Ex parte Craig | Cases | Westlaw

The petitioner, Charles L. Craig, was during all the times herein involved, and still is, the comptroller of the city of New York, as well as a member of its board of estimate. It appears that on October 6, 1919, the petitioner Craig, as comptroller of the city of New York, addressed a letter to Hon. Lewis Nixon, in reply to a letter which Mr. Nixon had written to the comptroller inviting him to a conference in respect to the transportation situation in the city of New York. Mr. Craig's letter contained statements which criticized the conduct of the then District Judge Mayer, who had appointed a receiver of the Brooklyn Rapid Transit Company, the New York Municipal Railway Corporation, and the New York Consolidated Railroad Company. The receiver had taken possession of the assets of these roads and was operating the railways under the instruction and supervision of the court.

The New York State Public Service Commission for the First District moved the court for leave to intervene in the suit on behalf of the city of New York. At the same time the city of New York, through its corporation counsel, acting pursuant to a resolution of the board of estimate and apportionment, applied to the court for the appointment of Mr. Craig as coreceiver; he being, as comptroller, the chief financial officer of the city. The District Judge, Mayer, denied the motion for a coreceiver at that time without prejudice to its renewal at a subsequent time. Later certain other street railway corporations were also put in the hands of the receiver. The letter of Mr. Craig to Mr. Nixon, above referred to, among other things, said:

‘Before any such conference can be seriously considered, and as an evidence of good faith on the part of those acting by and under the authority of the United States District Judge Mayer, there must be a reversal of the policy, for which Judge Mayer is responsible, of denying to myself and other members of the board of estimate and apportionment any access to original sources of information concerning the property and affairs of these various public utility corporations holding franchises to operate in the streets of New York.‘

Again it stated:

‘Judge Mayer refused to grant any of the relief sought by the city. He not only denied the relief, but he made orders which preclude any application being made by the municipal authorities to any other court or judge for any *142 right of examination into the affairs or conditions of these corporations seeking municipal aid and favor. Truth is the mightiest weapon in every controversy. The orders of Judge Mayer deny to the municipal authorities the opportunity to ascertain the truth.‘

It concluded as follows:

‘It seems to me a monstrous thing that an order of a federal judge in a court of equity should stand between the public and the truth under such circumstances. Such an order is hostile to every interest of the city of New York in these controversies. Its operation and effect is to disarm the municipal authorities, to deny them the most effective instrument of redress, and to force them into a contest with corporate powers intrenched in darkness and concealment. The responsibility for the turmoil, delay, and dissatisfaction that has followed upon the orders of Judge Mayer, denying to the city of New York any representation in these receiverships, rests upon those who procure and are protected by such orders. As a first and preliminary evidence of good faith, those who desire such a conference and a reasonable solution of existing complications should procure the entry of orders by Judge Mayer putting the city of New York on an equal footing with the private interests active in the receiverships. A refusal to do this can but prolong and embitter the controversy, and it will not in the end procure any advantage whatever to the traction interests.‘

This letter Mr. Craig sent, not only to Mr. Nixon, but he is alleged to have caused its publication by sending it to the Public Service Commission and to the various newspapers published in the district. The result was that the United States attorney filed an information charging Mr. Craig with criminal contempt under section 268 of the Judicial Code (Comp. St. Sec. 1245). The information set forth the statements in the letter which were alleged to be false, and that Craig had willfully, knowingly, unlawfully, and contemptuously made them. It alleged that the publication was calculated and intended by him to influence the court in the consideration of the suit in which the receiver was appointed and in proceedings then pending. It also alleged that the purpose was to intimidate the court, and to force and compel it to decide applications and questions in issue in accordance with Craig's wishes. It also alleged that the letter was written for the purpose of inciting public ridicule, scorn, and condemnation if the court's decisions were contrary to or at variance with the views and wishes of the defendant. It further alleged that it tended to obstruct and impede the administration of justice in said suits and proceedings.

