This Court is not required to exercise the power conferred upon
it by Rev.Stat. §§ 751-753, to inquire upon writ of habeas corpus
into the cause of the restraint of the liberty of any person who is
in jail under or by color of the authority of the United States, or
who is in custody in violation of the Constitution of the United
States, if it appears upon the petitioner's own showing that if
brought into court and the cause of his commitment inquired into,
he would be remanded to prison.
The power of circuit courts of the United States to punish
contempts of their authority is incidental to their general power
to exercise judicial functions, and the cases in which it may be
employed are defined by acts of Congress.
Page 128 U. S. 290
An order committing for contempt is a nullity if the court
making it was without jurisdiction of the person of the offender
and he can be discharged upon writ of habeas corpus, though such
writ cannot be used to correct mere errors and irregularities
however flagrant.
Upon original application to this Court for a writ of habeas
corpus on behalf of a person committed by order of a circuit court
of the United States for contempt committed in its presence, the
facts recited in such order as constituting the contempt must be
taken as true, and would be so taken upon a return to the writ if
one were awarded.
A circuit court of the United States, upon the commission of a
contempt in its presence, may, upon its own knowledge of the facts,
without further proof, without issue or trial (and without hearing
an explanation of the motives of the offender), immediately proceed
to determine whether the facts justify punishment, and to inflict
such punishment therefor as the law allows.
The jurisdiction of a circuit court to immediately inflict
punishment for a contempt committed in its presence is not defeated
by the voluntary retirement of the offender from the courtroom to a
neighboring room in the same building after committing the offense;
but it is within the discretion of the court either to at once make
an order of commitment founded on its own knowledge of the facts or
to postpone action until the offender can be arrested on process,
brought back into its presence, and given an opportunity to make
formal defense against the charge of contempt, and any abuse of
that discretion is, at most, an irregularity or error not affecting
the jurisdiction of the court.
The facts in this case, as detailed in the papers before the
Court and as they must be regarded in this collateral proceeding,
show nothing in conflict with the fundamental principles of Magna
Charta nor do they show that the alleged offense was committed at a
time preceding and separated from the commencement of the
prosecution, but, on the contrary, the commission of the contempt,
the retirement of the offender from the courtroom to the marshal's
office in the same building, and the making of the order of
commitment all took place substantially on the same occasion, and
constituted in legal effect one continuous complete transaction,
occurring on the same day and at the same session of the court.
This was an application for leave to file a petition for a writ
of habeas corpus. The petitioner alleged that he was unlawfully
undergoing a term of imprisonment in California under a judgment
rendered by the Circuit Court of the United States for the Northern
District of that state adjudging that he had been guilty of
contempt in the presence of the court and ordering him to be
punished therefor by imprisonment in the County Jail of the County
of Alameda in that state until the further order of the court, but
not to exceed the term of six
Page 128 U. S. 291
months. This order, which recited the facts constituting the
contempt, is set forth at length in the application for leave to
file the petition, and will be found, together with the petition,
in the opinion of the Court, below. Reference is made to both the
petition and the order there for a further understanding of the
case.
Page 128 U. S. 297
MR. JUSTICE HARLAN, after stating the facts in the foregoing
language, delivered the opinion of the Court.
This is an original application to this Court for a writ of
habeas corpus. The petitioner, David S. Terry, alleges that he is
unlawfully imprisoned, under an order of the Circuit Court of the
United States for the Northern District of California, in the jail
of Alameda County in that state. That order is made a part of his
application, and is as follows:
"
In the Circuit Court of the United States of
America"
"
for the Northern District of California"
"
I
n the Matter of Contempt of DAVID S. TERRY. In open court."
"Whereas, on this 3d day of September, 1888, in open court, and
in the presence of the judges thereof, to-wit, Hon. Stephen J.
