258 RUTLEDGE, J., dissenting. sarily were the proceedings for contempt in not obeying." Ex parte Rowland, 104 U. S. 604, 617-618. The power of the federal courts to issue stay orders to maintain the status quo pending appeal, like other matters affecting their jurisdiction except in the case of this Court's original jurisdiction, is subject to Congress' control. That control has been exercised, in my view, to exclude such jurisdiction in cases of this character. And, this being true, I do not think either this or any other court subject to that mandate has pov er to punish as for contempt the violation of such an order issued in contravention of Congress' command. Ex parte Fisk, supra. III. The issues cor cerning the manner in which the contempt proceeding was conducted are in themselves of great moment, apart from the foregoing conclusions which I think are dispositive of the controversy. And the Court's rulings upon them are of such a character that I cannot accede by silence. At times in our system the way in which courts perform their function becomes as important as what they do in the result. In some respects matters of procedure constitute the very essence of ordered liberty under the Constitution. For this reason, especially in the Bill of Rights, specific guaranties have been put around the manner in which various legal proceedings shall be conducted. They differentiate sharply between the procedures to be followed in criminal proceedings and in civil ones. These differences mark one of the great constitutional divides.28 They separate the zone of punishment for crime, with all its odious consequences, from that of giving civil relief, where no such consequences attend, not partially but completely. 28 Yakus v. United States, 321 U. S. 414, dissenting opinion, at 479 ff. RUTLEDGE, J., dissenting. 330 U.S. In any other context than one of contempt, the idea that a criminal prosecution and a civil suit for damages or equitable relief could be hashed together in a single criminal-civil hodgepodge would be shocking to every American lawyer and to most citizens. True, the same act may give rise to all these varied legal consequences. But we have never adopted, rather our Constitution has totally rejected, the continental system of compounding criminal proceedings with civil adjudications."9 Our tradition is exactly the contrary and few would maintain that this has had no part in bringing about the difference existing today for individual freedom here and in Europe. I do not think the Constitution contemplated that there should be in any case an admixture of civil and criminal proceedings in one. Such an idea is altogether foreign to its spirit. There can be no question that contempt power was conferred adequate to sustain the judicial function, in both civil and criminal forms. But it does not follow that the Constitution permits lumping the two together or discarding for the criminal one all of the procedural safeguards so carefully provided for every other such proceeding. The founders did not command the impossible. They could not have conceived that procedures so irreconcilably inconsistent in many ways" could be applied simultane 29 Thus, in some civil law countries damages, as well as other penalties, are assessed in a criminal proceeding. See Schwenk, Criminal Codification and General Principles of Criminal Law in Argentina, Mexico, Chile, and the United States: A Comparative Study (1942) 4 La. L. Rev. 351, 373-374; Goirand and Thompson, The French Judicial System and Procedure in French Courts (1919) 14. See also Esmein, A History of Continental Criminal Procedure (1913) 429430. 30 Upon the authorities, the following procedural provisions of the Bill of Rights, at least, would seem to apply to criminal contempt: The provision against double jeopardy, see In re Bradley, 318 U. S. 258 RUTLEDGE, J., dissenting. ously. Nor was their purpose to create any part of judicial power, even in contempt, wholly at large, free from any constitutional limitation or to pick and choose between the conflicting civil and criminal procedures and remedies at will. Much less was it to allow mixing civil remedies and criminal punishments in one lumped form of relief, indistinguishably compounding them and thus putting both in unlimited judicial discretion, with no possibility of applying any standard of measurement on review.31 50; the provision against self-incrimination, Gompers v. Bucks Stove & R. Co., 221 U. S. 418, 444; the provision for due process insofar as it necessitates "suitable notice and adequate opportunity to appear and to be heard," Blackmer v. United States, 284 U. S. 421, 440; and, although the Sixth Amendment protections have been said not to apply as such to criminal contempts, Myers v. United States, 264 U. S. 95, 104-105; Blackmer v. United States, 284 U. S. at 440, but see text infra, doubtless at least the provisions for "a speedy and public trial," for "compulsory process" and for the assistance of counsel, see Cooke v. United States, 267 U. S. 517, 537, are implied in the due process provision of the Fifth Amendment. And it has been said that the protection against cruel and unusual punishments in the Eighth Amendment applies to criminal contempt, United States ex rel. Brown v. Lederer, 140 F. 2d 136, 139. There are also protections not expressly included in the Bill of Rights which apply in criminal contempt, e. g., that the defendant is presumed to be innocent and must be proved guilty beyond a reasonable doubt. Gompers v. Bucks Stove & R. Co., 221 U. S. 418, 444. And see Ex parte Hudgings, 249 U. S. 378, 383: "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 . . . as to modes of accusation and methods of trial generally safeguarding the rights of the citizen. This, however, expresses no purpose to exempt judicial authority from constitutional limitations, since its great and 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." 