State v. Frew & Hart

24 W. Va. 416, 1884 W. Va. LEXIS 72

• Court: West Virginia Supreme Court
• Decided: July 7, 1884
• Status: Published

Opinions

Johnson, President:

It is claimed in the answers, that the proceedings in this case are irregular; that the rule is too vague and indefinite and ought only to have issued upon affidavit. There is no sufficient irregularity in the proceedings here, that would justify' the Court in discharging the rule, as clearly appears by the opinion of brother Snyder, which meets my entire approval. The main question, the one most discussed at the bar, is: Has the Court the power to punish summarily a constructive contempt of the character described in the-rule? It is insisted, that the power to punish for contempt is limited by sections 27 and 28 of chapter 147 of the Code. The said two sections are as follows:

“ 27. The courts and judges thereof may issue attachments for contempts and punish them summarily only in the cases following: First, misbehavior in the presence of the court or so near thereto as to obstruct or interrupt the administration of justice; secondly, violence or threats of violence to a judge or officer of the court or to a juror, witness, or party going to, attending or returning from the court, for or in respect of any act or proceeding had, or to be had, in such court; thirdly, misbehavior of an officer of the court in his official character; fourthly, disobedience or resistance of any officer of the court, juror, witness, or other person to any lawful process, judgment, decree or order of the said court.”

“ 28. JSTo court shall, without a jury, for any such contempt as is mentioned in the first class embraced in the preceding section, impose a fine exceeding fifty dollars or imprison more than ten days. But in any such case the court may impanel a jury (without an indictment or other formal pleading), to ascertain the fine or imprisonment proper to be inflicted, and may give judgment according to the verdict.”

It is also insisted, that the Legislature had the right thus to limit the powers of courts over the subject of contempts and entirely prohibit the courts from punishing summarily such a constructive contempt, as is set up in the rule. Counsel cite the following authorities to sustain this position: State v. Storey, 79 Ill. 48; Wharton’s Pl. & Pr. §§ 957-961; Trial of Judge Peck, pp. 87, 91, 92, 295, 400, 426; Const. of State, arts. 3, 6 § 39; Ex parte Bollenan and Swartwout, 4 Cranch 93; Ex parte Hardy, 68 Ala. 303; State v. Woolley, 11 Bush 95; Whittem v. State, 36 Ind. 196; 20 Am. Law Reg. 432; 1 Wood. & M. 440; State v. Galloway, 5 Coldw. 326; Ex parte Hickey, 4 Sm. & M. 776; People v. Yates, 6 Johns. 337; Hummel’s Case, 9 Watts 431; 42 Cal. 412; Wheeling v. B. & O. R. R. Co., 13 Gratt. 40; Lindsay v. Com’s, 2 Bay 61; Hoover v. Wood, 9 Ind. 286; Ireland v. Turnpike Co., 19 Ohio St. 373; State v. Sauvinet, 24 La. Ann. 119; Hill v. Crandall, 52 Ill. 70; Lewis v. McElvain, 16 Ohio 347; Ex parte Schenck, 65 N. C. 353; Weaver v. Hamilton, 2 Jones’ Law 343; In re Daves, 81 N. C. 72; In re Walker, 82 N. C. 95; Cromartie v. Com’rs, 85 N. C. 211; Dunham v. State, 6 Iowa 245; State v. Anderson, 40 Iowa 207; Ex parte Edwards, 11 Fla. 185; Stuart v. People, 3 Scam. 395; Batchelder v. Moore, 42 Cal. 412; Rutherford v. Holmes, 5 Hun 317; Newton v. Com., 1 Grant’s Cas. 453; Middlebrook v. State, 43 Conn. 258; Deskin’s Case, 4 Leigh 685.

The case in 79 Illinois was a proceeding against Storey for contempt of court and publication of certain articles in The Chicago Times reflecting upon the action of the grand jury in finding indictments against him in said court. The court below found him guilty and sentenced him to imprisonment in the county jail. To this judgment he obtained a writ of error. Mr. Justice Scholfield in delivering, the opinion of the court, after referring to the fact that there was no allegation, that the publication of the articles is calculated to prevent the obtaining of a competent petit jury to try the respondent on the' several indictments, or that the judge, whose duty it will be to preside during such trial, will in anywise be affected thereby in the discharge of his duty, said:

“ The only question therefore is, assuming the articles to be libelous, whether the publishing of a libel on the grand jury or on any of the members thereof because of an act already done, may be summarily punished as a contempt. We 'do not understand the articles as having a tendency directly to impede, embarrass or obstruct the grand jury in the discharge of any of its duties remaining to be discharged after the publications were made. * ' * * All that it would seem could be claimed is, that the publications would cause disrespect to be entertained by the public for the grand jury and for its actions in the particular eases criticised and thereby to that extent to bring odium upon the administration of the law. That this is a grave offence, deserving of prompt and severe punishment might be conceded without in the slightest degree strengthening the position that it may be treated and punished as a contempt of court. * * It is not denied by counsel for respondent that courts may punish, as for contempt, those who do any act directly tending to impede, embarrass or obstruct the administration of the law, but they deny that any publication, however disrespectful, when applied to jurymen in regard to the manner in which they have already discharged a duty, does or is calculated to impede, embarrass or obstruct the administration of the law.

“ Authority máy be found in the text-books and in English and American cases holding a doctrine at variance with this position. Thus for instance Blackstone says contempts of courts may be committed ‘by speaking or writing contemptuously of the court or judges acting in their judicial capacity; by printing false accounts, (or even true ones without proper permission) of causes then depending in judgment, and by anything in short that demonstrates a gross want of that regard and respect, which, when courts of justice are deprived of their authority, (so necessary for the order of the kingdom,) is entirely lost among the people.’ But the law in relation to contempts has never been held in any case decided hv this court to he so indefinitely broad, as it is thus settled by Blackstone. Our Constitution and.statutes certainly affect the question to some extent; and it is only in determining how, for they do so, that we have any difficulty. A statute of this State in force for many years provided, that the circuit and supreme courts should have power to punish contempts offered by any person to them while sitting, and for disobeying their process, rules and orders issued and made conformably to law. And this court held in Stuart v. The People, 3 Scam. 402, that this statute might he regarded as a limitation on the power of courts to punish for any other contempts, and newspaper articles commenting on the conduct of a juror, who was also the editor of a rival political paper to that in which the articles were published and reflecting contemptuously upon the judge published during the pendency of a trial for murder, were held not to authorize an attachment for contempt. It was said in that case in speaking of the power to punish, as. for contempt, in cases of mere libels upon the court having no direct tendency to interfere with the administration of the law:

“It does not seem necessary for the protection of courts in the exercise of their legitimate powers, that this one so liable to abuse should also be conceded to them. It may be so frequently exercised as to destroy that moral influencewhich is their best possession until finally the administration of justice is brought into disrepute. Respect to courts can not be compelled; it is the voluntary tribute of the public to worth, virtue and intelligence, and whilst they are found upon the judgment seat, so long and no longer will they retain the public confidence. If a judge be libeled by the public press he and his assailant should be .placed on equal grounds, and their common arbiter should be a jury of the country; aud if he has received an injury ample remuneration will be made.”