Field, Circuit Justice, presiding; Hon. Lorenzo
Page 128 U. S. 298
Sawyer, Circuit Judge, and Hon. George M. Savin, District Judge,
during the session of said court and while said court was engaged
in its regular business hearing and determining causes pending
before it, one Sarah Althea Terry was guilty of misbehavior in the
presence and hearing of said court,"
"And whereas said court thereupon duly and lawfully ordered the
United States marshal, J. C. Franks, who was then present, to
remove the said Sarah Althea Terry from the courtroom,"
"And whereas the said United States marshal then and there
attempted to enforce said order, and then and there was resisted by
one David S. Terry, an attorney of this Court, who, while the said
marshal was attempting to execute said order in the presence of the
court, assaulted the said United States marshal and then and there
beat him, the said marshal, and then and there wrongfully and
unlawfully assaulted said marshal with a deadly weapon with intent
to obstruct the administration of justice and to resist such United
States marshal and the execution of the said order,"
"And whereas the said David S. Terry was guilty of a contempt of
this Court by misbehavior in its presence and by a forcible
resistance in the presence of the court to a lawful order thereof
in the manner aforesaid,"
"Now therefore be it ordered and adjudged by this Court that the
said David S. Terry, by reason of said acts, was and is guilty of
contempt of the authority of this Court committed in its presence
on this 3d day of September, 1888,"
"And it is further ordered that the said David S. Terry be
punished for said contempt by imprisonment for the term of six
months,"
"And it is further ordered that this judgment be executed by
imprisonment of the said David S. Terry in the County Jail of the
County of Alameda, in the State of California, until the further
order of this Court, but not to exceed said term of six
months,"
"And it is further ordered that a certified copy of this order,
under the seal of the court, be process and warrant of executing
this order. "
Page 128 U. S. 299
The petition alleges that
"Said order was made by said court in the absence of your
petitioner, and without his having any notice of the intention of
said court to take any proceeding whatever in relation to the
matters referred to in said order, and without giving your
petitioner any opportunity whatever of being heard in defense of
the charges therein made against him."
The petition proceeds:
"And your petitioner further showeth that on the 12th day of
September, 1888, he addressed to the said circuit court a petition,
duly verified by his oath, in the words and figures following,
to-wit:"
"
In the Circuit Court of the United States, Ninth
Circuit"
"
Northern District of California"
"
I
n the Matter of Contempt of David S. Terry"
"To the honorable circuit court aforesaid:"
" The petition of David S. Terry respectfully represents that in
all the matters and transactions occurring in the said court on the
3d day of September inst. upon which the order in this matter was
based, your petitioner did not intend to say or do anything
disrespectful to said court or the judges thereof, or to anyone of
them; that when petitioner's wife, the said Sarah Althea Terry,
first arose from her seat, and before she uttered a word, your
petitioner used every effort in his power to cause her to resume
her seat and remain quiet, and he did nothing to encourage her in
her acts of indiscretion; when this Court made the order that
petitioner's wife be removed from the courtroom, your petitioner
arose from his seat with the purpose and intention of himself
removing her from the courtroom quietly and peaceably, and had no
intention or design of obstructing or preventing the execution of
the said order of the court; that he never struck or offered to
strike the United States marshal until the said marshal had
assaulted himself, and had in his presence violently, and, as he
believed, unnecessarily assaulted petitioner's wife."
" Your petitioner most solemnly avers that he neither drew
Page 128 U. S. 300
or attempted to draw any deadly weapon of any kind whatever in
said courtroom, and that he did not assault or attempt to assault
the United States marshal with any deadly weapon in said courtroom
or elsewhere. And in this connection, he respectfully represents
that after he had left said courtroom, he heard loud talking in one
of the rooms of the United States marshal, and among the voices
proceeding therefrom he recognized that of his wife, and he
thereupon attempted to force his way into said room through the
main office of the United States marshal. The door of this room was
blocked with such a crowd of men that the door could not be closed.
That your petitioner then for the first time drew from inside his
vest a small sheath knife, at the same time saying to those
standing in his way in said door that he did not want to hurt
anyone; that all he wanted was to get in the room where his wife
was. The crowd then parted, and your petitioner entered the
doorway, and there saw a United States deputy marshal, with a
revolver in his hand, pointed to the ceiling of the room. Someone
then said, 'Let him in if he will give up his knife,' and your
petitioner immediately released hold of the knife to someone
standing by."
" In none of these transactions did your petitioner have the
slightest idea of showing any disrespect to this honorable court or
any of the judges thereof."
" That he lost his temper, he respectfully submits, was a
natural consequence of himself being assaulted when he was making
an honest effort to peacefully and quietly enforce the order of the
court so as to avoid a scandalous scene, and of seeing his wife so
unnecessarily assaulted in his presence."
" Wherefore your petitioner respectfully requests that this
honorable court may, in the light of the facts herein stated,
revoke the order made herein committing him to prison for six
months."
" And your petitioner will ever pray, etc."
" Dated September 12, 1888."
