Opposition Brief — Blackmer v. United States

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FILECOPY ~~ #|_ As1a10

3 3 fcteercos on

Th the Supreme. Court of the: Unite States

- OCTOBER TERM 1931.

Nos. 200-201. ; |

Harrt M. Buacksian, Ei

Petitioner,

)

Vs.

Unitep Sratzs,. .

' Respondent.

BRIEF. IN OPPOSITION TO THE PETITION FOR

_ WRITS.OF CERTIORARI |

To the Court of Appeals of the District * —_—

df Leo A, eves,

United.States Attorney, 5

District of Columbia,

Washington, D. C.,

{ Artzz Pomzrenz, |

- Special Counsel,

1857 Union Trust Building,

Cleveland, Ohio,

Attorneys for Respondent. -

Frank Hagrison, . ‘ |

1857 Unioh Trust Building,

Cleveland, Ohio,

Of Counsel.

in . : 72

PE ES LAINE

Tux Garxs Least Pusiisurma Co., CLEVELAND, O.

he the Supreme Cain of the United States

: _ OOTOBER TERM 1931.

Nos. 200-201.

Harry M., Bracken,

Petitioner,

VS.

_ ‘UnitEp Srarss,

. 4 Respondent. |

BRIEF IN OPPOSITION. TO. THE PETITION FOR

3 WRITS OF CERTIORARI ak

\—. To the Court of Appeals: of the District of Columbia.

—_ A. Rover, ,

‘United Statcs Attorney,

District of Columbia,

‘ Washing.on, D. C.,

ATLEE Pomerene, — :

Special Counsel, |

1857 Union Trust Building,

Cleveland, Ohio, ’

* ; ai - Respondent.

Frank Harrison, |

1857 Union Trust Building,

Cleveland, Ohio,

Of Counsel.

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TABLE OF CONTENTS.

Statement of the Case

Procedure in No, 9131

Procedure in No. 5132

_ Summary of Facts

Summary of the Act and Proceedings Thereunder ....

The Constitutionality of a ‘Statute Will Be Presumed 14 |

- Answering Petitioner’s Point A .......@7™\........

-_ °

The. Act of . July 3 18 and the ee

Herein Do Not Violdte Due Process Under the.

Fifth Amendment of the Constitution af

Duty of Protection of the Citizen by the Govern-

ment and Obedience by the Citizen to His Gov-

.ernment Whether at Home or Abroad ;

III.. Under the English Common Law and the Acts of

.° Parhament Citizens Abroad and Not Returning ~

Home When Summoned Are Guilty of Contempt

. Under the Revenue Acts Non-Resident Citizens

Are Liable for Taxes on Income.Earned in Busi-

ness in Foreign Countries :

F Citizens Punishable in the United States for

Offenses Committed on the High Seas-or in ~

Foreign Countries

. Appellant Fails to See That This Proceeding i is

.One Quasi in Bom or in Rem and Not in Ber-

-AJT udgment in Personam May be ae in

State Courts Against a Citizen Absent from the

15 .

ate, Where Service is Per lly Made With--”

out the State Under a Statute go Authorizing ..

. Contempt Proceedings Are Sui Generis

. Process of a Court May Extend by Legislative

Authority from one District to Another

_- X. Likewise Process of Court May Be Extended by

- . Congress to Foreign Countries ...... Vem

XI. No Special Form of Procedure or Notice Re-

quired BIS Sha a Fees er ea ‘ere eee

Answering Petitioner’s Point Re ce

Thé ‘Proceeding is Quasi in Rem, or in Rem, Not

‘in Personam. va

Answering Petitioner’s Point C........ ae ree oe ae

he Petitioner Had Actual Notice of the Offense

Charged and the Government’s Claim Against His

Property. ors le OE:

Answering Petitioner’s I TD gs ng ho oe Tae

The ‘Search and Seizure Provided by the Act is ©

Not an Unreasonable Search and Seizure and

Does Not Violate the Fourth Amendment. '

Answering Petitioner Se ee ere

- he Provisions of the Act for Hearing and Judg-

ment in His Absence and‘ Without His Consent Do

_ Not Violate Due Process. °

| Answering Petitioner’s Point | ER ere re toe

The Petitioner Complains that the Act Violates

the Sixth. Amendment Because It Does Not Give

- to the Defendant in a Criminal. Prosecution the

. 38.

Right to Extra-Territorial Subpoenas, or td Have’

’ Compulsory Process in His Behalf.

* Answering Petitioner’s 8 er ane orrn i:

The Act Is Not Arbitrary, Capricious’ and Unrea-

“sonable. | .

Answering Petitioner’s Point H-a ees preg ceees

Procedural Points. | ; bite

Petitioner Complains of Lack of Proper Showing

ca. for Subpoenas. = ara? en

.- Answering Petitioner’s Point H-b .........- cy oe

Petitioner Complains that the Subpoena Did Not

Carry Notice of the Act.

Answering Petitioner’ s Point H-c ..... FECES sais a

. Petitioner. Complains that There Was No Notice

of the Alleged ear or of the Claims Against

His Property.

Answering Petitioner’s Point = UAL eee arene .

Levy and Seizure in No. 5131 Not Abandoned. |

Answering Petitioner’s Point H-e ......... EEN, eee 43

Petitioner Claims He Was, Subpoenaed to Attend.

** ‘Prial on April 2, 1928, and Not on _— 9, 1928.

Ny III vs <r bain CewA es tee ee bee tewewess 43 ~~

" Appendixé ..... ees ore Ne Cee: eC err ree 46

| Index of. Cases Cited.

- 7 , ee Bae

Appolon, The, 9 Wheat. 362 ........... pees yous 7

Bartue & Duchess of Suffolk, 2 Dyer’s pepotts, 176 b

Paper as Way Gf i ein Mae See sis oye

dues v. W.B. Ceahiiie Compens,. 194 U. S. 324, 326 29

. Big Vem Coal Company v. Read, 229 U.S. 31...2...-. 3

- Bischoff v. Wethered, 9 Wall. 812... oe ie 7

_ Blackmer v. United States, 49 Fed. (2a) 523 ere |

', Bradstreet Company v. Bradstreet’ ’s Collection Bure,

249 Fed. 958 (2 ae SS ee nr pee

Briscoe v. Bank of Ki entucky, 8 Pet. 118, re Yes

cBrown v. Walker, 161 U. S. 591, 596 ............ ae

. Carlisle v. United States, 16 Wall. 147 .......... las -16...

Central. Loan & Trust Company. v. Campbell Commis-:“ a

sion Company, . 173 OE ee RT eikga anes 31 |

_ Cook v: Tait, 265.U. 8.47 ogo ceeeceee. <i, Ae

eels. United States, 267 U.S. bit Rite, ae

> Cooper v. Reyholds, 10 Wall. 308 ae iver: Poe Bs 96 ©

Fletcher v. Peck, 6 Cranch. 87,128 ......: putat es oe

7 ee. oe

nS Galpin v. Page, 18 Wall. 350 ......... Sn ee 26

Glass-v. The. Sloop ‘Betsey, 3 Dallas, EO peer ae om .

Gompers-¥, y. Bucks ~— & Range Company, 2216. ia

a RRS ea ia ee re eens oe

Gompers Re, 40 App. D. Cc, 293. rere eer ay 30

. 2 ? H. > . ’ “’ | |

: Hammond et al. v. District Courts 298 Pin. 758 ae pire 38

Hendrickson In Re, 167 N: W. Rep. ee cn

; a. is

nowles v. Luce,:Meore 109; 72 English Rep. Full Re-

or ae eae ee eee Meeks’ AY coe 18,41

ee tn a ae

Langdon t. Doud, 6 Allen; 423 ....:........:. Bitar 28 -

Luria v. United States, 231 U..S. 9 Cae ee ©

| Massachusetts Bonding é Insurance Company v. Con-

-- erete Steel Bridge haere 37 Fed. (2d) 695 “a

©. ©. Ai) oie eee bee e eee eee e ete

Mellen v. Moline Fron Works, 131 U. 8. $52 ..:....... 3

“Michaelson v. United States, 266 U.S. 42... ue :30, 36, 37

‘Minder v. Georgia,.183 U.S. 559 ............5 00.5 26.

Minor v. Happersett, 21 Wail. Mes ig hess eT

Missouri v. North, 271 U. S. ae a i. ff

ine. Myers v. United States, “264 a S. 95 ...... Pee tees _ 29

; aa v. Hitchcock, 25 D. 0. i 200, 205 °

. Mchols-v. vangnam, 217 Mass. 548

— ; O.

; Onden e Saunders, 12. ;Wheat. 213, 970 |

P..

hidieae a Wellman, 143 U.S. 339, 345, 346 .. ,

Robertson v. Railroad Labor Board, 268 U. S. 619 26, 40°

Rose v. . Himely, 4 Cranch 241

| S.

‘Savin, Petitioner, 131 U. S. 267

Schooner Exchange v.M ’Faddon, 7 Cranch, 116

* Schwartz v.'United States, 217 Fed. 866

Sinking Fund Cases, 99 U. S..700; 718

ao a re

‘Toland v. Sprague, 12 Peters 360

Umited States v. Bowman, 260 U.S. 94

United States .v. Heinze, 218 U. 8. 532

‘ ; a - W. c ae - ;

| Waters-Pierce Oil Company v. Fexas, 212 U.S. 86...

Text and Reference Books.

B Chethes: Cheney Hyde: International Law Digest, Vol.

1, page 424, paragraph 240 ..............---.--. 18

Cooley’s Principles of Constitutional ‘Law, 163 et seq. 14

- 1 Foster’s Federal: Practice, eae a ND “ae

35 L. R. A. pp. 296-297 ...:.....- Bae tase Sad eens 28

Miller on the Constitution of ‘the Umted States pp. s-

294-295 pan tye inentnnensaraeenwecrerstereer es: yi

Moore: International Law Digest, Vol. 1, pp. 255, 256 17

a Roses Notes; 396, 397 et seq. ......+ hasten ees eae ae

2 Roses Notes, 412, 418 et seq. ..... trl vee he eee 14

Vattel, “The iow of Nations,’’ 1853 Edition, pp. 105,

17%, 273, 174 ... -....--- eee eee ee creer es 17

Willoughby on the teedintion, pp. 247, 548, Secs. 120,

ee teRG kind edad dads se eee woe oss a

a United States Statutes. ;

Act of July 3, 1926 (44 Stat. 831, 835 ; U. S. C. A. Tit.

28, Sees. 700-718 Oe 36

Clayton ‘Act of 1914 (U. S.C. A. Tit. 28, Sec. 387) . 35

The Judicial Code, Sec. 574(U. S. C. A. Tit. 28, Sees. ae

118, 655, 877)... tee ... 81, 32,33, 43

" The Judicial Code & Judiciary, _— 2, Paragraph

A RR El oa RE, PR

_#Revenue Act of 1921, Sec. 210 (42 Stat. 227, 233) . 19

ody ne Abbreviation. | a

Printed Record ........ anor SE, EN rE

: * ‘

to subpoenas issued out of said court. and directed to.

Ih the ii Cin of the United States

OCTOBER TERM 1931.

Nos. 200-201.

' Harry M. BLAckmer,

Petitioner,

_ =

*Uyrimp States,

Respondent.

BRIEF IN: OPPOSITION. TO THE PETITION FOR

WRITS OF CERTIORARI

To the Court of Appeals of oe District of __——

¥ To the Honorable, Cheetos Evans Bajos, Chief Justicg,

of the United States, and the ‘Associate Justices of the .