“In the more recent case of The People v. Wilson, 64 Ill. 195, a majority of the court held, that the publication of an article indirectly charging, that money had been used to procure a decision favorable to the defendant in a case pending before this court on writ of error, was a contempt, and the court accordingly imposed fines upon the editor and publisher of the newspaper, in which the offensive article was published.

“Authorities were referred to in support of the positions assumed by one or more of the members of the court in that case, and a train of reasoning pursued in the separate opinions delivered, from which the court bedow may have inferred, and probably did infer, assuming that the law had not since then been materially changed in this respect, that any libel upon the court or jury, whether tending directly to interfere with the administration of the law or not, might be punished for a contempt. But the decision turned upon the point, as will be seen by reference to the opinion of the chief justice, that the cause in reference to which the article was published, was then pending before the court, undecided, and that the article was calculated to and was designed to influence the members of the court in deciding it. Had the law therefore as then in force remained unchanged, it would be difficult to sustain the conviction of the respondent. But since the decision of that case the statutes have been revised, aud the provision in regard to contempts before quoted has been repealed, leaving no statute in force on that subject, except in regard to the enforcement ‘of decrees in chancery and the punishment of certain specific offences, such as the failure of juries to attend in obedience to summons, the failure of officers to make service and return of writs, &e.

“ Courts however possess certain common-law powers, subject to modifications that may have been imposed by our Constitution and statutes, among which is included that of punishing for contempts. Diffei’ent opinions have been entertained by members of this court at different times in regard to the extent of such modifications; and wo feel constrained, in giving expression to our views in the present ease, to disagree to some extent with remarks made by some of the members composing the majority of the court in Wilson’s Case, supra.

“In our opinion it is not admissible, under our Constitution, that a publication however libelous, not directly calculated to hinder, obstruct or delay courts in the exercise of their proper functions, shall be treated and punished summarily as a contempt of court.”

The court held that the constitutional provision, “that every person may freely speak, write and publish on all subjects, being responsible for the abuse of that liberty; and in all trials for libel both civil and criminal the truth, when published with good motives and for justifiable ends, shall be-a sufficient defence,” applies to words spoken or published in regard to judicial conduct and character.

I do not understand this case as overruling People v. Wilson, but it docs dissent from the broad ground taken by some of the judges in that case. It is true that Wharton in his Criminal Pl. & Pr. takes the ground that a contempt of the character now under consideration cannot be summarily punished. But Bishop, 2 Crim. L. section 259, takes an opposite view of the question. In the celebrated case of Judge Peck, there was nothing decided, as I understand it, except that the Senate of the United States believed that the action of the judge was an error of judgment. It seems to me apparent that Lawless was not guilty of a constructive contempt unless a dignified criticism of the opinion of the court is such contempt; a position that would not he taken by any court.

In Woollen's Case, 11 Bush it was held that the right of self-preservation is an inherent right in the courts noj¿ derived from the Legislature, and cannot be made to depend upon the legislative will. Whether the Legislature might interfere with the manner, in which courts protect themselves from insults and indignities, was doubted and left an open question. This was a contempt to the court of appeals of Kentucky and was punished by a fine.

Arnold v. The Comm. 80 Ky. 300, was a writ of error to a judgment in a contempt case, the contempt having been committed in the presence of the court. Judge Pryor in delivering the opinion of the court said: “It is conceded that the court has the inherent power to punish by fine and imprisonment for such a contempt, and it might be added the Legislature has no power to take from the court the power to protect itself from such flagrant contempts, as was offered to the court in this particular case, (which was an assault upon the attorney for the State while prosecuting a man for murder) and to sanction the exercise of such legislative action, would in effect defeat the administration of justice, * * * The right to punish for contempt without the intervention of a jury, was recognized, and is fully established by the rule of the common-law, and when the exercise of the power is admitted, the fact that a jury may be called in to aid the court, in determining the question of the punishment to b.e inflicted, is in no manner objectionable. While the right to punish is in the court, w.e are not prepared to say that it is not subject in some degree to legislative control; but on the contrary we-are inclined to adjudge that a mere arbitrary discretion on the part of the judge may' be limited; but an attempt by legislation to deprive the .courts of the inherent power of protection against assaults and indignities would be disregarded. * * * That it is a contempt of court is not denied, but as the statute provides no mode of trial or of briuging the party before court for trial, it is urged that it must be by indictment. There was no warranty for providing a mode of trial. The inode of conducting such a proceeding was established by the rule of the common law, * * * that is, by an attachment or rule against the party charged with the contempt. * * * The question of the right of trial by jury in cases of contempt has been often raised but always denied. Ex parte Grace 12 Ia. 208, and several other cases are cited by Judge Pryor as sustaining this position.

Whittem v. State, 36 Ind., shows, that the Legislature in that State has given, if it could give, power to the courts to punish either direct or constructive contempts. It seems to me the case of State v. Galloway, 5 Cold., properly decides nothing, except that a judgment for contempt by an inferior court could not he reversed. The criminal court of Memphis pronounced judgment of fine and imprisonment upon a charge of contempt against Galloway and Rhea, the editors and publishers of the Memphis Avalanche. The alleged contempt was an editorial article published in said paper, purporting to give the particulars and denouncing the judge of the'court as guilty of official corruption in discharging upon bail a prisoner indicted in that court for felony. The publication was made a day or two after the discharge of the prisoner on hail. The Tennessee Code provided, that “ the power of the several courts of this State to issue attachments and inflict punishments for contempt of court shall irot he construed to extend to any except the following cases: The provisions are similar to ours in most respects, hut the sixth clause provides in general terms for “ any other act, or omission declared a contempt by law.” The court said of this clause, “that it was not intended to embrace and did not embrace the vast and undefined scope of contempts at common-law, outside of the clauses prescribed by statutory enactments.” The court further said, that no writ of error lay to the judgment, and a judgment refusing to dischaz’ge the prisoner on habeas corpus could not he reversed; that the *£power of the courts to punish for contempts without appellate supervision, though absolutely essential to the protection, efficacy and existence of the courts, is nevertheless capable of being exercised unwisely and corruptly. Absolute and complete protection or redress against such injudicious or improper exercise of the power is in its nature, as to many cases impossible to be given. In the organization and and maintenance of government it is impossible to avoid the necessity of reposing powers in functionaries, whose action must be final and inevitable.” The court seemed to think that the power of the court in the case before it was improperly exercised, but it was not subject to review.

The case in 4 Smedes & Marshall, is not decided by the supreme court of Mississippi, and the opinion there pronounced and so much relied on in the argument before us was the opinion of a single judge of the supreme court pronounced in discharging a prisoner on writ of habeas corpus. Another judge mider like circumstances expresses a different opinion in ex parte Adams, 25 Miss. 883, in which he held, that “the right of courts of justice to punish by fine and imprisonment for contempts of their authority is an inherent right pei’taining to them, which they can exercise independent of any statute.” But in Watson v. Williams, 36 Miss. 331, which was heard on appeal the court held: “The right of punishing contempts by summary conviction is a necessary attribute of judicial power, inherent in all courts of justice from the very nature of their organization, and essentia] to their existence and protection and to the due administration of justice. It is a trust given to the courts not for themselves, but for the people whose laws they enforce, and whoso authority they exercise, and each court, has the power for itself finally to adjudicate and punish con-tempts without interference from any other. The right to punish for contempts extends not only to acts which directly and openly insult and resist the powers of the court, or the persons of the judges, but to indirect and constructive con-tempts which obstruct the process and degrade the authority of the court.”

