government by injunction has become
an important feature of our system. The use made of the injunction in
recent years in the conflicts between labor and capital has placed a
large and important class of crimes beyond the pale of this
constitutional provision. Moreover, this particular class of crimes is
the one where denial of the right of trial by jury is most likely to
result in oppression. Under this mode of procedure the court has
virtually assumed the power to enact criminal legislation, and may
punish as crimes acts which neither law nor public opinion condemns. It
ensures conviction in many cases where the constitutional right of trial
by jury would mean acquittal. It places a powerful weapon in the hands
of organized wealth which it is not slow to use.[98]

This so-called _government by injunction_ is merely an outgrowth of the
arbitrary power of judges to inflict punishment in cases of contempt. In
this respect, as well as in the power to veto legislation, the authority
of our courts may be regarded as a survival from monarchy. The right of
judges to punish in a summary manner those whom they may hold to be in
contempt of their authority has been defended by legal writers generally
on the ground that it is the only way in which the necessary respect for
judicial authority can be maintained. It is difficult, however, to see
why this argument would not apply with equal force to the executive and
legislative branches of the government; for there must be some means of
enforcing obedience to every lawful authority, legislative, executive,
or judicial. The progress toward responsible government has long since
deprived the executive of the power to inflict arbitrary punishment, and
the legislature, though still retaining in a limited degree the power to
imprison for contempt of its authority, seldom uses and almost never
abuses it. The question is not whether contempt of authority should be
punished, but whether the officer whose authority has been disregarded
should also act as judge and jury, should ascertain the guilt and fix
the punishment of those whom he as complaining witness has accused of
contempt of his authority. This procedure is utterly at variance with
the idea of political responsibility, and survives only because the
judicial branch of our government has thus far effectually resisted the
inroads of democracy. That the exercise of this arbitrary and
irresponsible power is necessary in a democratic comm