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FRANKFURTER, J., dissenting.

in its exercise. Hence Congress, by legislation dating back more than a hundred years, has put geographic and procedural restrictions upon the power of United States courts to punish summarily for contempt. See Michaelson v. United States, 266 U. S. 42; Nye v. United States, 313 U. S. 33. And even before Congress drew on its power to put limits on inherent judicial authority, this Court derived the general boundaries of this

power from its purpose, see Anderson v. Dunn, 6 Wheat. 204; more recently, the Court has defined the procedure appropriate for its exercise. See Cooke v. United States, 267 U. S. 517.

The Court did so for a reason deeply imbedded in our legal system and by that very fact too often neglected. Times of tension, which are usually periods of war and their aftermath, bring it to the surface. Reflecting no doubt their concern over untoward events in law enforcement arising out of the First World War, Mr. Justice Brandeis and Mr. Justice Holmes gave quiet warning when they observed that "in the development of our liberty insistence upon procedural regularity has been a large factor." Burdeau v. McDowell, 256 U. S. 465, 477. It is not for nothing that most of the provisions of our Bill of Rights are concerned with matters of procedure.

That is what this case is about-"procedural regularity." Not whether these petitioners have been guilty of conduct professionally inexcusable, but what tribunal should sit in judgment; not whether they should be punished, but who should mete out the appropriate punishment; not whether a Federal court has authority to prevent its proceedings from being subverted, but how that authority should be exercised so as to assure the rectitude of legal proceedings and at the same time not detract from the authority of law itself.

This case arises out of the trial of the eleven Communist Party leaders whose convictions were sustained in

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Dennis v. United States, 341 U. S. 494. In many ways it was a trial wholly out of the ordinary-in its length, the nature of the issues, the political and emotional atmosphere in which they were enveloped, the conduct of court and counsel, the conflicts between them. After several weeks of proceedings on pre-trial motions, the trial proper got under way. Nine weeks were consumed in getting a jury and thirty more in trying the case to the jury. Immediately after the jury brought in the verdict of guilty against the defendants, the trial judge charged the five defense lawyers and one of the defendants (who had conducted his own defense) with contempt of court during the trial. He filed a carefully prepared, elaborate certificate of contempt containing forty charges, and without further hearing found them guilty and imposed sentences ranging from thirty days' to six months' imprisonment. These specifications charged misconduct of a nature especially reprehensible when committed by lawyers, who, as officers of the court, are part of our judicial system. As such they are under a duty to further, not obstruct, the rational and fair administration of justice.

The certificate on which petitioners were found guilty of contempt charged thirty-nine occurrences during the trial as thirty-nine items of misconduct. However, these specified items were not regarded by the judge as discrete instances. He deemed them manifestations of a conspiracy by the contemnors against him. To be sure, Specifications II to XL were individually charged and therefore are technically sustainable by themselves and not merely as overt acts of the conspiracy, set forth with much detail as Specification I. But the core of the charges the gravamen of the accusations against these petitioners was that the petitioners had

"joined in a wilful, deliberate, and concerted effort to delay and obstruct the trial of United States v. Foster,

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FRANKFURTER, J., dissenting.

et al., C 128-87, for the purpose of causing such disorder and confusion as would prevent a verdict by a jury on the issues raised by the indictment; and for the purpose of bringing the Court and the entire Federal judicial system into general discredit and disrepute, by endeavoring to divert the attention of the Court and jury from the serious charge against their clients of a conspiracy in substance to teach and advocate the overthrow of the Government of the United States by force and violence, by attacking the Presiding Judge and all the Judges of this Court, the jury system in this District, the Department of Justice of the United States, the President of the United States, the police of New York City, and the public press of New York and other cities."

Though the certificate makes it plain enough, a reading of the record leaves no doubt that in the judge's mind the individual occurrences set forth in Specifications II to XL derived their chief significance from his finding that they were tributary to the design upon which the petitioners had embarked-a conspiracy against the judge in order to prevent a fair trial of the issues. He found them guilty of that. But the Court of Appeals reversed-and the Government has not questioned this reversal of the trial judge the convictions of the petitioners on the main charge, that of conspiracy. However, that court, with one judge dissenting, did sustain the convictions on thirty-seven other specifications. 182 F. 2d 416. Convictions on two specifications were found unsupported by evidence. Ibid.

I would not remotely minimize the gravity of the conduct of which the petitioners have been found guilty, let alone condone it. But their intrinsic guilt is not relevant to the issue before us. This Court brought the case here in order to consider whether the trial court followed the proper procedure in determining that the misconduct of

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the petitioners subjected them to punishment. 342 U. S. 858. Time out of mind this Court has reversed convictions for the most heinous offenses, even though no doubt about the guilt of the defendants was entertained. It reversed because the mode by which guilt was established disregarded those standards of procedure which are so precious and so important for our society. So here, the only question for decision is whether, in the circumstances of this case, the trial judge himself should, without notice and hearing and after the successful termination of the trial, have summarily punished a series of contempts growing out of what he conceived to be a central mischievous design, committed over a period of nine months; or whether another judge, designated by the Chief Judge of the Court of Appeals or of the District Court for the Southern District of New York, should have heard, after due notice, the charges of contempt made by the trial judge. At the end of the trial the judge was not confronted with the alternatives of doing what he did or allowing the contemnors to go unpunished. The question was not punishment, but who should punish. Due regard for such procedural questions, too often misconceived as narrow and technical, alone justifies the truth of one of the great boasts of our democracy, the essential fairness of our judicial system.

The particular circumstances of this case compel me to conclude that the trial judge should not have combined in himself the functions of accuser and judge. For his accusations were not impersonal. They concerned matters in which he personally was deeply engaged. Whatever occasion may have existed during the trial for sitting in judgment upon claims of personal victimization, it ceased after the trial had terminated. It falls to this Court as head of the Federal judicial system to correct such abuse of judicial power.

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FRANKFURTER, J., dissenting.

All grants of power, including the verbally unlimited terms of Rule 42 (a) of the Rules of Criminal Procedure, are subject to the inherent limitation that the power shall be fairly used for the purpose for which it is conferred. It is a limitation derived not merely from general considerations of reason but from the traditional concepts of the proper discharge of the judicial function. "A criminal contempt may be punished summarily," so runs Rule 42 (a), "if the judge certifies that he saw or heard the conduct constituting the contempt and that it was committed in the actual presence of the court." The Rule merely permits summary punishment. It does not command summary punishment of all contempts "committed in the actual presence of the court," in all circumstances and at any time. That there are unexpressed limits to this power is recognized even by the Government. For it concedes that a judge could not summarily punish contempt without notice and hearing at any undefined time long after it has occurred in his presence. In short, Rule 42 (a), which in 1946 declared what the law was,' acknowledges an undefined power for imposing summary punishment without expressly laying down the boundaries of the power granted. Legislation normally carries such implications.

To recognize the generality of a power is the beginning not the end of the inquiry whether in the specific circumstances which invoked the power due regard was had for the implied restrictions. Among the restrictions to be implied, as a matter of course, are two basic principles of our law-that no judge should sit in a case in which he is personally involved and that no criminal punishment should be meted out except upon notice and due hearing, unless overriding necessity precludes such indispensable

1 See Notes of Advisory Committee on Rule 42 (a), Federal Rules of Criminal Procedure.