Kilbourn v. Thompson

[Syllabus from pages 168-169 intentionally omitted]

ERROR to the Supreme Court of the District of Columbia.

This is an action for false imprisonment brought by Hallet. Kilbourn against John G. Thompson, Michael C. Kerr, John M. Glover, Jeptha D. New, Burwell P. Lewis, and A. Herr Smith. The declaration charges that the defendants with force and arms took the plaintiff from his house, and without any reasonable or probable cause, and against his will, confined him in the common jail of the District of Columbia for the period of forty-five days. The defendant Kerr died before process was served upon him.

Thompson pleaded first the general issue, and secondly a special plea, wherein he set forth that the plaintiff ought not to have or maintain his action, because that long before and at the said time when the force and injuries complained of by him are alleged to have been inflicted, and during all the time in the said declaration mentioned, a congress of the United States was holden at the city of Washington, there duly authorized and required, and was then and there, and during all the time aforesaid, assembled and sitting; that long before and at the time when said force and injuries are alleged to have occurred, and during all the time mentioned, he, the said Thompson, was, and yet is, sergeant-at-arms of the House of Representatives, and by virtue of his office, and by the tenor and effect of the standing rules and orders ordained and established by said House for the determining of the rules of its proceedings, and by the force and effect of the laws and customs of said House and of said Congress, was then and there duly authorized an required, amongst other things, to execute the command of said House, from time to time, together with all such process issued by authority thereof as shall be directed to him by its speaker; that long before and at the time aforementioned one Michael C. Kerr was the speaker of said House, and by virtue of his office, and by the tenor, force, and effect of said standing rules, orders, laws, and customs, was, among other things, duly authorized and required to subscribe with his proper hand, and to seal with the seal of said House, all writs, warrants, and subpoenas issued by its order; that long before and during said time one George M. Adams was the clerk of said House, authorized and required to attest and subscribe with his proper hand all writs, warrants, and subpoenas issued by order of said House; that it was among other things ordained, established, and practised by and under such standing rules, orders, laws, and customs, that all writs, warrants, subpoenas, and other process issued by order of said House shall be under the hand of the speaker and seal of said House, and attested by said clerk; and so being under said hand and seal, and so attested, shall be executed pursuant to the tenor and effect of the same by the sergeant-at-arms; that said Kerr being such speaker, and said Adams such clerk, and the defendant such sergeant-at-arms, and while said Congress was in session, the House of Representatives on the twenty-fourth day of January, 1876, adopted the following preamble and resolution:--

'Whereas the government of the United States is a creditor of the firm of Jay Cooke & Co., now in bankruptcy by order and decree of the District Court of the United States in and for the Eastern District of Pennsylvania, resulting from the improvident deposits made by the Secretary of the Navy of the United States with the London branch of said house of Jay Cooke & Co. of the public moneys; and whereas a matter known as the real-estate pool was only partially inquired into by the late joint select committee to inquire into the affairs of the District of Columbia, in which Jay Cooke & Co. had a large and valuable interest; and whereas Edwin M. Lewis, trustee of the estate and effects of said firm of Jay Cooke & Co., has recently made a settlement of the interest of the estate of Jay Cooke & Co., with the associates of said firm of Jay Cooke & Co., to the disadvantage and loss, as it is alleged, of the numerous creditors of said estate, including the government of the United States; and whereas the courts are now powerless by reason of said settlement to afford adequate redress to said creditors:

'Resolved, that a special committee of five members of this House, to be selected by the speaker, be appointed to inquire into the matter and history of said real-estate pool and the character of said settlement, with the amount of property involved in which Jay Cooke & Co. were interested, and the amount paid or to be paid in said settlement, with power to send for persons and papers and report to this House.'

