the
following as an amendment in the nature of a substitute:
Resolved, That the answer of George F. Seward in response to the
order voted by the House and issued by the Speaker, requiring him to
show cause why he should not be declared in contempt, and all evidence
and papers pertaining thereto, together with the reports of the
committee, be referred to the Committee on the Judiciary, with
instructions to report as early as practicable what action in their
judgment should be taken by the House in relation thereto.
On agreeing to the substitute there were yeas 112, nays 108.
The resolution as amended was then agreed to.
It was then,
Ordered, That Mr. Seward be discharged on his own personal
recognizance to appear again upon notice.
-----------------------------------------------------------------------
\1\ Journal, pp. 567-577; Record, pp. 2138-2144.
Sec. 1700
Subsequently, on March 1,\1\ the Committee on Expenditures in the
State Department reported articles of impeachment against Seward. On
March 3, the last day of the session and of the Congress, an attempt to
bring this report to a vote brought on a discussion as to the propriety
of proceeding by impeachment against a man under arrest for contempt.
The articles were not voted on.
1700. The case of George F. Seward, continued.
Discussion distinguishing a case of impeachment from the ordinary
investigation for legislative purposes.
Discussion of the right of the House to demand papers of a public
officer.
Discussion of the use of the subpoena duces tecum in procuring papers
from public officers.
On March 3 \2\ Mr. Benjamin F. Butler, of Massachusetts, reported
from the Committee on the Judiciary, the report in the last hours of
the session being ordered to be printed and laid on the table. This
report \3\ I held:
The facts necessary to raise the question succinctly state themselves
in this way: By resolution of the House the Committee on Expenditures
in the State Department were in charge of the investigation of the
official conduct of George F. Seward, late consul-general of the United
States in China, and now minister resident there. Mr. Seward came
before the committee--appeared by counsel; charges were filed against
him for sundry malfeasances in office, looking to his impeachment if
proven, and evidence was taken to sustain such charges. The committee
deem it important that they should have before them certain books kept
by him while such consul-general, and which, it was claimed, showed
entries tending to substantiate the accusations. There was evidence
before the committee tending to show that those books were the public
records of the consulate and the property of the United States. Mr.
Seward claimed that they were books in which he kept his governmental
and his private transactions for his personal use, and that he had
returned to the State Department or left in the consulate all the books
of the United States. The committee procured a subpoena duces tecum
directed to him, which was served on Mr. Seward, commanding him to
produce these books for the purpose of being used in evidence against
him. Mr. Seward appeared in obedience to the subpoena, but declined to
be sworn as a witness in a case where crime was alleged against him and
where articles of impeachment might be found against him, claiming
through his counsel his constitutional privilege of not being obliged
to produce evidence in a criminal case tending to criminate himself.
Upon this refusal the Committee on Expenditures in the State
Department brought Mr. Seward before the House to show cause at its bar
why he should not be sworn as a witness, and why he should not obey the
order of the Home, through its subpoena, to produce the documentary
evidence called for.
Mr. Seward, when before the House, in answer to the question of the
Speaker, set up practically the same claim that he did before the
committee. Upon a resolution proposed by the minority of such
committee, the question was referred by a vote of the House to its
Judiciary Committee as to whether the cause shown by Mr. Seward for not
obeying the subpoena of the House and declining to be sworn as a
witness was a sufficient answer.
Investigations looking to the impeachment of public officers have
always been finally examined before the Judiciary Committee of the
House, so far as we are instructed, and it is believed that the cue can
not be found as a precedent where the party charged has ever been
called upon and compelled to give evidence in such case. We distinguish
this case from the case of an ordinary investigation for legislative
purposes, where all parties are called upon to give such evidence (oral
or written) as may tend to throw light upon the subject of
investigation, but even in those cues it was early held that a person
called as a witness, and not a party charged before the committee, was
not bound to criminate himself, and a statute familiar to the House for
the protection of witnesses under such circumstances, from having the
evidence given used against them, was passed.
-----------------------------------------------------------------------
\1\ Journal, p. 601; Record, pp. 2350, 2362-2364.
\2\ Journal, p. 670.
\3\ House Report 141, third session Forty-fifth Congress.
Sec. 1700
In making an investigation of the facts charged against an officer of
the United States looking to impeachment, the House acts as the grand
inquest of the nation to present that officer for trial before the
highest court known to our Constitution, the Senate of the United
States, for such punishment as may be constitutionally imposed upon
him, which is very severe in its penalties, and even then does not
exonerate the party from further prosecution before the proper courts
for offenses against the laws.
If these books of Mr. Seward's are his private books, kept for his
personal use, or whether they contain records of his action as a public
officer intermixed or otherwise with his private transactions, it is
believed he can not be compelled to produce them. A public officer may
well keep a duplicate set of records of his transactions as such for
his own use and protection, and he may, at his will, mingle therewith
his own private transactions, and as a party to a contestation between
the United States and himself, looking to his trial and punishment for
alleged criminal transactions, he can not be compelled to produce such
books nor answer concerning them, but he is protected by the
constitutional provision (which is, after all, only a translation of a
clause of Magna Charta), and which is a distinguishing characteristic
of criminal procedure at common law in England, as opposed to criminal
procedure by the civil law in other European States. Even if he had
possessed himself of public records which contained evidence to accuse
him of crime in such a contestation (which makes a criminal case), it
seems to your committee the question would be more than doubtful
whether he could be called upon to produce such books.
A subpoena duces tecum is not the remedy of the Government. If he has
embezzled or stolen the books, he may be proceeded against criminally
therefor. If he refuses to produce them to his superior officer, who
has a right to call for them if public books, then they may be got out
of his hands by a writ of replevin or other proper process.
If the question in whom is the title to these books would be the test
as to the question whether the accused himself were obliged to produce
them as evidence against himself, then a question would at the outset
arise, How is title to be tried? If the books are private, they are not
to be produced. Can a man's title to his private property be tried and
decided against him collaterally so as to deprive the accused of his
rights? Your committee believe that it can not.
If, as the Committee on Expenditures in the State Department believe,
these are public books, then it seems very queer to your committee that
that committee have mistaken the proper procedure in a court of
justice. Their subpoena duces tecum should be issued to the highest
executive officer having charge, custody, and control of such public
records. Since the case of Burr where a subpoena duces tecum was
demanded of the court by the defendant against Thomas Jefferson, then
President of the United States, and the right to have such writ issued
was determined by the Chief Justice--to have a certain letter, known as
``the Wilkinson letter,'' then on the files of the State Department
produced, the usual course has been for a committee of Congress to
direct a letter to the head of the proper Department, or the House, by
resolution, to call upon the proper executive officer to produce the
same, leaving that officer to get possession of the books from his
subordinate by any lawful means. But it may be asked, Can not the House
direct a subpoena to any executive officer of the Department to produce
any books actually in his possession in the course of official duty,
and bring them before the House for the purpose of information or to
aid an inquiry? Certainly that can be done, and, in proper cases, ought
to be done; but, in contemplation of law, under our theory of
government, all records of the Executive Departments are under the
control of the President of the United States; and although the House
sometimes sends resolutions to a head of a Department to produce such
books or papers, yet it is conceived that in any doubtful case no head
of Department would bring before a committee of the House any of the
records of the Department without permission of, or consultation with,
his superior, the President of the United States; and all resolutions
directed to the President of the United States to produce papers within
the control of the Executive, if properly drawn, contain a clause, ``if
in his judgment not inconsistent with the public interest.'' And
whenever the President has returned (as sometimes he has) that, in his
judgment it was not consistent with the public interest to give the
House such information, no further proceedings have ever been taken to
compel the production of such information. Indeed, upon principle, it
would seem that this must be so. The Executive is as independent of
either House of Congress as either House of Congress is independent of
him, and they can not call for the records of his action or the action
of his officers against his consent, any more than he can call for any
of the journals or records of the House or Senate.