‘Supreme Court of thé United States: , .

The United States, the respondent herein, submits this

| brief i in opposition to the petitions for writs of certiorari.

- Opinion of the Supreme Court of the District of Co- .

lumbia Printed in Record, No. 5131, at pp. ' 20-33, 58- 65; in

Record, No. 5132, at. ‘pp. 42-49. . ”

Opinion of the Court of Appeals of the District of

Columbia Printed in Vol. 49 _ ad ees

STATEMENT OF THE CASE.

The petitioner, a citizen of the United isten sees tried

-in the Supreme Court of the District of Columbia in two

cases for contempt, No. 16 and No. 18, in failing to respond

r MEERA DIERKS TE OEM

2 eo

consuls of the United. States then in 1 France to be served _

upon the petitioner, Harry M. Blackmer, then residing in

Paris. The subpoenas were issued under the “Act of J uly

3, 1926, commonly known as the Walsh: Act. All proceed-

ings herein were taken under the ‘said Act. The late Mr.

Justice Siddonstried the cases arid sentenced Blackmer to

pay a fine of $30,000 and*‘costs in each case.

An appeal was taken by him to the Court of Appeals

' of the District-of Columbia. The cases in said: court are

‘designated respectively as No. 5131 and No. 5132.

On April 6, 1931, the Conrt of Appeals of the District

of Columbia, Mr. Justice Robb delivering the opinion, af-

firmed the judgments and sentences of the trial court.

Case No. 43,324, Cnited States v. Harry F. Sinclair and

Albert B. Fall, indictment for conspiracy to defraud, was

assigned for trial on October 17, 1927.

PROCEDURE IN NO.. 5131. ve

‘On May 13, 1927, counsel, representing the govern-

ment, filed their petition, signed by thém and sworn to by’

Owen J. Roberts, praying for the. issuance of subpoenas

- ‘under the Act: of J uly 3, 1926, fae, Harry M. Blackmer and

another to attend’ the trial in Washington. The United:

States Attorney, Honorable Peyton Gordon,.and Special

Assistants to the. Attorney General, Owen J» Roberts and

_ Atlee Pomerene, set out-in said petition that the attendance ~

of said witnesses was vital. and important to the United

States; that they had knowledge and information with re

gard to certain important facts which the United States

‘desired, to prove” in said case and that ‘their ane”

as-to said facts would be material i in connection with the |

establishment, not only of ‘ the conspiracy charge between

the said defendants, but in-connection with certain sete

\ we done in pursuance thereof, , and particularly they set:

t that said witnesses could testify to facts: concerning

~~ ae 2 °

- the persons, who, in the latter part of the year 1921, were .

the stockholders in the Continental’ Trading Company

Limited, and with regard to the distribution by. that cor- .

- . poration to its stocMholders of certain 314% Liberty Bonds, ~

which were subsequently delivered by the defendant, Harry

F. Sinclaix, to his co-defendant, Albert.B. Fall. (R. 5131,

pp. 1-3) ‘eee

The court issued an order granting said subpoenas,.

addressed to certain consuls of the United States in France,

to be served upon said witnesses for their appearance in

Criminal: Court No. 2 in Washington on the 17th day of

* October 1927, and requiring that the said witnésses should

each be tendered Five Hundred Dollars ($500.00) for.

necessary expenses jn traveling to ‘Washington and return

and attending the court. Said subpoenas were in the tsial

form, from ‘‘The President of the United States to H. M. —

Blackmer,’’ commanding him to attend said court on Octo-

_ ber 17, 1927, at 10 o’clock A. M., to testify on behalf of the

United States and ‘‘not @epart the court without leave of ©

’ the cotirt’ or District Attorney.”’ (R. 5131, p. 7) ,

_ Two subpoenas were served, one by George Orr, consul

of the United States at Paris, directing him to serve the

subpoena and make return thereof to the coyrt. His return

~.. (R. 5131, p. 8) shows that the witness Blackmer was served —

personally, on the ’27th day of May 1927, at his usual place

_ Of residence, and the original of said subpoena left in his

- hands, and the said consul tendered him Five Hundred Dol-

lars ($500.00) for traveling expenses, which he, refused.

On June'7, 927, a similar subpoena was served by Ray-

mond Davis, consul of the: United States at Paris, upon ~ »

___Blackmer personally by reading the same to him and leav-—

~. inga duplicate copy with him at Paris. He also tendered:

to the said Blackmer Five Hundred Dollars ($500.00) in

_ currency, which tender Blackmer refused. (R. 5131, pp.

9-10) . | | |

iy a in

nce ‘

“=

Blackmer ‘failed to appear in court at ‘the time re- .

quired. ‘His name was called by the - Clerk. Counsel

representing him appeared for the purpose of explaining

to the court why Blackmer was not present. The record —

shows that he was not in court in response to the subpoena .

_ and would not be. (R. 5131, p. 11). ,

"On November 4, 1927, counsel for the government filed

their petition for a rule in contempt alleging in substance

that on May 43, 1927, they presented ‘their pétition: to the.

_ trial judge for a subpoena for H. M. Blackmer, a citizen of -

the United States, temporarily sojourning in France, to

appear in court as a witness on October 17, 1927; that the’

said order was issued, commanding him to appear at 10

) clock, on said day, in court at Washington, to testify on

behalf of the United States in Criminal Case No. 43,324,

‘ and ‘‘not depart the court without leave of the court or

District -Attorney.”’ :

-The court further ordered ‘that the needs should

tender Five Hundred Dollars ($500.00) for his necessary

expenses in traveling to. and from the place in which the

court sat and his expenses in attendance thereat; that on

the 27th of May,. 1927, the consul of the United States at

Paris, France, served a subpoenagon the said Blackmer by

. exhibiting the same to him and delivering to him personally

a copy thereof and tendering to him the sum of Five. Hun- ©

dred Dollars ($500.00). On the ‘7th day of June.1927 a

” similar subpoena was served upon him personally by

another consul of the United States by exhibiting and read-

ing same to him, leaving a copy with him and tendering him

Five Hundred Dollars ($500. 00) and due’ return of said

subpoena was made to the Clerk of the trial court ‘and at

the time stated, the witness was called by the Clerk in open’

° court. He did not respond and neglected and refused to ~

appear. Blackmer’s attorneys appeared and.at his request

stated that the witness was not present and would not ap-

_ ‘pear. eorey.

e bd : 5 . ;

_ On November 16, 1927, on the petition filed by the

same attorneys, representing the government, the: court is-

sued an order oe Blackmer to appear, on Friday,

January 6, 1928, to fhow cause why he should not’ be ad-

judged guilty of contempt and. punished accordingly ;

directing that his property within the United States, in the

amount of $100,000 should be seized by the United States

marshal ‘‘to satisfy any¥®=judgment that may be rendered

against him in this -proceeding,’”? The marshal was.also.

' directed, upon making such levy, to forward to the consuls

of the United States in France a copy of -said order with,

_ the, request that: it be served personally upon the said

Blackmer and the marshal was ordered to publish said

order in The Washington Evening Star, a newspaper of

_ general circulation in the District of Columbia, once a week

for six -weeks.. The marshal’s return showed that the

$100,000, the propérty- of Blackmer, was levied upon and

seized. The United States cohsul at Paris made due return <

that a true copy of said order was served upon Blackmer

personally. (R. 5131, pp. 12-13) The publication’ was made .

as ordered. (R. 5131, p.- 14): ‘ Re

‘The case of United States vs. Sinclair -_ Fall pro- ;

ceeded to trial, but a aac was declared.

’ PROCEDURE IN NO. 5132,

The Sinclair-Fall case was reassigned for trial on

April 2, 1928. (R. 5132, pp. 1-3)

On J anuary 9, 1928, government counsel petitioned the

court for an order to issue subpoenas for Blackmer and

another citizen of the United States ‘then in France. Said -

petition was signed by counsel and sworn to by Atlee |

- Pomerene. They represented that the attendance. of said.

‘witnesses was vital and important to the United States be-

_ cause it was believed that they had knowledge and informa-:

tion with. regard: to. certain important facts, which the

| — '

' United States desired to prove, and that their testimony

_ as to said facts would be material in connection with the

_ establishment of the conspiracy charge between the defend-

ants in the Sinclair-Fall case, and in connection with thé

| proof of overt acts done by them in the pursuance of said :

conspiracy. .

Petitioner further believed a therefore averred that

they could testify to facts concerning the persons who i in

.the latter part of the years 1921 and 1922 were stock-.

holders of the Continental Trading Company Limited, and |

with regard to the distribution by said company to ‘its

stockholders of. certain 314% Liberty Loan Bonds. as

, dividends, which they ‘believed and averred were. subse-

, quently delivered by the defendant, Harry F. Sinclair, to

the other defendant, Albert B. Fall. (R. 5132, p. 2) ;

-On the game day the court ordered the subpoenas to be

issued, as prayed for, addressed to the consuls of the

United States in France, commanding the said witnesses

ta appear in Criminal Court No. 2 on the 2nd day of April

' 1928, and directed that each of "them be tendered Five Hun-

_.dred Dollars ($500.00) for necessary expenses in traveling _

- to and from Washington and for attendance at court. Said _

subpoenas: were in the traditional. form, addressed by the

Presiélent of the United States to the witnesses, directing

their appearance on April 2, 1928, at 10 o’clock, to testify

on behalf of the United States and ‘‘not depart the. court

without leave of the vourt or District Attorney.”’ (R. om

p. 4) »

1 The subpoena for astenee was served by George, Orr,

Consul of the United States in France, and he made return

. that he had personally served the said Blackmer by ex-

~ hibiting said subpoena personally to- him, reading same.te .

him’ and leaving a duplicate copy with him at Paris; also

that he had, pursuant to the order of the court,. suniondl

said Blackmer Five Hundred Dollars ($500.00) in currency,

which tender Blackmer refused. (B¥ 5132,.p.5). + '

| 7 eee

‘On July 6, 1928 Government Counsel filed their peti-

tion in the Supreme Court ‘in the District of Columbia,’

-representing that a subpoena was issued by the court for

the said Harry M. Blackmer, a citizen of the United States,

. to appear in the Supreme Court of the District, as herein-

- _ before'stated, on April 2, 1928; that a subpoena was issued

and served accordingly on J anuary 12, 1928, pursuant to

said Act, whick directed him te-appear and ‘not depart

the court without leave of the court or District Attorney’’;

that a tender of Five Hundred Dollars ($500.00) was made

to the said Blackmer for necessary expenses; that due re-

turn was tfiade by the said consul of said subpoena and of

_ the tender of money (R. 5132, pp. 6-7) ; that the trial of said

- case was continued until Wednesday, April 4, 1928; that

om April 3, 1928 the-court continued the case until Mon-

day, April 9, 1928; that counsel requested the court to ~

have the Clerk call the said Blackmer as a witness; that

_ the court so. instructed the Clerk; that the Clerk called |

‘Harry M. Blackmer’’ and the said Blackmer did not

_Tespond to said call and neglected and refdtsed to appear.