A demurrer was interposed, which was overruled in an opinion which can be found in 266 Fed. 230, and the defendant was held to answer in contempt before Judge Mayer. The trial was commenced on May 10, 1920, and was concluded on June 10, 1920. Every consideration seems to have been given to counsel, and briefs were not submitted until October 30, 1920, and Judge Mayer reserved his decision until February 14, 1921. He appears to have given great consideration to the questions involved, filing a full and comprehensive opinion, which can be found in 279 Fed. 900. The opinion concluded as follows:

‘The United States attorney is directed to submit to the court, on two days' notice to counsel for defendant, a proposed order in accordance herewith, which shall also provide that the defendant shall appear before the court in Court Room 331, of the Old Post Office Building on February 24, 1921, at 2 p.m., at which time such further proceedings will be had as may be proper. *143 The defendant is not only the incumbent of a high office but is also a member of the bar of this court. It is manifestly his duty to do all in his power to repair the wrong he has done. It is not a wrong with which the judge concerns himself in a personal sense and for that reason no personal apology is desired nor required. The wrong has been perpetrated against the administration of justice. The reparation which is within the power of the defendant is promptly to make and file in the office of the clerk of the court an unqualified retraction of the false statements respecting the court, referred to in paragraphs 1, 2, 3, and 4 of the information.‘

It seems that Mr. Craig was given full opportunity to make retraction of what the District Judge found to be ‘false charges,‘ the effect of which he also found tended to ‘obstruct the administration of justice.‘ But Mr. Craig did not avail himself of the opportunity to make the retraction demanded and on February 24, 1921, the United States Attorney moved for sentence, and the court pronounced judgment and sentenced the defendant to be imprisoned for a term of 60 days, sentence to be executed at the Essex county jail, Newark, N.J.; The Attorney General of the United States having previously designated that as the place of confinement for defendants sentenced in the Southern district of New York for terms of less than 6 months.

On the same day that sentence was pronounced an application was made to one of the Circuit Judges in this circuit for a writ of habeas corpus, and the writ was signed and issued by him on the same day. It appears that the Circuit Judge who issued the writ had been duly designated by the Senior Circuit Judge of the circuit to hold a session of the District Court for the Southern District of New York for the hearing of such business as might come before him during the period between February 21, 1921, and ending March 5, 1921. Whether in awarding the writ he was acting in his capacity as a Circuit Judge, or in that of District Judge under the designation referred to, seems to be one of the controverted questions in the case.

The petition for the writ was addressed to the judge as ‘Circuit Judge of the United States.‘ The writ of habeas corpus required the production of the defendant before the United States Circuit Judge, and is signed by the judge, who placed under his signature the letters ‘U.S.C.J.,‘ and nothing therein is said as to his sitting or acting as a District Judge. The first paragraph of his very comprehensive opinion, which can be found in 274 Fed. 177, and which was rendered on April 29, 1921, and in which he sustained the writ and directed the defendant's discharge, was as follows:

‘The power of a Circuit Judge to issue a writ of habeas corpus is questioned by a motion to dismiss. I have held heretofore that a Circuit Judge has such power. In re David Lamar, 274 Fed. 160. Nothing has been submitted in this proceeding which causes me to change the views there expressed. Further, at the time of the issuance of this writ, the Circuit Judge writing was by assignment empowered to consider matters of original jurisdiction. The application to dismiss the writ for want of authority to issue the same is denied.‘

If the Circuit Court of Appeals, as such, is without the power is it possessed by a judge of the court acting solely as such? We are satisfied that he does not possess it. A judge of the Circuit Court of Appeals, like the court itself, has no authority except that conferred by statute. And no act of Congress empowers him to grant or to issue a writ of habeas corpus. Section 751 of the Revised Statutes (Comp. St. Sec. 1279) provides:

‘The Supreme Court and the Circuit and District Courts shall have power to issue writs of habeas corpus.‘

And section 752 (Comp. St. Sec. 1280) provides:

‘The several justices and judges of the said courts, within their respective jurisdictions, shall have power to grant writs of habeas corpus for the purpose of an inquiry into the cause of restraint of liberty.‘

The Circuit Courts, referred to in section 751, were the Circuit Courts established by the Judiciary Act of September 24, 1789, and which were abolished by the Act of March 3, 1911, 36 Stat.c. 231, Sec. 289, p. 1167 (Comp. St. Sec. 1266).

