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The Senate's Power of

December 16,
Investigation 1926
A document from the CQ Researcher archives:

Report Outline
Daugherty and Sinclair Contempt Cases
British, Colonial and State Precedents
Investigations by the House and Senate
Executive Resistance to Legislative Inquiries

Although not expressly granted by the Constitution, broad powers of investigation


have been exercised by Congress, dating almost from the establishment of the
federal government. The first investigation by a congressional committee
empowered to call for such persons, papers and records as may be necessary to
assist their inquiries was ordered by the House of Representatives in 1792. During
the early years all of the more important investigations were conducted by
committees of the lower house. In recent years the Senate has more and more
assumed the functions of a grand inquest of the nation.

Notwithstanding the absence of any express constitutional authority, the power of


either the House or the Senate to order investigations into any matter of public
interest or concern, and to compel the submission of evidence before its committees
of inquiry, has seldom been questioned in the courts. In two pending cases,
however, sweeping challenges to the inquisitorial authority of the legislative branch
are offered, which, if sustained by the Supreme Court of the United States, will
definitely restrict for the future the practically unlimited powers of investigation
heretofore exercised by the legislative branch.

Judicial Powers of Legislative Branch


At the basis of any effective power of investigation there must be authority to punish
unwilling or untruthful witnesses for contempt. Such authority is not specifically
conferred upon Congress by the Constitution. The Supreme Court has held, however,
that the power to punish contumacious witnesses is necessarily implied in those
provisions of the Constitution which entrust specific judicial functions to the two
houses, and may therefore be employed in proceedings in discharge of those
functions.

Under the Constitution the House has the sole authority of impeachment and the
Senate the sole power to try impeachment cases; each house is made the judge of
the election and qualifications of its members; each may punish its members for
disorderly behavior, and, with the concurrence of two-thirds, may expel a member.
In investigations carried on under the judicial authority thus conferred, it is well
established that the House and Senate may employ the same power to compel the
attendance of witnesses and their answers to proper questions that resides in the
courts of justice.

On the other hand, the Supreme Court has declared Congress to be without
authority to conduct investigations of a judicial character into matters over which it
possesses no judicial authority. In the leading case under this head, Kilbourn v.
Thompson,1 it was held that the House had no power to compel an unwilling witness
to testify or produce documents or to punish him for disobedience because the
investigation in which it was engaged constituted an invasion of the powers reserved
under the Constitution to the judicial branch of the government.

Inquiries in Aid of Legislation


Whether the House and Senate have power to conduct investigations and compel
testimony to assist them in reaching legislative decisions, or to inform themselves
and the country upon matters in which legislative action may be necessary, is a
question that has never been directly passed upon by the Supreme Court. In its
decision of the case of Kilbourn v. Thompson, however, the Court expressed doubt
as 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, the Court added, 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
non-existence of such power in aid of the legislative
function.

The Supreme Court's decision in the case of Kilbourn v. Thompson was rendered in
1880. In no decision since has it settled the question whether the legislative branch
has power to compel testimony in aid of legislation. This question is prominently
raised in the pending cases of Mally S. Daugherty and Harry F. Sinclair, both of which
arose out of the Senate investigations of 1924.

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Daugherty and Sinclair Contempt Cases

The Daugherty contempt case has been pending before the Supreme Court for more
than two years, indicating a close division of opinion among the members of the
Court upon the issues involved. Although the two cases differ in details, the decision
in this case will probably be controlling in the Sinclair contempt case, for unless
decided upon some minor point, which appears unlikely, the Daugherty case should
go a long way toward establishing the limits within which Congress may exercise
compulsory powers of investigation.

Senate Order for Daugherty's Arrest


The Daugherty case arose out of the refusal of Mally S. Daugherty, brother of the
former Attorney General, to appear when subpoenaed, March 22, 1924, to testify
and submit certain books and papers of the Midland National Bank of which he was
president, before the special Senate committee investigating Harry M. Daugherty's
administration of the Department of Justice. A second subpoena was issued April 11
by Senators Brookhart and Wheeler, sitting as a sub-committee at Washington Court
House, Ohio. To this second subpoena, Daugherty again refused to respond.

The investigating committee thereupon reported these facts to the Senate which
adopted a resolution, April 26, 1924, reciting that

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.

The resolution ordered that the President pro tempore of the Senate issue his
warrant commanding the Sergeant-at-Arms, or his deputy, to take Daugherty into
custody and bring him 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
pro tempore of the Senate to propound; and to keep the said
M. S, Daugherty in custody to await the further order of the
Senate.

