[Cannon's Precedents, Volume 6]
[Chapter 202 - Impeachment Proceedings Not Resulting In Trial]
[From the U.S. Government Publishing Office, www.gpo.gov]
IMPEACHMENT PROCEEDINGS NOT RESULTING IN TRIAL.
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1. Inquiries into the conduct of judges:
Lebbeus R. Wilfley in 1908. Section 525.
Cornelius H. Hanford in 1912. Section 526.
Emory Speer in 1913. Section 527.
Daniel Thew Wright in 1914. Section 528.
Alston G. Dayton in 1914. Section 529.
Kenesaw Mountain Landis in 1921. Section 535.
William E. Baker in 1925. Section 543.
George W. English in 1925. Sections 544-547.
Frank Cooper in 1927. Section 549.
Francis A. Winslow in 1929. Section 550.
Harry B. Anderson in 1930. Section 551.
Grover N. Muscowitz in 1930. Section 552.
Harry B. Anderson in 1931. Section 542.
2. Investigation of the conduct of H. Snowden Marshall, United
States district attorney for the Southern District of New
York. Sections 530-534.
3. Investigation of charges against Attorney General Daugherty.
Sections 536-538.
4. Charges as to collector of port of El Paso. Section 539.
5. Charges as to Commissioner of the District of Columbia.
Section 548.
6. Inquiry as to eligibility of Andrew W. Mellon to serve in
Cabinet. Section 540.
7. Inquiry as to official conduct of President Hoover. Section
641.
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525. The inquiry into the conduct of Lebbeus R. Wilfley, Judge of
United States Court for China.
A Member having risen in his place and impeached Judge Wilfley and
offered a resolution providing for an investigation, the House referred
the matter to the Judiciary Committee.
In the investigation into the conduct of Judge Wilfley, he appeared
before the committee and testified under oath.
The report of a subcommittee was disregarded and was not included as
a part of the report of the committee to the House.
The committee, after conducting an investigation, acted adversely on
a proposition to impeach Judge Wilfley and the House declined to take
further action.
A Member being criticized by the President for instituting
impeachment proceedings, rose to a question of personal privilege.
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\1\ Supplementary to Chapter LXXIX.
Sec. 525
On February 20, 1908,\1\ Mr. George E. Waldo, of New York, presented
as a privileged matter the following:
I desire to impeach Lebbeus R. Wilfley, of the United States court of
China, of mal and corrupt conduct in office, and of high crimes and
misdemeanors, and I present the following articles of impeachment and
ask that they may be read at the Clerk's desk.
The Clerk read the articles of impeachment, which detailed at length
the charges upon which the proposed impeachment was based.
Mr. Waldo then submitted a resolution authorizing and directing the
Committee on the Judiciary to investigate the charges, and, after
debate, made the following motion, which was agreed to:
I move that this resolution and the articles be referred to the
Committee on the Judiciary, to report back by resolution within ten
days what, if any, proceedings should be taken.
The motion was agreed to.
The investigation was delegated to a subcommittee of the Committee on
the Judiciary, which reported to the committee in part as follows:
It is obviously true that an aggregation of entirely legal acts may
develop into a system of tyranny and oppression; and that an
inequitable exercise of judicial discretion may convert the machinery
of justice into an engine of despotic and autocratic power. This may be
accomplished without the taint of individual corruption and with a
laudable purpose of purifying a community and of inaugurating civic
reform.
Terror to evil doers if purchased at the price of judicial fairness
and overstrained legal authority is achieved at too great an expense,
for it defeats its own high aim and warps the very fabric of the law
itself.
Such sets of legal oppression and of abuse of judicial discretion lie
at the base of these charges. They are made before the House of
Representatives in the form prescribed by law and custom, and are
presented as a question of high privilege upon the solemn
responsibility of a Member of the House. Charges so presented against
this court have a peculiar and dangerous significance. In this case
they are dismissed as falling short of impeachable offenses, by what we
believe to be sound principles of legal construction, and Judge Wilfley
is therefore denied any opportunity of defense. He can file no answer,
make no denial, nor explain to the House the legality or necessity for
his action.
These charges therefore stand uncontroverted, and if Judge Wilfley's
judicial acts in the future are marked by the rigorous and inflexible
harshness imputed to him they will hang as a portentous cloud over this
new court, impairing his usefulness, impeding the administration of
justice, and challenging the integrity of American institutions.
During the investigation Judge Wilfley appeared before the committee
and testified under oath.
On May 8, 1908,\2\ Mr. Reuben O. Moon, of Pennsylvania, from the
Committee on the Judiciary, submitted the following report:
The Committee on the Judiciary, to whom was referred the articles of
impeachment of Lebbeus R. Wilfley, judge of the United States court for
China, in compliance with the action of the House, begs leave to report
that, after investigation, it is the opinion of the committee that no
proceedings should be taken on the said resolutions.
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\1\ First session, Sixtieth Congress, Journal, p. 497; Record, 2262.
\2\ House Report 1626.
Sec. 526
The report was referred, under the rule, to the Committee of the
Whole House.
On March 3, 1909,\1\ Mr. Waldo rose to a question of personal
privilege and said:
Mr. Speaker, on February 20, 1908, at the request of Hon. Lorrin
Andrews, late attorney general of Hawaii, and who represented the
American lawyers and other American citizens, residents of Shanghai,
China, I presented to the House articles of impeachment against Lebbeus
R. Wilfley, judge of the United States court for China.
These articles charged judicial outrages and gross abuse of power
which, in my judgment, showed Judge Wilfley to be utterly unfit to hold
judicial office.
The President, without any investigation of the facts, except to hear
Judge Wilfley and his friends, sent to the subcommittee of the
Judiciary Committee, which was then investigating the facts, a copy of
a letter from himself to Secretary Root, in which the President used
this language:
``I have received and read your report of February 29 upon the
charges submitted by Lorrin Andrews, under date of November 19, 1907,
against Judge Wilfley; it appearing from your report that Congressman
Waldo stands sponsor for the charges.''
And concluded letter as follows:
``It is not too much to say that this assault on Judge Wilfley in the
interest of the vicious and criminal classes is a public scandal.''
This was evidently an intentional reflection upon the uprightness of
my motives and conduct and an invasion of my privileges as a Member of
this House.
Mr. Sereno E. Payne, of New York, made the point of order that the
gentleman was not stating a question of personal privilege.
The Speaker \2\ sustained the point of order, and Mr. Waldo continued
his remarks by unanimous consent.
526. The inquiry into the conduct of Judge Cornelius H. Hanford,
United States circuit judge for the western district of Washington, in
1912.
A Member on his authority as a Member of the House impeached Judge
Hanford and offered a resolution providing for investigation of
charges.
Pending motion to refer a resolution providing for an investigation
looking to impeachment the resolution is not open to amendment.
The House referred the charges made against Judge Hanford to the
Judiciary Committee for investigation.
During the investigation of Judge Hanford with a view to impeachment,
he was represented by counsel who cross-examined witnesses and produced
evidence in his behalf.
Judge Hanford having resigned his office, the House discontinued its
investigation into his conduct.
The report of the subcommittee, while recommending the discontinuance
of impeachment proceedings against Judge Hanford, declared him to be
disqualified for his position and recommended acceptance of his
resignation.
On June 7, 1912,\3\ Mr. Victor L. Berger, of Wisconsin, presented, as
a matter of privilege, the following:
Mr. Speaker, I rise to a question of the highest privilege and also
of the greatest importance. By virtue of my office as a Member of the
House of Representatives, I impeach Cornelius H.
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\1\ Second session Sixtieth Congress, Record, p. 3813.
\2\ Joseph G. Cannon, of Illinois, Speaker.
\3\ Second session Sixty-second Congress, Journal, p. 772; Record, p.
7799.
Sec. 526
Hanford, judge of the western district of the State of Washington, of
high crimes and misdemeanors.
I charge him with having annulled, on May 13, 1912, in violation of
the Constitution and on a frivolous charge, the naturalization papers
of Leonard Oleson.
I charge him with having been guilty of a long series of unlawful and
corrupt decisions.
I charge him with having issued in the collusive suit of Augustus
Peabody v. The Seattle, Renton & Southern Railway, in August, 1911, an
injunction in the interests of the company and against the interests of
the citizens of Seattle, flagrantly in violation of justice and law.
I charge him with being an habitual drunkard.
I charge him with being morally and temperamentally unfit to hold a
judicial position.
Mr. Berger then submitted the following resolution and moved that it
be referred to the Committee on the Judiciary:
Resolved, That the Committee on the Judiciary be directed to inquire
and report whether the action of this House is necessary concerning the
official misconduct of Cornelius H. Hanford; whether he has been in a
drunken condition while presiding in court; whether he has been guilty
of corrupt conduct in office; whether his administration has resulted
in injury and wrong to litigants of his court and to others affected by
his decisions; and whether he has been guilty of any misbehavior for
which he should be impeached.
That this committee is hereby authorized and empowered to send for
persons and papers, to administer oaths, to employ, if necessary, an
additional clerk and stenographer, and to appoint and send a
subcommittee whenever and wherever necessary to take testimony for the
use of said committee.
That the subcommittee shall have the same powers in respect to
obtaining testimony as are herein given to the said Committee on the
Judiciary.
That the expenses incurred in this investigation shall be paid out of
the contingent fund of the House.
Mr. Samuel W. McCall, of Massachusetts, proposed to amend the
resolution by inserting the word ``alleged'' before the word
``misconduct.''
A point of order by Mr. James R. Mann, of Illinois, that in view of
the motion to refer the resolution it was not open to amendment, was
sustained.
Thereupon Mr. Berger asked unanimous consent to amend the resolution
as proposed by Mr. McCall. There was no objection and the resolution
was so modified. The motion to refer the amendment to the Committee on
the Judiciary was then agreed to.
On June 13 \1\ Mr. Henry D. Clayton, of Alabama, from the Committee
on the Judiciary, presented as privileged the report of that committee,
with the recommendation that the resolution be amended to read as
follows:
That the Committee on the Judiciary be directed to inquire and report
whether the action of this House is requisite concerning the official
misconduct of Cornelius H. Hanford, United States judge for the western
district of the State of Washington, and say whether said judge has
been in a drunken condition while presiding in court; whether said
judge has been guilty of corrupt conduct in office; whether the
administration of said judge has resulted in injury and wrong to
litigants in his court and others affected by his decisions; and
whether said judge has been guilty of any misbehavior for which he
should be impeached.
And in reference to this investigation the said committee is hereby
authorized to send for persons and papers, administer oaths, take
testimony, employ a clerk and stenographer, if necessary, and to
appoint and send a subcommittee whenever and wherever it may be
necessary to take testimony for the use of said committee. The said
subcommittee while so employed shall
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\1\ House Report No. 880.
Sec. 526
have the same powers in respect to obtaining testimony as are herein
given to said Committee on the Judiciary, with a sergeant at arms, by
himself or deputy, who shall serve the process of said committee and
the process and orders of said subcommittee, and shall attend the
sitting of the same as ordered and as directed thereby, and that the
expense of such investigation shall be paid out of the contingent fund
of the House.
The report was adopted and the resolution as amended was agreed to.
On August 6 \1\ Mr. Clayton, from the Committee on the Judiciary,
submitted the unanimous report of the committee, incorporating the
report of an investigation made by a subcommittee pursuant to the
following resolution passed by the committee:
Resolved, That James M. Graham, Walter I. McCoy, and Edwin W.
Higgins, members of this committee, be appointed the subcommittee by
virtue of the authority given under House Resolution No. 576, passed by
the House of Representatives on June 13, 1912, authorizing an inquiry
into the alleged misconduct of Cornelius H. Hanford, United States
judge for the western district of the State of Washington, and that the
said subcommittee shall have all the powers authorized by said
resolution hereinbefore named.
This report relates:
In pursuance of said resolution, the subcommittee left Washington on
June 21, 1912, and reached Seattle the evening of June 25. Wednesday,
June 26, was spent in making the necessary preliminary arrangements for
proceeding with the hearings, and on Thursday, the 27th, the taking of
testimony was begun in a court room of the Federal Building in Seattle,
and was concluded on Monday, July 22, 1912. The subcommittee sat every
day between those days except Sundays and the Fourth of July, making in
all 21 days of actual work, including several evening sessions. Two
hundred and three witnesses were examined and 3,291 typewritten pages
of testimony were taken.
Immediately upon the arrival of the subcommittee in Seattle, the
following Communication was addressed to Judge Hanford by Mr. Graham,
chairman of the subcommittee.
Seattle, Wash., June 26, 1912.
Dear Sir: The subcommittee on the Committee of the Judiciary of the
House of Representatives, Washington, D.C., will convene to-morrow June
27, in the court room, Federal Building, in Seattle, for the purpose of
taking testimony under House Resolution 576, a copy of which is
attached hereto. You can, of course, be present at the session of the
subcommittee, in person and by counsel, if you so desire.
James M. Graham, Chairman.
Hon. C. H. Hanford.
The report says:
The subcommittee further reports that Judge Hanford was represented
during the hearings by able and learned counsel, namely, Mr. E. C.
Hughes, Mr. Harold Preston, and Mr. C. W. Dorr, and that they were
given wide latitude in the examination of all the witnesses and in the
production of evidence on behalf of Judge Hanford, so that the record
contains such evidence in defense as counsel desired to offer, as well
as the incriminating evidence.
The report continues:
The subcommittee had almost, but not quite, completed the taking of
testimony when, at the morning session on Monday, July 22, counsel
representing Judge Hanford asked for a conference with the members of
the subcommittee, and the request was granted. They then
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\1\ House Report No. 1152.
Sec. 527
informed the subcommittee that Judge Hanford had concluded to send his
resignation to the President.
The subcommittee thereupon decided:
That there was no good reason why the resignation of the judge should
not be accepted. And it appears to the committee that the further
prosecution of the impeachment proceedings is inadvisable. Among the
reasons for this conclusion may be stated in substance the reasons
assigned by the subcommittee:
(1) The chief good which successful impeachment proceedings could
effect would be the removal of Judge Hanford from the bench. That good
his resignation accomplished.
(2) The record of the evidence shows that he is 64 years old his next
birthday, and hence not entitled to retire on pay. Therefore, his
resignation brings him no emolument or reward and involves no
expenditure of public money.
(3) The committee do not think it necessary or advisable to pursue
the impeachment further merely for the purpose of making him ineligible
to hold office in the future, as his age and the circumstances
disclosed by the testimony render such a contingency highly improbable.
(4) Bringing the witnesses from Seattle and vicinity to Washington, a
distance of over 3,000 miles, to prosecute an impeachment proceeding
before the Senate would involve an expenditure approximating $70,000.
This expenditure of public money could not be justified in this case
where the judge is now out of office and doubtless will never again be
appointed to office.
The subcommittee further concluded:
On the whole record it clearly appears that Judge Hanford's
usefulness as a Federal judge is over; that his personal and judicial
conduct disqualify him for that position and that this committee
recommend that his resignation be accepted.
The committee therefore recommended the following resolution:
Resolved, That the Committee on the Judiciary be discharged from
further consideration of and action under House Resolution 576.
Resolved further, That the testimony taken by the subcommittee of the
Committee on the Judiciary under the authority conferred by House
Resolution 576 be printed as a part of this report and transmitted by
the Clerk of the House of Representatives to the Attorney General for
his consideration and with the recommendation that the Department of
Justice take cognizance thereof, and take whatever action may be deemed
advisable in case said testimony discloses or tends to disclose any
infractions of the laws of the United States.
On the same day, after brief debate, Mr. Clayton moved to amend the
resolution by inserting after the word ``printed'' the words ``as a
part of this report.'' The amendment was agreed to and the resolution
as amended was adopted without division.
527. The investigation into the conduct of Judge Emory Speer.
A resolution proposing investigation with a view to impeachment was
referred, under the rule, to the appropriate committee.
A resolution proposing investigation with a view to impeachment was
considered by unanimous consent.
A subcommittee, with power to send for persons and papers, was sent
to Georgia to investigate the conduct of Judge Speer.
During the investigation of Judge Speer, looking to impeachment, he
attended each session, accompanied by counsel, and cross-examined
witnesses.
The most liberal latitude was allowed in the examination of witnesses
before the committee which investigated Judge Speer.
Sec. 527
While declining to recommend acquittal, and declaring Judge Speer's
acts merited condemnation, the Judiciary Committee reported
satisfactory evidence was not obtainable and recommended that no
further proceedings be had in the matter.
On August 26, 1913,\1\ Mr. Henry D. Clayton, of Alabama, asked
unanimous consent for the consideration of the following resolution:
Whereas on the 16th day of August, 1913, the Attorney General of the
United States transmitted to the Committee on the Judiciary of the
House of Representatives a report of a special examiner duly designated
by the Attorney General to investigate various charges of alleged
misconduct of Emory Speer, a United States district judge for the
southern district of Georgia, which charges had been brought to the
attention of the Department of Justice; and
Whereas the charges embodied in said report are accompanied by
exhibits and affidavits and are of such grave nature as to warrant
further investigation: Therefore be it
Resolved, That the Committee on the Judiciary be, and it is hereby
authorized to inquire into and concerning the official conduct of Emory
Speer, United States district judge for the southern district of
Georgia, touching his conduct in regard to the matters and things set
forth in said report; and further to inquire whether said judge has
been guilty of any misbehavior for which he should be impeached and
report to the House of Representatives the conclusions of the committee
in respect thereto, with appropriate recommendations; and said
committee is hereby authorized to send for persons and papers,
administer oaths, take testimony, employ a clerk and stenographer if
necessary, and to appoint and send a subcommittee whenever and wherever
it may be necessary to take testimony for the use of said committee;
the said subcommittee, while so employed, shall have the same powers in
respect to obtaining testimony as are herein given to said Committee on
the Judiciary, with a sergeant at arms, by himself or deputy, who shall
serve the process of said committee and the process and orders of said
subcommittee and shall attend the sittings of the same as ordered and
as directed thereby, and that the expense of such investigation shall
be paid out of the contingent fund of the House; that said Committee on
the Judiciary, or subcommittee thereof, shall have power to sit during
the sessions of this House or in vacation.
Mr. James R. Miron, of Illinois, objected and, under the rule, the
resolution was referred to the Committee on Rules.
On the following day Mr. Clayton again submitted a unanimous-consent
request for consideration of the resolution. There was no objection,
and after debate the resolution was agreed to, with the following
amendment:
Amend, page 2, by inserting after the word ``House,'' in line 19 and
before the semicolon, the following: ``On vouchers ordered by the
Committee on the Judiciary, signed by the chairman thereof and approved
by the Committee on Accounts and evidenced by the signature of the
chairman thereof.''
