The Act of 1789.

The summary power of the courts of the United States to punish contempts of their authority had its origin in the law and practice of England where disobedience of court orders was regarded as contempt of the King himself and attachment was a prerogative process derived from presumed contempt of the sovereign.198 By the latter part of the eighteenth century, summary power to punish was extended to all contempts whether committed in or out of court.199 In the United States, the Judiciary Act of 1789200 conferred power on all courts of the United States “to punish by fine or imprisonment, at the discretion of said courts, all contempts of authority in any cause or hearing before the same.” The only limitation placed on this power was that summary attachment was made a negation of all other modes of punishment. The abuse of this extensive power led, following the unsuccessful impeachment of Judge James H. Peck of the Federal District Court of Missouri, to the passage of the Act of 1831 limiting the power of the federal courts to punish contempts to misbehavior in the presence of the courts, “or so near thereto as to obstruct the administration of justice,” to the misbehavior of officers of courts in their official capacity, and to disobedience or resistance to any lawful writ, process or order of the court.201


Fox, The King v. Almon, 24 L.Q. REV. 184, 194–195 (1908). [Back to text]
Fox, The Summary Power to Punish Contempt, 25 L.Q. REV. 238, 252 (1909). [Back to text]
1 Stat. 83, § 17 (1789). [Back to text]
18 U.S.C. § 401. For a summary of the Peck impeachment and the background of the act of 1831, see Frankfurter and Landis, Power of Congress Over Procedure in Criminal Contempts in ‘Inferior’ Federal Courts: A Study in Separation of Powers, 37 HARV. L. REV. 1010, 1024–1028 (1924). [Back to text]