Re Gompers

Mr. Chief Justice Shepard

dissenting:

I regret that I cannot concur in the opinion of the majority of the court, and shall state the grounds of my dissent as briefly as practicable.

The question of first importance is whether the criminal contempt charged constitutes an offense against the United States, and is therefore subject to the bar of the statute of limitations. In my opinion such a contempt does constitute ' an offense against the United States. It was so regarded by the Supreme Court of the United States in the earliest ease upon the subject,—Ex parte Kearney, 7 Wheat. 38—43, 5 L. ed. 391-392. In that case a writ of habeas corpus was denied to review a conviction of criminal contempt, on the ground that it was a criminal offense. This was followed in New Orleans v. New York Mail S. S. Co. 20 Wall. 387-392, 22 L. ed. 354-357, where Mr. Justice Swayne said: “Contempt of court is a specific criminal offense. The imposition of a fine was a judgment in a criminal case.” See also O’Neal v. United States, 190 U. S. 36-38, 47 L. ed. 945, 946, 23 Sup. Ct. Rep. 776, 14 Am. Crim. Rep. 303; Bessette v. W. B. Conkey Co. 194 U. S. 324-326, 48 L. ed. 997-1001, 24 Sup. Ct. Rep. 665, where Mr. Justice Brewer said: “A contempt proceeding is sui generis. It is criminal in its nature, in that the party is charged with doing something forbidden, and, if found guilty, is punished.” See also Worden v. Searls, 121 U. S. 14-26, 30 L. ed. 853-857; Re Muller, 7 Blatchf. 23, Fed. Cas. No. 9,911; Fischer v. Hayes, 19 Blatchf. 13, 6 Fed. 63-64, s. c. 102 U. S. 121, 26 L. ed. 95; United States v. Jacobi, 1 Flipp. 108, Fed. Cas. No. 15,460; Castner v. Pocahontas *338 Collieries Co. 117 Fed. 184; Bullock Electric & Mfg. Co. v. Weslinghouse Electric & Mfg. Co. 63 C. C. A. 607, 129 Fed. 105—107; S. Anargyros v. Anargyros Co. 191 Fed. 208—212; Re Schull, 221 Mo. 623-627, 133 Am. St. Rep. 496, 121 S. W. 10; Williamson's Case, 26 Pa. 1-19, 67 Am. Dec. 374; People ex rel. Blumle v. Neill, 74 Ill. 68. In the following State cases criminal contempt was held to be an offense, and, as such, within the power of the executive to pardon: Ex parte Stickney, 4 Smedes & M. 751; State ex rel. Van Orden v. Sauvinet, 24 La. Ann. 119—122, 13 Am. Rep. 115; Sharp v. State, 102 Tenn. 10, 43 L.R.A. 788, 73 Am. St. Rep. 851, 49 S. W. 752. In Beattie v. People, 33 Ill. App. 651, it was held a misdemeanor, and, as such, subject to the general bar of the statute of limitations. In the case of Gompers v. Buck's Stove & Range Co. 221 U. S. 418—444, 55 L. ed. 797-807, 34 L.R.A.(N.S.) 874, 31 Sup. Ct. Rep. 492, certain fundamental rules of the criminal law were declared to govern as follows: “In proceedings for criminal contempt the defendant is presumed to be innocent; he must be proved to be guilty beyond a reasonable doubt, and cannot be compelled to testify against himself.” In Pierce v. United States, 37 App. D. C. 582—589, this court said: “It is therefore in the nature of a criminal proceeding, and governed by the principles and procedure relating thereto, save in respect of indictment and trial by jury.”

