United States v. Railroad Barnett/Opinion of the Court

by Tom C. Clark

United States Supreme Court

376 U.S. 681

United States  v.  Railroad Barnett

 Argued: Oct. 21 and 22, 1963. --- Decided: April 6, 1964

This proceeding in criminal contempt was commenced by the United States upon the specific order, sua sponte, of the Court of Appeals for the Fifth Circuit. oss R. Barnett, Governor of the State of Mississippi at the time this action arose, ^[1] and Paul B. Johnson, Jr., Lieutenant Governor, stand charged with willfully disobeying certain restraining orders issued, or directed to be entered, by that court. Governor Barnett and Lieutenant Governor Johnson moved to dismiss, demanded a trial by jury and filed motions to sever and to strike various charges. The Court of Appeals, being evenly divided on the question of right to jury trial, has certified the question ^[2] to this Court under the authority of 28 U.S.C. § 1254(3), 330 F.2d 369. We pass only on the jury issue and decide that the alleged contemners are not entitled to a jury as a matter of right.

The proceeding is the aftermath of the efforts of James Meredith, a Negro, to attend the University of Mississippi. Meredith sought admission in 1961 and, upon refusal, filed suit in the United States District Court for the Southern District of Mississippi. 202 F.Supp. 224. That court denied relief, but the Court of Appeals reversed and directed the District Court to grant the relief prayed for. Meredith v. Fair, 5 Cir., 305 F.2d 343. The mandate was stayed by direction of a single judge of the Court of Appeals, whereupon, on July 27, 5 Cir., 306 F.2d 374, the Court of Appeals set aside the stay, recalled the mandate, amended and reissued it, including its own injunctive order 'enjoining and compelling' the Board of Trustees, officials of the University and all persons having knowledge of the decree to admit Meredith to the school. On the following day the Court of Appeals entered a separate and supplemental 'injunctive order' directing the same parties to admit Meredith and to refrain from any act of discrimination relating to his admission or continued attendance. By its terms, this order was to remain in effect 'until such time as there has been full and actual compliance in good faith with each and all of said orders by the actual admission of (Meredith) * * *.' After a series of further delays, the District Court entered its injunction on September 13, 1962, directing the members of the Board of Trustees and the officials of the University to register Meredith.

When it became apparent that the decrees might not be honored, the United States applied to the Court of Appeals on September 18 for permission to appear in the Court of Appeals in the case. This application was granted in the following terms:

'IT IS ORDERED that the United States be designated and authorized to appear and participate as amicus curiae in all proceedings in this action before this Court and by reason of the mandates and orders of this Court of July 27, 28, 1962, and subsequently thereto, also before the District Court for the Southern District of Mississippi to accord each court the benefit of its views and recommendations, with the right to submit pleadings, evidence, arguments and briefs and to initiate such further proceedings, including proceedings for injunctive relief and proceedings for contempt of court, as may be appropriate in order to maintain and preserve the due administration of justice and the integrity of the judicial processes of the United States.'

Meanwhile, the Mis issippi Legislature had adopted an emergency measure in an attempt to prevent Meredith from attending the University, but on September 20, upon the Government's application, the enforcement of this Act was enjoined, along with two state court decrees barring Meredith's registration. On the same day Meredith was rebuffed in his efforts to gain admission. Both he and the United States filed motions in contempt in the District Court citing the Chancellor, the Registrar and the Dean of the College of Liberal Arts. After a hearing they were acquitted on the ground that the Board of Trustees had stripped them of all powers to act on Meredith's application and that such powers were in Governor Barnett, as agent of the Board.

The United States then moved in the Court of Appeals for a show-cause order in contempt against the Board of Trustees, based on the order of that court dated July 28. An en banc hearing was held at which the Board indicated that it was ready to admit Meredith, and on September 24 the court entered an order requiring the Board to revoke its action appointing Governor Barnett to act as its agent. The order also required the Registrar, Robert B. Ellis, to be available on September 25 to admit Meredith.

On the evening of September 24, the United States filed an ancillary action to the Meredith v. Fair litigation seeking a temporary restraining order against the State of Mississippi, Governor Barnett, the Attorney General of Mississippi, the Commissioner of Public Safety and various lesser officials. This application specifically alleged that the Governor had implemented the State's policy of massive resistance to the court's orders, by personal action, as well as by use of the State's various agencies, to frustrate and destroy the same; that the Governor's action would result in immediate and irreparable injury to the United States, consisting of impairment of the integrity of its judicial processes, obstruction of the administration of justice and deprivation of Meredith's declared rights under the Constitution and laws of the United States. On the basis of such allegations and at the specific instance of the United States as the sole moving party and on its own behalf, the Court of Appeals issued a temporary restraining order at 8:30 a.m. on the 25th against each of these parties restraining them from performing specific acts set out therein and from interfering with or obstructing by any means its order of July 28 and that of the District Court of September 13. Thereafter the United States filed a verified application showing that on the afternoon of the 25th Governor Barnett, 'having actual knowledge of * * * (the temporary restraining order), deliberately prevented James H. Meredith from entering the office of the Board of Trustees * * * at a time when James H. Meredith was seeking to appear before Robert B. Ellis in order to register * * * and that by such conduct Ross R. Barnett did wilfully interfere with and obstruct James H. Meredith in the enjoyment of his rights under this Court's order of July 28, 1962 * * * all in violation of the terms of the temporary restraining order entered by the Court this day.' The court then entered a show-cause order in contempt against Governor Barnett requiring him to appear on September 28. On September 26, a similar order was issued against Lieutenant Governor Johnson requiring him to appear on September 29. On September 28, the Court of Appeals, en banc and after a hearing, found the Governor in civil contempt and directed that he be placed in the custody of the Attorney General and pay a fine of $10,000 for each day of his recalcitrance, unless he purged himself by October 2. On the next day Lieutenant Governor Johnson was found in contempt by a panel of the court and a similar order was entered with a fine of $5,000 a day.

On September 30, President Kennedy issued a proclamation commanding all persons engaged in the obstruction of the laws and the orders of the courts to 'cease and desist therefrom and to disperse an retire peaceably forthwith.' No. 3497, 76 Stat. 1506. The President also issued an Executive Order, No. 11053, dispatching a force of United States Marshals and a detachment of the armed forces to enforce the court's orders. On September 30, Meredith, accompanied by the Marshals, was moved into a dormitory on the University campus and was registered the next day. Although rioting broke out, order was soon restored, with some casualties, and Meredith carried on his studies under continuous guard until his graduation.

On November 15, 1962, the Court of Appeals, sua sponte, appointed the Attorney General or his designated assistants to prosecute this criminal contempt proceeding against the Governor and Lieutenant Governor pursuant to Rule 42(b) of the Federal Rules of Criminal Procedure. On application of the Attorney General, the Court of Appeals issued a show-cause order in criminal contempt based on the Court of Appeals' temporary restraining order of September 25, its injunctive order of July 28, and the District Court's order of September 13. It is out of this proceeding that the certified question arises.

As we have said, the sole issue before us is whether the alleged contemners are entitled as a matter of right to a jury trial on the charges. We consider this issue without prejudice to any other contentions that have been interposed in the case and without any indication as to their merits.

The First Congress in the Judiciary Act of 1789 conferred on federal courts the power 'to punish by fine or imprisonment, at the discretion of said courts, all contempts of authority in any cause or hearing before the same * * *.' 1 Stat. 83. It is undisputed that this Act gave federal courts the discretionary power to punish for contempt as that power was known to the common law. In re Savin, 131 U.S. 267, 275-276, 9 S.Ct. 699, 701, 33 L.Ed. 150 (1889). In 1831, after the unsuccessful impeachment proceedings against Judge Peck, ^[3] the Congress restricted the power of federal courts to inflict summary punishment for contempt to misbehavior 'in the presence of the said court, or misbehavior so near thereto as to obstruct the administration of justice,' misbehavior of court officers in official matters, and disobedience or resistance by any person to any lawful writ, process, order, rule, decree, or command of the courts. Act of March 2, 1831, c. 99, 4 Stat. 487, 488. These provisions are now codified in 18 U.S.C. § 401 without material difference. ^[4] The Court of Appeals proceeded in this case under the authority of this section.

The alleged contemners claim, however, that the powers granted federal courts under § 401 were limited by the Congress in 1914 by the provisions of §§ 21, 22 and 24 of the Clayton Act, 38 Stat. 738-740, now codified as 18 U.S.C. §§ 402 and 3691. These sections guarantee the right to a jury trial in contempt proceedings arising out of disobedience to orders 'of any district court of the United States or any court of the District of Columbia,' provided that the conduct complained of also constitutes a criminal offense under the laws of the United States or of any State. But the Clayton Act further provides that the requirement of a jury does not apply to 'contempts committed in disobedience of any lawful writ, process, order, rule, decree, or command entered in any suit or action brought or prosecuted in the name of, or on behalf of, the United States, but the same, and all other cases of contempt not specifically embraced in this section may be punished in conformity to the prevailing usages at law.' 18 U.S.C. § 402. Rule 42(b) of the Federal Rules of Criminal Procedure thereafter set down the procedural requirements for all contempt actions, providing that '(t)he defendant is entitled to a trial by jury in any case in which an act of Congress so provides.'

