# Green v. United States (356 U.S. 165)/Dissent Black

* Court Documents
* Case Syllabus
* Opinion of the Court
* Concurring Opinion Frankfurter
* Dissenting Opinions Black Brennan
United States Supreme Court
356 U.S. 165
Green v. United States (356 U.S. 165)
Argued: Oct. 21, 1957. --- Decided: March 31, 1958
Mr. Justice BLACK, with whom The CHIEF JUSTICE and Mr. Justice DOUGLAS concur, dissenting.
The power of a judge to inflict punishment for criminal contempt by means of a summary proceeding stands as an anomaly in the law. In my judgment the time has come for a fundamental and searching reconsideration of the validity of this power which has aptly been characterized by a State Supreme Court as, 'perhaps, nearest akin to despotic power of any power existing under our form of government.' Even though this extraordinary authority first slipped into the law as a very limited and insignificant thing, it has relentlessly swollen, at the hands of not unwilling judges, until it has become a drastic and pervasive mode of administering criminal justice usurping our regular constitutional methods of trying those charged with offenses against society. Therefore to me this case involves basic questions of the highest importance far transcending its particular facts. But the specific facts do provide a striking example of how the great procedural safeguards erected by the Bill of Rights are now easily evaded by the ever-ready and boundless expedients of a judicial decree and a summary contempt proceeding.
I would reject those precedents which have held that the federal courts can punish an alleged violation outside the courtroom of their decrees by means of a summary trial, at least as long as they can punish by severe prison sentences or fines as they now can and do. I would hold that the defendants here were entitled to be tried by a jury after indictment by a grand jury and in full accordance with all the procedural safeguards required by the Constitution for 'all criminal prosecutions.' I am convinced that the previous cases to the contrary are wrong-wholly wrong for reasons which I shall set out in this opinion.
Ordinarily it is sound policy to adhere to prior decisions but this practice has quite properly never been a blind, inflexible rule. Courts are not omniscient. Like every other human agency, they too can profit from trial and error, from experience and reflection. As others have demonstrated, the principle commonly referred to as stare decisis has never been thought to extend so far as to prevent the courts from correcting their own errors. Accordingly, this Court has time and time again from the very beginning reconsidered the merits of its earlier decisions even though they claimed great longevity and repeated reaffirmation. See, e.g., Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188; Graves v. People of State of New York ex rel. O'Keefe, 306 U.S. 466, 59 S.Ct. 595, 83 L.Ed. 927; Nye v. United States, 313 U.S. 33, 61 S.Ct. 810, 85 L.Ed. 1172. Indeed, the Court has a special responsibility where questions of constitutional law are involved to review its decisions from time to time and where compelling reasons present themselves to refuse to follow erroneous precedents; otherwise its mistakes in interpreting the Constitution are extremely difficult to alleviate and needlessly so. See Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 405, 52 S.Ct. 443, 446, 76 L.Ed. 815 (Brandeis, J., dissenting); Douglas, Stare Decisis, 49 Col.L.Rev. 735.
If ever a group of cases called for reappraisal it seems to me that those approving summary trial of charges of criminal contempt are the ones. The early precedents which laid the ground-work for this line of authorities were decided before the actual history of the procedures used to punish contempt was brought to light, at a time when '(w)holly unfounded assumptions about 'immemorial usage' acquired a factitious authority and were made the basis of legal decisions.' These cases erroneously assumed that courts had always possessed the power to punish all contempts summarily and that it inhered in their very being without supporting their suppositions by authority or reason. Later cases merely cite the earlier ones in a progressive cumulation while uncritically repeating their assumptions about 'immemorial usage' and 'inherent necessity.'
No justified expectations would be destroyed by the course I propose. There has been no heavy investment in reliance on the earlier cases; they do not remotely lay down rules to guide men in their commercial or property affairs. Instead they concern the manner in which persons are to be tried by the Government for their alleged crimes. Certainly in this area there is no excuse for the perpetuation of past errors, particularly errors of great continuing importance with ominous potentialities. Apparently even the majority recognizes the need for some kind of reform by engrafting the requirement that punishment for contempt must be 'reasonable'-that irrepressible, vague and delusive standard which at times threatens to engulf the entire law, including the Constitution itself, in a sea of judicial discretion. But this trifling amelioration does not strike at the heart of the problem and can easily come to nothing, as the majority's very approval of the grossly disproportionate sentences imposed on these defendants portends.
Before going any further, perhaps it should be emphasized that we are not at all concerned with the power of courts to impose conditional imprisonment for the purpose of compelling a person to obey a valid order. Such coercion, where the defendant carries the keys to freedom in his willingness to comply with the court's directive, is essentially a civil remedy designed for the benefit of other parties and has quite properly been exercised for centuries to secure compliance with judicial decrees. See United States v. United Mine Workers of America, 330 U.S. 258, 330-332, 67 S.Ct. 677, 713-714, 91 L.Ed. 884 (dissenting and concurring opinion). Instead, at stake here is the validity of a criminal conviction for disobedience of a court order punished by a long, fixed term of imprisonment. In my judgment the distinction between conditional confinement of compel future performance and unconditional imprisonment designed to punish past transgressions is crucial, analytically as well as historically, in determining the permissible mode of trial under the Constitution.