- Counsel asked for an order under Section 4 of sai@Act

‘directing the witness to appear upon a-day and time ® be 7

_ designated in said order |“‘to show cause why he should

not be adjudged guilty of contempt and punished accord-

ingly.’’ They further asked that the court issue an order

~ directing thé’marshal to seize the ‘property ‘of the said

_ Blackmer in the United States of the amount and value of

$100,000 or such other value and amount as the court might.

think proper to satisfy any judgment that might be ren-

dered against the said Blackmer in said proceeding. That

the marshal made such levy and seizure, forwarded a f£opy

of the order to. United States Sonsul Orr, to be.served per-

sonally upon said Blackmer. He caused.the said order to '

be published in a newspaper of general circulation in the

’ District of Columbia. An order was issued thereon, on July

+ 6, 1928. (R. 5132, pp. 9-10) |

. ¢ one

: a’ \

| On December 26, 1928, an alias order was: issued on |

said petition citige said Blackmer to appear before the |

Supreme Court of the District of Columbia on the 25th day

of February, 1929, at 10.0’clock A. M. and show cause why

he, the sdid Blackmer, should not be adjudged guilty of

‘contempt of court in. neglecting, failing apd refusing to

obey the subpoena heretofore issued by said court and

served. upon him to appear as a witness in the case of -

United States vs. Sinclair and Fall, the cireumstances of

which are very fully ‘set out in the motion (or petition) of

the plaintiff filed herein an y the said H. M. Blaekmer |

should not be fined and ho Ne therefor according to law.

The marshal of the district was further ordered to seize

‘the property of the said Blackmer to the amount and value

of $100,000 or so much thereof as may be found and to hold

the same until further ordered by the court for the purpose

of satisfying any judgment that might be rendered against -

“the said Blackmer in the said proceeding. The marshal,

having made such levy and seizure, was ordered to forward

to the consul of the United States at Paris, France, a copy

-of the said order with the request that the said consul. .

should make personal service thereof upon the said Black-__

mer and make prompt return thereof to the Clerk of this

Court and that the mayshal should make personal service

‘of said order, if said Blackmer should be.found within the. ©

‘United States, and, having made the levy and ‘seizure,’ to

cause the order to be published in The Evening Star, a \

newspaper of general circulation, The | publication was —

made. (R. 5132, pp. 11-12) ;

. 8%% Liberty Bonds were seized ‘and held by the

United States marshal, they being the same bonds seized

and held.by the said United States marshal, as set forth in

the record in case No. 5131. Due return was made that the

order was published in The Evening Star; (R. 5132, p. 12)

that: the bonds were seized by the United States marshal

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(R. 5132, p. 14) and that George Orr, consul of the United

States, personally served the said Blackmer with a copy of

the said order on the 2ist day of January, 1929, at Paris,

‘France. (R. 5132, p. 14); (se

| SUMMARY OF FACTS. _

The record clearly shows in: each case that a.petition —

was filed with the court for the issuance of a subpoena for

* the said Siew he an order was issued directing the

issuance of the subpoena and the tender to him of Five a

Hundred Dollars ($500.00) in each-éase to cover his neces-

> _sary expenses in traveling to and from Washington’ and

hisattendance in court; that the subpoenas were sent to the

United States consuls in France; that they were served

personally by said consuls upon the said Blackmer in Paris,.

France, and that tender in each case of Five Hundred Dol- °° :

lars ($500.00) was made to him; as ~hafeinbefore set out.

The witness failed to appear in the first ease 6n October 17,

1927, the date named in the subpoena, and being called by

the Clerk he failed and neglected to appear.

In the second case the subpoena required his appear- ,

*. ance on April 2nd. He did not appear. The case was con-

tihued by order of the court til April 9th when the. trial

was begun. Blackmer failed to appear. His name was

called.

A petition was filed in each case in the Supreme Court ..

of the District of Columbia by Government Counsel for an

order that Blackmer show cause why he should-not be ad-

judged guilty of qoutempt of court in neglecting, failing

and refusing to obey the said subpoenas. The marshal was

ordered to seize and did seize the property described, and

caused the’ order to be published in The Evening Star. The

‘orders were forwarded to the United States Consuls and oN

_ Were personally served upon the said Blackmer. ‘In a word

—— LEAL TOLD LOPLI 01S AIOE IG LTE NIE AT TE RINE AC

™ ; . > ad

: 10

- the procedure in each case was in our judgmeht i in ‘substan-

tial, if not literal, accord with the provisions of the Act of

_ July 3, 1926. a ete

The two €ases were tried together omit a fine of $30: 000

‘and costs adjudged i in each case to say satisfied. by the} —

erty seized. : :

In the court below the ere filed: a. motion in each

case to vacate. and set aside the order to show cause. In

case No. 16 below (R. 5131). Counsel for the ieee filed

a brief from which we quote as follows: +

«469 ® © Phe proceedings here in question, ‘aceiaeias

were all taken in exact pursuance of an Act of Con- .

gress purporting to validate them and enacted for the

very purpose of validating such proceedings in this

particular ease against this particular respondent. The

‘question thus: reduces itself to a consideration of the

consijtutionality of this legislation,’’

(Appellant’s Brief for the Respondent in Support

of Motion to Vacate Proceedings, 1 page 4.)

SUMMARY OF THE ACT AND PROCEEDINGS

THEREUNDER.

‘Section 1 of the Act provides that the siinsiles; if a

citizen of the United States, or domiciled therein, refuses

i respond to letters rogatory, addressed to any court of

‘ any foreign country, the court issuing such letter’ may au-

_ thorize the issuance of a subpoena for such witness,. to. be

. served by: any consul of the United States within the

country‘ where such witness may be, commanding .him to

-appear before the court issuing such subpoena at a time

~ and place designated.’ This section suffices for the purpose.

of any party to a civil action, and of a defendant in a crimi- ©

_ inal. action, or in. a contempt proceeding. The defendant in

a criminal action has the right to letters rogatory. ‘The

“Cnited States does not have a en right, If.the

defendants in: the Sincldir-Fall criminal conspiracy case oii

desired the testimony of the appellant, they could have ob-

tained letters rogatory and, if-appe nt had refused: to

respond, they could have subpoenaed him as a‘witness With _

like. result to him, as in the pending case. The appellant —

_ also could have obtained letters rogatory in these contempt

eases for any witness, a citizer of the United States or

, domiciled. therein, and enforce the ‘subpoena, as as ptovided

.: for in this. Act.. =

_ Section 2 provides that in a criminal action thie court,

upon application of th Attorney, General, or any Assistant |

or District Attorney, acting under him, may upon ‘‘a ‘proper

_ showing’’ order a subpoena to be issued and addressed to .

“a United States consul for any witness desired,’who is a

citizen of the United States or domiciled therein and is be- .#!

' « yond the jurisdiction of the United States. A petition was

filed in each case and on the showing made the court

. ordered the subpoenas to-be issued and served.

Under Section 3 it was made the duty of the consul to

serve such subpoena personally and to make return thereof —

‘| ~=te the courtissuing same, teridering to .the witness the

- amount i tp issuing the subpoena for his net-

essary expenses In-fraveling to and from: the place of court

and in attending thereon; said amount to be supplied to the

consul making the service. This was done. (R: 5131,. PP.

. 4, 43,-45)- (R.-5182, pp. 4; 24,26} ——_— SI Ase i

Section 4 of the Act provides that if the witness served

shall neglect or .refuse to appear, as in the subpoena di-’

rected, the court issuing the same, shall, upon proof being —

_ made of ‘the service and default, issue an order directing

the witness to appear before the court at a time in such

order designated. to show cause why he shall not be ad-

- _. Judged guilty of contempt and punished accordingly. This ©

gives the recusant witness. the notice and hearing necessary

ee e+ 18

_to due process. The witness did not respond to the sub-

poenas and did not appear at either trial. (R. 5131, pp.

45-6) (R. 5132, pp. 26-27). Counsel for the United States

a preserfted a petition, or application i in writing, to ‘the court. zi

out of which the subpoenas had issued, showing inter alia -

- the personal service made by the consuls, the tender of Five

‘Hundred Dollars ($500. 00) for expenses, the return of the

consul, and that. the witness did not respond to the sub-

-poenas. (R. 5131, pp. 4-11) (RB: 5132, pp. 5-9) ~The court, |

thereupon, in each case issued an order directing the appel-

lant to appear before the court at a fixed time to show cause

‘why he should not be adjudged guilty of contempt and’

punished. (R. 5131, pp. 11-12) (R. 5132, pp. 11-12)

~ Section 5 provides that the court, issuing such order,

‘may direct the property of any stich witness at any place —

within the United States, or so much thereof in value as »

the coum may direct, to be levied upon and seized-by the -

United States Marshal, to be held to satisfy any judgment -

that may be. rendered against such witness. .The court in

each case directed the seizure of the witness’s property to’

the value of $100, 000. This was done, ‘The same property

held in the first case. "Weiter levy was abandoned.

. Section 6 provides that the marshal, having made such

levy, shall forward, to the United States consul of any

country where the recusing witness | may be, a copy of such.

_ order to show. cause why such ‘witness should not be ad- —

- judged guilty of contempt, with the request that the said

counsel make ,service of the said order personally upon —

the recusing witness and cause the order. to show cause

and for -the sequestration of the property of'.such wit- ,

~ ness, to be published in-some newspaper of general circula-

tion in. the, district within which the court, issuing the

order, sits, once a week for six, consecutive weeks. Alt of —

this was done. a 9131, pp. 12- 14) (R. 5132, pp, 12- 5: ,

In each ‘case -the eins to. show- ‘cause, as ene described,

was forwarded by the marshal ‘to the United States consul S

at Paris and was personally served upon the: witness and

". -zeturn of such service made, (R. 5131, pp. 12-13) (R. 5132,

p. 14) and publication in each case was made in The Wash- -

ington Evening Star, as directed. (R. atid pp. 14-16) (R..

". §132, p.42) : mi

Section 7 of the ro provides that on the return day

of the order to show cause, or any later day to which the’ |

hearing may be’ continued, proof shall be taken. If the

charge of recusancy.is sustained, the court shall adjudge

him guilty of contempt and may impose upon him a fine

‘not exceeding $100,000 and direct the amount thereof and .

the costs to be satisfied, unless paid, by the sale o the

~property of the: witness-so-seized-or_levied upon.

‘The full text of the Act of July 3, 1926 is printed | as

* an appendix hereto.

- In each case a iene was tial on '™ 16th and 17th \

of September 1929. (R. 5131, p. 72) (R. 5132, p. 56)

The witness, Blackiner, was*represented by counsel

since shortly after May 17,1927, the day when he was first .

served with a subpoena to appear in court and was given- ~

every opportunity to test the validity of the proceedings

in ‘the interval from ‘the date-of the first citation to the

‘time of trial. We say that he was so represented by couhsel

since shortly after May 17, 1927, because Mr. George Gordon

Battle testified (R. 5131, p. 77) (R.-5132, p. 70) that he was °"

in Paris, France, in the summer of 1927 just aver the first

subpoenas had been séfved on Mr. Blackmer, saw him

there at, the time, discussed with him the constitutionality

of the Walsh “Act and of the procedure and advised him

as to what his action should be with respect to responding |

| to the subpoena.- He told Blackmer that they (he and sev-

we. eral other ominent attorneys) had considered very careful- °

14° .

ly the constitutionality of the Walsh Act and that in their

judgment it -was unconstitutional and that the “subpoena.

‘‘was not a valid obligation upon him.’’ The pleas of the

¥ ‘ appellant admit all the-facts deemed by the Government

* Counsel to be necessary, except the official character of the

-cgnsul serving the subpoerias and orders. This was proveg —

in one case and admitted i in the other, (R. 5131, pp. 73-74) |

(R. 5132, p. $9) ‘

From a constitutional standpoint the procedure pro-

vided for in the Act of July 3, 1926, does not differ from |

the procedure with reference to suits to enforce liens

against absent defendants, Section 57 of the J udicial Code, -—

(U. 8. C. Aw Title 28, Reetion 1t8)

THE CONSTITUTIONALITY OF A STATUTE

_ WILL BE PRESUMED.

