true, that a person holding a dormant title, who stands by and witnesses a sale to another, is guilty of fraud; but if this lien be an equity raised by law, and not by the act of the parties, it requires no notice. The receipt of part out of the registry of a court of admiralty, is no bar or prejudice to the residue of the claim, but the party may afterwards file his libel, and have a monition for the further sum due.' 199*] The *marshal has not done his duty under the interlocutory decree, directing him to bring the money into court. We do not insist on an actual delivery to the register, in facie curia, but that the specific proceeds should be separated from all other property, so that the decree of the court shall act upon it, without the necessity of the concurring will of the officer. The property is not to be confounded with the private funds of the officer, so that it cannot be distinguished and recovered, if he absconds; or if he dies, will be subject to a distribution of assets in the hands of his personal representative. In this case, the executor is liable, not as for a tort, but to restore funds which are not assets in his hands. 5 3 a bankrupt partner in favor of his assignees, but restored the property in solidum, leaving the assignees to their remedy in the proper forum. (3) But supposing the court would interfere to protect the pretended lien, there is no proof of its existence; or if it ever existed, it has been waived, and the distribution made *with the assent of all the parties inter- [*201 ested. The appellant has received his moiety of the gross property. And even if it were not so, the personal representative of the deceased marshal is not liable in this form. The regular course would be to proceed against the marshal himself, by motion, and a rule directing him to bring the money into court. But this proceeding could not be continued against his executors. The provisions of the judiciary act relative to the revival of suits, do not apply to this proceeding, because it cannot, upon general principles of admiralty law and practice, be continued against the personal representatives of the officer. If it could be revived against them, the relation of their testator with the court, as an officer, would cease, and it would become a common debt, subject to the ordinary course of administration. Mr. Pinkney and Mr. Wheaton, contra, (1) insisted, that the cases cited on the other side, of Jennings v. Carson, and Penhallow v. Doane, were proceedings to enforce the de- Mr. Justice LIVINGSTON delivered the opincrees of the Continental Court of Appeals, ion of the court, and after stating the facts, which had ceased to exist; similar in their nat- | proceeded as follows: This is, to say the least, ure to those cases in England where the prize commissions to certain vice-admiralty courts had expired, and application was made to the High Court of Admiralty to carry into effect their decrees. In the cases cited, the District Court had jurisdiction, because it is a court of prize of the first resort, with all the powers of 200*] the English High Court of Admiralty inherent in it; and the proceeding could be commenced nowhere else, because it is the only court of original prize jurisdiction. But the present case is a proceeding under the judiciary act, where the Supreme Court does not execute its own decrees, but sends its mandate to the Circuit, and not to the District Court; and the Circuit Court must, therefore, execute the mandate, and distribute the proceeds of the property. The property follows the cause into the Circuit, but not into the Supreme Court. (2) Here the distribution, though irregularly made by the marshal, without the special direction of the court, is precisely what the court would have made upon an application. It is a rule of the Court of Admiralty to restore, or to condemn, the gross tangible property, without regard to any liens which parties other than the general owners may have upon it. So that if the court had now to pronounce the distribution of the property, it would not enter into these minute inquiries respecting the claims of the part owners against each other, but leave them to their remedy at common law or in equity. Thus, in the case of The Jefferson, Sir W. Scott refused to sever the share of a very novel and extraordinary proceeding. The marshal, probably without any improper views, or an intention of making use of the proceeds of the vessel and cargo, disobeys the order of the judge, and instead of depositing them in the registry of the court, keeps them under his own control, and finally distributes them among the parties without any direction of the court on the subject. This was a great irregularity, but the owners of the schooner Collector and cargo have no right at this day to complain of it. They were early apprised of the situation of their *property. [*202 Two of them gave an order on the marshal for their proportion of the proceeds before any sale had taken place; and the other, who is the present appellant, received of the marshal his share before the sentence of reversal, which was pronounced here, had been made known to the court below. After this ratification, or sanction, on their part, of the irregular conduct of the marshal, neither of them ought now to be permitted to seek any other redress from him. Before any distribution of the proceeds by the marshal, they might have applied to the court to enforce obedience to its order, as it regarded the bring. ing of them into court, and then have had their respective pretensions adjudicated by the court itself. Not having proceeded in this manner, the District Court, if it have jurisdiction of the case, could not now, without great danger of doing injustice, interfere in this business. Whatever notice it might have