It is argued that criminal contempt is not an offense against the United States, punishable as a crime, because it is not defined in the statutes, and the courts of the United States have no jurisdiction of common-law offenses. Undoubtedly, the general principle that the United States coxirts have no power to entertain a criminal charge unless it be an offense defined by statute prevails; but the question is: Is there a well-defined exception to this rule that includes the present case? In the beginning in England, a contempt of the King’s court was a crime punishable by information or indictment, and this applied to offenses committed in the presence of the court. This is established by the researches of Solly Flood, Q. C., *339 contained in an article before the Royal Historical Society in 1885. Transactions of the Royal Historical Society N. S. vol. 3, 47-147. The object of the article was an inquiry into the foundations of the legend of the commitment of Prince Henry for contempt, by Chief Justice G-ascoigne, as depicted by Shakespeare. (Second Henry IV. Act V., Scene 2.) The author was quite successful in demonstrating the want of foundation for the story. He established the fact by reciting the proceedings in the Year Books from the earliest days, that in no instance had there been a case where a criminal contempt had been punished in a summary way, or without indictment, presentment, or information, prior to the beginning of the reign of Henry the Fifth. A transcript from the Year Books is given in the publication. John Charles Fox, who took up the question later, shows that no change was made in the procedure until the star chamber assumed the power to examine and punish contempt of the several courts. This power was exercised until its abolition by act of Parliament in Sixteenth Charles I., which act recites that all matters determinable in that court may have their proper remedy and redress by the common law of the land. From this time began the summary proceeding for contempt in the common-law courts. See 24 Law Quarterly Rev. 184, April and July, 1908, Number 95, title Bex v. Almon. Prof. J. II. Beale, Jr., expresses the same opinion. He says: “Active contempt of the court, like similar contempt of the Hing’s writs, is a crime, and may be presented by indictment, presentment, or information.” 21 Harvard L. Rev. Jan. 1908, pp. 161-169.

Lord Halsbury in his Laws of England, treating of contempt says (vol 7) : “604. Criminal contempt is a misdemeanor punishable by fine or imprisonment, or by order to give security for good behavior. The superior courts have an inherent jurisdiction to punish criminal contempt by the summary process of attachment or committal in cases where indictment or information is not calculated to serve the ends of justice. The power to attach and commit, being arbitrary and unlimited, is to be exercised with the greatest caution, and as the applica *340 tion of this remedy invokes the withdrawal of the offense from the cognizance of a jury, it is only to be resorted to where the administration of justice -would be hampered by the delay involved in pursuing the ordinary criminal process.”

Again he says (vol. 9) : “998. Contempt of court is a misdemeanor at common law and punishable by fine and imprisonment without hard labor. Contempt of a court of record is also punishable summarily by committal or attachment by that court, and this is the course usually taken. But in all cases the remedy by indictment remains.”

It was a necessary power to preserve the orderly administration of justice. As said by Lord Chief Justice De Grey: “It is legal because necessary.” Crosby’s Case, 3 Wils. 188; see Ex parte Fisk, 113 U. S. 713-718, 28 L. ed. 1117-1119, 5 Sup. Ct. Rep. 724.