The highest exercise of this power of calling for documents perhaps
would be in the course of justice by the courts of the United States,
and the House would not for a moment permit its journals to
Sec. 1701
be taken from its possession by one of its assistant clerks and carried
into a court in obedience to a subpoena duly issued by the court.
The mischief of the House calling for documents might easily be a
very great one. Suppose the President is engaged in a negotiation with
a foreign government, one of the most delicate character upon which
peace or war may depend, and which it is vitally necessary to keep
secret; must he, at the call of the House, or of any committee of the
House, spread upon its records such state secrets to the detriment of
the country? Somebody must judge upon this point. lt clearly can not be
the House or its committee, because they can not know the importance of
having the doings of the Executive Department kept secret. The head of
the Executive Department therefore must be the judge in such cases and
decide upon his own responsibility to the people and to the House, upon
a case of impeachment brought against him for so doing, if his acts are
causeless, malicious, willfully wrong, or to the detriment of the
public interest.
Your committee regret that it has been impossible for the House to
furnish them sufficient time in which this grave question might be more
satisfactorily and exhaustively examined; but viewing it with the best
light in which we find it, we are constrained to the conclusion at
which we have arrived.
Therefore, your committee report to the House that, in their opinion,
George F. Seward has shown sufficient cause why he should not be sworn
as a witness in the investigation of charges looking to his impeachment
by the Committee on Expenditures in the State Department, and why he
should not produce the books, whether they are private books solely,
or, for the reason above stated, are public books, in which criminatory
matter may be contained; and therefore recommend the adoption of the
following resolution:
Resolved, That, under the facts and circumstances reported from the
Committee on Expenditures in the State Department, George F. Seward was
not in contempt of the authority of this House in refusing to be sworn
as a witness or produce before said committee the books mentioned in
the subpoena duces tecum.
1701. In 1891 a witness in contempt for refusing to testify before a
committee was arrested and arraigned, and after purging himself of the
contempt was discharged.
In the latest practice a committee in reporting the contempt of a
witness shows that the testimony required is material and presents
copies of the subpoena and return.
A subpoena having been served by a deputy Sergeant-at-Arms, a
certificate of his appointment should accompany a report requesting
arrest of the witness for contempt.
It was not thought necessary that mileage and fees should be tendered
a witness before arresting him for contempt in declining to answer.
In ordering the arrest of a witness for contempt, the House embodied
in a preamble the report of the committee showing the alleged contempt.
A witness arraigned for contempt answered orally and without being
sworn.
A witness having promised when arraigned to testify before a
committee, the House gave him permission to do so, but did not
discharge him from custody until the committee reported that he had
purged himself.
On January 29, 1891,\1\ Mr. Nelson Dingley, of Maine, from the select
committee appointed to investigate the alleged ``silver pool,''
submitted a report, setting forth that J. A. Owenby had been duly
subpoenaed to appear before the committee, that service was duly made
on him, but that he had refused or neglected to obey the sub-
-----------------------------------------------------------------------
\1\ Second session Fifty-first Congress, Journal, pp. 195, 196;
Record, pp. 1973-1976.
Sec. 1701
poena.\1\ The report goes on to show that the said Owenby was a
material witness, inasmuch as the correspondent of the paper making the
charges against Members of the House in connection with the alleged
pool had in his testimony stated that Owenby was the authority for what
he had stated, and claimed to have personal knowledge of the facts
alleged. The report also was accompanied by copies of the subpoena, the
return of the deputy sergeant-at-arms, and certificate of his
appointment.
Having submitted the report, Mr. Dingley offered the following:
Ordered, That the Speaker issue his warrant directing the Sergeant-
at-Arms attending this House or his deputy, commanding him to take into
custody forthwith, wherever to be found, the body of J. A. Owenby, and
bring him to the bar of the House, to show cause why he should not be
punished for contempt; and in the meantime keep the said J. A. Owenby
in his custody to await the further order of the House.
Mr. Dingley stated that this proceeding was proposed in accordance
with the uniform precedents of the House. In the debate that followed
it was asked whether the mileage and fees had been tendered to the
witness; but Mr. Dingley replied that after consideration the committee
had thought this unnecessary. The headnotes of the decision in the case
of Kilbourn v. Thompson were read during the debate. After the debate
Mr. Dingley modified his resolution by prefixing thereto the following:
Whereas the special committee appointed by the House to investigate
alleged silver pools presented the following report, to wit: (Here
followed the report in full).
The resolution as amended was agreed to.
On February 2,\2\ the Sergeant-at-Arms appeared at the bar of the
House having in custody the body of J. A. Owenby, and addressing the
Speaker announced that fact.
The said Owenby was thereupon arraigned and the following
interrogatory propounded to him by the Speaker:
Mr. Owenby, you have been arrested for contempt of the House in
disobeying its summons. What have you to say in excuse therefor?
The said Owenby having made a statement to the House, orally and not
under oath, the Speaker thereupon propounded the following
interrogatory to the said Owenby:
Are you now ready to appear before the committee?
-----------------------------------------------------------------------
\1\ The resolution authorizing this investigation was agreed to on
January 12, 1891 (second session Fifty-first Congress, Journal, p.
121), as follows:
Resolved, That the Speaker appoint a special committee of five
Members of the House, and that such committee be instructed to inquire
into all the facts and circumstances connected with silver pools in
which Senators and Representatives were alleged to be interested; also
with the said alleged purchase and sale of silver prior to and since
the passage of the act of July 14, 1890, including the names of persons
selling the same; and also who are the owners of the twelve millions of
silver bullion which the United States is now asked to purchase. And
for such purposes it shall have power to send for persons and papers
and administer oaths, and shall also have the right to report at any
time. The expenses of said inquiry shall be paid out of the contingent
fund of the House upon vouchers approved by the chairman of said
committee, to be immediately available.
\2\ Journal, pp. 204, 213; Record, pp. 2068, 2150.
Sec. 1702
To which interrogatory the said Owenby replied that he was now ready
to appear before said committee.
Thereupon Mr. Dingley submitted the following preamble and
resolution, which was agreed to:
Whereas J. A. Owenby has been heard by the House pursuant to the
order made on the 29th day of January, 1891, requiring him to show
cause why he should not be punished for contempt for refusing or
neglecting to respond to the subpoena named in said order by obeying
the same, and has stated to the House that, in purging himself of the
contempt for which he is in custody, he is now willing to obey said
subpoena: Therefore,
Resolved, That the said J. A. Owenby shall have the privilege to
appear forthwith before the special committee of the House to
investigate alleged silver pools, etc., and testify touching matters of
inquiry before said committee; and that in the meantime the said J. A.
Owenby remain in the custody of the Sergeant-at-Arms under said order
until the further order of the House.
On February 4, Mr. Dingley, as a privileged question, reported the
following resolution, which was agreed to:
Resolved, That J. A. Owenby, having been heard by the House pursuant
to the order requiring him to show cause why he should not be punished
for contempt for refusing or neglecting to respond to the subpoena
commanding him to appear before the special committee to investigate
alleged silver pools, and, in purging himself of the contempt for which
he is in custody, has appeared and testified before said committee, is
hereby discharged from the custody of the Sergeant-at-Arms.
1702. In 1880 three recusant witnesses were arraigned at the bar of
the Senate, and having purged themselves of contempt were discharged.
A discussion distinguishing between the serving of a warrant by
deputy and the serving of a subpoena in the same way.
Should the Sergeant-at-Arms make the return on a subpoena served by
his deputy?
Form of subpoena and return thereon used for summoning witnesses by a
Senate committee.
Form of warrant and return thereon used by the Senate in compelling
the attendance of witnesses.