We now proceed to a consideration of the claim of a right to trial by jury under these statutes and under the Constitution of the United States.

Governor Barnett and Lieutenant Governor Johnson first contend that the record clearly shows that the United States invoked the proceedings taken by the Court of Appeals and sought that court out as a source of orders, duplicating the orders obtained by the real party in interest in the District Court, solely for the purpose of by-passing the District Court and depriving them of their right to a jury. We find no evidence of this. Indeed, the Court of Appeals granted injunctive relief only after it had jurisdiction over Meredith's appeal, after it had acted upon that appeal and after its order was being frustrated.

Next it is contended that the Court of Appeals had no jurisdiction in the matter since its mandate had been issued and the case had been remanded to the District Court. ^[5] On a certificate we do not pass on alleged irregularities in the proceedings in the court below, as such contentions are clearly premature. ^[6]

The alleged contemners next assert that § 402 is applicable. They urge that since § 402 gives a jury trial to those charged with contempt in 'any court of the District of Columbia,' this would include the Court of Appeals for the District of Columbia. They argue from this that the section must be constru d to apply to all other Courts of Appeals to avoid manifest discrimination which the Due Process Clause of the Fifth Amendment prohibits and to comply with the Privileges and Immunities Clause of Art. IV, § 2 of the Constitution. We are not persuaded. At the time that the Clayton Act was adopted, the trial court of general jurisdiction in the District of Columbia was known as the 'Supreme Court of the District of Columbia' rather than the United States District Court. Moreover, there were also inferior courts there known as the municipal and police courts and now called the 'District of Columbia Court of General Sessions.' Since none of these trial courts of the District would have been included in the designation 'any district court of the United States,' the insertion of 'any court of the District of Columbia' was necessary to adapt the bill to the judicial nomenclature of the District of Columbia. It is hardly possible to suppose that the House, where this phrase was inserted without explanation, was somehow by this language reversing the decision to exclude appellate courts from the jury requirements. ^[7] This is shown by the legislative history of the bill when discussed in the Senate, 51 Cong.Rec. 14414, where it was made explicit that the bill 'applies * * * only to orders of the district courts; contempts of orders of all other courts must be had as now.'

Nor can we conclude from the record here that the show-cause order directed by the Court of Appeals to the alleged contemners must be construed as being founded upon violations of the District Court's injunction of September 13, entered upon the specific order of the Court of Appeals. The show-cause order specifies that three injunctions were violated, i.e., the original one of the Court of Appeals of July 28 directing Meredith's admission; the District Court's aforesaid order of September 13 which generally embodied the same terms; and the injunction of September 25 directed at the alleged contemners. The claim is, first, that the District Court's order of September 13 superseded the earlier Court of Appeals order of July 28, and that the September 25 order of the Court of Appeals was without significance since it added nothing to the earlier orders except to specifically name the alleged contemners. But it can hardly be said that there was a supersession, since the July 28 order specifically retained jurisdiction. Nor is the September 25 order of no significance, as it is the principal order upon which the alleged contemners' contemptuous conduct is predicated. Moreover, it may be that on trial the Court of Appeals will limit the charge to its own orders. Secondly, it is said that, since the contempt motion includes an order of the District Court, the requirements of § 402 and 3691 make a jury necessary. It would be anomalous for a Court of Appeals to have the power to punish contempt of its own orders without a jury, but to be rendered impotent to do so when the offensive behavio happens to be in contempt of a District Court order as well. We are unable to attribute to Congress an intent to award favored treatment to a person who is contemptuous of two or three orders instead of only one. ^[8]

Finally, it is urged that those charged with criminal contempt have a constitutional right to a jury trial. ^[9] This claim has been made and rejected here again and again. Only six years ago we held a full review of the issue in Green v. United States, 356 U.S. 165, 78 S.Ct. 632, 2 L.Ed.2d 672 (1958). We held there that '(t)he statements of this Court in a long and unbroken line of decisions involving contempts ranging from misbehavior in court to disobedience of court orders establish beyond peradventure that criminal contempts are not subject to jury trial as a matter of constitutional right.' At 183 of 356 U.S., at 643 of 78 S.Ct., 2 L.Ed.2d 672. Nor can it be said with accuracy that these cases were based upon historical error. It has always been the law of the land, both state and federal, that the courts-except where specifically precluded by statute-have the power to proceed summarily in contempt matters. There were, of course, statutes enacted by some of the Colonies which provided trivial punishment in specific, but limited, instances. Some statutes concerned the contempt powers of only certain courts or minor judicial officers. Others concerned specific offenses such as swearing in the presence of officials or the failure of a witness or juror to answer a summons.

But it cannot be said that these statutes set a standard permitting exercise of the summary contempt power only for offenses classified as trivial. Indeed, the short answer to this contention is the Judiciary Act of 1789 which provided that the courts of the United States shall have power to 'punish by fine or imprisonment, at the discretion of said courts, all contempts of authority in any cause or hearing before the same.' ^[10] It will be remembered that this legislation was enacted by men familiar with the new Constitution. Madison urged passage of the act in the House and five of the eight members of the Senate Committee which recommended adoption, were also delegates to the Constitutional Convention of 1787. 1 Annals of Congress 18, 812-813. It is also asserted that a limitation upon the summary contempt power is to be inferred from the fact that subsequent statutes of some of the States had limitation provisions on punishment for contempts. But our inquiry concerns the standard prevailing at the time of the adoption of the Constitution, not a score or more years later. Finally, early cases have been ferreted out, but not one federal case has been found to support the theory that courts, in the exercise of their summary contempt powers, were limited to trivial offenses. ^[11] On the contrary, an 1801 opinion in the case of United States v. Duane, 25 Fed.Cas. page 920, No. 14,997, had this significant language:

'But though the court have power to punish at discretion, it is far from their inclination to crush you, by an oppressive fine, or lasting imprisonment. (Emphasis supplied.) They hope and believe offences of this kind will be prevented in future by a general conviction of their destructive tendency, and by an assurance that the court possess both the power and the resolution to punish them.' At 922.

Following this holding we have at least 50 cases of this Court that support summary disposition of contempts, without r ference to any distinction based on the seriousness of the offense. We list these in the margin. ^[12] It does appear true that since 1957 the penalties imposed in cases reaching this Court have increased appreciably. But those cases did not settle any constitutional questions as to the punishment imposed.

And with reference to state cases, it is interesting to note that the State of Mississippi has recognized and enforced summary punishment for contempt for over 100 years under the authority of Watson v. Williams, 36 Miss. 331 (1858), a celebrated case that has been cited with approval in many state jurisdictions as well as in cases of this Court. See Ex parte Terry, 128 U.S. 289, 303, 9 S.Ct. 77, 79, 32 L.Ed. 405 (1888), and In re Debs, 158 U.S. 564, 595, 15 S.Ct. 900, 910, 39 L.Ed. 1092 (1895). And just one year before we decided Green, supra, Mississippi specifically approved, in Young v. State, 230 Miss. 525, 528, 93 So.2d 452 (1957), its previous holding that the 'overwhelming weight of authority is that in such cases (contempt) they (the defendants) were not entitled to a jury trial.' O'Flynn v. State, 89 Miss. 850, 862, 43 So. 82, 83, 9 L.R.A.,N.S., 1119. ^[13]

We will make specific reference to only a few of the federal cases. as early as 1812 this Court held that '(c)ertain implied powers must necessarily result to our Courts of justice from the nature of their institution. * * * To fine for contempt-imprison for contumacy-inforce the observance of order * * *.' Mr. Justice Johnson in United States v. Hudson & Goodwin, 7 Cranch 32, 34, 3 L.Ed. 259. In the case of In re Savin, supra, 131 U.S. at 276, 9 S.Ct. at 701, 33 L.Ed. 150, the first Mr. Justice Harlan writing for the Court said: '(W)e do not doubt that the power to proceed summarily for contempt in those cases (in presence of court, in official transactions and in resistance to lawful process), remains, as under the act of 1831 * * *. It was, in effect, so adjudged in Ex parte Terry (supra, 128 U.S. at 304, 9 S.Ct. at 79, 32 L.Ed. 405).' And in Eilenbecker v. District Court, 134 U.S. 31, 10 S.Ct. 424, 33 L.Ed. 801 (1890), a contempt was based on the violation of a court order. Mr. Justice Miller said:

'If it has ever been understood that proceedings according to the common law for contempt of court have been subject to the right of trial by jury, we have been unable to find any instance of it. It has always been one of the attributes-one of the powers necessarily incident to a court of justice-that it should have this power of vindicating its dignity, of enforcing its orders, of protecting itself from insult, without the necessity of calling upon a jury to assist it in the exercise of this power.' At 36 of 134 U.S., at 426 of 10 S.Ct., 33 L.Ed.

