concurring (except as to Specification I)*.
1. “Friends of the court” have filed with us a large number of briefs which eloquently recall how, in the past, courageous law*454yers have importantly contributed to liberty and democracy by defending unpopular clients, despite the browbeating of tyrannical, domineering, trial judges. In those briefs, fear is expressed that, if we affirm any of the contempt orders in this case, lawyers for labor unions or for minority groups or for unpopular persons will, in the future, be intimidated or throttled.
The eloquence is misplaced. The fears are unfounded. We affirm the orders punishing these lawyers not because they courageously defended their clients, or because those clients were Communists, but only because of the lawyers’ outrageous conduct — conduct of a kind which no lawyer owes his client, which cannot ever be justified, and which was never employed by those advocates, for minorities or for the unpopular, whose courage has made lawyerdom proud. The acts of the lawyers for the defendants in this trial can make no sensible man proud.
What they did was like assaulting the pilot of an aeroplane in flight, or turning out the lights during a surgical operation. To use homelier words, they tried to throw a wrench in the machinery of justice. Whatever may have been their purpose, their acts might have made a trial of their clients impossible. Not to punish such behavior summarily, but, instead, to require a long trial of these lawyers,1 might well be to encourage that sort of behavior. The summary punishment here will tend to deter imitation of that behavior in other trials. If it is not deterred, the administration of justice in our courts is highly likely to break .down.
The basis of our decision is as simple as that. We affirm these orders, not because the personal .“dignity” of the trial judge was affronted; for such dignity, when it exists, manifests itself, needs no punitive safeguards.2 We affirm for the plain reason that the crude antics of these lawyers, if copied by lawyers in other cases, would almost surely disrupt trials.
Here we come to the ’heart of the matter: Preservation of the liberties of citizens, when on trial for crimes charged against them, demands order in the courtroom. Absent such order, no trial can be fair. More important, if criminal trials cannot go on in orderly fashion, then the defendants, if unpopular or if members of minority groups, may become the victims of that monstrous substitute for trials— mob violence. The gravest danger to those minorities, on whose behalf the “friends of the court” have spoken, could easily result from a denial of the power of a trial judge to deal with trial-disrupters as the judge has dealt with the lawyers here. In short, the protection of civil liberties calls for sustaining the contempt judgments in this case.
The trial judge, it is urged, committed grave errors at the trial, in that he improperly barred the lawyers from presenting evidence on their clients’ behalf, and from stating objections to his rulings adverse to those clients. Whether he thus erred we do not at all consider on these appeals; those asserted errors will be fully canvassed later, when the appeals of these lawyers’ clients are heard by this court. Even, however, if (for the sake of the argument) we were now to assume that the trial judge made those serious mistakes, that fact could not excuse the tactics of these lawyers. Often upper courts have reversed convictions because trial judges seriously misbehaved. But the lawyers who ably succeeded in procuring those reversals did not, during the trials, demean themselves in a disgraceful way. Every lawyer knows that brawling at a trial is not an effective means of bringing about the reversal of an erring judge. We have had quoted to us, from the Canons of Professional Ethics, a basic principle of the legal profession that “no fear of judicial disfavor or public unpopularity should restrain” a lawyer “from the full discharge of his duty” to his client. But we cannot agree that fearless discharge of that duty requires or permits a lawyer *455to turn a trial into a bar-room squabble. Nothing in our decision will alarm any lawyer, no matter what client he represents, who behaves as the overwhelming majority of our lawyers fortunately do.
2. Of course, the gravity of the lawyers’ misbehavior does not settle the question whether punishment by summary procedure was legally permissible. To that question I now turn.
Undeniably, to punish summarily for contempt — to charge and hold a man guilty of a crime without a trial — is, and should be, a most extraordinary exception in a civilized legal system; ordinarily, in this country an accused person is constitutionally entitled to a trial and before some one other than his accuser. But Congress and the Supreme Court have recognized one exception: The statute and the Rule (promulgated by the Supreme Court) explicitly authorize a trial judge to punish summarily — without a trial before another judge — conduct (a) which is contemptuous and (b) which the judge “saw and heard,” it being “committed in the actual presence of the court.” The validity of that statute or of that Rule is not challenged here by anyone.
