THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW
 
 WITHDRAWN 
 
 t" A. 00 L. :.
 
 THE LAW 
 
 OF 
 
 Constructive contEiVift 
 
 THE SHEPHERD CASE REVIEWED. 
 
 By JOHN L. THOMAS, 
 
 Ex-Judge Missouri Supreme Court. 
 
 ST. LOUIS: 
 
 THE F. H. THOMAS LAW BOOK CO. 
 
 1904.
 
 T 
 
 Entered according to Act of Congress, in the year 190-4, by 
 
 JOHN L. THOMAS, 
 In the Office of the Librarian of Congress, at Washington. 
 
 Press 0/ Nixon- Jones Printing Co., 
 216 Pine Street, St. Louis.
 
 Boni J ltd Ids est (inipliare jurisdictioiK^in. 
 
 ''''Men are not corrupted hy the exercise 
 of (I poirer or debased hy the liahit of obe- 
 dience: hut hy the exercise of power ^ which 
 they believe to be illegal and by obedience to a 
 rule, which they consider to be usurped and 
 oppressive.^' — De Tocqueville. 
 
 740038
 
 The Law of Constructive Contempt. 
 
 THE FREEDOM OF THE PRESS — 
 THE SHEPHERD CONTEMPT CASE 
 REVIEWED. 
 
 TKELIMrXARY STATEMENT. 
 
 Ill a proceeding, by attachment for con- 
 tempt, against J. M. Shej^herd, editor of 
 the Warrensburg Standard Herald, the Su- 
 preme Court of Missouri, in July, 1903, as- 
 sumed jurisdiction to try and fine Mr. Shep- 
 herd for puljlishing, in his ])aper, an editorial, 
 which the court held to be a libel upon itself. 
 
 This was the first time the Supreme Court, 
 or any other court in Missouri, ever assumed 
 to exercise such jurisdiction in such case. 
 The people had supposed for eighty years 
 that when a person chose to criticise any 
 ofHcer or judge of the State, by newspa])er 
 publication, he would enjoy the right to be 
 tried by a jury of his peers, for any alleged 
 abuse of his privilege of saying, writing, or 
 publishing " whatever he will on an}' sub- 
 ject ; " and this action of the couit created 
 almost universal surprise among the people, 
 and it has brought to the fore, again, a ques- 
 tion that a century or more ago engaged the 
 energies and abilities of the wisest statesmen 
 and i)ublicists of England and the United 
 States. 
 
 In October, 1903. the Supreme Court in 
 banc, through ]\tr. Justice Marshall, filed an 
 (5)
 
 () THK LAW or CONSTKUCTIVK CONTEMPT. 
 
 opinion, in whicii all concurred, giving, at 
 great l(Migth, its I'easons for its assumption of 
 jurisdiction in the case, and it is this oj)inion 
 I propose to review in this paper. I do this 
 because I feel sui'e some of the principles laid 
 down l)y the court are fundamentally wrong, 
 and contravene essential tenets of liberty — 
 that is, the freedom of the press, and the 
 right of ti'ial by jury for an alleged abuse of 
 such freedom. These principles, laid down 
 b}^ the court, are not, in my humble judgment, 
 sound, and ought not to be acquiesced in by 
 the people, and thus become part of the per- 
 manent law of the State. 
 
 And at the threshold of this discussion, I 
 do not desire to be understood as impugning 
 the motives or sincerity of the judges who 
 wrote and concurred in the opinion in this 
 case. I was judge of the Circuit Court ten 
 years, and of the Supreme Court two years, 
 and I believe I have as high an appreciation of 
 the majesty of the law, and of the dignity 
 and independence which should appertain to a 
 judge in the performance of his duties as any 
 man living, and I would not say a word to 
 lessen the esteem of the public for the courts ; 
 and in this review I desire it to be distinctly 
 understood that I combat, and intend to com- 
 biit only the reasoning and conclusion of the 
 court, and not its motives. 
 
 I wish to add at this point that I want it 
 to be distinctly kept in mind in reading this 
 review that I can conceive of no greater cal- 
 amity that could befall a State than to have
 
 THE LAW OF CONSTKUCTIVK CONTK.MrT. i 
 
 ti'ial by newspaper prevail and for the coni'ts 
 to be swerved from the right course by out- 
 side influences. Courts ought to be left ab- 
 solutely fr(;e from the passion of the hour in 
 their adjudications upon the rights of man. 
 It ought to be so that when a judge says " it 
 is the opinion of the court," the uttermost 
 parts of the republic ought to " feel and 
 obey the mandate," but this can never be the 
 case when the court exercises a doubtful ju- 
 risdiction on a subject of such absorbing in- 
 terest as the freedom of the press and the 
 right of trial by jury. My sole object in 
 wi'iting this review is to vindicate the rightful 
 authority of the law-making power without, 
 however, depriving the judiciary of that dig- 
 nity and independence which ought always to 
 attend the administration of the law in civilized 
 society. 
 
 STATEMENT OF THE CASE AXD OF THE QUES- 
 TION TO BE DISCUSSED. 
 
 One Henry R. Oglesby, a brakeman in the 
 employ of the Missouri Pacific Railway Co., 
 was injured by the derailment of a train on 
 the road of that company in 1892, for which 
 he brought suit, and with varying results the 
 case was in the Circuit and Supreme courts 
 till 1903, when the latter court, by a majoi'ity 
 vote, held that the plaintiff could not recover, 
 and refused to remand the case for a new 
 trial. It was for criticising the Supi'eme 
 Court in connection with this case that Mr. 
 Shepherd was fined five hundred dollars. 
 After the fine was imposed the people of
 
 8 THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 Warrensbiirg paid it. A mass meeting was 
 held and a telegram sent to him to " hold a 
 stiff upper lip."' Another telegram was soon 
 after sent, telling him to " draw on Citizens 
 Bank for any amount needed," signed " Cit- 
 izens Committee." He drew for enough to 
 pay the fine and costs and went home in tri- 
 umph, and incidentally it may be noted here 
 that the objectionable article was also pub- 
 lished in the Sedalia Capital without com- 
 ment, and its editor, Mr. J. J. Cundiff, was 
 also attached for contempt, and fined one 
 dollar. 
 
 It is not the intention of the writer to call 
 in question many of the positions taken by 
 the court in the Shepherd case, for many of 
 them are unquestionably sound. But the 
 object of this review is to show that the court 
 was in error in holding the contempt statute 
 unconstitutional and void, and in assuming 
 jurisdiction to try and punish the respondent 
 by the process of attachment for contempt, 
 and to these two points this discussion will 
 be confined. 
 
 The opinion of the court in the Shepherd 
 case is printed in full in Appendix L. 
 
 THE author's view of the question in 
 
 1884. 
 In 188tl: I read before th(^ Conference of 
 the j^isl Prills judges of this State, of whom 
 I was then one, a pai)er on the main question 
 involved in the Shepherd case, a' part of 
 which I desire to quote here, as that paper 
 was prepared from the view point of a judge.
 
 THK LAW or CONSTRUCTIVE CONrEMPT. 9 
 
 and tliis review is from tlie view i)oint of a 
 citizen in i)rivate life. In tlie i)ai)ei- referred 
 to, I said : — 
 
 " Tlie motion that was made and carried at 
 our conference at Sweet Springs on the 2fjth 
 day of July last, that I |)repare and read to 
 yon at this time a papei' upon the law a})pli- 
 cable to contemi)t of court in this State, was 
 prompted by an informal discussion that took 
 place amon<^- us at that time in regaid to the 
 dangers to our institutions likely to grow out 
 of ' trial of causes by newspaper,' and dur- 
 ing the discussion, the inrpiiry was made, 
 ' What is the limit of the authority of courts 
 of record to punish, by the process of attach- 
 ment for contempt, parties who publish or 
 write articles which tend to intiuence the de- 
 cision of a pending cause? ' and what I have 
 to say now will be mainly directed to that 
 phase of the subject of contempt of court. 
 This is an exceedingly interesting and impor- 
 tant question, not only in its historical aspect, 
 but also in its bearing upon the development 
 of the science of law, and the growth of free 
 institutions. Every thoughtful man natui'ally 
 inquires. How can the freedom of the press 
 in its full vigor, and the independence of the 
 judieiar}-, be i)reserved and maintained at the 
 same time? 
 
 Theoretically, this (piestion is easily an- 
 swered. If we reason a priori no one would 
 hesitate to say that the courts ought to be 
 clothed with the power to suppress, sum- 
 marily, any attempt by any one to impropeily
 
 10 TlIK LAW OF CONSTKUCTIVK CONTEMPT. 
 
 iiirtiiLMiee the (k'tcriiiination of a peiuliiig cauwc 
 by extraneous matter, and to turii aside the 
 even course of justice by tiie excitation of 
 I)ulj]ic indiojnation and clamoi' ; but in reach- 
 ing- a practical solution of the problem we 
 encounter serious and almost insurmountable 
 difliculties. I listened last summer at Sara- 
 toga to a most interesting paper read by Mr. 
 Sheet of Texas to the American Bar Asso- 
 ciation, on ' How far Public Policy ought to 
 influence and control Judicial Decisions.' 
 The writer reached a conclusion that was, 
 in theory, far from satisfactory to the mem- 
 bers of the Bai- present, and which antago- 
 nized the adjudged cases in England and 
 America. He argued, with much cogency, 
 and apparent ingenuousness, that the con- 
 struction of the Federal and State constitu- 
 tions, and the statutes made in pursuance 
 thereof, by the fludiciary w^as not authoritatiye 
 and binding upon the executive and legisla- 
 tive dei)artments of government. There wa 
 no question but that tlieoretically he was 
 •wrong, but practicall}^ right. This phase 
 of the question is exemplified fully in the 
 ultimate outcome of the Dred Scott decision. 
 While Chief Justice Taney's decision re- 
 manded Dred Scott to slavery, the principle 
 of that decision was ignored by the political 
 departments of the government, and w^as 
 finally overborne by them. In all commun- 
 ities where the masses participate in the gov- 
 ernment, public opinion will ultimately be 
 voiced in statutes, or crystallized into ' the law
 
 TlIK LAW OF CONSTRUCTIVK CONTEMI'T. 1 1 
 
 of the land,' in defiance of tlit- sages of the 
 law, and the judicial detei'inination of the 
 courts. The Legal Tender decisions are sad 
 reminders of the silent power and inHuence 
 of the executive in our courts. And public 
 opinion is pressing the princii)le of the Dart- 
 mouth College cases to the wall. 
 
 All the instances I have named ai'e of 
 Federal origin, where the judicial department 
 is as far fi'om the interference of the j^oliti- 
 cal departments as it is possible to make it. 
 If we find that the political power finally 
 controls the determination of legal questions 
 in the judicial administration of the general 
 government, a fortiori, will we find this 
 inliuence more potent in the administration 
 of affairs in the States, where the people 
 elect their judges, as well as their governors 
 and legislatoi"S. 
 
 Now, if we view the question of contemi)t 
 in the light of history, we will find that this 
 same ])ublic opinion has gained the mastery 
 over the courts, and has voiced itself in 
 statutes limiting the power to punish by the 
 summary process of attachment. The free- 
 dom of the presij has cost too much in blood 
 and money to be lightly esteemed. It is 
 deservedly dear to the lovers of libei'ty evei'y- 
 where. The shouts of the i)eople of Lon- 
 don — of London, ever loyal to her sov- 
 ereign — when they carried Lord Erskine 
 through the streets after his famous speeches 
 in the defense of Ilorne Tooke, Thelwall and 
 others for their criticisms of the government.
 
 12 THE LAW OF CONSTKUCTIVi: CONTEMPT. 
 
 arc but the t'xpi-cssions of the sympathies and 
 opinions of the masses of our own times and 
 of all times. Those shouts thouf^h given out 
 by excited men were not the utterances of 
 the moment simply, but were deep manifes- 
 tations of the popular mind in its determina- 
 tion to strike off the last fetters that en- 
 tinalled the press. The people have fouo^ht 
 for freedom of speech, and of the press, and 
 they will maintain it at all hazards. In my 
 mind there is no greater boon vouchsafed our 
 times than the press. But the independence 
 of the Judiciary is of equal importance with 
 the freedom of the pi'ess. Lord Erskine, the 
 great defender of free thinking, free speak- 
 ing, and free printing, also found means, 
 while upon the bench, to vindicate and uphold 
 the integrity and independence of the courts. 
 Public opinion is like the pendulum of a 
 clock. It constantly swings from one ex- 
 treme to another. Once in England the 
 people got nothing from the press but what 
 came filtered through the sieve of the censors, 
 and was marked and licensed like our cigars 
 and wine. We cannot well avoid com])aring 
 this with the exploit of that gallant man who 
 thought to pound up the crows by shutting 
 his park gate. Xow we have not only an un- 
 licensed but a sensational press; then, Just 
 criticism was stifled. Now there is nothing 
 too sacred to exempt it from vile vituperation 
 and slander; then, the courts prohibited 
 the publication, without permission, even of 
 true accounts of causes pending before them.
 
 TlIK LAW OF CONSTRUCTIVE CONTEMl1\ I'.i 
 
 Now, we Imvc laid IjL't'orc us daily, not 
 only true, but often one-sided and distoi'ted 
 aecount.s of cases on trial, often accom- 
 panied by comments, unfavorable to one 
 side or the other. And yet deep down in 
 the lijearts of the masses, we find a popu- 
 lar leverence for the Bench, which pei'vades 
 all classes. The Judiciai'y is I'egarded as the 
 bahmce wheel of our system. To it the peo- 
 ple look foi' the [)i'eservation of their institu- 
 tions. This branch of the government is 
 eminently conservative in its tendencies; and 
 confidence in its integrity, and resi)ect for its 
 authority are essential to its eificiency. But 
 the powei" to punish for contempt, as it has 
 been exercised, has always, esi)ecially in 
 America, been viewed by the people with jeal- 
 ousy. This power is in its nature arbitrai*y, 
 and antagonizes those great principles of 
 liberty, ever held dear to the subject and citi- 
 zen, in clothing a party with authoi-ity to sit 
 as judge in his own case, in C()mi)elling a 
 party to give evidence against himself, and in 
 denying the right of trial by jury. But the 
 courts have met but little opposition from the 
 people to the enforcement of ordei* in their 
 own precincts, and obedience to their lawful 
 ordei's ; because such authoiity has always 
 been regarded as essential to the ti'ansaction 
 of business, and the administration of the law, 
 and so long as couits confined themselves to 
 this limit, they were heartily sanctioned, and 
 even where they assumed jurisdiction to pun- 
 ish for contempt not committed in theii- im-
 
 14 THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 mediate ])resence, where no great principle of 
 liijerty or right was infringed, they met no 
 opposition ; but where they have assumed to 
 determine the extent to wdiich criticism of 
 tlieir conduct could be carried by the public 
 press, the}' have encountered fierce, and 
 oftentimes successful resistance. 
 
 The people have, for centuries, fought for 
 the right of trial by jury and the freedom of 
 the press, and it is not to be wondered at that 
 the power to arrest without warrant, and try 
 without jury, and i)unish in a summary and 
 arbitrary manner, was received with alarm, 
 and that such power, in so far as it affected 
 the press has been resisted by the executive 
 and legislative branches of the government; 
 because there the populai' sense found expres- 
 sion more easily than in the courts. Black- 
 stone says, ' The process of attachment for 
 these and like contempts must necessarily be 
 as ancient as the laws themselves. For laws 
 without a competent authority to secure their 
 administration from disobedience and con- 
 tempt, would be vain and nugat'or^^ A power 
 therefore in the supreme courts of justice to 
 suppress such contempt by immediate attach- 
 ment of the offender results from the first 
 principles of judicial establishments, and 
 must be an inseparable attendant upon every 
 superior tribunal.' 
 
 This is the general common law doctrine, 
 but the elementary writers, as well as the 
 adjudged cases all concur in limiting the power 
 to puni'^h for contempt committed by a letter.
 
 TIIK LAW or CONSTRUCTIVE CONTEMPT. I /) 
 
 writing or pul)lieati(>n, to those eases only 
 wliei'i' tlieru was an attempt to inlluence the 
 ultimate decision of some ])i'Oceeding pending 
 in conrt. If the proceeding had terminated 
 1)}' the entry by the court of the final order, 
 then this power ceased, and a party offending 
 could be punished only by indictment oi- in- 
 formation." 
 
 After a review of the authorities, I pro- 
 ceede<] : " I think also that a review of the 
 above and other authorities will show that 
 statutes pi'escribing what shall be held to be 
 contem[)t, when there are no restrictive or 
 negative words used, will not oust the com- 
 mon law jurisdiction of the courts to punish 
 for other common law contempts. Such 
 statutes are held to be declaratory only of the 
 common law to that extent. And so ,the 
 courts have, with one or two rare exceptions, 
 held that the bill of rights to be found in the 
 Federal and American constitutions, securing 
 fi-eedom of speech, and of the ])ress to the 
 citizen, and securing to evei-y one the right 
 of trial by jury, or to ' due process of law,' 
 has not deprived the courts of theii* inherent 
 power to protect themselves, and vindicate 
 theii' own honor and dignity. The [^ower to 
 punish for contempt was a part of the com- 
 mon law, and was confirmed by Magna Charta, 
 and when one was fined or imprisoned by this 
 process, he was held to have been fined or 
 imprisoned according to the law of the land." 
 
 After quoting our Bill of Kights in regard 
 to free speech and a free press and the con-
 
 1() THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 tempt statute in full. I concluded as follows : 
 " After having said what I have on tlie gen- 
 eral subject of contempt, I do not deem it 
 necessary to enter into any lengthy disquisi- 
 tion in regard to the construction of these 
 various statutory and constitutional provi- 
 sions, and the limitations imposed on the 
 authority of the courts of Missouri to punish 
 parties guilty of contempt by the process of 
 attachment and I shall content myself with a 
 very brief summary of my views on the 
 subject. 
 
 My first position, and the one that will 
 probably interest you most, is that the legis- 
 lative department of the government has the 
 power to control and restrict the judicial in 
 the exercise of its authority to punish for con- 
 tempt, and that the latter cannot go beyond 
 the limitations prescribed by the former. 
 This position thus formulated is the result of 
 the inexorable logic of events, and is attribu- 
 table to the growth of the law under demo- 
 cratic institutions. 
 
 My second position is that the provisions of 
 our statutes, which I have quoted, oust the 
 common law jurisdiction of the courts in Mis- 
 souri over contempts, and have set limits to 
 their authority, be3^oud which they cannot go. 
 The judiciary is confined to the acts enumer- 
 ated in the statutes, and in the language of 
 Section 1055, can punish for ' no other.' 
 The statutes of 1879 on the subject are liter- 
 ally what they were in 1835. Prior to that 
 time, however, no negative or restrictive words
 
 THE LAW OF CONSTKUCTIVK CONTEMPT. 17 
 
 wurc t(j 1)0 found in our legislation, and of 
 course the courts were not restricted to the 
 acts named, but could exercise their common 
 law jurisdiction in the matter. AVithout the 
 negative and restrictive words ' no other,' oi", 
 as Chief Justice English in the Morrill case 
 terms it, 'the prohibitory feature of the act, 'the 
 I'ule would, according to the weight of author- 
 ity, be otherwise than I have above assumed. 
 
 Third : Xo ci'iticism by the public press of 
 the conduct of judges, witnesses, jurors, 
 officers of the coui't or parties, is an act pun- 
 ishable by the process of attachment for con- 
 tempt in Missouri, though made with a view 
 of influencing the determination of a pending 
 cause, and turning aside the course of justice. 
 This [)hase of -the question has never to my 
 knowledge been before our Supreme Court, 
 and hence our statute in that particulai- has 
 never been construed by that court, but Judge 
 English, in speaking of the terms of the 
 Arkansas statute, which is, as I have said, a 
 verbatim copy of ours, in the Morril case, 
 pointedly said : ' It is conceded that the act 
 charged against the defendant in this case is 
 not embraced within either clause of. this 
 statute.' " 
 
 All of this T fully indoivse to-day, after 
 twenty years of reflection and careful stud}'. 
 
 THE QUESTION TO BE DISCUSSED INT THIS 
 REVIEW. 
 
 Did the General Assembl}^ of this State have 
 the constitutional power in 1835, and has it
 
 18 THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 now the power, to pass the statute on the sub- 
 ject of contempt of court, which the Supreme 
 Court, in tlie Shephei-d case, set aside as un- 
 constitutional in order to acquire jurisdiction 
 in that case? 
 
 Thequestioninvolves also the meaning of the 
 article in our constitution, which has from the 
 beginning remained the same, disti'ibuting 
 governmental power among the three co-ordi- 
 nate departments of the State government, 
 and the meaning ot the -words ''the judicial 
 power," and the words " the legislative 
 power," as they have been used in the several 
 constitutions, that have been in force in the 
 State, that of 1820, that of 1805, and that of 
 1875, the latter being now in force. 
 
 If the question, here propounded, be an- 
 swered in the negative as it was answered b}'' 
 the Supreme Court in the Shepherd case, all 
 the other positions taken by the court that 
 the defendant was not entitled to a trial by 
 jury ; that the punishment inflicted was 
 according to " the law of the land," etc., fol- 
 low as necessary corollaries of this answer. 
 But if it be answered in the affirmative, as I 
 shall answer it, then the jurisdiction of the 
 court to impose the fine in the She])herd case 
 falls to the ground, and with it all the other 
 positions taken by the court. In order to 
 fully and clearly understand the discussion in 
 reofard to the meanino;- of the articles in our 
 constitution distributing the powers of the 
 government, and confiding " the legislative 
 power" to the General Assembly, and "the
 
 THE LAW OF CONSTKUCTIVE CONTIO.M 1' 1. 1 1« 
 
 judicial power" to the* courts, as ai)[)licable 
 to the question undei' discussion, it is ueces- 
 sai-y to review, briefly, the history and evolu- 
 tion of the law of contempt, the law of libel, 
 the freedom of the press, and the right of trial 
 by jury in libel cases. This history I will 
 divide into four epochs. First, prior to 1820, 
 when our first constitution was adopted, 
 second, from 1820 to 1835, when the con- 
 tempt statute, in its present form, was first 
 adopted ; third, from 1835 to 1875, when our 
 present constitution was adopted, and fourth, 
 from 1875 to 1903. 
 
 FIRST El'OClI. 
 
 The history and evolution of the law of contempt, the kno 
 of libel, the freedom of the press, the right of trial by 
 jury in libel cases, prior ayid up to 1S20, lohen our first 
 constitution was adopted. 
 
 PUBLICITY — THE QUESTION IN" EXGLAM?. 
 
 The publication of the Proceedings of Par- 
 liament, and of the legislative assemblies of 
 the American Colotiies, was not allowed a 
 century and a half ago. The theory was 
 that the law-givers and rulers should be left 
 to act absolutely freed from the restraints of 
 public opinion, and that the peo|)le did not 
 know, and could not know what was best for 
 the i)ublic weal. The Kevolutions of 1610- 
 50 and 1688-9 awakened the people, not only 
 in England, but in the Colonies, to a full 
 realization of their power and their rights, and 
 it developed that they could not intelligently 
 participate in their government, and apply 
 appropriate remedies for the evils they might
 
 20 THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 find in tlie administration of pnblic at'fairw, 
 without a knowledge of the acts of those 
 clothed with authority. To us of to-day it 
 seems strange that such a self-evident propo- 
 sition as that the people should know what 
 their rulers are doing should ever have 
 been questioned or doubted. But the fact is, 
 the struggle for the publicity of legislative 
 and governmental proceedings of every kind 
 was a long and fierce one. Tt was full of 
 bitterness and vituperation. Even judicial 
 •proceedings were at one time frequently kept 
 from the public. The " Star Chamber," in 
 its secret halls, and behind barred doors, was 
 once a terror to the people. A curious episode 
 in <^his connection in the history of Pennsyl- 
 vania may be cited. In 1687 William Brad- 
 ford, a printer whom Penn had induced to 
 come to the province, was severely censured 
 by the Council, presided over by the governor, 
 for i^rinting the charter of the province. This 
 occurred in Pennsylvania which afterwards 
 became the battle-ground for the fiercest, 
 most spectacular and triumphant struggle for 
 the freedom of the press to be found in our 
 annals. This struggle will be noted later on. 
 The period between 1765 and 1801 was noted 
 for its struggles for the rights of the masses 
 of the people, and the principles of libert}'. 
 In that period the American Colonies won 
 their independence. In 1769 a struggle for 
 the freedom of the press was begun in En- 
 gland by John Wilkes, which was taken up 
 afterwai'ds by ITorne Tooke, Thomas Paine,
 
 TIIK LAW OF CONSTHUCTIVK CONTKMI'T. 21 
 
 Loi'd Ii]iskine, Fox and others, wliich tennin- 
 atc'd in 1792 in the passage by Pai-lianicnt of 
 what is known as " The Fox Libel Aet." Prior 
 to that act in a criminal prosecntion for libel, 
 the accused was not allowed to prove the 
 tiuth of the charge he had made, it being 
 gravely asserted that " the gi-eater the truth, 
 the greater the libel." As showing the state 
 of the law of libel on this point in the Ameri- 
 can Colonies, and even in the American States 
 a hundred years ago, I call attention to the 
 cases of McDougal and Ci'osswell, both New 
 York cases. (Appendix A.) Prior to the 
 Fox Libel Act it was also well settled that the 
 question of libel or no libel was for the court 
 alone, with which the jury had nothing to do ; 
 but that act revolutionized the whole law of 
 libel by providing that in all suits and prosecu- 
 tions for libel, the truth of the charge may be 
 given in evidence as a defense, and what was 
 still more im[)ortant, the jury should, under 
 the instructions of the court, be the judges of 
 the law and fact. In other words, the jury 
 was made the judge not only whether the pub- 
 lication had been made but also whether that 
 publication was libelous or not ; and of course 
 the jur3% after that act, as well as befoi-e, was 
 the sole judge of the degree of punishment, 
 which should be inflicted in a criminal pro- 
 ceeding, and the amount of damages to be 
 awarded in a civil case. 
 
 The Fox Libel act not only embodied these 
 great principles, but it also declared that the 
 provisions of the act had always been the
 
 22 THE LAW OF CONSTRUCTIVE COXTEIMPT. 
 
 law, though previously the courts had uni- 
 formly held the contrary. It was during our 
 Revolutionary struggle, and before the pas- 
 sage of the Pox Libel Act that Blackstone's 
 Commentaries were written and pubHshed, 
 and in weighing what he says about the com- 
 mon law it must be constantly borne in mind 
 that he was a Tory of the strictest sect, and 
 was an ultra believer in the divine right of 
 kings, and of kingly prerogatives. While 
 Blackstone is perhaps the greatest law com- 
 mentator of the world on the law in general, 
 what he says, when he comes to treat of pre- 
 rogatives and governmental power, must be 
 scrutinized very closely, when we, Americans, 
 come to apply it in our affairs under our free 
 institutions. I throw out this caution, because 
 we now have to deal with the common law of 
 England, not as it existed at the time Black- 
 stone wrote, but as it existed in 1820, at the 
 time our first Constitution was adopted. There 
 is another Englishman who, in my judgment, 
 comes nearer representing the later English 
 spirit up to the time of his death, in 1823, 
 and of the American spirit on the subject 
 under discussion than Blackstone, or any 
 other foreigner. I refer to Thomas Erskine, 
 Lord Chancellor of England. He was a con- 
 sistent Whig, and before he became Lord 
 Chancellor he was foremost in the fight for 
 the freedom of the press, and it was through 
 his influence very largely that the Fox Libel 
 Act was put through Parliament. In 1807, 
 while Lord Chancellor, one McNamara pub-
 
 THE LAW OF CONSTKUCTIVE f ONTEMl'T. 23 
 
 lisliod an article wliieh was a gross misstate- 
 ment of the proceedings of the court in a case 
 decided the day befoi'e, and was manifestly 
 printed for the purpose of exculpating the 
 defendant in public opinion, and of rendering 
 odious his opponents. He was attached for 
 contempt, and Lord Erskine disposed of the 
 case thus : — 
 
 " Though this was certainly a case in which 
 the court might commit the offender as for a 
 contempt, it still remained to be considered 
 whether the exercise of the discretion which 
 the court must necessarily have in such a 
 case, it ought to do so, and that exercising 
 that discretion, he certainly would not com- 
 mit him." 
 
 And though he afterwards sent a party to 
 the Fleet for a like contempt of court, his 
 final opinion of slich a question, at the close 
 of his great career, is recorded by Lord 
 Campbell in his " Life of Erskine." After 
 speaking of Lord Erskine's visit to Scotland 
 in 1821 this historian adds : — 
 
 " The illusti'ious stranger next visited the 
 Court of Justiciary, and appeared there with 
 the star of the Order of the Thistle blazing 
 on his breast. The question to be considered 
 was one that had occupied his thoughts much 
 while he was Lord Chancellor — IIow far 
 judges should interfere to punish in a sum- 
 mary manner printed comments on their own 
 proceedings. A schoolmaster in Glasgow 
 had [)ublished in a newspa[)er a letter disa[)- 
 proving, to the full, of a judgment of his
 
 24 THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 Lordship's and the Lord Advocate com- 
 plained of this as a contempt of conrt, for 
 which the cnlprit ought to be immediately 
 committed to the Tolbooth. Mr. Cockbiirn, 
 the defendant's counsel, argued that he had 
 not exceeded the bounds of legitimate discus- 
 sion, and that, at any rate, the case ought to 
 be submitted to the determination of a jury, 
 in the ordinary course of law. The court, 
 however, asserted its jurisdiction, and passed 
 sentence of imprisonment. Lord Erskine 
 decorously concealed his expression of opin 
 ion while he remained on the bench, but in 
 private lamented that In Scotland^ ' trial hy 
 jury should he thus siq^erseded.'' " 
 
 I give this not for the purpose of showing 
 that the courts of England did not have the 
 power, by common law, to punish as for a 
 contempt a publication in a uewspaper, but 
 to show" that, according to Erskine, there was 
 some question about it, even in that country, 
 and especially after the passage of the Fox 
 Libel Act. 
 
 THE HISTORY OF THE LAW OF CONTEMPT, 
 LIBEL, AND TRIAL BY JURY IN THE AMERI- 
 CAN STATES PRIOR TO 1820. 
 
 The McKean Case. — The first contest in 
 regard to contempt occurred in Pennsylvania 
 in 1788. Thomas McKean, a signer of the 
 Declaration of Independence, and a staunch 
 patriot during the whole Kevolutionary 
 period, was, that year. Chief Justice of that 
 State, and one Eleazar Oswald was attached 
 and brought before him and his associates,
 
 TIIK LAW OF fONSTKlfTIVK fONTKMrT. 25 
 
 and punished foi- contempt of court in pub- 
 lishing an article in his newspaper which tlie 
 court held reflected on tlie [)artie.s to the suit, 
 and the court, and was calculated to turn 
 aside the course of justice in a penrling case. 
 Oswald carried the case to the Legislatui-e, and 
 out of fifty-seven votes, twenty-three voted to 
 condemn this action of the court. See Ap- 
 pendix B for a full report of this case. 
 
