inion and in no sense a judicial
judgment. Congress, therefore, could not authorize the Supreme Court to
take appeals from an auditor or require it to express an opinion in a
case where its judicial power could not be exercised, where its judgment
would not be final and conclusive upon the parties, and where processes
of execution were not awarded to carry it into effect. The Chief Justice
then proceeded to formulate a rule, repeated in many subsequent cases
until modified in 1927 and reversed in 1933, to the effect that the
award of execution is a part and an essential part of every judgment
passed by a court exercising judicial powers; it was no judgment in the
legal sense of the term without it.[19] This rule was given rigid
application in Liberty Warehouse Co. _v._ Grannis,[20] where the Supreme
Court sustained a district court in refusing to entertain a declaratory
proceeding for lack of jurisdiction because such a proceeding was
regarded as nonjudicial. One year later, the Court applied the extreme
of the rule in Liberty Warehouse _v._ Burley Tobacco Growers
Association,[21] when it ruled that it could exercise no appellate
jurisdiction in a declaratory proceeding in a State court.

Award of Execution

Meanwhile in 1927 the Supreme Court began to qualify its insistence upon
an award of execution, holding in Fidelity National Bank and Trust Co.
_v._ Swope[22] that an award of execution is not an indispensable
adjunct of the judicial process. This ruling prepared the way for
Nashville, Chattanooga and St. Louis R. Co. _v._ Wallace[23] which
reversed the decision in the Grannis case, sustained an appeal from a
State court to the Supreme Court in a declaratory proceeding, and
effectively interred the rule that award of execution is essential to
judicial power. Regardless, nevertheless, of the fate of an award of
execution, the rule that finality of judgment is an essential attribute
of judicial power remains unimpaired.

Ancillary Powers

THE CONTEMPT POWER; 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.[24] By the latter part of the eighteenth
century summary power to punish was extended to all contempts whether
committed in or