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The Summary Power to Punish for Contempt, 31 Columbia Law Review 956 (1931)


In the past three quarters of a century there have been many signs
that the power to punish summarily for contempt of court is encroaching
upon the once sacred "right" of trial by jury in criminal cases :-e.g.,
summary punishments for crimes affecting receiverships;1 the labor
injunction, which, though it is a main subject of my interest, will receive
only casual further mention here; various other instances where,
in form, the question is rather as to scope of chancery power to enjoin
than as to the scope of the contempt power;la and finally a small but
growing class of cases, of which the Sinclair case,2 discussed later in
this article, is an extreme instance, in which the question of summary
punishment for crime is unconfused with that of equity jurisdiction.
Trial by jury was an important egg in the setting from which democracy
was hatched. And its decline is cumulative of much other
evidence that democracy itself is in decline. That may be neither
preventible nor evil; the place for what is worn out is the scrap-heali.
It is possible that values that were well served by democracy and the
jury system in"th eir prime may now be served better otherwise. But
the devious and obscure processes of social change involve danger
that real values may be sacrificed without our knowing it. Unsatisfactory
though trial by jury has become, it does not follow that
trial by a judge who is not directly checked by unprofessional common
sense and common feeling is necessarily better. Answer to the
question of how criminal justice may become efficient involves vastly
more than easy choice between those two alternatives. For satisfactory
answer, that question must be clearly faced. This paper is motived
by a hope of contributing indirectly to that end, by stamping for what
it is one of the red herrings-the punitive use of the contempt powerwhich
confuse the scent of the true question.

Date of Authorship for this Version



contempt of court, trial by jury