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MARSHALL v. GORDON , 243 U.S. 521 (1917)

U.S. Supreme Court

MARSHALL v. GORDON , 243 U.S. 521 (1917)

243 U.S. 521

H. SNOWDEN MARSHALL, Appt.,
v.
ROBERT B. GORDON, Sergeant at Arms of the House of Representatives of the United States.
No. 606.

Argued December 11 and 12, 1916.
Decided April 23, 1917.

[243 U.S. 521, 523]   Messrs. Charles P. Spooner, Jesse C. Adkins, and John C. Spooner for appellant.

[243 U.S. 521, 527]   Messrs. D-Cady Herrick, Martin W. Littleton, and Henry M. Goldfogle for appellee.

[243 U.S. 521, 530]  

Mr. Chief Justice White delivered the opinion of the court:

These are the facts: A member of the House of Representatives on the floor charged the appellant, who was the [243 U.S. 521, 531]   district attorney of the southern district of New York, with many acts of misfeasance and nonfeasance. When this was done the grand jury in the southern district of New York was engaged in investigating alleged illegal conduct of the member in relation to the Sherman Anti-trust Law July 2, 1890, c. 647, 26 Stat. 209 and asserted illegal activities of an organization known as Labor's National Peace Council to which the member belonged. The investigation as to the latter subject not having been yet reported upon by the grand jury, that body found an indictment against the member for a violation of the Sherman Law. Subsequently calling attention to his previous charges and stating others, the member requested that the judiciary committee be directed to inquire and report concerning the charges against the appellant in so far as they constituted impeachable offenses. After the adoption of this resolution a subcommittee was appointed which proceeded to New York to take testimony. Friction there arose between the subcommittee and the office of the district attorney, based upon the assertion that the subcommittee was seeking to unlawfully penetrate the proceedings of the grand jury relating to the indictment and the investigations in question. In a daily newspaper an article appeared charging that the writer was informed that the subcommittee was endeavoring rather to investigate and frustrate the action of the grand jury than to investigate the conduct of the district attorney. When called upon by the subcommittee to disclose the name of his informant, the writer declined to do so and proceedings for contempt of the House were threatened. The district attorney thereupon addressed a letter to the chairman of the subcommittee, avowing that he was the informant referred to in the article, averring that the charges were true, and repeating them in amplified form in language which was certainly unparliamentary and manifestly ill-tempered, and which was well calculated to arouse the indignation not only of the members of the [243 U.S. 521, 532]   subcommittee, but of those of the House generally. This letter was given to the press so that it might be published contemporaneously with its receipt by the chairman of the subcommittee. The judiciary committee reported the matter to the House and a select committee was appointed to consider the subject. The district attorney was called before that committee and reasserted the charges made in the letter, averring that they were justified by the circumstances, and stating that they would, under the same condition, be made again. Thereupon the select committee made a report and stated its conclusions and recommendations to the House as follows:

Upon the adoption of this report, under the authority of the House a formal warrant for arrest was issued and its execution by the Sergeant at Arms in New York was followed by an application for discharge on habeas corpus; and the correctness of the judgment of the court below, refusing the same, is the matter before us on this direct appeal.

Whether the House had power under the Constitution to deal with the conduct of the district attorney in writing the letter as a contempt of its authority, and to inflict punishment upon the writer for such contempt as a matter of legislative power, that is, without subjecting him to the [243 U.S. 521, 533]   statutory modes of trial provided for criminal offenses, protected by the limitations and safeguards which the Constitution imposes as to such subject, is the question which is before us. There is unity between the parties only in one respect; that is, that the existence of constitutional power is the sole matter to be decided. As to all else there is entire discord, every premise of law or authority relied upon by the one side being challenged in some respects by the other. We consider, therefore, that the shortest way to meet and dispose of the issue is to treat the subject as one of first impression, and we proceed to do so.