 The 8hippen Case. — lu 1804 Edward 
 Shippen was Chief Justice of the Pennsylvania 
 Supreme Court, and he and his associates pro- 
 ceeded against one Passmoj-e for contempt for 
 the publication of a libel on the parties in a 
 pending suit, and fined him fifty dollars, and 
 ordered him imprisoned for thirt}^ days. 
 Passmore carried this case also to the Legisla- 
 ture, and the Lower House, by a vote of G5 
 to 16 presented articles of impeachment 
 against Shipi)en and his associates for this 
 judgment, and on a ti'ial before the Senate 
 they were acquitted by a vote of thirteen 
 against them to eleven for them, the prosecu- 
 tion failing because a tico-tln'rch vott- of the 
 Senate was required to convict. A report of 
 this case will be found in xVppendix " B.'- 
 
 Now it must not be forgotten that both of 
 these cases arose, and were decided before 
 any hnv had been passed by the Legislature 
 of Pennsylvania restricting the jurisdiction 
 of the courts in contempt cases, and in a 
 State, too, that gloried in the fact that it had 
 inherited the common law of England instead 
 of having introduced it by statute as was done
 
 2<) THE LAW OF COXSTKUCTIVE CONTEMPT. 
 
 in Missouri. But after the decision in the 
 Oswald case in 1788 the jjeople of Pennsyl- 
 vania began an agitation for a legislative re- 
 stricting act; but Chief Justice McKean's 
 opposition up to 1808 was too strong to be 
 overcome. But as soon as he Avent out of 
 office as governor, the people asserted them- 
 selves, and in 1809 enacted a law under the 
 administration of Governor Snyder, expressly 
 prohibiting the courts from exercising juris- 
 diction in a contempt case to punish for 
 " publications out -of court, respecting the 
 conduct of judges, oflBcers of court, jurors, 
 witnesses or parties," and so vigorous was 
 the protest of the people then against the 
 exercise of the power to punish by attachment 
 for newspaper publication, that no judge of 
 Pennsylvania has, from that day to this, dared 
 to call that statute in question. 
 
 In Xew York after the trial of Crosswell 
 heretofore referred to, the General Assembly 
 of that State in 1805 passed a law similar to 
 the Fox Libel Act. 
 
 THE ALIEN AND SEDITION LAWS OF 1798. 
 
 I will not go into the details of these laws, 
 nor the trials thereunder, as full reports of 
 these appear in Appendices " C," *' D," •' F " 
 and " G." Suffice it to say here that Mr. 
 Thomas Jefferson in his presidential cam- 
 paign of 1799-1800 made a direct appeal to 
 the peoj^le from the prosecutions under these 
 laws, condemning them on the ground of 
 their unconstitutionality, and won ; and so 
 odious did he and his adherents make this
 
 TIIK KAW OF CONSTIUf'TIVK fONIKM 1' T . 2 I 
 
 class of laws, that never sinee has there hccii 
 the shghtest desire to renew them, with the 
 exception, howevei', of what occurred after 
 Pi-esident McKiiiley's assassination. Upon 
 that ever-to-be lamented event — theie was 
 some wild talk, all over the country, not con- 
 fined to party lines, demanding some repressive 
 measure against the teachings of anarchists, 
 but this talk was nevei* crystallized into law. 
 
 THE HISTORY OF THE QUESTIOX IN' MISSOURI. 
 
 The territory west of the ^NFississippi was 
 not an English colony, but Spanish, and when 
 we acquired the same in 1803, Spanish laws 
 were in force and remained in force till 1816, 
 when the territorial legislature })assed this 
 act: "The common law: of England, which 
 is of a general nature, and all statutes made 
 by the British Parliament in aid, or to supply 
 the defects of, the common law, made pi'ior 
 to the fourth 3'ear of James First, and of a 
 general nature, and not local to that king- 
 dom, which said common law and statutes aie 
 not contrary to the laivs of this territory, and 
 not repugnant to, nor inconsistent with the 
 constitution and laws of the United States, 
 shall be the rule of decision in this territory 
 until altered or repealed by the legislature, 
 any law, usage or custom to the conti'ar}^ 
 notw^ithstanding; provided, however, that 
 none of the Bi'itish statutes respecting 
 crimes and punishments shall be in force in 
 this territor}^ ; nor shall any [)erson be pun- 
 ished by common! law, when the laws of this 
 territory have made provisions on the subject;
 
 28 THE LAW OF CONSTRUCTIVK CONTEMPT. 
 
 but where the hiwsand statutes of the United 
 States, and this territory, have not made pro- 
 vision foi* the punishment of offenses, the 
 several courts may proceed to punish for such 
 offenses provided the punishment shall in no 
 case be other than fine and imprisonment, and 
 the term of imprisonment shall not exceed 
 two months, and the fine shall not exceed one 
 hundred dollars." 
 
 So far as I have been able to discover, there 
 had not, prior to 1820, been a single case de- 
 cided in the American States after the Pass- 
 more case, in which a party was punished by 
 the court, as for a contempt, for a publica- 
 tion in a newspaper, and I know there was 
 none declaring the legislature had no power 
 to pass a law, foi'l)ir]ding the exercise of such 
 jui'isdiction for such publication. 
 
 This was the state of the law, and these 
 wei'e the conditions under which the people of 
 Missouri wrote and adopted the Constitution 
 of 1820. That Constitution in Art. 2, de- 
 clared " The powers of government shall be 
 divided into thi'ce distinct departments; and 
 no person, charged with the exercise of powers 
 properly belonging to one of these depart- 
 ments, shall exercise any power properly be- 
 longing to either of the others, except in the 
 instances hereinafter expressly directed or 
 permitted." 
 
 Sec. 1, Article 3 provided: '' The legisla- 
 tive power shall be vested in a Genei'al As- 
 sembly, which shall consist of a Senate and of 
 a House of Representatives."
 
 THK LAW OF CONSTKUCTI VK fONTKMl'T. 2d 
 
 Sec. 1, Article 5 was as lollow.s: " The 
 jii(Ji('ial power, as to matters of law and e(|uity, 
 shall be vested in the Supreme Coiut, in a 
 Chancellor, in Circuit Courts, and in such 
 infei'ior tribunals as the General Assembly 
 may from time to time order and establish." 
 
 Sec. 1(3 of the Bill of Rights provided : 
 " That the free communication of thoughts 
 and opinions is one of the invaluable I'ights 
 of man, and that every person may fully 
 speak, write and print on any subject, being 
 resj^onsible for the abuse of that liberty ; and 
 in all })rosecutions foi- libel, the truth thereof 
 may be given in evidence, and the jury may 
 determine the law anrl the facts under the 
 direction of the cou!'t." 
 
 SECOND EPOCH. 
 
 The history of this (juestion from the adojUion of the 
 Coiistitulion of 1820 to the enactment of the contempt 
 statute in 1835. 
 
 In the revision of the statutes of 1825, there 
 was . a chapter headed *" Judicial Power," 
 and under that head the following section ap- 
 peared : "That the several courts aforesaid 
 shall, respectively, have power to punish, by 
 fine and imprisonment, the officers of their 
 courts respectively, for an}' official miscon- 
 duct, and all such officei's, parties, jurors and 
 witnesses, for any disobedience of the process 
 of the court ; and any person whatsoever for 
 any contempt by him committed towards such 
 courts, or for any disorderl}- or contemptuous 
 behavior in tlieir presence, while in session, 
 or in any manner obstructing the administra-
 
 30 TIIK LAW OF CONSTKUCTIVE CONTEMPT. 
 
 tion of justice, and to issue attachmeuts agaiust 
 auy person so offending. Bat in no case 
 shall the fine exceed one hundred dollars^ nor 
 the imprisonment he for a longer period than 
 thirty days, and until the fine and costs are 
 paid." There being, however, no negative 
 words restricting the jui'isdiction of the courts 
 to the cases enumerated, under the general 
 rule as applied b}' the courts, that statute 
 would ])robably have been construed to be 
 declaratory of the common law, so far as it 
 went, and did not restrict the jurisdiction of 
 the courts to the instances named, but as to 
 the fine and imprisonment the courts were 
 ahsolutely limited by that act. 
 
 In the revision of the statutes in 1825, the 
 statute introducing the common law into our 
 State was somewhat modified, so as to read 
 as follows : — 
 
 " The common law of England, and all 
 statutes and acts of Parliament made prior 
 to the fourth year of the reign of James the 
 First, and which are of a general nature, not 
 local to that kingdom, and wliich common 
 law and statutes are not repugnant to, or in- 
 consistent ivith the Constitution of the United 
 States, the Constitution of this State, or the 
 statute laws in foixe for the time heing, shall 
 be the rule of action or decision in this State, 
 any law, custom or usage to the contrary not- 
 withstanding." 
 
 The second section limited the punishment 
 under the common law to a fine of one hun- 
 dred dollars, and imprisonment two months.
 
 TIIK LAW OF ("ONSTRUCTIVE CONTEMIT. 31 
 
 And thus the law stood ii» the revisions of 
 1835, 1845, 1855, 1805, 1879 and 1889, and 
 thus it stands to-day in the revision of 1899. 
 
 TJie Pf^cl- liii]y^(i<'liiii(nif ('a^e. — Tliis arose 
 in 1820-31, and was a fierce contest along the 
 same lines on which the McKean and Shi[)pen 
 cases were waged. James II. Peck was judge 
 of the United States District Court of Mis- 
 souri, and attached Luke Lawless, an attoi- 
 ney of the court, for contempt, foi- publishing 
 an article ci'iticising one of his opinions, and 
 ordered Lawless imprisoned for twenty-four 
 hours and be disbai'red. Lawless appealed to 
 Congress, and after many efforts the House 
 of Representatives, in 1830, by a vote of 123 
 to -19 impeached Peck, and James Buchanan, 
 afterwards President of the United States, 
 and Mr. Storrs, of New York, were appointed 
 prosecutors on behalf of the House. On a 
 trial before the Senate the vote stood for im- 
 peachment, 21 ; against impeachment, 22. 
 On this trial Mr. Buchanan in one of his 
 speeches said : "I will ventui'e to predict that 
 whatever may be the decision of the Senate 
 upon this impeachment, Judge Peck has been 
 the last man in the United States to exercise 
 this [)ower, and ]Mr. Lawless has been its last 
 victim." This ex[)ressed the public opinion 
 then prevailing al)Out the exercise of this 
 l)()wer. Fi'om the trial of Shi|)pen in 1801: 
 no judge except Peck had attempted to 
 exercise such i)Ower. A full repoi't of the 
 Peck case is given in the Appendix " II." 
 
 The trial of this case created a profound
 
 32 THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 sensation in the whole countiy, on account 
 of the fundamental principle of liberty in- 
 volved in it, and the eminence of the parties 
 en<>aged in it. Judge Peck escaped convic- 
 tion more because many senators believed he 
 sincerely thought he had jurisdiction to pun- 
 ish Mr. Lawless in the way he did, than upon 
 the ground that he actually had such powei'. 
 And at the same session of Congress Mr. Bu- 
 chanan introduced, and had passed, a statute, 
 approved March 2, 1831, which is reported in 
 full in the Peck case in the Appendix. That 
 act was vei-}^ much like oui's, and limited the 
 Federal courts to certain specified classes of 
 contempts, and no other. Virginia followed 
 in April, 1831, with an act from which ours is 
 literally copied. Other States soon followed 
 with similar statutes, and four years after- 
 wards our Legislature in 1835, though up to 
 that time no couil in the State had attempted 
 to go beyond the statute of 1825, but to 
 make assurance doubly sure, however, enacted 
 the contempt statute which has been in full 
 force ever since, and put it in the Revision of 
 1835 under the head " The Courts — Judicial 
 Power." This statute will be found in full 
 in Appendix " I; " the sections being num- 
 bered as they are in the Revised Statutes of 
 1899. The enactment of this statute was 
 unquestionably the result of the Peck trial, 
 and was intended to put an end to any claim 
 of our courts in following Judge Peck's prec- 
 edent for the exercise of the general power 
 to punish for cbntempt confei'red b}' the com- 
 mon law.
 
 TIIK LAW OF CONSTRUCTIVE CONTEMPT. 33 
 
 THIRD EPOCH. 
 
 The liislory of this question from 1835 to 187/5, fohen the 
 Constitution now in force ivas adopted. 
 
 In 1840 and 1844 the Congress of the 
 United States, with the approval of the Presi- 
 dent, to emphasize the protest of the people 
 against the exei'cise of unwarranted power, 
 refunded the fines, witli interest, which had 
 been imposed on Lyon, Cooper and Haswell, 
 under the Sedition Law, at the same time 
 condemning the law under which they had 
 been convicted, notwithstanding the fact that 
 the several courts, sitting in those cases, had 
 upheld its constitutionality. 
 
 The contempt statute of 1835 went into the 
 Revised Statute of 1845 without change, 
 under the head " The Courts: Judicial 
 Poioer.^'' In 1847 this statute was the sub- 
 ject of judicial interpretation in Hari-ison v. 
 Missouri, 10 Mo. 687. Harrison was fined 
 one hundred dollars by the Circuit Court of 
 Saline County for a breach of the peace, and 
 for noisy and disorrlerly conduct in the pres- 
 ence and hearing of the court, directly tend- 
 ing to disturb its |)roceedings, and to impair 
 the respect due its authority. At the same 
 term the court remitted forty dollars of the 
 fine, and issued an execution for the remainder, 
 sixty dollars. At the next term of court 
 Harrison moved to quash this execution, on 
 the ground, among others, that the fine ex- 
 ceeded the maximum fixed by law in such 
 cases; and thereupon the court remitted ten 
 dollars more, leaving the fine fifty dollars. 
 
 3
 
 34 THE LAW OF CONSTRUCTIVE CONTEMPT, 
 
 Harrison appealed, and made the point that 
 the fine was void, and that the court, after the 
 close of the term at which it was imposed, 
 had no power to change the amount to briii^ 
 it within the limitations of the statute. The 
 court after quoting a section of the statute 
 of 1845, which is the same as 1617 of the 
 Kevised Statutes of 1899, said, on this point: 
 " Thus it will be seen that the Circuit Court 
 has the power to punish summarily by fine and 
 imprisonment for a contempt committed in its 
 presence ; but the fine shall not exceed fifty 
 dollars, nor the imprisonment ten days. In 
 imposing the fine of one hundred dollars on 
 the defendant, the Cii'cuit Court clearly ex- 
 ceeded its powers. This was remedied or 
 corrected in part by the exercise of an un- 
 questioned right of the court to amend or 
 vacate its judgment at any time during the 
 continuance of the term, at which the judg- 
 ment, amended or set aside, was rendered. 
 But after the judgment was first amended by 
 the remission of forty dollars, the fine against 
 the defendant still exceeded the power of the 
 court. The judgment is not absolutely void, 
 for the court had i)ower to punish foi-thecon- 
 tempt, and thus had jurisdiction, but errone- 
 ous, because the fine exceeded in amount the 
 maximum pr escribed hy statute.'''' The court 
 then goes on to hold that the lower court had 
 no power, at a subsequent term, to reduce the 
 fine, and reversed the case without remandino- 
 it, thus holding the whole proceeding void 
 ah initio.
 
 TJJE LAW OF CONSTRUCTIVE CONTEMTT. 35 
 
 Attoi'Mcy-General Stringfellow did not i-aise 
 the point of the constitutioiiiil powet- of the 
 legislature to pass the statute, nor did the 
 court. The judges and lawyers of 18-47 be- 
 longed to the generation that had witnessed 
 the fierce constitutional controvei"sy in the 
 Peck case, and stood near enough to the con- 
 test in Pennsylvania, in the McKean and 
 Shippen cases, and in the United States, in 
 the cases arising under the Sedition law of 
 1798, to hear their echoes, and in the Harri- 
 son case there was absolute acquiescence by 
 the court, and the lawj'^ers engaged in the 
 case, in the legislative power to pass the con- 
 tempt statute, and the court rigorously en- 
 forced its provisions in regard to the fine. 
 
 The contempt statute, with this intei-preta- 
 tion of it, went into the Revised Statutes of 
 1855 and 1865 without change, and in the 
 latter year a new constitution was adopted, in 
 which were incorporated substantially the 
 provisions of the Constitution of 1820 in re- 
 gard to the distribution of the powers among 
 the three co-ordinate departments of the 
 government and in regard to the legislative 
 and judicial powers, and it was declared that 
 " all statute laws in this State, now in force, 
 not inconsistent with this constitution, shall 
 continue in force until they shall expire by 
 theii' own limitation, or be amended or re- 
 pealed hy the General Astiembli/.''^ 
 
 In 1866 the contempt statute was under 
 examination by the Sujjieme Court in the 
 matter of Green Co. v. Rose, 38 Mo. 896. In 
 that case the Probate Court of Green C-ountv
 
 3f) THfc LAW OF CONSTRUCTIVE CONTEMPT. 
 
 had fined Rose one Inindred dollars for fail- 
 ing to make settlement as curator of a minor's 
 estate, according to the order of the court. 
 The Supreme Court quoted Section 67, p. 
 542 R. S. 1855, which is the same as Section 
 1618 R. S. 1899, in support of that ruling. 
 Thus the court upheld that statute. No 
 question about its constitutionality was raised 
 or discussed. 
 
 FOURTH EPOCH. 
 
 The History of the Question from 1875 to 1903. 
 
 Then comes the constitution of 1875. The 
 contempt statute had been on the statute 
 books for forty years under the head of ** The 
 Courts: Judicial Power," in the Revisions of 
 1835, 1845 and 1855, and under the head "The 
 General Powers and Duties of Courts," in 
 the general statutes of 1865, and if any lay- 
 man, lawyer or judge had, in that forty years, 
 entertained a doubt of the constitutionality of 
 that statute, his opinion is not recorded so far 
 as I have been able to discover. The statute, 
 introducing the common law as heretofore 
 given, was in force and incorporated in the 
 general statutes of 1865. 
 
 In the light of this history the constitution 
 of 1875 was written and adopted. It must be 
 assumed that the members of that convention, 
 some of whom were the most eminent lawyers 
 and statesmen of our State, were familiar with 
 the history of legislation" in the State, and 
 fixed the limitation upon the legislative power 
 so as to eradicate all the evils in that connec- 
 tion which had crept into our system of laws. 
 With this end in view Article 4 was inserted,
 
 Tin: LAW OF CONSTKUCTIVK CONTEMIT. 6 1 
 
 vvhic-li provides, " Thu legislative power, safj- 
 ject to the limitations herein contained., shall 
 be vested in a Senate and a House of Repre- 
 sentatives, to he styled ' The General Assem- 
 bly of the State of Missouri,' " and then follow 
 many specific limitations upon that power, but 
 among them we find none in regard to the law 
 of contempt. The judicial power granted to 
 the courts is in these words : — 
 
 " The judicial power of the State, as to mat- 
 ters of law and equity, except as in this Con- 
 stitution otherwise provided, shall be vested 
 in a Supreme Court, the St. Louis Court of 
 A[)peals, Circuit Courts, Criminal Courts, 
 Probate Courts, County Courts and Municipal 
 Corporation Courts." 
 
 Then the revision of the statutes in 1879 
 was made and the contempt statute went into 
 it without the slightest change. In 1883 the 
 case of ex parte Renshaw was decided by the 
 Supreme Coui-t. In this case Renshaw was 
 ordered by the Circuit Court of Jackson 
 County not to remove certain fixtures from a 
 room named, which order he disobeyed. After- 
 wards the court ordered him to restore the 
 fixtures, which he failed to do ; whereupon 
 the court fined him one hundred dollars for 
 contempt, and ordered that he stand com- 
 mitted until the fine was paid, and fixtures re- 
 stored. The Supreme Court, on appeal, cited 
 sections 1055, 105(3 and 1059, R. S. 1879, 
 which are the same as sections 161(3, 1617 and 
 1620, R. S. 1899, and treated them all as valid. 
 The court held that under Section 1059, R. S.
 
 38 THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 1879 (Sec. 1620, R. S. 1899), the court had 
 the power to imprison the defendant until 
 he complied with the order of the court, but 
 held the fine improperly imposed, saying: 
 " No fine for a criminal contem-pt can exceed 
 fifty dollars^'''' and the judgment of the court 
 helow toas modified so as to release defendant 
 from the fine but that he be imprisoned until 
 he should comply with the order of the court 
 to restore the fixtures. Mr. Justice Sherwood 
 concurred in the construction of the several 
 sections of the statute, but held that Section 
 1056 R. S. 1879 (Section 1617, R. S. 1899), 
 limiting- the power of the court in the punish- 
 ment of criminal contempt was an invasion of 
 the judicial power, conferred on the courts by 
 the Constitution, But the majority of the 
 court, and the counsel in the ca«e, did not 
 raise or discuss the constitutionality of this 
 statute, but the court, in most emphatic terms, 
 recognized its validity and enforced its pro- 
 visions. This case was, as to the extent of 
 the fine, cited with approval, by the. Supreme 
 Court in ex parte Baenninghousen, 91 Mo. 
 305, and thus interpreted, the contempt statute 
 went into the Revisions of 1889 and 1899. -It 
 may be added that the Circuit Courts for over 
 sixty years, and the Court of Apj)eals for 
 twenty-one years, have followed the contempt 
 statutes, and recognized them as valid without 
 question. 
 
 In the light of this historical sketch of the 
 question in England and America I will now 
 proceed to examine the main points made by
 
 TIIK LAW OF rONSTUUCTIVK CONTEMPT. 39 
 
 the Supreme Coiiil in the Shepheni case wliieh 
 I combat. 
 
 I. 
 
 Jurisdiction to punish for contempt for the publication of 
 an alleged libel was not co)tferred on this court by the 
 Constituti'in of 1820. 
 
 Any pi'iiici[)le of tlie common law, that was 
 i'e[)iiofnant to the [)rovi8ions of this Constitu- 
 tion, was never in foi'ce in this State. The 
 same instrument that conferred the " judicial 
 power" on the court also provided for free- 
 dom of speech and of the press, and that " in 
 all prosecutions for libels, the truth thei'eof 
 may be given in evidence, and the jury may 
 determine the law and the facts under the 
 direction of the court." Even without this 
 provision, according to the final opinion of 
 Lord Erskine, it is doubtful if the court 
 would have had power, under the common law 
 then in force in Missouri by virtue of the Act 
 of 1816, to punish parties, as for a contempt, 
 for libelous publications on the courts or their 
 judges and we must determine what was in- 
 tended by the insertion of this provision in 
 the Bill of Rights, and in this discussion the 
 history of the struggle for the crystallization 
 of that principle into law first, and then into 
 the Constitution, must be considered. Among 
 the English-speaking people the word " pre- 
 rogative " has always been hateful, and every 
 attempt on the part of the goveinment to 
 punish for contem[)t of itself or a judge to 
 punish for contempt of himself has always met 
 the fiercest opposition, especially in our own 
 country. This opposition has grown out of
 
 40 THE LAW OF constkuctivp: contempt. 
 
 the methods of exercising jurisdiction in such 
 cases. It has been regarded by the people as 
 an exercise of a kind of prerogative for the 
 government itself to determine when its action 
 was unduly criticised,andespecially fora judge 
 to decide whether his action was unduly held 
 up to public animadversion. The people have, 
 for one hundred and fifty 3'ears, held that, in 
 such cases, there was too much of thepei'sonal, 
 though partaking in a degree of the official, 
 to justify the government on the one hand 
 and the judge on the other becoming the jury 
 in its or his own case. The government and 
 the court, as entities, have no sentient exist- 
 ence, and it is only through their administra- 
 tors they can be attacked, and when thus 
 attacked the attack has a personal as well as 
 an official })hase, and no matter what the 
 theory of such a proceeding may be, in the 
 public mind there is and always has been and 
 always will be an intuitive feeling that the 
 maxim " no man should be a judge in his own 
 cause" is violated when the government 
 undertakes to prevent any one from criticis- 
 ing itself, or a judge brings a citizen before 
 him for trial on the process of attachment for 
 contempt of the court over which he presides. 
 Thus the Alien and Sedition Laws of 1798 
 aroused the fiercest opposition, and the trials, 
 under these laws, on account of this opposi- 
 tion, had a profound influence on the growth 
 and development of our institutions. And 
 thus the trials for contempt of court by news- 
 paper publications have given rise to some of
 
 Tin: LAW OF CONSTKLCTIVE CONTEMIT. 41 
 
 the fiercest controversies, which iiave left 
 their lasting" impression iij^on onr laws and 
 civilization. But in waging these conflicts 
 the people have never fought for unrestrained 
 criticism and license, but the battle on their 
 part has been waged along other lines. The 
 battle has been about the manner, rather than 
 the matter of the jurisdicti<ni attempted to be 
 exercised. Those who opposed the Alien and 
 Sedition laws did not deny the right of the 
 government to protect itself against unjust 
 and pernicious attacks, but they did deny 
 the right of the national government to pass 
 and enforce such laws, claiming that it was 
 the sole province of the States to provide for 
 vindication in such cases. Those who op- 
 posed i:)roceedings, based on attachment for 
 contempt of court for newspaper publications, 
 did not deny that courts ought to be pi-otected 
 against unjust and malicious criticism, but 
 they did deny the proj)riety, if not the right 
 of the judge to try any issue, in which his 
 personalit}' must, of necessity, more or less 
 enter, and which, they felt, can but influence 
 his decision. This objection, however, applies 
 onl}^ where the contempt proceeding is for 
 criticism of the judge by print, writing or 
 picture, and does not apply to the enforce- 
 ment of the orders of the court, for in this 
 the personality of the judge does not enter 
 in the slightest degree, and hence, personal 
 bias in such cases can have no apj^reciable in- 
 fluence over the decision of a just judge. 
 Lord Erskine, at the close of his great career,
 
 42 THE LAW or CONSTRUCTIVE CONTEMPT. 
 
 gave it as his opinion that there ought to be 
 a jury trial when a person is charged with 
 Hbeling a court or judge; and Lord Camp- 
 bell, one of the Chief Justices of England, 
 in a note to the case of Kex v. Almonds 
 Wihn. Op. 243, 3rd Volume of his Lives of 
 the Lord Chief Justices, 190, sa3^s, " En con- 
 sequence of the resignation of Sir Fletcher 
 Norton, who as Attorney-General had made 
 the motion, it (the Almond case for con- 
 tempt) was dropped after cause shown while 
 the court was considering its judgment; and 
 although there can be no doubt as to 
 the power to proceed by attachment in 
 such a case, — if a prosecution for a libel 
 on judges be necessary, — the preferable 
 course is to proceed by information or in- 
 dictment, so as to avoid placing them in 
 the invidious situation of deciding where 
 they may be supposed to be parties." Lord 
 Campbell here but expresses the universal 
 opinion of mankind. This feeling of the peo- 
 ple had been intensified and made absolutely 
 predominant by the Revolutionary struggle 
 in this country, and by the contest waged by 
 the people against the exercise of all forms of 
 prerogative and arbitrary pow^er by go vein- 
 mental agencies, and in an emphatic degree 
 had the opposition to a press censorship been 
 made strong and robust, so that when in 1820, 
 thirty-seven years after the close of the war 
 of Independence, twenty years after the end 
 of the great struggle against the Alien and Sedi- 
 tion laws, and sixteen years after the Senate
 
 THi: LAW OF COXSTRUCTIVK CONTKMl'T. 43 
 
 of Pennsylvania l)y a vote of tliirtecn t(j 
 eleven for tlie conviction of Jndgc Shippon 
 (who had grown gray in the service of his 
 conntry), for a high crime in pnnishing Passa- 
 more for a [)uijHcation in a newspapei* ; with 
 the memories of the struggle of the half 
 century precerling that time in England and 
 Amei'ica foi- the rights of men fresh in their 
 minds, the people of this State came to 
 write their first Constitution, they seemed to 
 be determined on one thing, and that was, to 
 abolish press censorship for once and all, and 
 place the fi'eedom of speech and of the |)ress 
 on an enduring basis. And they wi'ote in 
 their Bill of Pights this stalwai't language : 
 "That the free communication of thoughts 
 and opinions is one of the invaluable rights of 
 man, and that every person may think, write 
 and print on any subject, being responsible 
 for the abuse of that liberty." And in ordei' 
 to specif}^ how, and before what tribunal such 
 a resi)onsibility should be determined, it was 
 added : " And in all prosecutions for libel the 
 truth thereof maj' be given in evidence, and 
 the jury may determine the law and the fact, 
 under the direction of the court." 
 
 Was that clear and vigorous language in- 
 tended by the framers of that Constitution to 
 be a "■ limitation of the judicial power " of the 
 English courts, as defined by Blackstone be- 
 fore our Declaralion of Independence was 
 penned? The common law of England was 
 in force here only by virtue of a statute of the 
 Territorial legislature passed in 1816, and that
 
 44 THK LAW OF CONSTRUCTIVE CONTEMPT. 
 
 law was ill force so far, and only so far as it 
 was not I'epuf/ncmt to any statute of the Terri- 
 tory^ and by Section 2 of the schedule it was 
 declared, "That all laws now in force in the 
 Territoiy of Missouri, which are not repug- 
 nant to this Constitution shall remain in force 
 until they shall expire by their own limitation, 
 or he altered or repealed hy the General As- 
 sembly.'''' Do the words " the judicial power," 
 as used in that Constitution, include the power 
 of the courts to punish by the process of 
 attachment for contempt, for an alleged libel 
 upon the court, the judges, the parties to any 
 suit, or th(i oflScers of the court ; or is that 
 common law rule repugnant to the Constitu- 
 tion? I have not a shadow of a doubt but that 
 it is ; that the framers of the Constitution of 
 1820 and the people intended to prohibit the 
 exercise of such a power, and thought they 
 had done so. They never dreamed that 
 Blackstone and the English judges would be 
 quoted as authority for the courts to bring 
 before them, and try without indictment or 
 information, and without the intervention of 
 a jury, a citizen for criticising the courts in 
 the press, even though such criticism might 
 be libelous, thus becoming judges in their own 
 causes, and compelling parties to give evi- 
 dence against themselves, and becoming the 
 ti'iers not only of the law, but also of the fact 
 in a libel case. I feel sure that at that time 
 if the exercise of such a power had been at- 
 tempted by the courts, it would have been 
 as fiercely resisted as the exercise of such a
 
 TIIK LAW OF CONSTRUCTIVK f'ONTEMl'l. i^) 
 
 power by Chief Justices ]SrcKean and Shi[)|)en 
 were I'esisted in Pennsylvania only a few 
 years before. And the fact that no Missouri 
 judge, in the early days of the republic, at- 
 tempted to exercise such a power in such a 
 case, though many occasions and provoca- 
 tions for its exei'cise were not wanting, shows 
 that not only the [)eople, but the Bench and 
 Bar then did not claim such jurisdiction foi- 
 the courts. But this view rests not alone 
 uj)on theory. Thei'e is authority for it. 
 