In a case in the circuit court for the District of Columbia an indictment for using contemptuous language to the mayor of Alexandria in a proceeding before him as ex officio justice of the peace was upheld. United States v. Beale, 4 Cranch, C. C. 313, Fed. Cas. No. 14,549. That this necessary power was recognized as a part of the judicial power at the time of the adoption of the Constitution is thus stated by Mr. Justice Harlan: “The moment the courts of the United States were called into existence and invested with jurisdiction over any subject, they became possessed of this power.” Ex parte Terry, 128 U. S. 289-305, 32 L. ed. 405-409, 9 Sup. Ct. Rep. 77. The learned justice quoted also with approval Cartwright’s Case, 114 Mass. 230-238, where it was said this power “is inherent in courts of chancery and other superior courts, as essential to the execution of their powers and to the maintenance of their authority, and is part of the law of the land, within the meaning of Magna Charta and of the 12th Article of our Declaration of Bights.” He also quoted the following from Cooper’s Case, 32 Vt. 253-257: “The power to punish for contempt is inherent in the nature and constitution of a court. It is a power not derived from any statute, but arising from necessity; implied, because it is necessary to the exercise of all *341 other powers.” See also Eilenbecker v. District Ct. 134 U. S. 31-37, 33 L. ed. 801-803, 10 Sup. Ct. Rep. 424. The existence of the power was expressly recognized by statute. Rev. Stat. 725, U. S. Comp. Stat. 1901, p. 583. In Re Sabin, 131 U. S. 267-276, 33 L. ed. 150-153, 9 Sup. Ct. Rep. 699, it was said: “Under that statute the question whether particular acts constituted a contempt, as well as the mode of proceeding against the offender, was left to be determined according to such established rules and principles of the common law as were applicable to our situation.” Consistent with this view relating to the common-law power of the courts and the mode of procedure is the declaration of the supreme court in Gompers v. Buck’s Stove & Range Co. supra, that while trial by jury is not permitted, certain other principles of the Bill of Rights applicable to all criminal proceedings are to be observed. It seems clear that this right of summary procedure for criminal contempt was an essential part of the judicial power when our Constitution was adopted, and passed as an incident of that power in the creation of the courts of the United States, as indicated in the cases cited above. Ex parte Terry; Re Sabin; Eilenbecker v. District Ct. For this reason the denial of the right of trial by jury is clearly within the principle enounced by Mr. Justice Brown in Robertson v. Baldwin, 165 U. S. 275-281, 41 L. ed. 715—717, 17 Sup. Ct. Rep. 326. In that case a writ of habeas corpus had been denied in the circuit court for the district of Oregon. It had been sued out by seamen of an American bark, who had been, and were, confined on board ship by order of a justice of the peace under the power conferred by an act of Congress relating to seamen. Rev. Stat. secs. 4596, 4598, and 4599, U. S. Comp. Stat. 1901, p. 3113. An appeal was taken to the Supreme Court, and the argument was that this imprisonment and compulsory service' were in violation of the 13th Amendment. Mr. Justice Brown said: “The law is perfectly well settled that the first ten Amendments to the Constitution, commonly known as the Bill of Rights, were not intended to lay down'any novel principles of government, but simply to embody certain guaranties and immunities’ *342 which we had inherited from our English ancestors, and which had from time immemorial been subject to certain well-recognized exceptions arising from the necessities of the case. In incorporating these principles into the fundamental law, there was no intention of disregarding the exceptions, which continued to be recognized as if they had been formally expressed. Thus, the freedom of speech and of the press (art. 1) does not permit the publication of libels, blasphemous or indecent articles, or other publications injurious to public morals or private reputations; the right of the people to keep and bear arms (art. 2) is not infringed by laws prohibiting the carrying of concealed weapons; the provision that no person shall be twice put in jeopardy (art. 5) does not permit a second trial, if, upon the first trial, the jury failed to agree, or if the verdict was set aside upon the defendant’s motion. United States v. Ball, 163 U. S. 662-672, 41 L. ed. 300-303, 16 Sup. Ct. Rep. 1192. Nor does the provision of the same article that no one shall be a witness against himself impair his obligation to testify, if the prosecution against him be barred by the lapse of time, a pardon, or by statutory enactment. Brown v. Walker, 161 U. S. 591, 40 L. ed. 819, 5 Inters. Com. Rep. 369, 16 Sup. Ct. Rep. 644, and cases cited. Nor does the provision that an accused person shall be confronted with the witnesses against him prevent the admission of dying declarations, or the depositions of witnesses who have died since the former trial.” Robertson v. Baldwin, 165 U. S. 275—281, 41 L. ed. 715—717, 17 Sup. Ct. Rep. 326. See also Dallemagne v. Moisan, 197 U. S. 169-174, 49 L. ed. 709-711, 25 Sup. Ct. Rep. 422.

This review makes it plain, to me at least, why all of the courts of the United States, civil as well as criminal, have jurisdiction of this particular offense, which has not been made a crime by statute. Being a criminal contempt, that is to say, a specific criminal offense prosecuted according to the practice of the courts of common law, I am of the opinion that it comes within the spirit, if not the letter, of Rev. Stat. sec. 1044, U. S. Comp. Stat. 1901, p. 725, which reads: “No person shall be prosecuted, tried, or punished for any offense not capital, *343 except as provided in sec. 1046, unless the indictment is found, or the information is instituted within three years next after such offense shall have been committed.” The spirit of the enactment is that no one shall be punished for an offense not capital, unless the prosecution shall have been instituted within three years from its commission. The reason for requiring speedy prosecution in cases of criminal contempt are, if anything, stronger than those which apply to ordinary crimes and misdemeanors. The benefit of the punishment is largely lost by delay. The prosecution in this case was begun by the report of the committee making charges under oath, and is tantamount to an information, though not technically one. Save in the exceptional cases where the contempt is committed in the presence of the court, the defendant must be informed of the charge which he is called to answer.

In accordance with this view, every specification of the charge against John Mitchell was barred at the institution of the proceeding, and the judgment convicting him of contempt should therefore be reversed. The fifth specification of the charge against Frank Morrison is the only one not barred by limitation, and that one lacks the distinctness of allegation required in such a case. For example, it charges him with wilfully aiding Samuel Gompers in the circulation of the American Federationist for January, February, March, April, May, June, and September, 1908, in each of which reference was made to the Buck Stove & Kange Company, in connection with the unfair list, etc. As to the numbers of January, February, March, April, May, and June, the charge is barred. Only the last number, for September, 1908, comes within the three-year period. As to this the charge is too general to put the party upon notice.