Daugherty, when arrested under this order, applied for a writ of habeas corpus
which was issued by Judge A. M. J. Cochran of the United States District Court,
southern district of Ohio. The case was thereupon appealed by the government to
the Supreme Court.

Court Procedure in Sinclair Case


The order for Daugherty's arrest illustrates one form of procedure open to the
Senate or House in attempting to deal with contumacy before their committees of
inquiry. A different form had been followed when Harry F. Sinclair refused on March
22, 1924 to answer a series of questions propounded to him by Senator Walsh
before the committee investigating the leasing of Teapot Dome.

Section 102 of the Revised Statutes of the United States provides that

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 committee of either house of Congress, wilfully
makes default, or who, having appeared refuses to answer any
questions pertinent to the question under inquiry, shall be
deemed guilty of a misdemeanor punishable by a fine of not
more than $1000 or less than $100, and imprisonment in a
common jail for not less than one month or more than 12
months.

In section 104 of the Revised Statutes it is provided that

Whenever a witness, summoned as mentioned in Section 102,


fails to testify and the facts are reported to either house,
the President of the Senate or the Speaker of the House, as
the case may be, shall certify the fact, under the seal of
the Senate or House, to the District Attorney for the District
of Columbia, whose duty it shall be to bring the matter before
the grand jury for their action,

Sinclair's refusal to testify was reported to the Senate and certified to the District
Attorney, as provided in the above statute, and in due course Sinclair was indicted
and tried. The lower court held that certain of the questions asked by Senator Walsh
were improper and that Sinclair was within his rights in refusing to answer them.
Certain other questions, however, were held by the court to be proper questions and
should have been answered by Sinclair - if the Senate was acting within its proper
authority in conducting the investigation. As to the Senate's authority to conduct the
Teapot Dome investigation, that was a question for decision by an appellate court.

On the basis of this decision the case was taken to the Court of Appeals of the
District of Columbia, which withheld its decision pending action by the Supreme
Court in the Daugherty case. During the last session of Congress, however, an act
was passed forbidding appeals in such cases and the case was thereupon dismissed
by the Court of Appeals. This action is now before the Supreme Court upon petition
for review.

Daugherty Decision in District Court


Judge Cochran's decision that Mally S. Daugherty should be released from the
custody of the Senate was grounded upon his finding that Daugherty had been
unlawfully arrested and detained: In his opinion he held that the Senate was acting
beyond its authority in conducting its investigation of the Department of Justice,
which was in the nature of a judicial proceeding against Harry M. Daugherty.

The court took notice of the fact that the Senate in ordering Daugherty's arrest had
asserted that his testimony was necessary as a basis for such legislative and other
action as the Senate may deem necessary and proper,

This raises the interesting question whether either branch


of Congress has the power to compel an outsider to testify
and to produce documents before it in aid or its exercise of
the legislative function, or, rather, of that part of such
function which belongs to it.

After pointing out that the Supreme Court not only had never held that such power
existed, but had never said anything favoring its existence, Judge Cochran added

The necessities of this case, however, do not require that


I should pass on this question and I do no more than say that
I have very serious doubt as to the existence of such power.
This is so because, conceding that the Senate has such power,
I am constrained to hold that its action in attempting to
compel the petitioner to testify before it is absolutely
void.

Judge Cochran deemed the Senate's assertion of a legislative purpose and after
thought, which was expressed after its authority had been challenged, and which
could not be held to reveal the real purpose of the investigation.

What the Senate is engaged in doing, he said, 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 itThis it has no power to do

It is not within its province to harass, annoy, put in fear,


render unfit, or possibly drive from office any such officer,
high or low, by instituting such proceedings against him
What it is 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. In so doing it is exercising the judicial
function.

Since the Senate was without authority to conduct the investigation which was in
progress, it followed that it was without authority to order Mally Daugherty's arrest
and had no power to punish him for his contempt of an authority which had no
existence.

Arguments on Power of the Senate


The argument made by the government in the Supreme Court in support of the
Senate's authority to compel testimony in the Daugherty case, and in the lower
courts in the Sinclair case, was founded upon the proposition that
Each house of Congress has power to conduct an
investigation in aid of its legislative functions, and to
compel attendence before it of witnesses and the production
of books and papers which may throw light upon the subject
of inquiry.

The government sought to show that both the Department of Justice and the oil
leasing investigations were directed to legislative ends. This had been asserted by
the Senate in the order for Daugherty's arrest, and in the resolution renewing the
authority of the oil leasing committee during the Sixty-eighth Congress, which had
declared that the purpose was to ascertain what, if any, other or additional
legislation may be advisable.