taken of the lien, which is now set up by the appellant, on a part of these proceeds beyond his moiety, if the proceeds were still in that court, it is by no means clear, that the marshal ought now to be rendered liable to the appellant for them, there being nothing like satisfactory proof that he had notice of such a claim when the appellant took from him his moiety, nor until long after he had parted with the whole of the prop16 241 forthwith brought to the bar, and reprimanded by the speaker, and then discharged from custody: and after being thus reprimanded, was actually discharged from the arrest and custody aforesaid. erty. Under this view of the case, the court | victed of the charge aforesaid, and ordered to be is of opinion, that the appellant, under the particular circumstances of this case, is not entitled, on the merits, to any relief against the marshal. But the court is further of opinion, 203*1 *that the proceeding on the present pe- ERROR to the Circuit Court of the District tition, and that in the District Court, was coram non judice. The proceeds, therefore, of the Collector and cargo, at the time of filing the present petition and libel, even if the order of the District Court in relation to them had been complied with, could not, after the appeal, be regarded as in, or under, the control of the District Court, which was, therefore, incompetent, when this petition was filed, to make any order respecting them. Sentence affirmed with costs. of Columbia. This was an action of trespass, brought in the court below, by the plaintiff in error, against the defendant in error, for an assault and battery, and false imprisonment; to which the defendant pleaded the general issue, and a special plea of justification. The plaintiff [*205 demurred generally to the special plea, which was adjudged good, and the demurrer overruled; and judgment upon such demurrer was entered for the defendant, and a writ of error brought by the plaintiff. The question arising upon the demurrer will be best explained by giving the defendant's plea at large, as pleaded and adjudged good upon general demurrer, in the Circuit Court, viz.: By an appeal from the sentence of a district court to a circuit court, the latter becomes possessed of the cause, and executes its own judgment without any intervention of the for mer. It is fit, therefore, that the proceeds of the property, if it have been converted into money, should follow the appeal into the Circuit Court, and be deposited in such bank, or other place as it may direct, there to remain, subject to the disposition and direction of the Circuit Court. And if the property at the time of the appeal remain in specie in the marshal's custody, and any order or direction shall become necessary for its sale or preservation after an appeal, such order must emanate And the said Thomas, by the leave of the from the Circuit Court. But if a further ap- court here first had, further defends the force peal be had to the Supreme Court, the proper- and injury, when, &c. And as to the coming ty, or its proceeds, will still continue in the with force and arms, or whatsoever is against Circuit Court, because the Supreme Court, in the peace; and also as to the assaulting, beatsuch cases, does not execute its own judging, bruising, battering, and ill-treating of the ments, but sends a special mandate to the Cir- said John, in manner and form as the said John, cuit Court to award execution thereon. in his said declaration, hath above supposed to be done, the said Thomas saith that he is not guilty thereof; and of this he, as before, puts himself upon the country. And as to the imprisonment of the said John, and the keeping and detaining him in confinement, at the time in the said declaration mentioned, to wit, on the said eighth day of January, in the year one thousand eight hundred and eighteen, and for the space of two months in the said declaration mentioned, the said Thomas saith, that the said John ought not to have or maintain his action aforesaid against him, because he saith that long before and at the said time when, &c., in the introduction of this plea mentioned, and during all the time in the said declaration mentioned, a Congress of the United States was holden at the city of Washington, in the county of Washington, and District of Columbia aforesaid, and was then and there, *and [*206 during all the time aforesaid, assembled and sitting; and that long before and at the time when, &c., in the introduction of this plea mentioned, and during all the time in the said declaration mentioned, he the said Thomas was, and yet is, sergeant at arms of the House of Representatives (then and there being one of the Houses whereof the said Congress of the United States consisted), and by virtue of his said office, and by the tenor and effect of the standing rules and orders ordained and established by the said House for the determining of the rules of its proceedings, and by the force and effect of the laws and customs of the said House, and of the said Congress, was then and there, and during all the time aforesaid, 'and yet is duly authorized and required, amongst other things, to execute the commands of the said House, from time to time, together with all such process issued by authority thereof, as shall be directed to him by the speaker of the said House; and that long before, and at the time when, &c.. in the introduction of this plea mentioned, and during all the time in the dec Cited 5 Wall. 412; 20 Wall. 225; 5 Otto, 617; 2 Wood. & M. 540; 1 Ware. 361; Gilp. 40; Blatchf. Pr. 622. 