no rational or sensible reason for eliminating Government suits from the operation of the law, except that it would interfere with the proper administration of justice by hampering the courts in the enforcement of their orders and decrees and maintaining their authority and their complete integrity as courts. We fully agree that this is a conclusive reason for not applying the bill to such cases. It is just as conclusive a reason why it should not apply to other cases. It condemns the whole bill. The exception suggests the thought that it is desired to do as little harm as possible to the proper administration of justice, but to do only such harm as the political exigencies of the situation require. We respectfully submit that this is not the true and proper basis on which legislation should be predicated.

We are of the opinion that the proposed law is in violation of the Constitution. Congress can not take from the courts those inherent powers necessary to their existence or so regulate the exercise of them as to seriously impair them.

The judicial power of the United States is conferred upon the Supreme Court and such inferior courts as Congress may ordain and establish, by the Constitution, and not by any act of Congress. The language of the Constitution is as follows:

The judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as Congress may from time to time ordain and establish.

The Constitution made it the duty of Congress to create such courts as it deemed necessary, and the instant Congress had acted in the performance of its duty the judicial power vested in the courts thus created, by virtue of the Constitution.

Judicial power is the power to hear and determine causes in law and equity and to enforce the processes, orders, judgments, and decrees of the court. The power, too, to enforce its judgments and decrees are equally important as the power to hear and decide cases. A court without the power to enforce its orders would be a nullity and utterly powerless to administer justice. In the case of Kansas v. Colorado (206 U. S., p. 31), Mr. Justice Brewer discussed the constitutional grant of power to Congress and the courts as follows:

In the Constitution are provisions in separate articles for the three great departments of Government-legislative, executive, and judicial. But there is this significant difference in the grants of powers to these departments: The first article, treating of legislative powers, does not make a general grant of legislative power. It reads: "All legislative powers herein granted shall be vested in a Congress," etc.

And then, in Article VIII, it mentions and defines the legislative powers that are granted. By reason of the fact that there is no general grant of legislative power, it has become an accepted constitutional rule that this is a government of enumerated powers.

In McCulloch v. Maryland (4 Wheat., 405, 4 L. ed., 601) Chief Justice Marshall said: "This Government is acknowledged by all to be one of enumerated powers. The principle that it can exercise only the powers granted to it would seem too apparent to have required to be enforced by all those arguments which its enlightened friends, while it was depending before the people, found it necessary to urge. That principle is now universally admitted."

On the other hand, in Article III, which treats of the judicial department and this is important for our present consideration-we find that section 1 reads 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." By this is granted the entire judicial power of the Nation. Section 2, which provides that "the judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States," etc., is not a limitation nor an enumeration. It is a definite declaration-a provision that the judicial power shall extend to that is, shall include the several matters particularly mentioned, leaving unrestricted the general grant of the entire judicial power. There may be, of course, lim.

itations on that grant of power, but, if there are any, they must be expressed, for otherwise the general grant would vest in the courts all the judicial power which the new Nation was capable of exercising. Construing this article in the early case of Chisholm v. Georgia (2 Dall., 419, 1 L. ed., 440) the court held that the judicial power of the Supreme Court extended to a suit brought against a State by a citizen of another State. In announcing his opinion in the case, Mr. Justice Wilson said (p. 453; L. ed., p. 454):

"This question, important in itself, will depend on others more important still, and may, perhaps, be ultimately resolved into one no less radical than this: Do the people of the United States form a nation?”

In reference to this question attention may, however, properly be called to Hans v. Louisiana (134 U. S., 1, 33 L. ed., 842, 10 Sup. Ct. Rep., 504).

The decision in Chisholm v. Georgia led to the adoption of the eleventh amendment to the Constitution, withdrawing from the judicial power of the United States every suit in law or equity commenced or prosecuted against one of the United States by citizens of another State or citizens or subjects of a foreign State. This amendment refers only to suits and actions by individuals, leaving undisturbed the jurisdiction over suits or actions by one State against another. As said by Chief Justice Marshall in Cohen v. Virginia (6 Wheat., 264, 407; 5 L. ed., 257, 291): "The amendment, therefore, extended to suits commenced or prosecuted by individuals, but not to those brought by States." See also South Dakota v. North Carolina (192 U. S., 286; 48 L. ed., 448; 24 Sup. Ct. Rep., 269).