Summary trial of criminal contempt, as now practiced, allows a single functionary of the state, a judge, to lay down the law, to prosecute those who he believes have violated his command (as interpreted by him), to sit in 'judgment' on his own charges, and then within the broadest kind of bounds to punish as he sees fit. It seems inconsistent with the most rudimentary principles of our system of criminal justice, a system carefully developed and preserved throughout the centuries to prevent oppressive enforcement of oppressive laws, to concentrate this much power in the hands of any officer of the state. No official, regardless of his position or the purity and nobleness of his character, should be granted such autocratic omnipotence. Indeed if any other officer were presumptuous enough to claim such power I cannot believe the courts would tolerate it for an instant under the Constitution. Judges are not essentially different from other government officials. Fortunately they remain human even after assuming their judicial duties. Like all the rest of mankind they may be affected from time to time by pride and passion, by pettiness and bruised feelings, by improper understanding or by excessive zeal. Frank recognition of these common human characteristics, as well as others which need not be mentioned, undoubtedly led to the determination of those who formed our Constitution to fragment power, especially the power to define and enforce the criminal law, among different departments and institutions of government in the hope that each would tend to operate as a check on the activities of the others and a shield against their excesses thereby securing the people's liberty.
When the responsibilities of lawmaker, prosecutor, judge, jury and disciplinarian are thrust upon a judge he is obviously incapable of holding the scales of justice perfectly fair and true and reflecting impartially on the guilt or innocence of the accused. He truly becomes the judge of his own cause. The defendant charged with criminal contempt is thus denied what I had always thought to be an indispensable element of due process of law-an objective, scrupulously impartial tribunal to determine whether he is guilty or innocent of the charges filed against him. In the words of this Court: 'A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness. To this end no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome. * * * Fair trials are too important a part of our free society to let prosecuting judges be trial judges of the charges they prefer.' In re Murchison, 349 U.S. 133, 136-137, 75 S.Ct. 623, 625, 99 L.Ed. 942. Cf. Chambers v. State of Florida, 309 U.S. 227, 236-237, 60 S.Ct. 472, 476-477, 84 L.Ed. 716; Tumey v. State of Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749; In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682.
The vices of a summary trial are only aggravated by the fact that the judge's power to punish criminal contempt is exercised without effective external restraint. First, the substantive scope of the offense of contempt is inordinately sweeping and vague; it has been defined, for example, as 'any conduct that tends to bring the authority and administration of the law into disrespect or disregard.' It would be no overstatement therefore to say that the offense with the most illdefined and elastic contours in our law is now punished by the harshest procedures known to that law. Secondly, a defendant's principal assurance that he will be fairly tried and punished is the largely impotent review of a cold record by an appellate court, another body of judges. Once in a great while a particular appellate tribunal basically hostile to summary proceedings will closely police contempt trials but such supervision is only isoalted and fleeting. All too often the reviewing courts stand aside readily with the formal declaration that 'the trial judge has not abused his discretion.' But even at its rare best appellate review cannot begin to take the place of trial in the first instance by an impartial jury subject to review on the spot by an uncommitted trial judge. Finally, as the law now stands there are no limits on the punishment a judge can impose on a defendant whom he finds guilty of contempt except for whatever remote restrictions exist in the Eighth Amendment's prohibition against cruel and unusual punishments or in the nebulous requirements of 'reasonableness' now promulgated by the majority.
In my view the power of courts to punish criminal contempt by summary trial, as now exercised, is precisely the kind of arbitrary and dangerous power which our forefathers both here and abroad fought so long, so bitterly, to stamp out. And the paradox of it all is that the courts were established and are maintained to provide impartial tribunals of strictly disinterested arbiters to resolve charges of wrongdoing between citizen and citizen or citizen and state.
The Constitution and Bill of Rights declare in sweeping unequivocal terms that 'The Trial of all Crimes * * * shall be by Jury,' that 'In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury,' and that 'No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.' As it may now be punished criminal contempt is manifestly a crime by every relevant test of reason or history. It was always a crime at common law punishable as such in the regular course of the criminal law. It possesses all of the earmarks commonly attributed to a crime. A mandate of the Government has allegedly been violated for which severe punishment, including long prison sentences, may be exacted-punishment aimed at chastising the violator for his disobedience. As Mr. Justice Holmes irrefutably observed for the Court in Gompers v. United States, 233 U.S. 604, at pages 610-611, 34 S.Ct. 693, at page 695, 58 L.Ed. 1115: 'These contempts are infractions of the law, visited with punishment as such. If such acts are not criminal, we are in error as to the most fundamental characteristic of crimes as that word has been understood in English speech. So truly are they crimes that it seems to be proved that in the early law they were punished only by the usual criminal procedure * * * and that at least in England, it seems that they still may be and preferably are tried in that way.'
