Re Gompers

40 App. D.C. 293 | D.C. Cir. | 1913

Lead Opinion

Mr. Justice Van Orsdel

delivered tbe opinion of the Court:

We will first consider the assignments of error challenging the sufficiency of the evidence to support the judgments finding respondents guilty of contempt. The commission of the acts charged are not denied; but the defense is interposed in each case that the acts were not committed with intent to disobey the injunction, and further that there is no evidence that the boycott was continued after the temporary order of injunction became effective. In answering these objections, it is proper to examine the order of injunction, to ascertain the extent to which respondents were by its terms restrained. It is not importaut that tbe order was modified by this court. Our order, as suggested, never became effective, and, however erroneous the original orders may have been, it was not for respondents to determine that fact, but for the proper appellate tribunal in the orderly and prescribed course of procedure. “The preliminary injunction was in force until set aside.” Worden v. Searls, 121 U. S. 14, 27, 30 L. ed. 853, 858, 7 Sup. Ct. Rep. 814. “If a party can make himself a judge of the validity of orders which have been issued, and by his own act of disobedience set them aside, then are the courts impotent, and what the Constitution now fittingly calls ‘the judicial power of the United States’ would be a mere mockery.” Gompers v. Buck's Stove & Range Co. 221 U. S. 418, 450, 55 L. ed. 797, 809, 34 L.R.A.(N.S.) 874, 31 Sup. Ct. Rep. 492.

The contention of respondents that the injunction was void, in that it abridged the right of free speech and the freedom of the press, was held to be unfounded by this court, which holding was approved by the Supreme Court of the United States. 33 App. D. C. 516, 221 U. S. 418. It, therefore, was incumbent upon respondents to obey the injunction, until vacated or modified by proper authority, and until such order of vacation or modification should become effective.

Respondents -were not restrained alone from continuing the boycott, but they were forbidden to print, issue, publish, or distribute, through the mails or otherwise, any written or printed document whatever containing any reference to the Buck’s Stove & Range Company’s business or its product as on the “We Don’t Patronize” or “Unfair” list, or to make any reference to its business or product in connection with those terms, or to make any statement orally or in writing calling attention to the fact that a boycott had been waged against its business or its product, or that it had been declared to be unfair, or that its product should not be purchased, dealt in, or handled by any dealer, tradesman, or other person whomsoever, or by the public, or to make any representation or statement for the purpose of interfering with the business of the Buck’s Stove & Range Company, or with the free and unrestricted sale of its product, or of coercing or inducing any dealer, firm, or corporation or the public not to purchase, use, buy, trade in, deal in, or have in possession, any of its products.

To establish the guilt of respondents, it is not even necessary to invoke the familiar rule that every person is presumed to intend the natural and necessary consequences of his own acts. While the reports, editorials, and speeches published and circulated broadcast could have been intended only to accomplish the result of preventing the members of the American Federation of Labor and their friends, dealers, and the public generally, from purchasing or dealing' in the products of the Buck’s Stove & Range Company, the utterances in themselves, regardless of their effect, constituted a violation of the express terms of the court’s decree. That respondents did not intend to respect the order of the court is apparent from the following extract from the report of Gompers made to the Norfolk Convention, which occurred between the date of the filing of the bill and the making of the temporary order; and which was published and circulated after the order became effective: “Recently one of the branches of the Federal courts decided by a majority vote' that the boycott is illegal. * * * We should démand the change of any law which curbs the privilege and the right of the workers to exercise their normal and natural preferences. In the meantime, we should proceed as we have of old, and, wherever a court shall issue an injunction restraining any of our fellow workers from placing a concern hostile to labor’s interest and themselves on our 'Unfair’ list, and enjoining the workers from issuing notices of this character, the further suggestion is made that upon any letter or circular issued upon a matter of this character, after stating the name of the unfair firm and the grievance complained of, the words, 'We have been enjoined by the courts from boycotting this concern’; could be added with advantage.”

That the terms of the injunction were well understood appears from the editorial of Gompers published and circulated shortly after the decree was entered, wherein he stated: “This injunction enjoined them as officers or as individuals, from any reference whatsoever to the Buck’s Stove & Range Company’s relations to organized labor, to the fact that the said company is regarded as unfair; that it is on an 'Unfair’ list, or on the 'We Don’t Patronize’ list, of the American Federation of Labor. The injunction orders that the facts in controversy between the Buck’s Stove & Range Company and organized labor must not be referred to, either by printed word or orally. The American Federation of Labor and its officers are each and severally named in the injunction. * * * With all due respect to the court, it is impossible for us to see how we can comply with all the terms of this injunction. We would not be performing our duty to labor and to tbe public without discussion of this injunction. * * * The publication of the Buck’s Stove & Range Company on the ‘We Don’t Patronize’ list of the American Federation of Labor is the exercise of a plain right. To enjoin its publication is to invade and deny the freedom of the press,—a right which is granted under our Constitution. * * * The members of organized labor are not themselves obliged to refrain from dealing with the firms on the ‘We Don’t Patronize’ list of the American Federation of Labor. The information is given them. There is no compulsion. They are entirely free to use their own judgment.” This editorial was published and sent out with the “Urgent Appeal,” which was issued by the joint action of all the respondents. It, therefore, may be regarded as their expression, for which they are each to be held responsible.