On October 2, 1914 \2\ Mr. Edwin Yates Webb, of North Carolina, from
the Committee on the Judiciary, submitted the report of the majority of
that committee on the investigation authorized by the resolution.
The committee incorporate as a part of their report the report of the
majority of a subcommittee which conducted the investigation, signed by
Mr. Webb and Mr. Louis Fitzhenry, of Illinois. The history of the
investigation is thus detailed in the majority report:
Your special subcommittee made a trip to the southern district of
Georgia, leaving Washington on the evening of Saturday, January 17, and
arriving at Macon, the seat of the court,
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\1\ First session Sixty-third Congress, Journal, p. 254; Record p.
3777.
\2\ House Report No. 1176.
Sec. 527
on the evening of the following day. Monday morning, January 19, at 10
o'clock, the subcommittee opened its public hearings in the United
States court room in the Federal Building at Macon, and examined
witnesses who were caused to appear for the purpose of giving
testimony. These hearings were held continuously throughout the week,
ending Saturday, January 24. The committee then went to Savannah, Ga.,
in said district, and examined witnesses during the entire of the
following week, concluding its hearings there on Saturday, January 31.
All of the hearings were public. Judge Speer attended each session of
the committee and was accompanied by counsel, who were permitted to
cross-examine the several witnesses.
A digest of the testimony of the witnesses examined is appended, and
the committee thus summarize the evidence:
The conclusion of the subcommittee, deduced from the evidence taken
and from the construction of the precedents of impeachment trials, is
that at the present time satisfactory evidence sufficient to support a
conviction upon a trial by the Senate is not obtainable.
The report continues:
A phase of the record is that it details a large number of official
acts on the part of Judge Speer which are in themselves legal, yet,
when taken together, develop into a system tending to approach a
condition of tyranny and oppression. There has been an inequitable
exercise of judicial discretion, many instances of which have been
frequently criticized where the cases in which they were committed have
been reviewed by the courts of appeal, while in others litigants were
unable, financially, to prosecute appeals. That the power of the court
has been exercised in a despotic and autocratic manner by the judge can
not be questioned.
As to examination of witnesses and admission of evidence, the
committee say:
In the conduct of the hearings the committee was extremely liberal
and did not confine the witnesses to the giving of technically legal
evidence. Some evidence of a hearsay nature was received. The committee
felt justified in such a course in the light of the fact that it came
to the attention of the committee that many witnesses were apprehensive
of the consequences of giving evidence against Judge Speer in the event
of his acquittal.
The committee also say:
The record shows instances where the judge, sitting in the trial of
criminal cases, apparently forced pleas of guilty from defendants or
convictions and there is strong evidence tending to show that in one
case, at least, he forced innocent parties to enter such pleas through
a fear of the consequences in the event of an unfavorable verdict at
the hands of a jury presided over by the judge in the manner peculiar
to himself.
The committee, however, decide:
The subcommittee regrets its inability to either recommend a complete
acquittal of Judge Speer of all culpability so far as these charges are
concerned, on the one hand, or an impeachment on the other. And yet it
is persuaded that the competent legal evidence at hand is not
sufficient to procure a conviction at the hands of the Senate. But it
does feel that the record presents a series of legal oppressions and
shows an abuse of judicial discretion which, though falling short of
impeachable offenses, demand condemnation and criticism.
If Judge Speer's judicial acts in the future are marked by the
rigorous and inflexible harshness shown by this record, these charges
hang as a portentous cloud over his court, ``impairing his usefulness,
impeding the administration of justice, and endangering the integrity
of American institutions.''
The committee therefore recommend the adoption of the following
resolution:
Resolved, That no further proceedings be had with reference to H.
Res. 234.
Sec. 528
Mr. Andrew J. Volstead, of Minnesota, a member of the subcommittee,
in an accompanying minority report concurs in recommending the adoption
of the resolution reported by the majority, but takes sharp issue with
other conclusions set out in the majority report. After discussing in
detail each charge considered in the majority report and warmly
controverting conclusions reached by the majority, the minority views
say:
While I concur in the recommendations made in the majority report,
that no further proceedings be had upon the charges against Judge
Speer, I desire to express in as emphatic language as possible my
protest against the methods that have been pursued; but I desire to
have it distinctly understood that I do not criticize the motives of my
associates; for them I have the highest personal regards. In this
investigation no effort was made to protect the judge against mere
slander and abuse that could serve no other purpose than to disgrace
and humiliate him. Every enemy that 29 years on the bench had produced
was invited and eagerly encouraged to detail his grievance and to
supplement that with all sorts of innuendoes, insinuations, and
insulting opinions, utterly illegal as evidence and incompetent for any
proper purpose. To add to this, the methods pursued in framing the
majority report are equally reprehensible. It is apparent throughout
that nothing has been considered pertinent that did not support some
charge against the judge. As matters of explanation or denial do not
meet this requirement, they are quite generally omitted, not only from
the findings, but also from the summary of the evidence. Still this is
not all. Although the majority report announces that there is not
sufficient evidence to support any of the charges, that announcement is
in the nature of a ``Scotch verdict,'' or worse, because it is
accompanied in almost every instance with an insinuation that the judge
may be guilty, notwithstanding such finding. If anything could be more
unfair or unjust, it is difficult to imagaine what it could be.
The minority views conclude:
It is not necessary to say anything in commendation of Judge Speer.
The last line in the majority report, recommending no further action
upon the charges, is, despite all criticism to the contrary, a complete
vindication. It would not have been written if the evidence had pointed
to anything worthy of real criticism. In conclusion let me add, the day
win come when Judge Speer will be remembered with pride by the people
of Georgia, not only for his ability and integrity, but especially for
what Mr. Wimberly called his many beautiful acts of mercy to the
oppressed.
On October 21, 1914, the House agreed to the majority report without
debate or division.
528. The investigation into the conduct of Daniel Thew Wright,
associate justice of the Supreme Court of the District of Columbia.
A Member, rising in his place, impeached judge Wright on his
responsibility as a Member of the House.
A committee charged with an investigation looking to impeachment
delegated the inquiry to a subcommittee.
During the investigation of Judge Wright with a view to impeachment
he was permitted to appear before the committee with counsel.
Judge Wright having resigned his office before final report by the
committee charged with the investigation, the House agreed to the
recommendation of the committee and that it be discharged.
On March 20, 1914,\1\ Mr. Frank Park, of Georgia, rose in his place
and proposed as a matter of privilege the impeachment of Daniel Thew
Wright, an associate justice of the Supreme Court of the District of
Columbia. In the absence of a quorum, the House adjourned.
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\1\ Second session Sixty-third Congress, Record, p. 5204.
Sec. 528
On the following day, immediately after the reading of the Journal,
Mr. Park again rose and presented, as privileged, the following:
Mr. Speaker, at the adjournment hour on yesterday I brought to the
attention of the House certain charges which I was about to deliver to
the House.
Mr. Speaker, I rise to a question of the highest privilege and of the
greatest importance. By virtue of my office as a Member of the House of
Representatives I impeach Daniel Thew Wright, an associate justice of
the Supreme Court of the District of Columbis of high crimes and
misdemeanors.
I charge him with having accepted favors from practitioners at the
bar of his court and of having permitted counsel for a street railway
company to indorse his notes while said counsel was retained by said
street railway company in business and causes before his court.
I charge him with performing the service of a lawyer and accepting a
fee during his tenure or judicial office, in violation of the statute
of the United States.
I charge him with collecting and wrongfully appropriating other
people's money.
I charge him with purposely changing the record to prevent reversal
of causes wherein be presided.
I charge him with bearing deadly weapons in violation of law.
I charge him with judicial misconduct in the trial of a writ of
habeas corpus to an extent which provoked a reviewing court of the
District of Columbia to justly characterize the trial as a ``travesty
of justice.''
I charge him with arbitrarily revoking, without legal right, the
order of a judge of concurrent jurisdiction, appointing three
receivers, so as to favor his friend by appointing him sole receiver.
I charge him with being guilty of various other acts of personal and
judicial misconduct for which he should be impeached.
I charge him with being morally and temperamentally unfit to hold
judicial office.
Mr. Park continued:
Mr. Speaker, in accordance with former proceedings before the House
in like cases, I submit the following resolution which I send to the
Clerk's desk.
The resolution was as follows:
Resolved, That the Committee on the Judiciary be directed to inquire
and report whether the action of this House is necessary concerning the
alleged official misconduct of Daniel Thew Wright; whether he has
accepted favors from lawyers appearing before him; whether he has
permitted counsel for a street railway company to indorse his notes
while said counsel was retained in business and causes before his
court; whether he has performed the services of lawyer and accepted a
fee during his tenure of judicial office, in violation of the statutes
of the United States; whether he has collected and wrongfully
appropriated other people's money; whether he has purposely changed the
record in order to prevent reversal of causes wherein he presided;
whether he has borne deadly weapons in violation of law; whether he is
guilty of judicial misconduct in the trial of a writ of habeas corpus
to an extent which provoked a reviewing court of the District of
Columbia to justly characterize the trial as a ``travesty of justice``;
whether he has arbitrarily revoked, without legal right, an order of a
judge of concurrent jurisdiction, appointing three receivers, so as to
favor his friend by appointing him sole receiver; whether he is morally
and temperamentally unfit to hold judicial office; and whether he has
been guilty of various other acts of personal and judicial misconduct
for which he should be impeached.
That this committee is hereby authorized and empowered to send for
persons and papers, to administer oaths, to employ, if necessary, an
additional clerk and stenographer, and to appoint and send a
subcommittee whenever and wherever necessary. to take testimony for the
use of said subcommittee,
Sec. 528
That the subcommittee shall have the same power in respect to
obtaining testimony as is herein given to the said Committee on the
Judiciary; and the Speaker shall have authority to sign and the Clerk
to attest subpoenas for any witness or witnesses.
That the expenses incurred in this investigation shall be paid out of
the contingent fund of the House.
On motion of Mr. Park, the resolution was referred to the Committee
on the Judiciary without debate.
On April 10 \1\ Mr. Henry D. Clayton, of Alabama, from the Committee
on the Judiciary, submitted, as privileged, the following:
The Committee on the Judiciary, having had under consideration House
resolution No. 446 report the same back with the recommendation that it
be amended to read as follows, and as so amended that it be adopted:
``Resolved, That the Committee on the Judiciary be directed to
inquire and report whether the action of this House is necessary
concerning the alleged official misconduct of Daniel Thew Wright, an
associate justice of the Supreme Court of the District of Columbia;
whether he has corruptly accepted favors from lawyers appearing before
him; whether he has corruptly permitted counsel for a street railway
company to indorse his notes while said counsel was retained in
business and causes before his court; whether he has performed the
services of a lawyer and accepted a fee during his tenure of judicial
office, in violation of the statute of the United States; whether he
has collected and wrongfully appropriated other people's money; whether
he has purposely and corruptly changed the record in order to prevent
reversal of causes wherein he presided; whether he has borne deadly
weapons in violation of law; whether he has arbitrarily revoked,
without legal right, an order of a judge of concurrent jurisdiction
appointing three receivers, so as to favor his friend by appointing him
sole receiver; and whether said judge has been guilty of any
misbehavior for which he should be impeached.
``And in making this investigation the said committee is hereby
authorized to send for persons and papers, administer oaths, take
testimony, employ a clerk and stenographer, and is also authorized to
appoint a subcommittee to act for and on behalf of the whole committee
whenever and wherever it may be deemed advisable to take testimony for
the use of said committee. The said subcommittee while so employed
shall have the same powers in respect to obtaining testimony as are
herein given to said Committee on the Judiciary, with a sergeant at
arms, by himself or deputy, who shall serve the process of said
committee or subcommittee and shall attend the sitting of the same as
ordered and directed thereby. The Speaker shall have authority to sign
and the Clerk to attest subpoenas for any witness or witnesses.
``The expense of such investigation shall be paid out of the
contingent fund of the House.''
In response to an inquiry as to wherein the resolution proposed by
the committee differed from the original resolution, Mr. Clayton said:
It does not differ in any material respect, but it puts it in better
form.
On October 14 \2\ Mr. Jack Beall, of Texas, from the Committee on the
Judiciary, submitted, through the Clerk of the House, the final report
of that committee.
The committee reported the delegation of the inquiry to a
subcommittee, the report of which is appended to and made a part of the
report of the committee.
The subcommittee report says:
On May 1, 1914, the subcommittee began the examination of witnesses
and held sessions on 43 days, including three night sessions, as well
as numerous conferences with Mr. Justice Wright and his counsel, the
taking of testimony being concluded on August 26, 1914. Such of the
testimony and exhibits pertinent to the charges affecting Associate
Justice Wright's official conduct
-----------------------------------------------------------------------
\1\ House Report No. 514.
\2\ House Report No. 1101.
Sec. 529
that your subcommittee deemed necessary to print have been printed and
a copy thereof is submitted herewith. Associate Justice Wright was duly
notified and was present at each session of the subcommittee in person
and was represented by counsel, Mr. J. J. Darlington, who was given
opportunity to cross-examine the witnesses. Several witnesses were
called on behalf of Mr. Justice Wright and examined by his counsel.
The committee report adds:
On October 6, 1914, Mr. Justice Wright tendered his resignation to
the President, which was duly accepted October 7, 1914, to become
effective November 15, 1914, and that because Judge Wright is not
eligible under the law to retire with pay this resignation, when it
becomes effective, will entirely separate him from the public service.
Because of this fact the committee is of the opinion that further
proceedings under House resolution 446 are unnecessary.
The committee therefore recommend the adoption of the following
resolution:
Resolved, That the Committee on the Judiciary be discharged from
further consideration of and action under House resolution 446.
The report of the committee was, under the rules, referred to the
Committee of the Whole House on the state of the Union. On March 3 \1\
Mr. Beall moved the adoption of the report. The motion was agreed to
without debate or division.
529. The investigation into the conduct of Alston G. Dayton, United
States district judge for the northern district of West Virginia in
1915.
A Member having presented charges against Judge Dayton, the House
ordered an investigation.
In the investigation of Judge Dayton the respondent appeared before
the subcommittee charged with the investigation and made an extended
statement concerning the matters involved.
The Judiciary Committee authorized to make an investigation committed
the matter to a subcommittee, the report of which was made a part of
the committee report to the House.
A subcommittee visited West Virginia and took testimony in the case
of Judge Dayton.
While the subcommittee, in its report, criticized Judge Dayton, it
concluded there was little possibility of maintaining impeachment
proceedings.
Minority views, although agreeing with the majority, report in the
findings of fact, held that the evidence warranted further proceedings
toward impeachment.
The committee and the House acted adversely on the proposition to
impeach Judge Dayton.
On May 11, 1914,\2\ Mr. M. M. Neeley, of West Virginia, submitted a
resolution directing the Committee on the Judiciary to make an
investigation of the official conduct of Alston G. Dayton, United
States district judge for the northern district of West Virginia. Under
the rule, the resolution was referred to the Committee on Rules.
-----------------------------------------------------------------------
\1\ Third session Sixty-third Congress, Journal, p. 301; Record, p.
5485.
\2\ Second session Sixty-third Congress, Record, p. 8417.
Sec. 529
On June 12 \1\ Mr. Neeley rose in his place and presented as a
privileged matter, the following:
Mr. Speaker, I rise to a question of the highest privilege. By virtue
of my office as a Member of the House of Representatives, I impeach
Alston G. Dayton, Judge of the District Court of the United States for
the Northern District of West Virginia, of high crimes and
misdemeanors.
At the conclusion of his arraignment, which consisted of 26 separate
charges, Mr. Neeley offered the following:
Resolved, That the Committee on the Judiciary be directed to inquire
and report whether the action of this House is necessary concerning the
alleged official misconduct of Alston G. Dayton; whether he has
unlawfully conspired with certain corporations and individuals to bring
about the removal from office of the late John J. Jackson, judge of the
District Court of the United States for the Northern District of West
Virginia; whether he has shown marked favoritism to certain
corporations having extensive litigation in his court; whether he has
had summoned on juries in his court persons connected with certain
corporations to which he has shown marked favoritism during his term of
office; whether he has assisted his son, Arthur Dayton, in the
preparation of the defense and trial of numerous cases against certain
corporations for which the said Arthur Dayton is attorney, which cases
were tried before him, the said Alston G. Dayton, and whether he has
unlawfully used his high office and influence in behalf of said
corporations; whether he has abused his power and influence as judge to
further the interests of his son, Arthur Dayton; whether he has used
the funds of the United States for an improper purpose; whether he has
violated the acts of Congress regulating the selection of jurors;
whether he has actively engaged in politics and used his high office as
judge to further the political ambitions and aspirations of his
friends; whether he has lent his services as judge to the coal
operators of West Virginia by improperly issuing injunctions; whether
he has shown hatred and bitterness toward miners on trial in his court;
whether he has used his office as judge to discourage and prevent said
miners from exercising their lawful right to organize and peacefully
assemble under the laws of the United States and the State of West
Virginia; whether he has wrongfully expressed his own opinions in
charging grand juries in his court; whether he has conspired with
certain corporations and individuals in the formation of a carbon trust
in violation of law; whether he has unlawfully had an order entered
staying a proceeding the object of which was the condemnation of a lot
in Philippi, W. Va., for a site for a Federal building; whether he has
publicly denounced the President of the United States from the bench
and before a jury; whether he has unlawfully used the funds of the
United States Government for his own private use; whether he has
wrongfully collected from the Government funds as expenses not due or
allowed to him under the statute; whether he has wrongfully kept open
the books of his court at Philippi, W. Va.; whether he has, in open
court and before a jury, accused witnesses of swearing falsely in cases
then on trial before him; whether he has directed the marshal of his
district to refuse to pay the fees of witnesses whom he had accused of
testifying falsely; whether he has refused to enforce certain laws of
the United States; whether he has openly denounced and criticised the
United States Supreme Court; whether he has discharged jurors for
rendering verdicts not agreeable to him; whether he has openly stated
that he would not permit the United Mine Workers of America to exist
within the jurisdiction of his court; whether he has refused to permit
certain defendants in a case in his court to have an interpreter;
whether he has stated in open court that the United Mine Workers of
America are criminal conspirators; whether he is so prejudiced as to
unfit him temperamentally to hold a judicial office; and whether he has
been guilty of various other acts of personal and judicial misconduct
for which he should be impeached.
That this committee is hereby authorized and empowered to send for
persons and papers, to administer oaths, to employ, if necessary, an
additional clerk and stenographer, and to appoint and send a
subcommittee whenever and wherever necessary to take testimony for the
use of said subcommittee.
-----------------------------------------------------------------------
\1\ Journal, p. 645; Record, p. 10327.
