Full opinion text
PER CURIAM. The above members of the Court of Appeals for the Fifth Circuit, sitting en bane, being evenly divided in their opinion as to the correct answer to a question of law arising in this cause, and the Court, desiring instruction concerning it for the proper decision of the cause which is now pending before the Court, hereby certifies the following question to the United States Supreme Court: Where charges of criminal contempt have been initiated in this Court of Appeals against two individuals, asserting that such individuals willfully disobeyed a temporary restraining order of the Court, which order was entered at the request of the United States, acting as amicus curiae pursuant to its appointment by an order of the Court which granted to it, among other rights, the right to initiate proceedings for injunctive relief, and the acts charged as constituting the alleged disobedience were of a character as to constitute also a criminal offense under an Act of Congress, are such persons entitled, upon their demand, to trial by jury for the criminal contempt with which they are charged? A statement of the nature of this cause and of the facts on which the certified question arises, as required by Supreme Court Rules 28-29 follows: 1. The case presents the certified question of law relating to criminal contempt arising out of the case of Meredith, et al. v. Fair, et al., 5 Cir., 313 F.2d 534. This Court in the opinion of June 25, 1962, in Meredith v. Fair, 5 Cir., 1962, 305 F.2d 343, cert. denied, 1962, 371 U.S. 828, 83 S.Ct. 49, 9 L.Ed.2d 66, reversed the decision of the District Court and remanded it with directions. Thereafter on July 27, 1962, this Court by opinion and order at 306 F.2d 374, took further action. After setting aside a stay of execution of this Court’s mandate pursuant to 28 U.S.C.A. § 2101(f) by one of the Judges of this Court, the Court then directed that its mandate be recalled and amended in order to make “explicit the meaning that was implicit in this Court’s conclusions as expressed throughout its opinion in this cause, dated June 25, 1962.” 306 F.2d 374, 378. The opinion then prescribed the terms of the amended mandate and order. The case was reversed and remanded with directions to the District Court “to grant all relief prayed for * * * and to issue forthwith a permanent injunction against each and all of the defendantsappellees * * * enjoining and compelling each and all of them to admit * * * Meredith, to the University of Mississippi * * *. Such injunction shall in terms prevent and prohibit said defendants-appellees, or any of the classes of persons referred to from excluding the plaintiff-appellant from admission to continued attendance at the University of Mississippi. * * * ” This Court then said it would order its own injunction in these terms: “Pending such time as the District Court has issued and enforced the orders herein required and until such time as there has been full and actual compliance in good faith with each and all of said orders by the actual admission of plaintiff-appellant to, and the continued attendance thereafter at the University of Mississippi, this Court herewith issues its own preliminary injunction enjoining and compelling each and all of said parties to admit plaintiff-appellant to, and allow his continual attendance at the University of Mississippi, further prohibiting and preventing said parties or any of them from excluding said plaintiff-appellant from attendance to and continued attendance thereafter on the same basis as other students at the University of Mississippi.” 306 F.2d 374, 378. 2. On July 28, 1962, a formal order was entered by this Court in like terms to effectuate the amended mandate and orders to the District Court and providing for the preliminary injunction issued by this Court. This order was also stayed, but on August 4, 1962, this Court vacated the stay or stays granted on July 28 and July 31, 1962. This order likewise being stayed, the matter was presented by Meredith to Mr. Justice Black, Circuit Justice, who on September 10, 1962, vacated all of these stays with the further order “that the judgment and mandate of the Court of Appeals shall be effective immediately”' and “pending final action by this Court on the petition for writ of certiorari” the “respondents be, and they are hereby enjoined from taking any steps to prevent enforcement of the United States Court of Appeals’ judgment and mandate.” 83 S.Ct. 10, 9 L.Ed.2d 43, 7 Race Relations Law Reporter, Fall 1962, p. 745. 3. On September 18, 1962, this Court (Judges BROWN, WISDOM and BELL), after first ascertaining from the District Court that it declined to enter an order in this form, entered its order allowing the United States to appear in the case. The order recited “It appearing from the application of the United States, filed this day, that the interests of the United States in the due administration of justice and the integrity of the processes of its courts should be presented in these proceedings * * * ”; the order then prescribed: “It is ordered that the United States be designated and authorized to appear and participate as amicus curiae in all proceedings in this action before this Court and by reason of the mandates and orders of this Court of July 27, 28, 1962, and subsequently thereto, also before the District Court for the Southern District of Mississippi to accord each court the benefit of its views and recommendations, with the right to submit pleadings, evidence, arguments and briefs and to initiate such further proceedings, including proceedings for injunctive relief and proceedings for contempt of court, as may be appropriate in order to maintain and preserve the due administration of justice and the integrity of the judicial processes of the United States.” 4. On September 20, 1962, the United States filed an application for further injunctive orders. This verified petition brought to the attention of this Court the fact that on September 19, 1962, in Meadors et al v. James Meredith et al, the Chancery Court, Second District, Jones County, Mississippi, Cause No. 19365, had issued its injunction against Meredith, the Board of Trustees, various University officials, the United States Department of Justice, the Federal Bureau of Investigation, the Office of the Attorney General of the United States, and all United States Marshals and Deputy Marshals. The order of the State Court enjoined and prohibited such persons “from doing anything or performing any act, the execution of which is intended to enroll and register the Negro, James Meredith, as a student in the University of Mississippi; * * The Government’s application also advised the Court of the enactment by the Mississippi Legislature approved by the Governor of Mississippi Senate Bill No. 1501, the effect of which made it a criminal offense for a person against whom any “criminal proceeding is pending” to “ * * * attempt * * * to enroll in any of the institutions” of higher learning specified in the Act. The application likewise informed the Court of the action of the Justice of the Peace Court in Jackson, Mississippi, on September 20, 1962. On September 20, 1962, this Court (Circuit Judges BROWN, WISDOM and BELL) entered its further injunctive order. It recited that “This matter is now before this Court on Petitions for Orders supplementing this Court’s