 In 1875 the Supreme Court of Illinois had 
 this very cpiestion before it in Storey v. Peo- 
 ple, 79 '111. 45. The Chicago Times had re- 
 flected upon the action of the grand jury in 
 finding an indictment against the editor of 
 that pa[)er and for this he was attached for 
 contempt of the court. After referring to the 
 doctrine laid down by Blackstone, the Su- 
 preme Court said : " But the law in relation 
 to contempt has never been held in any case 
 decided by this court to be so indefinitely 
 broad as it is thus stated by Blackstone. Our 
 Constitution and statutes certainly affect this 
 question, and it is only in determining pre- 
 cisely how far they do so, that we have any 
 difficulty. Courts, however, possess cei-tain 
 common law powers, subject to modifications 
 that ma}' have been imposed by our ConMi- 
 tution and statutes, among which is included 
 that of i)unishing for contempt." The court 
 goes on to say that the law of libel at com- 
 mon law left the jury to determine whether 
 the defendant was guilty of the publication
 
 46 THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 alone ; but the question, whether the pubHca- 
 tion was libelous, was for the court, and it 
 was not permissible to show by evidence that 
 the publication was true, or to show the 
 motives of the publisher, and under the com- 
 mon law, therefore, whether the party charged 
 was tried by a jury or proceeded against sum- 
 marily as for contempt, the only question of 
 fact was whether he was guilty of the publi- 
 cation, and then it was for the court to say 
 whether the publication was libelous or not. 
 The court continuing along this line of argu- 
 ment, added, " In this State (Illinois) how- 
 ever, our own Constitution guarantees that 
 every person may fully speak, write and pub- 
 lish on all subjects, being responsible for the 
 abuse of that liberty ; and in all trials for 
 libel, civil or criminal, the truth, when pub- 
 lished with good motives and for justifiable 
 ends, shall be a sufficient defense. This lan- 
 guage, plain and explicit as it is, cannot be 
 held to have no application to the courts, or 
 those by whom they are conducted." The 
 court quotes with approval the following lan- 
 guage from the Stewart case, 3 Scam. 402 
 (also an Illinois case) : " If a judge be libeled 
 by the public press, he and his assailant 
 should be placed on equal grounds, and their 
 common arbitershould beajuryof the county." 
 The basis forthe attachment for contempt in the 
 Stewart case was a severe reflection on a judge 
 in a newspaper duringthependencyof a murder 
 trial. In the Storey case the court concluded 
 as follows : " When it is conceded that the
 
 TJli; LAW OF CONSTRUCTIVE CONTKMl'T. 17 
 
 guaranty of this clause (freedom of press) of 
 the Constitution extends to iro7'dt< spoken or 
 published in regard to judicial conduct and 
 character, it would seem necessarily to folio ir 
 that the defendant has the rigid to make a 
 defense which can only he properly tried by 
 jury, and irhich the judge of a court, espe- 
 cially if he himself, is the subject of thf 
 publication, is unfitted to try.^'' 
 
 Upon reason and authority, therefore, I 
 conclude that the common law power of the 
 judiciary, as it existed in England prior to our 
 Revolutionary struggle, to try without the 
 intervention of a jury, and punish, as for a 
 contem[)t, a person, for a libelous publication 
 upon the court, judges, parties, witnesses or 
 officers, was not in force in Missouri after the 
 ado|jtion of the Constitution of 1820. 
 
 TI. 
 
 The v.-ords, " The Legislative Power'' as used in the Con- 
 stitution of 1S20 authorized the enactment of the con- 
 tempt statute. 
 
 At this point, it behooves me to examine 
 the rule our owmi Supreme Court has laid 
 down and enforced by which it has always 
 detei-mined whethei* a statute be constitutional 
 or not. That court, in State v. Able, 65 Mo. 
 357, very clearly sete out the rule which 
 should govern the court in determining the 
 constitutionality of a statute in this language : 
 " It may be observed as preliminary to the 
 consideration of this subject that when we are 
 asked to declare an act of the legislatui-e un- 
 constitutional, which has been passed with all
 
 48 THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 the forms and ceremonies required to give it 
 force, the question must be approached with 
 great caution, and considered with the utmost 
 care and dehberation. The nullit}^ and inva- 
 Hdity of such a law must appear beyond a 
 reasonable doubt before we can pronounce it 
 void. It has been held by this court that no 
 rule is better established- than that acts of the 
 legislature are presumed to be constitutional, 
 and till the contrary i^lainly appears, and it is 
 only when they manifestly infringe on some 
 provision of the Constitution that they can be 
 declared void for that reason. In case of 
 doubt, every possible presumption, not di- 
 rectl}^ and clearly inconsistent with the lan- 
 guage and subject-matter, is to be made in 
 favor of the constitutionality of the act 
 (43 Mo. 385; 48 Mo. 468). It has been 
 well said in the case of Brown v. Buzan (24 
 Ind. 197) ' that the legislature is ])eculiarly 
 under the control of the popular will. It is 
 hable to be changed at short intervals by 
 elections. Its errors, therefore, can be quickly 
 cured. The courts are more remote from the 
 people. If we, by following our doubts in 
 the absence of clear convictions, shall abridge 
 the just authority of the legislature, there is 
 no remedy for six years. Thus, to whatever 
 extent this coui't might err in denying the 
 rightful authority of the law-making power, 
 we \vould chain that authority for a long 
 period at our feet. It is better and safer, 
 therefore, that the judiciary, if err it must, 
 should not err in tliat direction. If either
 
 THE LAW OK r< )NSTiaCTI VE CONTEMPT. 49 
 
 dopartinent of (he ^^ovci nineiit may slig-htly 
 overstei) the limits of itsconstitutional power, 
 it slioiild be that one, whose official life would 
 soonest end. It has the least motives to usurp 
 power not given, and the people can sooner 
 relieve themselves of its mistakes. Herein 
 is a sufficient reason that the courts should 
 never sti'ike down a statute, unless its conflict 
 with the Constitution is clear. The judiciai'y 
 ought to accord to the legislatui"e as much 
 purity of purpose as it would claim fo!' itself, as 
 honest a desii*e to obey the Constitution, and 
 also a high capacity to judge of its mean- 
 ing. ' " This case has been quoted by the 
 Supreme Court many times since with ap- 
 proval, and as late as 189J:, in the Copeland 
 case, 126 ]Mo. 435. The language here is so 
 explicit and clear that nothing can be added. 
 The rule of construction of the powers of a 
 State legislature is the reverse of that applied 
 to Congress. The latter can exercise no 
 power except that which is delegated to it, 
 while a State legislature is clothed with all 
 legislative j)ower not denied to it in the State 
 and national constitutions. In England the 
 Parliament is said to be omnipotent in its 
 legislative capacity. It can dethrone and 
 even behead a king, and set up another foi'm 
 of government, as it did in 1640-50, or de- 
 throne the legitimate reionino- monarch and 
 clothe some one else with the executive 
 power, as it did in 1688-9. It can abolish 
 the courts, and reorganize the judiciai'y upon 
 any basis it sees proper, as was done in many
 
 50 THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 acts, especially in the Judiciary Act of 1873. 
 It even has judicial powers, and has often 
 exercised such ])owers in passing bills of 
 attainder and the like. It has absolute power 
 to make and unmake all laws of the kingdom. 
 The American Colonies claimed the same 
 power for their assemblies, as representatives 
 of their will, and if we appeal to the common 
 law for a definition of " the legislative 
 power," as it existed in 1820, we will find 
 much more latitude for our legislative depart- 
 ment than can be found for the judicial. 
 Blackstone, speaking of this power, says: 
 " The power and jurisdiction of Parliament, 
 says Sir Edward Coke, is so transcendent and 
 absolute, that it cannot be confined, eithei* 
 for causes or persons, within any bounds. 
 * * * It hath sovereign and uncontrolla- 
 ble authority in the making, confirming, en- 
 larging, restraining, abrogating, repealing, 
 reviving and expounding of laws, concerning 
 matters of all possible denominations, eccle- 
 siastical or temporal, civil, militai-y, maritime, 
 or criminal : this being the ])lace- where that 
 absolute despotic power, which must in all 
 governments reside somewhere, is intrusted 
 by the Constitution of these kingdoms." 
 But the legislative power, under State con- 
 stitutions, is not co-extensive with that of 
 Parliament, but is limited in several respects 
 by the State Constitutions and the I^ational 
 Constitution. But within these limitations, 
 the legislative power of a State legislature is 
 as unbounded as that of Parliament. Now
 
 THE LAW OF rONSTRUCTI VE COXTEMI'T. j1 
 
 let iiB see if there is any limitation of the 
 " legislative power " over the snbjeet of con- 
 tempt of court c(jntained in the Constitution, 
 eitiier in direct terms or by implication. Mr. 
 Justice Marshall, in his opinion, bases his 
 argument that the legislative power was so 
 limited, solely and alone upon the article of 
 the Constitution which is the same now as it 
 was in the Constitution of 1820, distributing 
 the powers of government among the three 
 departments of that government. That arti- 
 cle established the three co-ordinate branches, 
 the legislative, executive and judicial, upon 
 which it confei's " the powers of govern- 
 ment," '' each of which shall be confided to 
 a separate magistracy;" and no- person or 
 collection of persons, charged with the exer- 
 cise of powers properly belonging to one of 
 those departments^ shall exercise any power 
 properly belonging to either of the others, ex- 
 cej3t in the instances hereinafter expressly 
 directed or permitted." The italicized sen- 
 tence is the sole foundation upon which the 
 court leases its judgment in the Shepherd 
 case . 
 
 Now, in all candor, I ask what judicial 
 j)ower, which was confided to the courts, did 
 the legislature exercise in the enactment of 
 the contempt statute? To say that in that 
 enactment "judicial power" was exercised 
 by the legislatuie would be a perversion of the 
 meaning of that tei-m as construed among all 
 men. Webster defines ''judicial" thus: 
 " let. Pertaining or appropriate to courts or
 
 52 THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 to a jiKlg-e tliereof, as ' judicial power,' ' a 
 judicial miud.' 2d. Practiced or employed 
 in the adininisti-ation of justice, as ' a judicial 
 jjioceeding-.' 3d. Proceeding- from a court 
 of justice, a judicial determination or order of 
 i\ court, as ' a judicial sale.' " 
 
 The judicial power, as exercised in England 
 and the United States, and in all civilized 
 countiies, is that power which can be exer- 
 cised by courts only in a specific case with 
 named parties properly before it, according 
 to the forms of law, and when the points 
 })i'esented in such a specific case are disposed 
 of, the power, for further action, ceases. 
 The courts cannot, and never did act on an 
 abstract question, except some of the con- 
 stitutions of the Amei'ican States provide 
 for the submission of such questions by 
 the executive and legislative branches of 
 the government to the courts for their 
 opinions, and our Constitution of 1865 so 
 provided ; but we omitted that provision in the 
 Constitution of 1875, so that in our State the 
 courts are not clothed with the judicial power 
 to act, unless a specific party presents a spe- 
 cific point for judgment, according to the 
 forms prescribed by law. No one will pre- 
 tend that a pai'ty, not even the governor, or 
 legislature, or both combined, could call into 
 exercise the judicial power of a court by de- 
 manding an o|)inion on an abstract question. 
 To call into exercise such a power there nuist 
 be a concrete case before the court, and in 
 disposing of it the court exercises judgment 
 and discretion and renders judgment.
 
 THE LAW or CONSTRUCTIVI-: CONTKMI'T. 03 
 
 All the courts have i^one so far in liinitin*; 
 the exercise of judicial power that when they 
 dispose of the questions presented I)ythe rec- 
 ords in given cases, any further action or 
 opinion is universally regarded and treated 
 as ohitfir dictiuti^ that is, not judicial, and 
 as the personal expression of the judge, 
 and if the court acts in a ease not 
 properly before it according to the forms 
 of law, such act will be set aside, and in 
 many cases treated as absolutely void ah 
 Initio^ and not binding on the court in col- 
 lateral proceedings in regard to the same mat- 
 ter. But wo are not left to our own meaning 
 on this pro[)osition. Cooley (Con. Lim. 110) 
 on the subject of legislative and judicial power 
 says, "The legislative power we understand 
 to be the authority to make laws under the 
 constitution, and to alter and repeal them. 
 Laws, in the sense in which the word is here 
 employed, are rules of civil conduct, or stat- 
 utes which the legislature has prescribed, 
 and the difference between the de[)ai-tments 
 undoubtedly is that the legislative make.<, the 
 executive executes, and the judiciaty co^is^rwes 
 the law. And it is said that that which dis- 
 tinguishes a judicial from a legislative act is 
 that one is a determination of what the exist- 
 ing law is, in relation to some exist i fig t/n'ny 
 (dreadij done or happened, while the other is 
 a predetermination of what these laws shall be 
 for the regulation of future cases, falling 
 under its provisions. And in another case it is 
 said, ' The legislative power applies only to
 
 54 THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 the making of laws.' On the other hand to 
 adjudicate upon and protect the rights of 
 individual citi?;ens, and to that end to construe 
 and apply the laws is the peculiar province of 
 the judicial department. The court decides 
 upon the legality of claims and conduct, and 
 the legislative makes rules upon which, in 
 connection with the constitution, those deci- 
 sions should be founded. It is the province of 
 the judges to determine what is the law upon 
 existing cases. In fine, the law is applied by 
 the one and made by the other. To do the 
 first, therefore to compare the claims of par- 
 ties with the law of the land before established 
 is, in its nature, a judicial act; but to do the 
 last — to pass neiv rules for the regulation of 
 new controversies is, in its nature, a legisla- 
 tive act." 
 
 But the legislature might violate this pro- 
 vision of the constitution in another way. It 
 might have undertaken to confer*' the judicial 
 power" on some officer other than the courts. 
 If the legislature had provided that the 
 courts should not decide contempt cases at all, 
 or only a certain class of them, and had con- 
 ferred such power on the clerk or sheriff 
 of the court, or on the governor or other ex- 
 ecutive officer of the State, such provision 
 would have been utterly void as authorizing 
 the exercise by one department of a power 
 that properly belongs to another. But no 
 such thing was attempted. The vei'y first 
 sentence of the contempt statute declares that 
 " Every court of record shall have power to
 
 TllK LAW OK f'OXSTKUCTIVE CONTKMI'T. 55 
 
 punish, as for criminal contcMnpt, pcisons 
 guilty of tlie folhnvin*;- acts, and no otlicr." 
 Is that not unquestionably a rule of civil con- 
 duct pi'cscril)('d hy tiic supreme powei- in the 
 State? 
 
 ]iut it is claimed the lef^'islature had no right 
 to inseit in tliat statute the woi-ds " no other," 
 and thus deprive the courts of a part of their 
 former jurisdiction. But it cannot be main- 
 tained that in inserting those words it exer- 
 cised the judicial power because the act lacked 
 all the elements of a judicial act, and of course 
 if it had no power to so insert them the de- 
 privation of power must be found in some 
 other provision of the Constitution, l^o other 
 has ever been pointed out, nor can it be. But 
 these restrictive words, taken in connection 
 with the whol<^ contempt statute, and other 
 statutes, do not deprive the courts of any 
 judicial power or jurisdiction whatever. 
 When the courts try a case of libel u[)on 
 the court upon an information or indictment, 
 or at the civil suit of the judge or judges f«)r 
 damages, and a jury is called in to aid in the 
 trial, the courts exercise the "judicial power" 
 as fully as if they acted without a jury, and 
 those remedies are left to the courts to the 
 fullest extent possible. Hence the only thing 
 that can besaid about the classes of contem[)t, 
 not einbiaced within the statute, is, that the 
 act simply takes away from the courts one 
 method of pi-ocedure, but leaves two other 
 methods — a criminal j)rosecution in the 
 ordinary course, and a civil action fo!" dam-
 
 56 THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 ages, by which they are left free to exercise 
 the "judicial power" to protect society 
 against, and redress private injuries for libel- 
 ous publications. So I conclude that the 
 legislature, in the enactment of the contempt 
 statute, did not itself exercise the " judicial 
 power," whi(;Ji properly belongs to the courts, 
 nor did it deprive the courts of any of its 
 judicial power, and especially did not confer 
 nor attempt to confer judicial power on any 
 person or collection of persons other than the 
 courts. 
 
 There is another view that may be taken 
 of this question, and that is the common law, 
 which is made the basis by the court, upon 
 which the judgment in the Shepherd case 
 rests, was not a part of our birthright, but is 
 here, and is kept here only by statutory enact- 
 ment. In the act of the Territorial legisla- 
 ture of 1816, introducing the common law, 
 and which was in force when the Constitution 
 of 1820 was adopted, it was specifically pro- 
 vided that law should prevail only until the 
 same was modified or repealed by the legisla- 
 ture. In all the revisions of the statutes since 
 1820 to this time, the statute introducing the 
 common law introduced no rule of that law 
 that is repugnant to or inconsistent with the 
 statute laws in force for the time being. 
 That provision gave the legislature a continu- 
 ing power to change the common law at will, 
 which has frequently been done, which power 
 the Supreme Court, in a long line of decisions, 
 has uniformly recognized and upheld. It is
 
 THK LAW OF CONSTRUCTIVE CONTEMIT. 57 
 
 chiiinc'd now, however, that the legishiture 
 had no power in 1835, nor has it the power at 
 this time to change the common law of con- 
 tempt as laid down by Blackstone a hnndred 
 and fifty years ago. According to that 
 theory, the State of Missouri is in as bad a 
 predicament as Sinbad the Sailor with the Old 
 Man of the Sea on his back. The Territorial 
 legislature in 1816, and all the legislatures in 
 the State since, in inti'oducing that hiw, re- 
 served the right to repeal or modify it at will, 
 and besides that, the people in the Consti- 
 tution of 1820 declared that: " All laws now 
 in foicv in the tei-ritory of Missouri, which are 
 not repugnant to this Constitution, shall re- 
 main in force until they expire by theii' 
 own limitations, or be altered or repealed 
 by the General Assembly." Here the Gen- 
 eral Assembly is given specific authority 
 to alter or modify all laws that were in 
 force at the time the Constitution was 
 adopted, and it seems plain to me the leg- 
 islature, in enacting the contempt statute, 
 exercised the power given to it by the Consti- 
 tution, and the power it had reserved the right 
 to exercise. On this point the Supreme Coui't 
 in the Shepherd case seems to occupy an illog- 
 ical position. The common law rule of con- 
 tempt for a libel upon the court is repaynant 
 to a statute of the State legislature, and yet that 
 rule of the common law is invoked by the court 
 to prove that this statute is repugnant to the 
 Const it2ition. In other words it is held that 
 the contempt statute is unconstitutional not
 
 58 THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 because it contravenes any specific provision 
 of the Constitution, but because it contra- 
 venes a rule of the common law, which rule, 
 it is universally conceded, could be made a 
 rule of civil conduct in Missouri by the Gen- 
 ei-al Assembly, and by that alone, and could, 
 at any time be abrogated b}^ the same ])ower. 
 
 In I8i5, 1855, and 1865 the contem})t act 
 was re-enacted, and thus the law-making 
 power claimed and exercised the power to en- 
 act that statute for a period of forty years, 
 up to the adoption of the Constitution of 
 1875, and this construction by the legislature 
 of its own powers must be considered by the 
 courts, as will be shown more fully hereafter. 
 
 If the legislature had no power to prescribe 
 a form of ])roceeding in the case of contempt, 
 and that rule should be applied generall}^ 
 two thirds of our statutes would be held un- 
 constitutional. In 1820 the common lawsys- 
 tem of pleading and practice was in force, 
 and the judge could orally comment to the 
 jury on the facts as well as the law of the 
 case, and the courts were confined to certain 
 forms of action ; but in 1849 by a sweeping 
 act, the General Assembly abolished all com- 
 mon law foi'ms, and prescribed a code of prac- 
 tice and pleading, and required the courts to 
 instruct juries in writing alone; andin follow- 
 ing this limitation of the judicial powei", our 
 Supreme Court became so technical in en- 
 forcing it, that the J^isi Prius judges solilo- 
 quized thus: " To talk or not to talk in the 
 presence of a jury — that is the question;
 
 Tin: LAW OF construc;tivk contkmi't. ;j9 
 
 wlu'tliur it is l^ettcr to say iiotliiii<^- <•!• to 
 talk gives us pause," aud only a sliorl 
 time ag-o the Supreme Court reversed a case 
 because the trial judge said too uiuch in the 
 presence of the jury, and this year the ]ow(!r 
 courts have been I'evei'sed in numerous cases 
 on the ground that the information in these 
 cases had not been vei'ified by athdavit, not 
 as I'equiiefl by the Constitution, hut as re- 
 quired hij a stdtate, by which men, chni-ged 
 with grave crimes, have bei-n granted new 
 trials, upon a technical point required hij tlie 
 statute, which could not, and did not, affect 
 the merits on the tiial of the cases in the 
 slightest degi'ee. 
 
 The legislature has not only changed the 
 civil code of [)ractice, but it has, since 1820, 
 invaded the domain of the criminal law, and 
 made many I'adical changes in the administra- 
 tion of that law. 
 
 It may be asked how it is that the legisla- 
 ture has the power to take away from the 
 courts the judicial power they once exercised 
 in commenting orally to juries on the facts of 
 cases, and can change the forms in which in- 
 structions to juries on questions of law shall 
 be given, and to abolish the old forms of civil 
 action and of criminal proceedings, and enact 
 an entii-ely new code, and not have the jiower 
 to change the })ractice in contempt cases, 
 especially when that change is to prevent the 
 courts from exercising a jurisdiction in cases 
 where they may be supposed to have a i)ei'- 
 sonal interest, and is intended to be in support
 
 60 THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 of the freedom of speech and the press, and of 
 the right of trial by jury in a chiss of cases that 
 it required a century of the fiercest contest 
 by the people to establish? Again the legis- 
 lature, after the adoption of the Constitution 
 of 1820, changed the rules of evidence, and 
 the competency of witnesses, created new 
 causes of action, new crimes, took away some 
 old actions, and declared some acts innocent 
 that were formerly criminal, and changed the 
 rules of property and of contracts, especially 
 in regard to married women. These changes 
 have stricken the shackles from our mothers, 
 wives and daughters, so that to-day they are 
 as free to own property and to contract in 
 regard to it as men are. The legislative de- 
 partment of the government has had a free 
 hand, and its decrees therein have been upheld 
 in these respects. Can that power make these 
 changes in these departments of human rights 
 and activities and not possess the power to pro- 
 vide safeguards for one of the fundamental 
 pi'inciples of free government — the freedom 
 of the press, and the right of trial by jury in 
 case that freedom is abused, and to prevent 
 the exercise of a power the extent of which is 
 measui-ed alone by the discretion of the party 
 exercising it, both as to the scope of the juris- 
 diction and the extent of the punishment to 
 be inflicted? There can be but one answer to 
 this question.
 
 THE LAW OF CONSTKUCTIVE CONTEMIT. 61 
 III. 
 
 The judicial poioer conferred on the courts by the Constitu- 
 tion of 1S75 does not authorize them to exercise juris- 
 diction to jninish, by thep''ocess of attachment for con- 
 tempt, any one for an alleyed libel upon the courts, their 
 judges, oncers, or the parties in a case. 
 
 The aro;-uments hereiiibefoi-e [)resented to 
 show that the i)owei'to punish for libel upon 
 the courts under the Constitution of 1820 in 
 -the absence of lef»islation on the subject ai)- 
 ply with equal force to this ]iai-ticular power 
 under the Constitution of 1875, and this point 
 will not be further elaborated here. 
 
 IV. 
 
 The Const itxUion of 1875 confers power on the General 
 Assembly of this State to enact the Contempt Statute. 
 
 All the arguments hereinbefore made in 
 favor of the existence of this power in the 
 legislative department under the Constitution 
 of 1820 apply with equal force in favor of the 
 same power under the Constitution of 1875, 
 and are here invoked, and the additional rea- 
 sons and arguments to prove the existence of 
 that powei- under the Constitution of 1875 
 will now be presented. 
 
 If ever a body of men assembled with a full 
 and fixed pui'pose to eradicate from the body 
 politic all the evils that had, at that time, 
 been found to have crept intoit, that body was 
 the Constitutional Convention of 1875. There 
 had been for ten years, prior to the assembling 
 of that Convention, a general discussion of 
 constitutional law, by the people, the law3'ers, 
 and the courts in the United States, that hav-
 
 1)2 THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 ing been the period of the reconstruction of 
 the governments of the seceding States, and 
 especially was that discussion in Missouri 
 during that same period, not only general, 
 but heated, and oftentimes bitter. The wis- 
 dom of ages on constitutional principles was 
 again examined in all its bearings and phases, 
 and the Convention of 1875, enlightened by 
 this widespread agitation, met to restate the 
 fundamental principles by which the State 
 government, in all its departments, should be 
 restrained and guided. Especially was this 
 Convention deeply imbued with the idea that 
 more limitations should be imposed on the 
 three co-ordinate branches of the government 
 than had theretofore existed, in order to con- 
 form to the new and awakened ' opinions of 
 that period. That the members of that con- 
 vention must be presumed to have been famil- 
 iar with the history and evolution of the fun- 
 damental principles of liberty and of govern- 
 ment, and especially with the constitutional 
 history of Missouri, and of the exercise of 
 the legislative and judicial powers since 1820, 
 will be conceded by all. 
 
 The Su])reme Court in Ry. Co. v. Brick 
 Co., 85 Mo. 307, speaking on this subject 
 said, " It would be doing violence to all known 
 rules of interpretation to assume that those 
 who framed, and those who by their votes 
 adopted our Constitution (of 1875), were 
 actuated by no intelligent purpose in that 
 behalf. On the contrary it must be assumed 
 that thej^ were familiar with the vicissitudes
 
 TIIK LAW OF CONSTRUCTIVK COXTK.MI'T. G3 
 
 incident toc'ondeiniiation procceding-.s, and with 
 tlie statutory [)rovisi()n.s rcdative thereto." If 
 they must be presumed to be familial- with the 
 practice in pi'oceedingH that affected i)rivate 
 rights only, how much .sti'onger must be the 
 presumption that they were familiar with the 
 constitutional, legislative and judicial history 
 of the evolution of the fundamental principles 
 of free government. 
 
 Under these conditions, the Convention of 
 1875 went to work. It distributed the powers 
 of government among the departments, and 
 declared the law of fi'ee speech, a free 
 press and libel in the identical language 
 used on the same subject in the Constitution 
 of 1820. The same general language is also 
 used in the grant of legislative power as 
 was ill the previous Constitution, but the spe- 
 cific limitations upon that power are much 
 more numerous and important than had pi'e- 
 viously existed ; but nowhere among them is 
 to be found any limitation of the legislative 
 powei- over the subject of contempt, and the 
 presumption is that the framers of the 
 Constitution intended that ]JOwer should 
 remain in the future as it had existed 
 in the past. The legislature, foi'ty years 
 before 1875, enacted a statute, restricting 
 the jurisdiction of the courts, in contempt 
 proceedings, to certain cases, and that statute 
 was placed under the chapter of the statutes 
 defining their judicial powers and duties. 
 This statute was re-enacted in 181:5, and went 
 into the revision of that year, under the same
 
 (i4 THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 head. Then came the construction of this 
 statute by the Supreme Court fn the Harrison 
 case in 1847, and with this construction, the 
 same statute went into the revisions of 1855 and 
 1865 under the same head ; and how can the 
 conclusion be avoided that when the convention 
 granted the legislative and judicial powers in 
 the same general terms'as in the Constitutions 
 of 1820 and 1865, with certain specified limi- 
 tations, it intended to confer these powers, 
 within these limitations, as they had been ex- 
 ercised by the legislative and judicial depart- 
 ments and meant to use the woi'ds " the 
 judicial power" as they had been defined and 
 limited by legislative enactment, and to use the 
 words "the legislative power" in the sense 
 that the General Assembly had construed and 
 exercised it in the past? The legislative 
 definition of the judicial power over the sub- 
 ject of contempt had existed for forty years, 
 and over the punishment to be inflicted in 
 such cases for fifty years, and during all that 
 long period, the people, Bench, and Bar had 
 acquiesced in that definition and limitation, 
 and it seems obvious that if the Convention 
 had intended to reject that definition and lim- 
 itation, it would have said so in plain language, 
 and would have inserted in the Constitution a 
 limitation of the legislative power over con- 
 tempt proceedings, but it did nothing of that 
 kind, but used the same general language in 
 the grant of legislative and judicial ])ower that 
 was found in the Constitution of 1820. 
 
 But, again, there is another reason why it
 
 TlIK LAW OF CONSTRUCTIVK fONT?:MI*T. 05 
 
 must be assmned that tlic trainers of tlieCou- 
 stitiitioii of LS75 did not intend by the grant 
 of tlu' judicial |)ower to tlie couits, to deprive 
 the legislature of power over contcinptfs, and 
 that is, the new courts created 1)}' that Con- 
 stitution. The court in the Shepherd case 
 concedes that it is only a constitutional 
 court that is not subject to legislative con- 
 trol in contemi)t proceedings. By the Con- 
 stitution of 1820 the only courts i-ecognized 
 were the Supreme Coui't, the Chancellor, 
 and Circuit Coui'ts, so that only these courts, 
 according to the decision in the Shepherd 
 case, ai'e beyond the conti'ol of the legis- 
 lative power, but by the Constitution of 1875, 
 " Pi'obate Courts, County Courts, and Muni- 
 cipal Corporation Courts" are recognized, so 
 that if the legislature has no control over 
 the practice in contempt cases, any citizen 
 may be attached by a probate judge, a county 
 coui't, or a police judge and tried and fined, or 
 imprisoned and this without limit (except the 
 discretion of the court), without the interven- 
 tion of a jury, for any publication that such 
 court or judge might deem contempt; and I 
 submit that it cannot be conceived that the 
 frainers of the Constitution intended to clothe 
 any of the courts, especiall}' these subordi- 
 nate courts with such an unrestrained and 
 unrestrainable power. 
 