That in pursuance and by authority of said resolution said speaker appointed John M. Glover, Jeptha D. New, Burwell B. Lewis, A. Herr Smith, and Henry O. Pratt, who were members of the House of Representatives, to constitute said committee; and the said committee, so appointed, duly organized in the city of Washington, and proceeded to make the inquiry directed; that said committee, by the authority in them vested by said resolution, caused to be issued by the speaker, under his hand and the seal of the House of Representatives, and duly attested by the clerk, a subpoena to said Kilbourn, commanding him to appear before said committee to testify and be examined touching and in regard to the matter to be inquired into by said committee; that said Kilbourn was further commanded and ordered by said subpoena to bring with him certain designated and described records, papers, and maps relating to said inquiry; that subsequently to the issue of the subpoena and before the time when the force and injuries complained of are alleged to have been inflicted, Kilbourn, in obedience to the subpoena, appeared before the committee and was examined by it in relation to and in prosecution of said inquiry, and during his examination said Kilbourn was asked the following question: 'Will you state where each of the five members reside, and will you please state their names?' which question was pertinent and material to the question of inquiry before the committee, but he knowingly and wilfully refused to answer the same; that he, although ordered and commanded by the subpoena to bring with him and produce before the said committee certain records, papers, and maps relating to said inquiry, still when asked by the said committee, 'Mr. Kilbourn, are you now prepared to produce, in obedience to the subpoena duces tecum, the records which you have been required by the committee to produce?' knowingly and wilfully refused to produce them; that subsequently to these refusals, and before the time when the force and injuries complained of are alleged to have been inflicted, to wit, on the fourteenth day of March, 1876, the committee reported to the House, then sitting, the facts above stated, to wit, the resolution creating the committee, the appointment of the members on said committee by the speaker, the issuing of the subpoena duces tecum to said Kilbourn, his appearance before the committee, and his refusal to answer the questions, and his further refusal to produce said records, papers, and maps, and the committee further reported to said House 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 the said Hallet Kilbourn should be required to respond to the subpoena duces tecum and answer the questions which he has refused to answer; and that there is no sufficient reason why the witness should not obey said subpoena duces tecum and answer the questions which he has refused to answer; and that his refusal as aforesaid is in contempt of this House,' as by the journal, record, and proceedings, and report in the said House remaining, reference being thereto had, will more fully appear; that on March 14, 1876, it was, in and by the said House, for good and sufficient cause to the same appearing, resolved and ordered that the speaker should forth with issue his warrant, directed to the sergeant-atarms, commanding him to take into custody the body of the said Kilbourn wherever to be found, and the same to have forthwith before the said House, at the bar thereof, to then and there answer why he should not be punished as guilty of contempt of the dignity and authority of the same, and in the mean time to keep the said Kilbourn in his custody to await the further order of the said House. Whereupon such speaker, on the fourteenth day of March, 1876, did duly make and issue his certain warrant under his hand and the seal of the House of Representatives, and duly attested, directed to the defendant, as such sergeant-at-arms, reciting that the House of Representatives had that day ordered the speaker to issue his warrant directed to the sergeant-at-arms, commanding him to take into custody the body of the said Kilbourn wherever to be found, and the same forthwith to have before the said House, at the bar thereof, then and there to answer why he should not be punished for contempt, and in the mean time to be kept in his, the said defendant's, custody to await the further order of the House; therefore it was required in and by said warrant that the defendant, as such sergeant-at-arms as aforesaid, should take into his custody the body of said Kilbourn, and then forthwith to bring him before said House, at the bar thereof, then and there to answer to the charges aforesaid, and to be dealt with by said House according to the Constitution and laws of the United States, and in the mean time to keep said Kilbourn in his custody to await the further order of said House; and the said Kerr, so being such speaker as aforesaid, then and there delivered said warrant to the defendant as sergeant-at-arms to be executed in due form of law; that by virtue and in execution of said warrant the defendant as such sergeant, in order to arrest said Kilbourn and convey him in custody to the bar of the House to answer to the charge aforesaid, and to be dealt with by said House according to the Constitution and laws of the United States, in obedience to the resolution and order aforesaid, and to the tenor and effect of the said warrant, went to said Kilbourn, and then and there gently laid his hands on him to arrest him, and did then and there arrest him by his body and take him into custody, and did then forthwith convey him to the bar of said House, as it was lawful for the defendant to do for the cause aforesaid; and thereupon such proceedings were had in and by said House, that said Kilbourn was then and there forthwith duly heard in his defence, and was duly examined by said House through its speaker, and was asked in said examination the following question, to wit, 'Mr. Killbourn, are you now prepared to answer, upon the demand of the proper committee of the House, where each of these five members reside?' (meaning the members of the pool), which question was pertinent and material to the question under inquiry; but said Kilbourn did knowingly and wilfully refuse to answer the question so asked; that said House, through its speaker, at the same time and place, asked said Kilbourn the further question, to wit, 'Are you (meaning the said Kilbourn) prepared to produce, in obedience to the subpoena duces tecum, the records which you have been required by the committee to produce?' (which said records were pertinent and material to the question under inquiry), but he knowingly and wilfully declined and refused to produce them; that thereupon it was then and there resolved by said House as follows: -

'Resolved, that Hallet Kilbourn having been heard by the House pursuant to the order heretofore made requiring him to show cause why he should no answer questions propounded to him by a committee and respond to the subpoena duces tecum by obeying the same, and having failed to show sufficient cause why he should not answer said questions and obey said subpoena duces tecum, be, and is, therefore considered in contempt of said House because of said failure.