It must be remembered that we are here dealing with a conspiracy which was formed for the purpose of compelling the Buck’s Stove & Range Company to accept labor’s terms, or submit to the destruction of its business. The two million members of the American Federation of Labor and their friends were enlisted in this cause. The leaders, through their official organs, had signals which were well understood by everyone connected with the organization. As this court said in the injunction case (33 App. D. C. 83, 32 L.R.A.(N.S.) 748), referring to the “We Don’t Patronize” or “Unfair” list: “The court below found, and in that finding we concur, that this list in this case constitutes a talismanic symbol indicating to the membership of the Federation that a boycott is on and should be observed.” In the former case (33 App. D. C. 573) we said: “The mere mention of complainant’s name by these leaders in the columns of the Federationist or on the public platform, in connection with the expressions ‘boycott,’ ‘unfair,’ or ‘we don’t patronize,’ might tend to influence many to disregard the decree of the court, and thus become as effective notice to their followers as it had formerly been when published in the ‘Unfair’ or ‘We, Don’t Patronize’ list.” A similar comment appears in the opinion of the Supreme Court (221 U. S. 439) as follows: “In the case of an unlawful conspiracy, the agreement to act when the signal is published gives the words ‘unfair,’ ‘we don’t patronize,’ or similar expressions, a force not inhering in the words themselves, and therefore exceeding any possible right of speech which a single individual might have. Under such circumstances they become what have been called ‘verbal acts,’ and as much subject to injunction as the use of any other force whereby property 'is unlawfully damaged. When the facts in such cases warrant it, a court having jurisdiction of the parties and subject-matter has power to grant, an injunction.”

The only way to enjoin a boycott of this sort is to prohibit the utterance and publication of the signals, as was done in this case. But, as disclosed by this record, the campaign never ceased. While the name of the Buck’s Stove & Range Company was taken from the “We Don’t Patronize” or “Unfair” list, the fact that it was still to be treated as on the list was heralded through the Federationist and other mediums. It was unnecessary to prove that the boycott continued after the injunction became effective. If it did not, it was not the fault of respondents. They furnished the material to keep the machinery in operation, and therein was the contempt. The result might be presumed, if essential to the determination of the question before us.

In Mitchell’s Case, by his own admission made one year after the commission of the act, he was a direct participant in continuing the boycott. Referring in the former opinion (33 App. D. C. 574) to his presiding over the annual convention of the United Mine Workers, when the resolution set out in the report was adopted, the court said: “The adoption of this resolution could accomplish but one end,—the perpetuation and continuation of the boycott. A labor organization can conduct an unlawful boycott as effectually by compelling its own members to refrain from dealing with the party boycotted, as by coercing others into similar action.”

Error is assigned “in receiving improper testimony over the objection of the respondents, as shown by the bill of exceptions herein,” and “in excluding proper testimony offered on behalf of the respondents, as shown by the bill of exceptions herein.” Whether objectionable testimony was admitted is not before us upon specific assignments of error. The judgment finding respondents guilty of contempt is general, unaccompanied by any finding of fact; hence, it is unnecessary to examine each particular charge, if it appears that in each case there is sufficient proof to support the judgment. Claassen v. United States, 142 U. S. 140, 35 L. ed. 966, 12 Sup. Ct. Rep. 169. The case having been tried to the court, it will be presumed that only competent evidence was considered in making up the judgments, and of such the record discloses sufficient to support the judgment of guilt in each instance. Besides, the trial court is the proper tribunal to determine the weight of the evidence. So far as objections and exceptions to the admission or rejection of evidence appear, the record discloses loose practice. If, however, any objections were so preserved as to be available for review in this court, respondents, in the absence of specific assignments of error, will be deemed to have waived them. The assignments of error touching this matter are so indefinite that counsel did not seem to consider them of sufficient importance to call for argument at bar. They may be presumed, therefore, to have been abandoned.

The assignments relating to the bar of the statute of limitations will now be considered. The charge is for criminal contempt. Gompers v. Buck’s Stove & Range Co. 33 App. D. C. 516, 221 U. S. 418, 55 L. ed. 797, 34 L.R.A.(N.S.) 874, 31 Sup. Ct. Rep. 492. The question at once arises whether criminal contempt is a crime within sec. 1044 of the Revised Statutes of the United States, U. S. Comp. Stat. 1901, p. 725, which provides: “No person shall be prosecuted, tried, or punished for any offense not capital, except as provided in section one thousand and forty-six, unless the indictment is found, or the information is instituted, within three years next after such offense shall have been committed.”

