finding that Congress permissibly enacted the statute at issue to have an extraterritorial reachSummary of this case from United States v. Joseph Ricky Park
Nos. 200 and 201.
Argued January 5, 6, 1932. Decided February 15, 1932.
1. A citizen of the United States residing in a foreign country continues to owe allegiance to the United States and is bound by its laws made applicable to his situation. P. 436. 2. The power to require the return of absent citizens in the public interest is inherent in sovereignty; and what in England was the sovereign prerogative in this respect, pertains, under our constitutional system, to the national authority, exercisable by Congress, to prescribe the duties of the citizens of the United States. P. 437. 3. One of the duties of such absent citizens to the United States is that of attending its courts to give testimony when properly summoned; and Congress may provide for the performance of this duty and prescribe penalties for disobedience. P. 438. 4. Questions of authority in such cases are not questions of international law, but of municipal law. P. 437. 5. The Act of July 3, 1926, provides that when the testimony of a citizen of the United States residing in a foreign country is needed by the Government in a criminal case, the court in which the case is pending may issue a subpoena to be served upon him personally by an American consul with a tender of money to cover his necessary expenses of travel to and from, and attendance upon, the court; that if he refuse or neglect to appear as directed by the subpoena, the same court, upon proof of service and default, may issue its order directing him to appear before it at a designated time to show cause why he should not be adjudged guilty of contempt and be punished; that this order may direct that property of the witness in the United States be seized and held to satisfy any judgment that may be rendered in the contempt proceeding; that after such seizure the order to show cause and for sequestration shall be served on the witness personally by such consul and shall be published in some newspaper of general circulation in the district where the court sits; and that on the return day of the order, or later, proof shall be taken, and if the charge of recusancy shall be sustained, the court shall adjudge the witness guilty of contempt and impose upon him a fine not exceeding $100,000, which, with the costs, may be satisfied by sale of the property levied upon, to be conducted upon notice and in the manner provided for sales upon execution. In contempt proceedings for failure to obey subpoenas, held: (1) The absent witness is bound with notice of the statute. P. 438. (2) The method provided by the Act for acquiring judicial jurisdiction to render a personal judgment includes due notice and opportunity to be heard and satisfies the due process clause of the Fifth Amendment. Pp. 438, 439. (3) Service of the subpoena in a foreign country invades no right of the foreign government, and the citizen has no standing to invoke such supposed right. P. 439. (4) The function of a consul in serving the subpoena and the order to show cause, is merely that of an agent of the Government for conveying actual notice to one of its citizens; it need not be sanctioned by a treaty. Pp. 439, 440. (5) In criminal contempt proceedings, due process does not require that the respondent be present at the hearing and adjudication if he was duly notified and had adequate opportunity to appear and be heard. P. 440. (6) The contempt proceeding being valid, the provisional remedy of seizing and applying property to secure payment of the penalty is also constitutional. P. 441. (7) The fact that enforcement of the penalty may depend on seizure of property does not imply unconstitutional discrimination between those contumacious absentee witnesses who have property in this country and those who have not. Id. (8) A provisional or final levy on property, as provided in the statute, to satisfy liability of the owner, is not an unreasonable search and seizure. Id. (9) The question whether the statute grants the right to subpoena foreign residents in criminal cases to the Government only, and thereby violates the provision of the Sixth Amendment guaranteeing accused persons compulsory process for witnesses, will not be considered at the instance of a recalcitrant witness. P. 442. (10) Where the subpoena served was issued at the request of the Government upon a statement as to the materiality and importance of the expected testimony sufficient to give the court jurisdiction to issue it, it binds the witness unless set aside upon proper petition, and the question whether the showing was otherwise sufficient can not be raised in defense against proceedings to punish his disobedience as contempt. Id. (11) It is not necessary that the subpoena issued under the statute show on its face that it was so issued. Id. (12) Where a witness has been served with subpoena, under the statute, and has defaulted, service of an order directing him to show cause, at a time and place stated, why he should not be adjudged guilty of contempt, and providing for seizure of his property to be held to satisfy any judgment that may be rendered against him in the proceeding, affords notice sufficient to inform him of the character of the charge and of the hearing at which he will have opportunity to present his defense. P. 443. (13) Where two subpoenas are issued for appearances at different times, a seizure of property in connection with the first is not vacated by the seizure of the same property in connection with the second. Id. (14) A witness subpoenaed to attend on a day named, and not to depart the court without leave of the court or the district attorney, can not excuse his refusal to come upon the ground that the trial did not begin on the day specified in the writ but on a later day to which the case was continued. Id. 60 App.D.C. 141; 49 F.2d 523, affirmed.
