36 Miss. 331 | Miss. | 1858
At the July term, 1856, of the Probate Court of Clarke county, the appellant was appointed guardian of the minor heirs of Elizabeth Peterson.
At the September term of said court, one of the sureties on his guardian's bond, John Adams, filed his petition in said court, praying to be discharged from further liability on said bond. Citation was issued to the said plaintiff in error, to appear at the October term of said court, to answer said petition, and show cause why the said Adams should not be discharged, and the said plaintiff in error be required to give further security.
Said citation was duly executed; and, at the October term of said court, the said Adams was discharged from further liability on his bond, and citation ordered to plaintiff in error, to appear at the next term, and give additional security. Citation was issued and served, in pursuance of said order, returnable to the November term of said court. *340
The record does not show that security was ever given.
Afterwards, at the January term, 1858, of said court, citation was ordered to issue to said plaintiff in error, to appear and return an inventory, as guardian, as aforesaid. Citation was accordingly issued, and returned executed.
At the February term, 1858, of said court, an attachment was issued for said plaintiff in error, to compel a report, as guardian, which was executed by the sheriff, by taking the body of said plaintiff in error into his custody. And, on the 3d day of February, 1858, the said plaintiff in error, as the order recites, "contemptuously refusing to comply with the order of the court in the presence of the court, he was, by the order of the court, committed to the jail of said county, until he should comply with said order."
The said plaintiff in error, having made his escape from the sheriff, a writ of attachment was ordered, which was returned executed.
His letters of guardianship were subsequently revoked, and the defendant in error appointed guardian in his stead.
The said plaintiff in error then filed an account for final settlement in said court, showing that he was in possession of a number of negroes belonging to his wards.
At the March term of said court, an order was made, committing the plaintiff in error to jail, for failing to make a true and correct account of his guardianship, and for not purging himself of the contempt adjudged against him at a former term, and still contemptuously persisting therein, until he should purge himself of said contempt, and render a true account of his guardianship.
And also, upon the petition of the defendant in error, and upon proof that the plaintiff in error refused to deliver the property of the said minors to the defendant in error, their guardian, according to the order of the court, an order was made, committing the plaintiff to the jail of Lowndes county for safe keeping, until he comply with the order of the court.
Afterwards, on the 8th September, 1858, upon a petition to the clerk of the Probate Court, an appeal was prayed to this court.
A preliminary question, as to the jurisdiction of this court, to entertain causes of this character, under our constitution and laws, seems to demand inquiry before proceeding to consider the grounds of error assigned. *341
The record shows, that this cause is prosecuted here to revise the proceedings of the Probate Court of Clarke county against the plaintiff in error, for a contempt of the process, orders, and judgment of that court, in a matter over which it had, by the constitution, full jurisdiction.
"The process of attachment for contempts, must necessarily be as old as the laws themselves. For laws, without a competent authority to secure their administration, from disobedience and contempt, would be vain and nugatory. A power, therefore, in the supreme courts of justice, to suppress such contempts by an immediate attachment of the offender, results from the first principles of judicial establishments, and must be an inseparable attendant upon every superior tribunal. Accordingly we find it actually exercised as early as the annals of our law extend." 4 Black. Com. 286.
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. A court without the power effectually to protect itself against the assaults of the lawless, or to enforce its orders, judgments, or decrees against the recusant parties before it, would be a disgrace to the legislation, and a stigma upon the age which invented it. In this country, all courts derive their authority from the people, and hold it in trust for their security and benefit. In this State, all judges are elected by the people, and hold their authority, in a double sense, directly from them; the power they exercise is but the authority of the people themselves, exercised through courts as their agents. It is the authority and laws emanating from the people, which the judges sit to exercise and enforce. Contempts against these courts, in the administration of their laws, are insults offered to the authority of the people themselves, and not to the humble agents of the law, whom they employ in the conduct of their government. The power to compel the lawless offender, against decency and propriety, to respect the laws of his country, and submit to their authority (a duty to which the good citizen yields hearty obedience, without compulsion) must exist, or courts *342 and laws operate at last as a restraint upon the upright, who need no restraint, and a license to the offenders, whom they are made to subdue.