Sec. 529
That the subcommittee shall have the same power in respect to
obtaining testimony as is herein given to the said Committee on the
Judiciary; that the Speaker shall have authority to sign and the Clerk
to attest subpoenas for any witness or witnesses.
That the expenses incurred in this investigation shall be paid out of
the contingent fund of the House.
Mr. Neeley moved that the resolution be referred to the Committee on
the Judiciary without debate, and on that motion demanded the previous
question.
The motion was agreed to without division.
On February 9, 1915,\1\ Mr. Edwin Yates Webb, of North Carolina, from
the Committee on the Judiciary, reported the resolution back, with the
recommendation that it be amended to read as follows:
Resolved, That the Committee on the Judiciary be directed to inquire
and report whether the action of this House is necessary concerning the
alleged official misbehavior of Alston G. Dayton, United States
district judge for the northern district of West Virginia; whether he,
the said Alston G. Dayton, has unlawfully conspired with certain
corporations and individuals to bring about the removal from office of
the late John J. Jackson, judge of the District Court of the United
States for the Northern District of West Virginia; whether he has shown
marked favoritism to certain corporations having extensive litigation
in his court; whether he has summoned on juries in his court persons
connected with certain corporations to which he has shown marked
favoritism during his term of office; whether he has abused his power
and influence as judge to further the interests of his son, Arthur
Dayton; whether he has violated the acts of Congress regulating the
selection of jurors; whether he has lent his services as judge to the
coal operators of West Virginia by improperly issuing injunctions;
whether he has shown hatred and bitterness toward miners on trial in
his court; whether he has used his office as judge to discourage and
prevent said miners from exercising their lawful right to organize and
peaceably assemble under the laws of the United States and the State of
West Virginia; whether he has conspired with certain corporations and
individuals in the formation of a carbon trust, in violation of law;
whether he has openly stated that he would not permit the United Mine
Workers of America to exist within the jurisdiction of his court;
whether he has stated in open court that the United Mine Workers of
America are criminal conspirators; and whether he has been guilty of
any misbehavior for which he should be impeached.
And in making this investigation the said committee is hereby
authorized to send for persons and papers, administer oaths, take
testimony, employ a clerk and stenographer if necessary, and is also
authorized to appoint a subcommittee to act for and on behalf of the
whole committee whenever and wherever it may be deemed advisable to
take testimony for the use of said committee. The said subcommittee
while so employed shall have the same powers in respect to obtaining
testimony as are herein given to said Committee on the Judiciary, with
a sergeant at arms, by himself or deputy, who shall serve the process
of said committee or subcommittee, and shall attend the sittings of the
same as ordered and directed thereby.
The Speaker shall have authority to sign and the Clerk to attest
subpoenas for any witness or witnesses.
The expense of such investigation shall be paid out of the contingent
fund of the House on vouchers approved by the chairman of the Judiciary
Committee and approved by the Committee on Accounts and evidenced by
the signature of the chairman thereof.
The amendment recommended by the committee was agreed to, and the
resolution as amended was unanimously adopted.
On March 3,\2\ Mr. Warren Gard, of Ohio, from the Committee on the
Judiciary, submitted a report incorporating the report of a majority of
the subcommittee to
-----------------------------------------------------------------------
\1\ House Report No. 1381.
\2\ House Report No. 1490.
Sec. 530
which the investigation had been committed, accompanied by minority
views signed by Mr. Daniel J. McGillicuddy, of Maine, a member of the
subcommittee.
The report of the majority of the subcommittee is prefaced as
follows:
The subcommittee appointed by the Committee on the Judiciary to make
investigation of the charges contained in the foregoing resolution
heard the testimony of numerous witnesses in Parkersburg and Wheeling,
W. Va., and in Washington, D.C., on February 12, 13, 15, 16, 17, 22,
23, 24, and 26, at all of which hearings, except that of February 26
last, the Hon. A. G. Dayton, respondent, was present in person and
attended by legal counsel; and on February 26 the hearing was had with
the consent and approval of said Hon. A. G. Dayton, who was represented
at that hearing by legal counsel.
The Hon. A. G. Dayton appeared before the subcommittee and made fun
and extended statement of and concerning the matters involved in said
investigation.
The witnesses and respondent were each and all sworn, their evidence
taken by shorthand reporters, the evidence reduced to writing and is on
the file with this committee.
The report then takes up the items of impeachment in their order and
summarizes the evidence adduced on each charge.
The conclusion reached by the majority, after hearing the testimony,
is that:
This evidence shows many matters of individual bad taste on the part
of Judge Dayton, some not of that high standard of judicial ethics
which should crown the Federal judiciary, but a careful consideration
of all the evidence and attendant circumstances convinces us that there
is little possibility of maintaining to a conclusion of guilt the
charges made, and impels us therefore to recommend that there be no
further proceedings herein.
Mr. McGillicuddy filed the following minority views:
I concur with my colleagues in the above findings of fact, but I do
not concur in the recommendation that no further proceedings be had, as
it is my opinion that the evidence taken by the subcommittee and
findings of fact above made warrant further proceedings looking toward
impeachment.
The committee recommend:
The Committee on the Judiciary considered the report of add
subcommittee and the evidence thereon and came to the conclusion that
no further proceedings should be had with reference to said resolution,
and the Committee on the Judiciary beg to report the same to the House
and recommend that no further proceedings be had with reference to said
resolution.
The report was agreed to without debate or division.
530. The investigation into the conduct of H. Snowden Marshall,\1\
United States district attorney for the southern district of New York.
The House declined to order an investigation of District Attorney
Marshall on evidence presented by a Member and referred the subject to
a committee.
Form of resolution providing for an investigation by the Judiciary
Committee and authorizing a subcommittee to exercise powers delegated
to the committee.
On January 12, 1916,\2\ Mr. Frank Buchanan, of Illinois, presented,
as a privileged matter, a resolution detailing at length numerous
charges alleging official misconduct on the part of H. Snowden
Marshall, United States district attorney for the southern
-----------------------------------------------------------------------
\1\ For preliminary proceedings in this case see section 468 of this
volume.
\2\ First session Sixty-fourth Congress, Journal, p. 204; Record, p.
963.
Sec. 531
district of New York, and directing the Committee on the Judiciary, to
conduct an investigation of the charges and report their conclusions to
the House.
After debate, on motion of Mr. John J. Fitzgerald, of New York, this
resolution was referred to the Committee on the Judiciary.
On January 27 \1\ Mr. Edwin Yates Webb, of North Carolina, from the
Committee on the Judiciary, offered, as privileged, the following
resolution:
Resolved, That the Committee on the Judiciary in continuing their
consideration of House Resolution 90 be authorized and empowered to
send for persons and papers, to subpoena witnesses, to administer oaths
to such witnesses, and take their testimony.
The said committee is also authorized to appoint a subcommittee to
act for and on behalf of the whole committee wherever it may be deemed
advisable to take testimony for said committee. In case such
subcommittee is appointed it shall have the same powers in respect to
obtaining testimony as are herein given to the Committee on the
Judiciary, with a sergeant at arms, by himself or deputy, who shall
attend the sittings of such subcommittee and serve the process of same.
In case the Committee on the Judiciary or a subcommittee thereof
deems it necessary it may employ such clerks and stenographers as are
required to carry out the authority given in this resolution, and the
expenses so incurred shall be paid out of the contingent fund of the
House.
The Speaker of the House of Representatives shall have authority to
sign, and the Clerk thereof to attest, subpoenas for witnesses, and the
Sergeant at Arms or a deputy shall serve them.
Mr. Finis J. Garrett, of Tennessee, raised a question as to the
privilege of the resolution, when, on motion of Mr. Webb, the
resolution was considered by unanimous consent.
Mr. Webb said:
Mr. Speaker, the Committee on the Judiciary has had under
consideration House Resolution No. 90, which was referred to that
committee some 10 days ago. The committee has not come to any
conclusion yet on the resolution, but feels that it should ask the
House for the authority to subpoena some witnesses before it that might
throw some light upon the charges made. The resolution was unanimously
adopted by the Committee on the Judiciary to-day, and I trust that it
may pass and that the committee may secure the authority, which it will
immediately exercise.
The resolution was agreed to.
531. The case of H. Snowden Marshall, continued.
A witness having refused to testify before a subcommittee was
arrested and detained in custody.
The action of a subcommittee in arresting a recalcitrant witness
having been criticized in a letter addressed to the chairman, the
committee reported the proceedings to the House, with recommendations
for an investigation.
Instance in which the House authorized an investigation of purported
violations of its privileges and its power to punish for contempt.
On April 5, 1916,\2\ Mr. Edwin Yates Webb, of North Carolina, from
the Committee on the Judiciary, as a question of privilege, reported:
While considering House Resolution 90 and House Resolution 110, on
the 31st day of January, 1916, the Committee on the Judiciary
authorized the chairman to appoint a subcommittee of three to execute
the purposes of House Resolution 110 to act for and on behalf of the
full committee
-----------------------------------------------------------------------
\1\ Record, p. 1658.
\2\ First Sixty-fourth Congress, House Report No. 494.
Sec. 531
wherever it may be deemed advisable to take testimony for said
committee, and on February 1, 1916, the chairman appointed Messrs.
Charles C. Carlin, Warren Gard, and John M. Nelson as members of such
subcommittee.
Thereafter the said subcommittee organized and heard the testimony of
certain witnesses in the Judiciary Committee rooms in the city of
Washington. The subcommittee determined, for its further information
and in carrying out the duties assigned it under the resolution of the
House of Representatives, that it should hear the testimony of certain
other witnesses in the city of New York, and on the 28th day of
February, 1916, the said subcommittee, under subpoenas duly signed by
the Speaker of the House of Representatives and attested by the Clerk
thereof, caused certain witnesses to be brought before it, in the
Federal post-office building in the city of New York, and continued the
examination of witnesses upon said charges up to and including the 4th
day of March, 1916.
On the 3d day of March, 1916, there appeared in a New York newspaper
an article containing among other things, the following language:
``It is the belief in the district attorney's office that the real
aim of the Congress investigation is to put a stop to the criminal
investigation of the pro-German partisans.''
On the 3d of March, 1916, the subcommittee called before it one,
Leonard R. Holme, who testified to the subcommittee that he wrote the
article containing the foregoing language, but when asked whether or
not he conferred with anybody in the district attorney's office before
the article was written replied that he declined to give the source of
his information. The chairman of the subcommittee then propounded this
question to the witness, ``Did you confer with Mr. Marshall before you
wrote this article?'' To which the witness replied, ``I respectfully
decline to answer the question, Sir.'' The chairman of the subcommittee
then propounded the following question to him, ``Did you confer with
anybody in Mr. Marshall's office?'' To which the witness replied, ``I
respectfully decline to answer that question, sir.''
Whereupon, the Sergeant at Arms was directed by the chairman of the
subcommittee to take charge of the witness and keep him in custody
until the further order of the committee.
The report appends an excerpt from the transcript of the testimony by
Witness Holme before the subcommittee and continues:
On Saturday, the 4th day of March, 1916, the said H. Snowden
Marshall, as district attorney for the southern district of New York,
caused to be transmitted to C. C. Carlin, chairman of said
subcommittee, then in the performance of its duties, as required by the
House of Representatives, the following letter:
Department of Justice,
United States Attorney's Office,
New York, March 4, 1916.
Sir: Yesterday afternoon, as I am informed, your honorable committee
ordered the arrest of Mr. L. R. Holme, a representative of a newspaper
which had published an article at which you took offense. The
unfortunate gentleman of the press was placed in custody under your
orders. He was taken to the United States marshal to be placed in
confinement (I do not understand whether his sentence was to be one day
or a dozen years). The marshal very properly declined to receive the
prisoner. This left you at a loss, and I am advised that you tried to
work your way out of the awkward situation by having Mr. Holme brought
back and telling him that you were disposed to be ``kind'' to him and
then discharged him for the purpose of avoiding unpleasant consequences
to yourselves.
You are exploiting charges against me of oppressive conduct toward a
member of your honorable body who is charged with a violation of law
and of oppressive conduct on my part toward shysters in the
blackmailing and bankruptcy business.
I may be able to lighten your labors by offering to resign if you can
indicate anything I ever--did that remotely approximates the lawless
tyranny of your order of arrest of Mr. Holme.
The supposed justification of your order that Mr. Holme be placed in
custody was his refusal to answer the question you asked as to where he
got the information on which was based on the article which displeased
you.
Sec. 531
It is not necessary for you to place anyone under arrest in order to
get the answers to the question which you asked Mr. Holme, because I
can and will answer it. I gave Mr. Holme information, part of which he
published and from which he made deductions, so that if your honorable
committee has a grievance it is against me and not against him.
What I told him was about as follows:
I said that your expedition to this town was not an investigation
conducted in good faith, but was a deliberate effort to intimidate any
district attorney who had the temerity to present charges against one
of your honorable body.
I said that your whole proceeding here was irregular and
extraordinary; that I had never heard of such conduct of an impeachment
proceeding; that charges of this sort were not usually heard in public
until the House of Representatives had considered them and were willing
to stand back of them.
I pointed out to him that you, contrary to usual practice, had come
here and had held public hearings; that among your witnesses you had
invited every rogue that you could lay your hands on to come before you
and blackguard and slander me and my assistants under the full
privilege of testifying before a congressional committee.
I told him that you had called one of my junior assistants before you
and had attempted to make it publicly appear that his refusal to answer
your questions as to what occurred in the grand-jury room in the
Buchanan case was due solely to my orders. I said that at the time you
attempted to convey this public impression you knew that it was
misleading because I had been asked by you to produce the minutes of
the grand jury and had been instructed by the Attorney General not to
comply with your request, as you well knew. I showed him the telegram
of the Attorney General to me and showed him a copy of my letter to
you, dated February 29, 1916, in which I sent you a copy of the
telegram of the Attorney General instructing me not to give you the
grand-jury minutes.
I told him that you were traveling around in your alleged
investigation of me with Buchanan's counsel, Walsh and David Slade, in
constant conference with you. I said that I believed that every word of
the evidence, whether in so-called secret sessions or not, had been
placed at the disposal of these worthies, and that I would be just as
willing to give the grand-jury minutes to a defendant as to give them
to your honorable subcommittee.
I told him that I did not share the views which seemed to prevail in
your subcommittee on this subject. I said that I regarded a Member of
Congress who would take money for an unlawful purpose from any foreign
agent as a traitor, and that it was a great pity that such a person
could only be indicted under the Sherman law, which carries only one
year in jail as punishment.
I said that it was incomprehensible to me how your honorable
subcommittee should rush to the assistance of an indicted defendant;
how you had apparently resolved to prevent prosecution by causing the
district attorney in charge to be publicly slandered.
I told him that I would not permit the prosecution of the persons
whose cause you had apparently espoused to be impeded by you; I said
that if you wanted the minutes of the grand jury in any case, you would
not get them as long as I remained in office.
You will observe from the foregoing statement that what Mr. Holme
published may have been based on what I said. If you have any quarrel,
it is with me, and not with him.
It is amazing to me to think that you supposed that I did not
understand what you have been attempting to do during your visit here.
I realized that your effort was to ruin me and my office by publishing
with your full approval the complaints of various persons who have run
afoul of the criminal law under my administration. Your subcommittee
has endeavored by insulting questions to my assistants and others, by
giving publicity and countenance to the charges of rascals and by
refusing to listen to the truth and refusing to examine public records
to which your attention was directed, to publicly disgrace me and my
office.
I propose to make this letter public.
Respectfully,
H. Snowden Marshall,
United States Attorney
Hon. C. C. Carlin,
Chairman Subcommittee of the Judiciary Committee
of the House of Representatives, 323 Federal Building, New
York, N. Y.
Sec. 531
The report continues:
At the same time or before this letter was sent to the subcommittee,
it was given to the newspapers and published by them.
On the 9th day of March 1916, the subcommittee aforesaid, through its
chairman, Hon. C. C. Carlin, submitted to the Committee on the
Judiciary the foregoing letter of H. Snowden Marshall.
On or about the 11th day of March, 1916, the following letter was
received by the chairman of the Judiciary Committee and immediately
laid before the full committee:
Department of Justice,
United States Attorney's Office,
New York, March 10, 1916.
Dear Sir: Referring to my letter of March 4, addressed to the
chairman of the subcommittee which has recently taken testimony in New
York concerning my administration of my office, I notice from the press
that some persons appear to have construed my statements as directed
toward your honorable committee as a whole. I beg to advise you that
the criticism in that letter were addressed to the methods pursued by
the subcommittee. I do not retract nor modify any of those criticisms.
But I did not intend (nor do I think my letter should be so construed)
to reflect in any way upon the Judiciary Committee, nor did I question
the power of the House of Representatives to order such an
investigation.
If you and the other members of your committee, for whom I have high
respect, have gained the impression that my letter carried any personal
reflection upon your honorable committee, it gives me pleasure to
assure you that I had no such purpose.
Respectfully,
H. Snowden Marshall.
Hon. Edwin Y. Webb,
Chairman of the Judiciary Committee,
House of Representatives, Washington, D.C.
The report of the committee concludes:
The Judiciary Committee has carefully considered said letters in the
light of congressional and judicial precedents as touching the
prerogatives of the House of Representatives and its Members, and the
committee has come to the determination that said letters, their
publication and attendant circumstances, are of such nature, that they
should be called to the attention of the House. For obvious reasons the
committee deems it advisable to take this step rather than to report
directly upon the facts and the law in the case. I am, therefore,
directed by the committee to report the whole matter to the House of
Representatives, with the recommendation that a select committee of
five be appointed by the Speaker to report upon the facts in this case;
the violations, if any, of the privileges of the House or the Committee
on the Judiciary or the subcommittee thereof; the power of the House to
punish for contempt; and the procedure in contempt proceedings, to the
end that the privileges of the House shall be maintained and the rights
of the Members protected in the performance of their official duties.
The House agreed to the following resolution:
Resolved, That a select committee of five members be appointed
forthwith by the Speaker to consider the report, in the nature of a
statement, from the Judiciary Committee with reference to certain
conduct of H. Snowden Marshall, and to report to the House of
Representatives the facts in the case; the violations, if any, of the
privileges of the House of Representatives or of the Committee on the
Judiciary, or of the subcommittee thereof; the power of the House to
punish for contempt; and the procedure in contempt proceedings, in case
they find a contempt has been committed, to the end that the privileges
of the House shall be maintained and the rights of Members protected in
the performance of their official duties.
The select committee shall have the power to send for persons and
papers and shall submit its report to the House not later than April
fourteenth, nineteen hundred and sixteen.