 But again the Constitution of 1875 pro- 
 vides that "All laws in force at the adoption 
 of this Constitution, not inconsistent there- 
 with, shall remain in force until altered or re-
 
 66 THE LAW OF CONSTKUCTIYE CONTEMPT. 
 
 pcalcd by the General Assembly. The pro- 
 visions of all statntes, which are inconsistent 
 with this Constitution, shall cease upon its 
 a(lo})tion." The General Assembl}^, when it 
 came to revise the laws in 1879, was neces- 
 sarily required to examine all the laws, to 
 determine whether they were repugnant to 
 the Constitution, ado])ted since the last re- 
 vision, and it deliberately put the contempt 
 statute in the revision of that year, without 
 the slightest change, and continueditin force 
 so far as it could do so. Hence we have the 
 opinion of the legislative and executive de- 
 partments, with Governor Phelps as governor 
 in 1879, that the statute in question is Con- 
 stitutional. Then in 1883 the Crenshaw case 
 was decided by the Supreme Court, and 
 afterw^ards with this indorsement of the con- 
 tempt statute, b}' all three of the departments 
 of the State government, by the legislative 
 and executive in 1879, and by the judicial in 
 the Crenshaw case in 1883, that statute went 
 into the revisions of 1889 and 1899, thus 
 getting the indorsement, as to its validity of 
 two more legislatures, and two more governors. 
 This long continued construction of, and 
 acquiescence in the exercise of this legislative 
 power by the people, the lawyers, judges, 
 governors and legislatures, are reasons enough 
 why this power ought to be upheld now, even 
 if it were originally doubtful. This is the 
 rule laid down by Sutherland (Stat. Con., 
 Sec. 397) : "A contemporaneous construc- 
 tion of a statute is that which it receives soon 
 after its enactment. This, after the lapse of
 
 TIIK LAW OF COXSTRLCTIVK CONTK.M IT. ti7 
 
 time, without change of that construction Ijy 
 legislative or judicial decision, has been de- 
 clared to be, generally, th(? best construction. 
 It gives the sense of the community as to the 
 terms made use of by the legislature." Hence 
 in 1003, when the Shej^herd case was up for 
 decision, the Supreme Court found a statute, 
 denying jurisdiction to it in the subject-matter 
 of that case, which had been in force for sixty- 
 eight years, and another denying jurisdiction 
 in such a case to impose a gi'eater fine than 
 one hundred dollars, which had been in force 
 for seventy-eight years, and dui'ing those long 
 periods thei-e had been universal acquiescence 
 in these statutes by the people, by seven Gen- 
 eral Assemblies, and seven governors, by two 
 Constitutional Conventions, and three times 
 by the Supreme Court, in the Harrison case in 
 18i7, in the Rose case in 186G, and in the 
 Crenshaw case in 1883. Notwithstanding all 
 this, that ancient statute was set aside in order 
 for the court to acquire jurisdiction in the 
 Shepherd case, not for the vindication, but 
 the depi'ivation of a Constitutional right of a 
 citizen — the right of trial by jury, which has 
 been deemed by the Anglo-Saxon people for 
 centuries as the great bulwark of liberty. 
 
 Y. 
 
 The Contempt Statute is not void ^cpon the alleged ground 
 that it deprives the courts of an essential attribute with- 
 out ivhich they cannot exist. 
 
 THE LAW OF NECESSITY. 
 
 The courts base their power to punish for 
 contempt, chielly upon the law of necessity,
 
 08 TJIE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 which is the hiw of self-defense. To some 
 extent that may be true. That the courts 
 should have the powei*, by summary process, 
 at the time to keep the peace within their 
 own precincts ; to protect themselves and the 
 parties concerned, in the business before them, 
 from insult and interference, and enforce their 
 orders and judgments, is too axiomatic to 
 admit of proof b}' argument; but acts or 
 words, done or said, or published away from 
 the courts, and not in their presence, stand 
 upon different grounds entirely, because the 
 law of necessity does not apply in these, there 
 being other more appropriate remedies for any 
 wrong growing out of them. 
 
 It is submitted that the law of necessity 
 cannot be invoked in support of the power of 
 the courts to try and punish for contempt any 
 one for the publication of a libel upon them or 
 for other acts not doneiji their presence. An 
 abstract theory, though in appearance it may 
 be most plausible and beautiful, is sometimes 
 flatly contradicted by experience and the facts 
 of history, and that is the case with the theory 
 upon which this power is made to rest by its 
 advocates. It is asserted that this power is 
 an essential attribute of all courts, and im- 
 mediately this is qualified by the statement 
 that it is an essential attribute of constitutional 
 courts only — that a statutor}^ court may be 
 deprived of this essential attribute, and yet 
 continue to exist as a court. This is the rule 
 generally applied by the courts. This was 
 done by the Supreme Court of the United
 
 THE LAW OF CONSTKUC 1 1 \ I. (ONTKMIT. <)i> 
 
 Status ill Ex Parte Robinson, 19 AVail. 505 ; 
 in tlie Fivvv case, 24 AV. Ya. 416; in tiie 
 Shepherd case, and many others. So that it 
 seems that the law of necessity is the support 
 of some courts, and some courts have to stand 
 without that law. The reason for such a dis- 
 tinction is not apparent to the writer. To my 
 mind, that so-called law of necessity is no law 
 of necessity at all, for, if it were, no court 
 could exist without it. 
 
 But this is not all. This theory of the law 
 of necessity, as apjjlicable to the punishment 
 for contempt for newspaper publications, is 
 flatly conti'adicted by the facts of history. 
 The Supreme Court of the United States has 
 never exercised, or attempted to exercise such 
 a ])ower, though it has, at times, for one 
 hundred years or more, been vilified, abused 
 and libeled in an outrageous manner. It has 
 been libelously criticised by the public press 
 for its decisions in the ^N^ational 13ank cases, 
 the Dartmouth College case, the Dred Scott 
 case, the Reconstruction cases, the Legal 
 Tender cases, and we all remember the vitu- 
 perative and libelous attacks, made by the 
 press and many public speakers, upon that 
 hisfh tribunal for its decisions in the Income 
 Tax and Insular cases ; and yet the court re- 
 mained silent and passive ; but it still exists in 
 all its vigor. That court, in 1873, in E.c Parte 
 Robinson, decided that under the Act of 
 Congress of March 2, 1831, the courts, in- 
 ferior to the Supreme Court of the United 
 States, have no jurisdiction in a contempt
 
 70 THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 proceediiio' for acts not committed in their 
 presence ; and yet there are no courts of the 
 States of this Union that stand hi<>-her or are 
 more respected than the United States Courts 
 of Appeals, the United States Circuit Courts, 
 and the United States District Courts. The 
 members of the Supreme Court often sit in 
 some of these, and aid in the administration 
 of tile law in the trial of causes. These courts 
 are absolutely, so far as their power to pun- 
 ish as for a contempt a newspaper publication, 
 at the mercy of the slanderers and libelers of 
 this country, which our Supreme Court stands 
 so much in dread of. And yet those courts 
 continue to exist as courts. And our State 
 Supreme Court, the Courts of Appeals, and 
 the Circuit Courts never exercised this extra- 
 ordinary prerog-ative prior to 1903, and yet 
 they continued to exist. The same may be 
 said of ninety-nine per cent of all tlie courts 
 in our country. Lords Erskine and Campbell 
 did not think this power essential to a court. 
 Speaking upon this very point, the Su- 
 preme Court of Illinois, in the Storey case, 
 supra, quoting from a former decision of the 
 same court, said : " It does not seem neces- 
 sary for the protection of courts in the exer- 
 cise of their judicial ])ower, that this one (con- 
 tempt for libelous publication), so liable to 
 abuse should also be conceded to them. It 
 may be so frequently exercised as to destroy 
 that moral influence, which is their best pos- 
 session, until finally the administration of jus- 
 tice is brought into disrepute. Respect for
 
 TIIK LAW OF rOXSTRUCTIVE COXTKMIT. 71 
 
 courts cannot he compelled. It is the volun- 
 tary tril)ute of the pul.'lic to worth, vii'tue and 
 intelli<;uncc, and while they are found upon 
 the ju(Jfi,inent seat so long, and no longer, will 
 they I'etain the public confidence. If a judge 
 be libeled by the public press, he and his as- 
 sailant should be placed on equal grounds, 
 and their comirion arbiter should be a jury of 
 the county." 
 
 The Supreme Court of Wisconsin, speaking 
 on the same subject, in State exrel. v. Court, 
 44 L. K. A. 554, said, " Is it necessary that a 
 court should possess this power? We feel 
 bound to hold that, considering the rights of 
 the citizen just referred to, no such power as 
 this is necessary for the due administration 
 of justice. It may be fully admitted that 
 under the common law as administered in En- 
 gland, the mere writing contemptuously of a 
 superior court of justice has been declared a 
 constructive contempt, 4 Bl. Com. 285. We, 
 however, adopted no part of the common law 
 which was inconsistent with our Constitution 
 (Cons. Wis. Schedule, Sec. 131), and it seems 
 clear to us that so extreme a powei" is incon- 
 sistent with and would materially impair the 
 Constitutional right of free speech and free 
 print." 
 
 To the same effect is the opinion of the 
 court in ^lississippi, in Ex Parte Ilickey, 4 
 Smedes & M. 751, and it has been the firm 
 conviction of the people of this country for 
 over a hundred yeai's that this power is not 
 necessary, but that it is a power, so arbitrary
 
 72 THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 and SO liable to abuse, that it ought not to 
 be intrusted to the court, but that cases, in- 
 volving the abuse of the freedom of speech 
 and of the press, ought to be tried by an im- 
 partial jury before courts that have and can 
 have no personal interest in the result. Hence 
 this power in this respect, not being based on 
 the law of necessity, can be taken away from, 
 or not conferred on the courts at the will of 
 the legislature. Whether the power to pro- 
 tect themselves from insult, and keep the 
 peace in their own precincts, and enforce their 
 own judgments can be taken away from the 
 courts, or given to some other judicial tribu- 
 nal, has not arisen in this country yet, for no 
 legislature has ever up to this time attempted 
 to go that far, and until such an attempt is 
 made, so improbable a contingency need not 
 enter into the discussion. 
 
 Our contempt statute not only recognizes, 
 but, in terms, confers the power on the courts 
 to punish for contempts committed in their 
 presence, and for refusing to obey the pro- 
 cess or orders of the court, and beyond these 
 the law of necessity, if it exist at all, does not 
 extend. 
 
 VI. 
 
 The adjudged cases do not support the judgment in 
 the Shepherd case. 
 
 I might very well leave the question upon 
 these points, already made, believing that it 
 has been conclusively shown that the power, 
 claimed by the court in this case, does not 
 exist in Missouri, no matter what the rule
 
 THE LAW OF CONSTKrCTIVE CONTE.Ml'T. 73 
 
 may be in othei* jurisdictions, but I propose 
 to <i^ive a brief review of the cases on this 
 question. Out of the forty-five States, tiie 
 courts in only two, Arkansas and West Vir- 
 ginia, have set aside statutes in order to ob- 
 tain jui'isdiction to punish as for a contempt, 
 a hbelous newspaper publication. The Ar- 
 kansas decision was in 1855, State v. Morrill, 
 16 Arkansas, 38-1, and the West Virginia de- 
 cision (State v. Frew, 24 W. Va. 41(3) in 
 1884; and two other courts, Georgia, in Brad- 
 ley V. State, 50 L. R. A. 691, and Vii'ginia, 
 in Com. V. Carter, 45 L. R. A. 310, have 
 held that the courts' inherent power to punish 
 contempts cannot be limited by the legisla- 
 tive power, but these cases did not involve 
 newspaper publications. In the Carter case. 
 Carter, an attorney of the court, had induced 
 a witness, by falsehood, to remain away from 
 court, in oi'der that he might get a continu- 
 ance, and in order to punish Carter, the court 
 held an act of the Virginia General Assembly, 
 passed in 1897, giving the accused, in an in- 
 direct contempt case, the right of trial by jui-y, 
 unconstitutional. In the Bradley case, the 
 Supreme Court of Geoi'gia not only set aside 
 a statute, but the Constitution also, in order 
 to get jurisdiction to punish Bradley for con- 
 temi)t in proposing to corrupt a jury in a 
 pending case. In these last two cases the 
 courts exercised the power to punish for a 
 contempt, in defiance of statutes, to prevent 
 corrupt practices in cases pending before the 
 courts, and in these cases the courts or the
 
 74 THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 judges had no personal interest, and the acts 
 of contempt were of such a nature, when 
 proved, that there could be no defense or 
 excuse on the part of the accused for them. 
 In the Frew case, the accused set about de- 
 lil^erately, either to influence the Supreme 
 Court of West Virginia in the disposition of 
 a cause pending before that court, in which 
 he was personally interested, or else to bring 
 the court into contempt for not deciding in 
 his favor, and the publications wei'e continued 
 for a long time, and repeated, in order to 
 carry out his purposes. This leaves the Mor- 
 rill case as the only one exactly like the Shep- 
 herd case, except that in the former, the case, 
 for the criticism of which he was attached, 
 had been finally disposed of, while in the 
 Shepherd case a motion for rehearing in 
 Oglesby v. Kailroad Company was still pend- 
 ing when Shepherd published the objection- 
 able article. But Mr. Shepherd alleged that 
 he did not know this, but had supposed the 
 case was finally disposed of when it was re- 
 versed without being remanded. The facts 
 in the Frew, Bradley and Carter cases are 
 given not for the purpose of justifying the 
 assumption of jurisdiction by the courts of 
 Viiginia, West Virginia and Georgia in the 
 cases named, for if they had no jurisdiction 
 to act, it makes no difference how aggra- 
 vated the cases were. The courts in these 
 four States have gone farther than the courts 
 in any other State, and they stand alone in 
 holding contempt statutes, containing nega-
 
 THK LAW OF CONSTRUCTIN i: ( < J.M KM ri . < .> 
 
 tive, or restrictive woi'ds unconstitutional in 
 order to exercise this extraordinary i)o\ver. 
 In these cases the (juestion of the unconsti- 
 tutionahty of the statute was squarely pre- 
 sented l)y the record, and decided by the 
 coui'ts. 
 
 But our couit in the Shei)herd case went 
 farthei- than these courts. Our court says : 
 "The law is well settled, both 271 Kngland 
 and America that the leg-islatuie has no power 
 to tale aivaij^ ahridye, impair, U)iilt or reg- 
 ulate, the power of courts of record to punish 
 for contempt." This is a most sweeping 
 generalization of this rule, and it cuts up, by 
 the roots, our whole contempt statute, and 
 leaves the coui'ts free to determine, at their 
 discretion, theii" own jurisdiction, and tlie ex- 
 tent of the punishment they may inllict in 
 both direct and constructive contempts. 
 When the court says this rule is well settled 
 in England, it must be assumed that it meant 
 the English authorities settled it so far as an 
 American legislature is concerned ; i)ecause it 
 is inconceivable that any court would assert 
 that the English legislature, the Parliament, 
 has no such power. No English jui'ist ever 
 asserted an}' such proposition. Nor do any 
 of the American authorities, cited by the 
 court for this rule, sustain the broad propo- 
 sition laid down by the court in its entirety. 
 The courts of Arkansas, West Virginia, Vir- 
 ginia and Georgia, in the cases cited, while 
 denying the power of the legislature to take 
 away from the courts their inherent and es-
 
 76 THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 se7it{ al attvWmtcs, concede that the legislature 
 may reyalate the exercise of the power to 
 punish for contempt, and in the other cases 
 cited by the court from the reports of Ken- 
 tuck}^, Connecticut, Illinois, Indiana, Cali- 
 fornia, Colorado, Michigan, Nebraska and 
 Ohio, the question of this legislative power 
 was not involved, for in all of them the courts 
 decided that the legislatures, in those States, 
 had not attempted to restrict, by negative 
 words, the power of the courts in the punish- 
 ment of contempt, except possibly as to the 
 extent of the punishment, that might be 
 inflicted, and in this respect they sustained 
 the statutes. It is true the courts in some 
 of those cases took excursions into fields 
 outside of the record, and in some of them 
 uttered dicta of an extreme nature about the 
 inherent and essential powers of courts in 
 general, but none of them went so far, in 
 these extra-judicial comments, as our court 
 has in the extract above quoted, and in many 
 of these the power of the legislature to limit 
 the jurisdiction of courts in contempt cases, 
 and to prescribe rules of practice therein, was 
 distinctly sustained (see page 78, post). 
 
 The courts speak of their inherent powers, 
 apparently implying that aside from the pro- 
 visions of the constitutions or statutes creat- 
 ing them, they possess some powers derived 
 in some other way and from some other 
 source. This is misleading. The American 
 courts, created by the constitutions of the 
 several States, have no power or jurisdiction
 
 TIIK LAW OK CONSTKUrTIVK rONTK.MI'T. 77 
 
 excfpi .^uch as is confided to them hij suc/t con- 
 stitutions or statutes. The courts are uni- 
 formly clothed with the judicial power in sub- 
 stantially the sauK' lan^ua^e as that used in the 
 Missouri constitution and they must look to 
 these words alone for their entire jurisdiction. 
 Outside of this grant, couched in this lan- 
 guage, they have no power to go. If the 
 powei- to punish for all classes of contempts is 
 included in these words, the courts can exer- 
 cise such power, otherwise not. So it is not 
 strictly coi-rect to say that the courts have 
 inherent powers ; they have no poweis, except 
 such as are granted by the sovereignty creat- 
 ing them. 
 
 The judicial power confided to the courts 
 does not remain the same for all time. It 
 may be enlarged or diminished by the law- 
 making power as the exigencies of govern- 
 ment and administration may demand. The 
 only limitation in America, upon the legisla- 
 tive power in the grant of the judicial j)o\ver 
 to the courts, is that this power, whatever it 
 be at any given time, must be exercised by 
 the courts and cannot be conferred on either 
 of the other departments of government. If 
 the legislatures of our States have no power 
 to change and regulate the jurisdiction of the 
 courts and no power to define the judicial 
 power that shall be exercised by them, then, 
 as has been shown above, progress in govern- 
 ment and administration is impossible. The 
 judicial power, confided to the courts, would, 
 on such assumption, have to remain as it ex-
 
 78 THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 isted at the time it is conferred until it is 
 cliangedbya constitutional amendment though 
 the forms of procedure and the rules of per- 
 sonal and property rights may have become en- 
 tirely inconsistent with the conceptions of right 
 and wrong in society. Such a theory is not 
 sustained by sound reason nor by experience. 
 In all the States from the beginning the legis- 
 latures have, by statutes, inaugurated law 
 reforms, not only by changing the rules of 
 pleading and practice in the courts but by 
 introducing new laws creating new rights, 
 and modifying old ones, thus changing the 
 judicial power that thecourts exercise, and the 
 courts themselves with the single exception 
 of contempt statutes in a few States, have 
 cordially sanctioned these reforms and often- 
 times have highly recommended them as being 
 in line with the ideas of advancing civilization. 
 Why any of the courts should single out the 
 power to punish for contempts, which all the 
 sages of the law concede to be an arbitrary 
 and despotic power, as being so sacred that 
 the people, through their Greneral Assemblies, 
 have no right to modify or regulate its exer- 
 cise, no matter what the exigencies of the 
 times may require, no reasonable man can 
 conceive. 
 
 Two of the cases cited by the court in the 
 Shepherd case are Res v. Oswald, and Res v. 
 Passmore, which gave rise to the impeach- 
 ment proceedings against Chief Justices Mc- 
 Kean and Shippen and finally to the enactment 
 of the statute of Pennsylvania, prohibiting the
 
 TllK LAW OF CONSTRUCTIVE CONTEMI'T. 71> 
 
 exercise of jurisdiction to [)iinish for contempt 
 for a newspaper publication, which cases have 
 not been followed in that State foi-one bundled 
 years. Those cuses were decided befoi'c tiie leg- 
 islaturepassed any contempt statute, and hence, 
 the courts could not have [)roperl3' passed on 
 this question. At that time the court undoubt- 
 edly had the power, in such cases, to punish 
 for any common law contempt. Another case 
 cited by the court in support of its contention 
 is Ex Parte Robinson, 19 Wall. 505. That 
 case arose in a district court of the United 
 States, in 1873. The respondent, a law3'er of 
 the court, had caused a witness to evade the 
 service of pi-ocess on him for which he was 
 attached as foi- a contemj^t and disbarred. 
 The matter being brought before the Supieme 
 Court of the United States, that court after 
 having referred to the act of Congress of 
 March 2, 18ol, said, "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 he a matter of 
 doubt. But that it applies to the Circuit and 
 District courts, there can be no({uestion, they 
 being creatures of the statute." This is as 
 near as the Supreme Court of the United 
 States has evei* come to deciding this question 
 as to a Constitutional Court. That court 
 has, however, been in existence one hundred 
 and fifteen years, and it never attempted to 
 exercise this power in the cases not embraced 
 within the Act of March 2, 1831, either before 
 its enactment or since.
 
 80 THE LAW OF CONSTRUCTIVE CONTEMPT. 
 THE LEGISLATIVE POWER UPHELD. 
 
 The constitutionality of contempt statutes 
 was presented by the records, and upheld in 
 Oregon in State v. Kaiser, 8 L. R. A. 58; in 
 Illinois in Store}^ v. People, 79 Illinois, 45 ; 
 in J^ew York in Rutherford v. Holmes, 66 
 N. Y. 352; in North Carolina in Walker's 
 case, 82 N. C. 95, and Cromartir's case, 85 
 id. 211 ; in Iowa in Dunham v. State, 6 
 Iowa, 245, and State v. Anderson, 40 Iowa, 
 20; in Florida in Ux Parte Edwards, 11 
 Florida, 174; in Kentucky in Arnold v. Com., 
 80 Ky. 300 ; in Mississippi in ^a;P«r/eHickey, 
 4 Smedes & M. 751 ; in Tennessee in State 
 v. Galloway, 5 Caldw. 326 ; in Michigan in 
 Langdon v. Judges, 76 Mich. 367; in Wis- 
 consin in State ex rel. v. Judges, 44 L. R. A. 
 554; in Colorado in People v. Stapleton, 23 
 L. R. A. 789; in California in Bachelder v. 
 Moore, 42 Calif. 412 ; in Ohio in Hale v. State, 
 36 L. R. A. 254 ; in Nebraska in State v. Pub. 
 Co., 50 L. R. A. 195 ; in Indiana in Balderson 
 V. State, 31 ; in Kansas in Re Barnhouse, 60 
 Kansas, 849; and in Connecticut in State v. 
 Middlebrook, 43 Conn. 257. 
 
 In some of these cases there was much said 
 about the inherent and essential power of 
 courts in general, and that the legislature 
 could not go so far in its restraint of the 
 jurisdiction of courts as to entirely deprive 
 them of all power to act in their own defense, 
 but as the statutes referred to in these cases did 
 not go that far, nor attempt to do so, what 
 was said on this subject was mere dictum.
 
 TIIK LAW or CON'STKUCTIVE CONTKMIT. b 1 
 
 III a late case in Texas, Ex parte Foster, 
 OU L. K. A. 63, the Court of Criminal A\)- 
 peals reviewed the cases in this couiiti'y, and 
 repudiatefl a great deal of what had been said 
 by the courts in regaivl to contempt as mere 
 dictum. From this review it seems that the 
 power of the Legislature over contempt and 
 contempt practice is sustained by an over- 
 whelming weight of authority in the United 
 States. 
 
 But it must be observed here that the 
 courts, in theii* discussions of this subject, had 
 in view, chiefly, the right of self-defense, 
 which they insist, inheres in every court, that 
 is, the right to defend itself against insult 
 offered in its presence, to keep the peace in its 
 own precincts and to enforce its orders and 
 decrees, and they seemed to be apprehensive 
 that if the power to interfere in any particular 
 with this jui'isdiction in contempt cases was 
 conceded to the legislative department, that 
 department might go too far in restricting 
 them in such cases. In other words the legis- 
 lature might abuse its power. But that is no 
 valid reason why such power does not exist. 
 All authority may be abused and often is 
 abused. The legislative department repre- 
 sents the people in a higher and better sense 
 than the other two departments of the govern- 
 ment and to hold that it ought to be shorn of 
 its rightful power, because it might abuse it, 
 is directly contrary to the theory that the 
 people ai'e capable of self-government. In a 
 popular government like ours, the presump- 
 
 6
 
 82 THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 tioii ought to he constantly indulged that if 
 the law-making power make a mistake, the 
 people will discovei' and rectif}' it. It would 
 be a violent presumption that the general 
 assembly would desire to rob the judiciary of 
 the power to carry out the ends foi- which it 
 was instituted. It never has gone that far 
 and nevei- will until the people lose the faculty 
 of self-government. 
 
 Another fact must not be overlooked in the 
 examination of this question and that is no 
 court in this country, or an}' countr3% for 
 that matter, ever set aside a statute in order 
 to acquire jurisdiction in a contempt case 
 until the Supi'eme Court of Arkansas in the 
 Morrill case in 1855 did that. That decision 
 was not rendei'ed until a half century after 
 the Shippen case and a quarter of a century 
 after the Peck case and the decisions in West 
 Virginia, Virginia and Geoi'gia, setting aside 
 legislative enactments, in contempt cases, 
 were made more than seventy-five years after 
 the Shippen case and more than fifty years 
 after the Peck case. And while Mi". Bu- 
 chanan went asti'ay in his prophesy that no 
 matter how the Peck impeachment trial ter- 
 minated, Peck would be the last judge to 
 exercise the power to })unish as for a con- 
 tempt any one for libelous publications in 
 newspapers and Lawless would be the last 
 victim of the exercise of such power, the 
 generation of 1830 had to pass away and the 
 traditions of the past be foi'gotten by a ncAV 
 generation before any court could be found
 
 Tin: LAW OF CONSTRUfTIVK rONTHMIT. 83 
 
 tliat would go so fill' as to set aside a statute 
 in ordei' to exercise a jurisdiction so ol)uox- 
 ious to the people. Tiiis liistorical fact sheds 
 a Hood of light on what oui' fathers meant 
 i)y tiu'ii' constitutions adopted seventy-five oi' 
 a hundi'cd years ago. 
 
 THE ISSUES OF FACT IN A CONTEMPT CASP:. 
 
 There is one other phase of the She[)herd 
 case that I desire to notice, and that is, what 
 issues of fact are properly trial)le in a contempt 
 case. The coui't on this j)oint used tiiis lan- 
 guage : "The Att(>rney-General, in o|)en 
 court, deman(i('(l of the defendant and his 
 counsel to know whether or not. tliey de-ired 
 an Oj)portnnity to show the truth of the nnit- 
 tei's charged in the article aforesai<l.'' And 
 ajrain the court savsthat when the defendant 
 was "challiMiged to make his words good, he 
 consummates his offending hy failing abso- 
 lutely to produce one word of testimony to show 
 that he told the truth, and instead of making 
 the amende honorahle by witlulrawing the 
 charge, and apologizing like a man, seeks to 
 escape punishment by challenging the jui'is- 
 diction of this court to protect itself from in- 
 sult, and maintain the respect and dignity with 
 which the people have invested it; denies that 
 the facts cliai'ged are suflieient to constitute a 
 contempt, and i-aises other technical an<l con- 
 stitutional (juestions.''' And again it says. 
 •' He did not dai'e to attempt to [)rove or tdaim 
 that it (the ai'ticle) was true, but stood unite 
 as to that, an 1 sought to escape j)unisinnent
 
 84 THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 on othcM" gi'ouiuls, which were untenable. He 
 tvas therefore guilty of malice.'''^ 
 
 This offer to the defendant to pcn-mit him 
 to prove the truth of the chai'ge, under the 
 circumstances was, to say the least, unusual, 
 and out of the ordinary course. Here were 
 seven judges who, it was alleged, had been 
 charged with corruption by the defendant, 
 and he is asked to prove to the satisfaction of 
 these same judges, that they had been cor- 
 rupted. The judges were to sit as a jury, not 
 only to try the issue involving their own hon- 
 esty, but they were also to sit as a court to 
 determine all questions of law as to the com- 
 petency of witnesses, and the admissibility of 
 evidence. In other words, they, as a court, 
 were to determine the law^ and, as jui"ors, the 
 fact. The mere statement of this proposition 
 shows that no such issue could have been 
 made in the way it was attempted to be made 
 before the court in that case. And the fact, 
 that the offer to permit defendant to prove the 
 truth of the charge he had made, is strong 
 pi'oof that the charge made did not constitute 
 contempt at all, but was, if untrue, a mere 
 libel upon the judges, which should have been 
 tried in anothei- way. A contem[)t is an in- 
 dignity to the majesty of the law, which is 
 supposed to be present in all courts of justice ; 
 and when that majest}^ has been insulted, in- 
 stant punishment should follow, and the truth 
 of the charge contained in the insult is no 
 defense. Let us illustrate this. Suppose a 
 lawyer should enter a court room, and say to
 
 THE LAW OF CONSTRUCTIVE CONTEMPT. 85 
 
 tlie ju(lg-e on the bench, "Yon are a corrn[)t 
 scoundrel. You have been bought up l>y the 
 adversai-y of my client, and I want yon to 
 vacate the bench and let an honest man take 
 your place to try my case." What should a 
 selt'-resi)ecting judg'e do in such case? Would 
 he call on the lawyer to prove the truth of the 
 charge, or would he punish him instantly? 
 Indeed would the truth or falsity of the chai'ge 
 have any bearing whatever on the question of 
 the indignity thus offered to the law, whose 
 minister for the time being the judge is? A 
 judge that would parley with a j)arty thus 
 offending about proof of the charge, would 
 indeed bi-ing not only himself, but also the 
 majesty of the law into contempt. If Shep- 
 herd had got up in the presence of the coui't, 
 and had charged the judges with corruption, 
 there would then have been no calling on him 
 for proof of the truth of the charge. The 
 judges would have, on the spot, punished him 
 for this indignity offered to the court in its 
 l)resence, whether the charge made was true 
 or false. The court, in such a case, stands 
 in the attitude of a parent towards his chil- 
 dren, or a school teacher to\vards his pu|)ils, 
 and cannot permit its honesty to be called 
 in question, oi* become a subject of debate, 
 when it is publicly sitting for the transac- 
 tion of business. Now I ask if a libel 
 upon the judges in a newspaper is a contempt 
 of court, why should the truth of the charge 
 be made a subject of debate, proof or in- 
 quiry, any more than in case the same charge
 
 8() TlIK LAW OF CONSTRUCTIVE CONTEMPT. 
 
 is made in the fnce of the court while in ses- 
 sion V None, that I can see ; and the fact that 
 the court was willing, in this case, to permit 
 the defendant to prove the truth of the charge, 
 if he could, is proof tiiat the judges themselves 
 made a diKtinction between a contempt com- 
 mitted in the presence of the court, and one 
 not committed in its presence. If Shepherd's 
 offense was a contempt of couit, then the truth 
 or falsity of the charge he made was imma- 
 terial ; but if his offense was a mere libel upon 
 the judges, then the truth or falsity of the 
 charge should have been submitted to a jni-y, 
 in another forum, as a common arbiter between 
 him and them. The court erred, in my hum- 
 ble judgment, in holding that the article in 
 question was a contempt of court; but having 
 thus decided, it unquestionably did right in 
 refusing a jury trial, because there luas Cloth- 
 ing to try in that kind of a case, except the 
 fact of publication ; and the court unquestion- 
 ably erred in offeiing to permit the defendant 
 to prove to them and to their satisfaction, 
 that they themselves had been corrui)ted. 
 Their corruption, i?i a contempt case, is not 
 an issuable fact to be tried in any way, either 
 before the court or jury, and if the court 
 thought it was an issuable fact in that case, 
 it ought to have sent it to a jury, which it 
 could have done by ordering Mr. Shep- 
 herd to appear before the Circuit Court, oi- 
 some justice of the peace, to answer for libel. 
 That court, in the very natui'e of things, was 
 not competent to try such an issue, which in-
 
 Tin: L.\\\ OF CONSTRUCTIVE CONTEMPT. 87 
 
 volvcd its jiidi^i's. But tlie court went fui'thcr, 
 au'l (ii'cl;iix''l tliat Ijccausc the defendant stood 
 mute befoie it as to the truth of tlie chai'fii'e, 
 and had challenged the jui'i.sdiction of tlie 
 coui-t, he was guilty of malice. The state- 
 ment of the court shows, of itself, if other 
 |)i'oof weie wanting, the impro[)riety of the 
 assum[)tion of jui'isdiction in the case. The 
 Constitution itself declares that no man shall 
 be comi^elled to give evidence against him- 
 self, and the right to stand mute when charged 
 with crime has been I'ecognized for centuries. 
 Standing mute is equivalent to a plea of not 
 guilty; but Mr. Shepherd was held to have 
 added malice to the other offense charged by 
 standing mute as to its truth, but challenging 
 the jui'isdiction of the court to tr}' him in 
 that way at all. 
 