The judges embraced within the language of section 752 were from 1789 to 1869 the Circuit Justices of the Supreme Court assigned to hold the Circuit Courts and judges of the District Court. By section 2 of the Act of April 10, 1869, the office of Circuit Judge was created (16 Stat.p. 44), and that act conferred on the Circuit Judge for his circuits the same power and jurisdiction therein as the justice of the Supreme Court allotted to the circuit. And section 607 of the Revised Statutes conferred similar authority in the same language, which continued in force until repealed in explicit terms by the Act of March 4, 1911, already referred to, and which transferred the powers of the Circuit Court to the District Court. The Circuit Court and the Circuit Court of Appeals were two absolutely distinct courts, and a judge of the Circuit Court and a judge of the Circuit Court of Appeals, were equally distinct. And a judge of the Circuit Court of Appeals, as such, has never been invested with the power to grant a writ of habeas corpus which was possessed by a judge of the Circuit Court. And no one of the judges now constituting the Circuit Court of Appeals is now or ever has been a judge of the Circuit Court within the meaning of section 752 of the Revised Statutes, and no one of them is possessed of the power to grant writs of habeas corpus.

Particularly is this so because he also, in the same connection, refers to the fact that in the issuance of the writ he had been empowered to consider matters of original jurisdiction. Whatever doubt one might otherwise entertain as to the capacity in which he was acting at the time seems to be put at rest by the order which he made, and which required ‘that the papers in this proceeding be filed with the clerk of the United States District Court for the Southern District of New York,‘ and that they ‘be recorded in said court.‘ As a judge of the Circuit Court of Appeals he would not have directed the papers to be filed with the clerk of the District Court and that they be recorded in that court, but would have filed them in the office of the clerk of his own court and ordered them to be there recorded. The order sustaining the writ and ordering the discharge of Craig, and which the judge ordered recorded in the District Court, and which is the order appealed from, must be regarded as made by him under his designation to hold the District Court for the Southern District of New York; and as such an appeal from that order was properly taken to this court.

It is our understanding that a writ of habeas corpus, like a writ of error, or a writ of certiorari, or a writ of mandamus, should be issued under the seal of the court. In the United States the writ always runs *146 in the federal courts in the name of the President of the United States, and in the state courts in the name of the state or the people. Church on Habeas Corpus (2d Ed.) Sec. 110. But in this case the writ did not run either in the name of the President, or in that of anybody else. And it was not addressed to the United States marshal, or to anybody else. We, however, do not need now to inquire as to what legal validity the writ originally possessed, as it appears to have been treated by all the parties as valid, and no objection was raised concerning it at the argument in this court.

In the important case of Brass Crosby, Lord Mayor of London, 3 Wilson, 188, an application was made in 1771 to the Court of Common Pleas for a writ of habeas corpus to bring up the body of the Lord Mayor of London, who had been committed for contempt by the House of Commons. The habeas corpus was granted, and upon the return the causes of contempt for which the party was committed were set forth. It was fully argued and at considerable length that the House of Commons had no authority to commit for a contempt, and, if they had that power, that they had used it wrongfully in that instance, and that the causes assigned were insufficient. The whole court decided that the House of Commons had power to commit for contempt; and that the court could not revise its adjudication.¹ Lord Chief Justice De Grey, at the conclusion of the argument, stated that, if either he or any of his brethren on the Bench had any doubt about the matter, they would certainly have taken time to consider before giving their opinions, but that the case seemed so very clear that there was no reason for delay, and they thereupon proceeded to state their opinions. The Chief Justice stated his opinion at some length and in the course of it declared that-