Such exceptional procedure is designed, says the Supreme Court, “to' prevent ‘demoralization of the court’s authority,’ before the public.”3 And (other than the conduct described in Specification I) all the acts for which here the judge punished the lawyers were seen and heard by him, and happened in the court-room.
Specification I, however, charges that the lawyers “joined in a wilful, deliberate and concerted effort to delay and obstruct the trial.” This, I think, charges something in the nature of a conspiracy; and a conspiracy, inherently, involves an agreement. Although what happened in the judge’s presence was powerful evidence of such an agreement, the agreement itself, if there was one, presumably was made out of court; at any rate, it cannot be conclusively presumed that it was made in the judge’s presence; it is not entirely inconceivable that the inference of a conspiracy could be rebutted by evidence of matters not seen or heard or considered by the judge. In those circumstances, the judge, I think, could not properly sentence the lawyers under Specification I without a hearing, at which they would have the opportunity to offer evidence tending to show that they had not entered into a conspiracy. As this Specification involves both (a) possible out-of-court conduct and (b) “disrespect to or criticism of” the trial judge himself, I think the hearing (if ever there is one) must, under Rule 42(b), be before another judge.4 In but this one respect, I diverge from Judge Hand and agree with Judge Clark.
But the consequent reversal as to Specification I can have no practical effect. For the sentences of each of the lawyers run concurrently, and the record, as Judge Hand has shown, amply supports the other Specifications.5
3. So far as those Specifications are concerned — since they all charge acts in the court-room, seen and heard by the judge— the question of conspiracy is wholly irrelevant, because Specification I, being distinct and separate, cannot be read into those other Specifications. Nor, I think, was the conspiracy charge imported into them *456by the trial judge’s preliminary remarks. For I agree with Judge Hand that we should ignore those remarks as superfluous, since they are but the equivalent of the action of a trial judge who (after a defendant has been properly held guilty) fixes a long sentence — within the permitted statutory limits — due to his belief that the defendant, out of court and without reference to the case oh trial, had misbehaved. It has been held that such a'belief has no bearing on the propriety of the .sentence itself.6
4. Putting aside,the conspiracy issue, no one asserts that, because the charges involved “disrespect of or criticism” of the judge, the summary procedure was improper.7 The only argument made against its validity is that the judge did not sentence instantly after each offense occurred. In other words, it is argued that these lawyers are entitled to a trial, and before another judge, for the one and only one reason— apart from the contention (already considered) based on the conspiracy — that the trial judge, instead of acting on the impulse of the moment, restrained himself and sentenced at a later time.
This delay-argument (which finds no support in any explicit provision of the applicable statute or the Rule) takes several forms. Analysis is needed to expose its fallacies. It should first be noted that summary punishment necessarily has none but a future effect, for always that open-court obstruction or interruption of the court’s business which -justifies such punishment has, in the nature of things, already happened and cannot be prevented by any sort of punishment. No punishment, summary or otherwise, will undo the contempt, ever a thing of the past. Therefore, the exceptional power to punish summarily cannot be founded on the ability to forestall the punished behavior. Summary punishment, then, since its effect is wholly prospective, must be justified solely by the fact that it will tend to prevent future misconduct — either (1) in the future course of the same case or (2) in other future cases.
(a) The first form of the delay-argument assumes that here the case was over when (on October 14) the judge entered his contempt orders. In actual fact, it was not then over. Not until a week later (on October 21) did the judge (a) have presented to him the motions for new trial and arrest of judgment, made by the lawyers on behalf of their clients, and (b) hear lengthy arguments from the lawyers on the sentences to be imposed on those clients, and on the motions for bail, for those clients, pending appeal; only on that day (October 21) did the case terminate in the trial court, with the denial of those motions and the sentencing of the clients.
However, on the mistaken assumption of fact that the case was closed when the judge summarily punished the lawyers, the following argument is advanced;
Summary punishment is valid only if it will tend, by example, to stop future improper interruptions of the case then before the court — of the very same case in which the interruption happened. If, therefore, an in-court disturbance, no matter how shocking, is not immediately punished, and if, despite that disturbance, the case is not actually broken up but is able to reach its conclusion, summary punishment then imposed cannot serve its primary purpose— i. e., prevention (by example) of further interferences with that particular case — and is always forbidden. Never, it is contended, may the drastic summary method be used when its only possible value (aside *457from punishing the disturber) will be to deter, by example, similar interruptions of future cases.
