matters that arise at a distance, and of which the court cannot have so perfect a knowledge, unless by the confession of the party or the testimony of others, if the judges upon affidavit see sufficient ground to suspect that a contempt has been committed, they either make a rule on the suspected party to show cause why an attachment should not issue against him; or, in very flagrant instances of contempt, the attachment issues in the first instance, as it also does if no sufficient cause be shown to discharge, and thereupon the court confirms and makes absolute the original rule." 4 Bl. Com. 286. * It was within the discretion of that court, whose dignity he had insulted, and whose authority he had openly defied, to determine whether it should, upon its own view of what occurred, proceed at once to punish him, or postpone action until he was arrested upon process, brought back into its presence, and permitted to make defense. Any abuse of that discretion would be at most an irregularity or error, not affecting the jurisdiction of the circuit court. We have not overlooked the earnest contention of petitioner's counsel that the circuit court, in disregard of the fundamental principles of Magna Charta, in the absence of the accused, and without giving him any notice of the accusation against him, or any opportunity to be heard, proceeded "to accuse, to try and to pronounce judgment, and to order him to be imprisoned; this, for an alleged offense committed at a time preceding, and separated from, the commencement of his prosecution." We have seen that it is a settled doctrine in the jurisprudence both of England and of this country, never supposed to be in conflict with the liberty of the citizen, that for direct contempts committed in the face of the court, at least one of superior jurisdiction, the offender may, in its discretion, be instantly apprehended and immediately imprisoned, without trial or issue, and without other proof than its actual knowledge of what occurred; and that, according to an unbroken chain of authorities, reaching back to the earliest times, such power, although arbitrary in its nature and liable to abuse, is absolutely essential to the protection of the courts in the discharge of their functions. Without it, judicial tribunals would be at the mercy of the disorderly and violent, who respect neither the laws enacted for the vindicating of public and private rights, nor the officers charged with the duty of administering them. To say, in case of a contempt such as is recited in the order below, that the offender was accused, tried, adjudged to be guilty and imprisoned, without previous notice of the accusation against him and without an opportunity to be heard, is nothing more than an argument or protest against investing any court, however exalted, or however extensive its general jurisdiction, with the power of proceeding summarily, without further proof or trial, for direct contempts committed in its presence. Nor, in our judgment, is it an accurate characterization of the present case to say that the petitioner's offense was committed "at a time preceding, and sepa

rated from, the commencement of his prosecution.” His misbehavior in the presence of the court, his voluntary departure from the court-room without apology for the indignity he put upon the court, his going a few steps, and under the circumstances detailed by him, into the marshal's room in the same building where the court was held, and the making of the order of the commitment, took place, substantially on the same occasion, and constituted, in legal effect, one continuous complete transaction, occurring on the same day, and at the same session of the court. The jurisdiction, therefore, of the circuit court to enter an order for the offender's arrest and imprisonment was as full and complete as when he was in the court-room in the immediate presence of the judges. Writ denied.

Ex Parte Terry, 128 U. S. 289, 9 S. Ct. 77, 32 L. Ed. 405, B. 869.

R.:

(U. S. Sup. Ct., 1873.) Disbarment Without Hearing. Petition for writ of mandamus to compel the judge of the U. S. D. C. for W. Ark. to vacate an order disbarring petitioner for contempt of court, and to compel him to restore petitioner to the roll of attorneys. Petitioner, the U. S. marshal, and another, having been charged with contempt, the petitioner filed a response for the marshal; and being reminded that there was a rule against himself also, said: "I am here to respond; I don't know what there is for me to answer; it (the report of the grand jury) says I saw Silas Stephenson." The judge: "You must answer in writing, Mr. Robinson." "The rule itself does not require me to respond in writing." J: "It should have done so; you will amend the order if it does not, Mr. Clerk." R. declined to answer till the rule was amended. J.: "Well, I will make the order for you to respond in writing now. Mr. Clerk, you will make an order requiring Mr. Robinson to answer the rule in writing." R.: "I shall answer nothing"-and without time for another word, the judge ordered the clerk to strike R.'s name from the roll of attorneys and the marshal to remove him from the bar. The petition says that the interview with Stephenson had no reference to any matter in court. FIELD, J. *No act of his is mentioned which could constitute within the statute a contempt either of the court or of its judge. The allegation that the witness Stephenson, after seeing Robinson, had suddenly absented himself, amounted to nothing more than an insinuation that possibly he may have been advised to that course by Robinson. There was no averment of any fact which the court could notice or the attorney was bound to explain. Whatever contempt was committed by the petitioner consisted in the tone and manner in which his language to the court was uttered. On this hearing we are bound to take the statements in that respect of the judge embodied in his order as true, for the question before us is not whether the court erred, but whether it had any jurisdiction to disbar the petitioner for the alleged contempt. The law happily prescribes the punishment which the court can impose for contempts. The seventeenth section of the

*

**

Judiciary Act of 1789 declares that the court shall have power to punish contempts of their authority in any cause or hearing before them, by fine or imprisonment, at their discretion. The enactment is a limitation upon the manner in which the power shall be exercised, and must be held to be a negation of all other modes of punishment. The judgment of the court disbarring the petitioner, treated as a punishment for a contempt, was, therefore, unauthorized and void. The power to disbar an attorney proceeds upon very different grounds. This power is possessed by all courts which have authority to admit attorneys to practice. But the power can only be exercised where there has been such conduct on the part of the parties complained of as shows them to be unfit to be members of the profession. Parties are admitted to the profession only upon satisfactory evidence that they possess fair private character and sufficient legal learning to conduct causes in court for suitors. The order of admission is the judgment of the court that they possess the requisite qualifications both in character and learning. They become by such admission officers of the court, and as said in Ex parte Garland, 4 Wallace 378, "they hold their office during good behavior, and can only be deprived of it for misconduct ascertained and declared by the judgment of the court after opportunity to be heard has been afforded. Before a judgment disbarring an attorney is rendered he should have notice of the grounds of complaint against him and ample opportunity of explanation and defense. This is a rule of natural justice, and should be equally followed when proceedings are taken to deprive him of his right to practice his profession, as when they are taken to reach his real or personal property. And such has been the general, if not the uniform, practice of the courts of this country and of England. There may be cases undoubtedly of such gross and outrageous conduct in open court on the part of the attorney, as to justify very summary proceedings for his suspension or removal from office: but even then he should be heard before he is condemned. The principle that there must be citation before hearing, and hearing or opportunity of being heard before judgment, is essential to the security of all private rights. Without its observance no one would be safe from oppression wherever power may be lodged. That mandamus is the appropriate remedy in a case like this to restore an attorney disbarred, where the court below has exceeded its jurisdiction in the matter, was decided in Ex parte Bradley. Mandamus

awarded. Ex Parte Robinson, 86 U. S. (19 Wall.) 505, 22 L. Ed. 205, B. 882.

TREASON AND PIRACY.
TREASON.

§ 214. Defined, 598.

PIRACY.

CHAPTER XIII.

TREASON AND PIRACY.

TREASON.

§ 214. Definition. Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court. U. S. Const. Art. 3, § 3, sub. 1. Intended in joining own army supposed to be enemy: Respublica v. Malin, § 10.

See U. S. v. Smith, § 2.

PIRACY.

TABLE OF CASES DIGESTED.

THE FIGURES REFER TO PAGES.

Page.

83 .78-79

449-450

.98-99

280-281

428
532

.245-246

308

573-574 .266-267

262

.14-16