ex parte terry (1888) no notice -- no jurisdiction

8/14/2019 ex parte terry (1888) no notice -- no jurisdiction

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EX PARTE TERRY. (11/12/88)

[1]

SUPREME COURT OF THE UNITED STATES

[2]No. 6. Original.

[3]

1888.SCT.40263;

128 U.S. 289, 32 L. Ed. 405,9 S. Ct. 77

[4]decided: November 12, 1888.

[5]EX PARTE TERRY.

[6]ORIGINAL.

[7]

Mr. Samuel Shellabarger andMr. J. M. Wilson in supportof the petition filed a brief,making the following points:

[8]

I. It appears by the copy ofthe proceedings and order ofthe court that it does notanywhere disclose that thesaid Terry was in court at the

time when the order for hisimprisonment was made, orthat he had any noticewhatever that suchproceedings for contemptwould be instituted, or hadbeen instituted, nor that hehad any opportunity,whatever, to be heardregarding his said conviction.It will also be seen that thesaid Terry, in his application,


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makes oath that: "Said orderwas made by said court in theabsence of your petitioner,and without his having any

notice of the intention of thesaid court to take anyproceedings whatever inrelation to the mattersreferred to in the said order,and without giving yourpetitioner any opportunitywhatever of being heard indefence of the charge thereinagainst him."

[9]

The fact disclosed by therecord being, therefore, suchthat there is no indication inthe record that the accusedwas present in court eitherwhen the proceedings againsthim were commenced, orwhen they were proceededwith, or when he wasadjudged guilty, therefore thepresumption, in a criminal

case like this, is that therewas no such notice oropportunity for defence,because the jurisdiction ofthat court, for the purpose ofrendering the judgment, must,in every case, beaffirmatively disclosed by therecord, otherwise thereviewing court will presumewant of jurisdiction. Grace v.Insurance Co., 109 U.S. 278,

283; Turner v. Bank of NorthAmerica, 4 Dall. 8; Ex parteSmith, 94 U.S. 455;Robertson v. Cease, 97 U.S.646; Bors v. Preston, 111U.S. 252, 255.

II. It is no answer to this tosay that the record shows thatthe offence was committed in

the presence of the court. The


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[10]

criminal proceeding forcontempt is, under our law,strictly and technically anindependent action or

proceeding. True, thisproceeding is summary in itsnature, yet it is none the lesson that account anindependent or distinctproceeding, regulated by itsown rules and principles, andis highly penal, and,consequently, strictly and

jealously guarded by thecourts. New Orleans v.Steamship Co., 20 Wall. 387,392, citing Ex parte Kearney,7 Wheat. 38; Hayes v.Fischer, 102 U.S. 121. In reChilds, 22 Wall. 157;Stimpson v. Putnam, 41Vermont, 248; Worden v.Searls, 121 U.S. 14.

[11]

It is impossible to questionthe proposition that the

judgment in the present casewas one wholly independentof the case on trial when thealleged contempt wascommitted, and strictlycriminal in its nature, and,therefore, one where nopresumptions will be madethat the court had jurisdictionto inflict the punishment,because the court may havehad jurisdiction in the case on

trial when the allegedcontempt was committed.Hence, the jurisdiction of thecourt, in this whollyindependent criminalprosecution for contempt,must be disclosed by therecord, and will not bepresumed from the fact thatthe court may have had

jurisdiction of the case on

trial when the contempt


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occurred.

[12]

The averment of the relator is

that when the proceedings incontempt were begun,continued and ended, he wasabsent from the court -- hadno intimation of the existenceof such proceedings or thatthey would be instituted, andhad no opportunity to beheard. Here, then, is a"suggestion" -- an avermentof a fact -- not of a fact goingto the merits of the accusation

of contempt -- not one ofthose things which can beexamined only on writ oferror or appeal -- but of a factgoing directly to the power ofthe court to either considerthe merits or render the

judgment of imprisonment.That such fact of the servicerequired to give jurisdiction isone always open to proof in

attacking a judgment, seeBiddle v. Wilkins, 1 Pet. 686.This is incontestably so,provided notice andopportunity to be heardbefore judgment is requisiteto give the court jurisdictionin such cases. Now nothing isbetter settled than that asuggestion, in the applicationfor the writ of habeas corpusin cases of this character,

setting up facts going to thedefeat of the jurisdiction, willbe examined into by thiscourt on habeas corpus. Exparte Fisk, 113 U.S. 713.

III. Before conviction in acriminal prosecution forcontempt, there must be anopportunity to be heard --

something that amounts to


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[13]

notice that the party isaccused, and opportunity tomake defence. We do notdeny that it was within the

power of the court instantly,upon the commission, in itspresence, of the allegedcontempt, and the offendercontinuing to be present, toadjudge the offending partyguilty of contempt, and toorder imprisonment.

[14]

But here the record discloses,not only that the petitioner

was not instantly proceededagainst, but that he wasallowed to depart from thecourt, and was not againbrought before it in such away as to compel him to takenotice of all orders and stepsin the totally separate anddistinct proceedings in thecontempt case.

We are therefore brought tothe naked question whether,in the federal courts, oflimited jurisdiction, a recordresulting in imprisoning aman for criminal contemptmust not show in some wayindependently of theaverment that the contemptwas committed in the face ofthe court, that he had notice

of the prosecution whichresulted in his imprisonment?In answer to this question, wecannot do better than to referto the language quoted byCooley, in his ConstitutionalLimitations, page 403, 3d ed.[472] n. 2, where the rule onthis subject is stated in thesewords: "Notice of some kindis the vital breath that

animates judicial jurisdiction


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[15]

over the person. It is theprimary element of theapplication of the judicatorypower. It is of the essence of

a cause. Without it therecannot be parties, and withoutparties there may be the formof a sentence, but no

judgment obligating theperson." See also Bagg'sCase, 11 Rep. 99; Cooper v.Board of Works, 14 C.B.(N.S.) 180, 194; Meade v.Deputy Marshal of Virginia,1 Brock. 324; Goetcheus v.Matthewson, 61 N.Y. 420.See also Windsor v.McVeigh, 93 U.S. 274;MacVeigh v. United States,11 Wall. 259; St. Clair v.Cox, 106 U.S. 350; Pana v.Bowler, 107 U.S. 529, 545;Regina v. Dyer, 1 Salk. 181;S.C. 6 Mod. 41; Rex v. Bennand Church, 6 T.R. 198; 1Hawkins, Pleas of the Crown,420; Rex v. Venables, 2 Ld.

