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EDITORS' NOTE: Discussing the historical background of the right of trial by jury in contempt cases, Senator Ervin (D., N.C.) maintained that there is a difference between contempts committed in the presence of the court, which affect the administration of justice and therefore must be dealt with immediately, and criminal contempt, which ordinarily occurs away from the court.
5-13-64 p. 10810
Mr. ERVIN. Mr. President, I have given details in connection with the passage of various acts of Congress, and I have attempted to analyze the contents of those acts, which secure to persons charged with criminal contempt the right of trial by jury under varying 'circumstances, and which in some cases and under other circumstances deny persons charged with criminal contempt the right of trial by jury.
The United States was not much concerned with the question of the right of trial by jury in criminal contempt cases in the early days of this Republic. I think the reasons for that situation will become apparent when we consider the conditions which prevailed in the early days in the various States. It is one of the great truths of life that if we are to understand the laws and institutions of today, we must understand the events of yesterday which gave them birth. Although I do not profess to be an authority on the legal systems of the various States of the Union, I have devoted a considerable amount of time to a study
of the legal system of my State of North Carolina, which I am convinced was similar in most respects to those of the other original American States.
It is easy to understand why the early Americans were not much concerned with jury trials in connection with criminal contempt charges. In fact, they were not much harassed by proceedings for criminal contempt. In the early days of this Republic, about the only kinds of contempt which ordinarily were acted upon by the courts were contempts which were committed in the immediate presence of the court and contempts which, in effect, constituted insults of the court, being committed in its presence, and having the effect of obstructing the administration of justice.
Those contempts were punished, in those days, as they are punished nowadays; and it was right that they be so dealt with. That was true because the contempts were committed in the presence of the court, and constituted an offense to the administration of justice itself, and had to be dealt with immediately if the dignity and decorum of the court and its capacity to administer justice were to be preserved. But those contempts were different from contempts in criminal contempt cases. That is true because criminal contempt ordinarily takes place in the absence of the court.
Title XI: Jury Trial for Criminal Contempt
EDITORS' NOTE: The Dirksen-Mansfield substitute provided that, in criminal contempt proceedings under the law, the accused would be tried with or without a jury in the discretion of the judge. If further provided that in the absence of a jury, the aggregate fine could not exceed $300 and imprisonment could not be for more than 30 days. This section of the substitute later was changed by adoption of the Morton amendment (see below)
Mr. JOHNSTON. The Senator has made a statement that is worth listening to.
Mr. ERVIN. Does not the Senator from South Carolina agree with the Senator from North Carolina that any nation which fails to heed the lessons of history is due to repeat the mistakes of the past?
Mr. JOHNSTON. The Senator is entirely correct in that statement. When we study the history of the right of trial by jury over the past hundreds of years, and read about the blood which was shed in the endeavor, and the people who were punished for trying to obtain the right of trial by jury, and observe that now, when we have the right of trial by jury, it is proposed to let it slip through our fingers in the manner suggested, we must conclude that something is wrong with the thinking of the American people.
Mr. ERVIN. Does not the Senator from South Carolina believe it is rather peculiar that shortly after the conscience of the Nation revolted against the abuse of the injunctive process in labor cases, it should be proposed in the pending civil rights bill that government by injunction be established in virtually all business and commercial enterprises throughout the United States, as well as in the assignment of children to public schools and in the administration of the approximately 167 programs under which the Federal Government provides financial assistance to one cause or another.
Mr. JOHNSTON. The Senator is correct. The action that we have witnessed shows that someone has been failing to study history and ascertain the things that harmed us only a generation ago. Now it is proposed to tear down the barrier. The Senator from North Carolina and I, in our speeches to the Senate have warned that labor had better look out if the bill passes.
Mr. ERVIN. Does not the Senator from South Carolina agree with the Senator from North Carolina that, in view of the abuse of government by injunction in the labor field, it is rather shocking to hear some labor leaders advocate the passage of a bill of the character of the one now pending before the Senate, which would extend the rule of government by injunction to virtually all of the business and commercial enterprises in the United States?
Mr. JOHNSTON. The Senator is a prophet. He is bringing to our attention some points that I fear even the Senate
and many people in the United States do not realize would be involved in the passage of the bill.
Mr. ERVIN. Does not the Senator from South Carolina agree with the Senator from North Carolina that the right of trial by jury is essential to the preservation of the right of the individual to be free from governmental tyranny?
Mr. JOHNSTON. That is the only way in which the individual can be protected against the Government.
Mr. ERVIN. Does the Senator from South Carolina agree with the Senator from North Carolina that it would be wise to have trial by jury in every case, because of the fact that trial by jury enables the great mass of our citizens to participate in the administration of justice, instead of having the administration of justice solely in the hands of a single professional class; namely, the lawyers?
Mr. JOHNSTON. The Senator is correct again.
Mr. ERVIN. I thank the Senator.