The petitioner states that on the 17th of September, 1888, the
circuit court "declined and refused to grant your petitioner the
relief prayed for, or any other relief."
Page 128 U. S. 301
He also insists in his petition that the
"circuit court had no jurisdiction of his person at the time it
made the order hereinbefore set forth, and possessed no lawful
power to make said order, and that he was entitled to be relieved
from his said imprisonment upon the filing of the petition
aforesaid, and that said order of said court is other wise illegal
and unwarranted by the law of the land."
That he may be relieved of said detention and imprisonment, he
prays that he may be forthwith brought before this Court upon writ
of habeas corpus, to do, submit to, and receive what the law may
require.
The above presents that entire case made by the application
before us.
There can be no dispute either as to the power or duty of this
Court in cases of this character. Its power to issue a writ of
habeas corpus for the purpose of inquiring into the cause of the
restraint of the liberty of the person in whose behalf the writ is
asked is expressly conferred by statute, and extends to the cases,
among others, of prisoners in jail under or by color of the
authority of the United States, and of persons who are in custody
in violation of the Constitution or laws of the United States.
Rev.Stat. §§ 751-753. Its general duty in such cases is also
prescribed by statute. Upon complaint in writing, signed by and
verified by the oath of the person for whose relief it is intended,
setting forth the facts concerning the detention of the party
restrained, in whose custody he is detained, and by virtue of what
claim or authority, if known, it is the duty of the court to
"forthwith award a writ of habeas corpus unless it appears from the
petition itself that the party is not entitled thereto." Rev.Stat.
§§ 754, 755. The writ need not therefore be awarded if it appear
upon the showing made by the petitioner that, if brought into court
and the cause of his commitment inquired into, he would be remanded
to prison.
Ex Parte
Kearney, 7 Wheat. 38,
20 U. S. 45;
Ex Parte
Watkins, 3 Pet. 193,
28 U. S. 201;
Ex Parte
Milligan, 4 Wall. 2, 11 [argument of counsel --
omitted].
It is proper in this connection to say that since the passage of
the Act of March 3, 1885, c. 353, 23 Stat. 437, amending
Page 128 U. S. 302
section 764 of the Revised Statutes so as to give this Court
jurisdiction, upon appeal, to review the final decisions of the
circuit courts of the United States in cases of habeas corpus when
the petitioner alleges that he is restrained of his liberty in
violation of the Constitution or laws of the United States, the
right to the writ, upon original application to this Court, is not
in every case an absolute one. In
Wales v. Whitney,
114 U. S. 564, it
appears that a direct application to this Court for the writ, after
a decision adverse to the petitioner in the Supreme Court of the
District of Columbia was abandoned on the suggestion that he could
bring that decision to this Court for review under the act of 1885,
and it was brought here under that statute. In
Ex Parte
Royall, 117 U. S. 241,
117 U. S. 250,
upon appeal from a decision of a circuit court of the United States
refusing to award the writ to one alleging that he was restrained
of his liberty in violation of the Constitution of the United
States by an order of a state court, in which he stood indicted for
an alleged offense against the laws of such state, it was held that
while the circuit court had power to grant the writ and discharge
the accused in advance of his trial under the indictment, it was
not bound to exercise that power immediately upon application's
being made for the writ, but could await the result of the trial,
and in its discretion, as the special circumstances of the case
might require, put the petitioner to his writ of error from the
highest court of the state. In
Sawyer's Case, 124 U.
S. 200, this Court entertained an original application
for a writ of habeas corpus without requiring the petitioner to
apply in the first instance to the proper circuit court; but in
that case, as in this, the application proceeded upon the ground
that the circuit court itself had made the order by which he was
alleged to have been deprived of his liberty in violation of the
Constitution of the United States.
Nor can there be any dispute as to the power of a circuit court
of the United States to punish contempts of its authority. In
United States v.
Hudson, 7 Cranch 34, it was held that the courts of
the United States, from the very nature of their institution,
possess the power to fine for contempt,
Page 128 U. S. 303
imprison for contumacy, enforce the observance of order, etc. In
Anderson v.
Dunn, 6 Wheat. 204,
19 U. S. 227,
it was said that
"courts of justice are universally acknowledged to be vested, by
their very creation, with power to impose silence, respect, and
decorum in their presence, and submission to their lawful
mandates."
So, in
Ex Parte
Robinson, 19 Wall. 505,
86 U. S.
510:
"The power to punish for contempts is inherent in all courts.