204*1 [*CONSTITUTIONAL LAW.] ANDERSON v. DUNN. To an action of trespass against the sergeant at arms of the House of Representatives of the United States, for an assault and battery and false imprisonment, it is a legal justification and bar, to plead, that a Congress was held and sitting, during the period of the trespasses complained of, and that the House of Representatives had resolved that the plaintiff had been guilty of a breach of the privileges of the House, and of a high contempt of the dignity and authority of the same; and had ordered that the speaker should issue his warrant to the sergeant at arms, commanding him to take the plaintiff into custody, wherever to be found, and to have him before the said House, to answer to the said charge; and that the speaker did accordingly issue such a warrant, reciting the said resolution and order, and commanding the sergeant at arms to take the plaintiff into custody, &c., and delivered the said warrant to the defendant. By virtue of which warrant the defendant arrested the plaintiff, and conveyed him to the bar of the House, where he was heard in his defense, touching the matter of the said charge, and the examination being adjourned from day to day, and the House having ordered the plaintiff to be detained in custody, he was accordingly detained by the defendant, until he was finally adjudged to be guilty, and con laration mentioned, one Henry Clay was, and | custody the body of the said John, wherever to yet is, the speaker of the said House of Repre be found, and the same forthwith to have besentatives, and by virtue of his said office, and fore the said House, at the bar thereof, then by the tenor and effect of such standing rules and there to answer to the said charge, &c., as and orders as aforesaid, and by the force and by the journal, record, and proceedings of the effect of such laws and customs as aforesaid, said resolutions and order in the said House then and there, and during all the time afore- remaining, reference being thereto had, will said, was and yet is, amongst other things, more fully appear. Whereupon, the said duly authorized and required to subscribe with Henry Clay, so being such speaker as aforesaid, his proper hand, and to seal with his seal, all in pursuance of such standing rules and orders writs, warrants, and subpoenas issued by order as aforesaid, and according to such laws and cusof the said House; and that long before and toms as aforesaid, did, for the execution [*209 207*] *at the time when, &c., in the introduc- of the resolutions and order aforesaid, afterwards tion of this plea mentioned, and during all the and before the time when, &c., in the introductime in the said declaration mentioned, one tion of this plea mentioned, to wit, on the said Thomas Dougherty was, and yet is, the clerk seventh day of January, in the year aforesaid, of the said House of Representatives; and by at Washington aforesaid, in the county aforevirtue of his said office, and by the tenor and said, as such speaker as aforesaid, duly make effect of such standing rules and orders as and issue his certain warrant, under his hand aforesaid, and by the force and effect of such and scal, duly directed to the said Thomas, the laws and customs as aforesaid, then and there, defendant, as such sergeant at arms as aforeand during all the time aforesaid, was and yet said (to whom, so being such sergeant at arms is, amongst other things, duly authorized and as aforesaid, the execution of such warrant required to attest and subscribe with his proper then and there belonged), and by the said hand, all such writs, warrants, and subpoenas Thomas Dougherty, so being such clerk as issued by order of the said House; and that aforesaid; in and by said warrant, reciting that long before, and at the time when, &c.. in the the said House of Representatives had, that introduction of this plca mentioned, and dur- day, resolved and adjudged, that the said John ing all the time in the said declaration men- Anderson had been guilty of a breach of the tioned, and ever since, it was and yet is, privileges of the said House, and of a high amongst other things, ordained, established, contempt of its dignity and authority; and that and practiced, by and under such standing the said House had thereupon ordered the said rules and orders as aforesaid, and such laws speaker to issue his warrant, directed to the and customs as aforesaid, that all writs, war- said sergeant at arms, commanding him, the rants, subpoenas, and other process issued by. said sergeant, to take into custody the body of order of the said House, shall be under the the said John Anderson, wherever to be found. hand and seal of the said speaker of the said and the same forthwith to have before the said House, and attested by the said clerk of the House, at the bar thereof, then and there to said House; and so being under the hand and answer to the said charge; therefore, it was reseal of the said speaker, and attested by quired that the said Thomas, the defendant, as the said clerk as aforesaid, shall be exe- such sergeant as aforesaid, should take into his cuted, pursuant to the tenor and effect of the custody the body of the said John Anderson, same, by the said sergeant at arms. And the and then forthwith to bring him before the said said Thomas, the defendant, further saith, that House, at the bar thereof, then and there to the said Henry Clay, so being such speaker of answer to the charge aforesaid, and to be dealt the said House of Representatives as aforesaid, with by the said House, according to the conand the said Thomas Dougherty, so being such stitution and laws of the United States; and clerk of the same House as aforesaid, and he said *Henry Clay, so being such speaker [*210 208*] the said defendant, *so being such ser- as aforesaid, then and there, and before the geant at arms of the same House as aforesaid, said time, when, &c., in the introduction of this and the said Congress, so being assembled and plea mentioned, delivered the