681 GOLDBERG, J., dissenting. therein, impose any fine on any person or persons, exceeding fifty dollars, or commit him, her or them, for a longer period than ten days: And provided, That in any case of aggravated contempt the court may impannel a jury, without any indictment, information or pleadings, in a summary manner, to ascertain the amount of fine or term of imprisonment, proper to be inflicted for such offence, and may impose the fine or imprisonment ascertained by the jury in manner aforesaid." 21 The laws of other States similarly limited the maximum penalties which could be imposed summarily for criminal contempts.2 21 Act of Apr. 16, 1831, Supp. to the Rev. Code of Va. (1833), 144. The Appendix to the opinion of the Court correctly notes that the punishment sanctioned for other categories of contempt within this statute-violence or threats of violence to judges, witnesses or jurors, misbehavior of court officers, and disobedience of a court order-was not specifically limited. Ante, at 723. At the time of the enactment of this and similar statutes, there were generally no factual disputes for resolution by a jury in criminal contempt cases; for if the alleged contemner denied under oath the factual allegations against him, the contempt charge was dismissed, and he was subject to indictment for perjury. See, e. g., Curtis and Curtis, The Story of a Notion in the Law of Criminal Contempt, 41 Harv. L. Rev. 51, 63-64; 4 Blackstone, Commentaries, 288; Wells v. Commonwealth, 21 Grattan's Rep. (Va. 1871), 500. "Contempt of court was sharply reproved [in Colonial Virginia]. The least that was required was an open apology, and the court often added a fine, or commitment to prison, usually to last until bond for good behavior was furnished. Sometimes an hour or two in the stocks was prescribed." Scott, Criminal Law in Colonial Virginia (1930), 171–172. 22 E. g., Rev. Stats. of Mich. (1846), Tit. XXI, c. 96, pp. 428-430 (30 days' imprisonment, $250 fine); Chase, Stats. of Ohio (17881833), c. 823, §§ 49, 53, pp. 1701-1702 (fine of $200); 'Iowa Code (1850-1851), Tit. 18, c. 94, § 1600, p. 237 (one day's imprisonment, $50 fine); Wis. Rev. Stats. (1849), c. 87, § 8, p. 439 (30 days' im GOLDBERG, J., dissenting. 376 U.S. The available evidence of the practice in criminal contempt cases also suggests that punishments were trivial.23 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 prisonment, $250 fine); Mo. Rev. Stats. (1835), Act of Mar. 7, 1835, § 58, p. 160 (10 days' imprisonment, $50 fine); Minn. Terr. Rev. Stats. (1851), c. 92, § 12, p. 456 (six months' imprisonment, $250 fine); Miss. Stats. (1840), c. 40, § 26, p. 486 (imprisonment during "the term of the court at which the contempt shall have been committed"; courts held two terms annually; $100 fine); Thomson's Digest of the Laws of Fla. (1847), 3d Div., Tit. I, c. 1, § 2, p. 321 (30 days' imprisonment, $100 fine); Ark. Stats. (1837), c. 43, § 38, pp. 234-235 (10 days' imprisonment, $50 fine); Battle's Revisal, Pub. Stats. of N. C. (1873), Act of 1868, c. 24, § 2, p. 257 (imprisonment for 30 days, fine of $250); Laws of Vt. (1824), Act of Nov. 11, 1818, c. 31, § 27, p. 259 (fine of $200). Cf. Georgia Stats. (Feb. 1799), an Act to amend an Act, entitled "An act to revise and amend the Judiciary System of this State," § 26, p. 30, limiting the punishment which courts may impose "in case of a jury committing a contempt" to "a sum not exceeding one hundred dollars." See also § 20, p. 26, providing for "an attachment against . . . defaulting witness" and limiting the punishment to $300. See also Georgia Stats. (1851) 647, Act of Dec. 14, 1811, § XXVII, limiting the punishment which could be imposed by justices of the peace for criminal contempts to "any sum not exceeding $2, or imprisonment for a term not exceeding two days for each offence 23 See, e. g., cases cited, supra, note 14. 681 GOLDBERG, J., dissenting. 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, 177 Iowa 393, 400, 158 N. W. 641, 643-644. 