A declaration that an Act of Congress is unconstitu- )

tional ‘‘should never be made except in a clear case.”

(Chief Justice Waite in the bscieis Fund pcos, 99 U..8.—

700, 718) ee re .

“To the same effect: Chief Justice » Marshall ; in the case

‘of Fletcher. v. Peck, 6 Cranch, *87, 128; Mr. Justice Wash-

ington.in the case of Ogden v. Saunders, 12 Wheat. *213,

~ "270; and see, Briscoe‘v. Bank of Kentucky, 8 Pet. 118,

122; Railway Company v. Wellman, 143 U. S. 335, 345, |

| 346; Brown v. Walker, 161 U. S. 591, 596; Naganab v. |

_____ Hitchcock, 25 D.C. App.,-200, 205; Cooley’sPrineiples-of —

Constitutio aw, 163, et seq.; 1 Roses Notes 396, 397,

et seq.; and 2 Roses Notes 412, 418, et seq.

The principle of these cases can not be doubted. They

are cited only for convenient reference.

AN SWERING PETITIONER’ S POINT A. |

_ THE ACT OF JULY 3, 1926 AND THE ‘PROCEEDINGS

HEREIN DO NOT VIOLATE DUE PROCESS UNDER THE .

FIFTH AMENDMENT OF THE CONSTITUTION.

We do not claim the government has the right to

" invade by force the territory of another sovereignty against

its will.

We do claim that the govérnment has the right to

recall its citizens who may be abroad for military service. —

‘By. the same token it can recall theth as-witnesses. The

means ‘and method to” be adopted are for the Congress to

determine. The United States possfsses. the inherent

sovereign power to recall its citizens from abroad. No one

doubts the power. of Congress by statute to authorize the

President ‘to recall its citizens who may be abroad to serve

the country in time of war and to provide for penalties on

failure to respond. . Similarly in the administration of jus-

tice the Congress has a right to provide for the issuance

_—of-subpoenas and to. have them served, as in this instance,

_by some designated individual. In the case at bar the Act

of July 3, 1926 provides that the subpoena shall be directed

to a consul of the United States i in the country where the

witness is residing. We submit the consul in making this

_ service is not acting in a sovereign capacity. Rather he is

acting i in a ministerial capacity because of the order of the

court under the statute. : :

___ Citizens owe allegiance to their sovereign in exchange

for protection.. They owe the same duty to obey the Con- .

stitution’ and the laws whether at home or, abroad. Con-

structively the citizen witness is presumed to know the

law. Actually he had personal knowledge of ' this law. (R.

5131; p. 77) (R. 5132, p. 70) - \ e

His duty to obey follows him. wherever \he is. The

_ purpose of the Congress, in: designating the consul to serve

the. subpoena and the orders, was no doubt to avoid un-

| | : ae

certainty and to save the expense of . sending. & special -

deputized officer from the Ynited States to make service,

—In our judgment. the service from a constitutional stand-

point might just as well have. been made by registered

letter, or by telegram, if so authorized by statute. The

essential thing was to give notice, not the method of giving

it: He was personally’served with the subpoena and the ~

order. By what excuse can he avoid the consequence. If

he had received the. notice within the United States, he

would’ have been compelled to comply at his peril. Is his ~

duty to obey any the less because he,received the notice

abroad by direction‘of the court and under the au —— of

an Act of Congress? 7 M | ’

1. DUTY OF PROTECTION OF. THE gITIZEN BY =

GOVERNMENT AND OBEDIENCE BY THE CITIZEN TO -

HI§ GOVERNMENT WHETHER AT HOME OR ABROAD.

| The ConStitution and the laws passed in pursuance

thereof follow the citizen wherever he. may be.

Carlisle v. United States, 16 Wall. 147 (1872).

Justice Field, at page 154, said; ;

‘By allegiance is meant the obligation of fidelity

_ and obedience which the individual owes to the govern-

ment under whjch he lives, or to his sovereign in re-

turn for the protection he receives. * * *’”

Minor v. Happersett, 21 -Wall. 162 (1874). Mr. Jus-

tice Waite said:

a He (a citiaen) owes it allegiance “ai is

entitled to its protection. Allegiance and protection

are, in this connection reciprocal obligations. The one

is a compensation for the other; allegiance for eacaniad

tion and protection for allegiance. sh

Luria v. United States, 231 U. 8.9 (1913). Mr. Justice

Van Devanter, at page 22, said:

a (eC —

‘‘Citizenship is membership in a political society

and implies a duty of allegiance on the part of the

ne and a duty of protection on the paggt of seckaty.

These are reciprocal obligations, one being compensa-

tion for the other.”’ %

- Rose v. Himely, 4 Cranch 241 (1808). Mr. Chief hen.

tige Marshall, at page 279, said:

“Tt is conceded, that the legislation of every coun-

try is.territorial; that beyond its own territory, ut can

only affect.its own subjects or citizens.’

The Appollon, 9 Wheat: 362 (1824). Mr. Justice Story,

in his opinion at page 370, said:

‘The laws of no ‘nation can justly extend beyond

its own territories, except so far as its own-citizens. ,

They can- have no force to control the sovereignty or

rights of any othér nation, within its own jurisdiction.”’

120:

«* * * Thus he (the citizen) does not in any way

lose his citizenship by departing from the territorial

limits of the State of which he is.a member, nor does he

escape from beneath its law: -0r cease to be entitled to

its protection.’’

_ In Section 121, page 248, the same author says: | ”

“(In the preceding section it has been ‘shown that

a State has absolute legal authority over all persons

-within its territorial jurisdiction, and -over its own

citizens wherever they may, be.’’

- To like effect see Miller on the Constitution of the

Willoughby on the Constitution, at page 247, section

United ‘States, pages 294-295; Vattél, ‘‘The Law of Na-

‘tions,”’ 1853 Edition, pages 205, 172, 173 and 174.

Moore: International Lat Digest, Volume Il, “page

256: |

° In discussing punishment by the State for acts of its

citizens done abroad, it is said: |

‘*It is not to be doubted that. each state may, in

_ the exercise of its sovereignty, punish its own citizens

wv" ; | . 18 . o-

for such acts and in such manner as it may deem

proper.”’

Charles Cheney Hyde: International Law, Tals I,

page 424, paragraph 240: ° - .

“Tt is generally agreed ’ that : a State. may oui

its own nationals for disobeying its command while

within a foreign country, notwithstanding the legal

. quality which the territorial sovereign. may have an-

nexed to the acts of disobedience. * * *’’ ,;

II, ‘UNDER THE ENGLISH COMMON LAW AND THE ACTS:

OF PARLIAMENT CITIZENS ABROAD AND NOT RE.

.' TURNING HOME WHEN SUMMONED ARE GUILTY OF

CONTEMPT.

In 1559 The’ Exchequer decided the case of Series and

Duchess of Suffolk (2 Dyer’s Reports 176b). Queen Mary

> had given Bartue permission to go to Germany to collect

debts due the estate of the Duke of Suffolk. The Duchess .

of Suffolk followed without license. In truth both left for

religious reasons. The Queen sent a messenger with sum-

- mons under seal commanding their return, but their serv-

ants attacked the messenger and forced his return. without

service of. the Summons. The messenger reported to _

- chancery. and chancery issued mittimus to exchequer. Kx-

chequer issued a comission to a gentleman in Lincoln

' County, recifing the.contempt and directed seizure of. all

real, personal ahd mixed property of the fugitives and re:

when the fugitives filed a traverse in the exchequer to the

charge of contempt alleging they did n-* adhere to enemies

of England and that the purpose ‘for © ing the license

‘had not been completed. The J ndges * 1 the fugitives —

guilty. of contempt.

Jn 1579 the Exehequer division of Court of Common ‘'

Pleas decided Knowles. v. Luce (Moore 109’; 72 English Re-.

~ ports, Full Reprint, 473). Knowles brought ejectment —

against Luce involving a copyhold. The question. was the

_ validity of the seizure under. order. of the Queen. | The

property had belonged to Englefield who was given a li-

cense to go abroad. Subsequently: the Queen sent a mes- .

senger with summons for his return, which was served and

not obeyed. The Queen issued a warrant reciting the con- .

tempt and directing the ,commissicners to seize -his prop-

erty. The income thereafter was paid to the Queen. The

_precedure was repeated in 1579 under a statute that year

passed. The finding was for Knowles and it was said in’

the opinion: , er

| ‘The reason for the judgment.as it:was delivered

by Manwood, Chief Barron, was such (that is) .that the

thirteenth and fourteenth statutes of Elizabeth were

lade in accordance with the common ‘law, and did not

' give the Queen any new right, but only explained what

she had before; ‘for by ancient ‘prerogative, the Queen

‘. had a natural interest in the person of each subject,

to. serve-her in such capacity as she should appoint ;

and for this the common law gives the principle of

‘non exeas Regnum’. (Do not leave the Country) before

the subject goes outside of the Realm, and when he is

overseas, the common: law: gives the Queen liberty to

recall him, and if he does not wish to return: then the

- Queen cam seize his lands until he returns, and use the.

profits in the maintenance of others to do the service |

that he would do her if he were in the Realm ; amd also,

to restrain him from the ability and power of continu.

ing in his disobedience; and with respect to this he

cites two precedents in the Exchequer, viz. the case of

~——~~Mortymer in the reign-of Edward It and the case of

Bartue in the reign of Queen Mary.”

, IV. UNDER THE REVENUE ACTS NON-RESIDENT. CITI.

ZENS ARE LIABLE FOR TAXES ON INCOME EARNED .

IN BUSINESS IN FOREIGN COUNTRIES.

. In Cook v. Tait; 265 U. 8. 47 (1924) under the Revenue

Act of 1921, Section 210 (42 Stat. 227,° 233) the United

States taxes non-resident citizens upon their income from

*arnings not within the territorial domain of the United

7 '° 20

‘States. The Supreme Court held this statute.a constitu

~ tional exercise of sovereign jurisdiction. Cook sued Tait,

a Collector of Internal Revenue. Cook was a native citi-

zen: of the United States domiciled in Mexico. _ Under pro-..

' test he made a return of his income from property situ-

_ ated in México: He began suit to recover. A demurrer to

the petition was sustained. The Supreme Court affirmed

it.. Mr. Ji ustice McKenna, delivéring the opinion, on page

y. 54, said: , % ;

“Plaintiff assigns “against the power not only pis

rights under the Constitution of the United States but

-. under’ international law, and in support of the assign- _

ments. cites many cases, It will be observed that the’

foundation of thd assignments is the fact that. the

. citizen receiving the’ income, and the property of

which it is the product, are outside of the territorial

limits of the United States. : These two facts, the con-

tention is, exclude the existence of the power to tax.

Or to put the contention another way, as to the ex-

istence of the power and its exercise, the person -re-

. ceiving the income, and.the property from’ which jhe

receives it must both be within the territorial: limits

of- the United States to be within the taxing-power of

’ the United States. The contention is not justified, and

that it is not justified is the necessary deduction of |

recefit cases. gt a : srg Se

‘The court rejected the contention that a citizen’s prop-

erty. without the limits of the United States derives no

benefit from the United States. It decided. the govern-

- ment’s power is based on the presumption that government

by its very natute benefits the citizen and his Brapeny

wherever found. 3

Mr. Justice McKenna turthier side: (p.-56) -

ue ee Or ta express it another way, the basis of

the power to tax was not and cannot be made ‘depend-

ent upon the situs of the property in all cases, it being: |

' “in or out of the United States, and was not and cannot .

