Barenblatt v.
United States (a) Where First Amendment rights are asserted to bar governmental interrogation, resolution of the issue always
No. 35
Argued November 18, 1958
Decided June 8, 1959
360 U.S. 109
Syllabus
Summoned to testify before a Subcommittee of the House of Representatives Committee on Un-American Activities,
which was investigating alleged Communist infiltration into the field of education, petitioner, formerly a graduate
student and teaching fellow at the University of Michigan, refused to answer questions as to whether he was then or
had ever been a member of the Communist Party. He disclaimed reliance upon the privilege against self-incrimination,
but objected generally to the right of the Subcommittee to inquire into his "political" and "religious" beliefs or any "other
personal or private affairs" or "associational activities" upon grounds set forth in a previously prepared memorandum,
which was based on the First, Ninth, and Tenth Amendments, the prohibition against bills of attainder and the doctrine
of separation of powers. For such refusal, he was convicted of a violation of 2 U.S.C. 192, which makes it a
misdemeanor for any person summoned as a witness by either House of Congress or a committee thereof to refuse to
answer any question pertinent to the question under inquiry. He was fined and sentenced to imprisonment for six
months.
Held: Petitioner's conviction is sustained. Pp. 360 U. S. 111-134.
1. In the light of the Committee's history and the repeated extensions of its life, as well as the successive
appropriations by the House of Representatives for the conduct of its activities, its legislative authority and that of the
Subcommittee to conduct the inquiry under consideration here is unassailable, and House Rule XI, 83d Congress,
which defines the Committee's authority, cannot be said to be constitutionally infirm on the score of
vagueness. Watkins v. United States, 354 U. S. 178, distinguished. Pp. 360 U. S. 116-123.
(a) Rule XI has a "persuasive gloss of legislative history" which shows beyond doubt that, in pursuance of its
legislative concerns in the domain of "national security," the House of Representatives has clothed the Committee with
pervasive authority to investigate Communist activities in this country. Pp. 360 U. S. 117-121.
Page 360 U. S. 110
(b) In the light of the legislative history, Rule XI cannot be construed so as to exclude the field of education from the
Committee's compulsory authority. Pp. 360 U. S. 121-123.
2. The record in this case refutes petitioner's contention that he was not adequately apprised of the pertinency of the
Subcommittee's questions to the subject matter of the inquiry. Watkins v. United States, supra, distinguished. Pp. 360
U. S. 123-125.
3. On the record in this case, the balance between the individual and the governmental interests here at stake must be
struck in favor of the latter, and therefore the provisions of the First Amendment were not transgressed by the
Subcommittee's inquiry into petitioner's past or present membership in the Communist Party. Pp. 360 U. S. 125-134.
involves a balancing by the courts of the competing private and public interests at stake in the particular circumstances
shown. Pp. 360 U. S. 126-127.
(b) The investigation here involved was related to a valid legislative purpose, since Congress has wide power to
legislate in the field of Communist activity in this Country and to conduct appropriate investigations in aid thereof.
Pp. 360 U. S. 127-129.
(c) Investigatory power in this domain is not to be denied Congress solely because the field of education is involved,
and the record in this case does not indicate any attempt by the Committee to inquire into the content of academic
lectures or discussions, but only to investigate the extent to which the Communist Party had succeeded in infiltrating
into our educational institutions persons and groups committed to furthering the Party's alleged objective of violent
overthrow of the Government. Sweezy v. New Hampshire, 354 U. S. 234, distinguished. Pp. 360 U. S. 129-132.
(d) On the record in this case, it cannot be said that the true objective of the Committee and of the Congress was
purely "exposure," rather than furtherance of a valid legislative purpose. Pp. 360 U. S. 132-133.
(e) The record is barren of other factors which, in themselves, might lead to the conclusion that the individual interests
at stake were not subordinate to those of the Government. P. 360 U. S. 134.
102 U.S.App.D.C. 217, 252 F.2d 129, affirmed.
Kilbourn v. Thompson, 103 U.S. 168 (1880)
Kilbourn v. Thompson
103 U.S. 168
ERROR TO THE SUPREME COURT OF THE DISTRICT OF COLUMBIA
Syllabus
1. for refusing to answer certain questions put to him as a witness by the House of Representatives of the Congress of
the United States concerning the business of a real estate partnership of which he was a member, and to produce
certain books and papers in relation thereto, was, by an order of the House, imprisoned for forty-five days in the
common jail of the District of Columbia. He brought suit to recover damages therefor against the sergeant-at-arms,
who executed the order, and the members of the committee, who caused him to be brought before the House, where
he was adjudged to be in contempt of its authority. Held, that, although the House can punish its own members for
disorderly conduct, or for failure to attend its sessions, and can decide cases of contested elections and determine the
qualifications of its members, and exercise the sole power of impeachment of officers of the government, and may,
where the examination of witnesses is necessary to the performance of these duties, fine or imprison a contumacious
witness -- there is not found in the Constitution of the United States any general power vested in either House to
punish for contempt.
2. An examination of the history of the English Parliament and the decisions of the English courts shows that the power
of the House of Commons, under the laws and customs of Parliament to punish for contempt, rests upon principles
peculiar to it, and not upon any general rule applicable to all legislative bodies.
3. The Parliament of England, before its separation into two bodies, since known as the House of Lords and the House
of Commons, was a high court of judicature -- the highest in the realm -- possessed of the general power incident to
such a court of punishing for contempt. On its separation, the power remained with each body, because each was
considered to be a court of judicature and exercised the functions of such court.
Page 103 U. S. 169
4. Neither House of Congress was constituted a part of any court of general jurisdiction, nor has it any history to which
the exercise of such power can be traced. Its power must be sought alone in some express grant in the Constitution,
or be found necessary to carry into effect such powers as are there granted.
5. The court, without affirming that such a power can arise in any case other than those already specified, decides that
it can exist in no case where the House, attempting to exercise it, invokes its aid in a matter to which its authority does
not extend, such as an inquiry into the private affairs of the citizen.
6. The Constitution divides the power of the government which it establishes into the three departments -- the
executive, the legislative, and the judicial -- and unlimited power is conferred on no department or officer of the
government. It is essential to the successful working of the system that the lines which separate those departments
shall be clearly defined and closely followed, and that neither of them shall be permitted to encroach upon the powers
exclusively confided to the others.
7. That instrument has marked out, in its three primary articles, the allotment of power to those departments, and no
judicial power except that above mentioned is conferred on Congress or on either branch of it. On the contrary, it
declares that the judicial power of the United States shall be vested in one Supreme Court and such inferior courts as
the Congress may from time to time ordain and establish.
8. The resolution of the House under which K. was summoned and examined as a witness directed its committee to
examine into the history and character of what was called "the real estate pool" of the District of Columbia, and the
preamble recited, as the grounds of the investigation, that Jay Cooke & Co., who were debtors of the United States,
and whose affairs were then in litigation before a bankruptcy court, had an interest in the pool or were creditors of it.
The subject matter of the investigation was judicial, and not legislative. It was then pending before the proper court,
and there existed no power in Congress, or in either House thereof, on the allegation that an insolvent debtor of the
United States was interested in a private business partnership, to investigate the affairs of that partnership, and
consequently no authority to compel a witness to testify on the subject.
9. It follows that the order of the House declaring K. guilty of a contempt of its authority and ordering his imprisonment
by the sergeant-at-arms is void, and affords the latter no protection in an action by K. against him for false
imprisonment.
10. Anderson v. Dunn (6 Wheat. 204) commented on, and some of the reasoning of the opinion overruled and
rejected.
11. The provision of the Constitution that, for any speech or debate in either House, the members shall not be
questioned in any other place exempts them from liability elsewhere for any vote, or report to or action in their
respective Houses, as well as for oral debate. Therefore the plea of the members of the committee that they took no
part in the actual arrest and imprisonment of K., and did nothing in relation thereto beyond the protection of their
constitutional privilege, is, so far as they are concerned, a good defence to the action.
Page 103 U. S. 170
This is an action for false imprisonment brought by Hallett 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, in the District of Columbia, 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 and 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,
Page 103 U. S. 171
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
Page 103 U. S. 172
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 record, 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 willfully
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 willfully 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
Page 103 U. S. 173
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 forthwith 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 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 meantime 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 meantime 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
Page 103 U. S. 174
and laws of the United States, and in the meantime 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. Kilbourn, 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 willfully 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 willfully 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 beard by the House pursuant to the order heretofore made requiring him
to show cause why he should not answer questions propounded to him by a committee
Page 103 U. S. 175
and respond to the subpoena duces tecum by obeying the same, and having failed to how 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 aid
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
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 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-arm hall 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 proceeding of the said resolution 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:
Page 103 U. S. 176
"Forty-fourth Congress, First Session, Congress"
"of the United States"
IN THE HOUSE OF REPRESENTATIVES
March 4, 1876
"TO JOHN J 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 no 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 question, and if he answer that he is ready to appear before said
committee and obey said subpoena duces tecum and answer said question, then said witness shall have the privilege
to to appear and obey and answer forthwith, or so soon as the committee can be convened, and that, in the meantime,
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 aid 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 Representative 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,
Page 103 U. S. 177
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 courthouse 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 courthouse, 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
Page 103 U. S. 178
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
therein 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 embers, in said participation in the action of the House as above 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.
Page 103 U. S. 181
MR. JUSTICE MILLER, after stating the case, delivered the opinion of the court.
The argument before us has assumed a very wide range, and includes the discussion of almost every suggestion that
can well be conceived on the subject. The two extremes of the controversy are the proposition on the part of the
plaintiff that the House of Representatives has no power whatever to punish for a contempt of its authority, and, on the
part of defendants, that such power undoubtedly exists, and when that body has formally exercised it, it must be
presumed that it was right fully exercised.
This latter proposition assumes the form of expression sometimes used with reference to courts of justice of general
jurisdiction that, having the power to punish for contempts, the judgment of the House that a person is guilty of such
contempt is conclusive everywhere.
Conceding for the sake of the argument that there are cases in which one of the two bodies that constitute the
Congress of the United States may punish for contempt of its authority or disregard of its orders, it will scarcely be
contended by the
Page 103 U. S. 182
most ardent advocate of their power in that respect that it is unlimited.
The powers of Congress itself, when acting through the concurrence of both branches, are dependent solely on the
Constitution. Such as are not conferred by that instrument, either expressly or by fair implication from what is granted,
are "reserved to the States respectively, or to the people." Of course, neither branch of Congress, when acting
separately, can lawfully exercise more power than is conferred by the Constitution on the whole body, except in the
few instances where authority is conferred on either House separately, as in the case of impeachments. No general
power of inflicting punishment by the Congress of the United States is found in that instrument. It contains in the
provision that no "person all be deprived of life, liberty, or property, without due process of law" the strongest
implication against punishment by order of the legislative body. It has been repeatedly decided by this court, and by
others of the highest authority, that this means a trial in which the rights of the party shall be decided by a tribunal
appointed by law, which tribunal is to be governed by rules of law previously established. An act of Congress which
proposed to adjudge a man guilty of a crime and inflict the punishment would be conceded by all thinking men to be
unauthorized by anything in the Constitution. That instrument, however, is not wholly silent as to the authority of the
separate branches of Congress to inflict punishment. It authorizes each House to punish its own members. By the
second clause of the fifth section of the first article,
"Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the
concurrence of two-thirds, expel a member,"
and, by the clause immediately preceding, it "may be authorized to compel the attendance of absent members in such
manner and under such penalties as each House may provide."
These provisions are equally instructive in what they authorize and in what they do not authorize. There is no express
power in that instrument conferred on either House of Congress to punish for contempts.
The advocates of this power have, therefore, resorted to an
Page 103 U. S. 183
implication of its existence founded on two principal arguments. These are, 1, its exercise by the House of Commons
of England, from which country we, it is said, have derived our system of parliamentary law; and 2d, the necessity of
such a power to enable the two Houses of Congress to perform the duties and exercise the power which the
Constitution has conferred on them.
That the power to punish for contempt has been exercised by the House of Commons in numerous instances is well
known to the general student of history, and is authenticated by the rolls of the Parliament. And there is no question
but that this has been upheld by the courts of Westminster Hall. Among the most notable of these latter cases are the
judgments of the Court of King's Bench in Brass Crosby's Case, 3 Wil. 188, decided in the year 1771; Burdett v.
Abbott (14 East, 1), in 1811, in which the opinion was delivered by Lord Ellenborough, and Case of the Sheriff of
Middlesex (11 Ad. & E. 273), in 1840. Opinion by Lord Denman, Chief Justice.
It is important, however, to understand on what principle this power in the House of Commons rests, that we may see
whether it is applicable to the two Houses of Congress, and, if it be, whether there are limitations to its exercise.
While there is, in the adjudged cases in the English courts, little agreement of opinion as to the extent of this power
and the liability of it exercise to be inquired into by the courts, there is no difference of opinion as to its origin. This
goes back to the period when the bishops, the lords, and the knights and burgesses met in one body, and were, when
so assembled, called the High Court of Parliament.
They were not only called so, but the assembled Parliament exercised the highest function of a court of judicature,
representing in that respect the judicial authority of the king in his Court of Parliament. While this body enacted laws, it
also rendered judgments in matters of private right which, when approved by the king, were recognized a valid. Upon
the separation of the Lords and Commons into two separate bodies, holding their sessions in different chambers, and
hence called the House of Lords and the House of Commons, the judicial
Page 103 U. S. 184
function of reviewing by appeal the decisions of the courts of Westminster Hall passed to the House of Lords, where it
has been exercised without dispute ever since. To the Commons was left the power of impeachment, and perhaps
others of a judicial character, and jointly they exercised, until a very recent period, the power of passing bills of
attainder for treason and other high crimes which are in their nature punishment for crime declared judicially by the
High Court of Parliament of the Kingdom of England.
It is upon this idea that the two Houses of Parliament were each courts of judicature originally which, though divested
by usage and by statute, probably, of many of their judicial functions, have yet retained so much of that power as
enables them, like any other court, to punish for a contempt of these privileges and authority that the power rests.
In the case of Burdett v. Abbott, already referred to as sustaining this power in the Commons, Mr. Justice Bailey said,
in support of the judgment of the Court of King's Bench:
"In an early authority upon that subject, in Lord Coke, 4 Inst. 23, it is expressly laid down that the House of Commons
has not only a legislative character and authority, but is also a court of judicature, and there are instances put there in
which the power of committing to prison for contempts has been exercised by the House of Commons, and this, too, in
cases of libel. If then, the House be a court of judicature, it must, as is in a degree admitted by the plaintiff's counsel,
have the power of supporting its own dignity as essential to itself, and without power of commitment for contempts, it
could not support its dignity."
In the opinion of Lord Ellenborough in the same case, after stating that the separation of the two Houses of Parliament
seems to have taken place as early as the 49 Henry III, about the time of the battle of Evesham, he says the
separation was probably effected by a formal act for that purpose by the king and Parliament. He then adds:
"The privileges which have since been enjoyed, and the functions which have been since uniformly exercised by each
branch of the legislature, with the knowledge and acquiescence of the other House and of the king, must be presumed
to be the privileges and functions which then, that is, at the very period of
Page 103 U. S. 185
their original separation, were statutably assigned to each."
He then asks,
"Can the High Court of Parliament, or either of the two Houses of which it consists, be deemed not to possess
intrinsically that authority of punishing summarily for contempts which is acknowledged to belong, and is daily
exercised as belonging, to every superior court of law, of less dignity undoubtedly than itself?"
This power is here distinctly placed on the ground of the judicial character of Parliament, which is compared in that
respect with the other courts of superior jurisdiction, and is said to be of a dignity higher than they.
In the earlier case of Crosby, Lord Mayor of London, De Gray, Chief Justice, speaking of the House of Commons,
which had committed the lord mayor to the Tower of London for having arrested by judicial process one of its
messengers, says:
"Such an assembly must certainly have such authority, and it is legal because necessary. Lord Coke says they have a
judicial power; each member has a judicial seat in the House; he speaks of matters of judicature of the House of
Commons."
Mr. Justice Blackstone, in concurring in the judgment, said:
"he House of Commons is a Supreme Court, and they are judges of their own privileges and contempts, more
especially with respect to their own members."
Mr. Justice Gould also laid stress upon the fact that the "House of commons may be properly called judges," and cites
4 Coke's Inst. 47, to show that "an alien cannot be elected to Parliament, because such a person can hold no place of
judicature."
In the celebrated case of Stockdale v. Hansard (9 Ad. & E. 1), decided in 1839, this doctrine of the omnipotence of the
House of Commons in the assertion of its privileges received its first serious check in a court of law. The House of
Commons had ordered the printing and publishing of a report of one of its committees, which was done by Hansard,
the official printer of the body. This report contained matter on which Stockdale sued Hansard for libel. Hansard
pleaded the privilege of the House, under whose orders he acted, and the question on demurrer was, assuming the
matter published to be libelous in its character, did the order of the House protect the publication?
Page 103 U. S. 186
Sir John Campbell, Attorney-General, in an exhaustive argument in defence of the prerogative of the House, bases it
upon two principal propositions, namely, that the House of Commons is a court of judicature, possessing the same
right to punish for contempt that other courts have, and that its powers and privileges rest upon the lex parliamenti --
the laws and customs of Parliament. These, he says, and cites authorities to show it, are unknown to the judges and
lawyers of the common law court, and rest exclusively in the knowledge and memory of the members of the two
Houses. He argues, therefore, that their judgments and orders on matters pertaining to these privileges are conclusive,
and cannot be disputed or reviewed by the ordinary courts of judicature.
Lord Denman, in a masterly opinion, concurred in by the other judges of the King's Bench, ridicules the idea of the
existence of a body of laws and customs of Parliament unknown and unknowable to anybody else but the members of
the two Houses, and holds with an incontrovertible logic that, when the rights of the citizen are at stake in a court of
justice, it must, if these privileges are set up to his prejudice, examine for itself into the nature and character of those
laws and decide upon their extent and effect upon the rights of the parties before the court. While admitting, as he
does in Case of the Sheriff of Middlesex (11 Ad. & E. 273) that, when a person is committed by the House of
Commons for a contempt in regard to a matter of which that House had jurisdiction, no other court can relieve the
party from the punishment which it may lawfully inflict, he holds that the question of the jurisdiction of the House is
always open to the inquiry of the courts in a case where that question is properly presented.
But perhaps the most satisfactory discussion of this subject, as applicable to the proposition that the two Houses of
Congress are invested with the same power of punishing for contempt, and with the same peculiar privileges, and the
same power of enforcing them, which belonged by ancient usage to the Houses of the English Parliament, is to be
found in some recent decision of the Privy Council. That body is, by its constitution, vested with authority to hear and
decide appeals from the court of the provinces and colonies of the kingdom.
Page 103 U. S. 187
The leading case is that of Kielley v. Carson and Others (4 Moo.P.C. 63), decided in 1841. There were present at the
hearing Lord Chancellor Lyndhurst, Lord Brougham, Lord Denman, Lord Abinger, Lord Cottenam, Lord Campbell,
Vice-Chancellor Shadwell, the Chief Justice of the Common Pleas, Mr. Justice Erskine, Dr. Lushington, and Mr. Baron
Parke, who delivered the opinion, which seems to have received the concurrence of all the eminent judges named.
Measuring the weight of its authority by the reputation of the judges who sat in the case and agreed to the opinion, it
would be difficult to find one more entitled on that score to be received as conclusive on the points which it decided.
The case was an appeal from the Supreme Court of Judicature of Newfoundland. John Kent, one of the members of
the House of Assembly of that island, reported to that body that Kielley, the appellant, had been guilty of a contempt of
the privileges of the House in using towards him reproaches, in gross and threatening language, for observations
made by Kent in the House; adding, "Your privilege shall not protect you." Kielley was brought before the louse, and
added to his offence by boisterous and violent language, and was finally committed to jail under an order of the House
and the warrant of the speaker. The appellant sued Carson, the speaker, Kent, and other members, and Walsh, the
messenger, who pleaded the facts above stated, and relied on the authority of the House as sufficient protection. The
judgment of the court of Newfoundland was for the defendants, holding the plea good.
This judgment was supported in argument before the Privy Council on the ground that the Legislative Assembly of
Newfoundland had the same parliamentary rights and privileges which belonged by usage to the Parliament of
England, and that, if this were not so, it was a necessary incident to every body exercising legislative functions to
punish for contempt of its authority. The case was twice argued in the Privy Council, on which its previous judgment in
the case of Beaumont v. Barrett (1 Moo.P.C. 59) was much urged, in which both those propositions had been asserted
in the opinion of Mr. Baron Parke. Referring to that case as an authority for the proposition that the power to punish for
a contempt was incident
Page 103 U. S. 188
to every legislative body, the opinion of Mr. Baron Parke in the later case uses this language:
"There is no decision of a court of justice, nor other authority, in favor of the right, except that of the case of Beaumont
v. Barrett, decided by the Judicial Committee, the members present being Lord Brougham, Mr. Justice Bosanquet, Mr.
Justice Erskine, and myself. Their Lordships do not consider that case as one by which they ought to be bound on
deciding the present question. The opinion of their Lordships, delivered by myself immediately after the argument was
closed, though it clearly expressed that the power was incidental to every legislative assembly, was not the only
ground on which that judgment was rested, and therefore was, in some degree, extra-judicial; but besides, it was
stated to be and was founded entirely on the dictum of Lord Ellenborough in Burdett v. Abbott, which dictum, we all
think, cannot be taken as authority for the abstract proposition that every legislative body has the power of committing
for contempt. The observation was made by his Lordship with reference to the peculiar powers of Parliament, and
ought not, we all think, to be extended any further. We all, therefore, think that the opinion expressed by myself in the
case of Beaumont v. Barrett ought not to affect our decision in the present case, and, there being no other authority on
the subject, we decide, according to the principle of the common law, that the House of Assembly have not the power
contended for. They are a local legislature, with every power reasonably necessary for the exercise of their functions
and duties, but they have not what they erroneously supposed themselves to possess -- the same exclusive privileges
which the ancient law of England has annexed to the House of Parliament."
In another part of the opinion, the subject is thus disposed of:
"It is said, however, that this power belongs to the House of Commons in England, and this, it is contended, affords an
authority for holding that it belongs, as a legal incident by the common law, to an assembly with analogous functions.
But the reason why the House of Commons has this power is not because it is a representative body with legislative
function, but by virtue of ancient usage and prescription; the lex et consuetudo parliamenti, which forms a part of the
common law of the land, and according to which
Page 103 U. S. 189
the High Court of Parliament before its division, and the Houses of Lords and Commons since, are invested with many
privileges, that of punishment for contempt being one."
The opinion also discusses at length the necessity of,this power in a legislative body for its protection, and to enable it
to discharge its lawmaking functions, and decides against the proposition. But the case before us does not require us
to go so far, as we have cited it to show that the powers and privileges of the House of Commons of England, on the
subject of punishment for contempts, rest on principles which have no application to other legislative bodies, and
certainly can have none to the House of Representatives of the United States -- a body which is in no sense a court,
which exercises no functions derived from its once having been a part of the highest court of the realm, and whose
functions, so far as they partake in any degree of that character, are limited to punishing its own members and
determining their election. The case, however, which we have just been considering was followed in the same body
by Fenton v. Hampton (11 Moo P.C. 347) and Doyle v. Falconer (Law Rep. 1 P.C. 328), in both of which, on appeals
from other provinces of the kingdom, the doctrine of the case of Kielley v. Carson and Others is fully reaffirmed.
We are of opinion that the right of the House of Representatives to punish the citizen for a contempt of its authority or
a breach of its privileges can derive no support from the precedents and practices of the two Houses of the English
Parliament, nor from the adjudged cases in which the English courts have upheld these practices. Nor, taking what has
fallen from the English judges, and especially the later cases on which we have just commented, is much aid given to
the doctrine that this power exists as one necessary to enable either House of Congress to exercise successfully their
function of legislation.
This latter proposition is one which we do not propose to decide in the present case, because we are able to decide it
without passing upon the existence or nonexistence of such power in aid of the legislative function.
As we have already said, the Constitution expressly empowers each House to punish its own members for disorderly
behavior. We see no reason to doubt that this punishment
Page 103 U. S. 190
may, in a proper case, be imprisonment, and that it may be for refusal to obey some rule on that subject made by the
House for the preservation of order.
So also, the penalty which each House is authorized to inflict in order to compel the attendance of absent members
may be imprisonment, and this may be for a violation of some order or standing rule on that subject.
Each House is, by the Constitution, made the judge of the election and qualification of its members. In deciding on
these, it has an undoubted right to examine witnesses and inspect papers, subject to the usual rights of witnesses in
such cases, and it may be that a witness would be subject to like punishment at the hands of the body engaged in
trying a contested election, for refusing to testify, that he would if the case were pending before a court of judicature.
The House of Representatives has the sole right to impeach officers of the government, and the Senate to try them.
Where the question of such impeachment is before either body acting in its appropriate sphere on that subject, we see
no reason to doubt the right to compel the attendance of witnesses, and their answer to proper questions, in the same
manner and by the use of the same means that courts of justice can in like cases.
Whether the power of punishment in either House by fine or imprisonment goes beyond this or not, we are sure that no
person can be punished for contumacy as a witness before either House unless his testimony is required in a matter
into which that House has jurisdiction to inquire, and we feel equally sure that neither of these bodies possesses the
general power of making inquiry into the private affairs of the citizen.
It is believed to be one of the chief merits of the American system of written constitutional law that all the powers
intrusted to government, whether State or national, are divided into the three grand departments, the executive, the
legislative, and the judicial. That the functions appropriate to each of these branches of government shall be vested in
a separate body of public servants, and that the perfection of the system requires that the lines which separate and
divide these departments
Page 103 U. S. 191
shall be broadly and clearly defined. It is also essential to the successful working of this system that the persons
intrusted with power in any one of these branches shall not be permitted to encroach upon the powers confided to the
others, but that each shall, by the law of its creation, be limited to the exercise of the powers appropriate to its own
department, and no other. To these general propositions there are in the Constitution of the United States some
important exceptions. One of these is that the President is so far made a part of the legislative power that his assent is
required to the enactment of all statutes and resolutions of Congress.
This, however, is so only to a limited extent, for a bill may become a law notwithstanding the refusal of the President to
approve it, by a vote of thirds of each House of Congress.
So, also, the Senate is made a partaker in the functions of appointing officers and making treaties, which are
supposed to be properly executive, by requiring its consent to the appointment of such officers and the ratification of
treaties. The Senate also exercises the judicial power of trying impeachments, and the House of preferring articles of
impeachment.
In the main, however, that instrument, the model on which are constructed the fundamental laws of the States, has
blocked out with singular precision, and in bold lines, in its three primary articles, the allotment of power to the
executive, the legislative, and the judicial departments of the government. It also remains true, as a general rule, that
the powers confided by the Constitution to one of these departments cannot be exercised by another.
It may be said that these are truisms which need no repetition here to give them force. But while the experience of
almost a century has in general shown a wise and commendable forbearance in each of these branches from
encroachments upon the others, it is not to be denied that such attempt have been made, and it is believed not always
without success. The increase in the number of States, in their population and wealth, and in the amount of power, if
not in its nature to be exercised by the Federal government, presents powerful and growing temptations to those to
whom that exercise is intrusted
Page 103 U. S. 192
to overstep the just boundaries of their own department and enter upon the domain of one of the others, or to assume
powers not intrusted to either of them.
The House of Representatives having the exclusive right to originate all bills for raising revenue, whether by taxation or
otherwise; having with the Senate the right to declare war, and fix the compensation of all officers and servants of the
government, and vote the supplies which must pay that compensation, and being also the most numerous body of all
those engaged in the exercise of the primary powers of the government -- is for these reasons least of all liable to
encroachments upon its appropriate domain.
By reason, also, of its popular origin and the frequency with which the short term of office of its members requires the
renewal of their authority at the hands of the people -- the great source of all power in this country -- encroachments by
that body on the domain of coordinate branches of the government would be received with less distrust than a similar
exercise of unwarranted power by any other department of the government. It is all the more necessary, therefore, that
the exercise of power by this body, when acting separately from and independently of all other depositaries of power,
should be watched with vigilance, and when called in question before any other tribunal having the right to pass upon
it, that it should receive the most careful scrutiny.
In looking to the preamble and resolution under which the committee acted, before which Kilbourn refused to testify,
we are of opinion that the House of Representatives not only exceeded the limit of its own authority, but assumed a
power which could only be properly exercised by another branch of the government, because it was, in its nature,
clearly judicial.
The Constitution declares that the judicial power of the United States shall be vested in one Supreme Court and in
such inferior courts as the Congress may from time to time ordain and establish. If what we have said of the division of
the powers of the government among the three departments be sound, this is equivalent to a declaration that no
judicial power is vested in the Congress or either branch of it, save in the cases
Page 103 U. S. 193
specifically enumerated to which we have referred. If the investigation which the committee was directed to make was
judicial in its character, and could only be properly and successfully made by a court of justice, and if it related to a
matter wherein relief or redress could be had only by a judicial proceeding, we do not, after what has been said, deem
it necessary to discuss the proposition that the power attempted to be exercised was one confided by the Constitution
to the judicial, and not to the legislative, department of the government. We think it equally clear that the power
asserted is judicial, and not legislative.
The preamble to the resolution recites that the government of the United States is a creditor of Jay Cooke & Co., then
in bankruptcy in the District Court of the United States for the Eastern District of Pennsylvania.
If the United States is a creditor of any citizen, or of anyone else on whom process can be served, the usual, the only
legal mode of enforcing payment of the debt is by a resort to a court of justice. For this purpose, among others,
Congress has created courts of the United States, and officers have been appointed to prosecute the pleas of the
government in these courts.
The District Court for the Eastern District of Pennsylvania is one of them, and, according to the recital of the preamble,
had taken jurisdiction of the subject matter of Jay Cooke & Co.'s indebtedness to the United States, and had the whole
subject before it for action at the time the proceeding in Congress was initiated. That this indebtedness resulted, as the
preamble states, from the improvidence of a secretary of the navy does not change the nature of the suit in the court,
nor vary the remedies by which the debt is to be recovered. If, indeed, any purpose had been avowed to impeach the
secretary, the whole aspect of the case would have been changed. But no such purpose is disclosed. None can be
inferred from the preamble, and the characterization of the conduct of the Secretary by the term "improvident," and the
absence of any words implying suspicion of criminality, repel the idea of such purpose, for the secretary could only be
impeached for "high crimes and misdemeanors."
Page 103 U. S. 194
The preamble then refers to "the real estate pool," in which it is said Jay Cooke & Co. had a large interest, as
something well known and understood, and which had been the subject of a partial investigation by the previous
Congress, and alleges that the trustee in bankruptcy of Jay Cooke & Co. had made a settlement of the interest of Jay
Cooke & Co. with the associates of the firm of Jay Cooke & Co., to the disadvantage and loss of their numerous
creditors, including the government of the United States, by reason of which the courts are powerless to afford
adequate redress to said creditors.
Several very pertinent inquiries suggest themselves as arising out of this short preamble.
How could the House of Representatives know, until it had been.fairly tried, that the courts were powerless to redress
the creditors of Jay Cooke & Co.? The matter was still pending in a court, and what right had the Congress of the
United States to interfere with a suit pending in a court of competent jurisdiction? Again, what inadequacy of power
existed in the court, or, as the preamble assumes, in all courts, to give redress which could lawfully be supplied by an
investigation by a committee of one House of Congress, or by any act or resolution of Congress on the subject? The
case being one of a judicial nature, for which the power of the courts usually afford the only remedy, it may well be
supposed that those powers were more appropriate and more efficient in said of such relief than the powers which
belong to a body whose function is exclusively legislative. If the settlement to which the preamble refers as the
principal reason why the courts are rendered powerless was obtained by fraud, or was without authority, or for any
conceivable reason could be set aside or avoided, it should be done by some appropriate proceeding in the court
which had the whole matter before it, and which had all the power in that case proper to be intrusted to any body, and
not by Congress or by any power to be conferred on a committee of one of the two Houses.
The resolution adopted as a sequence of this preamble contains no hint of any intention of final action by Congress on
the subject. In all the argument of the case, no suggestion has been made of what the House of Representatives or
the Congress
Page 103 U. S. 195
could have done in the way of remedying the wrong or securing the creditors of Jay Cooke & Co., or even the United
States. Was it to be simply a fruitless investigation into the personal affairs of individuals? If so, the House of
Representatives had no power or authority in the matter more than any other equal number of gentlemen interested for
the government of their country. By "fruitless," we mean that it could result in no valid legislation on the subject to
which the inquiry referred.
What was this committee charged to do?
To inquire into the nature and history of the real estate pool. How indefinite! What was the real estate pool? Is it
charged with any crime or offence? If so, the courts alone can punish the members of it. Is it charged with a fraud
against the government? Here, again, the courts, and they alone, can afford a remedy. Was it a corporation whose
powers Congress could repeal? There is no suggestion of the kind. The word "pool" in the sense here used, is of
modern date, and may not be well understood, but, in this case, it can mean no more than that certain individuals are
engaged in dealing in real estate as a commodity of traffic, and the gravamen of the whole proceeding is that a debtor
of the United States may be found to have an interest in the pool. Can the rights of the pool, or of its members, and the
rights of the debtor, and of the creditor of the debtor, be determined by the report of a committee or by an act of
Congress? If they cannot, what authority has the House to enter upon this investigation into the private affairs of
individuals who hold no office under the government.
The Court of Exchequer of England was originally organized solely to entertain suits of the king against the debtors of
the crown. But after a while, when the other courts of Westminster Hall became overcrowded with business and it
became desirable to open the Court of Exchequer to the general administration of justice, a party was allowed to bring
any common law action in that court, on an allegation that the plaintiff was debtor to the king, and the recovery in the
action would enable him to respond to the king's debt. After a while, the court refused to allow this allegation to be
controverted, and so, by this fiction, the court came from a very limited to be one
Page 103 U. S. 196
of general jurisdiction. Such an enlargement of jurisdiction would not now be tolerated in England, and it is hoped not
in this country of written constitutions and laws, but it looks very like it when, upon the allegation that the United States
is a creditor of a man who has an interest in some other man's business, the affairs of the latter can be subjected to
the unlimited scrutiny or investigation of a congressional committee.
We are of opinion, for these reasons, that the resolution of the House of Representatives authorizing the investigation
was in excess of the power conferred on that body by the Constitution; that the committee, therefore, had no lawful
authority to require Kilbourn to testify a a witness beyond what he voluntarily chose to tell; that the orders and
resolutions of the House, and the warrant of the speaker, under which Kilbourn was imprisoned are, in like manner,
void for want of jurisdiction in that body, and that his imprisonment was without any lawful authority.
At this point of the inquiry we are met by Anderson v. Dunn, 6 Wheat. 204, which in many respects is analogous to the
case now under consideration. Anderson sued Dunn for false imprisonment, and Dunn justified under a warrant of the
House of Representatives directed to him as sergeant-at-arms of that body. The warrant recited that Anderson had
been found by the House "guilty of a breach of the privileges of the House, and of a high contempt of the dignity and
authority of the same." The warrant directed the sergeant-at-arms to bring him before the House, when, by its order, he
was reprimanded by the speaker. Neither the warrant nor the plea described or gave any clew to the nature of the act
which was held by the House to be a contempt. Nor can it be clearly ascertained from the report of the case what it
was, though a slight inference may be derived from something in one of the arguments of counsel that it was an
attempt to bribe a member.
But, however that may be, the defence of the sergeant-at-arms rested on the broad ground that the House, having
found the plaintiff guilty of a contempt, and the speaker, under the order of the House, having issued a warrant for his
arrest, that
Page 103 U. S. 197
alone was sufficient authority for the defendant to take him into custody, and this court held the plea good.
It may be said that, since the order of the House, and the warrant of the speaker, and the plea of the sergeant-at-arms
do not disclose the ground on which the plaintiff was held guilty of a contempt, but state the finding of the House in
general terms as a judgment of guilty, and as the court placed its decision on the ground that such a judgment was
conclusive in the action against the officer who executed the warrant, it is no precedent for a case where the plea
establishes, as we have shown it does in this case by its recital of the facts, that the House has exceeded its authority.
This is, in fact, a substantial difference. But the court, in its reasoning, goes beyond this, and though the grounds of the
decision are not very clearly stated, we take them to be that there is in some cases a power in each House of
Congress to punish for contempt; that this power is analogous to that exercised by courts of justice, and that it being
the well established doctrine that, when it appears that a prisoner is held under the order of a court of general
jurisdiction for a contempt of its authority, no other court will discharge the prisoner or make further inquiry into the
cause of his commitment. That this is the general rule, though somewhat modified since that case was decided, as
regards the relations of one court to another, must be conceded.
But we do not concede that the Houses of Congress possess this general power of punishing for contempt. The cases
in which they can do this are very limited, as we have already attempted to show. If they are proceeding in a matter
beyond their legitimate cognizance, we are of opinion that this can be shown, and we cannot give our assent to the
principle that, by the mere act of asserting a person to be guilty of a contempt, they thereby establish their right to fine
and imprison him, beyond the power of any court or any other tribunal whatever to inquire into the grounds on which
the order was made. This necessarily grows out of the nature of an authority which can only exist in a limited class of
cases, or under special circumstances; otherwise, the limitation is unavailing and the power omnipotent. The tendency
of modern decisions everywhere
Page 103 U. S. 198
is to the doctrine that the jurisdiction of a court or other tribunal to render a judgment affecting individual rights is
always open to inquiry when the judgment is relied on in any other proceeding. See Williamson v. Berry, 8 How.
495; Thompson v. Whitman, 18 Wall. 457; Knowles v. The Gas-Light & Coke Co., 19 id. 58; Pennoyer v. Neff, 95 U. S.
714.
The case of Anderson v. Dunn was decided before the case of Stockdale v. Hansard and the more recent cases in the
Privy Council to which we have referred. It was decided as a case of the first impression in this court, and undoubtedly
under pressure of the strong rulings of the English Courts in favor of the privileges of the two Houses of Parliament.
Such is not the doctrine, however, of the English courts today. In the case of Stockdale v. Hansard (9 Ad. & E. 1), Mr.
Justice Coleridge says:
"The House is not a court of law at all in the sense in which that term can alone be properly applied here. Neither
originally nor by appeal can it decide a matter in litigation between two parties; it has no means of doing so; it claims
no such power; powers of inquiry and of accusation it has, but it decides nothing judicially except where it is itself a
party, in the case of contempts. . . . Considered merely as resolutions or acts, I have yet to learn that this court is to be
restrained by the dignity or the power of any body, however exalted, from fearlessly, though respectfully, examining
their reasonableness and justice where the rights of third persons in litigation before us depend upon their validity."
Again, he says:
"Let me suppose, by way of illustration, an extreme case; the House of Commons resolves that anyone wearing a
dress of a particular manufacture is guilty of a breach of privilege, and orders the arrest of such persons by the
constable of the parish. An arrest is made and action brought, to which the order of the House is pleaded as a
justification. . . . In such a case as the one supposed, the plaintiff's counsel would insist on the distinction between
power and privilege, and no lawyer can seriously doubt that it exists; but the argument confounds them, and forbids us
to enquire, in any particular case, whether it ranges under the one or the other. I can find no principle which sanctions
this."
The case of Kielley v. Carson and Others (4 Moo.P.C. 63), from which we have before quoted so largely, held that
Page 103 U. S. 199
the order of the assembly finding the plaintiff guilty of a contempt was no defence to the action for imprisonment. And it
is to be observed that the case of Anderson v. Dunn was cited there in argument.
But we have found no better expression of the true principle on this subject than in the following language of Mr.
Justice Hoar, in the Supreme Court of Massachusetts, in the case of Burnham v. Morrissey, 1 Gray 226. That was a
case in which the plaintiff was imprisoned under an order of the House of Representatives of the Massachusetts
legislature for refusing to answer certain questions as a witness and to produce certain books and papers. The
opinion, or statement, rather, was concurred in by all the court, including the venerable Mr. Chief Justice Shaw.
"The house of representatives is not the final judge of its own power and privilege in cases in which the rights and
liberties of the subject are concerned, but the legality of its action may be examined and determined by this court. That
house is not the legislature, but only a part of it, and is therefore subject in its action to the laws, in common with all
other bodies, officers, and tribunals within the Commonwealth. Especially is it competent and proper for this court to
consider whether its proceedings are in conformity with the Constitution and laws because, living under a written
constitution, no branch or department of the government is supreme, and it is the province and duty of the judicial
department to determine, in cases regularly brought before them, whether the powers of any branch of the
government, and even those of the legislature in the enactment of laws, have been exercised in conformity to the
Constitution, and, if they have not, to treat their acts as null and void. The house of representatives has the power
under the Constitution to imprison for contempt, but the power is limited to cases expressly provided for by the
Constitution or to cases where the power is necessarily implied from those constitutional functions and duties, to the
proper performance of which it is essential."
In this statement of the law, and in the principles there laid down, we fully concur.
We must, therefore, hold, notwithstanding what is said in
Page 103 U. S. 200
the case of Anderson v. Dunn, that the resolution of the House of Representatives finding Kilbourn guilty of contempt,
and the warrant of its speaker for his commitment to prison, are not conclusive in this case, and, in fact, are no
justification, because, as the whole plea shows, the House was without authority in the matter.
It remains to consider the matter special to the other defendants set out in their plea, which claims the protection due
to their character as members of the House of Representatives. In support of this defence, they allege that they did not
in any manner assist in the arrest of Kilbourn or his imprisonment, nor did they order or direct the same, except by
their votes and by their participation as members in the introduction of, and assent to, the official acts and proceedings
of the House, which they did and performed as members of the House, in the due discharge of their duties, and not
otherwise.
As these defendants did not make the actual assault on the plaintiff, nor personally assist in arresting or confining him,
they can only be held liable on the charge made against them as persons who had ordered or directed in the matter,
so as to become responsible for the acts which they directed.
The general doctrine that the person who procures the arrest of another by judicial process, by instituting and
conducting the proceedings, is liable to an action for false imprisonment where he acts without probable cause is not
to be controverted. Nor can it be denied that he who assumes the authority to order the imprisonment of another is
responsible for the acts of the person to whom such order is given when the arrest is without justification. The plea of
these defendants shows that it was they who initiated the proceedings under which the plaintiff was arrested. It was
they who reported to the House his refusal to answer the questions which they had put to him, and to produce the
books and papers which they had demanded of him. They expressed the opinion in that report that plaintiff was guilty
of a contempt of the authority of the House in so acting. It is a fair inference from this plea that they were the active
parties in setting on foot the proceeding by which he was adjudged guilty of a contempt, and in procuring the passage
of that resolution.
Page 103 U. S. 201
If they had done this in any ordinary tribunal, without probable cause, they would have been liable for the action which
they had thus promoted.
The House of Representatives is not an ordinary tribunal. The defendants set up the protection of the Constitution,
under which they do business as part of the Congress of the United States. That Constitution declares that the
senators and representatives
"shall in all cases, except treason, felony, and breach of the peace, be privileged from arrest during their attendance at
the session of their respective Houses, and in going to and returning from the same, and for any speech or debate in
either House they shall not be questioned in any other place."
Is what the defendants did in the matter in hand covered by this provision? Is a resolution offered by a member a
speech or debate within the meaning of the clause? Does its protection extend to the report which they made to the
House of Kilbourn's delinquency? To the expression of opinion that he was in contempt of the authority of the House?
To their vote in favor of the resolution under which he was imprisoned? If these questions be answered in the
affirmative, they cannot be brought in question for their action in a court of justice or in any other place. And yet if a
report, or a resolution, or a vote is not a speech or debate, of what value is the constitutional protection?
We may, perhaps, find some aid in ascertaining the meaning of this provision if we can find out its source, and,
fortunately, in this there is no difficulty. For while the framers of the Constitution did not adopt the lex et consuetudo of
the English Parliament as a whole, they did incorporate such parts of it, and with it such privileges of Parliament, as
they thought proper to be applied to the two Houses of Congress. Some of these we have already referred to as the
right to make rules of procedure, to determine the election and qualification of its members, to preserve order, &c. In
the sentence we have just cited, another part of the privileges of Parliament are made privileges of Congress. The
freedom from arrest and freedom of speech in the two Houses of Parliament were long subjects of contest between
the Tudor and Stuart kings and the House
Page 103 U. S. 202
of Commons. When, however, the revolution of 1688 expelled the last of the Stuarts and introduced a new dynasty,
many of these questions were settled by a bill of rights, formally declared by the Parliament and assented to by the
crown. 1 W. & M., st. 2, c. 2. One of these declarations is
"that the freedom of speech, and debates, and proceedings in Parliament, ought not to be impeached or questioned in
any court or place out of Parliament."
In Stockdale v. Hansard, Lord Denman, speaking on this subject, says:
"The privilege of having their debates unquestioned, though denied when the members began to speak their minds
freely in the time of Queen Elizabeth, and punished in its exercise both by that princess and her two successors, was
soon clearly perceived to be indispensable and universally acknowledged. By consequence, whatever is done within
the walls of either assembly must pass without question in any other place. For speeches made in Parliament by a
member to the prejudice of any other person, or hazardous to the public peace, that member enjoys complete
impunity. For every paper signed by the speaker by order of the House, though to the last degree calumnious, or even
if it brought personal suffering upon individuals, the speaker cannot be arraigned in a court of justice. But if the
calumnious or inflammatory speeches should be reported and published, the law will attach responsibility on the
publisher. So if the speaker, by authority of the House, order an illegal act, though that authority shall exempt him from
question, his order shall no more justify the person who executed it than King Charles' warrant for levying ship money
could justify his revenue officer."
Taking this to be a sound statement of the legal effect of the Bill of Rights and of the parliamentary law of England, it
may be reasonably inferred that the framers of the Constitution meant the same thing by the use of language borrowed
from that source.
Many of the colonies, which afterwards became States in our Union, had similar provisions in their charters or in bills
of rights, which were part of their fundamental laws, and the general idea in all of them, however expressed, must
have been the same, and must have been in the minds of the members of
Page 103 U. S. 203
the constitutional convention. In the Constitution of the State of Massachusetts of 1780, adopted during the war of the
Revolution, the twenty-first article of the Bill of Rights embodies the principle in the following language:
"The freedom of deliberation, speech, and debate in either House of the legislature is so essential to the rights of the
people that it cannot be the foundation of any accusation or prosecution, action, or complaint in any other court or
place whatsoever."
This article received a construction as early as 1808, in the Supreme Court of that State, in the case of Coffin v.
Coffin, (4 Mass. 1), in which Mr. Chief Justice Parsons delivered the opinion. The case was an action for slander, the
offensive language being used in a conversation in the House of Representatives of the Massachusetts legislature.
The words were not delivered in the course of a regular address or speech, though on the floor of the House while in
session, but were used in a conversation between three of the members, when neither of them was addressing the
chair. It had relation, however, to a matter which had a few moments before been under discussion. In speaking of this
article of the Bill of Rights, the protection of which had been invoked in the plea, the Chief Justice said:
"These privileges are thus secured not with the intention of protecting the members against prosecutions for their own
benefit, but to support the rights of the people by enabling their representatives to execute the functions of their office
without fear of prosecutions, civil or criminal. I therefore think that the article ought not to be construed strictly, but
liberally, that the full design of it may be answered. I will not confine it to delivering an opinion, uttering a speech, or
haranguing in debate, but will extend it to the giving of a vote, to the making of a written report, and to every other act
resulting from the nature and in the execution of the office. And I would define the article as securing to every member
exemption from prosecution for everything said or done by him as a representative, in the exercise of the functions of
that office, without inquiring whether the exercise was regular, according to the rules of the House, or irregular and
against their rules. I do not confine the member to his place in the House, and I am satisfied that there are cases in
which
Page 103 U. S. 204
he is entitled to this privilege when not within the walls of the representatives' chamber."
The report states that the other judges, namely, Sedgwick, Sewall, Thatcher and Parker, concurred in the opinion.
This is perhaps the most authoritative case in this country on the construction of the provision in regard to freedom of
debate in legislative bodies, and, being so early after the formation of the Constitution of the United States, is of much
weight. We have been unable to find any decision of a Federal court on this clause of section 6 of article 1, though the
previous clause concerning exemption from arrest has been often construed.
Mr. Justice Story (sect. 866 of his Commentaries on the Constitution) says:
"The next great and vital privilege is the freedom of speech and debate, without which all other privileges would be
comparatively unimportant or ineffectual. This privilege also is derived from the practice of the British Parliament, and
was in full exercise in our colonial legislation, and now belongs to the legislation of every State in the Union as matter
of constitutional right."
It seems to us that the views expressed in the authorities we have cited are sound, and are applicable to this case. It
would be a narrow view of the constitutional provision to limit it to words spoken in debate. The reason of the rule is as
forcible in its application to written reports presented in that body by its committees, to resolutions offered, which,
though in writing, must be reproduced in speech, and to the act of voting, whether it is done vocally or by passing
between the tellers. In short, to things generally done in a session of the House by one of its members in relation to the
business before it.
It is not necessary to decide here that there may not be things done, in the one House or the other, of an extraordinary
character, for which the members who take part in the act may be held legally responsible. If we could suppose the
members of these bodies so far to forget their high functions and the noble instrument under which they act as to
imitate the Long Parliament in the execution of the Chief Magistrate of the nation, or to follow the example of the
French Assembly in assuming the function of a court for capital punishment, we are not prepared to say that such an
utter perversion of their powers to a criminal purpose would be screened from punishment by the constitutional
provision for freedom of debate. In this, as in other matters which have been pressed on our attention, we prefer to
decide only what is necessary to the case in hand, and we think the plea set up by those of the defendants who were
members of the House is a good defence, and the judgment of the court overruling the demurrer to it and giving
judgment for those defendants will be affirmed. As to Thompson, the judgment will be reversed and the case
remanded for further proceedings.
So ordered.
McGrain v. Daugherty
No. 28
Argued December 5, 1924
Decided January 17, 1927
273 U.S. 135
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
Syllabus
1. Deputies, with authority to execute warrants, may be appointed by the Sergeant-at-Arms of the Senate, under a
standing order of the Senate, such appointments being sanctioned by practice and by acts of Congress fixing the
compensation of the appointees and providing for its payment. P. 273 U. S. 154.
2. Such deputy may serve a warrant of attachment issued by the President of the Senate and addressed only to the
Sergeant-at-Arms, in pursuance of a Senate resolution contemplating service by either. P. 273 U. S. 155.
3. A warrant of the Senate for attachment of a person who ignored a subpoena from a Senate committee is supported
by oath within the requirement of the Fourth Amendment when based upon the committee's report of the facts of the
contumacy, made on the committee's own knowledge and having the sanction of the oath of office of its members.
P. 273 U. S. 156.
4. Subpoenas issued by a committee of the Senate to bring before it a witness to testify in an investigation authorized
by the Senate are as if issued by the Senate itself. P. 273 U. S. 158.
5. Therefore, in case of disobedience, the fact that the subpoena, and the contumacy related only to testimony sought
by a committee is not a valid objection to a resolution of the Senate, and warrant issued thereon, requiring the
defaulting witness to appear before the bar of the Senate itself, then and there to give the desired testimony. P. 158.
6. Each house of Congress has power, through its own process, to compel a private individual to appear before it or
one of its committees and give testimony needed to enable it efficiently to exercise a legislative function belonging to it
under the Constitution. P. 273 U. S. 160.
7. This has support in long practice of the houses separately, and in repeated Acts of Congress, all amounting to a
practical construction of the Constitution. Pp. 273 U. S. 161, 273 U. S. 167, 273 U. S. 174.
8. The two houses of Congress, in their separate relations, have not only such powers as are expressly granted them
by the Constitution, but also such auxiliary powers as are necessary and appropriate
Page 273 U. S. 136
to make the express powers effective, but neither is invested with "general" power to inquire into private affairs and
compel disclosures. P. 273 U. S. 173.
9. A witness may rightfully refuse to answer where the bounds of the power are exceeded or the questions are not
pertinent to the matter under inquiry. P. 273 U. S. 176.
10. A resolution of the Senate directing a committee to investigate the administration of the Department of Justice --
whether its functions were being properly discharged or were being neglected or misdirected, and particularly whether
the Attorney General and his assistants were performing or neglecting their duties in respect of the institution and
prosecution of proceedings to punish crimes and enforce appropriate remedies against the wrongdoers, specific
instances of alleged neglect being recited -- concerned a subject on which legislation could be had which would be
materially aided by the information which the investigation was calculated to elicit. P. 273 U. S. 176.
11. It is to be presumed that the object of the Senate in ordering such an investigation is to aid it in legislating. P. 273
U. S. 178.
12. It is not a valid objection to such investigation that it might disclose wrongdoing or crime by a public officer named
in the resolution. P. 273 U. S. 179.
13. A resolution of the Senate directing attachment of a witness who had disobeyed a committee subpoena to such an
investigation, and declaring that his testimony is sought with the purpose of obtaining "information necessary as a
basis for such legislative and other action as the Senate may deem necessary and proper," supports the inference,
from the earlier resolution, of a legislative object. The suggestion of "other action" does not overcome the other part of
the declaration, and thereby invalidate the attachment proceedings. P. 273 U. S. 180.
14. In view of the character of the Senate as a continuing body, and its power to continue or revive, with its original
functions, the committee before which the investigation herein involved was pending, the question of the legality of the
attachment of the respondent as a contumacious witness did not become moot with the expiration of the Congress
during which the investigation and the attachment were ordered. P. 273 U. S. 180.
299 Fed. 620 reversed.
Appeal from a final order of the district court in habeas corpus discharging the respondent, Mally S.
Page 273 U. S. 137
Daugherty, from the custody of John J. McGrain, Deputy Sergeant at Arms of the Senate, by whom he had been
arrested, as a contumacious witness, under a warrant of attachment, issued by the President of the Senate in
pursuance of a Senate resolution.
Page 273 U. S. 150
MR. JUSTICE VAN DEVANTER delivered the opinion of the Court.
This is an appeal from the final order in a proceeding in habeas corpus discharging a recusant witness held in custody
under process of attachment issued from the United States Senate in the course of an investigation which it was
making of the administration of the Department of Justice. A full statement of the case is necessary.
The Department of Justice is one of the great executive departments established by congressional enactment, and
has charge, among other things, of the initiation and prosecution of all suits, civil and criminal, which may be brought in
the right and name of the United States to compel obedience or punish disobedience to its laws, to recover property
obtained from it by unlawful or fraudulent means, or to safeguard its rights in other respects, and also of the assertion
and protection of its interests when it or its officers are sued by others. The Attorney General is the head of the
department, and its functions are all to be exercised under his supervision and direction. [Footnote 1]
Harry M. Daugherty became the Attorney General March 5, 1921, and held that office until March 28, 1924,
Page 273 U. S. 151
when he resigned. Late in that period, various charges of misfeasance and nonfeasance in the Department of Justice
after he became its supervising head were brought to the attention of the Senate by individual senators and made the
basis of an insistent demand that the department be investigated to the end that the practices and deficiencies which,
according to the charges, were operating to prevent or impair its right administration might be definitely ascertained
and that appropriate and effective measures might be taken to remedy or eliminate the evil. The Senate regarded the
charges as grave and requiring legislative attention and action. Accordingly, it formulated, passed, and invited the
House of Representatives to pass (and that body did pass) two measures taking important litigation then in immediate
contemplation out of the control of the Department of Justice and placing the same in charge of special counsel to be
appointed by the President, [Footnote 2] and also adopted a resolution authorizing and directing a select committee of
five senators:
"to investigate circumstances and facts, and report the same to the Senate, concerning the alleged failure of Harry M.
Daugherty, Attorney General of the United States, to prosecute properly violators of the Sherman Anti-Trust Act and
the Clayton Act against monopolies and unlawful restraint of trade; the alleged neglect and failure of the said Harry M.
Daugherty, Attorney General of the United States, to arrest and prosecute Albert B. Fall, Harry F. Sinclair, E. L.
Doheny, C. R. Forbes, and their coconspirators in defrauding the government, as well as the alleged neglect and
failure of the said Attorney General to arrest and prosecute many others for violations of federal statutes, and his
alleged failure
Page 273 U. S. 152
to prosecute properly, efficiently, and promptly, and to defend, all manner of civil and criminal actions wherein the
government of the United States is interested as a party plaintiff or defendant. And said committee is further directed to
inquire into, investigate, and report to the Senate the activities of the said Harry M. Daugherty, Attorney General, and
any of his assistants in the Department of Justice which would in any manner tend to impair their efficiency or
influence as representatives of the government of the United States."
The resolution also authorized the committee to send for books and papers, to subpoena witnesses, to administer
oaths, and to sit at such times and places as it might deem advisable. [Footnote 3]
In the course of the investigation, the committee issued and caused to be duly served on Mally S. Daugherty -- who
was a brother of Harry M. Daugherty and president of the Midland National Bank of Washington Court House, Ohio --
a subpoena commanding him to appear before the committee for the purpose of giving testimony bearing on the
subject under investigation, and to bring with him the
"deposit ledgers of the Midland National Bank since November 1, 1920; also note files and transcript of owners of
every safety vault; also records of income drafts; also records of any individual account or accounts showing
withdrawals of amounts of $25,000 or over during above period."
The witness failed to appear.
A little later in the course of the investigation, the committee issued and caused to be duly served on the same witness
another subpoena, commanding him to appear before it for the purpose of giving testimony relating to the subject
under consideration, nothing being
Page 273 U. S. 153
said in this subpoena about bringing records, books, or papers. The witness again failed to appear, and no excuse was
offered by him for either failure.
The committee then made a report to the Senate stating that the subpoenas had been issued, that, according to the
officer's returns -- copies of which accompanied the report -- the witness was personally served, and that he had failed
and refused to appear. [Footnote 4] After a reading of the report, the Senate adopted a resolution [Footnote 5]
following these facts and proceedings as follows:
"Whereas, the appearance and testimony of the said M. S. Daugherty is material and necessary in order that the
committee may properly execute the functions imposed upon it and may obtain information necessary as a basis for
such legislative and other action as the Senate may deem necessary and proper: Therefore be it"
"Resolved, that the president of the Senate pro tempore issue his warrant commanding the sergeant at arms or his
deputy to take into custody the body of the said M. S. Daugherty wherever found, and to bring the said M. S.
Daugherty before the bar of the Senate, then and there to answer such questions pertinent to the matter under inquiry
as the Senate may order the President of the Senate pro tempore to propound, and to keep the said M. S. Daugherty
in custody to await the further order of the Senate."
It will be observed from the terms of the resolution that the warrant was to be issued in furtherance of the effort be
obtain the personal testimony of the witness, and, like the second subpoena, was not intended to exact from him the
production of the various records, books, and papers named in the first subpoena.
The warrant was issued agreeably to the resolution, and was addressed simply to the sergeant at arms. That
Page 273 U. S. 154
officer, on receiving the warrant, indorsed thereon a direction that it be executed by John J. McGrain, already his
deputy, and delivered it to him for execution.
The deputy, proceeding under the warrant, took the witness into custody at Cincinnati, Ohio, with the purpose of
bringing him before the bar of the Senate as commanded, whereupon the witness petitioned the federal district court in
Cincinnati for a writ of habeas corpus. The writ was granted and the deputy made due return, setting forth the warrant
and the cause of the detention. After a hearing, the court held the attachment and detention unlawful and discharged
the witness, the decision being put on the ground that the Senate, in directing the investigation and in ordering the
attachment, exceeded its powers under the Constitution. 299 F. 620. The deputy prayed and was allowed a direct
appeal to this Court under 238 of the Judicial Code as then existing.
We have given the case earnest and prolonged consideration because the principal questions involved are of unusual
importance and delicacy. They are (a) whether the Senate, or the House of Representatives, both being on the same
plane in this regard, has power, through its own process, to compel a private individual to appear before it or one of its
committees and give testimony needed to enable it efficiently to exercise a legislative function belonging to it under the
Constitution, and (b) whether it sufficiently appears that the process was being employed in this instance to obtain
testimony for that purpose.
Other questions are presented which in regular course should be taken up first.
The witness challenges the authority of the deputy to execute the warrant on two grounds -- that there was no
provision of law for a deputy, and that, even if there were such a provision, a deputy could not execute the
Page 273 U. S. 155
warrant because it was addressed simply to the sergeant at arms. We are of opinion that neither ground is tenable.
The Senate adopted in 1889, and has retained ever since, a standing order declaring that the sergeant at arms may
appoint deputies "to serve process or perform other duties" in his stead, that they shall be "officers of the Senate," and
that acts done and returns made by them "shall have like effect and be of the same validity as if performed or made by
the sergeant at arms in person." [Footnote 6] In actual practice, the Senate has given full effect to the order, and
Congress has sanctioned the practice under it by recognizing the deputies -- sometimes called assistants -- as officers
of the Senate, by fixing their compensation, and by making appropriations to pay them. [Footnote 7] Thus there was
ample provision of law for a deputy.
The fact that the warrant was addressed simply to the sergeant at arms is not of special significance. His authority was
not to be tested by the warrant alone. Other criteria were to be considered. The standing order and the resolution
under which the warrant was issued plainly contemplated that he was to be free to execute the warrant in person or to
direct a deputy to execute it. They expressed the intention of the Senate, and the words of the warrant were to be
taken, as they well could be, in a sense which would give effect to that intention. Thus understood, the warrant
admissibly could be executed by a deputy, if the sergeant at arms so directed, which he did.
The case of Sanborn v. Carleton, 15 Gray 339, on which the witness relies, related to a warrant issued to the sergeant
at arms in 1860, which he deputed another to execute. At that time, there was no standing rule or
Page 273 U. S. 156
statute permitting him to act through a deputy, nor was there anything in the resolution under which the warrant was
issued indicative of a purpose to permit him to do so. All that was decided was that, in the absence of a permissive
provision, in the warrant or elsewhere, he could not commit its execution to another. The provision which was absent in
that case and deemed essential is present in this.
The witness points to the provision in the Fourth Amendment to the Constitution declaring "no warrants shall issue, but
upon probable cause, supported by oath or affirmation," and contends that the warrant was void because the report of
the committee on which it was based was unsworn. We think the contention overlooks the relation of the committee to
the Senate and to the matters reported, and puts aside the accepted interpretation of the constitutional provision.
The committee was a part of the Senate, and its members were acting under their oath of office as senators. The
matters reported pertained to their proceedings and were within their own knowledge. They had issued the subpoenas,
had received and examined the officer's returns thereon (copies of which accompanied the report), and knew the
witness had not obeyed either subpoena, or offered any excuse for his failure to do so.
The constitutional provision was not intended to establish a new principle, but to affirm and preserve a cherished rule
of the common law, designed to prevent the issue of groundless warrants. In legislative practice, committee reports
are regarded as made under the sanction of the oath of office of its members, and where the matters reported are
within the committee's knowledge and constitute probable cause for an attachment, such reports are acted on and
given effect, without requiring that they be supported by further oath or affirmation. This is
Page 273 U. S. 157
not a new practice, but one which has come down from an early period. It was well recognized before the
constitutional provision was adopted, has been followed ever since, and appears never to have been challenged until
now. Thus, it amounts to a practical interpretation, long continued, of both the original common law rule and the
affirming constitutional provision, and should be given effect accordingly. [Footnote 8]
The principle underlying the legislative practice has also been recognized and applied in judicial proceedings. This is
illustrated by the settled rulings that courts, in dealing with contempts committed in their presence, may order
commitments without other proof than their own knowledge of the occurrence, [Footnote 9] and that they may issue
attachments, based on their own knowledge of the default, where intended witnesses or jurors fail to appear in
obedience to process shown by the officer's return to have been duly served. [Footnote 10] A further illustration is
found in the rulings that grand jurors, acting under the sanction of their oath as such, may find and return indictments
based solely on their own knowledge of the particular offenses, and that warrants may be issued on such indictments
without further oath or affirmation, [Footnote 11] and still another is found in the practice which recognizes that, where
grand jurors, under their oath as such, report to the court that a witness brought before them has refused to testify, the
Page 273 U. S. 158
court may act on that report, although otherwise unsworn, and order the witness brought before it by attachment.
[Footnote 12]
We think the legislative practice, fortified as it is by the judicial practice, shows that the report of the committee -- which
was based on the committee's own knowledge and made under the sanction of the oath of office of its members -- was
sufficiently supported by oath to satisfy the constitutional requirement.
The witness also points to the provision in the warrant, and in the resolution under which it was issued, requiring that
he be "brought before the bar of the Senate, then and there" to give testimony "pertinent to the subject under inquiry,"
and contends that an essential prerequisite to such an attachment was wanting, because he neither had been
subpoenaed to appear and testify before the Senate nor had refused to do so. The argument in support of the
contention proceeds on the assumption that the warrant of attachment
"is to be treated precisely the same as if no subpoena had been issued by the committee, and the same as if the
witness had not refused to testify before the committee."
In our opinion, the contention and the assumption are both untenable. The committee was acting for the Senate and
under its authorization, and therefore the subpoenas which the committee issued and the witness refused to obey are
to be treated as if issued by the Senate. The warrant was issued as an auxiliary process to compel him to give the
testimony sought by the subpoenas, and its nature in this respect is not affected by the direction that his testimony be
given at the bar of the Senate, instead of before the committee. If the Senate deemed it proper, in view of his
contumacy, to give that direction, it was at liberty to do so.
Page 273 U. S. 159
The witness sets up an interlocutory injunction granted by a state court at Washington Court House, Ohio, in a suit
brought by the Midland National Bank against two members of the investigating committee, and contends that the
attachment was in violation of that injunction and therefore unlawful. The contention is plainly ill founded. The
injunction was granted the same day the second subpoena was served, but whether earlier or later in the day does not
appear. All that the record discloses about the injunction is comprised in the paragraph copied in the margin from the
witness' petition for habeas corpus. [Footnote 13] But it is apparent from what is disclosed that the injunction did not
purport to place any restraint on the witness, nor to restrain the committee from demanding that he appear and testify
personally to what he knew respecting the subject under investigation, and also that what the injunction did purport to
restrain has no bearing on the power of the Senate to enforce that demand by attachment.
Page 273 U. S. 160
In approaching the principal questions which remain to be considered, two observations are in order. One is that we
are not now concerned with the direction in the first subpoena that the witness produce various records, books, and
papers of the Midland National Bank. That direction was not repeated in the second subpoena, and is not sought to be
enforced by the attachment. This was recognized by the court below, 299 F. 623, and is conceded by counsel for the
appellant. The other is that we are not now concerned with the right of the Senate to propound or the duty of the
witness to answer specific questions, for as yet no questions have been propounded to him. He is asserting, and is
standing on his assertion, that the Senate is without power to interrogate him, even if the questions propounded be
pertinent and otherwise legitimate, which, for present purposes, must be assumed.
The first of the principal questions, the one which the witness particularly presses on our attention, is, as before
shown, whether the Senate -- or the House of Representatives, both being on the same plane in this regard -- has
power, through its own process, to compel a private individual to appear before it or one of its committees and give
testimony needed to enable it efficiently to exercise a legislative function belonging to it under the Constitution.
The Constitution provides for a Congress, consisting of a Senate and House of Representatives, and invests it with "all
legislative powers" granted to the United States, and with power "to make all laws which shall be necessary and
proper" for carrying into execution these powers and "all other powers" vested by the Constitution in the United States
or in any department or officer thereof. Art. I, secs. 1, 8. Other provisions show that, while bills can become laws only
after being considered and passed by both houses of Congress, each house is to be distinct
Page 273 U. S. 161
from the other, to have its own officers and rules, and to exercise its legislative function independently. [Footnote 14]
Art. I, 2, 3, 5, 7. But there is no provision expressly investing either house with power to make investigations and
exact testimony to the end that it may exercise its legislative function advisedly and effectively. So the question arises
whether this power is so far incidental to the legislative function as to be implied.
In actual legislative practice, power to secure needed information by such means has long been treated as an attribute
of the power to legislate. It was so regarded in the British Parliament and in the colonial legislatures before the
American Revolution, and a like view has prevailed and been carried into effect in both houses of Congress and in
most of the state legislatures. [Footnote 15]
This power was both asserted and exerted by the House of Representatives in 1792, when it appointed a select
committee to inquire into the St. Clair expedition and authorized the committee to send for necessary persons, papers
and records. Mr. Madison, who had taken an important part in framing the Constitution only five years before, and four
of his associates in that work, were members of the House of Representatives at the time, and all voted for the inquiry.
3 Cong.Ann. 494. Other exertions of the power by the House of Representatives, as also by the Senate, are shown in
the citations already made. Among those by the Senate, the inquiry ordered in 1859 respecting the raid by John Brown
and his adherents on the armory and arsenal of the United States at Harper's Ferry is of special significance. The
resolution
Page 273 U. S. 162
directing the inquiry authorized the committee to send for persons and papers, to inquire into the facts pertaining to the
raid and the means by which it was organized and supported, and to report what legislation, if any, was necessary to
preserve the peace of the country and protect the public property. The resolution was briefly discussed, and adopted
without opposition. Cong.Globe, 36th Cong. 1st Sess. pp. 141, 152. Later on, the committee reported that Thaddeus
Hyatt, although subpoenaed to appear as a witness, had refused to do so, whereupon the Senate ordered that he be
attached and brought before it to answer for his refusal. When he was brought in, he answered by challenging the
power of the Senate to direct the inquiry and exact testimony to aid it is exercising its legislative function. The question
of power thus presented was thoroughly discussed by several senators -- Mr. Sumner of Massachusetts taking the
lead in denying the power, and Mr. Fessenden of Maine in supporting it. Sectional and party lines were put aside, and
the question was debated and determined with special regard to principle and precedent. The vote was taken on a
resolution pronouncing the witness' answer insufficient and directing that he be committed until he should signify that
he was ready and willing to testify. The resolution was adopted -- 44 senators voting for it and 10 against. Cong.Globe,
36th Cong. 1st.Sess. pp. 1100-1109, 3006, 3007. The arguments advanced in support of the power are fairly reflected
by the following excerpts from the debate:
"Mr. Fessenden of Maine: Where will you stop? Stop, I say, just at that point where we have gone far enough to
accomplish the purposes for which we were created, and these purposes are defined in the Constitution. What are
they? The great purpose is legislation. There are some other things, but I speak of legislation as the principal purpose.
Now, what do we propose to do here? We
Page 273 U. S. 163
propose to legislate upon a given state of facts, perhaps, or under a given necessity. Well, sir, proposing to legislate,
we want information. We have it not ourselves. It is not to be presumed that we know everything, and if anybody does
presume it, it is a very great mistake, as we know by experience. We want information on certain subjects. How are we
to get if? The Senator says, ask for it. I am ready to ask for it, but suppose the person whom we ask will not give it to
us. What then? Have we not power to compel him to come before us? Is this power, which has been exercised by
Parliament and by all legislative bodies down to the present day without dispute -- the power to inquire into subjects
upon which they are disposed to legislate -- lost to us? Are we not in the possession of it? Are we deprived of it simply
because we hold our power here under a Constitution which defines what our duties are, and what we are called upon
to do?"
"Congress have appointed committees after committees, time after time, to make inquiries on subjects of legislation.
Had we not power to do it? Nobody questioned our authority to do it. We have given them authority to send for
persons and papers during the recess. Nobody questioned our authority. We appoint committees during the session,
with power to send for persons and papers. Have we not that authority, if necessary to legislation?"
"* * * *"
"Sir, with regard to myself, all I have to inquire into is: is this a legitimate and proper object, committed to me under the
Constitution, and then, as to the mode of accomplishing it, I am ready to use judiciously, calmly, moderately, all the
power which I believe is necessary and inherent, in order to do that which I am appointed to do; and, I take it, I violate
no rights, either of the people generally or of the individual, by that course. "
Page 273 U. S. 164
"Mr. Crittenden of Kentucky: I come now to a question where the cooperation of the two branches is not necessary.
There are some things that the Senate may do. How? According to a mode of its own. Are we to ask the other branch
of the legislature to concede by law to us the power of making such an inquiry as we are now making? Has not each
branch the right to make what inquiries and investigation it thinks proper to make for its own action? Undoubtedly. You
say we must have a law for it. Can we have a law? Is it not, from the very nature of the case, incidental to you as a
Senate if you, as a Senate, have the power of instituting an inquiry and of proceeding with that inquiry? I have
endeavored to show that we have that power. We have a right, in consequence of it, a necessary incidental power, to
summon witnesses if witnesses are necessary. Do we require the concurrence of the other house to that? It is a power
of our own. If you have a right to do the thing of your own motion, you must have all powers that are necessary to do
it."
"The means of carrying into effect by law all the granted powers is given where legislation is applicable and necessary,
but there are subordinate matters, not amounting to laws; there are inquiries of the one house or the other house,
which each house has a right to conduct, which each has, from the beginning, exercised the power to conduct, and
each has, from the beginning, summoned witnesses. This has been the practice of the government from the
beginning, and if we have a right to summon the witness, all the rest follows as a matter of course."
The deliberate solution of the question on that occasion has been accepted and followed on other occasions by both
houses of Congress, and never has been rejected or questioned by either.
Page 273 U. S. 165
The state courts quite generally have held that the power to legislate carries with it by necessary implication ample
authority to obtain information needed in the rightful exercise of that power, and to employ compulsory process for the
purpose.
In Burnham v. Morrissey, 14 Gray, 226, 239, the Supreme Judicial Court of Massachusetts, in sustaining an exertion of
this power by one branch of the legislature of that commonwealth, said:
"The House of Representatives has many duties to perform, which necessarily require it to receive evidence, and
examine witnesses. . . . It has often occasion to acquire a certain knowledge of facts in order to the proper
performance of legislative duties. We therefore think it clear that it has the constitutional right to take evidence, to
summon witnesses, and to compel them to attend and to testify. This power to summon and examine witnesses it may
exercise by means of committees."
In Wilckens v. Willet, 1 Keyes 521, 525, a case which presented the question whether the House of Representatives of
the United States possesses this power, the Court of Appeals of New York said:
"That the power exists there admits of no doubt whatever. It is a necessary incident to the sovereign power of making
laws, and its exercise is often indispensable to the great end of enlightened, judicious, and wholesome legislation."
In People v. Keeler, 99 N.Y. 463, 482, 483, where the validity of a statute of New York recognizing and giving effect to
this power was drawn in question, the Court of Appeals approvingly quoted what it had said in Wilckens v. Willet, and
added:
"It is difficult to conceive any constitutional objection which can be raised to the provisions authorizing legislative
committees to take testimony and to summon
Page 273 U. S. 166
witnesses. In many cases, it may be indispensable to intelligent and effectual legislation to ascertain the facts which
are claimed to give rise to the necessity for such legislation, and the remedy required, and irrespective of the question
whether, in the absence of a statute to that effect, either house would have the power to imprison a recusant witness, I
cannot yield to the claim that a statute authorizing it to enforce its process in that manner is in excess of the legislative
power. To await the slow process of indictment and prosecution for a misdemeanor might prove quite ineffectual, and
necessary legislation might be obstructed, and perhaps defeated, if the legislative body had no other and more
summary means of enforcing its right to obtain the required information. That the power may be abused is no ground
for denying its existence. It is a limited power, and should be kept within its proper bounds, and when these are
exceeded, a jurisdictional question is presented which is cognizable in the courts. . . . Throughout this Union, the
practice of legislative bodies, and in this state, the statutes existing at the time the present Constitution was adopted,
and whose validity has never before been questioned by our courts, afford strong arguments in favor of the recognition
of the right of either house to compel the attendance of witnesses for legislative purposes, as one which has been
generally conceded to be an appropriate adjunct to the power of legislation, and one which, to say the least, the state
legislature has constitutional authority to regulate and enforce by statute."
Other decisions by state courts recognizing and sustaining the legislative practice are found in Falvey v. Massing, 7
Wis. 630, 635-638; State v. Frear, 138 Wis. 173; Ex parte Parker, 74 S.C. 466, 470; Sullivan v. Hill, 73 W.Va. 49,
53; Lowe v. Summers, 69 Mo.App. 637, 649, 650. An instructive decision on the question is also found in Ex parte
Dansereau (1875), 19 L.C.Jur. 210, where the
Page 273 U. S. 167
legislative assembly of the Province of Quebec was held to possess this power as a necessary incident of its power to
legislative.
We have referred to the practice of the two houses of Congress, and we now shall notice some significant
congressional enactments. May 3, 1798, 1 Stat. 554, c. 36, Congress provided that oaths or affirmations might be
administered to witnesses by the President of the Senate, the Speaker of the House of Representatives, the chairman
of a committee of the whole, or the chairman of a select committee, "in any case under their examination." February 8,
1817, 3 Stat. 345, c. 10, it enlarged that provision so as to include the chairman of a standing committee. January 24,
1857, 11 Stat. 155, c.19, it passed "An act more effectually to enforce the attendance of witnesses on the summons of
either house of Congress, and to compel them to discover testimony." This act provided, first, that any person
summoned as a witness to give testimony or produce papers in any matter under inquiry before either house of
Congress, or any committee of either house, who should willfully make default or, if appearing, should refuse to
answer any question pertinent to the inquiry, should, in addition to the pains and penalties then existing, [Footnote 16]
be deemed guilty of a misdemeanor, and be subject to indictment as there prescribed; and, secondly, that no person
should be excused from giving evidence in such an inquiry on the ground that it might tend to incriminate or disgrace
him, nor be held to answer criminally, or be subjected to any penalty or forfeiture, for any fact or act as to which he was
required to testify excepting that he might be subjected to prosecution for perjury committed while so testifying.
January 24, 1862, c. 11, 12 Stat. 333, Congress modified the immunity provision in particulars not material
Page 273 U. S. 168
here. These enactments are now embodied in 101-104 and 859 of Revised Statutes. They show very plainly that
Congress intended thereby (a) to recognize the power of either house to institute inquiries and exact evidence
touching subjects within its jurisdiction and on which it was disposed to act; [Footnote 17] (b) to recognize that such
inquiries may be conducted through committees; (c) to subject defaulting and contumacious witnesses to indictment
and punishment in the courts, and thereby to enable either house to exert the power of inquiry "more effectually;"
[Footnote 18] and (d) to open the way for obtaining evidence in such an inquiry, which otherwise could not be
obtained, by exempting witnesses required to give evidence therein from criminal and penal prosecutions in respect of
matters disclosed by their evidence.
Four decisions of this Court are cited and more or less relied on, and we now turn to them.
The first decision was in Anderson v. Dunn, 6 Wheat. 204. The question there was whether, under the Constitution, the
House of Representatives has power to attach and punish a person other than a member for contempt
Page 273 U. S. 169
of its authority -- in fact, an attempt to bribe one of its members. The Court regarded the power as essential to the
effective exertion of other powers expressly granted, and therefore as implied. The argument advanced to the contrary
was that, as the Constitution expressly grants to each house power to punish or expel its own members and says
nothing about punishing others, the implication or inference, if any, is that power to punish one who is not a member is
neither given nor intended. The Court answered this by saying:
Page 225:
"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 their exercise, not substantive and independent, indeed, but auxiliary and subordinate."
Page 233:
"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 punishments 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 the piracy and offenses 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 honor or interests of the state
which sent him. "
Page 273 U. S. 170
The next decision was in Kilbourn v. Thompson, 103 U. S. 168. The question there was whether the House of
Representatives had exceeded its power in directing one of its committees to make a particular investigation. The
decision was that it had. The principles announced and applied in the case are that neither house of Congress
possesses a "general power of making inquiry into the private affairs of the citizen;" that the power actually possessed
is limited to inquiries relating to matters of which the particular house "has jurisdiction" and in respect of which it
rightfully may take other action; that, if the inquiry relates to "a matter wherein relief or redress could be had only by a
judicial proceeding," it is not within the range of this power, but must be left to the courts, conformably to the
constitutional separation of governmental powers, and that, for the purpose of determining the essential character of
the inquiry, recourse may be had to the resolution or order under which it is made. The Court examined the resolution
which was the basis of the particular inquiry, and ascertained therefrom that the inquiry related to a private real estate
pool or partnership in the District of Columbia. Jay Cook & Co. had had an interest in the pool, but had become
bankrupts, and their estate was in course of administration in a federal bankruptcy court in Pennsylvania. The United
States was one of their creditors. The trustee in the bankruptcy proceeding had effected a settlement of the bankrupts'
interest in the pool, and, of course, his action was subject to examination and approval or disapproval by the
bankruptcy court. Some of the creditors, including the United States, were dissatisfied with the settlement. In these
circumstances, disclosed in the preamble, the resolution directed the committee
"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.
Page 273 U. S. 171
were interests, and the amount paid or to be paid in said settlement, with power to send for persons and papers and
report to this house."
The Court pointed out that the resolution contained no suggestion of contemplated legislation; that the matter was one
in respect to which no valid legislation could be had; that the bankrupts' estate and the trustee's settlement were still
pending in the bankruptcy court, and that the United States and other creditors were free to press their claims in that
proceeding. And, on these grounds, the Court held that, in undertaking the investigation,
"the House of Representatives not only exceeded the limit of its own authority, but assumed a power which could only
be properly exercised by another branch of the government, because it was in its nature clearly judicial."
The case has been cited at times, and is cited to us now, as strongly intimating, if not holding, that neither house of
Congress has power to make inquires and exact evidence in aid of contemplated legislation. There are expressions in
the opinion which, separately considered, might bear such an interpretation; but that this was not intended is shown by
the immediately succeeding statement (p.103 U. S. 189) that:
"This latter proposition is one which we do not propose to decide in the present case, because we are able to decide it
without passing upon the existence or nonexistence of such a power in aid of the legislative function."
Next in order is In re Chapman, 166 U. S. 661. The inquiry there in question was conducted under a resolution of the
Senate and related to charges, published in the press, that Senators were yielding to corrupt influences in considering
a tariff bill then before the Senate and were speculating in stocks the value of which would be affected by pending
amendments to the bill. Chapman appeared before the committee in response to a subpoena, but refused to answer
questions pertinent to the inquiry, and
Page 273 U. S. 172
was indicted and convicted under the Act of 1857 for his refusal. The Court sustained the constitutional validity of the
Act of 1857, and, after referring to the constitutional provision empowering either house to punish its members for
disorderly behavior and by a vote of two-thirds to expel a member, held that the inquiry related to the integrity and
fidelity of Senators in the discharge of their duties, and therefore to a matter "within the range of the constitutional
powers of the Senate" and in respect to which it could compel witnesses to appear and testify. In overruling an
objection that the inquiry was without any defined or admissible purpose, in that the preamble and resolution made no
reference to any contemplated expulsion, censure, or other action by the Senate, the Court held that they adequately
disclosed a subject matter of which the Senate had jurisdiction, that it was not essential that the Senate declare in
advance what it meditated doing, and that the assumption could not be indulged that the Senate was making the
inquiry without a legitimate object.
The case is relied on here as fully sustaining the power of either house to conduct investigations and exact testimony
from witnesses for legislative purposes. In the course of the opinion (p. 166 U. S. 671), it is said that disclosures by
witnesses may be compelled constitutionally "to enable the respective bodies to discharge their legitimate functions,"
and that "it was to effect this that the Act of 1857 was passed," and also:
"We grant that Congress could not divest itself, or either of its houses, of the essential and inherent power to punish for
contempt in cases to which the power of either house properly extended; but, because Congress, by the Act of 1857,
sought to aid each of the houses in the discharge of its constitutional functions, it does not follow that any delegation of
the power in each to punish for contempt was involved."
The terms "legitimate functions" and "constitutional functions"
Page 273 U. S. 173
are broad, and might well be regarded as including the legislative function; but, as the case in hand did not call for any
expression respecting that function, it hardly can be be said that these terms were purposely used as including it.
The latest case is Marshall v. Gordon, 243 U. S. 521. The question there was whether the House of Representatives
exceeded its power in punishing, as for a contempt of its authority, a person -- not a member -- who had written,
published, and sent to the chairman of one of its committees an ill tempered and irritating letter respecting the action
and purposes of the committee. Power to make inquiries and obtain evidence by compulsory process was not
involved. The Court recognized distinctly that the House of Representatives has implied power to punish a person not
a member for contempt, as was ruled in Anderson v. Dunn, supra, but held that its action in this instance was without
constitutional justification. The decision was put on the ground that the letter, while offensive and vexatious, was not
calculated or likely to affect the House in any of its proceedings or in the exercise of any of its functions -- in short, that
the act which was punished as a contempt was not of such a character as to bring it within the rule that an express
power draws after it others which are necessary and appropriate to give effect to it.
While these cases are not decisive of the question we are considering, they definitely settle two propositions which we
recognize as entirely sound and having a bearing on its solution: one, that the two houses of Congress, in their
separate relations, possess not only such powers as are expressly granted to them by the Constitution, but such
auxiliary powers as are necessary and appropriate to make the express powers effective, and the other that neither
house is invested with "general" power to inquire into private affairs and compel disclosures,
Page 273 U. S. 174
but only with such limited power of inquiry as is shown to exist when the rule of constitutional interpretation just stated
is rightly applied. The latter proposition has further support in Harriman v. Interstate Commerce Commission, 211 U. S.
407, 211 U. S. 417-419, and Federal Trade Commission v. American Tobacco Co., 264 U. S. 298, 264 U. S. 305-306.
With this review of the legislative practice, congressional enactments, and court decisions, we proceed to a statement
of our conclusions on the question.
We are of opinion that the power of inquiry -- with process to enforce it -- is an essential and appropriate auxiliary to
the legislative function. It was so regarded and employed in American legislatures before the Constitution was framed
and ratified. Both houses of Congress took this view of it early in their history -- the House of Representatives with the
approving votes of Mr. Madison and other members whose service in the convention which framed the Constitution
gives special significance to their action -- and both houses have employed the power accordingly up to the present
time. The Acts of 1798 and 1857, judged by their comprehensive terms, were intended to recognize the existence of
this power in both houses and to enable them to employ it "more effectually" than before. So, when their practice in the
matter is appraised according to the circumstances in which it was begun and to those in which it has been continued,
it falls nothing short of a practical construction, long continued, of the constitutional provisions respecting their powers,
and therefore should be taken as fixing the meaning of those provisions, if otherwise doubtful. [Footnote 19]
Page 273 U. S. 175
We are further of opinion that the provisions are not of doubtful meaning, but, as was held by this Court in the cases
we have reviewed, are intended to be effectively exercised, and therefore to carry with them such auxiliary powers as
are necessary and appropriate to that end. While the power to exact information in aid of the legislative function was
not involved in those cases, the rule of interpretation applied there is applicable here. A legislative body cannot
legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to
affect or change, and where the legislative body does not itself possess the requisite information -- which not
infrequently is true -- recourse must be had to others who do possess it. Experience has taught that mere requests for
such information often are unavailing, and also that information which is volunteered is not always accurate or
complete, so some means of compulsion are essential to obtain what is needed. All this was true before and when the
Constitution was framed and adopted. In that period, the power of inquiry, with enforcing process, was regarded and
employed as a necessary and appropriate attribute of the power to legislate -- indeed, was treated as inhering in it.
Thus, there is ample warrant for thinking, as we do, that the constitutional provisions which commit the legislative
function to the two houses are intended to include this attribute to the end that the function may be effectively
exercised.
The contention is earnestly made on behalf of the witness that this power of inquiry, if sustained, may be abusively and
oppressively exerted. If this be so, it affords no ground for denying the power. The same contention might be directed
against the power to legislate, and, of course, would be unavailing. We must assume for present purposes that neither
houses will be disposed to exert the power beyond its proper bounds, or without
Page 273 U. S. 176
due regard to the rights of witnesses. But if, contrary to this assumption, controlling limitations or restrictions are
disregarded, the decisions in Kilbourn v. Thompson and Marshall v. Gordon point to admissible measures of relief. And
it is a necessary deduction from the decisions in Kilbourn v. Thompson and In re Chapman that a witness rightfully
may refuse to answer where the bounds of the power are exceeded or the questions are not pertinent to the matter
under inquiry.
We come now to the question whether it sufficiently appears that the purpose for which the witness' testimony was
sought was to obtain information in aid of the legislative function. The court below answered the question in the
negative and put its decision largely on this ground, as is shown by the following excerpts from its opinion (299 F. 638-
640):
"It will be noted that, in the second resolution, the Senate has expressly avowed that the investigation is in aid of other
action than legislation. Its purpose is to 'obtain information necessary as a basis for such legislative and other action
as the Senate may deem necessary and proper.' This indicates that the Senate is contemplating the taking of action And again:
other than legislative, as the outcome of the investigation -- at least the possibility of so doing. The extreme personal
cast of the original resolutions; the spirit of hostility towards the then Attorney General which they breathe; that it was
not avowed that legislative action was had in view until after the action of the Senate had been challenged, and that "We are bound to presume that the action of the legislative body was with a legitimate object, if it is capable of being
the avowal then was coupled with an avowal that other action was had in view -- are calculated to create the so construed, and we have no right to assume that the contrary was intended. "
impression that the idea of legislative action being in contemplation was an afterthought."
Page 273 U. S. 179
"That the Senate has in contemplation the possibility of taking action other than legislation as an outcome of the
investigation, as thus expressly avowed, would seem
While we rest our conclusion respecting the object of the investigation on the grounds just stated, it is well to observe
that this view of what was intended is not new, but was shown in the debate on the resolution. [Footnote 20]
Page 273 U. S. 177
Of course, our concern is with the substance of the resolution, and not with any nice questions of propriety respecting
of itself to invalidate the entire proceeding. But, whether so or not, the Senate's action is invalid and absolutely void in its direct reference to the then Attorney General by name. The resolution, like the charges which prompted its
that, in ordering and conducting the investigation, it is exercising the judicial function, and power to exercise that adoption, related to the activities of the department while he was its supervising officer, and the reference to him by
function, in such a case as we have here, has not been conferred upon it expressly or by fair implication. What it is name served to designate the period to which the investigation was directed.
proposing to do is to determine the guilt of the Attorney General of the shortcomings and wrongdoings set forth in the
resolutions. It is 'to hear, adjudge, and condemn.' It so doing, it is exercising the judicial function. . . ."
We think the resolution and proceedings give no warrant for thinking the Senate was attempting or intending to try the
Attorney General at its bar or before its committee for and crime or wrongdoing. Nor do we think
"What the Senate is engaged in doing is not investigating the Attorney General's office; it is investigating the former
Attorney General. What it has done is to put him on trial before it. In so doing, it is exercising the judicial function. This
Page 273 U. S. 180
it has no power to do."

