To an action of trespass against the Sergeant at Arms of the
House of Representatives of the United States, for an assault and
battery and false imprisonment, it is a legal justification and bar
to plead that a Congress was held and sitting during the period of
the trespasses complained of, and that the House of Representatives
had resolved that the plaintiff had been guilty of a breach of the
privileges of the House, and of a high contempt of the dignity and
authority of the same, and had ordered that the Speaker should
issue his warrant to the Sergeant at Arms commanding him to take
the plaintiff into custody, wherever to be found, and to have him
before the said House to answer to the said charge, and that the
Speaker did accordingly issue such a warrant, reciting the said
resolution and order and commanding the Sergeant at Arms to take
the plaintiff into custody, &c., and delivered the said warrant
to the defendant, by virtue of which warrant the defendant arrested
the plaintiff and conveyed him to the bar of the House, where he
was heard in his defence touching the matter of the said charge,
and the examination being adjourned from day to day, and the House
having ordered the plaintiff to be detained in custody, he was
accordingly detained by the defendant until he was finally adjudged
to be guilty and convicted of the charge aforesaid, and ordered to
be forthwith brought to the bar and reprimanded by the Speaker, and
then discharged from custody, and, after being thus reprimanded,
was actually discharged from the arrest and custody aforesaid.
This was an action of trespass, brought in the Court below, by
the plaintiff in error, against the defendant in error, for an
assault and battery, and false imprisonment, to which the defendant
pleaded the general issue, and a special plea of justification.
The
Page 19 U. S. 205
plaintiff demurred generally to the special plea, which was
adjudged good, and the demurrer overruled, and judgment upon such
demurrer was entered for the defendant, and a writ of error brought
by the plaintiff. The question arising upon the demurrer will be
best explained by giving the defendant's plea at large, as pleaded
and adjudged good upon general demurrer, in the Circuit Court,
viz.:
"And the said Thomas, by the leave of the Court here first had,
further defends the force and injury, when, &c. And as to the
coming with force and arms, or whatsoever is against the peace; and
also as to the assaulting, beating, bruising, battering, and
ill-treating of the said John, in manner and form as the said John,
in his said declaration, hath above supposed to be done, the said
Thomas saith that he is not guilty thereof; and of this he, as
before, puts himself upon the country; and as to the imprisonment
of the said John, and the keeping and detaining him in confinement,
at the time in the said declaration mentioned, to-wit, on the said
eighth day of January, in the year one thousand eight hundred and
eighteen, and for the space of two months in the said declaration
mentioned, the said Thomas saith that the said John ought not to
have or maintain his action aforesaid against him, because he saith
that long before and at the said time when, &c. in the
introduction of this plea mentioned, and during all the time in the
said declaration mentioned, a Congress of the United States was
holden at the City of Washington, in the County of Washington, and
District of Columbia aforesaid, and was then and there,
Page 19 U. S. 206
and during all the time aforesaid, assembled and sitting, and
that, long before and at the time when, &c. in the introduction
of this plea mentioned, and during all the time in the said
declaration mentioned, he the said Thomas was, and yet is, Sergeant
at Arms of the House of Representatives (then and there being one
of the Houses whereof the said Congress of the United States
consisted), and, by virtue of his said office, and by the tenor and
effect of the standing rules and orders ordained and established by
the said House for the determining of the rules of its proceedings,
and by the force and effect of the laws and customs of the said
House, and of the said Congress, was then and there, and during all
the time aforesaid, and yet is duly authorized and required,
amongst other things, to execute the commands of the said House,
from time to time, together with all such process issued by
authority thereof, as shall be directed to him by the Speaker of
the said House; and that long before, and at the time when, &c.
