EX 'PARTE
CUDDY.
83
America agMnlit the said Young in the evenidhe said McGarvin should be sworn asa juror in said action. Now, it is here adjudged by the courttbat the said Th@masJ. Cuddy did thereby commit a,contempt of this eOUJ;t, fOr which contempt it is now, here ordered and adjudged that the said Thomas J. CUddy be frnprisoned in the county jail of the county of Los .Angeles far the period of six from this date, and the marshai of this districtwiUexecute this judgment forthwith."
The petition sets forth the' proceedings taken by the court, and alleges that tpetransaction which was the basis ,of tbecharge,agltirist the petitioner, a:qcl for which the judgment was rendered, took place,on the 11th day of February, 1889, when the district court was not in and nearly a quarter of a mile distant from the court-house in which that court is held. He therefore claims that the district courOlad no jurisdiction to try and sentence him for the alleged contempt, because the act charged as such wasc'ommitted at the time and place designated, and was not ad;judged to have been done corruptly, or by threats or force. ':l:'he :purport of the. objection is that. the act charged as a was not committed in the presence of the court, or 80 near thereto as to obstruct the administration of justice; and therefore did not present a case withillthe power of tpe court to punish summarily, under section 725 of the Revised Statutes, and therefore that the ju,dgment was illegal and void. 'fhat section reads as follows: "The said courts (of the United States)"shall havepower. · · to punish by fine or imprisonment, i'J,t the discretion of the court, cl)ntempts or theh:autbority: provided, that such power to punish contempts shall not be construed ,to extend to any. case '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 lawfnl writ, process, order, rule, decree, or command ofsaid courts." Themarshal returns the wa.rrant of commitment under which he holds the prisoner. By consent of parties the record in the case of the petitionerbefure the district court and in the supreme court of the United States is also presented. By that record it appears that the petitioner t OJHhe9th day of April t 1889, applied to the district court for the southem district of California for a writ of habeas corpus in order that he might be discharged from'the imprisonment now complained of, asserting, as now, th,at the same was illegal for the reason that the court had no jurisdiction wtry and sentence him, because ,the matters set forth in the judgment do not constitute any contempt under section 725 of the Revised Statutes, and because the judgment was not founded upon proceedings'in due cburse of law; that the district court, after due considthe repplication for a writ; that thereupon an appeal was taken from the judgment to the supreme court ofthe United States, where, after argument and due consideration, the judgment was affirmed. 131 U. s. 280, Ct. Rep. 703. The additional matter set forth in the present onl.r of the testimony which waS before district court when 'thiS ques'tionofcontempt.charged againstthepetitionQr was
64.
FEDERAL REPORTER,
vol. 4.0.
considered. and which might contained in the record of the and, if deemed important for the due consideration of the validity'bf the jUdgment of the district court, should have been thus presented.'The finding and judgment of the district court do not state that the acts constituting the alleged contempt were. done in the presence of the court, or so near thereto as to obstruct the administration of justice. The supreme court held that, if done in the presence of the court, "that is, in the place set apart for the use of the court, its officers', jurors, and witnesses, they .were clearly a contempt, punishable as provided in section 725 of the Revised Statutes, by fine or imprisonment,at the discretion of the ('ourt, and without indictment;" but that, inasmuch as the district court possesses superior jurisdiction within the meaning of the familiar rule that the judgment of such courts cannot be attacked collaterally, it must be presumed that it acted rightly upon such a state of facts',as authorized its judgment; that the want of jurisdiction not apaffirmatively, it 01 ustbe presumed that the evidence made a case withip its jurisdiction to punish the petitioner in the mode prescribed. The judgment of the district court was therefore affirmed. The petitioner, in the {lresent application, as appears from what has already been said, supplies what was omitted in his record to the supreme court. At the outset the question is thus presented whether it is permissible for a party to appeal from ajudgment denying his application, voluntarily omitting a material portion of his easel and, after invoking the judgmentor the appellate court upon the record presented, and failing therein, to,renew his application before another court or justice of the United States, without first having obtained leave for that purpose from the appellate court. ,Before passing upon this question some consideration should be given to the position of the district attorney as to the jurisdiction of the <lourt to punish summarily as a contempt an act obstructing the administration ofjustice in pending cases, even ifcommitted at a distance from the court-room. He contends, if! rightly understand bim, thata11 the Offi9Elrs and parties necessarily attending or summoned to attend in pending cases in the courts of. the United S.tates as marshals, clerks, jurors, and witnesses so near thereto," that is, so connecte.d therewith,-applying the "so near thereto" as indicating relationship of subject, rather than. relationship of plaee,-that misbehavior towards them, though they are distant at the time from the court·room, or during: the temporary adjournment of the court, constitutes a contempt punishable under the .statute. Certain it is that attempts to turn such officers or parties from the performance of their duty, in order to secure the selection of particular persons as jurors, or to bias the judgment of the jurofSselected, or to influence witnesses to suppress or qualify their testimony, or to absent themselves from the court, or threats of violence,or the use of insulting language to them respecting, or to influence, thtlir conduct, though uttered or done outside of the court-house, and at a distance from it, are as much an obstruction to tp.e administration of justice as though uttered Qr· done within its walls. Though I am not quite prepared to accept this position of the district attorney, it is entitled to grave C9nsideration.