Order of July 28, 1962, to (1) restrain the enforcement of S.B. 1501 * * * ; (2) restrain any compliance with or enforcement of the injunction issued by the Chancery Court of Jones County, Mississippi, dated September 19, 1962 * * ; (3) restrain the arrest of James Meredith on a conviction had in the Justice of the Peace Court in Jackson, Mississippi, on September 20, 1962 * * The Court further recited that it “appearing that S.B. 1501; the aforesaid injunction issued by the State Court and the conviction of James Meredith each constitute an interference with and obstruction of this Court’s injunction of July 28, 1962.” This Court thereupon ordered “that the appellees-respondents, their agents, employees and persons acting in concert with them or persons having actual notice of this order, including law enforcement and public officials in Mississippi, State, County and Municipal * * * ” were enjoined and restrained from “(1) enforcing * * * the provisions of S.B. 1501 against James Meredith, or any other persons * * *. (2) taking any steps to effectuate the conviction and sentence on September 20, 1962, in the Justice of the Peace Court in Jackson, Mississippi * * * ; or arresting him or any other persons including federal officials or taking * * * any other action which has the purpose or effect of interfering with the enrollment - of James Meredith * * *. (3) taking or tion issued by the Chancery Court of refraining from taking any action to comply with or to enforce the injuncJones County, Mississippi, on September 19, 1962 * * The order concluded with this paragraph: “(4) This order is not intended to limit the authority of the District Court to proceed with respect to the matters referred to in paragraphs (1) and (2) of this order. 5. On September 21, 1962, the United States, amicus curiae, filed an application seeking an order to show cause why the Board of Trustees and certain administrative officials of the University should not be held in civil contempt. This Court (Circuit Judges BROWN, WISDOM and BELL) on September 21, 1962, entered its show cause order. The order recited that it “appearing from the application of the United States, amicus curiae, filed this day, that each of the defendants above named has failed and refused to comply with the terms of this Court’s order of July 28, 1962, and are presently persisting in such failure and refusal * * Thereupon the Court ordered that the named trustees “appear personally before this Court on September 24, 1962, at 11 a. m. o’clock in the Courtroom of the United States Court of Appeals for the Fifth Circuit in New Orleans, Louisiana, to show cause, if any they have, why they should not be held in civil contempt.” The order went on to provide, however, that since the Court was advised that the District Court had ordered the named University administrative officials to show cause and that a hearing on the alleged contempt was then fixed for hearing in the District Court for that day (September 21,1962), the application to that extent was denied. 6. On September 22, 1962, this Court (Circuit Judges BROWN, V/ISDOM and BELL) entered its further show cause order. The order recited that it “ * * * appearing from the verified petition of the United States of America, that [the named administrative officials of the University of Mississippi] together with the other respondents named in this Court’s order of September 21, 1962, have failed and refused, and are now failing and refusing, to comply with this Court’s order of July 28, 1962, * * * by failing and refusing to enroll and register, and admit to continued attendance at the University of Mississippi, James Howard Meredith * * The Court thereupon ordered the named administrative officials “be made additional respondents to the show cause order of this Court of September 21, 1962, and that they show cause, if any they have, on September 24, 1962 * * * ” at New Orleans why they should “not be held in civil contempt by reason of their failure and refusal to obey the order of this Court of July 28,1962, and the other orders of this Court requiring the respondents to register and enroll and admit to continued attendance at the University of Mississippi James Howard Meredith.” 7. By a majority vote of all of the active Judges, this Court convened (Judge CAMERON absent on account of illness) en bane for the hearing of September 24, 1962, at New Orleans. On that hearing the Court heard extensive testimony bearing upon actions of the Board of Trustees, the administrative officials of the University, Governor Ross Barnett and other governmental officials showing that up to that time Meredith, although he had presented himself for admission, had not been admitted to the University as previously ordered by this Court. This evidence included the fact of the Board of Trustees’ resolution of September 20, 1962, by which the Board invested Governor Barnett “with the full power, authority, right and discretion of this Board to act upon all matters pertaining to or concerned with the registration or non-registration, admission or non-admission and/or attendance or nonattendance of James H. Meredith * * and that a certified copy of this Resolution together with copies of the conflicting injunctions of Honorable S. C. Mize dated September 13, 1962, and Chancellor L. B. Porter dated September 19, 1962 previously served upon the members of this Board, be furnished to the Governor * * * for such course of action as the Governor shall deem legal, fit and proper in the premises.” The evidence also Included the Governor’s published television speech to the people of Mississippi which included the following statement: “-x- * * Therefore, in obedience to legislative and constitutional sanction, I interpose the rights of the Sovereign State of Mississippi to enforce its laws and regulate its internal affairs without interference on the part of the Federal Government or its officers and, in my official capacity as Governor of the State of Mississippi, I hereby make this proclamation : “ — Whereas, the United States of America consists of fifty Sovereign States bound together basically for their common welfare; and “ — Whereas, the Constitution of the United States of America provides that each state is sovereign with respect to certain rights and powers; and “ — Whereas, pursuant to the 10th Amendment to the Constitution of the United States, the powers not specifically delegated to the Federal Government are reserved to the several states; and “ — Whereas, the operation of the public school system is one of the powers which was not delegated to the Federal Government, but which was reserved to the respective states pursuant to the terms of the 10th Amendment; and “ — Whereas, we are now face to face with the direct usurpation of this power by the Federal Government through the illegal use of the judicial decree: “Now, therefore, I, Ross R. Barnett, as Governor of the Sovereign State of Mississippi, by authority vested in me, do hereby proclaim that the operation of the public schools, universities and colleges of the State of Mississippi is vested in the duly-elected and appointed officials of the State of Mississippi and I hereby direct each of said officials to uphold and enforce the laws duly and legally enacted by the Legislature of the State of Mississippi, regardless of this unwarranted and illegal and arbitrary