Snowden Marshall v. Robert Gordon

Decision Date23 April 1917
Docket NumberNo. 606,606
Citation37 S.Ct. 448,243 U.S. 521,61 L.Ed. 881
PartiesH. SNOWDEN MARSHALL, Appt., v. ROBERT B. GORDON, Sergeant at Arms of the House of Representatives of the United States
CourtU.S. Supreme Court

[Argument of Counsel from pages 521-523 intentionally omitted] Messrs. Charles P. Spooner, Jesse C. Adkins, and John C. Spooner for appellant.

[Argument of Counsel from pages 523-527 intentionally omitted] Messrs. D-Cady Herrick, Martin W. Littleton, and Henry M. Goldfogle for appellee.

[Argument of Counsel from pages 527-529 intentionally omitted] Mr. Chief Justice White delivered the opinion of the court:

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

'We conclude and find that the aforesaid letter written and published by said H. Snowden Marshall to Hon. C. C. Carlin, chairman of the subcommittee of the judiciary committee of the House of Representatives, on March 4, 1916, . . . is as a whole and in several of the separate sentences defamatory and insulting and tends to bring the House into public contempt and ridicule, and that the said H. Snowden Marshall, by writing and publishing the same, is guilty of contempt of the House of Representatives of the United States because of the violating of its privileges, its honor, and its dignity.'

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

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

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

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

'That the house of delegates may punish, by imprisonment, any person who shall be guilty of a contempt in their view, by any disorderly or riotous behaviour, or by threats to, or abuse of their members, or by any obstruction to their proceedings. They may also punish, by imprisonment, any person who shall be guilty of a breach of privilege, by arresting on civil process, or by assaulting any of their members, during their sitting, or on their way to, or return from the house of delegates, or by any assault of, or obstruction to their officers, in the execution of any order or process, or by assaulting or obstructing any witness, or any other person, attending on, or on their way to or from the house, or by rescuing any person committed by the house: and the senate may exercise the same power, in similar cases.' Md. Const. 1776, art. 12.

'They [the house of representatives] shall have authority to punish by imprisonment every person, not a member, who shall be guilty of disrespect to the house, by any disorderly or contemptuous behavior in its presence; or who, in the town where the general court is sitting, and during the time of its sitting, shall threaten harm to the body or estate of any of its members, for anything said or done in the house; or who shall assault any of them therefor; or who shall assault or arrest any witness, or other person, ordered to attend the house, in his way in going or returning; or who shall rescue any person arrested by the order of the house.

'And no member of the house of representatives shall be arrested, or held to bail on mean process, during his going unto, returning from, or his attending the general assembly.

'The senate shall have the same powers in the like cases; and the governor and council shall have the same authority to punish in like cases: Provided, That no imprisonment, on the warrant or order of the governor, council, senate, or house of representatives, for either of the above described offenses, be for a term exceeding thirty days.' Const. Mass. 1780, pt. 2, chap. 1, § 3, arts. 10 and 11.

The similarity of the provisions points to the identity of the evil which they were intended to reach. Clearly they operate to destroy the admixture of judicial and legis lative power as prevailing in the House of Commons, since the provisions in both the state Constitutions and the limitations accompanying them are wholly incompatible with judicial authority. Moreover, as under state Constitutions all governmental power not denied is possessed, the provisions were clearly not intended to give legislative power as such, for full legislative power to deal with the enumerated acts as criminal offenses and provide for their punishment accordingly already obtained. The object, therefore, of the...

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