Its existence is essential to the preservation of order in judicial
proceedings and to the enforcement of the judgments, orders, and
writs of the courts, and consequently to the due administration of
justice. The moment the courts of the United States were called
into existence and invested with jurisdiction over any subject,
they became possessed of this power."
Ex Parte
Bollman, 4 Cranch 75,
8 U. S. 94; Story,
Constitution § 1774; Bac.Ab. "Courts," E. And such is the
recognized doctrine in reference to the powers of the courts of the
several states. "The summary power to commit and punish for
contempts tending to obstruct or degrade the administration of
justice," the Supreme Judicial Court of Massachusetts well said, in
Cartwright's Case, 114 Mass. 230, 238,
"is inherent in courts of chancery and other superior courts as
essential to the execution of their powers and to the maintenance
of their authority, and is part of the law of the land within the
meaning of Magna Charta and of the twelfth article of our
declaration of rights."
The declaration of rights here referred to was that which formed
part of the Constitution of Massachusetts, and contained the
prohibition, inserted in most of the American constitutions,
against depriving any person of life, liberty, or estate, except by
the judgment of his peers, or the law of the land. So, in
Cooper's Case, 32 Vt. 253, 257:
"The power to punish for contempt is inherent in the nature and
constitution of a court. It is a power not derived from any
statute, but arising from necessity; implied because it is
necessary to the exercise of all other powers."
Without such power, it was observed in
Easton v. State,
39 Ala. 552, the administration of the law would be in continual
danger of being thwarted by the lawless. To the same effect are
Watson v. Williams, 36 Miss. 331, 344;
Page 128 U. S. 304
Johnston v. Commonwealth, 1 Bibb, 598;
Clark v.
People, Breese (1 Ill.) 266;
Commonwealth v.
Dandridge, 2 Va.Cas. 408;
Ex Parte Hamilton, 51 Ala.
68;
Redman v. State, 28 Ind. 212;
People v.
Turner, 1 Cal. 153;
State v. Morrill, 16 Ark. 388,
and numerous cases cited in note to
Clark v. People, ubi
supra, in 12 Amer.Dec. 178.
See also Queen v. Lefroy,
L.R. 8 Q.B. 134. But this power, so far as the circuit courts of
the United States are concerned, is not simply incidental to their
general power to exercise judicial functions. It is expressly
recognized, and the cases in which it may be exercised are defined,
by acts of Congress. They have power, by statute,
"to punish, by fine or imprisonment at the discretion of the
court, contempts of their authority, provided that such power to
punish contempts shall not be construed to extend to any cases
except the misbehavior of any person in their presence or so near
thereto as to obstruct the administration of justice, the
misbehavior of any of the officers of said courts in their official
transactions, and the disobedience or resistance by any such
officer or by any party, juror, witness, or other person to any
lawful writ, process, order, rule, decree, or command of the said
courts."
Rev.Stat. § 725; 1 Stat. 83; 4 Stat. 487.
With these observations as to the power and duty of the courts
of the United States, when applied to for writs of habeas corpus,
we proceed to the consideration of the general question as to
whether the petition in this case shows that the prisoner is or is
not entitled to the writ. The contention of his counsel is that the
circuit court failed to take such steps as were necessary to give
jurisdiction of the person of the prisoner at the time the order
was made committing him to jail for contempt, and therefore that
the order was illegal, and the writ should be awarded. If this
position is sound, the conclusion stated would necessarily follow,
for while the writ may not be used to correct mere errors or
irregularities, however flagrant, committed within the sphere of
the authority of the court, it is an appropriate writ to obtain the
discharge of one imprisoned under the order of a court of the
United States which does not possess jurisdiction of the person or
of the subject
Page 128 U. S. 305
matter.
Ex Parte
Lange, 18 Wall. 163;
Ex Parte Parks,
93 U. S. 18;
Ex
Parte Siebold, 100 U. S. 371;
Ex Parte Rowland, 104 U. S. 604;
Ex Parte Curtis, 106 U. S. 371;
In re Ayers, 123 U. S. 443,
123 U. S. 485;
In re Sawyer, 124 U. S. 200,
124 U. S. 221;
Harvey v.