'Resolved, that in purging himself of the contempt for which Hallet Kilbourn is now in custody, the said Kilbourn shall be required to state to the House whether he is now willing to appear before the committee of the House to whom he has hitherto declined to obey a certain subpoena duces tecum, and to answer certain questions and obey said subpoena duces tecum, and answer said questions; and if he answers that he is ready to appear before said committee and obey said subpoena duces tecum, and answer said questions, then said witness shall have the privilege to so appear and obey and answer forthwith, or so soon as said committee can be convened, and that in the mean time 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 obey said subpoena duces tecum, and make answer to said questions as aforesaid, then that said witness be recommitted to the said custody for the continuance of said contempt, and that such custody shall continue until the said witness shall communicate to this House through said committee that he is ready to appear before said committee and make such answer and obey said subpoena duces tecum; and that in executing this order the sergeant-at-arms shall cause the said Kilbourn to be kept in his custody in the common jail of the District of Columbia;'

as by the journal, record, and proceedings of the said resolutions and orders in the said House remaining, reference being thereto had, will more fully appear.

Whereupon said Kerr, so being such speaker, in pursuance of such standing rules and orders as aforesaid, and according to such laws and customs as aforesaid, and in execution of the order contained in said resolutions, did afterwards, to wit, on the fourteenth day of March, 1876, duly make and issue his certain warrant, directed to the defendant, as sergeant-at-arms, in the following words, to wit:-- 'Forty-fourth Congress, First Session, Congress of the United     States.

'IN THE HOUSE OF REPRESENTATIVES, REPRESENTATIVES,

'March 4, 1876.

'TO JOHN G. THOMPSON, Esq.,

'Sergeant-at-Arms of the House of Representatives:

'SIR,-The following resolution has this day been adopted by the House of Representatives:

"Resolved, that in purging himself of the contempt for which Hallet Kilbourn is now in custody, the said Kilbourn shall be required to state to the House whether he is now willing to appear before a committee of this House, to whom he has hitherto declined to obey a certain subpoena duces tecum and answer certain questions, and obey said subpoena duces tecum and make answer to said questions, and if he answers that he is ready to appear before said committee and obey said subpoena duces tecum and answer said questions, then said witness shall have the privilege to so appear and obey and answer forthwith, or so soon as the committee can be convened, and that in the mean time the witness shall remain in custody; and in the event that said witness shall answer that he is not ready to so appear before said committee and obey said subpoena duces tecum and make answer to said questions as aforesaid, then that said witness be recommitted 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 said committee, that he is ready to appear before said committee and make such answer and obey said subpoena duces tecum; and that in executing this order the sergeant-at-arms shall cause the said Kilbourn to be kept in his custody in the common jail of the District of Columbia.'

'Now, therefore, you are hereby commanded to execute the same accordingly.

'In witness whereof I have hereunto set my hand and caused the seal of the House of Representatives to be affixed the day and year above written.

[SEAL.]

'M. C. KERR, Speaker

'Attest:

'GEORGE M. ADAMS, Clerk.'

That by virtue and in execution of said warrant, according to its tenor and effect, the defendant, as such sergeant-at-arms, in order to arrest the said Kilbourn and convey him in custody to the common jail of the District of Columbia, in obedience to the resolutions and orders aforesaid, went to him and then and there gently laid his hands on him to arrest him, and did then and there arrest him by his body and take him into custody, and forthwith convey him to the common jail of the District of Columbia, and did keep him in custody therein until the eighteenth day of April, 1876, when and on which day, in response to a writ of habeas corpus issued by order of the Chief Justice of the Supreme Court of the District of Columbia, and directed to the defendant as sergeant-at-arms, requiring him to produce the body of Kilbourn before the said Chief Justice at the court-house in the city of Washington, in the District of Columbia; and by direction and order of the said House of Representatives the defendant, as sergeant-at-arms, conveyed the said kilbourn in custody from the common jail of said District to said court-house, and then and there delivered him into the custody of the marshal for the District of Columbia, nor has he had said Kilbourn in his custody since said delivery to said marshal.

