The questions here presented for determination grow out of an inquiry instituted by the United States Senate in respect of the validity of the election of a United States Senator from Pennsylvania in November, 1926. The inquiry began before the election, immediately after the conclusion of the primaries, by the adoption of a resolution appointing a special committee to investigate expenditures, promises, etc., made to influence the nomination of any person as a candidate or promote the election of any person as a member of the Senate at the general election to be held in November, 1926.
After the Pennsylvania primaries, Cunningham was subpoenaed and appeared before this committee. Among other things, he testified that he was a member of an organization which supported William. S. Vare for Senator at the primary election; that he had given to the chairman of the organization $50,000 in two installments of $25,000 each prior to the holding of the primaries. He had been clerk of a court for 21 years and was then receiving a salary of $8,000 a year. He paid the money to the chairman in cash, but refused to say where he obtained it, except that he had not drawn it from a bank. He would not say how long the money had been in his possession; said he had never inherited any, but declined to answer whether he had made money in speculation. In short, he declined to give any information in respect of the sources of the money, insisting that it was his own, and the question where he had obtained it was a personal matter. He further said that he had learned the trick from a former Senator of 'saving money and putting it away and keeping it under cover'; that this Senator 'was a past master in not letting his right hand know what his left hand done, and he dealt absolutely in cash. The 'long green' was the issue.'
Mr. Vare was nominated and elected at the succeeding November election. The special committee thereafter submitted a partial report in respect of Cunningham's refusal to testify. In January, 1927, Vare's election having been contested by William B. Wilson upon the ground of fraud and unlawful practices in connection with the nomination and election, the Senate adopted a resolution further authorizing the special committee to take possession of ballot boxes, tally sheets, etc., and to preserve evidence in respect of the charges made by Wilson. In February, 1927, Cunningham was recalled, and, questions previously put to him having been repeated, he again refused to give the information called for, as he had done at the first hearing.
At the opening of Congress in December, 1927, the Senate adopted an additional resolution, reciting among other things, that there were numerous instances of fraud and corruption in behalf of Vare's candidacy, and that there had been expended in his behalf at the primary election a sum exceeding $785,000. Expenditure of such a large sum of money was declared to be contrary to sound public policy, and the special committee was directed to inquire into the claim of Vare to a seat in the Senate, to take evidence in respect thereto, and report to the Senate; in the meantime, it was resolved, Vare should be denied a seat in the Senate. By a subsequent resolution, the committee on privileges and elections was directed to hear and determine the contest between Vare and Wilson.
The special committee, in March, 1928, reported its proceedings, including testimony given by Cunningham, recited his refusal to give information in response to questions, as hereinbefore set forth, and recommended that he be adjudged in contempt of the committee and of the Senate. The Senate, however, did not adopt the recommendation of the committee, but, instead, passed a resolution reciting Cunningham's contumacy and instructing the President to issue his warrant commanding the sergeant-at-arms or his deputy to take the body of Cunningham into custody, and to bring him before the bar of the Senate, 'then and there or elsewhere, as it may direct, to answer such questions pertinent to the matter under inquiry as the Senate, through its said committee, or the President of the Senate, may propound, and to keep the said Thomas W. Cunningham in custody to await further order of the Senate.' The warrant was issued and executed, and thereupon Cunningham brought a habeas corpus proceeding in the federal District Court for the Eastern District of Pennsylvania.