Burnham v. Morrissey

80 Mass. 226

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1859
• Status: Published

Opinion

Shaw, C. J.

The court are of opinion that this evidence is not admissible. It would be extending the inquiry too far, to introduce evidence of what occurred between the petitioner and a single member of the house, not the house acting in its aggregate capacity. If it was the right of the party to be heard after his answers, and before his commitment, it appears by the record I hat no opportunity was afforded him to be heard. Beyond this he has no right to go.

Andrew, for the petitioner.

1. The power of this court is un.imited, to issue writs of habeas corpus in all cases, “ except only persons committed by the governor and council, or by the senate or the house of representatives, in the manner and for the causes mentioned in the Constitution.” Rev. Sts. c. 111, § 35. The only provisions of the Constitution which can be relied on by this respondent are these : “ 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; ” “ the senate shall have the same powers in the like cases; ” “ provided that no imprisonment on the warrant or order of the senate or house of representatives, for either of the above described offences, be for a term exceeding thirty days.” “ And the senate and house of representatives may try and determine all cases where their rights and privileges are concerned, and which, by the Constitution, they have authority to try and determine, by committees of their own members, or in such other way as they may respectively think best.” Const. Mass. c. 1, § 3, arts. 10, 11. The powers of the two houses of the legislature in Massachusetts being thus limited by the Constitution, are not to be determined by the decisions of English judges, refusing to examine into the right of either house of parliament to commit for a contempt, on the ground that the nature and power of the proceedings of the house of commons is not known to the court, but to parliament only. Crosby’s case, 3 Wils. 204. Even in England, by the later decisions, the court may examine the sufficiency of the cause of commitment, if specially set forth in the return. Burdett v. Abbott, 14 East, 148-151. But under the Constitution of Massachusetts, it is not enough to aver in the warrant that the commitment is for contempt; it must appear on the records of the house that there was sufficient cause for the commitment.

2. The warrant in this case, and the records of the house to which it refers, set forth the cause of commitment, and show that this petitioner committed no contempt which the house had authority to punish ; nor was charged by the house or its committee with any such contempt, nor put upon his purgation for any such contempt; nor even did what the house in its final order and warrant charges him with having done. There never was any order of the house that this petitioner should produce any book or paper whatsoever; and the report of the committee, which is the foundation of the proceedings, shows only that he was “ specially requested.”

3. It appears upon the face of these proceedings that the house had no right to pass any such order, nor the committee any right to require the production of the books sought for, nor the house any right to punish their nonproduction. This petitioner had not been summoned by the committee, and proceeded against as a recusant witness; nor was he charged with being a public officer, called upon to produce a book or record belonging to the Commonwealth, for a parliamentary purpose. In England, an order for the production of books or papers for a parliamentary purpose must be passed by one of the houses of parliament, and not by a committee of either. And in either house of congress the custom is to call upon the president to furnish information through the proper subordinate officer, if in his opinion it is consistent with the public interest.

4. The petitioner is hardly a public officer; he is only a person to whom a monopoly had been granted of the business of selling spirituous and intoxicating liquors to city and town agents, on condition that the liquors should be pure, and that he should sell at an advance of only five per cent, on the cost, and he was obliged to keep a certain record. Sts. 1855, c. 215, § 2; c. 470, §§ 1-3. That record he had produced. His stock in trade and his other books were purchased with his own money, and were his own property; and he is no more liable to be compelled to produce such books than any druggist, or any licensed manufacturer or importer of liquors, who is suspected of haring violated the liquor law.

5. The petitioner was before the committee simply as a perso i accused, invited, to be present by the chairman of the committee hearing the accusation. The house of representatives, if they have the power to compel this production, cannot exercise it for any parliamentary purpose in this case ; and even the house of commons cannot exercise such a power for any other purpose. Cushing’s Parliamentary Law, § 1901. He was not before the committee as a witness; he was not summoned as such, and is not so represented in the report of the committee. His answers, made upon his purgation before the house, expressly declare that he was not there as a witness, but as a person defending himself against accusation, and those answers must be taken as true ; indeed, there has been no attempt to contradict them. A party accused need not say that to answer might criminate himself; he may keep silent. The record of the house shows that the question debated was whether Burnham should be turned over to the attorney general to be indicted as a felon, or whether he should be first punished for contempt in not furnishing the evidence to convict him.