said warrant to sitting as aforesaid, heretofore and before the the said Thomas, so being such sergeant as said time when, &c., in the introduction of this aforesaid, to be executed in due form of law. plea mentioned, to wit, on the seventh day of By virtue, and in execution of which said warJanuary, in the year aforesaid, at Washing- rant, the said Thomas, as such sergeant as ton aforesaid, in the county and district aforesaid, afterwards, to wit, at the said time aforesaid, it was, in and by the said House, when &c., in the introduction of this plea menfor good and sufficient cause to the same appear- tioned, at Washington aforesaid, in order to ing, resolved and ordered, pursuant to the arrest the said John, and convey him in custody tenor and effect of such standing rules and or- to the bar of the said House, to answer to the ders so ordained and established as aforesaid, charge aforesaid, and to be dealt with by the and according to the force and effect of such said House, according to the constitution and laws and customs as aforesaid, that the said laws of the United States, in obedience to the John had been guilty of a breach of the priv-resolutions and order aforesaid, and to the tenor ileges of the said House, and of a high contempt and effect of the said warrant, so issued as of the dignity and authority of the same; wherefore, it was then and there, in and by the said House, further resolved and ordered, in the like pursuance of such standing rules and orders as aforesaid, and of such laws and customs as aforesaid, that the said speaker should forthwith issue his warrant, directed to the sergeant at arms, commanding him to take into aforesaid, went to the said John, and then and there gently laid his hands on the said John to arrest him, and did then and there arrest him by his body, and take him into custody, and did then forthwith convey him to the bar of the said House, as it was lawful for the said Thomas to do for the cause aforesaid; and thereupon such proceedings were had, in and by the said House, that the said John was then Thomas, and not other or different. With this, that the said Thomas doth aver that the said John, the now plaintiff, and the said John Anderson, in the said resolutions, orders, warrant, and judg ment respectively mentioned, was, and is, one and the same person; and that at the said several times in this plea mentioned, and during ail the time therein mentioned, the said Congress of the United States was assembled [*213 and sitting, to wit, at Washington aforesaid, in the county aforesaid; and this the said Thomas is ready to verify. Wherefore he prays judgment, if the said John ought to have or maintain his aforesaid action thereof against him, &c. Mr. Hall, for the plaintiff in error, made three points: 1. That the House of Representatives had no authority to issue the warrant. 2. That the warrant is illegal on the face of it. 3. That in either case, it is no justification to the officer who executed it. 1. If the House had authority, it must be either in virtue of the constitution of the United States, of usage and precedent, or as inherent in, and incidental to, legislative bodies. In the constitution there are but two clauses which can be made to serve the purpose. The first article, section eight, enables Congress to make all laws which may be necessary and proper to effectuate the powers expressly given. But it is obvious, that this merely authorizes the legis lature collectively, not one House separately, to pass certain laws, not mere occasional sentences. And the powers delegated to the United States, being in derogation of the rights of sovereign states, must be construed strictly. For the same reasons, the authority to determine the rules of its proceedings (art. 1, sec. 5) cannot be construed to operate beyond the walls of the House, except on its own *members, [*214 and its officers. It is observable, also, that this authority is coupled with an authority to punish its members for misbehaviour, and to expel a member. It is a rule of construction, that the text should be considered in connection with the context; but the context, viz., the power to punish and to expel, relates solely to the internal polity and economy of the House. The authority is to determine the rules of its proceedings, not the proceedings themselves, for these are determined by the constitution itself in the first article. The fifth section of the first article, authorizes the House to punish its members; et enumeratio unius est exclusio alterius. The power of issuing warrants is manifestly com-judicial. This may be assumed as an axiom. The constitution ordains, that the judicial power (which is equivalent to all the judicial power) shall be vested in one supreme court, and other inferior courts (art. 3, sec. 1). Thus, the right of the courts to exercise such a power, is exclusive, and an assumption of it by any other department, is an usurpation. Nor can the authority be inferred from usage and precedent. These must be, either of the two Houses of Congress, the state legislatures, or the British Parliament. On the journals of the House of Representatives, are found the cases of Randal and Whitney, and two others. On those of the 1.-2 Mass. Rep. 146. 