Messrs. George Gordon Battle and Karl C. Schuyler, with whom Messrs. Eugene D. Millikin, Frederick DeC. Faust, and Charles F. Wilson were on the brief, for petitioner.
The laws of Congress cannot outreach the Constitution. Hodgson v. Bowerbank, 5 Cranch 303; Downes v. Bidwell, 182 U.S. 244; Dorr v. United States, 195 U.S. 138. This nation is an equal sovereignty, which, in the absence of treaty, can not exercise power extraterritorially. The Exchange v. McFaddon, 7 Cranch 116; Cooley's Const. Lim., 8th ed., vol. 1, pp. 3, 4.
The prohibition against extraterritorial exercise of judicial power applies to the States of the United States, whether the attempt be against a citizen of the State or an absent nonresident. McDonald v. Mabee, 243 U.S. 90; Cooper v. Reynolds, 10 Wall. 308, reaffirmed in Pennoyer v. Neff, 95 U.S. 714; Galpin v. Page, 18 Wall. 350; Minder v. Georgia, 183 U.S. 559; Harkness v. Hyde, 98 U.S. 476; Wilson v. Seligman, 144 U.S. 41; Bischoff v. Wethered, 9 Wall. 812; Roller v. Holly, 176 U.S. 398; Freeman v. Alderson, 119 U.S. 185; Overby v. Gordon, 177 U.S. 214; Brown v. Fletcher's Estate, 210 U.S. 82; Michigan Trust Co. v. Ferry, 228 U.S. 346; Baker v. Baker, 242 U.S. 394.
The prohibition applies to our federal courts in favor of absent citizens of the United States, whether abroad or absent from a particular district. Toland v. Sprague, 12 Pet. 300; Picquet v. Swan, 5 Mason 35; Robertson v. Labor Board, 268 U.S. 619. It is applied by this nation to other nations attempting, in the absence of treaty, to exercise judicial power here over their own citizens. Glass v. The Betsey, 3 Dall. 6. It applies to the Government as well as to private suitors. Robertson v. Labor Board, 268 U.S. 619, 623.
Jurisdiction in personam is "acquired" either by voluntary appearance or by service on the person within the territorial jurisdiction of the court. [Citing many cases.] It follows that the extraterritorial service is invalid and violates due process. Pennoyer v. Neff, 95 U.S. 714. The subpoena being invalid, the court was without jurisdiction and the order punishing for contempt was void. Ex parte Fiske, 113 U.S. 713. See also United States v. Shipp, 203 U.S. 563; Ex parte Rowland, 104 U.S. 604; In re Sawyer, 124 U.S. 200.
Allegiance as a doctrine to destroy territorial limits on the exercise of power, was repudiated by this Court. McDonald v. Mabee, 243 U.S. 90. Cf. Michigan Trust Co. v. Ferry, 228 U.S. 346; Ex parte Indiana Transportation Co., 244 U.S. 456. United States v. Bowman, 260 U.S. 94; United States v. Bennett, 232 U.S. 299, and Cook v. Tait, 265 U.S. 47, dealt with laws that did not pretend to authorize the exercise of extraterritorial power by our Government.
The ancient power of the English Crown to recall subjects is not important here, for the reason that, at and before the time of the first Judiciary Act, under American common law, jurisdiction in personam could be acquired only by appearance or by service at a place where the serving officer had authority to execute a summons. Robertson v. Labor Board, 268 U.S. 619. The right to recall is an executive or legislative function; it has never been claimed as a judicial right, and hence Congress could not confer it upon the federal judiciary. The Crown procedure in the ancient English cases, — indeed, the procedure in the case at bar, — savors of outlawry. The English common law doctrine of outlawry, and that of the continental systems as to "civil death," violate the fundamental rights of the citizen. Hovey v. Elliott, 167 U.S. 409, 444.
Under international law consuls have no power except that conferred by treaty. A nation can not send its officers into other countries even to "round up" absent citizens for return to war service. Crapo v. Kelly, 16 Wall. 610.