usurpation of power; and to interpose the State Sovereignty and themselves between the people of the state and any body-politic seeking to usurp such power.” In the course of that hearing the President of the Board of Trustees of Higher Learning announced in open court on behalf of himself and the 12 members of the Board “that the Board was now ready and willing to fully perform all things ordered and directed by the former orders of this Court * * *.” Likewise, the Registrar of the University of Mississippi “announced in open court that he would be available in Jackson, Mississippi, not later than 1:00 p. m. on September 25, 1962, for the purpose of registering and admitting as a student * * James H. Meredith in accordance with the orders of this Court * * 8. At the conclusion of the hearing, the Court en banc entered its order of September 24,1962. After reciting the statements by the President of the Board of Trustees and the Registrar quoted in the preceding paragraph, the Court ordered the respondents to “fully and completely comply with all of the terms of the order of this Court dated July 28, 1962, including, but not limited to * * * ” specific actions described in subparagraphs a, b, c, d, e. Subparagraph (b) required that the Board “revoke and rescind the action of the Board taken on September 20, 1962, appointing Ross R. Barnett, * * as the agent of the Board to act upon all matters pertaining to the registration and admission of James H. Meredith.” Subparagraph (d) required the Board to instruct the University officials “to register and receive James H. Meredith for actual admission * * * ” and attendance at the University. Subparagraph (e) required that the Registrar “be available at Jackson, Mississippi, at the office of the * * * Board of Trustees, at the hours therein specified on September 25, 1962, for the purpose of the registration of the said James H. Meredith and his actual admission to, and the continued attendance thereafter at, the University. The order required counsel for the respondents to advise the Court by 6:00 p. m., September 25, 1962, as to the actions taken to comply with this order. 9. On the evening of September 24, 1902, the Government presented to this Court an application for a temporary restraining order against the State of Mississippi, Ross R. Barnett, Governor, the Attorney General, the Commissioner of Public Safety, two District Attorneys, various Sheriffs, Chiefs of Police, and all Sheriffs of the Counties of Mississippi. At 8:30 o’clock a. m., September 25, 1962, this Court (Chief Judge TUTTLE, Circuit Judges RIVES and WISDOM) entered its temporary restraining order. That order recites that it appeared “from the verified petition of the United States, amicus curiae * * * that the State of Mississippi, Ross R. Barnett, Governor [and the others mentioned] * * * threatened to implement and enforce, unless restrained by order of this Court, the provisions of a Resolution of Interposition * * *, the provisions of § 4065.3 of the Mississippi Code, and a proclamation of Ross R. Barnett invoking the doctrine of Interposition * * *'; that Paul G. Alexander has instituted two criminal prosecutions against * * * Meredith on account of the efforts of * -* * Meredith to enroll in the University * * * pursuant to the orders of this Court; that A. L. Meador, Sr, * * * on September 19, 1962, instituted in the Chancery Court of the Second Judicial District of Jones County, Mississippi, a civil action against * * Meredith to prevent him from attending the University * * * ; that on September 20, 1962, James Howard Meredith, while seeking to enroll at the University * * * in Oxford, Mississippi, pursuant to the orders of this Court, was served with a writ of injunction-issued by the Chancery Court of Lafayette County, Mississippi at the instance of Ross R. Barnett, enjoining James Howard Meredith from applying to or attending the University of Mississippi; that on September 20, 1962, the State of Mississippi enacted Senate Bill 1501, the effect of which is to punish James Howard Meredith should he seek enrollment in the University * * The Court proceeded to find that “the effect of the conduct of the defendants herein named in implementing the policy of the State of Mississippi as proclaimed by Ross R. Barnett will necessarily be to prevent the carrying out of the orders, of this Court and of the District Court for the Southern District of Mississippi; and that the acts and conduct of the defendants named in the petition will cause immediate and irreparable injury to the United States consisting of the impairment of the integrity of its judicial processes, the obstruction of the due-administration of justice, and the deprivation of rights under the Constitution and laws of the United States * * On the basis of this, the Court entered its temporary restraining order as to the State of Mississippi, Ross R. Barnett, the Attorney General and others restraining them from: 1. Arresting, attempting to arrest, prosecuting or instituting any prosecution against James Howard Meredith under any statute, ordinance, rule or regulation whatever, on account of his attending, or seeking to attend, the University of Mississippi ; 2. Instituting or proceeding further in any civil action against James Howard Meredith or any other persons on account of James Howard Meredith’s enrolling or seeking to enroll, or attending the University •of Mississippi; 3. Injuring, harassing, threatening or intimidating James Howard Meredith in any other way or by any •other means on account of his attending or seeking to attend the University of Mississippi; 4. Interfering- with or obstructing by any means or in any manner the performance of obligations or fhe enjoyment of rights under this 'Court’s order of July 28, 1962 and the order of the United States District Court for the Southern District ■of Mississippi entered September 13, 1962, in this action, and 5. Interfering with or obstructing, by force, threat, arrest or otherwise, any officer or agent of the United States in the performance of •duties in connection with the enforcement of, and the prevention of •obstruction to, the orders entered by this Court and the District Court for the Southern District of Mississippi relating to the enrollment and attendance of James Howard Meredith at the University of Mississippi ; or arresting, prosecuting or punishing such officer or agent on ac•eount of his performing or seeking to perform such duty. IT IS FURTHER ORDERED ■that Paul G. Alexander and J. Robert •Gilfoy be temporarily restrained from proceeding further, serving or •enforcing any process or judgment, ■or arresting James Howard Meredith in connection with the criminal .actions against him in the Justice of the Peace Court of Hinds County, Mississippi. IT IS FURTHER ORDERED that A. L. Meador, Sr., be temporarily restrained from taking any further action or seeking to enforce any judgments entered in the case of A. L. Meador, Sr., v. James Meredith, et al. IT IS FURTHER ORDERED that Ross R. Barnett be temporarily restrained from enforcing or seeking to enforce against James Howard Meredith, any process or judgment in the case of State of Mississippi, Ex Rel. Ross Barnett, Governor v. James H. Meredith. 