a court of justice has not the power to remove the officers of the court, if unfit to be intrusted with a professional status and character. If an advocate, for example, were found guilty of crime, there is no doubt that the court would suspend him. If an attorney be found guilty of moral delinquency in his private character, there is no doubt that he may be struck off the roll. But in this particular case there is no delictum brought forward or assigned; except that which results from the fact of addressing an improper and contemptuous letter to the chief justice of the court, in respect of something supposed to have been done, unjustly to the writer, in his private capacity as a suitor. We think, therefore, there was no necessity for the judges to go further than to award to that. offense the customary punishment for contempt of court."

An attorney of the king's bench, in the reign of Edward III., was committed for having written a letter to one of the king's council, reflecting on the judges, saying: "That neither Sir William Scot, chief justice, nor his fellows the king's justices, nor their clerks, any great thing would do by the commandment of our lord the king, nor of Queen Philippa, in that place more than of any other of the realm."

The writer of a letter to Lord Hardwicke relative to a threatened suit, and inclosing a bank-note, was held guilty of contempt; and so was the writer of a letter to Chief Baron Parker, making mention of a

1

2

3 Inst. 174.

Macgill's Case, 2 Fowl. Ex. Prac. 404. And in 18—, Judge Barnard, of the New York supreme court, read from the bench a letter he had received from General Santa Anna, relating to a case in which the latter was a litigant, and which was about to be tried before him. "I will show the general," said Judge Barnard, "that this is not a Mexican court."

cause depending in the court of exchequer, and containing a scandalous offer to his lordship.

109. Where the offensive matter is directed to the judge upon the bench, the question whether it will constitute libel or contempt, will depend upon whether the charges published affect the judge's personal character or reputation as a man, or his record, character, and reputation for fairness, and general ability and reliability as a judge.

Thus, in Rex v. Almon,1 the publisher of the letters of Junius was arraigned for contempt of court, for comments upon Lord Mansfield; but the prosecution was ultimately abandoned, and the defendant proceeded against for libel.

So, in Neel v. State, where one James P. Neel, an attorney, affixed to a judge's door a writing to the effect that "Sebron G. Sneed (the judge's name) is a dam'd base and corrupt man," it was held that the words were published of the judge as a man, and not. as a judge, and were not, therefore, contempt of court.

This distinction has been carried to great lengths. In the Matter of Hickey, for example, a scandalous. charge against a member of a court, connected with a cause pending at the time the charge was made, was held to constitute, not contempt, but libel.

In that case the circuit court was engaged in trying an indictment for murder, when an article appeared in the defendant's newspaper, charging the judge upon the bench with being a criminal abettor of the murder.

In a proceeding to commit the defendant for contempt—held, that the publication was a libel, and not

5 Burr. 2686; Bishop on Criminal Law, § 216.

1

2

4 Eng.(Ark.) 259.

12 Miss. (4 Sou. & Mar.) 751.

a contempt. But, with all deference to the learned judge's opinion, we can hardly accept this decision as satisfactory. It seems to us that this charge would come under all of the definitions of contempt that have been given. It is an attack upon an officer of the court, since it charges him with a criminal interest in the case in court before him. It is a disrespect to him. It tends to impair public confidence in the court, and its usefulness in investigating truth. And surely such a charge against the character of the presiding judge must be held to "scandalize the court itself." That the charge was libelous, indeed, there

1

It is equally indispensable to repress in the like speedy and effectual manner all attempts which may be made with relation to any trial depending at the time, or which has recently been so, to slander the proceedings of the court, or depreciate the character, or sully the honor of the judges; or to impose on their wisdom and pollute the demands of justice, to the prejudice of a fair and an impartial trial. In former times, they scrupled not summarily to inflict high corporal pains for transgressions of the first of these kinds. As in the case of Donald Campbell, who, in the course of a trial, when standing among the multitude by the courthouse, had openly accused the Earl of Athol, justice-general, of gross partiality and corruption in the case; he had sentence, therefore, to stand two hours upon the cuck-stool and make public confession of his fault, and to have his tongue bored by the common executioner. More lately, after the conviction of Nairn and Ogilvy, certain printers were rebuked (and, on account of their submission, were dismissed without further answer) for publishing an opinion of English counsel on the case, accompanied with notes highly injurious to the court and the jury. In a still later instance, an account had been published of a certain trial, equally slanderous of the proceedings of the court, and contemptuous of the persons of the judges; and here, as the offense was not followed with the like symptoms of contrition, the culprits Johnson and Drummond were sent to jail for three months, and till they should find surety for their good behavior for the future. In these several instances the court guarded their own honor. Hume, 2 Com.

can be no doubt; but it seems to us that this was a contempt, as well as a libel.

In treating of the English law upon this question of libeling judges, a late writer1 says: "There is no instance of a judge at chambers fining or imprisoning, without the authority of the court, for any insult offered to him there. We must distinguish, in this respect, between a judge of a court of record and the court of record itself." "No one of the rights, privileges, and incidents of a judge of a court of record,” says Alderson, B., "necessarily carries with it the power of committing for contempt." Where the proprietor and printer of a newspaper were tried upon an information filed by the attorneygeneral, for a libel upon Le Blanc, J., and the jury before whom the captain of a merchant-ship had been tried for murder at the Old Bailey, Grose, J., said: "It certainly was lawful, with decency and candor, to discuss the propriety of the verdict of a jury, or the decisions of a judge; and if the defendants should be thought to have done no more in this instance, they would be entitled to an acquittal; but, on the contrary, they had transgressed the law, and ought to be convicted, if the extracts from the newspapers set out in the information contained no reasoning or discussion, but only declamation and invective, and were written not with a view to elucidate the truth, but to injure the character of individuals, and to bring into hatred and contempt the administration of justice in the country.'

110. IV. As to the publication of comments tending to prejudice a case in the minds of the court, the jury, or the public at large:

The publication in a newspaper, pending a cause

1 Shortt L. L. 361.

* Rex v. White, 1 Camp. N. P. 359.

in chancery, of articles reflecting on the plaintiff and his witnesses, and characterizing the chancery proceedings as vexatious and unprincipled, and representing the affidavits as "containing glaring misrepresentations, which the editor believed, and heartily hoped, would lead to an indictment for perjury," is a contempt of court.1 "If parties in the prosecution of their rights," said Lord Langdale, Master of the Rolls, "are to be exposed to this species of attack, and are to be placed in such a situation that they cannot safely proceed in the defense of their rights, and if witnesses are, in this way, deterred from coming forward in aid of legal proceedings, it will be impossible that justice can be administered. It would be better that the doors of the courts of justice were at once closed." Or, if the publication comment upon affidavits filed in the case, but not yet before the court. So in a recent case a motion was made on the part of the plaintiff that the publisher of the "Pall Mall Gazette" newspaper might be committed to the Queen's prison, for a contempt of the court, in having published in that paper, an article containing comments on certain affidavits which had been filed in support of the plaintiff's case, but had not yet been brought before the court. Similar applications were at the same time made to commit the publishers of certain other newspapers, for having published the same article. The vice-chancellor (Wood) said: "I have no hesitation in saying that a gross contempt of court has been committed in this case. The first observation I would make is, that, from the time of Lord Hardwicke downwards, the rule

1 Littler v. Thompson, 2 Beav. 129.

2 Id.

Vid. also Felkin v. Herbert, 9 L. T. N. S. 635; 33 L. J. 294 C. H; Rex v. Clement, 4 B. & Ald. 218; Tichborne v. Mostyn, 17 L. T. N. S. 5; L. Rep. 7 Eq. 55.