The American Judiciary Part 17

It is now an affair between him and the court. He must obey this mandate or he will be treating the court with disrespect.

To treat a court with disrespect, or, in legal parlance, to be in contempt of court, is to incur very serious responsibilities. It is in the nature of a criminal wrong, for it is a direct opposition to the expressed will of the State. Whoever is guilty of it makes himself liable to arrest and to be subjected to fine or imprisonment. If, for instance, an injunction is obtained in a suit for the infringement of a patent right, it becomes at once the duty of the defendant to desist from making or selling what the plaintiff has proved that he only can lawfully make and sell.

If he does not desist, the plaintiff can complain to the court, and if after a preliminary hearing it appears that his complaint is well founded, can obtain a warrant of arrest, styled a "process of attachment." On this, the proper officer takes the defendant into custody, and brings him before the court to answer for violating the injunction order. If the case is an aggravated one, he will be both fined and imprisoned, and the imprisonment will be in the common jail for such time as the court may order.

It is the sting in the tail of an injunction that makes it especially formidable. The debtor who fails to pay to the sheriff, when demand is made upon an execution, a judgment for money damages commits no contempt of court. The man who keeps on doing what a court of equity has forbidden him to do does commit one.

A conspicuous instance of the efficacy of an injunction was furnished by the great Chicago railroad strike and boycott of 1894, initiated by the American Railway Union. Mob violence followed. More than a thousand freight cars were burned. Trains were derailed, pa.s.sengers fired at, and lives lost. The officers of the union, after two or three weeks, wrote to the managers of the railroads princ.i.p.ally affected, describing the strike as threatening "not only every public interest, but the peace, security and prosperity of our common country."[Footnote: United States _v._ Debs, 64 Federal Reporter, 724, 729.] A temporary injunction was issued against these officers and others by the Circuit Court of the United States in an equitable action brought by the United States under the direction of the Attorney-General. They disobeyed the injunction. Their arrest for this contempt of court promptly followed. This stopped the flood at its source. To quote from testimony given a few weeks later by Mr. Debs, the President of the Union, "As soon as the employees found that we were arrested and taken from the scene of action, they became demoralized and that ended the strike....

The men went back to work and the ranks were broken and the strike was broken up,... not by the army, and not by any other power, but simply and solely by the action of the United States court in restraining us from discharging our duties as officers and representatives of our employees."[Footnote: United States _v._ Debs, 64 Federal Reporter, 724, 759.] The defendants in the contempt proceedings having been found guilty and sentenced to jail for terms varying from three to six months, appealed to the Supreme Court of the United States, but without avail.[Footnote: _In re_ Debs, 158 U. S. Reports, 564, 600.]

Injunctions not infrequently are granted as an equitable relief against a legal judgment. _Summum jus, summa injuria_ is an ancient maxim of the courts. The foundation of equitable jurisdiction is that courts of law cannot always do justice. One may, for instance, be invited to build a house on another's land, and promised a deed of the site. He builds the house and then is refused a deed. The invitation and promise were by word of mouth. The rules of law make such a house the legal property of the landowner. The rules of equity make it the equitable property of the man who built it on the faith of the landowner's invitation and promise. If the latter sue at law for the possession of the house, he may get judgment, but equity will prevent his enforcing the judgment, not because it is not a legal judgment, but because he is endeavoring to make an inequitable use of a legal right.

A court of equity sometimes makes a decree establis.h.i.+ng a t.i.tle.

To enforce such a judgment, a writ may be issued, called a writ of a.s.sistance. It is directed to the sheriff and requires him to do some specific act, such as putting the defendant out of possession of certain lands and turning it over to the plaintiff.

It is, as appears from instances which have been given, possible that the execution of process from the courts may be defeated by violence which they cannot overcome. It is possible in fact though impossible in theory. As the sheriff can employ the _posse comitatus_, he ought always to have an overwhelming force at his command. But it is easier to "call spirits from the vasty deep" than to make them respond. Public feeling may be so strong in opposition to the service of the process that mob violence will be tolerated and even openly supported. An armed mob can only be effectually met by an armed force which is not a mob--that is, by disciplined soldiers.

The sheriff, if so opposed, may call upon the Governor of the State for military a.s.sistance. How efficient it will prove will, of course, depend on the discipline of the militia and the firmness of its commanding officers. It is seldom that it fails to restore order, if the men carry loaded guns and are directed to fire at the first outbreak of forcible resistance.

But the Governor may refuse to comply with the sheriff's request.