 A |)lea of not guilty, in a criminal case, 
 ])uts in issue every provable fact, including, 
 in a libel case, the motives of the publisher, 
 and (he truth of the charges made. So Mr. 
 Shepherd virtually put in issue the truth of 
 the charge made, and his motives in making- 
 it. The court, in its opinion, deems this 
 course of his, and his failure to make '' the 
 amende honorable'''' \\\\d '''' apologizing like a 
 man''' as an aggi'avation of his offense, add- 
 ing malice to the previous wrong. This is 
 not the view the Sujjreme Court of Wisconsin 
 took in the case of State ex rel. v. Judges, 
 supra, in regard to the course pui'sued by the 
 accused parties there. The coui't, in that 
 case, held that if they were honoral)le men.
 
 88 THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 and not mere slanderers, there was no other 
 course open to the accused. Suppose Shep- 
 herd sincerely believed that he had told the 
 truth, would it have been honorable for him 
 to lie to the court about his opinion, and 
 apologize for what he had done? 
 
 TECHNICALITIES . 
 
 The court goes on to sa}' that Mi*. Shep- 
 herd's objections were technical. Was it 
 technical to challenge the jurisdiction of the 
 court, and to demand a trial by jury? I think 
 not. But suppose these objections were tech- 
 nical, why not entertain them? Technical 
 objections in favor of the liberty of the citi- 
 zen ])revails in all criminal prosecutions, and 
 why not in cases of contempt? 
 
 TRIAL BY JURY. 
 
 The court after having rightfully decided 
 that the defendant was not entitled to a tiial 
 by jury in a contempt case, went on to say 
 that if a jury trial had been awarded him, 
 there was nothing to be tried ; the coui't, it is 
 said, wos the judge as to whether the article 
 was libelous or not, and its publication having 
 been admitted, a jury, if called, would have 
 had nothing to do but bring in a verdict by 
 direction of the court. As has been shown, 
 there w^ould have been nothing to try by the 
 jury or the coiU"t in a contempt case, but the 
 court seemed to go upon the theory that there 
 was something to try by calling on the de- 
 fendant for proof of the truth of the charge. 
 If that assumption of the court was correct,
 
 THE I-AW or rONSTKlCTn'K COXTKMIT. 89 
 
 tlic'ii tlic issues should have Ijeeii submitted to 
 ;i jui-y, not in that case, but upon an indiet- 
 UKMit or iiifoi-ination for libel, pi-esented in the 
 usual way. 
 
 The court, on this [)hase of the question, 
 seems to have forgotten that in all trials for 
 lil)el, the jui-y shall bt; the judges of the law 
 as well as the facts, undei- the direction of 
 the coui't ; which uieans that while the court 
 may instruct the jury on the law, the jury is 
 at liberty to taki' its own view of the law, and 
 render a verdict aecoi'dingly. In case Shejt- 
 herd had been j)i-oceeded against in the usumI 
 way for a ciiminal libel, the jui-y, in his ease, 
 would have had a I'ight to say the ai'ticle in 
 question was not libelous, no matter what we 
 or the court may think about it. And again, 
 the court seems to have ovei'looked another 
 important element, involved in a jni'V trial, 
 and that is, the amount of puni>hment to be 
 inHicted. The court fixed the fine at five 
 hundred dollars. A jury, if they found Shep- 
 herd gnilty of a criminal libel, might have 
 fixed the (ine at one dollai', or some other 
 nomimil amount . And this is an important, 
 and not a technical right of an accusi'd paity. 
 But really all the obstM-vations of the court 
 on this subject, and these observations of 
 mine, add additional rt'asons, why the coui-t 
 made its fatal eiTor in assuming jurisdiction 
 in the case at all, hut that some trial court, if, 
 as Jjord (.'ampbell remarked, a j)rosecution 
 foi* a libel u|)on the judges be necessary, in 
 any event, should ha\i' tried the case in the 
 regular course.
 
 i)0 THE LAW OF CON>STKUCTlVK CONTEMPT. 
 
 The history of this case emphasizes the rea- 
 sons why the people, for one hnndred and 
 fifty years, have fiercely contested, and con- 
 test now, the power of the coni-ts to |:)nnish, 
 as for a contempt, a newspaper pnl)lication. 
 The people have in the past fonght, and fight 
 now for the fi'eedom of speech and of the 
 press, and they have a deep conviction that 
 the judges as well as the governors and legis- 
 lators, ai-e their mere servants and that the 
 acts of all should be subjected to the scrutiny 
 of the press especially. Publicity of official 
 acts has become a peculiar demand of this age, 
 and what a glorious work the public press has 
 wrought lately in exposing corruption in 
 official life, not only in Missoui'i, but in the 
 nation, nay, in the countries of Europe. But 
 it is said no one has a right to libel an officer. 
 That is true, but I believe with Jefferson, 
 that where an abuse cannot be destroyed 
 without destroying the use of a privilege, 
 the abuse should be tolerated, " where reason 
 is left free to combat it." This is the theory 
 of the Theodosian law referred to by the court 
 in the Shepherd case. The exercise of the 
 power to punish for contempt for a newspa- 
 pei' publication, while it might destroy the 
 abuse, would also destroy the use of the privi- 
 lege of free speech, and a free press. As far 
 back as King John it was declared by INIagna 
 Charta that a party charged with crime should 
 be tried by a jui'y of the vicinage. But in a 
 case of contempt, not only the right to be 
 tried by a jury is denied, but the right to be
 
 TllK LAW OF CONSTliL('Tl\ K ( < (NTK.MrX. Jil 
 
 ti'ied ill tlu' county is denied also. 'Phis last 
 I'iirht has always been deemed essential. Oin* 
 fathei-s made the deprivation of that I'ig-htone 
 of the "-rounds of the indictment i))"efei'red by 
 tliem against Geor<j;-e III, in tlu- Declai-ation 
 of Inde[)endence. Shephei-*) live(J in AVai"- 
 rensl)ur<>-, Johnson County. The Supreme 
 Court sits in Jeffei'son City, in Cole County, 
 a hundred miles away, and he was taken fi-om 
 his home, where he published his pa|)er, to 
 Jefferson City, and there his case was dis- 
 posed of. If the court had the power to 
 take him that far to be tried for a libel upon 
 it, then it can take citizens from Dunklin 
 County, a distance of three hundred miles, 
 and try them foi' the same thiny-, away from 
 their neighbors aufl those who know them, and 
 does it require any great stretch of the im- 
 agination to believe that many publishers, not 
 knowing the line of demarkation between 
 legitimate and illegitimate criticism of the 
 court and judges, i-ather than take any chances 
 of being dragged off a long distance to be 
 tried by judges whom he has been chai"ged 
 with gi'ievousl}' wronging, will not go as far 
 as they really have a I'ight to g>)V Thus the 
 use of the privilege of a fi"ee i)ress would be 
 destroyed, in trying to desti'oy its abuse. 
 
 The court thought the power it exei'cised 
 in the She[)iierd case was necessai'y for the 
 protection of society ; but if its rulings shall 
 have the effect to censor the press, and i)re- 
 vent its "'oino' as far as it has a rij>ht to "o, 
 may not society diift buck, imperceptibly.
 
 92 THK LAW OF CONSTRUCTIVE CONTEMPT. 
 
 into a despotism, and be more harmed than 
 by an occasional libelous criticism of the 
 ministers of the law? And besides that, the 
 ordinary remedies for criminal libel ou^ht to 
 be sufficient to keep the press within due 
 i)ounds without the exercise of a powei' the 
 people believe, and have always believed, to 
 be unjust and usurped. 
 
 VII. 
 
 The Court's Error and the Remedy. 
 
 Thnt the decision, in the Shepherd case, is 
 pernicious, and contravenes fundamental prin- 
 ciples of liberty, there can be no question. 
 That the courts have the power to set aside 
 statutes on the ground that they are repug- 
 nant to the Constitution, there is now likewise 
 no question, though a hundred years ago that 
 proposition was not conceded by any means. 
 The three departments of government have 
 always been considered co-ordinate and equal, 
 ;ind wei'e established by the Constitution as 
 checks upon each other, and the power of the 
 courts may be carried too fai", and become a 
 menace to free institutions, and when that 
 occurs, it is the right — nay, the duty of the 
 othei' two departments, which peculiarly rep- 
 resent the popular will, to resist any encroach- 
 ment upon their power which may impei'ilthe 
 fundamental rights of man, by all the consti- 
 tutional and peaceful means attheir command. 
 This has often been done in tlie past. 
 
 Ordinaiily where the courts have set aside 
 statutes, enacted l)y the legislative depart- 
 ments (the plui'al is here used because the
 
 Tin; LAW OF CONSTKUCTIVK f:ONTKMl'T. H^^ 
 
 executive forms a part of tlie hnv-innkiiii;- 
 ]K)W(M'), it has been to vindicate the i)iibiic 
 and private rights of the |)eopIe ; but in the 
 Sliepherd case that was not the effect. As 
 has been shown, the assumption of jurisdiction 
 there lind tiie effect to deprive a citizen of a fun- 
 damental, constitutional right, the i-ight of trial 
 by jury of the vicinage, which the other two 
 depai'tmeuts had tried to guaranty, and which 
 they thought they had guarantied to him. In 
 that case the issue is sharply made between 
 the legislative power and the judicial power, 
 narrowed down to the simj)le question whether 
 the legislative departments can interpose by 
 legislation to protect the citizens of the State 
 by restricting and limiting the power of the 
 courts, whei-e the contest is between the I'ights 
 of the citizens on one side, and the power of 
 the courts on the other. The Supreme Court, 
 and the judges of that coui't, were as much 
 parties in interest in the Shepherd case, as the 
 prosecuting witness is a party in interest in 
 any criminal prosecution, and ought that 
 court, according to the eternal principles of 
 i-ight, have set in judgment in their own cause? 
 Lord Campbell said such a position of a judge, 
 in such case, was an invidions one, and it is 
 the universal opinion of mankind that, no 
 mattei" how exalted the ministers of the law 
 may be, they cannot entirely free themselves 
 fi'om the feeling that they have been injured^ 
 and that thetj must vindicate themselves. 
 
 It must not be forgotten either that accord- 
 ing to the decision in the Shepherd case, the 
 sole measure of the power of the courts in
 
 94 TIIK LAW OF CONSTRUCTIVE CONTEMPT. 
 
 contempt cases is the discretion of theii" 
 judges. ^Fhat is the power possessed by the 
 Czar of Russia, a power measured alone by 
 his own discretion, and with him, we call it a 
 despotism, absolutism, tyi-anny. Such a 
 l)ower as that has been resisted by the Anglo- 
 Saxon races for centuries, and is hateful to 
 the minds and aspirations of a fi'ee peo})le, 
 and we had reposed in the fond assurance foi- 
 neai'ly a century, that no such principles had 
 found lodgment in our institutions, and the 
 great question is presented to the people of 
 our State whether there is any i-emed} for tiie 
 assertion of this pi'inci)>le by the court, and if 
 so, what it is. The legislative departments, 
 perfectly disintei-ested, declared ovei' sixty- 
 five years ago that the courts should not have 
 the power to try, without the intervention of 
 a jury, questions in which the judges were 
 pei-sonaliy interested, and now, after the lajise 
 of so long a time, the court, an iiitei-ested 
 party, says the other departments had no 
 power to impose any such restraints, or, for 
 that matter, any restraints at all, on it. Mr. 
 Shephei'd, though he Inul been dei)i'ived of 
 his property by the exercise of a j)owH'r which 
 was illegal, was uttei-ly hel[)less. The law, 
 pi'ovided by the legislature foi' his protection, 
 was set aside, and there he stood in the i)res- 
 ence of the judges, whom he was accused of 
 libeling, without the right to have this case 
 sent for trial before another, and imi)ai'tial 
 tribunal aided by a jury, and without the 
 right of appeal to a higher court, foi' he was 
 then before the highest court in the State.
 
 THK LAW OK CONSTRL'CTIVK CONTKMIT. '.♦5 
 
 III that ca8L' the court said that it would not 
 " tolei'atc any iutert'ereiicc hy a c<^-ordinate 
 Ijranch of the government or hy any one else 
 with the i)owers and duties and preiogatives 
 of this court." That is not the language of 
 an equal to an equal, but of ii superior to an 
 inferior. The legislatui'e on its part has an 
 equal I'ight to asseit tiiat it will not tolerate 
 any interference by the judiciary with its 
 powers, duties and prerogatives. Then what? 
 The peoj)le must answer. 
 
 The court, after having set aside the con- 
 temi)t statute of this State, which had abro- 
 gated the rules of the common law ap[)licabK' 
 to certain classes of contempt, proceeded to 
 incorporate those rules of that law into the ju- 
 risprudence of this State. Hlackstone is cited 
 and what he says is construed to mean that 
 every unjust criticism of the court acting in its 
 judicial capacity' is a contempt whethei* such 
 criticism be in ivlation to a i)ending matter or 
 not. The coui't lays down the broadest and 
 most comprehensive rule of the connnon law 
 as follows : "In Kex v.Almon, Wilmot\sNotes 
 of Opinions and Judgts., p. 23.S, it was judd to 
 be contempt of court and a libel, punishable l)\- 
 attachment, to publish a i)ain|)hlet asserting 
 that judges have no i-ight to issue attachments 
 foi" libel upon themselves and dein'ing that 
 i-ellections upon individual judges, are con- 
 tempts of court." Many other cases are citt'(i 
 by the court but this case goes to the extreme 
 limit of the common law on the subject of 
 contempt and if that be the law in ^Nlissouri
 
 d6 THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 the coui'ts are bound by no restraints and if 
 the legislature has no powei- to set bars and 
 doors as to contempts and say to the courts 
 "Hitherto shalt thou come — but no fur- 
 ther" then indeed are the people of this State 
 subjected to a most extraordinary and dan- 
 gerous jurisdiction both as (o the subject-mat- 
 ter of contempts as well as the extent of the 
 punishment to be inflicted. The court im- 
 posed a fine of $500 on Mr. Shepherd, ten 
 times as large as the statute of the 
 State prescribed and the court cited Reg. 
 V. Skipworth, 12 Cox Crim. Cases, 371 (also 
 an English case) in which the accused was 
 fined five hundred pounds, equal to $2,500, so 
 that the court can go to that extent at least 
 which is fifty times larger than that prescribed 
 by the statute. But the court having freed 
 itself fi'om all statutory resti'aints is not lim- 
 ited to $2,500 or the maximum fine that may 
 be imposed in a contempt case but it can, at 
 its discretion, impose any larger sum it sees 
 fit, nor is the extent of the imj)risonment that 
 may be inflicted in the case limited otherwise 
 than by the discretion of the court. That the 
 court intended to make the rules laid down in 
 the cases it cited as the law of this State is 
 made manifest by the excerpt from its opin- 
 ion : " Thus at great pains and tedious length 
 the cases bearing upon the matters involved 
 in this case have been collected and digested 
 ivith the purpose and to the end that the peo- 
 ple may know the grounds upon which 
 judgment in this case rests and so that all
 
 tin: I AAV or (ONSTiiicmi: (omkmit. 97 
 
 inaij hnoic the law and arold heiiKj (juiJtii 
 of like offenses, or else offend knoio'uHihj, 
 and hence invite punishment.''^ Accoiding 
 to the definition of the legislative power hei'e- 
 tofore given, is not that excerpt a legishitive 
 act rather than a judicial determination of a 
 concrete case? The court having set aside 
 our ancient statute which had prescribed the 
 law of contempt, the court, it must be pi'e- 
 sumed, felt tiie necessity of stating, " at great 
 pains and tedious length," the rules of law 
 which it intended to substitute in lieu of the 
 abi'ogated statute, so that the people might 
 know what law it would I'ecognize in future 
 cases. Wh}^ it applied these new rules of law, 
 which the court declares are in force in Mis- 
 souri, to Mr. Shepherd's act, making them ex 
 post facto as to him and others violating a 
 plain [)i'ovision of our Constitution, is not 
 stated. In Older to cover the whole ground 
 on the subject of contempts, so that " the peo- 
 ple might know the law and avoid being guilty 
 of like offenses," the court did not coniine 
 itself to the point in judgment, w'hich was the 
 criticism of the court in a i)ending case but 
 it went outside of the record and disclosed 
 what the law shall be for a criticism of the 
 court in cases wholly disi)osed of. Take the 
 whole opinion of the court with the above ex- 
 ceipt from it and there is no escape from the 
 conclusion that the court exercised the legisla- 
 tive power. The j^ower exercised by the court 
 was legislative in two aspects. It was legisla- 
 tive because it virtually rei)ealed a statute and
 
 98 THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 in the second place it was legislative in that it 
 re-enacted certain common law i-ules which the 
 legislatnre had declared should not prevail in 
 this State. The rules of the common law which 
 the court declares to be in force hei'c have all 
 the insignia of laws, which can be made only 
 by the General Assembly under our Constitu- 
 tion. They are emphaticall}^ rules of civil 
 conduct of general and universal application. 
 The court, therefore, in my humble judgment 
 nnquestionably violated the ver}^ provision of 
 the Constitution, wdiich it claims the legisla- 
 ture had violated in the enactment of the 
 contempt statute. 
 
 It is unquestionably the pi'ovince of the 
 legislative power to enact and publish the law 
 of contempt so the people may know what 
 it is and avoid its violation. But the court 
 denies the power of the legislature to do that 
 and proceeds to do it itself. Must the legisla- 
 ture stand dumb and helpless in the presence 
 of a co-equal and co-ordinate branch of the 
 State government? 
 
 And again it is asked if there is a remedy 
 for such an un-American situation in our 
 State. If so, what is it? 
 
 The judges can l)e impeached but this rem- 
 edy has not generally been found practicable 
 because the judges cannot be convicted with- 
 out proof that they willfully usurped power 
 and this is hard to do. 
 
 The Ceneral Assembly may, as a protest 
 against the exercise of jurisdiction in this 
 case, refund the fine imposed on Shepherd,
 
 TlIK LAW OF CONSTRUCTIVE COXTKMPT. 91) 
 
 following- the example net by Conf;;Te.ss in re- 
 funding the fines imposed under the Sedition 
 Law. 
 
 And again the court may be called on to 
 overrule this decision and retui'ii to correct 
 principles. 
 
 Or a constitutional amendment can be 
 adopted, but if this be done the pi-eamble to 
 it ought to state that the legislature had 
 always possessed the power to restrict the 
 courts in contempt cases and the amendment 
 is adopted simply as declaratory of what the 
 law has always been.
 
 TIIK I-AW OF CONSTRUCTIVE CONTEMPT. 101 
 
 INDEX. 
 
 Page 
 
 Preliminary Statement 5 et aefj. 
 
 Statement of Case 1 et seq. 
 
 Author's Views in 1884 8 et seq. 
 
 Question to be discussed in this Review 17 et seq. 
 
 History of Question in England prior to 1820 19 et seq. 
 
 Fox Libel Act 21 et seq. 
 
 Lord Erskinc's Views 22 et seq. 
 
 History of Question in American Colonies 
 
 prior to 1820 24 et seq. 
 
 In Pennsylvania .. 24 et seq. 
 
 In New York 26 et seq. 
 
 Alien and Sedition Laws 2G et seq. 
 
 History of Question in Missouri 27 et seq. 
 
 History of Question from 1820 to 1835 29 et seq. 
 
 History of Question from 1835 to 1875 33 et seq. 
 
 History of (.Question from 1875 to 1903 36 et seq. 
 
 The Judicial Power over Contempts Conferred 
 
 by the Constitution of 1820 in the Courts 39 et se(j. 
 
 The Legislative Power under the Constitution 
 
 of 1820 47 et seq. 
 
 The Judicial Power under the Constitution of 
 
 1875 61 et seq. 
 
 The Legislative Power under the Constitution 
 
 of 1875 61 et seq. 
 
 Pvssential Attributes of Courts 67 et seq. 
 
 Judicial and Legislative Powers under Con- 
 stitution of 1820 Sd et seq. 
 
 Adjudged Cases 72 et seq. 
 
 The Issue of Fact in a Conterai)t Case 83 et seq. 
 
 The Court's Error and the Remedy 1)2 et seq.
 
 102 THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 APPENDICES — CONTENTS. 
 
 APPENDIX A. 
 The Zenger, McDougal and Crosswill cases in New 
 York 103 
 
 APPENDIX B. 
 The McKean and Shippen cases in Pennsylvania 115 
 
 APPENDIX C. 
 The Alien and Sedition Laws, History of 123 
 
 APPENDIX D. 
 Mathew L3'on's case under the Sedition Law and 
 John Wilkes' case in England 137 
 
 APPENDIX E. 
 Anthony Haswell's case under the Sedition Law 144 
 
 APPENDIX F. 
 Cooper's case under the Sedition Law 149 
 
 APPENDIX G. 
 Callender's case under the Sedition Law and Chase's 
 Impeachment 159 
 
 APPENDIX H. 
 Peck's Impeachment Trial 169 
 
 APPENDIX I. 
 The Contempt Statute of Missouri 175 
 
 APPENDIX L. 
 Opinion of the Missouri Supreme Court in the Shep- 
 herd case 177
 
 APPENDIX A. 
 
 BATTLES FOR THE FIIKEDOM OF THE PRESS IN 
 NEW YORK. 
 
 zengek's case. 
 In our history numy eases of thrilling in- 
 terest, illustrative of tliis conflict and (jf the 
 evolution of a free pi'ess and an independent 
 judiciary and government, can be found. The 
 first, among these, is that of John Peter Zen- 
 ger, in the city of New York, August ith, 
 1735. As it created the most intense interest 
 in the ])ublic mind, the result of which was 
 •' the dawn of the spirit of liberty, which 
 afterwards revolutionized America," the story 
 of Zenger and his trial will be an intei'esting 
 one at a time when the contest between the 
 coui'ts and the press is made prominent by the 
 ti'ial of the editor of the Warrensburg Stan- 
 dard-Herald. Zenger was born in Ger- 
 many and was brought to this country in the 
 reign of Queen Anne at the charitable ex- 
 pense of the crown of England. In 1734, 
 William Cosby was governor of T*^ew York 
 and two papers were published there, one, 
 the Gazette, an administration organ, by 
 William Bradford, and the other, in opposi- 
 tion, the Xew York JotiriiaJ, by Zenger. 
 Several articles were published in Zenger's 
 paper, severely criticising the administration 
 of affairs in ^ew York, and Governor Ross, 
 on November G, 1731:, issued two proclama- 
 tions, one of which I'ecited that Zenger's 
 paper had contained articles rellectiiig on the 
 
 (103)
 
 104 THK LAW OF CONSTRUCTIVE CONTEMPT. 
 
 Ico-islatiire, " the most considerable persons in 
 the most distingnished stations in the Prov- 
 ince and npon His Majesty's lawful and riiiht- 
 ful government and just prerogative," which 
 were calculated to stir up " factions, tumults 
 and seditions " among the people, and offer- 
 inji: a reward of £^0 to any one who would 
 discover the writers thereof: the other 
 offered a reward of £'20 for the discovery 
 of the author " of two late scandalous songs 
 or ballads, highly defamatory of the admin- 
 istration of His Majesty's government." 
 Zenger was arrested on Sunday, Novem- 
 ber 17, 1734, for publishing an alleged libel, 
 which was in substance that " the people 
 of this City (New York) and Province think, 
 as matters now stand, that their liber- 
 ties and properties are precarious and that 
 slavery is like to be entailed on them and their 
 posterity, if some past things be not mended." 
 He was put in jail and denied the use of ink, pen 
 and paper or the libert}^ to speak to or see the 
 people. He was, on his application, taken 
 before the Chief Justice, on writ of Habeas 
 Corpus, on November 25, where it was ad- 
 judged that he might be bailed in the sum of 
 $2,000, and in case he could not find bail be 
 permitted to have pen, ink and paper and to 
 speak to his wife and friends, " through the 
 hole in the door" of the prison. He failed 
 to give bond and he wrote in jail for his paper 
 and its publication continued. The Journal, 
 containing the alleged libelous matter, was 
 ordered to be burnt by the common hangman,
 
 THE LAW or CONSTKUCTIVE CONTEMPT. l()5 
 
 and the mayor and Ihe inagisti'atcs of the city 
 were directed to be [)resent to witness this 
 holocaust of the press. These officers as well 
 as the members of tlie Provincial Asseml)ly, 
 however, refused to attend. Tliis enraged the 
 governor still more and, after nine months 
 hnprisonmcnt, Zenger was brought to trial on 
 August -1, 17o5, before two judges, one of 
 whom had been appointed by the governor 
 alone, without the sanction of the council, and 
 Zenger's attorneys objected to his being tried 
 before a court so constituted, which the 
 judges, including the judge objected to, held 
 to be a contempt of court and the attoi'uej's 
 were summarily •' thi'own over the bar," in the 
 parlance of those times, i. €., disbai'red. 
 
 The friends of this editor were determined, 
 hovvever, he should be defended and they 
 quietl}' employed Andrew Hamilton, the cel- 
 ebi'ated jurist of Philadelphia, for that puv- 
 Dose. At that time the truth of the charoe 
 alleged to be libelous could not be given in 
 evidence as a defense and the court refused in 
 this case to allow Zenger to prove the tiuth 
 of the charges he had made in the Journal 
 and no evidence of that character was adduced ; 
 and, as the publication of the objectionable 
 articles, songs and ballads, was admitted there 
 seemed to be no escape for the accused ; but 
 Hamilton was equal to the emergency. His 
 speech to the jury was the most remarkable 
 and unique one in the history of jurisprudence 
 in this country. He argued to the jury tiiat 
 they were the judges of the law as well as the
 
 10() THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 fact and as theij had been taken from the 
 viciiiity, in lohich the puhlications had been 
 made^ they ivere supposed to have been 
 selected, because they " had the best Imoiol- 
 edf/e of the fact to be tried^ He insisted 
 that if tiie jurors believed the publications to 
 be true, they should acquit the defendant. 
 He made an eloquent plea for the freedom of 
 complaint and remonstrance against gov- 
 ernmental action and of the freedom of 
 the press. He thought it of the highest 
 importance to the well-being of society, that 
 the freedom to criticise the action of the ruler, 
 who brings his personal feelings and vices 
 into his administration, by which the people 
 find themselves affected, ought to be recog- 
 ized and he added that " all the high things, 
 that may be said in favor of rulers and of 
 dignities upon the side of j^over, will not 
 stop the 2)eo2)le''s mouths, ivhen they feel them- 
 selves oppressed.'''' The judges instructed the 
 jur}' " that as the defendant had confessed 
 the publication of the words, the only ques- 
 tion for them was whether the words were 
 libelous and as this was a question of law 
 they could safely leave it to the court." The 
 jur}^, however, returned a verdict of not guilty, 
 whereu[)on the crowds filled the court room 
 with shouts. The chief justice admonishedthe 
 audience andthreatenedthe leader withim])ris- 
 onment, whereupon a son of Admiral Nori'is 
 declared himself the leader and called for 
 more cheers, which were repeated with a will. 
 Mr. Hamilton was royally entertained at a
 
 THK LAW OF CONSTKLCTIVE CONTEMIT. 107 
 
 (3anquet, and on his starting- to Philadelpiiia 
 a salute was fired, lie was presented witii 
 the freedom of the city by the Common Coun- 
 cil " foi" the I'emai'kable service done by him 
 to the city and colony by his learning- and 
 generous defense of the rights of mankind 
 and the liberty of the i)i-ess." This freedom 
 of tlie cit}' was inscribed on a gold box pre- 
 sented to him. Thus terminated this remai'k- 
 able case, which sounded the keynote for the 
 revolutionary spii'it then just beginning to 
 manifest itself. 
 
 Here, again, should be noted the contrast 
 between the methods of the past and the pres- 
 ent. It seems the judges at the trial of this 
 case did not interpose, nor did the govern- 
 ment's attorney interpose any objection to 
 this course of argument of Mr. Hamilton to 
 the jui'v — an argument which not only left 
 to them all questions, both of law and fact, 
 but also authorized them to find the fact from 
 their own personal knowledge if they had 
 any. Such an argument as that at this time 
 would not be tolei-ated anywhere in our land. 
 Thus, while the judges who tried this case 
 strained the doctrine of libel beyond what is 
 now allowable, were more libei-al towards the 
 defense in permitting the powers of the jui-y 
 to be enlarged beyond wdiat the courts would 
 allow to-day. This trial left a lasting impres- 
 sion on public opinion, for Governor Koss 
 having died in 17H5, Bi-adford found it neces- 
 sary to publish a long address to the j)eo[)le 
 in iiis [)ai)er, the Gazette, in defense of, or
 
 lO'S TllK LAW OF CONSTRUCTIVE CONTEMPT. 
 
 rather apolo<4*y for the wa}' he liad conducted 
 it as an organ of the adnihiisti'ation. 
 
 The Journal, published by this intrepid 
 ])ioneer of freedom, was small in size, and 
 printed on much worn pica type. There were 
 but few advertisements in it, i)ut among the 
 few there was this which will no doubt be read 
 by the public of to-day with interest as well 
 as amusement: "To be sold by Petei- Lynch 
 near Rutgers' Brewhouse very good orange 
 butter. It is excellent for gentlewomen to 
 comb their hair with. It also cures children's 
 sore heads." Zenger continued to publish 
 the paper till his death in 174G, when his wife 
 took charge of it and managed it for a time 
 but it soon fell to a son, John Zenger, who 
 pubHshed it till 1752, when it died for want of 
 support. A short time before its demise the 
 following curious item appeared in its col- 
 umns: "The Country subscribers ai'e earn- 
 estly entreated to send in their arrears; if 
 they do not pay promptly, I shall leave off 
 sending the paper and try to recover my 
 money otherwise. Some of these easy sub- 
 scribers are in arrears for more than seven 
 years. After serving them so long, I fancy 
 it is time, and high time, that they should re- 
 pay me my advances ; for the truth is — and 
 the}' may believe me — I have worn my 
 clothes threadbare. 
 
 N. B. Gentlemen: If you have no money 
 to spare, still think of your printer when you 
 have read this advertisement and thought on 
 it. You can not do less than say 'come
 
 TIIK LAW OF CONSTRUCTIVE (:ONTEMl»T. 109 
 
 -vvifi'' (I address my8e'U' principally to niairied 
 folk, but let bachcloi's take it to heart also) 
 ' come wile, let us send the |)oor printei" some 
 floiiV, or a few hams, butter, cheese, ])ouItrv, 
 etc' 
 
 In the meantime while 1 am your obedient 
 servant, Joiix Zkx(;j:k." 
 