In my search of the record I find but two paragraphs read from the Federationist of September, 1908. The first paragraph is a recital of the fact that Gompers, Morrison, and Mitchell had been “hailed into court, charged with violating the celebrated injunction order. * * * Money makes the marc go, and Mr. Van Cleave’s money is making this contempt case *344 ■go, but we have had Van Cleaves before, and will have them in the future, and labor will rise in its might and crush Mr. Van Cleave and all his money that may work now or in the future for the purpose of restricting labor in its fundamental rights of free speech and free press.” It is a fact that the proceeding for cont.empt there referred to was instituted by Mr. Van Cleave, as president of the prosecuting company, and apparently at his expense.

• The second paragraph is on the subject of free speech and free press, as threatened by injunctions, but contains no mention of the boycott or the names of any of the parties. Both paragraphs were objected to as irrelevant. In one place also in the record of the testimony it would appear that the entire petition filed against the defendants, for contempt, by the Buck Stove & Bange Company was published in the same number. I perceive no violation of the injunction in any of these articles. All newspapers had the right to publish the court proceedings.

Coming to the specifications of the charges against Samuel Gompers that are within the three-year period. The charge in Article 10, July, 1908, is the publication of the facts in regard to the granting of the injunction. This gives a general statement of the points of the injunction, and concludes with the following paragraph: “The injunction does not compel anyone to buy the Van Cleave stoves and ranges.” Jt certainly was not a violation of the injunction to publish the fact that it had been granted; and as regards the paragraph above, this is a statement of a fact, and does not necessarily show an intention to violate the injunction order. Article 11, September, 1908. This seems to me to be an expression of opinion with regard to the effect of the action of the court which was not prohibited by the injunction. Article 12 is to the same effect. Article 13 containing extracts from the speech of Samuel Gompers of September 29, 1908, is to the same effect. Article 11 likewise. Article 15, which contains the report of a speech made at a reception November, 1908, is of the'same character. Article 16 contains the report of a speech made by *345 Grompers at Baltimore, In this there is no violation of the injunction. It is true that he described the injunction as an unwarranted invasion of his rights, and said that it is the duty of the citizen in such case to refuse obedience and to take whatever consequences may ensue. While this may have shown an intention to continue the boycott in violation of the injunction, if there was any evidence that the boycott had been continued, yet, in the absence of any proof that the boycott had been continued, or there ever had been an express violation of the injunction, the remark itself was not a violation. It is a heated expression, and nothing more than the braggadocio of a political speech.

It is to be remembered that the publication of the “Unfair list” had been discontinued in obedience to the command of the injunction, and there is no evidence that the prohibited boycott had been renewed or carried on by anybody, anywhere. It is declared by the supreme court that the proof of the offense must be established beyond a reasonable doubt. Each defendant had made answer under oath denying any violation of the injunction, or any attempt, or intent to disobey the order of the court. It is true that the rule of the common law which permitted one to acquit himself of contempt by denial of the charge under oath no longer prevails in this jurisdiction. Pierce v. United States, 37 App. D. C. 582—586; United States v. Shipp, 203 U. S. 563-574, 51 L. ed. 319-324, 27 Sup. Ct. Rep. 165, 8 Ann. Cas. 265. But as suggested in the Shipp Case, the rule might apply where the intent is ambiguous.

As weight has been given to the failure of the defendants to take advantage of the suggestion made in the report of the committee, which is copied in the opinion of the court, I take leave to express my views upon the point. This suggestion assumes the guilt of each defendant, and is that they confess that guilt, make due apology, and assurance of their submission in future to the law as pronounced in the opinions of the courts. In case of compliance with this suggestion it is suggested to the trial court that it accept the same and extend mercy. The failure of the several defendants to act upon this suggestion *346 should, in my opinion, have ended the matter then and there. The trial court, however, pressed the matter, especially upon defendant Mitchell, as is shown in several pages of the printed record. The. defendant answered that he had truthfully asserted that he had not disregarded the injunction, or aided in the prosecution of a boycott, and was disinclined to make any statement that would be regarded as either directly or inferentially an acknowledgment that his testimony is not true. Kesponding to a final suggestion of the trial justice, he addressed him the following letter, which is embodied in the record.

Mount Vernon, N. Y.

February 17, 1912.

lion. Daniel Thew Wright, Associate Justice,

Supreme Court of the District of Columbia,

Washington, D. C.