In such case, the execution of the process of the court fails because of want, not of power, but of the will to exercise it on the part of those on whom that duty rests. In every government const.i.tuted by a distribution of the supreme authority between different departments, each of them must do its part loyally with respect to the others, or the whole scheme, for the time being, breaks down.

In the United States this danger is doubly great because of the interdependence of the general government and the particular States. Judicial process may issue from a State court against those who oppose its execution under claim of authority from the United States; or from a federal Court against those who oppose its execution under claim of authority from a State. Some instances of such conflicts of jurisdiction have been already mentioned.[Footnote: Chap. X.]

When the Supreme Court of the United States reverses a judgment of a State court, it can either[Footnote: U. S. Revised Statutes, Sec. 709.] itself render the judgment which the State court ought to have rendered, and issue execution, or remand the cause to it with directions that this be done. If the latter course be taken, the directions may be disobeyed. A Georgia court was guilty of this contumacy in the case of Worcester _v._ Georgia.[Footnote: 6 Peters' Reports, 515, 596.] If the former course be taken, the service of the execution may be resisted by the power of the State.

Worcester was illegally confined in the Georgia penitentiary.

The sentence against him had been set aside and the indictment adjudged to furnish no ground of prosecution. But if the Supreme Court had rendered a judgment dismissing the prosecution, and given a writ to the marshal directing him to set Worcester at liberty, the officer would have found the prison doors shut in his face. Every prison is a fortress, so built as to prevent rescue from without as well as escape from within. To lay siege to one would be too great an enterprise for the marshal to undertake without military a.s.sistance. For this the President could have been called upon. But he might have refused it. If so, the judgment of the judicial department would have proved inoperative, simply because the officer charged with the duty of rendering it operative had declined to fulfil that duty.

The Supreme Court, in the Worcester case, probably had reason to believe that if it had directed a call on President Jackson for a military force it would have been refused. It is reported that the President, in private conversation, intimated as much.

Possibly he might have been justified in the refusal. South Carolina was on the brink of war with the United States. Georgia was her next neighbor, and might have been induced to make common cause with her, if Jackson had battered down the doors of her penitentiary to release a man who, her courts insisted, had been properly convicted of a serious crime. A court can do nothing short of justice. The executive power, perhaps, may sometimes rightly act or decline to act from motives of national policy.

In one instance the armed forces of a State were actually engaged, under the authority of the legislature, in forcibly resisting the service of process from the federal courts. It was in 1809, when the marshal in Pennsylvania was opposed by a large body of the militia called out by order of the Governor for the purpose. Their commanding officer was subsequently arrested and convicted for the offense in the Circuit Court of the United States.[Footnote: Wharton's State Trials, 48; McMaster, "History of the People of the U. S.," V, 405; Willoughby, "The American Const.i.tutional System," 41, 43.]

In 1859, the Governor of Ohio refused to honor a requisition from the Governor of Kentucky for the surrender of a fugitive from justice. The act charged was a.s.sisting a slave to escape. This was a crime in the State from which the man had fled, but not in the State where he had found refuge. The Supreme Court of the United States was asked by Kentucky to compel the surrender. It held that the Governor had violated his duty, but that the Const.i.tution of the United States furnished no means for enforcing its performance by him.[Footnote: Kentucky _v._ Dennison, 24 Howard's Reports, 66, 109.] Under the shelter of this doctrine, a man indicted for murder in Kentucky has been for several recent years residing in safety in Indiana, because the Governor of that State has refused to comply with repeated requisitions for his surrender.

Every court of record while in session has inherent power to compel all who appear before it to preserve order, to obey its lawful commands issued in due course of judicial procedure, and to refrain from any expressions of disrespect to its authority, under pain of fine or imprisonment, or both. This power, unless withdrawn by statute, belongs to any justice of the peace who has authority to hold a court of record, while he is holding one.

Commonly it is, in his case, regulated by statute.[Footnote: Church _v._ Pearne, 75 Conn. Reports, 350; 53 Atlantic Reporter, 955.]

At common law, superior courts of record also have power during the progress of a cause to repress or punish any disrespectful acts or words done or uttered, not in its presence, but so near to it as to const.i.tute a breach of order or tend directly to lessen its efficiency. These are deemed powers inherent in such a court, because necessary to support its proper dignity and independence. Statutes are common to define or restrict them, but they cannot take them away altogether. To do so would be to take away an essential incident of the judicial power. Nor can they so far reduce the penalty that may be inflicted as to deprive the court of a reasonable measure of the right of self-protection.[Footnote: Batchelder _v._ Moore, 42 California Reports, 412.] It is, to say the least, doubtful if they can even restrict its exercise by any court created by the Const.i.tution itself.[Footnote: State _v._ Morrill, 16 Arkansas Reports, 384; State _v._ Shepherd, 177 Missouri Reports, 205; 76 Southwestern Reporter, 79; _Ex parte_ Robinson, 19 Wallace's Reports, 505, 510.]