6. There is no power in either house of the Massachusetts legislature, under the Constitution of the Commonwealth, to compel the attendance and testimony of any witness. The senate, perhaps, sitting as a court of impeachment, or the house as the grand inquest of the Commonwealth, might have the right as incident to their judicial capacity. By a custom of parliament, persons are compelled to attend before the house of commons or its committees, on the summons of the speaker; yet they never administer an oath, except when authorized by statute ; and there is no instance of a prosecution for perjury in testifying before the house of commons or its committees; though it is otherwise with the house of lords, which is a judicial body. The Rev. Sts. c. 2, § 10, authorizing any member of a committee of the legislature to administer oaths to persons examined before the committee, show that without it such a committee had no authority to swear witnesses who might refuse to be sworn. Before the St. of 1849, c. 208, there was no provision for paying fees to witnesses attending either branch of the legislature; and there is none now for the payment of witnesses before a committee. The provision of the Constitution of Massachusetts, c. 1, § 3, art. 10, authorizing either house to punish any person assaulting or arresting “ any witness, or other person ordered to attend the house, in his way in going or returning,” leaves the question open whether any person can be lawfully ordered to attend, without the authority of a statute passed by both houses, and approved by the governor.

7. The sergeant at arms was ordered to commit Burnham “for a contempt in refusing to comply with the order of the special committee of this house,” when there was no evidence that the committee had passed any order. He was then put upon his trial for a disobedience to a supposed order of the committee, and required to answer a set of interrogatories, and thus put upon his purgation at the bar of the house. But the house, instead of taking his answers as true, undertook to punish him for “failing satisfactorily to answer” the questions of the house. It was not his duty to answer “ satisfactorily,” but to answer correctly. And the record of the house contradicts the statement in the warrant that he had disobeyed the order of the house; for no such order had been issued, and hardly could have been, pending his trial for the contempt of which he was accused by the committee.

8. The Constitution limits the term of imprisonment to thirty days. The general parliamentary law limits it to the time of the adjournment of the house. The speaker’s warrant in this case directs Burnham to be imprisoned twenty five days, unless sooner discharged by order of the house; and the order recited in the warrant provides that whenever he is ready to produce his books and papers, he shall be brought before the house. But if the house adjourns within twenty days, what shall be done with him ? There will be no house to return him to. If this court can discharge him then, because the warrant is bad on its face, it can discharge him now for the same reason.

9. The warrant directs the sergeant at arms to take Burnham to the common jail. By the Rev. Sts. c. 14, § 82, the sheriff must keep the jail himself, or by his deputy jailer; and to no other officer’s custody thereof is any one bound to submit. The sergeant at arms having done his duty, by taking Burnham to the jail, and the sheriff and his deputy jailer having refused to receive him, and having indeed no warrant to justify them in receiving him, there was no longer any authority to hold him.

S. II Phillips, (Attorney General,) for the sergeant at arms,

cited Burdett v. Abbott, 14 East, 128, 132; Stockdale v. Hansard, 9 Ad. & El. 231; Anderson v. Dunn, 6 Wheat. 224; Constitution of Mass. c. 1, § 3, arts. 6, 10, 11; Hiss v. Bartlett, 3 Gray, 468; Bev. Sts. c. 2, § 10; St. 1849, c. 208; Jefferson’s Manual, § 3; Cushing’s Parliamentary Law, § 336; Rev. Sts. c. 143, § 1.

After a consultation of all the judges, the chief justice, on the 12th of November, briefly announced their unanimous conclusions, and said that a more extended opinion would be after-wards written. The resolutions of the court were immediately reduced to writing as follows by

Hoar, J.

*

The house of representatives is not the final judge of its own powers and privileges 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 with the Constitution ; and if they have not been, -to treat their acts as null and void.