10. Later that same night, September 25, 1962, this Court (Circuit Judges RIVES, WISDOM and GEWIN) entered an order requiring Ross R. Barnett to appear “personally before this Court on September 28, 1962, at 10:00 o’clock in the Courtroom of the United States Court of Appeals for the Fifth Circuit, * * * New Orleans, Louisiana, to show cause, if any he has, why he should not be held in civil contempt of the temporary restraining order entered by the Court this day.” This order recited the matters occurring in open court on September 24, and the orders heretofore described issued to the Board of Trustees and the administrative officials of the University and the issuance earlier that day of the temporary restraining order. The order then recited that it “appearing from the verified application of the United States, amicus curiae herein, that on the afternoon of this day Ross R. Barnett, having been served with a copy of the temporary restraining order * * * having actual knowledge of the terms of that order, deliberately prevented James H. Meredith from entering the office of the Board of Trustees in Jackson, Mississippi at a time when James H. Meredith was seeking to appear before Robert B. Ellis in order to register * * * and that by such conduct Ross R. Barnett did willfully interfere with and obstruct James H. Meredith in the enjoyment of his rights under this Court’s order of July 28, 1362, and did willfully interfere with and obstruct Robert B. Ellis in the performance of his obligations under this Court’s order of July 28, 1962, all in violation of the terms of the temporary restraining order entered by the Court this day.” 11. On the next day, September 26, this Court (Circuit Judges RIVES, BROWN and WISDOM) entered a similar order to show cause addressed to Lieutenant Governor Paul B. Johnson, Jr. fixing the time of hearing for Saturday, September 29, 1962, at New Orleans. This order recited that it “appearing from the verified application of the United States, amicus curiae herein, that Paul B. Johnson, Jr. * * * after receiving actual and constructive notice of the terms of this Court’s temporary restraining order of September 25, 1962, and while acting in concert and active participation with Ross R. Barnett, * * prevented James H. Meredith from entering the campus of the University of Mississippi * * * and did thereby prevent James H. Meredith from enrolling in and attending the University * * * ” and with the purpose of interfering with this Court’s previous orders. 12. On September 28, 1962, this Court sitting en banc (Judge CAMERON not sitting) heard the order to show cause as to Ross R. Barnett. It heard witnesses in open court including documentary evidence consisting of moving picture newsreel pictures of the occurrences by Ross R. Barnett during the efforts of James H. Meredith to enter the offices of the University of Mississippi at Jackson, Mississippi, for the purpose of registering and attending the University. This evidence included a copy of the terms of the Governor’s proclamation addressed to James H. Meredith on September 25, 1962. It proclaimed: “I, Ross R. Barnett, Governor of the State of Mississippi, having heretofore by proclamation, acting under the police powers of the State of Mississippi, interposed the sovereignty of this State on September 20, 1962, denied to you, James H. Meredith, admission to the University of Mississippi under such proclamation and for such reasons, do hereby finally deny you admission to the University of Mississippi.” At the conclusion of these hearings on September 28, the Court entered its order, findings of fact and conclusions of law and judgment of civil contempt. The order recited that though required to appear in person, Ross R. Barnett failed to appear or respond in person or by counsel, but that upon hearing the evidence, it made its findings of fact based thereon, as follows: 1. Since this Court entered its order of July 28, 1962, and the District Court for the Southern District of Mississippi entered its order on September 13, 1962, requiring the admission of James H. Meredith to the University of Mississippi, Ross R. Barnett, as Governor of the State of Mississippi, has issued a series of proclamations calling upon all officials of the state to prevent and obstruct the carrying out of the Court’s orders with respect to the admission of James H. Meredith to the University. Two of these proclamations were issued by Ross R. Barnett on September 24 and September 25, 1962. 2. On September 25, 1962, this Court entered its temporary restraining orders restraining Ross R. Barnett from interfering with or obstructing in any manner or by any means the enjoyment of rights or the performance of obligations under this Court’s, order of July 28, 1962 and the order of the District Court •of September 13, 1962. 3. At approximately 4:30 P.M. •on September 25,1962, Ross R. Barnett, having full knowledge of the existence and terms of this Court’s temporary restraining orders, went to the office of the Board of Trustees •of Institutions of Higher Learning to Jackson, Mississippi at a time when James H. Meredith was due to appear at the office to be enrolled as a student in the University of Mississippi, pursuant to the order of this Court. When James H. Meredith arrived at the office and sought to enter for the purpose of enrolling, Ross R. Barnett deliberately prevented him from entering and told him that his application for enrollment was denied by Ross R. Barnett. 4. On September 26, 1962, James H. Meredith sought to enter the campus of the University of Mississippi in Oxford, Mississippi. He was prevented from entering by Paul B. Johnson, Jr., Lieutenant Governor of the State of Mississippi, acting pursuant to the instructions and under the authorization of Ross R. Barnett. 5. The conduct of Ross R. Barnett in preventing James H. Meredith from enrolling as a student in the University of Mississippi has been with the deliberate and announced purpose of preventing compliance with the orders of this and other federal courts. On the basis of these findings, this Court concluded that “Ross R. Barnett is in contempt of the temporary restraining orders entered by this Court on September 25, 1962,” and it thereupon “ordered, adjudged and decreed that: Ross R. Barnett is in civil contempt * * *; that such contempt is continuing; * and thereafter civil sanctions were imposed in the following terms: “ * * * Ross R. Barnett shall be committed to and remain in the custody of the Attorney General of the United States and shall pay a fine to the United States of $10,000 per day unless on or before Tuesday, October 2nd, 1962 at 11:00 A.M. he shows to this Court that he [is] fully complying with the terms of the restraining orders, and that he has notified all law enforcement officers and all other officers under his jurisdiction or command: “(a) To cease forthwith all resistance to and interference with the orders of this Court and the District Court for the Southern District of Mississippi; “(b) To maintain law and order at and around the University and to cooperate with the officers and agents of this Court and of the United States in the execution of the orders of this Court and of the District Court for the Southern District of Mississippi to the end that James H. Meredith be permitted to register and remain as a student at the University of Mississippi under the same conditions as apply to all other students.” Judges JONES, GEWIN and BELL dissented from that part of the judgment imposing a fine upon Governor Barnett. 