On June 20, 1879,\1\ in the Senate, Mr. Eli Saulsbury, of Delaware,
from the Committee on Privileges and Elections, reported the following
resolution for consideration; which was ordered to be printed:
Resolved, That the Committee on Privileges and Elections, to which
has been referred memorials in relation to the election of Hon. J. J.
Ingalls a Senator by the legislature of the State of Kansas, be, and
said committee is hereby, authorized and instructed to investigate the
statements and charges contained in said memorials; and for that
purpose said committee is empowered to send for persons and papers,
administer oaths, employ a stenographer, clerk, and sergeant-at-arms,
and to do all such acts as are necessary and proper in the premises.
And said committee may appoint a subcommittee of its members to take
testimony in Kansas or elsewhere in the case, which shall report the
testimony taken to the committee in December next; and such
subcommittee shall have the same authority to administer oaths and to
do other necessary acts as are herein conferred upon the full
committee; and the said committee, and the subcommittee which it may
appoint, may sit during the recess of the Senate for the purpose of
making the investigation hereby authorized.
This resolution was agreed to on June 21.
On December 18, 1879, Mr. Saulsbury, from the Committee on Privileges
and
-----------------------------------------------------------------------
\1\ Senate Document No. 11, special session Fifty-eighth Congress,
pp. 692-694.
Sec. 1702
Elections, reported the following resolution; which was considered by
unanimous consent and agreed to:
Whereas J. V. Admire, E. B. Purcell, George T. Anthony, Len. T.
Smith, and Levi Wilson, citizens and residents of the State of Kansas,
were duly served with subpoenas in the months of September and October,
1879, issued by the subcommittee of the Senate Committee on Privileges
and Elections, then sitting in Topeka, in said State of Kansas,
commanding each of them to appear before said subcommittee and then and
there testify in reference to the subject-matters then under
consideration by said subcommittee, to wit, charges relating to the
election of John J. Ingalls a Senator from said State of Kansas; and
Whereas said Admire, Purcell, Anthony, Smith, and Wilson refused to
appear and testify before said subcommittee as required by said
subpoenas: Therefore,
Resolved, That an attachment issue forthwith directed to the
Sergeant-at-Arms of the Senate commanding him to bring said J. V.
Admire, E. B. Purcell, George T. Anthony, Len. T. Smith, and Levi
Wilson forthwith to the bar of the Senate to answer for contempt of a
process of this body.
On January 8, 1880,\1\ the Sergeant-at-Arms appeared at the bar of
the Senate having in custody Leonard T. Smith, Levi Wilson, and E. B.
Purcell, arrested by order of the Senate and brought to its bar to
answer for a contempt of a process of the Senate.
Whereupon the Vice-President laid before the Senate the return of the
writ of attachment issued to the Sergeant-at-Arms commanding him to
bring J. V. Admire, George T. Anthony, Leonard T. Smith, Levi Wilson,
and E. B. Purcell to answer for a contempt of a process of the Senate.
The return having been made, Leonard T. Smith, one of the witnesses,
advanced and made statement of his reasons for failure to answer to the
summons of the Senate and stated that he was ready and willing to go
before the committee and testify.
In treatment of the witness's case questions arose which caused the
reading, both of the original subpoena and return, and the writ of
attachment, with the return thereon.
The subpoena and return thereon were in form as follows:
United States of America,
Congress of the United States:
To George T. Anthony, Charles H. Miller, Levi Wilson, Len. T. Smith,
greeting:
Pursuant to lawful authority you are hereby commanded to appear
before the subcommittee of the Committee on Privileges and Elections
forthwith at their committee room at the court room, Topeka, Kansas,
then and there to testify what you may know relative to the subject-
matters under consideration by said committee.
Hereof fail not, as you will answer your default under the pains and
penalties in such cases made and provided.
Given under my hand, by order of the committee, this 4th day of
October, in the year of our Lord 1879.
Eli Saulsbury,
Chairman Committee.
To Richard J. Bright,
Sergeant-at-Arms of the Senate of the United States.
[Indorsement.]
Senate of the United States,
Office of the Sergeant-at-Arms.
I do appoint and hereby empower J. S. Collins to serve this subpoena,
and to exercise all the authority in relation thereto with which I am
vested by the within order.
R. J. Bright,
Sergeant-at-Arms of the Senate of the United States.
-----------------------------------------------------------------------
\1\ Second session Forty-sixth Congress, Record, pp. 234-241.
Sec. 1702
Washington, D. C., October 6, 1879.
I made service of the within subpoena, through my deputy, J. S.
Collins, by reading the same to the within-named Len. T. Smith, at his
house at Leavenworth, Kans., at 6.05 o'clock, a. m., and on Charles H.
Miller, at his residence in Leavenworth, Kans., at 6.20 o'clock on
George T. Anthony, at his residence in Leavenworth, Kans., at 7 o'clock
a. m., and on Levi Wilson, at 8.20 o'clock in Leavenworth, Kans., on
this 6th day of October, 1879.
R. J. Bright,
Sergeant-at-Arms, Senate of the United States.
The writ of attachment, with the return thereon, was read as follows:
United States of America, ss:
The Senate of the United States of America to Richard J. Bright,
esq., Sergeant-at-Arms of the Senate of the United States, greeting:
By virtue of a resolution of the Senate of the United States, passed
on the 18th day of December, 1879, in the following words, to wit:
Here follows the preamble and resolution in full.]
You are hereby commanded to arrest forthwith J. V. Admire, E. B.
Purcell, George T. Anthony, Len. T. Smith, and Levi Wilson, wheresoever
they may be found, and have their bodies at the bar of the Senate to
answer for a contempt of the authority of the subcommittee of the
Committee on Privileges and Elections, one of the standing committees
of the Senate, and also for a contempt of the authority of the Senate
of the United States in refusing to obey an order of the subcommittee
of the Committee on Privileges and Elections to appear before the said
subcommittee after being duly summoned thereto; and this shall be your
warrant for so doing.
Hereof fail not, and make return of this warrant, with your
proceedings thereon indorsed, on or before the 8th day of January, A.
D. 1880.
In witness whereof I have hereunto set my hand and affixed the seal
of the Senate of the United States the 19th day of December, in the
year of our Lord 1879 and of the Independence of the United States of
America the one hundred and fourth.
[seal.]
W. A. Wheeler,
Vice-President of the United States and President of the Senate.
Washington, D. C., January 8, 1880.
In obedience to the within warrant I have arrested and taken into
custody Leonard T. Smith, Levi Wilson, and E. B. Purcell, and now
produce them at the bar of the Senate.
Respectfully,
R. J. Bright,
Sergeant-at-Arms United States Senate.
Hon. William A. Wheeler,
President of the Senate.
The statement of the witness as to his failure to comply with the
commands of the committee being satisfactory, Mr. Samuel J. R.
McMillan, of Minnesota, moved that the witness be discharged.
A question thereupon arose as to the legality of the arrest of the
witness. Mr. George F. Hoar, of Massachusetts, took the ground that the
Sergeant-at-Arms might not lawfully delegate the duty of serving the
subpoena, and in support of this view cited the Massachusetts decision
(15 Gray, 399) wherein it was held that a warrant issued by order of
the Senate of the United States for the arrest of a witness in contempt
could not be served by a deputy.
Mr. Benjamin H. Hill, of Georgia, called attention to the fact that
the decision just cited referred to a warrant for arrest and not to a
subpoena. The Committee on Privileges and Elections had drawn this
distinction, and when the warrant was drawn they ordered it to be
served by the Sergeant-at-Arms himself, giving him
Sec. 1702
orders not to serve it by deputy. But he conceived that it would be an
absurd thing to hold that a subpoena might not be served by a deputy.
Mr. Hoar further objected that the officer who made the service
should be the one to make the return.
