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been done or committed, or act may have been omitted to be done."

Notwithstanding the very broad language of this act of immunity, the constitutionality of the measure was sustained. The court was, however, careful, in its opinion, to restrict its operation to the validation only of acts that it might have been possible for the President or Congress to have authorized at the time they were committed. Thus the opinion declares:

“ That an act passed after the event, which in effect ratifies what has been done and declares that no suit shall be sustained against the party acting under color of authority, is valid, so far as Congress could have conferred such authority before, admits of no reasonable doubt. These are ordinary acts of indemnity passed by all governments when the occasion requires."

§ 746. Legislative Control of Judicial Procedure and Powers.

The power of the courts to refuse to apply legislative acts inconsistent with constitutional provisions has already been considered. This is as far as the courts will go in the control of the legislative department. They do not possess and have never claimed to possess the power to pass upon the credentials of one claiming membership in a legislative body. They do not attempt to regulate the rules by which such bodies are governed in the conduct of their work, and, to only a very limited extent, will they question the correctness of the legislative records that are kept. Finally, they never attempt to command or to prohibit the performance of a legislative act. Individually, however, the members of a legislature are, of course, subject to judicial process, except so far as they have been granted express immunity by the Constitution.

Upon the other hand, as we shall see, the courts have not hesitated to protect their own independence from legislative control, not simply by refusing to give effect to retroactive declaratory statutes, or to acts attempting the revision or reversal of judicial determinations, but they have refused themselves to entertain jurisdiction in cases in which they have not been given the power to enforce their decrees by their own writs of execution. Thus, as already mentioned, they have refused to act where their decisions have been subject to legislative or administrative revisions. Finally, even where the extent of their jurisdiction, both as to parties litigant and subject matter, has been subject to legislative control, the courts have not permitted themselves to be deprived of the power necessary for maintaining their dignity, the orderliness of their procedure, and the effectiveness of their writs.

In order that a court may perform its judicial functions with dignity and effectiveness, it is necessary that it should possess certain powers. Among these are the right to issue certain writs, called extraordinary writs, such as mandamus, injunction, certiorari, prohibition, ete., and, especially, to punish for contempt and disobedience to its orders. The possession of these powers the courts have jealously guarded, and in accordance with the constitutional doctrine of the separation and independence of the three departments of government, have held, and undoubtedly will continue to hold, invalid any attempt on the part of the legislature to deprive them by statute of any power the exercise of which they deem essential to the proper performance of their judicial functions. The extent of their jurisdiction, they argue, may be more or less within legislative control, but the possession of powers for the efficient exercise of that jurisdiction, whether statutory or constitutional, which they do possess, they cannot be deprived of.

$ 747. Jurisdiction and Judicial Power Distinguished.

It has been already pointed ont that the jurisdictions of the inferior federal courts and the appellate jurisdiction of the Supreme Court is wholly within the control of Congress, depending as they do upon statutory grant. It has, however, been argued that while the extent of this jurisdiction is thus within the control of the legislature, that body may not control the manner in which the jurisdiction which is granted shall be exercised, at least to the extent of denying to the courts the authority to issue writs and take other judicial action necessary for the proper and effective execution of their functions. In other words, the argument is, that while jurisdiction is obtained by congressional grant, judicial power, when once a court is established and given a jurisdiction, at once attaches by the direct force of the Constitution.

This position was especially argued by Senators Knox, Spooner, and Culberson and contested by Senator Bailey during the debate upon the Hepburn Railway Rate Bill of 1906.

The point at issue was the constitutionality of the amendment offered by Senator Bailey providing that no rate or charge, regulation or practice, prescribed by the Interstate Commerce Commission, should be set aside or suspended by any preliminary or interlocutory decree or order of a circuit court.


15 An interesting discussion of this point is that by Mr. J. W. Bryan in the American Law Review, XLI, 51, in an article entitled “ The Constitutional Aspects of the Senatorial Debate upon the Rate Bill.” Mr. Bryan's conclusion, which seems an eminently satisfactory one, is that while Congress may, within its discretion, refuse to the inferior federal courts jurisdiction, it cannot compel them to administer a judicial power from which any essential elements have been abstracted; and, therefore, in each case, it is open to the court to refuse to proceed in suits wliere, in its opinion, it has been denied by Congress sufficient authority and power to give the parties litigant due process of law; that is, adequately to protect their rights and enforce the judgments or decrees that may be rendered.