The Act does not provide a valid method of acquiring judicial jurisdiction to render personal judgment against defendant and judgment against his property. Jurisdiction to punish is sought to be acquired by quasi in rem procedure. The action is in fact in personam. The charge is "recusancy"; the issue, therefore, is whether defendant is guilty or not guilty of "recusancy"; the trial is exclusively confined to that issue; the judgment is guilty or not guilty of contempt with fine, if guilty, to be satisfied, if not paid, out of defendant's attached property. It is a personal criminal offense — criminal contempt of court. Michaelson v. United States, 262 U.S. 42, 66, 67. There is no charge, issue, trial or judgment as to "offending property." It is not until after the trial has been completed, and until after the personal judgment has been decreed, that the fine is ordered satisfied out of the attached property.
Quasi in rem methods of acquiring jurisdiction in personam violate due process. Pennoyer v. Neff, 95 U.S. 714. No part of the judgment resulting from quasi in rem procedure may stand as an unsatisfied judgment in personam against defendant.
In federal courts attachment is but an incident to a suit, and unless the court acquires jurisdiction over the person of the defendant by appearance or service of process within the court's territorial jurisdiction, the attachment must fall. Toland v. Sprague, 12 Pet. 300, 329; Picquet v. Swan, 5 Mason 35; Big Vein Coal Co. v. Read, 229 U.S. 31; Laborde v. Ubarri, 214 U.S. 173.
If there is no jurisdiction to render the personal judgment of guilty of contempt, it follows that there is no jurisdiction to sequester or sell the property, for those steps are entirely dependent upon the right to proceed to judgment on the issue of "recusancy."
The Act does not require actual or any other, notice to defendant of the offense, or of the Government's claim against his property; hence it violates due process.
The search and seizure of property authorized by the Act is unreasonable and in violation of the Fourth Amendment.
The provisions for hearing and judgment in the entire absence of the accused and without his consent, violate due process.
Criminal contempt of court is a criminal offense. Ex parte Grossman, 267 U.S. 87; Michaelson v. United States, 266 U.S. 42, 66-67. At some stage, the court must have jurisdiction in personam. Ex parte Terry, 128 U.S. 289.
But the Act authorizes punitive procedure against defendants who were beyond the jurisdiction of the United States when the alleged offense was committed; who were not subsequently attached, or served with summons, within the United States; who have never appeared in the court room; who have never pleaded to the charge, nor consented to proceedings in their absence; who have never received notice of an offense.
By excluding defendants in criminal prosecutions from the right to extraterritorial subpoenas, the Act violates the Sixth Amendment.
The Act is arbitrary, capricious and unreasonable. It makes the ownership of "non-offending" property a condition precedent to judgment of guilt of crime. It can have no purpose, aside from its special motive, other than to secure testimony which the poor may have to give as well as the rich. But it does not apply to rich and poor alike.
The attachment is made despite the fact that under the Act the property can not be "offending"; it is made prior to trial and therefore prior to the time when the fine can possibly be estimated, unless we assume that the court may act on hearsay, or on preconceived notions, or on ex parte advice.
In view of the presumption of innocence, the possibility of proved innocence, of highly mitigatory defense, of guilt without mitigation, there can not possibly be a reasonable relationship between the authorized unlimited attachment and the result of the trial.
The procedure against petitioner violates due process under the Fifth Amendment in each of the following respects: (a) The subpoenas, not having issued upon proper showing, were invalid, and therefore all subsequent proceedings were invalid; (b) the omission from the subpoenas (not otherwise supplied) of notice that they issued under the Act, deprived them of compulsory effect, and, therefore, deprived the court below of jurisdiction to punish failure to obey; (c) petitioner did not receive notice of any offense or of facts constituting the Government's claim against his property; (d) levy and seizure of petitioner's property in the first case was abandoned by the Government, and, therefore, jurisdiction of his person and property was abandoned, and all proceedings in that case subsequent to issuance of the order to show cause are null; (e) petitioner was not subpoenaed to attend the trial court on April 9, 1928, and hence all proceedings in the second case arising out of his failure to appear on that date are null. Mr. Atlee Pomerene, with whom Messrs. Leo A. Rover, United States Attorney for the District of Columbia, and Frank Harrison were on the brief, for the United States.
Every citizen owes the duty of allegiance to the United States. Carlisle v. United States, 16 Wall. 147; Minor v. Happersett, 21 Wall. 162; Luria v. United States, 231 U.S. 9; Miller, Const., pp. 294, 295.
The United States has extraterritorial jurisdiction over its citizens. Rose v. Himely, 4 Cranch 241; The Apollon, 9 Wheat. 362; The Resolution, 2 Dall. 1; Willoughby, Const., pp. 247, 248, §§ 120, 121; Moore, Int. L. Dig., vol. II, pp. 255, 256; Hyde, Int. Law, vol. I, p. 424; Columbia L. Rev., vol. 27, p. 204; Cook v. Tait, 265 U.S. 47; United States v. Bennett, 232 U.S. 299; United States v. Bowman, 260 U.S. 94.