In blunt terms, that contention would have this surprising result: Suppose that, in a criminal case, the jury had brought in its verdict and had been discharged; that the trial judge had then at once heard and denied a motion for a new trial; and that he had then sentenced the defendant, thus ending the case. Suppose.that, after the defendant and all participants in that case had departed, and while the judge was waiting, in open court, for another case to be called, someone in the court-room, shouting that the judge was a tyrant, threw an ink-bottle at him. According to this contention, the judge could not validly cite and punish the offender summarily, but would have to accord him a hearing, before another judge, with an opportunity to offer evidence. Why? Because the offense could not possibly disturb any case pending before the court, fop there was none, and the summary punishment could do no more than to deter misconduct in other, later, cases.
This contention, even were it sound, could not apply here. For here, as already noted, the case had not ended, so that the punishment of the lawyers could still tend to prevent further disturbances, in the very same case, by those lawyers or other persons.
But we need not consider that here the case had not ended, for the whole theory is unsound. It cannot be squared with the leading decision on the subj ect of summary contempt procedure, Ex parte Terry, 128 U.S. 289, 9 S.Ct. 77, 32 L.Ed. 405, where the case was over before the disturber was charged with contempt and summarily punished. These were the facts: After the circuit court had concluded its hearing of a pending case, the presiding judge began, in open court, to read the court’s opinion embodying its decision of that case. Terry’s improper conduct interrupted that reading, and he then left the court-room. The court did not, at once, cite and sentence him. Instead, the presiding judge resumed his reading of the court’s opinion. When he finished that reading, that case terminated. Only then did the court cite and summarily sentence Terry for contempt.8 Obviously, that summary procedure could not have prevented further interruptions by anyone of the progress of the case which Terry had interrupted. The summary punishment could have served no purpose other than to deter like interference (by Terry or others) with other cases.
It is said, in an attempted distinction of Terry’s case, that there the delay was short, while here it was long.9 I fail to understand, how the shortness, in Terry’s case, of the interval between misconduct and punishment can support the in-the-very-same-case argument.10 For that shortness cannot alter the basic fact that, in Terry’s case, the summary punishment could not conceivably tend to prevent anyone from interfering with the orderly progress of the very case in which the improper interference took place. If, then, an exclusively in-future-cases-deterring effect does not suffice to sustain a summary contempt proceed*458ing, Terry’s case was wrongly decided. But the Advisory Committee’s note to Rule 42(a) — the Rule authorizing summary contempt procedure — reads: “This Rule is substantially a restatement of existing law”; and the note cites Ex parte Terry in support of that statement.
That the in-future-cases-deterring effect is the primary reason for permitting summary punishment of in-court contempt appears from In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682. There the lower court had summarily punished alleged misconduct occurring at a secret court hearing. The Supreme Court held the summary procedure constitutionally invalid. After observing, 333 U.S. at page 275, 68 S.Ct. at page 509, that summary punishment may be used,only where it is essential to prevent “demoralization of the Court’s authority before the public,” the Supreme Court said, 333 U.S. at page 276, 68 S.Ct. at page 509: “Since the petitioner’s alleged misconduct all occurred in secret, there could be no possibility of a demoralization' of the court’s authority before the public.”11 In other words, the Supreme Court was saying that, since the misbehavior could not be known to other persons, and thus could not stimulate them to obstruct other trials, therefore, on that ground alone, summary punishment was improper. Someone, to be sure, may suggest that the Supreme Court did not have in mind the protection of a “court’s authority before the public” through such deterrence of others in other trials, but meant merely the preservation of the judiciary’s general glamor or a worshipful public attitude towards judges. But in 1821 the Supreme Court made it plain that the judicial power to punish contempt did not rest' on so weak a foundation as the judges’ desire for public admiration;12 and the Supreme Court, in effect, said the same 120 years later, in 1941.13
On the basis of the Oliver case, appellants however argue: “The prevention of such demoralization is the reason for making contempt a crime — not for imposing punishment without trial. It represents the rationale for punishment, not for the method by which it is imposed.” A reading of the Oliver opinion will answer this argument: The Court, I think, there held that, because there was no demoralization of the court’s authority “before the public,” summary punishment — but, by no means, every other form of punishment for contempt — was improper.
