*

*

(Ark. Sup. Ct., 1877.) Against Another Sovereign. Defendant was indicted for perjury, and all the evidence of the state being excluded on the trial, it appealed. ENGLISH, C. J. Perjury is an offense against the sovereign whose law is violated by the making of the false oath. The courts of no country or sovereign, execute the penal laws of another. Story, on Confl. L. § 621; The Antelope, 10 Wheaton 66, 123. The oath in this case was not taken under or by virtue of any law of the state, nor by an officer acting, in administering the oath, under authority conferred upon him by any law of the state, nor was the affidavit to be used in any court, tribunal, or before any officer of the state. On the contrary, the oath was taken under the homestead act of congress, it was administered by an officer acting under authority of that act, and the affidavit was taken to be used before a United States land officer to procure a homestead entry. If the oath was wilfully false, it was an offense not in violation of a state law, nor against the sovereignty of the state. U. S. v. Bailey, 9 Peters 238. Affirmed. S. v. Kirkpatrick, 32 Ark. 117, Kn. 300.

(Me. Sup. Judicial Ct., 1884.) Extra-judicial. Indictment in the form prescribed by R. S. (1871), c. 122, § 5, for perjury. Verdict, guilty. Motion in arrest of judgment for insufficient indictment. WALTON, J. The defendant is charged with having committed the cime of perjury "by falsely swearing to material matter in a writing signed by him." The indictment makes no mention of the character or purpose of the writing. Nor does it state what the matter falsely sworn to was. Nor does it contain any averments which will enable the court to determine that the oath was one authorized by law. The question is whether such an indictment can be sustained. We think it cannot. It does not contain sufficient matter to enable the court to render an intelligent judgment. The recital of facts is not sufficient to show that a crime has been committed. All that is stated may be true, and yet no crime have been committed. The character of the writing is not stated, nor its purpose; nor the use made, or intended to be made, of it. For aught that appears, it may have been a voluntary affidavit to the wonderful cures of a quack medicine. Such an affidavit, as every lawyer knows, could not be made the basis of a conviction for perjury. In the language of our statute defining perjury, it is only when one who is required to tell the truth on oath or affirmation lawfully administered, wilfully and corruptly swears or affirms falsely to material matter, in a proceeding before a court, tribunal, or officer created by law, that he is guilty of perjury. R. S. c. 122, §1. The oath must be one authorized or required by law, to constitute perjury. Swearing to an extra-judicial affidavit is not perjury. * Arrested. S. v. Mace, 76 Me. 64, B. 32.

CONTEMPT.

§ 213. Nature and Kinds. Contempt is "a wilful disregard or disobedience of public authority." Bouvier L. Dic. "The contempts that are thus punished are either direct, which openly insult or resist the powers of the courts or the persons of the judges who preside there, or else are consequential, which (without such gross insolence or direct opposition) plainly tend to create a universal disregard of their authority." 4 Bl. Com. 283.

(Eng. King's Bench, 1721.) Jurisdiction of Other Courts. Habeas corpus to the keeper of Newgate, to bring the body of A. Murray. WRIGHT, J. It appears upon the return of this habeas corpus that Mr. Murray is committed to Newgate by the house of commons "for an high and dangerous contempt of privileges of that house;" and it is now insisted upon at the bar that this is a bailable case within the meaning of the habeas corpus act. To this I answer that it has been determined by all the judges to the contrary, that it could never be the intent of that statute to give a judge at his chamber, or this court, power to judge of the privileges of the house of commons. The house of commons is undoubtedly an high court, and it is agreed on all hands that they have power to judge of their own privileges. It need not appear to us what the contempt was, for if it did appear we could not judge thereof. Lord Shaftesbury was committed for a contempt of the house, and being brought here by an habeas corpus, the court remanded him. And no case has been cited wherever this court interposed. The house of commons is superior to this court in this particular, this court cannot admit to bail a person committed for a contempt in any other court in Westminster hall. DENISON, J. This court has no jurisdiction in the present case. We granted the habeas corpus not knowing what the commitment was. ** ** FOSTER, J. The law of

parliament is part of the law of the land, and there would be an end of all law if the house of commons could not commit for a contempt; all courts of record (even the lowest) may commit for a contempt. Murray's Case, 1 Wils. 299, B. 854.