The recall of a citizen to bear arms is appropriate to carrying into execution the power of the Congress to raise and support armies. Likewise, the recall of a citizen for the purpose of giving testimony in a case pending in court, is appropriate to the power of the Congress to constitute tribunals inferior to the Supreme Court.
The power to recall citizens was recognized by the framers of our Constitution as inhering in the legislative branch. Jefferson's draft for Va. Const., quoted by McReynolds, J., (diss.) in Myers v. United States, 272 U.S. 52, at p. 235; Federalist, No. xlviii.
The duty of allegiance is a sufficient basis for jurisdiction in personam. Lauria [Luria] v. United States, 231 U.S. 9; United States v. Knight, 291 F. 129, 131, affirmed, 299 F. 571; Thompson v. Thompson, 226 U.S. 551, 562; Beale, Conflict of Laws, in proposed final draft No. 1, Am. L. Inst., § 82; 27 Harv. L. Rev., pp. 464 to 466; 41 id., p. 1067; 30 Mich. L. Rev, pp. 137 to 142, and many other cases and text books.
The notice of recall necessary to due process as a prerequisite to punishment for disobedience may be served abroad. Bartue and Duchess of Suffolk, 2 Dyer's Rep. 176b; 73 Eng. Rep. 388; Knowles v. Luce, Moore 109; 72 Eng. Rep. 473; Perez v. Fernandez, 220 U.S. 224; Mellen v. Malleable Iron Wks., 131 U.S. 352; Luria v. United States, 231 U.S. 9; Douglas v. Forrest, 4 Bing. 686; Cowan v. Braidwood, 9 Dow. P.C. 26, 33-7; General Steam Nav. Co. v. Guillou, 11 M. W. 877, 894. Distinguishing McDonald v. Mabee, 243 U.S. 90.
Substituted service by leaving summons at last place of abode is sufficient for a judgment in personam against an absent citizen. McDonald v. Mabee, 243 U.S. 90; s.c., 107 Tex. 139, 173, 174; Langdon v. Doud, 88 Mass. 423, 435; Henderson v. Staniford, 105 Mass. 504, 505; Nichols v. Vaughan, 217 Mass. 548; Hess v. Pawloski, 274 U.S. 352, 355; Wuchter v. Pizzutti, 276 U.S. 13; Gilbert v. Burnstine, 255 N.Y. 348. Citizenship supports jurisdiction in personam upon extraterritorial personal service only. In re Henderson, 167 N.W. 172; De La Montanya v. De La Montanya, 44 P. 345; Raher v. Raher, 150 Iowa 511; 35 L.R.A. (N.S.) 297.
Nonresident cases affecting aliens cited by appellant are not in point.
If the necessary statutory authority has been given to the court, and to the executive or administrative officers who are to carry out its orders, witnesses may be subpoenaed from anywhere if they rest under the obligation to obey the laws.
The act of serving a subpoena is a ministerial act of giving notice and not an exercise of "jurisdiction." It is the issuance and not the service that is the exercise of jurisdiction, except in so far as the service is necessary to due process, and hence to the jurisdiction of the court to render a valid judgment, and not in the international law sense. But when the duty pre-exists, the process, no matter what its form may be, is a mere notice.
We admit that the issuance of the subpoena by the court is an assertion of power. The order issuing the subpoena is a judicial act in conformity with the Walsh Act. A process is deemed issued when ordered by the court and ready for service. McIntosh v. Standard Oil Co., 236 N.W. 152; Society v. Whitcomb, 2 N.H. 227; Smith v. Nicholson, 5 N.D. 426. The service of the subpoena is simply notice that the power has been exercised. The giving of notice thereof by the consul to a citizen abroad does not offend international law.
Service by a consul is valid even if no treaty deals with the subject. If the United States has the power and right to send a messenger to France to deliver the subpoena without a treaty with France, then there is nothing within or without the scope of international law that requires a treaty before the United States can use one of its consuls for that service.
Even if the manner of serving the subpoena were contrary to international law or French law, the Walsh Act would not be unconstitutional.
The Walsh Act does not limit enforcement to quasi in rem procedure and these cases at bar were not entirely quasi in rem.