in the introduction of this plea mentioned, and during all the time
in the declaration mentioned, one Henry Clay was, and yet is, the
Speaker of the said House of Representatives, and by virtue of his
said office, and by the tenor and effect of such standing rules and
orders as aforesaid, and by the force and effect of such laws and
customs as aforesaid, then and there, and during all the time
aforesaid, was and yet is, amongst other things, duly authorized
and required to subscribe with his proper hand, and to seal with
his seal, all writs, warrants, and subpoenas issued by order of the
said House: and that long before and
Page 19 U. S. 207
at the time when, &c. in the introduction of this plea
mentioned, and during all the time in the said declaration
mentioned, one Thomas Dougherty was, and yet is, the Clerk of the
said House of Representatives; and by virtue of his said office,
and by the tenor and effect of such standing rules and orders as
aforesaid, and by the force and effect of such laws and customs as
aforesaid, then and there, and during all the time aforesaid, was
and yet is, amongst other things, duly authorized and required to
attest and subscribe with his proper hand, all such writs,
warrants, and subpoenas issued by order of the said house: and that
long before, and at the time when, &c. in the introduction of
this plea mentioned, and during all the time in the said
declaration mentioned, and ever since, it was and yet is, amongst
other things, ordained, established, and practised, by and under
such standing rules and orders as aforesaid, and such laws and
customs as aforesaid, that all writs, warrants, subpoenas, and
other process issued by order of the said House, shall be under the
hand and seal of the said Speaker of the said House, and attested
by the said Clerk of the said House; and so being under the hand
and seal of the said Speaker, and attested by the said Clerk as
aforesaid, shall be executed, pursuant to the tenor and effect of
the same, by the said "
brk:
Sergeant at Arms; and the said Thomas, the defendant, further
saith, that the said Henry Clay, so being such Speaker of the said
House of Representatives as aforesaid, and the said Thomas
Dougherty, so being such Clerk of the same House as aforesaid, and
he the said defendant,
Page 19 U. S. 208
so being such Sergeant at Arms of the same House as aforesaid,
and the said Congress, so being assembled and sitting as aforesaid,
heretofore and before the said time when, &c. in the
introduction of this plea mentioned, to-wit, on the seventh day of
January, in the year aforesaid, at Washington aforesaid, in the
county and district aforesaid, it was, in and by the said House,
for good and sufficient cause to the same appearing, resolved and
ordered, pursuant to the tenor and effect of such standing rules
and orders so ordained and established as aforesaid, and according
to the force and effect of such laws and customs as aforesaid, that
the said John had been guilty of a breach of the privileges of the
said House, and of a high contempt of the dignity and authority of
the same; wherefore, it was then and there, in and by the said
house, further resolved and ordered, in the like pursuance of such
standing rules and orders as aforesaid, and of such laws and
customs as aforesaid, that the said Speaker should forthwith issue
his warrant, directed to the Sergeant at Arms, commanding him to
take into custody the body of the said John, wherever to be found,
and the same forthwith to have before the said House, at the bar
thereof, then and there to answer to the said charge, &c. as by
the journal, record, and proceedings of the said resolutions and
order in the said House remaining, reference being thereto had,
will more fully appear. Whereupon, the said Henry Clay, so being
such Speaker as aforesaid, in pursuance of such standing rules and
orders as aforesaid, and according to such laws and customs as
aforesaid, did, for
Page 19 U. S. 209
the execution of the resolutions and order aforesaid,
afterwards, and before the time when, &c. in the introduction
of this plea mentioned, to-wit, on the said seventh day of January,
in the year aforesaid, at Washington aforesaid, in the county
aforesaid, as such Speaker as aforesaid, duly make and issue his
certain warrant, under his hand and seal, duly directed to the said
Thomas, the defendant, as such Sergeant at Arms as aforesaid (to
whom, so being such Sergeant at Arms as aforesaid, the execution of
such warrant then and there belonged) and by the said Thomas
Dougherty, so being such Clerk as aforesaid; in and by said
warrant, reciting that the said House of Representatives had, that
day, resolved and adjudged, that the said John Anderson had been
guilty of a breach of the privileges of the said House, and of a
high contempt of its dignity and authority; and that the said House
had thereupon ordered the said Speaker to issue his warrant,
directed to the said Sergeant at Arms, commanding him, the said
Sergeant, to take into custody the body of the said John Anderson,
wherever to be found, and the same forthwith to have before the
said House, at the bar thereof, then and there to answer to the
said charge; therefore, it was required that the said Thomas, the
defendant, as such Sergeant as aforesaid, should take into his