13. On Saturday, September 29,1962, this Court (Circuit Judges RIYES, BROWN and WISDOM) heard the order to show cause addressed to Lieutenant Governor Paul B. Johnson, Jr., and after hearings and findings of fact entered its order holding Paul B. Johnson, Jr. in contempt and imposing civil sanctions. This order and the sanctions imposed were stated as follows: “Paul B. Johnson, Jr. is in civil contempt of the temporary restraining order of this Court entered on September 25, 1962 upon application of the United States, amicus curiae, that such contempt is continuing and that Paul B. Johnson, Jr. shall pay a fine to the United States of $5,000.00 per day unless on or before October 2, 1962 at 11:00 A.M. he shows to this Court that from and after the time of the issuance of this order he has been, and is, in full compliance with the terms of the restraining order, that he intends to do so in the future and that he will, during any periods of time that he is acting for or on behalf of, or in the name, place and stead of, or with the authority or power of, or as Governor of the State of Mississippi, notify all law-enforcement officers and all other officers under his jurisdiction or command: “(a) To cease forthwith all resistance to and interference with the orders of this Court and the District Court for the Southern District of Mississippi; “(b) To maintain law and order at and around the University and to cooperate with the officers and agents of this Court and of the United States in the execution of the orders of this Court and of the District Court for the Southern District of Mississippi to the end that James H. Meredith shall be permitted to register and remain as a student at the University of Mississippi under the same conditions as apply to all other students. ■ “In the event that Paul B. Johnson, Jr., while acting for, or on behalf of, or in the name, place or stead of, or with the authority or power of, or as Governor of the State of Mississippi fails at any time to take steps set forth in sub-paragraphs (a) and (b) he shall, on a finding of such fact by the Court, be committed to the custody of the Attorney General and shall pay a fine to the United States of $10,000.00 per day, such daily fine and imprisonment to continue during such period as he fails to purge himself of such contempt.” 14. On October 2, 1962, pursuant to the time fixed in the contempt order of September 28, 1962, Governor Ross R. Barnett appeared before this Court through his counsel. In answer to questions from the Court, counsel stated that Governor Barnett was in full compliance with the Court’s orders and would fully comply with the orders of the Court in the future to the extent to which he was able to do so. Upon this representation being made, the matter was continued until October 12, 1962, for further hearing before the Court en banc. 15. On October 12 in New Orleans the Court en banc (Judges HUTCHESON and CAMERON not sitting) held a further hearing on whether Governor Ross R. Barnett and Paul B. Johnson, Jr. had purged themselves. Submitted also was the motion filed by the State of Mississippi to dissolve the temporary restraining order and to dismiss the pending contempt proceedings. In connection with the question of whether he had purged himself of the civil contempt as previously adjudged, Respondent Barnett did not appear in person on October 12,. but again he appeared by counsel. Counsel offered no proof, either by affidavit, oral testimony, or otherwise, bearing on the conduct of respondent following the contempt judgment. However, on that date counsel for Governor Barnett retracted their statements that Governor Barnett intended in the future fully to• comply so far as he was able with the orders of the Court. Moreover, on October 19th Governor Barnett filed a response through his counsel to which he attached a statement which he had publicly delivered on October 17. The substance and effect of this statement, and thus the substance and effect of Respondent’s posture before this Court is that Governor Barnett will, and must, reserve the right to determine whether compliance with, and enforcement of, this Court’s orders are consistent with his duties, rights and obligations as Governor of the State of Mississippi. However, the record shows that he did, in fact, between the contempt order of the Court on September 28, 1962, and the hearing on October 2, 1962, cease the physical resistance to the order of the ■Court directing the admission of James H. Meredith as a student at the University, which he had previously interposed personally and through other state officials. On the 30th day of September, 1962, the President of the United States issued a proclamation in the following language: “Whereas the Governor of the State of Mississippi and certain law enforcement officers and other officials of that State, and other persons, individually and in unlawful assemblies, combinations and conspiracies, have been and are willfully opposing and obstructing the enforcement of orders entered by the United States District Court for the Southern District of Mississippi and the United States Court of Appeals for the Fifth Circuit; and “Whereas such unlawful assemblies, combinations and conspiracies oppose and obstruct the execution of the laws of the United States, impede the course of justice under those laws and make it impracticable to enforce those laws in the State of Mississippi by the ordinary course of judicial proceedings; and “Whereas I have expressly called the attention of the Governor of Mississippi to the perilous situation that exists and to his duties in the premises, and have requested but have not received from him adequate assurances that the orders of the courts of the United States will be obeyed and that law and order will be maintained; “Now, therefore, I, John F. Kennedy, President of the United States, under and by virtue of the authority vested in me by the Constitution and laws of the United States, including Chapter 15 of Title 10 of the United States Code, particularly sections 332, 333 and 334 thereof, do command all persons engaged in such obstructions of justice to cease and desist therefrom and to disperse and retire peacefully forthwith. “In witness whereof, I have hereunto set my hand and caused the seal of the United States of America to be affixed. “Done at the city of Washington this 30th day of September in the year of our Lord Nineteen Hundred and Sixty-Two, and of the independence of the United States of America the One Hundred and Eighty-Seventh. “/s/ JOHN F. KENNEDY” The President also issued an executive order as a result of which a large force of United States Marshals and a part of the Army and Air Forces of the United States were employed for the enforcement of our orders. 16. At that hearing the Court also considered the motion to dissolve the temporary restraining order and the motions of the United States to enter a preliminary injunction. The Court again heard and received all of the evidence that had previously been offered at the hearing of September 28 and 29. 