"Criminal" contempt proceedings are sui generis and not, strictly, criminal prosecutions. Due process therein is satisfied under the Walsh Act. Gompers v. Bucks Stove Range Co., 221 U.S. 418; s.c. 33 App.D.C. 516; Re Gompers, 40 App.D.C. 293; Gompers v. United States, 233 U.S. 604; Ex parte Hudgings, 249 U.S. 378; Myers v. United States, 264 U.S. 95; United States v. Zucker, 161 U.S. 475; Michaelson v. United States, 266 U.S. 42; Ex parte Grossman, 267 U.S. 87; Cooke v. United States, 267 U.S. 517; In re Savin, 131 U.S. 267; Schwartz v. United States, 217 F. 866; Armstrong v. United States, 18 F.2d 371, and other cases. The "essential nature" of punishment for contempt is penal, not criminal.
Congress may authorize federal courts to use quasi in rem procedure to acquire jurisdiction.
Service by publication in actions quasi in rem is sufficient for due process. Central Loan Tr. Co. v. Campbell Co., 173 U.S. 84; Security Savings Bank v. California, 263 U.S. 282; Missouri v. North, 271 U.S. 40, and citing many other cases.
Service of the "order to show cause" is sufficient notice of the offense to afford due process.
No unreasonable search and seizure is authorized by the Act.
Holding the hearing and pronouncing judgment in the absence of petitioner did not violate due process.
The Act does not violate the right of an accused to compulsory process for obtaining witnesses. The petitioner is not entitled to raise the point.
The Sixth Amendment does not require that the accused in the criminal prosecution have equal compulsory process with the process available to the Government. United States v. Reid, 12 How. 361. There are a number of respects in which a person accused of crime has a less right to compulsory process than that accorded to the Government. The accused in the criminal case has substantially equal process.
The Walsh Act is not arbitrary, capricious, or unreasonable, and does not deny due process.
The petitioner, Harry M. Blackmer, a citizen of the United States resident in Paris, France, was adjudged guilty of contempt of the Supreme Court of the District of Columbia for failure to respond to subpoenas served upon him in France and requiring him to appear as a witness on behalf of the United States at a criminal trial in that court. Two subpoenas were issued, for appearances at different times, and there was a separate proceeding with respect to each. The two cases were heard together, and a fine of $30,000 with costs was imposed in each case, to be satisfied out of the property of the petitioner which had been seized by order of the court. The decrees were affirmed by the Court of Appeals of the District, 49 F.2d 523, and this Court granted writs of certiorari.
The subpoenas were issued and served, and the proceedings to punish for contempt were taken, under the provisions of the Act of July 3, 1926, c. 762, 44 Stat. 835, U.S.C. Tit. 28, §§ 711-718. The statute provides that whenever the attendance at the trial of a criminal action of a witness abroad, who is "a citizen of the United States or domiciled therein," is desired by the Attorney General, or any assistant or district attorney acting under him, the judge of the court in which the action is pending may order a subpoena to issue, to be addressed to a consul of the United States and to be served by him personally upon the witness with a tender of travelling expenses. §§ 2, 3. Upon proof of such service and of the failure of the witness to appear, the court may make an order requiring the witness to show cause why he should not be punished for contempt, and upon the issue of such an order the court may direct that property belonging to the witness and within the United States may be seized and held to satisfy any judgment which may be rendered against him in the proceeding. §§ 4, 5. Provision is made for personal service of the order upon the witness and also for its publication in a newspaper of general circulation in the district where the court is sitting. § 6. If, upon the hearing, the charge is sustained, the court may adjudge the witness guilty of contempt and impose upon him a fine not exceeding $100,000, to be satisfied by a sale of the property seized. § 7. This statute and the proceedings against the petitioner are assailed as being repugnant to the Constitution of the United States.
The Act is as follows: " Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That whenever letters rogatory shall issue out of any court of the United States, either with or without interrogatories addressed to any court of any foreign country, 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 practice of such court, to appear and testify pursuant to such letters rogatory and such witness shall neglect to appear, or having appeared shall decline, refuse, or neglect to answer 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 Page 434 the court issuing such letters, the court out of which said letters issued may upon proper showing order that a subpoena issue addressed to any consul of the United States within any country in which such witness may be, commanding such witness to appear before the said court at a time and place 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 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 which such witness may be, commanding such witness to appear before the said court at a time and place therein designated.
"Sec. 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 the same personally upon such 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 traveling 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 supplied to the consul making the service.