Mr. JOHNSTON. I thank the Senator from North Carolina for bringing out the pertinent points to which he has referred. His remarks have relevancy to the question under discussion, which is the right of trial by jury.
I continue to read from the opinion of Justice Goldberg, which was concurred in by the Chief Justice and Mr. Justice Douglas:
The laws of other States similarly limited the maximum penalties which could be imposed summarily for criminal contempts. The available evidence of the practice in criminal contempt cases also suggests that punishments were trivial. This practice was described by Chief Justice Kent in 1809 as follows: "There is no such thing as an abuse of this power in modern times. The case probably is not to be found. An alarm cannot be excited at its existence, in the extent now laid down. ・・・ The tendency of the times, is rather to induce the courts to relax, than increase in the severity of their ancient discipline, to exercise their power over contempts with extreme moderation." In the case of John V. N. Yates, 4 Johnson's Rep. (N.Y. 1809) 317, 375-376. And, in 1916, the Supreme Court of Iowa summarized a century and a quarter of practice in criminal contempt cases in the following terms:
"The authorities may be searched in vain for any precedent, under our constitutional form of government, holding it to be in the power of a State to clothe its courts with authority to visit infamous punishment upon any person for contempt or in any proceeding whatever, other than the orderly process of trial." Flannagan v. Jepson, 158 N.W. 641, 643-644.
Madam President, in just a moment I intend to go into the history of the right of trial by jury which I think is imperative in order to remind the Members of the Senate of what sarcifices and hardship the people who founded our Nation went through in order to gain this right. Before I do that, I want to read the proposed amendment offered by Mr. DIRKSEN and Mr. MANSFIELD in the nature of a substitute to a section of the civil rights bill now before us.
Madam President, the amendment before the Senate at the present time reads:
SEC. 1101. CRIMINAL CONTEMPT PROCEEDINGS; PENALTIES; TRIAL BY JURY.-In all cases of criminal contempt arising under the provisions of this Act, the accused, upon conviction, shall be punished by fine or imprisonment or both: Provided, however, That in case the accused is a natural person the fine to be paid shall not exceed the sum of $1,000, nor shall imprisonment exceed the term of six months: Provided further, That in any such proceeding for criminal contempt, at the discretion of the judge, the accused may be tried with or without a jury: Provided further, however, That in the event such proceeding for criminal contempt be tried before a judge without a jury the aggregate fine shall not exceed the sum of $300 nor any cumulative imprisonment exceed thirty days. If the trial is by a jury, the procedure shall conform as near as may be to that in other criminal cases.
SEC. 1102. Section 151 of the Civil Rights Act of 1957 (41 Stat. 638) is amended by striking out the third proviso to the first paragraph thereof, and inserting in lieu thereof the following: "Provided further, however, That in the event such proceeding for criminal contempt be tried before a judge without a jury the aggregate fine shall not exceed the sum of $300 nor any cumulative imprisonment exceed thirty days. If the trial is by a jury, the procedure shall conform as near as may be to that in other criminal cases."
Madam President, the right of trial by jury was not casily come by and the men who founded this country and who wrote the Constitution felt so strongly on this right that they, in the clearest of language, wrote it into the Constitution. As Mr. Justice Goldberg and Mr. Justice Douglas, together with the Chief Justice, pointed out in their dissenting opinion in the United States against Barnett, the States themselves, at the time the Bill of Rights was ratified, had specific statutory limitations on the punishment which could be imposed summarily for criminal contempts. Even then the Founding Fathers were preserving the right of trial by jury, and when they
The keystone of Fascist doctrine is the conception of the state, of its essence, of its tasks, of its ends. For fascism the state is an absolute before which individuals and groups are relative. Individuals and groups are "thinkable" insofar as they are within the state. The liberal state does not direct the interplay and the material and spiritual development of the groups, but limits itself to registering the results; the Fascist state has a consciousness of its own, a will of its own, on this account it is called an "ethical" state. In 1929, at the first Quinquennial Assembly of the regime, I said:
"For fascism, the state is not the nightwatchman who is concerned only with the personal security of the citizens; nor is it an organization for purely material ends, such as that of guaranteeing a certain degree of prosperity and a relatively peaceful social order, to achieve which a council of administration would be sufficient, nor is it a creation of mere politics with no contact with the material and complex reality of the lives of individuals and the life of peoples. The state, as conceived by fascism and as it acts, is a spiritual and moral fact because it makes concrete the political, juridical, economic organization of the nation and such an organization is, in its origin and in its development, a manifestation of the spirit. The state is the guarantor of internal and external security, but it is also the guardian and the transmitter of the spirit of the people as it has been elaborated through the centuries in language, custom, faith. The state is not only present, it is also past, and above all future. It is the state which, transcending the brief limit of individual lives, represents the imminent conscience of the nation. The forms in which states express themselves change, but the necessity of the state remains. It is the state which educates citizens for civic virtue, makes them conscious of their mission, calls them to unity; harmonizes their interests in justice; hands on