Eagle River review. [volume] (Eagle River, Wis.) 1890-1927, 1923-12-06
BY JOHN H. PERRY


The decision of Judge Mayer in SEN
fencing Comptroller Craig of the City
of New York to jail for a so-called
constructive contempt is far more i'm
portant than merely the fact that
Mr. Craig in this particular instance
will have to sleep in a Jersey prison
for sixty days unless President Coo
lidge sees fit to grant a pardon
1t is more important because of the
fact that such a condition exists in
our government that permits or toll
crates one of the branches, namely,
the Judiciary, to usurp power that
was NEVER INTENDED to be grant,
ed to the courts BY THE PEOPLE
themselves. A power that abridges
our Constitutional guarantee of a
free press and free speech.
Between 1900 and 1881, the United
States Courts attempted to inflict
punishment in the form of fines and
Imprisonment against citizens publish
ing articles which the courts held
should not have been published and
during that period seven very impor-
tant contempt cases were held before
the seven respective Judges who had
been the subject of CRITICISM, and,
of course, in each instance the court
acting as Prosecutor, Judge, Jury and
Executioner, found the accused" gull
ty and fined and imprisoned the Con
temnOr.
This resulted in such a storm of
disapproval on the part of the people
that in 1881 James Buchanan CATER
wards President) introduced in Con-
gress a law which was aimed at the
adjustment of the POWER of the
FEDERAL COURTS to punish for
constructive Contempt that is, Con
tempt committed out Of the PRES
ENCE of the court.
The act of March End, 1881, which
limited or was supposed to limit the
power of Federal Courts, provided as
follows:
That the power Of the several courts
of the United States to issue attach
ments and inflict summary punish
ment for contempt of court SHALL
NOT BE CONSTRUED TO EXTEND
TO ANY CASES except the misbe-
havior of any person or persons in
the PRESENCE of said courts, or SO
near thereto as to obstruct the adj
ministration of Justice
The Supreme Court of the U. S.
sustained the CONSTITUTIONAL
ITY of this act in Elk parte Robinson
10Th Wall sos, in the following lang
uage:
THE act, in terms, applies to all
courts; whether it can be held to limit
the Supreme Court, which derives its
existance and powers from the CON
STITUTION, may perhaps be mat
ter of doubt But that it applies to Gu.
50 Circuit and District Courts, there
IL. L
CREATED by ACT OF CONGRESS.
Their powers and duties depend upon
the act calling them into existence
or subsequent acts extending or linn
iting their jurisdiction. The act of
1881 is therefore to them the law
specifying the cases in which sum-
;,1,r a
be inflicted, AS thus seen, the
power of these Courts in the punish
ment Of contempts can only be ex-
ercised to insure order and decorum
in their PRESENCE
When the act of Congress was
passed, it was asserted amid great ap-
pause that never in the future history
of America would any, Federal Judge
dare to usurp any such power as that
of summarily punishming for con-
structive contempt.
Thus, since 1881, no Federal Court
has ever attempted to assume such
power until the year 1914, when a
Federal Judge in Ohio did assume
such authority in the case against Ne
gley Cochran, editor of the Toledo
News-Bee, and, despite the very plain
terms and intent of the act of March
End, 1881, the decision was upheld by
the United States Supreme Court by
majority opinion.
Hence, our Federal Courts have tax
en- the very act of Congress, which
was intended to forever prohibit Fed
eral Judges from Furnishing for Con-