THE ENFORCEMENT OF JUDGMENTS AND PUNISHMENT OF
CONTEMPTS OF COURT
No court can with propriety pass a decree which it cannot
enforce.[Footnote: Clarke's Appeal from Probate, 70
Conn. Reports, 195, 209; 39 Atlantic Reporter, 155; 178
U. S. Reports, 186.] After the judgment comes the issue of
appropriate process to compel obedience to it, unless such
obedience (as is generally the case) is voluntarily rendered.
The whole power of government is at the command of the court for
this purpose. A sheriff with a judicial process to serve who
meets with resistance can summon to his aid the _posse
comitatus_. By this term is meant the whole power of his
county; that is, any or all of its able-bodied inhabitants on
whom he may choose to call. Not to respond to such a call is a
legal offense. The marshals have similar powers in serving
process from the Federal courts.
The fact that there is this force behind a writ is so well
understood by the community that occasions for resorting to its
use, or indeed to the use of any actual force, are extremely
rare. If the process was lawfully issued, it would be useless to
resist. If unlawfully, it is easier and safer to seek relief by
an injunction, or in case of an arrest, by a writ of _habeas
corpus_. But there have been occasions in the judicial
history of the United States when, under the influence of a
general popular ferment, the service of process from the courts,
and even the holding of courts, have been forcibly prevented.
Shay's Rebellion in Massachusetts (in 1786) was the first of
these after the Revolution. Similar uprisings of less importance
took place at about the same time in New Hampshire and Vermont.
A few years later, the service of process from the New York
courts was interrupted in Columbia County. There was a strip of
territory adjoining the Hudson River, title to which was claimed
both by New York and Massachusetts. Conflicting claims, awaking
much bitter feeling, arose under grants from each government. In
1791, the sheriff of Columbia County was ordered by the courts,
in the course of a lawsuit, to sell a tract of this land.
Seventeen persons disguised as Indians appeared at the time of
sale to resist it, and he was killed by a shot from one of
them.[Footnote: Report Am. Historical Association for 1896, I,
152, note.]
Then came the Whiskey Rebellion in Pennsylvania. The statutes of
the United States[Footnote: United States Revised Statues, 5299.]
provide that if their courts meet with opposition of a serious
nature, the President may use the army or call out the militia of
one or more States to restore order. Opposition to the
enforcement of the revenue tax on whiskey in 1794 called for the
first exercise of this power. Marshals were resisted in serving
process, and several counties were in a state of insurrection.
Washington sent so large a force of troops to suppress it that
the rioters vanished on their approach, and there was no further
obstruction of the ordinary course of justice. The total expense
to the government in this affair was nearly $1,000,000.[Footnote:
Wharton's "State Trials," 102.] In 1799, somewhat similar
opposition arose in the same State against the enforcement of the
house taxes laid by Congress. President Adams here also sent a
sufficient force of militia to suppress it.[Footnote:
_Ibid_., 48, 459.]
In 1839, a general combination was formed among the tenant
farmers in New York holding long or perpetual leases from
manorial proprietors to resist the payment of the stipulated
rents. In several counties the greater part of the land was
occupied under such a tenure. The design was to compel the
landlords to sell to the existing tenants at a price fixed by
public appraisal, or else that the State should take the lands by
eminent domain and dispose of them to the same persons on
reasonable terms. Sheriffs were forcibly prevented from serving
writs in dispossession proceedings. One who took with him a
_posse comitatus_ of five hundred armed men, a hundred of
whom were mounted, was met and turned back by a larger band, who
were all mounted. The Governor was finally compelled to issue a
proclamation against the "up-renters," as they were called, and
to protect the sheriff by a large body of militia. Put down in
one county, the movement soon reappeared in others. Disguises
were assumed, the rioters figuring under Indian names and wearing
more or less of the Indian garb. Three hundred of them, with
twice that number not in disguise, prevented a sheriff from
levying an execution for rent on tenants upon the Livingston
manor. For six years the contest went on in several counties.