(Eng. King's Bench, 1821.) Indictment for saying of a justice of peace, in the execution of his office, "You are a rogue and a liar." Wearg moved after verdict pro rege, in arrest of judgment, that though the justice might have committed him for the contempt, yet the words are not indictable, since it is not to be presumed they would provoke a justice of peace to a breach of the peace, which is the reason why indictments have been held to lie for words. Sed PER CURIAM. The allowing he might be committed shows they were indictable. It is true the justice may make himself judge, and

punish him immediately; but still if he thinks proper to proceed less summarily by way of indictment, he may; the true distinction is, that where the words are spoken in the presence of the justice, there he may commit; but where it is behind his back the party can be only indicted for a breach of the peace. Cases cited, Salk. 698; 3 Mod. 139; 2 Show. 207; 1 Roll. Rep. 79; R. v. Langley, Soley, Nuns, and Legasseck. Judgment pro rege. R. v. Revel, 1 Strange 420, B. 854.

(U. S. Sup. Ct., 1885.) Right of Appeal and Review. Petition for writ of habeas corpus. In a suit against petitioner in the supreme court of New York he was ordered to appear and submit to examination before a judge of the court before trial pursuant to Cod. Civ. Proc. §§ 870-3, appeared accordingly and gave testimony, the hearing was continued, he removed the case to the U. S. C. C., the hearing was ordered continued before a master of the court, and he refused to testify further, claiming that the court had no jurisdiction to proceed in that way. For this refusal the court declared him in contempt, ordered him to pay a fine of $500, and committed him to custody till he paid it. MILLER, J. There can

be no doubt of the proposition that the exercise of the power of punishment for contempt of their orders by courts of general jurisdiction is not subject to review by writ of error, or appeal to this court. Nor is there in the system of federal jurisprudence, any relief against such orders, when the court has authority to make them, except through the court making the order, or possibly by the exercise of the pardoning power. This principle has been uniformly held to be necessary to the protection of the court from insults and oppressions while in the ordinary exercise of its duties, and to enable it to enforce its judgments, and orders necessary to the due administration of law, and the protection of the rights of suitors. When, however, a court of the United States undertakes, by its process of contempt, to punish a man for refusing to comply with an order which that court had no authority to make, the order itself, being without jurisdiction, is void, and the order punishing for the contempt is equally void. It is well settled now, in the jurisprudence of this court, that when the proceeding for contempt in such a case results in imprisonment, this court will, by its writ of habeas corpus, discharge the prisoner. It follows necessarily that on a suggestion by the prisoner that, for the reason mentioned, the order under which he is held is void, this court will, in the language of the statute, make "inquiry into the cause of the restraint of liberty." St. § 752. [The court then proceeded to show that the court below had no jurisdiction to continue the examination because the New York Code Civ. Proc. is in conflict with U. S. R. S. § 861.] Prisoner released. Ex parte Fisk, 113 U. S. 713, 5 S. Ct. 724.