Sec. 532
The Speaker appointed as members of this committee Messrs. John A.
Moon, of Tennessee; John N. Garner, of Texas; Charles R. Crisp, of
Georgia; John A. Sterling, of Illinois; and Irvine L. Lenroot, of
Wisconsin.
532. The case of H. Snowden Marshall, continued.
By direction of the House, the Speaker issued and the Sergeant at
Arms served a warrant for the arrest of a person charged with contempt
of the House.
A person arrested by order of the House secured a writ of habeas
corpus and was released on his own recognizance.
Discussion of the delegation of power to subcommittees.
On April 14, 1916,\1\ Mr. Moon, from the select committee, presented
the report of that committee, accompanied by a transcript of testimony.
The report quotes the following letter addressed to H. Snowden
Marshall by direction of the committee:
April 7, 1916.
Hon. H. Snowden Marshall,
United States District Attorney for the
Southern District of New York, New York City.
Dear Sir: Inclosed is House Resolution 193 and Report No. 494, which
explain themselves. The select committee appointed by the Speaker of
the House of Representatives are now engaged in the investigation of
the matters referred to herein. We will be glad to have you appear
before us, if you so desire, at the rooms of the Committee on the Post
Office and Post Roads of the House of Representatives, in the Capitol
Building, Washington, D.C., on Monday, April 10, 1916, at 10 o'clock a.
m., and make such statement as you may desire before the committee
touching this matter. As the time of the committee is limited in which
to report, you will oblige us by advising by wire whether you desire to
be present or not. This communication is made to you by order of the
select committee.
Very truly yours,
John A. Moon,
Chairman Select Committee.
In response to this letter, Judge Marshall appeared before the
committee, and the report incorporates the following findings reached
by the committee after hearing his testimony:
We conclude and find that the letter written and published by said H.
Snowden Marshall to Hon. C. C. Carlin, chairman of the subcommittee of
the Judiciary Committee of the House of Representatives, on March 4,
1916, is as a whole and in several of the separate sentences defamatory
and insulting and tends to bring the House into public contempt and
ridicule, and that the said H. Snowden Marshall, by writing and
publishing the same, is guilty of contempt of the House of
Representatives of the United States because of the violation of its
privileges, its honor and its dignity.
We find that Mr. Marshall's testimony is an aggravation of his
contempt.
In discussing the delegation of power to subcommittees, the report
says:
No legislative body consisting of a large number of members can move
from one place to another to take testimony in cases where its power
and authority or dignity is called into question. Its power in this
respect must, therefore, necessarily be delegated to one of its
committees or a subcommittee by a proper resolution, as was done in
this case. This delegation of power
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\1\ First session Sixty-fourth Congress, H. Rept. 544.
Sec. 532
to a subcommittee is lawful, and carries with it all of the authority
belonging to the House in the execution of the immediate purpose for
which the committee was called into existence.
Any conduct that would be a violation of the privileges of the House
if directed against the House in the first place, would be a contempt
against the House and a breach of its privileges when directed against
one of its committees or subcommittees appointed by authority of the
House to do a specific thing and acting within its delegated power and
in the scope of its authority. Any other view would leave the House
powerless to protect its honor and dignity and its constitutional
rights. It would set at defiance the sovereignty of the people
represented by the House. That the House as a representative body has
the inherent power to protect itself from defamation and all slanderous
and lawless conduct that would bring it into reproach and popular
contempt, whether uttered or committed in the presence of the House or
elsewhere, has not been disputed since the case of Anderson v. Dunn.
Offensive, abusive, and defamatory language against a committee of the
House acting within its authority is offensive, abusive, and defamatory
against the House, and is just as dangerous to the integrity of that
body as if had been committed in its presence.
As to the power of the House to punish for contempt, the committee
decides:
We find, therefore, that the House has full power to punish for
contempt committed in its presence, or not within its presence, by
publication of matter that is defamatory against it or its committee
lawfully constituted and acting within its authority. We find as stated
that the privileges of the House in this case were breached by H.
Snowden Marshall by the letter which he wrote to the subcommittee. This
letter as a whole is insulting, defamatory, and a clear expression of
contempt. The purpose for which it was written and printed was to
defame--to bring into ridicule and contempt--the subcommittee of the
Judiciary Committee having under investigation the impeachment charges
against H. Snowden Marshall. It was as much a violation of the
privileges of the House to have directed a scurrilous and offensive
letter of this character against one of its committees, as if it had
been addressed directly to the House.
It is proper for us to say that Mr. Marshall was given every
opportunity to retract or apologize or in some way modify his
statements contained in the letter. Parts of the letter containing the
most defamatory matter were read to him, and he was asked if he meant
to still say that that was true. He reaffirmed and reasserted the same,
only with the statement that it was intended to criticize the procedure
of the subcommittee and was not intended as a contempt of the House. It
is clear that if the House could tolerate such a construction of this
letter and could tolerate such vile and defamatory language against one
of its committees, it would be powerless to conduct impeachment trials
or perform any other duty without living under the disgrace of the
contempt that would necessarily come to a body so unmindful of its
duties to the people as to permit such insult and injury.
The committee therefore recommend:
As to the method of procedure that should be followed in the House in
trial of the said H. Snowden Marshall for the contempt which the
committee finds that he has committed, we recommend the passage of the
following resolution:
Resolved, That the Speaker do issue his warrant, directed to the
Sergeant at Arms, commanding him to take in custody, wherever to be
found, the body of H. Snowden Marshall, of the State of New York, and
to proceed forthwith to bring the said H. Snowden Marshall to the bar
of the House of Representatives, to answer the charge that he, on March
4, 1916, in the city of New York, did violate the privileges of the
House of Representatives of the United States by writing and causing to
be published the following letter. (The letter is here quoted in full.)
Resolved, That the said H. Snowden Marshall, in writing and
publishing said letter, was guilty of a breach of the privileges and a
contempt of the House of Representatives, and that the said H. Snowden
Marshall be furnished with a copy of this resolution, and a copy of the
report of the select committee of the House of Representatives,
appointed to investigate the charges made against him in the House of
Representatives.
Sec. 533
Resolved, That when H. Snowden Marshall shall be brought to the bar
of the House, to answer the charge of having violated the privileges of
the House of Representatives, as afore set out, the Speaker shall then
cause to be read to said H. Snowden Marshall the findings of fact and
findings of law by the special committee of the House, charged with the
duty of investigating whether or not the said H. Snowden Marshall had
violated the privileges of the House of Representatives, or was in
contempt of same; the Speaker shall then inquire of said H. Snowden
Marshall if he desires to be heard, and to have counsel on the charge
of being in contempt of the House of Representatives for having
violated its privileges. If the said H. Snowden Marshall desires to
avail himself of either of these privileges, the same shall be granted
him. If not, the House shall thereupon proceed to take order in the
matter.
This report was considered in the House on June 20. In the course of
the debate, Mr. Andrew J. Montague, of Virginia, said:
Mr. Speaker, I beg to submit to this House, without fear of
successful contradiction, that neither this House nor the Senate has
ever heretofore undertaken to exercise jurisdiction in contempt
proceedings of a case of the character we are now considering. No
slander or libel of this body has ever heretofore been treated as
contempt by this body. This statement can not be controverted.
Therefore we are driven to the unfortunate predicament of making a new
law to fit a new case. The report attempts to declare that to be
contempt which has never heretofore been adjudged to be contempt by
either House of Congress. In other words, Mr. Speaker, we now seek to
declare that unlawful which when heretofore done was lawful.
After extended debate, the resolutions recommended by the committee
were agreed to--yeas 209, nays 85.
On June 22 the Speaker announced:
The Chair directs the reporter to record the fact to go in the Record
that the Speaker signs this warrant for H. Snowden Marshall in the
presence of the House.
The Chair does not think it necessary, but some gentlemen did.
On June 26 \1\ the Sergeant at Arms addressed a letter to the Speaker
advising him that in compliance with this warrant he had arrested Judge
Snowden, who had thereupon secured a writ of habeas corpus and had been
released on his own recognizance. On the same day the House agreed to
the following:
Resolved, That the Sergeant at Arms of the House is hereby authorized
to employ legal counsel in the matter of the proceedings against H.
Snowden Marshall, United States district attorney for the southern
district of New York, for contempt, the expenses to be paid out of the
contingent fund of the House.
The hearing in the habeas corpus proceedings was held in the United
States District Court for the Southern District of New York, which
dismissed the writ of habeas corpus, remanded Judge Marshall to the
custody of the Sergeant at Arms and directed that he be brought before
the House.\2\ The relator thereupon appealed the case to the Supreme
Court.
533. The case of H. Snowden Marshall, continued.
A committee, after investigation of impeachment charges referred to
it by the House, recommended that no further action be taken thereon.
On August 4, 1916,\3\ Mr. Webb, from the Committee on the Judiciary,
submitted the report of the committee on the resolution, proposing
impeachment of H. Snowden
-----------------------------------------------------------------------
\1\ Record, p. 10372.
\2\ First session Sixty-fourth Congress, Record, p. 11691.
\3\ House Report No. 1077.
Sec. 534
Marshall, recommending that no further proceedings be had in the
matter. The report was referred to the House Calendar and was not
considered by the House.
534. The case of H. Snowden Marshall, continued.
Decision by the Supreme Court on the power of the House to punish for
contempt.
The House is without constitutional jurisdiction to punish summarily
for contempt in certain cases.
The power to punish contempt vested in the House of Commons is not
conferred by the Constitution upon Congress.
While power to punish contempt is not expressly granted to Congress
by the Constitution, it has the implied power to preserve itself and to
deal by way of contempt with direct obstruction to its legislative
duties.
The implied power to punish for contempt is limited to imprisonment
and such imprisonment may not extend beyond the session of the body in
which the contempt occurred.
In cases of contempt which it is not authorized to redress, the
remedy of the House is resort to judicial proceedings under the
criminal law.
On April 23, 1917,\1\ the Supreme Court of the United States handed
down a unanimous decision in the case of H. Snowden Marshall,
appellant, v. Robert B. Gordon, Sergeant at Arms of the House of
Representatives of the United States.\2\
As to the authority of the House of Commons to punish for contempt
the decision says:
Undoubtedly what went before the adoption of the Constitution may be
resorted to for the purpose of throwing light on its provisions.
Certain is it that authority was possessed by the House of Commons in
England to punish for contempt directly--that is, without the
intervention of courts--and that such power included a variety of acts
and many forms of punishment including the right to fix a prolonged
term of imprisonment. Indubitable also is it, however, that this power
rested upon an assumed blending of legislative and judicial authority
possessed by the Parliament when the Lords and Commons were one, and
continued to operate after the division of Parliament into two houses
either because the interblended power was thought to continue to reside
in the Commons, or by the force of routine the mere reminiscence of the
commingled powers led to a continued exercise of the wide authority as
to contempt formerly existing long after the foundation of judicial-
legislative power upon which it rested had ceased to exist. That this
exercise of the right of legislative-judicial power to exert the
authority stated prevailed in England at the time of the adoption of
the Constitution and for some time after has been so often recognized
as to make it too certain for anything but statement.
The opinion then differentiates between the power vested in the House
of Commons and that conferred by the Constitution on the House of
Representatives:
No power was expressly conferred by the Constitution of the United
States on the subject except that given to the House to deal with
contempt committed by its own Members. Article 1, section 5. As the
rule concerning the Constitution of the United States is that powers
not delegated were reserved to the people or the States, it follows
that no other express authority to deal with contempt can be conceived
of. It comes, then, to this: Was such an authority implied from the
powers granted? As it is unthinkable that in any case from a power
expressly granted there can be implied the authority to destroy the
grant made, and as the possession by Congress of the
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\1\ First session Sixty-fifth Congress, Record, p. 1706.
\2\ U. S. 243, p. 521.
Sec. 534
commingled legislative-judicial authority as to contempts which was
exerted in the House of Commons would be absolutely destructive of the
distinction between legislative, executive, and judicial authority
which is interwoven in the very fabric of the Constitution and would
disregard express limitations therein, it must follow that there is no
ground whatever for assuming that any implication as to such a power
may be deduced from any grant of authority made to Congress by the
Constitution. This conclusion has long since been authoritatively
settled and is not open to be disputed.
The court holds, however, that, while not expressly granted, implied
powers are conferred as follows:
As we have already said, the power possessed by the House of Commons
was incompatible with the Constitution and could not be exerted by the
House, it was yet explicitly decided that from the power to legislate
given by the Constitution to Congress there was to be implied the right
of Congress to preserve itself; that is, to deal by way of contempt
with direct obstructions to its legislative duties.
As to the nature of these implied powers:
What does this implied power embrace, is thus the question. In
answering, it must be borne in mind that the power rests simply upon
the implication that the right has been given to do that which is
essential to the execution of some other and substantive authority
expressly conferred. The power is therefore but a force implied to
bring into existence the conditions to which constitutional limitations
apply. It is a means to an end and not the end itself. Hence it rests
solely upon the right of self-preservation to enable the public powers
given to be exerted.
Without undertaking to inclusively mention the subjects embraced in
the implied power, we think from the very nature of that power it is
clear that it does not embrace punishment for contempt as punishment,
since it rests only upon the right of self-preservation; that is, the
right to prevent acts which in and of themselves inherently obstruct or
prevent the discharge of legislative duty or the refusal to do that
which there is an inherent legislative power to compel in order that
legislative functions may be performed. And the essential nature of the
power also makes clear the cogency and application of two limitations;
that is, that the power, even when applied to subjects which justified
its exercise, is limited to imprisonment, and such imprisonment may not
be extended beyond the session of the body in which the contempt
occurred. Not only the adjudged cases but the congressional action in
enacting legislation as well as in exerting the implied power
conclusively sustain the views just stated.
The court then cites instances of the exercise of the power by
Congress and characterizes them as dealing--
with either physical obstruction of the legislative body in the
discharge of its duties or physical assault upon its Members for action
taken or words spoken in the body, or obstruction of its officers in
the performance of their official duties, or the prevention of Members
from attending so that their duties might be performed, or, finally,
with contumacy in refusing to obey orders to produce documents or give
testimony which there was a right to compel.
In the two or three instances not embraced in the classes we think it
plainly appears that for the moment the distinction was overlooked
which existed between the legislative power to make criminal every form
of act which can constitute a contempt to be punished according to the
orderly process of law and the accessory implied power to deal with
particular acts as contempts outside of the ordinary process of law
because of the effect such particular acts may have in preventing the
exercise of legislative authority. And in the debates which ensued when
the various cases were under consideration it would seem that the
difference between the legislative and the judicial power was also
sometimes forgotten-that is to say, the legislative right to exercise
discretion was confounded with the want of judicial power to interfere
with the legislative discretion when lawfully exerted. But these
considerations are incidental and do not change the concrete result
manifested by considering the subject from the beginning. Thus we have
been able to discover no single instance wherein the exertion of the
power to compel testimony restraint
Sec. 534
was ever made to extend beyond the time when the witness should signify
his willingness to testify, the penalty or punishment for the refusal
remaining controlled by the general criminal law. So again we have been
able to discover no instance, except the two or three above referred
to, where acts of physical interference were treated as within the
implied power unless they possessed the obstructive or preventive
characteristics which we have stated, or any case where any restraint
was imposed after it became manifest that there was no room for a
legislative judgment as to the virtual continuance of the wrongful
interference which was the subject of consideration. And this latter
statement causes us to say that where a particular act because of
interference with the right of self-preservation comes within the
jurisdiction of the House to deal with directly under its implied power
to preserve its functions and therefore without resort to judicial
proceedings under the general criminal law, we are of opinion that
authority does not cease to exist because the act complained of had
been committed when the authority was exerted, for to so hold would be
to admit the authority and at the same time deny it. On the contrary,
when an act is of such a character as to subject it to be dealt with as
a contempt under the implied authority, we are of opinion that
jurisdiction is acquired by Congress to act on the subject, and
therefore there necessarily results from this power the right to
determine in the use of legitimate and fair discretion how far from the
nature and character of the act there is necessity for repression to
prevent immediate recurrence--that is to say, the continued existence
of the interference or obstruction to the exercise of the legislative
power. And of course in such case, as in every other, unless there be
manifest an absolute disregard of discretion and a mere exertion of
arbitrary power coming within the reach of constitutional limitations,
the exercise of the authority is not subject to judicial interference.
As to the application of these implied powers to the case at bar, the
court holds:
It remains only to consider whether the acts which were dealt with in
the case in hand were of such a character as to bring them within the
implied power to deal with contempt; that is, the accessory power
possessed to prevent the right to exert the powers given from being
obstructed and virtually destroyed. That they were not, would seem to
be demonstrated by the fact that the contentions relied upon in the
elaborate arguments at bar to sustain the authority were principally
rested not upon such assumption, but upon the application and
controlling force of the rule governing in the House of Commons. But
aside from this, coming to test the question by a consideration of the
conclusion upon which the contempt proceedings were based as expressed
in the report of the select committee which we have previously quoted
and the action of the House of Representatives based on it, there is
room only for the conclusion that the contempt was deemed to result
from the writing of the letter not because of any obstruction to the
performance of legislative duty resulting from the letter or because
the preservation of the power of the House to carry out its legislative
authority was endangered by its writing, but because of the effect and
operation which the irritating and ill-tempered statements made in the
letter would produce upon the public mind or because of the sense of
indignation which it may be assumed was produced by the letter upon the
members of the committee and of the House generally. But to state this
situation is to demonstrate that the contempt relied upon was not
intrinsic to the right of the House to preserve the means of
discharging its legislative duties, but was extrinsic to the discharge
of such duties and related only to the presumed operation which the
letter might have upon the public mind and the indignation naturally
felt by members of the committee on the subject. But these
considerations plainly serve to mark the broad boundary line which
separates the limited implied power to deal with classes of acts as
contempts for self-preservation and the comprehensive legislative power
to provide by law for punishment for wrongful acts.
The opinion thus sums up the relation between the legislative and
judicial departments of the Government:
The conclusions which we have stated bring about a concordant
operation of all the powers of the legislative and judicial departments
of the Government, express or implied, as contemplated
Sec. 535
by the Constitution. And as this is considered, the reverent thought
may not be repressed that the result is due to the wise foresight of
the fathers manifested in State constitutions even before the adoption
of the Constitution of the United States by which they substituted for
the intermingling of the legislative and judicial power to deal with
contempt as it existed in the House of Commons a system permitting the
dealing with that subject in such a way as to prevent the obstruction
of the legislative powers granted and secure their free exertion and
yet at the same time not substantially interfere with the great
guaranties and limitations concerning the exertion of the power to
criminally punish--a beneficent result which additionally arises from
the golden silence by which the framers of the Constitution left the
subject to be controlled by the implication of authority resulting from
the powers granted.
