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

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 where, 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.16

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.18

§ 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

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.

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.

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' 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.2

19 117 Fed. Rep. 448.

20 Dixon's Case, 3 Op. Atty.-Gen. 662; 4 Op. Atty.-Gen. 458. See Columbia 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.

750. Power of Congress to Punish for Contempt.

24

In 1821 the Supreme Court by a decision rendered in the case of Anderson v. Dunn23 recognized the existence in Congress of a general power to punish for contempt persons disobeying its orders, especially those with reference to the giving of testimony and the production of papers before its committees and commissions of inquiry. In the case of Kilbourn v. Thompson, however, decided in 1881, the court very much narrowed this power, holding that Congress had the power to compel information only with reference to matters over which it had legislative power, and that, therefore, it might not punish for contempt a refusal to testify or produce papers bearing upon other subjects. In this respect, being a legislature of limited powers, Congress could not measure its powers by those exercised by the English Parliament. Applying the foregoing principles the court in its opinion said: "In looking to the Preamble and Resolution under which the committee acted, before which Mr. Kilbourn refused to testify, we are of the opinion that the House of Representatives not only exceeded the limit of its own authority but assumed a power which could only be properly exercised by another branch of the government, because the power was in its nature clearly judicial."

That Congress has the power to punish its own members for disorderly behavior, that it may punish by imprisonment a refusal to obey a rule made by it for the preservation of its own order, and inflict penalties in order to compel the attendance of absent members has not to be questioned. In the case Re Chapman,25 however, decided in 1897, was raised the question whether it had the authority to punish a refusal to testify before a committee which was inquiring not with regard to proposed legislation, but with reference to the truth of charges which had been made reflecting upon the integrity of certain of its members. This power the court upheld.26

23 6 Wh. 204; 5 L. ed. 242.

24 103 U. S. 168; 26 L. ed. 377.

25 166 U. S. 661; 17 Sup. Ct. Rep. 677; 41 L. ed. 1154.

26 The court say: "In Kilbourn v. Thompson (103 U. S. 168; 26 L. ed. 377), among other important rulings, it was held that there existed no general power in Congress, or in either House, to make inquiry into the private

The court, furthermore, held in this case that having the power, Congress might, instead of or in addition to itself punishing for contempt, provide by law that a contumacious witness be indicted and punished in the courts for a misdemeanor.

With reference to the authority of the state legislatures to punish for contempt it may be observed that their powers are much

affairs of a citizen; that neither House could, on the allegation that an insolvent debtor of the United States was interested in a private business partnership, investigate the affairs of that partnership, as a mere matter of private concern; and that consequently there was no authority in either House to compel a witness to testify on the subject. The case at bar is wholly different. Specific charges publicly made against senators had been brought to the attention of the Senate, and the Senate had determined that investigation was necessary. The subject-matter as affecting the Senate was within the jurisdiction of the Senate. The questions were not intrusions into the affairs of the citizen; they did not seek to ascertain any facts as to the conduct, methods, extent or details of the business of the firm in question, but only whether that firm, confessedly engaged in buying and selling stocks, and the particular stock named, was employed by any senator to buy or sell for him any of that stock, whose market price might be affected by the Senate's action. We cannot regard these questions as amounting to an unreasonable search into the private affairs of the witness simply because he may have been in some degree connected with the alleged transactions, and as investigations of this sort are within the power of either of the two Houses they cannot be defeated on purely sentimental grounds.

"The questions were undoubtedly pertinent to the subject-matter of the inquiry. The resolutions directed the committee to inquire whether any senator has been, or is, speculating in what are known as sugar stocks during the consideration of the tariff bill now before the Senate.' What the Senate might or might not do upon the facts when ascertained, we cannot say, nor are we called upon to inquire whether such ventures might be defensible, as contended in argument, but it is plain that negative answers would have cleared that body of what the Senate regarded as offensive imputations, while affirmative answers might have led to further action on the part of the Senate within its constitutional powers.

Nor will it do to hold that the Senate had no jurisdiction to pursue the particular inquiry because the preamble and resolutions did not specify that the proceedings were taken for the purpose of censure or expulsion, if certain facts were disclosed by the investigation. The matter was within the range of the constitutional powers of the Senate. The resolutions adequately indicated that the transactions referred to were deemed by the Senate reprehensible and deserving of condemnation and punishment. The right to expel extends to all cases where the offense is such as in the judgment of the Senate is inconsistent with the trust and duty of a member."