17. On October 19, 1962, a majority of this Court en banc (Judges HUTCHESON and CAMERON not sitting and Judges GEWIN and BELL stating that they thought the matter should be remanded to the District Court for further proceedings) entered its preliminary injunction. The seven members of the Court unanimously concluded: “The posture of this case at the time this motion for temporary injunction and the accompanying motion for temporary restraining order were filed, is that this Court had issued its injunction, above referred to, prohibiting the officials of the University and the Trustees of the Institutions of Higher Learning of the State of Mississippi from interfering with the admission of James H. Meredith and his continuance as a student in the University of Mississippi, and also prohibiting certain of the defendants now before the Court from further prosecuting criminal proceedings against the said Meredith; whereupon, it was alleged in this petition, the State of Mississippi, through its official state policy, pursuant to actions of its Legislature, and through the actions of its Governor by proclamation, and all of the other respondents, were then engaged in actively frustrating the execution of this Court’s injunction against the officials of the University. This proceeding, therefore, is purely ancillary to the original lawsuit, and this Court has ample power to proceed against any party, including the State of Mississippi, which is shown to be engaged in a wilful, intentional effort to frustrate this Court’s injunction. “The motion to dissolve the restraining order and the motion to dismiss the contempt proceedings by the State of Mississippi are, therefore, DENIED. “The ruling just stated equally disposes of the contention made by the respondents that this Court is now powerless to issue the temporary injunction. We, therefore, hold that the Court has the power to issue the injunction against the persons not previously named as defendants in the main suit to prevent their active interference with this Court’s injunction. “The evidence adduced before this Court, neither attacked by respondents nor contended by them to be legally insufficient to warrant the granting of the relief sought, establishes the following facts: “The State of Mississippi, Ross R. Barnett, Governor of Mississippi, Joe T. Patterson, Attorney General of Mississippi, T. B. Birdsong, Commissioner of Public Safety of Mississippi, Paul G. Alexander, District Attorney of Hinds County, William R. Lamb, District Attorney of Lafayette County, J. Robert Gilfoy, Sheriff of Hinds County, J. W. Ford, Sheriff of Lafayette County, William D. Rayfield, Chief of Police of the City of Jackson, James D. Jones, Chief of Police of the City of Oxford, Walton Smith, Constable of the City of Oxford, threaten to implement and enforce, unless restrained by order of this Court, the provisions of a Resolution of Interposition adopted by the Mississippi Legislature, the provisions of Section 4065.3 of the Mississippi Code, and a Proclamation of Ross R. Barnett invoking the doctrine of interposition with respect to the enforcement of the orders of this Court in this case; that Paul G. Alexander has instituted two criminal prosecutions against James Howard Meredith on account of' the efforts of James Howard Meredith to enter the University of Mississippi pursuant to the orders of this Court; that on September 20, 1962, James Howard Meredith, while seeking to enroll at the University of Mississippi in Oxford, Mississippi, pursuant to the orders of this Court, was served with a writ of injunction issued by the Chancery Court of Lafayette County, Mississippi, at the instance of Ross R. Barnett, enjoining James Howard Meredith from applying to or attending the University of Mississippi ; that on September 20, 1962 the State of Mississippi enacted Senate Bill 1501, the effect of which is to punish James Howard Meredith should he seek enrollment in the University of Mississippi; that the effect of the conduct of the defendants herein named to implementing the policy of the State of Mississippi, as proclaimed by Ross R. Barnett will necessarily be to prevent the carrying out of the orders of this Court and of the District Court for the Southern District of Mississippi ; and that the acts and conduct of the defendants named in the petition will cause immediate and irreparable injury to the appellant Meredith and to the United States consisting of the impairment of the integrity of its judicial processes, the obstruction of the due administration of justice, and the deprivation of rights under the Constitution and laws of the United States unless prevented by an order of the Court.” 18. Thereafter this Court (Judges HUTCHESON and CAMERON not sitting) entered its order of November 15, 1962, which ordered that “The Attorney General of the United States and such Attorneys in the Department of Justice as he may designate, be and they hereby are appointed by the Court to institute and to prosecute criminal contempt proceedings against the said Ross R. Barnett and Paul B. Johnson, Jr., pursuant to Rule 42b of the Federal Rules of Criminal Procedure and the order of this Court of September 18, 1962.” The order recited that it appeared “from the pleadings filed and the oral testimony and documentary evidence already adduced in the proceedings on the petitions for temporary restraining order and for preliminary injunction and the civil contempt proceedings heretofore instituted against Ross R. Barnett and Paul B. Johnson, Jr. that proceedings should be instituted against the said Ross R. Barnett and Paul B. Johnson, Jr., to determine whether they are, or either of them is, guilty of criminal contempt of the orders of this court;” 19. Thereafter the United States through the Attorney General filed on December 21, 1962, its application for an order requiring Ross R. Barnett and Paul B. Johnson, Jr. to show cause why they should not be held in criminal contempt. This application alleged, in four numbered counts, certain conduct of Barnett and Johnson which were thereafter made the basis of this Court’s order to show cause hereafter set out in Paragraph 21. 20. On January 3, 1963, the Court entered an order constituting the Court en banc for the consideration of all matters relating to criminal contempt proceedings against Ross R. Barnett and Paul B. Johnson, Jr. (Judge HUTCHESON “is excused from participating in the hearings and decisions of this Court by reason of conditions of his health”). 21. Thereafter this Court en banc (Judges CAMERON and GEWIN dissenting) entered its order to show cause on January 4, 1963. The show cause order contained the following charges and order: Probable cause has been made to appear from the application of the Attorney General filed December 21, 1962, in the name of and on behalf of the United States that on September 25, 1962, Ross R. Barnett, having been served with and having actual notice of this Court’s temporary restraining order of September 25, 1962, wilfully prevented James H. Meredith from entering the offices of the Board of Trustees of the University of Mississippi in Jackson, Mississippi, and thereby deliberately prevented James H. Meredith from enrolling as a student in the University pursuant to this Court’s order of July 28, 1962; that on September 26, 1962, Paul B. Johnson, Jr., acting under the authorization and direction of Ross R. Barnett, and as his agent and as an agent and officer of the State of Mississippi, and while having actual notice of the temporary restraining order of September :25, 1962, wilfully prevented James H. Meredith from entering the campus of the University of