Does the report of the committee in this case rise to the dignity of a criminal information? If it does not, it cannot be embraced within the statute of limitations. At common law, informations were of two kinds,—those filed ex officio by the attorney general, and those prosecuted by leave of court in the name of the coroner or master of the Crown office. 1 Chitty, Crim. Law, 843. The abuse in the star chamber originated out of the latter class, which have never existed in this country. 1 Bishop, Crim. Pro. § 143. Criminal informations in this country are the same as were presented in England by the attorney general, or, in. his absence, by the solicitor general. They differ from indictments only in being presented by the attorney general in England, or the district attorney in this country, instead of by a grand jury. In Goddard v. State, 12 Conn. 448, where a complaint had been filed by a tithingman with a justice of the peace, charging a breach of the Sabbath, and the accused was convicted without a jury, as demanded by him, the court, in holding that the complaint was not a criminal information within the Bill of Bights, said: “If, then, the words ‘indictment’ or ‘information’ have a well-known meaning at the common law, we are to inquire not merely whether this complaint is not much like an information, but whether it is the information of the common law. An information differs from an indictment in little more than the source from which it comes. And a complaint by a tithingman or grand juror may, in its form, differ but little from the information of the attorney general or the master of the Crown office. But this fact will no more prove that it is an information, than that the information of the attorney is an indictment. * * * It has been attempted, by the counsel of the plaintiff in error, to show that in its form and nature it partakes of the features of an information. And it is certainly true that every accusation of one person by another to a magistrate is information to that magistrate. But it is not therefore the information spoken of in the Constitution, because it does not come from the source which gives it that character.”

We think there is a well-defined distinction between a complaint and an information. A complaint may be made by a private person against an alleged offender, and may be used by the proper prosecuting officer as the basis for the filing of an information, or for presenting an indictment to the grand jury. The information referred to in the statute of limitations is what is understood as a criminal information, and, in law, such an information can only originate from the officer charged with the prosecution of crime within the jurisdiction. The report of the committee in the present case meets none of the requirements of an information. It was only intended to present a state of facts to the court upon which it might proceed, is so advised. In contempt, the contemner is brought into court by citation, and the proceeding then is most informal, and in total disregard of many of the essential elements of criminal pleading. In the case of Re Savin, 131 U. S. 267, 33 L. ed. 150, 9 Sup. Ct. Rep. 699, the charge of contempt was orally reported to the court, and written specifications, although demanded by the accused, were denied. On the subject of procedure in contempt, the court said: “It is, however, contended that the proceedings in the district court were insufficient to give that court jurisdiction to render judgment. This contention is based merely upon the refusal of the court to require service of interrogatories upon the appellant, so that, in answering them, he could purge himself of the contempt charged. The court could have adopted that mode of trying the question of contempt, but it was not bound to do so. It could, in its discretion, adopt such mode of determining that question as it deemed proper, provided due regard was had to the essential rules that obtain in the trial of matters of contempt.” What may be said of the procedure in contempt applies equally to disbarment and other matters within the inherent jurisdiction of the court. Randall v. Brigham, 7 Wall. 523, 19 L. ed. 285. In the present case, the court issued citations, and the charges contained in the report were made the basis upon which respondents were tried. But while sufficient for contempt, it will not be contended that such a document could be distorted into a criminal information upon which a defendant could be prosecuted for a crime. “A proceeding for contempt is not a criminal case in the sense that all the provisions of our statutes in regard to criminal practice and procedure are applicable to it.” Hurley v. Com. 188 Mass. 443, 74 N. E. 677, 3 Ann. Cas. 757. .

Contempt of court is not a statutory crime in this country. The Federal courts have jurisdiction only of such offenses as by statute are declared to be crimes. No jurisdiction exists over purely common-law offenses. United States v. Britton, 108 U. S. 199, 27 L. ed. 698, 2 Sup. Ct. Rep. 531; United States v. Hudson, 7 Cranch, 32, 3 L. ed. 259; United States v. Coolidge, 1 Wheat. 415, 4 L. ed. 124; United States v. Eaton, 144 U. S. 677, 36 L. ed. 591, 12 Sup. Ct. Rep. 764. In Manchester v. Massachusetts, 139 U. S. 240, 262, 35 L. ed. 159, 166, 11 Sup. Ct. Rep. 559, the court said: “The courts of the United States, merely by virtue of this grant of judicial power, and in the absence of legislation by Congress, have no criminal jurisdiction whatever. The criminal'jurisdiction of the courts of the United States is wholly derived from the statutes of the United States.”