Speaking generally, it may be observed that the judicial powers of a nation extends to all controversies justiciable in their nature, and the parties to which or the property involved in which may be reached by judicial process, and when the judicial power of the United States was vested in the Supreme and other courts, all the judicial power which the Nation was capable of exercising was vested in those tribunals; and unless there be some limitations expressed in the Constitution it must be held to embrace all controversies of a justiciable nature arising within the territorial limits of the Nation, no matter who may be the parties thereto. This general truth is not inconsistent with the decisions that no suit or action can be maintained against the Nation in any of its courts without its consent, for they only recognize the obvious truth that a nation is not, without its consent, subject to the controlling action of any of its instrumentalities or agencies. The creature can not rule the creator. (Kawananakoa v. Polyblank, 205 U. S., 349, ante, 834; 27 Sup. Ct. Rep., 526.) Nor is it inconsistent with the ruling in Wisconsin v. Pelican Insurance Co. (127 U. S., 265; 32 L. ed., 239; 8 Sup. Ct. Rep., 1370), that an original action can not be maintained in this court by one State to enforce its penal laws against a citizen of another State. That was no denial of the jurisdiction of the court, but a decision upon the merits of the claim of the State.

These considerations lead to the proposition that when a legislative power is claimed for the National Government the question is whether that power is one of those granted by the Constitution, either in terms or by necessary implication; whereas, in respect to judicial functions, the question is whether there be any limitations expressed in the Constitution on the general grant of national power.

We believe that all the courts, where the question has arisen, have held that the power to punish for disobedience of the court's orders and decrees and for resistance to its authority is an inherent power which may not be taken away or impaired by legislative enactment. In the case of Middlebrook v. State (43 Conn., p. 257), the court said:

The statute is not to be regarded as conferring the power to punish for contempts but merely as regulating an existing power. The power is inherent in all courts. But independently of the statute, we think the power is inherent in all courts. The court of justice must of necessity have the power to preserve its own dignity and to protect itself.

The Legislature of Virginia passed an act very similar to the one proposed here, giving one accused of contempt of court a right of trial by jury. The courts of that State refused to recognize the power of the legislature to so regulate the powers of the court in contempt cases. In the Carter case in the 96 Virginia reports the court say:

Being of opinion that the defendant was guilty of contempt, we shall not attempt any classification of it as a direct or indirect contempt. If it were a direct contempt, then its punishment was without doubt to be ascertained and fixed by the court with out the intervention of a jury by the terms of the law.

It is incumbent upon us to consider whether it was within the power of the legisla ture to deprive the court of jurisdiction to punish it without the intervention of a jury. In the courts created by the Constitution there is an inherent power of self-defense and self-preservation; that this power can be regulated, but can not be destroyed, or so far diminished as to be rendered ineffectual by legislative enactment; that it is a power necessarily resident in and to be exercised by the court itself, and that the vice of an act which seeks to deprive the court of this inherent power is not cured by providing for its exercise by a jury.

The Supreme Court of Michigan held the same doctrine in the case of Nichols v. Judge of Superior Court (130 Mich., 192), decided in 1902. The Constitution confers judicial power on the courts of that State in much the same language as that used in the Federal Constitution. In that case the court used this language:

The question, therefore, is again presented to this court, Have the circuit courts of this State the inherent power to punish for contempts, or are they subject to the control of the legislature? The question is an important one in the administration of the law. If the legislature can determine what acts shall constitute contempts in the circuit courts, it can abolish the power of such courts to punish for the contempts. There is no middle ground; either the courts have the absolute control, under the constitution, over contempt proceedings, or they have only such as the legislature may see fit to confer.

In Hale v. The State (55 Ohio St. Rep., 210) is another case in point:

In this case the inherent power to punish contempts and enforce orders of court by summary proceedings is fully sustained, and it is said of sections 6906 and 6907 of the Revised Statutes, which make certain acts formerly punishable as contempts now punishable by indictment as offenses against public justice, that if it is to be interpreted to take away from a constitutional court its inherent right to punish offenses of this character when they are contempts of court, the statute will be invalidated. In Ex parte McCown (139 N. C.), decided in 1905, sections 648 to 657 of legislative act of 1871 were pleaded to prevent punishment for contempt. The court said:

We are satisfied that at common law the acts and conduct of the petitioner, as set out in the case, constitute a contempt of court, and if the statute does not embrace this case and in terms repeals the common law applicable to it, we would not hesitate to declare the statute in that respect unconstitutional and void for reasons which we will now state.

