As to the other ground of objection urged-that is, that any interference with the full and complete dominion and discretion of the courts tends to disorganization and to the weakening of judicial authority-judging by the course of previous discussion on this measure, it is not anticipated that the policy of the provision placing a limitation upon the punishment which can be inflicted will be strenuously criticized, and, therefore, we will make no further comment on that.

TRIAL BY JURY.

The feature of the bill against which the most strenuous argument has been directed is that providing for jury trials. But no one has shown that such provision amounts to anything more than a change of procedure. So that the question comes down to this, Has Congress or not the power to prescribe procedure? The courts will still, if this bill passes, have all the substantive power left in their hands by the act of 1831. Not one of the acts there catalogued will have been eliminated. The method of ascertaining the facts in certain cases is changed, but their ascertainment is still under supervision of the court, and ample safeguards are provided against evasions and miscarriages of justice.

A contemnor, from the moment the facts are judicially ascertained, is, by uniform practice, either placed in durance or required to give bail. The result of an adverse judgment is always penal, both in form and effect, though the fine be sometimes turned over to a private litigant.

The manner of disposing of the fine does not alter, in any respect, the form and effect of the procedure, or change it from criminal to civil.

SUCH LEGISLATION LONG DEMANDED.

The bill is an evolution from prolonged and varied discussion, by no means limited to a recent date or to the present Congress. Every feature and provision of it has been subjected to attack and defense, but the whole controversy appears to have at length converged upon the issue of whether or not the policy and practice of jury trial in contempt cases shall be admitted in the Federal jurisprudence at all.

That complaints have been made and irritation has arisen out of the trial of persons charged with contempt in the Federal courts is a matter of general and common knowledge. The charge most commonly made is that the courts, under the equity power, have invaded the criminal domain, and under the guise of trials for contempt have really convicted persons of substantive crimes for which, if indicted, they would have had a constitutional right to be tried by jury. It has been the purpose of your committee in this bill to meet this complaint, believing it to be a sound public policy so to adjust the processes of the courts as to disarm any legitimate criticism; and your committee confidently believes that, so far from weakening the power and effectiveness of Federal courts, this bill will remove a cause of just complaint and promote that popular affection and respect which is in the last resolve the true support of every form of governmental activity.

ACTS OF CONGRESS RELATING TO CONTEMPTS.

Statutes at Large, vol. 1, First Congress, first session, chapter 20: AN ACT To establish the Judicial Courts of the United States, approved September 24, 1789.

SEC. 17. And be it further enacted, That all the said courts of the United States shall have power to grant new trials, in cases where there has been a trial by jury for reasons for which new trials have usually been granted in the courts of law; (a) and shall have power to impose and administer all necessary oaths or affirmations, and to punish by fine or imprisonment, at the discretion of said courts, all contempts of authority in any cause or hearing before the same; (b) and to make and establish all necessary rules for the orderly conducting of business in the said courts, provided such rules are not repugnant to the laws of the United States. (This section at page 83; letters in paren theses refer to notes at the bottom of the page.)

Act of March 2, 1831, upon which sections 725, 5399, 5404, 5405, and 5406, Revised Statutes, above quoted, is based, was as follows:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the power of the several courts of the United States to issue attachments and inflict summary punishment for contempts of court shall not be construed to extend to any cases except the misbehavior of any person or persons in the presence of the said courts, or so near thereto as to obstruct the administration of justice, the misbehavior of any of the officers of the said courts in their official transactions, and the disobedience or resistance by any officer of the said courts, party, juror, witness, or any other person or persons, to any lawful writ, process, order, rule, decree, or command of the said courts.

SEC. 2. And be it further enacted, That if any person or persons shall, corruptly, or by threats or force, endeavor to influence, intimidate, or impede any juror, witness, or officer, in any court of the United States, in the discharge of his duty, or shall, corruptly, or by threats or force, obstruct, impede, or endeavor to obstruct or impede, the due administration of justice therein, every person or persons so offending shall be liable to prosecution therefor by indictment, and shall, on conviction thereof, be punished by fine not exceeding five hundred dollars, or by imprisonment not exceeding three months, or both, according to the nature and aggravation of the offense.