Tyler, 2 Wall. 328,
69 U. S. 345;
Ex Parte Fisk, 113 U. S. 713,
113 U. S. 718.
In this last case, it was said that when
"a court of the United States undertakes, by its process of
contempt, to punish a man for refusing to comply with an order
which that court had no authority to make, the order itself, being
without jurisdiction, is void, and the order punishing for the
contempt is equally void. It is well settled now in the
jurisprudence of this Court that when the proceeding for contempt
in such a case results in imprisonment, this Court will, by its
writ of habeas corpus, discharge the prisoner."
A judgment which lies without the jurisdiction of a court, even
one of superior jurisdiction and general authority, is, upon reason
and authority, a nullity.
This question, it must be here observed, does not involve an
inquiry into the truth of the specific facts recited in the order
of commitment as constituting the contempt. As the writ of habeas
corpus does not perform the office of a writ of error or an appeal,
these facts cannot be reexamined or reviewed in this collateral
proceeding. They present a case which, so far as the subject matter
is concerned, was manifestly within the jurisdiction of the circuit
court. Notwithstanding the statements made in the petition
addressed to the circuit court on the 12th of September as to what
the petitioner did, and as to what he did not do on the occasion
referred to in the order of commitment, it must be taken as true
upon the present application, and would be taken as true upon a
return to the writ if one were awarded, that on the 3d of
September, 1888, Mrs. Terry was guilty of misbehavior in the
presence of the judges of the circuit court while they were engaged
in the hearing and determination of causes pending before it; that
the court thereupon ordered the marshal to remove her from the
courtroom; that the petitioner, an attorney and therefore an
officer of the court, resisted the enforcement of the order by
beating the marshal and by assaulting him with a deadly
Page 128 U. S. 306
weapon with intent to obstruct the administration of justice and
the execution of said order. It must also be taken as true upon the
present application that what the petitioner characterizes as
self-defense against an assault of the marshal, but which the
circuit court in its order of commitment expressly finds, upon its
personal view of the facts, was violence and misconduct upon his
part, occurred in its immediate presence, for if it were competent
in this proceeding for the petitioner to contradict that fact, this
has not been done. While in his petition to this Court he disputes
the jurisdiction of the circuit court of his person at the time he
was imprisoned, his petition addressed to that court on the 12th of
September, and made part of the present application, makes no
question as to the alleged contempt's having been committed in the
presence of the circuit court, and only puts in issue the principal
facts recited in the order of commitment as constituting the
contempt for which he was punished. Those facts necessarily entered
into the inquiry by the circuit court as to whether the prisoner
was or was not guilty of contempt, and this Court cannot, in this
proceeding, in virtue of any power conferred upon it by existing
legislation, go behind the determination of them by that court. It
can deal only with such defects in the proceedings as render them
not simply erroneous or irregular, but absolutely void.
Ex Parte
Robinson, 19 Wall. 505,
86 U. S. 511;
Ex Parte
Kearney, 7 Wheat. 38,
20 U. S. 43.
What then are the grounds upon which the petitioner claims that
the circuit court was without jurisdiction to make the order
committing him to jail? They are: 1. that the order was made in his
absence; 2. that it was made without his having had any previous
notice of the intention of the court to take any steps whatever in
relation to the matters referred to in the order; 3. that it was
made without giving him any opportunity of being first heard in
defense of the charges therein made against him.
The second and third of these grounds may be dismissed as
immaterial in any inquiry this Court is at liberty, upon this
original application, to make, for, upon the facts recited in the
order of September 3d showing a clear case of contempt
Page 128 U. S. 307
committed in the face of the circuit court, which tended to
destroy its authority, and by violent methods to embarrass and
obstruct its business, the petitioner was not entitled, of absolute
right, either to a regular trial of the question contempt, or to
notice by rule of the court's intention to proceed against him, or
to opportunity to make formal answer to the charges contained in
the order of commitment. It is undoubtedly a general rule in all
actions, whether prosecuted by private parties or by the government
-- that is, in civil and criminal cases -- that
"a sentence of a court pronounced against a party without
hearing him or giving him an opportunity to be heard is not a
judicial determination of his rights, and is not entitled to
respect in any other tribunal."