And in 1895 Mr. Justice Brewer in In re Debs, 158 U.S. 564, 15 S.Ct. 900, 39 L.Ed. 1092, a leading authority in this Court, wrote:

'Nor is there * * * any invasion of the constitutional right of trial by jury. * * * (T)he power of a court to make an order carries with it the equal power to punish for a disobedience of that order, and the inquiry as to the question of disobedience has been, from time immemorial, the special function of the court. And this is no technical rule. In order that a court may compel obedience to its orders, it must have the right to inquire whether there has been any disobedience thereof. To submit the question of disobedience to another tribunal, be it a jury or another court, would operate to deprive the proceeding of half its efficiency.' At 594-595 of 158 U.S., at 910 of 15 S.Ct., 39 L.Ed. 1092.

Mr. Justice Holmes in an equally well known and authoritative decision for this Court, United States v. Shipp, 203 U.S. 563, 27 S.Ct. 165, 51 L.Ed. 319 (1906), upheld the power of this Court, without a jury, to punish disobedience to its orders. 'The first question,' he said, 'naturally, is that of the jurisdiction of this court. The jurisdiction to punish for a contempt is not denied as a general abstract proposition, as, of course, it could not be with success. Ex parte Robinson, 19 Wall. 505, 510, 22 L.Ed. 205, 207; Ex parte Terry, 128 U.S. 289, 302, 303 (9 S.Ct. 77, 32 L.Ed. 405.)' At 572 of 203 U.S., at 166 of 27 S.Ct., 51 L.Ed. 319. He also emphasized that '(t)he court is not a party. There is nothing that affects the judges in their own persons. Their concern is only that the law should be obeyed and enforced, and their interest is no other than that they represent in every case.' At 574 of 203 U.S., at 167 of 27 S.Ct., 51 L.Ed. 319. Since Shipp was a case of original jurisdiction in this Court, testimony was then taken before a commissioner, not a jury, 214 U.S. 386, 471, 29 S.Ct. 637, 53 L.Ed. 1041. After argument this Court adjudged the defendants guilty, 214 U.S. 386, 29 S.Ct. 637, 53 L.Ed. 1041, and sentenced some of them to prison, 215 U.S. 580, 30 S.Ct. 397, 54 L.Ed. 337.

Mr Justice Holmes also wrote another leading case in the contempt field in 1914, Gompers v. United States, 233 U.S. 604, 34 S.Ct. 693, 58 L.Ed. 1115, in which he made explicit what he left implicit in Shipp, supra:

'The inquiry was directed solely with a view to punishment for past acts, not to secure obedience for the future; and to avoid repetition it will be understood that all that we have to say concerns proceedings of this sort only, and further, only proceedings for such contempt not committed in the presence of the court.' At 606 of 233 U.S., at 693 of 34 S.Ct., 58 L.Ed. 1115.

'It is urged in the first place that contempts cannot be crimes, because, although punishable by imprisonment and therefore, if crimes, infamous, they are not within the protection of the Constitution and the Amendments giving a right to trial by jury * * *. It does not follow that contempts of the class under consideration are not crimes, or rather, * * * offenses, because trial by jury as it has been gradually worked out and fought out has been thought not to extend to them as a matter of constitutional right.' At 610 of 233 U.S., at 695 of 34 S.Ct., 58 L.Ed. 1115.

In 1919 Chief Justice White in Ex parte Hudgings, 249 U.S. 378, 39 S.Ct. 337, 63 L.Ed. 656, restated the same principle in these words:

'Existing within the limits of and sanctioned by the Constitution, the power to punish for contempt committed in the presence of the court is not controlled by the limitations of the Constitution as to modes of accusation and methods of trial generally safeguarding the rights of the citizen. * * * (The) only purpose is to secure judicial authority from obstruction in the performance of its duties to the end that means appropriate for the preservation and enforcement of the Constitution may be secured.' At 383 of 249 U.S., at 339 of 39 S.Ct., 63 L.Ed. 656.

Finally, Mr. Justice utherland in Michaelson v. United States, 226 U.S. 42, 45 S.Ct. 18, 69 L.Ed. 162 (1924), in upholding the constitutionality of the sections of the Clayton Act contained in 18 U.S.C. §§ 402 and 3691, said that these provisions were of

'* * * narrow scope, dealing with the single class where the act or thing constituting the contempt is also a crime in the ordinary sense. It does not interfere with the power to deal summarily with contempts committed in the presence of the court or so near thereto as to obstruct the administration of justice, and is in express terms carefully limited to the cases of contempt specifically defined. Neither do we think it purports to reach cases of failure or refusal to comply affirmatively with a decree-that is to do something which a decree commands * * * If the reach of the statute had extended to the cases which are excluded a different and more serious question would arise.' At 66 of 266 U.S., at 20 of 45 S.Ct., 69 L.Ed. 162. (Emphasis supplied.)

It is true that adherence to prior decisions in constitutional adjudication is not a blind or inflexible rule. This Court has shown a readiness to correct its errors even though of long standing. Still, where so many cases in both federal and state jurisdictions by such a constellation of eminent jurists over a century and a half's span teach us a principle which is without contradiction in our case law, we cannot overrule it. The statement of the High Court of Errors and Appeals of Mississippi 105 years ago in Watson v. Williams, supra, is as true and perhaps even more urgent today: ^[14]

'The power to fine and imprison for contempt, from the earliest history of jurisprudence, has been regarded as a necessary incident and attribute of a court, without which it could no more exist than without a judge. It is a power inherent in all courts of record, and coexisting with them by the wise provisions of the common law. A court without the power effectually to protect itself against the assaults of the lawless, or to enforce its orders, judgments, or decrees against the recusant parties before it, would be a disgrace to the legislation, and a stigma upon the age which invented it. In this country, all courts derive their authority from the people, and hold it in trust for their security and benefit. In this State, all judges are elected by the people, and hold their authority, in a double sense, directly from them; the power they exercise is but the authority of the people themselves, exercised through courts as their agents. It is the authority and laws emanating from the people, which the judges sit to exercise and enforce. Contempts against these courts, in the administration of their laws, are insults offered to the authority of the people themselves, and not to the humble agents of the law, whom they employ in the conduct of their government. The power to compel the lawless offender, against decency and propriety, to respect the laws of his country, and submit to their authority (a duty to which the good citizen yields hearty obedience, without compulsion) must exist, or courts and laws operate at last as a restraint upon the upright, who need no restraint, and a license to the offenders, whom they are made to subdue.' At 341-342 of 36 Miss.

The question certified to the Court is therefore answered in the negative.

Question answered in the negative.

This Appendix contains statutes and cases relevant to the punishments for ontempt imposed by colonial courts. Although the authority cited here is extensive, it does not purport to be exhaustive. Research in this period of history is hampered by the fact that complete reports of appellate decisions in most jurisdictions were not available until the nineteenth century. Reports of the colonial trial courts are even more sparse, and this has particular importance in our study, since contempt citations were usually either not appealable or not appealed.

Numerous observations could be made concerning what is set forth here. ^[15] For our present purposes, however, we need only note that we find no basis for a determination that, at the time the Constitution was adopted, contempt was generally regarded as not extending to cases of serious misconduct. Rather, it appears that the limitations which did exist were quite narrow in scope, being applicable only to a specific contempt ^[16] or to a particular type of court.

The Code of 1650, a compilation of the earliest laws and orders of the General Court of Connecticut, provided 'that whosoever doth dissorderly speake privately, during the sitting of the courte, with his neighbour' should pay 12 pence fine, 'if the courte so thinke meett,' and that whosoever revealed secrets of the General Court should forfeit 10 pounds 'and bee otherwise dealt withall, at the discretion of the courte * * *.' Code of 1650 (1822 ed.), at 40. The same Code also decreed '(t)hat whosoever shall * * * defame any courte of justice, or the sentences and proceedings of the same, or any of the magistrates or judges of any such courte, in respect of any act or sentence therein passed, and being thereof lawfully convicted in any generall courte, or courte of magistrates, shall bee punnished for the same, by fyne, imprisonment, disfranchisement, or bannishment, as the quality and measure of the offence shall deserve.' Id., at 69. This provision was carried forward through the time of the adoption of the Constitution. See Conn.Laws of 1673 (1865 ed.), at 41, and Conn.Acts and Laws (1796 ed.), at 142.

An 'Act concerning Delinquents' provided that 'if any Person or Persons upon his or their Examiantion or Trial for Delinquency, or any other Person not under Examination or Trial as aforesaid, in the Presence of any Court, shall either in Words or Actions behave contemptuously or disorderly, it shall be in the power of the Court, Assistant, or Justice to inflict such Punishment upon him or them as they shall judge most suitable to the Nature of the Offence. Provided, That no single Minister of Justice (justice of the peace, whose c iminal jurisdiction was limited to cases in which 'the Penalty does not exceed the Sum of Seven Dollars') shall inflict any other Punishment upon such Offenders than Imprisonment, binding to the Peace or good Behaviour to the next County Court, putting them in the Stocks, there to sit not exceeding two Hours, or imposing a Fine, not exceeding Five Dollars.' Conn. Acts and Laws (1796 ed.), at 143.