As to the privilege of the House in impeachment proceedings, the
decision says:
It is suggested in argument that whatever be the general rule, it is
here not applicable because the House was considering and its committee
contemplating impeachment proceedings. The argument is irrelevant
because we are of opinion that the premise upon which it rests is
unfounded. But indulging in the assumption to the contrary we think it
is wholly without merit, as we see no reason for holding that if the
situation suggested be assumed it authorized a disregard of the plain
purposes and objects of the Constitution as we have stated them.
Besides, it must be apparent that the suggestion could not be accepted
without the conclusion that under the hypothesis stated the implied
power to deal with contempt as ancillary to the legislative power had
been transformed into judicial authority and become subject to all the
restrictions and limitations imposed by the Constitution upon that
authority--a conclusion which would frustrate and destroy the very
purpose which the proposition is advanced to accomplish and would
create a worse evil than that which the wisdom of the fathers corrected
before the Constitution of the United States was adopted.
In conclusion the court recapitulates:
We repeat, out of abundance of precautions, we are called upon to
consider not the legislative power of Congress to provide for
punishment and prosecution under the criminal laws in the amplest
degree for any and every wrongful act, since we are alone called upon
to determine the limits and extent of an ancillary and implied
authority essential to preserve the fullest legislative power, which
would necessarily perish by operation of the Constitution if not
confined to the particular ancillary atmosphere from which alone the
power arises and upon which its existence depends.
It follows from what we have said that the court below erred in
refusing to grant the writ of habeas corpus and its action must be, and
it is, therefore, reversed, and the case remanded with directions to
discharge the relator from custody.
And it is so ordered.
535. The investigation of the conduct of Judge Kenesaw Mountain
Landis.
A Member, rising in his place, impeached Judge Landis on his
responsibility as a Member of the House.
As the Congress was nearing its close, the majority of the Judiciary
Committee recommended that the further prosecution of the investigation
be left to the succeeding Congress.
Conflicting views of the majority and minority of the Judiciary
Committee, in 1921, as to offenses justifying impeachment.
On February 14, 1921,\1\ Mr. Benjamin F. Welty, of Ohio, claiming the
floor for a question of privilege, said:
I impeach said Kenesaw M. Landis for high crimes and misdemeanors and
charge said Kenesaw M. Landis as follows:
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\1\ Third session Sixty-sixth Congress, Record, p. 3142.
Sec. 536
First. For neglecting his official duties for another gainful
occupation not connected therewith,
Second. For using his office as district judge of the United States
to settle disputes which might come into his court as provided by the
laws of the United States.
Third. For lobbying before the legislatures of the several States of
the Union to procure the passage of State laws to prevent gambling in
baseball, instead of discharging his duties as district judge of the
United States.
Fourth. For accepting the position as chief arbiter of disputes in
baseball associations at a salary of $42,500 per annum, while
attempting to discharge the duties as a district judge of the United
States which tends to nullify the effect of the judgment of the Supreme
Court of the District of Columbia and the baseball gambling indictments
pending in the criminal courts of Cook County, Ill.
Fifth. For injuring the national sport of baseball by permitting the
use of his office as district judge of the United States because the
impression will prevail that gambling and other illegal acts in
baseball will not be punished in the open forum as in other cases.
Mr. Speaker, I move that this charge be referred to the Committee on
the Judiciary without debate for investigation and report, and on that
I move the previous question.
The House, without division, agreed to the motion.
On March 2,\1\ Mr. Leonidas C. Dyer, of Missouri, from the Committee
on the Judiciary, reported that the committee had considered the
impeachment charges against Judge Landis--
which involve the legal and moral character of his alleged act in
accepting employment while a district judge of the United States from
certain baseball associations within the United States, to act as an
arbitrator in disputes which may hereafter arise between them, at a
compensation of $42,500 per annum, and that said committee find that
said act of accepting the employment aforesaid, if proved, is, in their
opinion, at least inconsistent with the full and adequate performance
of the duty of the said the Hon. Kenesaw Mountain Landis, as a United
States district judge, and that said act would constitute a serious
impropriety on the part of said judge.
That said charges were filed too late in the present session of the
Congress to admit of the full and complete investigation which their
serious nature requires, and for that reason your committee recommend
that the question of the further prosecution of said charges by full
and adequate investigation be left to the Sixty-seventh Congress.
The minority views, submitted by Mr. Andrew J. Volstead, of
Minnesota, fail to agree with the conclusions reached by the majority
and take this position:
No violation of any law has been called to the attention of the
committee, nor is it claimed that the judge is guilty of any act that
would establish moral turpitude. One or both of those grounds would
have to be established before impeachment proceedings could be
maintained.
The investigation has gone far enough to disclose the actual facts
and there is no reason for the recommendation that a further
investigation be had in the next Congress. To postpone action is not
only unjust to the judge, but equally unjust to the public. If the
judge is guilty, this committee should say so; if he is not, he is
entitled to have the public know that fact. Postponement tends only to
discredit him in the eyes of the public and to weaken him in the
administration of justice.
The Congress was nearing its close and consideration of the report
was not reached by the House.
No action by Sixty-seventh Congress appears.
536. The investigation of charges against Attorney General Harry M.
Daugherty
-----------------------------------------------------------------------
\1\ House Report No. 407: Record. p. 4359.
Sec. 536
Instance wherein a Member rising to a question of privilege,
impeached the Attorney General on his responsibility as a Member of the
House.
A Member proposing impeachment is required to present definite
charges before proceeding in debate.
Charges of impeachment may not be denied presentation because of
generality in statement.
A committee was authorized to send for persons and papers and to
administer oaths in an investigation delegated to it by the House.
On September 11, 1922,\1\ Mr. Oscar E. Keller, of Minnesota, rising
to a question of privilege, said:
Mr. Speaker, I impeach Harry M. Daugherty, Attorney General of the
United States, for high crime and misdemeanors in office.
Mr. Keller proceeded in debate, when the Speaker interposed:
The Chair will say to the gentleman that he ought first to prefer his
charges. When the gentleman rises to a question of this high privilege
he ought to present definite charges at the outset.
Thereupon Mr. Keller submitted:
First. Harry M. Daugherty, Attorney General of the United States, has
used his high office to violate the Constitution of the United States
in the following particulars:
(1) By abridging freedom of speech.
(2) By abridging the freedom of the press.
(3) By abridging the right of people peaceably to assemble.
Second. Unmindful of the duties of his office and his oath to defend
the Constitution of the United States, and unmindful of his obligations
to discharge those duties faithfully and impartially, the said Harry M.
Daugherty has, in his capacity of Attorney General of the United
States, conducted himself in a manner arbitrary, oppressive, unjust,
and illegal.
Third. He has, without warrant, threatened with punishment citizens
of the United States who have opposed his attempts to override the
Constitution and the laws of this Nation.
Fourth. He has used the funds of his office illegally and without
warrant in the prosecution of individuals and organizations for certain
lawful acts which, under the law, he was specifically forbidden to
prosecute.
Fifth. He has failed to prosecute individuals and organizations
violating the law after those violations have become public scandal.
Mr. Thomas L. Blanton, of Texas, made the point of order that the
charges recited were too general in character to constitute an
impeachment of a public official.
The Speaker overruled the point of order, and Mr. Kelier offered the
following resolution:
Whereas impeachment of Harry M. Daugherty, Attorney General of the
United States, has been made on the floor of the House by the
Representative from the fourth district of Minnesota: Be it
Resolved, That the Committee on the Judiciary be, and they hereby
are, authorized and directed to inquire into the official conduct of
Harry M. Daugherty, Attorney General of the United States, and to
report to the House whether, in their opinion, the said Harry M.
Daugherty has been guilty of any acts which in contemplation of the
Constitution are high crimes or misdemeanors requiring the
interposition of the constitutional powers of this House; and that the
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\1\ Second session Sixty-seventh Congress, Record p. 12346.
Sec. 537
said committee have power to send for persons and papers and to
administer the customary oaths to witnesses.
On motion of Mr. Frank W. Mondell, of Wyoming, the resolution was
referred to the Committee on the Judiciary.
On December 4 \1\ the House, by resolution, authorized the committee
in the consideration of the resolution, to send for persons and papers,
administer oaths to witnesses, and sit during sessions of the House.
537. The investigation of charges against Attorney General Harry M.
Daugherty, continued.
Instance wherein a Member declined to obey a summons to appear and
testify before a committee of the House.
A committee having summoned a Member to testify as to statements made
by him in debate, he protested that it was an invasion of his
constitutional privilege.
Form of subpoena served on a Member of the House.
A committee asserted the power of the House to arrest and imprison
recalcitrant Members in order to compel obedience to its summons.
An official against whom charges of impeachment were pending asked
leave and was allowed to file an answer.
In compliance with a request from the committee that he furnish it
with a statement of the facts relied on by him as constituting the
offenses charged, Mr. Keller filed a statement specifying some 60
different charges. Thereupon Attorney General Daugherty asked leave and
was allowed to file an answer.
While these pleadings were under consideration by the Committee on
the Judiciary Mr. Keller appeared before the committee and read a
prepared statement criticizing the methods of the committee in
conducting the inquiry and announcing:
I reiterate now that I am in possession of evidence ample to prove
Harry M. Daugherty guilty of all of the high crimes and misdemeanors
with which I have charged him. I am ready and anxious to present this
evidence in a proper way before an unbiased committee, but I
emphatically refuse to permit it to be used as whitewashing material.
I now repeat my demand that my resolution, House Resolution 425, be
reported to the House of Representatives with the recommendation that
it pass, and that I be permitted to present my evidence before an
unbiased committee in the proper way. With these whitewashing
proceedings I shall have nothing further to do.
He then withdrew and declined to further participate in the
proceedings.
By direction of the committee the following subpoena was issued and
was served upon Mr. Keller by the Sergeant at Arms of the House
December 14:
by authority of the house of representatives of the congress of the
united states of america.
To the Sergeant at Arms or his special messenger:
You are hereby commanded to summon Hon. Oscar E. Keller to be and
appear before the Judiciary Committee of the House of Representatives
of the United States, of which the Hon. Andrew J. Volstead is chairman,
in their chamber in the city of Washington on December 15, 1922,
-----------------------------------------------------------------------
\1\ Fourth session Sixty-seventh Congress, Record, p. 18.
Sec. 538
at the hour of 10:30 a. m., then and there to testify touching matters
of inquiry committed to said committee; and he is not to depart without
leave of said committee.
Herein fail not, and make return of this summons.
Witness my hand and the seal of the House of Representatives of the
United States at the city of Washington, this 14th day of December,
1922.
[seal.]
F. H. Gillett, Speaker.
Attest:
Wm. Tyler Page, Clerk.
Mr. Keller refused to heed the summon and by his attorney, who
appeared before the committee for him, submitted that as a
Representative in Congress he was not legally bound to obey the
subpoena.
On January 25, 1923,\1\ Mr. Andrew J. Volstead, of Minnesota, from
the Committee on the Judiciary, submitted a report reciting:
That the said Oscar E. Keller was duly summoned as a witness by
authority of the House of Representatives to give testimony before this
committee touching matters of inquiry committed to that committee, and
that he willfully made default in that in disobedience to said subpoena
and without valid cause or excuse, but in contempt of the authority of
the House of Representatives, he willfully failed and refused to appear
as such witness and willfully failed and refused to testify in
obedience to said subpoena. Your committee is of the opinion that Mr.
Keller was legally required to obey said subpoena and that the excuse
he submitted through his said attorney is without any merit; that the
House of Representatives possesses the power to cause him to be
arrested and confined in prison until he shall consent to testify, such
confinement not to extend beyond the term of this Congress, and power
to otherwise deal with him so as to compel obedience to the summons.
Subsequent illness of Mr. Keller rendered inadvisable further action
on the part of the committee or the House.
538. The investigation of the charges against Attorney General Harry
M. Daugherty, continued.
A motion to lay on the table a resolution providing for final
disposition of impeachment proceedings does not, if agreed to, carry
such proceedings to the table with the resolution.
Minority views submitted by Mr. R. Y. Thomas, jr., of Kentucky, takes
the position that House Resolution 425 merely authorized an
investigation of the charges and not a trial of the Attorney General,
and conclude with the recommendation:
I therefore recommend, in view of what I consider the farcical
investigation of this case, that a special committee be appointed by
the Speaker of the House with instructions to make a full and fair
investigation of all the charges against the Attorney General.
On January 25, 1923,\2\ Mr. Volstead called up the majority report
and offered the following resolution:
That whereas the Committee on the Judiciary has made an examination
touching the charges sought to be investigated under House resolution
425 to ascertain if there is any probable ground to believe that any of
the charges are true; and on consideration of the charges and the
evidence obtained it does not appear that there is any ground to
believe that Harry M. Daugherty, Attorney General of the United States,
has been guilty of any high crime or misdemeanor requiring the
interposition of the impeachment powers of the House:
-----------------------------------------------------------------------
\1\ Fourth session Sixty-seventh Congress, House Report No. 1371.
\2\ Fourth session Sixty-seventh Congress, Journal, p. 148; Record,
p. 2410.
Sec. 539
Resolved, That the Committee on the Judiciary be discharged from
further consideration of the charges and proposed impeachment of Harry
M. Daugherty, Attorney General, and that House Resolution 425 be laid
upon the table.
After extended debate, Mr. Finis J. Garrett, of Tennessee, moved to
lay the resolution on the table.
In response to a parliamentary inquiry as to whether an affirmative
vote on the motion would carry the entire impeachment proceedings to
the table, the Speaker held:
This is a resolution laying the whole subject on the table. A motion
to lay that on the table, if it carried, would be equivalent to
rejecting it. A motion to lay the impeachment proceedings on the table
would still leave the impeachment matter pending.
On the question of agreeing to the motion to lay the resolution on
the table there were 88 yeas and 204 nays, and the motion was rejected.
A division of the question on the pending resolution and preamble
having been demanded, the resolution was agreed to without division,
and the preamble by a vote of yeas 206, nays 78.
539. Instance wherein the Senate transmitted to the House testimony
adduced before one of its committees for consideration by the House
with a view to impeachment.
An official against whom charges were pending having resigned his
office, the House committee to which they had been referred made no
report.
On March 25, 1924,\1\ the Senate passed and messaged to the House the
following resolution:
Whereas one Clarence C. Chase is and, for more than a year last past,
has been a civil officer of the United States, to wit, the collector of
customs at the port of El Paso, Tex.; and
Whereas in the prosecution of an inquiry by the Committee on Public
Lands and Surveys of the Senate under Senate Resolution 147, it became
necessary to inquire into the source from which one A. B. Fall, late
Secretary of the Interior, secured large sums of money at or about the
time or shortly after he entered upon negotiations resulting in the
execution of leases or contracts relating to the naval oil reserves;
and
Whereas it appears from the testimony taken and proceedings had
before the said committee that the said Clarence C. Chase entered into
a conspiracy with the said A. B. Fall to mislead and deceive the said
committee concerning the source of such moneys, and that pursuant to
such conspiracy the said Clarence C. Chase, on or about the 29th of
November, 1923, endeavored to induce one Price McKinney to represent to
and testify before the said committee that he had loaned to the said
Fall at or about the time hereinbefore mentioned the sum of $100,000;
and
Whereas the said Clarence C. Chase well knew that the said Price
McKinney had made no such loan to the said Fall; and
Whereas the said Clarence C. Chase being, on the 24th day of March,
1924, called before the said committee and interrogated concerning the
matters herein referred to by the said committee, declined and refused
to answer any questions in relation to the same upon the ground that
his answers might tend to incriminate him: Now, therefore, be it
Resolved, That a copy of the testimony adduced and the proceedings
had before the said Committee on Public Lands and Surveys under Senate
Resolution 147 be, with a copy of this resolution, transmitted to the
House of Representatives for such proceeding against the said Clarence
C. Chase as may be appropriate.
-----------------------------------------------------------------------
\1\ First session Sixty-eighth Congress, Record, p. 4915.
Sec. 540
On the following day \1\ the resignation of Clarence C. Chase was
announced in the Senate.
In the House the resolution was referred from the Speaker's table to
the Committee on the Judiciary, which made no report thereon.
540. Proposed inquiry into the eligibility of Andrew W. Mellon to
serve as Secretary of the Treasury, in 1932.
Secretary Mellon having been nominated and confirmed as ambassador to
a foreign country and having resigned as Secretary of the Treasury, the
House declined to authorize an investigation.
On January 6, 1932,\2\ Mr. Wright Patman, of Texas, rising in his
place in the House, charged that Andrew William Mellon, of
Pennsylvania, was serving as Secretary of the Treasury of the United
States in contravention of statutes \3\ prohibiting certain officials
from owning certain classes of property and engaging in certain
business enterprises, and offered a privileged resolution providing for
an investigation.
On February 13, \4\ Mr. Hatton W. Sumners, of Texas, from the
Committee on the Judiciary to which the resolution had been referred,
presented a report \5\ recommending the adoption of the following:
Whereas Hon. Wright Patman, Member of the House of Representatives,
filed certain impeachment charges against Hon. Andrew W. Mellon,
Secretary of the Treasury, which were referred to this committee; and
Whereas pending the investigation of said charges by said committee,
and before said investigation had been completed, the said Hon. Andrew
W. Mellon was nominated by the President of the United States for the
post of ambassador to the Court of St. James and the said nomination
was duly confirmed by the United States Senate pursuant to law, and the
said Andrew W. Mellon has resigned the position of Secretary of the
Treasury: Be it
Resolved by this committee, That the further consideration of the
said charges made against the said Andrew W. Mellon, as Secretary of
the Treasury, be, and the same are hereby discontinued.
The resolution submitted by the committee was agreed to without
debate or division.
541. A proposal to investigate the official conduct of the President
of the United States with a view to impeachment was laid on the table.
The question of consideration may not be demanded on a resolution of
impeachment until the reading of the resolution has been concluded.
Recognition to propound a parliamentary inquiry is within the
discretion of the Chair and may interrupt proceedings of high
privilege.
The laying on the table of a resolution of impeachment does not
preclude the offering of a similar resolution if not in identical
language.
Motions for the disposition of a resolution of impeachment are not in
order until it has been read in full.
-----------------------------------------------------------------------
\1\ Record p. 5009.
\2\ First session, Seventy-second Congress, Record, p. 1400.
\3\ U. S. Code, title 5, sec. 243; title 14, sections 1, 51, 66;
title 19, sections 3, 382, etc.
\4\ Record, p. 3850.
\5\ House Report No. 444.
Sec. 541
A resolution of impeachment may be expunged from the record by
unanimous consent only.