Undoubtedly what went before the adoption of the Constitution may be resorted to for the purpose of throwing light on its provisions. Certain is it that authority was possessed by the House of Commons in England to punish for contempt directly, that is, without the intervention of courts, and that such power included a variety of acts and many forms of punishment, including the right to fix a prolonged term of imprisonment. Indubitable also is it, however, that this power rested upon an assumed blending of legislative and judicial authority possessed by the Parliament when the Lords and Commons were one, and continued to operate after the division of the Parliament into two houses, either because the interblended power was thought to continue to reside in the Commons, or by the force of routine the mere reminiscence of the commingled powers led to a continued exercise of the wide authority as to contempt formerly existing long after the foundation of judicial-legislative power upon which it rested had ceased to exist. That this exercise of the right of legislative-judicial power to exert the authority stated prevailed in England at the time of the adoption of the Constitution and for some time after has been so often recognized by the decided cases relied upon and by decisions of this court, some of which are in the [243 U.S. 521, 534]   margin,1 as to make it too certain for anything but statement.

Clear also is it, however, that in the state governments prior to the formation of the Constitution the incompatibility of the intermixture of the legislative and judicial power was recognized and the duty of separating the two was felt, as was manifested by provisions contained in some of the state Constitutions enacted prior to the adoption of the Constitution of the United States, as illustrated by the following articles in the Constitutions of Maryland and Massachusetts:

The similarity of the provisions points to the identity of the evil which they were intended to reach. Clearly they operate to destroy the admixture of judicial and legis lative power as prevailing in the House of Commons, since the provisions in both the state Constitutions and the limitations accompanying them are wholly incompatible with judicial authority. Moreover, as under state Constitutions all governmental power not denied is possessed, the provisions were clearly not intended to give legislative power as such, for full legislative power to deal with the enumerated acts as criminal offenses and provide for their punishment accordingly already obtained. The object, therefore, of the provisions, could only have been to recognize the right of the legislative power to deal with the particular acts without reference to their violation of the criminal law and their susceptibility of being punished under that law because of the necessity of such a legislative authority to prevent or punish the acts independently, [243 U.S. 521, 536]   because of the destruction of legislative power which would arise from such acts if such authority was not possessed.

How dominant these views were can be measured by the fact that in various other states almost contemporaneously with the adoption of the Constitution similar provisions were written into their Constitutions and continued to be adopted until it is true to say that they became, if not universal, certainly largely predominant in the states. 2  

No power was expressly conferred by the Constitution of the United States on the subject except that given to the House to deal with contempt committed by its own members. Article 1, 5. As the rule concerning the Constitution of the United States is that powers not delegated were reserved to the people or the states, it follows that no other express authority to deal with contempt can be conceived of. It comes, then, to this: was such an authority implied from the powers granted? As it is unthinkable that in any case from a power expressly granted there can be implied the authority to destroy the grant made, and as the possession by Congress of the commingled legislative-judicial authority as to contempts which was exerted in the House of Commons would be absolutely destructive of the distinction between legislative, executive, and judicial authority which is interwoven in the very fabric of the Constitution, and would disregard express limitations therein, it must follow that there is no ground whatever for assuming that any implication as to such a power may be deduced from any grant of authority made to Congress by the Constitution. This conclusion has long since been [243 U.S. 521, 537]   authoritatively settled and is not open to be disputed. Anderson v. Dunn, 6 Wheat. 204, 5 L. ed. 242; Kilbourn v. Thompson, 103 U.S. 168 , 26 L. ed. 377. Whether the right to deal with contempt in the limited way provided in the state Constitutions may be implied in Congress as the result of the legislative power granted must depend upon how far such limited power is ancillary or incidental to the power granted to Congress,-a subject which we shall hereafter approach.

The rule of constitutional interpretation announced in M'Culloch v. Maryland, 4 Wheat. 316, 4 L. ed. 579, that that which was reasonably appropriate and relevant to the exercise of a granted power was to be considered as accompanying the grant, has been so universally applied that it suffices merely to state it. And as there is nothing in the inherent nature of the power to deal with contempt which causes it to be an exception to such rule, there can be no reason for refusing to apply it to that subject.