The first Connecticut statute we have been able to find which limited the power of all courts to inflict punishment summarily is cited in an 1824 edition of Connecticut statutes: 'If any person, in the presence of any court, shall, either by words or actions, behave contemptuously or disorderly, it shall be in the power of the court to inflict such punishment upon him, by fine or imprisonment, as shall be judged reasonable: Provided, however, that no single minister of justice shall inflict a greater fine than seven dollars, nor a longer term of imprisonment than one month; and no other court shall inflict a greater fine than one hundred dollars, nor a longer term of imprisonment than six months.' Conn.Pub.Stat.Laws, 1821 (1824 ed.), at 118-119. This statute applied only to acts of contempt committed in the presence of the court and left 'all other cases of contempt to be ascertained and punished according to the course of the common law.' Huntington v. McMahon, 48 Conn. 174, 196 (May Term, 1880). Accord, William Rogers Mfg. Co. v. Rogers, 38 Conn. 121, 123 (February Term, 1871).

The same laws also made it a contempt, punishable summarily by commitment and fine of $200, to refuse to perform or accept service of a writ of habeas corpus. Conn.Pub.Stat.Laws, 1821 (1824 ed.), at 219-220.

Records of cases in the Particular Court between 1639 and 1663 reveal several summary contempt proceedings: In 1639, Thomas Gridley was 'Censured to be whipt at Hartford and bound to his good behavior' for, inter alia, using 'contempteous words against the orders of Court * * *.' Records of the Particular Court of the Colony of Connecticut, 1639-1663, at 5. Enoch Buck was fined 10 shillings 'for irregular speeches in Court' in 1648. Id., at 60. In 1654, Will Taylor was committed to prison for an unspecified length of time for his 'Contemtuous Carriage in the Courte * * *.' Id., at 128. John Sadler was ordered imprisoned for a day and fined 40 shillings in 1655 for 'Contemptuous Carrage against the Courte and Magistrates * * *.' Id., at 152. In 1657, both parties in a case were fined 10 shillings for disorderly carriage in court. Id., at 187. In 1663, for, inter alia, 'defameing the sentence of the Court and one of the members thereof,' Edward Bartlet was ordered to prison for about 10 days and made to give 10 pounds security for his good behavior. Id., at 269. Connecticut Colony Particular Court records also indicate various fines and forfeitures, from two shillings, six pence, to four pounds, imposed on nonappearing parties and jurors between 1647 and 1654. (E.g., Thomas Sherwood fined 40 shillings 'for his contempte in not appeareing att Court uppon summons,' id., at 47.)

In 1796, Zephaniah Swift, chief justice of the Connecticut Superior Court, wrote of contempt: 'But tho all courts but assistants and justices of the peace, have an unlimitted discretionary power (emphasis supplied), yet this cannot be deemed to authorize them to inflict capital punishment. It can be supposed to extend only to fine, imprisonment, or such corporal punishment as may be suited to the nature of the offence, and according to the principles of the common law.' II Swift, A System of the Laws of Connecticut (1796), at 374.

In 1823, Swift added: 'When courts punish for contempts, committed in their presence, they must inflict a definite fine, or imprison for a certain time in the manner prescribed by the statute: but where they punish for contempts at common law, or not committed in their presence they may imprison till the further order of the court * * *.' (Emphasis supplied.) II Swift, A Digest of the Laws of Connect cut (1823), at 359.

DELAWARE.

We were unable to find any Delaware colonial statutes dealing generally with contempt. Two statutes, apparently passed during the early part of the eighteenth century, provided maximum penalties for certain types of offenses: Jurors who refused to attend could be summarily fined up to 20 shillings; and one who spoke in derogation of a court's judgment or committed any rudeness or misdemeanor in a court while the court was in session could be fined up to five pounds. 1 Del.Laws (1797 ed.), at 117, 120. A 1739 or 1740 'Act against drunkenness, (and) blasphemy' authorized a maximum fine of five pounds for one convicted ^[17] of using, upon arrest by court order, 'abusive, reviling or threatning speeches against * * * (any) court * * *.' Id., at 174. An 1852 Act provided that judges of the Superior Court could punish for contempt as fully 'as the justices of the king's bench, common pleas, and exchequer in England, * * * may or can do.' Del.Rev.Stat. (1852 ed.), at 317.

In 1818, the Kent Supreme Court said that '(f)or a contempt committed in the presence of a justice of the peace, he may either imprison the offender for a definite period or require sureties for his good behavior.' Patterson v. Blackiston, 1 Del.Cases, 1792 1830 (Boorstin), at 571, 573.

Our research has uncovered no Georgia colonial statutes dealing with contempt. An enactment in 1799 provided for the fine of witnesses and jurors who neglected or refused to appear. Section XX provided for attachment of witnesses and a fine not exceeding $300. Section XLIV provided for a fine of $40 for grand jurors and $20 for petit jurors. Ga.Digest of Laws (1822 ed.), at 205, 210, 215.

An 1801 statute set a fine of $10 as the amount of punishment that could be imposed upon a defaulting witness by a justice of the peace. Ga.Laws, 1801-1810 (1812 ed.), at 17. An 1811 statute made more specific mention of the contempt power of the justices of the peace, providing that these officers could fine or imprison for contempt, but not exceeding $2 or two days. Ga.Laws, 1811-1819 (1821 ed.) at 378.

The earliest reported Georgia contempt case is State v. Noel, T.U.P.Charlt. 43 (1805-1810) (1806). There the mayor and marshal of the City of Savannah were fined $50 and $10 respectively for failing to comply with an order of the Superior Court directing them to suspend certain City Council proceedings. In 1807 the Superior Court said in State v. White, T.U.P.Charlt. 123, 136 (1805-1810) (1807), that the inferior courts of record had the power to 'inflict punishments at the discretion of the court, for all contempts of their authority.' No specific punishment was indicated in that case. In State v. Helvenston, R.M.Charlt. 48 (1811-1837) (1820), several jurors were fined $5 each for having talked with persons not officers of the court.

MARYLAND.

It appears that in colonial Maryland there was but one statutory enactment directly concerning contempts and this Act was applicable only to the court of chancery. This was a 1785 Act providing that 'in order to enforce obedience to the process, rules and orders, of the chancery court, in all cases where any party or person shall be in contempt for disobedience, non-performance or non-observance, of any process, rule or order, of the chancellor or chancery court, or for any other matter * * * wherein a contempt * * * may be incurred, such party or person shall * * * pay * * * a sum not exceeding ten pounds current money * * * and may stand committed * * * until the said process, rule or order, shall be fully performed * * * and until the said fine * * * shall be fully paid * * *.' II Kilty's Md.Laws, 1800, c. LXXII, § XXII.

Three other colonial Maryland Acts concerned only the punishments of jurors and witnesses who failed to appear as summoned and the enforcement of the rules of court. It is not clear whether these were treated as contempts A law enacted in 1715 provided that any person duly served with process to appear as a witness who shall default and fail to appear, 'shall be fined by the justices of the provincial court one thousand pounds of tobacco * * *' or by the county court, five hundred pounds of tobacco. I Dorsey's Md.Laws, 1692-1839 (1840 ed.), at 20. Another 1715 statute provided that the judges of the provincial and county courts in Maryland could 'make such rules and orders from time to time, for the well governing and regulating their said courts * * * as to them in their discretion shall seem meet * * * (and shall enforce these rules with) such fines and forfeitures, as they shall think fit, not exceeding one thousand pounds of tobacco in the provincial court, and five hundred pounds of tobacco in the county court * * *.' I Dorsey's Md.Laws, 1692-1839 (1840 ed.), at 24.

In 1782 the fines to be imposed on witnesses and jurors who failed to appear were altered. The Act provided that 'in all cases in which jurors or witnesses shall be summoned to appear at the general court, and shall, without sufficient excuse, neglect to appear, the general court may fine * * * not exceeding thirty-five pounds current money.' The same provision applied to the county courts, but there the fine was limited to 20 pounds. I Kilty's Md.Laws, 1799, c. XL.

The only reported Maryland case around the time of the adoption of the Constitution is State v. Stone, 3 Har. & McH. 115 (1792). There the chief justice and associate justices of the Charles County Court were each fined 20 shillings and costs by the General Court for refusing to recognize a writ of certiorari which had been directed to them.