it a valid objection to the investigation that it might possibly disclose crime or wrongdoing on his part.
We are of opinion that the court's ruling on this question was wrong, and that it sufficiently appears, when the
proceedings are rightly interpreted, that the object of the investigation and of the effort to secure the witness' testimony
was to obtain information for legislative purposes. The second resolution -- the one directing that the witness be attached -- declares that his testimony is sought with the
purpose of obtaining "information necessary as a basis for such legislative and other action as the Senate may deem
necessary and proper." This avowal of contemplated legislation is in accord with what we think is the right
It is quite true that the resolution directing the investigation does not in terms avow that it is intended to be in aid of
interpretation of the earlier resolution directing the investigation. The suggested possibility of "other action" if deemed
legislation; but it does show that the subject to be investigated was the administration of the Department of Justice --
"necessary or proper" is, of course, open to criticism in that there is no other action in the matter which would be within
whether its functions were being properly discharged or were being neglected or misdirected, and particularly whether
the power of the Senate. But we do not assent to the view that this indefinite and untenable suggestion invalidates the
the Attorney General and his assistants were performing or neglecting their duties in respect of the institution and
entire proceeding. The right view, in our opinion, is that it takes nothing from the lawful object avowed in the same
prosecution of proceedings to punish crimes and enforce appropriate remedies against the wrongdoers, specific
resolution and rightly inferable from the earlier one. It is not as if an inadmissible or unlawful object were affirmatively
instances of alleged neglect being recited. Plainly the subject was one on which legislation could be had and would be
and definitely avowed.
materially aided by the information which the investigation was calculated to elicit.