The court said in Batchelder v. Moore, 42 Cal. 412: “The power of a court to punish for an alleged contempt of its authority, though undoubted, is in its nature arbitrary, and its exercise is not to bo upheld, except under the circumstances and in the manner prescribed by law.” It did not then appear, that the statute did not confer ample power for the proper protection of the courts, and this authority therefore recognizes the right of the Legislature to limit and regulate but not to take away the right of self-protection from the courts.

In ex parte Schenck, 65 N. C. 853, it was held that “the act of April 4, 1871, declaring that no attorney who has been duly licensed to practice law shall be debarred or deprived of his license and right to practice, except apon conviction for a criminal offence or after confession in open court is constitutional; that said act docs not take away any of the inherent rights which are absolutely essential in the administration of justice.” This case does not overrule ex parte Moore or ex parte Biggs, in 63 and 64 N. C. To these last eases I will refer in another part of this opinion.

In Walker’s Case, 82 N. C. 95, it was held, that it was unlawful to imprison for more than thirty days for a contempt of court, citing the statute. The constitutionality of the act is not discussed, and it seems to be admitted by the court that the Legislature has the right to regulate the power to punish for contempts

Again Cromartie v. Com’rs, 85 N. C. 211, was a construction of a statute without considering its constitutionality; audit washeld that “under the Act of 1868-9 chapter 117, the court has no power to punish a contempt already committed by an imprisonment of indefinite duration, but it may by proceedings as for contempt coerce obedience to any lawful order by imprisoningthe contumacious party, until he shall comply.”

Dunham v. State, 6 Ia. 245, was a writ of. error to the judgment of the circuit court, punishing for a contempt an editor for a libel on the court during a trial; and the court held, reversing the judgment, tbat“the publication of articles in a newspaper, reflecting upon the conduct of a judge in relation to cases pending in his court, and which war. disposed of before the publication, or the publication of the evidence and arguments of counsel in a case undisposed of, in which there was no rule of court prohibiting such publication, however unjust and libelous the publication may be, do not amount to contemptuous or violent behavior towards the court, under chapter 94 of the Code, nor arc they so calculated to impede, embarrass or obstruct the court in the administration of the law, as to justify the summary punishment of the offender under that chapter.” In that case the court said: “We are strongly inclined to think however, that the provisions of the Code upon this subject must be regarded as a limitation upon the power of the courts to punish for any other contempts. We can conceive of no possible state of case in which the exercise, of this power might become necessary for the protection of the court, or the duo administration of the law, that is not covered by these provisions. If such a case could by possibility arise, we woiikl not say that by virtue of its inherent power, the punishment might not bo inflicted.” They admit the right to regulate the power, hut not to take away any that is necessary for the courts in properly administering the law.

In State v. Anderson, 40 Ia. 207, it was held, “that the publication by an attorney in a newspaper, criticising the rulings of tlie court in a case tried and determined prior to the publication does not constitute contemptuous or violent behavior toward the court, punishable as contempt. "Whether the publication if made daring the pending of the trial, would justify the court in punishing the writer for contempt, quccre.”

In ex parte Edwards, 11 Fla. 174, it was held: “In the absence of any statutory limitation or restriction, the power of the several courts over the matter of ‘ contempts’ is omnipotent and its exercise in any particular case is not to be questioned by any. other tribunal. It is the great bulwark established by the common-law for the protection of courts of justice, and for the maintenance of their dignity, authority and efficiency. By our statute the power to punish for £ con-tempts ’ is limited to fine and imprisonment, the fine in any-case not to exceed one hundred dollars, or imprisonment thirty days, and this statute is made to ajjply as well to courts of equity as to courts of common-law. As applicable to courts of chancery, the restrictions in the statute must be confined to such acts as are the subject, merely of punishment. It never was designed to deprive that court of its ancient authority to enforce its affirmative orders or decrees, or any order or decree, whether affirmative or otherwise, which may he pronounced at the final hearing of the cause.” The court says of the power of courts over the subject, p. 186: “This is the great bulwark established by the common-law for the protection of courts of justice, and for the maintenance of their dignity, authority and efficiency, and neither in England nor in the United States has this unrestricted power been seriously questioned.”

In Rutherford v. Holmes, 5 Hun 317, it is held by the supreme court of Hew York, not the court of appeals, which is the court of last resort: “The power to punish for contempt is, in its nature, an exception to the provisions of the Constitution, and it cannot he extended in the least degree, beyond the limits which has been imposed by statute.” This was a review of a contempt-proceeding by a justice ofthepeaee.

In Middlebrook v. The State, 43 Conn. 257, it was held: “The statute is not to be regarded as conferring the power to punish for contempts, but merely as regulating an existing power. The power is inherent in all courts.”

In delivering the opinion of the court Carpenter, J., said : “But independently of the statute we think the power is inherent in all courts. A court of justice must of necessity have the power to preserve its own dignity and protect itself. In re Cooper 32 Vt. 257; State v. Woodfin, 5 Ired. L. 199; Stephen’s Case, 404. Many other cases might be cited to the same point but it is unnecessary, as we aware of no authority directly in point to the contrary.”

I have reviewed the strongest eases cited by counsel to sustain their position, and deem it unnecessary to refer to their other citations more particularly.

Judge Cooley in his work on Torts 424, says: “It has also been held in many cases that the publication of an article in a newspaper commenting on proceedings in courtthen pending and undetermined, or upon the court in its relation thereto, made at a time and under circumstances calculated to affect the cause of justice in such proceedings, and obviously intended for that purpose, may be punished as a contempt, even though the court was not in session when the publication was made. Such a publication when made, however, is a continuous wrong, as much as would be something of a physical nature, planned in advance ' and so arranged, as that its natural and necessary results should be to throw the court into disorder and confusion when its sitting should commence.”

In Spalding v. The People, 7 Hill 301, it was said by Nelson, C. J.: “The remedy by indictment is oftimes -found too tardy for the exigency of the case; and hence the law has always authorized the mere summary proceeding by attachment as for a criminal contempt, whereby the offender is arraigned at once upon the charges and the course of justice more promptly vindicated and sustained. As has been well remarked in reference to this subject, laws without a competent authority to secure their administration from disobedience and contempt would be vain and nugatory. Apower in the courts of justice therefore to-suppress such contempts, by an immediate attachment of flic offender, results from the first principles of judicial establishments, and must be an inseparable attendant upon every superior tribunal.”

In Yates v. Lansing, 9 Johns. 417, Platt, Senator, said: “A contempt is an offence against the court as an organ of justice; and the court can rightfully punish it on summary conviction, whether the same act be punishable as a crime or misdemeanor, on indictment or not. * * * A conviction on indictment will not purge the contempt; nor will a conviction for contempt be a bar toan indictment.”

In Rutherford v. Holmes, 66 N. Y. 369, it was held: “A court of a justice of the peace has no power to adjudge a person in contempt and to punish him therefor save in the cases prescribed in the statute.” Andrews and Miller, Judges, dissented. The two dissenting judges must have thought that even a justice of the peace could not bo by statute deprived of- his necessary power to punish for certain con-tempts.