The Archives of Maryland report several contempt citations by the Provincial and County Courts from 1658 to 1675. The Provincial Court fined Attorney John Rousby 100 pounds of tobacco for violation of a court order that attorneys must speak in their proper turns. Arch.Md. LXV, 585 (1675). Rousby and two other attorneys were also fined 400 pounds of tobacco each for failing to appear at the Provincial Court and thus causing their clients to suffer nonsuits. Arch.Md. LXV, 383 (1674). And another attorney, who admitted that he had falsified a writ of the Provincial Court, was summarily disbarred from practice. Arch.Md. LXV, 50 (1672).

The county courts imposed punishments for misbehavior in the presence of the court: 500 pounds of tobacco for the use of abusive language in court, Arch.Md. LIV, 566 (1673); 300 pounds of tobacco for wearing a hat in the court's presence. Arch.Md. LIV, 146 (1658); 10 pounds of tobacco for taking the name of God in vain before the court, Arch.Md. LIII, 84 (1660); and 300 pounds of tobacco for using insolent language before the court, Arch.Md. LIV, 9 (1652). Between 1671 and 1674 the Provincial Court cited 23 persons for failure to appear as jurors or witnesses in response to proper summonses. Each was fined 500 pounds of tobacco. Arch.Md. LXV, 18, 21, 23, 25, 29, 31, 32, 40, 45, 141, 203, 246, 314.

MASSACHUSETTS.

The Massachusetts Bay Colony and Plymouth Colony enacted many early statutes relating to contempt. In 1641 the General Court ^[18] decreed that no one in Massachusetts should be imprisoned before sentence if he could put up bail, except 'in crimes Capital, and contempt in open Court, and in such cases where some expresse Act of Court doth allow it.' Mass.Laws and Liberties (1648 ed.), at 28. Prior to 1648 another General Court order provided 'Fine, Imprisonment, Disfranchisement or Bannishment' for one 'lawfully convict' ^[19] in any General Court or Court of Assistants of defaming any court of justice, any court order, or any magistrate or judge with respect to a sentence imposed. Id., at 36. In 1665 the General Court made a law permitting corporal punishment for the contempt of refusing to pay the fine imposed for 'Prophanation of the Sabbath, Contempt or Neglect of Gods Publick Worship, Reproaching of the Laws, and Authority here Established * * *.' Mass.Colonial La s, 1660 (1889 ed.), at 232.

Plymouth Colony laws provided that the Court of Magistrates could punish 'by fine, imprisonment, binding to the Peace or good Behaviour' for disturbing the peace or defaming any court of justice or judge thereof with respect to any act or sentence. Compact with the Charter and Laws of New Plymouth (1836 ed.), at 249. Fines were provided for grand jurors who refused to serve (40 shillings), grand jurors who failed to appear (10 shillings), and nonappearing witnesses (20 shillings). Id., at 263, 192 (Acts of 1671, 1681).

A 1692 Massachusetts Act provided fines for cursing in the hearing of a justice of the peace-five shillings for the first curse (or two hours in the stocks if unable to pay) and 12 pence for each curse thereafter (or three hours in the stocks). Mass.Bay Charter (1726 ed.), at 9. Various fines were established for nonappearing jurors (20 shillings before 1698, 40 shillings until 1711, four to six pounds until 1784, 40 shillings or five pounds as of 1784), ^[20] nonappearing witnesses (40 shillings), ^[21] and defendants who failed to appear before a justice of the peace (10 shillings). ^[22]

Many early contempt cases are contained in the Records of the Court of Assistants ^[23] of Massachusetts Bay Colony, 1630-1692, and in several of these, severe summary punishments were inflicted. For example, in 1675 Maurice Brett 'for his Contemptuous Carriage Confronting the sentence of this Court' was sentenced to stand for an hour with his ear nailed to a pillory. At the end of the hour, the ear was to be cut off and he was to pay 20 shillings or be given 10 lashes. I Records of the Court of Assistants, at 57. Also: In 1643, Elizabeth Vane was ordered committed at the pleasure of the court for abusing one of the magistrates (she was released upon humble petition and acknowledgment), II Records of the Court of Assistants, at 132; in 1637 John Greene was fined 20 pounds, committed until the fine was paid, and told not to come into this jurisdiction again 'upon paine of fine, or imprisonment at the pleasure of the Courte for speaking contemptuously of the magistrates,' id., at 71; in 1633 Captain John Stone was fined 100 pounds and prohibited from returning to the Colony without leave from the government 'under the penalty of death' for abusing an officer of the court, assaulting him and calling him 'A just asse,' id., at 35; in 1630 or 1631 Thomas Foxe was ordered whipped for saying that the court acted in a case 'as if they hadd taken some bribe,' id., at 12; in 1634 John Lee was ordered whipped and fined 'for calling * * * (a court officer) false-hearted knave & hard-hearted knave heavy friend,' id., at 43; in 1637 or 1638 Thomas Starr was ordered fined 20 pounds, committed and enjoined to acknowledge his fault the next week for speaking against an order of the court, id., at 73; in 1638 Katherine Finch was ordered whipped and committed until the General Court for speaking against the magistrates and the Churches, id., at 76; and in 1659 William Robbinson was ordered whipped 20 lashes for contemptuous speeches against the whole court and the governor, III Records of the Court of Assistants, at 68.

In addition, Court of Assistants records show: in 1632 Thomas Dexter was ordered set in the bilboes (device used for punishment at sea, similar to stocks on land), disfranchised and fined 40 pounds for speaking reproachfully against the government and for finding fault with various acts of the Court, II Records of the Court of Assistants, at 30; in 1634 John Lee was ordered whipped and fined 40 pounds for speaking reproachfully of the government (including a statement that the Court of Assistants made laws to pick men's purses), id., at 49; in 1636 Thomas Miller was ordered committed for an unspecified length of time for 'certeine seditious & opprobrious speaches, saying wee are all rebells, & traytors' ('wee' probably referring to the court), id., at 63; in 1638 or 1639 Robert Shorthose was ordered set in the bilboes for slighting the magistrate in his speeches, id., at 81; and in 1640 George Hurne was ordered committed (in irons) and whipped for insolent and contemptuous carriage, id., at 93. Various fines for contempts are also reflected in the records. The only instance we can find in which the Court of Assistants did not proceed summarily to punish what was probably considered a contempt is a 1686 case in which Samuell Shrimpton was indicted by grand jury for denying the power of the government, defaming the General Court and the County Court and causing such a tumult in the court to result in 'breach of his Majesty's Government.' I Records of the Court of Assistants, at 299.

In 1635 the General Court ordered John Endecott committed to prison for an unspecified period 'for his contempt in protesting against the proceeding of the Court * * *.' He was released upon submission and acknowledgment. See Haskins, Law and Authority in Early Massachusetts, at 207. The Records of the Suffolk County Court from 1680 to 1698 reveal two other cases in which men were ordered imprisoned for unspecified periods for 'contemptuous carriage in open court.' John Farnum (1681), Records of the Inferiour Court of Pleas (Suffolk County Court), 1680-1698, at 111; John Jones (1685), id., at 128. The Pynchon Court Record, 1639-1702, reveals three instances in which a magistrate fined men for contempts of court. See Colonial Justice in Western Massachusetts, 1639-1702, at 243, 271, 288.

In 1772, the Superior Court of Judicature ordered a party committed for an unspecified period for savagely snatching papers from his opponent's hand. Thwing v. Dennie, Quincy's Reports, 338. See also the 1767 charge to the grand jury of the chief justice of that court, in which he said that '(t)o strike a Man in the King's Court will subject the Offender to the Loss of his Hand and Imprisonment for Life,' and implying that such sentence could be given by the court summarily. Id., at 245.

NEW HAMPSHIRE.

The only relevant statutes existing in eighteenth century New Hampshire that our research has uncovered were those directed toward witnesses and jurors. An Act passed in 1791 provided that courts could attach any witnesses who failed to appear and, if no reasonable excuse was offered, fine them as much as 10 pounds. A justice of the peace was allowed to fine up to 40 shillings for the same offense. N.H.Laws (1792 ed.), at 96. Another Act of the same year provided that grand jurors who failed to appear could be fined up to three pounds. N.H.Laws (1792 ed.), at 105.

The 1792 New Hampshire Constitution specifically gave the power to punish for contempt to the house of representatives, senate, governor and council. The punishment which they could administer was limited to 10 days' imprisonment. N.H.Laws (1815 ed.), at 10. There was no mention of the contempt power of the New Hampshire courts.

Apparently no legislation concerning the punishment of contempts existed in New Jersey until after the adoption of the Constitution. The first statutory provision was enacted in 1798 and concerned only witnesses and jurors in courts for the trial of small causes, which courts had jurisdiction only where the amount in controversy did not exceed $60. The law provided that defaulting jurors or witnesses could be fined not more than $5 nor less than $1. N.J.Rev.Laws (1800 ed.), at 317. In the following year the legislature provided that any circuit court juror who either failed to appear or left a trial should be punished by a reasonable fine. N.J.Rev.Laws (1800 ed.), at 395. And also in that year an Act was passed dealing with the power of the Court of Chancery in matters of contempt. It provided that 'to enforce obedience to the process, rules, and orders of the court of chancery, where any person shall be in contempt * * * he shall * * * pay * * * a sum not exceeding fifty dollars' and shall be confined until the order of the court is complied with and the fine and costs fully paid. N.J.Rev.Laws (1800 ed.), at 434.