Mississippi in Oxford, Mississippi, and thereby deliberately prevented James H. Meredith from enrolling as a student in the University, pursuant to the orders of this Court; that on September 27, 1962, Ross R. Barnett and Paul B. Johnson, Jr. wilfully failed to take such measures as were necessary to maintain law and order upon the campus of the University of Mississippi and did, instead, direct and encourage certain members of the Mississippi Highway Safety Patrol, Sheriffs and deputy Sheriffs and other officials of the State of Mississippi to obstruct and prevent the entry of James H. Meredith upon the campus of the University that day; that on September 30, 1962, Ross R. Barnett, knowing of the planned entry of James H. Meredith upon the campus of the University of Mississippi, knowing that disorders and disturbances had attended and would attend such entry, and knowing that any failure of the Mississippi Highway Patrol to take all possible measures for the maintenance of peace and order upon the campus could and would result in interferences with and obstructions to the carrying out of the Court’s order of July 28, 1962, wilfully failed to exercise his responsibility, authority, and influence as Governor to maintain law and order upon the campus of the University of Mississippi; and that all of said acts, omissions and conduct of Ross R. Barnett and Paul B. Johnson, Jr., were for the purpose of preventing compliance with this Court’s order of July 28, 1962, and of the similar order of the United States District Court for the Southern District of Mississippi, entered on September 13, 1962, and were in wilful disobedience and defiance of the temporary restraining order of this Court entered on September 25, 1962. IT IS ORDERED that Ross R. Barnett and Paul B. Johnson, Jr., appear before this Court in the courtroom of the United States Court of Appeals for the Fifth Circuit in New Orleans, Louisiana, on February 8, 1963, at 9:30 o’clock a. m., to show cause, if any they have, why they should not be held in criminal contempt, and should either of them at said time and place show such cause, either by pleading not guilty to the charges contained in the application of the United States, or by other means, he shall thereafter appear before this Court for hearing upon said charges at a time and place to be fixed by the Court. The Chief Judge of this Court then directed the Clerk, for convenience in handling all matters relating to the criminal contempt proceedings to assign a new number, No. 20,240, and a new caption, “United States v. Ross R. Barnett and Paul B. Johnson, Jr.”, to the case. Pursuant to notice from the Court, respondents filed nine motions and the State of Mississippi filed one motion to be considered at the hearing. These motions may be briefly described as follows: 1. Motion and plea of the State of Mississippi to dismiss the proceedings as being in violation of the Tenth and Eleventh Amendments to the Constitution. 2. Motions of Barnett and Johnson to dismiss all proceedings in original Action No. 20,240 for lack of process. 3. First alternative motions of Barnett and Johnson to dismiss original proceedings in cause No. 20,240 and all contempt proceedings in cause No. 19,475 based on improper and insufficient application. 4. Second alternative motions of Barnett and Johnson to dismiss original proceedings in cause No. 20,240 for lack of venue or jurisdiction. 5. Third alternative motions of Barnett and Johnson to dismiss all pending proceedings in Criminal Contempt for lack of Grand Jury presentment or indictment. 6. Demands of Barnett and Johnson for trial by jury. 7. Fourth alternative motions of Barnett and Johnson to dismiss all proceedings in original action No. 20,240 for lack of jurisdiction to summons a constitutional jury. 8. Motions of Barnett and Johnson for severance. 9. Motion of Johnson to strike the third charge contained in the order to show cause of date January 4, 1963. 10. Motion of Barnett to strike the third and fourth charges contained in the order to show cause of date January 4,1963. After oral argument a majority of the members of the Court, as indicated on the order of the Court filed this date, sustained the motion of the United States to strike the motion and plea numbered 1, overruled or denied motions numbered 2, 3, 4, 5 and 7, decided to certify the question raised by the motion numbered 6, and the motions numbered 8, 9 and 10' are not now passed on. Consideration has been given to attaching as Exhibits certified photostatic copies of each and all of the pleadings, motions and orders referred to in the foregoing statement. The Court is of the view that this would be unnecessarily cumbersome since the summary or paraphrased statement of any such pleadings, motions and orders is not intended to modify them in any way, and the Supreme Court will, wherever appropriate, consider the exact terms of the pleadings, motions and orders which are incorporated by reference and which have been referred to in the opinions filed herein by the several Judges. TUTTLE, Chief Judge, and RIVES, BROWN and WISDOM, Circuit Judges. The United States entered the case of Meredith, et al. v. Fair, et al., 5 Cir., 313 F.2d 534, pursuant to this Court’s order of September 18, 1962, “that the United States be designated and authorized to appear and participate as amicus curiae in all proceedings in this action before this Court and by reason of the mandates and ordebs of this Court of July 27, 28, 1962, and subsequently thereto, also before the District Court for the Southern District of Mississippi, to accord each Court the benefits of its views and recommendations, with the right to submit pleadings, evidence, arguments and briefs and to initiate such further proceedings, including proceedings for injunctive relief and proceedings for contempt of court, as may be appropriate in order to maintain and preserve the due administration of justice and the integrity of the judicial processes of the United States.” (Emphasis supplied.) In its order of November 15, 1962, this Court ordered “that the Attorney General of the United States, and such attorneys in the Department of Justice as he may designate, be and they are hereby appointed by the Court to institute and to prosecute criminal contempt proceedings against the said Ross R. Barnett and Paul B. Johnson, Jr., pursuant to Rule 42(b) of the Federal Rules of Criminal Procedure and the order of this Court of September 18, 1962.” On December 21, 1962, the United States applied to this Court “for an order requiring Ross R. Barnett and Paul B. Johnson, Jr., to show cause, if any they have, why they should not be held in criminal contempt of this Court for wilfully disobeying the temporary restraining order entered on September 25, 1962, in United States v. State of Mississippi, et al., No. 19,475, 5 Cir., 313 F.2d 534.” On January 3, 1963, this Court ordered that Ross R. Barnett and Paul B. Johnson, Jr. appear on February 8, 1963 and “show cause, if any they have, why they should not be held in criminal contempt either by pleading not guilty to the charges contained in the application of the United States, or by other means, and that they thereafter appear before this Court for hearing upon said charges at a time and place to be fixed by this Court.” On February 1, 1963, a number of motions and demands were filed in this case, captioned substantially as follows: A. Motion and Plea of the State of Mississippi. 