In the decisions, the courts have expressed a variety of views as to the nature of the action for the punishment of contempts. Some have held it to be a criminal proceeding, in that a penalty is attached; some have held it to be in the nature of a criminal proceeding. Penalty and punishment are not alone sufficient to distinguish the proceeding as criminal. The action is sui generis, in a class by itself, partaking of some of the elements of both civil and criminal proceedings, but, strictly speaking, it is neither. It belongs to a class of proceedings inherent in the court, and deemed essential to its existence. It would hardly be held that a disbarment proceeding is criminal, although a severe penalty may be imposed; or that the power of a court to reprimand its officers for misconduct is a criminal proceeding, though the penalty imposed is humiliating and severe. These belong to a class of proceedings essential to the self-preservation of a court, and inherent in all courts, irrespective of their constitutional and statutory jurisdiction. Contempt, therefore, is without any particular form of action, and not subject to the limitations of procedure prescribed for the conduct of either civil or criminal actions. While Congress has the power to declare an act in contempt of court a crime, it has never exercised this power. The power of the Federal courts to commit and punish for contempt is inherent in the court where the contempt occurs. Ex parte Terry, 128 U. S. 289, 32 L. ed. 405, 9 Sup. Ct. Rep. 77. As was said in Watson v. Williams, 36 Miss. 331: “The power to fine and imprison for contempt, from the earliest history of jurisprudence, has been regarded as a necessary incident and attribute of a court, without which it could no more exist than without a judge. It is a power inherent in all courts of record, and coexisting with them by the wise provisions of the common law.” This statement of the law is quoted with approval in Re Debs, 158 U. S. 564, 39 L. ed. 1092, 15 Sup. Ct. Rep. 900. It is idle to assert that the power to punish for contempt of court is inherited from the common law. The power was inherent in the courts of the United States from their creation, and exists by virtue of their creation. It is not dependent upon precedent, origin, or custom, but would exist if this power had never been exercised by the courts of England. Section 725, Rev. Stat. U. S. Comp. Stat. 1901, p. 583, merely limits the inherent power of all courts of the United States to punish acts in contempt of their authority, and prescribes the punishment that may be inflicted. Pierce v. United States, 37 App. D. C. 582; Anderson v. Dunn, 6 Wheat. 204, 5 L. ed. 242; Ex parte Robinson, 19 Wall. 505; 22 L. ed. 205; Eilenbecker v. District Ct. 134 U. S. 31, 33 L. ed. 801, 10 Sup. Ct. Rep. 424.

All crimes punishable under Federal jurisdiction being statutory, it is important to consider what is embraced within the accepted use of the term “crime.” It is not important that criminal contempts in isolated instances may have been tried by jury upon indictment and information prior to the time of Henry Y. They have never been so tried in this country. The important question before us is whether, under the procedure adopted and followed in the Federal courts, contempts are within the classification of crimes as treated in the Constitution, statutes, and decisions of the courts. Article III. of the Constitution of the United States provides that “the trial of all crimes, except in cases of impeachment, shall be by jury.” The 5th and 6th Amendments to the Constitution provide, among other things, that “no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury; * * * nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury,” and “to be confronted with the witnesses against him.”

The statute of limitations was part of the original judiciary act, passed contemporaneously with the adoption of the Bill of Bights, of which the above Amendments are a part. That Congress had in mind the class of crimes referred to in the Constitution is apparent, in that the statute is limited to crimes prosecuted upon indictment or information, and can only be construed to relate to offenses within the criminal jurisdiction of the Federal courts. Inasmuch, therefore, as the statute of limitations relates only to statutory crimes within the jurisdiction of the Federal courts, it is not important that the courts of the District of Columbia are vested with common-law jurisdiction (Code D. C. sec. 1, [31 Stat. at L. 1189, chap. 854]), since common-law crimes are not embraced within the statute. If contempts are embraced within the classification of crimes included in the statute of limitations, equity, circuit, and probate courts, courts of appeal, and the Supreme Court of the United States are without original jurisdiction to punish for contempt, since the sole jurisdiction over criminal offenses-is confined to the inferior courts of -the United States expressly vested with criminal jurisdiction. Middlebrook v. State, 43 Conn. 251, 21 Am. Rep. 650, where a criminal contempt had been tried and judgment imposed in the court of common pleas, a court without criminal jurisdiction, the court said: “This is not a criminal proceeding within the meaning of the statute. The film and imprisonment which the court is authorized to inflict for a contempt are not intended as a punishment for a crime committed in violation of the criminal law; and punishment for the contempt is no bar to a prosecution for a breach of the peace, notwithstanding the universal maxim that no one shall be put in jeopardy twice for the same offense. Courts of chancery and probate courts have no criminal jurisdiction, and yet it will hardly be denied that they have power to punish for contempt.” In Michigan it has been held that “proceedings for contempt are not criminal causes within the intent and meaning of the Constitution of the United States or of this State.” Re Chadwick, 109 Mich. 588, 67 N. E. 1071.