Unless the government's first proposition - that both houses have power to conduct
investigations in aid of legislation - is sustained by the Supreme Court its whole
argument in both these cases falls to the ground. If the Senate has no authority to
compel testimony in aid of legislation, argument as to whether the Department of
Justice and oil leasing investigations were legislative or judicial in character is beside
the point. Chief attention was given by the government, therefore, in both these
cases to sustaining its first point.

In order that the legislative function may be performed


properly,it said in its brief in the Daugherty case,it,
must be conceded that the first duty of the legislature is
to properly and fully inform itself. In no matter can this
duty be more paramount than in respect to the conduct of the
various departments of the government itself. This would seem
to be the first and foremost duty.

Annually Congress must legislate for the continued support


and therefore for the very existence or ability to continue
to function for all the departments of the government. To
contend that such power and such duty are not present and
inherent and intrinsic is to say that Congress must pass
willy-nilly the money of the peopleThe complaint is
generally that too much is spent in that manner as it is, and
for the court to deny the power of Congress to inform itself
with the aid of compulsory process to get the information
would not merely be the height of effrontery but would be
destructive.

Questions Pending for Decision


The government's argument is, in brief, that the power to investigate and compel
testimony is essential to a proper discharge of the legislative function, and therefore
was necessarily implied in those provisions of the Constitution which confer the
power of legislation upon Congress. The argument of opposing counsel is that no
such power exists by necessary implication, that any recognition of its existence
would be obnoxious to the guarantees of the fourth and. fifth amendments, and
that, in any case, the Department of Justice and oil leasing investigations were
judicial inquiries beyond the power of the legislative branch to conduct.

The main question presented for decision in the pending cases is whether the
legislative power conferred by the Constitution upon Congress includes the power
to conduct investigations and to punish contumacious witnesses for contempt. The
question whether the investigations out of which these cases arose were legislative
or judicial in character takes a place of secondary importance, although decisions
favorable to Daugherty and Sinclair on this point would have the effect of outlawing
for the future such investigations as were conducted by the Senate in 1924 into the
operations of the executive branch of the government and the activities of its
officials.

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British, Colonial and State Precedents

The power of the legislative branch to conduct investigations in aid of its legislative
function and to compel testimony by unwilling witnesses before its committees of
inquiry was well established in Great Britain at the time the United States
government was founded. American legislative machinery and procedure was largely
modeled upon the British pattern, and on this basis it has been argued that the
framers of the Constitution when conferring the legislative power upon Congress,
must have intended, in the absence of express provision to the contrary, to confer
the power of investigation as an intrinsic part of the power to legislate.

The persuasive value of British precedents and practices was denied by the Supreme
Court, however, in the case of Kilbourn v. Thompson, on the ground that the High
Court of Parliament was originally a judicial as well as a legislative body. The exercise
by the House of Commons of the judicial authority to compel testimony was held in
this decision to trace back to its ancient exercise of judicial functions. The American
Congress, stripped at its creation of all except a few enumerated judicial functions,
could not be conceded the same range of judicial authority that continued to be
exercised by the British House of Commons.

This position has been disputed by later authorities who have held that there was no
clear distinction between legislative power and judicial power at the time the
British Parliament functioned as a court, and that the power of compelling testimony
was no more judicial than it was legislative in its origin. The same process was
employed by Parliament in its discharge of both functions, and it has been argued
that its exercise was as necessary to the proper discharge of the one function as the
other. In view of this argument, there is the possibility that the Supreme Court in the
pending contempt cases will reverse the position assumed by the Court in 1880
when the case of Kilbourn v. Thompson was decided.

Inquisitorial Powers of the Commons


The earliest recorded instances in which punishment was inflicted upon
contumnacious witnesses by the British House of Commons related to disputed
election cases. The Commons gained the right to resolve such cases in 1586, and the
first imprisonment of an untruthful witness before a committee charged with
ascertaining the facts in an election dispute appears to have been that of Randolph
Davenport in 1621. From this time forward the records of Parliament show
numerous cases of punishment of unwilling or untruthful witnesses in election cases
up to the time when the right to decide such cases was surrendered to the courts by
act of Parliament in 1868.

At the beginning of the seventeenth century numerous committees authorized to


collect data as a basis for proposed legislation were clothed with powers to compel
the production of persons and papers, administer oaths, and report recalcitrant
witnesses to the House. The famous case of the Sheriff Acton of London who was
sentenced to the Tower for prevaricating before such a committee occurred during
this period.