In 1698 the Court of Common Right of East New Jersey fined a contemner 50 pounds and placed him in prison until it should be paid. Contemner had come before the court, demanded to know by what authority it sat, denied that it sat by the authority of the King and resisted when the constable took him into custody. Case of Lewis Morrice, I Journal of the Courts of Common Right and Chancery of East New Jersey, 1683-1702, at 311.

NEW YORK.

Perhaps the earliest enactment concerning contempt in colonial New York was the Charter of Liberties and Privileges, passed by the General Assembly on October 30, 1683. Hamlin and Baker, I Supreme Court of Judicature of the Province of New York, 1691-1704, at 147. The Charter contained a broad provision assuring jury trials in numerous cases and stating that no freeman could be imprisoned, deprived of his freehold or liberty or exiled except by the judgment of 12 peers. However, there was a specific exception from this jury requirement when the fault charged was a contempt.

Our research has uncovered no other statutory provisions dealing with contempt in New York prior to the Constitution. An 1801 law provided that any person swearing in the presence or hearing of a justice of the peace, mayor, recorder or alderman could be placed, in a summary manner, in the stocks for one hour. N.Y.Laws, 1801 (1887 ed.), at 54. Then, in 1829, a fairly comprehensive statute was enacted, designating what actions constituted criminal contempts and limiting punishments to $250 fine and 30 days in jail. 2 N.Y.Rev.Stat., 1828-1835 (1836 ed.), at 207.

There are few reported cases of contempt in colonial New York. One notable instance occurred at the trial of John Peter Zenger in 1735. During the preliminary stages of the trial, Zenger's attorneys filed exceptions to the court, taking the position that the judges' commissions were defective because they had been appointed by Governor Cosby to serve 'at pleasure' rather than 'during good behavior' as required by law. The judges refused to allow Zenger's attorneys to argue in support of these exceptions, and, instead, cited the lawyers for contempt and disbarred them from further legal practice. The order stated: 'It is therefore ordered that, for the said contempt, the said James Alexander and William Smith be excluded from any farther practice in this Court, and that their names be struck out of the roll of attorneys of this Court.' Buranelli, The Trial of Peter Zenger, 89; see also Alexander, A Brief Narrative of the Case and Trial of John Peter Zenger, 53-55.

A few colonial cases are mentioned in Goebel and Naughton, Law Enforcement in Colon al New York. Fines of 200 pounds were imposed by the New York Supreme Court in 1763 and 1764 for contempt in refusing to answer questions. At 243. In 1717 the Suffolk Court of Oyer and Terminer ordered a week of imprisonment for one who had affronted the King's Justices. Id., at 606. And in 1729 the Supreme Court imposed a fine of 10 pounds upon one who had 'privately given victuals to the jury.' Ibid.

One post-colonial case is worthy of mention, the case of In re Yates, 4 Johns. 317 (1809). Yates, an officer of the Court of Chancery, was found in contempt for having forged a name upon a bill filed in that court. He was sent to jail 'there to remain until the further order of the court.' On writ of habeas corpus the New York Supreme Court held that this was a valid form of commitment and that the Supreme Court had no power to discharge anyone committed for contempt by the Chancery Court. The commitment in this case was not for the purpose of forcing Yates to comply with the will of the Chancery Court, but rather, for punishment. Thus, Yates was imprisoned during the pleasure of the court for a criminal contempt.

NORTH CAROLINA.

Prior to 1868, North Carolina had few statutes dealing with offenses which might have been considered contempts: A 1741 Act carrying a fine of two shillings and six pence for profanely swearing or cursing in a hearing of a justice of the peace, and a fine of 10 shillings or punishment of up to three hours in the stocks for swearing or cursing in the presence of any court of record, I N.C.Pub.Acts, 1715-1790 (Iredell, 1804 ed.), at 52; a 1777 Act providing a fine of 50 pounds for nonappearance of witnesses, I N.C. Laws (Potter, 1821 ed.), at 298; a 1779 Act fining jurors who failed to appear at superior courts 200 pounds and fining nonappearing 'bystanders' 50 pounds, I N.C.Pub.Acts, 1715-1790 (Iredell, 1804 ed.), at 279; and a 1783 Act changing the fine against jurors to 10 pounds and establishing fines of five pounds for failing to appear as county court jurors and 20 shillings for nonappearing 'talismen,' id., at 332.

The first general statute in North Carolina limiting the power to punish summarily for contempt was enacted in 1868 or 1869. It provided a maximum penalty of $250 and 30 days' imprisonment. Statutes of 1868-1869, c. 177, § 2, cited in Battle's Revisal of the N.C.Pub.Stat. (1873 ed.), at 257.

PENNSYLVANIA.

Prior to the adoption of the Constitution there were three Pennsylvania statutes relevant to the punishment of contempts. The Act of 1713, which established the orphans' courts of Pennsylvania, provided that 'if any person * * * summoned to appear * * * shall make default, the Justices may send their attachments for contempts, and may force obedience to their warrants, sentences and orders, concerning any matter or thing cognizable in the same courts by imprisonment of body, or sequestration of lands or goods, as fully as any court of equity may or can do.' I Pa.Laws, 1700-1781 (1810 ed.), at 84.

A 1715 Act, creating the 'Supreme or Provincial Court of Law and Equity,' provided in § I that this court would 'exercise the jurisdictions and powers hereby granted concerning all and singular the premises, according to law, as fully and amply to all intents and purposes whatsoever, as the justices of the courts of King's Bench, common pleas and exchequer at Westminster, or any of them, may or can do' ^[24] and to 'correct and punish the contempts, omissions and neglects, favors, corruptions and defaults of all or any of the justices of the pleas, sheriffs, coroners, clerks and other officers within the said respective counties.' III Pa.Stat. at Large, 1712-1724 (1896 ed.), at 66-67. Section III of the same Act provided that when sitting as a court of equity, this court could enforce obedience to its orders and decrees by 'like process, orders and proceedings thereupon, as are and hath been used in like cases in or by the said courts of chancery or exchequer in Great Britain * * *.' III Pa.Stat. at Large, 1712-1724 (1896 ed.), t 68.

In 1722, Pennsylvania passed 'An Act for Establishing Courts of Judicature in this Province.' Section VI said that these courts 'shall minister justice to all persons, and exercise the jurisdictions and powers hereby granted concerning all and singular the premises according to law, as fully and amply, to all intents and purposes whatsoever, as the justices of the court of King's Bench, common pleas and exchequer at Westminster, or any of them, may or can do.' III Pa.Stat. at Large, 1712-1724 (1896 ed.), at 303.

No Pennsylvania enactment was specifically directed to the matter of criminal contempt until 1809. By the terms of this Act, the summary contempt power of the several courts of the commonwealth was limited to official misconduct of court officers, disobedience of court process by officers, parties, jurors or witnesses and misbehavior of any person in the presence of the court. The punishment of imprisonment for contempts was applicable 'only to such contempts as are committed in open court; and all other contempts shall be punished by fine only.' Pa.Laws 1808 1812, at 55-56.

In Feree v. Strome, 1 Yeates 303 (1793), a witness failed to appear as summoned to the Nisi Prius Court of Lancaster County. 'He was reprimanded for his conduct, but as he asserted, that he did not conceive himself to be subpoenaed, he was dismissed without any fine .' In Respublica v. Oswald, 1 Dall. 343 (319), 1 L.Ed. 155 (1788), the Pennsylvania Supreme Court levied a fine of 10 pounds and an imprisonment of one month upon one who published a contemptuous article. In passing sentence the court said: 'some difficulty has arisen with respect to our sentence; for, on the one hand, we have been informed of your circumstances, and on the other we have seen your conduct: your circumstances are small, but your offense is great and persisted in. Since, however, the question seems to resolve itself into this, whether you shall bend to the law, or the law shall bend to you, it is our duty to determine that the former shall be the case.' At 353 of 1 Dall.

The Supreme Court issued attachment for a contempt against another publisher in Bayard v. Passmore, 3 Yeates 438, 441 (1802). Contemner was required to secure his appearance by posting $300 and was admonished to 'consider well, what atonement he will make to the court * * * for the gross injury.' It is later reported that contemner was fined $50 and imprisoned for 30 days, to remain in prison until the fine and costs were paid. 3 Yeates 442.

The Records of the Courts of Quarter Sessions and Common Pleas of Bucks County, Pennsylvania, 1684-1700, report several contempt attachments. Thomas Coverdale was fined five shillings for coming into court drunk. (At 111.) Nine jurors were fined five shillings apiece for their failure to appear as summoned. (At 391.) Two others were fined three shillings apiece for the same offense. (At 211.) And there are three reports of one Richard Thatcher being committed for abusing the justices on the bench. (At 100, 198, 208.) In each instance he was held in custody until the next day when he was fined 50 shillings and committed until he could produce sureties for his good behavior and his appearance at the next term of court. (At 101, 199, 208.)