Several lives were lost on both sides. Sheriff's officers were
tarred and feathered and their writs destroyed. Of the rioters
many were arrested and prosecuted from time to time and some
convicted. Five were sent to the State's prison for life. Two
were sentenced to be hanged. The State used its militia freely
to defend the sheriffs, at a cost in one county of over $60,000,
and in 1845 a series of prosecutions and convictions, resulting
in over eighty sentences at one term of court, broke the back of
the insurrection. It died half-victorious, however, for an
"anti-rent" Governor and Lieutenant-Governor were elected the
next year, and several statutory changes in the law of leases
which the malcontents had desired were soon afterwards
enacted.[Footnote: See Paper by David Murray on the "Anti-rent
Episode in New York," Report of the American Historical
Association for 1896, I, 139.]
During the period of reconstruction in the Southern States,
following the civil war, the courts were repeatedly broken up by
violence and the service of legal process resisted, in some
instances by authority of the military Governor.[Footnote:
S. S. Cox, "Three Decades of Federal Legislation," 469, 472, 495,
496, 509, 544, 565.]
The writ to enforce the judgment of a court of law is called an
execution. It is directed to the sheriff or other proper
executive officer, and requires him to seize and sell the
defendant's property or, as the case may be, to arrest and
imprison him, to turn him out of possession of certain lands, or
to take some other active step against one who has been adjudged
in the wrong, in order to right the wrong, as the judgment may
command.
A judgment for equitable relief is not ordinarily the subject of
an execution.[Footnote: See Chap. VIII.]
A judgment at law is generally to the effect that one of the
parties shall recover certain money or goods or land from the
other. On the prevailing party lies the burden of moving to get
possession of what has thus been adjudged to be due. This he
does by taking out an execution. A judgment in equity is an
order on the defendant to do or not to do some particular act.
It is now an affair between him and the court. He must obey this
mandate or he will be treating the court with disrespect.
To treat a court with disrespect, or, in legal parlance, to be in
contempt of court, is to incur very serious responsibilities. It
is in the nature of a criminal wrong, for it is a direct
opposition to the expressed will of the State. Whoever is guilty
of it makes himself liable to arrest and to be subjected to fine
or imprisonment. If, for instance, an injunction is obtained in
a suit for the infringement of a patent right, it becomes at once
the duty of the defendant to desist from making or selling what
the plaintiff has proved that he only can lawfully make and sell.
If he does not desist, the plaintiff can complain to the court,
and if after a preliminary hearing it appears that his complaint
is well founded, can obtain a warrant of arrest, styled a
"process of attachment." On this, the proper officer takes the
defendant into custody, and brings him before the court to answer
for violating the injunction order. If the case is an aggravated
one, he will be both fined and imprisoned, and the imprisonment
will be in the common jail for such time as the court may order.
It is the sting in the tail of an injunction that makes it
especially formidable. The debtor who fails to pay to the
sheriff, when demand is made upon an execution, a judgment for
money damages commits no contempt of court. The man who keeps on
doing what a court of equity has forbidden him to do does commit
one.
A conspicuous instance of the efficacy of an injunction was
furnished by the great Chicago railroad strike and boycott of
1894, initiated by the American Railway Union. Mob violence
followed. More than a thousand freight cars were burned. Trains
were derailed, passengers fired at, and lives lost. The officers
of the union, after two or three weeks, wrote to the managers of
the railroads principally affected, describing the strike as
threatening "not only every public interest, but the peace,
security and prosperity of our common country."[Footnote: United
States _v._ Debs, 64 Federal Reporter, 724, 729.] A
temporary injunction was issued against these officers and others
by the Circuit Court of the United States in an equitable action
brought by the United States under the direction of the
Attorney-General. They disobeyed the injunction. Their arrest
for this contempt of court promptly followed. This stopped the
flood at its source. To quote from testimony given a few weeks
later by Mr. Debs, the President of the Union, "As soon as the
employees found that we were arrested and taken from the scene of
action, they became demoralized and that ended the strike....
The men went back to work and the ranks were broken and the
strike was broken up,... not by the army, and not by any other
power, but simply and solely by the action of the United States
court in restraining us from discharging our duties as officers
and representatives of our employees."[Footnote: United States
_v._ Debs, 64 Federal Reporter, 724, 759.] The defendants
in the contempt proceedings having been found guilty and
sentenced to jail for terms varying from three to six months,
appealed to the Supreme Court of the United States, but without
avail.[Footnote: _In re_ Debs, 158 U. S. Reports, 564,
600.]