This very case forcefully illustrates the point. After surrendering the defendants were charged with fleeing from justice, convicted, and given lengthy prison sentences designed to punish them for their flight. Identical flight has now been made a statutory crime by the Congress with severe penalties. How can it possibly be any more of a crime to be convicted of disobeying a statute and sent to jail for three years than to be found guilty of violating a judicial decree forbidding precisely the same conduct and imprisoned for the same term?
The claim has frequently been advanced that courts have exercised the power to try all criminal contempts summarily since time immemorial and that this mode of trial was so well established and so favorably regarded at the time the Constitution was adopted that it was carried forward intact, by implication, despite the express provisions of the Bill of Rights requiring completely different and fairer kind of trial for 'all crimes.' The myth of immemorial usage has been exploded by recent scholarship as a mere fiction. Instead it seems clear that until at least the late Seventeenth or early Eighteenth Century the English courts, with the sole exception of the extraordinary and ill-famed Court of Star Chamber whose arbitrary procedures and gross excesses brought forth many of the safe-guards included in our Constitution, neither had nor claimed power to punish contempts committed out of court by summary process. Fox, The History of Contempt of Court; Frankfurter and Landis, Power to Regulate Contempts, 37 Harv.L.Rev. 1010, 1042-1052; Beale, Contempt of Court, Criminal and Civil, 21 Harv.L.Rev. 161. Prior to this period such contempts were tried in the normal and regular course of the criminal law, including trial by jury. After the Star Chamber was abolished in 1641 the summary contempt procedures utilized by that odious instrument of tyranny slowly began to seep into the common-law courts where they were embraced by judges not averse to enhancing their own power. Still for decades the instances where such irregular procedures were actually applied remained few and far between and limited to certain special situations.
Then in 1765 Justice Wilmot declared in an opinion prepared for delivery in the Court of King's Bench (but never actually handed down) that courts had exercised the power to try all contempts summarily since their creation in the forgotten past. Although this bald assertion has been wholly discredited by the painstaking research of the eminent authorities referred to above, and even though Wilmot's opinion was not published until some years after our Constitution had been adopted, nor cited as authority by any court until 1821, his views have nevertheless exerted a baleful influence on the law of contempt both in this country and in England. By the middle of the last century the English courts had come to accept fully his thesis that they inherently possessed power to punish all contempts summarily, in or out of court. Yet even then contempts were often punished by the regular criminal procedures so that this Court could report as late as 1913 that they were still preferably tried in that manner. Gompers v. United States, 233 U.S. 604, 611, 34 S.Ct. 693, 695.
The Government, relying solely on certain obscure passages in some early law review articles by Fox, contends that while the common-law courts may not have traditionally possessed power to punish all criminal contempts without a regular trial they had always exercised such authority with respect to disobedience of their decrees. I do not believe that the studies of Fox or of other students of the history of contempt support any such claim. As I understand him, Fox reaches precisely the opposite conclusion. In his authoritative treatise, expressly written to elaborate and further substantiate the opinions formed in his earlier law review comments, he states clearly at the outset:
'The first of (this series of earlier articles), entitled The King v. Almon, was written to show that in former times the offence of contempt committed out of court was tried by a jury in the ordinary course of law and not summarily by the Court as at present (1927). The later articles also bear upon the history of the procedure in matters of contempt. Further inquiry confirmed the opinion originally formed with regard to the trial of contempt and brought to light a considerable amount of additional evidence which, with the earlier matter, is embodied in the following chapters * * *.'
Then in summarizing he asserts that strangers to court proceedings were never punished except by the ordinary processes of the criminal law for contempts committed out of the court's presence until some time after the dissolution of the Star Chamber; he immediately follows with the judgment that parties were governed by the same general rules that applied to strangers. Of course he recognizes the antiquity of the jurisdiction of courts to enforce their orders by conditional confinement, but such coercion, as pointed out before, is obviously something quite different from the infliction of purely punitive penalties for criminal contempt when compliance is no longer possible.
Professors Frankfurter and Landis in their fine article likewise unequivocally declare:
'* * * the Clayton Act (providing for jury trial of certain charges of criminal contempt) does nothing new. It is as old as the best traditions of the common law. * * *
'Down to the early part of the eighteenth century cases of contempt even in and about the common-law courts when not committed by persons officially connected with the court were dealt with by the ordinary course of law, i.e., tried by jury, except when the offender confessed or when the offense was committed 'in the actual view of the court.' * * * '(U)ntil 1720 there is no instance in the common-law precedents of punishment otherwise than after trial in the ordinary course and not by summary process.'
And Professor Beale in his discussion of the matter concludes:
'As early as the time of Richard III it was said that the chancellor of England compels a party against whom an order is issued by imprisonment; and a little later it was said in the chancery that 'a cecree does not bind the right, but only binds the person to obedience, so that if the party will not obey, then the chancellor may commit him to prison till he obey, and that is all the chancellor can do.' This imprisonment was by no means a punishment, but was merely to secure obedience to the writ of the king. Down to within a century (Beale was writing in 1908) it was very doubtful if the chancellor could under any circumstances inflict punishment for disobedience of a decree. * * * In any case the contempt of a defendant who had violated a decree in chancery could be purged by doing the act commanded and paying costs; * * *.