We conclude that the investigation was ordered for a legitimate object; that the witness wrongfully refused to appear
Page 273 U. S. 178
and testify before the committee and was lawfully attached; that the Senate is entitled to have him give testimony
pertinent to the inquiry, either at its bar or before the committee, and that the district court erred in discharging him
This becomes manifest when it is reflected that the functions of the Department of Justice, the powers and duties of from custody under the attachment.
the Attorney General, and the duties of his assistants are all subject to regulation by congressional legislation, and that
the department is maintained and its activities are carried on under such appropriations as, in the judgment of
Another question has arisen which should be noticed. It is whether the case has become moot. The investigation was
Congress, are needed from year to year.
ordered and the committee appointed during the Sixty-Eighth Congress. That Congress expired March 4, 1925. The
resolution ordering the investigation in terms limited the committee's authority to the period of the Sixty-Eighth
The only legitimate object the Senate could have in ordering the investigation was to aid it in legislating, and we think Congress; but this apparently was changed by a later and amendatory resolution authorizing the committee to sit at
the subject matter was such that the presumption should be indulged that this was the real object. An express avowal such times and places as it might
of the object would have been better; but, in view of the particular subject matter, was not indispensable. In
the Chapman case, where the resolution contained no avowal, this Court pointed out that it plainly related to a subject
Page 273 U. S. 181
matter of which the Senate had jurisdiction, and said: "We cannot assume on this record that the action of the Senate
was without a legitimate object," and also that "it was certainly not necessary that the resolutions should declare in
advance what the Senate meditated doing when the investigation was concluded." 166 U.S.166 U. S. 669, 166 U. S. deem advisable or necessary. [Footnote 21] It is said in Jefferson's Manual: [Footnote 22]
670. In People v. Keeler, 99 N.Y. 463, where the Court of Appeals of New York sustained an investigation ordered by
the House of Representatives of that state where the resolution contained no avowal, but disclosed that it definitely
related to the administration of a public office the duties of which were subject to legislative regulation, the court said "Neither house can continue any portion of itself in any parliamentary function beyond the end of the session without
(pp. 485, 487): the consent of the other two branches. When done, it is by a bill constituting them commissioners for the particular
purpose."

"Where public institutions under the control of the state are ordered to be investigated, it is generally with the view of
some legislative action respecting them, and the same may be said in respect of public officers." But the context shows that the reference is to the two houses of Parliament when adjourned by prorogration or
dissolution by the King. The rule may be the same with the House of Representatives, whose members are all elected
for the period of a single Congress; but it cannot well be the same with the Senate, which is a continuing body whose
members are elected for a term of six years and so divided into classes that the seats of one-third only become vacant [Footnote 6]
at the end of each Congress, two-thirds always continuing into the next Congress, save as vacancies may occur
through death or resignation.
Senate Journal, 47, 51-1, Dec. 17, 1889; Senate Rules and Manual, 68th Cong. p. 114.

Mr. Hinds, in his collection of precedents, says: "The Senate, as a continuing body, may continue its committees
through the recess following the expiration of a Congress." [Footnote 23] And, after quoting the above statement from [Footnote 7]
Jefferson's Manuel, he says: "The Senate, however, being a continuing body, gives authority to its committees during
the recess after the expiration of a Congress." [Footnote 24] So far as we are advised, the select committee having
41 Stat. 632, 1253; 42 Stat. 424, 1266; 43 Stat. 33, 58, 43 Stat. 1288.
this investigation in charge has neither made a final report nor been discharged; nor has it been continued by an
affirmative order. Apparently its activities have been suspended pending the decision of this case. But, be this as it
may, it is certain that the committee may be continued or revived now by motion to that effect, and, if continued or [Footnote 8]
revived, will have all its original powers. [Footnote 25]

Prigg v. Pennsylvania, 16 Pet. 539, 41 U. S. 620-621; The Laura, 114 U. S. 411, 114 U. S. 416; McPherson v.
Page 273 U. S. 182 Blacker, 146 U. S. 1, 146 U. S. 35-36; Ex parte Grossman, 267 U. S. 87, 267 U. S. 118; Myers v. United States, 272 U.
S. 52.
This being so, and the Senate being a continuing body, the case cannot be said to have become moot in the ordinary
sense. The situation is measurably like that in Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 [Footnote 9]
U. S. 498, 219 U. S. 514-516, where it was held that a suit to enjoin the enforcement of an order of the Interstate
Commerce Commission did not become moot through the expiration of the order where it was capable of repetition by
the commission and was a matter of public interest. Our judgment may yet be carried into effect, and the investigation Ex parte Terry, 128 U. S. 289, 128 U. S. 307 et seq.; Holcomb v. Cornish, 8 Conn. 375; 4 Blackst.Com 286.
proceeded with from the point at which it apparently was interrupted by reason of the habeas corpus proceedings. In
these circumstances, we think a judgment should be rendered as was done in the case cited.
[Footnote 10]

What has been said requires that the final order in the district court discharging the witness from custody be reversed.
Robbins v. Gorham, 25 N.Y. 588; Wilson v. State, 57 Ind. 71.

Final order reversed.

[Footnote 11]

MR. JUSTICE STONE did not participate in the consideration or decision of the case.
Hale v. Henkel, 201 U. S. 43, 201 U. S. 60-62; Regina v. Russell, 2 Car. & Mar. 247; Commonwealth v. Hayden, 163
Mass. 453, 455; decision of Mr. Justice Catron, reported in Wharton's Cr.Pl. & Pr. (8th ed.) pp. 224-226.
[Footnote 1]
[Footnote 12]
Rev.Stats. 346, 350, 359, 360, 361, 362, 367; Judicial Code, 185, 212; 25 Stat. 858, 859, c. 382, 3, 5; 26
Stat. 209, c. 647, 4; 34 Stat. 816, c. 3935; 38 Stat. 736, c. 323, 15; United States v. San Jacinto Tin Co., 125 U. S.
273, 125 U. S. 278; Kern River Co. v. United States, 257 U. S. 147, 257 U. S. 155; Ponzi v. Fessenden, 258 U. S. See Hale v. Henkel, supra; Blair v. United States, 250 U. S. 273; Nelson v. United States, 201 U. S. 92, 201 U. S. 95;
254, 258 U. S. 262. Equity Rule 52, 226 U.S. Appendix 15; Heard v. Pierce, 8 Cush. 338.

[Footnote 2] [Footnote 13]

Cong.Rec. 68th Cong. 1st Sess. pp. 1520, 1521, 1728; c. 16, 43 Stat. 5; Cong.Rec. 68th Cong. 1st Sess. pp. 1591, "On the 11th day of April, 1924, in an action in the Court of Common Pleas of said Fayette County, Ohio, in which said
1974; 43 Stat. 15, c. 39; 43 Stat. 16, c. 42. the Midland National Bank was plaintiff and said B. K. Wheeler and Smith W. Brookhart were defendants, upon the
petition of said bank, said court granted a temporary restraining order enjoining and restraining said defendants and
their agents, servants, and employees from entering into said banking room and from taking, examining, or
[Footnote 3] investigating any of the books, accounts, records, promissory notes, securities, letters, correspondence, papers, or
any other property of said bank or of its depositors, borrowers, or customers in said banking room and from in any
manner molesting and interfering with the business and affairs of said bank, its officers, agents, servants, and the
For the full resolution and two amendments adopted shortly thereafter, see Cong.Rec. 68th Cong. 1st Sess. pp. 3299, business of its depositors, borrowers, and customers with said bank until the further order of said court. The said
3409, 3410, 3548, 4126. defendants were duly served with process in said action and duly served with copies of said temporary restraining
order on said 11th day of April, 1924, and said injunction has not been modified by said court and no further order has
been made in said case by said court, and said injunction is in full force and effect."
[Footnote 4]

[Footnote 14]
Senate Report No. 475, 68th Cong. 1st Sess.

Story Const. 545 et seq.; 1 Kent's Com. p. 222.

[Footnote 5]