*

(N. Ham. Superior Ct. of Judicature, 1844.) Summary Jurisdic

tion of Inferior Courts. Indictment for resisting a deputy sheriff in discharge of his duty. It appeared that defendant as a spectator at a trial before a justice of the peace took a seat very near the justice, who asked him to move off; and this request being disregarded, ordered the deputy acting as officer of the court to remove him, which he did with the assistance of three others. Defendant kicked and struck as he was able in resistance of execution of this order, and this is the offense here charged. He was found guilty, and this is a motion in arrest of judgment. GILCHRIST, J. ** It is also contended that the justice had no authority to make the order in question. The power of keeping order, and of requiring a decorous and proper demeanor in a court room during the progress of a trial, lies at the very foundation of the administration of justice. Without it there can be no law and no justice, for if the law will not authorize the means necessary to insure its observance and proper administration, it must remain a dead letter. But the law never intended that the prisoner should have the power of stationing himself in any position he might desire during the trial. If it rested with him to select the location he might find most convenient, he might see fit to place himself upon the bench or in the jury box. He was present at this trial, neither as a party nor as a witness. He went there to gratify his curiosity, and it behooved him so to conduct as not to disturb the proceedings of those who had duties. to perform. These duties cannot be discharged unless the justice. possesses the power upon an emergency to direct the removal of any individual whose presence he may think prejudicial to the interests of justice. The law does not, indeed, authorize any court to act arbitrarily, and unreasonably exclude persons, but the right to have the courts open is the right of the public and not of the individual. If every person for whom there is sufficient space, has a right to be in court, he has a right to be in any part of it where there is sufficient space, and the inconvenience resulting from the exercise of such a right is a strong argument against its existence. It will be in many cases impossible that a proceeding should be conducted with due order and solemnity, and with the effect that justice demands, if the presiding magistrate, by whatever name he may be called, has not the control of the proceeding, and the power of admission or exclusion, according to his own discretion. It is better that this discretion should be exercised by a person acting under the responsibility of an official oath, than that it should be left to a crowd of lounging bystanders to enter and depart as their humors might dictate; and far better than that a court of justice should be desecrated by such lawless conduct as was exhibited by the prisoner. Garnett v. Ferrand, 6 B. & C. 611. We think this objection should be overruled. * S. v. Copp, 15 N. H. 212,

B. 865.

(U. S. Sup. Ct. 1888.) Contempts in Open Court. Application for

*

a writ of habeas corpus, alleging that petitioner had been unlawfully imprisoned by an order of the circuit court of the United States for the northern district of California. The order, which was made a part of the application, showed that petitioner was committed for contempt of court in the court room by resisting the marshal of the court in executing the order of the court to remove the petitioner's wife from the room, and also for contempt by petitioner in assaulting the marshal with a deadly weapon in the face of the court. HARLAN, J. What, then, are the grounds upon which the petitioner claims that the circuit court was without jurisdiction to make the order committing him to jail? They are: 1. That the order was made in his absence; 2. That it was made without his having had any previous notice of the intention of the court to take any steps whatever in relation to the matters referred to in the order; 3. That it was made without giving him any opportunity of being first heard in defense of the charges therein made against him. The second and third of these grounds may be dismissed as immaterial in any inquiry this court is at liberty, upon this original application, to make. For, upon the facts recited in the order of September 3, showing a clear case of contempt committed in the face of the circuit court, which tended to destroy its authority, and, by violent methods, to embarrass and obstruct its business, the petitioner was not entitled, of absolute right, either to a regular trial of the question of contempt, or to notice by rule of the court's intention to proceed against him, or to opportunity to make formal answer to the charges contained in the order of commitment. It is undoubtedly a general rule in all actions, whether prosecuted by private parties, or by the government, that is, in civil and criminal cases, that "a sentence of a court pronounced against a party without hearing him, or giving him an opportunity to be heard, is not a judicial determination of his rights, and is not entitled to respect in any other tribunal." Windsor v. McVeigh, 93 U. S. 274, 277. But there is another rule, of almost immemorial antiquity, and universally acknowledged, which is equally vital to personal liberty and to the preservation of organized society, because upon its recognition and enforcement depend the existence and authority of the tribunals established to protect the rights of the citizen, whether of life, liberty, or property, and whether assailed by the illegal acts of the government or by the lawlessness or violence of individuals. It has relation to the class of contempts which, being committed in the face of a court, imply a purpose to destroy or impair its authority, to obstruct the transaction of its business, or to insult or intimidate those charged with the duty of administering the law. Blackstone thus states the rule: "If the contempt be committed in the face of the court, the offender may be instantly apprehended and imprisoned at the discretion of the judges, without any further proof or examination. But in