Criminologists disagree concerning the extent to which punishing one man deters other men. But there is general agreement that, in some instances at least, punishment acts both directly, as a preventive example to others, and indirectly, as a means of creating or strengthening social habits of conduct.14 There can be little doubt that summary punishment of contempt, in a case like this, will have both effects.
*459Counsel for these lawyers conceded that —so far as the contempt orders rested entirely on in-court acts — the summary procedure would have been beyond complaint if the judge had immediately cited and sentenced for each contemptuous act, deferring the execution of the several sentences until the trial’s end. To the extent that that practice would have been in the interest of fairness, by way of warning to the lawyers, what the judge did here was the equivalent: He repeatedly told the lawyers that he considered their conduct contemptuous, and he repeatedly warned that punishment would ensue. It seems immaterial that some of the warnings indicated punishment by some other authority and not by the judge himself.
Had the judge, in each instance, cited and sentenced immediately — although deferring execution — he would have been obliged to stop this trial more than thirty times, in order to prepare, pursuant to Rule 42(a), written orders specifying, in each instance, the particular contempt. Moreover, in each such instance, the sentenced lawyer would doubtless immediately have appealed, and would have had the right to argue the appeal pro se. The trial judge would then have had to adjourn the trial at least thirty times to allow the lawyers to prepare and argue those appeals.
(b) A variant of the delay-argument runs as follows: Summary punishment must be instanter; it is invalid if postponed, even when the delay is not until the case’s end. Thus, if the judge waits a day, or a week, or several weeks, he cannot punish summarily, although, as here, the very same case is still in progress when he punishes.
This argument puts a premium on hasty action. It means that the judge may act summarily only when he is least likely to be poised and temperate, that only then may he act without a hearing. Why such instant action is fairness or due process — adequately protective of the accused — and postponed action is not, remains unexplained by proponents of this contention. Curiously enough, those who (1) argue that such instant action is an indispensable condition of summary punishment also (2) counsel (and wisely) that the use of the summary power be narrowly circumscribed, for fear that the trial judge, in using it, may do so in haste, spurred to vindictiveness by the anger of the moment. I find it difficult to reconcile those two contentions: The first insists that summary punishment is not valid unless hasty. The second points to the potential danger of haste.
There is such danger. Judges, being human, may, on occasions, respond excessively to slight provocations, if they act impulsively. Where, as here, the judge waited and reflected before he acted, there is considerable assurance that impulsiveness could not have affected him.
We are asked by appellants to believe that the constitutional safeguards of judicial justice in the case of open-court contempts will be best preserved, and that “dictatorial authority” in the punishment of such con-tempts will be best avoided, if — what? If we instruct trial judges that summary punishment of such contempts must invariably be imposed at once, which means that trial judges may punish such contempts summarily when — and only when — they act in hot blood, i. e., in circumstances promoting, to the utmost, impatient, ill-considered, judgment. We cannot accept that view. For it seems exactly upside-down.
Consider, for instance, the offenses described in Specification XXXII: The judge attempted to obtain from a defense witness an answer to a single, simple, question; two of the defense lawyers SO' frequently and persistently interrupted that the judge, worn out and in despair, gave up the attempt, and the question went Unanswered. The judge would have been a superman had that almost unexampled misconduct not so raised his blood-pressure as to rob him of the capacity, at or about that time, to deal calmly with the contempt. Yet appellants assert, in effect, that, if he had at once sentenced those two lawyers, he would have given a decision wholly satisfying the requirements of the Constitution (as well as the statute, the Rule, and our traditions), but that he violated all those requirements because, after the lapse of several weeks, with the case not yet ended, he acted in a *460mood of greater calmness. It would be a strange topsy-turvy doctrine that judicial justice is carefully and constitutionally administered when a judge explosively goes into high-blood-pressured action, but that it becomes dangerously careless — and unconstitutional — when the judge, controlling his temper, gives himself a chance to cool off and to act deliberately. It is a quaint idea that a judge’s white-hot indignation is a better guaranty of justice than his more seasoned judgment.
