been affirmed to be a necessary requisite of due process of law. In not one of the cases cited and commented upon in the Hurtado Case [110 U. S. 516], is a trial by jury mentioned as a necessary part of such process." Maxwell v. Dow, 176 U. S. 581; "we need notice now only those cases which deal with the principles which must be observed in the trial of criminal and civil causes. Due process requires that the court which assumes to determine the rights of parties shall have jurisdiction, Pennoyer v. Neff, 95 U. S. 714, 733; Scott v. McNeal, 154 U. S. 34; Old Wayne Life Association v. McDonough, 204 U. S. 8, and that there shall be notice and opportunity for hearing given the parties, Hovey v. Elliott, 167 U. S. 409; Roller v. Holly, 176 U. S. 398; and see Londoner v. Denver, 210 U. S. 373. Subject to these two fundamental conditions, which seem to be universally prescribed in all systems of law established by civilized countries, this court has up to this time sustained all state laws, statutory and judicially declared, regulating procedure, evidence and methods of trial, and held them to be consistent with due process of law," Twining v. New Jersey, 211 U. S. 78; "In criminal cases due process of law is not denied by a state law which dispenses with a grand jury indictment, and permits prosecution upon information, nor by a law which dispenses with the necessary jury of twelve, or unanimity in the verdict. Indeed the requirement of due process does not deprive a state of the power to dispense with jury trial altogether. Hurtado v. California, 110 U. S. 516; Maxwell v. Dow, 176 U. S. 581. When the essential elements of a court having jurisdiction in which an opportunity for a hearing is offered are present, the power of a state over its methods of procedure is substantially unrestricted by the due process clause of the Constitution. Due process of law, this court has held, does not require the state to adopt any particular form of procedure, so long as it appears that the accused has had sufficient notice of the accusation and an adequate opportunity to defend himself in the prosecution. Roger v.

Peck, 199 U. S. 425, 435, and previous cases in this court there cited. Tried by this test it can not for a moment be maintained that the want of formal arraignment deprived the accused of any substantial right or in any wise changed the course of trial to his disadvantage." Garland v. Washington, 232 U. S. 642.

The question of questions that remains for final settlement is this: Does the due process of law clause of the Fourteenth Amendment guarantee to the accused, as against state power, the right to be present at every stage of his trial, just as the corresponding clause of the Fifth Amendment guarantees that right, as against Federal power. As demonstrated heretofore, every possible argument, historical and logical, that can be urged in favor of the one can be urged with equal force in favor of the other. It should not be for a moment admitted that what has been said as to that vital constitutional right indirectly in the case of Frank, in which the writ of habeas corpus was denied, is conclusive of a question which can never be finally settled until it comes up directly for solemn argument and judgment, upon a writ of error to the highest court of some state that has denied the right. By the conclusion then reached the American people will be informed whether the due process of law clause of the Fourteenth Amendment, as a bulwark of life and liberty against state power, is a barren theory of a living fact.

Due Process-37

CHAPTER XVI

LIFE AND LIBERTY AS PROTECTED BY DUE PROCESS-PROCEEDINGS FOR CONTEMPT-DISBARMENT OF ATTORNEYS

§ 318. Power to punish for contempt inherent in all courts. In Ex parte Terry, 128 U. S. 289, the Court said: "Nor can there be any dispute as to the powers of a circuit court of the United States to punish contempts of its authority. In United States v. Hudson, 7 Cranch 34, it was held that the Courts of the United States, from the very nature of their institutions, possess the power to fine for contempt, imprison for contumacy, enforce the observance of order, etc. In Anderson v. Dunn, 6 Wheat. 204, 227, it was said that 'courts of justice are universally acknowledged to be vested, by their very creation, with power to impose silence, respect and decorum in their presence, and submission to their lawful mandates.' So, in Ex parte Robinson, 19 Wall. 505, 510: 'The power to punish for contempts is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders, and writs of the courts, and consequently to the due administration of justice. 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.' Ex parte Bollman, 4 Cranch 75, 94; Story, Const. § 1774; Bac. Abr. Courts, E. And such is the recognized doctrine in reference to the powers of the courts of several states. "The summary power to commit and punish for contempts tending to obstruct or degrade the administration of justice,' the Supreme Judicial Court of Massachusetts well said, in Cartwright's Case, 114 Mass. 230, 238, 'is inherent in courts of chancery and