Thus, in Anderson v. Dunn, supra, which was an action for false imprisonment against the Sergeant-at-Arms of the House for having executed a warrant for arrest issued by that body in a contempt proceeding, after holding, as we have already said, that the power possessed by the House of Commons was incompatible with the Constitution and could not be exerted by the House, it was yet explicitly decided that from the power to legislate given by the Constitution to Congress there was to be implied the right of Congress to preserve itself; that is, to deal by way of contempt with direct obstructions to its legislative duties. In Kilbourn v. Thompson, supra, which was also a case of false imprisonment for arrest under a warrant issued by order of the House in a contempt proceeding, although the want of right of the House of Representatives to exert the judiciallegislative power possessed by the House of Commons was expressly reiterated, the question was reserved as to the right to imply an authority in the House of Representatives to deal with contempt as to a [243 U.S. 521, 538]   subject-matter within its jurisdiction, the particular case having been decided on the ground that the subject with which the contempt proceedings were concerned was totally beyond the jurisdiction of the House to investigate. But in Re Chapman, 166 U.S. 661 , 41 L. ed. 1154, 17 Sup. Ct. Rep. 677, the principle of the existence of an implied legislative authority under certain conditions to deal with contempt was again considered and upheld. The case was this: Chapman had refused to testify in a Senate proceeding, and was indicted under 102 of the Revised Statutes (Comp. Stat. 1913, 157) making such refusal criminal. He sued out a habeas corpus on the ground that the subject of the refusal was exclusively cognizable by the Senate, and that therefore the statute was unconstitutional as a wrongful delegation by the Senate of its authority, and because to subject him to prosecution under the statute might submit him to double jeopardy; that is, leave him after punishment under the statute to be dealt with by the Senate as for contempt. After demonstrating the want of merit in the argument as to delegation of authority, the proposition was held to be unsound and the contention as to double jeopardy was also adversely disposed of on the ground of the distinction between the implied right to punish for contempt and the authority to provide by statute for punishment for wrongful acts and to prosecute under the same for a failure to testify, the court saying that 'the two being diverso intuito and capable of standing together,' they were susceptible of being separately exercised.

And light is thrown upon the right to imply legislative power to deal directly by way of contempt without criminal prosecution with acts the prevention of which is necessary to preserve legislative authority, by the decision of the Privy Council in Kielley v. Carson, 4 Moore, P. C. C. 63, 13 Eng. Reprint, 225, which was fully stated in Kilbourn v. Thompson, supra, but which we again state. The case was this: Kielley was adjudged by the House of Assembly of Newfoundland [243 U.S. 521, 539]   guilty of contempt for having reproached a member 'in coarse and threatening language' for words spoken in debate in the House. A warrant was issued and Kielley was arrested. When brought before the House he refused to apologize and indulged in further violent language toward the mamber and was committed. Having been discharged on habeas corpus proceedings, he brought an action for false imprisonment against the Speaker and other members of the House. As a justification the defendants pleaded that they had acted under the authority of the House. A demurrer to the plea was overruled and there was a judgment for the defendants. The appeal was twice heard by the Privy Council, the court on the second argument having been composed of the Lord Chancellor (Lyndhurst), Lords Brougham, Denman, Abinger, Cottenham, and Campbell, the Vice Chancellor ( Shadwell), the Lord Chief Justice of the Common Pleas (Tindal), Mr. Justice Erskine, Lushington, and Baron Parke.

The opinion on reversal was written by Parke, B., who said:

After pointing out that the power was not expressly granted to the local legislature by the Crown, it was said the question was 'whether by law, the power of committing for a contempt, not in the presence of the Assembly, is incident to every local legislature.'

There can be no doubt that the ruling in the case just stated upheld the existence of the implied power to punish for contempt as distinct from legislative authority and yet flowing from it. It thus becomes apparent that from a [243 U.S. 521, 541]   doctrinal point of view the English rule concerning legislative bodies generally came to be in exact accord with that which was recognized in Anderson v. Dunn, 6 Wheat. 204, 5 L. ed. 242, as belonging to Congress; that is, that in virtue of the grant of legislative authority there would be a power implied to deal with contempt in so far as that authority was necessary to preserve and carry out the legislative authority given. While the doctrine of Kielley v. Carson was thus in substantive principle the same as that announced in Anderson v. Dunn, we must not be understood as accepting the application which was made of the rule to the particular case there in question, since, as we shall hereafter have occasion to show, we think that the application was not consistent with the rule which the case announced, and would, if applied, unwarrantedly limit the implied power of Congress to deal with contempt.