Windsor v. McVeigh, 93 U. S. 274,
93 U. S. 277.
But there is another rule of almost immemorial antiquity and
universally acknowledged, which is equally vital to personal
liberty and to the preservation of organized society, because upon
its recognition and enforcement depend the existence and authority
of the tribunals established to protect the rights of the citizen,
whether of life, liberty, or property, and whether assailed by the
illegal acts of the government or by the lawlessness or violence of
individuals. It has relation to the class of contempts which, being
committed in the face of a court, imply a purpose to destroy or
impair its authority, to obstruct the transaction of its business,
or to insult or intimidate those charged with the duty of
administering the law. Blackstone thus states the rule:
"If the contempt be committed in the face of the court, the
offender may be instantly apprehended and imprisoned at the
discretion of the judges, without any further proof or examination.
But in matters that arise at a distance, and of which the court
cannot have so perfect a knowledge, unless by the confession of the
party or the testimony of others, if the judges upon affidavit see
sufficient ground to suspect that a contempt has been committed,
they either make a rule on the suspected party to show cause why an
attachment should not issue against him or, in very flagrant
instances of contempt, the attachment issues in the first instance,
as it also does if no sufficient cause be shown to discharge, and
thereupon the
Page 128 U. S. 308
court confirms and makes absolute the original rule."
4 Bl.Com. 286. In Bacon's Abridgment, title "Courts," E, it is
laid down that
"every court of record, as incident to it, may enjoin the people
to keep silence, under a pain, and impose reasonable fines, not
only on such as shall be convicted before them of any crime on a
formal prosecution, but also on all such as shall be guilty of any
contempt in the face of the court, as by giving opprobrious
language to the judge or obstinately refusing to do their duty as
officers of the court, and immediately order them into
custody."
"It is utterly impossible," said Abbott, C.J., in
Rex v.
Davison, 4 Barn. & Ald. 329, 333,
"that the law of the land can be properly administered if those
who are charged with the duty of administering it have not power to
prevent instances of indecorum from occurring in their own
presence. That power has been vested in the judges not for their
personal protection, but for that of the public. And a judge will
depart from his bounden duty if he forbears to use it when
occasions arise which call for its exercise."
To the same effect are the adjudications by the courts of this
country. In
State v. Woodfin, 5 Iredell's Law 199, where a
person was fined for a contempt committed in the presence of the
court, it was said:
"The power to commit or fine for contempt is essential to the
existence of every court. Business cannot be conducted unless the
court can suppress disturbances, and the only means of doing that
is by immediate punishment. A breach of the peace
in facie
curiae is a direct disturbance and a palpable contempt of the
authority of the court. It is a case that does not admit of delay,
and the court would be without dignity that did not punish it
promptly and without trial. Necessarily there can be no inquiry
de novo in another court as to the truth of the fact.
There is no mode provided for conducting such an inquiry. There is
no prosecution, no plea, nor issue upon which there can be a
trial."
So, in
Whittem v. State, 36 Ind. 211:
"Where the contempt is committed in the presence of the court
and the court acts upon view, and without trial, and inflicts the
punishment, there will be no charge, no plea, no issue, and no
trial, and the record that
Page 128 U. S. 309
shows the punishment will also show the offense, and the fact
that the court had found the party guilty of the contempt. On
appeal to this Court, any fact found by the court below would be
taken as true, and every intendment would be made in favor of the
action of the court."
Again, in
Ex Parte Wright, 65 Ind. 508, the court,
after observing that a direct contempt is an open insult in the
face of the court to the persons of the judges while presiding, or
a resistance to its powers in their presence, said:
"For a direct contempt, the offender may be punished instantly
by arrest and fine or imprisonment, upon no further proof or
examination than what is known to the judges by their senses of
seeing, hearing,"
etc. 4 Stephens Com.Bk. 6, c. 15; 1 Tidd's Practice, 9th ed.
London, 1828, 479-480;
Ex Parte Hamilton, 51 Ala. 68;
People v. Turner, 1 Cal. 155.
It is true, as counsel suggest, that the power which the court
has of instantly punishing, without further proof or examination,
contempts committed in its presence is one that may be abused, and
may sometimes be exercised hastily or arbitrarily. But that is not
an argument to disprove either its existence or the necessity of
its being lodged in the courts. That power cannot be denied them
without inviting or causing such obstruction to the orderly and
impartial administration of justice as would endanger the rights
and safety of the entire community. What was said in
Ex Parte
Kearney, 7 Wheat. 38,
20 U. S. 45, may
be here repeated:
"Wherever power is lodged, it may be abused. But this forms no
solid objection against its exercise. Confidence must be reposed
somewhere, and if there should be an abuse, it will be a public
grievance for which a remedy may be applied by the legislature, and
is not to be devised by courts of justice."
