Article 1, Section 5, Clauses 1--4

Document 22

Benjamin F. Butler, Punishment by the House of Representatives No Bar to an Indictment

25 June 18342 Ops. Atty. Gen. 655

Sir: In answer to the question submitted to me on the memorial of General Houston, who appears to have been indicted, convicted, and fined in the criminal court of this District, for an assault on the person of a member of the House of Representatives, after having been previously punished by that House for the same act, as a contempt and breach of privilege, I have the honor to state that, in my opinion, the proceedings of the House constituted no bar to the subsequent indictment and conviction. The fifth amendment to the constitution of the United States, which provides that no person "shall be subject, for the same offence, to be twice put in jeopardy of life or limb," does not apply to cases of this sort. Courts, and other bodies which have the power of punishing for contempts, are invested with that power, and are supposed to employ it, for the purpose of protecting themselves in the due exercise of their appropriate functions, and not for the purpose of vindicating the general law of the land, which may also have been violated by the same act. Technically, therefore, General Houston has not been twice tried for the same offence. The act committed by him was one and the same, and it constituted but one indictable offence; and he was, therefore, liable to only one conviction on indictment. But, if this act was also a breach of the privileges of the House of Representatives, and a contempt of the House, they had the right to punish him for the contempt independently of the action of the criminal court; and so vice versa.

The Founders' Constitution
Volume 2, Article 1, Section 5, Clauses 1--4, Document 22
The University of Chicago Press

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