Chancellor Kent, in the case of Bates, 4 John. R. 353, in concluding a review of the English cases on this subject, says:
"The trust is given to the courts, not for themselves, but for the public, who are deeply interested in the preservation of this power, in its accustomed vigor."
He cites the case of the Earl of Shaftesbury, 2 St. Tr. 615; 1 Mod. 144; who was imprisoned by the House of Lords for "high contempt committed against it," and the case brought into the King's Bench, where the court held, that they had no authority to judge of the contempt, and remanded the prisoner. "The court," says he, "in that case, seem to have laid down a principle from which they have never departed, and which is essential to the due administration of justice; this principle, that every court, at least of the superior kind, in which great confidence is placed, must be the sole judge, in the last resort, of contempts arising therein, is more explicitly defined, and more emphatically enforced, in the two subsequent cases of The Queen v. Patty et al. 2 Lord Raym. 1105, and of The King v. Crosby, 3 Wilson, 188; 2 Black. R. 754."
In Crosby's case, the language of the judges is singularly impressive. Lord Chief Justice De Grey observed, that "when the House of Commons adjudge anything to be a contempt, or a breach of privilege, their adjudication was a conviction, and their commitment in consequence was execution; and that no court could discharge or bail a person that was in execution by the judgment of any other court. . . . That in the case of a commitment by the King's Bench or Common Bench, there was no appeal; that if the courts should abuse their jurisdiction, it would be a public grievance, and redress must be sought from the legislature; that the constitution had provided checks to prevent its happening. It must be left at large; it was wise to leave it at large. Some persons, some courts, must be trusted with discretionary powers; and, though it is possible, it was in the highest degree improbable, that such abuses should ever happen."
Mr. Justice Blackstone pursued the same train of observation, and declared that all courts — by which he meant to include the two *343 houses of Parliament, and the courts of Westminster Hall — "could have no control in matters of contempt; that the sole adjudication of contempts, and the punishments thereof, belonged exclusively, and without interfering, to each respective court; that infinite confusion and disorder would follow, if every court of the Hall should have power to examine the commitments of the other courts for contempts; that the judgments and commitments of each respective court, as to contempts, must be final, and without control. It was a confidence that might, with perfect safety, be confided in the judges and the houses of Parliament. That the objection, as to abusive consequences, proved too much, because it was applicable to all courts of dernier resort; and general convenience must always outweigh partial inconvenience."
Chancellor Kent, after these citations, adds: "I have cited the opinions of other judges much at large, because I could not hope to improve upon the strength of their observations; and I entertain the most perfect conviction, that the law, as they declared in this case, was well understood, and definitely established as part of the common law of England at the time of our Revolution. Mr. Justice Grose, many years afterwards, thought he did enough to prove the settlement of the law on this subject, by merely quoting this very able decision of Lord Chief Justice De Grey."
This decision, and the reasoning employed by the judges, is adopted and fully sanctioned, by the Supreme Court of the United States, inEx parte Kearny, 7 Wheat. 38, in an able opinion delivered by Judge Story.
These cases were also considered and reviewed by Cowen, J., in the Supreme Court of New York, and approved as declarative of the common law of England. He says, "that it was agreed in the Mayor of London'scase (Crosby), 3 Wilson, 188, that in cases of commitment for contempt, by the Lords or Commons, or by any other court of general jurisdiction, no other court had power to interfere, and relieve by habeascorpus, or in any other way, because there was no appeal." Blackstone, J., said, "The sole adjudication of contempts, and the punishment thereof, in any manner, belongs exclusively, and without interfering, to each respective court." And De Grey, Ch. J., said, "In case of a commitment by this court, or the King's Bench, there is no appeal." *344 The People v. Nevins, 1 Hill, N. Y. R. 164-5. See the late case ofStockdale v. Hansard, 9 Adolphus Ellis, 1; 36 E. Com. L. R. 13.