Sir

At the close of my cross-examinatión in the contempt proceedings instituted against Mr. Gompers, Mr. Morrison, and me, the court stated that I was free, at any time, before these proceedings close, to give expression to the court, either orally or in written communication, upon the subject of the following recommendation:

“The court strongly recommends that you consider again the propriety of acquainting the court, before these proceedings close, with your conviction whether you ought and whether you expect hereafter to lend adherence to the degrees of the judicial tribunals of the land in matters committed by law to their jurisdiction and power.”

I have given the court’s recommendation careful thought and serious consideration, as a result of which I desire to say that I believe a statement by me that I “expect hereafter to lend adherence to the decrees of the judicial tribunals of the land” would be subject to no other interpretation than that I had heretofore failed or refused to comply with the lawful decrees of the courts, and that my evidence in this proceeding *347 was not truthful and sincere and in keeping with the facts in this case. I am not willing to make any statement that would impugn my own testimony. I am not willing by any device or subterfuge to attempt to deceive the court or secure an acquittal by any other means than those of the evidence and the truthfulness of the testimony.

Indeed, I should feel more contentment if convicted conscious of the rectitude of my course and the truthfulness of my evidence, than if acquitted on any other grounds than the facts as they have been presented to the court, and the law as it has been enunciated by the higher tribunals.

Yours respectfully,

(Signed) John Mitchell.

The failure or refusal to accept the suggestion has been considered as “important in measuring the intent and temper of the defendants.” I am unable to see how the refusal to apologize for an act, the commission of which had been expressly denied, shows a reprehensible intent or temper. On the contrary, it seems to me the natural conduct of a self-respecting man. Having sworn that he had neither disobeyed nor intended to disobey the mandate of the court, a confession that he had done so would be a solemn admission of the commission of wilful perjury. Moreover, the demand that the court be acquainted “before these proceedings close, with your conviction whether you ought and whether you hereafter expect to lend adherence to the decrees of judicial tribunals of the land in matters committed by law to their jurisdiction and power,” was entirely outside of the offense charged, and beyond the power of any court.

In my opinion the judgment should be reversed.

A petition by the appellants for the allowance of a writ of error to remove the cause to- the Supreme Court of the United States for review by that court was denied by the court of appeals May 23, 1913.

Thereupon the appellants applied to the chief justice of the *348 Supreme Court of the United States for the allowance of an appeal, or writ of certiorari, and thereafter the supreme court of the District of Columbia, by its several justices and through the committee of the bar, theretofore appointed by that court to act in the contempt proceedings, filed in the Supreme Court a petition for the allowance of a writ of certiorari, in which petition, after calling attention to the modification by the court of appeals of the punishment of the appellants, the petitioner said: “The jurisdiction thus assumed by the court of appeals is not only in departure from its own repeated adjudications upon the question involved (Gompers v. Buck Stove & Range Co. 33 App. D. C. 516, 577; Pierce v. United States, 37 App. D. C. 582, 587; Raymond v. United States, 26 App. D. C. 250, 257), but is one of great general interest and of far-reaching importance and effect; since, if correct, it not only makes sentence imposed by this court in every case of either a criminal or of a quasi criminal nature appealable to the court of appeals, but takes from this court, and from all other courts of similar character, the summary power to enforce their orders and decrees and to vindicate assaults upon them which have hitherto been held inherent in and necessary to the existence of all courts, and postpones, if sustained, the prompt and necessary assertion by this and similar courts of their inherent powers, and the enforcement of their orders, judgments, and decrees, until after an appellate tribunal shall have passed upon, concurred in, revised, or modified the orders and judgments in cases of contempt which the courts whose authority has been offended against have imposed.

“In view of the great public importance of the questions involved, this court concurs in the petition of the said respondents, which they are advised is to be by them presented to the Supreme Court of the United States, that a writ of certiorari may be issued requiring the court of appeals of the District of Columbia to certify to the Supreme Court of the United States, for consideration and review by it of the questions presented to and determined by the said court of appeals in the contempt proceedings against the said Samuel Gompers, John Mitchell, *349 and Frank Morrison, the proceedings in said canse No. 2477 in tbe court of appeals of the District of Columbia, to the end that said questions may be determined in accordance with law and as their great importance demands.”

On June 20, 1913, there was received by the court of appeals an order signed by the chief justice of the Supreme Court of the United States, allowing an appeal and writ of error to that court, and the record was accordingly removed thereto.