Raym. 1405.

[16]

IV. These cases establish thegeneral proposition that evenin cases where summaryconvictions are allowed, nocondemnation is tolerated, byour law, without the accusedbeing first furnished withnotice that he is to beprosecuted, and with

opportunity to know whereofhe is accused, and to makereply.

[17]

Upon most familiar principle,this must be the law, evenwhere the alleged contempt iscommitted in the face of thecourt, and where, therefore,no opening proof is required

to establish, prima facie, the


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fact of contempt.

[18]

V. We now turn to some

authorities more directly inpoint on the particular factsof this case.

[19]

In re Pollard, L.R. 2 P.C.,106. This case was heardbefore Sir William Erle, LordJustice Wood, Lord JusticeSelwyn, Sir James WilliamColville and Sir EdwardVaughan Williams. The

decision is accurately statedin the syllabus thus:

[20]

"A contempt of court, being acriminal offence, no personcan be punished for suchunless the specific offencecharged against him bedistinctly stated and anopportunity given him ofanswering.

[21]

"A barrister engaged in hisprofessional duties before theSupreme Court at HongKong, was, without notice ofthe alleged contempt, or ruleto show cause, and withoutbeing heard in defence, by anorder of that court, fined andadjudged to have been guilty

of several contempts of courtin disrespectfully addressingthe Chief Justice whileconducting a cause. Suchorder, upon a reference by theCrown to the JudicialCommittee under the statute 3& 4 Will. 4 c. 41, 4, set aside,and the fine ordered to beremitted, first, on the groundthat the order was badinasmuch as the offences


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charged were not ofthemselves such contempts ofcourt as legally constitute anoffence; and secondly, that

even if that had been so, nodistinct charge of the severalalleged offences was stated,and no opportunity given tothe party accused of beingheard, before passingsentence."

[22]

The case of Capel v. Child, 2Cr. & Jer. 558, is in point.Although the statute 57 Geo.

III. c. 99, 50, under which thebishop, in that case, hadnominated a curate, andthereby removed anincumbent, gave the bishopauthority to act in that matter"whenever it shall appear tothe satisfaction of any bishop,either of his own knowledgeor by proof by affidavit, thatthe ecclesiastical duties of a

benefice are inadequatelyperformed, he may requirethe incumbent to nominate afit person to assist;" yet it washeld in that case that theremoval of the incumbentwas illegal and void for wantof opportunity to be heard;and this, although thebishop's requisition containedthe words "whereas it appearsto us of our own knowledge."

The ground of this decision issufficiently indicated by thefollowing sentence from theopinion of Bailey, Baron:"There is a case of The Kingv. Benn and Church, 6 T.R.198, in which, where awarrant of distress, which isin the nature of an execution,had issued, not grounded on aprevious summons, Lord

Kenyon laid it down most


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distinctly as an invariablemaxim of our law, that noman shall be punished beforehe has had an opportunity of

being heard," p. 579-580. Wesubmit that this case isprecisely in point.It is a casewhere the statute permittedthe bishop to act upon hisown knowledge exclusively.It is a case where the bishopcertified that the facts uponwhich he acted were withinhis own knowledge, but inwhich he gave the incumbentan opportunity to be heard. Inthis it is in exact analogy withthe case at bar, in that thecourt assumed to render

judgment, because the facts,upon which the judgment wasfounded were, in part at least,within the knowledge of thebishop; but judgment wasnevertheless rendered withoutaffording the accused anopportunity to be heard.

The case of King v.Cambridge University, 8Mod. 148, was one where, bymandamus, a member of theUniversity was restored to hisdoctor's degree, from whichhe had been degraded by theUniversity Court for speakingcontemptuous words of theVice-Chancellor and of the

court. In this case the court,speaking of summaryproceedings for contempt,say: "Now as to that matter, itis a constant rule in all caseswhere a mandamus is grantedthat the party should havenotice of his charge; but itdoes not appear by this returnthat the Doctor wassummoned to answer for a

contempt; so that he was


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sentenced without beingheard, which is illegal andagainst natural justice, as mayappear by the cases in the

margin." The cases cited inthe margin are: "9 Edw. 4,14a; 39 Hen. 6, 32; 11 Co.99a; Sid. 14. pl. 7; 2 Sid. 97;Style, 446, 452; Fortesc. Rep.206, 325; Salk. 181, pl. 1; 2Salk. 434, 435; Ld. Raym.225; 2 Ld. Raym. 1343, 1405,1407; 4 Mod. 33, 37; 6 Mod.41; Ante, 3, 101; Post, 377;12 Mod. 27; Stra. 567, 630,678; Sess. Cas. 172; pl. 155,219; pl. 179, 267; pl. 210,295; pl. 252, 353; pl. 281.Fol. 416; Cas. of Set. andRem. 373; 2 Barnard, K.B.241, 264, 282."

[24]

In the case of Foote, 18 Pac.Rep. 678, the respondent hadbeen adjudged guilty ofcontempt done in the

presence of the court andfined $300, but this somefifty days after the allegedcontempt, and without noticeto the contemnor. TheSupreme Court of Californiadischarged the accused uponhabeas corpus for the reasonthat the court, because of thedelay, had lost jurisdiction toproceed as it might have done"at the time" of the alleged

contempt. "Judgment cannotbe given against any man inhis absence for corporalpunishment; he must bepresent when it is done."Lord Holt in Rex v. Duke,Holt, 399.