In Merchant’s Stock & Grain Co. v. Board of Trade, 201 Fed. 20, is found the following admirable distinction between the procedure in criminal prosecutions and in contempt cases: “It is to be noted: First. That criminal contempts are tried summarily, and not in the regular course or way. Séeond. That there is no right of trial by jury. Eilenbecker v. District Ct. 134 U. S. 31, 33 L. ed. 801, 10 Sup. Ct. Rep. 124; Interstate Commerce Commission v. Brimson, 154 U. S. 447, 38 L. ed. 1047, 4 Inters. Com. Rep. 545, 4 Sup. Ct. Rep. 1125; Re Debs, 158 U. S. 564, 39 L. ed. 1092, 15 Sup. Ct. Rep. 900; King v. Ohio & M. R. Co. 7 Biss. 529, Fed. Cas. No. 7,800. Third. Courts of chancery and other courts without criminal jurisdiction can punish for so-called criminal contempt. Middlebrook v. State, 43 Conn. 257, 21 Am. Rep. 650; Cartwright’s Case, 114 Mass. 230; Rapalje, Contempt, sec. 3. Fourth. As there is no power in any except the court against which the contempt is committed to punish it, that is, as such court has exclusive jurisdiction, no change of venue can be allowed. Rapalje, Contempt, § 13. Fifth. For a criminal actual contempt a defendant may, without a waiver and without his consent, be sentenced in his absence. Ex parte Terry, 128 U. S. 289, 32 L. ed. 105, 9 Sup. Ct. Rep. 77; Middlebrook v. State, 43 Conn. 257, 21 Am. Rep. 650. Sixth. An act which is a contempt of court and also a crime may be punished both by the summary provision and by indictment, and neither will bar the other. Bishop, New Crim. Law, sec. 1067; Chicago Directory Co. v. United States Directory Co. 123 Fed. 194; O’Neil v. People, 113 Ill. App. 195. In other words, the constitutional provision protecting him against being twice put in jeopardy does not protect him from being punished for contempt and under indictment for the same act.” For example, had respondents been indicted and tried, as might have been done, under sec. 5399, U. S. Rev. Stat. U. S. Comp. Stat. 1901, p. 3656 (Petlibone v. United States, 148 U. S. 197, 37 L. ed. 419, 13 Sup. Ct. Rep. 542) it would have been no bar to the present proceeding. This distinction eliminates all possibility of dispute as to the classification of contempt of court. If treated as a crime, it would be controlled by the jeopardy and other clauses of the Constitution. In view of the state of the law, it is not surprising that contempt proceedings have been characterized as sui generis. O'Neal v. United States, 190 U. S. 36, 47 L. ed. 945, 23 Sup. Ct. Rep. 776, 14 Am. Crim. Rep. 303; Bessette v. W. B. Conkey Co. 194 U. S. 324, 48 L. ed. 997, 24 Sup. Ct. Rep. 665.

Thus, it will be observed that, in the exercise of this inherent power, the prosecution for contempt of court is not confined to the criminal courts, and many of the essential guaranties of the Constitution relating to the trial and punishment of crimes are totally disregarded.

It may well be that, owing to the peculiar character of proceedings to punish for contempt of court, technically neither in equity nor at law, unreasonable delay in instituting proceedings after the commission of the acts complained of would constitute laches, and justify appellate interference. That condition, however, does not arise in this case. Respondents were originally proceeded against without delay. The appeal was promptly heard in this court, and advanced for hearing in the supreme court. When the judgment was there reversed and remanded for such further proceedings as might seem advisable, the court proceeded with extreme promptness to institute the present action. Hence, there is nothing in this case to justify us in invoking the rule of laches, or to call for an expression of opinion as to our jurisdiction in the premises.

It appears that when the former case was certified back to the supreme court of the District of Columbia for dismissal, Mr. Justice Gould was presiding in that division of the equity court where the decree in the original injunction suit, Equity No. 27,305, was entered. Instead of instituting this proceeding, he certified the matter over to Mr. Justice Wright, who was presiding in the other equity division of the court, where these proceedings were begun and captioned Equity No. 30,180. This course of proceeding is assigned as error. The supreme court of the District of Columbia is a single court of general jurisdiction with six judges. The mere fact that the various jurisdictions arc by rule divided and assigned to different judges does not in any way affect the general jurisdiction of the court. The action here is for the violation of the terms of an order of injunction issued by the supreme court of the District of Columbia, and the mere fact that this proceeding was instituted in a different equity division, as composed by the rules of the court, than that in which the injunction proceeding originally existed, is unimportant. They both originated in the equity branch of the court. Where the contempt is for violation of an order of a court of equity, it is proper that the contempt be prosecuted by that court. Bessette v. W. B. Conkey Co. 194 U. S. 324, 48 L. ed. 997, 24 Sup. Ct. Rep. 665. The contempt proceeding may be in the title of the original case. Ibid. Or it may be in the name of the United States. O’Neal v. United States, 190 U. S. 36, 47 L. ed. 945, 23 Sup. Ct. Rep. 776, 14 Am. Crim. Rep. 303. Or it may be on the relation of the party cited. Re Debs, 158 U. S. 564, 39 L. ed. 1092, 15 Sup. Ct. Rep. 900. Or it may be purely an ex parte proceeding. Ex parte Fisk, 113 U. S. 713, 28 L. ed. 1117, 5 Sup. Ct. Rep. 724. As was said in Bessette v. W. B. Conkey Co. supra. “A contempt proceeding is sui generis. * * It may be resorted to in civil as well as criminal actions, and also independently of any civil or criminal action.”

Contempt of court may be prosecuted by a committee of the bar appointed by the court for that purpose, or by the proper prosecuting officer of the jurisdiction, or by both. No particular form of complaint is necessary. A criminal contempt may be brought to the attention of the court by verified petition in the name of the parties to the original suit, and prosecuted at the instance of the injured party by his attorneys. Bessette v. W. B. Conkey Co. supra. Formal charges as in criminal cases are unnecessary in contempt proceedings. All that is necessary to their validity is that the alleged contemner shall have notice of the charges and an opportunity afforded him to make his defense. In Re Savin, 131 U. S. 267, 33 L. ed. 150, 9 Sup. Ct. Rep. 699, the court, discussing the analogy between contempt and disbarment proceedings, quoted with approval from Randall v. Brigham, 7 Wall. 523, 540, 19 L. ed. 285, 293, as follows: “It is not necessary that proceedings against attorneys for malpractice, or any unprofessional conduct, should be founded upon formal allegations against them. Such proceedings are often instituted upon information developed in the progress of a cause; or from what the court learns of the conduct of the attorney from its own observation. Sometimes they are moved by third parties upon affidavit; and sometimes they are taken by the court on its own motion.' All that is requisite to their validity is that, when not taken for matters .occurring in open court, in the presence of the judges, notice should be given to the attorney of the charges made, and opportunity afforded him for explanation and defense.”