 But isi spite of this pathetic appeal and in 
 spite of tlie great service the Journal hud I'cn- 
 dered the pi-ovince and indeed mankind, it 
 was suffered to die, thus, furnishing- an im- 
 pressive instance of the ingratitude of the 
 peoj)le towai-ds those who sacrifice and suffer 
 much for them and for the advancement of 
 tlieir interests, and besides that, Zenger has 
 beeii foigotten by posterity, to which he left 
 such a i-ich legacy. Zenger ! AVho is Zen- 
 gerV the present generation may ask. Zen- 
 ger was a poor German boy, who came to this 
 countiy two centuries ago, at public expense, 
 and no doubt, like thousands of others of 
 that period, aftei* I'eaching our shores, was 
 sold at auction, for a time, to repay that ex- 
 pense. He published, what he considered he 
 had a right to publish, the truth al)out public 
 men and public affairs, for which he was im- 
 })risoned nine months in the common jail away 
 fi'om wife and home but his dauntless spirit 
 yielded not nor did he cease to defend him- 
 self and the freedom of the press with vigor 
 and courage while in durance vile. He con- 
 tended not for the right to slander and libel 
 the govei-nment and its oiHcei's but he did 
 claim the right to lay before the people the
 
 110 THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 truth in reg-ard to both and he waged a fierce 
 battle and even went to prison in defense of 
 that right. He won a glorious victory and 
 though the principle for which he fought was 
 not embodied in the law of Kew York for 
 three quarters of a centur}' after that, yet his 
 struggle and his martyrdom aroused a spirit 
 of freedom that has gone on from victory to 
 victory until we have to-day the freest govern- 
 ment on earth. Zenger is one of the un- 
 crowned, unwept and unsung heroes of our 
 land. There is nowhere any memorial statue 
 or arch to him. His name is an unfamiliar 
 sound to the people who enjoy the fruits of 
 his strife and sufferings. His body has been 
 mouldering in the ground for over a hundred 
 and fifty years but his soul, his proud free 
 soul, still goes marching on. 
 
 The action of the Virginia Assembly pre- 
 sents quite a contrast to the action of the 
 ^ew York Assembly along this line. A few 
 years after the trial of Zenger, William Parks, 
 the government printer of Y^irginia, was ar- 
 raigned before the House of Assembly on the 
 charge of publishing in the Gazette an asser- 
 tion that a certain member of the House had. 
 some years previously been convicted of sheep- 
 stealing, and Mr. Parks was allowed by the 
 House, in spite of opposition to the contrary, 
 to prove by the records of the court the 
 truth of the charge ; and was upon a hearing 
 acquitted. The member who was charged 
 with sheep-stealing thereafter retired in dis- 
 grace from public life.
 
 THE LAW OF CONSTRUCTIVE CONTEMPT. Ill 
 
 Mc dougal's case. 
 
 Ill 1769, a liaiidbill was prepai'ed and 
 caused to be j Minted by Alexander Mc- 
 Douii'al, cliai'<^iii<2* the N^ew York Assem- 
 l)ly with the i)etrayal of its trust rehitive 
 to the enforcement of the Mutiny Act, for 
 which he was ari'ested and arraigned be- 
 fore the assembly which held the document 
 libelous and aMcDougal was imprisoned. 
 His condemnation was entered on page fort}'- 
 fi\'e of the journal of the assembly and that 
 number, thereupon, became the countersign 
 of the Sons of Liberty. While in prison, his 
 callers became so numerous he was induced 
 to fix and did fix the hours for his daily recep- 
 tions at from 3 to 6 P. M. The Xew York 
 Journal., on February 15, 1770, published 
 this item : — 
 
 Yesterday, the forty-fifth day of the year, 
 forty-five gentlemen, real enemies to internal 
 taxation, by or in obedience to external au- 
 thority, and cordial friends to Captain Mc- 
 Dougal and the glorious cause to American 
 liberty, went in decent procession to the New 
 Goal ; and dined with him on forty-five 
 pounds of beef steaks, cut from a bullock 
 forty-five months old, and with a luimber of 
 other friends who joined them in the after- 
 noon, drank a variety of toasts, exi)ressive 
 not only of the most undissembled loyalty, 
 but the warmest attachment to liberty, its 
 renowned advocates in England and America, 
 and the freedom of the Press. 
 
 McDougal shared a better fate than Zen-
 
 112 Till-: LAW OF CONSTRUCTIVE CONTEMPT. 
 
 gor, for bis admirers have erected a statue 
 to his meiiiuiy in New York. This was 
 probably due to his participatiou iu the stir- 
 ring events just preceding the Revolutionary 
 struggle. 
 
 .ckosswell's case. 
 
 New York furnishes another interesting 
 case on the subject of the freedom of the 
 press. Harry Crosswell was publisher of the 
 Wasj), a Federalist paper of New York, and 
 on the ninth day of September, 1802, he 
 published this item : — 
 
 " Jefferson paid Callender for calling Wash- 
 ington a traitor, a robber, and a perjurer; for 
 calling Adams a lousy headed incendiary, and 
 for grossly slandering the private characters 
 of men, whom he knew to be virtuous." 
 
 Crosswell was indicted under the laws of 
 New York for criminal libel and at the trial 
 he offered to prove in defense of the charge 
 that one James T. Callender had written and 
 published a pamphlet dui'ing the presidential 
 campaign of 1800, entitled " The Prospect 
 Befoie Us," in which were contained the 
 defamatory epithets applied to AVashington 
 and Adams, and that Jefferson had paid Cal- 
 lender $50 before the publication of the pam- 
 phlet and the same amount afterwards as a 
 reward, " thereby showing his appreciation 
 thei-eof ; " but the court held, following the 
 ruling in the Zenger case, that the truth of 
 the charge against Jefferson, if proved, con- 
 stituted no defense, and Crosswell was con- 
 victed. A motion for a new trial was argued
 
 Tin: LAW OF CONSTUUCTIVE CONTEMIT. 113 
 
 hft'oiv the court en l)anc in 1804, one of the 
 jiidi^-es being Chancellor Kent. Alexandei' 
 Hamilton, without fee or reward, ai)[)eared 
 for the accused, and his argument was along 
 the same lines of his namesake, Andrew 
 Hamilton, in the Zenger case — that it was 
 not a lib(d to publish the truth. The court 
 being equally divided, the motion for a new 
 trial was overruled ; but strange to say, 
 Crosswell was never called up for sentence 
 and there the matter ended, which shows 
 that even the judges who had decided that 
 the truth of the charge in a libel proceeding 
 could not be given in evidence, as a defense, 
 faltered when they came to the enforcement 
 of a verdict obtained by the application of 
 such a harsh and unjust rule. Hamilton, a 
 few weeks after this last effort of his in de- 
 fense of the freedom of the press, was killed 
 by Aaron Burr in a duel. It is pleasing to 
 note that the great law commentator, Kent, 
 favored the doctrine that the truth of the 
 charge, alleged to be libelous, could be given 
 in evidence and that the jury should be the 
 judge of the law as well as the fact, which 
 rule now generally prevails in all the States. 
 
 And this principle as well as the principle 
 that the jury should be the judge of the law 
 and fact in a libel case was in 1805 put into a 
 statute of New York and there it is yet. 
 
 Thus in the Crosswell case a President of 
 the United States and the old political enemy 
 of that President were concerned. Crosswell 
 had made a serious charge against Jefferson
 
 114 THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 and Hamilton pi'obably rejoiced in the oppor- 
 tunity offered him of trying, at least, to prove 
 that the charge was true, though he failed in 
 his object ; but the principle he contended 
 for is fundamental in all free govei'uments, 
 and in support of that principle, Jefferson 
 was as earnest as Hamilton, if not more so.
 
 APPENDIX B. 
 
 THE BATTLES FOK THE FREEDOM OF THE PRESS IN 
 PENNSYLVANIA. 
 
 THE MC KEAN CASE. 
 
 In 1788 a celebrated case arose and one of 
 the principal actors in it was Thomas McKean, 
 who was born in Pennsylvania in 1734. He 
 was a deleo-ate to the Colonial Congress of New 
 York in 1765 and was the only nieml)ei- of the 
 Continental Congress during the whole time 
 fi-om 1774 to the close of the Revolutionary 
 War in 1783. In 1781 he was president of 
 Congress. In 1777 he was appointed Chief 
 Justice of Pennsylvania, which place he filled 
 till 1799, when he became Governor of the 
 State, which office he held till 1808. One fea- 
 ture of his career will be of special interest 
 to the present generation as illustrative of 
 the peculiarities of the methods of those 
 times. He was a citizen of Pennsylvania 
 and yet in all the proceedings of the Con- 
 gress and ns a signer of the Declaration of 
 Independence he is credited to Delaware and 
 while he was a delegate from Delaware in 
 Congress and even its president he was 
 Chief Justice of his native State. This 
 can be accounted foi-, however, by the fact 
 that until the adoption of the Constitution 
 of 1787, Delaware, though in a sense a 6ei)a- 
 rate province, in another sense w\as a part 
 of Pennsylvania. ^McKean was a patriot but 
 he was an imperious man, and in his judicial 
 relations was oftentimes considered arbitrar}^ 
 
 (115)
 
 11(3 THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 lie was a man of strong will and pei'sonality 
 and nsnally overcame all opposition, however 
 generated. His part in one of the first con- 
 rticts arising out of a trial for contempt of 
 court in the State of Pennsylvania, will now 
 be given. The Eleazer Oswald mentioned in 
 the ])roceeding had been a colonel in the Rev- 
 olutionary army and at the time of the con- 
 troversy was publisher of the Independent 
 Gazette. 
 
 On July 12th, 1788, Mr. William Lewis 
 moved for a rule in the Supreme Court of 
 Pennsylvania on him to show cause why an 
 attachment should not issue for the publica- 
 tion of a libel by him during the pendency 
 of a suit between Brown and Oswald. It 
 appears that Oswald inserted in his news- 
 paper, the Independent Oazette, several 
 anonymous pieces against the character of 
 Andrew Brown, a master of a female acad- 
 emy in the city of Philadelphia. Brown ap- 
 plied to him to give him the names of the 
 authors of these articles and, being refused, 
 he brought an action for libel against Oswald, 
 returnable into the Supreme Court on the 
 second day of July and therein demanded 
 bail for $1,000. Previously to the return 
 day of the writ, the question of bail being 
 brought by citation before Mr. Justice Bryan, 
 at his chambers, the judge, on a full hearing, 
 discharged defendant and plaintiff appealed 
 from this order at chambers to the court. 
 Afterwards, on July 1, Oswald ])ublished 
 under his own hand, an address to the public,
 
 TIIK LAW OF CONSTRUCTIVK CONTEMI'T. 117 
 
 in which he took occasion to insinuate, as 
 there was a brother of the plaintiff's patron, 
 Dr. Rusii, on the Bench, he might not receive 
 a candid hearing and he added : " However, 
 if former prejudices should l3e found to oper- 
 ate against me on the Bench, it is with a jury 
 of my country, properly elected and empan- 
 nelled, a jury of free men and independent 
 citizens, I must rest the suit. * * * The 
 doctrine of libel, being a doctrine incompat- 
 ible with law and liberty, at once destructive 
 of the privileges of a free country in the 
 communication of our thoughts, has not 
 hitherto gained any footing in Pennsylvania ; 
 and the vile measures, formerly taken to lay 
 me by the heels on this subject, only brought 
 down obloquy upon the conductors them- 
 selves. I may well suppose the same love of 
 liberty still pervades my fellow-citizens and 
 that they will not allow the freedom of the 
 press to be violated upon any refined pretense 
 which oppressive ingenuity or courtly study 
 can invent." Here we find an exponent of 
 oneof the political parties of the times brought 
 face to facie with the judiciary. 
 
 Upon this state of facts, after henring a full 
 discussion by William Lewis for the motion 
 and Jonathan Dickenson for respondent. 
 Chief Justice McKean delivered the opinion 
 of the court and held that Oswald had been 
 guilty of a contempt of court in the pub- 
 lication of this address. 
 
 Oswald was called up and McKean said 
 to him : " Having yesterday considered the
 
 118 THE LAW OF CONSTKUCTIVE CONTEMPT. 
 
 charge against you we are unanimously of 
 the opinion that it amounted to a contempt. 
 Some doubts were suggested whether even a 
 contempt of court was punishable by attach- 
 ment; but not only my brethren and myself 
 but likewise all the judges of England think 
 that without this power no court could possi- 
 bly exist. Nay, that no contempt could in- 
 deed be committed against us, we should be 
 so truly contemptible. The law upon the 
 subject is of immemorial antiquity and there 
 is not any period when it can be said to have 
 ceased or discontinued. On this point there- 
 fore we entertain no doubt." And Oswald 
 was fined ^610 and imprisoned one month. 
 He thereupon went before the legislature and 
 attempted to have articles of impeachment 
 preferred against Chief Justice McKean and 
 his associates for the judgment rendered in 
 this case. The points made by the complaint 
 were: 1. That the Chief Justice had pro- 
 tracted his imprisonment beyond the legal ex- 
 piration of his sentence. 2. That his impris- 
 onment was unconstitutional, illegal and 
 tyrannical. A heated debate ensued. The 
 public mind was much inflamed. The mem- 
 ories of the Revolutionary struggle were still 
 fresh in the minds of the people. And though 
 the Chief Justice had interpreted the law cor- 
 rectly as it then stood beyond cavil and had 
 not acted through prejudice, for he had held 
 that Oswald's address was a contempt of 
 court, not so much because it reflected upon 
 the integrity of the judges, as because it
 
 TlIK LAW OF CONSTRUCTIVE CONTEMPT. 119 
 
 sought to prejudice the pubhc mind against 
 his adversary and arouse public sympathy in 
 his own behalf, there were twenty-three out 
 of fifty-seven votes in the lower house for his 
 impeachment. 
 
 It may be added that Judge McKean 
 probably entertained extreme views on the 
 subject of libel. In 1797 he bound over 
 Cobbett, publisher of the Porcupine Oazette 
 at Philadelphia, to the grand jury for an 
 alleged seditious libel against the King of 
 Spain and afterwards instructed the grand 
 jury that the publications were libelous be- 
 cause they were calculated to defeat the recon- 
 ciliation of the governments of Spain and the 
 United States. The question involved became 
 a party issue, the Federalists supporting and 
 the Republicans opposing Cobbett, and the 
 grand jury by a party vote refused to indict 
 him, 
 
 THE SHIPPEN CASE. 
 
 This attempt of Oswald's to have the judges 
 im[)eached failed, but the controversy had made 
 its impress upon the popular mind. It was 
 McKean's great heart and stern nature and 
 sterling qualities that gave him the victory- 
 He was afterwards thrice elected governor of 
 his State, and during his administrations many 
 attempts were made to limit the authority of 
 the courts to punish for contempts by the sum- 
 mary process of attachment, by legislative 
 enactment, but the governor's intluence 
 thwarted every such attempt, and another case 
 arose, involving the same principle, in 180i.
 
 120 THE LAW or CONSTRUCTIVK CONTEMPT. 
 
 In that case Edward Shipjien, who succeeded 
 Judge McKean in 1799 as Cliief Justice of 
 the Supreme Court of Pennsylvania, was con- 
 cerned. Judge Shippen was born in Phila- 
 deljihia in 1729, and was eminent in the coun- 
 cils of his State. In 1804: he was still Chief 
 Justice, and was then seventy-three years old. 
 The case here referi-ed to was that of Kespub- 
 lica V. Passmore. In that case the publica- 
 tion complained of contained no reflection 
 upon the court, but was a libelous charge 
 against the defendants in an action brought 
 by Passmore in the Supreme Court, charging 
 him wnth having swH)rn to what was not true 
 in an affidavit. The court proceeded against 
 him summarily by attachment for contempt, 
 and fined him fifty dollars and ordered him to 
 be imprisoned thirty days. Mr. Passmore 
 complained to the Legislature against Chief 
 Justice Shippen and Justices Yeates and 
 Smith for this proceeding against him, which 
 resulted in an impeachment i)referred by the 
 House of Representatives against them on 
 the 23d day of March, 1804. They were tried 
 before the Senate in January, 1805, and on the 
 26th day of that month, were acquitted by a 
 vote of thirteen senators pronouncing them 
 guilty and eleven not guilty, the Constitution 
 requiring two-thirds of the members ])resent 
 to convict. 
 
 Public excitement was at fever heat, and in 
 1809 the Pennsylvania Legislature, under the 
 administration of Governor Snyder, enacted a 
 law restricting the courts in the punishment of
 
 THE LAW OF CONSTRUCTIVE CONTEMPT. 121 
 
 contempt and expressly prohibited this process 
 for pnnishniLMit for " jjuhlications ont of court 
 respecting the conduct of judges, ofticers of 
 court, jurors, witnesses or parties," but 
 authorized a proceeding by indictment for the 
 same. 
 
 This is the history of the remarkable contest 
 in Pennsylvania and it terminated in the com- 
 ])lete trium[)h of the legislative over the judi- 
 cial branch of the government of that State. 
 The intensity of the feeling engendered, in 
 that State, by these trials may be realized by 
 noting that twenty-three out of fifty-seven 
 rt'presentatives in the lower house of the 
 assembly in 1788 voted to impeach the Chief 
 Justice of the State, a signer of the Declara- 
 tion of Independence and a [)atriot who had 
 stood firmly and conscientiously with the 
 fathers of the Revolution from 1765 to the 
 end of the war and that the House in 1804 
 did actually impeach Chief Justice Shippen 
 and his associates and on their trial before the 
 Senate a majority (thii'teen to eleven) voted 
 for their conviction and they escaped only 
 because the Constitution recpiired a two-thirds 
 vote to convict them. 
 
 To fully appreciate the lessons of these 
 trials we must carefully note the exact point 
 in controversy. The i)ai'ties imprisoned by 
 the coui't foi- contempt, and the [)ublic, as 
 represented by the General Assembly t)f 
 Pennsylvania, did not contend that the right to 
 slander or libel the courts oj' the parties to the 
 litigation in the courts, existed, but they all,
 
 122 THE LAW OF CONSTRUCTIVE CONTEMPI. 
 
 with one accord, objected to the method of 
 determining what was libelous or slanderous, 
 the people insisting on the right of trial of 
 such a question by a jury before the courts, 
 while the other party claimed and exercised 
 the right of the interested court to try the 
 issue without a jury.
 
 AITKNDIX C. 
 Tiiic battlp:s for the freedom of the press — 
 
 THE AMEN AND SEDITION LAWS OF 1798. 
 
 Probably no event in our liiKtoi-y, except 
 our Civil Wai", has had a profounder influence 
 on the course of administration and the evo- 
 lution of American institutions than the 
 Alien and Sedition Law^s of 1798. They 
 were a controlling' factor in the Presidential 
 election of 1800, and they were the occasion 
 of putting, for the first time, in concrete form, 
 the doctrine of States' Rights, containing the 
 germ of secession and nullification, which, 
 sixty odd years later, eventuated in the at- 
 tempted secession of the Southern States, in 
 Civil War and in the final abolition of slavery. 
 The causes which impelled Congress to enact 
 these laws may be briefly stated. 
 
 After the commencement of the French 
 Revolution in 1789, the sympathies of the 
 American j)eople wei'e, for the most part, with 
 the Revolutionists ; and, when England and 
 France became engaged in war in 1793, a 
 large numbei' of our people insisted we owed 
 it to the latter countiy, for the assistance she 
 had rendered us during the Revolutionary 
 War, to espouse her cause against our and 
 her common foe. Great Britain. Jefferson, 
 who had been in Paris for some years prior to 
 and at the breaking out of the Revolutionary 
 movement there, and who was in comi)lete 
 sympathy with the Revolutionists, was at the 
 head of this party. Washington, then Presi- 
 
 (123)
 
 124 THK LAW OF CONSTRUCTIVE CONTEMPT. 
 
 dent of the United States, on the contrary, 
 was oi)|)osed to espousing the cause of either 
 combatant, but favored impartial neutrality 
 between them. 
 
 Citizen Genet arrived at Philadelphia in 
 April, 1793, as the Minister of the French 
 Republic, and at once sought to involve this 
 country in war with Great Britain, and issued 
 commissions to vessels of war to sail from 
 American ports to cruise against the enemies 
 of France ; and on April 22, 1793, the Presi- 
 dent issued his celebrated proclamation of 
 neutrality in the war among the nations of 
 Europe. Genet pretended to feel ver}^ much 
 outraged because our government would not 
 espouse the cause of his country, and threat- 
 ened to appeal to the j)eople of the United 
 States ; whereupon Washington demanded his 
 recall as Minister, which demand was granted ; 
 but Genet remained in this country. It was 
 said Genet introduced the idea of Demo- 
 cratic societies, which were first formed in 
 the United States about this time, in imita- 
 tion of the Jacobin clubs in France. At the 
 same time, the friction between the United 
 States and Great Britain was becoming in- 
 tense. On our part, we had failed to induce 
 the States to restore the property of the 
 Tories, which had been confiscated during 
 the Revolutionary AVar, as provided by the 
 Treaty of Peace of 1783; and England, on 
 her part, had failed to carry out her stipula- 
 tions in the same treaty, in regard to the va- 
 cation of the forts on the Great Lakes. At
 
 THE LAW OF CONSTRUCTIVE CONTEMl'T, 125 
 
 this juncture of affairs, Washingt(jii appointed 
 John Jay special envo}' to EnjL^hmd, who 
 iief»'otiated another treaty. The Jay Treaty, 
 as it is known in liistory, was submitted to 
 the Senate for ratification in June, 1705, and 
 was ratified the same month. This treaty was 
 ver}' unpopular amon<;' a large })ortion of the 
 American people, chietly because it provided 
 for the payment, by the national government, 
 of all debts due, by individuals, to Bi'itish 
 merchants or subjects, which were ])revented 
 from being collected by adverse State legis- 
 lation, just after the close of the Kevolution- 
 ar\' War. These debts were mostly due to 
 Bi'itish subjects, who had never been here, or 
 to former British residents, who had remained 
 loyal to the Biitish government. The ratifi- 
 cation of this treaty caused intense excitement 
 in the country, the extent of which may be 
 realized by the fact that John Jay, the author 
 of the treaty, and one of the fathers of the 
 Revolution, and the first Chief Justice of the 
 Supreme Court of the United States, was 
 burned in efligy; and Hamilton, a strong 
 advocate of the ratification of the treaty, was 
 pelted with stones in the street, by which he 
 was wounded till the blood trickled down his 
 face. Before the ratification of this treaty 
 the feeling of hostility against England was 
 very strong ; but its ratification made it worse 
 for a year or two. The decrees, issued by 
 Great Britain and France, against neutral 
 vessels trading with each other, had the effect 
 to interfere with our commerce on the seas ;
 
 120 THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 and these not only intensified tlie feeling of 
 hostility ci gainst England, but aroused a 
 spirit of positive opposition against Fi-ance 
 for the first time. The controversy be- 
 came a partisan one, the Republicans favoi- 
 ing France, and Washington and the Fed- 
 eralists favoring neutrality. This was the 
 status of affairs when Washington retired 
 from the Presidency in 1797. Genet was 
 still in this country as an agitator in French 
 interests, and, about the same time, France 
 sent over here Yolney, Cooper, Preistly, 
 Paine, Rowan, Tandy and others to convince 
 us our Revolution had not gone far enough; 
 and Great Britain sent her emissaries to con- 
 vince us it had gone too far. The emissaries 
 of France went from village to village, with 
 a view of creating a sentiment among the 
 people for our intervention in the war in her 
 favor. Our neutrality embittered her against 
 us, and her decrees, affecting the commerce of 
 the world, aroused a spirit of opposition 
 against her among us; and in 1797, our i"e- 
 lations with her were becoming very much 
 strained. The American Minister, Charles 
 C. Pinckney, had been expelled from their 
 territory by the French rulers, who also issued 
 new orders for depredations upon American 
 commerce. Congress passed a law, in June, 
 1797, to prevent xVmerican citizens from fit- 
 ting out or employing ])rivateers against 
 nations at peace with the United States ; and 
 the President was authorized to call out the 
 militia. Notwithstanding the course of
 
 THE LAW OF CONSTRUCTIVE CONTEMPT. 127 
 
 France, in expelling- our Minister fi'om its 
 territory, and its depredations upon our com- 
 mei'ce, the President, in order to avoid a rup- 
 tui'e and war, appointed Charles C. Pinckney, 
 Elbridge Gerry, and John IMarshall special 
 envoys to the Republic of Fiance, with ample 
 l)0wer to negotiate a treaty of comnieice and 
 amity. These gentlemen met in Paris in 
 October, 1797, and attempted to execute 
 their commission. The events which followed 
 were calculated to excite, and did excite, 
 the indignation of the American people. The 
 French government refused to recognize, offi- 
 cially, our envoys, but employed individuals 
 to confer with them in their private capacit}'. 
 The correspondence, on the part of those rep- 
 resenting France, was not done in their own 
 names, which wei'e then unknown, but by the 
 letters X Y Z ; and the letters passing be- 
 tween our Ministeis and these unknown par- 
 ties are known in history as " The X Y Z 
 Correspondece." Our Ministers soon dis- 
 covered that no treaty could be entered into, 
 which would be honorable to the United 
 States ; and the French government oi-dered 
 Pinckney and Marshall, on account of their 
 staunch Americanism, to leave the country, 
 but invited Gerry to remain. AVhen the 
 dispatches from oui' envoys were made 
 public, they excited very genei'al indignation 
 in the United States, particularly when it was 
 known that the French negotiators had de- 
 manded money as the price of peace with us. 
 Our people responded to the sentiment of Mr.
 
 128 THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 Piiu;kiiey on that occasion, " Millions for 
 defense, but not a cent for tribute." Mr. 
 Gerry was severely censured for not leaving 
 France with his colleagues, and he was finally 
 ordered home by the President. This was 
 the situation during the first session of the 
 Fifth Congress which lasted till July, 1798. 
 This Congress passed laws for the protection 
 of navigation, for maintaining neutral it}^ for 
 the defense of the sea-coast, for the suspen- 
 sion of commercial intercourse between the 
 United States and France, and for raising and 
 equipping an army for defense ; and Wash- 
 ington was again called upon to command our 
 military forces. In 1798, it was estimated 
 that there were thirty thousand French citi- 
 zens in the United States, clamoring for our 
 intervention in favor of their country ; and 
 fifty thousand British subjects, some of whom 
 had been Tories during the Revolutionai-y 
 War ; and of course, the presence of the latter 
 among us was well calculated to inflame the 
 public mind not only against them, but also 
 against their country, especially when it is 
 remembered that they were here for the pur- 
 pose of collecting debts, the collection of 
 which had been prohibited by State legisla- 
 tion, because of their want of fealty to the 
 Revolutionary cause. 
 
 These were the conditions in Jul}^ 1798, 
 and this the feeling in this country towards 
 the citizens of France and the subjects of 
 Great Britain ; and these were the chief causes 
 of the passage of the Alien Law, but there
 
 THE LAW OF CONSTRUCTIVE CONTEMPT. 129 
 
 were other causes for an embittered feeling 
 against tlie press, and partially against 
 aliens, which contributed to the sentiment in 
 fa vol-, not only of the Alien Law, but also of 
 the Sedition Law ; and these also assumed a 
 partisan hue. 
 
 The newspapers became the oigans of the 
 respective parties, and during the period from 
 1783 to 1801, it seemed to be accepted as a 
 ])olitical axiom, license was synonymous with 
 the freedoni of the press. " Xothing in the 
 histoi-y of the time is so startling as its (the 
 press) coarseness and cruelty, its venomous 
 vigor of invective, its contemi)t of all that 
 should be sacred in political warfare and |)ri- 
 vate life." Street brawls with fists and i)is- 
 tols, duels and murders were not infrequent. 
 Everybody in Philadelphia, the then seat of 
 government, went armed. Senators and rep- 
 resentatives of the opposing parties took pains 
 to avoid each other on the streets, f(ji' fear 
 they might have to tip their hats to their 
 political enemies; and it is said Jefferson, 
 who was Vice-president from 1797 to 1801, 
 often took a roundabout way fi'om the Sen- 
 ate chamber to his rooms, in order to escape 
 insult from his political foes. Mr. Alexander 
 Dallas, in a speech in Duane's case, tried at 
 Philadel[)hia in 1800, which grew out of the 
 agitation for the repeal of the Alien and Sedi- 
 tion Laws, used this language : " There were 
 two periods when evei'y one wore weapons of 
 defense from necessity. The first, when the 
 police were so defective that robberies vvei'e 
 
 9
 
 130 THE LAW OF CONSTRUCTIVK CONTKMPT. 
 
 constant, and self-protection became necessary 
 through the defects of the law. The second, 
 when political fury rose to such a height, as in 
 1785-6, that it no longer became a question 
 of defense against robbers, but against polit- 
 ical opponents." In 1797, there were, prob- 
 ably, in the United States, two hundred news- 
 papers published. Twenty or twenty-five of 
 these op})osed Adams's administration, with 
 unexampled bitterness ; and they, being edited 
 mostly by the exiles or emissaries of foreign 
 lands, a hostile feeling was aroused, not only 
 against the press, but also against the aliens. 
 The most prominent among these exiles or aliens 
 of foreign lands, who published newspapers 
 in this country, during Adams's administration, 
 were James T. Callender of Richmond, Va., 
 Benjamin Franklin Bache, a son-in-law of 
 Dr. Benjamin Franklin, Thomas Cooper, 
 and Matthew Lyon. In 1793, Philip Fre- 
 neau, a Frenchman, published the National 
 Grazette at Philadelphia ; and though he was 
 a clerk in the State Department, under Mr. 
 Jefferson, he attacked Pi'esident Washington 
 and his policies with much vehemence, and 
 even malice. President Washington retired 
 from office on the fourth of March, 1797; and 
 on the next day, Bache, in his paper, The 
 Aurora^ published at Philadelphia, had this 
 to say about that event: "The man, who is 
 the source of all the misfortunes of our 
 country, is this day i-educed to a level with his 
 fellow-citizens, and is now no longer pos- 
 sessed of the power to multiply evils upon the
 
 THE LAW OF CONSTRUCTIVE CONTEMPT. 131 
 
 United States, If ever there was a [)eriorl 
 for I'ejoicing, this is the moment. All hearts, 
 in unison with fi'eedom and the hai)i>iness of 
 the people, ou^^ht to heat high in exultation 
 that the name of Washington, on this day, 
 ceased to give currency to political iniquity 
 and legalized corruption." This publication 
 so incensed some of the veterans of the Kevo- 
 hition, who had served under Washington, 
 that they demolished the office of The Aurora 
 and threw its types and presses into the 
 stieets, and otherwise expressed their indig- 
 nation. The agitation at once commenced 
 for some rei)ressive measures for the suppres- 
 sion of incendiary and seditious publications 
 against the President and those high in 
 authority, which was kept up till the summer 
 of 1798. There being a majority for the 
 administration in both Houses, Congress 
 lashed into fury by " the X Y Z Corres})ond- 
 ence " and the contemptuous conduct of 
 France towards our nation, and by the scur- 
 rilous and mnlicious attacks of the opposition 
 papers, on Washington, Adams and others, 
 in a moment of weakness, enacted first the 
 Alien Law, June 25, and then the Sedition 
 Law, July 14, 1798. 
 