The house of representatives has the power, under the Constitution, to imprison for contempt; but this 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. The power is directly conferred by the Constitution, c. 1, § 3, arts. 10, 11; and the cases there enumerated are the only ones in which a sentence of imprisonment for a term extending beyond the session of the house can be imposed as a punishment.

We consider the object of these provisions to have been twofold : 1st. To extend the power beyond the limit which it had by common parliamentary law and custom, by authorizing the imposition of a sentence of imprisonment for a definite period, which should not be terminated by the ending of the session of 'the house; and 2d. To limit the power of punishing for constructive contempts, by expressly defining the cases in which it might be exercised. But we do not consider it as affecting the power of the house to secure by proper means the free and full performance of all its constitutional duties, and to exercise whatever powers are necessary to that end.

The house of representatives has many duties to perform, which necessarily require it to receive evidence, and examine witnesses. It is the grand inquest for the Commonwealth, and as such has power to inquire into the official conduct of all officers of the Commonwealth, in order to impeachment. It may inquire into the doings of corporations, which are subject to the control of the legislature, with a view to modify or repeal their charters. It is the judge of the election and qualification of its members. It has power to decide upon the expulsion of its members. 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.

If a witness, duly notified or summoned, by the authority of the house, to attend before a committee, or before the house, refuses to attend, or, when present, and required to testify, or to do any other act which a witness may be lawfully required to do, refuses to obey the lawful commands of the house in that behalf, it is a contempt of the authority of the house; and, upon such refusal to attend, or if such refusal to testify occur before a committee, the house may compel his obedience by arresting him by the proper officer of the house, and bringing him before the house.

If, when before the house, he is contumacious and refuses to obey, without lawful excuse, such conduct renders him “ guilty of disrespect to the house by contemptuous behavior in its presence,” within the meaning of the tenth article of "chapter I, § 3, of the Constitution, and he may be lawfully imprisoned for such contemptuous behavior, for a term not exceeding thirty days. Wilful disobedience to the commands of the house, without sufficient excuse or justification, in its presence, is such contemptuous behavior as the Constitution contemplates.

In the case before us, the petitioner was present before a committee of the house, which was charged by its authority with a lawful inquiry, and empowered to send for persons and papers. He was called upon to testify, and to produce certain books which were pertinent to the inquiry before the committee. No summons was necessary, because he was voluntarily present. He refused to produce the papers; and when brought before the house to answer for this disobedience, his only excuse or justification was that the papers were private. We know of no rule of law, which exempts any person from producing papers, material to any inquiry in the course of justice, merely because they are private.

No man is obliged to testify or to furnish evidence to criminate himself; but the petitioner did not place his refusal upon this ground. He was not a defendant charged with any crime. He expressly refused to express or form an opinion whether the production of the books could criminate him. The duty of the committee, as appears by the record of the house, was that of general investigation merely. If the entries in the books which he was asked to produce, which were material to the subject of investigation, were shown to be mingled with others, not relating to the matters inquired of, which were private in their nature, such parts only as were relevant might have been exhibited, and the other protected from exposure.

The contempt thus committed in the presence of the house was a sufficient cause of imprisonment, under the express provisions of the Constitution, and justified a sentence of imprisonment for a fixed time. But, to avoid misconstruction, the court wish to add that they do not intend to decide that refractory behavior of a witness before a committee would not authorize the house to arrest and imprison him, as a means of compelling his obedience. Such imprisonment would, however, be limited by the duration of the session.

We think it no objection to the order and warrant, that they made the imprisonment conditional upon the submission and obedience of the refractory witness, the whole term being within the constitutional limitation.

By the Rev. Sts. c. 143, § 1, the common jails are to be used as prisons for the confinement of “ all persons duly committed for any cause authorized by law.” We think that the commitment to the jail was authorized by law, and that the petitioner was lawfully held by the sergeant at arms therein, in the custody of the sheriff or his deputy jailer, by virtue of the warrant of the house of representatives. Petitioner remanded.

These resolutions were communicated to the house of representatives on the 17th of November. The death of the chief justice prevented the preparation of a fuller opinion.