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Opinion of the Court.

7 T. R. 270; and Rex v. Gaskin, 8 T. R. 209; and many other cases, concluding with that of Capel v. Childs, 2 Cromp. & Jer. 558, in which Bayley, B., says he knows of no case in which you are to have a judicial proceedings, by which a man is to be deprived of any part of his property, without his having an opportunity of being heard. That case was a very strong one, and shows how firmly the court adhere to that great principle of justice, that, in every judicial proceeding, 'Qui aliquid statuerit parte inauditâ alterâ, Æquum licet statuerit non æquus fuerit. "

Story, in his treatise on the Constitution (vol. 2, § 1789), speaking of the clause in the Fifth Amendment, where it is declared that no person "shall be deprived of life, liberty or property, without due process of law," says:

"The other part of the clause is but an enlargement of the language of Magna Charta, nec super eum ibimus, nec super eum mittimus, nisi per legale judicium parium suorum, vel per legem terræ' (neither will we pass upon him, or condemn him, but by the lawful judgment of his peers, or by the law of the land). Lord Coke says that these latter words, per legem terræ (by the law of the land), mean by due process of law, that is, without due presentment or indictment, and being brought into answer thereto by due process of the common law. So that this clause in effect affirms the right of trial according to the process and proceedings of the common law."

Can it be doubted that due process of law signifies a right to be heard in one's defence? If the legislative department of the government were to enact a statute conferring the right to condemn the citizen without any opportunity whatever of being heard, would it be pretended that such an enactment would not be violative of the Constitution? If this be true, as it undoubtedly is, how can it be said that the judicial department, the source and fountain of justice itself, has yet the authority to render lawful that which if done under express legislative sanction would be violative of the Constitution. If such power obtains, then the judi cial department of the government sitting to uphold and enforce the Constitution is the only one possessing a power

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Opinion of the Court.

to disregard it. If such authority exists then in consequence of their establishment, to compel obedience to law and to enforce justice courts possess the right to inflict the very wrongs which they were created to prevent.

In Galpin v. Page, 18 Wall. 350, the court said (p. 368):

"It is a rule as old as the law, and never more to be respected than now, that no one shall be personally bound until he has had his day in court, by which is meant, until he has been duly cited to appear, and has been afforded an opportu nity to be heard. Judgment without such citation and opportunity wants all the attributes of a judicial determination; it is judicial usurpation and oppression, and can never be upheld where justice is justly administered."

Again, in Ex parte Wall, 107 U. S. 265, 289, the court quoted with approval the observations as to "due process of law" made by Judge Cooley, in his Constitutional Limitations, at page 353, where he says:

"Perhaps no definition is more often quoted than that given by Mr. Webster in the Dartmouth College case: 'By the law of the land is most clearly intended the general law; a law which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial. The meaning is that every citizen shall hold his life, liberty, property and immunities under the protection of the general rules which govern society.""

And that the judicial department of the government is, in the nature of things, necessarily governed in the exercise of its functions by the rule of due process of law, is well illustrated by another observation of Judge Cooley, immediately following the language just quoted, saying: "The definition here given is apt and suitable as applied to judicial proceedings, which cannot be valid unless they proceed upon inquiry,' and render judgment only after trial.'"

The necessary effect of the judgment of the Supreme Court of the District of Columbia was to decree that a portion of the award made in favor of the defendant, in other words, his property, belonged to the complainants in the cause. The decree therefore awarded the property of the defendant to

Opinion of the Court.

the complainants upon the hypothesis of fact that by contract the defendant had transferred the right in or to this property to the complainant. If the court had power to do this, by denying the right to be heard to the defendant, what plainer illustration could there be of taking property of one and giving it to another without hearing or without process of law. If the power to violate the fundamental constitutional safeguards securing property exists, and if they may be with impunity set aside by courts on the theory that they do not apply to proceedings in contempt, why will they not also apply to proceedings against the liberty of the subject? Why should not a court in a criminal proceeding deny to the accused all right to be heard on the theory that he is in contempt, and sentence him to the full penalty of the law. No distinction between the two cases can be pointed out. The one would be as flagrant a violation of the rights of the citizen as the other, the one as pointedly as the other would convert the judicial department of the government into an engine of oppression and would make it destroy great constitutional safeguards.

