examining the authorities I have found a multitude of them, and I want to call your attention to one particularly that arose in my own State, Connecticut, because I happen to be familiar with it. If you gentlemen happen to be familiar with the history of Connecticut, you will know that in 1639 we set up there in the woods, on the shores of the Connecticut River, a separate, independent government. The people got together and formed their own constitution without consulting the mother country; and later, when Charles the Second came to the throne in 1660, they got a charter from him, but they always considered that merely as an agreement on the part of the King not to interfere with their inherent rights.

Now, under that constitution all the powers of the State were vested in the legislature. The judicial power, the legislative power, and, practically speaking, the executive power were vested in the legisla ture; and we went through the Revolution under that charter and long after until we came to the year 1818, when, for famous historical reasons in our State, the people determined to separate the judicial, the legislative, and executive powers into three distinct departments of the government. To the language of our constitution I invite Judge De Armond's attention particularly, and that of all the other members. of the committee. In our constitution it was as follows:

The judicial power of the State shall be vested in a supreme court of errors, a superior court, and such inferior courts as the general assembly shall from time to time ordain and establish.

Now, the legislature of the State had created an inferior court, called the police court of the city of Hartford, and it became necessary for the supreme court of our State to determine whether the judicial power possessed by that inferior court was derived from the legislature of the State or whether when the court had been created or ordained and established by the legislature the judicial power of the State, as distinguished from its jurisdiction, vested in that court by operation of the constitution, just the same as if it had been mentioned by name in the constitution. In the case of Brown v. O'Connell, 36 Conn., 446-447, the court said:

Under the charter of Charles II both the legislative and the judicial power were vested in the general assembly. But it was one of the objects which the people had in view in framing and adopting the constitution to divest the general assembly of all judicial power. To that end Article II of the constitution provides "that the powers of government shall be divided into three distinct departments and each of them be confided to a separate magistracy, to wit, those which are legislative to one, those which are executive to another, and those which are judicial to another." For the same reason they use different language in different articles in conferring the powers. In Article III they say that the legislative power of the State shall be vested in a general assembly. In Article V they say, "The judicial power of the State shall be vested in a supreme court of errors, etc., as herein before cited. Thus, while the entire legislative power is vested in a general assembly, the judicial power is separated from it and vested in the courts as a separate magistracy."

It is obvious from this view of these provisions that the general assembly have no power or authority to organize courts or appoint judges by virtue of the general legislative power conferred upon them, and that their authority to do either is special and derived from Article V of the constitution alone, and that the judicial power is not conferred by the general assembly, but vests by force of the constitution in the courts, when organized pursuant to the special provisions of that article.

It is conceded, as it well may be, that the legislature had the power to constitute this police court under the provisions of section 1 of the fifth article. There is nowhere in that instrument any limitation in respect to the number or character of the inferior courts which they may establish. It was therefore competent for them

to provide for the organization of the court in question and to define the jurisdiction it should possess, and when so constituted the judicial power of the State vested in it by force of the constitution to the extent of the jurisdiction so defined. (Brown v. O'Connell, 36 Conn., 446–447.)

There we have the supreme court of Connecticut using the same language, making the same distinction, and applying the same constitutional provisions as Senators Spooner and Knox and Culberson, because you will note, as Senator Bailey said in his argument, that there are two provisions of the Constitution of the United States, one which says that the judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish, and then, when they come to confer the legislative power, they say, "The legislative powers herein granted shall be vested in a Congress," and then they say among the other powers shall be one "to constitute tribunals inferior to the Supreme Court," and then they say Congress shall have power to pass all laws which shall be necessary and proper to carry into effect the foregoing powers and all other powers vested in the Government or in any department or officer thereof."

Now, it so happens that not only did not Senators Spooner and Knox discover this distinction and first apply it, not only did they not first use that language in the way they did in that connection, but it is true also that the supreme court of Connecticut did not discover it, because there is a long series of decisions which recognize the distinction, which apply the distinction, and enforce it, and use those words to describe it, and which make the constitutionalty of statutes and acts of· the legislature depend upon that very distinction.

Mr. DE ARMOND. Before you leave that, I would like to ask you something about the facts of that case.

Mr. DAVENPORT. The Connecticut case?

Mr. DE ARMOND. Yes. What particular question was there?

Mr. DAVENPORT. The question arose as to whether or not the judge of that court was properly appointed and the question arose in that connection.

Mr. DE ARMOND. Then it does not seem to be involved at all on that question.