5. Ex parte Terry, 128 U.S. 289, 9 S.Ct. 77, 32 L.Ed. 405, raised a jurisdictional problem not previously discussed in this opinion. That case arose not on appeal from the contempt order but on an original application in the Supreme Court for a writ of habeas corpus, alleging the circuit court’s lack of jurisdiction over Terry’s person at the time when it entered the contempt order. In their brief in the Supreme Court, 128 U.S. at page 291-293, 9 S.Ct. 77, Terry’s counsel argued as follows: After creating the disturbance in the circuit court, Terry had left the court-room without being advised that the circuit court proposed to punish him; that court, having made no effort to bring him back, without notice and in his absence adjudged him in contempt and ordered his imprisonment; consequently, he “had no intimation of the existence” of the contempt proceedings “or that they would be instituted”; because he was absent, the circuit court could have obtained jurisdiction of his person only by service upon him of some sort of notice; due to the want of such notice, the circuit court lacked jurisdiction of his person; therefore, the imprisonment order was void.15
The Supreme Court denied the application for the writ, saying in part, 128 U.S. at pages 311, 313-314, 9 S.Ct. at page 82: “The precise question, therefore, to be now determined, is whether the retirement of the petitioner from- the court-room, into another room of the same 'building, after he had been guilty of misbehavior in the presence of the court * * * defeated the jurisdiction which it possessed, at the moment the contempt was committed, to order his immediate imprisonment without other, proof than that supplied by its actual knowledge and view of the facts, and without examination or trial in any form? In our judgment this question must be answered in the negative. Jurisdiction of the person of the petitioner attached instantly upon the contempt being committed in the presence of the court. That jurisdiction was neither surrendered nor lost by delay on the part of the Circuit Court in exercising its power to proceed, without notice and proof, and upon its own view of what occurred, to immediate punishment. * * * To say, in case of a 'contempt such as is recited in the order below, that the offender was accused, tried, adjudged to be guilty and imprisoned, without previous notice of the accusation against him and without an opportunity to be heard, is nothing more than an argument or protest against investing any court, 'however exalted, or however extensive its general jurisdiction, with the power of proceeding summarily, without further proof or trial, 'for direct contempts committed in its presence.”
The Supreme Court, noting that the circuit court entered its order on the same day ■as Terry’s offense, concluded, 128 U.S. at *461page 314, 9 S.Ct. at page 83, that the “jurisdiction” of the circuit court “was as full and complete as when he was in the courtroom in the immediate presence of the judges.” The Supreme 'Court left open the following jurisdictional question: “Whether the Circuit Court would have had the power at a subsequent term, or at a subsequent day of the same term, to order his arrest and imprisonment for the contempt, without first causing him to be brought into its presence, or without making reasonable efforts by rule or attachment to bring him into court, and giving him an opportunity to be heard before being fined and imprisoned. * * * ” To this date the Supreme Court has not answered that question.16 Whether the question is present in this case may be doubted. If it were, I think the Supreme ■Court would answer that the judge retained jurisdiction of the persons of the several lawyers. For, although they left the courtroom after committing the contempts, they voluntarily returned, in connection with their obligations to their clients, in the same case, so that, in that manner and for that purpose, the lawyers were present in court when the judge charged and sentenced them.17
6. The judge had discretion either to proceed summarily or to direct a full hearing. He chose the summary method. Whether any of us, had he been the trial judge, would have made that choice is of no moment. He did not abuse his discretion, tie had the power to proceed as he did, in order “to prevent ‘demoralization of the court’s authority’ before the public.”
In making up his mind, he could properly take into account that a trial would be long drawn out. What would be the protracted nature of the defense at such a trial was pretty clearly indicated by the suggestion made by Gladstein (see Specification XXXII) that a poll be taken of “the members of the jury and the people of the press” and of others in the court-room as to whether the judge had used “a badgering, bullying and blustering tone” in addressing a witness. For instance, in all likelihood, at a trial of the lawyers, Sacher would introduce the testimony of himself and others in an effort to prove that he was not “angrily shouting,” as charged in Specification VII, and did not speak “in an insolent manner,” as charged in Specification VIH; Gladstein would similarly seek to prove there he did not “angrily” advance “toward the bench” or make remarks in a “truculent manner,” as charged in Specification VIII, and did not speak to the judge “in a sarcastic and impertinent manner,” as charged in Specification XI; etc., etc.