RHODE ISLAND.

The only laws existing in colonial Rhode Island which in any way concerned contempt of court were confined to the punishment of witnesses and jurors for failure to appear in court. An Act which was in force in 1798 but which probably dated back to 1729, provided that if a witness failed to appear, the court could bring him before it by writ of attachment and impose a fine not exceeding $20 and place the witness in prison until the fine was paid. R.I.Laws (1798 ed.), at 206. Another Act, of like dates, provided that jurors who failed to appear should forfeit and pay a sum not exceeding $5. R.I.Laws (1798 ed.), at 185.

Research has disclosed very few contempt cases from colonial Rhode Island. However, several cases are reported from the Court of Trials of the Colony of Providence Plantations between 1647 and 1670. In two instances where persons used contemptuous words before this court they were required to post bond of 10 pounds sterling to secure their future good behavior. I R.I.Court Records, 1647-1662, at 29, 51. A fine of five shillings was imposed upon another who used contemptuous words to the court while drunk. II R.I.Court Records, 1662-1670, at 58. And between 1647 and 1662 a total of 20 persons were fined 10 shillings each for failure to appear as jurors when summoned. I R.I.Court Records, 1647-1662, at 16, 19, 29, 30, 35, 73, 77.

SOUTH CAROLINA.

It appears that colonial South Carolina imposed broader restraints upon its courts in the punishment of contempts than any other Colony. A 1702 Act provided that a witness who failed to appear at the Court of General Sessions should pay 10 pounds plus damages, or up to 100 pounds if he appeared but refused to give evidence. The witness could be imprisoned until the fine was paid. II S.C.Pub.Stat.Law (Brevard, 1814 ed.), at 338. A 1731 statute reenacted these provisions and provided that nonappearing jurors could be summarily fined 40 shillings. S.C.Pub.Laws (Grimke, 1790 ed.), at 129, 126. Under the same Act, judges were permitted to fine up to 10 pounds for 'any misbehaviour or contempt' in court and to imprison until payment was made; and if any person used violence in the courts, the judge could fine at his discretion and imprison until payment was made. Id., at 129. An 1811 Act provided that when an affray occurred 'to the disturbance of the court,' when the court was sitting, the judge could order the offenders brought before him and 'make such order or orders * * * as is or may be consistent with law, justice and good order.' Acts and Resolutions of the S.C. General Assembly, December, 1811, at 33.

In Lining v. Bentham, 2 Bay 1 (1796), a justice of the peace had ordered a man imprisoned for accusing the justice with gross partiality and abuse of power. The South Carolina Constitutional Court of Appeals affirmed the 'power of a magistrate to commit for insults or contempts' offered in the presence of the court. The court, however, added the dictum that contempts committed out of the presence of the court 'ought to' be prosecuted by indictment.

In State v. Johnson, 1 Brev. 155 (1802), a justice of the peace had ordered a woman imprisoned for an unspecified length of time for coming to his office, treating him contemptuously and threatening him. The Charleston Constitutional Court held that the 1731 Act providing punishment by fine for contempt in court did not apply to justices of the peace, who have 'indispensably requisite' power to commit for contempt.

In State v. Applegate, 2 McCord 110 (1822), a justice of the peace had ordered a constable imprisoned for failing to carry out his duties. The Charleston Constitutional Court ruled that the constable had to be discharged, as all courts have the power '(t)o commit for a contempt done in the face of a court,' but the power to imprison for a contempt done out of court is reserved to 'courts of the highest jurisdiction.'

VIRGINIA.

The only colonial Virginia contempt statutes which we were able to find were Acts specifying fines, usually in terms of pounds of tobacco, for nonappearance of jurors and witnesses. ^[25] A 1788 Act established a maximum fine of 10 pounds sterling for jurors 'guilty of a contempt to the court * * *.' 12 Hening's Va.Stat. at Large, at 746. In 1792, the limit was changed to $30. Va.Acts (1803 ed.), at 101. Another 1792 Act set forth procedures to be followed in issuing and pursuing process of contempt. Va.Acts (1803 ed.), at 66, 90-91.

The first general contempt statute was passed in 1831. It specified four different categories of contempts in which judges had power to inflict punishments summarily. The power to punish the first class of contempts-misbehavior in the presence of courts-was limited to $50 or 10 days' imprisonment. The other categories-violence or threats of violence to judges, witnesses or jurors, misbehavior of court officers in official transactions, and disobedience to a court order-were not specifically limited. ^[26] Supp. to the Va.Rev.Code (1833 ed.), at 143-144.

In Criminal Law in Colonial Virginia, Arthur P. Scott discusses early Virginia contempt cases. He states that '(c)ontempt of court was sharply reproved. The least that was required was an open apology, and the court often added a fine, or commitment to prison, usually to last until bond for good behavior was furnished. Sometimes an hour or two in the stocks was prescribed.' At 171-172. ^[27] Scott concludes: 'On the whole, a review of the attitude of the Virginia magistrates would indicate that they acted reasonably and moderately. The power to punish for contempt is always open to abuse. The persons injured are judges in their own case. The only safeguard, outside of public opinion, lies in the character of the persons intrusted with this power.' At 174.

Mr. Justice BLACK, with whom Mr. Justice DOUGLAS joins, dissenting.