In Matter of Kerrigan, 38 N. J. L. 344, it was held: “ The power to punish by commitment for contempt is a power belonging only to judges of certain courts, and does not arise from the mere exercise of judicial functions. The power so far as it may bo exercised by judicial officers is an incident to a court, belonging alike to civil and criminal jurisdiction, but not extending at the common-law, below such as are courts of record, recognized in the common-law.”

In Cartwright's Case, 114 Mass. 238, Gray, C. J., said: “ The summary power to commit and punish for contempts tending to obstruct or degrade the administration of justice is inherent in courts of chancery and other supreme courts as essential to the execution of their powers, and to the maintenance of their authority, and is a part of the law of the land within the meaning of Magna Charta and of the twelfth article of our declaration of rights.”

In State v. Matthews, 37 N. H. 450, it was held, that “the authority to punish contempt is a necessary incident, inherent in the organization of all legislative bodies, and all courts of law or equity.”

In Sturo’s Case, 48 N. H. 428, it was held : “ The publication of an article in a newspaper printed and circulated in the place where a court Is sitting, reflecting in severe and opprobrious terms on the character of a criminal prosecution then pending in court and standing in order for trial, if the publication is made at a time and in circumstances such as would naturally bring it to the notice of jurors and others who are in attendance upon the court, is a contempt of court and punishable as such by summary process.”

In Morrison v. McDonald, 21 Me. 550, it was held: “ The power to commit for contempts of court is incidental to all courts of record.”

In Gaudy v. The State, 13 Neb. 445, it was held: “The district court has authority to punish by proceedings for contempt, any person who attempts to corrupt or' unlawfully influence jurors in a ease pending before the court.” It was further held, that “as the proceeding was solely to protect justice from obstruction,The accused is not entitled to a trial by jury.”

In State v. Williams, 2 Spee. 26, it was held: “The seventh and eighth clauses of the act of 1839 in relation to the office of constable, which prescribe the proceeding by indictment in eases of official misconduct, do not supersede or impair a judge’s common law jurisdiction over the subordinate officers of court, so as to deprive him of the power without indictment of punishing a constable for contempt, or of ordering him to be put under a rule to show'cause why he should not be stricken from the roll for official misdemeanor coming under the observation of the judge himself, or which may be brought to his knowledge through official channels. The remedy provided by this act is rather to be regarded as cumulative than exclusive.”

In the old case of Respublica v. Oswold, 1 Dal. 319, decided by the supreme court of Pennsylvania in 1788, it appears from the opinion of McKean, C. J., that it was a motion for an attachment against Elcazer Oswald printer and publisher of the Independent Gazetteer. That an action for libel had been instituted in that court, in which Andrew Brown was plaintiff and said Oswald defendant; that a question with respect to bail in the action had been agitated before one of the judges, from whose order discharging the defendant on common bail the plaintiff had appealed to the court; and that Oswald’s appeal to the public through his paper, which was the immediate subject of complaint, related to the action then pending before the court. It was contended that the published address was intended to prejudice 'the public mind upon the merits of the cause, by propagating an opinion that Brown was the instrument of a party to persecute and destroy the defendant; that he acted under the particular influence of Dr. Rush, whoso brother was a judge of the court, and in short from the ancient prejudices of all the judges the defendant did not stand the chance of a fair trial. The chief justice said: “Assertions and imputations of this kind are certainly calculated to defeat and discredit the administration of justice. Let us therefore enquire first whether they ought to be considered as a contempt of the court; and secondly, whether the offender is punishable by attachment.” The court decided both questions in the affirmative; and the following judgment was pronounced by the chief justice: “Eleazcr Oswald, having yesterday considered the charge against you, we were unanimously of the opinion that it amounted to a contempt of the court. Some doubts were suggested, whether even a contempt of the court was punishable by attachment; but not only my brethren and myself, but likewise all the judges of England think that without 'this power no court could possibly exist; nay that no contempt could indeed be committed against us, we should be so truly contemptible. The law upon the subject is of immem-orable antiquity, and there is not any period when it can be said to have ceased, or discontinued. On this point therefore we entertain no doubt. Rut some difficulty has arisen with respect to our sentence; for on the one hand we have been informed of your circumstances, and on the other we have seen your conduct; your circumstances are small, but your offence is great and 'persisted in. Since however the question seems to resolve itself into this, whether you shall bend to the law or the law shall bend to you, it is our duty to determine that the former .shall be the case. Upon the whole therefore the oouiit pronounces this sentence : That you pay a fine of ten pounds to the commonwealth-, that you be imprisoned for the space of one month, that is from the 15th day of July to the 15th day of August next; and after-wards until the fine and costs are paid. Sherifi he is in your custody.”

In Passmore’s Case, 3 Yeates 441, decided by the same court in 1802 it was held: “ The publication of a paper to prejudice the public mind in a cause depending is a contempt, if it manifestly refers to the cause though it does not expressly appear on the face of the writing. But however libelous the' paper may be the court can have no cognizance of it in a summary way, unless it be a contempt. ” In that case the publication related to the plaintiff in a civil suit against said Passmore. Shippen, C. J., said: “However libelous the publication complained of may be, we have no cognizance of it in this summai’y mode, unless it be a contempt of the court. 2 Atk. 469. But we are unanimously of opinion that in point of law it is such a contempt, and readily concur with Lord Hardwieko that ‘ there cannot be anything of greater consequence than to keep the streams of justice clear and pure, that parties may proceed with safety both to themselves and their characters.’ Ib. 461. If the minds of the public can be prejudiced, by such improper publications, before a cause is hoard, justice cannot be administered. The defendant has set at naught the advice we gave him when we ordered the attachment. He has made no atonement whatever to the person whom he has so deeply injured, and he' can only blame himself for the consequences. The judgment of the court is, that the defendant pay a fine of fifty dollars to the commonwealth, and be imprisoned in the debtors’ prison for thirty days, and afterwards until the fine and costs are paid.”

On April 3, 1809, the Legislature of Pennsylvania passed an act, the second Section of which provided, that “publications out of court respecting the conduct of the judges, officers of the court, jurors, witnesses, parties or any of them, if in and concerning any cause pending before any court of this commonwealth, shall not be construed a contempt of the said court, so as to render the author, printer, publisher, or either óf them liable to attachment and summary punishment for the same, &c., but authorizes a proceeding by indictment for the same, and gives the party aggrieved his action at law to recover damages for the injury sustained.” No case from Pennsylvania has been cited and none found by us, in which the constitutionality of this act has been declared or even discussed.

In the ease of Hummel and Bishoff, 9 Watts 416, a section of the contempt-law was construed on writ of error, and it was held the defendants were officers within the meaning of the act of Juno 16, 1836, restricting the powers of the several courts to issue attachments, and to inflict summary punishments for contempts of court, and affirmed the judgment of the court below, summarily punishing the defendants.

It will be seen that in none of the numerous authorities, which we have cited, has it been expressly held, that it is within the legislative power to so limit the right of the courts of record, as to take from them their inherent power to punish summarily constructive contempts, when the exercise of such right is essential to the administration of justice. But in a number of cases it has been held that the Legislature cannot impose such limit.