 The Alien Law invested the President of 
 the United States with the power of ordering 
 "all such aliens as he should judge dangerous 
 to the peace and safety of the United States, 
 or should have any reasonable gi-ounds to 
 suspect, were concerned in any treasonable 
 or any secret machinations against the gov-
 
 132 THE LAW OF CON>TUUCTIVK CONTEMPT. 
 
 ernment thereof, to depart out of the terri- 
 tory of the United States, within such time 
 as should be expressed in such order," and 
 it was further provided that if such order was 
 not complied with, the parties should be judged 
 guilty of an offense, be imprisoned for a term 
 not exceeding three years, and be incapaci- 
 tated for subsequent citizenship ; and in case 
 war should be declared, the President was 
 authorized to apprehend and lemove the sub- 
 jects of the belligerent powers. This act, hy 
 its own terms, expired June 25, 1800. 
 
 The Sedition Act provided, " That if any 
 person shall write, print, utter, publish * * * 
 any false, scandalous and malicious writing 
 or writings against the govei'nment of the 
 United States or either House of Congress 
 or the President, with the intent to defame 
 said government, or either House of Congress 
 or the President; to bring them into con- 
 tempt or disrepute; to excite against them, 
 or any of them, the hatred of the good people 
 of the United States ; or to stir up sedition 
 within the United States ; or to incite any 
 unlawful combinations therein for opposing 
 or resisting a law of the United States or any 
 act of the President done in pursuance of any 
 such act, or of the powers vested by the Con- 
 stitution ; or to resist, oppose or defeat any 
 such law or act," upon conviction should 
 be fined not exceeding two thousand dollars 
 and imprisoned not exceeding two years. It 
 was provided, however, that the accused might 
 give in evidence the truth of the charges
 
 TIIK LAW OF CON8TRUCTIVK CONTKMPT. 133 
 
 against him and that the jury slioiiM be the 
 iu'lii-es of tlu! hnv and the fact under the 
 direction of the coui-t. This pi'ovision in this 
 othei'wise odious hisv embodies the principle 
 for which Zenger and Bradford contended, 
 and marks at that early day the steady prog- 
 ress of liberty. 
 
 This (ict^ hij its own terms, expired on the 
 third day of March, 1801. 
 
 The Alien and Sedition Laws were re- 
 sisted by the whole power of the Republican 
 party, before as well as after their passage, 
 not because it justified the slandering or libel- 
 ing of the President and Congress and the 
 government, but because it condemned the 
 interference of the national government in 
 regard to the freedom of the press or of 
 religion. That party held that the States 
 retained the riglit to determine ^^ hoio far the 
 licentiousness of sjjeech or the press may he 
 forbidden loithout lessening their useful free- 
 dom and how those abuses which cannot be 
 separated from their use should he tolerated 
 rather than destroy the use."" Here again 
 we see the contest was about the manner of 
 restraining the press rather than its unre- 
 strained freedom. 
 
 The press had been vituperative ;ind vin- 
 dictive prior to the passage of these laws but 
 they made it worse. "The aliens became 
 more fractious and the seditious more scurril- 
 ous, and the result was the government found 
 itself impudently bullied by those it attempted 
 to chastise. It was reserved for later times
 
 134 THE LAW OF CONSTRUCTIVE CONTEMPT. • 
 
 to demonstrate that after all, a press the most 
 unfettered is a press the most restrained." 
 
 Another thing that made these laws 
 obnoxious was they were substantial copies 
 of English statutes on the same subjects, 
 passed in 1794, and because they seemed to 
 follow the laws of England and the European 
 monarchies in removing our chief officials 
 from the I'cgion of criticism ; and the hatred 
 of England was utilized by the Republicans 
 to intensify the feeling of hostility against 
 the authors of these laws. 
 
 In 1798, the Virginia legislatnre passed 
 resolutions declaring the Alien and Sedition 
 Laws unconstitutioiud and that the States, in 
 case Congress by its legislation, exceeded its 
 constitutional powei's, were the judges as well 
 of those powers, as of the remedy when such 
 powers were exceeded ; and Kentucky, in the 
 same month, adopted a set of resolutions, 
 written by Mr. Jefferson, which declared 
 these laws unconstitutional and that each 
 State, in the last resort, had an eqnal right 
 to judge for itself as well of infractions of the 
 Constitution as of the mode and measure of 
 redress. 
 
 The Virginia and Kentucky resolutions 
 were sent to the other States and their in- 
 dorsement and approval asked. Delaware 
 passed a resolution declaring that the resolu- 
 tions were unfit for consideration even. 
 Rhode Island and Massachusetts answei-ed 
 that the}' had no right, as States, to resist 
 Federal legislation, but the final arbiter, as
 
 THE T.AW OF CONSTIIUCTIVE CONTEMPT, 135 
 
 to the constitutionality of acts of Congress 
 was in the iSuprcnie Court of the United 
 States. Both States, however, th ught the 
 A hen and Sedition Laws not onl}' constitu- 
 tional, but at the same time highly necessary. 
 Connecticut refused to concur in the resolu- 
 tions l)ecause it considei-ed the acts were 
 constitutional and proper; New Hauipshire 
 refused to give an opinion because it claimed 
 no authoi'ity to do so, l)ut it intimated the acts 
 were constitutional; Vermont thought the 
 Supreme Court the final arbiter ; New York 
 regarded the resolutions as inflammatory and 
 pernicious and refused to give an opinion on 
 the constitutionality of these laws as that 
 prerogative was not within its province. The 
 other States made no reply. In 1799 the 
 States of Virginia and Kentucky considered 
 the answei's to thein-esolutions and reaffirmed 
 their original resolutions with emphasis and 
 with some important additions. For instance, 
 Kentucky asserted the doctrine of nullifica- 
 tion, which became a subject of i)olitical 
 agitation in after years. These resolutions, 
 while not using the word " secession," con- 
 tained the principle of secession as they were 
 afterwards construed by all parties, and as 
 stated above, the Southern States attempted 
 to secede in 1861 and the Civil War and the 
 abolition of slavery followed and the doctrine 
 of secession was eliminated from our govern- 
 ment forever by the arbitrament of the sword. 
 There is but little question that Adams, ex- 
 cept for the Alien and Sedition Laws, would
 
 136 THE LAW OF CONSTRUCTIVK CONTEMPT. 
 
 have been re-elected President in 1800 for he 
 had the support of one hundred and eighty 
 out of the two hundi'ed newspapers then 
 published, and his vigorous measures against 
 the domineering insults of France in 1798 
 had turned the tide in his favoi", and it had 
 become manifest long before the election that 
 France was not going to establish a republic 
 at all but was drifting back to the worst of 
 despotisms, and hence there would have been 
 no sympathy for her in N^ovember, 1800, that 
 could have operated favorably to his oppo- 
 nent. But it seems the fates were against 
 Adams. France, seeing that we were de- 
 termined to defend our honor, yielded and 
 there was no war; and to make Adams' folly, 
 in a political sense, more conspicuous, there 
 were several prosecutions prior to and during 
 the Presidential campaign of 1800 for treason 
 and for libel against the President, which, not 
 so much for the matter as the manner of the 
 prosecutions, created much popular indigna- 
 tion and gave the Republican pai'ty, headed by 
 Mr. Jefferson, an oppoi'tunity not only to deny 
 the constitutionality of these laws, but also 
 to appear before the people as the especial 
 champion of the freedom of the press. 
 Adams was defeated and the Republican 
 part}^ put in poAver, which it retained with but 
 slight interruptions for sixty years. The 
 course of administration was thus changed 
 and it w^ould be a profitless task to speculate 
 as to " what might have been " had the change 
 not then occurred. It is enough for us to 
 know what has been.
 
 APPENDIX D. 
 
 BATTLES FOR TUt: FRKEDOM OF THE PRESS — THE 
 ALIEN AND SEDITION LAWS. 
 
 MATTIiP:vV LYON'S CASE. 
 
 The fii'st prosecution under tlie libel clause 
 of the Seflition Law was tliat of Matthew 
 Lyon, of Rutland, Yennont. 
 
 Lyon came over here from Tn-land in 1755, 
 poor and penniless, and as the custom was 
 then, he was sold for a time to pay his pas- 
 sage money, and Mr. Liversworth of Cam- 
 bi'idg-e, Massachusetts, became the purchaser, 
 the i)urchase price being " a pair of thi'ee-year- 
 old bull stags." Liversworth took him to 
 Vermont where he served out liis time. He 
 picked up some education. He was made a 
 corporal in the army under Gates, but with- 
 out leave, went home for Thanksgiving one 
 year, for which he was cashiered, but was 
 reinstated next year and made paymaster in 
 the army, which position he soon gave up on 
 account of a srpiabble with another officer. 
 He went to Fair Haven and engaged in paper 
 making, printing, etc. — was given permis- 
 sion to i-aise six hundred bushels of wheat by 
 a lottery — wheat then being the standard of 
 values. He published " The Scourge of 
 Aristocracy and Repository of Important 
 Political Truth," on paper made by him- 
 self — married Governor Chittenden's daugh- 
 ter — denounced the Society of the Cincinnati 
 in his paper, and was elected to Congress in 
 
 (137)
 
 138 THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 1796. The Porcupine Gazette, June 6, 1797, 
 had this to say of him : — 
 
 " The Lyon of Vermont. — This singuhir 
 animal is said to have been caught in the bogs 
 of llybernia, and when a whelp, transported 
 to America; curiosity induced a New Yorker 
 to buy him, and moving into the country 
 afterwards, exchanged him for a yoke of 
 young bulls with a Vermontese. He was 
 petted by the neighbors of Governor Ciit- 
 tenden and soon became so domesticated that 
 a daughter of his Excellency would stroke 
 and play with him as a monkey. He differs 
 from the Afi-ican Lyon, is more clamorous 
 and less magnanimous. His pelt resembles 
 more the wolf or the tiger and his gestures 
 bear a remarkable resemblance to the bear. 
 This may, however, be due to his having 
 been in the habit of associating with that 
 species of wild beasts on the mountains ; he 
 is carnivorous but not very ferocious — has 
 never been detected in having attacked a gen- 
 tleman, but report says he will beat women. 
 He was brought to this city (Philadelphia) 
 in a wagon, and has several days exposed 
 himself to the public. It has been motioned 
 to cage him as he has discovered so much 
 uneasiness at going wnth the crowd. Many 
 gentlemen who have seen him do not hesitate 
 to declare that they think him a most extra- 
 ordinai-y beast." 
 
 Before the log fire in the House of Repre- 
 sentatives at Philadelphia, he and Roger 
 Griswald had two fights over his having been
 
 TlIK LAW OF CONSTKUCTIVIC CONTEMPT. 139 
 
 cashiLTed by Gates, wliieli led to motions in 
 the House to exi)el l)Oth, but they failed as to 
 both. 
 
 On the 20th day of June, 1798, and it must 
 here be remembered that this was Ijefore the 
 passage of tlie Sedition Law, he wrote a 
 letter which was published in the Vermont 
 Journal at Windsoi', Vt., on the 23rd day of 
 July, 1798, this being after the passage of the 
 Sedition Law. In this letter, he stated : " As 
 to the executive, when I shall see the efforts 
 of that power bent on the promotion of the 
 comfort, the happiness and the accommodation 
 of the people, that executive shall have my 
 zealous and uniform support; but whenever 
 I shall, on the part of the executive, see every 
 consideration of the public welfare swallowed 
 up in the continual grasp for power, in an 
 unbounded thirst for ridiculous pomp, fool- 
 ish adulation and selfish avarice ; when I 
 shall behold men of real merit daily turned 
 out of office, for no other cause but mdepend- 
 ency of sentiment ; when I shall see men of 
 firmness, merit, years, ability, and experience 
 discarded in their applications for office for 
 fear they possess that independence, and 
 men of meanness preferred for the ease with 
 which they take up and advocate opinions, of 
 the consecpiences of which they know but 
 little — when I see the sacred name of relig- 
 ion employed as the State engine to make 
 mankind hate and [)ersecute one another, I 
 shall not be their humble advocate." 
 
 In the same [)aper was published a letter
 
 140 THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 wliich pui-ported to have been written by a 
 Fnjiich diplomat. Tliis letter is known as the 
 Barlow letter bnt it has been charged that it 
 was wi'itten by Lyon himself. The letter was 
 snpposed to i-efiect the views of the French re- 
 public in regard to our government. It stated : 
 " The misunderstanding between the two 
 governments (France and the United States) 
 has become extremely alarming ; confidence is 
 completely destro3^ed, mistrusts, jealousies, 
 and the disposition to a wrong attribution of 
 motives, are so apparent as to require the 
 utmost caution in every word and action that 
 are to come from your executive. I mean if 
 your obj(!ct is to avoid hostilities. Had this 
 truth been understood with you before the 
 recall of Monroe, before the coming and second 
 coming of Pinckney ; had it guided the pens 
 that wrote the bullying speech of your Presi- 
 dent, and the stupid answ^er of jouv Senate, 
 at the opening of Congress in IS^ovember last, 
 I should probably have no occasion to address 
 3^ou this letter. But when we found him bor- 
 rowing the language of Edmund Burke, and 
 telling the world that although he should suc- 
 ceed in treating with the French, there was 
 no dependence to be placed in any of their 
 engagements, that their religion and their 
 morality were at an end, that they would tuiMi 
 pirates and plunderei's and it would be neces- 
 sary to be perpetually armed against them, 
 though you were at peace ; we wondered that 
 the answer of both Houses had not been an 
 order to send him to the madhouse. Instead
 
 THK LAW OF CONSTKUCTIVK CONTEMIT. 141 
 
 t)t' this, tlie Senate has cclioed tiu- Hpecch 
 with more .sei vility tliaii even George III ex- 
 j)erienced from either House of Parliament." 
 Lyon was indicted, OctoI)ei' 5, 1798, for pub- 
 lisliiiio- these two letters, it being charged 
 that he published them " with the intent to stir 
 up sedition and l)ring the President and C(jn- 
 gress of the United States into contempt." 
 He was tried before Judge Paterson, an As- 
 sociate Justice of theSnpi'eme Coui't, and (jue 
 cu'cumstance took place wliich deserves special 
 mention. He acted as his own attorney 
 and during the trial, in order to pi'ove the 
 truth of the charge in the letters, he asked 
 the presiding judge if he knew Mr. Adams 
 and if he did not think ]\[r. Adams was an 
 aristocrat. The judge, while on the bench, 
 stated that he had been tolei'ably intimate 
 with the President and that he had never seen 
 anytlung in his conduct that indicated that 
 he was an aristocrat. Lyon was convicted 
 and his punishment fixed at a fine of one 
 thousand dollars and imprisonment in jail 
 four months. He paid his fine and served out 
 his time in jail. While in jail he was re-elected 
 to Congress. It was said that his imprison- 
 ment was enforced by a rigor that excited the 
 indignation of the peoi)le, but he would not 
 try to escape. In fact his enemies chaiged 
 that he desired to make a martyi' of himself on 
 account of this prosecution and imprisonment. 
 His wife visited him while in jail and she in- 
 sisted he should neither escape nor accept a 
 pardon from the President, if it should be
 
 142 TIIK LAW OF CONSTRUCTIVE CONTEMPT. 
 
 tendered him. After serving his time out, he 
 went to Philadelphia and took his seat in the 
 House. A motion was made to expel him but 
 it failed because there were not two-thirds in 
 favor of his expulsion, the vote standing 
 forty-eight against him and forty-five for him. 
 He declined an election in 1800, and in 1801 
 he moved to Kentucky. In 1803, he was sent 
 to Congress from Kentucky and found him- 
 self a hero, the majority in the House being- 
 then in his favor. He served as a member 
 from Kentucky until 1811, when he was ap- 
 pointed factor for the Cherokee Indians by 
 thePi'esident, and he moved west of the Mis- 
 sissippi river. It seems he was a man of 
 great physical endurance, for he made a trip 
 from Arkansas to Kentucky and Washington 
 on horseback, and in the last years of his life, 
 he took a raft to ISTew Orleans, in doing which 
 he suffered a great deal. He died at Spadre 
 Bluff, Ark., August 1, 1822, at the age of 
 seventy-seven. In 1810, Congress refunded 
 the fine which had been imposed upon him 
 in 1798, with interest, to his relative^, at the 
 same time condemning- the law under which 
 he had been convicted. 
 
 The case of Lyon has some resemblance, in 
 many of its aspects, to that of John Wilkes 
 in England in 1769. AVilkes was convicted 
 in the King's Bench, on the third day of 
 February, 1769, " for having printed and pub- 
 lished a seditious libel and three obscene and 
 impius libels," and was fined and imprisoned. 
 He, being a member of the House of Com-
 
 THE LAW OF CONSTRUCTIVE CONTE.MI'T. 14/i 
 
 moiis, wasoxpc^lled liccause of tliis conviction, 
 but the fVcchohlcrs of Middlesex re-elected 
 him and he was ag"ain expelled. The frec- 
 hohh'rs a<4ain elected him and he was a<4ain 
 ex|)elled. These elections were without op- 
 position. On the 13th of Ai)iil, 1769, a new- 
 election was ordered and ^Ir. Luttci-el had 
 the backbone to become an oi)})onent of Mr. 
 Wilkes, but AVilkes received 1,143 votes and 
 Lutterel 296. The sheriff returned ^Fr. 
 Wilkes, but the House detei'mined that ^fr. 
 Lutterel was duly elected on the ground that 
 Wilkes was not elig'ible. There was an at- 
 tempt to expel Lyon from the House, but it 
 failed. The Federalists, howevei- all voted 
 for his expulsion and thus increased the sus- 
 picion, that they favored the P^nglish policies 
 and were disposed to follow English prece- 
 dents. Otherwise the Lyon case did not 
 have much political influence, as his trial be- 
 fore Judge Paterson was conducted with 
 great calmness and decorum, and there was 
 no indignation aroused on account of the 
 methods adopted in his prosecution.
 
 APPENDIX E. 
 
 THE BATTLES FOR THE FREEDOM OF THE PRESS — 
 THE ALIEN AND SEDITION LAWS. 
 
 Anthony Haswell's Case. — Another 
 prosecution under the Sedition Law may be 
 cited as an echo of the Lyon case, and tliat is 
 the one against Anthony Ilaswell. Mr. Ilas- 
 well was born in Portsmouth, Eng., in 1756. 
 He was at an early age connected with the 
 English navy but, disliking a seafaring life, 
 he found his way to this country, coming 
 first to Philadelphia where a sister of his 
 lived. He engaged in the Continental service 
 in defense of American liberty during the 
 Revolutionary AYar and periled his life at the 
 battle of Monmouth. After the war, he 
 located at Bennington in what is now Ver- 
 mont, and in 1783, he, with one or two other 
 parties, established the Vermont Gazette \sh.\Q\\ 
 he and his descendents continued to publish 
 up to 1850. His papei- took an active part in 
 the controversy between ISTew York and Xew 
 Hampshire, respecting the right of jurisdic- 
 tion over the territory included in what was 
 known as the " N^ew Hampshire Grants." 
 By the time the Federal Constitution was 
 adopted, this controversy had been closed and 
 the State of Vermont was admitted to the 
 Union, March 4, 1791. Previous to the ad- 
 mission of the State, post offices had been 
 established at various places in it, and ]Mr. 
 Haswell was appointed Postmaster General 
 for the " Grants." Diu'ing Washington's 
 (144)
 
 TIIK LAW OF CONSTUUCTIVE CONTEMIT. 145 
 
 administrations, tliere existed comparatively 
 little diversity of political opinion in Veiinont 
 but when the Presidential election of 1796 
 approached, the peoi)le there marshaled them- 
 selves into opposing political camps, which 
 then divided the country. Mr. Haswell at- 
 tached himself to the Kepuhlican or Demo- 
 cratic party and hecame its staunch supporter. 
 He was indicted in 1799 for the publication in 
 his paper of the following notice : — 
 
 " To the Enemies of Political Persecution 
 in the Western District of Vermont. — Your 
 representative (Matthew Lyon) is holden by 
 the oppressive hand of usurped power in a 
 loathsome prison, deprived almost of the right 
 of reason, suffeiing all the indignities which 
 can be heaped upon him by a hard-hearted 
 savage who has, to the disgrace of Federal- 
 ism, been elevated to a station where he can 
 satiate his barbarity on the misery of his vic- 
 tims. But in spite of Fitch (the marshal) and 
 to their sorrow, time will pass away; the 
 month of February will arrive and will it 
 bi-iiig liberty to the defender of your rights? 
 No. Without exertion, it will not. Eleven 
 hundred dollai's must be paid for his ransom. 
 This money it is impossible for Col. Lyon to 
 raise in any ordinary way. A contribution is 
 talked of, but this is an uncertain, huiuiliating 
 and precarious method. Col. Lyon has 
 adopted a plan which accords with his feel- 
 ings, and he hopes it may be w^ith those of his 
 friends. The plan is this: lie has purchased 
 a grant for a lottery, u[)on which he has formed 
 
 10
 
 14 G THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 a scheme whei'eby be rlesigns to sell tickets 
 for money to the amount of his fine and con- 
 sequent losses; and pay the prizes in land, 
 houses, and such other property as he has to 
 dispose of. May we not hope that this amount 
 may answer the desired purpose, and that our 
 representative shall not languish a day in 
 prison for want of money after the measure 
 of Federal injustice is filled upV " 
 
 This article was published by the agents 
 of the lottery scheme. Haswell also inserted 
 in his paper, right under the above notice, an 
 item taken from the Aurora, as follows : " At 
 the same time the administration publicly no- 
 tified that Tories, men who had fought 
 against oui' independence, who had shai'ed in 
 the desolation of our homes and the abuse of 
 our wives and daughters, were men who were 
 worth}^ of the confidence of our government." 
 He was tried before Judge Paterson at Wind- 
 sor, Vt., May 5, 1800 — was convicted, and 
 his punishment fixed at a fine of two hundred 
 dollars and imprisonment in jail two months. 
 The following is an account of Mr. Has- 
 well's treatment pi'ior to and after his convic- 
 tion : — 
 
 " He was arrested at night and notified to 
 ])repare for a journey to Rutland earl}' in the 
 morning. Accordingly, at a very eai'ly hour, 
 Mr. Haswell, although in very poor health, 
 and totally unaccustomed to riding, was com- 
 pelled to mount a horse and ride sixty 
 miles through the rain on a cold day in Octo- 
 ber, to the jail at Rutland. Hei'e he was 
 thrown into a filthy prison at midnight, not-
 
 THE LAW OF CONSTRUCTIVE CONTEMPT. 147 
 
 witlist;ni«liiig- his ontreatieB to be permitted 
 to di-y his clothes, which were saturated 
 with the rain, and to repose liimself in decent 
 quai'ters after the fatigue of the joui'ney. 
 S(!veral of th(; most responsible men in Rut- 
 land offei'ed any security the mai'shal mi^^ht 
 demand to induce him to grant these requests, 
 but in vain. The prisoner was thrown into 
 the prison and never afterwards recovered en- 
 tirely from the shock, thus given to his 
 health. From Rutland, he was taken, next 
 morning, to Windsor, where he was to be 
 tried. His sentence was rigidl}^ carried out, 
 and he was remanded to the jail at Benning- 
 ton to fulfill his imprisonment. At the expi- 
 ration of his sentence an immense concourse 
 of people fi-om the neighboring county assem- 
 bled to welcome him back to liberty and to 
 signahze their disapprobation of his impris- 
 onment. He marched forth fi'om his quar- 
 ters at the jail to the tune of Yankee Doodle, 
 played by a band, while the discharge of can- 
 non signified the general satisfaction at his 
 release." 
 
 This account of Ilaswell's ti-eatment is 
 probably very much exaggerated, but it was 
 ])ublished far and wide and had the desired 
 effect to inflame the public mind against the 
 administration during the Presidential cam- 
 paign. Xothing particularly noteworthy took 
 place at the trial. Haswell offered pi'oof to 
 the jury as to the inhuman treatment of Lyon, 
 by the jailer, as a justification of the charge in 
 the indictment, but the jury, under the charge 
 of the court, found against him on that point.
 
 148 THE LAW OF COXSTKUCTIVE CONTE.MrT. 
 
 Mr. Hyswell died Mny 22, 1816, at the age 
 of sixty years. In 1844, Congress passed a 
 law, refunding to his representatives the 
 amount of the fine imposed on him in this 
 case, with interest for forty years. 
 
 In extenuation of the conduct of Lyon in 
 operating a lottery to raise money to pay his 
 fine and the costs of the prosecution and of 
 the indorsement of that method by his friends, 
 it may he stated that at that time, many, prob- 
 ably all of the States, authorized lotteries to 
 raise money for public and private purposes. 
 That was a favorite means of raising money 
 to found schools and asylums, to build bi'idges, 
 to make roads, etc., and England raised a 
 large part of her annual revenue by govern- 
 ment lottei'y. The immorality and vicious- 
 ness of lotteries were not fully recognized in 
 this country and Great Britain till about 
 1820-30. Even as late as 1826, at Jeffer- 
 son's own I'equest, Congress authorized him 
 to dispose of his property by a lottery in 
 order to enable him to pay his debts. Wash- 
 inton City, under laws of Congress at that 
 time, operated a lottery to raise money for 
 municipal pur[)Oses, and on February 22,1827, 
 authorized that city to include in its lottery 
 scheme the lands of Mr. Jefferson. So it 
 ought not to surprise anyone that in 1799 a 
 notice was published stating that a Congress- 
 man had obtained the gi'ant of a lottery to 
 raise money to pay his ransom, as he called it, 
 and which plan, it was stated, accoi'ded with 
 his feelings and he hoped that it might 
 accoi'd with those of his friends.
 
 APPENDIX F. 
 
 THE BATTLES FOlt THE FREEDOM (»F THE PHESS — 
 THE ALIEN AND SEDITION LAWS. 
 
 Coopf:ii's Cask. — Another ease arising 
 undei- the Sedition Law was that of Thomas 
 Cooj^er, and as this case j^rew out of one of 
 the m(>st bitter conti'oversies of the time and 
 had much inflnence on the com'se of political 
 opinion in the campaign of 1800, it will be 
 ap[)ropriate to <>'ive a bi'ief statement showing 
 the circumstances out of which it grew. One 
 Thomas Nash, alias Jonathon Kobbins, was 
 arrested at Charleston, S. C, on a wari'ant 
 issued by Judge Bee, on sus[)icion of having 
 been concerned in a mutiny on board the 
 Bi'itish frigate Ilermione in 1791, which ended 
 in the murdei' of the principal officers and the 
 carrying of the frigate into the Spanish port, 
 La Guyra, in Venezuela, by the mutineers, 
 where they sold the frigate and its cai'go to 
 Spanish subjects. Nash, alias Kobbins, es- 
 caped to the United States and the Bi'itish 
 government demanded his surrender under 
 the twenty-seventh article of the treaty be- 
 tween the United States and herself. Affi- 
 davits were made, charging Xash, alias Rob- 
 bins, with being a |)articipator in the mutiny 
 and the sale of the shi|) and its cargo. He 
 filed an affidavit in his own behalf, stating that 
 he was born in Danbury, (Connecticut; that 
 he was pressed into the British service off of the 
 brig Betsy of New York, commanded by Cap- 
 tain White and bound for St. Nicholas Mole, 
 
 (149)
 
 150 THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 by the British frigate Ilermione, commanded 
 by Captain Wilkinson, and was there detained 
 conti'ary to his will in the service of the Brit- 
 ish nation, until the said vessel was captured 
 by her crew, and that he gave no assistance 
 to such capture. The question whether he 
 ought to be extradited, under the cii'cum- 
 stances, came before Judge Bee, in June, 
 1799, on wi'it of habeas corpus, and while 
 that question was pending before him, the 
 Secretary of State addressed a letter to the 
 judge, informing him that the application had 
 been made by the British minister, Liston, for 
 the extradition of the prisoner under the 
 treaty, and stating that the President had 
 authorized him (the Secretary of State) to 
 communicate to the judge " his advice and 
 request," that Thomas Nash ( Jonathon Kob- 
 bins) be delivered to the consul or other agent 
 of Great Britain. On the first day of July, 
 1797, upon a hearing of the habeas corpus, 
 the judge decided that he ought to be delivered 
 up to the British authorities, which was accord- 
 ingly done, and he was taken to Jamaica, 
 tried for the crime of murder, and executed. 
 The Kepublican press attacked the adminis- 
 tration with great fury for extraditing Kob- 
 bins on two grounds, first, that a murder 
 committed on the high seas was triable here, 
 though committed on a foreign vessel ; and, 
 second, the interference of Adams with the 
 pi'oceedings in court. 
 
 Mr. Cooper was born in London in 1759 
 and was educated at Oxford. He studied law
 
 THE LAW OF CONSTULCTI VK CONTEMl'T. 151 
 
 aiul was adinitU'd to tlic hiw. lie also took u 
 coui-se ill the sciences and became a great 
 chemist. Soon after his advent to the bar in 
 1792, lie accepted an ambassadorship from 
 the Democratic club in England to a club in 
 Fi'ance, Mr. Watt of steam engine fame sign- 
 ing his credentials. For this, Watt and 
 Cooper were both assailed in the House of 
 Commons by Mr. Burke. Mr. Cooper re- 
 turned to England in the course of a year or 
 two and he replied to Burke's strictures in a 
 pami)hlet, " which made u[) for the want of 
 vivacity of its style by the excessive inflamma- 
 tion of its temper." lie finally, in company 
 with Di'. Priestley, came to this country. He 
 seemed to be impressed with the idea, on 
 Landing on our shores, that the government 
 would soon demand his services and he ap- 
 plied to President Adams for a position, 
 which was not given him, whereupon he be- 
 came violently opposed to the Federal party. 
 In December, 1799, he being then the editor 
 of the Sunbury and Northumberland Gazette, 
 published an ai'ticle in which he undertook to 
 explain why he had asked ^Ii'. Adams for an 
 office, which article is as follows : — 
 
 " Xor did I see any impropriety in making 
 this request of Mr. Adams. At that time, 
 he had just entered into office; he was hardly 
 in '^ " * the infancy of political mis- 
 take. Even those who doubted his capacity 
 thought well of his intentions. Xor were 
 we yet saddled with the expense of a * " * 
 permanent navy nor threatened under his
 
 152 THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 anspicos with the existence of a standing 
 army Onr credit wns not yet reduced so 
 low as to borrow money at eight per cent 
 in time of ])eace, while the unnecessary 
 violence of official expressions might justly 
 have provoked a war. Mr. Adams had not 
 yet projected his embassies to Prussia, 
 Russia, and the Sublime Poi'te, nor had 
 he yet interfered as President of the United 
 States to influence the decisions of the 
 court of justice — a stretch of authority 
 which the monarch of Great Britain would 
 have shrunk from — an interference without 
 precedent, against law^ and against mercy. 
 This melancholy case of Jonathon Robbins, 
 a native citizen of America, forcibly impressed 
 by the British and delivered up with the advice 
 of Ml". Adams to the mock trial of the British 
 court-martial, had not yet astonished the 
 Republican citizens of a free country ; a case 
 too little known but of which the people ought 
 to be fully apprised, and they shall be." 
 