custody the body of the said John Anderson, and then forthwith to
bring him before the said House, at the bar thereof, then and there
to answer to the charge aforesaid, and to be dealt with by the said
House, according to the constitution and laws of the United States:
and said
Page 19 U. S. 210
Henry Clay, so being such Speaker as aforesaid, then and there,
and before the said time when, &c. in the introduction of this
plea mentioned, delivered the said warrant to the said Thomas, so
being such Sergeant as aforesaid, to be executed in due form of
law. By virtue, and in execution of which said warrant, the said
Thomas, as such Sergeant as aforesaid, afterwards, to-wit, at the
said time when, &c. in the introduction of this plea mentioned,
at Washington aforesaid, in order to arrest the said John, and
convey him in custody to the bar of the said House, to answer to
the charge aforesaid, and to be dealt with by the said House,
according to the constitution and laws of the United States, in
obedience to the resolutions and order aforesaid, and to the tenor
and
brk:
effect of the said warrant, so issued as aforesaid, went to the
said John, and then and there gently laid his hands on the said
John 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 the said House, as it was lawful for the said Thomas to do
for the cause aforesaid: and thereupon such proceedings were had,
in and by the said House, that the said John was then and there
forthwith duly examined, and heard in his defence, before the said
House, at the bar thereof, touching the matter of the said charge;
and that such examination was, in and by the said House, and by the
resolutions and orders of the same, duly adjourned and continued
from day to day, from the said time when, &c. in the
introduction of this plea mentioned, until the sixteenth day of
January, in the
Page 19 U. S. 211
year aforesaid; which said examinations were then so adjourned
and continued, as aforesaid, from necessity, in order to go through
and conclude the examination and defence of the said John, touching
the matter of the said charge, before the said House; neither the
said examination, nor the said defence, having been finished or
concluded before the day last aforesaid: during all which time,
to-wit, from the said time when, &c. in the introduction of
this plea mentioned, until the day last aforesaid, it was, in and
by the said House, duly resolved and ordered, from day to day, as
the said examination was adjourned and continued as aforesaid, that
the said John should be remanded, kept, and detained in the custody
of the said Thomas, as such Sergeant as aforesaid, by virtue and in
execution of the said warrant, in order to have such his
examinations and defence finished and concluded, in due form; and
the said Thomas, as such Sergeant as aforesaid, afterwards, to-wit,
at and from the said time when, &c. in the introduction of this
plea mentioned, until the said sixteenth day of January, in the
year aforesaid, did, in pursuance of the last mentioned resolutions
and orders of said House, and by virtue, and in execution of the
said warrant, keep and detain the said John in custody as
aforesaid, and him did bring and have, from day to day, during the
said time, before the said House, at the bar thereof, in order to
undergo such examinations as aforesaid, and to be heard in his
defence aforesaid, touching the matter of the said charge, to-wit,
at Washington aforesaid, in the county aforesaid, as it was also
lawful for him, the
Page 19 U. S. 212
said Thomas, to do for the cause aforesaid: and thereupon
afterwards, to-wit, on the said last mentioned sixteenth day of
January, in the year aforesaid, such further proceedings were had
in and by the said House, that it was then and there finally
resolved and adjudged, in and by the said House, that the said John
was guilty, and convict of the charge aforesaid, in the form
aforesaid; and that he be forthwith brought to the bar of the said
House, and there reprimanded by the said Speaker, for the outrage
by the said John committed, and then that he be forthwith
discharged from the custody of the said Sergeant at Arms: and
thereupon the said John was then and there, in pursuance of the
last mentioned resolutions, order, and judgment, forthwith
reprimanded by the said Speaker, and then forthwith discharged from
the arrest and custody aforesaid; as by the journals, record, and
proceedings of the said resolutions, orders, and judgment in the
said House remaining, reference being thereto had, will more fully
appear: which are the same several supposed trespasses in the
introduction of this plea mentioned, and whereof the said John
hath, above in his said declaration, complained against the said
Thomas, and not other or different: with this, that the said Thomas
doth aver that the said John, the now plaintiff, and the said John
Anderson, in the said resolutions, orders, warrant, and judgment
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 therein mentioned, the said Congress of the United
States was
Page 19 U. S. 213
assembled and sitting, to-wit, at Washington aforesaid, in the
county aforesaid: and this the said Thomas is ready to verify:
wherefore he prays judgment, if the said John ought to have or
maintain his aforesaid action thereof against him, &c.