The accused is not ent.i.tled as of right to a trial by jury. The judge is the best guardian of the dignity of the court.[Footnote: _In re_ Debs, 158 U. S. Reports, 564, 595.]

The rule of criminal law that to convict a man of crime requires proof of guilt beyond a reasonable doubt applies to all proceedings of contempt. The accused is also allowed to go free on giving bail until final sentence, if that is to be preceded by any preliminary inquiry involving adjournments from day to day.

No such inquiry is necessary when the contempt is plain and was committed in the presence of the court.

In the courts of the United States and in most of the States no appeal is allowed for errors in law from a summary sentence of punishment for a contempt of court. Appeals lie only from final judgments in a cause, and such a sentence for contempt is not so regarded.[Footnote: _ex parte_ Bradley, 7 Wallace's Reports, 364, 376.] If the contempt be (as it may be) made the subject of a formal criminal prosecution and a jury trial, an appeal is allowed.

A punishment inflicted for contempt, even though it goes beyond the rightful jurisdiction of the court in such a matter, is a judicial act, and does not expose the judge pa.s.sing the sentence to an action for damages.[Footnote: Bradley _v._ Fisher, 13 Wallace's Reports, 335.]

CHAPTER XXI

JUDICIAL PROCEEDINGS IN TERRITORY SUBJECT TO MARTIAL LAW

Martial law is the exercise of military power. It is martial rule at the will of the commanding military officer.

In time of war and at the seat of war martial rule is a necessity, and under such conditions martial law may rightfully be enforced by any sovereign as an incident of the war, whether that is being waged with foreign or domestic enemies. The case is different when, though war exists, an attempt is made to enforce martial law at a place which is not the seat of war, nor so near it as to make military rule necessary for military success. Const.i.tutional provisions may also affect the question.

Those affecting the United States contain limitations stricter than those found in some of the State Const.i.tutions. Ordinarily no military officer can rightfully enforce martial law in a place where the regular courts of his sovereign are open and in the proper and un.o.bstructed exercise of their jurisdiction.[Footnote: _Ex parte_ Milligan, 4 Wallace's Reports, 2, 127.]

The first serious contest between the judiciary and the military power in this country as to the questions thus involved took place during the war of 1812. General Jackson, in 1814, was at New Orleans in command of the military Department of the South.

The city was threatened with invasion. He declared martial law, and not long afterwards arrested a Mr. Louaillier, a member of the State legislature, for writing a newspaper article in which he objected to the continuance of this kind of military government. Louaillier obtained a writ of _habeas corpus_ from the District Judge of the United States (Judge Hall), directed to Jackson. The General, instead of obeying it, forthwith took possession of the original writ, arrested the Judge, and deported him from the city. Two days later despatches were received from the War Department officially announcing the conclusion of a treaty of peace. Judge Hall now returned, and a rule to show cause why Jackson should not be attached for contempt of court was issued. Jackson appeared and filed a long answer, first stating various objections to the jurisdiction, and then setting up the circ.u.mstances calling for his proclamation of martial law. He had been told, he said, that the legislature was "politically rotten." The Governor had warned him that the State was "filled with spies and traitors," and advised, in the presence of Judge Hall, and with no dissent from him, that martial law be proclaimed. It seemed a time when "const.i.tutional forms must be suspended for the permanent preservation of const.i.tutional rights." The lengthy paper, which was evidently written by a skilful lawyer, closed thus: "The powers which the exigency of the times forced him to a.s.sume have been exercised exclusively for the public good; and, by the blessing of G.o.d, they have been attended with unparalleled success. They have saved the country; and whatever may be the opinion of that country, or the decrees of its courts in relation to the means he has used, he can never regret that he employed them."[Footnote: Reid and Baton's "Life of Andrew Jackson," 408, 423.] The court, not particularly impressed with these arguments, ordered the proceedings to go forward and required the General to answer certain interrogatories respecting his course of conduct, by a day appointed. He appeared on that day and declined to answer them, with this concluding shot:

"Your honour will not understand me as intending any disrespect to the court; but as no opportunity has been afforded me of explaining the reasons and motives by which I was influenced, so it is expected that censure will const.i.tute no part of that sentence, which you imagine it your duty to p.r.o.nounce."[Footnote: _Ibid_., 387.]