Injunctions not infrequently are granted as an equitable relief
against a legal judgment. _Summum jus, summa injuria_ is an
ancient maxim of the courts. The foundation of equitable
jurisdiction is that courts of law cannot always do justice. One
may, for instance, be invited to build a house on another's land,
and promised a deed of the site. He builds the house and then is
refused a deed. The invitation and promise were by word of
mouth. The rules of law make such a house the legal property of
the landowner. The rules of equity make it the equitable
property of the man who built it on the faith of the landowner's
invitation and promise. If the latter sue at law for the
possession of the house, he may get judgment, but equity will
prevent his enforcing the judgment, not because it is not a legal
judgment, but because he is endeavoring to make an inequitable
use of a legal right.
A court of equity sometimes makes a decree establishing a title.
To enforce such a judgment, a writ may be issued, called a writ
of assistance. It is directed to the sheriff and requires him to
do some specific act, such as putting the defendant out of
possession of certain lands and turning it over to the plaintiff.
It is, as appears from instances which have been given, possible
that the execution of process from the courts may be defeated by
violence which they cannot overcome. It is possible in fact
though impossible in theory. As the sheriff can employ the
_posse comitatus_, he ought always to have an overwhelming
force at his command. But it is easier to "call spirits from the
vasty deep" than to make them respond. Public feeling may be so
strong in opposition to the service of the process that mob
violence will be tolerated and even openly supported. An armed
mob can only be effectually met by an armed force which is not a
mob--that is, by disciplined soldiers.
The sheriff, if so opposed, may call upon the Governor of the
State for military assistance. How efficient it will prove will,
of course, depend on the discipline of the militia and the
firmness of its commanding officers. It is seldom that it fails
to restore order, if the men carry loaded guns and are directed
to fire at the first outbreak of forcible resistance.
But the Governor may refuse to comply with the sheriff's request.
In such case, the execution of the process of the court fails
because of want, not of power, but of the will to exercise it on
the part of those on whom that duty rests. In every government
constituted by a distribution of the supreme authority between
different departments, each of them must do its part loyally with
respect to the others, or the whole scheme, for the time being,
breaks down.
In the United States this danger is doubly great because of the
interdependence of the general government and the particular
States. Judicial process may issue from a State court against
those who oppose its execution under claim of authority from the
United States; or from a federal Court against those who oppose
its execution under claim of authority from a State. Some
instances of such conflicts of jurisdiction have been already
mentioned.[Footnote: Chap. X.]
When the Supreme Court of the United States reverses a judgment
of a State court, it can either[Footnote: U. S. Revised Statutes,
Sec. 709.] itself render the judgment which the State court ought
to have rendered, and issue execution, or remand the cause to it
with directions that this be done. If the latter course be
taken, the directions may be disobeyed. A Georgia court was
guilty of this contumacy in the case of Worcester _v._
Georgia.[Footnote: 6 Peters' Reports, 515, 596.] If the former
course be taken, the service of the execution may be resisted by
the power of the State.
Worcester was illegally confined in the Georgia penitentiary.
The sentence against him had been set aside and the indictment
adjudged to furnish no ground of prosecution. But if the Supreme
Court had rendered a judgment dismissing the prosecution, and
given a writ to the marshal directing him to set Worcester at
liberty, the officer would have found the prison doors shut in
his face. Every prison is a fortress, so built as to prevent
rescue from without as well as escape from within. To lay siege
to one would be too great an enterprise for the marshal to
undertake without military assistance. For this the President
could have been called upon. But he might have refused it. If
so, the judgment of the judicial department would have proved
inoperative, simply because the officer charged with the duty of
rendering it operative had declined to fulfil that duty.
The Supreme Court, in the Worcester case, probably had reason to
believe that if it had directed a call on President Jackson for a
military force it would have been refused. It is reported that
the President, in private conversation, intimated as much.