This rule has never beendeparted from in a single

case either in England or in


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[25]

the United States. Rex v.Harris, Comb. 447; ThePeople v. Winchell, 7 Cowen,525; The People v. Clark, 1

Parker Cr. Cas. 360; State v.Hughes, 2 Alabama, 102;S.C. 36 Am. Dec. 411;Hooker v. Commonwealth, 13Grattan, 763; The People v.Kohler, 5 California, 72;Harris v. Duke, Lofft, 400;S.C. Ld. Raym. 267; Duke'sCase, 1 Salk. 400.

[26]

The record must show

affirmatively that thedefendant was then present.Hamilton v. TheCommonwealth, 16 Penn. St.129; S.C. 55 Am. Dec. 485;Dunn v. The Commonwealth,6 Penn. St. 384; State v.Matthews, 20 Missouri, 55;Scaggs v. Mississippi, 8 Sm.& Marsh. 722; Safford v. ThePeople, 1 Parker Cr. Cas. 474;

Kelly v. The State, 3 Sm. &Marsh. 518; Eliza v. TheState, 39 Alabama, 693;Graham v. The State, 40Alabama, 659.

[27]

Contempt can only be visitedsummarily while the partiesare yet in view of the court.Stockham v. French, 1 Bing.365; Ex parte Whitchurch, 1

Atk. 55; Hollingsworth v.Duane, Wall. C.C. 77.

Whatever may be the view ofthe court regarding the otherpoints now submitted, therelator must be discharged onthe ground that this court cannever give its august andsupreme sanction to a rule oflaw or practice which,


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[28]

without affording to thecitizen accused any mannerof notice, or even hint,regarding the accusation

against him, and with no sortof opportunity to be heard,proceeds, in his absence, toaccuse, to try, to pronounce

judgment and to order him tobe imprisoned; this for analleged offence committed ata time preceding, andseparated from, thecommencement of hisprosecution.

[29]

It seems to us that to do thiswould be not only todisregard the fundamentalprinciples contained inMagna Charta, in the Bills ofRights of all our States, andin the Federal Constitution,but would be, moreover, toinflict upon the very best, andthe fundamental principles of

our civilization an injury suchas has never before beeninflicted by the judgment ofany court.

[30]Author: Harlan

[31]

MR. JUSTICE HARLANdelivered the opinion of thecourt.

[32]

This is an original applicationto this court for a writ ofhabeas corpus. The petitioner,David S. Terry, alleges thathe is unlawfully imprisoned,under an order of the CircuitCourt of the United States forthe Northern District ofCalifornia, in the jail ofAlameda County in that State.


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[33]

That order is made a part ofhis application, and is as

follows:

[34]

"In the Circuit Court of theUnited States of America forthe Northern District ofCalifornia.

[35]

"In the Matter of Contempt ofDavid S. Terry. In opencourt.

[36]

"Whereas on this 3d day ofSeptember, 1888, in opencourt, and in the presence ofthe judges thereof, to wit,Hon. Stephen J. Field, CircuitJustice, presiding; Hon.Lorenzo Sawyer, CircuitJudge, and Hon. George M.Sabin, District Judge, duringthe session of said court, andwhile said court causespending before it, one SarahAlthea Terry was guilty ofmisbehavior in the presenceand hearing of said court:

[37]

"And whereas, said courtthereupon duly and lawfullyordered the United Statesmarshal, J. C. Franks, who

was then present, to removethe said Sarah Althea Terryfrom the court-room;

"And whereas the said UnitedStates marshal then and thereattempted to enforce saidorder, and then and there wasresisted by one David S.Terry, an attorney of thiscourt, who, while the said

marshal was attempting to


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[38]

execute said order in thepresence of the court,assaulted the said UnitedStates marshal, and then and

there beat him, the saidmarshal, and then and therewrongfully and unlawfullyassaulted said marshal with adeadly weapon, with intent toobstruct the administration of

justice, and to resist suchUnited States marshal and theexecution of the said order;

[39]

"And whereas the said David

S. Terry was guilty of acontempt of this court bymisbehavior in its presenceand by a forcible resistance inthe presence of the court to alawful order thereof, in themanner aforesaid:

[40]

"Now, therefore, be it orderedand adjudged by this court,

That the said David S. Terry,by reason of said acts, was,and is, guilty of contempt ofthe authority of this court,committed in its presence onthis 3d day of September,1888;

[41]

"And it is further ordered,That the said David S. Terrybe punished for said contempt

by imprisonment for the termof six months;

[42]

"And it is further ordered,That this judgment beexecuted by imprisonment ofthe said David S. Terry in thecounty jail of the county ofAlameda, in the State ofCalifornia, until the furtherorder of this court, but not to


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exceed said term of sixmonths;

[43]

"And it is further ordered,That a certified copy of thisorder, under the seal of thecourt, be process and warrantfor executing this order." Thepetition alleges that "saidorder was made by said courtin the absence of yourpetitioner, and without hishaving any notice of theintention of said court to takeany proceeding whatever in

relation to the mattersreferred to in said order, andwithout giving your petitionerany opportunity whatever ofbeing heard in defence of thecharges therein made againsthim."

[44]The petition proceeds:

[45]

"And your petitioner furthershoweth that on the 12th dayof September, 1888, headdressed to the said CircuitCourt a petition, duly verifiedby his oath, in the words andfigures following, to wit:

[46]

'In the Circuit Court of theUnited States, Ninth Circuit,

Northern District ofCalifornia.

[47]'In the Matter of Contempt ofDavid S. Terry.

[48]'To the Honorable CircuitCourt aforesaid:

'The petition of David S.