Mr. DAVENPORT. You mean that that is obiter dictum?

Mr. DE ARMOND. On that proposition it does not seem to be in question as to the jurisdiction of the court and from what source it got that jurisdiction.

Mr. DAVENPORT. It depended entirely on whether or not that court derived its judicial power from the constitution or from the legislature. That was the crucial thing in the case. If the committee would care to have it I would ask that the 36th Connecticut should be sent for. Mr. DE ARMOND. It does not seem to me at first blush that the question of whether or not that judge was properly appointed would necessarily involve what the power of the court would be nor whence the power was derived.

Mr. DAVENPORT. If the committee has any doubt on the subject as to whether or not that was the very point of the decision, and whether or not it was so laid down and established (and at that time we had what we considered a very able court), I would like to show you the report itself. But as I was about to say, even the supreme court of

I would call your

Connecticut did not discover that distinction. attention to the case of Hale v. the State. (55 Ohio St., reads:

p. 210.) This

The power of commitment for contempt has long been considered as inhering in legislative bodies. It is not expressly granted. If it were not inherent it could not be created by the act of the legislature itself.

I suppose this is upon the principle that the stream may not rise higher than its source.

The existence of that power was recognized by this court in ex parte Dalton. The power we now assert is correlative of that which was there recognized. That it is not competent for the legislature to abridge the power of the courts to punish summarily such wrongful acts as obstruct the administration of justice is a necessary inference from the very numerous cases in which it has been held that the power inheres in courts independently of legislative authority. A power which the legis lature does not give it can not take away. If power, distinguished from jurisdiction, exists independently of legislation it must continue to exist. From the numerous cases sustaining these views the following are selected because of their elaborate review of the authorities and vigorous statement of the principles involved, viz, Hale v. State (55 Ohio State, 210); State v. Morrel (16 Ark., 390); U. S. v. Hudson (7 Cranch, 32).

Mr. DE ARMOND. If I understood you right in the reading of the early part of that it said that the legislature could neither give nor take away this power to punish contempt.

Mr. DAVENPORT. Yes, sir; that is right.

Mr. DE ARMOND. If the power did not exist independently of the legislature the legislature could not give it; is that correct?

Mr. DAVENPORT. Yes. They were likening their own power to the inherent power of the legislative to punish for contempt. They said that the legislative body time out of mind has had it, and they said that if it did not have it the legislature could not by legislation confer it upon itself. But those who are curious in investigating these matters will find if they look it up that much as I regret to say it, for Mr. Bailey is of my own political faith, and I am an admirer of his, that he is wrong, and I must concur with the opinion of Senator Culberson on that point.

Mr. DE ARMOND. Senator Bailey confined himself mainly, I think, to the decisions of the Supreme Court of the United States.

Mr. DAVENPORT. Yes, sir. Now, there is this interesting thing that must occur to everybody who undertakes to investigate this matter. In the early days of this country, you remember how the Constitution was adopted, and how the organization of the Government of the United States was accomplished, and when they had elected their President and members of Congress it became necessary for the Government of the United States to be organized and put in operation, and how they convened in New York, and there passed certain laws for the organization of the executive and judicial departments of the Government, and to provide for the collection of revenue, etc. Now, it so happens that the judiciary act of 1789 was drawn by Oliver Ellsworth, who had been a member of the convention from my State, and afterwards was Chief Justice of the United States. In the act of 1789, which was passed during that hurried session of that first summer-Í think it was in September, 1789- having created these different courts according to the scheme that Ellsworth had outlined, Congress conferred upon the courts power to issue all writs-that is, they expressly passed a statute conferring upon the courts power to issue

all writs according to the usages and practice of law. In 1793, however, there was a revision of that statute in some respects, and among other things Congress conferred upon a judge, I think, the power to issue writs of ne exeat, but provided in it that the writ of ne exeat should not issue unless a bill in equity had been filed in the courts, and at the same time they conferred upon the judges, as well as upon the courts, a power to issue temporary injunctions. At the conclusion, however, of paragraph 5 of that act occurs this language:

No injuction shall be issued in any case without reasonable previous notice to the adverse party or his attorney.