Page 19 U. S. 224
MR. JUSTICE JOHNSON delivered the opinion of the Court.
Notwithstanding the range which has been taken by the
plaintiff's counsel in the discussion of this cause, the merits of
it really lie in a very limited compass. The pleadings have
narrowed them down to the simple inquiry whether the House of
Representatives can take cognizance of contempts committed
Page 19 U. S. 225
against themselves under any circumstances? The duress
complained of was sustained under a warrant issued to compel the
party's appearance, not for the actual infliction of punishment for
an offence committed. Yet it cannot be denied, that the power to
institute a prosecution must be dependent upon the power to punish.
If the House of Representatives possessed no authority to punish
for contempt, the initiating process issued in the assertion of
that authority must have been illegal; there was a want of
jurisdiction to justify it.
It is certainly true, that there is no power given by the
constitution to either House to punish for contempts, except when
committed by their own members. Nor does the judicial or criminal
power given to the United States, in any part, expressly extend to
the infliction of punishment for contempt of either House, or any
one coordinate branch of the government. Shall we, therefore,
decide, that no such power exists?
It is true, that such a power, if it exists, must be derived
from implication, and the genius and spirit of our institutions are
hostile to the exercise of implied powers. Had the faculties of man
been competent to the framing of a system of government which would
have left nothing to implication, it cannot be doubted, that the
effort would have been made by the framers of the Constitution. But
what is the fact? There is not in the whole of that admirable
instrument a grant of powers which does not draw after it others,
not expressed, but vital to
Page 19 U. S. 226
their exercise; not substantive and independent, indeed, but
auxiliary and subordinate.
The idea is utopian that government can exist without leaving
the exercise of discretion somewhere. Public security against the
abuse of such discretion must rest on responsibility and stated
appeals to public approbation. Where all power is derived from the
people, and public functionaries, at short intervals, deposit it at
the feet of the people, to be resumed again only at their will,
individual fears may be alarmed by the monsters of imagination, but
individual liberty can be in little danger.
No one is so visionary as to dispute the assertion that the sole
end and aim of all our institutions is the safety and happiness of
the citizen. But the relation between the action and the end is not
always so direct and palpable as to strike the eye of every
observer. The science of government is the most abstruse of all
sciences -- if, indeed, that can be called a science which has but
few fixed principles and practically consists in little more than
the exercise of a sound discretion, applied to the exigencies of
the state as they arise. It is the science of experiment.
But if there is one maxim which necessarily rides over all
others in the practical application of government, it is that the
public functionaries must be left at liberty to exercise the powers
which the people have entrusted to them. The interests and dignity
of those who created them, require the exertion of the powers
indispensable to the attainment of the ends of their creation. Nor
is a casual conflict with
Page 19 U. S. 227
the rights of particular individuals any reason to be urged
against the exercise of such powers. The wretch beneath the gallows
may repine at the fate which awaits him, and yet it is no less
certain that the laws under which he suffers were made for his
security. The unreasonable murmurs of individuals against the
restraints of society have a direct tendency to produce that worst
of all despotisms, which makes every individual the tyrant over his
neighbour's rights.
That "the safety of the people is the supreme law" not only
comports with, but is indispensable to, the exercise of those
powers in their public functionaries, without which that safety
cannot be guarded. On this principle it is that courts of justice
are universally acknowledged to be vested, by their very creation,
with power to impose silence, respect, and decorum in their
presence, and submission to their lawful mandates, and, as a
corollary to this proposition, to preserve themselves and their
officers from the approach and insults of pollution.
It is true, that the courts of justice of the United States are
vested, by express statute provision, with power to fine and
imprison for contempts; but it does not follow, from this
circumstance, that they would not have exercised that power without
the aid of the statute, or not, in cases, if such should occur, to
which such statute provision may not extend; on the contrary, it is
a legislative assertion of this right, as incidental to a grant of
judicial power, and can only be considered either as an instance of
abundant caution, or a legislative declaration, that the power
Page 19 U. S. 228
of punishing for contempt shall not extend beyond its known and
acknowledged limits of fine and imprisonment.