"Sec. 4. If the witness so served shall neglect or refuse to appear as in such subpoena directed, the court out of which it was issued 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 should not be adjudged guilty of contempt and be punished accordingly. Page 435 "Sec. 5. Upon 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 that 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 shall be levied upon and seized by the marshal of said court 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 that may be rendered against such witness in the proceeding so instituted.
"Sec. 6. The marshal, having made such levy, shall thereupon forward to the consul of any country where the recusing witness may be a copy of the order to show cause why such witness should not be adjudged guilty of contempt with the request that said consul make service of the same personally upon the recusing witness, and shall cause to be published such order to show cause and for the sequestration of the property of such witness, in some newspaper of general circulation in the district within which the court issuing such order sits, once each week for six consecutive weeks.
"Sec. 7. On the return day of such order or any later day to which the hearing may by the court be continued, proof shall be taken; and if the charge of recusancy against the witness shall be sustained, the court shall adjudge him guilty of contempt and, notwithstanding any limitation upon the power of the court generally to punish for contempt, impose upon him a fine not exceeding $100,000 and direct that the amount thereof, with the costs of the proceeding, be satisfied, unless paid, by a sale of the property of the witness so seized or levied upon, such sale to be conducted upon the notice required and in the manner provided for sales upon execution.
"Sec. 8. Any judgment rendered pursuant to this Act upon service by publication only may be opened for answer within the time and in the manner provided in section 57 of the Judicial Code."
First. The principal objections to the statute are that it violates the due process clause of the Fifth Amendment. These contentions are (1) that the "Congress has no power to authorize United States consuls to serve process except as permitted by treaty"; (2) that the Act does not provide "a valid method of acquiring judicial jurisdiction to render personal judgment against defendant and judgment against his property"; (3) that the Act "does not require actual or any other notice to defendant of the offense or of the Government's claim against his property"; (4) that the provisions "for hearing and judgment in the entire absence of the accused and without his consent" are invalid; and (5) that the Act is "arbitrary, capricious and unreasonable."
While it appears that the petitioner removed his residence to France in the year 1924 it is undisputed that he was, and continued to be, a citizen of the United States. He continued to owe allegiance to the United States. By virtue of the obligations of citizenship, the United States retained its authority over him, and he was bound by its laws made applicable to him in a foreign country. Thus, although resident abroad, the petitioner remained subject to the taxing power of the United States. Cook v. Tait, 265 U.S. 47, 54, 56. For disobedience to its laws through conduct abroad he was subject to punishment in the courts of the United States. United States v. Bowman, 260 U.S. 94, 102. With respect to such an exercise of authority, there is no question of international law, but solely of the purport of the municipal law which establishes the duties of the citizen in relation to his own government. While the legislation of the Congress, unless the contrary intent appears, is construed to apply only within the territorial jurisdiction of the United States, the question of its application, so far as citizens of the United States in foreign countries are concerned, is one of construction, not of legislative power. American Banana Co. v. United Fruit Co., 213 U.S. 347, 357; United States v. Bowman, supra; Robertson v. Labor Board, 268 U.S. 619, 622. Nor can it be doubted that the United States possesses the power inherent in sovereignty to require the return to this country of a citizen, resident elsewhere, whenever the public interest requires it, and to penalize him in case of refusal. Compare Bartue and the Duchess of Suffolk's Case, 2 Dyer's Rep. 176b, 73 Eng. Rep. 388; Knowles v. Luce, Moore 109, 72 Eng. Rep. 473. What in England was the prerogative of the sovereign in this respect, pertains under our constitutional system to the national authority which may be exercised by the Congress by virtue of the legislative power to prescribe the duties of the citizens of the United States. It is also beyond controversy that one of the duties which the citizen owes to his government is to support the administration of justice by attending its courts and giving his testimony whenever he is properly summoned. Blair v. United States, 250 U.S. 273, 281. And the Congress may provide for the performance of this duty and prescribe penalties for disobedience.
"The law of Nations does not prevent a State from exercising jurisdiction over its subjects travelling or residing abroad, since they remain under its personal supremacy." Oppenheim, International Law, 4th ed., vol. I, § 145, p. 281; Story, Conflict of Laws, 8th ed., § 540, p. 755; Moore's International Law Digest, vol. II, pp. 255, 256; Hyde, International Law, vol. I, § 240, p. 424; Borchard, Diplomatic Protection of Citizens Abroad, § 13, pp. 21, 22.