[Footnote 15]
Cong.Rec. 68th Cong. 1st Sess. pp. 7215-7217.
May's Parliamentary Practice (2d ed.) pp. 80, 295, 299; Cushing's Legislative Practice, 634, 1901-1903; 3 Hinds'
Precedents, 1722, 1725, 1727, 1813-1820; Cooley's Constitutional Limitations (6th ed.) p. 161.
[Footnote 16]
The reference is to the power of the particular house to deal with the contempt. In re Chapman, 166 U. S. 661, 166 U.
S. 671-672.
[Footnote 17]
In construing 1 of the Act of 1857, as reproduced in 102 of the Revised Statutes, this Court said in In re
Chapman, 166 U. S. 661, 166 U. S. 667:
"It is true that the reference is to 'any' matter under inquiry, and so on, and it is suggested that this is fatally defective
because too broad and unlimited in its extent; but nothing is better settled than that statutes should receive a sensible
construction such as will effectuate the legislative intention, and, if possible, so as to avoid an unjust or an absurd
conclusion, Lau Ow Bew v. United States, 144 U. S. 47,144 U. S. 59, and we think that the word 'any,' as used in these
sections, refers to matters within the jurisdiction of the two houses of Congress, before them for consideration and
proper for their action, to questions pertinent thereto, and to facts or papers bearing thereon."
[Footnote 18]
This Court has said of the Act of 1857 that it was "necessary and proper for carrying into execution the powers vested
in Congress and in each house thereof." In re Chapman, 166 U. S. 661, 166 U. S. 671.
[Footnote 19]
Stuart v. Laird, 1 Cranch 299, 5 U. S. 309; Martin v. Hunter's Lessee, 1 Wheat. 304, 14 U. S. 351; Ames v. Kansas, 111
U. S. 449, 111 U. S. 469; Knowlton v. Moore, 178 U. S. 41, 178 U. S. 56, 178 U. S. 92; Fairbank v. United States, 181
U. S. 283, 181 U. S. 306 et seq.
[Footnote 20]
Senator George said:
"It is not a trial now that is proposed, and there has been no trial proposed save the civil and criminal actions to be
instituted and prosecuted by counsel employed under the resolution giving to the President the power to employ
counsel. We are not to try the Attorney General. He is not to go upon trial. Shall we say the legislative branch of the
government shall stickle and halt and hesitate because a man's public reputation, his public character, may suffer
because of that legislative action? Has not the Senate power to appoint a committee to investigate any department of
the government, any department supported by the Senate in part by appropriations made by the Congress? If the
Senate has the right to investigate the department, is the Senate to hesitate, is the Senate to refuse to do its duty,
merely because the public character or the public reputation of some one who is investigated may be thereby
smirched, to use the term that has been used so often in the debate? . . . It is sufficient for me to know that there are
grounds upon which I may justly base my vote for the resolution, and I am willing to leave it to the agent created by the
Senate to proceed with the investigation fearlessly upon principle, not for the purpose of trying, but for the purpose of
ascertaining facts which the Senate is entitled to have within its possession in order that it may properly function as a
legislative body."
UNITED STATES
v.
Aldo Lorenzo ICARDI.
Crim. No. 821-55.
United States District Court District of Columbia.
April 19, 1956.
*384 Oliver Gasch, U. S. Atty. for the District of Columbia, Victor C. Woerheide, Kevin Maroney, Marvin Segal, Attys.,
Dept. of Justice, Washington, D. C., for U. S.
Edward Bennett Williams, Murdaugh Stuart Madden, Agnes A. Neill, Washington, D. C., for defendant.
KEECH, District Judge.
This court now has for determination whether the Government has proved that the questions which the indictment
charges the defendant Icardi answered falsely were asked by "a competent tribunal" and whether his answers related
to a "material matter." These two facts are essential elements of the offense with which the defendant is here charged.
Hence, although matters of law for determination by the court, they must be proved by the Government like any other
essential element of the crime; and the court must grant defendant's motion to dismiss unless it finds the Government
has proved them beyond a reasonable doubt.
At the outset, the court is faced with two basic principles of law: the presumption of the validity of governmental
proceedings, and the presumption that the accused is innocent. Since the second presumption outweighs the first, the
presumption of validity must be supported by proof of the validity of the legislative proceedings and materiality of the
specific answers which defendant is alleged to have falsely given. Sinclair v. United States, 279 U.S. 263, 296, 49 S.
Ct. 268, 73 L.Ed. 692.
Considering in turn the questions of competency of the tribunal and materiality of the questions asked and
answers *385 thereto, what is the government's proof on each issue?
Under H.Res. 5, 83rd Congress, Rule XI, Sec. 3, the Committee on Armed Services was given jurisdiction of "(a) The
common defense generally," and "(b) The Department of Defense generally, including the Departments of the Army,
Navy, and Air Force generally," as well as other matters not here pertinent. Under this broad authority, as
supplemented by H.Res. 125, 83rd Congress, the Committee on Armed Services or a subcommittee thereof could
legitimately investigate whether existing law adequately covered crimes against persons or property committed
overseas by members of our armed forces, and whether the Defense Department was being efficiently administered,
and to that end to compel testimony under oath.
The fact that legislation touching on the general subject had already been enacted would not estop further
investigation as to its adequacy or investigation as to the efficiency of the administration of the military establishment.
Any conclusion which the committee or a subcommittee might reach on these questions would necessarily be founded
upon an investigation of the facts of specific cases. The Chairman of the Armed Services Committee therefore had
authority to appoint a special subcommittee to investigate a particular alleged offense, a segment of the whole picture,
as an initial step toward reaching a valid legislative judgment.
The special subcommittee described in the indictment was appointed during the 83rd Congress by the Chairman of
the Armed Services Committee by letter of March 11, 1953, addressed to Congressmen Cole and Kilday (Govt. Exhibit
9), the pertinent portions of which read:
"* * * I constitute you a Subcommittee to investigate the circumstances surrounding the disappearance and death of
Maj. William V. Hollahan (sic), while a member of the Armed Forces on assignment to the Office of Strategic Services
in the Italian Campaign of 1944 * * *. You are authorized to take such further action in the matter as, in your opinion,
the facts and legislative interest may require; and, if you shall be so advised, to render such report on your further
investigation and studies as will, in your opinion, be useful and informative to the Congress."
This subcommittee, as shown by the letter and testimony before the court, was appointed to continue the work of an
82nd Congress subcommittee appointed for the same purpose, of which Congressmen Cole and Kilday had been
members. The predecessor committee had conducted hearings on December 19, 1951, and January 9 and 10, 1952,
at which, according to the transcript of proceedings, the oral testimony received was that of Michael Stern, an
employee of Fawcett Publications and foreign correspondent of True magazine, and Henry L. Manfredi, a Treasury
Department employee formerly connected with the Army as a Chief Agent of the Criminal Investigation Division. The
subcommittee had also received statements of certain persons in Italy and of another member of Major Holohan's
OSS team, Carl LoDolce, which fixed responsibility for Major Holohan's death on Icardi and upon which the hearsay
testimony of Stern and Manfredi was apparently based in large part. As to the three alleged eye-witnesses to what
occurred at the Villa Castelnuovo on the night of December 6, 1944, each of them could have had good reason to cast
responsibility for a brutal murder on some one other than himself, and the Italian affidavits were all obtained in a
political climate such as the United States has never known. The committee also had other information from the files of
the OSS and CID, including Icardi's own statements during the investigation by military authorities of Major Holohan's
disappearance, as well as Icardi's statements before the Pennsylvania Board of *386 Law Examiners, on the radio,
and before other organizations with respect to the charges against him.
No further hearings were held by the subcommittee between January 10, 1952, and March 26, 1953. Congressman
Cole testified before this court that the delay was because the committee was awaiting the outcome of other
proceedings, namely, proceedings looking toward prosecution in Italy of Icardi and LoDolce.
On March 19, 1953, the subcommittee addressed a letter to Icardi reading in part:
"The subcommittee desires to have from you any evidence competent, relevant, or material relating to this
subject [the circumstances surrounding the death, on or about December 6, 1944, of Maj. William V. Holohan, AUS]
which you may have and may desire to offer. Your evidence * * * will be received by the subcommittee on Thursday,
March 26, 1953, at 2 o'clock in the afternoon, in the Armed Services Committee room, No. 313, Old House Office
Building, Washington, D. C.
"If you do not appear, the subcommittee must assume that it is in possession of all evidence required to form its
opinion and report, for the information of the Congress."
On March 26, 1953, Icardi appeared pursuant to the letter. Before Icardi was questioned, the chairman of the
subcommittee warned him that anything he said might be used against him in a "future proceeding or tribunal." The
subcommittee counsel informed Icardi that the subcommittee was in possession of transcripts of his prior statements
in connection with the matter.
Despite the warning, Icardi freely answered the questions put to him, substantially reiterating his former statements
concerning the disappearance of Major Holohan. Icardi was the only witness questioned at this hearing.
Thereafter, on May 19, 1953, the subcommittee heard the final witness, Col. Ralph W. Pierce, former Chief, Criminal
Branch, Provost Marshal's Office, who had conducted a polygraph or "lie-detector" test of Icardi in 1947. His testimony
concerned the conducting of the test, which was for the purpose of ascertaining whether Icardi had any knowledge of
Major Holohan's disappearance, and as the result of which Colonel Pierce, according to his recollection, had
concluded that Icardi did not kill Holohan and probably did not know who did, although he could not give a conclusive
opinion on the basis of the tests made.
Under date of July 16, 1953, the special subcommittee rendered its report, which was approved and adopted by the
full Committee on Armed Services July 24, 1953. (Government Exhibit 10.)
As counsel for the government has very properly pointed out to the court, the legislative purpose of the
subcommittee's investigation must be gleaned from the evidence before the court, namely, the documents introduced
in evidence, the resolutions relating to its appointment and powers, the transcript of the hearings held by it, the
subcommittee's letter to Icardi, the report of the subcommittee, and the testimony at this trial of the Chairman of the
Armed Services Committee and the chairman of the special subcommittee.
Buttressed by the presumption of validity, the evidence warrants a finding that the special subcommittee was validly
constituted by the Chairman of the Armed Services Committee, and that the subject matter confided to the
subcommittee for investigation was relevant to a twofold valid legislative purpose, namely, inquiry as to (1) whether
existing laws were adequate to provide for prosecution of crimes committed by former service personnel while serving
overseas, and (2) whether the Department of Defense was functioning efficiently. The interpretation which the
subcommittee placed upon its authority and the purpose for which the hearings were actually conducted, particularly
the *387 hearing at which the defendant Icardi testified, present a different and more difficult question.
The transcript of testimony indicates that, at the outset, the inquiry was directed primarily to the issue of the guilt or
innocence of Icardi and the other members or aides of the OSS team of the murder of Major Holohan and the robbery
of his body, Icardi's alleged embezzlement of government funds, and incidentally the investigation which had been
made thereof. As heretofore stated, the only witnesses who testified before the subcommittee were Stern, Manfredi,
Icardi, and Colonel Pierce. The affidavits of LoDolce and the persons in Italy complete the transcript of the hearings
before the subcommittee. The only real testimony with respect to the conduct of the military investigation into Major
Holohan's disappearance came from Manfredi, no longer connected with the Defense Department, and from Colonel
Pierce. It is significant to the court, on the issue of the legislative purpose of the subcommittee's investigation, that no
other witnesses were interrogated as to the Defense Department's conduct of its investigation before or after the
discovery of the Major's body or the steps the Department had taken to press charges after its investigation.
Turning to the report of the special subcommittee, it states in terms:
"The inquiry by the special subcommittee was concerned, primarily with whether or not a crime had been committed;
whether prosecution was possible; in what jurisdiction it would lie whether military, civilian, or Italian authority; and
whether the Federal statutes were inadequate in any respect or had been improperly administered by the Army."
There follows a Statement of Facts, approximately four pages of which state as facts the details of Icardi's animosity
for Major Holohan, Icardi's threats against the Major, the murder of Major Holohan by Icardi and LoDolce, and their
concealment of the crime, as well as Icardi's embezzlement of government funds, all as related in the hearsay
evidence before the subcommittee. The remainder of this statement of facts, which deals with investigations of the
disappearance, proceedings against Icardi and LoDolce, and publicity in the press, and summarizes the testimony
before the committee, both oral and documentary, is in the nature of a valid committee report on a subject within its
jurisdiction, although statements in this portion are tainted by the subcommittee's own prior adjudication of Icardi's
guilt. For example, the report (p. 11) states "at the time of this hearing [before the Allegheny County Board of Law
Examiners], Icardi related the false version concerning Holohan's disappearance," and again (p. 12), referring to
Icardi's testimony before the subcommittee, "His story in part was identical to the one given by witnesses in Italy and
the United States except for the true facts concerning Holohan's murder and disappearance."
There follows a Review of the Evidence, which refers to Icardi as "the accused" and reiterates "the emphasis in this
case has always been upon the most dramatic aspect, the murder, jurisdiction as to which has been lost to Army
courts martial by the severance of accused from the service." This section reviews the probabilities of convicting Icardi
or Lo-Dolce on any charge under existing law.
There is a question as to the propriety of the report's Conclusions, which state there is "probable cause" for charging
Icardi and LoDolce with murder and embezzlement, but that they are not subject to prosecution under existing civil law
or under the Uniform Code of Military Justice. The use of this language indicates the functioning of the subcommittee
as a committing magistrate. As to the report's final Recommendations, which suggest that legislative amendments to
the Federal Criminal Code be recommended to the Judiciary Committee, the court finds this portion of the
subcommittee's report was an exercise *388 of a bona fide legislative function. The validity of this latter
recommendation, however, cannot cure the invalidity of the subcommittee's adjudication of crime contained in the
report's Statement of Facts.
Although the subcommittee's report was made after Icardi's testimony, its contents are relevant to show that body's
conception and exercise of its authority and functions.
Chairman Cole testified that the subcommittee already had in its possession sufficient information on which to base its
report to the Congress, including Icardi's prior statements on many occasions, and that the purpose of asking Icardi's
appearance before the subcommittee was to give him an opportunity to tell his side of the story. Chairman Cole further
testified that, to the best of his recollection, before asking Icardi to testify, he discussed with his colleague and counsel
for the subcommittee the calling of Icardi, putting him under oath, and the possibility of a perjury indictment as the
result of Icardi's testimony. It is unnecessary for the court to determine for which purpose Icardi's testimony was sought
or obtained, since neither affording an individual a forum in which to protest his innocence nor extracting testimony
with a view to a perjury prosecution, is a valid legislative purpose.
This court does not hold that the mere fact that a committee has in its possession a prior statement of an individual is a
bar to the committee's compelling his testimony on the same subject, even though it be merely
cumulative, provided such testimony is obtained by the committee for a legislative purpose within its jurisdiction. The
court does hold that if the committee is not pursuing a bona fide legislative purpose when it secures the testimony of
any witness, it is not acting as a "competent tribunal", even though that very testimony be relevant to a matter which
could be the subject of a valid legislative investigation.
While a committee or subcommittee of the Congress has the right to inquire whether there is a likelihood that a crime
has been committed touching upon a field within its general jurisdiction and also to ascertain whether an executive
department charged with the prosecution of such crime has acted properly, this authority cannot be extended to
sanction a legislative trial and conviction of the individual toward whom the evidence points the finger of suspicion.
On the basis of all the evidence before it, the court therefore finds, as a matter of law, that at the time the
subcommittee questioned the defendant Icardi it was not functioning as a competent tribunal.
Assuming, however, that the subcommittee was functioning as a competent tribunal when Icardi gave the testimony
upon which the indictment is based, the court holds, as a matter of law, that the false answers defendant is charged
with having given did not relate to a "material matter."
As stated in Fraser v. United States, 6 Cir., 145 F.2d 145, 149, certiorari denied 324 U.S. 842, 65 S. Ct. 586, 89 L. Ed.
1403, the test of materiality is whether the false testimony was capable of influencing the tribunal on the issue before
it.
When a committee of Congress is engaged in a legitimate legislative inquiry and the questions propounded are
relevant and material to that inquiry, the courts will not question the motives of the questioners. Eisler v. United States,
83 U.S.App.D.C. 315, 170 F.2d 273, 278, 279. And the fact that a crime may be disclosed by the answer does not
make a question immaterial. McGrain v. Daugherty, 273 U.S. 135, 136, 47 S. Ct. 319, 71 L.Ed. 580. There are,
however, limitations upon the investigative power of the legislature which must be considered in any determination of
materiality. The investigation must be to aid in legislation. McGrain v. Daugherty, supra, 273 U.S. at *389 page 178, 47
S. Ct. 319. "Similarly, the power to investigate must not be confused with any of the powers of law enforcement; those
powers are assigned under our Constitution to the Executive and the Judiciary." Quinn v. United States, 349 U.S. 155,
161, 75 S. Ct. 668, 672, 99 L.Ed. 964.
It is relevant to this issue also that when Icardi was questioned the hearings had been reconvened after a lapse of
fourteen months; that before Icardi was summoned the subcommittee had all the information necessary on which to
base its report, including Icardi's version of the incident; and that although it has been testified that Icardi was invited to
appear in order to give him a forum in which to tell his side of the story of Major Holohan's disappearance, before that
invitation was sent the chairman had discussed with his colleague and the subcommittee counsel the possibility of
indicting Icardi for perjury, if under oath he should adhere to his former statements. When Icardi received the
subcommittee's letter "inviting" him to testify before it, he was asked to appear on peril of the subcommittee's finding
him guilty of murder, robbery, and embezzlement, if he should fail to comply.
The subcommittee must have known that if Icardi appeared before it his testimony could fall within one of three
categories: (1) he could confess guilt; (2) he could stand on his constitutional privilege against self-incrimination, which
would have the same effect upon the subcommittee's conclusions as if he had confessed guilt; and (3) he could repeat
his denial of guilt, as given in all the previous statements in the possession of the subcommittee.
The facts sought to be elicited by the questions which are the subject of this indictment all dealt with the issue of
Icardi's guilt of the crimes with which he had been charged. The court has not overlooked the Government's argument
that the matters sought to be elicited by these six questions were material because, if Icardi had impressed the
subcommittee with his credibility and had produced substantial corroborative evidence, the subcommittee might have
concluded that he was innocent. In the face of the evidence that, as of the time he was questioned, Icardi's answers
could have no effect upon the subcommittee's conclusions in the field of legitimate congressional investigation, this
slim conjecture cannot support a finding by this court, as a matter of law, that Icardi's answers related to a material
matter. Whether Icardi denied or confessed guilt by his answers, his testimony could not have influenced the
subcommittee's conclusion on subjects which might be legitimately under investigation, namely, whether existing law
adequately covered the prosecution of crimes committed under the circumstances of the specific charge under
investigation, and whether the Defense Department had functioned adequately in its investigation of the Holohan
disappearance.
Therefore, under the test set forth in the Fraser case, the court holds as a matter of law that the alleged false answers
by Icardi were not material to the subcommittee's authorized investigation.
Counsel for the government has suggested that frequently individuals are adjudged guilty of an offense by a
congressional committee in the exercise of its functions. This court doubts the accuracy of such statement; but, if it be
true, such practice should not be condoned, as it denies to the accused the constitutional safeguards of judicial trial.
For the foregoing reasons the defendant's motion to dismiss which I believe under the new rules I must treat as a
motion for judgment of acquittal must be granted.
I shall ask the Marshal to call in the jury and I shall direct a verdict of acquittal for the defendant.
U.S. Court of Appeals for the Third Circuit - 207 F.2d 148 (3d Cir. 1953)
Argued February 2, 1953
Decided September 18, 1953
COPYRIGHT MATERIAL OMITTED William E. Leahy, Washington, D. C. (Edward I. Feinberg, Atlantic City, N. J.,
William J. Hughes, Jr., Washington, D. C., on the brief), for appellant.
Grover C. Richman, Jr., U. S. Atty., Newark, N. J. (Alexander Feinberg, Asst. U. S. Atty., Camden, N. J., on the brief),
for appellee.
Before BIGGS, Chief Judge, and GOODRICH and KALODNER, Circuit Judges.
BIGGS, Chief Judge.
This is an appeal from a conviction for contempt of a Subcommittee of the United States Senate's Special Committee
to Investigate Organized Crime in Interstate Commerce.1
It is desirable in this case to make a detailed statement of the circumstances so that the reader may not only perceive
the operative facts but also may be aware of the background of the case. On July 3, 1951, the Subcommittee caused a
subpoena to be issued commanding the defendant Orman to "produce all your records, papers, statements and
documents concerning business, employment and financial transactions and a copy of your income tax returns for the
years 1947, 1948, 1949 and 1950." Orman appeared before the Subcommittee on July 6, 1951, with the required
copies of the tax returns; he produced no other records prior to 1951 for he had destroyed them after making his tax
returns. At the hearing on July 6 it developed that Orman was keeping a book containing notes of his business
transactions for 1951. Mr. Lane, of counsel for the Subcommittee, expressed his desire to see this book, and Senator
Hunt formally stated: "The acting chairman of the subcommittee directs the witness, Mr. Orman, to produce his book
containing the records of his business transactions for the year 1951."
On the following day, July 7, 1951, Orman brought the book before the Subcommittee. He apparently handed the book
to Mr. Lane, but retrieved it almost immediately to assist in explaining the entries. Orman then refused to read from the
book anything except the gross amounts of his 1951 income. He said: "I do not want this to be made public. I think this
is my own personal business. This record is going to be made public and a lot of statements will be made like in
yesterday's paper. Some of them do not mean anything."
Counsel asked: "Will you let me have the book?"
Orman replied: "No. I do not think I will let you have the book unless I know my business is not going to be made
public. I think I am entitled to that courtesy."
Senator Hunt then directed Orman to read the entries, warning him that he might be in contempt of the Subcommittee
if he refused. Orman said that the entries did not "mean a thing" and he declined to read the entries or to deliver the
book to the Subcommittee.
On July 10, 1951, a second subpoena was issued commanding Orman to appear before the Subcommittee on July 17,
1951, and specifically directing him to produce his 1951 book of financial transactions. Orman again brought the book
to the hearing, but when Mr. Moser, Chief Counsel to the Committee, asked him "Will you please produce that book?",
he replied "No; I will not." Mr. Moser asked: "And why do you refuse to show it to the committee?" Orman replied:
"Because I do not want it to become public property, to be given to the newspapers. That is my personal business."
Counsel then inquired: "Is it giving it to the newspapers to give it to us?" and Orman replied: "I think so." Counsel for
the Subcommittee then asked: "You do?" Orman replied: "Yes." The Committee's counsel then inquired: "You refuse to
produce it before this closed session of the committee on that ground?" Orman stated: "Unless I have an assurance
that it will not be given to the newspapers. I must be assured of that first. First of all, this is not pertinent to this
investigation, as far as I could determine, but I was very nice and gracious enough to sit through two and a half hours
of my income taxes, which I think have nothing to do with this investigation, as far as crime and what this investigation
is headed under. I had nothing to do with that. I sat here and tried to be very helpful. * * *"
The colloquy went on. Counsel asked: "Will you please let me see the book?" Orman replied: "I will let you see the
book." Counsel said: "Then please do so." Orman asked: "Is it not going to be read into the record?" Counsel said: "I
am not going to decide now whether it will go into the record. If it is material, it will certainly go into the record." Orman
then said: "I refuse to give you the book." Counsel asked: "You refuse to give me the book on the sole ground of your
not wanting to go into the record?", and Orman replied: "I don't care about it going into the record." Counsel then said:
"I want an exact statement of the ground for refusing to show us the book." Orman replied: "I don't want the contents of
this book to be published in the newspapers and made public property as there have been some other statements
made before about myself. I do not know by whom. I am in business in this town."
On the same day, July 17, 1951, the following colloquy also took place:
Counsel for the Subcommittee asked: "You borrowed $25,000 [in December, 1950]?" Orman said: "That is right."
Counsel asked: "From whom did you borrow that?", and Orman replied: "From a friend of mine." Mr. Moser inquired:
"What is his name?" Orman said: "I cannot tell you." Counsel asked: "You do not know?" Orman said: "I won't tell you;
no." The inquiry was then made: "Why?" Orman simply stated: "I don't want to tell you." Counsel said: "You refuse to
answer? On what ground?", and Orman replied: "It is my personal affairs." Counsel then said: "You just refuse to
answer?" Orman replied: "That is right. It is my personal affairs." Counsel then asked: "Under that you are running the
risk of a charge of contempt if you refuse to answer that, do you know?" Orman said: "I do, sir." Counsel finally asked:
"You still refuse to answer?" Orman replied: "I do, sir."
On September 18, 1951, the Special Committee to Investigate Organized Crime in Interstate Commerce submitted a
report to the Senate describing the above proceedings and included a resolution that the United States Attorney for the
District of New Jersey should be required to proceed against Orman in the manner prescribed by law. This resolution
was adopted and became Senate Resolution 211, dated October 1, 1951. 2
Orman was then indicted on four counts for violation of Section 192, Title 2, U.S.C.A. 3 Count 1 charged that Orman on
July 7, 1951, "* * * wilfully made default in that he refused to turn over his 1951 book of accounts pertaining to his
income, which records were pertinent to the matter under inquiry by the * * * Committee." Count 2 made an identical
charge relating to Orman's refusal to let the Subcommittee have the book on July 17, 1951. Count 3 further charged
that Orman on July 17, 1951, "* * * refused to answer the following question pursuant to the Committee seeking to
ascertain from whom the defendant Herman Orman had borrowed certain sums of money, which question was
pertinent to the question under inquiry by the * * * Committee: `What is his name?'" Count 4 made an identical charge
relating to the Subcommittee's similar directive on the same date: "Mr. Orman, the acting chairman directs you to
answer the question asked you by the counsel."
At the trial the jury returned a verdict of guilty on each count of the indictment. The court below sentenced Orman to
twelve months imprisonment on Counts 1 and 3, the terms to run concurrently, and to a suspended sentence and one
year's probation on Counts 2 and 4, the probationary periods to run concurrently but commencing at the expiration of
the sentences imposed on Counts 1 and 3.
On this appeal Orman contends broadly that under all the circumstances his refusal to disclose the items in his 1951
book of accounts did not constitute a willful default within the indictment and the statute. He also argues that it was not
pertinent to the investigation undertaken by the Senate Crime Committee either to demand his 1951 book of accounts
or to ask the name of the person from whom he had borrowed the $25,000. We will discuss these contentions.
Orman challenges the pertinency of the book and of the name of the person who loaned him $25,000. Specifically, Orman does not contend here that the Senate Special Committee to Investigate Organized Crime in Interstate
Orman claims error in the trial court's view of the law set out in the following portion of the charge to the jury: Commerce was gathering material for unconstitutional legislative purposes. Such a contention could not succeed. See
U.S. Const. Art. 1, 8; United States v. Di Carol, D.C.N.D. Ohio 1952, 102 F. Supp. 597. Contrast Rumely v. United
States, supra. He does challenge the pertinency of the inquiries made of him to the Committee's grant of authority.
"In that particular respect, ladies and gentlemen, there has been argument here as to whether or not it was pertinent to
This authority is set forth in Senate Resolution 202, 81st Cong., 2nd Sess. (May 3, 1950), creating the Committee and
the committee where the defendant actually got the $25,000. And there has likewise been argument here as to
directing it: "* * * to make a full and complete study and investigation of whether organized crime utilizes the facilities of
whether or not it was pertinent to the committee what was in the book. That is not the question, in my estimation. The
interstate commerce or otherwise operates in interstate commerce in furtherance of any transactions which are in
question is, could it have been pertinent to this Senate inquiring committee in July of 1951; could it have been
violation of the law of the United States or of the State in which the transactions occur, and, if so, the manner and
pertinent to such inquiry where Mr. Orman got the $25,000. If it could have been pertinent, they were entitled to an
extent to which, and the identity of the persons, firms or corporations by which such utilization is being made, what
answer. If it could have been pertinent to such inquiry at that time what information would be disclosed in the book,
facilities are being used, and whether or not organized crime utilizes such interstate facilities or otherwise operates in
then they were entitled to have the book at that time. And you and I are not to pass now upon the information disclosed
interstate commerce for the development of corrupting influences in violation of law of the United States or the laws of
in either the book or the information disclosed in the court room of where he got the money. It's a question could it
any State * * *."
have been pertinent at the time the question was propounded by the Senate in their inquiry."

Orman contends that the United States has not sustained the burden of proof required of it that the contents of his
Acting consistently with this view, the trial court had excluded all evidence of the actual contents of the book and of the
1951 book of accounts and the name of the person who loaned him $25,000 were pertinent to this investigation of
name of the man who loaned Orman $25,000. Orman contends that this exclusion was erroneous. Orman also argues
interstate crime.
that since the question of pertinency was one of law, it was error for the trial court to submit this question to the jury.
His view is that as a matter of law, taking into consideration the contents of the book and the name of the lender, the
requirement of pertinency was not met. We conclude first that the trial court's charge to the jury on the question of pertinency was a correct statement of the
law. As the trial court stated during the trial, "* * * the question is: was the question and the possible answer pertinent
at that time to the [Committee's] inquiry?" (Emphasis added.) This of course applies equally to the request to disclose
Pertinency under Section 192 has been much discussed in the cases. "Pertinent," as used to describe a requisite for
the entries in the 1951 book of accounts. Orman, however, prepared his defense on the assumption that the actual
valid congressional inquiry, means "pertinent to a subject matter properly under inquiry, not generally pertinent to the
contents of the book and the name of the person who loaned him $25,000 were evidence to be considered in
person under interrogation." Rumely v. United States, 1952, 90 U.S.App.D.C. 382, 197 F.2d 166, 177, affirmed,
determining pertinency. This assumption was wrong. Under Section 192 it is the question which must be pertinent.
1953, 345 U.S. 41, 73 S. Ct. 543. Because of the scope and purpose of congressional investigations, pertinency in this
Marshall v. United States, supra; see Sinclair v. United States, supra, 279 U.S. at pages 296-297, 49 S. Ct. at pages
context is necessarily broader than relevancy in the law of evidence. "A legislative inquiry may be as broad, as
272-273; United States ex rel. Cunningham v. Barry, 3 Cir., 1928, 29 F.2d 817, reversed on other grounds, 1929, 279
searching, and as exhaustive as is necessary to make effective the constitutional powers of Congress. * * * A judicial
U.S. 597, 49 S. Ct. 452, 73 L. Ed. 867. An innocent, true answer does not destroy the pertinency of the question. It
inquiry relates to a case, and the evidence to be admissible must be measured by the narrow limits of the pleadings. A
was therefore not erroneous for the trial court to keep Orman's evidence from the jury, even assuming that this
legislative inquiry anticipates all possible cases which may arise thereunder and the evidence admissible must be
evidence disclosed no criminal conduct related to the inquiry into interstate crime.
responsive to the scope of the inquiry, which generally is very broad." Townsend v. United States, 68 App.D.C. 223, 95
F.2d 352, 361, certiorari denied, 1938, 303 U.S. 664, 58 S. Ct. 830, 82 L. Ed. 1121.
This does not mean that a congressional committee possesses the power to examine private citizens indiscriminately
in the mere hope of stumbling upon valuable information and to cite them for contempt if they refuse to answer. Where,
As indicated in these definitions, two separate elements must appear before pertinency is established: (1) that the
as in the instant case, the questions asked and the documents requested, are not clearly pertinent on their faces to the
material sought or answers requested related to a legislative purpose which Congress could constitutionally entertain;
committee's authorized investigation, the United States in a contempt proceeding must prove by other evidence the
Kilbourn v. Thompson, 1880, 103 U.S. 168, 26 L. Ed. 377; McGrain v. Daugherty, 1927, 273 U.S. 135, 173, 47 S. Ct.
relation of the questions, the documents and the particular witness to the investigation. Bowers v. United States, supra.
319, 71 L. Ed. 580; Barsky v. United States, 83 U.S.App.D.C. 127, 167 F.2d 241, certiorari denied, 1948, 334 U.S. 843,
We think the United States introduced adequate evidence to enable the jury to find that the inquiries made of Orman
68 S. Ct. 1511, 92 L. Ed. 1767, rehearing denied, 1950, 339 U.S. 971, 70 S. Ct. 1001, 94 L. Ed. 1379; and (2) that
were pertinent. The principal witness for the prosecution was Mr. Moser, who was, as we have said, Chief Counsel to
such material or answers fell within the grant of authority actually made by Congress to the investigating committee;
the Committee at the time of Orman's interrogation. He testified that Orman was selected to appear because of
Bowers v. United States, D.C. Cir., 202 F.2d 447; Rumely v. United States, supra. Although Section 192 does not use
information received by the Committee in the course of their investigations in Atlantic City, Orman's place of residence.
the word "pertinent" in referring to the production of papers, both of the elements referred to are required in
This in itself was insufficient to prove pertinency but it is some evidence why it was reasonable for the Committee to
establishing contempt for refusal to produce papers as well as for refusal to answer questions. Marshall v. United
summon Orman. The United States also introduced in evidence the transcript of Orman's testimony before the
States, 1949, 85 U.S. App.D.C. 184, 176 F.2d 473, certiorari denied, 339 U.S. 933, 70 S. Ct. 663, 94 L. Ed. 1352,
Committee on July 6, 7 and 17, 1951. At numerous places in that testimony Orman himself admitted that he had
rehearing denied, 1950, 339 U.S. 959, 70 S. Ct. 976, 94 L. Ed. 1369. The trial court's charge in the instant case
received substantial portions of his income for recent years from gambling.
reflects this view.

It has also been said by the Supreme Court that a witness before a congressional committee is bound to judge rightly
as to pertinency. His honest mistake of law is no defense. Sinclair v. United States, 1929, 279 U.S. 263, 299, 49 S. Ct.
268, 73 L. Ed. 692. But since a conviction for contempt may be had only for refusal to respond to pertinent inquiries,
pertinency is an element of the offense to be proved, and the burden of proof is on the United States. Bowers v. United
States, supra; see Sinclair v. United States, supra, 279 U.S. at pages 296-297, 49 S. Ct. at page 272-273. It is for this
reason that a defendant cannot be held to have waived his objection to the pertinency of an investigating committee's
inquiries. In the instant case it is therefore immaterial that Orman did not explicitly raise this objection at each hearing
he attended.
Orman's counsel at the trial made no attempt to deny this, stating: "I don't say he is not a gambler but, I say, that is not
his principal business." The Court replied: "Well, aren't we arguing about a distinction without a difference."
This, taken in conjunction with the Committee's knowledge of the methods of operation of gamblers over state lines, 4
made it pertinent for the Committee to inquire further into the items and sources of Orman's income. Orman's objection
to the relevancy of this testimony was properly overruled. The trial court charged the jury that this evidence was
received "so that you * * * [can] determine from all of the information that the Committee had obtained from Mr. Orman
at that time whether or not the book might contain pertinent information to the inquiry before the Senate, whether the
answer to the question `Where did you get the $25,000 and from whom did you get it' might be pertinent to the Senate
in its inquiry under question."
We approve this charge. It was certainly pertinent under the circumstances for the Committee to seek facts which
might show whether Orman was linked with unlawful interstate gambling. Although his responses might have proved
that he was not, it was not his right to deny this knowledge to the Committee.
In Bowers v. United States, supra, somewhat similar questions asked a witness by this same Committee were held not
pertinent to the Committee's investigation in a unanimous decision by the United States Court of Appeals for the
District of Columbia. The distinction from the instant case, however, is that in the Bowers case the United States failed
to produce sufficient evidence to prove the pertinency of questions not prima facie pertinent. Cf. also United States ex
rel. Cunningham v. Barry, supra. Orman here might well have been justified in refusing to answer many of the early
questions asked him for example, those relating to his employment as a teenager but once he admitted
substantial income from gambling, the more detailed inquiries now before us became pertinent.
Orman also contends that pertinency is a question of law and as such may not be submitted to the jury. Courts have
said that the question is one of law. Sinclair v. United States, supra, 279 U.S. at page 298, 49 S. Ct. at page 273;
Morford v. United States, 1949, 85 U.S.App.D.C. 172, 176 F.2d 54, 57, reversed on other grounds, 1950, 339 U.S.
258, 70 S. Ct. 586, 94 L. Ed. 815. But in Sinclair the Supreme Court explained that the "question of pertinency * * *
was rightly decided by the court as one of law. It did not depend upon the probative value of evidence." (Emphasis
added.) In the instant case, however, evidence aliunde was introduced to prove pertinency. The weight and probative
value of this evidence was for the jury, particularly since pertinency was an element of the criminal offense. We
conclude that in this situation the trial court, taking the evidence as true, retains the power to decide that pertinency
has not been established. But if the court concludes that pertinency has been proven, it is proper for it so to rule and
then to submit the question and the evidence to the jury under appropriate instructions. This in substance is what the
court below did.5
The court below interpreted rightly the law concerning pertinency. It could be urged that the language of Counts 1 and
2 of the indictment alleging "which records were pertinent to the matter under inquiry by the * * * Committee"
(Emphasis added), was at variance from the correct view that the single issue for determination at the trial was
whether the demand made for the production of records was pertinent to the matter under inquiry by the Committee.
As we have stated it is immaterial that the contents of the book might prove eventually to lack pertinency to the matter
under inquiry. The book was "pertinent" in the sense that it was the kind of record which under all the circumstances
could be and was properly called for by the Committee. As we have said, its pertinency did not depend on its contents.
Once it was established by the evidence that the demand made for Orman's book was pertinent and that he had
refused compliance with this demand he could be found guilty of contempt. 6
But another view properly may be taken of the allegations in Counts 1 and 2 that the "records were pertinent." These
allegations can well be treated as surplusage and for this reason the United States did not have to prove them. See
Hall v. United States, 1898, 168 U.S. 632, 18 S. Ct. 237, 42 L. Ed. 607, and Hagner v. United States, 1932, 285 U.S.
427, 431, 52 S. Ct. 417, 419, 76 L. Ed. 861. In the latter case the Supreme Court stated: "The rigor of old common law
rules of criminal pleading has yielded, in modern practice, to the general principle that formal defects, not prejudicial,
will be disregarded. The true test of the sufficiency of an indictment is not whether it could have been made more
definite and certain, but whether it contains the elements of the offense intended to be charged, `and sufficiently
apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against
him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or
conviction.'" The principles stated were reaffirmed in Berger v. United States, 1935, 295 U.S. 78, 82, 55 S. Ct. 629, 79
L. Ed. 1314. We applied them in United States v. Angelo, 3 Cir., 1946, 153 F.2d 247, 250. Cf. United States v. Di Carlo,
supra, 102 F. Supp. at page 601.
Finally on this aspect of the case, the record is devoid of any indication that Orman was prejudiced by reason of the
allegations referred to. He has asserted no error in respect to them and made no objection to the indictment on this
ground.
Orman also suggests that the Committee went beyond the scope of any contemplated legislation and assumed the
functions of a grand jury. Cf. Kilbourn v. Thompson, supra. But when the general subject of investigation is one
concerning which Congress can legislate, and when the information sought might aid the congressional consideration,
a legitimate legislative purpose must be presumed. See Morford v. United States, supra, and McGrain v. Daugherty,
supra, 273 U.S. at page 178, 47 S. Ct. at page 330. The motives of the individual members of the Committee may not
be impugned. United States v. Josephson, 2 Cir. 1947, 165 F.2d 82, certiorari denied, 333 U.S. 838, 68 S. Ct. 609, 92
L. Ed. 1122 rehearing denied, 1948, 333 U.S. 858, 68 S. Ct. 731, 92 L. Ed. 1138; Eisler v. United States, 83
U.S.App.D.C. 315, 170 F.2d 273, certiorari granted, 1948, 335 U.S. 857, 69 S. Ct. 130, 93 L. Ed. 404, certiorari
dismissed, 1949, 338 U.S. 883, 70 S. Ct. 181, 94 L. Ed. 542.
We come now to Orman's contention that it was his right to refuse to respond to the inquiries made by the Committee
unless the Committee agreed not to publicize the information he would give them. As the Supreme Court in Sinclair v.
United States, supra, 279 U.S. at page 292, 49 S. Ct. at page 271, has so cogently said: "It has always been
recognized in this country, and it is well to remember, that few if any of the rights of the people guarded by
fundamental law are of greater importance to their happiness and safety than the right to be exempt from all
unauthorized, arbitrary or unreasonable inquiries and disclosures in respect of their personal and private affairs."
Moreover, to "compel an individual to produce evidence, under penalties if he refuses, is in effect a search and
seizure, and, unless confined to proper limits, violates his constitutional right to immunity in that regard. Boyd v. United
States, [1886], 116 U.S. 616, 621-622, 6 S. Ct. 524, 29 L. Ed. 746." Annenberg v. Roberts, 1938, 333 Pa. 203, 213, 2
A.2d 612, 617. See Zimmermann v. Wilson, 3 Cir., 1936, 81 F.2d 847, 849; Id., 3 Cir. 1939, 105 F.2d 583.
On the other hand, there can be no question of the power of Congress to undertake fact-finding inquiries in aid of
legislation. McGrain v. Daugherty, supra. This necessitates some curtailment of the individual's right to be let alone,
just as the efficient exercise of judicial power imposes upon private citizens a duty to submit their conduct to its
scrutiny. See Landis, Constitutional Limitations on the Congressional Power of Investigation, 40 Harv. L. Rev. 153, 219
(1926). Indeed, Section 193, Title 2, U.S.C.A., recognizes that "No witness is privileged to refuse to testify to any fact,
or to produce any paper, respecting which he shall be examined by either House of Congress, or by any committee of
either House, upon the ground that his testimony to such fact or his production of such paper may tend to disgrace him
or otherwise render him infamous." The individual must rely, for the protection of his privacy, upon the requirements of
pertinency discussed above. Where a congressional investigation enters a field to which the First Amendment is
applicable, courts will be particularly careful to check unlawful lines of inquiry. Rumely v. United States, supra. But
even here it must be remembered that "the right of free speech is not absolute but must yield to national interests
justifiably thought to be of larger importance. The same is true of the right to remain silent. When legislating to avert
what it believes to be a threat of substantive evil to national welfare, Congress may abridge either freedom." 7 See
Lawson v. United States, 1949, 85 U.S.App.D.C. 167, 176 F.2d 49, 52, certiorari denied, 339 U.S. 934, 70 S. Ct. 663,
94 L. Ed. 1352, rehearing denied, 1950, 339 U.S. 972, 70 S. Ct. 994, 94 L. Ed. 1379. Similarly under the Fourth
Amendment: it is only "unreasonable" searches and seizures which are prohibited. See Zimmermann v. Wilson, supra.
It appears, therefore, that there is in law no absolute right of privacy apart from these familiar protections. See Barsky
v. United States, supra.
As shown above, the Committee had reason to investigate Orman as it did. Cf. Marshall v. United States, supra. There
could be no doubt in Orman's mind as to what information the Committee desired, or the general purpose for which the
Committee had been appointed. Therefore Orman is in error in claiming a violation of his right under the Fourth and
Fifth Amendments8 and of his "right of privacy" vis a vis the Committee.
There is, however, another aspect to Orman's refusals to cooperate with the Committee. As we read his testimony, his
refusals were not absolute claims of right to conceal information from the Committee. He stated his willingness that the
Committee should have his information provided it was not given to the public. As he testified, he was in business in
Atlantic City and was therefore unwilling that the public should have access to his financial records particularly since,
in his view, there was nothing in these records which could help the Committee. The condition which he sought to
impose upon his responses to the Committee's inquiries seemed reasonable to him. This raises a problem quite unlike
that raised by an outright refusal to give information to the Committee under any circumstances.
In general a witness before a congressional committee must abide by the committee's procedures and has no right to
vary them or to impose conditions upon his willingness to testify. Eisler v. United States, supra; United States v.
Costello, 2 Cir., 198 F.2d 200, certiorari denied, 1952, 344 U.S. 874, 73 S. Ct. 166. It has been held, however, that
witnesses before the Senate Crime Committee properly refused to testify in a hearing room filled with television and
newsreel cameras, news photographers with flashbulbs, radio microphones and a large crowd of spectators. United
States v. Kleinman, D.D.C. 1952, 107 F. Supp. 407, 408. Like Orman, the witnesses in Kleinman objected that their
constitutional rights would be violated by being compelled to testify under circumstances of such publicity. But the
court in Kleinman sustained their objection on the ground that the atmosphere of the hearing room was calculated
"necessarily so to disturb and distract any witness to the point that he might say today something that next week he
will realize was erroneous." The court further reasoned: "The only reason for having a witness on the stand, either
before a committee of Congress or before a court, is to get a thoughtful, calm, considered and, it is to be hoped,
truthful disclosure of facts. That is not always accomplished, even under the best of circumstances. But at least the
atmosphere of the forum should lend itself to that end." The court noted that its decision was without precedent.
We think the Kleinman case is not persuasive here. Orman's testimony was given at a closed session of the
Committee. There were no distracting circumstances alleged which might have jeopardized the accuracy and
truthfulness of his answers. Orman simply feared that following the hearings of July 7 and 17, 1951, his testimony
would be given to the newspapers, as it apparently had been at the close of the session on July 6, 1951. We cannot
see that this fear would affect his ability to give the information requested. It would certainly have nothing to do with his
ability to produce his 1951 book of accounts.
Orman insists upon his right to make what was called a "closed" session of the Committee, a closed session in fact.
He urges the court to take judicial notice of the purpose of the Committee to obtain maximum publicity for all its
hearings, regardless of the nature of the information received. This brings before us the question of the extent to which
a court can and should regulate the procedures of a lawful congressional committee making pertinent inquiries. As we
have said, the individual motives of the members of such a committee cannot be impugned. On the other hand, there
is much to be said for a cooperating witness' right to demand that information which cannot aid the committee in its
legislative purpose be withheld from the public. We conclude, however, that this is a matter for legislative rather than
judicial control. Unless a court were to receive the entire record of a committee's hearings, it would be almost
impossible to tell which items of testimony should properly be included in the committee's report to Congress, or
otherwise publicized, and which should not. It might well be proper for the committee to report, over the objection of
the witness to this publicity, that certain persons, previously suspected, were not connected with the matters
investigated, and to give reasons for this conclusion. The Senate Crime Committee was authorized to ascertain the
identity of persons using the facilities of interstate commerce in furtherance of criminal activities. Orman cannot be
permitted to prevent the Committee from reporting its investigation of him, and including his testimony in its report.
The Committee was entitled to refuse to accept Orman's condition before it knew what information Orman had to give.
As we have said, this is not a case where the inquiries themselves were not pertinent. Perhaps it would be desirable
for Congress to limit the newspaper and television publicity given to the testimony of witnesses we believe that in
some investigations this has been the practice but in accord with the Eisler and Costello cases, supra, we hold that
a court will not enforce a condition imposed upon committee procedure by a witness, at least where no circumstances
appear which might affect the ability of the witness to give clear and truthful testimony.
We conclude therefore that Orman's refusal to identify the source of the $25,000 loan was deliberate and intentional. 9
His claim of a right of privacy was no justification under the circumstances at bar.
One problem remains, which we raise of our own accord, for it is not set out in Orman's grounds for appeal. The court
below imposed a twelve months sentence on Counts 1 and 3, the terms to run concurrently, and suspending
imposition of sentence on Counts 2 and 4, placed Orman on probation for one year, the terms of probation to run
concurrently, and to commence at the expiration of the sentences imposed on Counts 1 and 3. The statute under
which Orman was tried and was found guilty is set out in note 3, supra. It provides for punishment both by fine and
imprisonment but specifies that the imprisonment shall not be less than one month nor more than twelve months.
We must now consider whether there was not a multiplying of penalties by the sentences imposed for what are not in
substance more than two separate contempts. Where there are separate refusals to produce documents or to answer
separate questions it is proper for each refusal to be set forth in a separate count of the indictment. United States v.
Emspak, D.D.C. 1950, 95 F. Supp. 1012. But where the separate questions seek to establish but a single fact, or relate
to but a single subject of inquiry, only one penalty for contempt may be imposed. See United States v. Yukio Abe,
D.C.Hawaii 1951, 95 F. Supp. 991, 992. Cf. Trumbo v. United States, 1949, 85 U.S.App.D.C. 167, 176 F.2d 49,
certiorari denied, 339 U.S. 934, 70 S. Ct. 663, 94 L. Ed. 1353, rehearing denied, 1950, 339 U.S. 972, 70 S. Ct. 995, 94
L. Ed. 1379; Fawick Airflex Co. v. United Electrical Radio & Machine Workers of America, Ohio App.1950, 92 N.E.2d
431; People ex rel. Amarante v. McDonnell, Sup.1950, 100 N.Y.S.2d 463. Where the witness has refused to give any
testimony, a committee cannot multiply his contempt by continuing to ask him questions each time eliciting the same
answer. United States v. Costello, supra. Counts 1 and 2 and Counts 3 and 4 concern different phrasings of two
questions. Orman's refusal to produce the book and to answer each form of the question as to the source of the
$25,000 does not amount to four contempts. It follows, therefore, that Orman can legally receive but two sentences,
each not in excess of the statutory maximum. The court, however, has imposed two penalties: one, a sentence of
twelve months imprisonment, and two, a year's probation commencing at the end of the twelve months imprisonment.
As we have said, Counts 1 and 2 were based on refusals to produce the book. Counts 3 and 4 were based on refusals
to respond to questions respecting the $25,000 loan. The court selected Count 1 (book) and Count 3 (loan) for the
imposition of the maximum prison sentence prescribed by the statute. In doing so the court exhausted its sentencing
power and could not at least under the form of its existing judgment impose probation. The court intended to
impose a prison sentence of twelve months on Orman and to put him on probation for one year following the expiration
of his prison term. The sentence of probation imposed is illegal for as we have said the court had no sentencing power
left.
Accordingly, we will affirm the judgments of conviction on all four counts and will affirm the judgments of sentence on
Counts 1 and 3. To clear the record we will vacate the judgments of sentence on Counts 2 and 4. These are nullities
since the court was without the power to impose them.
1
The contents of the Senate Resolutions constituting the Committee and containing its powers are quoted in pertinent
part at later points in this opinion. See "Part I". The Committee's powers were extended to September 1, 1951, by
Senate Resolution 129, 82nd Cong., 1st Sess. (April 24, 1951)
2
The Resolution was as follows:
"S.Res. 211
"In the Senate of the United States,
"October 1, 1951.
"Resolved, That the President of the Senate certify the report of the Special Committee To Investigate Organized
Crime in Interstate Commerce of the United States Senate as to the refusal of Herman Orman to disclose to the said
special committee the contents of those records and documents which he had been directed by subpoena to produce
and to answer a series of questions before the said special committee, together with all the facts in connection
therewith, under the seal of the United States Senate to the United States attorney for the District of New Jersey, to the
end that the said Herman Orman may be proceeded against in the manner and form provided by law.
"Attest: "Leslie L. Biffle, Secretary."
3
"Every person who having been summoned as a witness by the authority of either House of Congress, to give 9
testimony or to produce papers upon any matter under inquiry before either House, or any committee of either House
of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the
Orman does not contend that the Committee did not inform him that his answers were unsatisfactory and did not give
question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor
him an opportunity to abandon his ground for refusal. Cf. Bart v. United States, 1952, 91 U.S.App.D.C. 370, 203 F.2d
less than $100, and imprisonment in a common jail for not less than one month nor more than twelve months."
45

This was testified to at the trial by Mr. Moser United States v. Rumely

5 No. 87

During argument on Orman's motion for a directed verdict, the court below found as a matter of law the questions Argued December 11-12, 1952
involved "could be" pertinent and that it was for the jury to find "whether or not they were actually so." Transcript of
testimony pp. 180-181
Decided March 9, 1953

6
345 U.S. 41

Orman's arguments respecting the scope of the subpoenas issued to him require brief discussion. As to the
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
subpoenas calling for the production of the book of accounts, Orman argues that he was "not required to turn over the
book", as charged in the indictment and did not fail to "produce" it as required by the statute. Orman seeks to
distinguish between these two phrases arguing that the former goes beyond the language of the statute so as to make FOR THE DISTRICT OF COLUMBIA CIRCUIT
the indictment invalid. He says that while he did not "turn over" the book he did "produce" it by bringing it with him to
the hearings and offering its contents with the proviso that they receive no publicity. We cannot accept this argument.
Syllabus
We think the phrases are indistinguishable in this context and the resolution of authority granted to the Committee by
Congress. The statute empowered the Committee to compel the production of papers and documents and to make
them part of its record. This was what the Committee tried to do with Orman's book. Perhaps the Committee could not Respondent was secretary of an organization which, among other things, engaged in the sale of books of a political
have permanently expropriated the book but no such purpose appears here nature. He refused to disclose to a committed of Congress the names of those who made bulk purchases of these
books for further distribution, and was convicted under R.S. 102, as amended, which provides penalties for refusal to
give testimony or to produce relevant papers "upon any matter" under congressional inquiry. Under the resolution
Orman's contention respecting the difference between the meaning of the phrases "produce" and "turn over" is without
empowering it to function, the Committee was
merit. To carry a book into a hearing and to assert compliance with a subpoena to produce by saying in effect: "I
produce the book and here it is. But you may not put it into the record.", is to render the statute nugatory. Orman's
alleged right to make the production of the book conditional upon a promise not to publicize its contents is discussed at "authorized and directed to conduct a study and investigation of (1) all lobbying activities intended to influence,
a later point in this opinion under the heading "II". encourage, promote, or retard legislation; and (2) all activities of agencies of the Federal Government intended to
influence, encourage, promote, or retard legislation."
As to Orman's refusal to divulge the source of the $25,000 loan, the validity and scope of the subpoenas served on
him are immaterial since he appeared before the Subcommittee without contesting the summons. See United States v. Held: The Committee was without power to exact the information sought from respondent. Pp. 345 U. S. 42-48.
Josephson, 2 Cir., 1947, 165 F.2d 82, certiorari denied 333 U.S. 838, 68 S. Ct. 609, 92 L. Ed. 1122, rehearing denied,
1948, 333 U.S. 858, 68 S. Ct. 731, 92 L. Ed. 1138; Eisler v. United States, 83 U.S.App.D.C. 315, 170 F.2d 273,
certiorari granted, 1948, 335 U.S. 857, 69 S. Ct. 130, 93 L. Ed. 404, certiorari dismissed, 1949, 338 U.S. 883, 70 S. Ct. (a) To construe the resolution as authorizing the Committee to inquire into all efforts of private individuals to influence
181, 94 L. Ed. 542. public opinion through books and periodicals, however remote the radiations of influence which they may exert upon
the ultimate legislative process, would raise doubts of constitutionality in view of the prohibition of the First
Amendment. P. 345 U. S. 46.
7

(b) The phrase "lobbying activities" in the resolution is to be construed as lobbying in the commonly accepted sense of
Quoted by the United States Court of Appeals for the District of Columbia Circuit from National Maritime Union v. "representations made directly to the Congress, its members, or its committees," and not as extending to attempts "to
Herzog, 78 F. Supp. 146, 165, affirmed, 1948, 334 U.S. 854, 68 S. Ct. 1529, 92 L. Ed. 1776 saturate the thinking of the community." P. 345 U. S. 47.