It cannot be contended that the summary procedure was inadequate because the judge, before sentencing, did not allow the lawyers to explain their conduct or object to his findings. For immediately after sentencing them, he gave them the opportunity to make such explanations and objections, which, as Judge Hand has shown, were wholly inadequate, and supplied no ground for vacating the sentences.
7. Stressing the unquestionably exceptional nature of the summary contempt procedure, these lawyers assert their absolute right to a trial. This assertion they accompany by references to, and quotations from, *462statements by Mr. Justice Holmes.18 Those statements, however, are torn from their contexts since, in them, Holmes discussed contempt-punishment for out-of-court acts, and not for in-court acts like those that occurred in this case (and are charged in the Specifications "other than Specification I). To yank Holm.es’ phrases from their settings- and then to employ them as bludgeon-like, thought-stopping, slogans,19 traduces some of Holmes’ strongest convictions : Objecting to just such misapplication of a well-known judicial utterance, he remarked, “It is one of the misfortunes of the law that ideas become encysted in phrases and thereafter for a long time cease to provoke further analysis.”20 And surely there is irony in the invocation of Holmes as a sponsor of undeviatin-gly absolute rights; ■for, beyond most men, he had a keen awareness -of the inherent limitations of any legal right, when it comes into competition with another. Outstandingly, he cautioned, in effect, that virtually no rights are unqualified; that seldom can a right, hermit-wise, live alone; and that usually isolationism for any single right is socially dangerous.21
Also quoted out of context by appellants are sentences in the opinions in Cooke v. U. S., 267 U.S. 517, 45 S.Ct. 390, 69 L.Ed. 767, in In re Michael, 326 U.S. 224, 66 S.Ct. 78, 90 L.Ed. 30, and in In re Oliver, 333 U. S. 257, 68 S.Ct. 499, 92 L.Ed. 682. The Cooke case related to out-of-court contempt. In re Michael held that perjury alone did not constitute contempt. In the Oliver case, as already noted, the Supreme Court upset the contempt order because the asserted misconduct occurred in a secret hearing. Moreover, that misconduct consisted of Oliver’s alleged perjury before the judge, but the judge, in concluding that Oliver had committed perjury, relied upon testimony, contradicting Oliver’s, of other witnesses who testified when Oliver was absent. The Supreme Court, on that ground, differentiated that case from one where— as i-n the case at bar — the judge had observed the contemptuous act; the Supreme Court said 333 U.S. at page 277, 68 S.Ct. at page 509, 92 L.Ed. 982: “This case would be like the Terry case only if the judge there had not personally witnessed Terry’s assault upon the marshal but had nevertheless sent him to jail * * * after hearing the testimony of witnesses against Terry in Terry’s absence.”
*4638. It is argued that our failure to reverse all these orders will invite other trial judges, impatient or over-sensitive about their dignity, to exercise the summary contempt power in cases where it should not be exercised. Borrowing again from Mr. Justice Holmes, we may answer, “Not while this court sits.”22 Long ago a wise man said, “And if it be objected that one who uses such power * * * unjustly might do great harm, that is a charge which may be made * * * against * * * the things that are most useful * * * ”23 Were the possibility of abusing discretionary power to lead to its blanket rejection, all government would be paralyzed.24 We must not, by overly refined distinctions, substantially wipe out the judicial discretion used here, but must — as we shall, whenever necessary in future cases — prevent its misuse.
This concurring opinion has been revised * after a consideration of the petition for rehearing. The previous concurring opinion has been withdrawn.
. See infra as to tlie prolonged character of such a trial. .
. Cf. Bridges v. California, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192, 159 A.L.R. 1846; cf. Frank, Courts on Trial (1949), 256-261.
. In re Oliver, 333 U.S. 257, 275-276, 68 S.Ct. 499, 509, 92 L.Ed. 682; Cooke v. U. S., 267 U.S. 517, 536, 45 S.Ct. 390, 69 L.Ed. 767.
. Rule 42 (b) provides that ■where the summary procedure is not authorized by Rule 42 (a), so that a hearing must be held, that hearing must be before a judge other than the trial judge, if the charged acts of contempt involve “disrespect to or criticism of” the trial judge. But that provision of Rule 42 (b) does not apply where summary procedure is authorized by Rule 42 (a).