Compare The Nereide, 9 Cranch 388, 422, 423; Rose v. Himely, 4 Cranch 241, 279; The Apollon, 9 Wheat. 362, 370; Schibsby v. Westenholz, L.R. 6 Q.B. 155, 161. Illustrations of acts of the Congress applicable to citizens abroad are the provisions found in the chapter of the Criminal Code relating to "Offenses against Operations of Government" (U.S.C. Tit. 18, c. 4; United States v. Bowman, 260 U.S. 94, 98-102) and the provisions relating to criminal correspondence with foreign governments, Act of January 30, 1799, 1 Stat. 613, U.S.C. Tit. 18, § 5.
See, also, Hyde, op. cit., vol. 1, § 381, pp. 668, 669.
In the present instance, the question concerns only the method of enforcing the obligation. The jurisdiction of the United States over its absent citizen, so far as the binding effect of its legislation is concerned, is a jurisdiction in personam, as he is personally bound to take notice of the laws that are applicable to him and to obey them. United States v. Bowman, supra. But, for the exercise of judicial jurisdiction in personam, there must be due process, which requires appropriate notice of the judicial action and an opportunity to be heard. For this notice and opportunity the statute provides. The authority to require the absent citizen to return and testify necessarily implies the authority to give him notice of the requirement. As his attendance is needed in court, it is appropriate that the Congress should authorize the court to direct the notice to be given and that it should be in the customary form of a subpoena. Obviously, the requirement would be nugatory, if provision could not be made for its communication to the witness in the foreign country. The efficacy of an attempt to provide constructive service in this country would rest upon the presumption that the notice would be given in a manner calculated to reach the witness abroad. McDonald v. Mabee, 243 U.S. 90, 92. The question of the validity of the provision for actual service of the subpoena in a foreign country is one that arises solely between the Government of the United States and the citizen. The mere giving of such a notice to the citizen in the foreign country of the requirement of his government that he shall return is in no sense an invasion of any right of the foreign government; and the citizen has no standing to invoke any such supposed right. While consular privileges in foreign countries are the appropriate subjects of treaties, it does not follow that every act of a consul, as, e.g., in communicating with citizens of his own country, must be predicated upon a specific provision of a treaty. The intercourse of friendly nations, permitting travel and residence of the citizens of each in the territory of the other, presupposes and facilitates such communications. In selecting the consul for the service of the subpoena, the Congress merely prescribed a method deemed to assure the desired result but in no sense essential. The consul was not directed to perform any function involving consular privileges or depending upon any treaty relating to them, but simply to act as any designated person might act for the Government in conveying to the citizen the actual notice of the requirement of his attendance. The point raised by the petitioner with respect to the provision for the service of the subpoena abroad is without merit.
The instant case does not present the questions which arise in cases where obligations inherent in allegiance are not involved. See Pennoyer v. Neff, 95 U.S. 714; Galpin v. Page, 18 Wall. 350, 369; Harkness v. Hyde, 98 U.S. 476, 478; Riverside Dan River Cotton Mills v. Menefee, 237 U.S. 189, 193; McDonald v. Mabee, 243 U.S. 90, 92; Wuchter v. Pizzutti, 276 U.S. 13.
As the Congress could define the obligation, it could prescribe a penalty to enforce it. And as the default lay in disobedience to an authorized direction of the court, it constituted a contempt of court and the Congress could provide for procedure appropriate in contempt cases. The provision of the statute for punishment for contempt is applicable only "upon proof being made of the service and default." § 4. That proof affords a proper basis for the proceeding, and provision is made for personal service upon the witness of the order to show cause why he should not be adjudged guilty. For the same reasons as those which sustain the service of the subpoena abroad, it was competent to provide for the service of the order in like manner. It is only after a hearing pursuant to the order to show cause, and upon proof sustaining the charge, that the court can impose the penalty. The petitioner urges that the statute does not require notice of the offense, but the order to show cause is to be issued after the witness has failed to obey the subpoena demanding his attendance and the order is to be made by the court before which he was required to appear. This is sufficient to apprise the witness of the nature of the proceeding and he has full opportunity to be heard. The further contention is made that, as the offense is a criminal one, it is a violation of due process to hold the hearing, and to proceed to judgment, in the absence of the defendant. The argument misconstrues the nature of the proceeding. "While contempt may be an offense against the law and subject to appropriate punishment, certain 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." Myers v. United States, 264 U.S. 95, 104, 105. See, also, Bessette v. Conkey Co., 194 U.S. 324, 336, 337; Michaelson v. United States, 266 U.S. 42, 65, 66; Ex parte Grossman, 267 U.S. 87, 117, 118. The requirement of due process in such a case is satisfied by suitable notice and adequate opportunity to appear and to be heard. Cf. Cooke v. United States, 267 U.S. 517, 537.