Mr. Hill conceived this to be a technicality. Mr. David Davis, of
Illinois, also held generally that, as the witness had acknowledged
that he had been subpoenaed, too strict technical rules should not be
insisted on.
On motion of Mr. Augustus H. Garland, of Arkansas, the pending motion
was amended by the words:
That the witness, having purged himself of contempt, be discharged.
Mr. Saulsbury offered the following as a substitute:
Whereas Leonard T. Smith, now in custody of the Sergeant-at-Arms on
an attachment for contempt for refusing obedience to a summons to
appear before a committee of the Senate, has purged himself of
contempt, and expressed his willingness to appear before the Committee
on Privileges and Elections and answer such proper questions as may be
put to him: Therefore,
Resolved, That said Leonard T. Smith be discharged from arrest and
that he appear before said Committee on Privileges and Elections and
testify under the subpoena served upon him.
Mr. Garland objected that the preamble was unnecessary, and that as
the witness had purged himself it only remained to discharge him. He
must be discharged absolutely and not on conditions. The Senate could
not anticipate a further contempt.
The amendment of Mr. Saulsbury was disagreed to. Then the motion of
Mr. McMillan as amended by Mr. Garland was agreed to.
The Vice-President \1\ then said:
The witness at the bar is discharged from the rule of attachment.
Levi Wilson, another of the witnesses, having made statement of his
reasons for failure to answer the summons of the Senate, on motion by
Mr. Saulsbury that the witness be discharged from the rule, it was
determined in the affirmative.
E. B. Purcell, another of the witnesses, having made statement of his
reasons for failure to answer to the summons of the Senate, on motion
by Mr. Saulsbury that the witness be discharged from the rule, it was
determined in the affirmative.
On motion by Mr. Saulsbury--
Ordered, That the Sergeant-at-Arms have further time to make return
concerning the failure of J. V. Admire and George T. Anthony, the other
witnesses named in the writ of attachment of December 18, 1879, to
answer for a contempt of a process of the Senate.
On January 20, 1880,\2\ the Sergeant-at-Arms appeared at the bar of
the Senate, having in custody J. V. Admire, to answer for contempt in
refusing obedience to a summons of the Senate.
Whereupon the Vice-President laid before the Senate the return of the
writ of attachment issued to the Sergeant-at-Arms December 18, 1879,
commanding him to bring J. V. Admire, G. T. Anthony, L. T. Smith, Levi
Wilson, and E. B. Purcell to answer for a contempt of a process of the
Senate.
The return was read.
-----------------------------------------------------------------------
\1\ William A. Wheeler, of New York, Vice-President.
\2\ Record, p. 415.
Sec. 1703
The witness having made statement of his reasons for failure to
answer to the summons of the Senate, on motion by Mr. Saulsbury that
the witness be discharged from the rule, it was determined in the
affirmative.
On motion by Mr. Saulsbury--
Ordered, That George T. Anthony, the other witness named in the writ
of attachment of December 18, 1879, be discharged as from contempt
without appearing before the Senate.
It was stated that Mr. Anthony had been before the committee, and
would return to Washington and come before the Senate if necessary.
1703. Various instances of arrest of witnesses for contempt of the
Senate.--On January 8, 9, and 11, 1877,\1\ the Senate took proceedings
in relation to Enos Runyon, a witness who declined to answer certain
questions deemed pertinent by the Senate in regard to the transmission
of money to Oregon at the time of the election. The Senate ordered the
arrest of Runyon, but afterwards ordered his discharge on report from
the committee that he had appeared and answered the questions. He
evidently was not arraigned before the Senate.
1704. On February 5, 1877,\2\ the Senate ordered the arrest of J. F.
Littlefield, a witness who had failed to appear, although seen in the
Capitol about the time he should have appeared and was told by an
officer of the Senate that he was expected to appear. The witness had
appeared before the committee the day before and had not been
discharged. Some objection was made to ordering an arrest under these
circumstances, but it was done.
1705. On February 13, 1877,\3\ the Senate ordered the arrest of
Conrad N. Jordan for refusing to respond to a subpoena duces tecum.
commanding him to appear before a committee of the Senate and bring
certain papers. On the 23d he was brought before the Senate and
arraigned. Previously he had been allowed to appear before the
committee and testify. When arraigned he made a statement in writing,
explaining why he had failed to respond to the subpoena. A proposition
was made to direct the matter to be certified to the district attorney,
but the point was made and insisted on that the witness should first
have the opportunity of appearing before the committee. It was urged
that the arrest had been merely for failing to appear, and not for
refusal to testify. Finally, the witness having announced that he was
ready to go before the committee and answer proper questions, the
Senate ordered his discharge.
1706. On January 20, 1880,\4\ the Senate allowed the discharge of a
recusant witness against whom had been issued a warrant for arrest for
contempt, but who had voluntarily appeared and testified before the
committee at a time when the Senate had not been in session. The
witness had then departed, leaving the promise that he would appear in
person before the Senate to answer the attachment if required. The
Senate did not require this, but ordered his discharge.
-----------------------------------------------------------------------
\1\ Second session Forty-fourth Congress, Record, pp. 473, 493, 566.
\2\ Second session Forty-fourth Congress, Record, p. 1258.
\3\ Second session Forty-fourth Congress, Record, pp. 1512, 1855,
1864. For form of the warrant of arrest in this case see Record, p.
1855.
\4\ Second session Forty-sixth Congress, Record, p. 415.
Sec. 1707
1707. Instances wherein the House has ordered arrests which do not
appear to have been made.--On June 8, 1860,\1\ the following resolution
was reported from the select committee appointed to investigate the
alleged influence of the Executive in the House, and was agreed to by
the House:
Resolved, That the Speaker of the House of Representatives be
directed to issue process for the arrest of Charles A. Dunham, of New
York; Alexander Hay, Gideon G. Wescott, and Albert Schofield, of the
city of Philadelphia; William Kearns, of Reading, in the State of
Pennsylvania.
1708. On June 27, 1862,\2\ the House ordered the arrest of Michael C.
Murphy, a recusant witness, but it does not appear that the witness was
arrested.
1709. On April 15, 1864,\3\ the House ordered the arrest of John
Donahue, a witness who had been summoned and who had failed to appear
before the Committee on Public Expenditures. It does not appear that
the arrest was effected.
1710. On January 14, 1867,\4\ the House ordered the arrest of Thomas
H. Oakley, who had declined to testify before the Committee on Public
Expenditures. It does not appear that Oakley was ever brought before
the House.
1711. On June 30, 1876,\5\ the House ordered the arrest of William F.
Shaffer, a witness who had failed to appear before a committee.
1712. An instance wherein the House refused to punish contumacious
witnesses.--On August 28, 1850,\6\ Mr. Edward Stanly, of North
Carolina, from the select committee appointed under the resolution of
the House of the 6th of May relative to officeholders under the last
administration interfering in elections, made a report that two
witnesses, Thomas Ritchie and C. P. Sengstack, had refused to answer
certain questions put to them by the committee. Mr. Stanly thereupon
presented the following resolution:
Resolved, That whereas the select committee of this House, acting by
the authority of the House under a resolution of the 6th of May last,
have reported that Thomas Ritchie and C. P. Sengstack have peremptorily
refused to give evidence in obedience to a summons duly issued by said
committee; therefore,
Resolved, That the Speaker of the House issue his warrant, directed
to the Sergeant-at-Arms, to take into custody the persons of said
Ritchie and said Sengstack, that they may be brought to the bar of the
House to answer for an alleged contempt of this House, and that they be
allowed counsel on that occasion should they desire it.
On August 31, after debate which related chiefly to the political
questions involved, the resolutions were disagreed to, yeas 49, nays
122.
1713. In a case where the House has the right to punish for contempt,
its officers may not be held liable for the proper discharge of
ministerial functions in connection therewith.--In the case of Stewart
v. Blaine,\7\
-----------------------------------------------------------------------
\1\ First session Thirty-sixth Congress, Journal, p. 1034; Globe, p.