Which are the same several supposed trespasses complained of, and no other.

The other defendants pleaded jointly the general issue, and a plea of justification similar to that of the defendant Thompson, except that they alleged themselves to have been members of the House of Representatives, and of a committee of that House, and that what they did was in that capacity, and was warranted by the circumstances.

They also added the following:--

'And these defendants state, that they did not in any manner assist in the last-mentioned arrest and imprisonment of the said Kilbourn, nor were they in any way concerned in the same, nor did they order or direct the same, save and except by their votes in favor of the last above-mentioned resolutions and order commanding the speaker to issue his warrant for said arrest and imprisonment, and (save and except) by their participation as members in the introduction of and assent to said official acts and proceedings of said House, which these defendants did and performed as members of the said House of Representatives in the due discharge of their duties as members of said House, and not otherwise.

'Which are the same several supposed trespasses whereof the said Kilbourn hath above in his said declaration complained against these defendants, and not other or different, with this, that these defendants do aver that the said Kilbourn, the now plaintiff, and the said Kilbourn in the said resolutions, orders, and warrants respectively mentioned, was and is one and the same person, and that at the said several times in this plea mentioned, and during all the time therin mentioned, the said Congress of the United States was assembled, and sitting, to wit, at Washington aforesaid, in the county aforesaid, and these defendants were and are members of the House of Representatives, one of the Houses of said Congress, and as such members, in said participation in the action of the House as avove set forth, voted in favor of said resolutions and orders as above set forth, and saving and excepting said participation in the action of the House as set forth in the body of this plea, they had no concern or connection in any manner or way with said supposed trespasses complained of against them by the plaintiff; and this these defendants are ready to verify.'

The plaintiff demurred to the special pleas of the defendants. The demurrer having been overruled and judgment rendered for the defendants, the plaintiff sued out this writ of error.

The power to punish a citizen for contempt is not in express terms or by implication conferred by the Constitution of the United States upon either House of Congress. Its assumption is in direct contravention of the Fourth and [[United States Bill of Rights|Fifth Amendment]]s. Ex parte Lange, 18 Wall. 163; Ex parte Milligan, 4 id. 2; United States v. Cruikshank, 92 U.S. 542; Loan Association v. Topeka, 20 Wall. 655; Potter's Dwarris, 430; Wilkinson v. Leland, 2 Pet. 627; Calder v. Bull, 3 Dall. 386. It derives no support from the lex parliamenti of England, which was entirely distinct and separate from the jurisdiction of Westminster Hall. King v. Flower, 8 T. R. 314; Brass Crosby's Case, 3 Wils. 188; Regina v. Paty, 2 Ld. Raym. 1105; Burdett v. Abbott, 14 East, 1; Pennock v. Dialogue, 2 Pet. 1; Kirkpatrick v. Gibson, 2 Brock. 388; Floyde's Case, 2 How. St. Tr. 1153; Murray's Case, 1 Wils. 299; Bell's Case, 59 Lords' Jour. 199, 206.

In England the power to punish for contempt is held not to be inherent in legislative assemblies or necessary to the proper discharge of their duties. Kielley v. Carson, 4 Moo. P. C. 63; Fenton v. Hampton, 11 id. 347; Doyle v. Falconer, Law Rep. 1 P. C. 328; Stockdale v. Hansard, 9 Ad. & E. 1.

In the first of these cases, the reasoning in Dunn v. Anderson (6 Wheat. 204), and the assertions of Mr. Justice Story in his Commentaries on the Constitution of the United States, are referred to with disapprobation. Conceding even that the House of Representatives may lawfully investigate the private affairs of a citizen, the proceeding by which the plaintiff was deprived of his liberty was illegal, and the warrant of the speaker void. Congress, by the act of Jan. 24, 1857, c. 19 (11 Stat. 155), as modified by sects. 102 and 104 of the Revised Statutes, prescribed a means for punishing a person who, having by the authority of either House of Congress been summoned as a witness to give testimony or produce papers upon any matter under inquiry before it, or one of its committees, wilfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry. It is the duty of the presiding officer of that House to certify the fact of such refusal to the 'district attorney for the District of Columbia,' whose duty it shall be to bring the matter before the grand jury. No other than the prescribed punishment can be inflicted. Haney v. State, 5 Wis. 529; Scringrour v. State, 1 Chand. (Wis.) 48. This is true in matters of contempt. Bickley v. Commonwealth, 2 J. J. Marsh. (Ky.) 572; Ex parte Edwards, 11 Fla. 174; Dunham v. State, 6 Iowa, 245; People v. Liscomb, 60 N. Y. 559. Double penalties cannot be inflicted. Driskill v. Parrish, 3 McLean, 631; City of Brooklyn v. Toynbee, 31 Barb. (N. Y.) 282; Sipperly v. Railroad Company, 9 How. (N. Y.) Pr. 83; Washburn v. McInroy, 7 Johns. (N. Y.) 134; Tiffany v. Driggs, 13 id. 252.

