defense is as incidental to legislative, as to | powers of judging of elections, and of punish219*] judicial authority. This power is not a substantive provision of the common law adopted by us; it is rather a principle of universal law growing out of the natural right of self-defense belonging to all persons. It is unnecessary to resort to the doctrine of constructive contempts, in order to vindicate the conduct of the defendant as a ministerial officer. He merely executed the judgment of the House, pronouncing the plaintiff guilty of a breach of privilege, and a high contempt. It was confessedly within the competency of the House to render such a judgment in some cases: such as that of a direct interruption of its proceed-precept in the manner of executing it. In other ings by open violence within the walls. But from the plea, non constat, what was the nature of the offense committed by the plaintiff. Nor was it necessary that the plea should set out the facts constituting the contempt. It is sufficient for the protection of the officer, that the House has jurisdiction to punish contempts, and that it had adjudged the plaintiff guilty of a contempt. The power of punishing contempts is incidental to all courts of justice, and even to the most inferior magistrates, when in the exercise of their public functions, and arises out of the absolute necessity of the case, which renders it indispensable that they should have such a power. ing members for disorderly conduct, necessarily involves all the incidents of judicature. Nothing appears upon the face of the record to show that it was not in the exercise of these very powers, or in defense of the admitted privileges of the House, that the warrant issued. It need not appear on the face of the warrant that the cause out of which the contempt grew, was within the judicial powers of the House. The mere question between the ministerial officer and the offender, is, whether the warrant was issued by a court of competent jurisdiction, and whether he has pursued the words, the only question is, whether the House has, in any case, the power of punishing contempts. If it has jurisdiction, it is a peculiar exclusive jurisdiction, and its exercise cannot be questioned or re-examined elsewhere. The doctrine is settled and established in this court, that the grant of the powers expressly given to Congress in the constitution, involves all the incidental powers necessary and proper to carry them into effect. And the general grant of judicial powers to the courts of the United States, does not exclude the other branches of the government from the exercise of certain portions of judicial authority. The [*221 different departments of the government could 2. Each branch of the legislature has certain not be divided in this exact, artificial manner. powers of judicature under the constitution, They all run into each other. Even the Presiand the House of Representatives has the ex- dent, though his functions are principally exclusive power of impeachment; which neces- ecutive, has a portion of legislative power; and sarily involves the authority of compelling the the Congress is invested with certain portions attendance of witnesses, and punishing them of judicial power. The whole of this subject for contempt. Even Lord Holt, who was an has been thoroughly investigated, in two recent 220*] enemy of the extravagant privileges of cases in England, and the authorities cited on Parliament, admits that the power of impeach- the argument of those cases, renders it unnecment residing in the House of Commons, necessary to repeat a reference to them on the essarily involved the authority of committing present occasion. the accused, and of punishing contempts. The 1.-Regina v. Paty, 2 Lord Raym. 1105. 2.-M'Culloch v. Maryland, 4 Wheat. Rep. 316. 3.-Burdett v. Abbott, 14 East's Rep. 1; Burdett v. Colman, Ib. 163. *It is sufficient to say, that they fully [*222 cumstances, and the matter were brought before the Court of King's Bench, by return to a writ of habeas corpus, the return setting forth the warrant, stating such adjudication of contempt generally; whether, in that case, the Court of King's Bench would discharge the prisoner, because the particutempt arose, were not set forth in the warrant.*" The question being handed to the judges, and they having consulted among themselves for a few minutes, Lord Chief Baron Richards delivered their unanimous opinion that in such a case the Court of King's Bench would not liberate. In these cases, the pleas by the Speaker and Ser-lar facts and circumstances out of which the congeant at Arms of the House of Commons justified the supposed trespasses under a warrant reciting a resolution of the House that "a letter signed Sir Francis Burdett,' and a further part of a paper entitled, 'Argument,' in Cobbet's Weekly Register, of March 24, 1814, was a libelous and scandalous paper, reflecting on the just rights and privileges of that House; and that Sir Francis Burdett, who had adLord ELDON (Ch.): "That this is a case of very mitted the letter and argument to have been print- great importance none will dispute; but, at the ed by his authority, has been thereby guilty of a same