The sentence was a fine of $1,000, which was at once paid.

The sympathy of the country was with "the hero of New Orleans" in this affair, whose gallant defense of that city had cast a gleam of glory upon the close of a long and apparently fruitless war.

Some of her people subscribed the money to reimburse to him the amount of the penalty, but he declined to accept it. Nearly thirty years afterwards Congress made an appropriation for the purpose, and he received the full amount with interest (in all $2,700) from the treasury, as a legislative compensation for a judicial wrong. It would seem, however, that Judge Hall acted within the limits of his authority. When he signed the writ of _habeas corpus_ the State was at peace, and it was generally known, though not officially proclaimed, that a formal treaty of peace had been signed between the United States and Great Britain. The courts were open; his court was open; and the General should have respected the process which issued from it.[Footnote: Johnson _v._ Duncan, 3 Martin's La. Reports, O. S., 530. See opinion of Mr. Justice Miller in Dow _v._ Johnson, 100 U. S. Reports, 158, 193; _Ex parte_ Milligan, 4 Wallace's Reports, 2, 127.]

During the Civil War, President Lincoln was responsible for many arrests by military officers of citizens of States remote from the seat of actual hostilities, and in which the courts were open. At its first outbreak he entirely suspended the privilege of the writ of _habeas corpus_, and one issued by the Chief Justice of the United States was disobeyed.[Footnote: _Ex parte_ Merryman, Taney's Decisions, 246.] Congress in 1863 enacted that any order of the President, or under his authority, in the course of the war, should be a defense to any action in any court for what was done by virtue of it. The State courts disregarded the statute. If, they said, either the common law or martial law justified the order, it justified the act; if neither did, the fiat of Congress cannot make the act a lawful one.[Footnote: Griffin _v._ Wilc.o.x, 21 Indiana Reports, 370.] The Supreme Court of the United States had this question before them, but did not find it necessary to decide it.[Footnote: Bean _v._ Beckwith, 18 Wallace's Reports, 510; Beckwith _v._ Bean, 98 U. S. Reports, 266. (See the dissenting opinion of two justices in the last report, p. 292.)]

Had they done so, it would probably have been answered in the same way.

Missouri inserted in her Const.i.tution of 1865 a provision similar to the Act of Congress. This, of course, so far as that State could do it, abrogated any rule of law to the contrary, and it was held not to contravene any provision of the Federal Const.i.tution.[Footnote: Drehman _v._ Stifle, 8 Wallace's Reports, 595.] The transaction in controversy, however, was before the adoption of the fourteenth amendment, and had the prohibition in that been then in existence, a different result would probably have been reached.

The Governor of North Carolina (William W. Holden) in 1870 declared two counties in a state of insurrection. The militia were called out and a number of citizens arrested. Writs of _habeas corpus_ in their favor were issued by Chief Justice Pearson of the Supreme Court of the State against the military officers.[Footnote: _Ex parte_ Moore, 64 North Carolina Reports, 802; 65 North Carolina Reports, Appendix, 349.] They at first refused, by the Governor's authority, to obey them.

Similar writs were then obtained from the District Judge of the United States, upon which the pet.i.tioners were, by the Governor's orders, produced before the State judge. The result was the impeachment of Governor Holden and his removal from office.[Footnote: S. S. c.o.x, "Three Decades of Federal Legislation," 458.]

While martial law is the will of the commanding officer, it may be his will to have it applied, so far as ordinary matters of litigation are concerned, by courts. For that purpose, when in occupation of enemy's territory, he may allow the courts previously existing under the government of the enemy to continue in the exercise of their functions as his temporary representatives; or he can inst.i.tute new tribunals of local jurisdiction having the name and form of civil courts, and proceeding according to the ordinary rules of administrative justice. All such courts act really as his agents and subject to his control, but in practice he seldom interferes with their judgments. He cannot, however, in establis.h.i.+ng such a temporary tribunal, give it the powers of an admiralty court over prize cases. The judgment _in rem_ of an admiralty court, condemning a captured s.h.i.+p as a lawful prize of war, is treated as conclusive all over the world; but this is because it is a decree of a competent court, properly established to administer a branch of maritime law which, in its main principles, is part of the law of nations and common to the world. No mere military court on enemy's territory occupies that position.[Footnote: Jecker _v._ Montgomery, 13 Howard's Reports, 498, 515.]