. be made dependent upon the doneisihe of the citizen,

that being im or out of the United States, but upon his

' relation as.citizen to the United States and the- rela- =

tion of: the latter to him as citizen, * *° #9? «- Ss

v. CITIZENS PUNISHABLE IN THE UNITED STATES FOR

ae OFFENSES COMMITTED ON THE HIGH SEAS OR IN

_ FOREIGN COUNTRIES.

United States ‘v. Bowman, 260° U. 8. 94 (1923), The

‘indictment was.for d~criminal conspiracy to defraud ~

United States Shipping Board. The defendant in err@r an

others conspired on the high seas for the delivery wr

Rio‘de Janeiro by the Standard Oil Company of 600 tens

_ of oil and to charge the Emergency Fleet Corporation |

_ for 1,000- tons and then divide the money for the unde-

livered 400 tons among themselves. @00 tons ‘of oil were -

delivered at Rio de Janeiro. Payment was collected for ;

1,000 tons... A demurrer was filed to the indictment upon

the ground: of lack of jurisdiction because the crime was

committed on the high seas or within the jurisdiction of

Brazil. The*demurrer was sustained and the indictment

quashed. In-reversing the judgment of the District Court

_ Mr. Chief Justice Taft, in discussing the extraterritorial

jurisdiction of the United States, said: (pp. 98-100.)

‘sBut the same rule of: interpretation should not

be applied to criminal statutes which are, as a class, ©

not logically dependent on their locality for the

- Government’s jurisdiction, but are enacted because of

the right of the Government to defend itself against

obstruction. or fraud wherever perpetrated, especial-

_ ly if committed by its own citizens, officers, or. agents.

- Some such offenses can only be commitied within the

territorial jurisdiction ‘of the Government because of 3

. the local acts required to constitute them. Others are

' such that to limit their locus to the strictly territorial . - :

‘jurisdiction would be greatly to curtail the s¢ope and.

usefulness: of the statute and leave open a: large i im-- °

munity for frauds as easily committed by citizens on.

22»

the high vial cand ius in foreign countries as at home. bh i.

~ guch cases, Congress has not thought it necessary t

‘make specific provision in. the law that the locus sf

include the high seas and foreign countries, but allows

it to be inferred from the nature of the offense.. Many ©

"of these occur in c. 4, which bears the title ‘Offenses

_ against the operations of the Government.’ -Section -

70 of that chapter punishes whoever ‘as consul know-

ingly certifies a false invoice. Clearly the locus of this

crime as intended by Congress iis in a foreign country

and certainly the foreign country in which he dis-

charges his official duty could not object-to the trial in

a United States court of a United States consul for

crime of this sort committed. within its borders.

Forging. or altering ship’s ‘papers is made a crime by.

Sec. 72 of c. 4. It would be. going too far to say that

because Congress does not fix any locus it intended to

exclude the high seas in respect of this crime. The nat- -

-ural inference from the character of the offense is

that the sea would be a probable place for its commis- _

-sion. Seetion 42 of c, 4 punishes enticing desertions

from the naval service. Is it passible that Congress

did not intend by this to include such enticing done

aboard ship on the high seds or in a foreign ‘port, . .

where it would be most likely to be done? Section 39°:

' punishes bribing a United States officer of the civil,

military or naval service to violate his duty or to aid

in committing a fraud on the United States. It is hard-

ly reasgnable to construe this not to include such of-

fenses when the bribe is offered to a consul, ambas-

sador, an army or a naval officer in a foreign country

or on the high seas, whose duties are being performed

_ there and when his connivance at such fraud must

occur there. So, too, Sec. 38 of c. 4 punishes the wil-

.fully doing or aiding to do any-act relating to the

bringing in, custody, sale or other disposition of prop-

erty captured as prize, with intent to defraud, delay

or injure the. United States or any captor or* claimant

of such property. This would naturally often occur

at sea, and Congress could not have meant to.confine "

it to. the land of the United States. Again, in Sec. 36

’

of c. 4, it is made a crime to steal, embezzle, or know-

_ ingly apply to his own ‘use ordnanee, arms, ammuni-

tion, clothing, subsistence, stores, money . or other -

‘property of the United States furnished or to ‘be used

for military or naval service. It would hardly be rea-

sonable to hold that if any one, certainly if a citizen of

the United States, were to steal or embezzle-such prop-

erty which may properly and lawfully be in the cus-

tody of army or naval officers either in foreign coun-

tries, in foreign ports or on the high seas, it would not

be in such places an offense. which Congress intended

to. punish by this section.’**.* * oo

aiid further, at page 102:.

‘“* * * We cannot suppose that when Congress -

enacted the statute or amended it, it did not have in

mind that a wide field for such frauds upon the Govern-

ment was in private and public vessels of the United

States on the high seas and in foreign ports and beyond

the land jurisdiction of the United States, and there-

fore intended to inélude them in the section.”?

‘ ” * * ia.

““*'* * The three defendants who were found in

New York were citizens of the United States and were

certainly subject to such laws at it might pass to pro-

. teet itself and its property. Clearly it is no o ffense to

the digmty or right of sovereignty of Brazil to hold -

them for thts crime against the government to. which

they owe allegiance.*.**’? =<

_. If then the Congress of the United States can make an-

. act committed by en American citizen in a foreign country,

or on the high seas, criminal ‘and punishable within the

United States, as the learned Chief Justice Taft pointed out

in United States v. Bowman, sipra, it is hard to conceive im

any sound reason why a witness, a citizen of: the United

States, residing abroad, served with a subpoena issued by

‘the court under the authority of the Congress, can refuse

to obey its command without being in contempt.

_. (If, as the learned Chief Justice further pointed out, the

‘Congress should limit the locus of offenses to the strietly ©

territorial jurisdiction of the United States, it would great- _

ly curtail the scope and usefulness of: the statute and leave

open a large immunity for frauds as easily. 2ommitted by °

_ citizens on the p ig seas and in foreign . ee as at

home. 2

| bieeaes the same thought, if we limit the jurisdiction

of our courts m. contempt proceedings, to those who are

; served with process within the United States, and make no

provision to. compel attendance of- witnesses who are

citizens, and who are beyond the bounds of the United

“States, we would make immune contempts of court which —

are as easily committed beyontt as within the ner of -

the United States.

The United States did not seek to serve the subpoena,

or the order of the court, upon Blackmer against the will?

of France. The record does not disclose that France raised

any objection to the service of the subpoena, or the order

_ of cofirt, citing. Blackmer for contempt. If France made,

--or was inclined. to make any such protest, it would-have

been evidenced through the proper diplomatic channels. »

Blackmer i is a citizen of the United States and subject to -

. its sovereign will, whether at home or abroad. France has

not delegated, so far as the record shows, to Blackmer the

authority*to make this protest. Blackmer is acting in his

own ‘behalf, not in behalf of France. His concern upon its —

_face.is more’ for the sovereignty of. France, to which-he-.

owes no allegiance, than for the sovereignty of his country

from which he receives protection and owes allegiance and

obedience whether at home or abroad. 3 /

Obviously the United States could not invade France /

and kidnap Blackmer without her consent. That would .

" offend the dignity and peace of France, but the Congress ~

ean create an obligation upon Blackmer to return as a wit-

*. > + ° OB:

‘ness which might be subject to penalties for a a eh

_ could not disturb France:

-1. by arrest upon his return;

2. by expatriation, or

_ 8. by forfeiture of property w'thin the control of

the United States.

. Any other, limitation upon the extraterritorial power of a

sovereign over its citizens abroad is unsound in principle

and contrary to authority.

Thus, a sovereign may require its citidens to return for

military duty. and to pay taxes on his ; property_at. hhome0r

abroad. - If-so,-why cannot the sovereign require such wit-_

ness to give testimony for the sovereign, or to do any other

act of allegiance, or of civic or inilitary duty,.and enforce

such.requirements in any way not inconsistent with the

_ peace, dignity and equality of the alien sovereign, provided

that in this country, under our Constitution the witness is

given a reasonable opportunity to be heard and to show

why apparent disobedience is not actual disobedience.

—

VI. APPELLANT FAILS TO SEE THAT THIS PROCEEDING

_I8 ONE QUASI IN REM OR IN REM AND NOT IN

PERSONAM.

- The judgment rendered in these cases is a enforce-

able against the property seized. No effort has been made,

or could be made, to enforce it personally, or against prop-

erty other than that which was seized. If it could nof,be

thus satisfied in whole or in part, we are noi claiming that

‘property could be seized ——— as in a az aN -

personam.

The authorities cited by the petitioner are ining

They are either:

1. Cases which recognize that sovereigns. have

. extra-terzitorial power as

au To the same effect:

26 ; 3

Schooner ‘ diaiaical v. M ’Faddon, 7 Cranch, 116°

(Plaintiff’s Brief, p..24); or . <

2. Cases’ which hold that a state court, in xl

of a statute sq authorizing, may not render ‘@ personal

judgment against a defendant not found within the

state and not a resident thereof as . .

Pennoyer v. Neff, 95 U.S. 714,

‘but it does recognize that the sti of the court |

| extends only over property within ms state. ;

.. Picquet v. Swan, 5 “Mason 35;

: . Galpin v. Page, 18 Wall. 350; or

3. Cases holding that a state.cannot compel non-

‘ resident aliens to personally respond to a subpoena t im

the absence of a statute as in

Minder v. Georgia, 183 UL Ss. 559; or .

4. Cases holding that a ‘state court: ‘may not, in the

' absence of a statute, render a personal judgment

against an absent citizen who was not personally served .

with process within the state, or did not voluntarily

enter an appearance; said cases, however, holding the

: validity of judgment i in cases quasi in rem to the extent

_ of the ‘‘res,’’ as in ;

‘Cooper v. Reynolds, 10 Wall. 308 ; or .

8. Cases turning upon the absence of or imsuf:

Aciongy of necessary federal legislation as in

Poland v. Sprague, 12 Peters 300, ; a

} in which the court said: (page 329) *

“The process of a circuit court cannot be te

_ . without the district. in which it is established, without

the special. authority = law therefor.”’ ;

and. ea

Robertson v. . Railroad Labor Boords 268. U. 8. 619,

which holds that under the: Transportation Act a dis-

trict court 1 in one district cannot issue and serve its

process-in another judicial district without authority™ -.

in statute; or Ras tat ea

6. Cases which concern the enforcement of foreign

__ judgments in this country and have: no bearitig on the

allegiance and duties which an absent citizen owes the

United States as inne: 2g

. Bischoff v. Wethered, 9 Wall. 812, -_ |

‘in which appears this language concerning a judgment

- rendered in England by virtue of a statute: — :

“*Whatever validity it may have in England, by

virtue of statute law, against property of the defend-

ant there situate, it can have no validity here’’: or

7. Cases holding one nation may. not invade

- another without its consent or establish an admiralty

court there without a treaty as pat

* Glass v. The Sloop Betsey, 3 Dallas 6.

Counsel for the petitioner refer to a number of cases |

- in which it is held that a personal,judgment cannot be ren-

‘dered against an absent defendant. So far as we know in

all said casés a judgment int rem can be rendered so as to

subject property seized, as under attachment in the States;

_ to the payment of said claim or judgment.