Approved, March 2, 1831.

Section 725 Revised Statutes United States (1878):

SEC. 725. The said courts shall have power to impose and administer all necessary oaths and to punish, by fine or imprisonment, at the discretion of the court, contempts of their authority: Provided, That such power to punish contempts shall not be construed to extend to any case except the misbehavior of any person in their presence, or so near thereto as to obstruct the administration of justice, the misbehavior of any of the officers of said courts in their official transactions, and the disobedience or resistance by any such officer, or by any party, juror, witness, or other person, to any lawful writ, process, order, rule, decree, or command of said courts. (Stat. L., vol. 4, p. 487, 21st Cong., 2d sess., chap. 99, "An act declaratory of the law concerning contempts of court," approved Mar. 2, 1831.)

NOTE.-Section 725 of the Revised Statutes is reenacted by section 268 of the Judicial Code, effective January 1, 1912, and section 725 is repealed by section 297 of the same code.

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Section 268 of the Judicial Code (1912):

SEC. 268. The said courts shall have power to impose and administer all necessary oaths, and to punish, by fine or imprisonment, at the discretion of the court, contempts of their authority: Provided, That such power to punish contempts shall not be construed to extend to any cases except the misbehavior of any person in their presence, or so near thereto as to obstruct the administration of justice, the misbehavior of any of the officers of said courts, in their official transactions, and the disobedience or resistance by any such officer, or by any party, juror, witness, or other person to any lawful writ, process, order, rule, decree, or command of the said courts. (Rev. Stats., sec. 725, 1878.)

Section 5399, Revised Statutes United States (1878):

SEC. 5399. Every person who corruptly, or by threats or force, endeavors to influence, intimidate, or impede any witness, or officer, in any court of the United States, in the discharge of his duty, or corruptly, or by threats or force, obstructs or impedes, or endeavors to obstruct or impede, the due administration of justice therein, shall be punished by a fine of not more than five hundred dollars, or by imprisonment not more than three months, or both. vol. 4, p. 488; act approved Mar. 2, 1831.)

Section 5404, Revised Statutes United States (1878):

(Stat. L,

SEC. 5404. Every person who corruptly, or by threats or force, or by threatening letters, or any threatening communications, endeavors to influence, intimidate, or impede any grand or petit juror of any court of the United States in the discharge of his duty, or who corruptly, or by threats or force, or by threatening letters, or any threatening communications, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice therein, shall be punishable by a fine of not more than one thousand dollars, or by imprisonment not more than one year, or by both such fine and imprisonment. (Stat. L., chap. 420, vol. 17, p. 378; act of June 10, 1872.)

Section 5405, Revised Statutes United States (1878):

SEC. 5405. Every person who attempts to influence the action or decision of any grand or petit juror upon any issue or matter pending before such furor or before the jury of which he is a member, or pertaining to his duties, by writing or sending to him any letter or any communication in print or writing in relation to such issue or matter, without the order previously obtained of the court before which the juror is summoned, shall be punishable by a fine of not more than one thousand dollars or by imprisonment not more than six months, or by both such fine and imprisonment. (Stat. L., vol. 17, p. 378, chap. 420, act of June 10, 1872.)

Section 5406, Revised Statutes United States (1878):

SEC. 5406. If two or more persons in any State or Territory conspire to deter by force, intimidation, or threat any party or witness in any court of the United States from attending such court or from testifying to any matter pending therein freely, fully, and truthfully, or to injure such party or witness in his person or property on account of his having so attended or testified, or to influence the verdict, presentment, or indictment of any grand or petit juror in any such court, or to injure such juror in his person or property on account of any verdict, presentment, or indictment lawfully assented to by him, or of his being or having been such juror, each of such persons shall be punished by a fine of not less than five hundred, nor more than five thousand dollars, or by Imprisonment with or without hard labor not less than six months nor more than six years, or by both such fine and imprisonment. (Stat. L., vol. 17, p. 13, Apr. 20, 1871.)