In State v. Morrill (16 Ark. 384) the Supreme Court of Arkansas declare: “The legislature may regulate the exercise of, but cannot abridge, the express or necessarily implied powers granted to this court by the Constitution. If it could, it might encroach upon both the judicial and executive departments, and draw to itself all the powers of government; and thereby destroy that admirable system of checks and balances to be found in the organic framework of both the federal and state institutions, and a favorite theory in the government of the American People. As far as the act in question goes, in sanctioning the power of the courts to punish as contempts the 'acts' therein enumerated, it is merely declaratory of what the law was before its passage. The prohibitory feature of the act can be regarded no more than the expression of a judicial opinion by the legislature that the courts may exercise and enforce all their constitutional powers, and answer all the useful purposes of their creation, without the necessity of punishing as a contempt any matter not enumerated in the act. As such, it is entitled to great respect, but to say that it is absolutely binding upon the courts, would be to concede that the courts have no constitutional and inherent power to punish any class of contempts, but that the whole subject is under the control of the legislative department; because, if the General Assembly may deprive the courts of power to punish one class of contempts, it may go the whole length, and divest them of power to punish any contempt." To same effect is Carter v. Com. of Va., 96 Va. 791.

$ 748. Powers of Courts to Punish Contempts.

Within recent years the question of the constitutional extent of the legislative control over the powers of the courts has been discussed with especial reference to the regulation of the courts’ power to punish for contempt, and to issue writs of injunction.'

That, generally speaking, the power to punish for contempt is inherent in courts is beyond question. It may, however, be argued that where the existence and jurisdiction of a court are wholly within the control of the legislative body, as is the case with the inferior federal courts, authority exists in the legislature to determine the circumstances under which contempt may be held to have been committed, the form of trial therefor and the punishment which, upon conviction, may be inflicted. The power has, indeed, in a measure, been exercised by Congress which by law of March 2, 1831,17 limited the contempt powers of the federal courts to three classes of cases: (1) Those where there has been misbehavior in the presence of the court, or so near thereto as to interfere with the orderly performance of its duties; (2) where there has been misbehavior of an officer of the court with reference to official transactions; and (3) where there has been disobedience or resistance to any lawful writ, process, order, rule, decree, or command of the court.

The constitutionality of this law does not seem to have been questioned, but it may well be questioned whether it could constitutionally be held to control the Supreme Court which derives its existence and much of its jurisdiction directly from the Constitution.


$ 749. Pardoning Powers of the President and Contempts.

Arguing from the general principle of the independence of the three departments of government it would seem that the question as to the power of the President to pardon persons adjudged by one of the federal courts to be in contempt should be answered in the negative, for clearly to give the power to the executive is to place in his hands a weapon with which he may completely nullify the court's power to enforce its decrees. To this it may be replied, however, that, having the direction of the armed forces of the nation he has the power in any event, and the Constitution vesting in him the general power “to grant reprieves and pardons for offenses against the United States, except in cases of impeachment,” it would seem to follow that the power to remit the punishment of those convicted by the federal courts of contempt is given.

16 Cf. Harvard Law Review, XIII, 615, article, “ Constitutional Regulation of Contempt of Court,"' by Wilbur Larremore.

17 4 Stat. at L. 487.
18 Cf. Ex parte Robinson, 6 McLean, 355.

With reference to this, however, there is a distinction to be made between criminal and so-called civil contempts. In civil contempts the defendant is fined or imprisoned in order to obtain for a suitor his private rights. Punishment for criminal contempts, upon the other hand, is imposed to uphold and vindicate the dignity of the court. Though the Supreme Court has never passed directly upon this point, there would seem to be no doubt but that the pardoning power of the President extends at least to persons punished for criminal contempts. In 1902 in Re Nevitt'9 the circuit court of appeals for the eighth circuit held that the President might pardon criminal contempts, and intimated that the same was true as to civil contempts. But this would seem to be a doubtful doctrine. Attorneys-General Gilpin and Mason have both held that the President may pardon criminal contempts,20 and in a number of cases the Supreme Court has treated as criminal actions, cases involving criminal contempts.21

Where the point has been raised in the state courts, they have with unanimity held that the governor has the power in question.22

19 117 Fed. Rep. 448.

20 Dixon's Case, 3 Op. Atty.-Gen. 662; 4 Op. Atty.-Gen. 458. See Columbin Review, III, 45.

21 Ex parte Kearney, 7 Wh. 38; 5 L. ed. 391; New Orleans v. Steamship Co., 20 Wall, 387; 22 L. ed. 354.

22 See Sharp v. State, 49 S. W. Rep. 752, where the authorities are cited,

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