‘When the House of Commons adjudged anything to be a contempt, or a breach of privilege, their adjudication is a conviction and their commitment, in consequence, is execution; and no court can discharge on bail, a person that is in execution by the judgment of any other court. The House of Commons, therefore, having an authority to commit, and that commitment being an execution, what can this court do? It can do nothing, when a person is in execution by the judgment of a court having a competent jurisdiction. In such a case, this court is not a court of appeal.‘

*147 All four of the justices agreed, and Mr. Justice Blackstone, in his concurring opinion, said:

‘All courts, by which I mean to include the two Houses of Parliament, and the courts of Westminster Hall, can have no control in matters of contempt. The sole adjudication of contempt, and the punishment thereof, belongs exclusively, and without interfering, to each respective court. Infinite confusion and disorder would follow, if courts could, by writs of habeas corpus, examine and determine the contempt of others.‘

The above case was approvingly commented upon and its doctrine followed in 1822 by the Supreme Court in Ex parte Kearney, 7 Wheat. 38, 5 L.Ed. 391. The court in its opinion, which was written by Mr. Justice Story, after referring to the Brass Crosby Case, said:

‘So that it is most manifest, from the whole reasoning of the court in this case, that a writ of habeas corpus was not deemed a proper remedy, where a party was committed for a contempt by a court of competent jurisdiction, and that, if granted, the court could not inquire into the sufficiency of the cause of commitment.‘

Again:

‘The only objection is, not that the court acted beyond its jurisdiction, but that it erred in its judgment of the law applicable to the case.‘

This the court decided it could not do, and it denied the writ.

In 1830, in Ex parte Tobias Watkins, 3 Pet. 193, 7 L.Ed. 650, the Supreme Court refused an application for a writ of habeas corpus; it appearing that the prisoner was confined in jail by virtue of a judgment of a Circuit Court of the United States which judgment was claimed to be erroneous. Chief Justice Marshall, speaking for the court, said:

‘An imprisonment under a judgment cannot be unlawful, unless that judgment be an absolute nullity; and it is not a nullity if the court has general jurisdiction of the subject, although it should be erroneous. The Circuit Court for the District of Columbia is a court of record, having general jurisdiction over criminal cases. An offense cognizable in any court is cognizable in that court. If the offense be punishable by law, that court is competent to inflict the punishment. The judgment of such a tribunal has all the obligation which the judgment of any tribunal can have. To determine whether the offense charged in the indictment be legally punishable or not is among the most unquestionable of its powers and duties. The decision of this question is the exercise of jurisdiction, whether the judgment be for or against the prisoner. The judgment is equally binding in the one case and in the other, and must remain in full force, unless reversed regularly by a superior court capable of reversing it.‘

And the method of reversing the judgment is by writ of error, and not through a writ of habeas corpus.

The Supreme Court has consistently adhered to the principle announced in these early cases. Thus in Matter of Gregory, 219 U.S. 210, 31 Sup.Ct. 143, 55 L.Ed. 184, where the person applying for the writ had been convicted of a crime in the Police Court of the District of Columbia, Mr. Justice Hughes, speaking for the court, said:

‘In hearing this application, this court does not sit to review the correctness of the conclusion of the Police Court as to the violation of the statute by the petitioner, or of the decision of the Court of Appeals of the District as to the sufficiency of the information filed against him. The question here is not one of guilt or innocence, but simply whether the court below *148 had jurisdiction to try the issues; and, as we find that the statute conferred that jurisdiction, the application for a writ of habeas corpus must be denied.‘

‘Upon habeas corpus the court examines only the power and authority of the court to act, not the correctness of its conclusions.‘

The rule is correctly laid down in 17 Am. & Eng. Encyc. of Law, p. 1059, where it is said:

‘A conviction and sentence for a criminal offense cannot be collaterally attacked in habeas corpus proceedings for errors and irregularities not affecting the jurisdiction. But, if a person is restrained of his liberty under an order or judgment which is void for want of jurisdiction, habeas corpus will lie.‘