Error is urged in the appointment of a "United States Commissioner for the purpose of taking testimony in this cause. The custom of taking testimony by deposition, affidavit, or interrogatories in contempt cases is ancient. 1 Newland’s Oh. Pr. 392. The practice has prevailed generally in this country. Rapalje, Contempt, 124; Fletcher, Eq. Pl. & Pr. sec. 553; Una v. Dodd, 38 N. J". Eq. 460. It was the method adopted by the Supreme Court in the recent case of United States v. Shipp, 203 U. S. 563, 51 L. ed. 319, 27 Sup. Ct. Rep. 165, 8 Ann. Gas. 265, 214 U. S. 386, 53 L. ed. 1041, 29 Sup. Ct. Rep. 637. See also Re Savin, 131 U. S. 267, 278, 33 L. ed. 150, 153, 9 Sup. Ct. Rep. 699; Re Chiles (Texas v. White), 22 Wall. 157, 22 L. ed. 819. The question, however, does not arise in this case, since all testimony was taken in open court.

The committee in its report inserted the following suggestion: “With regard to each and every of the acts, statements, and publications above set forth, the said Samuel Gompers asserted, and it may be he then believed, that the injunction was not binding upon him because of what he claimed to be his constitutional right of free speech and a free press; and it may be that, now that this contention upon his part has been determined by the Supreme Court of the United States to be unfounded, he may be prepared to make such due acknowledgment, apology, and assurance of future submission to the court as may sufficiently answer the necessary purpose of vindicating its authority, and that of the law. Should such acknowledgment, apology, and submission not be forthcoming, after due notice and opportunity, the course necessary to be pursued to maintain its dignity, and due respect for and obedience to the law, is respectfully submitted to the court for its consideration.” The same suggestion was made in the report to both Mitchell and Morrison. It appears that the court stood ready up to the time of pronouncing judgment, to accept a compliance with the terms of the suggestion as purging respondents of contempt and a justification for their discharge. They, however, refused to adopt the suggestion offered.

This is important in measuring the intent and temper of respondents. In the former proceedings, they attempted to justify upon the ground that the order of injunction was an abridgment of the right of free speech and a free press. Three courts, culminating with the Supreme Court of the United States, had held against them, and the only question submitted by this suggestion was whether they were now ready to submit to the law of the land as interpreted by its highest tribunal. Standing convicted of a most persistent and flagrant violation of an order of a court of the United States, after every excuse for their action had been brushed away, they not only refused submission to the courts, but, by their action, contemptuously defied all lawful and constitutional authority;—yea, government itself.

The mere fact that respondents are charged with the disobedience of an order of injunction is unimportant compared with the larger question involved in this case. We are confronted with a deep-laid conspiracy to trample under foot the law of the land, and set in defiance the authority of the government. The prominence of the respondents only adds to the gravity of the offense. Their wide influence and power thus exerted reaches not only to every subordinate branch of the great organization of which they are the leaders, but to its friends and sympathizers. If law is to be supreme; if the authority of the government is to be maintained, it is not for the courts to treat lightly a conspiracy for their destruction, either because of the prominence and influence of the conspirators, or in deference to the inspired clamor of their misguided followers, hlercy follows justice. It is not a time for appellate tribunals to indulge in finespun theories of practice or procedure for the purpose of finding a plausible excuse for discharging those, however prominent, who have offended against the authority of law and government. If men of high position may defy the authority of the constitutionally ordained tribunals of the government, and escape through a loose administration of justice, what can be said of their followers ? Inspired by the success of their leaders, they will become imbued with a more vicious spirit, because less restrained by the refinements of education and the associations surrounding powerful leadership.

But it is urged that the punishment imposed is unusual and excessive. With this contention we agree. But has this court power to modify the judgment? In Ballew v. United States, 160 U. S. 187, 40 L. ed. 388, 16 Sup. Ct. Rep. 263, the court held that where there was a verdict of guilty on two counts, only the second being good, and “as the only errors found in the record relate to and affect the crime covered by the first count, substantial justice requires, and it is so ordered, that the general judgment rendered by the court below should be reversed, and the cause be remanded to that court with instructions to enter judgment on the second count of the indictment, and for such proceedings with reference to the first count as may be in conformity to law.”

This decision contains a full review of the statutes conferring appellate jurisdiction upon the Federal courts. Section 24 of the original judiciary act, 1 Stat. at L. 85, provides: “That when a judgment or decree shall be reversed in a circuit court, such court shall proceed to render such judgment or pass such decree as the district court should have rendered or passed, and the supreme court shall do the same on reversals therein, except where the reversal is in favor of the plaintiff or petitioner in the original suit, and the damage to be assessed, or matter to be decreed, are uncertain, in which case they shall remand the cause for a final decision.”