What does this implied power embrace? is thus the question. In answering, it must be borne in mind that the power rests simply upon the implication that the right has been given to do that which is essential to the execution of some other and substantive authority expressly conferred. The power is therefore but a force implied to bring into existence the conditions to which constitutional limitations apply. It is a means to an end, and not the end itself. Hence it rests solely upon the right of self- preservation to enable the public powers given to be exerted.

These principles are plainly the result of what was decided in Anderson v. Dunn, supra, since in that case, in answering the question what was the rule by which the extent of the implied power of legislative assemblies to deal with contempt was controlled, it was declared to be ' the least possible power adequate to the end proposed' (6 Wheat. 231, 5 L. ed. 248), which was but a form of stating that as it resulted from implication, and not from legislative will, the legislative will was powerless to extend it further [243 U.S. 521, 542]   than implication would justify. The concrete application of the definition and the principle upon which it rests were aptly illustrated in Re Chapman, 166 U.S. 661 , 41 L. ed. 1154, 17 Sup. Ct. Rep. 677, where, because of the distinction existing between the two which was drawn, the implied power was decided not to come under the operation of a constitutional limitation applicable to a case resting upon the exercise of substantive legislative power.

Without undertaking to inclusively mention the subjects embraced in the implied power, we think from the very nature of that power it is clear that it does not embrace punishment for contempt as punishment, since it rests only upon the right of self-preservation; that is, the right to prevent acts which, in and of themselves, inherently obstruct or prevent the discharge of legislative duty or the refusal to do that which there is an inherent legislative power to compel in order that legislative functions may be performed. And the essential nature of the power also makes clear the cogency and application of the two limitations which were expressly pointed out in Anderson v. Dunn, supra; that is, that the power, even when applied to subjects which justified its exercise, is limited to imprisonment, and such imprisonment may not be extended beyond the session of the body in which the contempt occurred. Not only the adjudged cases, but congressional action in enacting legislation as well as in exerting the implied power, conclusively sustain the views just stated. Take, for instance, the statute referred to in Re Chapman, where, not at all interfering with the implied congressional power to deal with the refusal to give testimony in a matter where there was a right to exact it, the substantive power had been exerted to make such refusal a crime, the two being distinct the one from the other. So, also, when the difference between the judicial and legislative powers is considered and the divergent elements which, in the nature of things, enter into the determination of [243 U.S. 521, 543]   what is self-preservation in the two cases, the same result is established by the statutory provisions dealing with the judicial authority to summarily punish for contempt; that is, without resorting to the modes of trial required by constitutional limitations or otherwise for substantive offenses under the criminal law. Act of March 2, 1831 (4 Stat. at L. 487, chap. 99, Comp. Stat. 1913, 1245). The legislative history of the exertion of the implied power to deal with contempt by the Senate or House of Representatives when viewed comprehensively from the beginning points to the distinction upon which the power rests, and sustains the limitations inhering in it which we have stated. The principal instances are mentioned in the margin,3 and they all, except two or three, deal with either physical obstruction of the legislative body in the discharge of its duties, or physical assault upon its members for action taken or words spoken in the body, or obstruction of its officers in the performance of their official duties, or the prevention of members from attending so that their duties might be performed, or finally with contumacy in refusing to obey orders to produce documents or give testimony which there was a right to compel. In the two or three instances not embraced in the classes we think it plainly appears that for the moment the distinction was overlooked which existed between the legislative power to make criminal every form of act which can constitute a contempt, to be pun- [243 U.S. 521, 544]   ished according to the orderly process of law, and the accessory implied power to deal with particular acts as contempts outside of the ordinary process of law because of the effect such particular acts may have in preventing the exercise of legislative authority. And in the debates which ensued when the various cases were under consideration it would seem that the difference between the legislative and the judicial power was also sometimes forgotten; that is to say, the legislative right to exercise discretion was confounded with the want of judicial power to interfere with the legislative discretion when lawfully exerted. But these considerations are accidental and do not change the concrete result manifested by considering the subject from the beginning. Thus we have been able to discover no single instance where, in the exertion of the power to compel testimony, restraint was ever made to extend beyond the time when the witness should signify his willingness to testify, the penalty or punishment for the refusal remaining controlled by the general criminal law. So, again, we have been able to discover no instance, except the two or three above referred to, where acts of physical interference were treated as within the implied power unless they possessed the obstructive or preventive characteristics which we have stated, or any case where any restraint was imposed after it became manifest that there was no room for a legislative judgment as to the virtual continuance of the wrongful interferencee which was the subject of consideration. And this latter statement causes us to say, referring to Kielley v. Carson, 4 Moore, P. C. C. 63, 13 Eng. Reprint, 225, 7 Jur. 137, that where a particular act, because of its interference with the right of self- preservation, comes within the jurisdiction of the House to deal with directly under its implied power to preserve its functions, and therefore without resort to judicial proceedings under the general criminal law, we are of opinion that authority does not cease to exist because the act complained of had been committed [243 U.S. 521, 545]   when the authority was exerted, for to so hold would be to admit the authority and at the same time to deny it. On the contrary, when an act is of such a character as to subject it to be dealt with as a contempt under the implied authority, we are of opinion that jurisdiction is acquired by Congress to act on the subject, and therefore there necessarily results from this power the right to determine, in the use of legitimate and fair discretion, how far from the nature and character of the act there is necessity for repression to prevent immediate recurrence; that is to say, the continued existence of the interference or obstruction to the exercise of the legislative power. And of course in such case, as in every other, unless there be manifest an absolute disregard of discretion and a mere exertion of arbitrary power coming within the reach of constitutional limitations, the exercise of the authority is not subject to judicial interference.