2761.
\2\ Second session Thirty-seventh Congress, Journal, p. 947; Globe,
p. 2986.
\3\ First session Thirty-eighth Congress, Journal, p. 532; Globe, p.
1660.
\4\ Second session Thirty-ninth Congress, Journal, p. 166; Globe, p.
447.
\5\ First session Forty-fourth Congress, Journal, p. 1189.
\6\ First session Thirty-first Congress, Journal, pp. 1318, 1336,
1345-1349; Globe, pp. 1678-1681, 1692, 1714, 1724.
\7\ This was a suit for false imprisonment brought against Mr.
Speaker Blaine by a witness imprisoned by order of the House. See
Section 1689 of this chapter.
Sec. 1714
the opinion of the Supreme Court of the District of Columbia was
delivered by Chief Justice Carter, and is as follows (1 MacArthur, p.
457):
The whole subject of controversy in this case as presented to the
court is resolved in the question, Had the House of Representatives of
the United States jurisdiction in the premises?
If jurisdiction over the subject and person of the plaintiff resided
in the House, the ministerial functions discharged by the Speaker and
Sergeant-at-Arms in the premises were justified in the jurisdiction.
Under the principles of law regulating the relations of ministerial
officers to those around them and affected by their acts, two questions
are fundamentally important. Has the authority issuing process
jurisdiction of the subject and of the person against whom process
goes? These two questions answered affirmatively, nothing remains in
the determination of the question as to their right to execute the
process. Their liability thenceforward is regulated by the
responsibility as to the manner in which they do it, a subject not made
matter of complaint in this case.
The question of power to punish for contempt in the case now before
the court was settled by the Supreme Court of the United States in the
case of Anderson v. Dunn more than half a century ago after a stout
contest and upon thorough deliberation. This authority has been
uniformly acquiesced in for over fifty years, and until reversed must
be regarded as conclusive with this court. If authority, the subject of
this controversy is stare decisis.
In making this decision the court confines itself strictly to the
adjudication of the case made. We are not engaged in the investigation
of the rights of a citizen held in durance vile under an application by
writ of habeas corpus.
The court also announces that the case of Stewart v. Ordway (the
Sergeant-at-Arms) involved the same questions and would be decided in
the same way.
1714. An early discussion as to form of resolution ordering the
arrest of a contumacious witness.--On January, 12, 1849,\1\ Mr. George
Fries, of Ohio, from the select committee appointed to investigate the
official conduct of the Commissioner of Indian Affairs, reported the
following resolution:
Resolved, That the Sergeant-at-Arms be required to take David Taylor
into custody and confine him unless he agrees to answer all proper
questions which the select committee before whom he has been testifying
shall ask of him.
Mr. Fries explained that this witness, who had been duly subpoenaed,
was under examination by a subcommittee, and after having given a
portion of his testimony declined to answer further. The subcommittee
reported to the full committee, and in the course of the debate it was
stated that the witness had declined before the full committee to
testify further.
The case of Whitney was discussed as a precedent, and finally Mr.
Joseph R. Ingersoll, of Pennsylvania, offered an amendment to strike
out all after the word ``resolved'' and insert the following:
That whereas the select committee, acting by authority of the House
under a resolution of the 11th of August, 1848, has reported that David
Taylor has peremptorily refused, in the course of his examination
before said committee, to answer any further questions which may be put
to him by said committee; therefore,
Resolved, That the Speaker of this House issue his warrant, directed
to the Sergeant-at-Arms, to take into custody the person of the said
David Taylor, that he may be brought to the bar of the House to answer
for an alleged contempt of the House, and that he be allowed counsel on
that occasion should he desire it.
This resolution going over to the succeeding day, on that day Mr.
Fries, by direction of the committee, withdrew the subject from the
consideration of the House, and no further action was taken thereon.
-----------------------------------------------------------------------
\1\ Second session Thirtieth Congress, Journal, pp. 238, 242; Globe,
pp. 242-244.
Sec. 1715
1715. The House having considered and determined the disposition of a
person in custody, a further proposition relating thereto was held not
to be privileged.--On January 30, 1873,\1\ Mr. Aaron A. Sargent, of
California, as a question of privilege, proposed the following:
Resolved, That the Sergeant-at-Arms, in executing the order of the
House in relation to the custody of Joseph B. Stewart, shall keep the
said Stewart in custody in the jail of the District of Columbia.
Mr. John F. Farnsworth, of Illinois, having objected that the
resolution was not in order as a question of privilege, the Speaker \2\
sustained the point of order, and, when Mr. Sargent took an appeal,
said, in submitting the appeal:
An appeal having been taken from the decision of the Chair, the Chair
will state that this matter was brought before the House by the
committee. It has been fully adjudicated by the House. The House has
voted upon sundry and divers propositions and has come to a final
resolution thereon, ordering a distinct thing to be done, imposing a
duty on two officers of the House--first on the Speaker, to address a
certain question to the witness, and next on the Sergeant-at-Arms to
take him into custody. The Chair decides that on that statement from
the committee, as a privileged question, by the action of the House the
privilege is exhausted. The gentleman from California desires to offer
a resolution proposing to make another disposition of the subject than
that which the House has just made by its vote. The Chair has ruled
this resolution out as not pertaining to a question of privilege.
The appeal being stated, it was, on motion of Mr. Henry L. Dawes, of
Massachusetts, laid on the table.
1716. The House has assumed the expenses incurred by Members and
officers in defending suits brought by persons punished by the House
for contempt.--On April 9, 1870,\3\ Mr. John A. Bingham, of Ohio,
presented, as a matter relating to the privileges of the House, the
following resolution reported from the Committee on the Judiciary:
Resolved, That a sum not exceeding two thousand dollars, being the
expenses and counsel fees incurred by Benjamin F. Butler, Member of the
Fortieth Congress, in defending a suit brought against him by Charles
W. Woolley, in the city of Baltimore, for his action as a Member of
this House in sustaining its rights and privileges, be paid from the
contingent fund of the House.
Mr. Bingham argued that the Member against whom the action was
brought had done the acts for which it was brought as a Member of the
House in the course of his duty as such; therefore he was defending the
privileges of the House in resisting the suit.
The resolution was agreed to without division.
1717. On June 28, 18744 \4\, the House agreed to the following
resolution:
Resolved, That the House assume the defense of the Speaker and the
Sergeant-at-Arms in the suits against them by Joseph B. Stewart for
alleged false imprisonment while in custody, under the order of the
House, as a recusant witness, in February, 1873, recently decided
against Stewart by the Supreme Court of the District of Columbia, and
the expenses of said defense be paid by the Clerk from the contingent
fund of the House, upon the approval of the Committee on Accounts.
-----------------------------------------------------------------------
\1\ Third session Forty-second Congress, Journal, p. 279; Globe, p.
988.
\2\ James G. Blaine, of Maine, Speaker.
\3\ Second session Forty-first Congress, Journal, p. 596; Globe, p.
2547.
\4\ First session Forty-third Congress, Journal, p. 1321; Record p.
5445.
Sec. 1718
1718. In 1860 the Massachusetts court decided that a warrant directed
only to the Sergeant-at-Arms of the United States Senate might not be
served by deputy in that State.--On February 15, 1860,\1\ Mr. John M.
Mason, of Virginia, in the Senate, reported from the select committee
appointed to investigate the circumstances of the raid of John Brown at
Harpers Ferry,\2\ a preamble and resolution reciting that F. B.
Sanborn, of Concord, Mass., had failed to answer the summons of the
committee to appear and testify, and providing that the President of
the Senate issue a warrant ``directed to the Sergeant-at-Arms,
commanding him to take into custody,'' etc., the body of the said
Sanborn. This resolution gave no authority to the Sergeant-at-Arms to
delegate this power to a deputy.