It results from what has been said that it was competent for the
circuit court, immediately upon the commission, in its presence, of
the contempt recited in the order of September 3d to proceed upon
its own knowledge of the facts, and punish the offender, without
further proof and without issue or trial in any form. It was not
bound to hear any explanation of his motives, if it was satisfied
-- and we must conclusively presume
Page 128 U. S. 310
from the record before us that it was satisfied from what
occurred under its own eye and within its hearing -- that the ends
of justice demanded immediate action, and that no explanation could
mitigate his offense or disprove the fact that he had committed
such contempt of its authority and dignity as deserved instant
punishment. Whether the facts justified such punishment was for
that court to determine under its solemn responsibility to do
justice and to maintain its own dignity and authority.
In re Chiles,
22 Wall. 157,
89 U. S. 168.
Its conclusion upon such facts, we repeat, is not, under the
statutes regulating the jurisdiction of this Court, open to inquiry
or review in this collateral proceeding. If we were to indulge in
any presumption as to what actually occurred when the marshal
proceeded in the execution of the order to remove Mrs. Terry from
the courtroom, we must presume that the circuit court fully
considered the statements contained in the petition of September
12th, and, knowing them to be inaccurate or untrue, refused to set
aside or modify its previous order of commitment. Its action in
that regard cannot be revised or annulled by this Court upon an
original application for habeas corpus.
But it is contended that the order of September 3d was void
because, as alleged in the present application for the writ of
habeas corpus, it was made in the "absence" of the petitioner. In
considering this suggestion, it must not be forgotten that the
order of imprisonment shows, and the fact is not asserted to be
otherwise, that it was made and entered on the same day on which,
and presumably at the same session of the court at which, the
contempt was committed, and there is no claim that any more time
intervened between the commission of the contempt and the making of
the order than was reasonably required to prepare and enter in due
form such an order as the court, upon consideration, deemed proper
or necessary. Indeed, the petition of September 12, made part of
the present application, shows that the petitioner, after his
personal conflict with the marshal in the presence of the judges,
voluntarily left the courtroom, and with drawn knife forced his way
into another room in the same building occupied
Page 128 U. S. 311
by the marshal, and to which, we presume, the latter, in
executing the order above referred to, had removed Mrs. Terry.
There is no pretense that the petitioner left the building in which
the court was held before the order of commitment was passed.
The precise question, therefore, to be now determined is whether
the retirement of the petitioner from the courtroom into another
room of the same building, after he had been guilty of misbehavior
in the presence of the court and had violently obstructed the
execution of its lawful order, defeated the jurisdiction which it
possessed at the moment the contempt was committed to order his
immediate imprisonment without other proof than that supplied by
its actual knowledge and view of the facts, and without examination
or trial in any form? In our judgment, this question must be
answered in the negative. Jurisdiction of the person of the
petitioner attached instantly upon the contempt's being committed
in the presence of the court. That jurisdiction was neither
surrendered nor lost by delay on the part of the circuit court in
exercising its power to proceed, without notice and proof and upon
its own view of what occurred, to immediate punishment. The
departure of the petitioner from the courtroom to another room,
nearby in the same building, was his voluntary act. And his
departure, without making some apology for or explanation of his
conduct, might justly be held to aggravate his offense, and to make
it plain that, consistently with the public interests, there should
be no delay upon the part of the court in exerting its power to
punish.
If, in order to avoid punishment, he had absconded or fled from
the building immediately after his conflict with the marshal, the
court, in its discretion and as the circumstances rendered proper,
could have ordered process for his arrest and given him an
opportunity, before sending him to jail, to answer the charge of
having committed a contempt. But in such a case the failure to
order his arrest and to give him such opportunity of defense would
not affect its power to inflict instant punishment. Jurisdiction to
inflict such punishment having attached while he was in the
presence of the court, it
Page 128 U. S. 312
would not have been defeated or lost by his flight and voluntary
absence. Upon this point the decision in
Middlebrook v.
State, 43 Conn. 268, is instructive. That was a case of
contempt committed by a gross assault upon another in open court.