It remains only to consider whether the acts which were dealt with in the case in hand were of such a character as to bring them within the implied power to deal with contempt; that is, the accessory power possessed to prevent the right to exert the powers given from being obstructed and virtually destroyed. That they were not would seem to be demonstrated by the fact that the contentions relied upon in the elaborate arguments at bar to sustain the authority were principally rested not upon such assumption, but upon the application and controlling force of the rule governing in the House of Commons. But aside from this, coming to test the question by a consideration of the conclusion upon which the contempt proceedings were based as expressed in the report of the select committee which we have previously quoted, and the action of the House of Representatives, based on it, there is room only for the conclusion that the contempt was deemed to result from the writing of the letter, not because of any obstruction to the performance of legis- [243 U.S. 521, 546]   lative duty resulting from the letter, or because the preservation of the power of the House to carry out its legislative authority was endangered by its writing, but because of the effect and operation which the irritating and ill-tempered statements made in the letter would produce upon the public mind, or because of the sense of indignation which it may be assumed was produced by the letter upon the members of the committee and of the House generally. But to state this situation is to demonstrate that the contempt relied upon was not intrinsic to the right of the House to preserve the means of discharging its legislative duties, but was extrinsic to the discharge of such duties, and related only to the presumed operation which the letter might have upon the public mind and the indignation naturally felt by members of the committee on the subject. But these considerations plainly serve to mark the broad boundary line which separates the limited implied power to deal with classes of acts as contempts for self-preservation and the comprehensive legislative power to provide by law for punishment for wrongful acts.

The conclusions which we have stated bring about a concordant operation of all the powers of the legislative and judicial departments of the government, express or implied, as contemplated by the Constitution. And as this is considered, the reverent thought may not be repressed that the result is due to the wise foresight of the fathers, manifested in state Constitutions even before the adoption of the Constitution of the United States, by which they substituted for the intermingling of the legislative and judicial power to deal with contempt as it existed in the House of Commons a system permitting the dealing with that subject in such a way as to prevent the obstruction of the legislative powers granted and secure their free exertion, and yet, at the same time, not substantially interfere with the great guaranties and limitations con- [243 U.S. 521, 547]   cerning the exertion of the power to criminally punish,-a beneficent result which additionally arises from the golden silence by which the framers of the Constitution left the subject to be controlled by the implication of authority resulting from the powers granted.