The resolution was adopted by the Senate, and on April 16, 1860, Mr.
Mason presented in the Senate the warrant of the Sergeant-at-Arms, with
his return thereon, stating that on April 3 he had arrested the said
Sanborn at Concord, and reciting the circumstances of the collecting of
a mob immediately upon the arrest, and then the forcible taking of
Sanborn by a deputy sheriff of the county of Middlesex, armed with a
writ of habeas corpus. A copy of the record of the proceedings of
habeas corpus was made a part of the return, and showed that Sanborn
had been liberated on the ground that the warrant was insufficient in
law. This return was referred to the Committee on the Judiciary.
On June 7,\3\ Mr. James A. Bayard, of Delaware, from the Committee on
the Judiciary, made a report on the subject, holding that, although in
general delegated power might not be delegated, every public officer
might, for merely ministerial purposes, appoint a deputy. And the
service of a warrant, whether by distress upon goods and chattels or by
arrest of the person, was a purely ministerial act, seemed scarcely
questionable.
The committee recommended no action on the part of the Senate,
expressing confidence that the higher court of Massachusetts, to which
an appeal had been taken, would reverse the finding on the habeas
corpus proceedings.
The case having been carried to the supreme court of Massachusetts,
at the April term of 1860, in an opinion \4\ delivered by Chief Justice
Shaw, the court decided that--
a warrant issued by order of the Senate of the United States for the
arrest of a witness for contempt in refusing to appear before a
committee of the Senate, and addressed only to the Sergeant-at-Arms of
the Senate, can not be served by deputy in this Commonwealth.
In the course of this opinion the court says:
The Sergeant-at-Arms of the Senate is an officer of that house, like
their doorkeeper, appointed by them, and required by their rules and
orders to exercise certain powers mainly with a view to order and due
course of proceeding. He is not a general officer, known to the law, as
a sheriff, having power to appoint general deputies, or to act by
special deputation in particular cases; nor like a marshal, who holds
analogous powers, and possesses similar functions, under the laws of
the United States, to those of sheriffs and deputies under the State
laws.
But even where it appears, by the terms of the reasonable
construction of a statute, conferring an authority on a sheriff, that
it was intended he should execute it personally, he can not exercise it
by general deputy, and of course he can not do it by special
deputation. (Wood v. Ross, 11 Mass., 271.)
But upon the third point, the court are all of opinion that the
warrant affords no justification. Suppose that the Senate had
authority, by the resolves passed by them, to cause the petitioner to
be arrested
-----------------------------------------------------------------------
\1\ First session Thirty-sixth Congress, Globe pp. 778, 1722.
\2\ See section 1722 of this chapter.
\3\ Senate Report No. 262.
\4\ 15 Gray, p. 399.
Sec. 1719
and brought before them, it appears by the warrant issued for that
purpose that the power was given alone to McNair, Sergeant-at-Arms, and
there is nothing to indicate any intention on their part to have such
arrest made by any other person. There is no authority in fact given by
this warrant, to delegate the authority to any other person. It is a
general rule of the common law, not founded on any judicial decision or
statute provision, but so universally received as to have grown into a
maxim, that a delegated authority to one does not authorize him to
delegate it to another. Delegata potestas non potest delegari. Broom's
Maxims (3d ed.) 755. This grows out of the nature of the subject. A
special authority is in the nature of a trust. It implies confidence in
the ability, skill, or discretion of the party intrusted. The author of
such a power may extend it if he will, as is done in ordinary powers of
attorney, giving power to one or his substitute or substitutes to do
the acts authorized. But when it is not so extended, it is limited to
the person named.
The counsel for the respondent asked what authority there is for
limiting such warrant to the person named; it rather belongs to those
who wish to justify under such delegated power, to show judicial
authority for the extension.
On the special ground that this respondent had no legal authority to
make the arrest, and has no legal authority to detain the petitioner in
his custody, the order of the court is that the said Sanborn be
discharged from the custody of said Carleton
The warrant, a copy of which is appended to the decision, was
directed to ``Dunning R. McNair, Sergeant-at-Arms,'' etc., in the usual
form, to arrest F. B. Sanborn, and bore this indorsement:
Senate Chamber, February 16, A. D. 1860.
I do appoint and hereby empower Silas Carleton to serve this warrant,
and to exercise all the authority in relation thereto, with which I am
vested by the foregoing.
D. R. McNair,
Sergeant-at-Arms of the Senate of the United States.
1719. The right of a Sergeant-at-Arms charged with the arrest of a
witness to intrust the duty to a deputy was discussed somewhat on
January 29, 1872,\1\ in the Senate, with reference to the Senate
precedent of 1860.
1720. A joint committee has ordered a contumacious witness into
custody.--On March 9, 1864, we find the joint committee on the conduct
of the war under the authority given them by the concurrent resolution
creating them, agree to the following:
Resolved, That Francis Waldron be ordered into the custody of the
Sergeant-at-Arms of the Senate to be safely and securely kept until
further order of the committee, said Francis Waldron having refused to
testify before this committee.
And on March 11 the committee ordered the witness discharged, on the
ground that his testimony could not be relied on, and no beneficial
result could be obtained by forcing him to testify.\2\
1721. A witness having declined to testify before a joint committee,
a question arose as to whether one House or both should take
proceedings to punish for contempt.
Form of subpoena issued by a joint committee.
On December 6, 1871,\3\ in the Senate, Mr. John Scott, of
Pennsylvania, from the Joint Committee on the Condition of the Late
Insurrectionary States, presented two reports, one relating to Clayton
Camp and David Gist, of South Caro-
-----------------------------------------------------------------------
\1\ Second session Forty-second Congress, Globe, pp. 664, 665.
\2\ Second session Thirty-eighth Congress, Senate Report No. 142,
journal of the committee, pp. 20, 21.
\3\ Second session Forty-second Congress, Globe, pp. 24, 37, 212,
216.
Sec. 1721
lina, who, after being duly summoned, failed and refused to appear
before a subcommittee, and the other relating to W. L. Saunders, of
North Carolina, who, while testifying, had declined to answer certain
questions pertinent to the subject of inquiry.
The report gave the following as the form of subpoena issued by the
joint committee:
United States of America--Congress of the United States.
To David Gist, greeting:
Pursuant to lawful authority, you are hereby commanded to appear
before the subcommittee of the Joint Select Committee to Inquire into
the Condition of the Late Insurrectionary States, on Thursday, the 20th
day of July, 1871, at 10 o'clock a. m., at their committee room at
Columbia, S. C., then and there to testify what you may know relative
to the subject-matters under consideration by said committee.
Hereof fail not, as you will answer your default under the pains and
penalties in such cases made and provided.
To John R. French, Sergeant-at-Arms of the Senate of the United
States, to serve and return.
Given under my hand, by order of the committee, this 18th day of
July, in the year of our Lord 1871.
John Scott,
Chairman of the Select Committee.
In the case of Saunders, which was first considered, the committee
reported a preamble reciting the testimony of the witness, the
authority of the committee, etc., concluding with the following:
Resolved by the Senate of the United States (the House of
Representatives concurring), That W. L. Saunders, of Chapel Hill, and
State of North Carolina, a witness heretofore duly summoned before a
joint select committee of the two Houses of Congress, having been
lawfully required to testify before a subcommittee, duly authorized by
said joint select committee to take his testimony, and having, in the
course of the investigation, refused to answer proper inquiries put to
him by the chairman of said joint committee, be forthwith arrested by
the Sergeant-at-Arms of the Senate, and brought before the Senate at
its bar, by the order of the Senate duly issued by the Vice-President,
under his hand and the seal of the Senate; and that said Saunders be
detained, by virtue thereof, by the Sergeant-at-Arms of the Senate
until he answer for his contempt of the order of the Senate in the
matter aforesaid, and abide such further order as may be made in the
premises.