In Henry v. Henkel, 235 U.S. 219, 35 Sup.Ct. 54, 59 L.Ed. 203, decided in 1914, the court declared that, subject to certain exceptions, it had—

‘uniformly held that the hearing on habeas corpus is not in the nature of a writ of error, nor is it intended as a substitute for the functions of the trial court. Manifestly, this is true as to disputed questions of fact, and it is equally so as to disputed matters of law, whether they relate to the sufficiency of the indictment or the validity of the statute on which the charge is based. These and all other controverted matters of law and fact are for the determination of the trial court. If the objections are sustained, or if the defendant is acquitted, he will be discharged. If they are overruled, and he is convicted, he has the right of review.‘

Again the court said:

‘Neither the issue nor the basis of the decision is changed when the person held under the warrant applies to a District Judge for discharge on writ of habeas corpus. So likewise the same issue and the same rule of decision must govern when the case is here on appeal from the order of the habeas corpus tribunal.‘

This court in a recent opinion, now published, and concurred in by the judge who entered the order now before the court on this appeal (United States ex rel. Meyer Ripstein v. James M. Power, 279 Fed. 735), has held that a writ of habeas corpus cannot be used to review the weight of evidence, but is confined to the single point of jurisdiction. And so in a recent decision of the Court of Appeals in New York it was declared that habeas corpus only tests the mandate under which the prisoner is held, and is not a substitute for a trial to determine innocence. *149 People v. Atwell, 232 N.Y. 96, 133 N.E. 364 (decided November 22, 1921).

In Cooley's Constitutional Limitations, p. 347, that eminent authority notices the fact that the writ has sometimes been attempted to be used as if it were a writ of error, under which errors and irregularities of other judges and courts could be corrected. Judge Cooley declares that:

‘ * * * Any such employment of the writ is an abuse. Where a party who is in confinement under judicial process is brought up on habeas corpus, the court or judge before whom he is returned will inquire: (1) Whether the court or officer issuing the process under which he is detained had jurisdiction of the case, and has acted within that jurisdiction in issuing such process. If so, mere irregularities or errors of judgment in the exercise of that jurisdiction must be disregarded on this writ, and must be corrected, either by the court issuing the process, or on regular appellate proceedings. * * * ‘

(1) Where the rights or obligations of the United States under a treaty are involved, or where a subject or citizen of a foreign state and domiciled therein is in custody by state authority for an act done or omitted, the validity and effect of which depend upon the law of nations. See Ex parte Royall, 117 U.S. 241, 251, 6 Sup.Ct. 734, 29 L.Ed. 868; Cunningham v. Neagle, 135 U.S. 1, 71, 74, 10 Sup.Ct. 658, 34 L.Ed. 55; In re Mayfield, 141 U.S. 107, 11 Sup.Ct. 939, 35 L.Ed. 635; Boske v. Comingore, 177 U.S. 466, 20 Sup.Ct. 701, 44 L.Ed. 846; In re Lincoln, 202 U.S. 178, 180-182, 26 Sup.Ct. 602, 50 L.Ed. 984.

(2) Where there is a conflict of jurisdiction between a state and the United States, or where the authority and operations of the federal government are or may be interfered with by state action. See Tarble's Case, 13 Wall. 397, 20 L.Ed. 597; Tennessee v. Davis, 100 U.S. 257, 25 L.Ed. 648; Cunningham v. Neagle, supra; In re Watts, 190 U.S. 1, 27, 23 Sup.Ct. 718, 47 L.Ed. 933.

(3) Where the petitioner is held under state process based upon a state law, which is in violation of the Constitution of the United States. See Ex parte Royall, 117 U.S. 241, 247-250, 252, 253, 6 Sup.Ct. 734, 29 L.Ed. 868.