On December 13, 1932,\1\ Mr. Louis T. McFadden, of Pennsylvania,
rising to a question of constitutional privilege in the House, proposed
to impeach the President of the United States for ``high crimes and
misdemeanors'' in that he had ``unlawfully attempted to usurp
legislative powers'' and otherwise in domestic and foreign relations
``violated the Constitution and laws of the United States.'' The
charges were of a general nature and prefaced a resolution authorizing
the Committee on the Judiciary to conduct an investigation with a view
to impeachment.
In the course of the reading of the resolution by the Clerk, Mr.
William H. Stafford, of Wisconsin, interrupted and proposed to submit a
parliamentary inquiry, when Mr. Thomas L. Blanton, of Texas, presented
the point of order that a proceeding of this character could not be
interrupted by a parliamentary inquiry.
The Speaker \2\ overruled the point of order and said:
That is in the discretion of the Chair. The Chair will recognize the
gentleman from Wisconsin to make a parliamentary inquiry.
Mr. Stafford inquired if it would be in order to raise the question
of consideration. The Speaker, Mr. John N. Gamer, replied that the
question of consideration could not be raised until the reading of the
resolution had been completed.
The reading of the resolution having been concluded, Mr. Edward W.
Pou, of North Carolina, moved that the resolution be laid on the table.
On a yea and nay vote, ordered on the demand of Mr. Leonidas C. Dyer,
of Missouri, the yeas were 361, the nays, were 8, and the resolution
was laid on the table.
On January 17, 1933,\3\ Mr. McFadden again rose to a question of
privilege and submitted a similar but not identical, resolution
embodying similar charges and carrying a similar proposal for an
investigation by the Committee of the Judiciary, and asked recognition
to debate it. The Speaker said:
The gentleman is entitled to an hour, but first the Clerk must report
the resolution of impeachment.
During the reading of the resolution by the Clerk, Mr. Robert Luce,
of Massachusetts, interrupted and submitted a parliamentary inquiry
asking if it were in order to bring up at this time a proposition of
similar import to one previously laid on the table.
The Speaker said:
The Chair, of course, has not heard the resolution read. Probably if
it was identical with the resolution submitted some time ago and laid
on the table there would be some question whether or not a second
impeachment could be had. But the President can be impeached, or any
person provided for by the Constitution, a second time, and the Chair
thinks the better policy would be to have the resolution read and
determine whether or not it is the same.
Mr. Fred A. Britten, of Illinois, inquired if it would be in order at
this time to offer a motion for disposition of the resolution.
-----------------------------------------------------------------------
\1\ Second session, Seventy-second Congress, Record, p. 399.
\2\ John N. Garner, of Texas, Speaker.
\3\ Second session seventy-second Congress, Record, p. 1954.
Sec. 542
The Speaker replied:
No. The Chair would not recognize any Member to make a motion until
the resolution is read.
Mr. Britten further inquired if a motion to expunge the resolution
would be entertained.
The Speaker responded:
It may only be done by unanimous consent.
The Clerk having concluded the reading of the resolution, Mr. Henry
T. Rainey,\1\ of Illinois, offered a motion to lay the resolution on
the table.
Mr. McFadden submitted that he was entitled to recognition for one
hour.
The Speaker differentiated:
The gentleman from Illinois moves to lay the resolution of
impeachment on the table.
May the Chair be permitted to make a statement with reference to the
rules applying to that motion. The parliamentarian has examined the
precedents with reference to the motion. Speaker Clark and Speaker
Gillette, under identical conditions, held that a motion to lay on the
table deprived a Member of the floor, although the general rules
granted him one hour in which to discuss the resolution of impeachment
or privileges of the House. Therefore the motion is in order.
The question being put, and the yeas and nays being ordered, it was
decided in the affirmative, yeas, 344, nays, 11, and the resolution was
laid on the table.
542. The inquiry into the conduct of Harry B. Anderson, United States
judge for the western district of Tennessee, in 1931.
The inquiry into the conduct of Judge Anderson was initiated by a
resolution supplemented by a report from the Department of Justice.
While the House decided against impeachment, it expressed disapproval
of practices disclosed by the investigation.
On March 24, 1930,\2\ Mr. Fiorello LaGuardia, of New York, introduced
a resolution authorizing a special committee of five members of the
Committee on the Judiciary to inquire into the official conduct of
Harry B. Anderson, United States judge for the western district of
Tennessee.
The resolution was referred to the Committee on the Judiciary and
reported to the House by direction of that committee through Mr. Andrew
J. Hickey, of Indiana, on June 13.\3\
After brief debate, the resolution was agreed to with an amendment
providing for the designation of the members of the special committee
by the chairman of the Committee on the Judiciary.
In the course of his remarks, Mr. Hickey, in response to an inquiry
from Mr. William H. Stafford, of Wisconsin, explained that the
preliminary inquiry had been delegated by the committee to a
subcommittee which in addition to its own research had the advantage of
a report by the Department of Justice which had made an
-----------------------------------------------------------------------
\1\ Mr. McFadden and the President were members of the same party;
Mr. Pou and Mr. Rainey were members of the opposing party.
\2\ Second session Seventy-first Congress, Record, p. 6051.
\3\ Record, p. 10649.
Sec. 543
extensive investigation of the handling of bankruptcy proceedings in
Judge Anderson's court.
Pursuant to the resolution, Mr. Hickey, Mr. LaGuardia, Mr. Charles I.
Sparks, of Kansas, Mr. Hatton W. Sumners, of Texas, and Mr. Gordon
Browning, of Tennessee, were appointed to the special committee which
after investigation recommended to the committee that no further action
be taken.
On February 18, 1931,\1\ Mr. George S. Graham of Pennsylvania,
presented the report of the Committee on the Judiciary, embodying the
recommendation of the subcommittee.
The report recited that while there were no grounds for invoking the
high power of impeachment, the investigation disclosed--
certain matters which the committee does not desire to be regarded as
in any way approving or sanctioning. The practice existing in the
western district of Tennessee, both under Judge Anderson and his
predecessors, of appointing referees to the place and position of
receivers in bankruptcy matters is one which the committee thinks ought
to be discontinued and desires to express its disapproval of the
practice. The atmosphere and surroundings in the Tully case while free
from evidence of wrong on the part of the judge, lead the committee to
say that in their opinion when private matters or family matters come
in touch with the court a judge should exercise more than ordinary care
to avoid the appearance of improperly using the process of the court in
any way that might be misunderstood, for in such matters the conduct of
a judge must always be above suspicion.
The report then recommended the adoption of the following resolution
which was agreed to by the House without debate:
Resolved, That the evidence submitted on the charges against Hon.
Harry B. Anderson, district judge for the western district of
Tennessee, does not warrant the interposition of the constitutional
powers of impeachment of the House.
543. The investigation into the conduct of William E. Baker, United
States district judge for the northern district of West Virginia.
A memorial addressed to the Speaker and setting forth charges against
a civil officer was referred to the Committee on the Judiciary, which
recommended an investigation.
The House referred the case of Judge Baker to the Committee on the
Judiciary instead of to a select committee for investigation.
On May 22, 1934,\3\ Mr. George S. Graham, of Pennsylvania, from the
Committee on the Judiciary, reported the following resolution, which
was agreed to:
Whereas certain charges \4\ against William E. Baker, United States
district judge for the Northern District of West Virginia, have been
transmitted by the Speaker of the House of Representatives to the
Judiciary Committee: Be it
Resolved, That the Committee on the Judiciary be, and they hereby
are, authorized and directed to inquire into the official conduct of
William E. Baker, United States district judge for the Northern
District of West Virginia, and to report to the House whenther in their
opinion the
-----------------------------------------------------------------------
\1\ Third session Seventy-first Congress, Record, p. 5312.
\2\ Record, p. 5009.
\3\ First session Sixty-eighth Congress, Record, p. 9240.
\4\ The memorial submitting the charges appears in full at p. 4875 of
the Record.
Sec. 544
said William E. Baker has been guilty of any acts which in
contemplation of the Constitution are high crimes or misdemeanors
requiring interposition of the constitutional powers of this House; and
that the said committee have power to send for persons and papers, to
administer the customary oaths to witnesses, and to sit during the
sessions of the House until adjournment and thereafter until said
inquiry is completed and report to the next session of the House.
The committee thus constituted was by later resolution authorized to
employ clerical assistance and to incur expenses not to exceed $2,500.
On February 10, 1925,\1\ Mr. Leonidas C. Dyer, of Missouri, from the
Committee on the Judiciary, submitted the report of the committee on
the case.
The committee found:
That in their opinion the said William E. Baker has not been guilty
of any acts which in contemplation of the Constitution are high crimes
or misdemeanors requiring the interposition of the constitutional
powers of this House, and recommends that articles of impeachment be
not directed by the House against the said William E. Baker.
The report was referred to the Committee of the Whole House.
544. The inquiry into the conduct of Judge George W. English, United
States judge for the eastern judicial district of Illinois.
A resolution proposing investigation with a view to impeachment was
introduced by delivery to the Clerk and was referred to the Committee
on Rules, on request of which committee it was referred to the
Committee on the Judiciary.
A joint resolution created a select committee (in effect a
commission), composed of Members of the House, and authorized it to
report to the succeeding Congress.
A select committee visited various States and took testimony.
January 13, 1925,\2\ Mr. Harry B. Hawes, of Missouri, introduced, by
delivery to the Clerk, a resolution for an investigation of the
official conduct of George W. English, district judge for the eastern
district of Illinois, which, under the rule, was referred to the
Committee on Rules. On February 3.\3\ Mr. Bertrand H. Snell, from the
Committee on Rules, by direction of that committee, asked unanimous
consent that the resolution be referred to the Committee on the
Judiciary, to which communications relating to the charges have been
previously referred. The request was agreed to, and subsequently \4\
Mr. George S. Graham, of Pennsylvania, introduced a joint resolution
which was reported from the Committee on the Judiciary and agreed to
February 12,\5\ as follows:
Resolved by the Senate and House of Representatives of the United
States of America in Congress assembled, That William D. Boies, Charles
A. Christopherson, Ira G. Hersey, Earl C. Michener, Hatton W. Sumners,
John N. Tillman, and Royal H. Weller, being a subcommittee of the
Committee on the Judiciary of the House of Representatives, be, and
they hereby are, authorized and directed to inquire into the official
conduct of George W. English, United States district judge for the
eastern district of Illinois, and so report to the House whether in
their opinion the said
-----------------------------------------------------------------------
\1\ House Report No. 1443.
\2\ Second session Sixty-eighth Congress, Record, p. 1790.
\3\ Record, p. 2940.
\4\ Second session Sixty-eighth Congress, Record, p. 3472.\5\
Journal, p. 237.
Sec. 545
George W. English has been guilty of any acts which in contemplation of
the Constitution are high crimes or misdemeanors requiring the
interposition of the constitutional powers of the House; and that the
said special committee have power to hold meetings in the city of
Washington, District of Columbia, and elsewhere and to send for persons
and papers, to administer the customary oaths to witnesses, all process
to be signed by the Clerk of the House of Representatives under its
seal, and be served by the Sergeant at Arms of the House or his special
messenger; to sit during the sessions of the House and until
adjournment sine die of the Sixty-eighth Congress, and thereafter until
said inquiry is completed, and report to the Sixty-ninth Congress.
Sec. 2. That said special committee be, and the same is hereby,
authorized to employ such stenographic and clerical assistance as they
may deem necessary, and all expenses incurred by said special
committee, including the expenses of such committee when sitting in or
outside of the District of Columbia, shall be paid out of the
contingent fund of the House of Representatives on vouchers ordered by
said committee, signed by the chairman of said committee: Provided,
however, That the total expenditures authorized by this resolution
shall not exceed the sum of $5,000.
The joint resolution was passed by the Senate and approved by the
President. Under the authorization thus conferred, the committee held
hearings in Illinois, Missouri, and the District of Columbia following
the adjournment of the Sixty-eighth Congress and submitted a report to
the Sixty-ninth Congress.\1\
545. Impeachable offenses are not confined to acts interdicted by the
constitution or the Federal Statutes but include also acts not commonly
defined as criminal or subject to indictment.
Impeachment may be based on offenses of a political character, on
gross betrayal of public interests, inexcusable neglect of duty,
tyrannical abuse of power, and offenses of conduct tending to bring the
office into disrepute.
No judge is subject to impeachment on the complaint that he has
rendered an erroneous decision.
A committee finding that a judge had failed to live up to the
standards of the judiciary in matters of personal integrity and in the
discharge of the duties of his office, recommended articles of
impeachment.
It is in order to demand a division of the question on agreeing to a
resolution of impeachment and a separate vote may be had on each
article.
On March 25, 1926,\2\ Mr. George S. Graham, of Pennsylvania, from the
Committee on the Judiciary submitted the report of the committee
reviewing the several charges in detail.
In determining whether the nature of the offenses charged warranted
indictment, the committee decide:
Although frequently debated, and the negative advocated by some high
authorities, it is now, we believe, considered that impeachment is not
confined alone to acts which are forbidden by the Constitution or
Federal statutes. The better sustained and modern view is that the
provision for impeachment in the Constitution applies not only to high
crimes and misdemeanors as those words were understood at common law
but also acts which are not defined as criminal and made subject to
indictment, but also to those which affect the public welfare. Thus an
official may be impeached for offenses of a political character and for
gross betrayal of public interests. Also, for abuses or, betrayal of
trusts, for inexcusable negligence of duty, for the tyrannical abuse of
power, or,
-----------------------------------------------------------------------
\1\ First session Sixty-ninth Congress, House Report No. 145.
\2\ First session Sixty-ninth Congress, House Report No. 653.
Sec. 545
as one writer puts it, for a ``breach of official duty by malfeasance
or misfeasance, including conduct such as drunkenness when habitual, or
in the performance of official duties, gross indecency, profanity,
obscenity, or other language used in the discharge of an official
function, which tends to bring the office into disrepute, or for an
abuse or reckless exercise of discretionary power as well as the breach
of an official duty imposed by statute or common law.''
The committee hold, however, that:
No judge may be impeached for a wrong decision.
In support of the contention that the personal conduct of an official
may be made the basis of impeachment the report says:
A Federal judge is entitled to hold office under the Constitution
during good behavior, and this provision should be considered along
with article 4, section 2, providing that all civil officers of the
United States shall be removed from office upon impeachment for and
conviction of treason, bribery, or other high crimes and misdemeanors.
Good behavior is the essential condition on which the tenure to
judicial office rests, and any act committed or omitted by the
incumbent in violation of this condition necessarily works a forfeiture
of the office.
A civil officer may have behaved in public so as to bring disgrace
upon himself and shame upon the country and he would continue to do
this until his name became a public stench and yet might not be subject
to indictment under any law of the United States, but he certainly
could be impeached. Otherwise the public would in this and kindred
cases be beyond the protection intended by the Constitution. When the
Constitution says a judge shall hold office during good behavior it
means that he shall not hold it when his behavior ceases to be good
behavior.
The report therefore concludes:
The Federal judiciary has been marked by the services of men of high
character and integrity, men of independence and incorruptibility, men
who have not used their office for the promotion of their private
interests or those of their friends. No one reading the record in this
case can conclude that this man has lived up to the standards of our
judiciary, nor is he the personification of integrity, high honor, and
uprightness, as the evidence presents the picture of the manner in
which he discharged the high duties and exercised the powers of his
great office.
The committee accordingly submit five articles of impeachment with
the recommendation that they be adopted by the House and presented to
the Senate with a demand for conviction and removal from office.
Minority views \1\ are filed taking issue with facts determined and
conclusions reached in the several specific charges discussed in the
majority report, but indicating no disagreement with the views of the
majority as to the law governing impeachment proceedings as set forth
in the report.
The report was debated in the House on March 30, 31, and April 1,
when the resolution reported by the committee was agreed to--yeas, 306;
nays, 62.
The House then adopted a resolution \2\ submitted by Mr. Graham
naming Messrs. Earl C. Michener, Ira G. Hersey, W. D. Boies, C. Ellis
Moore, George R. Stobbs, Hatton W. Sumners, and Andrew J. Montague,
majority and minority members of the Committee on the Judiciary, as
managers to conduct the impeachment, and instructing them to appear at
the bar of the Senate and demand conviction.
-----------------------------------------------------------------------
\1\ Record, p. 6363.
\2\ Record, p. 6736
Sec. 546
On reception of the report in the House on March 25, Mr. Charles R.
Crisp, of Georgia, rising to a parliamentary inquiry, asked if it would
be in order to demand a separate vote on each of the five articles of
impeachment.
The Speaker replied in the affirmative, and when the vote was taken
on April 1,\1\ recognized Mr. William B. Bowling, of Alabama, to demand
a separate vote on the first article of the impeachment, and said:
In response to the query of the gentleman may the Chair state that in
view of the fact he is about to recognize the gentleman from Alabama to
demand a separate vote on article of impeachment No. 1, the Chair will
now put the question on agreeing to the resolution with all the
articles except article 1.
In the opinion of the Chair the proper procedure under the
circumstances, a separate vote having been demanded on only one
article, would be that the vote should be first taken on the resolution
and all other articles.
546. The managers on the part of the House having formally presented
articles of impeachment, the Senate organized for the trial.
A Senator excused himself from participation in impeachment
proceedings on the ground of close personal relations with one of the
managers for the House, but on suggestion took the oath as a member of
the court of impeachment.
A committee of the Senate after investigation expressed the opinion
that during a trial of impeachment the House could, with the consent of
the Senate, adjourn and the Senate proceed with the trial.
By common consent it was agreed that a judge under trial before the
Senate continued undisturbed in the exercise of the judicial duties of
his office.
On April 6,\2\ the House by resolution notified the Senate of the
appointment of managers and a message was communicated from the Senate
in response informing the House that the Senate was ready to receive
them.
Accordingly, on April 22,\3\ at 2 o'clock p. m., the managers of the
impeachment on the part of the House appeared before the bar of the
Senate and were announced by the doorkeeper. The Vice President
received them and they were seated by the Sergeant at Arms.
By direction of the Vice President the Sergeant at Arms made
proclamation:
Hear ye! Hear ye! Hear ye! All persons are commanded to keep silence,
on pain of imprisonment, while the House of Representatives is
exhibiting to the Senate of the United States articles of impeachment
against Hon. George W. English, judge of the United States Court for
the Eastern District of Illinois.
Thereupon Mr. Manager Michener read the resolution appointing the
managers on the part of the House and presented the articles of
impeachment with the demand of the House for impeachment, conviction,
and removal from office.
-----------------------------------------------------------------------
\1\ Record, p. 6735.
\2\ Record, p. 6963.