time, I do not think it a case of difficulty. If I breach of the privileges of that House," and that did, I should be anxious to hear the counsel for the it was thereupon ordered by the House, that the defendants, before proceeding to judgment. But plaintiff, for his said offense, should be committed in my view of the case, considering it as clear in to the Tower; and that the Speaker should issue law, that the House of Commons have the power his warrants accordingly. The cases were carried of committing for contempt; that this was a comfrom the Court of King's Bench to the Exchequer mitment for contempt; that the general nature of Chamber, where the judgments in favor of the de- the contempt, if that was necessary, was sufficientfendants were affirmed upon the same grounds stat-y set forth in the warrant; and being of opinion ed by the judges of the K. B. in East's Rep. The that the objections, in point of form, have not plaintiff, Sir Francis Burdett, having brought a been sustained, unless any other noble Lord should writ of error to the House of Lords, the cause was express a wish to hear the counsel for the defendargued for him by Mr. Brougham and Mr. Court- ants, I shall now move that the judgments in the nay, in the session of 1816-1817. After the counsel court below be affirmed." for the plaintiff in error had been heard, Lord El- Lord ERSKINE. "When this matter was first agitadon (Ch.) proposed to their Lordships that the ted, I understood that the House of Commons incounsel for the defendants should not be heard, un- tended to pursue a very different course. I was til the House should have received the opinion of therefore alarmed. I expressed myself, because I the judges on the following question, viz.: Wheth- felt, with warmth. I have changed none of the er, if the Court of Common Pleas, having adjudged opinions I then entertained; I then said that the an act to be a contempt of court, had committed House of Commons ought to be jealous of such privfor the contempt under a warrant, stating such ad-ileges as were necessary for its protection. My opinjudication generally, without the particular cir-ion is, that these privileges are part of the law of establish the doctrine that a legislative body has, from the necessity of the case, a right to 223*] commit persons for contempt, in breach of their privileges; that they are the exclusive judges whether those privileges have been violated in the particular instance; and 224*] that *their decisions upon the subject cannot be questioned in any other court or place. 3. As to the form of the warrant, it is unnecessary to describe the offense particularly in the warrant, except for the purpose of letting the party see whether it is bailable or not. But this was only a warrant to arrest the plaintiff, and bring him before the House; a preliminary proceeding absolutely necessary to exercise any sort of jurisdiction over the matter. Mr. Justice JOHNSON delivered the opinion of the court: Notwithstanding the range which has been taken by the plaintiff's counsel, in the discussion of this cause, the merits of it really lie in a very limited compass. The pleadings have narrowed them down to the simple inquiry, whether the House of Representatives can take cognizance of contempts committed 225*] *against themselves, under any circumstances? The duress complained of was sustained under a warrant issued to compel the party's appearance, not for the actual infliction of punishment for an offense committed. Yet it cannot be denied that the power to institute a prosecution must be dependent upon the power to punish. If the House of Representa tives possessed no authority to punish for contempt, the initiating process issued in the assertion of that authority must have been illegal; there was a want of jurisdiction to justify it. It is certainly true, that there is no power given by the constitution to either House to punish for contempts, except when committed by their own members. Nor does the judicial or criminal power given to the United States, in any part, expressly extend to the infliction of punishment for contempt of either House, or any one co-ordinate branch of the government. Shall we, therefore, decide, that no such power exists? It is true, that such a power, if it exists, must be derived from implication, and the genius and spirit of our institutions are hostile to the exercise of implied powers. Had the faculties of man been competent to the framing of a system of government which would have left nothing to implication, it cannot be doubted that the effort would have been made by the framers of the constitution. But what is the fact? There is not in the whole of that admirable instrument a grant of powers which does not draw after it others, not expressed, but vital to their exercise; not substantive and in- [*226 dependent, indeed, but auxiliary and subor dinate. The idea is utopian, that government can exist without leaving the exercise of discretion somewhere. Public security against the abuse of such discretion must rest on responsibility, and stated appeals to public approbation. Where all power is derived from the people, and public functionaries, at short intervals, deposit