This right of the military commander exists equally on foreign territory in military occupation and on domestic territory, when the ordinary courts of his country are not open. During our Civil War, in 1864, President Lincoln, as commander in chief of the army and navy, set up a "Provisional Court for the State of Louisiana," after the Southern portion of that State had been occupied by the national forces and martial law declared. Judge Charles A. Peabody of New York, who had been a justice of the Supreme Court of that State, was commissioned to hold it and to dispose of both civil and criminal causes. Its docket became at once a full one, and important litigation was transacted there with general acceptance until the close of the war.[Footnote: The Grapeshot, 9 Wallace's Reports, 129; Report of Am. Historical a.s.sociation for 1892, 199.]

In the original proclamation of martial law in Louisiana the commanding officer announced that civil causes between parties would be referred to the ordinary tribunals. One of the State courts, known as a District Court of the City and Parish of New Orleans, the judge of which took the oath of allegiance to the United States, continued to sit and dispose of business in the usual course. A few months later a citizen of New York sued a military officer before it for ravaging a plantation which he owned in Louisiana, and recovered judgment. A suit upon it was afterwards brought in Maine, where the defendant resided. He pleaded that the property of the plaintiff had been taken to furnish his troops with necessary supplies. The case ultimately came before the Supreme Court of the United States. Here it was thrown out, the court saying that the District Court of New Orleans had no jurisdiction to call military officers to account for acts done under claim of military right.[Footnote: Dow _v._ Johnson, 100 U. S. Reports, 158.] So far, however, as litigation between private parties unconnected with military operations is concerned, a court of this character, established by law, and suffered by the military authorities to continue its sessions, has competent jurisdiction, and its judgments will be enforced in other States.[Footnote: Pepin _v._ Lachenmeyer, 45 New York Reports, 27.] They have no power to entertain criminal charges against those in the military service, who would be punishable by court martial.[Footnote: Coleman _v._ Tennessee, 97 U. S. Reports, 509, 519.]

In 1864, during the war, but in Indiana, a State distant from the seat of hostilities, the military commandant of the district ordered the arrest of a private citizen and his trial before a military commission on charges of conspiracy against the United States, as a member of a secret organization known as the Order of American Knights or Sons of Liberty. The trial resulted in his conviction, and a sentence to death, which was approved by the President of the United States.

Before it could be executed, he applied to the Circuit Court of the United States for the District of Indiana for a writ of _habeas corpus_. The judges of that court were divided in opinion in regard to the case, but it was decided in his favor when it came before the Supreme Court of the United States.[Footnote: _Ex parte_ Milligan, 4 Wallace's Reports, 2, 121, 127.] The decision was unanimous, but in stating the reasons for it the court was divided in a manner which has not been uncommon since the death of Chief Justice Marshall when any great question of a political nature has been involved. Five justices held that the trial of a civilian by a military commission can never be vindicated in a peaceful State where the courts are open and their process un.o.bstructed. Four justices dissented, and Chief Justice Chase thus summarized their conclusions:

There are under the Const.i.tution three kinds of military jurisdiction: one to be exercised both in peace and war; another to be exercised in time of foreign war without the boundaries of the United States, or in time of rebellion and civil war within States or districts occupied by rebels treated as belligerents; and a third to be exercised in time of invasion or insurrection within the limits of the United States, or during rebellion within the limits of States maintaining adhesion to the National Government, when the public danger requires its exercise. The first of these may be called jurisdiction under military law, and is found in acts of Congress prescribing rules and articles of war, or otherwise providing for the government of the national forces; the second may be distinguished as military government, superseding, as far as may be deemed expedient, the local law, and exercised by the military commander under the direction of the President, with the express or implied sanction of Congress, while the third may be denominated martial law proper, and is called into action by Congress, or temporarily, when the action of Congress cannot be invited, and in the case of justifying or excusing peril, by the President, in times of insurrection or invasion, or of civil or foreign war within districts or localities where ordinary law no longer adequately secures public safety and private rights.

We think that the power of Congress in such times and in such localities to authorize trials for crimes against the security and safety of the national forces may be derived from its const.i.tutional authority to raise and support armies and to declare war, if not from its const.i.tutional authority to provide for governing the national forces.[Footnote: _Ex parte_ Milligan, 4 Wallace's Reports, 141.]

The Const.i.tution of the United States contains some provisions restricting the jurisdiction of military authorities and tribunals over controversies, which are not found in the Const.i.tutions of the States. It may well be that martial law has for the United States a narrower meaning than it may possess in a particular State.