"The right of punishing contempts by summary conviction, is inherent in all courts of justice and legislative assemblies, and is essential for their protection and existence. It is a branch of the common law, adopted and sanctioned by our State Constitution. The discretion involved in this power, is in a great measure arbitrary and undefinable, and yet the experience of ages has demonstrated, that it is perfectly compatible with civil liberty, and auxiliary to the purest ends of justice.
"The known existence of such a power, prevents in a thousand instances the necessity of exerting it, and its obvious liability to abuse, is, perhaps, a strong reason why it is so seldom transcended. This power extends not only to acts, which directly and openly insult or resist the powers of the court, or the persons of the judges, but to consequential, indirect, and constructive contempts, which obstruct the process, degrade the authority, or contaminate the purity of the court. 4 Black. Com. 280; 2 Hawk. Pl. Cr. b. 2, c. 22; 1 Com. Dig. Attachment, A.
"The officers of the court are peculiarly subject to its discretionary powers, and may be punished in this summary manner, for oppression, extortion, negligence, or abuse in their official capacity. 1 Bac. Abr. tit. Attachment; 2 Hawk. tit. Attachment; 3 Atk. 268."
Per Senator Platt, in Bates v. Lansing, 9 John. R. 415-16.
The same doctrines of the common law are discussed and admitted, inHollingsworth v. Duane, reported in Wallace, C. C. R. 77.
So in Mississippi, the power of the courts to fine and imprison for contempt, as a necessary incident of judicial power, independent of statutory enactment, inherent in the very nature of their organization, and derived from the constitutional provision which gave them being,ex necessitate rei, has been repeatedly recognized by her judicial tribunals. In Lewis v. Garrett's Adm'r. 5 How. Miss. R. 453, the doctrine is clearly stated and enforced, both upon principle and authority, by Judge Trotter. So in Vertner v. Martin, 10 S. M. 103. The power of the Probate Court, to imprison by *345 an attachment, for a contempt, an administrator, for failing to pay a sum of money, which he had been previously ordered to pay, was sustained, and Walker's R. 310, cited as authority for such proceeding.
This case was a writ of error to the High Court. No opinion was expressed, however, as to the power or jurisdiction of the High Court, on the subject of contempts against other jurisdictions.
And in the case of Adams,
In Kentucky, in the case of Johnston v. Commonwealth, 1 Bibb's Kentucky R. 598, this subject is discussed with reference to the power of the Court of Appeals to review judgments and orders for punishing contempts in other jurisdictions, and denied. After reviewing the doctrine of the common law on this subject, Chief Justice Bibb thus concludes his able judgment: —
"The inconveniences which might result from sustaining writs of error and appeals from orders for punishing contempts are worthy of great consideration. We ought, indeed, to weigh well the consequences, before we give a deliberate sanction to a procedure never once recorded in juridical annals, from the earliest periods down to the present day, except in the two cases just cited. The great purposes for which courts are intrusted with the power of punishing contempts demand a speedy and summary proceeding, not consisting with the delays consequent on writs of error and appeals. If, free from the apprehension of immediate punishment, the contemptuous witness, in the face of the court, and in the very act of trial, might paralyze the hand of justice by refusing to give evidence, the poison would circulate through every artery of the judicial system. In fact, the rights, liberty, and property of the whole community are immediately involved, and interested in the support of the constituted authorities. What are laws without the means competent to secure and enforce a due obedience?
"To this end, a power in courts of justice to suppress contempts and disobedience to their authority, by immediate punishment, is essentially necessary, and results from the first principles of judicial establishments. Laws are necessary to the good order of society. Courts are ordained by the laws as necessary for their due administration. *346 Hence, due respect for the courts of justice is as necessary as a regard for the laws themselves.
"For, when once such respect is lost among the people, the authority of the court is at an end. And that court is impotent and contemptible indeed whose power to punish a contempt to its authority, depends upon the discretion of a superior.