'Where the court inflicts a definite term of imprisonment by way of punishment for the violation of its orders, the case does not differ, it would seem, from the case of criminal contempt out of court, and regular process and trial by jury should be required.'
In brief the available historical material as reported and analyzed by the recognized authorities in this field squarely refutes the Government's insistence that disobedience of a court order has always been an exception punishable by summary process. Insofar as this particular case is concerned, the Government frankly concedes that it cannot point to a single instance in the entire course of Anglo-American legal history prior to this prosecution and two related contemporary cases where a defendant has been punished for criminal contempt by summary trial after fleeing from court-ordered imprisonment.
Those who claim that the delegates who ratified the Constitution and its contemporaneous Amendments intended to exempt the crime of contempt from the procedural safeguards expressly established by those great charters for the trial of 'all crimes' carry a heavy burden indeed. There is nothing in the Constitution or any of its Amendments which even remotely suggests such an exception. And as the Government points out in its brief, it does not appear that there was a word of discussion in the Constitutional Convention or in any of the state ratifying conventions recognizing or affirming the jurisdiction of courts to punish this crime by summary process, a power which in all particulas is so inherently alien to the method of punishing other public offenses provided by the Constitution.
In the beginning the contempt power with its essentially arbitrary procedures was a petty, insignificant part of our law involving the use of trivial penalties to preserve order in the courtroom and maintain the authority of the courts. But since the adoption of the Constitution it has undergone an incredible transformation and growth, slowly at first and then with increasing acceleration, until it has become a powerful and pervasive device for enforcement of the criminal law. It is no longer the same comparatively innocuous power that it was. Its summary procedures have been pressed into service for such far-flung purposes as to prevent 'unlawful' labor practices, to enforce the prohibition laws, to secure civil liberties and now, for the first time in our history, to punish a convict for fleeing from imprisonment. In brief it has become a common device for by-passing the constitutionally prescribed safeguards of the regular criminal law in punishing public wrongs. But still worse, its subversive potential to that end appears to be virtually unlimited. All the while the sentences imposed on those found guilty of contempt have steadily mounted, until now they are even imprisoned for years.
I cannot help but believe that this arbitrary power to punish by summary process, as now used, is utterly irreconcilable with first principles underlying our Constitution and the system of government it created-principles which were uppermost in the minds of the generation that adopted the Constitution. Above all that generation deeply feared and bitterly abhorred the existence of arbitrary, unchecked power in the hands of any government official, particularly when it came to punishing alleged offenses against the state. A great concern for protecting individual liberty from even the possibility of irresponsible official action was one of the momentous forces which led to the Bill of Rights. And the Fifth, Sixth, Seventh and Eighth Amendments were directly and purposefully designed to confine the power of courts and judges, especially with regard to the procedures used for the trial of crimes.
As manifested by the Declaration of Independence, the denial of trial by jury and its subversion by various contrivances was one of the principal complaints against the English Crown. Trial by a jury of laymen and no less was regarded as the birthright of free men. Witness the fierce opposition of the colonials to the courts of admiralty in which judges instead of citizen juries were authorized to try those charged with violating certain laws. The same zealous determination to protect jury trial dominated the state conventions which ratified the Constitution and eventually led to the solemn reaffirmation of that mode of trial in the Bill of Rights-not only for all criminal prosecutions but for all civil causes involving $20 or more. See 2 Story, Commentaries on the Constitution (5th ed. 1891), §§ 1763-1768. I find it difficult to understand how it can be maintained that the same people who manifested such great concern for trial by jury as to explicitly embed it in the Constitution for every $20 civil suit could have intended that this cherished method of trial should not be available to those threatened with long imprisonment for the crime of contempt. I am confident that if there had been any inkling that the federal courts established under the Constitution could impose heavy penalties, as they now do, for violation of their sweeping and far-ranging mandates without giving the accused a fair trial by his fellow citizens it would have provoked a storm of protest, to put it mildly. Would any friend of the Constitution have been foolhardy enough to take the floor of the ratifying convention in Virginia or any of a half dozen other States and even suggest such a possibility?
As this Court has often observed, 'The Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning,' United States v. Sprague, 282 U.S. 716, 731, 51 S.Ct. 220, 222, 75 L.Ed. 640; '* * * constitutions, although framed by conventions, are yet created by the votes of the entire body of electors in a State, the most of whom are little disposed, even if they were able, to engage in such refinements. The simplest and most obvious interpretation of a constitution, if in itself sensible, is the most likely to be that meant by the people in its adoption,' Lake County v. Rollins, 130 U.S. 662, 671, 9 S.Ct. 651, 652, 32 L.Ed. 1060. Cf. Mr. Justice Holmes in Eisner v. Macomber, 252 U.S. 189, 219-220, 40 S.Ct. 189, 197, 64 L.Ed. 521 (dissenting opinion). It is wholly beyond my comprehension how the generality of laymen, or for that matter even thoughtful lawyers, either at the end of the Eighteenth Century or today, could possibly see an appreciable difference between the crime of contempt, at least as it has now evolved, and other major crimes, or why they would wish to draw any distinction between the two so far as basic constitutional rights were concerned.
