The Summary Power to Punish for Contempt

Abstract

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.