The case of Callahan v. Judd (23 Wis., 343), has been cited often on the question as to whether the legislature has the power under the constitution to require courts of equity to employ a jury in their administration of the law. It is a well-considered case, and we quote from the opinion:

I think the act invalid, and my reasons are, briefly, as follows: The power to decide questions of fact in equity cases belonged to the chancellor just as much as the power to decide questions of law. It was an inherent part and one of the constituent elements of equitable jurisdiction. If, therefore, it shall appear that by the constitution the equitable jurisdiction existing in this State is vested in the courts, I think it will necessarily follow that it would not be competent for the legislature to divest him of any part of it and confer it upon juries. If they can do so as to a part, I do not see why they may not as to the whole. If they can say that in an equity case no court shall render any judgment except upon the verdict of a jury upon questions of fact, I can see no reason why they may not say that a jury shall also be allowed to decide questions of law.

But the constitution (sec. 2, art. 7) provides that "the judicial power of this State, both as to matters of law and equity, shall be vested in a supreme court, circuit courts, courts of probate, and justices of the peace. The legislature may also vest such jurisdiction as shall be deemed necessary in municipal courts.

*
*

In order to determine the meaning of the phrase "judicial power as to matters of law and equity," it is only necessary to refer to the system of jurisprudence estab lished in this country and derived from England, in which the court had certain well.

defined powers in those two classes of cases. In actions of law they nad the power of determining questions of law, and were required to submit questions of fact to a jury When the constitution, therefore, vested in certain courts judicial power in matters at law, this would be construed as vesting such power as the court, under the English and American systems of jurisprudence, had always exercised in that class of actions. It would not import that they were to decide questions of fact, because such was not the judicial power in such actions. And the constitution does not attempt to define judicial power in these matters, but speaks of it as a thing existing and understood. But, to remove all doubt in actions at law, the right of a trial by jury is expressly preserved by another provision.

But, as already stated, the power of a court of chancery to determine questions of fact as well as of law was equally well established and understood. And when the constitution vested in certain courts judicial power as to matters in equity, it clothed them with this power as one of the established elements of judicial power in equity, so that the legislature can not withdraw it and confer it upon juries.

* *

*

The plain object of this provision was to enable the legislature to distribute the jurisdiction in both matters at law and in equity as between the circuit courts and the other courts in the State, giving the circuit courts such original jurisdiction and such appellate jurisdiction as it might see fit. But the jurisdiction there intended was jurisdiction of the suit.

It may well be that the legislature may deprive the circuit courts of original jurisdiction in actions for the foreclosure of mortgages. It is unnecessary to determine whether it could or not. But it is quite certain that this clause contains no authority for it, while leaving those courts jurisdiction of this class of action, to attempt to withdraw from them an acknowledged part of the judicial power and vest it in the jury.

The Supreme Court of Oklahoma held an act of the legislature unconstitutional which required the courts to submit indirect contempts to a trial by jury. The following is the opinion of that court in the case of Smith v. Speed (11 Okla., 95):

If it now should be found that the judge had no power to enforce his order at all or to punish for contempt, and that the court had no power to punish beyond a fine of $50 and imprisonment not exceeding a longer period than 10 days in the county jail, and that a change of judge may be had and a change of venue from the county, and that a trial by jury may be had to determine whether the recalcitrant party is in contempt at all or not, it will be admitted by the bar, acquainted with the law's delays, that the power to punish for contempt, either direct or indirect, being destroyed in the judge, will be to a great extent destroyed also in the court and rendered valueless.