The power of Parliament over the purse led to the creation of committees to
determine whether funds appropriated were being properly expended and by 1640
a large number of committees had come into being with power to make detailed
investigations into all the operations of the government. Even the military and naval
branches were compelled to disclose the details of their operations when
dissatisfaction with the conduct of military movements arose in Parliament. All
manner of scandals were investigated, and witnesses preparing to flee the country
were seized and imprisoned pending their examination by committees of inquiry.

By the time the American colonies had gained their independence, tradition and
usage had placed beyond dispute the power of the House of Commons to employ
compulsory process in the investigation of any matter of public concern. This power,
when challenged, was upheld by the courts.

That the Commons arethe general inquisitors of the


realm, said Lord Coleridge in his decision of the famous
case of Howard v. Gossett, I fully admit: it would be
difficult to define any limits by which the subject matter
of their inquiry can be bounded; it is unnecessary to attempt
to do so now: I would be content to state that they may inquire
into everything which it concerns the public weal for them
to know; and they themselves, I think, are entrusted with the
determination of what falls within that category.
Coextensive with the jurisdiction to inquire must be their
authority to call for the attendance of witness, to enforce
it by arrest when disobedience makes that necessary

Investigations by Colonial Assemblies


In the representative assemblies of the American colonies, the parliamentary
principles and practices of the British House of Commons were followed, and the
power to investigate and to punish for contempt was assumed to exist as an incident
to their legislative powers.

In 1722 the Massachusetts House of Representatives called two military officers


before it to explain why certain offensive operations had not been carried out, and
when the Governor attempted to obstruct the inquiry the House declared that it was
not only their privilege but duty to demand of any officer in the pay and service of
this government an account of his management while in the public imploy.

A standing committee of the Pennsylvania House of Delegates had power to


investigate the expenditure of all public funds and was armed with full power and
authority to send for persons, papers and records by the Sergeant at Arms of this
House. When a. collector of revenues in North Carolina refused, under the
Governor's orders, to submit his records for examination by the colonial assembly he
was ordered arrested and detained until he complied.

The Pennsylvania House of Delegates asserted its authority not only to investigate
the expenditure of public funds but also to inquire into misbehavior by the
Governor's appointees. When charges of fraudulent, corrupt and wicked practices
were made against William Moore, judge of the court of common pleas in 1757,
witnesses who refused to testify or testified untruthfully in the investigation made
by the House were arrested and imprisoned, and the House, having no power to
remove Judge Moore, petitioned the Governor to take him from the bench.

Investigations by State Legislatures


The powers thus exercised by the colonial assemblies continued to be exercised by
the legislatures of the states when the new federal government was set up. In 1824
the New York Assembly appointed a committee to investigate and determine
whether the charter of the Chemical Bank had been corruptly obtained and punished
a witness named Caldwell for contempt. Seven years later two witnesses were
forcibly brought before a committee of the Assembly investigating the use of funds
by state banks, and one of them, continuing his refusal to testify, was imprisoned
until such time as he was willing to meet the committee's demands.

Numerous other cases of this nature occurred in the state legislatures and the power
of the legislatures, when challenged, was upheld by the state courts.

It is a well established principle of this parliamentary law, said Judge Daly, New
York, in the case of Briggs v. MacKellar, that either house may institute any
investigation having reference toany matter affecting the public interest upon
which it may be important that it should have exact information, and in respect to
which it would be competent for it to legislate. The right to pass laws, necessarily
implies the right to obtain information upon any matter which may become the
subject of law. It is essential to the full and intelligent exercise of the legislative
functionIn American legislatures the investigation of public matters before
committees, preliminary to legislation, or with the view of advising the house
appointing the committee is as well established as it is in England, and the right of
either house to compel witnesses to appear and testify before its committees, and to
punish for disobedience has been frequently enforced.

Prior to the Supreme Court's decision of the case of Kilbourn v. Thompson broad
powers of investigation were conceded to the state legislatures in the decisions of
state courts. While there have been some decisions of state courts since 1880
tending to impose restrictions upon these powers, the right to investigate in aid of
legislation has in general been upheld.

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Investigations by the House and Senate

The first use of the power of investigation by the national legislature occurred during
the Second Congress, within two years after the ratification of the federal
Constitution by the thirteenth state.

On March 27, 1792, a resolution directing the President to conduct an inquiry into
the disaster to General St. Clair and his army in the northwest was voted down by
the House of Representatives 35 to 21 and a substitute resolution was adopted 44 to
10 where under a committee of the House, armed with power to send for persons
and papers, was authorized to make the investigation.

Objection was raised on this occasion to the power of the House to conduct an
inquiry into the conduct of an officer directly under the control of the Executive, and
not amenable to the process of impeachment. To this objection it was replied that
an inquiry into the expenditure of all public money is the indispensable duty of this
House.