Counsel’ for petitioner cite no ,case holding that:

the Congress can not authorize the courts to cause service

of process to be made beyond the territorial confines of the

United States. ea eh Bt a

We are not ‘contending that a judgment in personam,

may be rendered in the cases at bar without enabling legis-’ —

lation, © Pee eee

° ’ e

COLE INTL PEE TN OE ALE LOT LOI IE TED ROD MEE Acai reee Ri My

VIL. A JUDGMENT IN PERSONAM MAY BE RENDERED

IN STATE COURTS AGAINST A CITIZEN ABSENT

FROM THE STATE, WHERE SERVICE IS -PER.

SONALLY MADE WITHOUT THE STATE UNDER A

STATUTE SO AUTHORIZING. i

_ In state courts a personal judgment may ‘orm

against a citizen absent from the state where personal serv-.

ice is made without the state.

In Massachusetts it has always been held: that a per- ~

sonal judgment can be rendered: against an absent citizen

. of. the state provided that actual service of the pendency of

the case was given him. 4

In. Nichols v. Vaughan, ' ‘217 Mass. 548, Rugg, Cu., |

quotes approvingly from Chief Justice Bigelow in Langdon :

v. Doud, 6 Allen, 423, at page 425 the following:

‘*So long-as a debtor has a last and usual place of

abode in the commonwealth, that is, while he retains

- his domicile or residence here, the courts of the state

have jurisdiction over him, and due service of legal

process can be made upon him, * * * A writ can be .

served by leaving a summons at his last and usual

place of: abode, and in the case of his absence from the

state actual notice * * * can be given to him, sq that a

valid and binding judgment can be obtained.”” —

To the same effect In Re H endrickson, 167 N. W. Rep. 1727

(1918) the Supreme Court’ of. South Dakota notes approv-

ingly 35 L. R. A. pp. 296-297 and adds: \ |

‘We therefore conclude that under our laws, which

do not-violate the principles df due process of law in

so far as absent citizens of this state are concerned,

the County Court of Hamlin County acquired juris- -

- diction over the person of the alleged isicompetent by |

the service of a citation upon her 1 in the State of Min

nesota.”’ Ne

_Under the Act of a uly: 3, 1926, special. shthority Se

serve the subpoena and the order of the court was apeelany

given by the Act of Congress.

ROLY ORISSA ERE

VI. CONTEMPT— PROCEEDINGS ARE 8UI GENERIS.

The appellant fails utterly to distinguish between °

crimes and criminal contempts. The proceedings herein

are not in personam, but quasi in rem or in rem.

' The contempt proceedings are sui generis. Indict-

ments, or informations, in. the ordinary acceptation of these

terms are not required. There i is no fixed formula for.con-

tempt proceedings. :

‘Schwartz v. United States, 217 Fed. 866 (C. C. A. 4th

Cire., 1914). On page 868 Circuit Judge Woods said:

" «¢* * * There is no fixed formula for contempt —

proceedings, and technical.accuracy is not required. Ji

is sufficient if-the offense is set out, so that the defend-

_.ant is clearly informed of the charges against him and |

whether a criminal. or cwil contempt is alleged; and

this is to be determined by examination of the entire

record.”’

Gompers v. Bucks Meio & Renge Co., 221 U: 8. 418.

In Myers et al. v..United States, 264 U. 8. 95° (1924)

Mr. Justice McReynolds, in omeverns the ‘opinion, said

that contempt proceedings are ‘‘sut generis.’

““* * * neither civil actions nor prosecutions’ for

offenses, within the ordinary: meaning of those terms—

and exertions of the power inherent in all courts to en-

force obedience, something they must possess in order —

- properly to perform their functions. Bessette v. W. B: ‘

Conkey Co.,-194 U.,8. 324, 326.’”” |

_, ¢* * * While contempt may be an offense against

the law and subject to appropriate punishment, cer-

tain it is that since the foundation of our government .

proceedings to punish such offenses have been regarded |

as sui generis and not ‘criminal prosecutions”® within

the Sixth Amendment or common understanding.’’

In upholding the constitutionality of certain provisions

of the Clayton Act, requiring a jury trial in certain speci-

ee... o - rs fs i f aa Naa .

, 30 ,

" fied kinds of contempt, Mr, Justice Sutherland in Michael.

son v. United States, 266 U. S. 42 (1924) said:

‘But it is contended that the statute materially

interferes with the inherent power of the courts and

is therefore invalid. .That the power to — for:

contempts is inherent in all courts; hassbeen many

‘times decided and may be regarded as set led law. It

is essential to the administration of. justice. The .

courts of the United States, when called into existence. ~ ,

and vested with jurisdiction over any. subject, at once ©

become possessed of the power. So far as the inferior

' federal courts are concerned, however, it is not beyond

the authority of Congress (Ea Parte Robinson, 19°

Wall. 505, 510-511; Bessette v. W. B. Conkey Co., 194

U. S. 324, 326) ; but the attributes wh.ch inhere in that

. power and are inseparable from it can ‘neither be

. abrogated nor rendered practically inoperative. That

it may be regulated within limits not precisely defined

may not be doubted. Phe statute now under review ss .

. of the latter character.’’ Fs Apher de

Further on Mr. Justice Sutherland said:

‘‘This is also pointed out by ovtunedl in the case

of O’Shea v. O’Shea and Parnell, L. R..15 Prob. Div.

59, 61; and, in the course of one of the opinions in

that ease, it is said:

‘~The offense of the appellant (criminal con-

tempt) is certainly a criminal offense. I do not-say

that it is‘an indictable offense, but, whether indictable

or not, it is a criminal offense, and it is an offense,

- and the only offense that I ‘know of, which. is ate

. able at common law. by summary process.’’

In Re Gompers,‘40 App. Cases (D. C.) 293 (1913) Mr. *

Justice Van Orsdel, in discussing ane: %) court, said

(pp. 322-323) : 3

“Tn the decisions, the courts have expressed a -

variety of views as to the nature of the action for

. . the punishment -of.- contempts. Some have held it to

_ be a criminal proceeding, i in that a penalty is attached;

- to absent. defendants in suits to enforce legal or equitable ©

‘oe...

some have ‘held it to be in the nature of a criminal

. proceeding. Penalty and punishment are .not alone

sufficient to distinguish the proceeding as criminal.

The action. is sui. generis, in a class.by itself, partak- 7

ing of some of the elements of both civil and. criminal _

_ proceedings, but, strictly speaking, ¥t is neither. It pe-

longs to a class, of proceedings’ inherent in the court,

and deemed essenjjal to its existence. * * * Contempt,

therefore, is without any particular form of action, and

_ not subject to the limitations of procedure preséribed

for the conduct of either ‘civil or ‘criminal - actions.

* # @99

. The proceedings herein do not differ in principle from °

proceedings :in' rem recognized in attachment proceedings’ |

under the State laws, or. from the proceedings in rem

authorized by Section 57 of the’ Judicial Code with respect

claims, or to quiet title.

In Central Loan é.Trust Company v. Campbell Com-_..

mission Company, 173 U, S. 84° (1899) Mr. Justice White |

“said: , 8) Pe

* '* * In a ‘proceeding by: attachment of prop-

erty, which is in the nature of an action m rem, it is

_ elementary that. the defendant is foumd, to the extent

. of the property levied upon, where the property is

attached. It would be an extremély strained construc-’

_ tion of ¢he language of the act to hold that Congress

' intended to prohibit a reifiedy universally pursued, ,

that of proceeding against the property of non-resi-

dents in the place in the territory where the property

~ of such non-resident is found.’’

In Missouri v, North,-271 U.'S. 40 (1926) Mr. Justice -

_ Stone, at page 42, said:

- reasonable notice, and ‘reasonable opportunity to ‘be

.. “The due process clause does not guarantee tol a

Citizen of a state any particular form or method of

state procedure. Its requirements are satisfied if he has

- heard ond to present his claim or defense, due regard -

being had to the nature of ‘the proceedings and the °

character of the rights which may be affected by it.’ ’

IX. PROCESS OF A COURT MAY EXTEND 'BY LEGISLA.

'. TIVE AUTHORITY FROM ONE DISTRICT TO ANO BER.

_ The petitioner cites Big Vein Coal Company v. Read \

229 U. S. 3kjin which a question arose %s to whether a

remedy by, attachment could be had in the Circuit Court of

+ the ‘United States where personal service could not be made

* the defendants w

on the defendant. “Mr, Justice Day, delivering the opinion, .

_ subject to personal service or voluntarily appear before the

i. of, attachment could obtain. He adds at ‘page 38:

aes If Congress had‘ intended any. “such radical ,

change, it would have been easy to have ‘made -pro-

'’_ ‘vision for that’ purpose, ; .and doubtless a method of

service by ‘3 e in such cases would have been

provided. * * *”’

of J uly 3, 1926. involved: herein.

In Meilen.v. Moline Iron Werks, 131 U. S. 352, in an

action to quiet ite in the federal court of Illinois, one of

a-citizen of Ohie and was personally

served. under Section 57 of the Judicial Code, but he failed —

_ to appear and defend and was denied the right within one

year ‘to move to reopen the case. '

| In U. S. C. A: Title 28, Judicial Code & J udiciary,

Chapter 2, ‘Paragraph 26, in insurance eases in an action -

_ for intérpleader federal courts are authorized to issue proc-

ess extending to claimants - in any other district of the

United States. ey Paige Re ae. a

> :

* : : :

> ‘ =

. i ,

* : $

> y 4, * " re ‘ 2 2 RPE,

% Pen ie OE ees Od oe i * “% CASS ‘

. . oY -

‘

. a

> LIKEWISE PROCESS OF COURT. MAY BE EXTENDED

BY CONGRESS TO FOREIGN COUNTRIES. - !

, Thus, it is clear, that when sufficiently. ‘authorized by

statute a court’s procéss may run do a foreign country in

- -guech a way: as to give the court jurisdiction over matters

subject to its territorial jurisdiction.

Section 57 of the Judicial Code (U. S.C: A. Title 28,

Sec. 118) provides that in any suit begun in any’ District

_ Court of the United States tognforce any legal or equitable

. ‘Tien, or to quiet title to real or personal property within the -

district Where such suit is brought, if one or more of the

defendant's therein is not an inhabitant of, or found within

. the district, upon order of the court, he may be required to

appear and plead. If not found in the district he may be |

served ‘‘af practicable, wherever found.’ This statute was

under Msideration by this Court in Perez v. Fernandez,

920 U. S. 224. In that case the property in suit was located

in Porto Rico. The defendant, Pere& was a nage and -

resident of Spain. The marshal made the return t fie

could not be found for personal service. cuisenSte was

-had. “Under the statute within a year Perez applied a set

aside the, judgment. The plain and necessary implication of

- the decision is that under Section 57 of the J udicial Code a

, court of ihe United States has power to base its jurisdic-

tion upon personal service outside of its’ district and in a

foreign country. (See pp. nied

XI. NO "SPECIAL FORM OF . PROCEDURE oR ‘NOTICE

REQUIRED.

In Cooke v. United States, 267 U. Ss. 517 (1925) Mr. |

Chief Justice Taft, in discussing contempt i in open court, vie

said (pp. 536-537) :

_ ' «&* * * there-is no such right or reason in dispensing

with ‘the: necessity of ‘charges: and the opportunity of-.

_ the: accused to present his defense by witnesses and

34 ¢

argument. The exact form of the procedure in the

_ prosecution of such’‘contempts is not important. * * *”

_ **Phe court in Randail v. Brigham, 7 Wall., 523, 540,

-In speaking of what was necessary in proceedings

against an attofney at law for malpractice said:

‘All that is requisite to their validity is that,

when not taken for matters occurring in open court,

« in the presence of the judges, notice should be gwen. -

to the attorney of the charges made and opportunity

afforded him for explanation and defense. The

‘manner in which the proceeding shall be conducted,

so that it be without oppression or es 1S @ \

matter of judicial regulation.’