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[49] Terry respectfully represents:

[50]

'That in all the matters and

transactions occurring in thesaid court on the 3d day ofSeptember, inst., upon whichthe order in this matter wasbased, your petitioner did notintend to say or do anythingdisrespectful to said court orthe judges thereof, or to anyone of them; that whenpetitioner's wife, the saidSarah Althea Terry, firstarose from her seat, and

before she uttered a word,your petitioner used everyeffort in his power to causeher to resume her seat andremain quiet; and he didnothing to encourage her inher acts of indiscretion; whenthis court made the order thatpetitioner's wife be removedfrom the court-room, yourpetitioner arose from his seat

with the purpose andintention of himself removingher from the court-room,quietly and peaceably, andhad no intention or design ofobstructing or preventing theexecution of the said order ofthe court; that he never struckor offered to strike the UnitedStates marshal until the saidmarshal had assaultedhimself, and had in his

presence violently, and, as hebelieved, unnecessarily,assaulted petitioner's wife.

[51]

'Your petitioner mostsolemnly avers that he neitherdrew or attempted to drawany deadly weapon of anykind whatever in said court-room, and that he did not

assault or attempt to assault


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the United States marshalwith any deadly weapon insaid court-room or elsewhere.

[52]

'And in this connection herespectfully represents thatafter he had left said court-room he heard loud talking inone of the rooms of theUnited States marshal, andamong the voices proceedingtherefrom he recognized thatof his wife, and he thereuponattempted to force his wayinto said room through the

main office of the UnitedStates marshal; the door ofthis room was blocked withsuch a crowd of men that thedoor could not be closed; thatyour petitioner then for thefirst time drew from insidehis vest a small sheath knife,at the same time saying tothose standing in his way insaid door, that he did not

want to hurt any one; that allhe wanted was to get in theroom where his wife was; thecrowd then parted, and yourpetitioner entered thedoorway, and there saw aUnited States deputy-marshalwith a revolver in his handpointed to the ceiling of theroom; some one then said,"Let him in, if he will give uphis knife," and your petitioner

immediately released hold ofthe knife to some onestanding by.

[53]

'In none of these transactionsdid your petitioner have theslightest idea of showing anydisrespect to this honorablecourt or any of the judgesthereof.


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[54]

'That he lost his temper, herespectfully submits, was anatural consequence ofhimself being assaulted when

he was making an honesteffort to peacefully andquietly enforce the order ofthe court so as to avoid ascandalous scene, and ofseeing his wife sounnecessarily assaulted in hispresence.

[55]

'Wherefore your petitionerrespectfully requests that thishonorable court may, in thelight of the facts hereinstated, revoke the order madeherein committing him toprison for six months.

[56]'And your petitioner will everpray, etc.

[57] 'Dated Sept. 12, 1888.'"

[58]

The petitioner states that onthe 17th of September, 1888,the Circuit Court "declinedand refused to grant to yourpetitioner the relief prayed foror any other relief." He alsoinsists, in his petition, that the"Circuit Court had no

jurisdiction of his person at

the time it made the orderhereinbefore set forth, andpossessed no lawful power tomake said order, and that hewas entitled to be relievedfrom his said imprisonmentupon the filing of the petitionaforesaid, and that said orderof said court is otherwiseillegal and unwarranted bythe law of the land."


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[59]

That he may be relieved ofsaid detention andimprisonment, he prays thathe may be forthwith brought

before this court, upon writ ofhabeas corpus, to do, submitto and receive what the lawmay require.

[60]

The above presents the entirecase made by the applicationbefore us.

[61]

There can be no disputeeither as to the power or dutyof this court in cases of thischaracter. Its power to issue awrit of habeas corpus for thepurpose of inquiring into thecause of the restraint of theliberty of the person in whosebehalf the writ is asked, isexpressly conferred bystatute, and extends to thecases, among others, of

prisoners in jail under or bycolor of the authority of theUnited States, and of personswho are in custody inviolation of the Constitutionor laws of the United States.Rev. Stat. 751, 752, 753. Itsgeneral duty in such cases isalso prescribed by statute.Upon complaint in writing,signed by, and verified by theoath of the person for whose

relief it is intended, settingforth the facts concerning thedetention of the partyrestrained, in whose custodyhe is detained, and by virtueof what claim or authority, ifknown, it is the duty of thecourt to "forthwith award awrit of habeas corpus, unlessit appears from the petitionitself that the party is not

entitled thereto." Rev. Stat.


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754, 755. The writ need not,therefore, be awarded if itappear upon the showingmade by the petitioner, that if

brought into court, and thecause of his commitmentinquired into, he would beremanded to prison. Ex parteKearney, 7 Wheat. 38, 45; Exparte Watkins, 3 Pet. 193,201; Ex parte Milligan, 4Wall. 2, 11.

It is proper in this connectionto say that since the passage

of the act of March 3, 1885,c. 353, 23 Stat. 437,amending 764 of the RevisedStatutes so as to give thiscourt jurisdiction, uponappeal, to review the finaldecisions of the CircuitCourts of the United States incases of habeas corpus, whenthe petitioner alleges that heis restrained of his liberty in

violation of the Constitutionor laws of the United States,the right to the writ, uponoriginal application to thiscourt, is not, in every case, anabsolute one. In Wales v.Whitney, 114 U.S. 564, itappears that a directapplication to this court forthe writ, after a decisionadverse to the petitioner inthe Supreme Court of the

District of Columbia, wasabandoned on the suggestionthat he could bring thatdecision to this court forreview under the act of 1885;and it was brought here underthat statute. In Ex parteRoyall, 117 U.S. 241, 250,upon appeal from a decisionof a Circuit Court of theUnited States refusing to

award the writ to one alleging


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[62]that he was restrained of hisliberty in violation of theConstitution of the UnitedStates by an order of a State

court, in which he stoodindicted for an allegedoffence against the laws ofsuch State, it was held thatwhile the Circuit Court hadpower to grant the writ anddischarge the accused inadvance of his trial under theindictment, it was not boundto exercise that powerimmediately upon applicationbeing made for the writ, butcould await the result of thetrial, and, in its discretion, asthe special circumstances ofthe case might require, putthe petitioner to his writ oferror from the highest courtof the State. In Sawyer'sCase, 124 U.S. 200, this courtentertained an originalapplication for a writ ofhabeas corpus without

requiring the petitioner toapply, in the first instance, tothe proper Circuit Court; but,in that case, as in this, theapplication proceeded uponthe ground that the CircuitCourt itself had made theorder by which he wasalleged to have been deprivedof his liberty in violation ofthe Constitution of the UnitedStates.