2. Petty Offenses at About the Time of the This Court has recognized that: "At the time of the adoption of the Constitution there were numerous offenses, commonly described as 'petty,' which were tried summarily without a jury, by justices of the peace in England, and by police magistrates or corresponding judicial officers in the Colonies, and punished by commitment to jail, a workhouse, or a house of correction." District of Columbia v. Clawans, 300 U. S. 617, 624. New Jersey statutes, for example, permitted trial by a judge for offenses such as "profanely swearing" (punishable by a fine of "one half of a dollar," four hours in the stocks, or four days in the "common gaol"); "excessive use of spirituous, vinous, or other strong liquor" (fine of one dollar, four hours in the stocks, or four days in "gaol"); 24 and disorderly conduct (three months in the workhouse).25 In New York, trial by jury was not 24 Elmer's Digest of N. J. Law (1838), Act of Mar. 16, 1798, §§ 8 11, pp. 588, 589. 25 Paterson's Laws of N. J. (1800) 410. See also id., at 329, 333. GOLDBERG, J., dissenting. 376 U.S. required for offenses such as unlicensed practice by a physician (fine of five pounds); 26 offering copper coins of known inferior quality or weight (fine of six pounds or five times the value of the coins, whichever is less); 27 "drunkenness or swearing" (fine of three shillings or four hours in the stocks); 28 and false pretenses (imprisonment for six months).29 Maryland statutes permitted trial by a judge for offenses such as refusal by the mother of a bastard child to "discover" the father (fine of 30 shillings),30 and disorderly conduct (three months in the workhouse). Virginia permitted summary punishment for offenses ranging from improper issuing of notes (fine of 25 shillings) 32 to disorderly conduct (20 lashes and three months' imprisonment). 31 33 This history has led the Court to conclude that "the intent [of the Framers] was to exclude from the constitutional requirement of a jury the trial of petty criminal offenses." Schick v. United States, 195 U. S. 65, 70. It has similarly led the Court to conclude that "[e]xcept in that class or grade of offences called petty offences . the guarantee of an impartial jury to the accused in a criminal prosecution... secures to him the right to enjoy that mode of trial from the first moment, and in whatever court, he is put on trial for the offence charged," Callan v. Wilson, 127 U. S. 540, 557, and that "the severity of the penalty" must be considered in determining whether a violation of law, "in other respects trivial and not a crime 26 4 Colonial Laws of N. Y. (1760) 455. 27 1787 Laws (N. Y.), c. 97. 28 1 Colonial Laws of N. Y. (1708) 617. 29 1785 Laws (N. Y.), cc. 31, 40, 47. 30 1752 Md. Sess. Laws, 5. 31 1785 Md. Sess. Laws, c. 15, § 15. 32 Act of Oct. 1777, c. 24, §2. 33 1785 Va. Stats. (Oct. Sess.), c. 1, § 8; c. 4, § 3; c. 59; 1787 Va. Stats. (Oct. Sess.), c. 48, § 13. 681 GOLDBERG, J., dissenting. at common law, must be deemed so serious as to be comparable with common law crimes, and thus to entitle the accused to the benefit of a jury trial prescribed by the Constitution." District of Columbia v. Clawans, 300 U. S. 617, 625. 3. Criminal Contempt in Recent Years. There has been a dramatic increase in recent years in the severity of the punishment imposed in the federal courts without trial by jury for criminal contempt. For example, in Green v. United States, supra, and Collins v. United States, 269 F. 2d 745, sentences of imprisonment for three years were imposed; in Piemonte v. United States, 367 U. S. 556, a sentence of imprisonment for 18 months was imposed; in Brown v. United States, 359 U. S. 41, a sentence of imprisonment for 15 months was imposed; in Nilva v. United States, 352 U. S. 385, a sentence of imprisonment for one year and one day was imposed; and in Levine v. United States, 362 U. S. 610, a sentence of imprisonment for one year was imposed. 4. Historical Conclusions. The available evidence seems to indicate that (a) at the time of the Constitution criminal contempts triable without a jury were generally punishable by trivial penalties, and that (b) at the time of the Constitution all types of "petty" offenses punishable by trivial penalties were generally triable without a jury. This history justifies the imposition without trial by jury of no more than trivial penalties for criminal contempts. The Court, in light of the history reviewed here and in the Appendix to the opinion of the Court, has failed sufficiently to take into account the possibility that one significant reason why criminal contempts were tried without a jury at the time of the Constitution was because they were |