it at the feet of the people, to be resumed again only at their will, individual fears may be alarmed by the monsters of imagination, but individual liberty can be in little danger. No one is so visionary as to dispute the assertion that the sole end and aim of all our institutions is the safety and happiness of the citizen. But the relation between the action and the end, is not always so direct and palpable as to strike the eye of every observer. The science of government is the most abstruse of all sciences; if, indeed, that can be called a science which has but few fixed principles, and practically consists in little more than the exercise of a sound discretion, applied to the exigencies of the state as they arise. It is the science of experiment. But if there is one maxim which necessarily rides over all others, in the practical application of government, it is, that the public functionaries must be left at liberty to exercise the powers which the people have intrusted to them. The interests and dignity of those who created them, require the exertion of the powers indispensable to the attainment of the ends of their creation. Nor is a casual conflict with the rights *of particular individuals any reason to [*227 be urged against the exercise of such powers. 1.-Chitty's Crim. Law, and the authorities there The wretch beneath the gallows may repine at cited. the fate which awaits him, and yet it is no less mons; and the meaning there must be, arraigning the just rights and privileges of the House. the land, and upon this record there is nothing | the just rights and privileges of the House of Commore than the ordinary proceeding; the Speaker of the House of Commons, like any other subject, putting himself on the country as to the fact, and pleading a justification in law; for this was not a plea to the jurisdiction, but a plea in bar. This course of proceeding gave rise to the most heartfelt satisfaction; for if the judgment had been adverse to the defendants, the House would no doubt have submitted. It would be a libel on the House of Commons to suppose that it would not. Therefore, by this judgment, it appears that it is the law which protects the just privileges of the House of Commons, as well as the rights of the subject. The case has been argued with great propriety; but it was contended that it was not alleged in the Warrant that the libel was published by the plaintiff. But it is alleged that the paper was printed by his authority. And if I send a manuscript to the printer of a periodical publication, and do not restrain the printing and publishing of it, and he does print and publish it in that publication, then I am the publisher. The word 'reflecting, standing by itself, would not be sufficiently distinct. But the warrant recites that the letter had been adjudged to be a libelous and scandalous paper, reflecting on I, myself, while I presided in the Court of Chancery, committed for contempt, in a case in which a pamphlet was sent to me, the object of which was, by partial representation, and by flattering the judge, to procure a different species of judgment from that which would be administered in the ordinary course of justice. I might be wrong, but I do not think I was. The House of Commons, whether a court or not, must, like every other tribunal, have the power to protect itself from obstruction and insult, and to maintain its dignity and character. If the dignity of the law is not sustained, its sun is set, never to be lighted up again. So much I thought it necessary to say, feeling strongly for the dignity of the law; and have only to add, that I fully concur in the opinion delivered by the Judges." The counsel were called in, and informed that the House did not think it necessary to hear counsel for the defendants. And then, without further proceeding, the judgments of the court below were affimed. 5 Dow's Parl. Rep. 165, 199. certain, that the laws under which he suffers their absolute control within their own walls, were made for his security. The unreasonable carry with them the right to punish contempts murmurs of individuals against the restraints committed in their presence; while the absolute of society, have a direct tendency to produce legislative power given to Congress within this that worst of all despotisms, which makes every district, enables them to provide by law against individual the tyrant over his neighbor's rights. all other insults against which there is any neThat the safety of the people is the supreme cessity for providing. law," not only comports with, but is indispensable to, the exercise of those powers in their public functionaries, without which that safety cannot be guarded. On this principle it is, that courts of justice are universally acknowledged to be vested, by their very creation, with power to impose silence, respect, and decorum, in their presence, and submission to their lawful mandates, and, as a corollary to this proposition, to preserve themselves and their officers from the approach and insults of pollution. It is true, that the courts of justice of the United States are vested, by express statute provision, with power to fine and imprison for contempts; but