8 (c) The scope of the resolution defining respondent's duty to answer must be ascertained as of the time of his refusal,
and cannot be enlarged by subsequent action of Congress. Pp. 345 U. S. 47-48.
At no point did Orman claim his privilege against self-incrimination
90 U.S.App.D.C. 382, 197 F.2d 155, affirmed.
Respondent was convicted under R.S. 102, as amended, 2 U.S.C. 192, for refusal to give certain information to a
congressional committee. The Court of
Page 345 U. S. 42
Appeals reversed. 90 U.S.App.D.C. 382, 197 F.2d 166. This Court granted certiorari. 344 U.S. 812.Affirmed, p. 345 U.
S. 48.
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
The respondent Rumely was Secretary of an organization known as the Committee for Constitutional Government,
which, among other things, engaged in the sale of books of a particular political tendentiousness. He refused to
disclose to the House Select Committee on Lobbying Activities the names of those who made bulk purchases of these
books for further distribution, and was convicted under R.S. 102, as amended, 52 Stat. 942, 2 U.S.C. 192, which
provides penalties for refusal to give testimony or to produce relevant papers "upon any matter" under congressional
inquiry. The Court of Appeals reversed, one judge dissenting. It held that the committee before which Rumely refused
to furnish this information had no authority to compel its production. 90 U.S.App.D.C. 382, 197 F.2d 166. Since the
Court of Appeals thus took a view of the committee's authority contrary to that adopted by the House in citing Rumely
for contempt, we granted certiorari. 344 U.S. 812. This issue -- whether the committee was authorized to
Page 345 U. S. 43
exact the information which the witness withheld -- must first be settled before we may consider whether Congress had
the power to confer upon the committee the authority which it claimed.
Although we are here dealing with a resolution of the House of Representatives, the problem is much the same as that
which confronts the Court when called upon to construe a statute that carries the seeds of constitutional controversy.
The potential constitutional questions have far-reaching import. We are asked to recognize the penetrating and
pervasive scope of the investigative power of Congress. The reach that may be claimed for that power is indicated by
Woodrow Wilson's characterization of it:
"It is the proper duty of a representative body to look diligently into every affair of government and to talk much about
what it sees. It is meant to be the eyes and the voice, and to embody the wisdom and will of its constituents. Unless
Congress have and use every means of acquainting itself with the acts and the disposition of the administrative agents
of the government, the country must be helpless to learn how it is being served; and unless Congress both scrutinize
these things and sift them by every form of discussion, the country must remain in embarrassing, crippling ignorance
of the very affairs which it is most important that it should understand and direct. The informing function of Congress
should be preferred even to its legislative function."
Wilson, Congressional Government, 303.
Although the indispensable "informing function of Congress" is not to be minimized, determination of the "rights" which
this function implies illustrates the common juristic situation thus defined for the Court by Mr. Justice Holmes:
"All rights tend to declare themselves
Page 345 U. S. 44
absolute to their logical extreme. Yet all in fact are limited by the neighborhood of principles of policy which are other
than those on which the particular right is founded, and which become strong enough to hold their own when a certain
point is reached."
Hudson County Water Co. v. McCarter, 209 U. S. 349, 209 U. S. 355. President Wilson did not write in light of the
history of events since he wrote; more particularly, he did not write of the investigative power of Congress in the
context of the First Amendment. And so we would have to be that "blind" Court, against which Mr. Chief Justice Taft
admonished in a famous passage, Child Labor Tax Case, 259 U. S. 20, 259 U. S. 37, that does not see what "[a]ll
others can see and understand" not to know that there is wide concern, both in and out of Congress, over some
aspects of the exercise of the congressional power of investigation.
Accommodation of these contending principles -- the one underlying the power of Congress to investigate, the other at
the basis of the limitation imposed by the First Amendment -- is not called for until after we have construed the scope
of the authority which the House of Representatives gave to the Select Committee on Lobbying Activities. The
pertinent portion of the resolution of August 12, 1949, reads:
"The Committee is authorized and directed to conduct a study and investigation of (1) all lobbying activities intended to
influence, encourage, promote, or retard legislation; and (2) all activities of agencies of the Federal Government
intended to influence, encourage, promote, or retard legislation."
H.Res. 298, 81st Cong., 1st Sess.
This is the controlling charter of the committee's powers. Its right to exact testimony and to call for the production of
documents must be found in this language. The resolution must speak for itself, since Congress put
Page 345 U. S. 45
no gloss upon it at the time of its passage. Nor is any help to be had from the fact that the purpose of the Buchanan
Committee, as the Select Committee was known, was to try to "find out how well [the Federal Regulation of Lobbying
Act of 1946, 60 Stat. 839] worked." 96 Cong.Rec. 13882. That statute had a section of definitions, but Congress did
not define the terms "lobbying" or "lobbying activities" in that Act, for it did not use them. Accordingly, the phrase
"lobbying activities" in the resolution must be given the meaning that may fairly be attributed to it, having special regard
for the principle of constitutional adjudication which makes it decisive in the choice of fair alternatives that one
construction may raise serious constitutional questions avoided by another. In a long series of decisions, we have
acted on this principle. In the words of Mr. Chief Justice Taft, "[i]t is our duty in the interpretation of federal statutes to
reach a conclusion which will avoid serious doubt of their constitutionality." Richmond Screw Anchor Co. v. United
States, 275 U. S. 331, 275 U. S. 346. Again, what Congress has written, we said through Mr. Chief Justice (then Mr.
Justice) Stone, "must be construed with an eye to possible constitutional limitations so as to avoid doubts as to its
validity." Lucas v. Alexander, 279 U. S. 573, 279 U. S. 577. As phrased by Mr. Chief Justice Hughes,
"if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a
construction of the statute is fairly possible by which the question may be avoided."
Crowell v. Benson, 285 U. S. 22, 285 U. S. 62, and cases cited.
Patently, the Court's duty to avoid a constitutional issue, if possible, applies not merely to legislation technically
speaking, but also to congressional action by way of resolution. See Federal Trade Comm'n v. American Tobacco
Co., 264 U. S. 298. Indeed, this duty of not
Page 345 U. S. 46
needlessly projecting delicate issues for judicial pronouncement is even more applicable to resolutions than to formal
legislation. It can hardly be gainsaid that resolutions secure passage more casually and less responsibly, in the main,
than do enactments requiring presidential approval.
Surely it cannot be denied that giving the scope to the resolution for which the Government contends, that is, deriving
from it the power to inquire into all efforts of private individuals to influence public opinion through books and
periodicals, however remote the radiations of influence which they may exert upon the ultimate legislative process,
raises doubts of constitutionality in view of the prohibition of the First Amendment. In light of the opinion of Prettyman,
J., below and of some of the views expressed here, it would not be seemly to maintain that these doubts are fanciful or
factitious. Indeed, adjudication here, if it were necessary, would affect not an evanescent policy of Congress, but its
power to inform itself, which underlies its policymaking function. Whenever constitutional limits upon the investigative
power of Congress have to be drawn by this Court, it ought only to be done after Congress has demonstrated its full
awareness of what is at stake by unequivocally authorizing an inquiry of dubious limits. Experience admonishes us to
tread warily in this domain. The loose language of Kilbourn v. Thompson, 103 U. S. 168, the weighty criticism to which
it has been subjected, see, e.g., Fairman, Mr. Justice Miller and the Supreme Court, 332-334; Landis, Constitutional
Limitations on the Congressional Power of Investigation, 40 Harv.L.Rev. 153, the inroads that have been made upon
that case by later cases, McGrain v. Daugherty, 273 U. S. 135, 273 U. S. 170-171, and Sinclair v. United States, 279
U. S. 263, strongly counsel abstention from adjudication unless no choice is left.
Page 345 U. S. 47
Choice is left. As a matter of English, the phrase "lobbying activities" readily lends itself to the construction placed
upon it below, namely, "lobbying in its commonly accepted sense," that is, "representations made directly to the
Congress, its members, or its committees", 90 U.S.App.D.C. 382, 197 F.2d 166, 175, and does not reach what was in
Chairman Buchanan's mind, attempts "to saturate the thinking of the community." 96 Cong.Rec. 13883. If "lobbying"
was to cover all activities of anyone intending to influence, encourage, promote or retard legislation, why did Congress
differentiate between "lobbying activities" and other "activities . . . intended to influence"? Had Congress wished to
authorize so extensive an investigation of the influences that form public opinion, would it not have used language at
least as explicit as it employed in the very resolution in question in authorizing investigation of government agencies?
Certainly it does not violence to the phrase "lobbying activities" to give it a more restricted scope. To give such
meaning is not barred by intellectual honesty. So to interpret is in the candid service of avoiding a serious
constitutional doubt. "Words have been strained more than they need to be strained here in order to avoid that doubt."
Mr. Justice Holmes, in Blodgett v. Holden, 275 U. S. 142, 275 U. S. 148, 276 U.S. 594, with the concurrence of Mr.
Justice Brandeis, Mr. Justice Sanford and Mr. Justice Stone. With a view to observing this principle of wisdom and
duty, the Court very recently strained words more than they need be strained here. United States v. CIO, 335 U. S.
106. The considerations which prevailed in that case should prevail in this.
Only a word need be said about the debate in Congress after the committee reported that Rumely had refused to
produce the information which he had a right to refuse under the restricted meaning of the phrase "lobbying activities."
The view taken at that time by the committee and by the Congress that the committee was authorized
Page 345 U. S. 48
to ask Rumely for the information he withheld is not legislative history defining the scope of a congressional measure.
What was said in the debate on August 30, 1950, after the controversy had arisen regarding the scope of the
resolution of August 12, 1949, had the usual infirmity of post litem motam, self-serving declarations. * In any event,
Rumely's duty to answer must be judged as of the time of his refusal. The scope of the resolution defining that duty is
therefore to be ascertained as of that time and cannot be enlarged by subsequent action of Congress.
Grave constitutional questions are matters properly to be decided by this Court but only when they inescapably come
before us for adjudication. Until then, it is our duty to abstain from marking the boundaries of congressional power or
delimiting the protection guaranteed by the First Amendment. Only by such self-restraint will we avoid the mischief
which has followed occasional departures from the principles which we profess.
The judgment below should be
Affirmed.
MR. JUSTICE BURTON and MR. JUSTICE MINTON took no part in the consideration or decision of this case.
* The ambiguity of the terms of the resolution -- that is, whether questions asked to which answers were refused were
within those terms -- is reflected by the close division by which the committee's view of its own authority prevailed. The
vote was 183 to 175.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK concurs, concurring.
Respondent was convicted under an indictment charging willful refusal to produce records and give testimony before a
Committee of the House of Representatives in violation of R.S. 102, as amended, 52 Stat. 942, 2 U.S.C. 192.
[Footnote 1]
Page 345 U. S. 49
The Committee, known as the Select Committee on Lobbying Activities, was created on August 12, 1949, by House
Resolution 298 [Footnote 2] which provides in part as follows:
"The committee is authorized and directed to conduct at study and investigation of (1) all lobbying activities intended to
influence, encourage, promote, or retard legislation; and (2) all activities of agencies of the Federal Government
intended to influence, encourage, promote, or retard legislation."
Count one of the indictment charged that respondent willfully refused to produce records, duly subpoenaed, of the
Committee for Constitutional Government (CCG), showing the name and address of each person from whom a total of
$1,000 or more had been received by CCG from January 1, 1947, to May 1, 1950, for any purpose including receipts
from the sale of books and pamphlets. Count six charged a similar offense as to a subpoena calling for the name and
address of each person from whom CCG had received between those dates a total of $500 or more for any purpose.
Count seven charged a willful refusal to give the name of a woman from Toledo who gave respondent $2,000 for
distribution of The Road Ahead, a book written by John T. Flynn.
The background of the subpoena and of the questions asked respondent is contained in a report of the Select
Page 345 U. S. 50
Committee, H.R.Rep.No.3024, 81st Cong., 2d Sess. It appears that CCG and respondent, its executive, registered
under the Regulation of Lobbying Act, 60 Stat. 839, 2 U.S.C. 261 et seq., on October 7, 1946. The reports under this
registration (which was made under protest) showed that CCG had spent about $2,000,000 from October, 1946, to
August ,1950. The basic function of CCG, according to the Select Committee, was the "distribution of printed material
to influence legislation indirectly." The Regulation of Lobbying Act requires disclosure of contributions of $500 or more
received or expended to influence, directly or indirectly, the passage or defeat of any legislation by the Congress. 2
U.S.C. 264. The Select Committee reported that, after enactment of the Regulation of Lobbying Act, CCG adopted
a policy of accepting payments of over $490 only if the contributor specified that the funds be used for the distribution
of one or more of its books or pamphlets. It then applied the term "sale" to the "contribution," and did not report them
under the Regulation of Lobbying Act. H.R.Rep. No.3024, supra, pp. 1, 2.
The Report of the Select Committee also shows that, while respondent was willing to give the Committee the total
income of CCG, he refused to reveal the identity of the purchasers of books and literature because, "under the Bill of
Rights, that is beyond the power of your committee to investigate." Id., p. 8. The books involved were The Road Ahead
by John T. Flynn, The Constitution of the United States by Thomas J. Norton, Compulsory Medical Care by Melchior
Palyi, and Why the Taft-Hartley Law by Irving B. McCann. Most of the purchasers (about 90 percent) had the books
shipped to themselves; the rest told CCG the individuals to send them to or the type of person (e.g., "farm leaders")
who should receive them. One person had CCG send Compulsory
Page 345 U. S. 51
Medical Care by Melchior Palyi to 15,550 libraries. [Footnote 3]
The Select Committee stated in its report:
"Our study of this organization indicates very clearly that its most important function is the distribution of books and
pamphlets in order to influence legislation directly and indirectly. It attempts to influence legislation directly by sending
copies of books, pamphlets, and other printed materials to Members of Congress. It attempts to influence legislation
indirectly by distributing hundreds of thousands of copies of these printed materials to people throughout the United
States."
"Of particular significance is the fact that Edward A. Rumely and the Committee for Constitutional Government, Inc., in
recent years have devised a scheme for raising enormous funds without filing true reports pursuant to the provisions of
the Federal Regulation of Lobbying Act. This scheme has the color of legality, but, in fact, is a method of circumventing
the law. It utilizes the system outlined above whereby contributions to the Committee for Constitutional Government
are designated as payments for the purchase of books, which are transmitted to others at the direction of the
purchaser, with both the contributor of the money and the recipients of the books totally unaware of the subterfuge in
most cases."
H.R.Rep. No. 3024, supra, p. 2.
Page 345 U. S. 52
The Select Committee insisted that the information demanded of respondent was relevant to its investigation of
"lobbying activities" within the meaning of the Resolution. It said:
"Because of the refusal of the Committee for Constitutional Government, Inc., to produce pertinent financial records,
this committee was unable to determine whether or not the Committee for Constitutional Government, Inc., is evading
or violating the letter or the spirit of the Federal Regulation of Lobbying Act by the establishment of a class of
contributions called 'Receipts from the sale of books and literature,' or whether they are complying with a law which
requires amendments to strengthen it."
"The policy of the Committee for Constitutional Government, Inc., of refusing to accept contributions of more than $490
unless earmarked for books, etc., may also involve: (1) Dividing large contributions into installments of $490 or less,
and causing the records of the Committee for Constitutional Government to reflect receipt of each installment on a
different date, and/or causing the records of the Committee for Constitutional Government to give credit, for the
several installments, to various relatives and associates of the actual contributor. (2) Causing the Committee for
Constitutional Government's records as to 'Contributions' to reflect less than the total amount of contributions actually
received, by labeling some part of such funds as payments made for printed matter."
"Because of the refusal of the Committee for Constitutional Government, Inc., to produce pertinent financial records,
this committee was unable to determine whether or not the Federal Regulation of Lobbying Act requires amendment to
prevent division of
Page 345 U. S. 53
large contributions into installments, or to prevent the crediting of contributions to others than the real contributor, or to
prevent the use of other subterfuges."
H.R.Rep. No. 3024, supra, pp. 2-3.
The Select Committee submitted its report to the House (96 Cong.Rec., p 13873) and offered a Resolution that the
Speaker certify respondent's refusal to answer to the United States Attorney for the District of Columbia. Id., p. 13881.
The House adopted the Resolution, id., p. 13893, and on August 31, 1950, the Speaker certified respondent's refusal
to testify.
Respondent was convicted and sentenced to a fine of $1,000 and to imprisonment for six months. The Court of
Appeals reversed by a divided vote, 197 F.2d 166, the majority holding that "lobbying activities" as used in the
Resolution creating the Select Committee did not authorize the inquiries made of respondent. In its view, the term
"lobbying activities" meant direct contact with Congress, not attempts to influence public opinion through the sale of
books and documents.
I
The Court holds that Resolution 298, which authorized the Select Committee to investigate "lobbying activities," did not
extend to the inquiry on which this contempt proceeding is based. The difficulty with that position starts with Resolution
298. Its history makes plain that it was intended to probe the sources of support of lobbyists registered under the
Regulation of Lobbying Act. Congressman Sabath, one of the sponsors of the Resolution, included CCG in a "partial
list of some of the large lobby organizations and their reports of expenditures for the first quarter of 1949." See 95
Cong.Rec., p. 11386. The Regulation of Lobbying Act, under which respondent and CCG were registered, applies to
all persons soliciting
Page 345 U. S. 54
or receiving money to be used principally "To influence, directly or indirectly, the passage or defeat of any legislation by
the Congress of the United States." 2 U.S.C. 266(b). Congressman Buchanan, who introduced the Resolution and
who became Chairman of the Select Committee, said that the purpose of the Resolution was to investigate the
operations of that Act. [Footnote 4] Not a word in the Resolution, not a word in the debate preceding its adoption
suggests that the inquiry was to be delimited, restricted, or confined to particular methods of collecting money to
influence legislation directly or indirectly.
The Select Committee took the same broad view of its authority. [Footnote 5] It concluded that "all substantial attempts
to influence legislation for pay or for any consideration constitute lobbying." H.R.Rep. No. 3239, 81st Cong., 2d Sess.,
p. 1. It said that "pamphleteering" was a lobbying activity that overshadows "the traditional techniques of contact and
persuasion." Id., p. 3. And it cited for its conclusion the activities of CCG. Id. This conclusion was reached over
vehement objections by three minority members of the Select Committee who insisted that an investigation of that
breadth exceeded the authority of the Resolution and infringed on the constitutional rights of free speech and free
press. Id., Part 2, p. 2.
Page 345 U. S. 55
This was the posture of the case when the Select Committee referred respondent's refusal to testify to the House for
contempt proceedings. Congressman Buchanan called the collection of funds through the sale of books and
pamphlets an evasion of the Regulation of Lobbying Act. 96 Cong.Rec. 13882. He pressed on the House the
importance of controlling that kind of activity in a regulation of lobbying. And he asked that the House ratify the
conclusion of the Select Committee that respondent was in contempt. Id., pp. 13886, 13887. That construction of the
Resolution was challenged by Congressman Halleck, a member of the Select Committee who signed the minority
report. He argued that the contempt citation sought had
"nothing to do with the influencing of legislation in the ordinary ways of seeing Members of Congress or
communicating with them. It has only to do with the formation of public opinion among the people of the country."
Id., p. 13888. Congressman Halleck's argument was two-fold -- that the inquiry was not within the purview of the
Resolution and that, if it were, it would be unconstitutional. Id., pp. 13887-13888. Others took up the debate on those
issues. The vote was taken, and the Resolution passed. Id., p. 13893.
Thus, the House had squarely before it the meaning of its earlier Resolution. A narrower construction than the Select
Committee adopted was urged upon it. Congressmen pleaded long and earnestly for the narrow construction, and
pointed out that, if the broader interpretation were taken, the inquiry would be trenching on the constitutional rights of
citizens. I cannot say, in the face of that close consideration of the question by the House itself, that the Select
Committee exceeded its authority. The House of Representatives made known its construction of the powers it had
granted. If, at the beginning, there were any doubts as to the meaning of
Page 345 U. S. 56
Resolution 298, the House removed them. The Court is repudiating what the House emphatically affirmed when it now
says that the Select Committee lacked the authority to compel respondent to answer the questions propounded.
tax, established no board of censors, instituted no licensing system. But the potential restraint is equally severe. The
finger of government leveled against the press is ominous. Once the government can demand of a publisher the
names of the purchasers of his publications, the free press as we know it disappears. Then the spectre of a
government agent will look over the shoulder of everyone who reads. The purchase of a book or pamphlet today may
result in a subpoena tomorrow. Fear of criticism goes with every person into the bookstall. The subtle, imponderable
pressures of the orthodox lay hold. Some will fear to read what is unpopular what the "powers that be" dislike. When
the light of publicity may reach any student, any teacher, inquiry will be discouraged. The books and pamphlets that
are critical of the administration, that preach an unpopular policy in domestic or foreign affairs, that are in disrepute in
the orthodox school of thought will be suspect and subject to investigation. The press and its readers will pay a heavy
price in harassment. But that will be minor in comparison with the menace of
Page 345 U. S. 58
the shadow which government will cast over literature that does not follow the dominant party line. If the lady from
Toledo can be required to disclose what she read yesterday and what she will read tomorrow, fear will take the place
of freedom in the libraries, bookstores, and homes of the land. Through the harassment of hearings, investigations,
reports, and subpoenas government will hold a club over speech and over the press. Congress could not do this by
law. The power of investigation is also limited. [Footnote 6] Inquiry into personal and private affairs is precluded. See
Kilbourn v. Thompson, 103 U. S. 168, 103 U. S. 190; McGrain v. Daugherty, 273 U. S. 135, 273 U. S. 173-174; Sinclair
v. United States, 279 U. S. 263, 279 U. S. 292. And so is any matter in respect to which no valid legislation could be
had. Kilbourn v. Thompson, supra, pp. 103 U. S. 194-195; McGrain v. Daugherty, supra, p. 273 U. S. 171. Since
Congress could not by law require of respondent what the House demanded, it may not take the first step in an inquiry
ending in fine or imprisonment.

[Footnote 1]
II

Of necessity, I come then to the constitutional questions. Respondent represents a segment of the American press. This section provides in pertinent part:
Some may like what his group publishes; others may disapprove. These tracts may be the essence of wisdom to
some; to others, their point of view and philosophy may be anathema. To some ears, their words may be harsh and
"Every person who having been summoned as a witness by the authority of either House of Congress to give
repulsive; to others, they may carry the hope of the future. We have here a publisher who, through books and
testimony or to produce papers upon any matter under inquiry before either House, . . . or any committee of either
pamphlets, seeks to reach the minds and hearts of the American people. He is different in some respects from other
House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the
publishers. But the differences are minor. Like the publishers of newspapers, magazines, or books, this publisher bids
question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor
for the minds of men in the market place of ideas. The aim of the historic struggle for a free press was "to establish
less than $100 and imprisonment in a common fail for not less than one month nor more than twelve months."
and preserve the right of the English people to full information in respect of the doings or misdoings of their
government." Grosjean v. American Press Co., 297 U. S. 233, 297 U. S. 247. That is the tradition behind the First
Amendment. Censorship or previous restraint is banned. Near v. State of Minnesota, 283 U. S. 697. Discriminatory [Footnote 2]
taxation is outlawed. Grosjean v. American Press Co., supra.The privilege of pamphleteering, as well as the more
orthodox types of publications, may neither be licensed (Lovell v. City of Griffin, 303 U. S. 444) nor taxed. Murdock v.
H.Res. 298, 81st Cong., 1st Sess.
Pennsylvania, 319 U. S. 105. Door to door distribution is privileged. Martin v. Struthers, 319 U. S. 141. These are
illustrative of the preferred position granted speech and the press by the First Amendment. The command that
"Congress [Footnote 3]

Page 345 U. S. 57 When the Taft-Hartley law was under discussion, CCG published a pamphlet "Labor Monopolies or Freedom" of which
250,000 copies were distributed.

shall make no law . . . abridging the freedom of speech, or of the press" has behind it a long history. It expresses the
confidence that the safety of society depends on the tolerance of government for hostile, as well as friendly, criticism, "All members of Congress got a copy. It went to publishers. People who could take opinion that way, and mint it into
that, in a community where men's minds are free, there must be room for the unorthodox, as well as the orthodox, small coin to distribute to others."
views.
H.R.Rep.No.3024, supra, p. 11. Respondent testified that Frank Gannett paid for that distribution.
If the present inquiry were sanctioned, the press would be subjected to harassment that, in practical effect, might be as
serious as censorship. A publisher, compelled to register with the federal government, would be subjected to vexatious
[Footnote 4]
inquiries. A requirement that a publisher disclose the identity of those who buy his books, pamphlets, or papers is
indeed the beginning of surveillance of the press. True, no legal sanction is involved here. Congress has imposed no
"Pressure groups interpret the Lobbying Act in different ways. Some file expenses. Others file full budget, but list
expenditures they judge allocable to legislative activities. Still others file only expenditures directly concerned with
lobbying."
"Some organizations argue they need not file unless principal purpose is influencing legislation. But Justice
Department says, 'principal' includes all who have substantial legislative interests. Lobbies also differ on who filed
expenditures -- organizations or individuals."
95 Cong.Rec. 11389.
[Footnote 5]
An analysis of the scope of the investigation and the meaning of "lobbying" is contained in the General Interim Report
of the Select Committee. H.R.Rep. No. 3138, 81st Cong., 2d Sess., pp. 5 et seq.
[Footnote 6]
Cf. Barsky v. United States, 83 U.S.App.D.C. 127, 167 F.2d 241, certiorari denied, 334 U.S. 843, rehearing
denied, 339 U.S. 971, and Marshall v. United States, 85 U.S.App.D.C. 184, 176 F.2d 473, certiorari denied, 339 U.S.
933, rehearing denied, 339 U.S. 959.
Sinclair v. United States
No. 555
Argued February 18, 19, 1929
Decided April 8, 1929
279 U.S. 263
CERTIFICATE FROM THE COURT OF APPEALS
OF THE DISTRICT OF COLUMBIA
1. The chairman and any of the members of the Committee on Public Lands and Surveys of the Senate are
empowered to administer oaths to witnesses before the committee. Rev.Stats. 101. P.279 U. S. 291.
2. Rev.Stats. 102, prescribing punishment for refusal to answer before congressional committees, includes
witnesses who voluntarily appear without being summoned. P. 279 U. S. 291.
3. While the power of inquiry of the respective houses of Congress is an essential and appropriate auxiliary to the
legislative function, it must be exerted with due regard for the rights of witnesses; a witness may rightfully refuse to
answer where the bounds of the power are exceeded or where the questions asked are not pertinent to the matter
under inquiry. McGrain v. Daugherty, 273 U. S. 135. P.279 U. S. 291.
4. A naval petroleum reserve, in charge of the Secretary of the Navy under the Act of June 4, 1920, 41 Stat. 12, was
made the subject of an executive order purporting to give the administration and conservation of all oil and gas lands
therein to the Secretary of the Interior under the supervision of the President. The two Secretaries, at the procurement
of the defendant, leased lands in the reserve to a company of which he owned all the shares. Questions having arisen
as to the legality and good faith of the lease and an attendant contract, and of others similar, and also as to the future
policy of the government regarding such matters, the Senate, by resolutions, directed its committee to investigate the
entire subject of such leases, with particular reference to the protection of the rights and equities of the United States
and the preservation of its natural resources, to ascertain what, if any, other, or additional legislation might be
advisable, and to report its findings and recommendations to the Senate. Congress, also, by joint resolution, reciting
that the lease and contract were illegal and apparently fraudulent, directed the President to cause suit to be instituted
for their cancellation, and to prosecute such other actions, civil or criminal, as were warranted. After suit had been
begun against
Page 279 U. S. 264
his company pursuant to this resolution, and while criminal action was impending against himself, the defendant
appeared before the committee and was asked a question which sought the facts within his knowledge concerning a
contract executed by him for his company to pay certain persons for a release of rights in lands embraced in his
company's lease. Defendant refused to answer, not upon the ground of self-incrimination, but for the reason that the
investigation and the question were unauthorized. He was prosecuted for contumacy, under Rev.Stats. 102, and
convicted.
Held:
(1) Neither the investigation authorized by the Senate's resolutions nor the question put by the committee related
merely to the defendant's private affairs. P. 279 U. S. 294.
(2) Under Art. IV, 3 of the Constitution, Congress had plenary powers to dispose of and make all needful rules and
regulations respecting the naval reserves, and the Senate had power to delegate authority to its committee to
investigate and report what had been and was being done by executive departments under the leasing Act, the Naval
Oil Reserve Act, and the President's order in respect of the reserves, and to make any other inquiry concerning the
public domain. P. 279 U. S. 294.
(3) The validity of the lease and the means by which it had been obtained under existing law were subjects that
properly might be investigated in order to determine what, if any, legislation was necessary or desirable in order to
recover the leased lands or to safeguard other parts of the domain. P. 279 U. S. 294.
(4) Neither the joint resolution directing legal proceedings nor the action taken under it operated to divest the Senate or
the committee of further power to investigate the actual administration of the land laws; the authority of Congress,
directly or through its committees, to require pertinent disclosures in aid of its own constitutional power is not abridged
because the information sought to be elicited may also be of use in such suits. P. 279 U. S. 295.
(5) A refusal of the committee to pass a motion that the examination of defendant should not relate to controversies
pending in court, and the statement of one of the members that there was nothing else to examine him about, were not
enough to show that the committee intended to depart from the purpose to ascertain whether additional legislation
might be advisable. Investigation of the matters involved in suits brought, or to be brought, under the joint resolution
might directly aid legislative action. P. 279 U. S. 295.
(6) A resolution of the Senate, the purpose of which, as plainly shown by the context and circumstances, was to keep
in force
Page 279 U. S. 265
through the next session of Congress an earlier resolution empowering the committee to summon and swear
witnesses, should not be denied that effect because of mistakes in its reference to the date and number of the earlier
resolution. P. 279 U. S. 295.
(7) The question propounded by the committee was pertinent to matters it was authorized to investigate, relating (a) to
the right and equities of the United States as owner of the land leased to the defendant, and (b) to the effect of existing
laws concerning oil and other mineral lands and the need for further legislation. P. 279 U. S. 297.
5. In a prosecution for the offence of refusing to answer a question put to the accused as a witness before a committee
of the Senate (R.S. 102), the burden is upon the United States to show that the question was pertinent to a matter
under investigation; any presumption of regularity in that regard is overcome by the presumption of innocence
attending the accused at the trial. P. 279 U. S. 296.
6. In a prosecution for refusal to answer a question before a committee of the Senate, it is the province of the court,
and not of the jury, to decide whether the question was pertinent to the subjects covered by the Senate resolutions
authorizing the committee's investigation. P. 279 U. S. 298.
7. In such a prosecution, the fact that the accused acted in good faith on the advice of competent counsel in refusing
to answer a question put by the committee is not a defense. P. 279 U. S. 299.
8. A judgment imposing a single sentence on several counts of an indictment may be affirmed under one count without
considering the others if the conviction as to that count be sustained and if the maximum punishment authorized for
the offense charged in that count be not exceeded by the sentence. P. 279 U. S. 299.
Affirmed.
Review of a judgment of the Supreme Court of the District of Columbia sentencing the defendant, under Rev.Stats.
102, for refusing to answer questions before a committee of the Senate. The case was appealed from the trial court to
the Court of Appeals of the District. That court certified certain questions for instruction, and this Court, by order,
brought up the entire record.
Page 279 U. S. 284
MR. JUSTICE BUTLER delivered the opinion of the Court.
Appellant was found guilty of violating R.S. 102, U.S.C. Tit. 2, 192. He was sentenced to jail for three months and
to pay a fine of $500. The case was taken to the Court of Appeals of the District of Columbia; that court certified to this
Court certain questions of law upon which it desired instruction for the proper decision of the case. We directed the
entire record to be sent up. Judicial Code, 239, U.S.C. Tit. 28, 346.
Section 102 follows:
"Every person who, having been summoned as a witness by the authority of either house of Congress, to give
testimony or to produce papers upon any matter under inquiry before either house, or any
Page 279 U. S. 285
committee of either house of Congress, willfully makes default, or who, having appeared, refuses to answer any
question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not
more than $1,000 nor less than $100, and imprisonment in a common jail for not less than one month nor more than
twelve months."
By way of inducement, the indictment set forth the circumstances leading up to the offense which in brief substance
are as follows:
For many years, there had been progressive diminution of petroleum necessary for the operation of naval vessels;
consequently, the government was interested to conserve the supply and especially that in the public domain.
Pursuant to the Act of June 25, 1910, 36 Stat. 847, the President, by executive orders dated September 2, 1912,
December 13, 1912, and April 30, 1915, ordered that certain oil and gas-bearing lands in California and Wyoming be
held for the exclusive use of the Navy. These areas were designated Naval Petroleum Reserves 1, 2, and 3,
respectively.
The Act of February 25, 1920, 41 Stat. 437, provided for the leasing of public lands containing oil and other minerals.
And the Act of June 4, 1920, 41 Stat. 812, 813, directed the Secretary of the Navy of take possession of all properties
in the naval reserves "on which there are no pending claims or applications for permits or leases under the" Leasing
Act of February 25, 1920 "or pending applications for United States patent under any law," to conserve, develop, use,
and operate the same by contract, lease, or otherwise, and to use, store, exchange or sell the oil and gas products
thereof for the benefit of the United States. And it was declared that the rights of any claimants under the Leasing Act
were not thereby adversely affected.
Page 279 U. S. 286
May 31, 1921, the President promulgated an executive order purporting to give the administration and conservation of
all oil and gas bearing lands in the naval reserves to the Secretary of the Interior subject to supervision by the
President.
April 7, 1922, the Secretary of the Navy and the Secretary of the Interior made a lease of lands in Reserve No. 3 to the
Mammoth Oil Company. This was done by the procurement of the appellant action as the president of the company.
The lease purported to grant to the company the right to take oil and gas and contained a provision selling royalty oils
to the company. And February 9, 1923, a supplemental contract was made by which the company agreed to furnish
storage facilities for the Navy. Mammoth Oil Co. v. United States, 275 U. S. 13.
April 25, 1922, the same Secretaries made a contract with the Pan-American Petroleum & Transport Company for the
sale to it of royalty oils from Reserves 1 and 2. December 11, 1922, another contract was made by them. The purpose
of these agreements was to arrange that the company furnish storage facilities for the Navy in exchange for royalty oils
to be received by the United States under leases then in force and thereafter to be made. December 11, 1922, the
same Secretaries made a lease to the Pan American Petroleum Company purporting to grant to it the right to take oil
and gas from Reserve No. 1. Pan American Co. v. United States, 273 U. S. 456.
The lease to the Mammoth Company and the contract with the Transport Company came to the attention of the
Senate, and it was charged that there had been fraud and bad faith in the making of them. Questions arose as to their
legality, the future policy of the government as to them, and similar leases and contracts, and as to the necessity and
desirability of legislation upon the subject.
Page 279 U. S. 287
April 29, 1922, the Senate adopted Resolution 282, calling upon the Secretary of the Interior for information and And that count concluded: "And that said Harry
containing the following:

Page 279 U. S. 289

"That the committee on public lands and surveys be authorized to investigate this entire subject of leases upon naval
oil reserves with particular reference to the protection of the rights and equities of the government of the United States
F. Sinclair then and there unlawfully did refuse to answer said question. . . ."
and the preservation of its natural resources, and to report its findings and recommendations to the Senate."