“The” court in Savin, Petitioner, 131 U. S. 267, ap-

plied this rule td proceedings. for contempt. 3

“Due process of law, therefore, in the prosecution -

of contempt, except of that committed in open court, -

requires. that- the accused sBould be advised of -the -

charges ‘amd have a reasonable opportunity to meet

them by way of defense or explanation. er eee

Applying these. principles we have in the cases pend-

ing subpoenas served personally by order of the court, ex-

pense money tendered, neglect to ‘appear, an order of the

court to show cause why he should not be punished for

_ contempt, notice thereof personally served, a hearing, and

his own counsel testifying that he advised Blackmer that

the Act was unconstitutional, the proceedings thereunder

_ illegal and in mitigation testifies that for the reasons stated

_Blackmer did not appear. All of this gives notice of the

offense charged and a reasonable opportunity to be heard.

Due process of the Fifth Amendment of the Constitution is:

therefore not violated. 9

ae ,

. ANSWERING PETITIONER'S POINT B.

THE PROCEEDING IS QUASI IN REM, OR IN REM,

NOT IN PERSONAM. °. —

Answering petitianer’s Point B, ‘to the effect that the |

Act does not provide due process, we adopt,. without re-

peating here, ‘our previous argument on Point A. With .

due respect the petitioner seems to misunderstand. It must.

be cohstrued as a whole, not piecemeal. . The witness was

served personally. -He refused: to appear. “On petition of

_. the government the court issued the order to show cause and

to seize the property. Again, the witpess ‘was served per- |

sqnally with a copy of the order. A cause of action in con- |

tempt is thus stated. It is similar to a civil action with the .

writ of attachment ancillary thereto. -The plaintiff in a

civil suit is obliged to make proof of his claim on trial be- ;

fore the attached property can be subjected to its payment.

So here the government makes out its charge. of contempt

and the court, if the recusant witness is found guilty, as-

-sessés the fine before the property seized can be subjected

to ifs payment.. Of course, this proceeding is based upon

the Act of July 3, 1926. We concede that without this

legislation it could not be maintained.

| ANSWERING PETITIO R’S POINT C.

THE PETITIONER HAD ACTUAL NOTICE OF THE OFFENSE

CHARGED AND THE a CLAIM AGAINST

.HI8 PROPERTY.

A subpoena’ alg the order to show cause were per-

-sonally served. The witness refused to respond to either.

‘He violated both the subpoena and the order of the court. ~

_ If any desired information was -not disclosed by the sub-.

poena and the order, it was of record i in court and avail-

able, if he had responded.

.> The petitioner té sustain his contention refers to the

Provisions of the Clayton: ng °(U: S. C. A. Title 28, Sec-

tion 387) relating to cert&in ‘specific acts. The Clayton .

law requires that a copy of the affidavit of information

shall be served upon the person charged. Such being the

requirement of the Clayton Act, it must be complied with, .

The Act of July 3, 1926, contains no such provision.

The Congress evidently thought that such provision was

not advisable or necessaty_under the Act of July 3, 1926,

_ _ It does-not follow that because the Congress-saw fit to use

one form of procedure under the Clayton Act that'the same

form of procedure must be followed in the Walsh Act. No

special form of procedure is required in contempt cases

"under the common law: It can be modified, at least so far

as the lower courts are concerned, by the Congress.

Michaelson v. United States, 266 U. S. 42, supra.

: Having received the notices of the subpoenas and the

orders, as above set out, being advised by his own counsel

as to the alleged unconstitutionality of the Act and the pro-

ceedings thereunder, and there being no provision under

the Constitution as to the form of the notice to be served, -

it does not lie in petitioner’s mouth to say that he had no

‘factual or any other notice’’ of the offense, or of the gov-

) ernment’ s claim against his —

- ANSWERING PETITIONER'S POINT D.

‘THE SEARCH AND SEIZURE PROVIDED BY THE ACT ‘Is

DOES NOT VIOLATE THE FOURTH AMENDMENT. :

The Act provides in this behalf,-Section 5, that the -

property of the recusant witness, or so much thereof as the

court may direct, may be levied upon and seized by the

marshal in the manner provided by law, or the rule of the

court, for a levy or seizure. under execution, to be held to

satisfy any judgment. There is not one word in the rec-

ord showing any. ‘‘unreasonable search’’ or any search in

fact. It does provide for a levy and seizure, nothing more.

37 if eee

The Saat limited the amount in each easé to be seized at -

_ the amount’ and value of $100,000. There i is enough in the

record to show that Blackmer was a man of large affairs;

that he was living abroad and had‘been for yéars; that he

refused to testify in the Mammoth nd Company case; that

he was told of the provisions oK\ the . Act; that he saw fit

to ignore the notices of the egurt in a case of great im-

portance to the government..

In refusing to find that a penalty of $1, 600,000 imposed

upon a corporation, guilty of violating the Anti-Trust Law

‘in Texas, was. too excessive, the Supreme Court jn the case.

of Waters-Pierce Oil Company v. Texas, 212 U.S. $6

(1969); Mr. J ustice Day,. delivering the opinion, said:

“The fixing of punishment for crime or penalties

for unlawful acts against its laws is within the pblice

power of the State. We-can only interfere with such

_ legislation and judicial: action of the States enforc-

ing it if the fines imposed are so grossly excessive as

. tg amount to a deprivation of property without. due

process of law.’’

Q ANSWERING PETITIONER'S POINT E.

THE PROVISIONS oF THE ACT FOR HEARING AND JUDG-

_ MENT IN HIS ABSENCE AND WITHOUT HIS CONSENT

.DO NOT VIOLATE DUE PROCESS.

_ Again, we must remind the petitioner that this is a

proceeding for punishment for criminal contempt and not

for a crime. The procedure adopted was a substantial, if

.. Not a literal-compliance with the statute.

The power to punish for contempt is inherent in all

courts. It ‘‘may be regulated within limits not — ;

defined?’ by the Congress. - :

Michaelson v. United States, 266 U. S, 49, supra.

While the witness specially appeared, for the purposes

- of his motion to vacate the order and the proceedings there-

ae :

| ¢ x sm a ee ES,

’ under, because of their unconstitutionality, and again in

filing his pleas and amended pleas, and in objecting to the’

_ taking of any testimony in the absence of the defendant (B,

_ 5131, p?73 and R. 5132, p. 57), Mr. George Gordon Battle

took the. stand i in behalf of the defendant to testify in miti-

gation of the offense charged. - 5131, pp. 76-84 and R.

5132, pp. 70-78)

“Mr. Justice Robb in delivering the opinion of the Court

of Appeals. referred fo the fact that Mr. George Gordon |

Battle took the stand in behalf of the defendant to testify

> in mitigation of the offense and said:

‘‘This amounted to a general appearance and Ps

pellant will not now be permitted to challenge the suf-

ficiency of the rules to show cause.’’

Blackmer v. United States, 49 Fed. (2d) 523;

~ Similar authorities:

Bradstreet Company v. | Bradstreet’ s Collection .

Bureau, 249 Fed. 958 (2 C. C. A. 1918); |

Hammond et al. v. District Court, 228 Pac. 758;

Massachusetts Bonding & Insurance Company ».

— Concréte Steel. Bridge Company, 37 Fed. (2d)

695 (4 C. C. A. 1930); . ,

1 Foster’ s Federal Practice, 976.

ANSWERING PETITIONER’S POINT F.

‘THE PETITIONER COMPLAINS THAT THE ACT VIOLATES

THE SIXTH AMENDMENT BECAUSE IT DOES NOT

GIVE TO THE DEFENDANT IN A CRIMINAL PROSE-

CUTION THE RIGHT TO EXTRA-TERRITORIAL SUB-

- POENAS, OR TO HAVE COMPULSORY PROCESS IN Rus

BEHALF. .

The Sixth Amendment provides for compulsory prec

ess, but it does not provide for equal process. Under Sec-

tion 1 of the Act, if a citizen refuses to respond to letters _

rogatory, the court, issuing such letters, may authorize the

. 7

nla eh ae adh lea asi hae ea EE Le pare a eg tBt OPS a

eke | gg.

issuance of a subpoena for such citizen to appear, before

the trial court at the time and place designated. The au- .

thority under this. section is available to either party ina °

civil case and to-the defendant in a criminal action, or in»

a contempt proceeding. The government cannot take ad-

vantage of it, because the Constitution requires that the

defendant shall be confronted by.the witness against him at

‘the trial. The United States is not entitled -to letters

rogatory in a criminal case.- The defendant may have such

letters, and, if the’ witness-Trefuses to respond, he may be

subpoenaed, as provided in the subsequent sections. He,

therefore, has substantially — process to that accorded

the. United States.

In United States v. Heinze, 218 Uv. S: 532 (1910) the

contention was advanced that the defendant in a criminal

‘ease was denied due: process. and equal protection of the

law, because he was not accorded rights to appeal equal

‘to those accorded the prosecution: The: contention was re-

po .

"ANSWERING PETITIONER’ S POINT G.

THE ACT IS NOT ARBITRARY, CAPRICIOUS

°" AND UNREASONABLE.

~ When the subpoena was served and the witness failed ,

torespond the contempt was complete. Ownership of prop-

erty is not an element of the offense. If he is beyond the

territorial jurisdiction of the country, then a method is pro-

‘vided for his punishment in part by seizing his property

within the territorial jurisdiction of the United States. If

he has no property, then the court may.be powerless to en-

force its order. Because the court may, or may not be able

- to proceed where the recusant witness has no property, is

Rot a sound reason why another should escape, who has

‘Property within the territorial jurisdiction of the court.

° . ‘i

! nd i

=a og @ «potorneqeience, CAL ed: EN NSE, fase ie ae eee eRe ere aT a ty ce

. : 4

° °

should escape liability, if he. was beyond the jurisdiction

of the court and had property within its jurisdiction, be-

cause another debtor had gone beyond the jurisdiction of '

the court who had no property within its jurisdiction.,

AN SWERING PETITIONER’S POINT Ha.

PETITIONER COMPLAINS OF LACK OF PROPER

SHOWING FOR SUBPOENAS. .

Section 2 provides that upon a ‘‘proper: showing”? the

judge before whom the action is pending may issue an order

for a subpoena, addressed to any consul where the witness

may be, commanding his attendance. ‘It is not for the wit-

ness to determine what is a ‘‘proper showing:’’ The power

is addressed to the court to issue, or not to issue, the sub-

poena and lies in his discretion. It is assumed he will usea _.

judicial discretion. Nothing in the record shows abuse of

- judicial discretion, either in the issuing of the + ee ”

or the order to. show cause. |

In each case a petition duly signed = the United States

Attorney and by two special assistants to the Attorney Gen-

eral, and verified by one of them, was presented to the

court; and the —" was issued thereon. (R. 5131, p. 3)

(R. 5132, p. 3)” : ars

AN SWERING PETITIONER ’S PRINT H- b.

PETITIONER COMPLAINS THAT THE SUBPOENA

DID NOT CARRY NOTICE OF THE ACT.

It did not. Constructively the witness knew the law."

- Actually he was advised by his counsel of the law and its

- provisions and under the alleged belief on. witness’ ‘part

_ that it was unconstitutional, he refused to obey.