Thus the first congressional investigation was based upon the power of
appropriation. The investigation disclosed that the St. Clair defeat had been due to
causes for which the commander of the expedition had been in no way responsible.

Early Arguments on Power of House


No serious question of the right of the legislative branch to conduct investigations
was again raised until 1810 when grave charges were made against General James
Wilkinson and an investigation was proposed in the House. The resolution was
opposed on the ground that Congress had no power over an unimpeachable officer.

If we have not the absolute power of removing the


Commander-in-Chief, Pitkin replied, we have a right to
request the President of the United States that he would at
once exercise the constitutional power of removing him; and,
if he does not remove him, we have the power to say that there
shall no longer be an army with a commander at its head. If
the Executive did not do his duty in removing the officer,
we should in such case do ours by abolishing the office.

Impeachment of the President for failure to remove General Wilkinson was urged by
Taylor as a basis for the investigation. Sheffey said the power to make the
investigation arose out of the control of the public funds.

The true construction of the powers of the House in respect,


to investigation, other than for purpose of impeachment,
he said, is this: We have, 1st, the power to inquire to
inform ourselves and the nation; and 2nd, the power to inquire
with a view to future legislation. What are we? Legislators,
possessing the sovereign power, and drawing from the people
the money to support the government. Being thus constituted,
representing the people, and drawing from them the means of
keeping our establismhents, have not the people the right to
know not only how it is distributed but to whom? Is it a
republican doctrine that the people should not know how their
money is distributed? I consider it a right of this House
and of the people to know how their money is expended, and
to whom it is given.

On the basis of these arguments the House reaffirmed its power of investigation by
adopting the resolution for the Wilkinson investigation by a vote of 80 to 29.

Investigations of Wolcott and Calhoun


In 1800 Secretary of the Treasury Wolcott had written a letter to the Speaker of the
House stating that the President had accepted his resignation and asking for any
investigation which the House of Representatives may be pleased to institute. This
precedent, which had led to an investigation by which Wolcott had been absolved
from all charges, was followed by Vice President Calhoun in 1826. In December of
that year he addressed a letter to the Speaker of the House requesting an
investigation of charges against his administration of the War Department during the
time he served as Secretary of War.

The conduct of public servants,he saidis a fair subject


of the closest scrutiny and the freest remarks.

The investigation was made by a select committee of nine, which resorted to the
power to subpoena witnesses and compel testimony, without having any question of
its authority raised.

A request for a similar investigation was made by Gideon Granger, during his term of
office as Postmaster General, and in 1850 Secretary of War Crawford asked an
investigation of his conduct in relation to the payment of certain claims. Various
other requests for investigations have come to the House and Senate from officials
of the executive branch, but such requests have not always been complied with.

Tariff and Cabinet Investigations


In 1827 when the tariff issue between northern protectionists and southern free
traders became acute, the Chairman of the House Committee on Manufactures
asked that his committee be given authority to compel testimony and the
production of books and papers in connection with pending tariff legislation. The
need for such power was set forward by Edward Livingston as follows:

Before I agree to impose this tax upon my constituents, I


must be permitted to say that I want evidence; that my duty
will not permit me to rely on the bare assertion of any one,
much less on that of interested persons, be they ever so
respectable A long professional practice has taught me the
danger of relying on the testimony of interested witnesses,
and has also shown me the great utility of cross examination.
From disinterested witnesses it is calculated to elicit
truth; but it is invaluable for the detection of all those
subterfuges to which interest resorts in order to hide truth,
or give false color to a true statement.

The requested authority was granted to the Committee on Manufactures by a vote


of 102 to 88.

The House in 1832 undertook a searching investigation into charges against


President Jackson and his cabinet, appointing a select committee to inquire
whether an attempt was made by the late Secretary of War John H. Eaton,
fraudulently to give Samuel Houstona contractandwhether the President of the
United States had any knowledge of such attempted fraud, and whether he
disapproved or approved of the same. The investigation was made by a committee
armed with powers of compulsion, which subsequently acquitted Eaton of all
charges of fraud.

Opposition to Unlimited Power of Inquiry


The year 1832 brought forward in John Quincy Adams, then serving as a
Representative from Massachusetts, the first outstanding opponent of any unlimited
power of congressional investigation. The issue was the recharter of the Bank of the
United States. Legislation to this end had been reported to the House, but a minority
faction desired a further investigation by a committee clothed with compulsory
powers. Adams replied that an unlimited investigation is not within the power of
the House. At his instance the committee's powers were restricted to an inspection
of the books and an examination of the proceedings of the Bank, with instructions to
report whether the provisions of the charter have been violated or not. On several
subsequent occasions the authority of Congress to investigate quasi-public
institutions was defended on the ground that these institutions existed under
charters conferred by Congress.