But it is contended that, if this power in the House of
Representatives is to be asserted on the plea of necessity, the
ground is too broad, and the result too indefinite; that the
executive, and every coordinate, and even subordinate, branch of
the Government may resort to the same justification, and the whole
assume to themselves, in the exercise of this power, the most
tyrannical licentiousness.
This is unquestionably an evil to be guarded against, and if the
doctrine may be pushed to that extent, it must be a bad doctrine,
and is justly denounced.
But what is the alternative? The argument obviously leads to the
total annihilation of the power of the House of Representatives to
guard itself from contempts, and leaves it exposed to every
indignity and interruption that rudeness, caprice, or even
conspiracy, may meditate against it. This result is fraught with
too much absurdity not to bring into doubt the soundness of any
argument from which it is derived. That a deliberate assembly,
clothed with the majesty of the people and charged with the care of
all that is dear to them; composed of the most distinguished
citizens, selected and drawn together from every quarter of a great
nation; whose deliberations are required by public opinion to be
conducted under the eye of the public, and whose decisions must be
clothed with all that sanctity which
Page 19 U. S. 229
unlimited confidence in their wisdom and purity can inspire;
that such an assembly should not possess the power to suppress
rudeness, or repel insult is a supposition too wild to be
suggested. And, accordingly, to avoid the pressure of these
considerations, it has been argued that the right of the respective
Houses to exclude from their presence, and their absolute control
within their own walls, carry with them the right to punish
contempts committed in their presence; while the absolute
legislative power given to Congress within this District enables
them to provide by law against all other insults against which
there is any necessity for providing.
It is to be observed that, so far as the issue of this cause is
implicated, this argument yields all right of the plaintiff in
error to a decision in his favour; for,
non constat, from
the pleadings, but that this warrant issued for an offence
committed in the immediate presence of the House.
Nor is it immaterial to notice what difficulties the negation of
this right in the House of Representatives draws after it when it
is considered that the concession of the power, if exercised within
their walls, relinquishes the great grounds of the argument,
to-wit, the want of an express grant, and the unrestricted and
undefined nature of the power here set up. For why should the House
be at liberty to exercise an ungranted, an unlimited, and undefined
power within their walls any more than without them? If the analogy
with individual right and power be resorted to, it will reach no
farther than to exclusion, and it requires no exuberance of
imagination
Page 19 U. S. 230
to exhibit the ridiculous consequences which might result from
such a restriction imposed upon the conduct of a deliberative
assembly.
Nor would their situation be materially relieved by resorting to
their legislative power within the District. That power may,
indeed, be applied to many purposes, and was intended by the
Constitution to extend to many purposes indispensable to the
security and dignity of the General Government; but they are
purposes of a more grave and general character than the offences
which may be denominated contempts, and which, from their very
nature, admit of no precise definition. Judicial gravity will not
admit of the illustrations which this remark would admit of. Its
correctness is easily tested by pursuing, in imagination, a
legislative attempt at defining the cases to which the epithet
contempt might be reasonably applied.
But although the offence be held undefinable, it is justly
contended that the punishment need not be indefinite. Nor is it
so.
We are not now considering the extent to which the punishing
power of Congress, by a legislative act, may be carried. On that
subject, the bounds of their power are to be found in the
provisions of the Constitution.
The present question is what is the extent of the punishing
power which the deliberative assemblies of the Union may assume and
exercise on the principle of self-preservation?
Analogy, and the nature of the case, furnish the
Page 19 U. S. 231
answer -- "the least possible power adequate to the end
proposed;" which is the power of imprisonment. It may, at first
view, and from the history of the practice of our legislative
bodies, be thought to extend to other inflictions. But every other
will be found to be mere commutation for confinement; since
commitment alone is the alternative where the individual proves
contumacious. And even to the duration of imprisonment a period is
imposed by the nature of things, since the existence of the power
that imprisons is indispensable to its continuance, and although
the legislative power continues perpetual, the legislative body
ceases to exist on the moment of its adjournment or periodical
dissolution. It follows that imprisonment must terminate with that
adjournment.