June 5, 1922, Resolution 282 was amended by Resolution 294 by adding a provision that the committee
"is hereby authorized . . . to require the attendance of witnesses by subpoenas or otherwise; to require the production
of books, papers and documents. . . . The chairman of the committee, or any member thereof, may administer oaths to
witnesses and sign subpoenas for witnesses."
Senate Joint Resolution 54 was approved February 8, 1924. 43 Stat. 5. It recited that the leases and contracts above
mentioned were executed under circumstances indicating fraud and corruption, that they were without authority,
contrary to law, and in defiance of the settled policy of the government, and the resolution declared that the lands
embraced therein should be recovered and held for the purposes to which they were dedicated. It directed the
President to cause suit to be instituted for the cancellation of the leases and contracts, to prosecute such other actions
or proceedings, civil and criminal, as were warranted by the facts, and authorized the appointment of special counsel
to have charge of the matter.

February 5, 1923, the Senate passed Resolution 434, which continued in force and effect until the end of the Sixty-
Eighth Congress and until otherwise ordered, "Senate Resolution 282 agreed to April 21 [29], 1922, and Senate
Resolution 292, agreed to May 15, 1922." (The government suggests that, instead of the resolution last mentioned,
there was meant Resolution 294 adopted June 5, 1922.)
Prior to March 22, 1924, appellant, at the request of the committee, appeared five times before it, and was sworn as
alleged. March 19, 1924, a United States marshal at New York served upon him a telegram, which was in form a
subpoena signed by the chairman of the committee, requiring him to appear as a witness, and he did appear on March
22. Before any questions were put, he submitted a statement.

February 7, 1924, the Senate passed Resolution 147, directing in substance the same as it had theretofore done by
the two resolutions first above mentioned and also that the committee "ascertain what, if any, other or additional
legislation may be advisable and to report its findings and recommendations to the Senate."
The committee proceeded to exercise the authority conferred upon it, and, for that purpose, held hearings at which
witnesses were examined and documents produced. Appellant was summoned, appeared and was sworn December
4, 1923.
He disclaimed any purpose to invoke protection against self-incrimination, and asserted there was nothing in the
transaction which could incriminate him. He emphasized his earlier appearances, testimony, production of papers, and
discharge from further attendance. He called attention to Joint Resolution 54, discussed its provisions, and stated that
a suit charging conspiracy and fraud had been commenced against the Mammoth Company and others and that the
government's motion for injunction and receivers had been granted, and that application had been made for a special
grand jury to investigate the making

Page 279 U. S. 290

Page 279 U. S. 288

of the lease. He asserted that the committee could not then investigate the matters covered by the authorization
And the indictment charges that, on March 22, 1924, the matters referred to in these resolutions being under inquiry,
because the Senate, by the adoption of the joint resolution, had exhausted its power, and Congress and the President
and appellant having been summoned to give testimony and having been sworn as aforesaid, did appear before the
had made the whole matter a judicial question which was determinable only in the courts. The statement concluded:
committee as a witness. The first count alleges that Senator Walsh, a member of the committee, propounded to him a
question which appellant knew was pertinent to the matters under inquiry:
"I shall reserve any evidence I may be able to give for those courts to which you and your colleagues have deliberately
referred all questions of which you had any jurisdiction and shall respectfully decline to answer any questions
"Mr. Sinclair, I desire to interrogate you about a matter concerning which the committee had no knowledge or reliable
propounded by your committee."
information at any time when you had heretofore appeared before the committee, and with respect to which you must
then have had knowledge. I refer to the testimony given by Mr. Bonfils concerning a contract that you made with him
touching the Teapot Dome. I wish you would tell us about that." After appellant's statement, his counsel asked the privilege of presenting to the committee reasons why it did not have
authority further to take testimony of appellant. In the course of his remarks, he said:

And, to explain that question, the indictment states:

"Mr. Sinclair is already under oath before the committee. . . . He is on the stand now in every sense of the word, and
the objection really is to any further examination of him on the subjects involved in this resolution."
"Said Hon. Thomas J. Walsh thereby meaning and intending, as said Harry F. Sinclair then and there well knew and
understood, to elicit from him the said Harry F. Sinclair, facts, which then were within his knowledge, touching the
execution and delivery of a certain contract bearing date September 25, 1922, made and executed by the between Discussion followed, and a motion was made:
said Mammoth Oil Company, one F. G. Bonfils, and one John Leo Stack, which was executed on behalf of said
Mammoth Oil Company by said Harry F. Sinclair as President of said Mammoth Oil Company, and which, among other
"That, in the examination, the inquiry shall not relate to pending controversies before any of the federal courts in which
things, provided for the payment, by said Mammoth Oil Company, unto said F. G. Bonfils and said John Leo Stack, of
Mr. Sinclair is a defendant, and which questions would involve his defense."
the sum of $250,000, on or before October 15, 1922, in consideration of the release, by said F. G. Bonfils and said
John Leo Stack, of rights to lands described in said Executive Order of April 30, 1915, and embraced in the aforesaid
lease of April 7, 1922." During a colloquy that followed, one of the members said: "Of course, we will vote it [the motion] down. . . . If we do not
examine Mr. Sinclair about those matters, there is not anything else to examine him about." The motion was voted
down. Then the appellant was asked the question set forth in the first count, and he said: "I decline to answer on the
advice of counsel on the same ground."
Appellant contends that his demurrer to the several counts of the indictment should have been sustained, and that a
verdict of not guilty should have been directed. To support that contention, he argues that the questions related to his
private affairs and to matters cognizable only in the courts wherein they were pending, and that
Page 279 U. S. 291
the committee avowedly had departed from any inquiry in aid of legislation.
He maintains that there was no proof of any authorized inquiry by the committee, or that he was legally summoned or
sworn, or that the questions propounded were pertinent to any inquiry it was authorized to make, and that, because of
such failure, he was entitled to have a verdict directed in his favor.
He insists that the court erred in holding that the question of pertinency was one of law for the court and in not
submitting it to the jury, and also erred in excluding evidence offered to sustain his refusal to answer.
1. The committee on public lands and surveys is one of the standing committees of the Senate. No question is raised
as to the validity of its organization and existence. Under 101 of the Revised Statutes, U.S.C. Tit. 2, 191, its
chairman and any of its members are empowered to administer oaths to witnesses before it. Section 102 plainly
extends to a case where a person voluntarily appears as a witness without being summoned, as well as to the case of
one required to attend.
By our opinion in McGrain v. Daugherty, 273 U. S. 135, 273 U. S. 173, decided since the indictment now before us was
found, two propositions are definitely laid down:
"One, that the two houses of Congress, in their separate relations, possess not only such powers as are expressly
granted to them by the Constitution, but such auxiliary powers as are necessary and appropriate to make the express
powers effective; and, the other, that neither house is invested with 'general' power to inquire into private affairs and
compel disclosures, but only with such limited power of inquiry as is shown to exist when the rule of constitutional
interpretation just stated is rightly applied."
And that case shows that, while the power of inquiry is an essential and appropriate auxiliary to the legislative function,
it must be exerted with due regard
Page 279 U. S. 292
for the rights of witnesses, and that a witness rightfully may refuse to answer where the bounds of the power are
exceeded or where the questions asked are not pertinent to the matter under inquiry.
It has always been recognized in this country, and it is well to remember, that few if any of the rights of the people
guarded by fundamental law are of greater importance to their happiness and safety than the right to be exempt from
all unauthorized, arbitrary or unreasonable inquiries and disclosures in respect of their personal and private affairs. In
order to illustrate the purpose of the courts well to uphold the right of privacy, we quote from some of their decisions.
In Kilbourn v. Thompson, 103 U. S. 168, this Court, speaking through Mr. Justice Miller, said (p. 103 U. S. 190):
". . . We are sure that no person can be punished for contumacy as a witness before either house unless his testimony
is required in a matter into which that house has jurisdiction to inquire, and we feel equally sure that neither of these
bodies possesses the general power of making inquiry into the private affairs of the citizen."
And, referring to the failure of the authorizing resolution there under consideration to state the purpose of the inquiry
(p. 103 U. S. 195):
"Was it to be simply a fruitless investigation into the personal affairs of individuals? If so, the House of Representatives
had no power or authority in the matter more than any other equal number of gentlemen interested for the government
of their country. By 'fruitless,' we mean that it could result in no valid legislation on the subject to which the inquiry
referred."
In Re Pacific Railway Commission (Circuit Court, N.D., California), 32 F. 241, Mr. Justice Field, announcing the opinion
of the court, said (p. 250):
"Of all the rights of the citizen, few are of greater importance or more essential to his peace and happiness than the
right of personal security, and that involves not merely protection
Page 279 U. S. 293
of his person from assault, but exemption of his private affairs, books, and papers from the inspection and scrutiny of
others. Without the enjoyment of this right, all other rights would lose half their value."
And the learned Justice, referring to Kilbourn v. Thompson, supra, said (p. 253):
"This case will stand for all time as a bulwark against the invasion of the right of the citizen to protection in his private
affairs against the unlimited scrutiny of investigation by a congressional committee."
And see concurring opinions of Circuit Judge Sawyer, p. 259 at 263, and of District Judge Sabin, p. 268 at p. 269.
In Interstate Commerce Commission v. Brimson, 154 U. S. 447, Mr. Justice Harlan, speaking for the Court said (p. 154
U. S. 478):
"We do not overlook these constitutional limitations which, for the protection of personal rights, must necessarily attend
all investigations conducted under the authority of Congress. Neither branch of the legislative department, still less any
merely administrative body established by Congress, possesses or can be invested with a general power of making
inquiry into the private affairs of the citizen. . . . We said in Boyd v. United States, 116 U. S. 616, 116 U. S. 630 -- and it
cannot be too often repeated -- that the principles that embody the essence of constitutional liberty and security forbid
all invasions on the part of the government and its employees of the sanctity of a man's home and the privacies of his
life."
Harriman v. Interstate Commerce Commission, 211 U. S. 407, illustrates the unwillingness of this Court to construe an
Act of Congress to authorize any examination of witnesses in respect of their personal affairs. And see United States
v. Louisville & Nashville R. Co., 236 U. S. 318, 236 U. S. 335.
In Federal Trade Commission v. American Tobacco Co., 264 U. S. 298, this Court said (pp. 264 U. S. 305-306):
"Any one who respects the spirit as well as the letter of the Fourth
Page 279 U. S. 294
Amendment would be loath to believe that Congress intended to authorize one of its subordinate agencies to sweep
all our traditions into the fire (Interstate Commerce Commission v. Brimson, 154 U. S. 447, 154 U. S. 479), and to
direct fishing expeditions into private papers on the possibility that they may disclose evidence of crime. We do not
discuss the question whether it could do so if it tried, as nothing short of the most explicit language would induce us to
attribute to Congress that intent. . . . It is contrary to the first principles of justice to allow a search through all the
respondents' records, relevant or irrelevant, in the hope that something will turn up."
2. But it is clear that neither the investigation authorized by the Senate resolutions above mentioned nor the question
under consideration related merely to appellant's private or personal affairs. Under the Constitution (Art. IV, 3),
Congress has plenary power to dispose of and to make all needful rules and regulations respecting the naval oil
reserves, other public lands, and property of the United States. And undoubtedly the Senate had power to delegate
authority to its committee to investigate and report what had been and was being done by executive departments
under the Leasing Act, the Naval Oil Reserve Act, and the President's order in respect of the reserves and to make
any other inquiry concerning the public domain.
While appellant caused the Mammoth Oil Company to be organized and owned all its shares, the transaction
purporting to lease to it the lands within the reserve cannot be said to be merely or principally the personal or private
affair of appellant. It was a matter of concern to the United States. The title to valuable government lands was
involved. The validity of the lease and the means by which it had been obtained under existing law were subjects that
properly might be investigated in orderQuinn v. United States
No. 8
Argued April 4-5, 1955
Decided May 23, 1955
349 U.S. 155
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Syllabus
Petitioner and two others were summoned to testify before a congressional investigating committee. One of them
refused to say whether he was or had been a member of the Communist Party, basing his refusal on "the First and
Fifth Amendments," as well as "the First Amendment to the Constitution, supplemented by the Fifth Amendment."
Petitioner adopted the other's statement as his own, and refused to answer the same question. The committee did not
ask him to state more specifically the ground for his refusal to answer, and did not specifically overrule his objection or
direct him to answer.
Held: in his trial for contempt of Congress under 2 U.S.C. 192, the District Court should have entered a judgment of
acquittal. Pp. 349 U. S. 156-170.
1. Petitioner's references to the Fifth Amendment sufficiently invoked his constitutional privilege against self-
incrimination. Pp. 349 U. S. 160-165.
(a) The constitutional guaranty against self-incrimination must be construed liberally in favor of the right it was intended
to secure -- especially in criminal trials for refusal to answer. Pp. 349 U. S. 161-162.
(b) An answer to the question whether he was a member of the Communist Party might have tended to incriminate
petitioner. Blau v. United States, 340 U. S. 159. P. 349 U. S. 162.
(c) If an objection to a question is made in any language that a committee may reasonably be expected to understand
as an attempt to invoke the privilege, it must be respected both by the committee and by a court in a prosecution under
192. Pp. 349 U. S. 162-163.
(d) The mere fact that petitioner also relied on the First Amendment did not preclude his reliance on the Fifth
Amendment as well. P. 349 U. S. 163.
(e) Petitioner's references to the Fifth Amendment were sufficient to put the committee on notice of an apparent claim
of the privilege; and it then became incumbent on the committee either to accept the claim or to ask petitioner whether
he was, in fact, invoking the privilege. Pp. 349 U. S. 163-165.
Page 349 U. S. 156
2. On the record in this case, there was not adequate proof of a deliberate intentional refusal to answer, which is an
essential element of a violation of 2 U.S.C. 192. Pp. 349 U. S. 165-170.
(a) This element of the offense, like any other, must be proved beyond a reasonable doubt. P. 349 U. S. 115.
(b) Unless the witness is clearly apprised that the committee demands his answer notwithstanding his objection, there
can be no conviction under 192 for his refusal to answer. Pp. 349 U. S. 165-166.
(c) There is nothing in the record of the committee hearing from which petitioner could have determined with a
reasonable degree of certainty that the committee demanded his answer despite his objection. Pp. 349 U. S. 166-167.
(d) By the enactment of 2 U.S.C. 192, Congress did not intend to dispense with the traditional requirement that the
witness must be clearly apprised that an answer is demanded notwithstanding his objection. Pp. 349 U. S. 167-170.
91 U.S.App.D.C. 344, 203 F.2d 20, reversed.
MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.
Petitioner was convicted for contempt of Congress under 2 U.S.C. 192 in the District Court of the District of
Columbia. Section 192 provides for the punishment of any witness before a congressional committee "who . . . refuses
to answer any question pertinent to the question under inquiry. . . ." [Footnote 1] On appeal, the Court of Appeals
Page 349 U. S. 157
for the District of Columbia Circuit reversed the conviction and remanded the case for a new trial. [Footnote 2]
Claiming that the Court of Appeals should have directed an acquittal, petitioner applied to this Court for certiorari. We
granted the writ because of the fundamental and recurrent character of the questions presented. [Footnote 3]
Pursuant to subpoena, petitioner appeared on August 10, 1949, before a subcommittee of the Committee on Un-
American Activities of the House of Representatives. Petitioner was then a member and field representative of the
United Electrical, Radio and Machine Workers of America. Also subpoenaed to appear on that day were Thomas J.
Fitzpatrick and Frank Panzino, two officers of the same union. At the outset of the hearings, counsel for the committee
announced that the purpose of the investigation was to inquire into "the question of Communist affiliation or
association of certain members" of the union and "the advisability of tightening present security requirements in
industrial plants working on certain Government contracts." [Footnote 4] All three witnesses were asked questions
concerning alleged membership in the Communist Party. All three declined to answer.
Fitzpatrick was the first to be called to testify. He based his refusal to answer on "the First and Fifth Amendments," as
well as "the First Amendment to the
Page 349 U. S. 158
Constitution, supplemented by the Fifth Amendment." [Footnote 5] Immediately following Fitzpatrick's testimony,
Panzino was called to the stand. In response to the identical questions put to Fitzpatrick, Panzino specifically adopted
as his own the grounds relied upon by Fitzpatrick. [Footnote 6] In addition, at one point in his testimony, Panzino
stated that, "I think again, Mr. Chairman, under the Fifth Amendment, that is my own personal belief." [Footnote 7] On
the following day, petitioner, unaccompanied by counsel, was called to the stand and was also asked whether he had
ever been a member of the Communist Party. Like Panzino before him, he declined to answer, specifically adopting as
his own the grounds relied upon by Fitzpatrick. [Footnote 8]
Page 349 U. S. 159
On November 20, 1950, all three witnesses were indicted under 192 for their refusals to answer. [Footnote 9] The
three cases were tried before different judges, each sitting without a jury. Fitzpatrick and Panzino were acquitted. In
Fitzpatrick's case, it was held that his references to "the First and Fifth Amendments" and "the First Amendment to the
Constitution, supplemented by the Fifth Amendment" constituted an adequate means of invoking the Self-Incrimination
Clause of the Fifth Amendment. [Footnote 10] Similarly, in Panzino's case, it was held that his reference to "the Fifth
Amendment" was sufficient to plead the privilege. [Footnote 11] In petitioner's case, however, the District Court held
that a witness may not incorporate the position of another witness, and rejected petitioner's defense based on the Self-
Incrimination Clause. [Footnote 12] Petitioner was accordingly convicted and sentenced to a term of six months in jail
and a fine of $500.
Page 349 U. S. 160
In reversing this conviction, the Court of Appeals, sitting en banc, held that "[n]o formula or specific term or expression
is required" in order to plead the privilege, and that a witness may adopt as his own a plea made by a previous
witness. [Footnote 13] Thus, the Court of Appeals viewed the principal issue in the case as "whether Fitzpatrick did or
did not claim the privilege." [Footnote 14] On this issue, a majority of the Court of Appeals expressed no view. They
agreed that a reversal, without more, would be in order if they "were of clear opinion that Fitzpatrick, and therefore
Quinn, did claim the privilege." But they were "not of that clear opinion." [Footnote 15] The Court of Appeals therefore
ordered a new trial for determination of the issue by the District Court. [Footnote 16] The Court of Appeals also
directed the District Court on retrial to determine whether petitioner "was aware of the intention of his inquirer that
answers were required despite his objections." [Footnote 17] In that regard, however, it rejected petitioner's contention
that a witness cannot be convicted under 192 for a refusal to answer unless the committee overruled his objections
and specifically directed him to answer. [Footnote 18]
It is from that decision that this Court granted certiorari.
I concedes -- as we think it must -- that a witness may invoke the privilege by stating "I refuse to testify on the ground of
There can be no doubt as to the power of Congress, by itself or through its committees, to investigate matters and
conditions relating to contemplated legislation. This power, deeply rooted in American and English institutions, is
indeed coextensive with the power to legislate. Without the power to investigate -- including, of course, the
Page 349 U. S. 161
authority to compel testimony, either through its own processes [Footnote 19] or through judicial trial [Footnote 20] --
Congress could be seriously handicapped in its efforts to exercise its constitutional function wisely and effectively.
[Footnote 21]
But the power to investigate, broad as it may be, is also subject to recognized limitations. It cannot be used to inquire
into private affairs unrelated to a valid legislative purpose. [Footnote 22] Nor does it extend to an area in which
Congress is forbidden to legislate. [Footnote 23] Similarly, the power to investigate must not be confused with any of
the powers of law enforcement; those powers are assigned under our Constitution to the Executive and the Judiciary.
[Footnote 24] Still further limitations on the power to investigate are found in the specific individual guarantees of the
Bill of Rights, such as the Fifth Amendment's privilege against self-incrimination which is in issue here. [Footnote 25]
The privilege against self-incrimination is a right that was hard-earned by our forefathers. The reasons for its inclusion
in the Constitution -- and the necessities for its preservation -- are to be found in the lessons of history. [Footnote 26]
As early as 1650, remembrance of the horror of Star Chamber proceedings a decade before had firmly established the
privilege in the common law of England. Transplanted to this country as part of our legal heritage, it soon made its way
into various state constitutions, and ultimately, in 1791, into the federal Bill of Rights. The privilege, this Court has
stated,
"was generally regarded then, as now,
Page 349 U. S. 162
as a privilege of great value, a protection to the innocent though a shelter to the guilty, and a safeguard against
heedless, unfounded, or tyrannical prosecutions. [Footnote 27]"
Coequally with our other constitutional guarantees, the Self-Incrimination Clause "must be accorded liberal
construction in favor of the right it was intended to secure." [Footnote 28] Such liberal construction is particularly
warranted in a prosecution of a witness for a refusal to answer, since the respect normally accorded the privilege is
then buttressed by the presumption of innocence accorded a defendant in a criminal trial. To apply the privilege
narrowly or begrudgingly -- to treat it as an historical relic, at most merely to be tolerated -- is to ignore its development
and purpose.
In the instant case, petitioner was convicted for refusing to answer the committee's question as to his alleged
membership in the Communist Party. Clearly an answer to the question might have tended to incriminate him.
[Footnote 29] As a consequence, petitioner was entitled to claim the privilege. The principal issue here is whether or
not he did.
It is agreed by all that a claim of the privilege does not require any special combination of words. [Footnote 30] Plainly,
a witness need not have the skill of a lawyer to invoke the protection of the Self-Incrimination Clause. If an objection
Page 349 U. S. 163
to a question is made in any language that a committee may reasonably be expected to understand as an attempt to
invoke the privilege, it must be respected both by the committee and by a court in a prosecution under 192.
Here petitioner, by adopting the grounds relied upon by Fitzpatrick, based his refusal to answer on "the First and Fifth
Amendments" and "the First Amendment to the Constitution, supplemented by the Fifth Amendment." The Government
the Fifth Amendment." Surely, in popular parlance and even in legal literature, the term "Fifth Amendment" in the
context of our time is commonly regarded as being synonymous with the privilege against self-incrimination. The
Government argues, however, that the references to the Fifth Amendment in the instant case were inadequate to
invoke the privilege because Fitzpatrick's statements are more reasonably understood as invoking rights under the
First Amendment. We find the Government's argument untenable. The mere fact that Fitzpatrick and petitioner also
relied on the First Amendment does not preclude their reliance on the Fifth Amendment as well. [Footnote 31] If a
witness urges two constitutional objections to a committee's line of questioning, he is not bound at his peril to choose
between them. By pressing both objections, he does not lose a privilege which would have been valid if he had only
relied on one.
The Government, moreover, apparently concedes that petitioner intended to invoke the privilege. In its brief the
Government points out
"the probability that petitioner's ambiguous references to the Fifth Amendment
Page 349 U. S. 164
. . . were phrased deliberately in such vague terms so as to enable petitioner . . . to obtain the benefit of the privilege
without incurring the popular opprobrium which often attaches to its exercise. [Footnote 32]"
But the fact that a witness expresses his intention in vague terms is immaterial so long as the claim is sufficiently
definite to apprise the committee of his intention. As everyone agrees, no ritualistic formula is necessary in order to
invoke the privilege. In the instant case, Quinn's references to the Fifth Amendment were clearly sufficient to put the
committee on notice of an apparent claim of the privilege. It then became incumbent on the committee either to accept
the claim or to ask petitioner whether he was in fact invoking the privilege. Particularly is this so if it is true, as the
Government contends, that petitioner feared the stigma that might result from a forthright claim of his constitutional
right to refuse to testify. It is precisely at such times -- when the privilege is under attack by those who wrongly
conceive of it as merely a shield for the guilty -- that governmental bodies must be most scrupulous in protecting its
exercise.
This ruling by no means leaves a congressional committee defenseless at the hands of a scheming witness intent on
deception. When a witness declines to answer a question because of constitutional objections and the language used
is not free from doubt, the way is always open for the committee to inquire into the nature of the claim before making a
ruling. If the witness unequivocally and intelligently waives any objection based on the Self-Incrimination Clause, or if
the witness refuses a committee request to state whether he relies on the Self-Incrimination Clause, he cannot later
invoke its protection
Page 349 U. S. 165
in a prosecution for contempt for refusing to answer that question. Here, the committee made no attempt to have
petitioner particularize his objection. Under these circumstances, we must hold that petitioner's references to the Fifth
Amendment were sufficient to invoke the privilege, and that the court below erred in failing to direct a judgment of
acquittal.
II
There is yet a second ground for our decision.
Section 192, like the ordinary federal criminal statute, requires a criminal intent -- in this instance, a deliberate,
intentional refusal to answer. [Footnote 33] This element of the offense, like any other, must be proved beyond a
reasonable doubt. Petitioner contends that such proof was not, and cannot be, made in this case.
Clearly not every refusal to answer a question propounded by a congressional committee subjects a witness to
prosecution under 192. Thus, if he raises an objection to a certain question -- for example, lack of pertinency or the
privilege against self-incrimination -- the committee may sustain the objection and abandon the question, even though
the objection might actually be without merit. In such an instance, the witness' refusal to answer is not contumacious,
for there is lacking the requisite criminal intent. Or the committee may disallow the objection, and thus give the witness
the choice of answering or not. Given such a choice, the witness may recede from his position and answer the
question. And if he does not then answer, it may fairly be said that the foundation has been laid for a finding of criminal
Page 349 U. S. 166
intent to violate 192. In short, unless the witness is clearly apprised that the committee demands his answer
notwithstanding his objections, there can be no conviction under 192 for refusal to answer that question. [Footnote
34]
Was petitioner so apprised here? At no time did the committee specifically overrule his objection based on the Fifth
Amendment; nor did the committee indicate its overruling of the objection by specifically directing petitioner to answer.
In the absence of such committee action, petitioner was never confronted with a clear-cut choice between compliance
and noncompliance, between answering the question and risking prosecution for contempt. At best, he was left to
guess whether or not the committee had accepted his objection.
This ambiguity in the committee's position is apparent from the transcript of the hearing. [Footnote 35] Immediately
after petitioner stated that he was adopting Fitzpatrick's objection, the committee chairman asked petitioner:
". . . will you now answer the question whether you are now or ever have been a member of the Communist Party, or
do you decline to answer?"
In response to this, petitioner stated for the first time that he would not answer.
Page 349 U. S. 167
He said: "I decline to discuss with the committee questions of that nature." Committee counsel thereupon stated that
further questioning "relating to those matters" was "not necessary," and proceeded upon a new line of inquiry. There is
nothing in this colloquy from which petitioner could have determined with a reasonable degree of certainty that the
committee demanded his answer despite his objection. Rather, the colloquy is wholly consistent with the hypothesis
that the committee had, in fact, acquiesced in his objection.
Our view that a clear disposition of the witness' objection is a prerequisite to prosecution for contempt is supported by
longstanding tradition here and in other English-speaking nations. [Footnote 36] In this country, the tradition
Page 349 U. S. 168
has been uniformly recognized in the procedure of both state and federal courts. [Footnote 37] It is further reflected in
the practice of congressional committees prior to the enactment of 192 in 1857; a specific direction to answer was
the means then used to apprise a witness of the overruling of his objection. [Footnote 38] Against this background,
192 became
Page 349 U. S. 169
law. [Footnote 39] No relaxation of the safeguards afforded a witness was contemplated by its sponsors. In explaining
the bill in the House, Congressman Davis expressly stated that committee powers were not increased, that no added
burden was placed upon the witness, and that a "mere substitution" of a judicial proceeding for punishment at the bar
of Congress was intended. [Footnote 40] The reason for enacting 192 went to the punishment, and not the offense. It
was recognized that the power of Congress to deal with a contemnor by its own processes did not extend beyond the
life of any session. [Footnote 41] By making contempt of Congress a crime, a fixed term of imprisonment was
substituted for variable periods of congressional custody dependent upon the fortuity of whether the contemnor had
been called to testify near the beginning or the end of a session. [Footnote 42] But there is nothing to indicate that this
change in the mode of punishment affected in any way the well established elements of contempt of Congress. Since
the enactment of 192, the practice of specifically directing a recalcitrant witness to answer has continued to prevail.
[Footnote 43] In fact, the very committee involved here, the
Page 349 U. S. 170
House Un-American Activities Committee, originally followed this practice, [Footnote 44] and recently resumed it.
[Footnote 45]
Giving a witness a fair apprisal of the committee's ruling on an objection recognizes the legitimate interests of both the
witness and the committee. Just as the witness need not use any particular form of words to present his objection, so
also the committee is not required to resort to any fixed verbal formula to indicate its disposition of the objection. So
long as the witness is not forced to guess the committee's ruling, he has no cause to complain. And adherence to this
traditional practice can neither inflict hardship upon the committee nor abridge the proper scope of legislative
investigation.
III "Mr. QUINN. Yes; I did."

Petitioner also attacks his conviction on grounds involving novel constitutional issues. He contends that the House "Mr. WOOD. Do you support it in its entirety?"
Resolution authorizing the committee's operations is invalid under the First Amendment. In addition, petitioner
contends that the trial court erred in denying a hearing on the alleged bias of the indicting grand jury. Our disposition of
the case makes it unnecessary to pass on these issues. "Mr. QUINN. In its entirety."

The judgment below is reversed, and the case remanded to the District Court with directions to enter a judgment of "Mr. WOOD. Is there anything else you want to add to it?"
acquittal.
"Mr. QUINN. No, I don't."
Reversed.
"Mr. WOOD. Will you accept it as the expression of your views, then?"
Page 349 U. S. 171
"Mr. QUINN. You may. I may add I feel I have no other choice in this matter, because the defense of the Constitution I
[Footnote 1] hold sacred. I don't feel I am hiding behind the Constitution, but in this case I am standing before it, defending it, as
small as I am."

The section provides in full:

"Every person who having been summoned as a witness by the authority of either House of Congress to give
testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established
by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress,
willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under
inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and
imprisonment in a common jail for not less than one month nor more than twelve months."
[Footnote 2]
"Mr. WOOD. Having made that statement and subscribed to the sentiments expressed by the witness yesterday to
whom you referred, will you now answer the question whether you are now or have ever been a member of the
Communist Party?"
"Mr. QUINN. I hold that the Constitution holds sacred the rights of people --"
"Mr. WOOD. You have stated your position. Having enunciated your sentiments and your position, will you now answer
the question whether you are now or ever have been a member of the Communist Party, or do you decline to
answer?"

91 U.S.App.D.C. 344, 203 F.2d 20. "Mr. QUINN. I decline to discuss with the committee questions of that nature."

[Footnote 3] "Mr. WOOD. Proceed, Mr. Tavenner."

347 U.S. 1008. "Mr. TAVENNER. I believe, in the light of that answer, it is not necessary to ask you any further questions relating to
those matters, so I will ask you this: do you know Mr. James J. Matles?"

[Footnote 4]
"Mr. QUINN. Yes."

Hearings before House Committee on Un-American Activities Regarding Communist Infiltration of Labor Unions, 81st
Cong., 1st Sess. Part 1, 541-542. [Footnote 9]

[Footnote 5] Petitioner's motions to dismiss the indictment were denied sub nom. United States v. Emspak, 95 F.Supp. 1010, 1012.

"Mr. QUINN. I would like to make a statement along the lines that Mr. Fitzpatrick made yesterday in regard to a [Footnote 10]
question of that nature. I feel that the political beliefs, opinions, and associations of the American people can be held
secret if they so desire."
United States v. Fitzpatrick, 96 F.Supp. 491, 493.

"Mr. WOOD. And, for those reasons, do you decline to answer that question?"
[Footnote 11]

"Mr. QUINN. I didn't say I was declining to answer the question. Before I do answer the question, I should like to say
United States v. Panzino, unreported, Criminal No. 1747-50 (D.D.C.).
that I support the position taken by Brother Fitzpatrick yesterday."

[Footnote 12]
"Mr. WOOD. Did you hear his statement yesterday?"
United States v. Quinn, unreported, Criminal No. 1744-50 (D.D.C.). Kilbourn v. Thompson, 103 U. S. 168, 103 U. S. 192-193.

[Footnote 13] [Footnote 25]

91 U.S.App.D.C. 344, 347, 203 F.2d 20, 23. The Amendment provides in pertinent part that "No person . . . shall be compelled in any criminal case to be a witness
against himself. . . ."

[Footnote 14]
[Footnote 26]

Id., 91 U.S.App.D.C. at 347, 203 F.2d at 23.

See Griswold, The Fifth Amendment Today, 2-7.

[Footnote 15]
[Footnote 27]

Id., 91 U.S.App.D.C. at 348, 203 F.2d at 24.

Twining v. State of New Jersey, 211 U. S. 78, 211 U. S. 91. See also Boyd v. United States, 116 U. S. 616, 116 U. S.
631-632.
[Footnote 16]

[Footnote 28]
Ibid.

Hoffman v. United States, 341 U. S. 479, 341 U. S. 486. Cf. Counselman v. Hitchcock, 142 U. S. 547, 142 U. S. 562.
[Footnote 17]

[Footnote 29]
Id., 91 U.S.App.D.C. at 349, 203 F.2d at 25.

Blau v. United States, 340 U. S. 159, specifically holding that such a question is protected by the privilege; Brunner v.
[Footnote 18] United States, 343 U.S. 918, reversing 190 F.2d 167. See also Hoffman v. United States, 341 U. S. 479.

Ibid. [Footnote 30]

[Footnote 19] Compare Smith v. United States, 337 U. S. 137, where the Court characterized a witness' statement "I want to claim
privilege as to anything that I say", 337 U.S. at 337 U. S. 142, as a "definite claim of general privilege against self-
incrimination." 337 U.S. at 337 U. S. 151.
Cf. 19 U. S. Dunn, 6 Wheat. 204.

[Footnote 31]
[Footnote 20]

As to the close relationship between the First Amendment and the privilege against self-
In re Chapman, 166 U. S. 661.
incrimination, see Griswold, supra, note 26 at 8-9

[Footnote 21]
[Footnote 32]

See McGrain v. Daugherty, 273 U. S. 135, 273 U. S. 175.

Brief for United States, p. 33. The Government makes the same contention as to the petitioner in Emspak v. United
States, 349 U. S. 190.
[Footnote 22]
[Footnote 33]
Id. at 273 U. S. 173-174; Kilbourn v. Thompson, 103 U. S. 168, 103 U. S. 190.
Sinclair v. United States, 279 U. S. 263, 279 U. S. 299. See also In re Chapman, 166 U. S. 661, 166 U. S. 672, in
[Footnote 23] which the Court, while upholding the constitutionality of the statute, recognized deliberateness as an element of the
offense.

Compare United States v. Rumely, 345 U. S. 41, 345 U. S. 46.

[Footnote 34]

[Footnote 24]
See United States v. Kamp, 102 F.Supp. 757, 759:
"Committees of Congress must conduct examinations in such a manner that it is clear to the witness that the
Committee recognizes him as being in default, and anything short of a clear cut default on the part of the witness will
not sustain a conviction for contempt of Congress. The transcript of the defendant Kamp's testimony fails to disclose
such a clear cut default. The witness is not required to enter into a guessing game when called upon to appear before
a committee. The burden is upon the presiding member to make clear the directions of the committee, to consider any
reasonable explanations given by the witness, and then to rule on the witness' response."
The defendant was accordingly acquitted.
The cases, both federal and state, are collected in Wigmore, Evidence, 2271. See, e.g., Carlson v. United
States, 209 F.2d 209, 214, and Gendron v. Burnham, 146 Me. 387, 405-406, 82 A.2d 773, 784-785.
[Footnote 38]
See, e.g., the resolution introduced by Congressman Orr proposing that one J. W. Simonton be haled before the bar of
the House of Representatives for refusing to answer a question put to him by a duly authorized committee of that body.
Cong.Globe, 34th Cong., 3d Sess. 403-404 (1857). The resolution states in part:

On similar grounds, an acquittal was directed in United States v. Browder, unreported, Criminal No. 1784-50 (D.D.C.).
"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.
[Footnote 35] They consequently waived the interrogatory that day, to give the witness time for reflection on the consequences of his
refusal, and to afford him an opportunity to look into the law and the 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
See note 8 supra. 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."
[Footnote 36]

Id. at 403. See also id., 31st Cong., 1st Sess. 1716 (1850).
While of course not binding on Congress or its committees, the practice in the States and other English-speaking
jurisdictions is at least worthy of note.
[Footnote 39]
For examples relating to recalcitrant witnesses before state legislative committees, see Ex parte McCarthy, 29 Cal.
395, 398; People v. Keeler, 99 N.Y. 463, 471, 2 N.E. 615, 617; Lowe v. Summers, 69 Mo.App. 637, 645. Act of Jan. 24, 1857, c. 19, 1, 11 Stat. 155.