It is true that Blackstone in his Commentaries incorporated Wilmot's erroneous fancy that at common law the courts had immemorially punished all criminal contempts without regular trial. Much ado is made over this by the proponents of summary proceedings. Yet at the very same time Blackstone openly classified and uniformly referred to contempt as a 'crime' throughout his treatise, as in fact it had traditionally been regarded and punished at common law. Similarly, other legal treatises available in this country during the period when the Constitution was established plainly treated contempt as a 'crime.' It seems to me that if any guide to the meaning of the Constitution can be fashioned from the circulation of the Commentaries and these other legal authorities through the former colonies (primarily among lawyers and judges) it is at least as compatible with the view that the Constitution requires a jury trial for criminal contempts as with the contrary notion.
But far more significant, our Constitution and Bill of Rights were manifestly not designed to perpetuate, to preserve inviolate, every arbitrary and oppressive governmental practice then tolerated, or thought to be, in England. Cf. Bridges v. State of California, 314 U.S. 252, 263-268, 62 S.Ct. 190, 194-196, 86 L.Ed. 192. Those who formed the Constitution struck out anew free of previous shackles in an effort to obtain a better order of government more congenial to human liberty and welfare. It cannot be seriously claimed that they intended to adopt the common law wholesale. They accepted those portions of it which were adapted to this country and conformed to the ideals of its citizens and rejected the remainder. In truth there was widespread hostility to the common law in general and profound opposition to its adoption into our jurisprudence from the commencement of the Revolutionary War until long after the Constitution was ratified. As summarized by one historian:
'The Revolutionary War made everything connected with the law of England distasteful to the people at large. The lawyers knew its value: the community did not. Public sentiment favored an American law for America. It was quickened by the unfriendly feeling toward the mother country which became pronounced toward the close of the eighteenth century and culminated in the War of 1812.'
Although the bench and bar, particularly those who were adherents to the principles of the Federalist Party, often favored carrying forward the common law to the fullest possible extent popular sentiment was overwhelmingly against them.
Apologists for summary trial of the crime of contempt also endeavor to justify it as a 'necessity' if judicial orders are to be observed and the needful authority of the courts maintained. 'Necessity' is often used in this context as convenient or desirable. But since we are dealing with an asserted power which derogates from and is fundamentally inconsistent with our ordinary, constitutionally prescried methods of proceeding in criminal cases, 'necessity,' if it can justify at all, must at least refer to a situation where the extraordinary power to punish by summary process is clearly indispensable to the enforcement of court decrees and the orderly administration of justice. Or as this Court has repeatedly phrased it, the courts in punishing contempts should be rigorously restricted to the 'least possible power adequate to the end proposed.' See, e.g., In re Michael, 326 U.S. 224, 227, 66 S.Ct. 78, 79, 90 L.Ed. 30.
Stark necessity is an impressive and often compelling thing, but unfortunately it has all too often been claimed loosely and without warrant in the law, as elsewhere, to justify that which in truth is unjustifiable. As one of our great lawyers, Edward Livingston, observed in proposing the complete abolition of summary trial of criminal contempts:
'Not one of the oppressive prerogatives of which the crown has been successively stripped, in England, but was in its day, defended on the plea of necessity. Not one of the attempts to destroy them, but was deemed a hazardous innovation.'
When examined in closer detail the argument from 'necessity' appears to rest on the assumption that the regular criminal processes, including trial by petit jury and indictment by grand jury, will not result in conviction and punishment of a fair share of those guilty of violating court orders, are unduly slow and cumbersome, and by intervening between the court and punishment for those who disobey its mandate somehow detract from its dignity and prestige. Obviously this argument reflects substantial disrespect for the institution of trial by jury, although this method of trial is-and has been for centuries-an integral and highly esteemed part of our system of criminal justice enshrined in the Constitution itself. Nothing concrete is ever offered to support the innuendo that juries will not convict the same proportion of those guilty of contempt as would judges. Such evidence as is available plus my own experience convinces me that by and large juries are fully as responsible in meting out justice in criminal cases as are the judiciary. At the same time, and immeasurable more important, trial before a jury and in full compliance with all of the other protections of the Bill of Rights is much less likely to result in a miscarriage of justice than summary trial by the same judge who issued the order allegedly violated.
Although some are prone to overlook it, an accused's right to trial by a jury of his fellow citizens when charged with a serious criminal offense is unquestionably one of his most valuable and well-established safeguards in this country. In the words of Chief Justice Cooley: 'The law has established this tribunal because it is believed that, from its numbers, the mode of their selection, and the fact that jurors come from all classes of society, they are better calculated to judge of motives, weigh probabilities, and take what may be called a common sense view of a set of circumstances, involving both act and intent, than any single man, however pure, wise and eminent he may be. This is the theory of the law; and as applied to criminal accusations, it is eminently wise, and favorable alike to liberty and to justice.' People v. Garbutt, 17 Mich. 9, 27. Trial by an impartial jury of independent laymen raises another imposing barrier to oppression by government officers. As one of the more perceptive students of our experiment in freedom keenly observed, 'The institution of the jury . . . places the real direction of society in the hands of the governed, or of a portion of the governed, and not in that of the government.' 1 De Tocqueville, Democracy in America (Reeve trans., 1948 ed.), 282. The jury injects a democratic element into the law. This element is vital to the effective administration of criminal justice, not only in safeguarding the rights of the accused, but in encouraging popular acceptance of the laws and the necessary general acquiescence in their application. It can hardly be denied that trial by jury removes a great burden from the shoulders of the judiciary. Martyrdom does not come easily to a man who has been found guilty as charged by twelve of his neighbors and fellow citizens.