EX PARTE CUDDY.
65
Ido not wish ;to express an opinion upon it, as it is unnecessary to the· disposition of the case, and for the further reason that the justices of the supreme court deemed it of sufficient importance to reserve their judgIDent upon it. The statute also declares the disobedience or resistance by any person of any" lawful writ, process, order, rule, decree, or command" of the courts of the United States to be a contempt. It is the practice of the district courts ·of the United States to command all persons summoned and sworn as term-trial jurors to avoid speaking withothers, and not to allow other.s to speak to them with respect to cases which may be tried before them. Such a command, if a standing rule of the court, or given, as usual, in its instruction to the jurors, when accepted, would bind all persons, jurors, parties, and others cognizant of it; and a disobedience of it would be a flagrant contempt. Nothing, indeed, can tend more to pollute the administratiQn of justice than to allow tampering with jurors. Any attempts, however slight, to swerve them from the strict line of their duty, should be punished with the utmost ri/!;or. Purity in the administration of justice could not otherwise be maintained, and such purity is the only safety of the people under a free and popular government. I suppose such a command was given by the district court in its instructions to the trial jurors of the term, to one of whom the improperap,Proach was made which constitutes the contempt for which the petitioner was sentenced to be imprisoned; but, as no record is preserved of it, I cannot act upon the suggestion of the fact. I return, therefore, to the question whether the petitioner can renew his application for a writ after the decision of the supreme court onbis appeal to that tribunal, without first having obtained iiB leave. If he can renew it on another record, which may also be in some other particular defective, and so on indefinitely whenever he fails on appeal, it is plain that t11,e writ may often become an instrument of oppression, instead of a means of relieving one from an unjust and illegal imprisonment. The writ of habeas corpus, it is true, is the writ of freedom, and is so highly esteemed that by the common law of England applications can be made for" its issue by one illegally restrained of his liberty to every justice of the kingdom having the right to grant such writs. No appeal or writ of error was allowed there from a judgment refusing a writ of habeas corpus; nor, indeed, could there have been any occasion for such an appeal or writ of error, as a renewed application could be made to every other justice of the realm. The doctrine of res judicata was not held aplJlicable to a decision of one court or justice thereon; the entire judicial power of the country could thus be exhausted. Ex parte Kaine, 3 Blatchf. 5, and cases there cited. The same doctrine formerly prevailed in the several states of the Union, and, in the absence of statutory provisions, is the doctrine prevailing now. In many instances great abuses have attended this privilege, which have led in someof the states to legislation on the subject. And, in the absence of such legislation, while the doctrine of res judicata does not apply, it is held that the officers before whom the second application is made may take into consideration the fact that a previous application v.40F.no.2-5 I
vol. 40.