it does not follow, from this circumstance, that they would not have exercised that power without the aid of the statute, or not, in cases, if such should occur, to which such statute provision may not extend; on the contrary, it is a legislative assertion of this right, as incidental to a grant of judicial power, and can only be considered either as an instance of abundant caution, or a legislative declara- | 228*] tion, that the power *of punishing for contempt shall not extend beyond its known and acknowledged limits of fine and imprison ment. But it is contended, that if this power in the House of Representatives is to be asserted on the plea of necessity, the ground is too broad, and the result too indefinite; that the executive, and every co-ordinate, and even subordinate, branch of the government, may resort to the same justification, and the whole assume to themselves, in the exercise of this power, the | most tyrannical licentiousness. This is unquestionably an evil to be guarded against, and if the doctrine may be pushed to that extent, it must be a bad doctrine, and is justly denounced. It is to be observed, that so far as the issue of this cause is implicated, this argument yields all right of the plaintiff in error to a decision in his favor; for, non constat, from the pleadings, but that this warrant issued for an offense committed in the immediate presence of the House. Nor is it immaterial to notice what difficulties the negation of this right in the House of Representatives draws after it, when it is considered, that the concession of the power, if exercised within their walls, relinquishes the great grounds of the argument, to wit, the want of an express grant, and the unrestricted and undefined nature of the power here set up. For why should the House be at liberty to exercise an ungranted, an unlimited, and undefined power within their walls, any more than without them? If the analogy with individual right and power be resorted to, it will reach no farther than to exclusion, and it requires no exuberance of imagination *to exhibit [*230 the ridiculous consequences which might result from such a restriction, imposed upon the conduct of a deliberative assembly. Nor would their situation be materially relieved by resorting to their legislative power within the district. That power may, indeed, be applied to many purposes, and was intended by the constitution to extend to many purposes indispensable to the security and dignity of the general government; but they are purposes of a more grave and general character than the offenses which may be denominated contempts, and which, from their very nature, admit of no precise definition. Judicial gravity will not admit of the illustrations which this remark would admit of. Its correctness is easily tested by pursuing, in imagination, a legislative attempt at defining the cases to which the epithet contempt might be reasonably applied. But although the offense be held undefinable, it is justly contended, that the punishment need not be indefinite. Nor is it so. We are not now considering the extent to which the punishing power of Congress, by a legislative act, may be carried. On that subject, the bounds of their power are to be found in the provisions of the constitution. The present question is, what is the extent of the punishing power which the deliberative assemblies of the Union may assume and exercise on the principle of self-preservation? But what is the alternative? The argument obviously leads to the total annihilation of the power of the House of Representatives to guard itself from contempts, and leaves it exposed to every indignity and interruption that rudeness, caprice, or even conspiracy, may meditate against it. This result is fraught with too much absurdity not to bring into doubt the soundness of any argument from which it is derived. That a deliberate assembly, clothed with the majesty of the people, and charged with the care of all that is dear to them; composed of the most distinguished citizens, se- Analogy, and the nature of the case, furnish lected and drawn together from every quarter the answer-"the least possible power [*231 of a great nation; whose deliberations are re- adequate to the end proposed;" which is the quired by public opinion to be conducted power of imprisonment. It may, at first view, under the eye of the public, and whose de- and from the history of the practice of our legcisions must be clothed with all that sanctity islative bodies, be thought to extend to other 229*] which unlimited confidence in their inflictions. But every other will be found to wisdom and purity can inspire; that such an be mere commutation for confinement; since assembly should not possess the power to sup-commitment alone is the alternative where the press rudeness, or repel insult, is a supposition individual proves contumacious. And even to too wild to be suggested. And, accordingly, the duration of imprisonment a period is imto avoid the pressure of these considerations, posed by the nature of things, since the existit has been argued, that the right of the respect-ence of the power that imprisons is indispensable ive Houses to exclude from their