Nor can there be any disputeas to the power of a CircuitCourt of the United States topunish contempts of itsauthority. In United States v.Hudson, 7 Cranch, 32, it washeld that the courts of theUnited States, from the verynature of their institution,

possess the power to fine for


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contempt, imprison forcontumacy, enforce theobservance of order, etc.InAnderson v. Dunn, 6 Wheat.

204, 227, it was said that"courts of justice areuniversally acknowledged tobe vested, by their verycreation, with power toimpose silence, respect anddecorum in their presence,and submission to theirlawful mandates." So, in Exparte Robinson, 19 Wall. 505,510: "The power to punishfor contempts is inherent inall courts; its existence isessential to the preservationof order in judicialproceedings, and to theenforcement of the

judgments, orders and writsof the courts, andconsequently to the dueadministration of justice. Themoment the courts of theUnited States were called into

existence and invested withjurisdiction over any subject,they became possessed of thispower." Ex parte Bollman, 4Cranch, 75, 94; Story,Constitution, 1774; Bac. Ab.Courts, E. And such is therecognized doctrine inreference to the powers of thecourts of the several States."The summary power tocommit and punish for

contempts tending to obstructor degrade the administrationof justice," the SupremeJudicial Court ofMassachusetts well said, inCartwright's Case, 114 Mass.230, 238, "is inherent inCourts of Chancery and otherSuperior Courts, as essentialto the execution of theirpowers and to the

maintenance of their


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[63]

authority, and is part of thelaw of the land, within themeaning of Magna Chartaand of the twelfth article of

our Declaration of Rights."The Declaration of Rightshere referred to was thatwhich formed part of theconstitution of Massachusetts,and contained the prohibition,inserted in most of theAmerican constitutions,against depriving any personof life, liberty, or estate,except by the judgment of hispeers, or the law of the land.So in Cooper's Case, 32Vermont, 253, 257: "Thepower to punish for contemptis inherent in the nature andconstitution of a court. It is apower not derived from anystatute, but arising fromnecessity; implied, because itis necessary to the exercise ofall other powers." Withoutsuch power, it was observed

in Easton v. State, 39Alabama, 551, theadministration of the lawwould be in continual dangerof being thwarted by thelawless. To the same effectare Watson v. Williams, 36Mississippi, 331, 344;Johnston v. Commonwealth,1 Bibb, 598; Clark v. People,Breese (1 Illinois), 266;Commonwealth v. Dandridge,

2 Va. Cases, 408; Ex parteHamilton & Smith, 51Alabama, 66, 68; Redman v.State, 28 Indiana, 205, 212;People v. Turner, 1California, 152, 153; State v.Morrill, 16 Arkansas, 384,388; and numerous casescited in note to Clark v.People, ubi supra, in 12 Am.Dec. 178. See also Queen v.

Lefroy, L.R. 8 Q.B. 134. But


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this power, so far as theCircuit Courts of the UnitedStates are concerned, is notsimply incidental to their

general power to exercisejudicial functions; it isexpressly recognized, and thecases in which it may beexercised are defined, by actsof Congress. They havepower, by statute, "to punish,by fine or imprisonment, atthe discretion of the court,contempts of their authority:Provided, That such power topunish contempts shall not beconstrued to extend to anycases except the misbehaviorof any person in theirpresence, or so near theretoas to obstruct theadministration of justice, themisbehavior of any of theofficers of said courts in theirofficial transactions, and thedisobedience or resistance byany such officer, or by any

party, juror, witness, or otherperson, to any lawful writ,process, order, rule, decree orcommand of the said courts."Rev. Stat. 725; 1 Stat. 83; 4Stat. 487.

With these observations as tothe power and duty of thecourts of the United States,when applied to for writs of

habeas corpus, we proceed tothe consideration of thegeneral question as towhether the petition in thiscase shows that the prisoneris or is not entitled to thewrit. The contention of hiscounsel is, that the CircuitCourt failed to take suchsteps as were necessary togive jurisdiction of the person

of the prisoner at the time the


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[64]

order was made committinghim to jail for contempt; and,therefore, that the order wasillegal, and the writ should be

awarded. If this position issound, the conclusion statedwould necessarily follow; forwhile the writ may not beused to correct mere errors orirregularities, howeverflagrant, committed withinthe sphere of the authority ofthe court, it is an appropriatewrit to obtain the discharge ofone imprisoned under theorder of a court of the UnitedStates which does not possess

jurisdiction of the person orof the subject-matter. Exparte Lange, 18 Wall. 163; Exparte Parks, 93 U.S. 18; Exparte Siebold, 100 U.S. 371;Ex parte Rowland, 104 U.S.604; Ex parte Curtis, 106U.S. 371; In re Ayers, 123U.S. 443, 485; In re Sawyer,124 U.S. 200, 221; Harvey v.

Tyler, 2 Wall. 328, 345; Exparte Fisk, 113 U.S. 713, 718.In this last case it was saidthat when "a court of theUnited States undertakes, byits process of contempt, topunish a man for refusing tocomply with an order whichthat court had no authority tomake, the order itself, beingwithout 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 forcontempt in such a caseresults in imprisonment, thiscourt will, by its writ ofhabeas corpus, discharge theprisoner." A judgment whichlies without the jurisdiction ofa court, even one of superior

jurisdiction and general


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authority, is, upon reason andauthority, a nullity.