31 See Part IV. RUTLEDGE, J., dissenting. 330 U.S. If this can be done in any case, it can be done in others. And that being true, if it can be done at all, not simply a loophole but a very large breach has been left in the wall of procedural protections thrown around the citizen's punishment for crime. For it is to be recalled that under the Court's ruling here upon the Shipp doctrine not merely the violation of valid judicial orders, but also the disobedience of invalid orders issued in excess of any court's jurisdiction becomes a crime and punishable as such by summary proceedings in criminal contempt, although the substantive rights involved in the litigation are wholly civil ones. The vastly expanded area of criminal conduct under this conception would afford equally wide room for dispensing with the criminal procedural protections under the unrestricted scope, otherwise than by "judicial discretion," which the present ruling concerning criminal or criminal-civil proceedings in contempt affords. In my opinion, our system does not comprehend a power so unconfined anywhere within its broad borders, and it is time the large confusion about this were swept away. It 32 32 The confusion, at least as to the matter of indictments and jury trial, cf. note 33, has its origin in historical error exposed in Fox, The History of Contempt of Court (1927), and Frankfurter and Landis, Power of Congress over Procedure in "Inferior" Federal Courts A Study in Separation of Powers (1924) 37 Harv. L. Rev. 1010. "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.'' Frankfurter and Landis, supra, at 1042. Until 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." Id., 1046. However, Wilmot, J., in 1765, influenced by Star Chamber procedure and precedents, although the Star Chamber had been abolished in 1641, stated that it was "immemorial usage" to punish all con 258 RUTLEDGE, J., dissenting. is not necessary in this case to ask or decide whether all of the Constitution's criminal procedural protections thrown about all other criminal prosecutions, without suggestion of explicit exception, apply to criminal contempt proceedings. It is enough that we are sure some of them apply, as this Court has ruled repeatedly." It does not matter that some of those which incontestably are applicable may not have been put in issue or preserved for review in this case. The question cuts more deeply than the tempts summarily. Almon's Case, Wilmot's Notes, p. 243.. And although this opinion was not published until thirty-seven years later, "there is ample evidence that, as a result of private communication between Wilmot and Blackstone, Wilmot's views of 1765 found their way, 'both in phrase and matter' into the fourth volume of the famous Commentaries published in 1769 . . . ." Frankfurter and Landis, supra, at 1046, n. 128. Wilmot's error "has bedevilled the law of contempt both in England and in this country ever since." Id., 1047. 34 This history furnishes a slender thread indeed for thinking that the Constitution makers had no purpose to apply the usual procedural protections to criminal contempts. "... it is very doubtful whether at the date of the Constitution that doctrine [of Almon's Case, supra] did form part of the common law adopted by the United States. Mr. Justice Wilmot's undelivered judgement lay concealed until the year 1802, and. so far as is known, was not cited in an English Court until the hearing of Burdett v. Abbot in 1811. It was first cited with approval from the Bench in 1821, and was not therefore adopted as the common law of England until after the establishment of the American Constitution." Fox, supra, at 207. 33 See note 30. It has been ruled consistently, however, that the rights to have the proceeding begun by indictment, Amend. V, and tried by jury, Amend. VI, do not apply. E. g., Eilenbecker v. District Court, 134 U. S. 31; Gompers v. United States, 233 U. S. 604; In re Debs, 158 U. S. 564. "Defendants have not argued either in the District Court or in this Court that they are constitutionally entitled to a jury trial. And they expressly waived in open court whatever rights they had to an advisory jury. On the other hand if, as I think, the Norris-LaGuardia Act's provisions have been adopted for this and like cases, cf. Part I, § 11 of that Act of its own force secured the right of trial by jury and forbade waiver otherwise than in writing. Federal Rules of Criminal Procedure, Rule 23 (a). |