CHAPTER III.

OF CONTEMPT OF COURT.

90. The original source of judicature is the people. And courts are the distributors of the justice of the people. In England, by theory of law, the king, and with us, the state, hears all disputes between man and man. "But as it would be impracticable to render complete justice to every individual by the people sitting collectively to hear each other's disputes, they have committed that power to certain select magistrates, who, with more ease and expedition can hear and determine complaints," whence it is that courts are appointed to be the tribunals wherein all disagreements shall be heard and determined.

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But in order to do justice, these courts must be omnipotent. In order to protect the suppliant, they must themselves be protected. If a court of justice was merely a bench, upon which a judiciary, elected or appointed, sat to arbitrate concerning the quarrels of its neighbors, to say that its doings and proceedings should be sacred against criticism, and beyond arraignment by the people, might savor of arrogance, and oligarchism, and smack of that oppression of the many by the few, which it is the boast of our constitution, cannot thrive beneath the shadow of her ægis.

But under the above definition of a court, as a

1 Bl. Com. 267.

forum where the majesty of the state sits forever and supreme, the whole doctrine is plain and rational,' and consonant to the spirit of our laws. The great powerthe great physical power of the state-sits in her courts. And all her engines of execution, from the constable and the posse comitatus, to her soldiers and her army, are at their beck to enforce obedience to their last decree. But for all this, the mightest power which centers in courts, is a moral one. A court, to be useful, must secure and maintain the confidence and respect of society, and without that, the puissance of the commonwealth is vain.

91. It is for this reason that to the author and the man of letters these courts must look for their greatest support and co-operation. The vast power of the writer, whether his vehicle of publication be through the library, the bookseller, the press, the rostrum or the stage; can readily become the greatest and chiefest auxiliary of equity, justice, and good order; or, with equal ease, a mighty power for their destruction. Law is the arm of justice, and is the means by which justice-the end-is to be reached. Courts are the administrators of this means, and to the learned and wise and far-seeing, the law looks with confidence, that, all the more because of their wisdom and foresight, will they be solicitous to utter nothing that shall go to undermine her sway or paralyze her arm-nay more, to those who guide and mold opinion and society with their pens, she looks not only that they refrain from lessening her authority, but for positive and substantial aid, countenance, and support. And when the author reflects that it is to this

The authority to punish for contempt is granted as a necessary incident in establishing a tribunal (U. S. v. New York, 1 W. & M. 401).

law that he owes the power of following and controlling his own thoughts and clustered words, when—once uttered-they pass beyond his reach, it would seem. that to him, at least, she should not look in vain.

92. There are two sorts of contempts of a court. The first arises when words are spoken derogatory of its justice, its impartiality, or its organization; the second, when its directions or decrees are disobeyed or slighted.

It is this first sort which may arise in the form of a literary composition, and with which we have to deal in this chapter. For, it is to be remarked, that the criticism of the decree of a court is not a contempt of that decree; since, once made, it is beyond the power of cavil and cannot be disarmed by clamor; the theory of literary contempts being, that they interrupt the facility of the court in arriving at, and not in enforcing, its judgments.

It is, therefore, the rule, founded in the reason of the common law, that all contempts to the personality, or organization of a court: to its judges, juries, officers, or ministers, when acting in the due discharge of their respective duties, whether such contempts be by direct obstruction, or consequentially: that is to say, whether they be by act or writing, are punishable by the court itself, and may be abated instanter as nuisances to public justice, and subject the party so offending to fine and imprisonment. And it belongs exclusively to the court offended to judge of what are contempts-and of their punishment."

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2 No other judge or court can or ought to undertake, in a collateral way, to question or review an adjudication of a contempt made by another collateral jurisdiction, though a superior court may undoubtedly review them, except perhaps in a

93. The law of contempt might at first appear to be contrary to the spirit of the common law. Personal liberty, by the law of England, was considered a strictly natural right, not to be abridged but in the exercise of the greatest possible caution, nor at the mere discretion of a magistrate. This case, however, appears to be without that provision, since it seems that, in a proceeding for contempt, the party accused is not entitled to a trial by jury.?

Says Dr. Dwight, "The power to punish for contempts is undefined, and its exercise depends on the discretion of the court or judge. It is lodged in the hands of one who may suppose himself to have been insulted, or, in other words, with the person aggrieved. It is exercised without the ordinary checks or safe-guards attending criminal trials. The proceeding is inquisitorial, and the accused is compelled, to answer against himself. The decision of the committing. judge is without appeal. The only supervision that an appellate court can exercise, is to see that the forms of the law have been observed; as, for instance, that the person charged with contempt has had a hearing, and that the offense is stated in the order of commitment. Whether the acts were, in fact, a contempt of court, is finally decided by the court or judge before whom, in the first instance, the case is presented, and the punishment may be by fine and

matter arising on habeas corpus. Vid. 3 Wils. 188; 14 East. 1; 2 Bay. So. C. 182; 1 Ill. 266; J. J. Marsh. (Ky.) 575; 1 Blackf. (Ind.) 166; 2 U. P. Charlt. (Ga.) 136; 14 Ark. 538, 544; 2 Ind. 161; 6 Johns. (N. Y.) 337; 9 Id. 395; 6 Wheat. 204; 7 Id. 38.

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1871.

Paper prepared in the case of the Code Amendments,

imprisonment, or both." But the earlier and modern authorities hold the power to exist by the reason of the common law, and as vital to the very existence of courts.

94. The power to imprison for contempt of court is traced by Blackstone to Magna Charta itself.

The Magna Charta bears date June 15th, 1215, which was the seventeenth year of the reign of King John. The first enactment upon the subject of contempt was the statute of Westminster, or seventy years afterward; the statute, however, having reference only to contempts in resisting the process of the King's courts, or, as Blackstone entitles them, to consequential contempts alone. From this statute one writer3 derives the present doctrine of contempts, consequential or otherwise.

95. The power of courts to imprison for contempt is declared both by our own and by English writers. It has been repeatedly asserted in the English courts (and those decisions followed in the courts of this country), as of immemorial usage and practice, since the law itself was known. It is claimed to be a vitally essential attribute and consequence of the administration of the law itself, without which it dies; since it is, thereupon, impotent to command respect or obedience to its own decrees. It is held to have arisen from the very nature and necessity of things,

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4 Com. 237.

"If, then, the power to punish this class of consequential contempts constituted a part of 'the law of the land'so long anterior to the date of Magna Charta as to have become, at that early day, a very maxim of law, where was the necessity for legislation upon the subject?" (per Thacher v. Ex parte Hickey, 12 Miss. 751).

Gilb. Hist. C. P. C. 3.

* Ex parte Hickey, 12 Ark. 751.