3. If there be either a defect of authority in the House, or illegality in the warrant, it is no justification. That it is none in the former case, has long since been settled in this [*217 court. As to the latter alternative of the proposition, the constitution, by prohibiting an act, renders it void, if done; otherwise, the prohibition were. nugatory. Thus, the warrant is a nullity. The rights of Congress on the subject of contempts, have been considered similar, and equal to those of the federal courts. But here we must recur again to the maxim, that when the constitution adopts a term from the common law, it adopts, also, its incidents. At common law, the power to punish contempt is incident to courts. But "Congress," and the "House of Representatives," being terms unknown to the common law, can derive no claims through it. Courts enforce the laws; they must, therefore, be clothed with authority to compel obedience to them; whereas, the legislature is merely deliberative. But, it is asked, are the members to be insulted with impunity, in a manner which will not authorize the interference of a court? If the insolence be merely by words or gestures, not amounting to slander or assault, the genius of our institutions does not admit of its punishment. Privilege of Congress is reduced by the sixth section, art. 1, of the constitution, to exemption from arrest, and freedom of speech. From the nature of the enumerated privileges, it is evident that the sole object of giving them was to prevent interruption of the business of the Houses, not to render the person and feelings of members more sacred than those of other citizens. An attempt to bribe a member may be [*218 made in Maine or Missouri. The Speaker's warrant may be issued on a mere allegation without oath, commanding the sergeant at arms to arrest the accused wherever found," and bring him to the bar of the House. So that he may be dragged from the extreme of the Union, to be tried by a legislative body. Yet the constitution (art. 3, sec. 2) provides, that "the trial of all crimes shall be by jury; and that such trial shall be held in the state and district where the offense was committed;" and, also, (art. 5, amendments,) that "no person shall be held to answer for an infamous crime, Senate, is the case of the editor of the Aurora, &c. Shall we be told that these proceedings were acquiesced in? The want of spirit in the individual to resist oppression, cannot fairly be construed into acquiescence on the part of the 215*] public; since that resistance *could be made only by the person immediately affected. As to the usage of the state legislatures, it is either under color of their unlimited powers, of express provisions in their constitution, or of the common law and the usage of Parliament. In this case, unlimited powers and express provision are not pretended; the penal code of the common law is no part of the federal system. Is, then, the authority incident to legislative bodies? An incident is defined, "a thing necessarily depending upon, or appertaining to, another that is more worthy, or principal. So the constitution of the United States (art. 1, sec. 8), when regulating the incidental powers of Congress, authorizes it to make such law only as may be "necessary" to effectuate the express powers. Necessity, then, is the criterion of incident. But is a power to punish the offer of a bribe beyond the verge of the House necessary to enable Congress to perform its duties? The impunity of the offense being the only possible reason of the necessity, if the offender may be adequately punished by the courts of justice in the ordinary mode of pro ceeding, the supposed necessity ceases. Bribery of a member of Congress is punishable in the state courts, and in the Circuit Court of the District of Columbia, according to the course of the common law. Redress may also be had before the same tribunals, in case of the battery or libel of a member; and if the existing remedies be insufficient, an act of Congress may be made to supply the deficiency. And though the ordinary remedies should not reach every possible case, it is a rule, that "if the 216*] *words of a statute do not extend to a mischief which rarely occurs, they shall not, by an equitable construction, be extended to that mischief; but it is a casus omissus; and the objects of statutes, are mischiefs, qua fraquentius accidunt.” It is evident, that the framers of the constitution deemed it more prudent to leave such mere possible mischiefs unprovided for, than to incur a certain evil by vesting an extraordinary and dangerous pre-except on the presentment or indictment of a rogative for their suppression. 2. The warrant is illegal on the face of it. By the fourth article of the amendments to the constitution, it is provided, that "no warrant shall issue but on probable cause, supported by oath or affirmation." Thus are prohibited all warrants which do not rest on oath, and on probable cause. But it is no less necessary that the warrant should recite the cause in special and the oath. The constitution is not satisfied with "a cause so vague and indefinite, as "high contempt and breach of privilege.' When it adopts a term from the common law, it adopts, also, the law regulating its incidents and properties, unless repugnant to that instru ment. Now, what are the incidents and properties of a warrant at common law? It is said by Dalton, that "the warrant ought to contain the special cause and matter whereupon it is granted." 1.-Vaugh. 373. 2-Dalton's Sheriff, 169. grand jury; nor shall be deprived of liberty without due process of law." And further, that "in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district." It is only necessary to compare the conduct of the House of Representatives, in the case at bar, with these provisions, in order to perceive its gross injustice and illegality. The Attorney-General and Mr. Jones, contra, stated, that the only question before the court was, whether the House of Representatives could exercise the power in question, either as incidental to its legislative, or its judicial capacity. 1. The House being one branch of the legislature, no legislative act can be performed without its concurrence, and therefore an attack upon it, is an attack upon the whole Congress. The necessity of self 3.-Little v. Barreme, 2 Cranch, 179. |