h'ad l>een'illade to another officel'snd refused; and in some. instances that' fa6t n)ayjustify a refusal of the second. The action ofthecourt or justice on th'e second application will natuta.lly be affected to some degree by the' character of the court or officer to whom the first application was made, of the consideration given to it. I hardly think that an ordimity justice would feel 1ike disregarding and setting aSide the judgment ora magistrate like Chief Justice MARSHALL, or OhiefJustice 'fA-' NEY, who had refused anapplicatio:n for a writ after full ()Qnsideration. In some states an exception is also ingrafted upon the general doctrine· where a writ is issued to dtltfirmine, 'as between husband and wife, which of the twol;lhall have the custody of thek children. In what I have said I refer, of to cases where a second application is made upon the sarne facts presented, or which might have been presented, on the first. The question is entirely differentwhen subsequent occurring events have' changed the situation of the petitioner so .as in fact to present a new case for coI1sidera:tion. . In the present application are no new facts whjch did not exist when the firs.t was presented. Arid under the law' of the United States an appeal is allowediothe supreme court where the writ is refused,---aprovision which w?uld seem tohave been adopted to preVent ;a'second application upon the sarne. facts which were or might have been presented in the first instance.. I am of the opinion that in sllch a case a second application should not be heard, except where the of affirmance by the supreme court is rendered without prejudicet(), or with leave to make a new application by, the petitioner. He need not have appealed from the refusal of the district court; he could hll.veapplied to the circuit judge, and also, afterwards, to the circuit jusHe ,itot think proper tOl?llrsuethat course, but took his peal to the, supl'emecourt, and durIng the argument there no suggestIOn wits;'madethat the'record did I1otfunydisclose the petitioner's casej and' when that tribunal decided the case, no, request was made for permission to renew the application; and now tl;le imprisonment of the petitioner tiMer the judgment affirmed by court is drawing to a closej it will expire with this' day. This writ Inust therefore be dismissed, and the renlanded;and it is so dr4ered. " ;
I
I,'
Ex .parle' FARLEY. Ex parte' WILSON·. Court, W" D. 4'1'kqmaB. October 14,1889.)
10
HalliA8 CORPUe-JURXSDXOTIO:N Ol!'UNtTlilbSTATES COURT.'
'A Unlte4States circuit or district cOurt,iot any judge thereof,mayfesue writ' of CorpU8 in every case where it is alleged a party is restrained of his Uberty anywhere in the territorial jurisdiction of such courts without due process of iaw, ot'against the constitution or laws of tlbe United States·. This may tie done by an order Qr pxweeding of a state court, or any, United States court, or by a· persoll, 'acting 'outside of a court. .. . ' "
.
. a
',' 2. "
EX PARTE poARLEY. ' " , ,: "
67 I,·"
B'f:a habeas cortn«! proceeding the jurisdiction of II. court trying a pergon'may be mquired into, and the court having power to issue the writ will look intG 50 the proceedings as will enable it to determine whether jurisdiction exists , CoURTs-JURISDlOTIOlf.
8.
Jurisdiction in a court to try' a case means jurisdiction over the place, the person, and the thing, or the subject-matter. That there may be subject-matter there must be an act tliat isaerime, and this act must be properly and legally presented beforl:! a court. ' '
f. SA.ME-FEDERA.L JURISDICTION.
, Allcourts of the United States are creatures of thl:! constitution and laws of the United States, and have Only such jurisdictional powers as are conferred by the constitution and laws of the United States. '
5.
SAME-COURTS IN INDIAN TERRITORy-GRA.ND JURY.
The United States court at Muskogee, Indian Territory, has no power to impanel a grand jury, as no such power is given by the act creating it, and section 808 of the Reviseq Statutes of the United States has reference only to United States circuit ordistnct courts, and' the court at Muskogee is neither. The power to impanel a grand jury is not an inherent power of a court of the United States, but is derived from the'sl;atutes. , ' In, construing the meaning of a law the court may consider the statements of those who had charge of the act as to the meaning and purpose of the act m,ade to the legislative body passing it.
6.
STA.TUTEs-CONSTRUCTION.
7.
INDICTMENT AND INFORMATION-:-lLLEGA.L GRA.ND JURY.
The grand jury impaneled by the United States court at Muskogee was impaneled without authority of law, and was an illegal body. An indictment found by it would be simply a nullity. '
SAME-DUE PROCESS 01/ LA.w.
A person convicted and sentenced to imprisonment for larceny upon such an indictment would be illegally convicted and sentenced, and is therefore restrained of his liberty-without due process of law, and contrary to the constitution and laws of , the United States.