This view of the subject necessarily sets bounds to the exercise
of a caprice which has sometimes disgraced deliberative assemblies
when under the influence of strong passions or wicked leaders, but
the instances of which have long since remained on record only as
historical facts, not as precedents for imitation. In the present
fixed and settled state of English institutions, there is no more
danger of their being revived, probably, than in our own.
But the American legislative bodies have never possessed, or
pretended to the omnipotence which constitutes the leading feature
in the legislative assembly of Great Britain, and which may have
led occasionally to the exercise of caprice, under the specious
appearance of merited resentment.
Page 19 U. S. 232
If it be inquired what security is there that, with an officer
avowing himself devoted to their will, the House of Representatives
will confine its punishing power to the limits of imprisonment, and
not push it to the infliction of corporal punishment, or even
death, and exercise it in cases affecting the liberty of speech and
of the press? The reply is to be found in the consideration that
the Constitution was formed in and for an advanced state of
society, and rests at every point on received opinions and fixed
ideas. It is not a new creation, but a combination of existing
materials whose properties and attributes were familiarly
understood, and had been determined by reiterated experiments. It
is not, therefore, reasoning upon things as they are to suppose
that any deliberative assembly constituted under it would ever
assert any other rights and powers than those which had been
established by long practice, and conceded by public opinion.
Melancholy, also, would be that state of distrust which rests not a
hope upon a moral influence. The most absolute tyranny could not
subsist where men could not be trusted with power because they
might abuse it, much less a Government which has no other basis
than the sound morals, moderation, and good sense of those who
compose it. Unreasonable jealousies not only blight the pleasures,
but dissolve the very texture of society.
But it is argued, that the inference, if any, arising under the
Constitution is against the exercise of the powers here asserted by
the House of Representatives; that the express grant of power to
punish their
Page 19 U. S. 233
members respectively, and to expel them, by the application of a
familiar maxim, raises an implication against the power to punish
any other than their own members.
This argument proves too much, for its direct application would
lead to the annihilation of almost every power of Congress. To
enforce its laws upon any subject without the sanction of
punishment is obviously impossible. Yet there is an express grant
of power to punish in one class of cases and one only, and all the
punishing power exercised by Congress in any cases, except those
which relate to piracy and offences against the laws of nations, is
derived from implication. Nor did the idea ever occur to anyone
that the express grant in one class of cases repelled the
assumption of the punishing power in any other.
The truth is that the exercise of the powers given over their
own members was of such a delicate nature that a constitutional
provision became necessary to assert or communicate it.
Constituted, as that body is, of the delegates of confederated
States, some such provision was necessary to guard against their
mutual jealousy, since every proceeding against a representative
would indirectly affect the honour or interests of the state which
sent him.
In reply to the suggestion that on this same foundation of
necessity might be raised a superstructure of implied powers in the
executive and every other department, and even ministerial officer
of the government, it would be sufficient to observe that neither
analogy nor precedent would support the assertion
Page 19 U. S. 234
of such powers in any other than a legislative or judicial body.
Even corruption anywhere else would not contaminate the source of
political life. In the retirement of the cabinet, it is not
expected that the executive can be approached by indignity or
insult; nor can it ever be necessary to the executive, or any other
department, to hold a public deliberative assembly. These are not
arguments; they are visions which mar the enjoyment of actual
blessings, with the attack or feint of the harpies of
imagination.
As to the minor points made in this case, it is only necessary
to observe that there is nothing on the face of this record from
which it can appear on what evidence this warrant was issued. And
we are not to presume that the House of Representatives would have
issued it without duly establishing the fact charged on the
individual. And, as to the distance to which the process might
reach, it is very clear that there exists no reason for confining
its operation to the limits of the District of Columbia; after
passing those limits, we know no bounds that can be prescribed to
its range but those of the United States. And why should it be
restricted to other boundaries? Such are the limits of the
legislating powers of that body, and the inhabitant of Louisiana or
Maine may as probably charge them with bribery and corruption, or
attempt, by letter, to induce the commission of either, as the
inhabitant of any other section of the Union. If the inconvenience
be urged, the reply is obvious: there is no difficulty in
observing
Page 19 U. S. 235
that respectful deportment which will render all apprehension
chimerical.
Judgment affirmed.