Possibly he might have been justified in the refusal. South
Carolina was on the brink of war with the United States. Georgia
was her next neighbor, and might have been induced to make common
cause with her, if Jackson had battered down the doors of her
penitentiary to release a man who, her courts insisted, had been
properly convicted of a serious crime. A court can do nothing
short of justice. The executive power, perhaps, may sometimes
rightly act or decline to act from motives of national policy.
In one instance the armed forces of a State were actually
engaged, under the authority of the legislature, in forcibly
resisting the service of process from the federal courts. It was
in 1809, when the marshal in Pennsylvania was opposed by a large
body of the militia called out by order of the Governor for the
purpose. Their commanding officer was subsequently arrested and
convicted for the offense in the Circuit Court of the United
States.[Footnote: Wharton's State Trials, 48; McMaster, "History
of the People of the U. S.," V, 405; Willoughby, "The American
Constitutional System," 41, 43.]
In 1859, the Governor of Ohio refused to honor a requisition from
the Governor of Kentucky for the surrender of a fugitive from
justice. The act charged was assisting a slave to escape. This
was a crime in the State from which the man had fled, but not in
the State where he had found refuge. The Supreme Court of the
United States was asked by Kentucky to compel the surrender. It
held that the Governor had violated his duty, but that the
Constitution of the United States furnished no means for
enforcing its performance by him.[Footnote: Kentucky _v._
Dennison, 24 Howard's Reports, 66, 109.] Under the shelter of
this doctrine, a man indicted for murder in Kentucky has been for
several recent years residing in safety in Indiana, because the
Governor of that State has refused to comply with repeated
requisitions for his surrender.
* * * * *
Every court of record while in session has inherent power to
compel all who appear before it to preserve order, to obey its
lawful commands issued in due course of judicial procedure, and
to refrain from any expressions of disrespect to its authority,
under pain of fine or imprisonment, or both. This power, unless
withdrawn by statute, belongs to any justice of the peace who has
authority to hold a court of record, while he is holding one.
Commonly it is, in his case, regulated by statute.[Footnote:
Church _v._ Pearne, 75 Conn. Reports, 350; 53 Atlantic
Reporter, 955.]
At common law, superior courts of record also have power during
the progress of a cause to repress or punish any disrespectful
acts or words done or uttered, not in its presence, but so near
to it as to constitute a breach of order or tend directly to
lessen its efficiency. These are deemed powers inherent in such
a court, because necessary to support its proper dignity and
independence. Statutes are common to define or restrict them,
but they cannot take them away altogether. To do so would be to
take away an essential incident of the judicial power. Nor can
they so far reduce the penalty that may be inflicted as to
deprive the court of a reasonable measure of the right of
self-protection.[Footnote: Batchelder _v._ Moore, 42
California Reports, 412.] It is, to say the least, doubtful if
they can even restrict its exercise by any court created by the
Constitution itself.[Footnote: State _v._ Morrill, 16
Arkansas Reports, 384; State _v._ Shepherd, 177 Missouri
Reports, 205; 76 Southwestern Reporter, 79; _Ex parte_
Robinson, 19 Wallace's Reports, 505, 510.]
The accused is not entitled as of right to a trial by jury. The
judge is the best guardian of the dignity of the court.[Footnote:
_In re_ Debs, 158 U. S. Reports, 564, 595.]
The rule of criminal law that to convict a man of crime requires
proof of guilt beyond a reasonable doubt applies to all
proceedings of contempt. The accused is also allowed to go free
on giving bail until final sentence, if that is to be preceded by
any preliminary inquiry involving adjournments from day to day.
No such inquiry is necessary when the contempt is plain and was
committed in the presence of the court.
In the courts of the United States and in most of the States no
appeal is allowed for errors in law from a summary sentence of
punishment for a contempt of court. Appeals lie only from final
judgments in a cause, and such a sentence for contempt is not so
regarded.[Footnote: _ex parte_ Bradley, 7 Wallace's Reports,
364, 376.] If the contempt be (as it may be) made the subject of
a formal criminal prosecution and a jury trial, an appeal is
allowed.
A punishment inflicted for contempt, even though it goes beyond
the rightful jurisdiction of the court in such a matter, is a
judicial act, and does not expose the judge passing the sentence
to an action for damages.[Footnote: Bradley _v._ Fisher, 13
Wallace's Reports, 335.]
* * * * *