But the argument is that however plain may be the want of power in all other branches of the government to condemn a citizen without a hearing, both upon the elementary principles of justice and under the express language of the Constitution, these principles do not limit the power of courts to punish for contempt or as for contempt, because it is asserted that from the earliest times the Chancery Court in England has possessed and exercised the power to refuse the right to be heard to one in contempt, and that a power so well established in England, before the adoption of the Constitution and which has been so often exercised since, is not controlled by the principles of reason and justice just stated. But this contention is without solid foundation to rest upon, and is based upon a too strict and literal rendering of general language to be found in isolated passages contained in the works of writers on ancient law and practice and on loose statements as to the practice of the Court of Chancery to be found in a few decisions of English courts. Certain it is that

Opinion of the Court.

in all the reported decisions of the Chancery Courts in England no single case can be found where a Court of Chancery ever ordered an answer to be stricken from the files and denied to a party defendant all right of hearing because of a supposed contempt. And in the American adjudications, whilst there are two cases, one in New York and the other in Arkansas, asserting the existence of such power, an analysis of these cases and the authorities upon which they rely will conclusively show the erroneous character of the conclusions reached. The foundation for the assertion that the power existed in and was exercised by the English Court of Chancery to strike from the files the answer of a defendant in contempt for disobedience to an order made in the cause, and to decree pro confesso against him, primarily rests upon what is supposed to be the true construction of one of the ordinances of Lord Bacon (promulgated in 1618), which reads as follows:

"78. They that are in rebellion, especially as far as proclamation of rebellion, are not to be here (heard?), neither in that suit, nor in any other, except the court of special grace suspend the contempt."

What construction was given to this ordinance or the extent to which it was enforced by the Court of Chancery in the years immediately succeeding its adoption cannot be positively affirmed, as we have not found nor have we been referred to any decisions made in the seventeenth or eighteenth centuries purporting to be based upon that ordinance.

On the mere text of the ordinance, it is manifest that it does not necessarily embrace the power to enter a decree pro confesso, after answer filed, upon the theory that the defendant was guilty of contempt. On the contrary, the proclamation of rebellion, referred to in the ordinance, was one of the then recognized processes for the purpose of compelling an answer in the suit. Indeed, the powers of the chancery courts to punish for contempt were normally brought into play, beginning with an attachment of the person and culminating in the sequestration of the property of the one in contempt in order to compel an appearance and answer. Gilbert, For. Rom. p. 33; 3 Bl. Com. 443. Nowhere in these works is

Opinion of the Court.

there an intimation that, as a penalty for contempt, a refractory defendant, not in default for answer, might be punished by being disallowed the right to defend against the bill filed in the cause. So far from such being the case, as already stated, a party who failed to appear or answer was treated as in contempt, and the various processes for contempt were resorted to in order to compel his appearance and answer; this being done in order that the conscience of the court might be satisfied when it entered a decree in the cause.

Thus in the Forum Romanum, Lord Chief Baron Gilbert says (p. 35):

"The canonists do take the proclamation or primum decretum to be quasi litis contestatio; and, therefore, the plaintiff may proceed to his proofs, and then the secundum decretum for the thing in demand may be pronounced. We have no quasi litis contestatio with us, because, unless the defendant comes in and contests there is no jurisdiction to a court of conscience; for unless the party confesses the fraud or corruption of which the court inquires, or it be proved upon him, there is no sufficient ground for a decree, which cannot be without contestatio litis.

"But there are two cases in which an implied confession is a sufficient ground for a decree.

"The first is, when a man appears by his clerk in court, and afterwards lies in prison, and is brought up three times to court by ha. cor., and has the bill read to him, and he refuses to answer. Such public refusal in court does amount to the confession of the whole bill.

"The second case is, when a person appears and departs without answering, and the whole process of the court has been awarded against him after his appearance and departure, to the sequestration. There also the bill is taken pro confesso, because it is presumed to be true when he has appeared, and departs in spite of the court, and withstands all its process without answering; and this seems to have been the ancient practice of the civil law, for Justinian, by the Novel, brought in the secundum decretum in the absence of the party; and the canonists, by a fiction of law, made the proclamation quasi

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