Nor is this power of the appellate tribunals in review upon error limited to civil cases. Section 701, Rev. Stat. provides: “The supreme court may affirm, modify, or reverse any judgment, decree, or order of a circuit court or district court acting as a circuit court, or of a district court in prize causes lawfully brought before it for review, or may direct such judgment, decree, or order to be rendered, or such further proceedings to be had by the inferior court, as the justice of the case may require.” The power thus conferred upon the supreme court to modify a judgment on error is almost identical in language with the power conferred on this court by the organic act (D. C. Code, sec. 226 [31 Stat. at L. 1225, chap. 854]), which provides: “Any party aggrieved by any final order, judgment, or decree of the supreme court of the District of Columbia or any justice thereof * * * may appeal therefrom to the said court of appeals, and upon such appeal the court of appeals shall review such order, judgment or decree, and affirm, reverse, or modify the same as shall be just.”

Section 11 of the act of March 3, 1891 (26 Stat. at L. 826, chap. 517), creating the circuit courts of appeal, provides as follows: “And all provisions of law now in force regulating the methods and systems of review through appeals or writs of error shall regulate the method and system of appeals and writs of error provided for in this action in respect of the circuit courts of appeals, including all provisions for bonds and other securities to be required and taken on such appeals and writs of error.”

Referring to these statutes, the court in the Ballew Case said: “It thus conclusively appears that the authority of this court to reverse and remand with directions to render such proper judgment as the case might require, upon writs of error in criminal cases to state courts, and to circuit courts in capital cases, was confessedly conferred by express statutory provisions, and that a like power was conferred upon the circuit courts of appeals and circuit courts in cases where they exercised jurisdiction by error in criminal cases over the district courts. From this and from a review of the legislation on the subject on the powers conferred upon this court as a reviewing court, it follows, as a necessary conclusion, that general authority was given to it on writ of error to take such action as the ends of justice, not only in civil, but in criminal cases, might require.”

Thus, it would seem that in this country, as in England since the act of 11 and 12 Vict. chap. 78, sec. 5, appellate courts in review on error, where the error exists solely in the judgment of the court, are vested with power to reverse the judgment and remand the case for a proper judgment. In Middlebrooh v. State, supra, where the court in a contempt case exceeded its power in imposing costs in addition to fine and imprisonment, the supreme court of the State reversed that portion of the judgment relating to costs, and affirmed the judgment in respect of the fine and imprisonment. It is, however, unnecessary in the present case to decide whether this power extends to a judgment in a civil case or a statutory crime, since we are here considering the summary proceeding for contempt of court, where not only the form of proceeding largely, but the punishment entirely, is left to the discretion of the offended court. Where the only error in such a case consists in the imposition of excessive punishment, the error amounts simply to an abuse of discretion.

While the power to punish for contempt of court is vested in the court against whose dignity and authority the offense has been committed, and without which power a _ court would be unable long to exist, yet this discretion may be abused. If a court, for instance, should impose life imprisonment as a penalty for a contempt of its authority, it would constitute such an abuse of discretion as would amount to the exercise of mere arbitrary power. So, a court may exercise arbitrary power in imposing an excessive fine or limited term of imprisonment. Arbitrary power exists nowhere in our system of government. The authority to restrain its exercise, without doing violence to the enforcement of the law, or without permitting’ the guilty to escape just punishment, must exist somewhere.

In our former opinion (33 App. D. C. 577) it was intimated that this court is without power to modify a judgment on appeal. This point was not there urged or regarded as essential to the disposition of the appeal. Hence, the broad statement must be accepted as an expression of opinion relative to our appellate jurisdiction over judgments in general, and without application to an exceptional case like the present, where the erroneous judgment was rendered in the exercise of judicial discretion, and where, from the record, without assuming the prerogatives of the trial court, we can direct a modification of the judgment.

In Billings v. Field, 36 App. D. C. 16, this court, considering its power to review discretionary acts of the lower court, said: “But, it is insisted, the discretion exercised by the trial court is not reviewable, and therefore its judgment will not be disturbed by an appellate tribunal except for errors in the determination of the questions arising upon the record. This court, in sec. 7 of the act of its creation (27 Stat. at L. 434, chap. 74), was expressly given jurisdiction to ‘affirm, reverse, or modify,’ on appeal any final order, judgment, or decree of the supreme court of the District. This provision surely clothes this court with authority to inquire whether the trial court has exercised its discretion in accordance with established rules and precedents governing the exercise of such discretion.”

This court has held, in a criminal contempt, that the review on appeal must be as at common law upon writ of error. This, however, relates only to the procedure essential to bring up for review the errors relied upon for a reversal of the judgment, lyhile in a proper case our jurisdiction is confined to reviewing alleged errors of law, the limitation does not apply where it appears on the face of the judgment that there has been an abuse of discretion. This is unlike an ordinary criminal proceeding, where the maximum and minimum penalties are fixed by statute, and the court, in pronouncing judgment, must keep within those limits; nor can it be compared to a civil action where the judgment is controlled by the verdict of a jury. In a proceeding for punishment for contempt of court, the case is tried in a summary manner by the court offended against without the aid of a jury, or limitation as to the penalty that may be imposed. It is even doubtful if the pardoning power has jurisdiction to intervene. We think, therefore, that in contempt proceedings where the exercise of unlimited discretion is vested in the lower court, an abuse of that power is a proper matter for appellate revision. An abuse of discretion, however, when the abuse consists alone in the imposition of excessive punishment, does not constitute such reversible error as to justify the court in directing a new trial, or the dismissal of the action and discharge of the accused. In the absence of reversible eror in the trial, as in this case, it would be doing a useless thing to order a new trial, when it is within the power of the appellate tribunal to fix a reasonable punishment, and accordingly direct a modification of the judgment.