The Advisory Committee, with reference to Rule 42(b), cites the Norris-La Guardia Act, 29 U.S.C.A. §§ 101-135. Note that 29 U.S.O.A. § 112, provides that the defendant in a contempt proceeding may demand retirement of the judge “if the contempt arises from an attack upon the character or conduct of such judge and if the attack occurred elsewhere than in the presence of the court. * * * ”
. With the exception as to Sacher of Specifications XV and XVIII, as noted by Judge Hand.
. See, e. g., Williams v. New York, 337 U.S. 241, 69 S.Ct. 1079; Bailey v. United States, 7 Cir., 284 F. 126, 127; Peterson v. United States, 4 Cir., 246 F. 118, 119; Stobble v. United States, 7 Cir., 91 F.2d 69, 71; Hunter v. United States, 6 Cir., 149 F.2d 710; State v. Martin, 49 Utah 346, 164 P. 500, 502-503; State v. Bjelkstrom, 20 S.D. 1, 104 N.W. 481, 483; Cason v. State, 16 Ga.App. 820, 86 S.E. 644, 648.
In Eckerson, v. Tanney, D.C., 235 F. 415, 418, answering an argument that a recital in a judgment “spoiled” it, Judge Beamed Hand said that “the judgment does not reside in its recitals, but in the mandatory provisions.” See, to same effect, Standard Oil Co. v. Clark, 2 Cir., 163 F.2d 917, 928.
. See note 4.
. The facts appear in the report of the Terry case in the lower court. In re Terry, 9 Cir., 86 F. 419, 420: “As soon as the disturbance had ceased, Justice Field proceeded with the reading of the opinion, after which orders were made by the court adjudging Mr. and Mrs. Terry guilty of contempt, and directing their imprisonment as a punishment therefor.”
. In Terry’s case, the Supreme Court cited with approval Middlebrook v. State, 43 Conn. 257, 21 Am.Rep. 650, where there was an interval of sixteen days between the contemptuous act and the summary punishment, which was meted out after the case was over. It is suggested that the delay there was justified because the offender had fled the state, and the sixteen days were spent in efforts to bring him back in custody. But if the sole basis of the summary procedure is that it operates to deter further disturbances in the same ease, it would be of no significance why the procedure was delayed. For, whatever the reason, the punishment could no longer function as a deterrent of misconduct except as to future cases.
. The relation of that interval to jurisdiction over Terry’s person is discussed infra.
. Another ground for the Oliver decision is discussed infra.
. See Anderson v. Dunn, 6 Wheat. 204, 226, 5 L.Ed. 242: “But if there is one maxim which necessarily rides over all others, in the practical application of government, it is, that the public functionaries must be left at liberty to exercise the powers which the people have intrusted to them. * * * The unreasonable murmurs of individuals against the restraints of society, have a direct tendency to produce that worst of all despotisms, which makes every individual the tyrant over his neighbor’s rights. That ‘the safety of the people is the supreme law’ not only comports with, but is indispensable to, the exercise of those powers in their public functionaries without which that safety cannot be guarded. On this principle it is, that courts of justice are universally acknowledged to be vested, by their very creation, with power to impose silence, respect and decorum in their presence, and submission to their lawful mandates, and as a corollary to this proposition, to preserve themselves and their officers from the approach and insults of pollution.”
. Bridges v. California, 314 U.S. 252. The opinions in the Bridges and Oliver cases were both by Mr. Justice Black.
. Concerning tire educational value of “law,” especially “criminal law,” see West, Conscience and Society (1945), 165 et seq.; West, A Psychological Theory of Law, in Interpretations of Modern Legal Philosophies (1947), 767; Cahn, The Sense of Injustice (1949), 105 et seq.