Petitioner asserts it is not contempt to disobey a wit-

ness subpoena served extra-territorially and cites Robert-

IES P LET RR NSIT) FL SRAMCIL PIMA ERT ie WO ALS ARERR SF

a ae oo. oF

son.v. Railroad Labor Board, 268 U. 8S. 619. The question

there was whether under the. Transportation Act. the Rail-

road Labor Board could subpoena a witness from one judi-

cial district to appear in another. The Supreme Court held

that under that particular statute no such authority existed,

The case is tlearly to the effect that the authority to issue

and serve such subpoena depends upon the scope of. the

legislation. We note that subpoenas may be ‘issued under

the. criminal practice for witnesses in any state of the

Union. ; )

Under a statute, which recently ‘expired. by. limita:

tion, in civil cases the court could order the issuance of a

subpoena for a witness extending into any state. ;

Petitioner complains that the subpoenas are defective -

_ because they do not show that ‘they were issued under the

authority of the Act. No such proyision is contained in —

this Act, nor in any other Act, so far as we know. One case

- was cited in the court below sustaining petitioner’s conten-

tion. It was a Canadian case in which the statute itself ex- ~

pressly provided that such’ notice should be incorporated

inthe subpoena. o. -_

Directly contrary to the contention of the petitioner

the common law does make it contempt to ‘disobey a sub-

‘poena issued by the sovereign and served extra-terri- |

.torially. See:

Bartue and Duchess of Suffolk, and

Knowles v. Luce, supra.

ANSWERING PETITIONER’S POINT H-c.

ae COMPLAINS THERE WAS NO NOTICE OF THE

ALLEGED OFFENSES, OR OF THE CLAIMS AGAINST |

HIS PROPERTY. |

He does not contend as to the form of the notice. He -

. protests the total lack of notice: in any form. eee 8

. Brief, page 44) |

If we understand correctly. this seems to beg the entire

tion. We assume he means no constitutional notice was ~

e . + SRE an RR

7 /

: 7

; / given. The facts, as heretofo stated, are that the court

ordered the subpoena to be issued. It was served person--

ally ‘by the consul and due return thereof made. . The order:

.to show cause was likewise issued and personally served,

Under the notices.thus authorized and personally served '

the witness was advised by the subpoena :

1. in what case to appear ;

2. that it-was by order of the President of the United

- States; — |

3. when and where to attend court;

4. to testify on behalf of the United States and not

to depart without leave.

. By the order to “show oni he was advised:

the court in which he was to have a hearing;

the time of such hearing;

‘its object; .

the seizure of the property;

the object of the seizure.

This eertainly is such notice as'‘to provide due process

of law.

per err 3

a”

“ANSWERING PETITIONER'S POINT H-d.

LEVY AND SEIZURE IN NO. 5131 NOT. ABANDONED. -

In No. 5131 certain bonds were seized. In No. 5132 the

- same bonds, which had been theretofore seized in No. 5131,

_ were ‘again seized. The seizure in both cases was on behalf

‘of the United States against the same witness. . Petitioner

claims abandonment i in the first case. There is no evidence

in the record that the first seizure was abandoned,

As pointed out by Mr. Justice:Robb.in the court below

io the authorities’ cited by the petitioner are:

“to the effect that if in a particular action an alias order

is issued — the ial! taken under the diese

writ is disposed of, the alias order destroys the lien

' acquired by the original writ. These cases are not in

_ point, for here there were two different seizures in two

- different cases upon two different causes of action.’’

‘AN SWERING PETITIONER'S POINT H-e.

PETITIONER CLAIMS. HE WAS SUBPOENAED TO ATTEND

TRIAL ON APRIL 3, 1928, AND NOT ON APRIL 9, 1928.

Blackmer was subpoenaed to appear on April 2, 1928,

as.a witness in United States v. Sinclair-Fali. Later the

case was’ contjnued to April 4, 1928. On April 3, 1928 the

court continued the case until April 9, 1928. The witness

‘did not appear on any of the days named. “His subpoena

- directed that he’ attend to testify on behalf of the United

States and ‘‘not depart the court without leave of the court

or District Attorney.’’ (R. 5132, pp. 8, 78,-79)

U.S. C. A., Title 28, Section 655;

U.S. C. A., Title 28, Section 877.

Had he attended on April 2, 1928, he would nave been

‘advised of. the continuances of the case.

IN CONCLUSION.

While the government admits that the Act of J aly’ 3,

1926 has never been ‘before this’ Court for construction, the

‘principles involved have been. Citizens, whether at home

or abroad, owe allegisnce to the country and obedience to

the Constitution and the laws in peace, as well as in war.

| The petitioner was a citizen of the United States,

temporarily residing abroad, and was désired as a witness

in the trial, of an important case. On the sworn petition

of counsel for the government the court issued a subpoena

to the American ‘consul in France, directing him to per-

. sonally serve the witness and to tender him Five Hundred

_ Dollars ($500.00) for traveling expenses and the attendance |

‘upon the court. The subpoenas were served personally,

the money | swndered ‘and due. returr thereof made to the.

court. The witness refused to signee and did not respond.

‘when called by the. Clerk. "

‘Upon petition. in: each case “by government counsel,

showing the procedure:as stated, the court issued an order

_ for the witness to appear to show cause. why he was not

in contempt; his. bonds to the amount of,-$100,000 were:

ordered seized. They were seized by the marshal to be held:

to awalt disposition of the éase, and publication- of said.

: order made in a paper of ‘general circulation in the District

) Columbia. : ‘The order, as issued, was served personally,

upon the witnéss and published. - The witness did not *

pear and the. trial Drocediien.

Though the withess appeared anidtatity by counsel for —

the purpose of his motion to vacate the order, as well as toy

file his pleas and to object to the trial in his absetice, his

"attorneys appeared and one of them testified, giving the

a facts * mitigation of his offensg. .

ae one BA the authorities cited by the petitioner deny the

power of Congress. to to authorize courts to serve their. (proe-.:

> @8s upon citizens. "beyond. our territorial confines,

- We submit that the > Congiees and the courts ought not

to be and are not powerless to serve process upon their

_ citizens when abroad, ‘or to ‘subject their. property within

* the: United States to the payment of:a fine, which may be

assessed. because of a \ Reet violation na the will of the

pata

~The sovernmebit nds authority ‘to recall its citizens

3 from abroad for military service.

Why then may not the Congress sinthinetee the cotirt to

‘service notice upon the witness, a citizen of the United .

Sestes tethporarily sojourning abroad, ang compel him to

court under the terms and conditions set out in the |

“ke of. sini Pr tance :

ry.

e. cs : ; aw * — <

“3 We submit there is no error of the pracceditins: of the

_- Supreme Court, or the Comet of — of the District of .

‘Columbia. — ,

‘2: , Limo A. am

+.‘ United States Attorney, oom

District of Columbia,

Washington, D. C.,

< | AruEe ‘POMEBENE,

oe Special Counsel,

7 1857 Union Trust Building, -

Cleveland, Ohio, * °

eee | Merncys aad Respondent.

Frank. Harpison,

~ * $857 Union Trust Building, ie

Cleveland, Ohio.

- APPENDIX. |

ACT OF JULY 3, 1926. . aid

_ (Pustro—No. 483—697rH Conaress]

x “TS. 1035]

An Act Relating to contem ts.

_. Be it enacted by the Senate and Hous of Representa-

tives of the United: States. of America in Congress ase.

sembled, That whenever letters rogatory shall -issue out of

_any court of the.United States, either with or without i ter-

rogatories addressed to any. court of any foreign countiy,

to ‘take the testimony of any witness, being a citizen.of the

United States or. domiciled therein; and such witness,

’ - having been personally notified by it according to the prac-

tice af such court, to appear and testify pursuant to such.

- lettets rogatory and such witness shall neglect to appear,

or having appeared shall decline, refuse, or neglect to.an-

-. Swer to any question which may be propounded to him by

or under the authority of such court, to which he would be

required to make answer were he being examined before.

the dourt issuing such letters, the court out: of which said

letters issued may upon proper showing order that a sub-

poena issue addressed to any consul of the United States.

within any country in which such witness may be, command- .

‘ing such witness to appear before the said court at a time

and placé therein designated.

Sec. 2. Whenever the ‘attendance at the trial of any

criminal action of a witness, being a citizen of the United

States or domiciled therein, who is beyond the jurisdiction —

Of, the United States, is desired by the Attorney General

‘or any assistant or district attorney acting under him, the

i ., judge of the Court before -which such action is pending, or

who is to sit in the trial of the same, may, upon proper

showing, order that a. subpoena issue, addressed to any

_ consul. of the United States within any country | in whieh

0 °

- guch witness may be, commanding such witness to appear

"before the said court at a time and place therein designated...

Szc. 3. It shall-be the duty of ‘any consul of the United

|. States within any country in which such witness may be at,

_the request of:the clerk of the court issuing any subpoena -

-. under this Act or at the request of the officer causing such ~

subpoena to be issued, to serve thé same personally upon

~ gach witness and also to. serve any orders. to.show cause, _

rules, judgments, or decrees when requested by the court or °

United States marshal, and to make a return thereof to |

the court out of which the same issued, first tendering to -

the witness the amount of his necessary expenses in travel-

ing to,and from the place at which the court sits and his

attendance thereon, which amount, shall be determined by |

_ “the judge on issuing the order for the subpoena and ~

plied to the consul making the service. .

‘Sec. 4.° If the witness so served shall nogieet or refuse | |

to,appear.as in such subpoena directed, the court‘ out of

' which it was issued shall, upon proof being made of thé

service and default, issue an order directing the witness to -

- appear before the court at’a time in such order designated

to show cause why he should not be adjudged guilty of

contempt and be punished accordingly. my

>See. 5. Upon i issuing such’ order the: court may, upon

the giving of security for any damages which the recusing .

witness may have suffered, should the charge be dismissed

_ (except ey no security shall be ‘required of the United

States), direct as a part of such order that the property,

of the recusing witness,-at any. -place within _the United

- States, or so much thereof in value as the court may direct .

_thall be levied upon and seized by tlie marshal of said court

_ in the manner provided by law or the rule of the court for

_. slevy or seizure under execution, to be held to satisfy any

Jadgment that may be rendered ee such wittiess 1 in us |

peins so inatituted. :

48 a

Sec. 6. Ee Gone having made such levy, shj

~ theFeupon forward to the consul of any country where :

recusing witness may be a copy of the order to show ca i

why such: witness should not -be adjudged guilt “ot

tempt with the request that said consul make se oft th

same personally upon the recusing witness, and shall cang

to be‘published such order to show cause and for the sequ :

tration of the property of such witness, in some news Oe

_ of general circulation in the district within which the eo

issuing such order sits, once each week for six ‘consecut ’

weeks. ! | | ;

Szc. 7. On the return day of such order or any id

day to which the hearing may by the court be. eontim a

proof sliall be taken; ‘and if the charge of recusaml

against the witness. shall be sustained, the court ¢ h

adjudge him guilty of contempt and, notiithetandingm

limitation upon the power: of the court generally to put

for contempt, impose upon him a fine not exceeding $100 4

and direct that the amount thereof, with the costs " {

pfuceeding, be satisfied, unless paid, by a sale of the p ‘

-erty of the witness so seized or levied upon, suoh sale ¢ 2

‘conducted upon the notice required and i in the manner J

_ vided for sales upon execution. ° q

~ zo: 8. "Any judgment rendered pursuant * , this |

upon sefvice by publication only may ‘be opened for 4

. swer within thé time and in the manner pn, ing

‘ 57 of the Judicial Code...”

Approved, sare 3; 1926.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.