In Hughes v. The People, 5 Col. 436, it appears that the Code of Colorado provided, that “the following acts or omissions shall be deemed a contempt:” (then follow the classes). The court evidently did not regard the contempt as coming within the provisions of the statute; and Stone, J., in delivering the opinion of the court, said: “ Aside from the inapt language and faulty manneifcof expression these enumerated causes of legal contempt in the Code are much narrower than the common-law.” Then after quoting the language of Breese, J., in Stuart v. People, 3 Scam. 395, that the language of the statute might with great propriety, “be regarded as a limitation upon the power of the court to punish for any other contempt,” further says, “while we do not think upon the whole case this language intended to declare a doctrine so broadly as is contended for it, there are on the other hand ample authorities for the more reasonable doctrine, that such a statutory enumeration of causes as is found in our Code, when applied to the ever varying facts and circumstances, out of which questions for contempt arise, cannot be taken as the arbitrary measure and limit of the inhei’ent power of a court for its own preservation and for that proper dignity of authority, which is essential to the effective administration of justice.”

In Woolley’s Case, 11 Bush 95, Lindsay, J., said: “"We will not in this case determine, whether under the Constitution the legislative department under the guise of regulating proceedings in cases of contempt can take from the judiciary the power to preserve its independence and equality by protecting itself against insults and indignities. The right of self-preservation in an inherent right in the courts. It is not derived from the Legislature and cannot be made to depend upon legislative will. The power of the legislative department to interfere with the manner in which the judicial department shall protect itself against insults and indignities is denied by the supreme court of Arkansas (State v. Morrill, 16 Ark. Rep. 324,) and doubted by the Supreme Court or the United States. (Ex parte Robinson, 19 Wall. 510). It remains au open question in this State and we intend in this case to so leave it.”

In People v. Wilson, 64 Ill. 195, it was held that “the power to punish for contempts is an incident to all courts of justice independent'of statutory provisions; that the statute which declares that the supreme court ‘shall have power to punish contempts offered by any person to it while sitting’ merely affirms a pre-existent power and does not attempt to restrict its exorcise to contempts in the presence of the court but leaves them to he determined by the principles of the common-law. And if a statute should be regarded as a limitation upon the power of the court to punish for any other contempts than those committed in its presence, yet in this power would necessarily be included all acts calculated to impede, embarrass or obstruct the court in the administration of justice. Such acts would be considered as-done in the presence of the court.” And the supreme court of Illinois in that case punished by attachment the publisher and editor of a newspaper for publishing in a city of the State remote from where the court was sitting a charge of bribery against the court ou account of its action in a case pending on a writ of error.

In ex parte Moore, 63 N. C. 397, the supreme court of Korth Carolina assorted the right to punish summarily for contempt an attorney at its bar for a publication of an article in a newspaper reflecting on the court and published when the court was not in session. And the court held : UA court has power to require the members of its bar to purge themselves from a charge oí contempt incurred by their publishing over their names in a newspaper libelous matter, directly tending to impair the respect due to its members.” The objectionable language used toward the court was as follows : “The judges of the supreme court singly or en masse moved from that becoming propriety so indispensable to secure the respect of the people, and throwing aside the ermine rushed into the mad contest of politics under the excitement of drums and flags * * * and will yield to every temptation to serve their fellow-partisans, and are unfit to hold the balances of justice.”

In the case of State v. Morrill, 16 Ark. 384, the court directly holds, that a statute taking away the right of a court summarily to punish for a constructive contempt is unconstitutional. The court in an able and elaborate opinion by English, C. J., held, that it had the constitutional power to punish as for contempt for the publication of a libel made during a term of the court in reference to a case then decided and imputing to the court officially bribery in making the decision; “such porver being inherent in courts of justice springing into existence upon their creation as a necessary incident to the exercise of the powers conferred upon them,” and that “the Legislature may regulate the exercise of but can not abridge the express or necessarily implied powers granted to this court by the Constitution;” that the statute (Digest, chapter 36 section 1) “so far as it sanctions the powers of the courts to punish as contempts the acts therein enumerated, is merely declaratory of what the law was before its passage;” that the prohibitory clause is entitled to respect as an opinion of the Legislature but is not binding on the courts; that “by the common-law the courts possessed the power to punish as for contempt libelous publications upon-their proceedings, pending or past, upon the ground that they tended to degrade the tribunals, destroy that public confidence and respect for their judgments and decrees so essentially necessary to the good order and well being of society, and most effectually obstructed the free course of justice;” that “when the supreme court was created by the Constitution and certain judicial powers conferred upon it, the power to punish contempts of its authority was impliedly given to it as a necessary incident to the exercise of its express powers.”

In Dandridge’s Case 2 Va. Cases 408, it appears that the circuit judge being about to enter the court-house for the purpose of opening court, Dandridge, who was standing at the door, grossly insulted him, charging him with corruption and cowardice in delivering an opinion in a case at a previous term of the court, in which Dandridge had some interest. Proceedings for contempt having been instituted against him, the case was adjourned to the general court of Virginia on account of its importance, novelty and difficulty. By the general court the whole doctrine of constructive contempt is discussed thoroughly and ably, and the conclusion was reached that the conduct of the defendant was punishable as a _contem.pt.

It is conceded here in the argument that it is not in the power of the Legislature to take from courts the inherent power possessed by them to punish contempts' in the face of the courts; hut it is insisted that the Legislature may at will deprive the courts of the power to punish summarily constructive contempts such as that described in the rule. At common-law, as clearly appears in Dandridge’s Case, the power to punish for such constructive contempts was as much an inherent because a necessary power, as to punish for direct contempts; and as we have seen, this position is abundantly sustained by authority. Does not the reason for the existence of the power as much obtain in the one case as the other? If an attorney at the bar should charge the court in its presence with being'bribed to decide the cause under argument against his client, no one would doubt for a moment the right of the court to summarily punish him for such contempt. "Why? Xot because he had interrupted the court in its despatch of business; for there was no interruption in the hearing of the cause. • The court Avould have the right to punish the offender, because the language used was designed and calculated to destroy the confidence of the people in the court and to degrade the court in the opinion of the public and to corrupt the streams of justice. In such case the court would be wanting in respect for the people, whose servant it is, if it did not summarily punish the offender. There may not have been a half dozen persons in the court-room to hear the charge of corruption against the court, yet it would be not only the right but the duty of the court to punish such a contempt. Is it not absurd to say, that if the same attorney had published the same charge in a newspaper printed in the town where the court was sitting which was read by thousands, aye read in the court-room within view of the court it was designed to affect, ho would not be guilt}’ of a contempt of court, for which he should be summarily punished? If a suit for libel would be an ample vindication, as is stated by the judge, who delivered the opinion in Stuart v. The People, 3 Scam., in the one case, a slander suit would be in the other. Such a suggestion is disgusting to a man of honor. It will be a sorry day when the practice shall obtain among judges of the court of last resort, who hold the dearest interests of the,people in their hands, where in their judicial capacity they may bo grossly libeled to leave their high positions and go before a jury in a libel-suit, be subjected to the coarse criticism of defendant’s counsel, and if they succeed in their suit, have it cast in their teeth, that they were influenced by sordid motives. Who would have any respect for a judge who would pursue such a course? Would he not under such circumstances deserve the contempt of every good citizen ? Besides what right would he have individually to recover damages for a wrong committed against him in his judicial capacity, for an injury done the people in his person? In such cases the individual must always be separated from the judge. The court has no right to punish as for contempt one who libels an individual, who happens to be the judge; but it is a contempt of the court, as such, and an insult to the people represented by the court, which alone the court can puuish as such. Scarcely less repulsive to-all sense of judicial dignity is the suggestion that the judge should play the role of prosecuting witness in the trial of an indictment for libel. If that day shall over come, when such shall be the only protection left to courts of justice against publications affecting their judicial integrity, none but the base and vicious can be expected to occupy judicial position.