If you will examine the history of that law you will find that that remained expressly upon the statute book away down to 1873, when the revision of 1874 took effect. During that long run of eighty years there was upon the statute books of this country the prohibition to the courts from issuing an injunction in any case without a previous notice to the party, and you will remember also that there was a prohibition there against enjoining proceedings in State courts and also one prohibiting-I do not know that it appeared that early, but it did later against enjoining the collection of any tax; and one at once wonders how could the judicial affairs of a great country ever be conducted with such a prohibition as that upon the statute books. How could they keep house under it? What did the judges do when such cases came before them, as where a man is about to commit a fraud, and if you gave him notice of an application for an injunction he will at once commit the fraud. What did they do in cases of the negotiation of negotiable paper obtained by fraud, the pollution of a stream, or waste, or any of those things, where to give the man notice of an application for an injunction would at once lead to the doing of the act upon which the very jurisdiction of the court absolutely would depend?

During that long period of time they passed three bankruptcy acts, the first in 1800, which was repealed in two or three years, another in 1841 that was repealed in two or three years, and then in 1867 another. Everybody knows that the enactment of a bankruptcy law suspends the operation of every State insolvent law, and was it so that the restraining power of a court to prevent frauds could not be brought to bear without notice to rogues to stop the doing it because of that statute? You say, "Well, there must have been some special provision in those laws, or else the courts did not observe that law, or they did not consider it binding in all cases.' There it was in so many terms upon the statute books. Now, people naturally wanting to follow the history of this thing will go back over the decisions and look into the action of the courts, and the very first thing you discover is that the courts had that very question presented to them, Was an injunction permissible in such cases without giving a previous notice to the other party, notwithstanding the language of that statute? Was an injunction issued without such notice void as beyond the jurisdiction of the court, or it was a mere rule of practice prescribed by the legislative body to the court which they were to treat as a rule of practice, which under the recognized principles of courts of equity they can mold and form and shape to suit themselves?

The matter came up in innumerable ways. It came up before Judge Story in 1845. It came upon before Judge Betts also, in New

York, in 1845. In some cases the courts got around it in this way: They said that it did not apply to such a kind of case, although its language was broad and sweeping and comprehensive, and plainly did cover it. They said that the legislature did not contemplate such a thing; and again it came up in a great many other ways.

The point that I am making is that, just as Mr. Spelling said here yesterday, a prohibition of that kind upon the statute books is merely providing a rule of practice for the courts. The court said in the famous case of ex parte Poulteney in 4th Peters, 472:

Every court of equity possesses the power to mold its rules in relation to the time of appearing and answering so as to prevent the rule from working injustice, and it is not only in the power of the court but it is its duty to exercise a sound discretion upon this subject.

That, you will remember, was a case where the rules of equity of the circuit courts of the United States as to parties appearing, which are made by the Supreme Court of the United States in pursuance of an act of Congress, were set aside by the court in that instance by reason of inability, by reason of the epidemic in New Orleans, to comply with it, and if anybody cares to see how the courts treated this matter of the prohibition they may examine the case of Lawrence . Bowman in 1st McAlester.

Mr. PEARRE. As I understand, they disregarded it?

Mr. DAVENPORT. Yes, sir.

Mr. PEARRE. They got around it?

Mr. DAVENPORT. Yes, sir; as a natural result of attempting to have such a law.

Did

Mr. BIRDSALL. Did the courts evade the law? Mr. DAVENPORT. They did what they say here. I want to quote right in that connection what the supreme court of Indiana said. it ever occur to you, gentlemen, How does the Supreme Court of the United States or any other court obtain its power to declare a law of Congress unconstitutional? In the great case of Marbury v. Madison, where the Supreme Court first decided that an act of Congress was unconstitutional, where did they get the power? From a gift of the legislature? According to the doctrines that I have heard advocated since I came here to Washington the creator, the Congress, can clothe it with just as much or just as little of this judicial power as it chooses, and it can reach the point of saying, "You shall not declare our laws unconstitutional."

Now we all know that the judicial power of the court is to declare what the law is in controversies between individuals, to find the facts, and to render judgment thereon. It is not a mere advisory power, but they have a power to put the judicial stamp upon a thing and to make that thing of some value, and, as I have seen in a great number of cases, the supreme courts of the various States have said: "Suppose Congress repealed the law that authorizes us to issue attachments for contempt, would that take away from us the power to enforce obedience to our commands? To do so would be to destroy the judicial department." I want to read this:

That courts possess inherent powers not derived from any statute is undeniably true. Among these powers is the right to correct their records so as to make them speak the truth, to pass upon the constitutionality of statutes, to prevent the abuse of their authority or process, and to enforce obedience to their mandates. If it were granted that courts possess only such rights and powers as are conferred by statute