Notes

1. On January 21, 1964, Governor Barnett's term of office expired and Lieutenant Governor Johnson became Governor.
2. 'Where charges of criminal contempt have been initiated in this Court of Appeals against two individuals, asserting that such individuals willfully disobeyed a temporary restraining order of the Court, which order was entered at the request of the United States, acting as amicus curiae pursuant to its appointment by an order of the Court which granted to it, among other rights, the right to initiate proceedings for injunctive relief, and the acts charged as constituting the alleged disobedience were of a character as to constitute also a criminal offense under an Act of Congress, are such persons entitled, upon their demand, to trial by jury for the criminal contempt with which they are changed?'
3. See Nelles and King, Contempt by Publication in the United States, 28 Col.L.Rev. 401, 423-430.
4. 18 U.S.C. § 401:
5. In Busby v. Electric Utilities Employees Union, 323 U.S. 72, 75, 65 S.Ct. 142, 144, 89 L.Ed. 78 (1944), we held that: 'This Court will not answer a question which will not arise in the pending controversy unless another issue, not yet resolved by the certifying court, is decided in a particular way.' (Emphasis supplied.) In the instant case the issue of right to jury trial is not simply a hypothetical and was squarely presented to the Court of Appeals after the court rejected, in the order of October 19, 1962, the contention that it lacked jurisdiction. While this Court denied the petition for writ of certiorari to review that order, Mississippi v. Meredith, 372 U.S. 916, 83 S.Ct. 722, 9 L.Ed.2d 723 (1963), and while the issue is not before us now, the Court would not be foreclosed from passing on the jurisdictional question if and when it is properly presented here after the trial on the merits.
6. Interpreting the precursor of 28 U.S.C. § 1254(3), this Court said in Ward v. Chamberlain, 2 Black 430, 434-435, 17 L.Ed. 319 (December Term, 1862): 'Such certificate, as has repeatedly been held by this Court, brings nothing before this Court for its consideration but the points or questions certified, as required by the 6th section of the act. * * * (N)othing can come before this Court, under that provision, except such single definite questions as shall actually arise and become the subject of disagreement in the Court below, and be duly certified here for decision. Ogle vs. Lee, (2 Cran., 33) (2 L.Ed. 198); Perkins vs. Hart's Exr., (11 Whea., 237) (6 L.Ed. 463); Kennedy et al. vs. Georgia State Bank, (8 How. (586), p. 611.) (12 L.Ed. 1209) All suggestions, therefore, respecting any supposed informality in the decree, or irregularities in the proceedings of the suit, are obviously premature and out of place, and may well be dismissed without further remark; because no such inquiries are involved in the points certified, and by all the decisions of this Court matters not so certified are not before the Court for its consideration, but remain in the Court below to be determined by the Circuit Judges. Wayman vs. Southard, (10 Whea. (1), 21) (6 L.Ed. 253); Saunders vs. Gould, (4 Pet., 392.) (7 L.Ed. 897)'
7. This is buttressed by an earlier statement of the sponsor of the bill at 48 Cong.Rec. 8778:
8. Our disposition of the certified question makes it unnecessary for us to reach the issue whether the orders allegedly violated were 'entered in any suit or action brought or prosecuted in the name of, or on behalf of, the United States,' §§ 402, 3691.
9. U.S.Const., Art. III, § 2, cl. 3; Amend. VI. Contemners also claim under Amendments IX and X.
10. 1 Stat. 83.
11. Statutes and cases dealing with limitations on summary power to punish for contempt in the original 13 States have been compiled in an Appendix, which follows this opinion.
12. United States v. Hudson & Goodwin, 7 Cranch 32, 3 L.Ed. 259 (1812); Anderson v. Dunn, 6 Wheat. 204, 5 L.Ed. 242 (1821); Ex parte Kearney, 7 Wheat. 38, 5 L.Ed. 391 (1822); Ex parte Robinson, 19 Wall. 505, 22 L.Ed. 205 (October Term, 1873); New Orleans v. Steamship Co., 20 Wall. 387, 22 L.Ed. 354 (October Term, 1874); In re Chiles, 22 Wall. 157, 22 L.Ed. 819 (October Term, 1874); Ex parte Terry, 128 U.S. 289, 9 S.Ct. 77, 32 L.Ed. 405 (1888); In re Savin, 131 U.S. 267, 9 S.Ct. 699, 33 L.Ed. 150 (1889); In re Cuddy, 131 U.S. 280, 9 S.Ct. 703, 33 L.Ed. 154 (1889); Eilenbecker v. District Court, 134 U.S. 31, 10 S.Ct. 424, 33 L.Ed. 801 (1890); In re Swan, 150 U.S. 637, 14 S.Ct. 225, 37 L.Ed. 1207 (1893); Interstate Commerce Comm. v. Brimson, 154 U.S. 447, 14 S.Ct. 1125, 38 L.Ed. 1047 (1894); In re Debs, 158 U.S. 564, 15 S.Ct. 900, 39 L.Ed. 1092 (1895); Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819 (1896); In re Lennon, 166 U.S. 548, 17 S.Ct. 658, 41 L.Ed. 1110 (1897); Wilson v. North Carolina, 169 U.S. 586, 18 S.Ct. 435, 42 L.Ed. 865 (1898); In re Watts and Sachs, 190 U.S. 1, 23 S.Ct. 718, 47 L.Ed. 933 (1903); Bessette v. W. B. Conkey Co., 194 U.S. 324, 24 S.Ct. 665, 48 L.Ed. 997 (1904); Nelson v. United States, 201 U.S. 92, 26 S.Ct. 358, 50 L.Ed. 673 (1906); United States v. Shipp, 203 U.S. 563, 27 S.Ct. 165, 51 L.Ed. 319 (1906); Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908); Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797 (1911); Baglin v. Cusenier Co., 221 U.S. 580, 31 S.Ct. 669, 55 L.Ed. 863 (1911); Gompers v. United States, 233 U.S. 604, 34 S.Ct. 693, 58 L.Ed. 1115 (1914); Toledo Newspaper Co. v. United States, 247 U.S. 402, 38 S.Ct. 560, 62 L.Ed. 1186 (1918); Ex parte Hudgings, 249 U.S. 378, 39 S.Ct. 337, 63 L.Ed. 656 (1919); Blair v. United States, 250 U.S. 273, 39 S.Ct. 468, 63 L.Ed. 979 (1919); Craig v. Hecht, 263 U.S. 255, 44 S.Ct. 103, 68 L.Ed. 293 (1923); Michaelson v. United States, 266 U.S. 42, 45 S.Ct. 18, 69 L.Ed. 162 (1924); Cooke v. United States, 267 U.S. 517, 45 S.Ct. 390, 69 L.Ed. 767 (1925); McGrain v. Daugherty, 273 U.S. 135, 157, 47 S.Ct. 319, 323, 71 L.Ed. 580 (1927); Brown v. United States, 276 U.S. 134, 48 S.Ct. 288, 72 L.Ed. 500 (1928); Sinclair v. United States, 279 U.S. 749, 49 S.Ct. 471, 73 L.Ed. 938 (1929); Blackmer v. United States, 284 U.S. 421, 52 S.Ct. 252, 76 L.Ed. 375 (1932); Clark v. United States, 289 U.S. 1, 53 S.Ct. 465, 77 L.Ed. 993 (1933); Nye v. United States, 313
13. The constitution of Mississippi, like that of the United States, also assures the right of trial by jury in criminal cases. 'In all criminal prosecutions the accused shall have a right to * * * trial by an impartial jury of the county where the offense was committed * * *.' Miss.Const., Art. III, § 26. 'The right of trial by jury shall remain inviolate * * *.' Miss.Const., Art. III, § 31.
14. The fact that Watson was a case of civil contempt is not relevant, since its rationale and language are broadly applicable to contempt cases in general. Further, Watson has recently been cited with approval in a Mississippi criminal contempt case, Young v. State, supra, where the Mississippi Supreme Court reaffirmed that there is no right to jury trial in cases of criminal contempt. Watson has also been cited by this Court as authority on criminal contempt. In re Debs, 158 U.S. 564, 595, 15 S.Ct. 900, 910, 39 L.Ed. 1092 (1895).
15. For example, punishments of a former age must be judged by the standards of that time and not by the norms of the present. As Professor Zechariah Chafee observed: 'The most significant fact is that the colonists seem to have made very little use of the favorite modern method of punishment by long terms of imprisonment. They got rid of the worst offenders by executions * * *; the others they usually subjected to some short and sharp penalty and then turned them loose or else sold them into service. To imprison thieves and other rascals for years, as we do, would have cost the taxpayers dear, left the prisoners' relatives without support, and kept men idle when the community wanted man-power. Consequently, most offenders were let out after they had paid their fines and damages to the victim, or had been whipped or otherwise disgraced.' 1 Records of the Suffolk County (Mass.) Court, 1671-1680, at lxxix.
16. The type of statute most frequently found in the Colonies is that which provided for the punishment of witnesses or jurors who failed to appear in court as summoned. While in most Colonies this offense was regarded, and punished, as a contempt, it is not clear whether it was so regarded and punished in all jurisdictions.
17. It is not clear whether the use of the word 'convicted' was intended to preclude summary punishment.
18. From 1634 at least until 1672, the General Court was 'the chief Civil Power' of Massachusetts, its principal business being legislation. See 1 Records of the Suffolk County Court, 1671-1680, at xxi-xxii.
19. It has been argued that the words 'lawfully convict' indicate that formal process of indictment was required. See Haskins, Law and Authority in Early Massachusetts, at 278.
20. See I Province of Mass.Bay: Acts and Resolves (1869 ed.), at 335, id., at 374; Mass.Bay Charter (1726 ed.), at 254; I Mass.Laws 1780-1800 (1801 ed.), at 185, 189. See also Act providing that non-appearing grand jurors 'shall be proceeded against for contempt.' Mass.Colonial Laws (1887 ed.), at 88.
21. I Province of Mass.Bay: Acts and Resolves (1869 ed.), at 374.
22. Id., at 72. Also id., at 282-283.
23. The Court of Assistants consisted of the governor, depu y-governor, and the other annually elected assistants or magistrates. It was the institutional ancestor of the Massachusetts Supreme Judicial Court and 'also had the functions of an upper house of the legislature and a governor's council. For judicial business it met regularly twice a year * * * to hear and determine appeals from the County Courts, and to exercise original jurisdiction in 'all Causes of divorce, all Capital and Criminal Causes, extending to Life, Member or Banishment." I Records of the Suffolk County Court, 1671-1680, at xx-xxi.
24. It has not been contended that the courts of England were limited to trivial punishments for contempt.
25. 1660: witnesses fined 1,000 pounds of tobacco for quarter courts, 350 pounds of tobacco for county courts, 2 Hening's Va.Stat. at Large, at 23-24, 69; 1734: petit jurors before justices of Oyer and Terminer fined up to 400 pounds f tobacco, 4 Hening's Va.Stat. at Large, at 404; 1777: witnesses not attending the General Court fined five pounds (sterling) or 1,000 pounds of tobacco, plus costs, Va.Pub.Acts (1785 ed.), at 73; 1788: same fine for District Court witnesses, 12 Hening's Va.Stat. at Large, at 748; 1792: grand jurors fined up to $8, Va.Acts (1803 ed.), at 100.
26. See Yoder v. Commonwealth, 107 Va. 823, 833, 57 S.E. 581, 584. 'The first class is: 'Misbehavior in the presence of the court, or so near thereto as to obstruct or interrupt the administration of justice.' But the limitation of (this) section * * * does not apply to the second, third, fourth, and fifth classes into which (the general) section * * * is divided.'
27. The following are cases cited by Scott at 172-173: In 1662, William Hatton was bound over to the General Court for saying (outside court) that the justices were not fit to sit; in 1684, Robert Smith had to petition humbly for saying that the court had done more than it could answer or justify; in 1685, Humphrey Chamberlain was put in jail for standing with a drawn sword in the road between the courthouse and the ferry and fined five pounds sterling plus the cost of repairing the prison for breaking his way out; in 1703, Mary Russell was ordered to jail until she could give bond for good behavior for saying that she had gotten as little justice in court as she would have in hell with the devil sitting as judge; in 1720, Colonel Bolling was similarly punished for calling on God to damn the justices; and in 1748, Richard Dunning was ordered committed for saying that the judges never did any good.