It was well and truly* said by the high court of errors and appeals of Mississippi in Watson v. Williams, 36 Miss. 341: “In this country all courts derive their authority from the people, and hold it in trust for their security and benefit. In this State all judges are elected by the people, and hold their authority in a double sense directly from them; the power they exercise is but the authority of the people themselves, exercised through courts as their agents. It is the authority and law emanating from the people, which the judges sit to exercise and enforce. Contempts against these courts, in the administration of their laws, are insults offered to the authority of the people themselves, and not to the humble agents of the law whom they employ in the conduct of their government. The power to compel the lawless offender against decency and propriety, to respect the laws of his country and submit to their authority (a duty to which the good citizen yields hearty obedience without compulsion) must exist, or courts and laws operate at last as a restraint upon the upright who need no restraint, and a license to the offenders whom they are made to subdue.”

We are well aware that the trust reposed in us to protect the people’s court from degradation is a delicate as well as a sacred trust. The power claimed, it is said, is arbitrary and liable to abuse. That is no reason Avhy the power should not exist and be reposed somewhere. The few instances in which this power has been used during the last century, shows that it was wisely placed and may be safely left in the hands of the courts. It is well established by the authorities, that the power is inherent in courts of justice to summarily punish constructive as well as direct contempts. And in this country, where the courts are in the divisions of power by the Constitutions of the several States constituted a separate and distinct department of government clothed with jurisdiction and not expressly limited by the Constitution in their powers to punish for contempt, the inherent power that is thus necessarily granted them cannot bo taken away by the legislative department of the government. The supreme court of Arkansas in 16 Ark. page 390, said: “The Legislature may regulate the exercise of, but cannot abridge the express or necessarily implied powers granted to this court by the Constitution. If it could, it might encroach upon both the judicial and executive departments, and draw to itself all the powers of government, and thereby destroy that admirable system of checks and balances, to be found in the organic frame-work of both Federal and State institutions, and a favorite theory in the governments of the American people.”

It is not claimed, that the power to punish contempts need be exercised in this country to the same extent allowed by the common-law. Mr. Justice Scott, in Neel v. State, 4 Eng. 263, said: “It has never been contended in this country, that the common-law, although it is our birthright, and in force among us, without express recognition by our Constitution and laws, was over actually in force in all its length and breadth, but only to an extent that was not wholly inconsistent with these great principles,'upon which our free-institutions, purely American, have been reared and maintained. So these doctrines, which we are considering, (powers of courts to punish contempts,) in being recognized by the courts must be regarded as having received a corresponding abatement of those of its lineaments which are at open war with the nature and character of our Constitution, and the actual state of things among us, under its legitimate operation, or it would be an exotic that could not germinate in our soil.” Therefore courts will tolerate the regulation of the power, so that the Legislature does not by such regulation substantially destroy the efficiency of the court.

The courts must have just enough power and will exercise it for their own protection, and they want and demand no more. 'Whether or no the Legislature in its regulation has left sufficient power for the purpose, the court, which is called to exercise it, must be the sole judge, unless its judgment may be reviewed, and in that case the court of last resort would be the exclusive judge. There is no disposition in the courts to seek opportunities to exercise this power; and it will not be exercised, unless there is a necessity for it. When a judge remembers that he has no right to'avenge in this manner individual wrongs, but only an injury to the court, the people’s court, it becomes a matter of stern and inflexible duty, from the performance of which under his official oath he dare not shrink. For he well knows, that as tbe ermine was spotless, when he put it on, the people expect him to leave it as untarnished for his successor.

"We have thus tar been considering whether the Legislature has the right to limit the power of courts created by Constitutions. It is very different as to its power over courts of its own creation.

In ex parte Robinson, 19 Wall. 505, it was held that Congress had the power to limit the right of the circuit and district courts of the United States to punish contempts because they were the creations of Congress. Mr. Justice Field in delivering the opinion of the court in perfect accord with the authorities we have cited said: “The power to punish for contempts is inherent in all courts; its existence is esseutial to the promotion of order, injudicial proceedings, and to the enforcement of the judgments, orders and writs of the courts, and consequently to the due administration of justice. The moment the courts of the United States were-called into existence, and invested with jurisdiction over any subject they become possessed of this power. But the power has been limited and defined by the act of Congress of March 2, 1881. The act in terms applies to all courts; whether it can be held to limit the authority of the supreme court, which derives its existence and powers from the Constitution, may perhaps be a matter of doubt. But that it applies to the circuit and district courts, there can be no question. These courts were created by act of Congress. Their powers and duties depend upon the act calling them into existence, or subsequent acts extending or limiting their jurisdiction. The act of 1831 is therefore to them the law specifying the cases in wdiich summary punishments for contempts maj' be inflicted.”

We have already seen that the power of courts created by the Constitution to punish contempts is an inherent power without which they might wholly fail in the object of their creation. When a courtis created and exists by some legislative act, it follows that the power which creates, must confer, and can take away its jurisdiction at its pleasure. As a consequence of this, the same power, can define contempts against, and prescribe the measure and mode of punishment, or even withhold altogether from such court, the power to punish the same. These are not questions of power, but of expediency only, and of this the Legislature must judge. But if the court be created, and its jurisdiction conferred by the Constitution, then the power to punish for contempts inherent in such court, also exists by virtue of the Constitution, and in the absence of any constitutional provision authorizing the Legislature to do so, it cannot deprive such court of that power.

It is contended, however, that the general court of Virginia in the case of the Commonwealth v. Deskins, &c., reported in 4 Leigh, decided, that the act of the General Assembly, passed on April 16th, 1851, defining contempts, and limiting the power of the courts to punish the same, deprived the courts of the power to punish summarily any contempts, except those therein enumerated. It is not necessary to contend that section 25 of that act, was not warranted by the Constitution of Virginiá, adopted in 1776, or by the amended Constitution adopted on the-day of April, 1830 ; for by both of said Constitutions, the jurisdiction of all courts created or existing, was conferred by legislative act, and not by constitutional provision. The case of Commonwealth v. Dandridge, already referred to, was decided by the general court in 1824, and that of Commonwealth v. Deskins, &c., in 1834. The case of Dandridge was decided under the Constitution of 1776.