presence, and to its continuance; and although the legislative power continues perpetual, the legislative body ceases to exist on the moment of its adjourn ment or periodical dissolution. It follows, that imprisonment must terminate with that adjournment. This view of the subject necessarily sets bounds to the exercise of a caprice which has sometimes disgraced deliberative assemblies, when under the influence of strong passions or wicked leaders, but the instances of which have long since remained on record only as historical facts, not as precedents for imitation. In the present fixed and settled state of English institutions, there is no more danger of their being revived, probably, than in our own. But the American legislative bodies have never possessed, or pretended to the omnipotence which constitutes the leading feature in the legislative assembly of Great Britain, and which may have led occasionally to the exercise of caprice, under the specious appearance of merited resentment. 232*] *If it be inquired, what security is there, that with an officer avowing himself devoted to their will, the House of Representatives will confine its punishing power to the limits of imprisonment, and not push it to the infliction of corporal punishment, or even death, and exercise it in cases affecting the liberty of speech and of the press? the reply is to be found in the consideration, that the constitution was formed in and for an advanced state of society, and rests at every point on received opinions and fixed ideas. It is not a new creation, but a combination of existing materials, whose properties and attributes were familiarly understood, and had been determined by reiterated experiments. It is not, therefore, reasoning upon things as they are, to suppose that any deliberative assembly, constituted under it, would ever assert any other rights and powers than those which had been established by long practice, and conceded by public opinion. Melancholy, also, would be that state of distrust which rests not a hope upon a moral influence. The most absolute tyranny could not subsist where men could not be trusted with power because they might abuse it, much less a government which has no other basis than the sound morals, moderation, and good sense of those who compose it. Unreasonable jealousies not only blight the pleasures, but dissolve the very texture of society. 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. In reply to the suggestion that, on this same foundation of necessity, might be raised a superstructure of implied powers in the executive, and every other department, and even ministerial officer of the government, it would be sufficient to observe, that neither analogy nor precedent would support the assertion of such powers in any other than a [*234 legislative or judicial body. Even corruption anywhere else would not contaminate the source of political life. In the retirement of the cabinet, it is not expected that the execu tive can be approached by indignity or insult; nor can it ever be necessary to the executive, or any other department, to hold a public deliberative assembly. These are not arguments; they are visions which mar the enjoyment of actual blessings, with the attack or feint of the harpies of imagination. As to the minor points made in this case, it is only necessary to observe, that there is nothing on the face of this record from which it can appear on what evidence this warrant was issued. And we are not to presume that the House of Representatives would have issued it without duly establishing the fact charged on the_individual. And, as to the distance to which the process might reach, it is very clear that there exists no reason for confining its operation to the limits of the District of Columbia; after passing those limits, we know no bounds that can be prescribed to its range but those of the United States. And why should it be restricted to other boundaries? Such are the limits of the legislating powers of that body; and the inhabitant of Louisiana or Maine may as probably charge them with bribery and corruption, or attempt, by letter, to induce the commission of either, as the inhabitant of any other section of the Union. But it is argued, that the inference, if any, If the inconvenience be urged, the reply is arising under the constitution, is against the obvious; there is no difficulty in observing exercise of the powers here asserted by the *that respectful deportment which will [*235 House of Representatives; that the express render all apprehension chimerical. 