A question arose as to the propriety of this proceeding. Mr. Scott
stated that the committee knew of no precedent to guide them, but had
conceived the contempt to be against the whole body of Congress, and
that it would be proper and within the power of the two Houses to
authorize one House to deal with the witness. Mr. George F. Edmunds, of
Vermont, recalled that in a previous Congress the joint committee on
retrenchment had reported a contumacious witness to the Senate, and a
warrant was issued by the Senate alone and the witness compelled to
answer. But no question had been made as to this procedure.
Mr. Edmunds having raised a question as to the mode of procedure
proposed by the resolution reported by Mr. Scott, moved to amend it by
making it a simple resolution of the Senate instead of a concurrent
resolution.
In support of the amendment it was urged that each body of the
members composing the joint committee was the representative of its own
House, and therefore that any contempt of the committee transmitted
itself to the rights and powers of the two Houses separately. And the
two Houses possessed individually the
Sec. 1722
the power to punish. This power was independent with each, and each
having it, no action of the other was necessary to enforce it. If the
power to punish was only a concurrent authority, then neither House
could delegate it, but it must be exercised by both Houses
concurrently. The original form of the resolution merely amounted to
the Senate asking the consent of the House of Representatives to punish
a contempt against itself. A punishment in the Senate would not be a
bar to subsequent punishment in the House. If the Senate required the
aid of the House to lay hold on the witness, the Senate's powers would
be too slender to deal with him after his arrest. Both the law and the
Constitution gave to the two Houses separately the power to punish for
refusal to testify, but neither gave such power to the two Houses
acting together. A joint committee had not that power with regard to
witnesses possessed by the select committee of the single House.
On the other hand, it was urged that the offense was against the two
Houses jointly, that the act of 1857 did not apply to such a case, that
as the committee was constituted by the joint action of the two Houses,
it was proper for the arrest to be made under the same authority, and
there could be then no harm in a trial by the Senate, as it was
admitted that the Senate had a right to try on its own account. But
that trial should be by consent of the other House, because the two
Houses might differ in the matter.
Mr. Scott stated that precedents were rare on the subject, because
joint committees were in so little favor in the English Parliament that
none had been appointed since the year 1695.
On December 19 the amendment was rejected without division, and the
resolution was agreed to. But on the same day a motion to reconsider
the vote agreeing to the resolution was entered.
It does not appear that the matter was further acted on. The
resolution relating to Camp and Gist was likewise not acted on.
1722. In 1860 the Senate imprisoned Thaddeus Wyatt in the common jail
for contempt in refusing to appear as a witness.
The right to coerce the attendance of witnesses in an inquiry for
legislative purposes was discussed in the Wyatt case.
Discussion of the extent of the Senate's power of investigation.
On December 14, 1859,\1\ the Senate, after debate, agreed unanimously
to a resolution providing that a committee be appointed to inquire into
the facts attending the late invasion and seizure of the armory and
arsenal at Harpers Ferry by a band of armed men, and report whether the
same was attended by armed resistance to the authorities and public
force of the United States, and the murder of any citizens of Virginia,
or any troops sent there to protect public property; whether such
invasion was made under color of any organization intended to subvert
the government of any of the States of the Union; the character and
extent of such organization; whether any citizens of the United States
not present were implicated therein or accessory thereto by
contributions of money, arms, ammunition, or otherwise; the character
and extent of the military equipments in the hands or
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\1\ First session Thirty-sixth Congress, Globe, p. 141.
Sec. 1722
under the control of said armed band; where, how, and when the same
were obtained and transported to the place invaded; also, to report
what legislation, if any, is necessary by the Government for the future
preservation of the peace of the country and the safety of public
property--the committee to have power to send for persons and papers.
The committee was appointed, consisting of Senators James M. Mason,
of Virginia; Jefferson Davis, of Mississippi; Jacob Collamer, of
Vermont; Graham N. Fitch, of Indiana, and James R. Doolittle, of
Wisconsin.
On February 21, 1860,\1\ Mr. Mason, from the committee, reported the
following preamble and resolution:
Whereas Thaddeus Hyatt, of the city of New York, was, on the 24th day
of January, A. D. 1860, duly summoned to appear before the select
committee of the Senate, appointed ``to inquire into the facts
attending the late invasion and seizure of the armory and arsenal of
the United States at Harpers Ferry, in Virginia, by a band of armed
men,'' and has failed and refused to appear before said committee,
pursuant to said summons: Therefore,
Resolved, That the President of the Senate issue his warrant,
directed to the Sergeant-at-Arms, commanding him to take into his
custody the body of the said Thaddeus Hyatt, wherever to be found, and
to have the same forthwith before the bar of the Senate to answer as
for a contempt of the authority of the Senate.
After debate the resolution was agreed to, yeas 43, nays 12.
On March 6 \2\ the Sergeant-at-Arms appeared at the bar of the Senate
having Mr. Hyatt in custody, and submitted the following preamble and
resolution, which were agreed to, yeas 49, nays 6.
Resolved, That Thaddeus Hyatt, of the city of New York, now in
custody of the Sergeant-at-Arms, on an attachment for contempt in
refusing obedience to the summons requiring him to appear and testify
before a committee of the Senate, be now arraigned at the bar of the
Senate, and that the President of the Senate propound to him the
following interrogatories:
First. What excuse have you for not appearing before the select
committee of the Senate, in pursuance of the summons served on you on
the 24th day of January, 1860?
Second. Are you now ready to appear before the said committee and
answer such proper questions as shall be put to you by said committee?
And that the said Thaddeus Hyatt be required to answer said questions
in writing and under oath.
On March 9 \3\ the witness presented a sworn statement questioning
the authority of the committee and declining to answer the questions.
As part of this statement he presented the argument of his counsel,
Messrs. S. E. Sewall and John A. Andrew, who thus summarized the
objections to the Senate's jurisdiction:
The inquisition delegated to the committee, being an inquiry as to
who committed crimes, was a judicial one, and a usurpation of the
functions of the judiciary.
The object of the inquisition being unconstitutional, the Senate
could have no power to compel the attendance of witnesses before the
committee.
The investigations being made with a view to legislation can not give
the Senate authority to make a judicial inquisition as to the authors
of specific crimes, if it would not otherwise have possessed such
authority.
Even had the inquisition been constitutional, still, being for
legislative purposes, the Senate could not coerce the attendance of
witnesses.
All the powers of the Senate are derived from the Constitution, and
not gained by long prescription, like those of the Houses of Parliament
in Great Britain.
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\1\ First session Thirty-sixth Congress, Globe, pp. 849, 859.
\2\ Globe, p. 999.
\3\ Globe, p. 1076.
Sec. 1722
The power of committing witnesses for contempt in cases of this kind
is not given directly by the Constitution, or by necessary implication,
because legislation can be effected by it without any such power.
This is not a case in which the Senate has judicial or quasi-judicial
power; in which case authority to compel the attendance of witnesses as
a necessary incident of the power need not be disputed.
Since the statute of 1857 has made the refusal of a witness to appear
before a committee an indictable offense, the Senate can not try any
such witness for a contempt, because that would be to try him for a
crime without a jury, in violation of the Constitution. We deny, then,
the power of the Senate committee to act as inquisitors in regard to
crimes. We deny their right to drag our client from his home in New
York to testify before them.
If the Senate can thus usurp some of the functions of the judiciary,
what other functions of the judiciary or the executive may they not
assume? The liberties of the people are gone, if the Senate by its own
power can create a secret inquisitorial tribunal, and compel any
witnesses they please to appear before it.