This question, it must be hereobserved, does not involve aninquiry into the truth of thespecific facts recited in theorder of commitment, asconstituting the contempt. Asthe writ of habeas corpusdoes not perform the office ofa writ of error or an appeal,these facts cannot be re-examined or reviewed in thiscollateral proceeding. They

present a case which, so faras the subject-matter isconcerned, was manifestlywithin the jurisdiction of theCircuit Court.Notwithstanding thestatements made in thepetition addressed to theCircuit Court on the 12th ofSeptember, as to what thepetitioner did, and as to what

he did not do, on the occasionreferred to in the order ofcommitment, it must be takenas true, upon the presentapplication, and would betaken as true, upon a return tothe writ if one were awarded,that, on the 3d of September,1888, Mrs. Terry was guiltyof misbehavior in thepresence of the judgment ofthe Circuit Court, while they

were engaged in the hearingand determination of causespending before it; that thecourt thereupon ordered themarshal to remove her fromthe court-room; that thepetitioner, an attorney, and,therefore, an officer of thecourt, resisted theenforcement of the order bybeating the marshal, and by

assaulting him with a deadly


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[65]

weapon, with intent toobstruct the administration of

justice and the execution ofsaid order. It must also be

taken as true, upon thepresent application, that whatthe petitioner characterizes asself-defence against anassault of the marshal, butwhich the Circuit Court in itsorder of commitmentexpressly finds, upon itspersonal view of the facts,was violence and misconductupon his part, occurred in itsimmediate presence; for, if itwere competent in thisproceeding for the petitionerto contradict that fact, this hasnot been done. While in hispetition to this court hedisputes the jurisdiction ofthe Circuit Court of hisperson at the time he wasimprisoned, his petitionaddressed to that court on the12th of September, and made

part of the presentapplication, makes noquestion as to the allegedcontempt having beencommitted in the presence ofthe Circuit Court, and onlyputs in issue the principalfacts recited in the order ofcommitment as constitutingthe contempt for which hewas punished. Those factsnecessarily entered into the

inquiry by the Circuit Courtas to whether the prisonerwas or was not guilty ofcontempt, and this courtcannot, in this proceeding, invirtue of any power conferredupon it by existing legislation,go behind the determinationof them by that court. It candeal only with such defects inthe proceedings as render

them, not simply erroneous or


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irregular, but absolutely void.Ex parte Robinson, 19 Wall.505, 511; Ex parte Kearney, 7Wheat. 38, 43.

[66]

What, then, are the groundsupon which the petitionerclaims that the Circuit Courtwas without jurisdiction tomake the order committinghim to jail? They are: 1. Thatthe order was made in hisabsence; 2. That it was madewithout his having had anyprevious notice of the

intention of the court to takeany steps whatever in relationto the matters referred to inthe order; 3. That it was madewithout giving him anyopportunity of being firstheard in defence of thecharges therein made againsthim.

The second and third of thesegrounds may be dismissed asimmaterial in any inquiry thiscourt is at liberty, upon thisoriginal application, to make.For, upon the facts recited inthe order of September 3,showing a clear case ofcontempt committed in theface of the Circuit Court,which tended to destroy itsauthority, and, by violent

methods, to embarrass andobstruct its business, thepetitioner was not entitled, ofabsolute right, either to aregular trial of the question ofcontempt, or to notice by ruleof the court's intention toproceed against him, or toopportunity to make formalanswer to the chargescontained in the order of

commitment. It is


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[67]

undoubtedly a general rule inall actions, whetherprosecuted by private parties,or by the government, that is,

in civil and criminal cases,that "a sentence of a courtpronounced against a partywithout hearing him, orgiving him an opportunity tobe heard, is not a judicialdetermination of his rights,and is not entitled to respectin any other tribunal."Windsor v. McVeigh, 93 U.S.274, 277. But there is anotherrule, of almost immemorialantiquity, and universallyacknowledged, which isequally vital to personalliberty and to the preservationof organized society, becauseupon its recognition andenforcement depend theexistence and authority of thetribunals established toprotect the rights of thecitizen, whether of life,

liberty, or property, andwhether assailed by the illegalacts of the government or bythe lawlessness or violence ofindividuals. It has relation tothe class of contempts which,being committed in the faceof a court, imply a purpose todestroy or impair itsauthority, to obstruct thetransaction of its business, orto insult or intimidate those

charged with the duty ofadministering the law.Blackstone thus states therule: "If the contempt becommitted in the face of thecourt, the offender may beinstantly apprehended andimprisoned, at the discretionof the judges, without anyfurther proof or examination.But in matters that arise at a

distance, and of which the


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court cannot have so perfect aknowledge, unless by theconfession of the party or thetestimony of others, if the

judges upon affidavit seesufficient ground to suspectthat a contempt has beencommitted, they either makea rule on the suspected partyto show cause why anattachment should not issueagainst him; or, in veryflagrant instances ofcontempt, the attachmentissues in the first instance, asit also does if no sufficientcause be shown to discharge,and thereupon the courtconfirms and makes absolutethe original rule." 4 Bl. Com.286. In Bacon's Abridgment,title Courts, E, it is laid downthat "every court of record, asincident to it, may enjoin thepeople to keep silence, undera pain, and imposereasonable fines, not only on

such as shall be convictedbefore them of any crime ona formal prosecution, but alsoon all such as shall be guiltyof any contempt in the faceof the court, as by givingopprobrious language to the

judge, or obstinately refusingto do their duty as officers ofthe court, and immediatelyorder them into custody." It isutterly impossible, said

Abbott, C.J., in Rex v.Davidson, 4 B. & Ald. 329,333, "that the law of the landcan be properly administeredif those who are charged withthe duty of administering ithave not power to preventinstances of indecorum fromoccurring in their ownpresence. That power hasbeen vested in the judges, not

for their personal protection,


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but for that of the public. Anda judge will depart from hisbounden duty if he forbearsto use it when occasions arise

which call for its exercise."