(4) Where the judgment or order, under which the petitioner is held is void because in excess of the power of the court. See Ex parte Lange, 18 Wall. 163, 175-177, 21 L.Ed. 872; Hans Nielson, 131 U.S. 176, 9 Sup.Ct. 672, 33 L.Ed. 118; Ex parte Hudgings, 249 U.S. 378, 39 Sup.Ct. 337, 63 L.Ed. 656, 11 A.L.R. 333.

In the case now before us for decision, great reliance is placed by the petitioner upon the case last cited. We are, however, unable to see that any analogy exists between that case and this. In Ex parte Hudgings, the District Judge, while presiding at a trial concluded, while the witness was on the stand giving his testimony, that he was committing perjury by asserting and reiterating that he could not recall having seen certain persons write, although he had frequently associated with *150 them. He testified that he had often seen the writing of the persons named, and thought the writings shown him were theirs, but that he could not so state from having seen them write, as he could not recollect ever having seen them do so. The court interrupted the examination by saying:

‘This witness is going to be committed for contempt of court. The court is thoroughly satisfied, Mr. Witness, that you are testifying falsely when you say that you cannot recall of ever seeing Mr. MacMillan write, and this has happened several times during this trial with other witnesses, especially with your wife. * * * And it becomes the plain duty of the court to commit you to jail, sir, for contempt, and, before doing so, I think it is the duty of the court to explain to you that the answer, 'I do not remember of ever having seen him write,’ is just as false, is just as much contempt of court, if you have seen him write, as it would be for you to say that you had never seen him write, without using the expression, 'I do not remember.'‘

The court also said:

‘I am not going to allow you to obstruct the course of justice here, and if this nation has delegated power enough to this court, and I am very sure it has, to deal with you in the manner proposed, I am going to do it.‘

Before the discharge of the witness from the stand an order for contempt against him was made and he was committed to the custody of the marshal.

The Supreme Court held the commitment void for excess of power, and therefore ordered the petitioner discharged. It held that perjury in facie curiae is not of itself punishable as contempt apart from its obstructive tendency. It declared that obstruction to the performance of judicial duty resulting from the act done is the characteristic upon which the power to punish for contempt must rest, and that the presence of that element must clearly be shown, and that false swearing does not necessarily have an inherent obstructive effect. And the court pointed out that—

‘If the conception (that it necessarily had such an effect) were true, it would follow that, when a court entertained the opinion that a witness was testifying untruthfully, the power would result to impose a punishment for contempt, with the object or purpose of exacting from the witness a character of testimony which the court would deem to be truthful, and thus it would come to pass that a potentiality of oppression and wrong would result, and the freedom of the citizen when called as a witness in a court would be gravely imperiled.‘

We have referred to this case at length because of its remarkable and exceptional character. The case stands by itself and is properly regarded as sui generis. It affords no precedent for the claim put forward by the petitioner in support of the order appealed from. In the Hudgings Case, without proof of guilt, without any evidence, without any hearing, the court forthwith ordered the imprisonment of the witness for an indefinite term, and until he should purge himself of the alleged contempt by testifying flatly the reverse of what he had stated to be the truth. In the instant case the District Judge certainly did not proceed summarily in imposing sentence upon the petitioner, as in the Hudgings Case, inasmuch as about 17 months intervened between the commission of the act of contempt and the issuance of an order of commitment, while in the Hudgings Case, before the witness had left the *151 stand, he was committed to the custody of the marshal. In the present case sentence was imposed at the end of legal proceedings of a thorough and deliberate nature, and in which the fullest inquiry was made into all the facts, including the question as to whether the publication complained of tended to obstruct the administration of justice, and the trial court found as a fact that the tendency and effect of the publication were to obstruct the administration of justice. The testimony taken at the trial covers 600 printed pages, and 100 pages more are taken up with the exhibits.

Moreover, we may point out that what was done in the Hudgings Case was done at least by a court empowered to review and set aside erroneous judgments in appropriate proceedings, while in the instant case it was done by a single judge, clothed with no authority to revise or set aside erroneous judgments, except when acting with those associated with him in the court of which he is a member. In granting the writ and discharging Craig, he was acting alone and as a District Judge, and his authority was exactly coextensive with that possessed by the judge whose action he sought to exercise appellate jurisdiction over, and whose errors he assumed to sit in judgment upon and to correct. The two cases thus present a marked contrast, and the one affords no authority for the other.