It is suggested in argument that whatever be the general rule, it is here not applicable because the House was considering and its committee contemplating impeachment proceedings. The argument is irrelevant because we are of opinion that the premise upon which it rests is unfounded. But indulging in the assumption to the contrary, we think it is wholly without merit, as we see no reason for holding that if the situation suggested be assumed, it authorized a disregard of the plain purposes and objects of the Constitution as we have stated them. Besides, it must be apparent that the suggestion could not be accepted without the conclusion that, under the hypothesis stated, the implied power to deal with contempt as ancillary to the legislative power had been transformed into judicial authority and become subject to all the restrictions and limitations imposed by the Constitution upon that authority,-a conclusion which would frustrate and destroy the very purpose which the proposition is advanced to accomplish and would create a worse evil than that which the wisdom of the fathers corrected before the Constitution of the United States was adopted. How can this be escaped, since it is manifest that if the argument were to be sustained those things which, as pointed out in Re Chapman, 166 U.S. 661 , 41 L. ed. 1154, 17 Sup. Ct. Rep. 677, were distinct and did not therefore the one frustrate the other,-the implied legislative authority to compel the giving of testimony and the right criminally to punish for failure to do so,-would become one and the same and the exercise of one would therefore be the exertion of, and the exhausting of the right to resort to, the other. Again, accepting the proposition, by what process of reasoning could the [243 U.S. 521, 548]   conclusion be escaped that the right to exert implied authority by way of contempt proceedings in so far as essential to preserve legislative power would become itself an exertion of legislative power and thus at once be subject to the limitations as to modes of trial exacted by the guaranty of the Constitution on that subject? We repeat, out of abundance of precaution, we are called upon to consider not the legislative power of Congress to provide for punishment and prosecution under the criminal laws in the amplest degree for any and every wrongful act, since we are alone called upon to determine the limits and extent of an ancillary and implied authority essential to preserve the fullest legislative power, which would necessarily perish by operation of the Constitution if not confined to the particular ancillary atmosphere from which alone the power arises and upon which its existence depends.

It follows from what we have said that the court below erred in refusing to grant the writ of habeas corpus, and its action must be and it is, therefore, reversed, and the case remanded with directions to discharge the relator from custody.

And it is so ordered.

Footnotes

[ Footnote 1 ] Crosby's Case, 3 Wils. 188, 95 Eng. Reprint, 1005, 2 W. Bl. 754; Burdett v. Abbot, 14 East, 1, 104 Eng. Reprint, 501, 5 Dow. P. C. 165, 3 Eng. Reprint, 1289, 4 Taunt. 401, 128 Eng. Reprint, 384, 12 Revised Rep. 450; Stockdale v. Hansard, 9 Ad. & El. 1, 112 Eng. Reprint, 1112, 2 Perry & D. 1, 8 L. J. Q. B. N. S. 294, 3 Jur. 905; Anderson v. Dunn, 6 Wheat, 204, 5 L. ed. 242; Kilbourn v. Thompson, 103 U.S. 168 , 26 L. ed. 377.

[ Footnote 2 ] 1790, South Carolina, art. 1, 13; 1792, New Hampshire, pt. 2, 22 and 23; 1796, Tennessee, art. 1, 11; 1798, Georgia, art. 1, 13; 1802, Ohio, art. 1, 14; 1816, Indiana, art. 3, 14; 1817, Mississippi, art. 3, 20; 1818 Illinois, art. 2, 13; 1820, Maine, art. 4, pt. 3, 6; 1820, Missouri, art. 3, 19.

[ Footnote 3 ] 1795, attempt to bribe members of the House; 1800, publication of criticism of the Senate; 1809, assault on a member of the House; 1818, attempt to bribe a member of the House; 1828, assault on the Secretary to the President in the Capitol; 1832, assault on a member of the House; 1835, assault on a member of the House; 1842, contumacious witnes; 1857, contumacious witness; 1858, contumacious witness; 1859 contumacious witness; 1865, assault on a member of the House; 1866, assault on a clerk of a committee of the House; 1870, assault on a member of the House; 1871, contumacious witness; 1874, contumacious witness; 1876, contumacious witness; 1894, contumacious witness; 1913, assault on a member of the House.

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