If the contention now sought for by the plaintiff in error should be sustained, it would go to the extent that the court, in equitable proceedings, after a full hearing and a final determination and judgment upon the merits, is without the power to enforce its judgments by the imposition of a pecuniary penalty or imprisonment, and that in the endeavor to enforce its judgment by proceedings in contempt it would be subject to have its final judgment brought into review in the contempt proceedings upon a change of judge, or of venue, to a completely new jurisdiction and to a trial by jury, in which the merits of the final order, which has been made by the court, in the proceeding, should again be reviewed, including the question whether there was any merit, right, or authority of the court in the equitable proceedings in which the judgment had been rendered or the order made, and the equitable jurisdiction of the district court upon matters finally determined would thus be subject to be again brought in question by another judge in another venture and by a jury, a thing unheard of in the chancery jurisdiction. If such a state of things could be, it could but result in the degradation of courts and to make them truly the subjects of contempt.

If the power to punish for contempt is inherent in the courts it can not be taken away or impaired by Congress or the State legislatures. If it is inherent then the courts can not exist without it. As to whether such power is inherent is well stated by the Supreme Court of Mississippi in the case of Watson v. Williams (36 Miss., 331), as follows:

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 HR-62-2-vol 3-44

of record and coexisting with them by the wise provisions of the conimon law. A court without the power effectually to protect itself against the assaults of the lawless, or to enfore 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 Kalamazoo v. Superior Court Judge, in 75 Michigan, 274, the court argues the question in this way:

It is within the power of a legislature to change the formalities of legal procedure, but it is not competent to make such changes as to impair the enforcement of rights. ** The functions of judges in equity cases in dealing with them is as well settled a part of the judicial power and as necessary to its administration as the functions of juries in common-law cases. Our constitutions are framed to protect all rights. When they vest judicial power they do so in accordance with all of its essentials, and when they vest it in any court they vest it as efficient for the protection of rights, and not subject to be distorted or made inadequate. The right to have equity controversies dealt with by equitable methods is as sacred as the right of trial by jury. Whatever may be the machinery for gathering testimony or enforcing decrees, the facts and the law must be decided together; and when a chancellor desires to have the aid of a jury to find out how the facts appear to such unprofessional men, it can only be done by submitting single issues of pure fact, and they can not foreclose him in his conclusions unless they convince his judgment.

* *

In all ages and in all countries this distinction by nature, which was never called "equitable" except in English jurisprudence, where it was first so called from an idea that the rights were imperfect because unknown in the rude ages, when property was scanty and business almost unheard of in the regions outside of great cities, has been recognized and provided for by suitable methods substantially similar in character. The system of chancery jurisprudence has been developed as carefully and as judiciously as any part of the legal system, and the judicial power includes it, and always must include it. Any change which transfers the power that belongs to a judge to a jury, or to any other person or body, is as plain a violation of the Constitution as one which should give the courts executive or legislative power vested elsewhere. The cognizance of equitable questions belongs to the judiciary as a part of the judicial power, and under our Constítution must remain vested where it always has been vested heretofore.

The following cases and many others lay down the same doctrine: Ex parte Terry (128 U.S.); Eilenbecker v. Plymouth Court (134 U.S.); Ex parte Debs (158 U. S.).

In conclusion, we call attention to the most recent utterance of the United States Supreme Court on this point in the case of Gompers v. Bucks Stove & Range Co. (221 U.S., 492) and the cases therein cited. Judge Lamar says:

For while it is sparingly to be used, yet the power of courts to punish for contempts is a necessary and integral part of the independence of the judiciary, and is absolutely essential to the performance of the duties imposed on them by law. Without it they are mere boards of arbitration, whose judgments and decrees would be only advisory. 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 "judicial power of the United States" would be a mere mockery.

This power "has been uniformly held to be necessary to the protection of the court from insults and oppression while in the ordinary exercise of its duty, and to enable it to enforce its judgments and orders necessary to the due administration of law and the protection of the rights of citizens." (Bessette v. W. B. Conkey Co., 194 U. S., 333, 48 L. ed., 1004; 24 Sup. Ct. Rep., 665.)

There has been general recognition of the fact that the courts are clothed with this power, and must be authorized to exercise it without referring the issues of fact or law to another tribunal or to a jury in the same tribunal. For, if there was no such authority in the first instance, there would be no power to enforce its orders if they were disregarded in such independent investigation. Without authority to act promptly and independently the courts could not administer public justice or enforce the rights of private litigants. (Bessette v. W. B. Conkey Co., 194 U. Š., 337, 48 L. ed., 1005; 24 Sup. Ct. Rep., 665.)