In 1834 Adams' opposition to the employment of compulsory process in


congressional investigations became more pronounced. In the course of a further
investigation of the affairs of the Bank of the United States, the committee of inquiry
encountered opposition by the directors of the Bank who denied the power of the
House to conduct any inquiry which went beyond the question whether its charter
had been violated. When Nicholas Biddle and thirteen order directors were
subpoenaed and appeared before the committee, but refused to testify, the
committee adopted resolutions declaring that the action of the directors constituted
contempt of the House, that the House could compel the production of the books
and that the recalcitrant witnesses should be arrested and compelled to answer for
their contempt. When these resolutions were reported to the House for its approval,
Adams offered substitute resolutions declaring that no contempt had been
committed and that any attempt by the House to punish the witnesses would be
unconstitutional. It does not appear from the record that any vote was ever taken on
either of these sets of resolutions.

Denial of Power to Investigate


During the closing years of the Jackson administration, when the spoils system first
emerged as an important issue, the House adopted a resolution for an investigation
into the integrity and efficiency of the executive departments. The investigation
was vigorously opposed by President Jackson and the committee appointed to make
the inquiry, ultimately reported to the House that it was without power to make the
investigation with which it had been charged.

This investigation, it said in its reportcould be


instituted only for one of two purposes - impeachment or
legislation; they have shown it was not for legislation,
because no defect in the laws has been anywhere alleged, only
in their execution It is not the laws therefore, that the
resolution proposes to reform but the administration of those
laws.
The apparent acquiescence of the House in this conclusion was in striking contrast
with its previous conception of its authority to investigate, and probably is to be
attributed to partisan motives, since the investigations of succeeding years covered a
wider range than any that had ever gone before, and the House showed no
hesitation in embarking upon investigations of the execution of the laws by the
executive departments.

Adoption of Contempt Statute of 1857


In 1857 Congress passed those sections of the Revised Statutes heretofore quoted in
which it made contumacy before congressional committees a criminal offense
punishable by indictment and prosecution according to the regular procedure in
criminal cases. The occasion for this enactment was the refusal of J. W. Simonton to
testify before a House committee which had been authorized to investigate charges
of corruption against its members.

Simonton's refusal to testify was reported to the House together with a resolution
for his arrest to answer for contempt, and a bill making such refusal a criminal
offense. The expiration of the session was near at hand, and it was explained in
debate that since the power of the House to imprison did not extend beyond its
session - a well established rule under the British parliamentary practice - Simonton
would thus be enabled to escape with little punishment. The main purpose of the bill
was explained by its author to be to inflict a greater punishment than the
committee believe the House possess the power to inflict. Both the resolution and
the bill were passed by the House by overwhelming majorities, and no question of
the power to inflict punishment in cases of contumacy was raised during the
consideration of the bill by the Senate.

Investigation of Harpers Ferry Raid


Prior to 1860 some 40 investigations had been conducted by congressional
committees, of which all but half a dozen had been undertaken by committees of the
lower house. With the outbreak of the Civil War, however, the Senate began to take
an important part in the process of investigation. In 1860 three Senate committees
of inquiry were functioning at the same time and an extensive investigation was in
progress by a House committee to determine whether the President was making
improper use of his influence to secure the passage of legislation.

One of the Senate committees had been charged with the task of searching out the
facts attending the late invasion and seizure of the armory and arsenal of the United
States at Harpers Ferry, in Virginia, by a band of armed men. In this investigation a
witness named Hyatt refused to testify. He was arraigned before the bar of the
Senate and when he persisted in his refusal to answer resolutions were offered
proposing his imprisonment for contempt.

In the debate upon these resolutions Charles Sumner of Massachusetts argued that
the Senate had no power to compel testimony in aid of legislation.

Let me be understood as admitting the power of the Senate


where it is essential to its own protection or the protection
of its privileges, he said, but not where it is required
merely in aid of legislation. The difference is world wide
between what is required for protection and what is required
merely for aid; and here I part company with senators with
whom I am proud on other matters to act. They hold that this
great power may be exorcised not merely for the protection
of the Senate, but also for its aid in the framing of a bill
To aid a committee of this body merely in a legislative
purpose, a citizen guilty of no crime, charged with no
offensemay be seizedand dragged away from his home,
hurried across state lines, brought here as a criminal, and
then thrust into jail.