[68]

To the same effect are theadjudications by the courts ofthis country. In State v.Woodfin, 5 Iredell's Law,199, where a person wasfined for a contemptcommitted in the presence ofthe court, it was said: "Thepower to commit or fine for

contempt is essential to theexistence of every court.Business cannot be conductedunless the court can suppressdisturbances and the onlymeans of doing that is byimmediate punishment. Abreach of the peace in faciecurioe is a direct disturbanceand a palpable contempt ofthe authority of the court. It is

a case that does not admit ofdelay, and the court would bewithout dignity that did notpunish it promptly andwithout trial. Necessarilythere can be no inquiry denovo in another court, as tothe truth of the fact. There isno mode provided forconducting such an inquiry.There is no prosecution, noplea, nor issue upon which

there can be a trial." So inWhittem v. State, 36 Indiana,311: "When the contempt iscommitted in the presence ofthe court, and the court actsupon view and without trialand inflicts the punishment,there will be no charge, noplea, no issue and no trial;and the record that shows thepunishment will also show

the offence, and the fact that


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the court had found the partyguilty of the contempt; onappeal to this court any factfound by the court below

would be taken as true, andevery intendment would bemade in favor of the action ofthe court." Again, in Ex parteWright, 65 Indiana, 504, 508,the court after observing thata direct contempt is an openinsult in the face of the courtto the persons of the judgeswhile presiding, or aresistance to its powers intheir presence, said: "For adirect contempt the offendermay be punished instantly byarrest and fine orimprisonment, upon nofurther proof or examinationthan what is known to the

judges by their senses ofseeing, hearing, etc." 4Stephens Com. Bk. 6, c. 15;Tidd's Practice, 9th ed.London, 1828, 479-80; Ex

parte Hamilton & Smith, 51Alabama, 66, 68; People v.Turner, 1 California, 152,155.

It is true, as counsel suggest,that the power which thecourt has of instantlypunishing, without furtherproof or examination,contempts committed in its

presence, is one that may beabused and may sometimesbe exercised hastily orarbitrarily. But that is not anargument to disprove eitherits existence, or the necessityof its being lodged in thecourts. That power cannot bedenied them without invitingor causing such obstruction tothe orderly and impartial

administration of justice as


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would endanger the rightsand safety of the entirecommunity. What was said inEx parte Kearney, 7 Wheat.

38, 45, may be here repeated:"Wherever power is lodged itmay be abused. But thisforms no solid objectionagainst its exercise.Confidence must be reposedsomewhere; and if thereshould be an abuse, it will bea public grievance, for whicha remedy may be applied bythe legislature, and is not tobe devised by courts of

justice."

[70]

It results from what has beensaid that it was competent forthe Circuit Court,immediately upon thecommission, in its presence,of the contempt recited in theorder of September 3, toproceed upon its own

knowledge of the facts, andpunish the offender, withoutfurther proof, and withoutissue or trial in any form. Itwas not bound to hear anyexplanation of his motives, ifit was satisfied, and we mustconclusively presume, fromthe record before us, that itwas satisfied, from whatoccurred under its own eyeand within its hearing, that

the ends of justice demandedimmediate action, and that noexplanation could mitigate hisoffence or disprove the factthat he had committed suchcontempt of its authority anddignity as deserved instantpunishment. Whether thefacts justified suchpunishment was for that courtto determine under its solemn

responsibility to do justice,


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and to maintain its owndignity and authority. In reChiles, 22 Wall. 157, 168. Itsconclusion upon such facts,

we repeat, is not, under thestatutes regulating the

jurisdiction of this court,open to inquiry or review inthis collateral proceeding. Ifwe were to indulge in anypresumption as to whatactually occurred when themarshal proceeded in theexecution of the order toremove Mrs. Terry from thecourt-room, we must presumethat the Circuit Court fullyconsidered the statementscontained in the petition ofSeptember 12, and knowingthem to be inaccurate oruntrue, refused to set aside ormodify its previous order ofcommitment. Its action in thatregard cannot be revised orannulled by this court uponan original application for

habeas corpus.

But it is contended that theorder of September 3 wasvoid, because, as alleged inthe present application for thewrit of habeas corpus, it wasmade in the "absence" of thepetitioner. In considering thissuggestion, it must not beforgotten that the order of

imprisonment shows, and thefact is not asserted to beotherwise, that it was madeand entered on the same dayon which, and, presumably, atthe same session of the courtat which, the contempt wascommitted; and there is noclaim that any more timeintervened between thecommission of the contempt,

and the making of the order,


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[71]

than was reasonably requiredto prepare and enter in dueform such an order as thecourt, upon consideration,

deemed proper or necessary.Indeed, the petition ofSeptember 12, made part ofthe present application,shows that the petitioner,after his personal conflictwith the marshal in thepresence of the judges,voluntarily left the court-room, and with drawn knifeforced his way into anotherroom in the same building,occupied by the marshal, andto which, we presume, thelatter, in executing the orderabove referred to, hadremoved Mrs. Terry. There isno pretence that the petitionerleft the building in which thecourt was held before theorder of commitment waspassed.

The precise question,therefore, to be nowdetermined, is whether theretirement of the petitionerfrom the court-room, intoanother room of the samebuilding, after he had beenguilty of misbehavior in thepresence of the court, and hadviolently obstructed theexecution of its lawful order,

defeated the jurisdictionwhich it possessed, at themoment the contempt wascommitted, to order hisimmediate imprisonmentwithout other proof than thatsupplied by its actualknowledge and view of thefacts, and withoutexamination or trial in anyform? In our judgment this

question must be answered in


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[72]

the negative. Jurisdiction ofthe person of the petitionerattached instantly upon thecontempt being committed in

the presence of the court.That jurisdiction was neithersurrendered nor lost by delayon the part of the CircuitCourt in exercising its powerto proceed, without noticeand proof, and upon its ownview of what occurred, toimmediate punishment. Thedeparture of the petitionerfrom the court-room toanother room, near by, in thesame building, was hisvoluntary act. And hisdeparture, without makingsome apology for, orexplanation of, his conduct,might justly be held toaggravate his offence, and tomake it plain that,consistently with the publicinterests, there should be nodelay, upon the part of the

court, in exerting its power topunish.