233*] grant of power to punish their *memJudgment affirmed. bers respectively, and to expel them, by the application of a familiar maxim, raises an implication against the power to punish any other than their own members. This argument proves too much; for its direct application would lead to the annihilation of almost every power of Congress. To enforce its laws upon any subject without the sanction of punishment is obviously impossible. Yet there is an express grant of power to punish in one class of cases, and one only; and all the punishing power exercised by Congress in any cases, except those which relate to piracy and offenses against the laws of nations, is derived from implication. Nor did the idea ever Cited 2 Cranch C. C. 391; 1 Wood. & M. 440. [PRIZE.] LA CONCEPTION. THE SPANISH CONSUL, Claimant. Where a capture is made of the property of the subjects of a nation in amity with the United States, by a vessel built, armed,equipped, and owned in the United States, such capture is illegal, and the property, if brought within our territorial limits, will be restored to the original owners. Where a transfer of the capturing vessel in the ports of the belligerent state, under whose flag and commission she sails on a cruise, is set up in order to legalize the capture, the bona fides of the sale must be proved by the usual documentary evidence, in a satisfactory manner. APPEAL from the Circuit Court of South This was an allegation filed in the District Court of South Carolina by the Vice-Consul of His Catholic Majesty, claiming restitution of the ship La Conception and cargo, as the property of Spanish subjects to him unknown, which had been illegally captured by the armed ship La Union, sailing under the flag of Buenos Ayres, and pretending to have a commission or letter of marque from that government, but actually built, equipped, armed, and manned in the United States. A claim was interposed 236*] *by one Brown, claiming the property as having been taken by him, as commander of La Union, on the high seas, under a commission from the government of Buenos Ayres, authorizing him to capture the property of the subjects of Spain. The District and Circuit Courts decreed restitution of the property to the captors, no sufficient evidence being produced of the capturing vessel having been equipped, or having augmented her force in the ports of the United States. On appeal to this court, farther proof was taken, showing conclusively, that the capturing vessel was originally built. owned, and equipped in this country, and after proceeding to Buenos Ayres, and sailing from that port on a cruise, had touched at the port of New Orleans, and there illegally augmented her force, since which, the capture in question was made. This evidence was attempted to be repelled on the part of the captors, by testimony tending to show a transfer of the capturing vessel at Buenos Ayres to domiciled subjects of that country, and that the subsequent augmentation of her force at New Orleans, if any, was very trifling, and only amounted to a replacement of her former equipment. Mr. Winder, contra, insisted, that it must be a clear case of the violation of our neutral rights, or the court would not interfere to restore a capture made under a commission from a sovereign state, and that the onus probandi for this purpose was on the Spanish claimant. We have an unquestionable right to build ships for The counsel on both sides also argued on the Bello Corrunes, ante, p. 155, and which it is not same grounds which are stated in a case of the thought necessary to repeat. Mr. Justice STORY delivered the opinion of the court: In this case, if the cause had stood solely upon the evidence before the Circuit Court, we should have no difficulty in affirming its decision. But upon the new proofs which have been since taken, and are now proproduced to this court, it is apparent that the capturing vessel was originally built, equipped, manned, and armed in the United States for a cruise, being owned by citizens of this country, The Attorney-General and Mr. Hopkinson, for and *sailed with the intent of cruising [*239 the appellant and claimant, the Spanish consul, against Spain. It is true that she went to argued, that the original owners were entitled Buenos Ayres, and sailed under the colors of to restitution, according to the uniform series that government on a second cruise, during of decisions in this court, upon the ground that which this capture was made; but, there is no the capturing ship was built and equipped in satisfactory evidence that the American ownerthe United States, with the intention of cruising ship ever ceased, or that there was a real, bona against the subjects of Spain, in violation of fide sale at Buenos Ayres. If such a sale had our neutrality, and actually belonged to citi-really taken place, it was perfectly in the power 237*] zens of the United States, when the present capture was made; or had illegally augmented her force in our ports, previous to the capture. That the pretended transfer at Buenos Ayres was evidently colorable, and was not proved by the production of the bill of sale, or any of the other documentary evidence usually expected by maritime courts, to establish a change of this species of property. That the enlistment of additional seamen to the crew at New Orleans, being proved, the onus was thrown back upon the captors, to show that the persons so enlisted were subjects of Buenos Ayres, transiently within the United States." 1. The Alerta, 9 Cranch, 359; The Divina Pastora, 4 Wheat. Rep. 298; The Estrella, 4 Wheat. Rep. 298; La Amistad de Rues, 5 Wheat. Rep. 385; The Bello Corrunes, ante, p. 152. 2.-The Estrella, 4 Wheat. Rep. 298. of the captors to have proved it, in the clearest Cited 2 Wood. & M. 540, 541. 3.-La Amistad de Rues, 5 Wheat. Rep. 385. |