This argument was answered by Senator Fessenden of Maine in an equally famous


speech in which he said

The great purpose is legislation. There are some other


things, but 1 speak of legislation as the principal purpose
Proposing to legislate, we want informationHow are we to
get it? 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? In 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 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?

On the basis of this argument a resolution was adopted 44 to 10 directing that Hyatt
be committed to the common jail of the District of Columbia, and kept in close
custody until he should be willing to answer the questions propounded to him by the
Senate.

Congressional Investigations Since 1860


The first investigation by a joint committee of the two houses was authorized in
December 1861, when the Senate by a vote of 33 to 3, and the House without a roll
call, adopted a resolution for a joint investigation into the conduct of the present
war.

Senator Fessenden, in arguing for the resolution in the upper house, again stressed
the legislative basis for investigations.

If an inquiry is needed, he said, it is necessary before


we undertake to appropriate the hundreds of millions of
dollars that we must appropriate and put into the hands of
these agents. We must satisfy the people of the country that
things go on well, or we shall find ourselves in a condition
very soon where they will not go on at all.

During the 65 years that have elapsed since this first joint investigation, nearly a
score of investigations have been carried on by joint committees of the two houses
usually into matters of nation wide concern in which concerted action by the two
houses has seemed desirable.

Of the 50 most important investigations since the close of the Civil War, excluding
those undertaken by joint committees of inquiry, 34 have been carried out by Senate
committees and only 16 by committees of the House. During recent years all of the
outstanding investigations have been conducted by committees of the upper house.
Since 1910, according to a recent statement by Chairman Warren of the Senate
Appropriations Committee, Senate investigations have cost, the country $1,658,500,
with those conducted during the last session costing approximately $275,000.

The explanation of the reversal during recent years of the roles played during the
early history of the country by the House and Senate in the conduct of investigations
is to be found in the increasing size of the lower body, the necessity for limitation of
debate and the concentration of control over the activities of the House in the hands
of a comparatively few leaders. When these leaders are of the political party which is
in control of the executive branch, it is unlikely that any resolution for an
investigation which is known in advance to contain possibilities of embarrassment to
the administration will be permitted to come to a vote.

In the Senate, on the other hand, opposition to any investigation which commands
the support of a determined minority is useless, for the reason that a few senators
always have it within their power to obstruct the program of the majority by
filibuster, and to employ the Senate forum for airing their charges until such time as
the majority is ready to submit to their demands. Thus a form of senatorial courtesy
has developed which permits a freedom of investigation equal to the Senate's
freedom of debate.

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Executive Resistance to Legislative Inquiries

Power to call for persons and papers in legislative investigations, it has been pointed
out in recent studies of the powers of the American Senate, may readily be
converted into a power of supervision over the executive branch, thus affording a
valuable safeguard against executive inefficiency and corruption and forcing some
accountability into the rigid irresponsibility of the American system.1

Whatever may be thought of the rightfulness or wrongfulness


of the Senate's power over appointments, treaties, and
legislation, says Lindsay Rogers, There can be no
question, I think, of its benefits with regard to checking
the executive. Much can be forgiven an aggrandizing body
which forces some measure of responsibility into an otherwise
irresponsible system.

No provision is made in the Constitution, however, for the exercise of supervisory


authority over the executive by the legislative branch, and its attempted exercise has
frequently been resisted by American Presidents, beginning with Washington and
coming down to President Coolidge. Numerous instances can be cited in which the
President, or a member of the cabinet acting on his instruction, has refused to
submit information requested by the House or the Senate, on the ground of
attempted invasion of powers reserved under the Constitution to the executive
branch. In such a case the legislative branch posses no power of compulsion short of
the power of impeachment.

The first refusal of the Executive to comply with a request for information occurred
in 1796 when the House requested President Washington to lay before it certain
papers relating to the negotiation of a treaty with Great Britain. The President in
refusing the request pointed out that the assent of the House was not necessary to
the validity of the treaty, and that the treaty itself exhibited all the objects requiring
legislative provision.

As it is essential to the due administration of the


government, he said, that the boundaries fixed by the
Constitution between the different departments should be
preserved, a just regard to the Constitution and to the duty
of my officeforbids a compliance with your request.

Jackson's Assertion of Executive Rights


The year 1833 brought an extreme assertion of the Senate's right to detailed
information concerning the activities of the Executive when President Jackson was
directed to submit to that body a copy of a, paper alleged to have been read by him
to his cabinet relating to the removal of federal deposits from the Bank of the United
States.