\3\ Record, p. 7962.
Sec. 546
On motion of Mr. Albert B. Cummins, of Iowa, the Senate agreed to an
order fixing Friday, April 23, as the date on which the Senate would
organize for the trial, and the managers on the part of the House
retired from the Chamber.
Mr. Coleman L. Blease, of South Carolina, thereupon excused himself
from participation in the trial on account of his former business
relations with Mr. Manager Dominick.
When, however, on the day of trial, Mr. Blease's name was called for
him to be sworn and he failed to appear to take the oath, Mr. John S.
Williams, of Mississippi, submitted:
Mr. President, I noticed that, when the name of the Senator from
South Carolina was called, he shook his head to indicate that he would
not take the oath. On yesterday the Senator from South Carolina asked
to be excused from participating in the trial of Judge English and gave
as his reason for so doing the relationship which exists between
himself and one of the board of managers of the House, Representative
Dominick. We all sympathize with the views expressed by the Senator
from South Carolina; but in the composition of the Senate as a court to
try Judge English on the indictment which has been returned here by the
House of Representatives, I think no one may be excused from taking the
oath.
What shall happen to the Senator from South Carolina when it become
necessary to vote is an entirely different matter, but the rule
specifically provides that all the Members of the Senate who are
present shall present themselves and take the oath, and that absent
Senators shall take the oath as they appear in the Senate. I therefore
think it not competent for us to excuse the Senator from South Carolina
from taking the oath as a member of the court. I hope the question will
not be raised and that we shall avoid any technicality which might be
urged at any time. I ask the Senator from South Carolina to take the
oath.
Thereupon Mr. Blease, when his name was called the second time, came
forward and took the oath.
The designated day \1\ having arrived, the senior Senator from Iowa,
Mr. Cummins, by request administered the oath as the Presiding Officer
of the court to the Vice President, who in turn swore in the Senators
in groups of 10.
Mr. James A. Reed, of Missouri, having raised a question as to the
administration of the oath of absent Senators, the Vice President said:
Under the precedents of the Senate each Senator who has not been
sworn will be called to the desk when he enters the Chamber and the
oath will be administered to him.
The Senate then agreed to an order submitted by Mr. Cummins notifying
the House of Representatives that the Senate was ready for the trial of
the articles of impeachment.
Pending the appearance of the House managers, Mr. Claude A. Swanson,
of Virginia, inquired of Mr. Cummins, the Chairman of the Judiciary
Committee, if conclusion has been reached as to whether the trial
required that both Houses of Congress remain in session during the
trial or whether the House of Representatives with consent of the
Senate could adjourn sine die while the latter remained in session for
the trial of the case of whether both Houses might adjourn and the
Senate convene in extra session for the trial.
Mr. Cummin said:
Certain members of the Judiciary Committee, of which I happen to be
chairman, have made rather an exhaustive study of that subject. I think
it is the opinion of all the members of the
-----------------------------------------------------------------------
\1\ Record, p. 8026.
Sec. 547
Judiciary Committee who have examined the matter that the House can
adjourn sine die, with the consent, of course, of the Senate, and that
the impeachment proceedings can go forward without the presence of the
House of Representatives; although I say, very frankly, that the only
precedent with regard to that question was decided the other way. That
precedent was in the impeachment of Secretary Belknap. It was then
ruled by the Senate that the House of Representatives must be present
during the impeachment trial. A very close vote. I think the vote was
19 to 17, but there were not more than 2 votes either way.
In the Belknap case the question arose whether it was necessary for
the House to be in session during the trial of the impeachment, and it
was ruled in that case that the House must remain in in session. I
think everybody recognizes that there were very peculiar circumstances
surrounding the trial of the impeachment of Secretary Belknap. There
were political considerations, which I have no doubt had great weight
in the determination of the matter. It was alleged that certain of the
Senators did not want to try the Belknap case until after November
elections. That did not appear, of course, in the ruling; but, at any
rate, that was one of the material things that developed in that case.
There was a controversy in respect to the time at which the case should
be tried. Some wanted to put it over until after the elections and some
wanted to try it before the elections. There are, I think, 12
precedents in the various States with constitutions substantially like
our own.
There are half a dozen or more precedents in the States in which it
has been uniformly held that the Senate could go forward in the trial
of an impeachment case without the presence of the House.
Without any order on the part of the Senate, I appointed a
committee--a subcommittee it may be called--of the Judiciary Committee
to study and consider that subject.
And the majority of the committee, so far as I know, without any
dissent, although they were not all present when the final conclusion
was reached, held that it was not necessary for the House to be present
or in session during the trial of the impeachment.
Mr. Joseph E. Ransdell, of Louisiana, further inquired if there was
any question as to the right of a judge on trial to continue in the
exercise of the judicial duties of his office.
Mr. Cummins replied:
None whatever. He will continue to discharge his duties as judge
until after the trial of the impeachment.
The managers on the part of the House having appeared, an order was
made that a summons be issued for George W. English returnable on May
3, and the Senate sitting for the trial of the impeachment adjourned
until that date.
547. The answer of the respondent was printed and time allowed for
replication of managers, with order that further pleadings be filed
with the Secretary with due notice to the other party prior to a
designated date.
The resignation of the respondent in no way affects the right of the
court of impeachment to continue the trial and hear and determine all
charges.
The respondent having retired from office, the managers, while
maintaining their right to prosecute the charges to a final verdict,
recommended that impeachment proceedings be discontinued.
On May 3,\1\ the Senate convened as a court of impeachment and the
respondent appeared and was seated with counsel in the area in front of
the Secretary's desk. The return of the Sergeant at Arms was read and
sworn to and the respondent presented his answer which was read by the
Secretary. The answer was ordered
-----------------------------------------------------------------------
\1\ Record, p. 8578.
Sec. 547
printed and the managers on the part of the House were by order of the
Senate given until May 5 in which to present a replication, with
direction that further pleadings be filed with the Secretary of the
Senate with notice to the other party and that all pleadings be closed
not later than May 10. The Senate sitting as a court of impeachment
then adjourned until May 5.
In the House on May 4,\1\ Mr. Earl C. Michener, of Michigan,
presented for the managers on the part of the House, their replication
which was approved by the House and by resolution ordered to be
messaged to the Senate.
On the following day \2\ the Vice President laid before the court of
impeachment the message received from the House transmitting the
replication which was read by the Secretary and was ordered to be
printed. The court of impeachment adopted the usual order relating to
the procedure of the Senate sitting as a court of impeachment, and a
further order setting the trial for November 10, 1926.
On November 10,\3\ the court of impeachment having convened and the
managers on the part of the House and counsel for the respondent having
been received, Mr. Manager Michener announced:
Mr. President, I am directed by the managers on the part of the House
of Representatives to advise the Senate, sitting as a court of
impeachment, that in consideration of the resignation of George W.
English, district judge of the United States for the eastern district
of Illinois, and its acceptance by the President of the United States,
certified copies of which I hereby submit, the managers on the part of
the House have determined to recommend the dismissal of the pending
impeachment proceedings. The managers desire to report their action to
the House, and to this end they respectfully request the Senate,
sitting as a court of impeachment, to adjourn to such time as may be
necessary to permit the House to take appropriate action upon their
report.
The resignation and its acceptance are as follows:
United States District Court,
Eastern District of Illinois,
Chambers of Judge George W. English, East St. Louis,
East St. Louis, Ill, November 4, 1926.
To His Excellency the President of the United States:
I hereby tender my resignation as judge of the District Court of the
United States for the Eastern District of Illinois, to take effect at
once.
In tendering this resignation I think it is due you and the public
that I state my reasons for this action.
While I am conscious of the fact that I have discharged my duties as
district judge to the best of my ability, and while I am satisfied that
I have the confidence of the law-abiding people of the district, yet I
have come to the conclusion on account of the impeachment proceedings
instituted against me, regardless of the final result thereof, that my
usefulness as a judge has been seriously impaired.
I therefore feel that it is my patriotic duty to resign and let
someone who is in no wise hampered be appointed to discharge the duties
of the office.
Your obedient servant,
George W. English.
The White House,
Washington, November 4, 1926.
-----------------------------------------------------------------------
\1\ Record, p. 8686.
\2\ Record, p. 8725.
\3\ First session Sixty-ninth Congress, Record, p. 3
Sec. 547
Hon. George W. English,
United States District Court, But St. Louis, Ill.
Sir: Your resignation as judge of the District Court of the United
States for the Eastern District of Illinois dated November 4, 1926, has
been received and is hereby accepted to take effect at once.
Very truly yours,
Calvin Coolidge
On motion of Mr. Charles Curtis, of Kansas, it was:
Ordered, That the Sergeant at Arms be directed to notify all
witnesses heretofore subpoenaed that they will not be required to
appear at the bar of the Senate until so notified by him.
It was further ordered:
That in view of the statement just made by the chairman of the
managers on the part of the House of Representatives, the Senate,
sitting for the trial of the impeachment of Judge George W. English,
adjourn until Monday, the 13th day of December, 1926, at 1'clock p.m.
The managers on the part of the House and counsel for the respondent
then retired from the Chamber.
In the House on December 11,\1\ Mr. Michener, by direction of the
managers on the part of the House, submitted their unanimous report,
reciting the resignation of George W. English, and holding:
The managers are of the opinion that the resignation of Judge English
in no way affects the right of the Senate, sitting as a court of
impeachment, to hear and determine said impeachment charges.
The managers, however, recommended:
Inasmuch, however, as the respondent, George W. English, is no longer
a civil officer of the United States, having ceased to be a judge of
the District Court of the United States for the Eastern District of
Illinois, the managers on the part of the House of Representatives
respectfully recommend that the impeachment proceedings pending in the
Senate against said George W. English be discontinued.
Mr. Michener, then moved the following resolution:
Resolved, That the managers on the part of the House of
Representatives in the impeachment proceedings now pending in the
Senate against George W. English, late judge of the District Court of
the United States for the Eastern District of Illinois, be instructed
to appear before the Senate, sitting as a court of impeachment in said
cause, and advise the Senate that in consideration of the fact that
said George W. English is no longer a civil officer of the United
States, having ceased to be a district judge of the United States for
the eastern district of Illinois, the House of Representatives does not
desire further to urge the articles of impeachment heretofore filed in
the Senate against said George W. English.
After debate, the yeas and nays being demanded and ordered, the
resolution was agreed to, yeas 290, nays 23.
The resolution of the House was messaged to the Senate and was
considered by the Senate sitting as a court of impeachment on December
13,\2\ when after debate the following order was agreed to, yeas 70,
nays 9.
Ordered, That the impeachment proceedings against George W. English,
late judge of the District Court of the United States for the Eastern
District of Illinois, be and the same are, duly dismissed.
-----------------------------------------------------------------------
\1\ Record, p. 297.
\2\ Record, p. 344.
Sec. 548
The Secretary having been directed to communicate the order to the
House of Representatives, the Senate sitting as a court of impeachment
adjourned sine die.
548. The investigation into the conduct of Frederick A. Fenning, a
commissioner of the District of Columbia, in 1926.
A Member by virtue of his office submitted articles of impeachment
and offered a resolution referring them to a committee of the House.
A committee of the House by majority report held a commissioner of
the District of Columbia not to be a civil officer subject to
impeachment under the Constitution.
A committee having reported that evidence adduced, while not
supporting impeachment, disclosed grave irregularities, the respondent
resigned.
On April 19, 1926,\1\ Mr. Thomas L. Blanton, of Texas, claiming the
floor for a question of privilege, announced that by virtue of his
office as a Member of the House he impeached Frederick A. Fenning,
Commissioner of the District of Columbia, of high crimes and
misdemeanors, and submitted written charges. At the conclusion of the
reading of the charges, Mr. Blanton proposed the following resolution
which was referred to the Committee on the Judiciary.
Resolved, That the Committee on the Judiciary be, and it is hereby,
directed to inquire and report whether the action of this House is
necessary concerning the alleged official misconduct of Frederick A.
Fenning, a commissioner of the District of Columbia, and said Committee
on the Judiciary is in all things hereby fully authorized and empowered
to investigate all acts of misconduct and report to the House whether
in their opinion the said Frederick A. Fenning has been guilty of any
acts which in the contemplation of the Constitution, the statute laws,
and the precedents of Congress are high crimes and misdemeanors
requiring the interposition of the constitutional powers of this House,
and for which he should be impeached.
That this committee is hereby authorized and empowered to send for
persons and papers, to administer oaths, to employ, if necessary, an
additional clerk, and to appoint and send a subcommittee whenever and
wherever necessary to take necessary testimony for the use of said
committee or subcommittee, which shall have the same power in respect
to obtaining testimony as exercised and is hereby given to said
Committee on the Judiciary.
That the expenses incurred by this investigation shall be paid out of
the contingent fund of the House upon the vouchers of the chairman of
said committee, approved by the Clerk of this House.
Mr. George S. Graham, of Pennsylvania, from that committee reported
the resolution back to the House on May 4 \2\ with amendments as to
phraseology and on May 6,\3\ it was agreed to as amended.
The report \4\ of the committee, presented on July 2, considers first
the power and right of the House to impeach and thus analyzes the
requisites essential to impeachment:
Two things are necessary before the House will authorize impeachment:
First, there must be an officer who, by reason of holding such office,
is impeachable under the Constitution and laws of the United States,
and, second, the establishment by creditable evidence of such
misconduct on the part of such officer, defined as ``treason, bribery,
or other high crimes and misdemeanors'' as will
-----------------------------------------------------------------------
\1\ First session Sixty-ninth Congress, Record, p. 7753.
\2\ Record, p. 8718.
\3\ Record, p. 8828.
\4\ House Report No. 1590.
Sec. 548
bring the office into disrepute, and which will require his removal, to
maintain its purity and the respect of the people for the office.
The question as to whether a Commissioner of the District of Columbia
is a Federal officer and subject to the interposition of the
Constitutional powers of the House in this respect, is answered in the
negative as follows:
The first question that confronts us is, Is a Commissioner of the
District of Columbia, appointed by the President and confirmed by the
Senate, a civil officer of the United States, subject to the foregoing
provision of the Federal Constitution? In order to arrive at a correct
solution of this question it is necessary to review the sets of
Congress relating to the District of Columbia.
The area within the District of Columbia was ceded by Maryland to,
and accepted by, the Government in accordance with clause 17 of Article
I of the Constitution, which granted to Congress exclusive legislative
jurisdiction over such District. This in effect makes Congress the
legislative body for the District with the same power as legislative
bodies of the various States, and it has full authority in legislative
matters pertaining to the District, subject to the prohibitions
contained in the Constitution.
That act of July 16, 1790, provided for the establishment of a seat
of government in the District of Columbia. On February 21, 1871,
Congress created of the District a municipal corporation by the name of
``the District of Columbia,'' with power to sue, be sued, contract,
have a seal, and exercise all other powers of a municipal corporation
not inconsistent with the Constitution, the laws of the United States,
and the provisions of this act.
Subsequently, on June 11, 1878, the organic act of the District of
Columbia was enacted by Congress, which provides that the District of
Columbia shall remain and continue a municipal corporation as provided
in section 2 of the Revised Statutes relating to said District, and
that the commissioners provided for should be deemed and taken as
officers of such corporation.
This seems to be as clear as language can express it that thereafter
the District of Columbia should enjoy a municipal corporate status and
that its officer should be deemed and taken as officers of such
corporation. The fact that Congress retains legislative authority and
that the method of appointing Federal officers was followed in the
appointment of the commissioners is not material and certainly not
controlling, for the selection of the commissioners could have been
delegated to the President alone or to the people of the District. Had
it been the intent of Congress that the commissioners should enjoy the
status of Federal officials then no expression thereon was necessary,
but the fact that Congress in specific words gave them the status of
municipal officers indicates clearly that Congress was making and did
make a distinction as to the official status of these officers while,
at the same time, retaining the Federal method of appointment.
This was a very reasonable provision for, while these officials are
appointed by the President and confirmed by the Senate, they are not
paid in the same manner as Federal officers. They are paid out of the
District funds, to which, it is true, the Government contributes a
certain sum, but they are not paid out of the Federal Treasury as are
officials of the Federal Government.
For the reasons stated, it is our conclusion that Frederick A. Fennin
is an officer of a municipal corporation, to wit, the District of
Columbia, and as such is not a civil officer of the United States and
as such is not subject to impeachment.
The report then discusses seriatim. the charges filed, and finds in
each case insufficient evidence to support the allegation.
In concluding, however, the committee find that the evidence adduced
in the course of the hearings discloses practices ``illegal and
contrary to law,'' neglect of duty, and conditions ``which can not be
too severely criticized and condemned'' and recommend an investigation
by a ``proper committee of Congress.''
Seven minority views filed by nine members of the committee disagree
with the findings of the majority as to proof of various charges but
with the exception of two
Sec. 549
concur in the opinion that a Commissioner of the District of Columbia
is not a Civil officer subject to impeachment within the meaning of the
Constitution.
Congress adjourned on July 3,\1\ and in the interim Frederick A.
Fenning tendered his resignation as Commissioner of the District of
Columbia.
549. The inquiry into the conduct of Judge Frank Cooper, in l927.
In instituting impeachment proceedings it is necessary first to
present the charges on which the proposal is based.
Articles of impeachment having been presented, debate is in order
only on debatable motions related thereto.
A motion to refer impeachment charges was entertained as a matter of
constitutional privilege.
The proponent of a proposition to refer impeachment charges to a
committee is entitled to one hour in debate exclusive of the time
required for the reading of the charges.
The motion to refer is debatable in narrow limits only and does not
admit discussion of the merits of the proposition sought to be
referred.
Propositions relating to impeachment are privileged and a resolution
authorizing the taking of testimony and defrayment of expenses of
investigations in connection with impeachment proceedings was
entertained as privileged.
On January 28, 1927,\2\ Mr. Fiorello H. LaGuardia, of New York,
rising to a question of high privilege, proposed to impeach Judge Frank
Cooper, United States district judge for the Northern District of New
York. After he had proceeded for some time in debate, Mr. Thomas L.
Blanton, of Texas, made the point of order that he was not entitled to
the floor, not having presented formal articles of impeachment.
The Speaker \3\ sustained the point of order and said:
The Chair thinks the gentleman from New York should make his charges.
The Chair understood he was simply leading up to the charges. But if a
point of order is made, the gentleman is bound to state his charges.
Mr. LaGuardia presented formal charges in writing and was again
proceeding in debate when Mr. Leonidas C. Dyer, of Missouri, raised the
further point of order that impeachment charges were not debatable
except in connection with some admissible and debatable motion relating
thereto.