The authorization of the seizure of the property belonging to the defaulting witness and within the United States, upon the issue of the order to show cause why he should not be punished for contempt (§ 5), affords a provisional remedy, the propriety of which rests upon the validity of the contempt proceeding. As the witness is liable to punishment by fine if, upon the hearing, he is found guilty of contempt, no reason appears why his property may not be seized to provide security for the payment of the penalty. The proceeding conforms to familiar practice where absence or other circumstance makes a provisional remedy appropriate. See Cooper v. Reynolds, 10 Wall. 308, 318. The order that is to be served upon the witness contains the direction for the seizure. The property is to be held pending the hearing and is to be applied to the satisfaction of the fine if imposed and unless it is paid. Given the obligation of the witness to respond to the subpoena, the showing of his default after service, and the validity of the provision for a fine in case default is not excused, there is no basis for objection to the seizure upon constitutional grounds. The argument that the statute creates an unreasonable classification is untenable. The disobedience of the defaulting witness to a lawful requirement of the court, and not the fact that he owns property, is the ground of his liability. He is not the subject of unconstitutional discrimination simply because he has property which may be appropriated to the satisfaction of a lawful claim.
Second. What has already been said also disposes of the contention that the statute provides for an unreasonable search and seizure in violation of the Fourth Amendment. It authorizes a levy upon property of the witness at any place within the United States in the manner provided by law or rule of court for levy or seizure under execution. A levy in such a manner, either provisionally or finally, to satisfy the liability of the owner is not within the constitutional prohibition.
The petitioner raises the further and distinct point that the statute limits the availability of the subpoena to the Government, and that "by excluding defendants in criminal prosecutions" from the right to such a subpoena it violates the provision of the Sixth Amendment that the accused shall have "compulsory process for obtaining witnesses in his favor." We need not consider whether the statute requires the construction for which the petitioner contends, as in any event the petitioner, a recalcitrant witness, is not entitled to raise the question. Nelson v. United States, 201 U.S. 92, 115; Southern Railway Co. v. King, 217 U.S. 524, 534; Jeffrey Manufacturing Co. v. Blagg, 235 U.S. 571, 576; Blair v. United States, supra, at p. 282.
Third. The statute being valid, the question remains as to the procedure in its application against the petitioner. He insists that the showing for the issue of the subpoenas requiring him to attend was inadequate. But the "proper showing" required was for the purpose of satisfying the court that the subpoena should issue. The petitions, in the instant cases, were presented to the judge of the court by the official representatives of the Government and their statement as to the materiality and importance of the testimony expected from the witness was unquestionably sufficient to give the court jurisdiction to issue the subpoenas, and, unless they were vacated upon proper application, the petitioner was bound to obey. Nor was it necessary that the subpoenas should "identify" themselves with the statute under which they were issued. The petitioner as a citizen of the United States was chargeable with knowledge of the law under which his attendance as a witness could be required. It was sufficient that the subpoenas required his attendance to testify on behalf of the United States at the time and place stated. Equally unavailing is the objection that after the petitioner had refused to appear in response to the subpoenas, the orders to show cause why he should not be punished for contempt did not specify the offense. As the statute prescribed, he had been served with the subpoenas, and had defaulted, and he had also been served with the order which directed him to show cause why he should not be adjudged guilty of contempt and provided for the seizure of his property to be held to satisfy any judgment that might be rendered against him in the proceeding. The notice which he thus received was sufficient to inform him of the character of the charge against him and of the hearing at which he would have opportunity to present his defense. The petitioner also insists that the seizure which was made in case No. 200 was abandoned by virtue of the seizure of the same property under the order issued in No. 201. But the second levy was not antagonistic to the first. The proceedings were consistent.
In No. 201, the contention is made that the petitioner was subpoenaed to attend on April 2, 1928, and that the case in which his testimony was desired was not tried until April 9, 1928. There is no suggestion that the petitioner appeared on April 2, 1928, in compliance with the subpoena, and the record shows that the case in which he was subpoenaed was continued by the court until the later date. The subpoena contained the usual provision that the witness was "not to depart the court without leave of the court or district attorney." Cf. Rev. Stat., § 877; U.S.C. Tit. 28, § 655. It was the duty of the petitioner to respond to the subpoena and to remain in attendance until excused by the court or by the Government's representatives.
MR. JUSTICE ROBERTS took no part in the consideration and decision of this case.