Recalcitrant witnesses before investigating committees of the British House of Commons have traditionally been [Footnote 40]
apprised of the disposition of their objections and given subsequent opportunity to respond before being subjected to
the contempt power of the legislature. The practice has been as follows: the committee reports the failure to answer to
the House. The witness is questioned about the cause of the refusal to answer before the Bar of the House. The Cong.Globe, 34th Cong., 3d Sess. 427.
House then votes on the validity of the objection. If the claim is rejected, the witness is specifically directed to answer.
Only after a subsequent refusal is punishment imposed. See 88 Journals of the House of Commons 212, 218 (Case of
Elizabeth Robinson before Select Committee on Liverpool Bribery, 1833); 90 Journals of the House of Commons 501, [Footnote 41]
504, and 29 Hans.Deb., 3d Ser. 1249, 1279-1288 (Case of William Prentice before Select Committee on Great
Yarmouth Bribery, 1835); 90 Journals of the House of Commons 564, 571, 575 (Case of Lieutenant Colonel Fairman
Anderson v. Dunn, 6 Wheat. 204, 19 U. S. 230-231.
before Select Committee on the Orange Lodges, 1835); 152 Journals of the House of Commons 661, 365 (Case of
John Kirkwood before Select Committee on Money Lending, 1897).
[Footnote 42]
For Canadian practice, see the case of W. T. R. Preston before the Committee on Public Accounts, the Committee on
Agriculture and Colonization, and the House of Commons. 41 Journals of the House of Commons, Canada, 298, 316, [Footnote 43]
323; 41 id., Appendix No. 2, 324-327; 41 id., Appendix No. 3, 250-251; 76 Debates, House of Commons,
Canada, Session 1906, Vol. III, 4451-4535.
[Footnote 44]

[Footnote 37]
See, e.g., the contempt citation of George Powers at 86 Cong.Rec. 3856-3857. See also the citation of James H.
Dolsen, id. at 3694-3695.
See Hoffman v. United States, 341 U. S. 479, 341 U. S. 486:

[Footnote 45]
"It is for the court to say whether his silence is justified . . . and to require him to answer if 'it clearly appears to the
court that he is mistaken.'"
See contempt citation of Saul Grossman, 98 Cong.Rec. 8634-8637.

See also Chief Justice Marshall in United States v. Burr, 25 Fed.Cas. 38, at 40, No. 14,692e:
MR. JUSTICE HARLAN, concurring.

"When a question is propounded, it belongs to the court to consider and to decide whether any direct answer to it can
implicate the witness."
I agree with the result reached by the Court in this case. But I must dissent from the holding made in349 U. S. The
reasons for my position are stated in Part II of my dissenting opinion in the Emspak case, decided
herewith, post, p. 349 U. S. 203, at p. 349 U. S. 213. I consider those reasons equally applicable to what is shown by
the record in this case.
MR. JUSTICE REED, dissenting. *
The Court in these two cases refuses to punish petitioners, witnesses before the Committee on Un-American Activities
of the House of Representatives, for refusal to answer certain pertinent questions. Such refusal is declared to be a
misdemeanor by 2 U.S.C. 192.
The separate opinions are based on the conclusion that the petitioners each properly claimed for himself the privilege
against self-incrimination guaranteed by the Fifth Amendment. The Court holds that questions concerning association
with known communists or membership in the Party asked witnesses holding prominent positions in a local union,
under investigation for communist infiltration directed at national security, might reasonably be feared as incriminatory
by the witnesses. [Footnote 2/1] For these cases, I make that assumption, too. In both the cases, the Court directs
remand to the trial court with directions to acquit. This disposition of the charges excludes any factual issues for
decision by the trial court as to whether the witnesses did or did not claim their
Page 349 U. S. 172
privilege. It decides that, as a matter of law, the petitioners claimed their privilege by the words used by them in
answer to the questions propounded by the Committee. Since the indictments contained numerous counts covering
many questions asked and the evidence showed varying reasons for not answering, the conclusion that privilege was
claimed blankets all questions. Since the sentences were less than the maximum penalty for one count, if the Court's
determination is wrong as to any one question, its present judgments are wrong. [Footnote 2/2] Normally the issue as
to whether a claim of privilege was made would be a matter of fact for the trial court if reasonable men might reach
either conclusion. See the discussion below in the opinion of Judge Prettyman in Quinn v. United States, 91
U.S.App.D.C. 344, 203 F.2d 20, 24, and of Judge Bazelon at 26 and 38. None of the judges of the Court of Appeals
suggested approval of such action as this Court now takes in directing acquittal. See also Emspak v. United States, 91
U.S.App.D.C. 378, 203 F.2d 54, dissent 60. This Court at least should have followed that course here.
These sweeping decisions affect the conduct of all congressional inquiries and all courts, for from the opinions there
emerges a legally enforceable rule for handling hearings or prosecutions when questions raise for the witness a
problem of self-incrimination. The Court, Quinn opinion, p. 349 U. S. 164, requires the interrogator, once the witness'
claim, though "vague . . . , is sufficiently definite to apprise the committee of his intention," to claim his privilege, "either
to accept the claim or to ask petitioner whether he was in fact invoking the privilege." Although this phrasing,
particularly the last clause, carries for me probabilities of uncertainties in future applications that former decisions
Page 349 U. S. 173
avoided, [Footnote 2/3] it is accepted for this case as the governing rule. My conclusion is that neither petitioner here
apprised the Committee that he was claiming his privilege. As shown by the cases just cited, the privilege is personal
to the witness. The reach of questions into matters that might lead to his prosecution for crime may be known only to
him. Therefore, the witness has the burden of doing something more than suggesting a question might incriminate
him. At least, in the words of the Court, he must "apprise the committee of his intention" to claim his privilege.
The purpose of having witnesses is to furnish to proper interrogators, subject to objections for materiality or the use of
coercion, the actual facts they seek. Legislation can best be drafted and cases tried most fairly only when all pertinent
facts are made available to those charged with legislation or maintenance of the peace. However, the Congress, in the
first series of Amendments to the Constitution, wrote an exception to this duty in the instance where an answer would
compel a person to be a witness against himself in a criminal case. In that situation, on a valid claim of privilege
against self-incrimination, the witness may be excused from answering. [Footnote 2/4] That exception should neither
be shriveled nor bloated. It is designed to excuse the guilty and the innocent alike from testifying when prosecution
may reasonably be feared from compelled disclosures. The importance of preserving the right to require evidence,
except when a witness definitely apprises the interrogating body of a valid claim of privilege, leads us to dissent.
Page 349 U. S. 174
I "What I say revolves around two points, one organizationally and another as an individual. Organizationally, my job as
. CLAIM OF PRIVILEGE
The Court finds from the record before the Committee an apprisal by petitioners which the Committee should have
understood as a claim of privilege against self-incrimination. In examining the record for this purpose, all the pertinent
testimony must be considered and evaluated in the light of the purpose and abilities of the petitioners.
During an active period of national rearmament, this Committee was investigating subversive and security situations in
the sensitive electronic industry with a view to possible legislation. [Footnote 2/5] The recalcitrant witnesses held
important positions in the field. Mr. Quinn was a field organizer of the International Union of the United Electrical,
Radio, and Machine Workers. Mr. Emspak was its General Secretary. The third witness, who is not a petitioner but
whose testimony is hereafter referred to, was Mr. Fitzpatrick, chief steward of the Westinghouse Corporation local.
There is nothing to indicate that the witnesses had mentalities of a quality less than one would expect from
experienced officials holding such responsible positions.
It will be observed from their testimony, however, that, in avoiding direct answers to specific questions, each one
engaged in exercises in dialectics that always fell short of advising the Committee of any intention to claim his
privilege. In view of the ease with which a claim can be made by any layman, the availability of personal lawyers for
these witnesses, and the careful avoidance of any such statement as, "I decline to answer on the ground of possible
self-incrimination," I cannot hold that these
Page 349 U. S. 175
witnesses evidenced by their testimony an intention to claim privilege. The fact that a claim of privilege would subject
the witnesses to criticism in some quarters, of course, has no bearing upon the necessity to assert one's rights. This is
emphasized by the fact that, long ago, this Court declared that no moral turpitude is involved in refusing to answer
under the protection of the privilege. [Footnote 2/6]
While the trial and appellate courts each had only a printed record of the testimony, one group, the subcommittees
themselves, had the best opportunity to appraise disinterestedly the fact of whether Messrs. Quinn and Emspak
claimed the privilege. The questions and answers were both asked by the counsel and answered by the witnesses in
the hearing of the Committee. In citations of Quinn and Emspak to the House for contempt, the Committee certified
that the refusal of each "to answer the aforesaid questions deprived your committee of necessary and pertinent
testimony. . . ." [Footnote 2/7] It can hardly be contended that the Committee did not know a claim of privilege against
answering incriminating questions would have excused the witnesses from answering.
In view of the basis of the Court's decision made on its own examination and appraisal of the record, we must
necessarily set out for discussion much of the testimony to determine whether the witnesses claimed the privilege.
[Footnote 2/8] The pertinent evidence follows.
After testifying at some length, the petitioner was asked: "Mr. Emspak, are you acquainted with Joseph
Page 349 U. S. 176
Persily?" Petitioner did not answer the question, but made the following statement:
"Mr. Emspak. Mr. Chairman, I would like to say something at this point."
"Mr. Moulder. You mean in response to the question?"
"Mr. Emspak. I will answer the question; yes, in response to the question and as a statement of position."
an officer of this union is to represent the interest of the membership as they determine it at the annual conventions
and at other means they have of getting together and expressing themselves. My job is to administer that aspect to the
best of my ability, using one very simple measuring stick, and that is: does a given policy or action contribute to the "Mr. Moulder. Are you going to answer the question? "
wellbeing of the membership, individually and collectively?"

Page 349 U. S. 178

"As an individual, I would like to say one thing, and that is this: the line of questioning that counsel is developing now is
a line that has been used on numerous occasions by this committee and other congressional committees in an attempt
to harass the union, its leadership, and its members. It is a line of questioning that goes against my grain as an "Mr. Emspak. Because of the hysteria, I think it is my duty to endeavor to protect the rights guaranteed under the
American. I was born in this country. Everything I am --" Constitution, primarily the First Amendment, supplemented by the Fifth. This committee will corrupt those rights."

"Mr. Moulder. How long will this statement take, Mr. Emspak?" "Mr. Moulder. Do you think it corrupts you to answer the question?"

"Mr. Emspak. About two or three more minutes." "Mr. Emspak. I certainly do."

"Mr. Moulder. Proceed." "Mr. Moulder. Why does it corrupt you?"

"Mr. Emspak. Everything I am, I owe to the rich heritage and tradition of this country. I do not "Mr. Emspak. Your activities are designed to harm the working people of this country. Every action this committee has
ever taken has done that. You interfered last summer in the election of a local union at the request of a priest. You
know that. You dragged down the prestige of this country."
Page 349 U. S. 177

"Mr. Moulder. You are not going to take over this committee."
believe that a committee of this kind, especially in view of the recent record of this committee where it stooped to
interfere in the partisan affairs of a local union, or any congressional committee, because of the rich tradition of this
country which, if not perverted, will lead to a greater and better country -- I don't think a committee like this or any "Mr. Emspak. I don't want to."
subcommittee has a right to go into any question of my beliefs, my associations, or anything else. I have a couple of
kids. They have a stake in this country, too."
"Mr. Moulder. And your statements are preposterous. The purpose of this committee is to expose communism as it
exists in this country. What is the question?"
"Mr. Moulder. I want to give you full opportunity to express yourself in answer to the question, but you are making an
oration now."
"Mr. Tavenner. Are you acquainted with Joseph Persily?"

"Mr. Emspak. It is not an oration. It happens to be a very profound personal feeling."

"Mr. Emspak. For the reasons I stated before, I answered it."

"Mr. Moulder. What is the question?"

"Mr. Moulder. Then you refuse to answer the question?"

"Mr. Tavenner. The question is: are you acquainted with Joseph Persily."
"Mr. Emspak. No. I answered it."

"Mr. Moulder. How do you spell that?"

"Mr. Tavenner. Are you or are you not acquainted with Joseph Persily?"

"Mr. Tavenner. P-e-r-s-i-l-y."

"Mr. Emspak. I answered the question."

"Mr. Emspak. Because I have a stake in this country --"

"Mr. Tavenner. Your replies are a refusal to comply with the request to answer it?"

"Mr. Moulder. You are not answering the question. He asked you if you are acquainted with this man."
"(Witness confers with his counsel.) "

"Mr. Emspak. I will answer it."

Page 349 U. S. 179

"Mr. Moulder. Are you or not?"

"Mr. Moulder. The record will reveal that you have not answered the question."

"Mr. Emspak. I was on the verge of answering it."

"Mr. Emspak. I have answered it to the best of my ability under the circumstances."

"Mr. Moulder. If you have any explanation to make, you will be permitted to do so after you answer the question."
In answer to subsequent questions, the petitioner simply referred to his prior answer. Later on, the following
statements were made:
"Mr. Emspak. Because of my interest in what is going on these days, because of the activities of this committee --"
"Mr. Emspak. Mr. Chairman, on these questions, which are all essentially the same, of course, when this hearing was
announced, according to the press reports, at least, it was announced because this committee presumably was
interested in finding out things with reference to individuals in our organization by using whatever means it has at its
disposal, and for the purpose of trying to perhaps frame people for possible criminal prosecution."
"I don't see how or why any individual should be subjected to that kind of questioning here if he is going to maintain,
you know, his feelings on these questions, and I tried to express the feeling before when you interrupted me. I just
don't intend, as I said then, to be a party to any kangaroo court proceedings of this committee or any other
congressional committee. I think I have the right to reserve whatever rights I have in that respect to whatever
appropriate bodies may be set up to deal with questions that come up."
"Mr. Moulder. Do you mean to say you have people in your organization who have information that would subject you
to criminal prosecution?"
"Mr. Emspak. No; I don't, Mr. Chairman. As a basic proposition -- and it has worked over the years and over the last
few months as far as this committee is concerned -- a slick job -- "
Page 349 U. S. 180
"Mr. Moulder. Do you know them, or not?"
"Mr. Emspak. That does not concern this committee at all."
"Mr. Moulder. Is it your feeling that to reveal your knowledge of them would subject you to criminal prosecution?"
"Mr. Emspak. No. I don't think this committee has a right to pry into my associations. That is my own position."
No more of the record is printed, as the excerpt shows the exchange between the Committee and petitioner upon
which Count I of the indictment and the constitutional issues arising thereunder are based. This related to his
acquaintanceship with Joseph Persily, a man who had been listed, according to a stipulation, as a person named as
an official "of the UERMWA with Communist or Communist Front Affiliations." Nothing more favorable to petitioner's
position appears on the questions examined or any other question.
As the Emspak case offers for me a clear example of failure to claim his privilege, I think it better not to encumber this
opinion unnecessarily with quotations from the Quinn case.
In the Quinn case, the witness adopted in its entirety the testimony of a former witness, Mr. Thomas J. Fitzpatrick,
chief steward of Local No. 601, United Electrical, Radio and Machine Workers of America. Mr. Quinn's testimony
establishing his reliance on Mr. Fitzpatrick's evidence will be found in this Court's opinion in
the Quinn case, supra, note 8 ante, p. 158. The hearing opened with a declaration by Mr. Fitzpatrick of minority rights
to secrecy as follows:
"The Constitution of this country provides certain protection for minorities and gives the privilege for people to speak
and think as they feel that they
Page 349 U. S. 181
should and want to. It also gives the privilege that people can have opinions or beliefs that may be unpopular. In my
opinion, it gives them the right to hold those opinions secret if they so desire. This is a protection of the First
Amendment to the Constitution, supplemented by the Fifth Amendment."
"Mr. Wood. What is?"
"Mr. Fitzpatrick. The right of the people guaranteed by the Constitution."
This certainly indicated no claim of the privilege against self-incrimination. Mr. Fitzpatrick was then asked: "Are you
now or have you ever been a member of the Communist Party?" After fencing with the Committee about prying into his
mind, he said:
"Mr. Fitzpatrick. I will answer the question. The Constitution guarantees the right to me and every other citizen to have
beliefs, whether they are popular or unpopular, and to keep them to themselves if they see fit, and I have no intention
of being a party to weakening or destroying that protection in the Constitution. I feel when I take this position that I am
one of the real Americans, and not like some of the phonies who appear here."
Later on, he was asked whether he had asked a Mr. Copeland to sign an application for membership in a Communist
organization. In answer to that question, this occurred.
"Mr. Fitzpatrick. Mr. Chairman, do I have to give you my answer again?"
"Mr. Wood. I just want to know whether you did that one thing."
"Mr. Fitzpatrick. I say if I did or if I did not, regardless of what I did, it is not the affair of this committee to pry into this
kind of action. "
Page 349 U. S. 182
"Mr. Wood. And, for that reason, do you decline to answer the question?"
"Mr. Fitzpatrick. I stand on the protection of the Constitution, the First and Fifth Amendments."
"Mr. Wood. And, for those reasons, decline to answer the question further?"
"Mr. Fitzpatrick. I have answered the question."
"Mr. Wood. I say, do you decline to answer it further?"
"Mr. Fitzpatrick. I have no further comment on it."
The two references to the First and Fifth Amendments are the only phrases in the whole examination that could be
thought to refer to a claim of immunity against self-incrimination.
From these vague statements of Messrs. Quinn and Emspak, the Court draws the conclusion that they were sufficient
to apprise the Committee of the witnesses' intention to claim the privilege against self-incrimination. The Court finds
support for its theory of "intention" to claim privilege from a statement in the Government's brief in the Quinn case set
out below. [Footnote 2/9] With all respect,
Page 349 U. S. 183
I fail to see any concession by the Government of evidence that should apprise the Committee of a claim of privilege
against self-incrimination. The first sentence of the quotation from the brief emphatically denies the Court's
assumption.
What the records show to me is a calculated effort by Messrs. Quinn, Emspak and Fitzpatrick to hinder and delay a
congressional committee in its effort to bring out facts in order to determine whether or not to undertake legislation.
Such quibbling evades the basis for an understanding of the attitude of the witness as to privilege. It does not apprise Page 349 U. S. 186
the Committee of the claim of privilege, and should not be held permissible. Factual testimony is the means for the
ascertainment of truth in legally organized inquiries. Silence brings the proceedings to a dead end. The burden is on
the witness to advise his interrogators of a claim to privilege in understandable terms. [Footnote 2/10] In the context of misunderstanding. [Footnote 2/13] Good faith in refusing to answer, however, is no defense so long as the refusal is
this testimony, the adoption by Mr. Quinn of Mr. Fitzpatrick's reference to the First and Fifth Amendments smacks intentional, deliberate. Sinclair v. United States, 279 U. S. 263, 279 U. S. 299, points out that:
strongly of a "due process" Fifth Amendment claim. Mr. Fitzpatrick had been speaking of his right of privacy, speech
and association, not of the privilege against self-incrimination. He then added:
"The gist of the offense is refusal to answer pertinent questions. . . . Intentional violation is sufficient to constitute guilt."

"Mr. Chairman, if you want to ask me questions about my actions of loyalty, question my loyalty, you have a right to do
United States v. Murdock, 284 U. S. 141, involved a statute very similar to the one here involved. In that case,
so, and I will answer them. So far as my political opinions, I have stated my position on that. You are asking the same
Murdock had been called to testify before an Internal Revenue Agent, and refused to answer certain questions on the
question in a different way. But, if my memory is right, there was no such thing as a Communist Party when that
ground that he might be incriminated under state law. We said in that case:
affidavit is supposed to have been. "

"While undoubtedly the right of a witness to refuse to answer lest he incriminate himself may be tested in proceedings
Page 349 U. S. 184
to compel answer, there is no support for the contention that there must be such a determination of that question
before prosecution for the willful failure so denounced. By the very terms of the definition, the offense is complete at
The same attitude shows through Mr. Emspak's testimony. In addition, there was a direct refusal by Mr. Emspak to the time of such failure."
claim privilege. See pp. 349 U. S. 179-180, supra.
284 U.S. at 284 U. S. 148.
The Court suggests that this should not be construed as a waiver of the claim, and cites Smith v. United States, 337 U.
S. 137, 337 U. S. 151. I do not think the Smith case apposite. In that case, there had been a clear claim of privilege for
There was no direction to answer in either case. While the point was not raised, their holding as to what establishes
immunity. We held that required a definite, unambiguous waiver. Here, there was, in my view, no claim of privilege.
the offense does not include a specific direction to answer as one of the elements.

The opinion of the trial court, printed only in the record, pp. 224-227, holds "The defendant failed to assert [the
privilege]." Six of the nine members of the Court of Appeals held that Emspak had not claimed. Three did not reach
that issue.
I concur with the Court in its assertions of the value of the self-incrimination clause -- that it may be used as a shield by
guilty and innocent alike -- and that it should be construed liberally, as it has been, to cover more than the literal
reading of the phrase "No person . . . shall be compelled in any criminal case to be a witness against himself" would
suggest. [Footnote 2/11] This sympathetic attitude toward the clause should not lead us to intrude our ideas of
propriety into the conduct of congressional hearings.
Page 349 U. S. 185
The rule laid down by the Court today merely adds another means for interference and delay in investigations and
trials, without adding to the protection of the constitutional right of freedom from self-incrimination. This is contrary to
the policy of Congress to get information from witnesses even with a claim of immunity, through the Compulsory
Testimony Act of August 20, 1954, 68 Stat. 745 and note preceding 3481.
II
. DIRECTION TO ANSWER
The Court advances a second ground in the Quinn and Emspak cases for its direction that the District Court enter a
judgment of acquittal. This is that a deliberate intent to refuse to answer the Committee's questions is required for the
judgment of contempt. The Court explains, Quinn case, p.349 U. S. 166, that intent may be implied only when the
witness is "clearly apprised that the Committee demands his answer notwithstanding his objections,"
and, Emspak case, p. 349 U. S. 202, "without such apprisal, there is lacking the element of deliberateness necessary
for a conviction under 192 for a refusal to answer." The Court concludes that the witness was not "specifically"
directed to answer, or otherwise informed as to the disposition of his objections.
While the Court held in Sinclair that deliberate refusal was all that was required to consummate the offense under 2
U.S.C. 192, at the same time we were at pains to point out "There was no misapprehension" on the part of the
witness "as to what was called for." 279 U.S. at 279 U. S. 299. It is because the refusal must be intentional that the
witness
Page 349 U. S. 187
must know that his excuses for not answering have not been accepted by the Committee. When a witness interposes
objections to testifying which are not frivolous, it is difficult to say he intentionally refused to answer when the
interrogation continues without pause to some other question. I agree that the Committee cannot, in fairness to the
witness, lull him into thinking that his refusal to answer is acceptable and then cite him for contempt. Refusal under
such circumstances would not be deliberate. However, specific direction to answer is not necessary; only intentional
refusal is.
The Court suggests, note 36 Quinn case, that congressional committees follow the practice of other legislative bodies
and determine first the validity of the witness' reason for failure to answer and then direct him to answer. The defect in
that analogy is that the Court seems to assume in its note a formal vote and a specific direction to answer. I think such
a specific direction is inconsistent with its page349 U. S. 170 admission that no ritualistic formula is required. No
provision of the statute, nor of any rule of Congress, is cited by the Court to support a requirement of specific direction.
The Court of Appeals held direction to answer unnecessary so long as the witness knew that the Committee had not
acceded to his refusal. [Footnote 2/14] As I stated above, in my view, it is sufficient if the witness knows his excuses
are not acceptable to the Committee and that he is required to answer. Whether or not the witnesses knew this in
these two cases is the question on this second point.
The Court holds that the witnesses did plead the privilege, and were not advised that the Committee refused to accept
their pleas. I disagree. After Mr. Quinn had adopted Mr. Fitzpatrick's words as his own method of
Page 349 U. S. 188

The Court must admit, as it does, Quinn opinion, p. 349 U. S. 162, that no particular form of words is required. On the refusing to answer the question as heretofore discussed, it will be seen that Mr. Wood, a Committee member, said to
other hand, I must admit that a witness must be clearly apprised that his claim of the freedom from an obligation to Mr. Quinn:
answer is not accepted by the interrogator. [Footnote 2/12] I agree that the offense punishable under the statute is a
deliberate, intentional refusal -- not an inadvertence, accident or
"Mr. Wood. You have stated your position. Having enunciated your sentiments and your position, will you now answer [Footnote 2/2]
the question whether you are now or ever have been a member of the Communist Party, or do you decline to
answer?"
Sinclair v. United States, 279 U. S. 263, 279 U. S. 299(7).

"Mr. Quinn. I decline to discuss with the committee questions of that nature."
[Footnote 2/3]

This, I think advised Mr. Quinn that the Committee refused to accept his reply as a satisfactory excuse, and required
him to proceed. United States ex rel. Vajtauer v. Commissioner, 273 U. S. 103, 273 U. S. 113; United States v. Monia, 317 U. S.
424, 317 U. S. 427, dissent 317 U. S. 439; Rogers v. United States, 340 U. S. 367, 340 U. S. 371; cf. Adams v.
Maryland, 347 U. S. 179.
I think, too, that Mr. Emspak was advised his answer was not accepted, and that he was required to proceed. When he
was asked repeatedly as to whether he was acquainted with Joseph Persily, he said again:
[Footnote 2/4]

"Mr. Emspak. For the reasons I stated before, I answered it."

See McCarthy v. Arndstein, 266 U. S. 34; Counselman v. Hitchcock, 142 U. S. 547.

"Mr. Moulder. Then you refuse to answer the question?"

[Footnote 2/5]

"Mr. Emspak. No. I answered it."

Hearings before House Committee on Un-American Activities Regarding Communist Infiltration of Labor Unions, Part
1, 81st Cong., 1st Sess. 541.
"Mr. Tavenner. Are you or are you not acquainted with Joseph Persily?"

[Footnote 2/6]
"Mr. Emspak. I answered the question."

Sinclair v. United States, 279 U. S. 263, 279 U. S. 299.

"Mr. Tavenner. Your replies are a refusal to comply with the request to answer it?"

[Footnote 2/7]
"(Witness confers with his counsel.)"

Proceedings against Julius Emspak, H.R.Rep.No.2847, 81st Cong., 2d Sess., p. 10; same against Thomas Quinn,
"Mr. Moulder. The record will reveal that you have not answered the question." H.R.Rep.No.2857, p. 3.

"Mr. Emspak. I have answered it to the best of my ability under the circumstances." [Footnote 2/8]

On continued questioning as to Mr. Persily, he continued, "I will give the same answer." I cannot but conclude, as did Any person who desires to see the complete essential testimony may consult the Proceedings, cited in the preceding
the lower courts, that the witness Emspak was adequately note. See also H.R.Rep.No.2856.

Page 349 U. S. 189 [Footnote 2/9]

informed that his objections were refused and that he must answer. "Under these circumstances, we contend that petitioner did not adequately inform the Committee that he was claiming
the protection of the privilege."

The Court directs acquittal of both petitioners on the grounds of claim of privilege and failure to specifically overrule
their objections or direct them to answer. I disagree with both grounds. Confining expression of my views to those
issues, I dissent.
MR. JUSTICE MINTON joins in so much of this opinion as applies to Emspak v. United States.
* [This dissenting opinion applies also to Emspak v. United States, post, p. 349 U. S. 190.]
[Footnote 2/1]
Blau v. United States, 340 U. S. 159; Emspak v. United States, post, p. 349 U. S. 190, at p. 349 U. S. 199; see the
Court's opinion in Quinn v. United States, supra, at p. 349 U. S. 162.
"Moreover, we feel bound to point out the probability that petitioner's ambiguous references to the Fifth Amendment
(and those of the petitioner Emspak in No. 9), which he now contends constituted a claim of privilege, were phrased
deliberately in such vague terms so as to enable petitioner (and Emspak) to obtain the benefit of the privilege without
incurring the popular opprobrium which often attaches to its exercise. This suggestion is not based merely upon the
obvious fact that it would have been extremely easy for petitioner to have informed the Committee that answers to its
questions might incriminate or endanger him. It is also based upon facts of record, and matters appropriate for judicial
notice, which reveal that petitioner (and Fitzpatrick and Emspak) had compelling and immediate reasons to refrain
from making any public statements from which it might be inferred, properly or not, that they were Communists or
Communist sympathizers."
Govt. br., 33-34.
[Footnote 2/10]
See note 3, supra.
[Footnote 2/11]
See, for example, Counselman v. Hitchcock, 142 U. S. 547, 142 U. S. 562; Blau v. United States (two cases), 340 U.
S. 159 and 340 U. S. 340 U.S. 332 (privilege available at grand jury proceedings); McCarthy v. Arndstein, 266 U. S.
34, 266 U. S. 40,
"The privilege is not ordinarily dependent upon the nature of the proceeding in which the testimony is sought or is to be
used. It applies alike to civil and criminal proceedings, wherever the answer might tend to subject to criminal
responsibility him who gives it. The privilege protects a mere witness as fully as it does one who is also a party
defendant"
(proceedings in bankruptcy); Brown v. Walker, 161 U. S. 591, and see also Graham v. United States, 99 F.2d 746
(administrative proceedings); see also Wood v. United States, 75 U.S.App.D.C. 274, 128 F.2d 265 (preliminary
hearings).
[Footnote 2/12]
Fields v. United States, 82 U.S.App.D.C. 354, 164 F.2d 97, 100; Bart v. United States, 91 U.S.App.D.C. 370, 203 F.2d
45, 48; Emspak v. United States, 91 U.S.App.D.C. 378, 203 F.2d 54, 56.
[Footnote 2/13]
Townsend v. United States, 68 App.D.C. 223, 229, 95 F.2d 352, 358; Fields v. United States, 82 U.S.App.D.C. 354,
357, 164 F.2d 97, 100.
[Footnote 2/14]
The instant case and the Emspak and Bart cases all deal at length with his question. Emspak v. United States, 91
U.S.App.D.C. 378, 203 F.2d 54, 56; Bart v. United States, 91 U.S.App.D.C. 370, 203 F.2d 45, 50.See also comments,
40 Geo.L.J. 137; 41 Geo.L.J. 433.
Page 279 U. S. 295
to determine what if any legislation was necessary or desirable in order to recover the leased lands or to safeguard
other parts of the public domain.
Neither Senate Joint Resolution 54 nor the action taken under it operated to divest the Senate or the committee of
power further to investigate the actual administration of the land laws. It may be conceded that Congress is without
authority to compel disclosures for the purpose of aiding the prosecution of pending suits; but the authority of that
body, directly or through its committees, to require pertinent disclosures in aid of its own constitutional power is not
abridged because the information sought to be elicited may also be of use in such suits.
The record does not sustain appellant's contention that the investigation was avowedly not in aid of legislation. He
relies on the refusal of the committee to pass the motion directing that the inquiry should not relate to controversies
pending in court and the statement of one of the members that there was nothing else to examine appellant about. But
these are not enough to show that the committee intended to depart from the purpose to ascertain whether additional
legislation might be advisable. It is plain that investigation of the matters involved in suits brought or to be commenced
under Senate Joint Resolution 54 might directly aid in respect of legislative action.
3. There is no merit in appellant's contention that a verdict should have been directed for him because the evidence
failed to show that the committee was authorized to make the inquiry, summon witnesses, and administer oaths.
Resolutions 282 and 294 were sufficient until the expiration of the Sixty-Seventh Congress during which they were
adopted, but it is argued that Resolution 434 was not effective to extend the power of the committee. As set out in the
indictment and shown by the record,
Page 279 U. S. 296
Resolution 434 does not mention 294 or refer to the date of its adoption. The former, so far as material, follows:
"Resolved, that Senate Resolution 282, agreed to April 21, 1922, and Senate Resolution 292, agreed to May 15, 1922,
authorizing and directing the committee on public lands and surveys to investigate the entire subject of leases upon
naval oil reserves, with particular reference to the protection of the rights and equities of the government of the United
States and the preservation of its natural resources, and to report its findings and recommendations to the Senate . . .
be . . . continued in full force and effect until the end of the Sixty-Eighth Congress. The committee . . . is authorized to
sit . . . after the expiration of the present Congress until the assembling of the Sixty-Eighth Congress and until
otherwise ordered by the Senate."
There is enough in that resolution to show that, where "292" appears, 294 was meant. The subject of the investigation
is specifically mentioned. That is the only matter dealt with. The sole purpose was to authorize the committee to carry
on the inquiry. It would be quite unreasonable, if not indeed absurd, for the Senate to direct investigation by the
committee and to allow its power to summon and swear witnesses to lapse. The context and circumstances show that
Resolution 294 was intended to be kept in force. See School District No. 11 v. Chapman, 152 F. 887, 893, 894.
4. Appellant earnestly maintains that the question was not shown to be pertinent to any inquiry the committee was
authorized to make. The United States suggests that the presumption of regularity is sufficient without proof. But,
without determining whether that presumption is applicable to such a matter, it is enough to say that the stronger
presumption of innocence attended the accused at the trial. It was therefore incumbent upon the United States to
plead and show that the question
Page 279 U. S. 297
pertained to some matter under investigation. Appellant makes no claim that the evidence was not sufficient to
establish the innuendo alleged in respect of the question; the record discloses that the proof on that point was ample.
Congress, in addition to its general legislative power over the public domain, had all the powers of a proprietor, and
was authorized to deal with it as a private individual may deal with lands owned by him. United States v. Midwest Oil
Co., 236 U. S. 459, 236 U. S. 474. The committee's authority to investigate extended to matters affecting the interest
of the United States as owner as well as to those having relation to the legislative function.
Before the hearing at which appellant refused to answer, the committee had discovered and reported facts tending to
warrant the passage of Senate Joint Resolution 54 and the institution of suits for the cancellation of the naval oil
reserve leases. Undoubtedly it had authority further to investigate concerning the validity of such leases, and to
discover whether persons, other than those who had been made defendants in the suit against the Mammoth Oil
Company, had or might assert a right or claim in respect of the lands covered by the lease to that company.
The contract and release made and given by Bonfils and Stack related directly to the title to the lands covered by the
lease which had been reported by the committee as unauthorized and fraudulent. The United States proposed to
recover and hold such lands as a source of supply of oil for the Navy. S.J.Res. 54. It is clear that the question so G.R. No. L-6749 July 30, 1955
propounded to appellant was pertinent to the committee's investigation touching the rights and equities of the United
States as owner.
JEAN L. ARNAULT, petitioner-appellee,
Moreover, it was pertinent for the Senate to ascertain the practical effect of recent changes that had been made vs.
EUSTAQUIO BALAGTAS, as Director of Prisons, respondent-appellant.
Page 279 U. S. 298