The Speaker said:
The Chair would think that the proper procedure would be to introduce
the motion or resolution and then it would be proper.
Mr. LaGuardia moved to refer the charges to the Committee on the
Judiciary and was again proceeding in debate when Mr. Louis C. Cramton,
of Michigan, interposed the point of order that having secured the
floor on a motion to refer, it was not in order to discuss the merits
of the propositions sought to be referred.
-----------------------------------------------------------------------
\1\ Second session Sixty-ninth Congress, Record, p. 3723.
\2\ Second session Sixty-ninth Congress, Record, p. 2487.
\3\ Nicholas Longworth, of Ohio, Speaker.
Sec. 549
The Speaker sustained the point of order and said:
The Chair thinks that under the motion to refer the gentleman from
New York would be limited to a discussion of the reasons why these
charges should or should not be referred to the Committee on the
Judiciary.
The precedent to which the Chair will call attention is this:
``The simple motion to refer is debatable within narrow limits, but
the merits of the proposition which it is proposed to refer may not be
brought into the debate.''
Under that the Chair would think the gentleman from New York would be
confined to a discussion of the reasons why the resolution should be
referred to the Committee on the Judiciary.
The gentleman from New York ought not to argue the merits of the case
to the House. That is what will be argued before the Committee on the
Judiciary, but the gentleman may argue to the House the merits of his
motion, to wit, whether this matter should or should not be referred to
the Committee on the Judiciary.
After further debate, Mr. Cramton submitted a parliamentary inquiry
as to whether the time consumed in reading the charges should be taken
from the hour allotted to the proponent of the motion to refer the
charges.
The Speaker held:
No; the Chair would think not. The Chair would think that on his
motion to refer, the gentleman is entitled to one hour.
The time taken to read the charges was simply time taken to inform
the House of the matter before it, such as time taken by the clerk to
read a bill. Now, the gentleman from New York makes a motion to refer,
and under the rules of the House a motion to refer is debatable for one
hour.
The gentleman did not present his case by way of argument. The
gentleman read a series of charges, obtaining the floor as a matter of
privilege. The reading of those charges was simply to give the House
information--not argument, but information. The Chair held, in ruling
on the point of order raised by the gentleman from Texas, that the
gentleman from New York must read his charges before making any
argument. Having now read his charges, the gentleman from New York
moves to refer the charges to the Committee on the Judiciary, and under
the rules of the House the gentleman is entitled to one hour.
The Chair overrules the point of order.
Subsequently, Mr. Cramton rose to the point of order that the debate
was not being confined to the motion to refer.
The Speaker ruled:
The point of order has been made. The Chair thinks the gentleman from
New York is going over the line of the argument and into the merits of
the question instead of the merits of the motion to refer. The Chair in
cases like this is always inclined to be in favor of a reasonable
debate, but the Chair thinks that the line of argument which is being
made now by the gentleman from New York goes more to the merits of the
case than to the merits of the motion. The gentleman will proceed in
order.
Debate having been concluded, the motion was agreed to and the
charges were referred to the Committee on the Judiciary.
On February 11,\1\ Mr. George S. Graham, of Pennsylvania, from that
committee submitted the following resolution:
Resolved, That the Committee on the Judiciary, and any subcommittee
that it may create or appoint, is hereby authorized and empowered to
act by itself or its subcommittee to hold meetings and to issue
subpoenas for persons and papers, to administer the customary oaths to
witnesses, and
-----------------------------------------------------------------------
\1\ Record, p. 3525.
Sec. 550
to sit during the sessions of the House until the inquiry into the
charges against Hon. Frank Cooper, United States district judge for the
northern district of New York is completed, and to report to this
House.
That said committee be, and the same is hereby, authorized to appoint
such clerical assistance as they may deem necessary, and all expenses
incurred by said committee or subcommittee shall be paid out of the
contingent fund of the House of Representatives on vouchers ordered by
said committee and signed by the chairman of said committee.
In response to a parliamentary inquiry from Mr. Blanton, as to the
privilege of the resolution, the Speaker said:
It is privileged because it relates to impeachment proceedings.
Mr. Graham submitted the report of the committee on March 3,\1\ as
follows:
The committee has examined into the charges against Hon. Frank
Cooper, United States district judge for the northern district of New
York, made on the floor of the House and referred to it by the House on
the 28th day of January, 1927 (Cong. Rec. pp. 2497-2493), and has heard
all witnesses tendered by accuser and accused and reports to the House
the oral and documentary evidence submitted, and while certain
activities of the Hon. Frank Cooper with relation to the manner of
procuring evidence in cases which would come before him for trial are
not to be considered as approved by this report, it has reached the
conclusion and finds that the evidence does not call for the
interposition of the constitutional powers of the House with regard to
impeachment. The committee, therefore, recommends the adoption of the
following resolution:
``Resolved, That the evidence submitted to the Committee on the
Judiciary in regard to the conduct of Hon. Frank Cooper, United States
district judge for the northern district of New York, does not call for
the interposition of the constitutional powers of the House with regard
to impeachment.''
The report was agreed to by the House without division.
550. The inquiry into the conduct of Francis A. Winslow, judge of the
southern district of New York, in 1929.
Discussion of methods of authorizing an investigation with a view to
impeachment.
Instance wherein a special committee was created for the purpose of
instituting an inquiry and drafting articles of impeachment if found to
be warranted by the circumstances.
Instance wherein a special committee of investigation was authorized
to sit after adjournment of the current Congress and report to the
succeeding Congress.
A special committee having been created to investigate charges, a
member supplemented the proceedings by rising to a question of
privilege in the House and proposing impeachment.
A judge whose conduct was under investigation having resigned, no
further action was taken by the committee charged with the
investigation.
A judge against whom impeachment proceedings were instituted
refrained from the exercise of judicial functions from the date of the
fling of the charges.
-----------------------------------------------------------------------
\1\ Record, p. 5619.
Sec. 550
On February 12, 1929,\1\ during consideration of the legislative
appropriation bill in the Committee of the Whole House on the state of
the Union, Mr. Fiorello H. LaGuardia, of New York, having been yielded
time for debate said:
Mr. Chairman and members of the committee, at times it becomes
necessary for a Member of the House to invoke the machinery provided in
the rules of the House to ascertain whether or not a judge of the
Federal court has been guilty of crimes and misdemeanors to warrant his
impeachment. We have a situation in the southern district of New York
so bad that it has shocked both the bench and the bar; so bad that it
is reflecting on the integrity of that court; and unless we have an
investigation either to ascertain the truth of these charges or
otherwise, the people of that district will lose confidence in that
court.
With the permission of the House I will read the resolution which I
am now introducing:
Mr. LaGuardia then read from a written memorandum of specific charges
and an appended resolution authorizing an investigation.
The resolution with the accompanying charges was later delivered to
the Clerk and was referred by the Speaker to the Committee on the
Judiciary.
On February 18, Mr. George S. Graham of Pennsylvania, submitted a
report from the Committee on the Judiciary recommending the passage of
the following joint resolution:
Whereas certain statements against Francis A. Winslow, United States
district judge for the southern district of New York, have been
transmitted by the Speaker of the House of Representatives to the
Judiciary Committee: Therefore be it
Resolved, That Leonidas C. Dyer, Charles A. Christopherson, Andrew J.
Hickey, George R. Stobbs, Hatton W. Sumners, Andrew J. Montague, and
Fred H. Dominick, being a subcommittee of the Committee on the
Judiciary of the House of Representatives, be, and they are hereby,
authorized and directed to inquire into the official conduct of Francis
A. Winslow, United States district judge for the southern district of
New York, and to report to the House whether in their opinion the said
Francis A. Winslow has been guilty of any acts which in contemplation
of the Constitution are high crimes or misdemeanors requiring the
interposition of the constitutional powers of the House; and that the
said special committee have power to hold meetings in the city of
Washington, D. C., and elsewhere, and to send for persons and papers,
to administer the customary oaths to witnesses, all process to be
signed by the Clerk of the House of Representatives under its seal and
be served by the Sergeant at Arms of the House or his special
messenger; to sit during the sessions of the House until adjournment
sine die of the Seventieth Congress and thereafter until aid inquiry is
completed, and report to the Seventy-first Congress.
Sec. 2. That said special committee be, and the same is hereby,
authorized to employ such stenographic, clerical, and other assistance
as they may deem necessary, and all expenses incurred by said special
committee, including the expenses of such committee when sitting in or
outside the District of Columbia, shall be paid out of the contingent
fund of the House of Representatives on vouchers ordered by said
committee, signed by the chairman of said committee: Provided, however,
That the total expenditures authorized by this resolution shall not
exceed the sum of $5,000.
Mr. Bertrand H. Snell, of New York, questioned the method of
procedure on the grounds that under the rules a proposition for the
creation of a special committee of investigation would come regularly
within the jurisdiction of the Committee on Rules, and suggested that
if impeachment was contemplated the matter should follow precedent and
go direct to the Committee on the Judiciary.
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\1\ Second session Seventieth Congress, Record, p. 3334.
Sec. 550
Mr. Graham replied:
Mr. Speaker, this will not set up a special investigating committee.
This resolution is exactly the same as was passed by this House under
exactly similar circumstances in the English case. On the strength of
that resolution the committee in the English case charged with the duty
of investigating was able to subpoena witnesses and proceed in a
regular and orderly way to ascertain whether or not the charges that
had been made on the floor of the House were well founded. In the
English case exactly the same procedure was followed. The-House
referred the resolutions to the Committee on the Judiciary.
They made a preliminary examination, which was a preliminary step in
the procedure. That committee heard any witnesses that were willing to
appear before the committee. They had no power to compel anyone to
appear before the committee. We have not the right, unless the House
gives it to us, to subpoena witnesses and call on them to testify under
oath. That authority being given, and the committee, recognizing that
it was proceeding under the Congress and that the Congress would die on
the 4th of March succeeding, took charge and this investigation was
started but, of course, would die with the Congress. A resolution
exactly the same as this was adopted by the House for two purposes,
first, to give the committee power to make an investigation, and,
second, to give the committee all the necessary machinery and prolong
its life beyond the period of its extinction through the adjournment of
the Congress.
Now, then, in addition to that the committee was instructed to report
back to the House. That meant through the regular channel , which would
be by the subcommittee of the Committee on the Judiciary reporting to
that body, and it to the House. This subcommittee was not a special
investigating committee.
Now, I want to say on the general principle that if this were the
rule of the House then these resolutions ought not to have been
referred to us. They ought to have been referred in the first instance
to the Committee on Rules. I want to say to my friends of the House and
everybody that such a procedure as this will be marked with regret by
those who assent to it making it the practice of the House. Whenever a
man on the floor of the House presents such statements as cloud the
reputation and standing of a judge of the district court of the United
States he puts against that man what is equivalent to impeachment. I
care not by what name you call it, impeachment or charges, it is an
impeachment of the integrity and mars the usefulness of the judge
himself. The matter ought to be proceeded with. It will be a sad day
when these matters have first to go to the Committee on Rules where it
would be said by the public it was only a subterfuge to delay a
procedure which was started by charges made on the floor of the House.
After further debate Mr. Graham offered the following amendment:
To sit during the sessions of the House until adjournment sine die of
the Seventieth Congress, and thereafter until said inquiry is
completed, and report to the Committee on the Judiciary of the House of
the Seventy-first Congress.
The amendment was agreed to and the joint resolution as amended was
adopted by the House, and on February 23,\1\ was agreed to by the
Senate.
On March 2, Mr. LaGuardia, rising to a question of high privilege in
the House, formally proposed the impeachment of Francis A. Winslow and
submitted 12 specific charges accompanied by a resolution as follows:
Resolved, That Francis A. Winslow, United States district judge for
the southern district of New York be impeached of high crimes and
misdemeanors in office as hereinbelow in part specifically set forth.
The Speaker referred the resolution to the Committee on the
Judiciary.
The subcommittee created by the joint resolution designated April 1
for the opening of the inquiry and notified Judge Winslow who on that
day tendered his resignation to the President and issued the following
statement by counsel:
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\1\ Record, p. 4123.
Sec. 551
Judge Winslow has felt, from the time the charges were made against
him, that his usefulness as a member of the judiciary was thereby
impaired, and he has since refrained from appearing as a judge. The
same belief is still uppermost in his mind. In the interval, the
charges directed against him in Congress have been made the subject of
inquiry by the grand jury in New York.
Also, since the presentment of the grand jury was made, proceedings
have been instituted and concluded against certain of those whose names
have been associated with his in the complaints. These several
proceedings having ended, Judge Winslow finds that he now has to
consider the future of his relations to the bench in the light of his
own sense of duty. He can not but realize, notwithstanding the failure
to impugn his personal integrity, that the prestige of the court would
be impaired should he return to it, and this he could not for himself
endure, nor could he allow it to continue as an embarrassment to the
other judges.
The resignation was accepted by the President on the day on which
received and the committee discontinued the investigation.
Notwithstanding the resignation, Mr. LaGuardia again preferred the
charges by resolution on the convening of the Seventy-first
Congress.\1\ The resolution was referred to the Committee on the
Judiciary which made no report thereon.
551. The inquiry into the conduct of Harry B. Anderson, judge of the
western district of Tennessee, in 1930.
Charges having been preferred by a Member of the House, the committee
to which the matter was referred reported a resolution providing for
the creation of a special committee of investigation.
On March 12, 1930,\2\ Mr. Fiorello H. LaGuardia, of New York, filed
charges against Harry B. Anderson, judge of the western district of
Tennessee with a view to the institution of proceedings for
impeachment.
The charges and the accompanying resolution were referred by the
Speaker to the Committee on the Judiciary which, on June 13,\3\
reported to the House the following resolution which was agreed to:
Resolved, That a special committee of five Members of the House of
Representatives who are members of the Committee on the Judiciary of
the House, be, and is hereby authorized and directed to inquire into
the official conduct of Harry B. Anderson, United States district judge
for the western district of Tennessee, and to report to the Committee
on the Judiciary of the House whether in their opinion the said Harry
B. Anderson has been guilty of any acts which in contemplation of the
Constitution are high crimes or misdemeanors requiring the
interposition of the constitutional powers of the House; and that the
said special committee have power to hold meetings in the city of
Washington, D.C., and elsewhere, and to send for persons and papers, to
administer the customary oaths to witnesses, all process to be signed
by the Clerk of the House of Representatives under its seal and be
served by the Sergeant at Arms of the House or his special messenger;
to sit during the sessions of the House and until adjournment of the
second session of the Seventy-first Congress and thereafter until said
inquiry is completed, and report to the Committee on the Judiciary of
the House; and be it further
Resolved, That said special committee be, and the same is hereby,
authorized to employ such stenographic, clerical, and other assistance
as they may deem necessary; and all expenses incurred by said special
committee, including the expenses of such committee when sitting in or
outside the District of Columbia, shall be paid out of the contingent
fund of the House of Representatives on vouchers ordered by said
committee, signed by the chairman of said committee: Provided, however,
That the total expenditures authorized by this resolution shall not
exceed the sum of $5,000.
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\1\ First session Seventy-first Congress, Record, p. 33.
\2\ Second session Seventy-first Congress, Record p. 5105.
\3\ Record, p. 11097 tem.
Sec. 552
552. The inquiry into the conduct of Grover M. Moscowitz, judge for
the eastern district of New York, in 1930.
An instance wherein impeachment proceedings were set in motion by
memorials filed with the Speaker and by him transmitted to a committee
of the House.
A committee of the House having conducted a preliminary inquiry, a
special subcommittee was by joint resolution created to further
investigate the case with a view to impeachment.
A vacancy on a special committee created by joint resolution was
filled by a further joint resolution.
The committee while criticizing the official conduct of a judge
failed to find facts sufficient to warrant impeachment.
On February 27, 1929,\1\ the Committee on the Judiciary, in response
to certain memorials filed with the Speaker and by him referred to the
committee, reported a joint resolution creating a special subcommittee
of the Committee on the Judiciary to inquire into the official conduct
of Grover M. Moscowitz, judge for the eastern district of New York,
with authority to sit after adjournment of the Seventieth Congress and
report to the Seventy-first Congress.
The resolution was agreed to by the Senate on March 1,\2\ and was
thereafter supplemented by a further joint resolution \3\ filling a
vacancy on the subcommittee.
The report \4\ of the Committee on the Judiciary submitted by Mr.
George S. Graham, of Pennsylvania, for the committee, on April 8,\5\
thus explains the inception of the proceedings:
This investigation had its origin in a letter addressed to the
Speaker of the House of Representatives by Representative Andrew L.
Somers, of the sixth New York district, transmitting to the Speaker a
statement made by Sidney Levine and Joseph Levine, also some
correspondence submitted by J. C. Rochester Co. (Inc.), charging
misconduct on the part of Judge Grover M. Moscowitz.
The Speaker of the House referred the matter to the Committee on the
Judiciary, and owing to the fact that the Seventieth Congress was about
to expire, House Joint Resolution 431 was presented by the chairman of
the Committee on the Judiciary for the purpose of giving vitality to a
subcommittee that might make an investigation during the recess and
report to the Judiciary Committee in the next Congress.
The Committee finds grounds for severe criticism and the report
recites:
After seeing the witnesses, hearing them testify, and with due regard
to the argument of counsel and all of the evidence in the case,
individual members of this committee do not approve each and every act
of Judge Moscowitz concerning which evidence was introduced. For
example, the committee can not and does not indorse a business
arrangement of Judge Moscowitz with his former partner which continued
after Judge Moscowitz became a district judge, especially when he was
appointing members of the legal firm to which this former partner
belonged to various receiverships in his court. While this committee
finds nothing corrupt in these transactions, yet
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\1\ Second session Seventieth Congress, Record, p. 4610.
\2\ Record, p. 4939.
\3\ Record, p. 5015, 5068.
\4\ House Report No. 1106.
\5\ Record, P. 6992.
Sec. 552
this procedure throws the court open to criticism and misunderstanding
by the uninformed, as has happened in this case; and, therefore, this
committee can not and does not indorse this practice.
The Committee, however, conclude:
Nevertheless, after a careful consideration of all the evidence in
the case, and giving full consideration to the problems and persons
with which the court had to deal, this committee is unanimous in its
opinion that sufficient facts have not been presented or adduced to
warrant the interposition of the constitutional powers of impeachment
by the House.
The House accordingly approved the report and--
Resolved, That the House of Representatives hereby adopts the report
of the Committee on the Judiciary relative to the charges filed against
Hon. Grover M. Moscowitz, United States district judge for the eastern
district of New York; and further
Resolved, That no further action be taken by the House with reference
to the charges heretofore filed with the committee against Hon. Grover
M. Moscowitz, United States district judge for the eastern district of
New York.