NOTE.-Sections 5399, 5404, 5405, and 5406 of the Revised Statutes are repealed by section 341 and reenacted by sections 135, 136, and 137 of the Criminal Code, effective January 1, 1910.

Section 135, Criminal Code (1910):

SEC. 135. Whoever corruptly, or by threats or force, or by any threatening letter or communication, shall endeavor to influence, intimidate, or impede any witness in any court of the United States, or before any United States commissioner or officer acting as such commissioner, or any grand or petit Juror

or officer in or of any court of the United States, or officer who may be serving at any examination or other proceeding before any United States commissioner or officer acting as such commissioner, in the discharge of his duty, or who corruptly or by threats or force, or by any threatening letter or threatening communication, shall influence, obstruct, or impede, or endeavor to influence, obstruct, or impede the due administration of justice therein, shall be fined not more than one thousand dollars or imprisoned not more than one year, or both. (Rev. Stats., secs. 5399, 5404.)

Section 136, Criminal Code (1910):

SEC. 136. If two or more persons conspire to deter, by force, intimidation, or threat, any party or witness in any court of the United States, or in any examination before a United States commissioner or officer acting as such commissioner, from attending such court or examination, or from testifying to any matter pending therein, freely, fully, and truthfully, or injure such party or witness in his person or property on account of his having so attended or testified, or to influence the verdict, presentment, or indictment of any grand or petit juror in any such court, or to injure such juror in his person or property on account of any verdict, presentment, or indictment lawfully assented to by him, or on account of his being or having been such juror, each of such persons shall be fined not more than five thousand dollars or imprisoned not more than six years, or both. Rev. Stats., sec. 5406.)

Section 137, Criminal Code (1910):

SEC. 137. Whoever shall attempt to influence the action or decision of any grand or petit juror of any court of the United States, upon any issue or matter pending before such juror, or before the jury of which he is a member, or pertaining to his duties, by writing or sending to him any letter or any communication, in print or writing, in relation to such issue or matter, shall be ined not more than one thousand dollars or imprisoned not more than six months, or both. (Rev. Stats., sec. 5405.)

THE BILL.

(H R. 2259;, Sixty-second Congress, second session.]

IN THE HOUSE OF REPRESENTATIVES, MARCH 29, 1912.

Mr. CLAY TON introduced the following bill; which was referred to the Committee on the Judiciary and ordered to be printed.

A BILL To amend an Act entitled "An Act to codify, revise, and amend the laws relating to the judiciary," approved March third, nineteen hundred and eleven.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the act entitled "An act to codify, revise, and amend the laws relating to the judiciary," approved March third, nineteen hundred and eleven, be, and the same is hereby, amended by inserting after section 268 thereof five new sections, to be numbered, respectively, 268 a, 268 b, 268 c, 268 d, and 268 e, reading as follows:

"SEC. 268 a. That any person who shall willfully disobey any lawful writ, process, order, rule, decree, or command of any district court of the United States by doing any act or thing therein or thereby forbidden to be done by him, if the act or thing so done by him be of such character as to constitute also a criminal offense under any statute of the United States or at common law shall be proceeded against for his said contempt as hereinafter provided.

"SEC. 268 b. That whenever it shall be made to appear to any district court or judge thereof, or to any judge therein sitting, by the return of a proper officer on lawful process, or upon the affidavit of some credible person, or by information filed by any district attorney, that there is reasonable ground to believe that any person has been guilty of such contempt, the court or judge thereof, or any judge therein sitting, may issue a rule requiring the said person so charged to show cause upon a day certain why he should not be punished therefor, which rule, together with a copy of the affidavit or information, shall be served upon the person charged with sufficient promptness to enable him to prepare for and make return to the order at the time fixed therein. If upon or by such return, in the judgment of the court, the alleged contempt be not sufficiently purged, a trial shall be directed at a time and place fixed by the court: Provided, however, That if the accused, being a natural person, fail or refuse to make return to the rule to show cause, an attachment may issue against his person to compel an answer, and in case of his continued failure or refusal, or if for any reason it be impracticable to dispose of the matter on the return day, he may be required to give reasonable bail for his attendance at the

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