Because, as a punishment, the law has denounced a loss of two of the rights of citizenship, it does not follow that a third right is to be withheld from the delinquent. Indeed, the reverse result is the reasonable deduction, because it is clear on common principles that no penalty for crime can be inflicted except that which is expressly prescribed. The fact that several penal consequences are annexed by statute to the commission of a breach of law cannot warrant the aggravation by the judicial hand, of the punishment prescribed. The State v. Pritchard, 12 Am. Law Reg. N. S. 518; Ex parte Lange, 18 Wall. 163; Rex v. Wright, 1 Burr. 543; State v. Bishop, 7 Conn. 181; Respublica v. De Longchamps, 1 Dall. 111; Emery's Case, 107 Mass. 172; State v. Egglesht, 41 Iowa, 574.

The House of Representatives has power to arrest and commit persons guilty of a contempt of its authority. Anderson v. Dunn, 6 Wheat. 204; Wickelhausen v. Willett, 10 Abb. (N. Y.) Pr. 164; Yates v. Lansing, 9 Johns. (N. Y.) 395; Hiss v. Bartlett, 3 Gray (Mass.), 468; Johnston v. Commonwealth, 1 Bibb (Ky.), 598; 1 Kent, Com. 236; Story, Const., sects. 845, 849; Rawle, Const. 254; Sergent, Const. Law, 534.

The same doctrine is held by the English courts as applicable to the House of Commons. Burdett v. Abbott, 14 East, 1; Beaumont v. Barrett, 1 Moo. P. C. 59; Howard v. Gossett, 10 Ad. & E. N. S. 359.

The decision of the House as to the fact of contempt is conclusive, and cannot be collaterally impeached. Anderson v. Dunn, supra; Howard v. Gossett, supra; Burdett v. Abbott, supra; Ex parte Kearney, 7 Wheat. 38; Stockdale v. Hansard, 9 Ad. & E. 1; Case of the Sheriff of Middlesex, 11 id. 273.

With the exception of Thompson, the defendants took no part in the proceedings against the plaintiff other than by making their report to the House and there voting, as members, in support of the resolutions. For what they there did they are protected against being 'questioned in any other place.'

Thompson acted under the warrant of the speaker. As an officer of the House, he was charged with the duty of executing its commands, and the law affords him complete protection. Erskine v. Hornbach, 14 Wall. 613; Savacool v. Boughton, 5 Wend. (N. Y.) 170; Eart v. Camp, 16 id. 562; Chegaray v. Jenkins, 5 N. Y. 376; Sprague v. Birchard, 1 Wis. 457.

The authorities cited by the plaintiff in error do not sustain his position that the Revised Statutes having made provision for the punishment of a recusant witness, he cannot be otherwise punished.

The uniform current of authority is the other way. Rex v. Ossulston, 2 Stra. 1107; King v. Pierson, Andr. 310; State v. Yancy, Law Repos. (N. C.) 519; State v. Woodfin, 5 Ired. (N. C.) L. 199; State v. Williams, 2 Spears (S.C..), 26; Ex parte Braunsall, 2 Cowp. 829; Vertner v. Martin, 18 Miss. 103; Foster v. Commonwealth, 8 Watts & S. (Pa.) 77; In re King, 8 Q. B. 129; In re Wright, 1 Exch. 658; Regina v. Martin, 5 Cox, C. C. 356; People v. Stevens, 13 Wend. (N. Y.) 341; Levy v. The State, 6 Ind. 281; Ambrose v. State, id. 351; Phillips v. People, 55 Ill. 429; Moore v. People, 14 How. 13; 2 Bishop, Cr. Law, sect. 264.

Mr. Charles A. Eldredge, Mr. Enoch Totten, and Mr. Noah L. Jeffries, for the plaintiff in error.

Mr. Walter H. Smith and Mr. Frank H. Hurd, contra.

MR. JUSTICE MILLER, after stating the case, delivered the opinion of the court.