Arthur Goldberg

“ Since criminal contempts, as they are now punished, can no longer be deemed a species of petty offense punishable by trivial penalties, defendants' constitutional claim to trial by jury should not be denied on the authority of the history of criminal contempt at the time of the Constitution nor on the authority of the past decisions of this Court which relied on that history. ”

“ The statute does not say in negative terms that whenever the alleged contempt 'shall consist in willful disobedience of any lawful * * * order' of any Court of Appeals, the accused shall not be entitled to a trial by a jury. It says in affirmative terms that whenever the alleged contempt 'shall consist in willful disobedience of any lawful * * * order * * * of any district court * * *, the accused * * * shall be entitled to trial by a jury.' (Emphasis added.) Defendants here are charged with disobedience of an order of a District Court. ”

“ Governor Barnett must be deemed included within the coverage of the earlier orders enjoining 'all persons acting in concert with (the named defendants) , as well as any and all persons having knowledge of the decree * * *.' Were this not so, Governor Barnett's alleged contempts of the earlier orders would have to fall, as would Lieutenant Governor Johnson's alleged contempt of all the orders he is accused of violating, since he was not specifically named in any of them. ”

“ Its ultimate interest-securing compliance with the courts' orders requiring Meredith's admission-was identical with the interest of the private plaintiff, and it was invited by the court to render necessary aid in that direction.
The Government's argument thus goes too far. 'After all, a federal court can always call on law officers of the United States to serve as amici' 'to represent the public interest in the administration of justice.' Ibid. ”

“ The Connecticut statute permitting summary punishment for certain types of contempts contained a proviso ' (t) hat no single minister of justice shall inflict any other punishment (for criminal contempt than) * * * putting them in the stocks, there to sit not exceeding two hours; or imposing a fine, not exceeding five dollars.' [9] (Emphasis in original.) The Delaware statute permitted a contemner to 'be fined in any sum not exceeding Five Pounds'; it did not permit imprisonment for criminal contempt. ”

“ It is further ordered that the defendants, their servants, agents, employees, successors and assigns, and all persons acting in concert with them, are enjoined to admit the plaintiff, James Howard Meredith to the University of Mississippi upon his applications heretofore filed and they are enjoined from excluding the said James Howard Meredith from admission to continued attendance at the University of Mississippi or discriminating against him in any way whatsoever because of his race. ”

“ Every procedural safeguard they established purposely made it more difficult for the Government to convict those it accused of crimes. On their scale of values justice occupied at least as high a position as economy.' Green v. ”

“ Their claim should be evaluated by analyzing the real nature of criminal contempts and applying the policy of the constitutional requirement of trial by jury in 'allcrimes' and 'all criminal prosecutions.' [36]
5. ”

“ The criminal contempt section was part of a more general title which permitted a judge to try 'any matter of a criminal nature * * * where the penalty does not exceed the sum of seven dollars.' (Emphasis in original.) Id., at 230.↑ An Act against drunkenness, etc., apparently enacted in 1737. ,1 Laws of Del. (1797) , 173. The criminal contempt section is part of a general statute permitting trial without a jury for a number of petty offenses, e.g., 'drunkenness' (five shillings) ; 'prophane cursing and swearing' (five shillings and three hours in the stocks) ”

“ 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 Yates, 4 Johnson's Rep. ”

“ The Court did, however, explicitly consider the issue.↑ See United States v. Duane, 25 Fed.Cas. page 920, No. 14,997 (1801) : 'We confine ourselves within the ancient limits of the law (of criminal contempt) , recently retraced by legislative provisions and judicial decisions.' At 922.↑ An Act Concerning D linquents, May 1667, 1 Conn.Pub.Stat.Laws (1808) , 231-232. The statute also permitted 'imprisonment, binding to the peace or good behaviour to the next county court.' Id., at 231. ”