"It seems to be an established principle of law that one court cannot punish a contempt committed against another court. Intimately related to this is another sentiment, — that one court cannot judge of a contempt committed against another. In fine, it seems necessary to the very existence of a court, in the healthy exercise of its powers, that it should have the exclusive jurisdiction to judge of contempts to its authority.
"But it may, perhaps, be asked, if each court is suffered to exercise the power of punishing contempts, without the control and revision of any other court, where is the security of the citizen against the arbitrary oppression of the judge, by a wilful infraction of the law? It is answered, that the citizen finds security in his own correct demeanor; in the great lenity and unwillingness which has generally been remarked in courts to resort to this exercise of their powers; but above all, in that responsibility which the judge owes to the assembled representation of the country, for any corrupt or wilful and arbitrary abuse of his power.
"It is the boast of our government, that no officer, however exalted his station may be, is above the law; neither can he indulge a wild, arbitrary, or licentious disposition, without responsibility."
Government cannot be administered without committing powers in trust and confidence. The exercise of discretion must be intrusted by the people to some agents, in matters of this character. And it seems to us to be safer and more satisfactory, under our system, to leave it in the hands of the respective courts, immediately deriving their authority from the people, and amenable to the public for its just and wise exercise, than to place it in the hands of an appellate tribunal, removed, in a great measure, from their scrutiny as well as their direct authority.
Whether considered, therefore, with reference to the protection of the authority and just power of the courts, or with regard to the *347 protection of the liberty of the citizen against the unjust and tyrannical exercise of power, a due regard for the security of all will be best promoted, by leaving the whole subject of contempts to the courts respectively, without interference from this court.
So, in Tennessee, in the case of Andrew L. Martin, 5 Yerger, 456, the same doctrines are announced as in Kentucky, by Catron, J., and powerfully enforced, denying the right of appeal or writ of error to serve judgments for contempts when the court has jurisdiction.
So, in Indiana, in the case of The State v. Tipton, Sheriff, 1 Blackf. R. 166, the writ of error was dismissed, — the court holding that courts of record have exclusive control over charges for contempt; and their conviction or acquittal is final and conclusive. "This great power," says the court, "is intrusted to these tribunals of justice, for the support and preservation of their respectability and independence; it has existed from the earliest period to which the annals of jurisprudence extend; and except in a few cases of party violence, it has been sanctioned and established by the experience of ages," — referring to English and American cases, already cited.
And, in Illinois, in the case of Clark v. The People, Breese R. 266, the same principles are held by the Supreme Court of that State.
Indeed, in the absence of any constitutional or statutory regulation on the subject, it is believed the authorities are uniform on this point.
Upon examination of our constitution and laws, we are unable to perceive any authority for the assumption of jurisdiction in such cases.
The constitution says, "The High Court of Errors and Appeals shall have no jurisdiction but such as properly belongs to a court of errors and appeals." To ascertain what jurisdiction properly belongs to a court of errors and appeals, reference must be had to the system whence we have derived the great body of our unwritten laws, — the common law of England. We have just seen — from a review of the decisions of highest authority, both in England and this country — that, by the common law, such jurisdiction does not properly belong to a court of errors andappeals. Hence, our constitution, *348 seems not only, not to confer, but to deny, this jurisdiction to our High Court of Errors and Appeals.
The power in question is one absolutely necessary to enable the Probate Court to protect, preserve, and administer the estates of decedents, and to save the property of infants from waste and spoliation by unprincipled men, who may have obtained the management of either, by fraud or imposition, or without sufficient security. If, for every order or decree made by that court, requiring executors, administrators, or guardians, to make returns, or file inventories, or do or perform any other duty which the court, under the law, may and ought to require, and imposing penalties for disobedience, such executor, administrator, or guardian, may take an appeal, and disregard the order, estates could never be administered, and the appointment of a guardian would operate to the divestiture of the estate of the ward; in many cases, in favor of the unprincipled guardian.
Our laws are not thus deficient: while they amply protect the liberty and rights of the citizen, they as amply provide for the prevention and punishment of the wrongs he may seek to inflict.
Let the appeal be dismissed, for want of jurisdiction in this court.
*483