be detected and hooted at by the abused people; the nature of the communications published, and those which would be rejected, furnishing conclusive internal evidence.

6. No editor of a paper would then ever feel compelled by interested considerations, to wear the livery of any party or faction whatever, and would be under no temptation to act from any other motives than a regard for truth, justice and the welfare of his country.

For further remarks on the Liberty of the Press, and some adjudged cases as to the legal liability of Editors, see Chap. IV. of this part.

CHAPTER III.

Of the Power of Courts to punish for Contempts.

A CONTEMPT of court is some gross act of indignity or affront, offered to the court while in session, and which tends to hinder or disturb the administration of justice, or to bring it into contempt with the people. It may consist either in disobedience to some lawful command of the court, by wholly refusing to comply with it; or, by doing the act commanded to be done, in an improper manner; or, by acting in a manner contrary to some lawful prohibition of the court.

It may also consist in opposing or disturbing the execution of lawful process issued by the court. It is also a contempt of court to abuse its process, by wilfully doing wrong in the execution of it, as well as to do any act under the pretence of having authority from the court, but, in fact having none. It is a contempt of court also, in any person duly summoned as a witness and having had his fees tendered, to refuse to appear. So, it is a contempt of court, to practise upon a witness, who has been summoned to appear, whether by threats, bribery, &c. It has been held also, that after a dispute has been left to arbitrators under a rule of court, it will be a contempt of court, if one of the parties, without the consent of the other, should take away the papers from the arbitrators in order to stop proceedings. So, if a sheriff should grant a replevin of property, having express notice that it is irrepleviable. See 1 Wils. 75.

A gross attempt to impose upon the court, is also considered as a contempt; for example, where a man aged sixty-three years, pleads infancy. See 2 Buls. 67.

Most of the instances of contempts specified above, to which many others might be added, are contempts of court merely by construction of law. And it frequently happens that the act complained of as a contempt, is susceptible of such ex

planations, as to show that no indignity was intended to the court in reality. Where the act is not committed directly in the presence of the court, therefore, it is usual for the court to direct interrogatories to be administered to the party charged; so that he may explain away the contempt if he can, and clear himself; but if the act cannot be thus entirely explained away, he may avail himself of the opportunity, to make such concessions and apologies, as the nature of the case may admit or the court may require.

It must not be understood, however, that the court have any power or authority to compel any person, upon whom an act of contempt has been proved, to answer any inquiries in relation to the subject. Reason and the constitution equally prohibit any compulsion to a person arrested, to force him to answer any questions which may tend to criminate himself in any case whatever. But, when the act constituting the contempt has been proved, the contempt itself is also so far proved, that, if the person charged with the contempt, either will not or cannot give a satisfactory explanation, and thus show that no indignity was in fact intended, he will be held guilty of the contempt. The administering of interrogatories to him therefore is an act of indulgence; because he is considered already as guilty of the contempt before the interrogatories are administered, and will be punished accordingly, unless he either clears himself of it, or makes a suitable apology.

、

Where the alleged contempt consists in some act done in the immediate presence of the court, the court if they see fit, may direct the offender to be imprisoned at once. Such acts are usually acts of gross indignity, or disorderly conduct, and, for the most part, seem to admit of no excuse or palliation but that of a total ignorance of the rules of decency and good manners. Such contempts may consist in a direct personal affront offered to the judges either by word or deed; and of course hardly admit of apology or explanation. The court may therefore proceed at once to punish him. Bl. R. 640. Bur. 2129. Another contempt, thongh of a much less odious kind, is that of shouting, waving the hat, &c. at the termination of a trial, the result of which is particularly agreeable or disagreeable to the bystanders. This however is a contempt of court,

for which a person may be committed or fined, unless the court sees fit to accept his apology. See 6 T. R. 630.

Somewhat similar to this class of contempts, is the speaking of contemptuous or reproachful words, of the court to one of its officers while serving process.

At common law, the mere establishment of a court, without any express grant of a power to punish contempts, gives this power by necessary implication; so that there is no tribunal established, however inferior in its nature, but that may justly exercise this power, at least so far as may be necessary to preserve itself from annoyance or disturbance, while in the discharge of its official duties. Accordingly it seems, that every magistrate, while holding a court, has a right to order into custody any person who should disturb its proceedings, or should insult him personally, while in the discharge of his judicial duties, or should commit any such violation of decorum, as would tend to bring him or his court into contenipt among the suitors. But, it would seem, that the inferior tribunals of justice, have no authority to commit for contempts, not offered in their presence, but must proceed by indictment. See 2 Bays R. 1.

In the case last cited, it was held, that a justice of the peace, while holding a court, may commit by summary conviction any person, who may offer him any insult by word or deed in his presence. It would seem, by the same case, that he is not answerable in an action, for what he does by virtue of his judicial power. But, if he should act corruptly or oppressively in his official capacity, he may be indicted for it, and punished by fine and imprisonment.

It seems a writ of error will not lie on a conviction for a fine on a contempt. See 3 Mod. 28. 1 Sal. 144, 263. Ld. Raym. 454, 1115.

The remedy for a person improperly detained in custody, in any such case, would be to apply for a habeas corpus. But the court would probably hesitate to release the prisoner, unless a clear case was made out in his favor, where he had been regularly committed for a contempt. In the case Yates v. Lansing, before cited, Platt, senator, remarks, that, 'The habeas corpus act is justly prized as one of the bulwarks of freedom, and can be endangered only by its misapplication and

abuse. Let us beware, that, in our zeal for securing our personal liberty, we do not destroy the virtuous independence and rightful authority of our courts of justice, and thereby subvert the foundation of social order. So long as our courts are pure, enlightened and independent, we shall enjoy the greatest of earthly blessings, a government of laws; but, whenever these tribunals shall cease to deserve that character, the standard of justice and civil liberty, must give place to the sceptre of a ty

rant.'

If a prisoner, after an examination on a habeas corpus, should be remanded into custody, it seems to have been the opinion of some, that a writ of error might be brought, and if the judgment should be reversed, he might be discharged by the court having authority to correct the erroneous judgment. But the better opinion seems to be, that no writ of error will lie upon any proceedings on a habeas corpus. For, if a prisoner applies for a habeas corpus, and it is refused; or, if it is granted, and, on examination the prisoner is denied bail or enlargement, in which case he is remanded of course, there is no such final judgment, as will maintain a writ of error; for, any other court or judge having jurisdiction, may, at discretion, grant another habeas corpus and bail or discharge him upon it; or, if he applies for a habeas corpus in vacation, to one of the judges, and it is refused, he may renew his application in term time, to the whole court. On the other hand, if a prisoner is discharged on a habeas corpus, no writ of error will lie, though if such discharge is erroneous in fact, any court of competent jurisdiction may recommit him. See 6 Johns. 407, 427; cites State Trials, p. 90.

With regard to contempts of court, offered to the superior tribunals of justice, but not in their immediate presence, the law does not seem quite settled. It has been held, that it is a contempt of court either to scandalize the court itself, or any of the parties engaged in a cause, so as to prejudice others against them, before the decision of the case. See 2 Atk. 471. 2 Ves. 321, 520. And in England, where disrespectful words are spoken of the court, there will not be a rule upon the party to show cause why an attachment should not be granted against him, but an attachment will be awarded in the first instance. See Sayer's R. 114, 47.