1. Motions of Barnett and Johnson to Dismiss All Proceedings in Original Action No. 20,240 for Lack of Process. 2. First Alternative Motions of Barnett and Johnson to Dismiss Original Proceedings in cause No. 20,240 and all Contempt Proceedings in cause No. 19,475 based on Improper and Insufficient Application. 3. Second Alternative Motions of Barnett and Johnson to Dismiss Original Proceedings in cause No. 20,240 for Lack of Venue or Jurisdiction. 4. Third Alternative Motions of Barnett and Johnson to Dismiss all Pending Proceedings in Criminal Contempt for Lack of Grand Jury Presentment or Indictment. 5. Fourth Alternative Motions of Barnett and Johnson to Dismiss All Proceedings in Original Action No. 20,240 for Lack of Jurisdiction to summons a Constitutional Jury. 6. Demands of Barnett and Johnson for Trial by Jury. Rl. Motions of Barnett and Johnson for Severance. R2. Motion of Johnson to Strike the Third Charge contained in the Order to Show Cause of date January 4, 1963. R3. Motion of Barnett to Strike the Third and Fourth Charges contained in the Order to Show Cause of date January 4, 1963. Briefs in support of and in opposition to the said motions and demands were filed, and on February 8, 1963 this Court en bane heard day-long oral arguments. At that time this Court granted the motion of the United States to strike motion A, that is the “Motion and Plea oí the State of Mississippi,” but considered Mississippi’s brief filed in support of that motion as a brief filed by an amicus curiae, and invited counsel for the State as amicus curiae to make oral argument before the Court. Thereafter, this Court denied the motions heretofore listed as numbers 1, 2, 3, 4 and 5, and reserved its rulings on the motions listed as numbers Rl, R2 and R3. We four Judges are in favor of denying the demands listed as number 6; that is, the demands of the defendants for trial by jury. [Since this Court was unable to dispose of those demands by majority vote, we join in certifying to the Supreme Court of the United States the question thus presented. We state briefly the reasons for our view that the demands of the defendants for trial by jury should be denied.] Logically and legally connected with the said demands, on the disposition of which our brothers do not agree with us, are the motions, listed as number 4, to dismiss the proceedings in criminal contempt for lack of grand jury presentment or indictment which all of our brothers with the exception of Judge CAMERON have joined us in denying. In all of the books and records, so far as counsel have been able to advise us or as we have discovered, there is not a single precedent of any criminal contempt of court proceeding ever having been prosecuted by grand jury presentment or indictment. In Green v. United States, 1958, 356 U.S. 165, 187, 78 S.Ct. 632, 645, 2 L.Ed.2d 672, the Supreme Court held that “ * * * it is clear that criminal contempts, although subject, as we have held, to sentences of imprisonment exceeding one year, need not be prosecuted by indictment under the Fifth Amendment.” It is elementary that the court against which a contempt is committed has exclusive jurisdiction to punish for such contempt. In re Debs, 1895, 158 U.S. 564, 565, 595, 15 S.Ct. 900, 910, 39 L.Ed. 1092; Ex parte Bradley, 1868, 74 U.S. 364, 377, 7 Wall. 364, 19 L.Ed. 214. To the principle that every court possesses the power to punish for criminal contempt committed against it, this Court of Appeals is no exception. Such power is “inherent.” See In re Debs, supra, 158 U.S. at 596, 15 S.Ct. 900, 39 L.Ed. 1092. Further, such power is expressly conferred by Title 18 U.S.C. § 401, which provides in part pertinent to the present case: “A court of the United States shall have power to punish by fine or imprisonment, at its discretion, such contempt of its authority, and none other, as— * * •>:- * * * “(3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.” The defendants assert that this Court “is without statutory power or authority to summons a constitutional jury.” While lack of a statutory procedure to obtain a jury would not satisfy a demand for a jury if one existed as a matter of constitutional right, the complete absence of any such mechanism is strong evidence that Congress has not impliedly recognized any such right as a statutory one. The defendants insist, however, that they do have a constitutional right of trial by jury under one or more of the following provisions of the Constitution: ARTICLE III, § 2, Par. 3. “The Trial of all Crimes * * * shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed * * *.” AMENDMENT V. “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury * * * nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb * * *.” AMENDMENT VI. “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, * * * and to be informed of the nature and cause of the accusation * * *.” AMENDMENT VII. “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.” In support of their insistence on a constitutional right of trial by jury, the defendants have advanced not a single argument which has not already been considered and ruled adversely to their views by the Supreme Court of the United States. As lately as 1958, in Green v. United States, supra, the Supreme Court held that criminal contempts are not subject to jury trial as a matter of constitutional right. We four judges consider that decision as binding upon us. Further, with deference to the dissenting Justices, it is our opinion that the views of the majority of the Supreme Court as there expressed are soundly based not only on precedent, as must be conceded, but also on reason and logic. It would be threshing old straw for us to say more on the question of constitutional right. There being no constitutional right to trial by jury, we look next to the statutes. As has already been commented, the defendants contend, and we agree, that this Court “is without statutory power or authority to summons a constitutional jury.” Further, as has been mentioned, this Court possesses the power to punish for criminal contempt confirmed by Title 18 U.S.C. § 401. It would then be strange indeed to find that some other statute grants to the defendants a right of trial by jury, and we find no such statute. It would appear that, prior to the occasions here involved there had never been such willful disobedience or resistance to an order, judgment or decree of a Court of Appeals of the United States as to make necessary the institution of original proceedings in criminal contempt. We do find such a proceeding for contempt of the Supreme Court of the United States, viz.: United States v. Shipp, 1906, 203 U.S. 563, 27 S.Ct. 165, 51 L.Ed. 319; 1909, 214 U.S. 386, 29 S.Ct. 637, 53 L.Ed. 1041; 1909, 215 U.S. 580, 30 S.Ct. 397, 54 L.Ed. 337. That proceeding was disposed of by the Supreme Court without the intervenion of a jury. We find in the opinions of the Court no discussion of any right of trial by jury, but it clearly appears from the following part of the “Argument for the United States,” as reported in 203 U.S. 564, that the subject was not overlooked: “There is no right to a trial by jury in contempt cases. Eilenbecker v. Plymouth County, 134 U.S. 31 [10 S.Ct. 424, 33 L.Ed. 801]; Ex parte Terry, 128 U.S. 289 [9 S.Ct. 77, 32 L.Ed. 405] ; Ex parte Sa