The penalty imposed for contempt of court does not partake of many of the elements included in punishment for crime. It is imposed in many instances for offenses which are neither mala in se nor mala prohibits but purely for the protection of the dignity and authority of the court. “In brief, a court, enforcing obedience to its orders by proceedings for contempt, is not executing the criminal laws of the land, but only securing to suitors the rights which it has adjudged them entitled to.” Re Debs, 158 U. S. 564, 596, 39 L. ed. 1092, 1094, 15 Sup. Ct. Rep. 900. Hence, the elements to be considered by legislatures in establishing punishment for specific crimes, namely, the reformation, if possible, of the criminal, the protection of society, and the deterring of others from the commission of crime, are not necessarily to be taken into account in fixing the penalty for contempt. Contempt proceedings are not to be substituted for proceedings for the punishment of crime, but may be resorted to only when essential to enforce the power of a court whose authority has been defied.

The distinction is well stated by Judge Taft in Thomas v. Cincinnati, N. O. & T. P. R. Co. 62 Fed. 803, as follows: “It is only to secure a present and future compliance with its orders that the power is given, and not to impose punishment commensurate with crimes or misdemeanors committed in the course of the contempt, which are cognizable in a different tribunal, or in this court by indictment and trial by jury. I have no right, and do not wish, to punish the contemner for the havoc which he and his associates have wrought to the business of this country, and the injuries they have done to labor and capital alike, or for the privations and sufferings to which they have subjected innocent people, even if they may not be amenable to the criminal laws therefor. I can only inflict a penalty which may have some effect to secure future compliance with the orders of this court, and to prevent wilful and unlawful obstructions thereof.”

The rule in imposing penalties for contempt is well established by centuries of practice. In this country, the courts have seldom resorted to the imposition of penalties as severe as those imposed in this case. In the Debs Case, a conspiracy to boycott the Pullman Palace Car Company by threatening to call a strike among the employees of any railroad company hauling Pullman cars was enjoined, and the order was being violated by preventing railway trains from operating into and out of the city of Chicago, thus obstructing the movement of the mails, as well as commerce generally. The property of many railroad companies was being destroyed, and life placed in jeopardy. The sentences imposed for contempt ranged from three to six months in jail. In the Thomas Case for similar conduct a sentence of six months’ imprisonment was imposed. In the case of United States v. Shipp, supra, where it was found that a sheriff and his deputies had abetted a mob in lynching a prisoner’, the Supreme Court imposed a penalty of three months’ imprisonment. These are extreme penalties. In the States, lighter penalties. are imposed for similar offenses. In most cases, for the mere violation of an order of injunction, where private parties are involved, fines are imposed. From these and similar cases, a rule of practice has been established in this country which should govern courts in imposing penalties for contempt. However, to. permit respondents to escape punishment would be a travesty upon justice, but we think that, inasmuch as the extreme punishment that could be imposed against respondents in a criminal prosecution under sec. 5399, supra, would be limited to a fine of $500 or imprisonment for three months, or both, the penalty imposed is so unreasonable as to demand modification.

The differences which necessitated the injunction have been settled. The sole purpose of punishment, therefore, is to give reasonable assurance that respondents will in the future respect the authority of the courts. While the injunction was issued to restrain the most subtle and far-reaching conspiracy to boycott that has come to our attention, the boycott had ceased and the necessity for the injunction no longer existed at the time this case was tried below. A penalty, therefore, which would have been justifiable to prevent further defiance of the order of the court but for the settlement, would now be needless and excessive. Had the court below imposed penalties not greatly in excess of those which we now deem adequate, we would not 'feel justified in holding that there had been an abuse of discretion. Since, however, the penalties imposed axe so unreasonably excessive, and we are called upon to modify the judgments, we prefer to err, if at all, on the side of moderation. .No one, however, can read this record without being convinced that respondent Gompers has been the chief factor in this contempt; hence, a severer pxxnishmexxt is merited in his case than in the cases of the other respondents.

Since the only error ixi the record relates to the excessive punishment imposed, justice requix’es, and it is so ordered, that the judgment be reversed, and the cause remanded with instructions to the court below to enter orders in proper form adjxxdging respondents Samuel Gompers, John Mitchell, and Frank Morrison, respectively, guilty of contempt of court, and imposing a sentence upon Gompers of imprisonment in the Washington Asylum and Jail for the term of thirty days, and upon Mitchell and Morrison each a fine in the sum of $500, and in default of the payment of said fine, that they be confined in the Washington Asylum and Jail until paid.

Reversed and remanded.

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Dissenting Opinion

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 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., 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 application 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 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’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, 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 ■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 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 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 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 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, 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.