American Constitutional Law: Introductory Essays & Selected Cases

By Alpheus Thomas Mason; William M. Beaney | Go to book overview

McGrain v. Daugherty

273 U.S. 135, 47 S.Ct. 319, 71 L.Ed. 580 ( 1927)

In the course of an investigation of the Department of Justice and of the then Attorney-General, Harry M. Daugherty, a select committee of the Senate issued subpoenas requiring the appearance of Mally S. Daugherty, the brother of the AttorneyGeneral, and ordering him to produce certain records in his possession. McGrain, a deputy of the Senate Sergeant at Arms, arrested Daugherty, after the latter refused to comply with the subpoenas, in order to bring him before the Senate. Daugherty then petitioned for a writ of habeas corpus, and obtained his release. McGrain appealed.

MR. JUSTICE VAN DEVANTER delivered the opinion of the court. . . .

The first of the principal questions, the one which the witness particularly presses on our attention, is . . . whether the Senate -- or the House of Representatives, both being on the same plane in this regard -- has power, through its own process, to compel a private individual to appear before it or one of its committees and give testimony needed to enable it efficiently to exercise a legislative function belonging to it under the Constitution.

The Constitution provides for a Congress, consisting of a Senate and House of Representatives, and invests it with "all legislative powers" granted to the United States, and with power "to make all laws which shall be necessary and proper" for carrying into execution these powers and "all other powers" vested by the Constitution in the United States or in any department or officer thereof. . . . Other provisions show that, while bills can become laws only after being considered and passed by both houses of Congress, each house is to be distinct from the other, to have its own officers and rules, and to exercise its legislative function independently. . . . But there is no provision expressly investing either house with power to make investigations and exact testimony, to the end that it may exercise its legislative function advisedly and effectively. So the question arises whether this power is so far incidental to the legislative function as to be implied.

In actual legislative practice, power to secure needed information by such means has long been treated as an attribute of the power to legislate. It was so regarded in the British Parliament and in the colonial Legislatures before the American Revolution, and a like view has prevailed and been carried into effect in both houses of Congress and in most of the state Legislatures.

This power was both asserted and exerted by the House of Representatives in 1792, when it appointed a select committee to inquire into the St. Clair expedition and authorized the committee to send for necessary persons, papers and records. Mr. Madison, who had taken an important part in framing the Constitution only five years before, and four of his associates in that work, were members of the House of Representatives at the time, and all voted for the inquiry. . . . Other exertions of the

-77-

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