It is undoubtedly true that a judge can dispose of charges of criminal contempt faster and cheaper than a jury. But such trifling economies as may result have not generally been thought sufficient reason for abandoning our great constitutional safeguards aimed at protecting freedom and other basic human rights of incalculable value. Cheap, easy convictions were not the primary concern of those who adopted the Constitution and the Bill of Rights. Every procedural safeguard they established purposely made it more difficult for the Government to convict those it accused of crimes. On their scale of values justice occupied at least as high a position as economy. But even setting this dominant consideration to one side, what compelling necessity is there for special dispatch in punishing criminal contempts, especially those occurring beyond the courtroom? When the desired action or inaction can no longer be compelled by coercive measures and all that remains is the punishment of past sins there is adequate time to give defendants the full benefit of the ordinary criminal procedures. As a matter of fact any slight delay involved might well discourage a court from resorting to hasty, unnecessary measures to chastise suspected disobedience. I believe that Mr. Justice Holmes, speaking for himself and Mr. Justice Brandeis, took his stand on invulnerable ground when he declared that where 'there is no need for immediate action contempts are like any other breach of law and should be dealt with as the law deals with other illegal acts.' Toledo Newspaper Co. v. United States, 247 U.S. 402, 425-426, 38 S.Ct. 560, 566, 62 L.Ed. 1186 (dissenting opinion).
For almost a half century the Clayton Act has provided for trial by jury in all cases of criminal contempt where the alleged contempt is also a violation of a federal criminal statute. And since 1931 the Norris-LaGuardia Act, 29 U.S.C.A. § 101 et seq., has granted the same right where a charge of criminal contempt is based on the alleged violation of an injunction issued in a labor dispute. of calamity and destruction of the of clamity and destruction of the judicial system which preceded, accompanied and briefly followed these reforms, there is no indication whatever that trial by jury has impaired the effectiveness or authority of the courts in these important areas of the law. Furthermore it appears that in at least five States one accused of the crime of contempt is entitled, at least to some degree to demand jury trial where the alleged contempt occurred beyond the courtroom. Again, I am unable to find any evidence, or even an assertion, that judicial orders have been stripped of their efficacy or courts deprived of their requisite dignity by the intervention of the jury in those States. So far as can be discerned the wheels of justice have not ground to a halt or even noticeably slowed. After all the English courts apparently got on with their business for six or seven centuries without any general power to try charges of criminal contempt summarily.
I am confident that in the long run due respect for the courts and their mandates would be much more likely if they faithfully observed the procedures laid down by our nationally acclaimed charter of liberty, the Bill of Rights. Respect and obedience in this country are not engendered-and rightly not-by arbitrary and autocratic procedures. In the end such methods only yield real contempt for the courts and the law. The classic example of this is the use and abuse of the injunction and summary contempt power in the labor field. The federal courts have still not recovered from the scars inflicted by their intervention in that area where Congress finally stepped in and preserved the right of jury trial to all those charged with the crime of contempt.
In the last analysis there is no justification in history, in necessity, or most important in the Constitution for trying those charged with violating a court's decree in a manner wholly different from those accused of disobeying any other mandate of the state. It is significant that neither the Court nor the Government makes any serious effort to justify such differentiation exept that it has been sanctioned by prior decisions. Under the Constitution courts are merely one of the coordinate agencies which hold and exercise governmental power. Their decrees are simply another form of sovereign directive aimed at guiding the citizen's activity. I can perceive nothing which places these decrees on any higher or different plane than the laws of Congress or the regulations of the Executive insofar as punishment for their violation is concerned. There is no valid reason why they should be singled out for an extraordinary and essentially arbitrary mode of enforcement. Unfortunately judges and lawyers have told each other the contrary so often that they have come to accept it as the gospel truth. In my judgment trial by the same procedures, constitutional and otherwise, which are extended to criminal defendants in all other instances is also wholly sufficient for the crime of contempt.

## Notes

* ↑ The term 'summary proceeding' (or 'summary trial') is used in its ordinary sense to refer to a 'form of trial in which the ancient established course of legal proceedings is disregarded, especially in the matter of trial by jury, and, in the case of the heavier crimes, presentment by a grand jury.' 3 Bouv.Law Dict., Rawle's Third Revision, p. 3182. Of course as the law now stands contempts committed in the presence of the judge may be punished without any hearing or trial at all, summary or otherwise. For a flagrant example see Sacher v. United States, 343 U.S. 1, 72 S.Ct. 451, 96 L.Ed. 717.
* ↑ State ex rel. Ashbaugh v. Circuit Court, 97 Wis. 1, 8, 72 N.W. 193, 194-195, 38 L.R.A. 554.