Before the Revolution the “general court” was the supreme criminal tribunal. Before the reign of James II. .the colonial assembly exercised appellate jurisdiction in civil cases. In 1683 the King directed that appeals should be allowed from the inferior courts to the general court. Up to the time of the Revolution, this court consisted of the Governor and Council for the time being, any five constituting a court. It had jurisdiction to hear and determine all causes, matters and things whatsoever, relating to or concerning any person or persons, ecclesiastical or civil, or to any person or thing whatsoever the same should be, whether brought before them by original process, appeal from any inferior court, or by any other way or means whatever, provided, the matter in controversy was of the value of ten pounds sterling or two thousand pounds of tobacco. It also had exclusive criminal jurisdiction as a. court of oyer and terminer of all cases of free persons, wherein the judgment on conviction was loss of life or member; and of all offences of blasphemy and irreligión, where the punishment was incapacity of any sort or imprisonment; and of proceedings in cases of incestuous marriages. See Acts 1748, chapter 6, sections 2, 5 and 24; Acts 1758, chapter 1, sections 2, 5 and 25; Acts 1748, chapter 4, section 5; chapter 9, section 1; Acts 1705, chapter 6, section 1.

The Constitution of 1776 neither created any court, nor prescribed or limited its jurisdiction. It recognized the potential existence of the supreme court of appeals, and general court, judges in chancery, judges in admiralty by providing for the election of judges thereof, and fixing the tenure of their offices during good behavior; and by article 15, it in like manner recognized the existence of justices of the peace by providing for their appointment. It contained no provision prescribing or limiting the jurisdiction of any of said courts, save only that by section 16 it provided that certain impeachments should be tried in the general courts, and that impeachment of judges of the general court should be tried in the court of appeals. In all other respects the jurisdiction of each of said courts, remained to be prescribed and limited, according to law. To none of these courts was any other constitutional jurisdiction granted than for the trial of impeachments. The court of appeals was first established by chapter 22 of the Acts of the General Assembly, passed in May, 1779, and was composed of the judges of the high court of chancery, of the general court, and of the court of admiralty, and their jurisdiction was therein prescribed. The high court of chancery was established hy chapter 15 of the Acts of the General Assembly, passed in October, 1777, and its jurisdiction was defined as a court ot general chancery jurisdiction. By chapter 17 of said Acts, passed in October, 1777, the General Assembly established a court of common-law with general jurisdiction in all matters, civil and criminal, called the general court, and prescribed its jurisdiction. By chapter 67 of the Acts of the General Assembly, passed in January, 1788, district courts were established as courts of general common-law jurisdiction in all matters, civil and criminal, and their jurisdiction prescribed and limited. These district courts -were in their turn superseded by the circuit court in 1809, established by acts ot the General Assembly, prescribing their jurisdiction. By chapter 69 of Revised Code of 1819 the several acts concerning the establishment, jurisdiction and powers of the superior courts ot law were reduced into one act, establishing fifteen circuit courts, which again prescribed and limited their jurisdiction; and these circuit courts with the jurisdiction so conferred, existed when the case of the Commonwealth v. Dandridge arose and was determined. The general court, at that time was composed of all the iudges of the circuit courts, and its jurisdiction was likewise prescribed and limited by chapter 67 of the Revised Code of 1819. As the jurisdiction possessed by the circuit courts at the time the case of Dandridge was decided, was purely statutory, derived from the Acts of the General Assembly, and not from a constitutional grant of authority, Judge Parker in delivering his opinion in that case could with propriety say, “it may bo thought by some who admit the necessity of immediately punishing certain kinds of contempt that it would he hotter to transfer the power to some other tribunal than the court especially where it consisted in personal disrespect to the judge. This is a subject for legislative, not for judicial investigation. At present, the power belongs to the court, which has no authority even to empannel a jury, forthwith to try the facts, if it thought such a step desirable. And it will probably be found that it cannot be lodged in safer hands.” By the amended Constitution of Virginia adopted in April, 1830, section 1 of article 5, it is declared that the “judicial power shall be vested in a supreme court of appeals, in such superior courts as the Legislature may establish and the judges thereof, in the county courts, and in justices of the peace. The Legislature may also vest such jurisdiction as may be necessary in corporation courts, and in the magistrates who may belong to the corporate body. The jurisdiction of these tribunals and of the judges thereof shall be regulated by law.” The General Assembly at its first session after the adoption of this amended Constitution, passed an act on April 16, 1831, establishing in each county of the commonwealth a “circuit superior court of law and chancery,” prescribed its jurisdiction and defined and limited its powers. As we have already seen, this was clearly within the power of the General Assembly under the provisions of said amended Constitution. By section 25 of that act, which is in substance the same as is contained in sections 24, 25, 26 and 27 of chapter 194 of the Virginia Code of 1849, which has been re-enacted in sections 27, 28, 29 and 30 of chapter 147, Code W. Va., the General Assembly for the first time undertook to define contempts and to limit the power of the courts to summarily punish the same. It must be borne in mind that when this provision was enacted by the General Assembly of Virginia, it was fully warranted by the amended Constitution of 1830, in limiting the powers of all the courts not created by the Constitution itself, for as we have already seen, it expressly provided that the jurisdiction of the judges and of the courts created by the Legislature under and by virtue of section 1 of article 5.thereof, shall be regulated by law. Under the ample power thus conferred upon the General Assembly it possessed the constitutional power to deprive all superior courts created by it, and the judges thereof of all power to punish summarily any contempt whatever. "When therefore the case of the Commonwealth v. Deskins, was decided by the general court in 1834, it was controlled by said section 25 of chapter 11 of of the Acts of 1831, which defined contempts and limited the power of the court to punish the same summarily. When the Code of 1849 went into effect on the 1st day of July, 1850, the amended Constitution of 1830 was in full force, and so continued until January, 1852, when it was superseded by the amended Constitution, which was adopted on the 1st day of August, 1851. By section 1 of article 5 of the Constitution of 1851, it was provided “there shall be a supreme court of appeals', district courts and circuit courts. The jurisdiction of these tribunals, and of the judges thereof except so far as the same is conferred by this Constitution shall be regulated by law,” but-it wholly fails to prescribe the jurisdiction of any court except that of the supreme court of appeals, thus leaviug the jurisdiction of all other tribunals to be regulated by law. The supreme court of appeals was created and existed by section 1 of article 5 of the amended Constitution of 1851, and not by statute, nevertheless, sections 24, 25, 26 and 27 of the Code of 1849, were continued in the edition thereof published in 1860, and thence found its way into chapter 147 of the Code of West Virginia, although the saíne, so far it could be applicable to the Supremo Court of Appeals, was inconsistent with the amended Constitution of 1851.

The argument therefore of the respondent’s counsel in favor of the constitutionality of sections 27, 28, 29 and 30 of chapter 147 of the Code of West Virginia derived from the decision of the general court of Virginia in the ease of the Commonwealth v. Deskins, &c., falls to the ground, for it does not follow that if that statute was constitutional in Virginia, where her courts were created and existed, and the jurisdiction thereof conferred by statute, that the same is constitutional in this State where the courts are created and their jurisdiction is conferred by constitutional provision and not by statute.