The power of punishment for contempt is always arbitrary and
dangerous, whether exercised by courts or legislative bodies. The
constitutions and the legislation of the United States and of the
several States have been constantly aiming to limit and define it. It
is dangerous, because the party injured becomes the judge in his own
case both of law and fact. It involves, therefore, a violation of one
of the first principles of justice, and is only to be sustained by the
extremest necessity. We believe that the House and Senate have seldom
been called to act in a case of alleged contempt in which the power has
not been seriously questioned, and in which, from a just sense of its
arbitrary character, they have not aimed to make the punishment light
rather than severe. In the cases, for instance, of John Anderson and
General Houston, the reprimands of the Speaker of the House appear
small punishments compared with the gravity of the charges against
them.
On March 12 \1\ Hyatt was brought to the bar and Mr. Mason proposed
the following preamble and resolution, which, after long debate, were
agreed to, yeas 44, nays 10:
Whereas Thaddeus Hyatt, appearing at the bar of the Senate, in
custody of the Sergeant-at-Arms, pursuant to the resolution of the
Senate of the 6th of March instant, was required by order of the Senate
then made, to answer the following questions, under oath and in
writing: ``1. What excuse have you for not appearing before the select
committee of the Senate, in pursuance of the summons served on you on
the 24th day of January, 1860? 2. Are you ready to appear before said
committee and answer such proper questions as shall be put to you by
said committee?'' time to answer the same being given until the 9th of
March following; and whereas on the said last named day the said
Thaddeus Hyatt, again appearing in like custody at the bar of the
Senate, presented a paper, accompanied by an affidavit, which he stated
was his answer to said questions; and it appearing, upon examination
thereof, that the said Thaddeus Hyatt has assigned no sufficient excuse
in answer to the question first aforesaid, and in answer to the said
second question, has not declared himself ready to appear and answer
before said committee of the Senate, as set forth in said question, and
has not purged himself of the contempt with which he stands charged:
Therefore,
Be it resolved, That the said Thaddeus Hyatt be committed by the
Sergeant-at-Arms to the common jail of the District of Columbia, to be
kept in close custody until he shall signify his willingness to answer
the questions propounded to him by the Senate; and for the commitment
and detention of said Thaddeus Hyatt, this resolution shall be a
sufficient warrant.
Resolved, That whenever the officer having the said Thaddeus Hyatt in
custody shall be informed by said Hyatt that he is ready and willing to
answer the questions aforesaid, it shall be the duty of such officer to
deliver the said Thaddeus Hyatt over to the Sergeant-at-Arms of the
Senate, whose duty it shall be again to bring him before the bar of the
Senate, when so directed by the Senate.
In the course of the debate preceding the adoption of this preamble
and resolution, Mr. Charles Sumner, of Massachusetts, argued that the
Senate had no right
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\1\ Globe, p. 1100.
Sec. 1723
to compel testimony required for legislative purposes only. On June
15,\1\ when the Senate ordered the discharge of Hyatt from confinement,
Mr. Sumner spoke again on this subject, thus summarizing his argument:
We must not forget a fundamental difference between the powers of the
House of Representatives and the powers of the Senate. It is from the
former that the Senator from Virginia has drawn his precedents, and
here is.his mistake.
To the House of Representatives are given inquisitorial powers
expressly by the Constitution, while no such powers are given to the
Senate. This is expressed in the words, ``the House of Representatives
shall have the sole power of impeachment.'' Here, then, obviously, is
something delegated to the House, and not delegated to the Senate--
namely, those inquiries which are in their nature preliminary to an
impeachment--which may or may not end in impeachment; and since, by the
Constitution, every ``civil officer'' of the General Government may be
impeached, the inquisitorial powers of the House may be directed
against every ``civil officer,'' from the President down to the lowest
on the list.
This is an extensive power, but it is confined solely to the House,
Strictly speaking, the Senate has no general inquisitorial powers. It
has judicial powers in three cases under the Constitution:
1. To try impeachments.
2. To judge the elections, returns, and qualifications of its
members.
3. To punish its members for disorderly behavior, and, with the
concurrence of two-thirds, expel a member.
In the execution of these powers, the Senate has the attributes of a
court; and, according to established precedents, it may summon
witnesses and compel their testimony, although it may well be doubted
if a law be not necessary, even to the execution of this power.
Besides these three cases, expressly named in the Constitution, there
are two others, where it has already undertaken to exercise judicial
powers, not by virtue of express words, but in self-defense:
1. With regard to the conduct of its servants, as of its printer.
2. When its privileges have been violated, as in the case of William
Duane, by a libel, or in the case of Nugent, by stealing and divulging
a treaty while still under the seal of secrecy.
It will be observed that these two classes of cases are not sustained
by the text of the Constitution; but if sustained at all, it must be by
that principle of universal jurisprudence, and also of natural law,
which gives to everybody, whether natural or artificial, the right to
protect its own existence; in other words, the great right of self-
defense. And I submit that no principle less solid could sustain this
exercise of power. It is not enough to say that such a power would be
convenient, highly convenient, or important. It must be absolutely
essential to the self-preservation of the body; and even then, in the
absence of any law, it may be open to the gravest doubts.
1723. In 1877 the Senate, after discussion, decided that certain
telegrams relating to the Presidential election should be produced by a
Witness.--On January 2, 1877,\2\ the Committee on Privileges and
Elections of the Senate, who were instructed to inquire into the recent
election in Oregon, reported to the Senate that William M. Turner,
manager of the Western Union Telegraph office at Jacksonville, Oreg.,
being called and sworn as a witness by the committee, had declined to
answer certain questions, on the ground that both by the laws of Oregon
and the instructions of the company he was forbidden to divulge
anything that passed over the wires. The questions which the witness
refused to answer were presented in the report, and concerned
dispatches relating to alleged transfers of money from New York to
Oregon after the election in November, and to an alleged dispatch
making a request that the canvass be withheld for a time. The
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\1\ Globe, p. 3007.
\2\ Second session Forty-fourth Congress, Record, pp. 397, 439, 476.
Sec. 1724
committee reported that it was important to have the witness answer the
questions, as the answers might be material to the investigation, and
therefore recommended the adoption of the following:
Resolved, That William M. Turner is in duty bound under his oath to
answer the questions that have been propounded to him as above stated,
and that he can not excuse himself for answering the same by reason of
his official connection with the Western Union Telegraph Company as the
manager of their office at Jacksonville, Oreg.
This resolution was debated at length on January 5 and 8, especially
as to the principle involved in an invasion of the secrecy of the
telegraph. The law of Oregon was shown to refer only to willful
disclosures, and it was argued, from cases decided, that it did not
preclude answers before a proper tribunal. The debate developed a
general sentiment against the practice of demanding the disclosure of
private dispatches, except where there was reason to believe that
particular telegrams contained material information, in which case,
such might be properly demanded.
The resolution was agreed to, yeas 35, nays 3.
1724. In 1860 the Senate looked to House precedents in dealing with a
witness in contempt.--On February 15, 1860,\1\ in the Senate, Mr. John
M. Mason (of Virginia) made a report concerning certain witnesses who
had failed to appear before the committee investigating the invasion of
Harpers Ferry. He said that the resolution to compel the attendance of
the witnesses was drawn according to the precedents of the House of
Representatives, he not having found a case where a witness had
declined to appear before a committee of the Senate.\2\ The resolution
compelling the attendance of the witnesses was agreed to.
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\1\ First session Thirty-sixth Congress, Globe, p. 778.
\2\ There had been such a case, however, in 1852. On August 13, 1852,
a select committee of the Senate reported the contumacy of John
McGinnis, a witness, with a resolution declaring that he had committed
a contempt, and directing his imprisonment in the jail of the District.
The resolution went over to the next day, when it was withdrawn, the
witness having taken the oath and testified. (First session Thirty-
second Congress, Globe, pp. 2201, 2212.)