* ↑ The precedents are adequately collected in note 14 of the Court's opinion.
* ↑ 'I * * * am quite willing that it be regarded hereafter as the law of this court, that its opinion upon the construction of the Constitution is always open to discussion when it is supposed to have been founded in error, and that its judicial authority should hereafter depend altogether on the force of the reasoning by which it is supported.' Chief Justice Taney, Passenger Cases (Smith v. Turner), 7 How. 283, 470, 12 L.Ed. 702 (dissenting opinion).
* ↑ Frankfurter and Landis, Power to Regulate Contempts, 37 Harv.L.Rev. 1010, 1011.
* ↑ Perhaps the classic example is the much criticized decision in In re Debs, 158 U.S. 564, 15 S.Ct. 900, 39 L.Ed. 1092. For some of the milder comment see Lewis, A Protest Against Administering Criminal Law by Injunction-The Debs Case, 42 Am.L.Reg. 879; Lewis, Strikes and Courts of Equity, 46 Am.L.Reg. 1; Dunbar, Government by Injunction, 13 L.Q.Rev. 347; Gregory, Government by Injunction, 11 Harv.L.Rev. 487.
* ↑ E.g., see Beauharnais v. People of State of Illinois, 343 U.S. 250, 72 S.Ct. 725, 96 L.Ed. 919; Perez v. Brownell, 356 U.S. 44, 78 S.Ct. 568.
* ↑ A series of recent cases in this Court alone indicates that the personal emotions or opinions of judges often become deeply involved in the punishment of an alleged contempt. See, e.g., Fisher v. Pace, 336 U.S. 155, 69 S.Ct. 425, 93 L.Ed. 569; Sacher v. United States, 343 U.S. 1, 72 S.Ct. 451, 96 L.Ed. 717; Offutt v. United States, 348 U.S. 11, 75 S.Ct. 11, 99 L.Ed. 11; Nilva v. United States, 352 U.S. 385, 77 S.Ct. 431, 1 L.Ed.2d 415; Yates v. United States, 355 U.S. 66, 78 S.Ct. 128, 2 L.Ed.2d 95.
* ↑ Oswald, Contempt of Court (3d ed. 1911), 6.
* ↑ See 356 U.S. 202-213, 78 S.Ct. at pages 653 to 658, infra.
* ↑ In accordance with established usage 18 U.S.C. § 1, 18 U.S.C.A. § 1, defines a felony as any 'offense punishable by death or imprisonment for a term exceeding one year.' By this standard the offense of contempt is not only a crime, but a felony-a crime of the gravest and most serious kind.
* ↑ City of New Orleans v. The Steamship Co., 20 Wall. 387, 392, 22 L.Ed. 354 ('Contempt of court is a specific criminal offence.'). And see Michaelson v. United States ex rel. Chicago, St. P., M. & O.R. Co., 266 U.S. 42, 66-67, 45 S.Ct. 18, 20, 69 L.Ed. 162; Pendergast v. United States, 317 U.S. 412, 417-418, 63 S.Ct. 268, 270, 87 L.Ed. 368.
* ↑ 18 U.S.C. § 3146, 18 U.S.C.A. § 3146.
* ↑ One scholar has argued that even contempts in the face of the courts were tried by jury after indictment by grand jury until the reign of Elizabeth I. Solly-Flood, Prince Henry of Monmouth and Chief Justice Gascoign, 3 Transactions of the Royal Historical Society (N.S.) 47. Although agreeing that contempts in facie were often tried by a jury up to and beyond this period, Fox takes the view that such contempts, were also punishable by summary procedures from the early common law.
* ↑ In passing it is interesting to note that even Wilmot felt obliged to bolster his position by pointing to the fact that a defendant, under a notion then prevalent, could exonerate himself from a charge of contempt by fully denying the charges under oath. In this event he could only be prosecuted for false swearing in which case he was entitled, as Wilmot elaborately observes, to trial by jury. See Curtis and Curtis, The Story of a Notion in the Law of Criminal Contempt, 41 Harv.L.Rev. 51.
* ↑ Fox, The History of Contempt of Court, VII.
* ↑ Id., at 116-117. See also, id., at 3-4, 13, 54-55, 71-72, 89.
* ↑ Power to Regulate Contempts, 37 Harv.L.Rev. 1010, 1042, 1046.
* ↑ Contempt of Court, Criminal and Civil, 21 Harv.L.Rev. 161, 169-170, 174.
* ↑ See United States v. Thompson, 2 Cir., 214 F.2d 545; United States v. Hall, 2 Cir., 198 F.2d 726.
* ↑ Although records of the colonial era are extremely fragmentary and inaccessible apparently such contempts as existed were not the subject of major punishment in that period. From the scattered reported cases it appears that alleged offenders were let off after an apology, a reprimand or a small fine or other relatively slight punishment. I have found no instance where anyone was unconditionally imprisoned for even a term of months, let alone years, during that ear when extremely harsh penalties were otherwise commonplace.