That statute which has been handed down and is now found in our Code, under the changed condition of the State government might be considered constitutional now as to the circuit court, for under the principle before announced, it might be deemed a mere regulation of the power of courts to punish as for contempt, as it leaves power to the circuit courts by indictments under their own supervision to punish as for constructive contempts of the character which we are considering. Whether such power under the Code is sufficient for the protection of said courts, we will not now determine, leaving that question to be decided when occasion may require. hTeitlier is it necessary to decide whether the Legislature can limit the power of this Court to punish for constructive contempts, as it is evident to us it has not attempted todo so. Wo would not upon settled principles decide an act of the Legislature unconstitutional if by any construction it could be made consistent with the Constitution. The whole scope of the statute shows clearly that it was intended to apply to inferior courts and not to the Supreme Court of Appeals. Section 28 provides for the punishment of direct contempts without a jury by a fine not exceeding fifty dollars, and imprisonment not more than ten days. “But” (it further provides) “in any such case the court may impanel a jury (without an indictment or any formal pleading) to ascertain tlie fine or imprisonment proper to be inflicted, and may give judgment according to the verdict.” This Court cannot impanel a jury. It has no machinery to carry out the requirements of the statute, and therefore it is clear to us that the Legislature did not intend the statute to apply to this Court. This Court then has .the unrestricted power, uncontrolled and unregulated by statute to punish for. direct or constructive contempt by fine or imprisonment or both.

Is the publication complained of here a contempt of this Court? It seems to us that the books do not furnish a clearer case of contempt. It is a contempt, because it charges three of the judges of this Court, acting in their judicial capacity, with an oflence, which, if true, is just ground of impeachment; with an offence calculated to degrade the Court and destroy all confidence of the people therein. If to charge three of the judges of this Court with having attended a political caucus and advised a certain action by the same, coupled with the promise, that as a Court they would sustain the action of the caucus, and then in pursuance of that pledge made more than a year ago, the same judges as a Court were about to decide the case then before them as the caucus desired, is not a contempt of the Court, then it seems to us, that nothing would constitute a contempt. If to charge a court, or a majority of its members with having prostituted their high and sacred trust to base political purposes is not a contempt, then we may truly say that such a thing does not exist. The article ou its face shows, moreover, that it was intended to influence the decision of the Court in the cause, to which reference is therein made, and which was then pending, or to prevent the Court from deciding it at the present term. That it had no such effect, is not material, so far as the contempt is concerned. It first says: “ The campaign is shaping itself. It leaks out that the Supreme Court of Appeals is to be brought to the rescue in a decision affirming the unconstitutionality of the exemption act. and declaring the supplemental assessment order to be lawful and right. This is in effect what was promised by the three Supreme Court judges to the Democratic caucus before the order was issued.” Again: “ Three out of four judges of the Supreme Court told the Democratic caucus more than a year ago to go ahead and rely on the backing of the Court.” This- is a charge of infamy against the Court. But it is further charged, that the decision would be hastened by the Court, against the interests of one of the candidates for nomination for Governor. Thus again charging the Court with using its power for political purposes./ Then comes the clause, the manifest intent of which was to compel the Court to decide against its supposed convictions or not now decide at all, and charging it with being capable of deciding a cause not from its convictions, but as convenience or political desires might dictate. It says: “Of course it was not intended that the purpose of the Court should be made public, and publicity may induce the Court to change its mind just to show that somebody has been taking liberties with the text and misrepresenting the Court. "We shall see what we shall see.”

In every aspect of the-case the publication is clearly a contempt of this Court. Can such a publication be palliated or excused ? Far be it from us to take away the liberty of the press, or in the slightest degree to interfere with its lights. The good of society and of government demands, that the largest liberty should be accorded the press, which is a power and an engine of great good; but the press itself will not for a moment tolerate such licentiousness as is exhibited in said editorial. The press is interested in the purity of the courts, and if it had no respect for the judges on the bench, it should respect the Court; for when the judges now on the bench shall be remembered only in the decisions they.have rendered, the Court will still remain, it never dies; it is the people’s Court and the press as the champion of the people’s rights, is interested in preserving the respect due to the Court.

Have the defendants purged themselves of the contempt? The defendant, Frew, disclaims all knowledge of the pendency of the suit or that the article was published until he read it in the paper. We think he cannot be entirely acquitted, but that he should suffer a light punishment. He should not allow the paper, of which he is the publisher, to indulge in such libelous editorials. The defendant, Hart, stands on different ground. His answer is an aggravation of his contempt. He does not express the slightest, regret for his act, nor does he exhibit a particle of regard for good order nor indicate in any degree appreciation of those great principles that lie at the foundation oí good government. By his answer he seems to regard the highest court oí the State as a proper subject of libel, provided he can by such libelous publication gain a political advantage. He seems to forget that it is the Court oí the whole people, and can only have their respect as long as it holds their confidence. So far from expressing any regret, he attempts to justify himself by another publication in another paper, which will be found in the statement of the case, and •which publication he says led him to believe the charge was true, and he felt it was his duty to publish it. And he says if this article is libelous so is that; and farther, that one of the judges oí this Court was an intimate friend of the editor of the other paper, living-in the same town, and the Court had not denied the truth oí that statement. The Court had not denied it? The Court does not deny any charge made in the papers in reference to it. It can deny a libelous charge in only one 'way, and that it has done in this instance, in the only way in which it ever denies such a charge. Besides it is very apparent that this article published on June 18, is very different from that which purports to have been taken from the Greenbrier Independent, as appears by the paper filed with the answer. It is not even charged that the Greenbrier Independent said : “Three of the judges attended a Democratic caucus, advised its action, and promised as a Court to back it,” and that “the Court was now about to keep its promise.” The Court, whose duty it is to guard the public interests in such matters, might have been justified in forbearing to issue the rule in the one case when it would not be in the other. The answer is a very reckless one. And the defendant after all that swears, that “in its publication there was no intention to commit or express a contempt of the Court, and no such feeling was entertained by the then publishers and editors of the Intelligencer

The fact that the respondent in his answer disclaims any intention to commit or express a contempt for the Court, will not be accepted as a reason for discharging the rule. The meaning and intent of the respondent must be determined by a fair interpretation of the language used by him in the objectionable article. People v. Wilson, 64 Ill. 195; Hughes v. People, 5 Col. 436; Woolley’s Case, 11 Bush 95; Henry v. Ellis, 49 Ia. 205.

As a further excuse he says the Court announced at the time the alternative writ issued in the mandamus case, that the respondent must be ready to proceed with the case on the return day, and directed the clerk to so inform the respondent; and that he did not at the time the article was published know that the law required the assessor’s books to be returned before the first of July. He must have known when the.article was published, that the Court had given the respondent six days for preparation after the return day ot the writ. Tie says the Court did not announce its reason for the necessity of having the case decided with despatch. This all shows how ready the defendant was to do the Court injustice. If he had proper respect for courts, he would presume they had good reasons for their judicial action, and that it might not be necessary at all times to give those reasons.

There is nothing in said Hart’s answer to palliate his oftence, but it is aggravated instead. This is a case in which the court would be justified in both fining and imprisoning 0. B. Hart. The contempt is of the most aggravated character. The books fail to show one that is any more so. But a majority of the Court is of opinion, that the ends of public justice will be attained in this ease by the imposition of a fine. Bor more than a century so far as I know, but one case of constructive contempt is found in the Virginia reports, and none in this State until now; and it is sincerely hoped that another centennial will arrive before th e necessity for punishiug for such a contempt will again arise. As this is the first case of this character in this State, we dislike to be severe. We would gladly discharge the rule, if we could. It never would have issued, had we dared consult our feelings in the matter. It is the unanimous judgment of the Court, that an attachment issue against John Brew and C. B. Hart, returnable forthwith.