We do not find it necessary to review in detail the other cases relied upon by the petitioner. It suffices to say that the cases will be found to fall within the exceptions to the general rule heretofore stated in this opinion, and therefore inapplicable to the facts of the case under consideration.

We find no reason why this case is not governed by the general rule that a habeas corpus proceeding cannot be used as a writ of error but must be limited to jurisdictional questions. The procedure before Judge Mayer was in conformity with settled practice with respect to the subject-matter of which the District Court had jurisdiction. No question of international law or of treaty obligations was involved; there was no conflict in jurisdiction between the state and federal authorities; there was no state interference with the operations of the general government; the constitutionality of no state law was assailed; the power of the court under section 268 of the Judicial Code was not exceeded.

This examination of the cases shows that the sole question which could be considered in the habeas corpus proceedings was as to the jurisdiction of the District Judge. If he had jurisdiction of the person of the petitioner, Craig, and jurisdiction of the subject and authority to render the judgment which he pronounced, there was no right to inquire further in the habeas corpus proceedings, and no right to determine whether or not, in the exercise of that jurisdiction, the District Judge had committed error. If errors were committed, the law afforded a remedy therefor, but not by habeas corpus. So that the question therefore narrows itself down to this: Did Judge Mayer have jurisdiction to render the judgment he pronounced upon Craig?

‘The moment the courts of the United States were called into existence and invested with jurisdiction over any subject, they became possessed of this power.‘

And in Blackstone's Commentaries, vol. 4, p. 286, the great English commentator wrote:

‘Laws without a competent authority to secure their administration from disobedience and contempt would be vain and nugatory. A power, therefore, in the supreme courts of justice to suppress such contempts by an immediate attachment of the offender results from the first principles of judicial establishments, and must be an inseparable attendant upon every superior tribunal. Accordingly we find it actually exercised as early as the annals of our law extend.‘

‘The said courts (United States Courts) shall have power * * * to punish, by fine or imprisonment, at the discretion of the court, contempts of their authority: Provided, that such power to punish for contempts shall not be construed to extend to any cases except the misbehavior of any person in their presence, or so near thereto as to obstruct the administration of justice. * * * ‘ Judicial Code, Sec. 268 (36 Stat. 1163 (Comp. St. Sec. 1245)).

It cannot be claimed, therefore, that the District Court was without jurisdiction of the subject-matter of the contempt.

Courts of record of superior jurisdiction possess inherent power to punish for contempt of court. Middlesex Sheriff's Case, 11 A. & E. 273; Rex v. Davison, 4 & Ald. 329; Rhinehart v. Lance, 43 N.J.Law, 311, 39 Am.Rep. 592; Cartwright's Case, 114 Mass. 230; In re Chadwick, 109 Mich. 588, 67 N.W. 1071; Tyler v. Hamersley, 44 Conn. 393, 26 Am.Rep. 471; *153 Coleman v. Roberts, 113 Ala. 323, 21 South. 449, 36 L.R.A. 84, 59 Am.St.Rep. 111; Bradley v. State, 111 Ga. 168, 36 S.E. 630, 50 L.R.A. 691, 78 Am.St.Rep. 157; In re Rosenberg, 90 Wis. 581, 63 N.W. 1065, 64 N.W. 299. The existence of such a power in the court is essential to the due administration of justice.

‘Causes, and not parties to causes, are weighed by Justice, in her equal scales; on the former solely, her attention is fixed; to the latter, she is, as she is painted, blind.‘

Moreover, if this court is in error in the conclusion at which the majority of the court has arrived, it is by no means impossible that the Supreme Court can correct any mistake we may have made.

The order appealed from is reversed, and the appellee is remanded to the custody of the appellant.