* ↑ The following are merely random samples of important and far-reaching federal regulatory Acts now in effect under which a violation of any provision of the Act is not only a statutory crime punishable as such but also may be enjoined at the Government's request and punished as a criminal contempt by summary process if the injunction is disobeyed. Securities Exchange Act, 48 Stat. 900, 15 U.S.C. § 78u, 15 U.S.C.A. § 78u; Natural Gas Act, 52 Stat. 832, 15 U.S.C. § 717s, 15 U.S.C.A. § 717s; Fair Labor Standards Act, 52 Stat. 1069, 29 U.S.C. § 217, 29 U.S.C.A. § 217; Atomic Energy Act, 68 Stat. 959, 42 U.S.C. (Supp. IV) § 2280, 42 U.S.C.A. § 2280; Federal Communications Act, 48 Stat. 1092, 47 U.S.C. § 401, 47 U.S.C.A. § 401; Defense Production Act of 1950, 64 Stat. 817, 50 U.S.C.App. § 2156, 50 U.S.C.A. Appendix, § 2156.
* ↑ As early as 1765 delegates from nine colonies meeting in New York declared in a Declaration of Rights that trial by jury was the 'inherent and invaluable right' of every colonial. 43 Harvard Classics 147, 148.
* ↑ In 1775 Jefferson protested: '(Parliament has) extended the jurisdiction of the courts of admiralty beyond their ancient limits thereby depriving us of the inestimable right of trial by jury in cases affecting both life and property and subjecting both to the decision arbitrary decision (sic) of a single and dependent judge.' 2 Journals of the Continental Congress (Ford ed.) 132.
* ↑ Although Section 17 of the Judiciary Act of 1789, 1 Stat. 73, 83, authorized the federal courts to punish contempts 'in any cause or hearing before the same,' it did not, as this Court has pointed out, define what were contempts or prescribe the method of punishing them. Ex parte Savin, 131 U.S. 267, 275, 9 S.Ct. 699, 701, 33 L.Ed. 150. Section 17, which contains a number of other provisions, appears to have been a comparatively insignificant provision of the judicial code enacted by the Congress without material discussion in the midst of 34 other sections, many of which were both extremely important and highly controversial.
* ↑ See, e.g., 4 Blackstone's Commentaries 1-6, 119-126, 280 287. Also pertinent here is Blackstone's oft-quoted laudation of trial by jury 'as the glory of the English law. . . . (I)t is the most transcendent privilege which any subject can enjoy, or wish for, that he cannot be affected either in his property, his liberty, or his person, but by the unanimous consent of twelve of his neighbours and equals.' 3 id., at 379.
* ↑ See, e.g., 1 Hawkins, Pleas of the Crown (6th ed. 1787), 87.
* ↑ Baldwin, The American Judiciary, 14.
* ↑ In 1804 the Chief Justice and two Associate Justices of the Pennsylvania Supreme Court were actually impeached for sentencing a person to jail for contempt. In part the impeachment rested on the feeling that punishment of contempt by summary process was an arbitrary practice of the common law unsuited to this country. While the Justices were narrowly acquitted this apparently only aggravated popular antagonism toward the contempt power. See 3 McMaster, History of the People of the United States (1938 ed.), 153-162.
* ↑ 1 Works of Edward Livingston 264.
* ↑ See, e.g., Sunderland, Trial by Jury, 11 Univ. of Cin.L.Rev. 119, 120; Hartshorne, Jury Verdicts: A Study of Their Characteristics and Trends, 35 A.B.A.J. 113.
* ↑ See Ex parte Milligan, 4 Wall. 2, 122-123, 18 L.Ed. 281; Thompson v. State of Utah, 170 U.S. 343, 349-350, 18 S.Ct. 620, 622, 42 L.Ed. 1061; Dimick v. Schiedt, 293 U.S. 474, 485-486, 55 S.Ct. 296, 300-301, 79 L.Ed. 603; United States ex rel. Toth v. Quarles, 350 U.S. 11, 16, 18-19, 76 S.Ct. 1, 4, 5-6, 100 L.Ed. 8; The Federalist, No. 83 (Hamilton); 2 Story, Commentaries on the Constitution of the United States, 544; 2 Wilson's Works (Andrews ed. 1896) 222.
* ↑ Again this case aptly demonstrates the point. Here the defendants surrendered several years after they had been ordered to appear and serve their sentences. There was no reason for urgent action to punish them for their absence, there was ample time to impanel a jury and prosecute them in the regular manner. As a matter of fact almost a month and a half did elapse between their surrender and trial.
* ↑ 38 Stat. 738-739, as amended, 18 U.S.C. §§ 402, 3691, 18 U.S.C.A. §§ 402, 3691.
* ↑ 47 Stat. 72, 18 U.S.C. § 3692, 18 U.S.C.A. § 3692.
* ↑ Arizona, Rev.Stat.Ann.1956, § 12-863; Georgia, Code Ann.1935, § 24-105; Kentucky, Rev.Stat.Ann.1955, § 432.260; Oklahoma, Stat.Ann. Tit. 21, § 567; Pennsylvania, Purdon's Stat.Ann. Tit. 17, § 2047.
* ↑ See Brown, Whence Come These Sinews? 12 Wyo.L.J. 22.
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