The Executive, Jackson replied, is a coordinate and


independent branch of the government equally with the Senate,
and I have yet to learn under what constitutional authority
that branch of the legislature has a right to require of me
an account of any communicationmade to the heads of
departments acting as a cabinet council

Knowing the constitutional rights of the Senate, I shall


be the last man under any circumstances to interfere with
them. Knowing those of the Executive, I shall at all times
endeavor to maintain themI am constrained, therefore, by
a proper sense of my own self-respect and of the rights
secured by the Constitution to the executive branch of the
government, to decline compliance with your request.

In 1834 and 1835 when the Senate called for documents relating to persons
nominated before that body, Jackson complied with its requests although he noted
that he did not concede the right of the Senate to make them. Then the Senate
called for copies of charges made to him against an official he had removed from
office, and Jackson replied:

It is now my solemn conviction that I ought no longer


to yield to these unconstitutional demands. Their continued
repetition imposes on methe painful but imperious duty of
resisting to the utmost any further encroachment on the
rights of the Executive

Cleveland's Conflict with the Senate


Requests for information by the Senate and House were similarly resisted by Tyler
and Polk, but it was during the first administration of President Cleveland that the
next outstanding case appeared. It grew out of a request by the Senate that the
Attorney General submit all papers in the Department of Justice relating to the
conduct of the office of a certain district attorney. In his reply the Attorney General
stated that the President of the United States directs me to sayit is not considered
that the public interests will be promoted by a compliance with said resolution.

This reply was resented by the Senate. It appointed a committee to consider the
matter, and in its report the committee said:

The important questionis whether it is within the


constitutional competence of either house of Congress to have
access to the official papers and documents in the various
public offices of the United States created by laws enacted
by themselves.

On the recommendation of the committee the Senate adopted a resolution


condemning the refusal to submit the papers, to which President Cleveland replied,
March 1, 1886, asserting that the papers were in reality the private papers of the
Executive, and denying the Senate's assertion of supervisory authority over the
executive departments because the Congress had created them.

I do not suppose that the public offices of the United


States are regulated or controlled in their relations to
either house of Congress by the fact that they were created
by laws enacted by themselves. the President wrote. It
must be that these instrumentalities were creared for the
benefit of the people and to answer the general purposes of
Government under the Constitution and laws, and that they are
unencumbered by any lien in favor of either branch of Congress
growing out of their construction, and unembarrassed by any
obligation to the Senate as the price of their creation.

Coolidge's Attack Upon Investigations


The last challenge by the Chief Executive to the inquisitorial powers of the Senate
was offered during the investigations of 1924, shortly after the resistance of Harry F.
Sinclair and Mally S. Daugherty, as private citizens, to the Senate's authority to
compel testimony.

On April 11, 1924, President Coolidge sent a special message to the Senate
transmitting a, letter from the Secretary of the Treasury protesting against the
employment of Francis J. Heney, with private funds provided by Senator Couzens, to
take charge of the Senate's investigation of the Bureau of Internal Revenue. In his
letter Secretary Mellon said

Government business can not continue to be conducted under


frequent interference by investigations of Congress,
entirely destructive in their character. If the
interposition of private resources be permitted to interfere
with the executive administration of government, the
machinery of government will cease to function

When through unnecessary interference the proper exercise


of this duty (of the Secretary of the Treasury to the
President and the country) is rendered impossible I must
advise you that neither I nor any other man of character can
longer take responsibility for the Treasury

Fully endorsing the expressions of his Secretary of the Treasury, the President, in his
special message to the Senate said:

The constitutional and legal rights of the Senate ought to


be maintained at all times. Also the same must be said of the
executive departments. But these rights ought not to be used
as a subterfuge to cover unwarranted intrusion. It is the duty
of the Executive to resist such intrusion

Under a procedure of this kind the constitutional guaranty


against unwarranted search and seizure breaks down, the
prohibition against what amounts to a government charge of
criminal action without the formal presentment of a grand
jury is evaded, the rules of evidence which have been adopted
for the protection of the innocent are ignored, the
department becomes the victim of vague, unformulated and
indefinite charges and instead of a government of law we have
a government of lawlessness. Against the continuation of such
a condition I enter my solemn protest

President Coolidge's special message of April 11, 1924 was the most vigorous protest
ever made by an American Chief Executive against the unrestrained exercise of
powers of investigation by the legislative branch, and the pending contempt cases of
Daugherty and Sinclair present the most forceful challenge to the continued exercise
of such powers that has ever been offered in the federal courts.

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Footnotes

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1Kilbourn v, Thompson, 103 U, S. 168 (1880)

1Rogers. The American Senate, pp. 5, 6.

Document APA Citation See Alternate Citation Style


The Senate's power of investigation. (1926). Editorial research reports
1926 (Vol. IV). Washington, DC: CQ Press. Retrieved from
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