The offender immediately left the courthouse and the state. The
court made reasonable efforts to procure his personal attendance,
and, those failing, a judgment was entered in his absence
sentencing him to pay a fine and to be imprisoned for contempt of
court. One of the questions presented for determination was whether
there was jurisdiction of the person of the absent offender. The
court said:
"The offense was intentionally committed in the presence of the
court. When the first blow was struck, that instant the contempt
was complete, and jurisdiction attached. It did not depend upon the
arrest of the offender, nor upon his being in actual custody, nor
even upon his remaining in the presence of the court. When the
offense was committed, he was in the presence, and, constructively
at least, in the power, of the court. He may by flight escape
merited punishment, but that cannot otherwise affect the right or
the power of the court. Before the court could exert its power, the
offender, taking advantage of the confusion, absented himself and
went beyond the reach of the court; but nevertheless the
jurisdiction remained, and it was competent for the court to take
such action as might be deemed advisable, leaving the action to be
enforced, and the sentence carried into execution, whenever there
might be an opportunity to do so. If it was necessary that the
judgment should be preceded by a trial and the facts found upon a
judicial hearing, as with ordinary criminal cases, it would be
otherwise. But in this proceeding, nothing of the kind was
required. The judicial eye witnessed the act, and the judicial mind
comprehended all the circumstances of aggravation, provocation, or
mitigation, and, the fact being thus judicially established, it
only remained for the judicial arm to inflict proper
punishment."
It is true that the present case differs from the one just cited
in that the offender did not attempt by flight to escape punishment
for his offense, but that circumstance could not affect the power
of the circuit
Page 128 U. S. 313
court, without trial or further proof, to inflict instant
punishment upon the petitioner for the contempt committed in its
presence. It was within the discretion of that court whose dignity
he had insulted and whose authority he had openly defied to
determine whether it should, upon its own view of what occurred,
proceed at once to punish him, or postpone action until he was
arrested upon process, brought back into its presence, and
permitted to make defense. Any abuse of that discretion would be,
at most, an irregularity or error not affecting the jurisdiction of
the circuit court.
We have not overlooked the earnest contention of petitioner's
counsel that the circuit court, in disregard of the fundamental
principles of Magna Charta, in the absence of the accused and
without giving him any notice of the accusation against him or any
opportunity to be heard, proceeded
"to accuse, to try, and to pronounce judgment, and to order him
to be imprisoned; this for an alleged offense committed at a time
preceding, and separated from, the commencement of his
prosecution."
We have seen that it is a settled doctrine in the jurisprudence
both of England and of this country, never supposed to be in
conflict with the liberty of the citizen, that for direct contempts
committed in the face of the court -- at least one of superior
jurisdiction -- the offender may, in its discretion, be instantly
apprehended and immediately imprisoned, without trial or issue and
without other proof than its actual knowledge of what occurred, and
that, according to an unbroken chain of authorities reaching back
to the earliest times, such power, although arbitrary in its nature
and liable to abuse, is absolutely essential to the protection of
the courts in the discharge of their functions. Without it,
judicial tribunals would be at the mercy of the disorderly and
violent, who respect neither the laws enacted for the vindication
of public and private rights nor the officers charged with the duty
of administering them. To say in case of a contempt such as is
recited in the order below that the offender was accused, tried,
adjudged to be guilty, and imprisoned without previous notice of
the accusation against him and without an opportunity to be heard
is nothing more than an argument or
Page 128 U. S. 314
protest against investing any court, however, exalted or however
extensive its general jurisdiction, with the power of proceeding
summarily, without further proof or trial, for direct contempts
committed in its presence.
Nor, in our judgment, is it an accurate characterization of the
present case to say that the petitioner's offense was committed "at
a time preceding, and separated from, the commencement of his
prosecution." His misbehavior in the presence of the court, his
voluntary departure from the courtroom without apology for the
indignity he put upon the court, his going a few steps, and, under
the circumstances detailed by him, into the marshal's room in the
same building where the court was held and the making of the order
of the commitment took place substantially on the same occasion,
and constituted in legal effect one continuous complete
transaction, occurring on the same day and at the same session of
the court. The jurisdiction, therefore, of the circuit court to
enter an order for the offender's arrest and imprisonment was as
full and complete as when he was in the courtroom in the immediate
presence of the judges.
Whether the circuit court would have had the power at a
subsequent term, or at a subsequent day of the same term, to order
his arrest and imprisonment for the contempt without first causing
him to be brought into its presence or without making reasonable
efforts by rule or attachment to bring him into court and giving
him an opportunity to be heard before being fined and imprisoned is
a question not necessary to be considered on the present
hearing.
The application for the writ of habeas corpus is
denied.
MR. JUSTICE FIELD took no part in the decision of this case.