in the laws relating to oil and other mineral lands in the public domain. The leases and contracts charged to have been Office of the Solicitor General Ambrosio Padilla, Assistant Solicitor General
unauthorized and fraudulent were made soon after the executive order of May 31, 1921. The title to the lands in the Guillermo E. Torres and Solicitor Jaime De Los Angeles for appellant.
reserves could not be cleared without ascertaining whether there were outstanding any claims or applications for
permits, leases, or patents under the Leasing Act or other laws. It was necessary for the government to take into Estanislao A. Fernandez and Roman B. Antonio for appellee.
account the rights, if any there were, of such claimants. The reference in the testimony of Bonfils to the contract
referred to in the question propounded was sufficient to put the committee on inquiry concerning outstanding claims
possibly adverse and superior to the Mammoth Oil Company's lease. The question propounded was within the LABRADOR, J.:
authorization of the committee and the legitimate scope of investigation to enable the Senate to determine whether the
powers granted to or assumed by the Secretary of the Interior and the Secretary of the Navy should be withdrawn,
limited, or allowed to remain unchanged. This an appeal from judgment of the Court of First Instance of Rizal, Pasay
City Branch, Honorable Jose F. Flores presiding, in habeas corpus proceeding,
5. The question of pertinency under 102 was rightly decided by the court as one of law. It did not depend upon the
declaring that the continued detention and confinement of Jean L. Arnault in
probative value of evidence. That question may be likened to those concerning relevancy at the trial of issues in court,
and it is not essentially different from the question as to materiality of false testimony charged as perjury in the new Bilibid Prison, in pursuance of Senate Resolution No. 114, dated
prosecutions for that crime. Upon reasons so well known that their repetition is unnecessary, it is uniformly held that
November 8, 1952, is illegal, for the reason that the Senate of the Philippines
relevancy is a question of law. Greenleaf on Evidence (13th ed.) 49; Wigmore on Evidence, 2549, 2550. And the
materiality of what is falsely sworn, when an element in the crime of perjury, is one for the court. Carroll v. United committed a clear abuse of discretion in considering his answer naming one
States, 16 F.2d 951; United States v. Singleton, 54 F. 488; Cothran v. State, 39 Miss. 541, 547.
Jess D. Santos as the person to whom delivery of the sum of P440,000 was
made in the sale of the Buenavista and Tambobong Estate, as a refusal to
Page 279 U. S. 299
answer the question directed by the Senate committee to him, and on the
The reasons for holding relevancy and materiality to be questions of law in cases such as those above referred to further ground that said Jean L. Arnault, by his answer has purged himself of
apply with equal force to the determination of pertinency arising under 102. The matter for determination in this case contempt and is consequently entitled to be released and discharged.
was whether the facts called for by the question were so related to the subjects covered by the Senate's resolutions
that such facts reasonably could be said to be "pertinent to the question under inquiry." It would be incongruous and
contrary to well established principles to leave the determination of such a matter to a jury. Interstate Commerce
Petitioner-appellee was an attorney in-fact or Ernest H. Burt in the negotiations
Commission v. Brimson, supra, p. 154 U. S. 489; Horning v. District of Columbia, 254 U. S. 135.
for the purchase of the Buenavista and Tambobong Estates by the
6. There is no merit in appellant's contention that he is entitled to a new trial because the court excluded evidence that, Government of the Philippines. The purchase was effected on October 21,
in refusing to answer, he acted in good faith on the advice of competent counsel. The gist of the offense is refusal to
1949 and the price paid for both estates was P5,000,000. On February 27,
answer pertinent questions. No moral turpitude is involved. Intentional violation is sufficient to constitute guilt. There
was no misapprehension as to what was called for. The refusal to answer was deliberate. The facts sought were 1950, the Senate of the Philippines adopted Resolution No. 8, whereby it
pertinent as a matter of law, and 102 made it appellant's duty to answer. He was bound rightly to construe the
created a Special Committee to determine "whether the said purchase was
statute. His mistaken view of the law is no defense. Armour Packing Co. v. United States, 209 U. S. 56,209 U. S.
85; Standard Sanitary Mfg. Co. v. United States, 226 U. S. 20, 226 U. S. 49. honest, valid and proper, and whether the price involved in the deal was fair
and just, the parties responsible therefor, any other facts the Committee may
7. The conviction on the first count must be affirmed. There were ten counts, demurrer was sustained as to four, nolle
deem proper in the premises." In the investigation conducted by the
prosequi was entered in respect of two, and conviction was had on the first, fourth, fifth and ninth counts. As the
sentence does not exceed the maximum authorized as punishment for the offense charged in the first count, we need Committee in pursuance of said Resolution, petitioner-appellee was asked to
not consider any other count. Abrams v. United States,250 U. S. 616, 250 U. S. 619.
whom a part of the purchase price, or P440,000, was delivered. Petitioner-
appellee refused to answer this question, whereupon the Committee resolved
Judgment affirmed.
on May 15, 1950, to order his commitment to the custody of the Sergeant at-
arms of the Philippines Senate and imprisoned in the new Bilibid Prison in
Rizal until such time when he shall reveal to the Senate or to the Special
Committee the name of the person who received the P440,000 and to answer
questions pertinent thereto. In G.R. No. L-3820, petitioner-appellee herein
questioned the validity of the confinement so ordered, by a petition
for certiorari filed in this Court. He contended that the Senate of the Philippines
has no power to punish him for contempt for refusing to reveal the name of the
person to whom he delivered P440,000., that the Legislature lacks authority to
punish him for contempt beyond the term of the legislative session, and that
the question of the Senate which he refused to answer is an incriminating
question which the appellee is not bound to answer. All the abovementioned
contentions were adversely passed upon by the decision of this Court, so his
petition for release was denied.
In the month of December, 1951, while still in confinement in Bilibid, petitioner-
appellee executed an affidavit, Exhibit A, wherein he gives in detail the history
of his life, the events surrounding acquisition of the Buenavista and
Tambobong Estates by Gen. Burt, the supposed circumstances under which
he met one by the name of Jess D. Santos. Upon the presentation of the said
affidavit to the said Senate Special Committee, the latter subjected petitioner to
questioning regarding the identity of Jess D. Santos, and after said
investigation and questioning the Committee adopted Resolution No. 114 on
November 8, 1952. This Resolution reads as follows:
RESOLUTION APPROVING THE REPORT OF THE SPECIAL
COMMITTEE TO INVESTIGATE THE BUENAVISTA AND
TAMBOBONG ESTATES DEAL, AND ORDERING THE DIRECTOR
OF PRISON TO CONTINUE HOLDING JEAN L. ARNAULT IN HIS
CUSTODY, AND IN CONFINEMENT AND DETENTION AT THE NEW
BILIBID PRISON AT MUNTINLUPA, RIZAL, UNTIL THE SAID
ARNAULT SHALL HAVE PURGED HIMSELF OF CONTEMPT OF THE
SENATE.
WHEREAS, on the 15th May 1950 the Senate of the Philippines,
transcending divisions of party and faction in the national interest,
adopted a Resolution ordering the detention and confinement of Jean
L. Arnault at the New Bilibid Prison in Muntinlupa, Rizal, until he should
have purged himself of contempt of the Senate by revealing the person
to whom he gave the sum of P440,000 in connection with the
Buenavista and Tambobong Estates deal, and by answering other
pertinent questions in connection therewith;
WHEREAS, after considering the lengthy testimony offered by the said
Jean L. Arnault, and the report thereon rendered by the Senate Special
Committee on the said deal, the Senate holds and finds that, despite
numerous and generous opportunities offered to him at his own
instance and solicitation, the said Jean L. Arnault has failed and
refused, and continues to fail and refuse, to reveal the person to whom
he gave the said amount of P440,000, and to answer other pertinent
questions in connection with the Buenavista and Tambobong estates
deal;
WHEREAS, the Senate holds and finds that the situation of the said
Jean L. Arnault has not materially changed since he was committed to
prison for contempt of the Senate, and since the Supreme Court of the
Philippines, in a judgment long since become final, upheld the power
and authority of the Senate to hold the said Jean L. Arnault in custody,
detention, and confinement, said power and authority having been held
to be coercive rather than punitive, and fully justified until the said Jean
L. Arnault should have given the information which he had withheld and
continues contumaciously to withhold;
WHEREAS, the insolent and manifest untruthful statements made by
the said Jean L. Arnault on the occasions above referred to constitute a
continuing contempt of the Senate, and an added affront to its dignity
and authority, such that , were they to be condoned or overlooked, the
power and authority of the Senate to conduct investigations would
become futile and ineffectual because they could be defied by any
person of sufficient stubbornness and malice;
WHEREAS, the Senate holds and finds that the identity of the person
to whom the said Jean L. Arnault gave the amount of P440,000 in
connection with the Buenavista and Tambobong estates deal, and the
further information which the Senate requires and which the said Jean
 L. Arnault arrogantly and contumaciously withholds, is required for the
discharge of its legislative functions, particularly so that adequate
measures can be taken to prevent the repetition of similar frauds upon
the Government and the People of the Philippines and to recover said
amount; and
WHEREAS, while not insensible to the appeal of understanding and
mercy, the Senate holds and finds that the said Jean L. Arnault, by his
insolent and contumacious defiance of the legitimate authority of the
Senate, is trifling with its proceedings, renders himself unworthy of
mercy, and, in the language of the Supreme Court, is his own jailer,
because he could open the doors of his prison at any time by revealing
the truth; now therefore, be it
Resolved by the Senate of the Philippines, That the Senate hold and
find, as it hereby holds and finds, that Juan L. Arnault has not purged
himself of contempt of the Senate, and has in no way altered his
situation since he has committed to coercive not punitive,
imprisonment for such contempt on the 15th day of May, 1950; and
that Senate order, as it hereby orders, the Director of Prisons to hold
the said Jean L. Arnault, in his custody, and in confinement and
detention at the New Bilibid Prison in Muntinlupa, Rizal, in coercive
imprisonment, until he should have purged himself of the aforesaid
contempt to the satisfaction, and until order to that effect, of the Senate
of the Philippines or of its Special Committee to investigate the
Buenavista and Tambobong Estates deal.
Adopted, November 8, 1952 . (Exhibit 0)
In his petition for the writ of habeas corpus in the Court of First Instance,
petitioner-appellee alleges: (1) That the acquisition by the Government,
through the Rural Progress Administration, of the Buenavista and Tambobong
Estates was not illegal nor irregular nor scandalous nor malodorous, but was in
fact beneficial to the Government; (2) that the decision of this Court in G. R.
No. L-3820 declared that the Senate did not imprison Arnault "beyond proper
limitations", i.e., beyond the period longer than arresto mayor, as this is the
maximum penalty that can be imposed under the provisions of Article 150 of
the Revised Penal Code; (3) that petitioner-appellee purged himself of the
contempt charges when he disclosed the fact that the one to whom he gave
the P440,000 was Jess D. Santos, and submitted evidence in corroboration
thereof; (4) that the Senate is not justified in finding that the petitioner-appellee
did tell the truth when he mentioned Jess D. Santos as the person to whom he
gave the P440,000, specially on the basis of the evidence submitted to it; (5)
that the legislative purpose or intention, for which the Senate ordered the
confinement may be considered as having been accomplished, and, therefore,
there is no reason for petitioner-appellee's continued confinement.
The claim that the purchase of the Buenavista and Tambobong Estates is
beneficial to the government and is neither illegal nor irregular is beside the
point. To our minds, two questions are decisive of this case. The first is: Did the
Senate Special Committee believe the statement of the petitioner-appellee that
the person to whom he gave the P440,000 is one by the name of Jess D.
Santos and if it did not, may the court review said finding? And the second is: If
the Senate did not believe the statement, is the continued confinement and
detention of the petitioner-appellee, as ordered in Senate Resolution of
November 8, 1952, valid?
On the first question, the Senate found as a fact that petitioner "has failed and
refused, and continues to fail and refuse, to reveal the person to whom he
gave the amount of P440,000" and that the situation of petitioner "has not
materially charged since he was committed to prison." In the first resolution of
the Senate Special Committee of May 15, 1950, it found that petitioner
"refused to reveal the name of the persons to whom he gave the P440,000, as
well as to answer other pertinent questions related to said amount." It is clear
and evident that the Senate Committee did not believe petitioner's statement
that the person to whom he delivered the abovementioned amount is one by
the name of Jess D. Santos. The court a quo, however, arrogating unto itself
the power to review such finding, held that the "petitioner has satisfactorily
shown that the person of Jess D. Santos actually and physically existed in the
human flesh," that the opinion or conclusion of the Senate Committee is not
borne to out by the evidence produced at the investigation, that the Senate
abused its discretion in making its conclusion and that under these
circumstances the only thing that could in justice be done to petitioner is to
order his release and have his case endorsed to the prosecution branch of the
judicial department for investigation and prosecution as the circumstances
warrant.
There is an inherent fundamental error in the course of action that the lower
court followed. It assumed that courts have the right to review the findings of
legislative bodies in the exercise of the prerogative of legislation, or interfere
with their proceedings or their discretion in what is known as the legislative
process.
The courts avoid encroachment upon the legislature in its exercise of
departmental discretion in the means used to accomplish legitimate
legislative ends. Since the legislature is given a large discretion in
reference to the means it may employ to promote the general welfare,
and alone may judge what means are necessary and appropriate to
accomplish an end which the Constitution makes legitimate, the courts
cannot undertake to decide whether the means adopted by the
legislature are the only means or even the best means possible to
attain the end sought, for such course would best the exercise of the
police power of the state in the judicial department. It has been said
that the methods, regulations, and restrictions to be imposed to attain
results consistent with the public welfare are purely of legislative
cognizance, and the determination of the legislature is final, except
when so arbitrary as to be violative of the constitutional rights of the
citizen. Furthermore, in the absence of a clear violation of a
constitutional inhibition, the courts should assume that legislative
discretion has been properly exercised. (11 Am. Jur., pp. 901-902).
These the judicial department of the government has no right or power or
authority to do, much in the same manner that the legislative department may
not invade the judicial realm in the ascertainment of truth and in the application
and interpretation of the law, in what is known as the judicial process, because
that would be in direct conflict with the fundamental principle of separation of
powers established by the Constitution. The only instances when judicial
intervention may lawfully be invoke are when there has been a violation of a
constitutional inhibition, or when there has been an arbitrary exercise of the
legislative discretion.
Under our constitutional system, the powers of government are
distributed among three coordinate and substantially independent
organs: the legislative, the executive and the judicial. Each of these
departments of the government derives its authority from the
Constitution which, in turn, is the highest expression of the popular will.
Each has exclusive cognizance of the matters within its jurisdiction,
and is supreme within its own sphere. (People of the Philippine Islands,
et al. vs. Vera, et al 65 Phil., 56; See also Angara vs. Electoral
Commission, 63 Phil., 139)
All that the courts may do, in relation to the proceedings taken against
petitioner prior to his incarceration, is to determine if the constitutional
guarantee of due process has been accorded him before his incarceration by
legislative order, and this because of the mandate of the Supreme Law of the
land that no man shall be deprived life, liberty or property without due process
of law. In the case at bar such right has fully been extended the petitioner, he
having been given the opportunity to be heard personally and by counsel in all
the proceedings prior to the approval of the Resolution ordering his continued
confinement.
The second question involves in turn the following propositions: Does the
Philippine Senate have the power and authority to pass its resolution ordering
the continued confinement of the petitioner? In the supposition that such power
and authority exist, was such power legitimately exercised after the petitioner
had given the name Jess D. Santos? A study of the text of the resolution
readily shows that the Senate found that the petitioner-appellee did not
disclose, by the mere giving of the name Jess D. Santos, the identity of the
person to whom the sum of P440, 000 was delivered, and, in addition thereto
that petitioner withheld said identity arrogantly and contumaciously in
continued affront of the Senate's authority and dignity. Although the resolution
studiously avoids saying that the confinement is a punishment, but merely
seeks to coerce the petitioner into telling the truth, the intention is evident that
the continuation of the imprisonment ordered is in fact partly unitive. This may
be inferred from the confining made in the resolution that petitioner-appellee's
acts were arrogant and contumacious and constituted an affront to the
Senate's dignity and authority. In a way, therefore, the petitioner's assumption
that the imprisonment is punitive is justified by the language of the resolution,
wherefore the issue now before Us in whether the Senate has the power to
punish the contempt committed against it under the circumstances of the case.
This question is thus squarely presented before Us for determination.
In the previous case of this same petitioner decided by this Court, G. R. No. L-
38201, Arnault vs. Nazareno, et al. (46 Off. Gaz., No. 7, 3100), it was admitted
and we had ruled that the Senate has the authority to commit a witness if he
refuses to answer a question pertinent to a legislative inquiry, to compel him to
give the information, i.e., by reason of its coercive power, not its punitive
power. It is now contended by petitioner that if he committed an offense of
contempt or perjury against the legislative body, because he refused to reveal
the identity of the person in accordance with the demands of the Senate
Committee, the legislature may not punish him, for the punishment for his
refusal should be sought through the ordinary processes of the law, i. e., by the
institution of a criminal action in a court of justice.
American legislative bodies, after which our own is patterned, have the power
to punish for contempt if the contempt has had the effect of obstructing the
exercise by the legislature of, or deterring or preventing it from exercising, its
legitimate functions (Annotation to Jurney vs. MacCraken, 79 L. ed. 814).
While the power of the United States Senate to punish for contempt was not
clearly recognized in its earlier decision (See Marshal vs. Gordon, 61 L. ed.
881), the Supreme Court of the United States two decades ago held that such
power and authority exist. In the case of Jurney vs. MacCraken (294 U. S. 123,
79 L. ed. 802), the question before it was whether or not the Senate could
order the confinement of a private citizen because of the destruction and
removal by him of certain papers required to be produced. The court said:
First, The main contention of MacCracken is that the so-called power
to punish for contempt may never be exerted, in the case of a private
citizen, solely qua punishment. The argument is that the power may be
used by the legislative body merely as a means of removing an
existing obstruction to the performance of its duties; that the power to
punish ceases as soon as the obstruction has been removed, or its
removal has become impossible; and hence that there is no power to
punish a witness who, having been requested to produce papers,
destroys them after service of the subpoena. The contention rests
upon a misconception of the limitations upon the power of the Houses
of Congress to punish for contempt. It is true that the scope of the
power is narrow. No act is so punishable unless it is of a nature to
obstruct the performance of the duties of the legislature. This may be
lack of power, because, as in Kilbourn vs. Thompson, 103 U. S. 168,
26 L. ed. 377, there was no legislative duty to be performed; or
because, as in Marshall vs. Gordon, 243 U. S. 521, 61 L. ed. 881, 37
S. Ct. 448, L. R. A. 1917F, 279, Ann. Cas. 1918B, 371, the act
complained of is deemed not to be of a character to obstruct the
legislative process. But, where the offending act was of a nature to
obstruct the legislative process, the fact that the obstruction has since
been removed, or that its removal has become impossible is without
legal significance.
The power to punish a private citizen for a past and completed act was
exerted by Congress as early as 1795; and since then it has been
exercised on several occasions. It was asserted, before the Revolution,
by the colonial assemblies, in intimation of the British House of
Commons; and afterwards by the Continental Congress and by state
legislative bodies. In Anderson vs. Dunn, 6 Wheat, 204, 5 L. ed. 242,
decided in 1821, it was held that the House had power to punish a
private citizen for an attempt to bribe a member. No case has been
found in which an exertion of the power to punish for contempt has
been successfully challenged on the ground that, before punishment,
the offending act had been consummated or that the obstruction
suffered was irremediable. The statement in the opinion in
Marshall vs. Gordon, 243 U. S. 521, 61 L. ed. 881, 37 S. Ct. 448, L. R.
A. 1917F. 279 Ann. Cas. 1918B, 371, supra, upon which MacCracken
relies, must be read in the light of the particular facts. It was there
recognized that the only jurisdictional test to be applied by the court is
the character of the offense; and that the continuance of the
obstruction, or the likelihood of its repetition, are considerations for the
discretion of the legislators in meting out the punishment.
Here, we are concerned not with an extention of congressional
privilege, but with vindication of the established and essential privilege
of requiring the production of evidence. For this purpose, the power to
 punish for a past contempt is an appropriate means. Compare Ex
parte Nugent (C. C.) 1 Brunner, Col. Cas. 296, Fed. Cas No. 10375;
Steward vs. Bleine, 1 MacArth. 453. The apprehensions expressed
from time to time in congressional debates, in opposition to particular
exercise of the contempt power concerned, not the power to punish, as
such, but the broad, undefined privileges which it was believed might
find sanction in that power. The ground for such fears has since been
effectively removed by the decisions of this Court which hold that
assertions of congressional privilege are subject to judicial review.
Melbourn vs. Thompson, 103 U. S. 168, 26 L. ed. 377, supra; and that
the power to punish for contempt may not be extended to slanderous
attacks which presents no immediate obstruction to legislative
processes. Marshall vs. Gordon, 243 U. S. 521, 61 L. ed. 881, 37 S.
Ct. 448, L.R. A. 1917F, Ann. Cas. 1918B, 731 supra.
The principle that Congress or any of its bodies has the power to punish
recalcitrant witnesses is founded upon reason and policy. Said power must be
considered implied or incidental to the exercise of legislative power, or
necessary to effectuate said power. How could a legislative body obtain the
knowledge and information on which to base intended legislation if it cannot
require and compel the disclosure of such knowledge and information, if it is
impotent to punish a defiance of its power and authority? When the framers of
the Constitution adopted the principle of separation of powers, making each
branch supreme within the realm of its respective authority, it must have
intended each department's authority to be full and complete, independently of
the other's authority and power. And how could the authority and power
become complete if for every act of refusal, every act of defiance, every act of
contumacy against it, the legislative body must resort to the judicial department
for the appropriate remedy, because it is impotent by itself to punish or deal
therewith, with the affronts committed against its authority or dignity. The
process by which a contumacious witness is dealt with by the legislature in
order to enable it to exercise its legislative power or authority must be
distinguished from the judicial process by which offenders are brought to the
courts of justice for the meting of the punishment which the criminal law
imposes upon them. The former falls exclusively within the legislative authority,
the latter within the domain of the courts; because the former is a necessary
concommitant of the legislative power or process, while the latter has to do
with the enforcement and application of the criminal law.
We must also and that provided the contempt is related to the exercise of the
legislative power and is committed in the course of the legislative process, the
legislature's authority to deal with the defiant and contumacious witness should
be supreme, and unless there is a manifest and 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. (Marshall vs. Gordon, supra).
The next question concerns the claim that the petitioner has purged himself of
contempt, because he says he has already answered the original question
which he had previously been required to answer. In order that the petitioner
may be considered as having purged himself of the contempt, it is necessary
that he should have testified truthfully, disclosing the real identity of the person
subject of the inquiry. No person guilty of contempt may purge himself by
another lie or falsehood; this would be repetition of the offense. It is true that
he gave a name, Jess D. Santos, as that of the person to whom delivery of the
sum of P440,000 was made. The Senate Committee refused to believe, and
justly, that is the real name of the person whose identity is being the subject of
the inquiry. The Senate, therefore, held that the act of the petitioner continued
the original contempt, or reiterated it. Furthermore, the act further interpreted
as an affront to its dignity. It may well be taken as insult to the intelligence of
the honorable members of the body that conducted the investigation. The act
of defiance and contempt could not have been clearer and more evident.
Certainly, the Senate resolution declaring the petitioner in contempt may not be
claimed as an exertion of an arbitrary power.
One last contention of petitioner remains to be considered. It is the claim that
as the period of imprisonment has lasted for a period which exceeded that
provided by law punishment for contempt, i. e., 6 months of arresto mayor, the
petitioner is now entitled to be released. This claim is not justified by the
record. Petitioner was originally confined by Resolution No. 17 on May 15,
1950. On December 13, 1951, he executed his affidavit and thereafter he was
called to testify again before the Senate Committee. The latter passed its
Resolution No. 114 on November 6, 1952, and he presented the petition
for habeas corpus in this case on March 3, 1953, i. e., five months after the last Respondents. April 2, 2009

resolution when the Senate found that the petitioner committed another
contempt. It is not true, therefore, that the petitioner's punishment is beyond
the full period prescribed in the criminal law. VELASCO, JR., J.:

Besides, the last resolution of November 8, 1952 is also of a coersive nature,

in the sense that the Senate Committee still demands and requires the
disclosure of the fact which the petitioner had obstinately refused to divulge.
While the Philippine Senate has not given up hope that the petitioner may At issue once again is Section 21, Article VI of the 1987 Constitution which provides:
ultimately disclose the record, it is improper for the courts to declare that the
continued confinement is an abuse of the legislative power and thereby
interfere in the exercise of the legislative discretion.

The judgment appealed from should be, as it hereby is, reversed, and the The Senate or the House of Representatives or any of its respective committees may conduct inquiries in aid of
petition for the issuance of the writ of habeas corpus denied. The order of the legislation in accordance with its duly published rules of procedure. The rights of persons appearing in or affected by
such inquiries shall be respected.
court allowing the petitioner to give bail is declared null and void and the
petitioner is hereby ordered to be recommitted to the custody of the
respondent. With cost against the petitioner-appellee.

REGHIS M. ROMERO II, G.R. No. 174105

The Case
EDMOND Q. SESE,

LEOPOLDO T. SANCHEZ, Present:

This is a petition for prohibition with application for temporary restraining order (TRO) and preliminary injunction under
Rule 65, assailing the constitutionality of the invitations and other compulsory processes issued by the Senate
REGHIS M. ROMERO III,
Committee on Labor, Employment, and Human Resources Development (Committee) in connection with its
investigation on the investment of Overseas Workers Welfare Administration (OWWA) funds in the Smokey Mountain
MICHAEL L. ROMERO, project.

- versus -

SENATOR JINGGOY E. ESTRADA BRION, and The Facts

and SENATE COMMITTEE ON PERALTA, JJ.

LABOR, EMPLOYMENT On August 15, 2006, petitioner Reghis Romero II, as owner of R-II Builders, Inc., received from the Committee an
invitation,[1] signed by the Legislative Committee Secretary, which pertinently reads as follows:
AND HUMAN RESOURCES Promulgated:

DEVELOPMENT,
Dear Mr. Romero:
 Failing to secure the desired TRO sought in the petition, petitioner Romero II appeared at the September 4, 2006
Committee investigation.

Pursuant to P.S. Resolution No. 537, entitled: RESOLUTION DIRECTING THE LABOR COMMITTEE TO
INVESTIGATE, IN AID OF LEGISLATION, THE LIABILITY FOR PLUNDER OF THE FORMER PRESIDENT RAMOS
AND OTHERS, FOR THE ILLEGAL INVESTMENT OF OWWA FUNDS IN THE SMOKEY MOUNTAIN PROJECT,
CAUSING A LOSS TO OWWA OF P550.86 MILLION and P.S. Resolution No. 543, entitled: RESOLUTION
Two days after, petitioner Romero II filed a Manifestation with Urgent Plea for a TRO [6] alleging, among others, that: (1)
DIRECTING THE COMMITTEE ON LABOR AND EMPLOYMENT, IN ITS ONGOING INQUIRY IN AID OF
he answered questions concerning the investments of OWWA funds in the Smokey Mountain project and how much of
LEGISLATION, ON THE ALLEGED OWWA LOSS OF P480 MILLION TO FOCUS ON THE CULPABILITY OF THEN
OWWAs original investment had already been paid; (2) when Senator Estrada called on Atty. Francisco I. Chavez, as
PRESIDENT FIDEL RAMOS, THEN OWWA ADMINISTRATOR WILHELM SORIANO, AND R-II BUILDERS OWNER
resource person, the latter spoke of the facts and issues he raised with the Court in Chavez v. National Housing
REGHIS ROMERO II, x x x the Committee on Labor, Employment and Human Resources Development chaired by
Authority,[7] none of which were related to the subject of the inquiry; and (3) when Senator Estrada adjourned the
Sen. Jinggoy Ejercito Estrada will conduct a public hearing at 1:00 p.m. on the 23 rd day of August 2006 at the Sen.
investigation, he asked petitioners Romero II and Canlas to return at the resumption of the investigation.
G.T. Pecson Room, 2nd floor, Senate of the Philippines, Pasay City.

The inquiry/investigation is specifically intended to aid the Senate in the review and possible amendments to the
pertinent provisions of R.A. 8042, the Migrant Workers Act and to craft a much needed legislation relative to the
stated subject matter and purpose of the aforementioned Resolutions.
The manifestation was followed by the filing on September 19, 2006 of another urgent motion for a TRO in which
petitioners imputed to the Committee the intention to harass them as, except for petitioner Romero II, none of them
had even been mentioned in relation to the subject of the investigation.

By virtue of the power vested in Congress by Section 21, Article VI of 1987 Constitution regarding inquiries in aid
of legislation, may we have the privilege of inviting you to the said hearing to shed light on any matter, within your
knowledge and competence, covered by the subject matter and purpose of the inquiry. Rest assured that your rights,
when properly invoked and not unfounded, will be duly respected. (Emphasis in the original.)
Meanwhile, respondents, in compliance with our September 5, 2006 Resolution that ordered them to submit a
comment on the original plea for a TRO, interposed an opposition, [8] observing that the Senates motives in calling for
an investigation in aid of legislation were a political question. They also averred that the pendency of Chavez is not
sufficient ground to divest the respondents of their jurisdiction to conduct an inquiry into the matters alleged in the
petition.

In his letter-reply[2] dated August 18, 2006, petitioner Romero II requested to be excused from appearing and testifying
In this petition, petitioners in gist claim that: (1) the subject matter of the investigation is sub judice owing to the
before the Committee at its scheduled hearings of the subject matter and purpose of Philippine Senate (PS)
pendency of the Chavez petition; (2) since the investigation has been intended to ascertain petitioners criminal liability
Resolution Nos. 537 and 543. He predicated his request on grounds he would later substantially reiterate in this
for plunder, it is not in aid of legislation; (3) the inquiry compelled them to appear and testify in violation of their rights
petition for prohibition.
against self-incrimination; and (4) unless the Court immediately issues a TRO, some or all of petitioners would be in
danger of being arrested, detained, and forced to give testimony against their will, before the Court could resolve the
issues raised in G.R. No. 164527.

On August 28, 2006, the Committee sent petitioner Romero II a letter informing him that his request, being
unmeritorious, was denied.[3] On the same date, invitations were sent to each of the other six petitioners, then
members of the Board of Directors of R-II Builders, Inc., requesting them to attend the September 4, 2006 Committee
In their Comment dated October 17, 2006, [9] respondents made a distinction between the issues raised in Chavez and
hearing. The following day, Senator Jinggoy Estrada, as Chairperson of the Committee, caused the service of
the subject matter of the Senate resolutions, nixing the notion of sub judice that petitioners raised at every possible
a subpoena ad testificandum[4] on petitioner Romero II directing him to appear and testify before the Committee at its
turn. Respondents averred that the subject matter of the investigation focused on the alleged dissipation of OWWA
hearing on September 4, 2006 relative to the aforesaid Senate resolutions. The Committer later issued separate
funds and the purpose of the probe was to aid the Senate determine the propriety of amending Republic Act No. 8042
subpoenas[5] to other petitioners, albeit for a different hearing date.
or The Migrant Workers Act of 1995 and enacting laws to protect OWWA funds in the future. They likewise raised the
following main arguments: (1) the proposed resolutions were a proper subject of legislative inquiry; and (2) petitioners
right against self-incrimination was well-protected and could be invoked when incriminating questions were
propounded.

On August 30, 2006, petitioners filed the instant petition, docketed as G.R. No. 174105, seeking to bar the Committee
from continuing with its inquiry and to enjoin it from compelling petitioners to appear before it pursuant to the invitations
thus issued.

On December 28, 2006, petitioners filed their Reply[10] reiterating the arguments stated in their petition, first and
foremost of which is: Whether or not the subject matter of the Committees inquiry is sub judice.
 Thus, there is no more legal obstacleon the ground of sub judice, assuming it is invocableto the continuation of the
Committees investigation challenged in this proceeding.

The Courts Ruling

At any rate, even assuming hypothetically that Chavez is still pending final adjudication by the Court, still, such
circumstance would not bar the continuance of the committee investigation. What we said in Sabio v. Gordon suggests
The Court resolves to dismiss the instant petition.
as much:

The Subject Matter of the Senate Inquiry Is no Longer Sub Judice

The same directors and officers contend that the Senate is barred from inquiring into the same issues being litigated
before the Court of Appeals and the Sandiganbayan. Suffice it to state that the Senate Rules of Procedure Governing
Inquiries in Aid of Legislation provide that the filing or pendency of any prosecution or administrative action should not
stop or abate any inquiry to carry out a legislative purpose. [16]

Petitioners contend that the subject matter of the legislative inquiry is sub judice in view of the Chavez petition.

The sub judice rule restricts comments and disclosures pertaining to judicial proceedings to avoid prejudging the issue,
influencing the court, or obstructing the administration of justice. A violation of the sub judice rule may render one liable
for indirect contempt under Sec. 3(d), Rule 71 of the Rules of Court. [11] The rationale for the rule adverted to is set out
in Nestle Philippines v. Sanchez:
[I]t is a traditional conviction of civilized society everywhere that courts and juries, in the decision of issues of fact and
law should be immune from every extraneous influence; that facts should be decided upon evidence produced in
court; and that the determination of such facts should be uninfluenced by bias, prejudice or sympathies. [12]
A legislative investigation in aid of legislation and court proceedings has different purposes. On one hand, courts
conduct hearings or like adjudicative procedures to settle, through the application of a law, actual controversies arising
between adverse litigants and involving demandable rights. On the other hand, inquiries in aid of legislation are, inter
alia, undertaken as tools to enable the legislative body to gather information and, thus, legislate wisely and effectively;
[17]
and to determine whether there is a need to improve existing laws or enact new or remedial legislation, [18] albeit the
inquiry need not result in any potential legislation. On-going judicial proceedings do not preclude congressional
hearings in aid of legislation. Standard Chartered Bank (Philippine Branch) v. Senate Committee on Banks, Financial
Institutions and Currencies (Standard Chartered Bank) provides the following reason:

[T]he mere filing of a criminal or an administrative complaint before a court or quasi-judicial body should not
automatically bar the conduct of legislative investigation. Otherwise, it would be extremely easy to subvert any
intended inquiry by Congress through the convenient ploy of instituting a criminal or an administrative complaint.
Surely, the exercise of sovereign legislative authority, of which the power of legislative inquiry is an essential
component, cannot be made subordinate to a criminal or administrative investigation.
Chavez, assuming for argument that it involves issues subject of the respondent Committees assailed investigation, is
no longer sub judice or before a court or judge for consideration.[13] For by an en bancResolution dated July 1, 2008,
the Court, in G.R. No. 164527, denied with finality the motion of Chavez, as the petitioner in Chavez, for
reconsideration of the Decision of the Court dated August 15, 2007. In fine, it will not avail petitioners any to invoke
the sub judice effect of Chavez and resist, on that ground, the assailed congressional invitations and subpoenas.
As succinctly stated in x x x Arnault v. Nazareno
The sub judice issue has been rendered moot and academic by the supervening issuance of the en banc Resolution of
July 1, 2008 in G.R. No. 164527. An issue or a case becomes moot and academic when it ceases to present a
justiciable controversy, so that a determination of the issue would be without practical use and value. In such cases,
there is no actual substantial relief to which the petitioner would be entitled and which would be negated by the
dismissal of the petition.[14] Courts decline jurisdiction over such cases or dismiss them on the ground of mootness,
[T]he power of inquirywith process to enforce itis an essential and appropriate auxiliary to the legislative function. A
save in certain exceptional instances,[15] none of which, however, obtains under the premises.
legislative body cannot legislate wisely or effectively in the absence of information respecting the conditions which the
legislation is intended to affect or change; and where the legislative body does not itself possess the requisite
informationwhich is not infrequently truerecourse must be had to others who possess it. [19]
 Following the lessons of Neri, as reiterated in Garcillano v. The House of Representatives Committees on Public
Information, Public Order and Safety, et al.,[20] it can very well be stated that the termination of the assailed
investigations has veritably mooted the instant petition. This disposition becomes all the more impeccable, considering
While Sabio and Standard Chartered Bank advert only to pending criminal and administrative cases before lower
that the Senate of the present Congress has not, per available records, opted to take up anew, as an unfinished
courts as not posing a bar to the continuation of a legislative inquiry, there is no rhyme or reason that these cases
matter, its inquiry into the investment of OWWA funds in the Smokey Mountain project.
doctrinal pronouncement and their rationale cannot be extended to appealed cases and special civil actions awaiting
final disposition before this Court.

With the foregoing disquisition, the Court need not belabor the other issues raised in this recourse. Suffice it to state
that when the Committee issued invitations and subpoenas to petitioners to appear before it in connection with its
The foregoing consideration is not all. The denial of the instant recourse is still indicated for another compelling
investigation of the aforementioned investments, it did so pursuant to its authority to conduct inquiries in aid of
reason. As may be noted, PS Resolution Nos. 537 and 543 were passed in 2006 and the letter-invitations and
legislation. This is clearly provided in Art. VI, Sec. 21 of the Constitution, which was quoted at the outset. And the Court
subpoenas directing the petitioners to appear and testify in connection with the twin resolutions were sent out in the
has no authority to prohibit a Senate committee from requiring persons to appear and testify before it in connection
month of August 2006 or in the past Congress. On the postulate that the Senate of each Congress acts separately and
with an inquiry in aid of legislation in accordance with its duly published rules of procedure. [21] Sabio emphasizes the
independently of the Senate before and after it, the aforesaid invitations and subpoenas are considered functos
importance of the duty of those subpoenaed to appear before the legislature, even if incidentally incriminating
oficio and the related legislative inquiry conducted is, for all intents and purposes, terminated. In this regard, the Court
questions are expected to be asked:
draws attention to its pronouncements embodied in its Resolution of September 4, 2008 in G.R. No. 180643
entitled Neri v. Senate Committee on Accountability of Public Officers and Investigations:

Anent the right against self-incrimination, it must be emphasized that [this right may be] invoked by the said directors
and officers of Philcomsat x x x only when the incriminating question is being asked, since they have no way of
Certainly, x x x the Senate as an institution is continuing, as it is not dissolved as an entity with each national election
knowing in advance the nature or effect of the questions to be asked of them. That this right may possibly be
or change in the composition of its members. However, in the conduct of its day-to-day business, the Senate of each
violated or abused is no ground for denying respondent Senate Committees their power of inquiry. The consolation is
Congress acts separately and independently of the Senate before it. The Rules of the Senate itself confirms this when
that when this power is abused, such issue may be presented before the courts.
it states:

xxxx
xxxx

Let it be stressed at this point that so long as the constitutional rights of witnesses x x x will be respected by
SEC. 123. Unfinished business at the end of the session shall be taken up at the next session in the same status.
respondent Senate Committees, it [is] their duty to cooperate with them in their efforts to obtain the facts needed for
intelligent legislative action. The unremitting obligation of every citizen is to respond to subpoenae, to respect
the dignity of the Congress and its Committees, and to testify fully with respect to matters within the realm of
proper investigation.[22] (Emphasis supplied.)

All pending matters and proceedings shall terminate upon the expiration of one (1) Congress, but may be taken by the
succeeding Congress as if present[ed] for the first time.

Undeniably from the foregoing, all pending matters and proceedings, i.e., unpassed bills and even legislative
investigations, of the Senate of a particular Congress are considered terminated upon the expiration of that
Congress and it is merely optional on the Senate of the succeeding Congress to take up such unfinished
matters, not in the same status, but as if presented for the first time. The logic and practicality of such rule is readily
apparent considering that the Senate of the succeeding Congress (which will typically have a different composition as
that of the previous Congress) should not be bound by the acts and deliberations of the Senate of which they had no
part. x x x (Emphasis added.)
As a matter of long and sound practice, the Court refrains from touching on the issue of constitutionality except when it
is unavoidable and is the very lis mota[23] of the controversy. So it must be here. Indeed, the matter of the
constitutionality of the assailed Committee invitations and subpoenas issued vis--vis the investigation conducted
pursuant to PS Resolution Nos. 537 and 543 has ceased to be a justiciable controversy, having been rendered moot
and academic by supervening events heretofore indicated. In short, there is no more investigation to be continued by
virtue of said resolutions; there is no more investigation the constitutionality of which is subject to a challenge.
WHEREFORE, the petition is DENIED.