. The argument, as reported in 128 U.S. at pages 292-293, 9 S.Ct. 77, reads in part as follows: “The averment of the relator is that when the proceedings in contempt we.re begun, continued and ended, he was absent from the court — had no intimation of the existence of such proceedings or that they would be instituted, and had no opportunity to be heard. Here, then, is * * * an averment of a fact going directly to the power of the court to either consider the merits or render the judgment of imprisonment. That such fact of the service required to give jurisdiction is one always open to proof in attacking a judgment, see Biddle v. Wilkins, 1 Pet. 686, 7 L.Ed. 315 * * * We do not deny that it was within the power of the court instantly,' upon the commission, in its presence, of the alleged contempt, and the offender continuing to be present, to adjudge the offending party guilty of contempt, and to order imprisonment. But here the record discloses not only that the petitioner was not instantly proceeded against, but that he was allowed to depart from the court, and was not again brought before it in such a way as to compel Mm to talce notice of all orders and steps in the totally-separate and distinct proceedings in the contempt case.”
. Some indication of the Supreme Court’s answer is found in the fact that (as previously noted) the Court in Terry’s case, 128 U.S. at page 312, 9 S.Ct. 77, 82, cited and quoted from Middlebrook v. State, 43 Conn. 257, 21 Am.Rep. 650, where the offender, after his misconduct in open court, “left the court-house and the State.” There, failing “to procure his attendance” after sixteen days, the court, in his absence, sentenced him for contempt. The Supreme Court quoted a portion of the Connecticut court’s opinion which held that “the juirisdiction remained,” and which concluded: “If it was necessary that the judgment should be preceded by a trial, and the facts found upon a judicial hearing, as with ordinary criminal cases, it would be otherwise. But in this proceeding nothing of the kind was required. The judicial eye witnessed the act, and the judicial mind comprehended all the circumstances of aggravation, provocation, or mitigation; and, the fact being thus judicially established, it only remained for the judicial arm to inflict proper punishment.”
. The facts in this respect are like those in In re Maury, 205 Fed. 626 (C.A. 9).
. See his dissenting opinions in Toledo Newspaper Co. v. United States, 247 U.S. 402, 422, 38 S.Ct. 560, 62 L.Ed. 1186; and in Craig v. Hecht, 263 U.S. 255, 280, 44 S.Ct. 103, 68 L.Ed. 293.
. “The use of slogans is- natural and, up to a point, beneficial. The point is passed when the slogan is taken for an argument and relevant complexities are ignored.” Stobbing, Thinking to Some Purpose (1939) 60.
. Hyde v. United States, 225 U.S. 347, 384, 391, 32 S.Ct. 793, 811, 56 L.Ed. 1114, Ann.Cas.1914A, 614.
. See. e. g., Hudson County Water Co. v. McCarter, 269 U.S. 349, 355, 28 S.Ct. 529, 531, 52 L.Ed. 828, 14 Ann.Cas. 560: “All rights tend to - declare themselves absolute to, their logical extreipe-. Yet all,,in fact are limited by the neighbor-^ hood of principles of policy which are other than those on which the particular right is founded, and which become strong, enough to hold their own when a certain point is reached.” In American Bank & Trust Co. v. Federal Reserve Bank, 256 U.S. 350, 358, 41 S.Ct. 499, 500, 65 L.Ed. 983, he wrote that “the word ‘right’ is one of the most deceptive of pitfalls; it is so easy to slip from a qualified meaning in the premise to an unqualified one in the conclusion. Most rights are qualified.”
Compare the following: “The practical legal * * * art must have as its special province the setting of a limit to opposing conceptions. * * * It is * * * extremely dangerous to abuse [legal principles] by pushing them to extreme; one ruling principle would then cause the rejection of another equally reasonable. * * * Nothing is more dangerous than to allow [simple principles] to be followed to their extreme consequences; in such cases appear the terrors of a great idea in small brains.” Demogue, Analysis of Fundamental Notions (1911) in the volume Modern French Legal Philosophies (transl.1916) 351, 399, 411, 413. “It is not logical to push a conclusion to an ‘extreme’, i. e., further than the facts warrant; on the contrary, a conclusion is logical only if it does follow from the premises upon which it is based.” Stubbing, Thinking To Some Purpose (1939) 21.
. Panhandle Oil Co. v. Knox, 277 U.S. 218, 222, 223.
. Aristotle, Rhetoric 1355b.
He was referring to the power to argue effectively, but his remark is nonetheless pertinent.
. See, e. g., Douglas, Democracy and Finance (1940 ) 243ff; Frank, If Men Were Angels (1942) Chapters 1, 3, 10 and 12.