If, in order to avoidpunishment, he hadabsconded or fled from thebuilding, immediately afterhis conflict with the marshal,the court, in its discretion,and as the circumstancesrendered proper, could have

ordered process for his arrestand given him anopportunity, before sendinghim to jail, to answer thecharge of having committed acontempt. But in such a casethe failure to order his arrest,and to give him suchopportunity of defence, wouldnot affect its power to inflictinstant punishment.

Jurisdiction to inflict such


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[73]

punishment having attachedwhile he was in the presenceof the court, it would nothave been defeated or lost by

his flight and voluntaryabsence. Upon this point thedecision in Middlebrook v.State, 43 Connecticut, 257,268, is instructive. That was acase of contempt committedby a gross assault uponanother in open court. Theoffender immediately left thecourt-house and the State.The court made reasonableefforts to procure his personalattendance, and, those failing,a judgment was entered in hisabsence, sentencing him topay a fine and to beimprisoned for contempt ofcourt. One of the questionspresented for determinationwas whether there was

jurisdiction of the person ofthe absent offender. The courtsaid: "The offence was

intentionally committed in thepresence of the court. Whenthe first blow was struck, thatinstant the contempt wascomplete, and jurisdictionattached. It did not dependupon the arrest of theoffender, nor upon his beingin actual custody, nor evenupon his remaining in thepresence of the court. Whenthe offence was committed he

was in the presence and,constructively, at least, in thepower of the court. He mayby flight escape meritedpunishment; but that cannototherwise affect the right orthe power of the court. Beforethe court could exert itspower, the offender, takingadvantage of the confusion,absented himself and went

beyond the reach of the court;


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but, nevertheless, thejurisdiction remained, and itwas competent for the courtto take such action as might

be deemed advisable, leavingthe action to be enforced andthe sentence carried intoexecution whenever theremight be an opportunity to doso. If it was necessary that the

judgment should be precededby a trial, and the facts foundupon a judicial hearing aswith ordinary criminal cases,it would be otherwise. But inthis proceeding nothing of thekind was required. The

judicial eye witnessed the actand the judicial mindcomprehended all thecircumstances of aggravation,provocation, or mitigation;and the fact being thus

judicially established, it onlyremained for the judicial armto inflict proper punishment."It is true that the present case

differs from the one just citedin that the offender did notattempt by flight to escapepunishment for his offence.But that circumstance couldnot affect the power of theCircuit Court, without trial orfurther proof, to inflict instantpunishment upon thepetitioner for the contemptcommitted in its presence. Itwas within the discretion of

that court, whose dignity hehad insulted, and whoseauthority he had openlydefied, to determine whetherit should, upon its own viewof what occurred, proceed atonce to punish him, orpostpone action until he wasarrested upon process,brought back into itspresence, and permitted to

make defence. Any abuse of


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that discretion would be atmost an irregularity or error,not affecting the jurisdictionof the Circuit Court.

[74]

We have not overlooked theearnest contention ofpetitioner's counsel that theCircuit Court, in disregard ofthe fundamental principles ofMagna Charta, in the absenceof the accused, and withoutgiving him any notice of theaccusation against him, orany opportunity to be heard,

proceeded "to accuse, to tryand to pronounce judgment,and to order him to beimprisoned; this, for analleged offence committed ata time preceding, andseparated from, thecommencement of hisprosecution." We have seenthat it is a settled doctrine inthe jurisprudence both of

England and of this country,never supposed to be inconflict with the liberty of thecitizen, that for directcontempts committed in theface of the court, at least oneof superior jurisdiction, theoffender may, in itsdiscretion, be instantlyapprehended and immediatelyimprisoned, without trial orissue, and without other proof

than its actual knowledge ofwhat occurred; and that,according to an unbrokenchain of authorities, reachingback to the earliest times,such power, althougharbitrary in its nature andliable to abuse, is absolutelyessential to the protection ofthe courts in the discharge oftheir functions. Without it,

judicial tribunals would be at


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the mercy of the disorderlyand violent, who respectneither the laws enacted forthe vindication of public and

private rights, nor the officerscharged with the duty ofadministering them. To say,in case of a contempt such asis recited in the order below,that the offender was accused,tried, adjudged to be guiltyand imprisoned, withoutprevious notice of theaccusation against him andwithout an opportunity to beheard, is nothing more thanan argument or protestagainst investing any court,however exalted, or howeverextensive its general

jurisdiction, with the powerof proceeding summarily,without further proof or trial,for direct contemptscommitted in its presence.

[75]

Nor, in our judgment, is it anaccurate characterization ofthe present case to say thatthe petitioner's offence wascommitted "at a timepreceding, and separatedfrom, the commencement ofhis prosecution." Hismisbehavior in the presenceof the court, his voluntarydeparture from the court-room without apology for the

indignity he put upon thecourt, his going a few steps,and under the circumstancesdetailed by him, into themarshal's room in the samebuilding where the court washeld, and the making of theorder of the commitment,took place, substantially, onthe same occasion, andconstituted, in legal effect,

one continuous complete


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transaction, occurring on thesame day, and at the samesession of the court. The

jurisdiction, therefore, of the

Circuit Court to enter anorder for the offender's arrestand imprisonment was as fulland complete as when he wasin the court-room in theimmediate presence of the

judges.

[76]

Whether the Circuit Courtwould have had the power ata subsequent term, or at a

subsequent day of the sameterm, to order his arrest andimprisonment for thecontempt, without firstcausing him to be broughtinto its presence, or withoutmaking reasonable efforts byrule or attachment to bringhim into court, and givinghim an opportunity to beheard before being fined and

imprisoned, is a question notnecessary to be considered onthe present hearing.

[77]The application for the writof habeas corpus is denied.

[78]

MR. JUSTICE FIELD tookno part in the decision of thiscase.

18881112

1998 VersusLaw Inc.

ex parte terry (1888) no notice -- no jurisdiction

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