other superior courts as essential to the execution of their powers and to the maintenance of their authority, and is part of the law of the land, within the meaning of Magna Carta and of the Twelfth Article of our Declaration of Rights.' The Declaration of Rights here referred to was that which formed part of the Constitution of Massachusetts, and contained the prohibition, inserted in most American Constitutions, against depriving any person of life, liberty, or estate, except by the judgment of his peers, or the law of the land."

§ 319. Proceeding in its nature criminal. In Bessette v. W. B. Conkey Co., 194 U. S. 324, it was said that "A contempt proceeding is sui generis. It is criminal in its nature, in that the party is charged with doing something forbidden, and, if found guilty, is punished. Yet it may be resorted to in civil as well as criminal actions, and also independently of any civil or criminal action. The purpose of contempt proceedings is to uphold the power of the court, and also to secure to suitors therein the rights by it awarded. As said in Re Chiles, 22 Wall. 157 (sub. nom. Texas v. White, 22 L. ed. 819, 823): 'The exercise of this power has a twofold aspect, namely: first the proper punishment of the guilty party for his disrespect to the court or its order, and second, to compel performance of some act or duty required of him by the court, which he refuses to perform.' In Re

Debs, 158 U. S. 546, a case of habeas corpus brought to review an order of the circuit court imprisoning for contempt, we said: 'In brief, a court enforcing obedience to its orders by proceedings for contempt is not executing the criminal laws of the land, but only securing to suitors the rights which it has adjudged them entitled to.' The thought underlying denial by this court of the right of review by writ of error or appeal has not been that there was something in contempt proceedings which rendered them not properly open to review, but that they were of a criminal nature, and no provision had been

made for a review of criminal cases. That was true in England as here." In New Orleans v. New York Mail S. S. Co., 20 Wall. 387, it was held that a contempt of court is a criminal offense. See to the same effect, Ex parte Swan, 150 U. S. 637. In a commitment for contempt, the adjudication is a conviction, and the commitment an execution. Ex parte Kearney, 7 Wheat. 38. And yet, after admitting that a proceeding for contempt is in its nature criminal, in order to mark the degrees of criminality, the line must be sharply drawn between direct contempts committed in the presence of the court, in which punishment may be imposed without hearing or trial, and indirect or civil contempts, as they are sometimes called, in which the right to notice and hearing is substantially protected, even in the absence of a statute requiring a particular method of proceeding.

§ 320. What constitutes a direct contempt committed in the presence of Court. Federal courts have the power to punish, without indictment or trial by jury, such contempts of their authority as are defined by U. S. Rev. Stat. § 725, Ex parte Terry, 128 U. S. 289; Ex parte Savin, 131 U. S. 267; Ex parte Cuddy, 131 U. S. 280. A palpable contempt of the authority of the court occurs when there is a direct disturbance, a breach of the peace in open court. Ex parte Terry, 128 U. S. 289. The act of March 2, 1831, limits the powers of Federal courts to punish for contempts, to misbehavior in the presence of or near the court. Ex parte Robinson, 19 Wall. 513. In Ex parte Savin, 131 U. S. 267, it was held that when a court is in session, it is present in every part of the place dedicated to its use and for the use of its officers, jurors and witnesses.

§ 321. As the power to punish is inherent, trial by jury is not required by "due process of law." In Eitenbecker v. District Court, 134 U. S. 31, the Court said: "Whether an attachment for a contempt of court and the judgment