9.' HA.BEA.8 CORPus-DISCRETION OP COURT. Wben lIuoh facts are shown, the writ of habeas corpus becomes a "writ of ,right, " and the court having the power to issue it can exerCIse no sound discretion against issuing'it. (SyUabus by the Court.)
On Rule to Show Cause why Writs of Habeas Ooryus Should not Issue. The cases of the two petitioners are precisely alike, and they will there. fore be considered together. In their petitions they allege that they - - - day of September, 1889, indicted by a grand jury, so were, on called, impaneled by the United States court for the Indian Territory, for the crime of larceny; that on the day of September, 1889, they were tried upon said indictment by a petit jury in said court. They were by said jury convicted on said charge; that on the 9th day of September, 1889, the court, upon said verdict of guilty, entered judgment against them, and sentenced them to one year's imprisonment in the jail at Muskogee, where they are now confined; that the said parties are now illegally imprisoned; that they are restrained of their liberty contrary to the constitution and laws of the United States, because said indictment was found by a grand jury that had no legal existence, as it was impaneled without authority of law; that the court had no legal authority to impanel a grand jury; that the indictment found by it is a nUllity; that they are entitled to the writ of habeas CGryUS, that the legality of their imprisonment may be inquired into. M. H, Edmiston. and Wm. H. H. Clayton, U. S. Dist. Atty., for petitioners.
68
z. 2'.
Walrond, U. S. Atty., for the Indian country, in opposition.
PARKER, J., (after stating the}actB as above.) This court has no jurisdiction, by writ of error or appeal, to pass even on the of the court at Muskogee. By such means it would have no right to inquire into the cause of imprisonment of a party restrained of his liberty, no matter how illegal such restraint might be. But if the illegality of restraint grows out of a sentence imposed, or any order of imprisonment which the court could not make for want of jurisdiction, the want of jurisdiction may be inc!uired into by this court by a habeas corpus proceeding; and:upon the hearing of such a case the court, or any judge thereof, may make such inquiry as is necessary to enable it to see whether the jurisdiction of the court has been exceeded, or that there is no ,authority to hold the petitioner under sentence. The court may grant this great "writ of right" in every case where a party is restrained of his liberty anywhere in the territorial jurisdiction of the court, against the constitution and laws of the United States, or the petitioner is deprived of his liberty without due process of. law. This may be so done 1>y an order or proceeding of a state court, or any United States court, or_ a person outside of a court; and if so done in the territorial jurisby diction of a United States circuit or district court, such courts, or any j1,1dge thereof,may', upon proper application, issue a writ of habeas corpus to inquire into the jurisdiction of a court, or the want of authority in such court, to restrain a party of his liberty. The jurisdiction of the circuit and district courts within their territorial jurisdictions to issue this writ is the same as the supreme court of the United States within its territorial jurisdiction, which is the whole United States. When the supreme court will review the proceedings of an inferior court by habeas corpuS, a United States circuit or district court has the pdwer,within their territorialjilrisdictions, to inquire, in a case where a . party is restrained of liberty by the order of a court, whether that court had jurisdiction to make the order, or had authority to restrain the party Of his liberty. The state of case which must exist to warrant the invocation of this writ is clearly settled in Ex parte WilBon; 114 U. S. 421, 5 Sup. 935, and the numerous authorities there cited. All these authorities give to the courts having jurisdiction the right bj habeas corpus to inquire whether the court restraining the party of his liberty has jurisdiction to do so. The court, in its inquiry to ascertain the existence of jurisdiction, will look into so much of the proceeding as will enable it to determine whether jurisdiction exists or not. Ex parte Lange, 18Wal1. 163; Ex parte Parks, 93 U. S. 18. It was claimed in· argument that· each court is the judge of its own jurisdiction. That is true to a certain extent. But'it cannot so adjudge its jurisdiction as todaprive 8 person of the right j by habeas corpus, to ask a court having jurisdiction to issue the writ to make inquiry to see if there has been a rightful exercise of jurisdiction. This is sufficient on the motion to dismiss the proceedings in these cases for want of jurisdiction in this court to issue the writ.