 For publishing this article, Mr. Cooper was 
 arrested at Philadelphia iu April, 1800, on an 
 information filed by the District Attorney 
 before Mr. Justice Samuel Chase and Mr. 
 Justice Peters. He was tried and convicted 
 and his punishment fixed at a fine of four 
 hundred dollars and imprisonment in jail six 
 months. He paid the fine and served out his 
 time in jail. Judge Chase, in his charge to 
 the jury in this case, dwelt at considerable 
 length on each item of the publication which 
 was the basis of the charge and insisted that
 
 THK LAW OF CON8TRUCTIVK CONTEMPT. 153 
 
 the object of Mr. Cooper was to bring the 
 President into contempt l)etV)i'e tbe people of 
 the United States. In ordci- to show tiie 
 gi'eat contrast between the views entei'tained 
 a hundred yeai's age and now, in regai'd to 
 the criticism of tlie President, a part of the 
 charge of Judge Chase to the jui'v is givi-n. 
 "In this alhision," says the Judge, "to 
 Jonathon Pobbins, he expressly tells you this 
 is 'a case too little known, but of which the 
 people ought to Ik; fully aj)prised before the 
 election, and they shall be.' Here then the 
 evident design of the travei'ser (Coo))er) was to 
 arouse the people against the Pi'esident so as 
 to inflame their minds against him at the next 
 election. I think it right to explain this to 
 you because it proves tliat the ti'averser v^as 
 actuated by improper motives to make this 
 charge against the Piesident." But the 
 judge was liberal enough in the trial of this 
 case to allow Mr. Cooper to read public docu- 
 ments to the jury to pi'ove the truth of the 
 charge, but eludge Chase was too much bent 
 on conviction to allow him to escape. 
 
 This case illustrates the folly of the gov- 
 ernment's attempt to suppress adverse criti- 
 cism, though it be unjust and even malicious. 
 The President had been ci'iticiscd for the 
 extradition of Robbins prior to this trial but 
 this made it woi'se. The Kobbins case was 
 made a political issue and in the winter of 
 1800, it was introduced into the House of 
 Representatives by ri'solution condemning 
 Mr. Adams and a long debate followed. A
 
 154 THE LAW OF CONSTKUCTIVE CONTEMPT. 
 
 sul)stitute for the eoiidenining resolutions was 
 offered approving the action of the President. 
 The debates on this question were very able and 
 exciting- and were pai'ticipated in against the 
 administration by Livingston, -Gallatin, and 
 others and in favor of the administration by 
 John Marshall, then a member of the House, 
 who afterwards became the great Chief Jus- 
 tice of the Supreme Court of the United 
 State, Bayard, and others. The condemna- 
 tory resolutions were finally defeated by a 
 vote of sixty-two to thirty-five and there the 
 matter ended, the approving resolutions never 
 having been voted on. In the fall of 1800, a 
 handbill was issued, inclosed in black lines 
 like the "coffin handbills" of the times and 
 was posted throughout the country as fol- 
 lows : — 
 
 " Reader, if thou art a Christian and a free- 
 man, consider by what unexampled causes it 
 has become necessary to construct this monu- 
 ment of national degradation and individual 
 injustice which is erected to commemorate a 
 citizen of the United States, Jonathon Rob- 
 bins, mariner and native of Danbury in the 
 pious and industrious State of Connecticut, 
 who under the Presidency of John Adams 
 and by his advice, when Timothy Pickering 
 was Secretary of State, was delivered up to 
 the British government by whom he was 
 ignominiously j)ut to death because he was an 
 Amei'ican citizen ; who after having been 
 barbarously forced into the service of his 
 country's worst enemy and forced to fight
 
 THE LAW OF CONSTRUCTIVE CONTEMPT. 155 
 
 against bis conscience anrl his country (jn 
 board tbc Britisb frigate llerniione, com- 
 manded by a monster of the name of Pigot, 
 bravely asserted his light to freedom as a man 
 and boldly extricated himself fi'om the bond- 
 age of his tyrannical oppressors, after devot- 
 ing them to meiited destruction. If you are 
 seamen, pause — cast your eyes into your 
 soul and ask if you had been as Robbins was, 
 what would you have done? Wiiat ought 
 you to do? And look at Kobbins hanging at 
 a British yard-arm ; he was your comrade and 
 as ti'ue a tar as ever strapped block ; he was 
 your fellow-citizen and as bi'ave a heart as 
 bled at Lexington or Trenton ; like you, he 
 was a member of a republic, proud of ])ast 
 glories and boastful of national honor, virtue, 
 and independence; like him, you one day may 
 be trussed up to satiate British vengeance, 
 your heinous crime daring to jirefer danger 
 and death to a base bondage, Alas poor Kob- 
 bins ! Alas poor liberty ! Alas poor humbled 
 and degenerate country ! " 
 
 Thus it seemed th;it every effort made by 
 the Adams' administi-ation to suppress criti- 
 cism only added fuel to the flames; and this 
 handbill is a mountain torrent as compared 
 to the article Cooper published and for which 
 he was convicted. There is very little doubt, 
 as Mr. J(jhn jNIarshall showed very clearly in 
 his speech, that President Adams was entirely 
 right in assuming that tiie duty to extradite 
 those cliarged with crime devolved on him, 
 and that the crime with which Robbins was
 
 156 THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 charii't'fl, havinof been committed on l)otird n 
 British frigate, was exclusively within the 
 jurisdiction of the British government; but 
 the lettei- of the Secretary of State to the 
 judge while he had undei- consideration the 
 question of the validity of the extradition 
 papers, was, to say the very least, very indis- 
 creet, and it gave the political opponents of 
 the administration the opportunity to make 
 political capital out of the case. Mr. Cooper, 
 after serving his time out in jail and after the 
 inauguration of President Jefferson, became 
 an object of much interest on account of his 
 sufferings and he was regarded by the Kepub- 
 licans as a great martyr. He was appointed 
 a commissioner to settle the Luzerne difficul- 
 ties in Pennsylvania — a duty he discharged 
 with remarkable skill and success. Then he 
 was appointed by Gov. Thomas McKean, the 
 presiding judge of the eighth circuit of the 
 State. He had untiring industry, philosophi- 
 cal attainments, and a courageous temper 
 but he was a failure as a judge. He had not 
 what the lawyers call " The judicial tempera- 
 ment." He was so severe and oftentimes 
 whimsical in his office, especially in keeping 
 order in the coui't-room, that charges were 
 brought against him, before the legislature in 
 1811, for his impeachment. One of these 
 charges was that while on the bench in open 
 court, he stated that the Presbyterian and 
 Quaker professions of faith w^ere, " all damned 
 nonsense." He was also charged with cor- 
 rupt practices. The legislature examined
 
 THE LAW OF CONSTRUCTIVE CONTEMl'T. 157 
 
 into the matter aiul, while not finding aiiy- 
 tliing in the charges that justified articK-s of 
 impeachment, adopted an address to the 
 governor to I'emove him, which was done. 
 Heie again we must note the stiange vicissi- 
 tudes of a partisan. This attempt to impeach 
 Cooper V, as made !)y tlie same jKU-ty with 
 which he had been aftihated and the same 
 party that had instigated the impeachment of 
 Chase. Here again, he showed his fickleness 
 and turned against the Kepuhlican party. 
 Like Callender, he felt a natural disgust 
 when he found that under Jefferson many 
 men weie |)ut ahead of him who had not re- 
 ceived the honor of martyrdom under Mr. 
 Adams. In 181], he said he had gone to 
 France in 1792 as an enthusiast and returned 
 in disgust, and after seventeen yeai's spent 
 here, he had found that a Democratic govern- 
 ment was not as perfect in practice as it was 
 l^eautiful in theory. 
 
 ]\rr. Cooper's fine chemical acquii'ements, 
 which during all the storms of his eventful 
 life had never been submerged, now gave him 
 a safe I'etreat. lie was fii'st placed in a phil- 
 osophical professorship in Dickenson's Col- 
 lege and afterwards in a highly honorable 
 post in the University of Pennsylvania, which 
 he finally abandoned for the Chemical Chair 
 in Columbia College, South Carolina, of 
 which he soon became president. lie took a 
 bold part in the nullification controversy' in 
 1832, issuing documents of the most ultra 
 States' rights tone which showed that he had
 
 158 THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 lost notliing of the fire of the pamphleteer of 
 1795-1800. He died in 1840 when engaged 
 in revising the South Carolina statutes, a 
 duty charged on him hy the legislature, after 
 having published besides numberless tracts 
 on politics, divinity, and metaphysics, a 
 treatise on the bankrupt laws, a translation 
 of Justinian, a treatise on political economy, 
 a manual of chemistry, as well as a general 
 compendium of useful information. 
 
 In 1840 Congress i-efunded to him the fine 
 that he had paid, with interest thereon.
 
 APPENDIX G. 
 
 BATTLES FOR THE FREEDOM OF THE PRESS — THE 
 ALIEN AND SEDITION LAWS. 
 
 Callexder's Case. — The* most i)ic'tiir- 
 esque and dramatic case arising under the 
 Sedition Law was that of James Thomp- 
 son Caliender, on account of tlie actors aiul 
 the conduct of the trial as well as on account 
 of the law under which the trial was had. 
 Caliender was a Scotchman, and wrote a 
 work called " The Political Progress of Gi'eat 
 Britain," on account of which he had to 
 leave England. lie came to this countiy and 
 took charge of the Richmond Examiner. 
 He was a fiery Rejniblican, and in the early 
 part of the campaign of 1800, he wrote a 
 pamphlet entitled " The Prospect Before 
 Us," which was circulated as a campaign 
 document against the administration and in 
 favor of Mr. Jefferson. Samuel Chase, an 
 Associate Justice of the Supreme Court of 
 the United States, who had tried the Cooper 
 case at Philadelphia in April, 1800, and who 
 lived at Baltimore, went to Kichmond in May, 
 1800, and it was alleged that befoi-e leaving 
 home he obtained a copy of the " Prosj)ect 
 Before Us," and remarked that he would go 
 down to Richmond and teach the lawyers there 
 the difference between the licentiousness and 
 the liberty of the press, and even before he 
 reached Richmond, affidavits were made set- 
 ting out his remarks and were cii-culated 
 thi'oughout the country, and threats were then 
 
 (159)
 
 160 THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 iniulc that Mr. Justice Chase would be im- 
 peached. When the justice arrived at the 
 court house in Richmond, he found it filled 
 with the most eminent lawyers of Virginia, 
 and ex[)ectation was at a high pitch. Cal- 
 lender was indicted in due time by the ^rand 
 jury, and arrjiigned before Mr. Justice Chase 
 foi- trial. Tile most important parts of tlie 
 "Prospect Before Us ' which were made the 
 basis of the charge in the indictment were as 
 follows : — 
 
 " The reign of Mr. Adams has been one 
 continued tempest of malignant passions. As 
 President, he has never o)3ened his lips or lifted 
 his pen without threatening and scolding; the 
 grand object of his administration has been to 
 exasperate the rage of contending parties, to 
 calumniate and destroy ever}' man who differs 
 from his opinions. Mr. Adams has labored 
 with melancholy success to break up the bonds 
 of social affection and friendship, to extinguish 
 the only gleam of hapjiiness that glimmers 
 through the dark and despicable farce of life. 
 * * * Adams and Washington have since 
 been shaping a series of these paper jobbers 
 into judges and embassadors, as their whole 
 courage lies in want of shame ; these pol- 
 troons, without risking a manly and intelli- 
 gible defense of their own meanness, raise an 
 affected yelp against the corruption of the 
 French Directory, as if any corruption 
 would be more venal, moi'c notorious, 
 more execrated than their own. The ob- 
 ject of Mr. Adams was to commence a
 
 THE LAW OF CONSTRUCTIVK CONTEMPT. 1»51 
 
 Fi-ench war, professedly for the sake of sup- 
 porting American commerce, Ijutin reality for 
 the sake of yoking into alliance with the 
 British tyrant * * * You will choose 
 between that man whose life is unspotted by 
 crime and that man whose hands are reeking 
 with the blood of the pooi', friendless Con- 
 necticut sailor. I see the tear of indignation 
 starting on your cheek! You anticipate the 
 name of John Adams. Every feature in the 
 conduct of Mr. Adams forms a distinct and 
 additional evidence that he was detei-mined, 
 at all events, to embroil us in war with 
 France. Mr. Adams has only completed the 
 scene of ignominy which Mr. Washington 
 began * * * He was a professed aristo- 
 crat ; he had proved faithful and serviceable 
 to the British interest * * * By sending 
 these embassadors to Paris, Mr. Adams and 
 his British faction designed to do nothing but 
 mischief. In that paper with all the cowardly 
 insolence arising fiom his assurance of per- 
 sonal safet}"", but without the propriety or 
 sublimity of Homer's Achilles, this hoary- 
 headed incendiary, this libeler of the govern- 
 ment of Virginia, howls out to arms I then to 
 arms J * * * When a chief magistrate, 
 both in his speeches and newspapers, is con- 
 stantly reviling France, he can neither expect 
 nor desire to live long in peace with her. 
 Take your choice then between xVdams, war 
 and beggary, and Jefferson, peace and com- 
 petency." 
 
 Mr. Justice Chase did not conduct this 
 11
 
 162 THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 trial with as much fairness and cahnness as 
 he did that of Cooper at Philadelphia. He 
 had tried the case of John Fries, one of the 
 Northampton insurgents, at Philadelphia, and 
 had aroused a great deal of indignation among 
 the members of the bar on account of the 
 methods he adopted, and he was very severely 
 criticised for this and it is charged that the 
 trial of Fries and of Cooper had excited him 
 to a high pitch, and when he came to the 
 trial of Callender, he seems to have lost 
 the judicial temper entirely and assumed 
 that of an excited partisan of Mr. Adams. 
 Mr. Carson, in his history of the Supreme 
 Court of the United States, says • this of 
 Chase: "Irascible, vain, overbearing and 
 sometimes tyrannical, but learned, able, pat- 
 riotic and of spotless honor and with an in- 
 stinct for tumult and a faculty for ]Dromoting 
 insurrections at the bar, moving perpetually 
 with the mob at his heels, a suite from which, 
 as Dr. Wharton says, ' even the judicial office 
 could not separate him:' he trusted, with 
 general success, to his fearlessness to extri- 
 cate himself from the disorders which his im- 
 prudence fomented." Such eminent counsel 
 as Hay, Nicholas, and William Wirt, ap- 
 peared for Callender, and the conduct of the 
 trial and the rulings of the judge w^ere so 
 contrary to wdiat is ordinarily done, that the 
 indignation of these lawyers and the whole 
 public were intensely excited. The news- 
 papers of the day, for the first time, pub- 
 lished the speeches of the lawyers, the evi-
 
 TIIK LAW OF CONST KLCTIVE CONTKMI'T. 1(33 
 
 dence, and the rulings of tlie court in extciiso 
 and this ci'cated the wildest excitement 
 thi'oug-hont the whole country. 
 
 The statement in the pamplilet that the 
 hands of Mr. Adams were " i-eeking with the 
 blood of the poor, friendless Connecticut 
 sailor," refers, of course, to Jonathon 
 Robbins. 
 
 In this case, as indeed in all the cases 
 arising under the Sedition Law, the defend- 
 ant insisted that that law was unconstitutional 
 and void. Mr. William Wirt, one of the 
 most eminent and influential lawyers of the 
 period, in his defense of Callender, made one 
 remarkable point. It was then a mooted 
 question whether even the courts were 
 authorized under our Constitution to declare 
 an act of Congress unconstitutional, but Mr. 
 Wirt took several steps in advance of that 
 proposition and argued that the jury had the 
 power and right to do that. He persisted in 
 this argument to such an extent that the 
 court ordered him to take his seat, holdino- 
 first, that the law was constitutional, and 
 second, that it was not within the province of 
 the jur}' to pass on such a question and he 
 emphatically refused to permit Mr. Wii't to 
 argue that point to the jury. During the 
 trial, all three of the defendant's attorne3's 
 were successively ordei-ed by the court to take 
 their seats. There can be but little doubt 
 that the defense in this case so planned in ad- 
 vance and cari'ied that plan out to make this 
 trial an issue in the then pending campaign
 
 1(>4 THE LAW OF CONSTRUCTIVE C^ONTEMTT. 
 
 and they succeeded to their entire satisfaction. 
 Callender was convicted and his punishment 
 fixed at a fine of two hundred dollars and im- 
 prisonment in jail for nine months. 
 
 By the time this trial was ended, Mr. Adams 
 and his friends evidently saw that their re- 
 pressive measures were making things worse 
 and there was no impoitant tiial under the 
 law after that. March 3, 1801, this odious 
 law expired according to its own terms and 
 the spell was broken. The Adams adminis- 
 tration for sixteen months had thoroughly 
 tested the efficiency of repressive measures 
 to prevent adverse criticism and had ignomin- 
 iously failed. The more it prosecuted, the 
 more coarse and vituperative the criticism 
 became, and on March 4, 1801, Mr. Adams 
 was so angry and felt so humiliated, not so 
 much because he had been defeated as on 
 account of the causes of his defeat, that he 
 and his wife got into a carriage and left 
 Washington without waiting to attend or see 
 Mr. Jefferson's inauguration. A change 
 came over the spirit of the American people 
 in a day. March 3 was very different from 
 March I, 1801. Mr. Jefferson, after having 
 carried on a campaign, unexampled for its 
 bitterness and personal animosities, in his 
 inaugural address announced, that, " we are 
 all Republicans — we are all Federalists." 
 
 But now it came Jefferson's turn to have 
 trouble with the press. He pardoned Cal- 
 lender as he did all others who were still in 
 prison or under indictment, after his inaugu-
 
 TlIK LAW OF CON8TKUCTIVK CONTEMI'T. 1 <!5 
 
 ration. ]N[i-s. Aduins inn letter to Mr. Jeffer- 
 son had accused him of liberating "a wretch 
 who was suffering for a libel against Mi-. 
 Adams " and replying to that charge in a let- 
 ter to Mrs. Adams under date of July 22, 
 1804, Mr. Jeffei-son said, *' I discharged every 
 person under punishment or [)rosccution under 
 the Sedition Law, because I considered and 
 now consider that law to be a nullity, as abso- 
 lute and as palpable as if Congress had ordered 
 us to fall down and worship a golden image; 
 and that it was as much my duty to arrest its 
 execution in every stage as it would have 
 been to have rescued from the fiery furnace, 
 those cast into it for refusing to worship the 
 image." 
 
 Callendei', on his liberation, feeling he had 
 suffered martyrdom for the Republican cause, 
 applied to the President for the pc^stmaster- 
 ship of Richmond and failing to get it, he 
 turned against the administration and became 
 its bitter foe. lie c;une in charge of a paper 
 of Richmond called The Recorder and he 
 went as far in his denunciation of Jefferson in 
 that papei" as he had gone in former years 
 airainst Mr. Adams. ^Hie Federalists made 
 use of their new-found friend and his hitherto 
 obscui'e journal found its way to all parts of 
 the country. Callender attacked Mr. Jeffer- 
 son personall}', accusing iiim of having paid 
 for the articles he had published against Mr. 
 Adams and for the publication of which he 
 had been convicted of libel. He dragged the 
 President's private character before the pub-
 
 166 THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 lie and every private act which could be tor- 
 tured by any means into a vice was hi id before 
 the people. He sought in every way possible 
 to bring his quandom fi'iend into public con- 
 tempt. His publications and allegations gave 
 rise to the article Crosswell published, which 
 became the basis of a charge of libel against 
 him and Mr. Jefferson found it necessary to 
 explain his relations with Callender, not only 
 in his lettei- to Mrs. Adams, but also in one to 
 Monroe, an account of which was given in the 
 history of Crosswell' s case. 
 
 Callender, having been made an issue in 
 the Presidential campaign of 1800 and after 
 having deserted his old friends and gone over 
 to his former enemies, met a miserable death. 
 lie was found dead in the James River near 
 Richmond, having been drowned, as it was 
 supposed, while in a state of intoxication. 
 
 When Congress, in 1844, refunded to Has- 
 well's representatives the fine which had been 
 imposed on him and which he had |)aid, one 
 of the most exciting and sensational chapters 
 in American history was closed. The object 
 lessons afforded the American people by the 
 enforcement of the Sedition Law were so sen- 
 sational and impressive and the results so dis- 
 astrous to those who by means of that law 
 tried to suppress adverse criticism of the press 
 that no party since has even suggested a 
 similar law. Ever since then, the criticised 
 have deemed it wise and prudent to suffer the 
 ills they endure rather than fly to others they 
 know not of.
 
 TIIIC LAW OF CONSTRUCT! VK CJONTK.MI'T. 1 < M 
 
 Althoug-li JeCfcM-son aiwl Adams liad Ijeen 
 bitter political opponents np to 180(>, in aftcM* 
 years they became very warm friends and they 
 kept np a correspondence as long as they both 
 lived. These two remarkable Revolntionary 
 pati-iots, who had contributed so much to the 
 glory and development of their country, both 
 died on the same day and that on the 
 anniversnry of our independence, the fourth 
 day of July, 182(5. 
 
 Chase's Case. — As has been stated, the 
 agitation for the impeachment of Judge Chase 
 began before Callender was tried and it ceased 
 not till 180^, when the majority of the Re- 
 publicans in the House of Kepresentatives 
 became strong enough to prefer and it did 
 prefer articles of impeachment against him 
 and he was tried by the Senate in 1805. The 
 principal charges contained in the impeach- 
 ment articles grew out of the trial of Fries at 
 Philadelphia and the trial of Callender, but 
 when it came to a vote, all the charges ex- 
 cept those connected with the Callender tiial, 
 were susbstantially ignored. 
 
 During the trial, Callender called John 
 Taylor i\s a witness in his own behalf but the 
 judge refused to permit his examination until 
 the attorneys informed him what they ex- 
 pected to prove ; he even required theni to 
 write out and submit to him the questions 
 they proposed to propound to the witness, 
 which being done and linding the object to 
 be to [)rove that Adams was an aristocrat and
 
 1G8 THK LAW OV CONSTRUCTIVE CONTEMPT. 
 
 had advocated measures in Congress which 
 were regarded by the Republicans as inimical 
 to the best interests of the people, he refused 
 to allow the witness to be examined. This 
 ruling of his and his general conduct in re- 
 gard to this point were charged in the Third 
 Article of the Impeachment as a high mis- 
 demeanor; and eighteen senators voted him 
 guilt}'^ on this charge and sixteen declared him 
 not guilt3\ Article Four of the Im])eachment 
 charged him with rude, contemptuous and in- 
 decent behavior during the trial, and again 
 there were eighteen senators against him to 
 sixteen for him on this charge. There not 
 being a majority of two-thirds in favor of his 
 conviction, he was duly acquitted. He was 
 thus saved, so it was thought, by reason of 
 his age and the eminent services he had ren- 
 dered the country in former years. lie had 
 stood firmly and courageously for American 
 liberty during the dark days of the Kevolu- 
 tionary AVar ; he was one of the immortal sign- 
 ers of the Declaration of Independence ; he 
 was a member of Congress from 1774: to 1784 
 and he was an appointee of Washington who 
 made him an associate justice of the Supreme 
 Coui't, January 27, 1796.
 
 APPENDIX II. 
 
 TIIK BATFLK FOIi TIIK FKEKDOM OF THK PHKSS IN 
 CONGRESS — PECK'S IMPEACHMENT. 
 
 In 1826-31 arose another case which in- 
 fluenced national legishition on the subject of 
 the impeachment for contempt of court, and 
 that was the case of James II. Peck, judge of 
 the United States District Court at St. Louis. 
 At that time, there was a laige number of 
 cases in the coui'ts involving the title to lands 
 which were alleged to have been granted to 
 })rivate [)ai'ties by the Spanish government, in 
 the Louisiana Territory, fi'om the time it 
 acquii'ed that territory from France to its ces- 
 sion to us in 1803. One of these cases, 
 Julia Soulard and others against the United 
 States, came before Judge Peck for adjudi- 
 cation. Luke Edward Lawless, a mem- 
 ber of the bar of the Federal court at St. 
 Louis, appeared as attorney for the plain- 
 tiffs in that case and Judge Peck, when In- 
 came to dispose of it, WM'ote a lengthy opin- 
 ion and did what was then in the West, a 
 very unusual thing, i)ublished it in the 
 Republican, now the St. Louis Repuhlic. 
 in Ai)i"il, 1826; and Lawless, on April 8 of 
 the same year, wrote and caused to be pub- 
 lished in the Missouri Advocate and St. Louis 
 Enquirer, an article signed, " A Citizen," 
 in which the soundness of the ()i)inion of Judge 
 Peck was attacked, but not in offensive 
 language. Mr. Lawless in the article stated : 
 "Judge Peck in his oi)inion, it seems to me, 
 
 (U;9)
 
 170 Till-: LAW OF CONSTRUCTIVE CONTEMPT. 
 
 erred in the following- assumptions as well of 
 fact as of doctrine;" and then he gave eight- 
 een specifications of error, some of history, 
 some ol" fact and some of law, but all couched 
 in very respectful terms. The judge took 
 umbrage at the article, feeling that it was in- 
 defensible for a lawyer who was an officer of 
 his court to go before the public with objec- 
 tions to his decision and he caused Lawless 
 to be brought before him to answei' for con- 
 tempt of court. On being arraigned. Law- 
 less insisted that the court had no jurisdiction 
 to try him for any publication he might cause 
 to be inserted in the newspapers, even if such 
 publication was libelous and was calculated 
 and intended to bring the judge into con- 
 tempt or to impede or improperly influence 
 the administration of law. He denied, how- 
 ever, that the article was objectionable in any 
 sense, and said that he intended thereby no 
 disrespect to the court, but his sole object 
 was to present his views in which a large 
 number of people had a deep interest and be- 
 sides that, he could not have intended to in- 
 fluence the decision in that case because, 
 at the time of the publication, the case had 
 already been disposed of. The judge overruled 
 all these points and held that the article was 
 calculated and intended to bring him into con- 
 tempt before the people and to interfere with 
 and influence the disposition of other cases then 
 pending before him, involving the same ques- 
 tions. Upon a final hearing, the judge ordered 
 that Lawless be imprisoned twenty-four
 
 TIIK LAW OF CONSTRUCTIVK CONTK.M IT. 1 ( 1 
 
 hours and be di.sbai'i'cd. In Dt'ccuihci', 182(3, 
 Lawless presentc^d to the national House of 
 Kepresentatives the facts in this case and asked 
 for Peck's iinpeaelmient. l*e(dc replied to the 
 charg-es Lawless made and the matter hun^* 
 fii'e for some cause until April lo, 1830, when 
 the House of Repi'esentatives carried ai'ticles 
 of impeachment ag'ainst Peck by a vote of 
 one hundred and twenty-three to fort^'-nineand 
 he was arraigned upon them before the Senate 
 as a high court of impeachment. Among the 
 attorneys who api)eared in this case were 
 James Buchanan, afterwards President of 
 the United States, for the prosecution, and 
 William Wirt, for the defense, the same AVirt 
 who had been such a consj)icuous figure in the 
 events leading up to and in the trial of Chase, in 
 180J;-5. The trial terminated January 31, 
 1831, by an acquittal, the vote standing 
 twent3^-one for and twenty-two against con- 
 viction. The whole ground of the power as 
 well as the propriet}^ of courts punishing for 
 contempts not committed in their immediate 
 presence was thoroughly gone over b}' the 
 ablest lawyers of the country, and it is prob- 
 able Peck's ac(|uittal resulted more fi-om a 
 belief of the senators that he acted in good 
 faith in exercising jurisdiction and in holding 
 thearti(de in question a contempt, rather than 
 to the fact that those who voted for him con- 
 curi'ed in his views, especially as to the charac- 
 ter of the article. At this day, such an article 
 as the one Lawless published would be re- 
 garded as harmless, if not exceedingly tame.
 
 172 TllK LAW OF CONSTRUCTIVE CONTEMPT. 
 
 The trial, however, made a profound impres- 
 sion on the whole country and on March 2, 
 1831, a little over one month from its 
 termination, Cong-ress enacted a law intro- 
 duced by Mr. Buchanan, which limited and 
 defined the power of the Federal courts to 
 punish for contempts. It provided : " That 
 the power of the several courts of the United 
 States to issue attachments and inflict sum- 
 mary punishment for contempts of court 
 shall not be construed to extend to any cases 
 excei)t the misbehavior of any person or 
 persons in the presence of the said courts 
 or so near thereto as to obstruct the ad- 
 ministration of justice, the misbehavior of 
 any of the officers of the said courts in their 
 official transactions, and the disobedience or 
 resistance by any oflScer of the said courts, 
 party, juror, witness or other ])erson or per- 
 sons to any lawful writ, process, order, rule, 
 decree, or command of the said courts." It 
 provided, however, that it should be a criminal 
 offense for anyone to corruptly by threats or 
 force to endeavor to influence, intimidate, oi* 
 impede any juror, witness or officer in the 
 discharge of his duty, or corruptly by force 
 or threats to obstruct or impede the due ad- 
 ministration of justice in the courts, and sul)- 
 jected him to an indictment. 
 
 The Supreme Court of the United States 
 sustained the constitutionality of this act in 
 Ex parte Kobinson, 19th Wall. 505. This 
 case arose in the United States District Court 
 for the Western District of Arkansas in 1873.
 
 THE LAW OF CONSTRUCTIVE CONTEMPT. 173 
 
 Kobinsoii, bt'iiig- a member of the bar of that 
 eoiii'tjWa.s attached as for a contempt and was 
 charged with having induced a witness to 
 evade the service of process on him. After 
 a heai'ing, the court disban-ed iiim and Robin- 
 son brought the case before the Supreme 
 Court of the United States on aj)plication for 
 a writ of mandamus to compel the court be- 
 low to restore his name to the roll of lawyers. 
 The Supreme Court, referring to the act of 
 Uiivch 2, 1831, said: "The act, in terms, 
 ai)i)lies 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 api)lies to circuit and dis- 
 trict 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 thei'efore to them the law spe- 
 cifying the cases in which summary punish- 
 ment for contempts may be inflicted. * * * 
 As thus seen, the powei* of these coui'ts in 
 the punishment of contempts can only be exer- 
 cised to insure order and decorum in their pres- 
 ence, to secure faithfulness on the part of their 
 ofticers in their official transactions, and to 
 enforce obedience to their lawful orders, judg- 
 ments and processes." The court ordered 
 Robinson to be reinstated as a member of the 
 bar of the court below. 
 
 So, therefore, so far as the Supreme Court
 
 174 THE LAW OF CONSTKUCTIVE CONTEMPT. 
 
 of the United States is concerned, the ques- 
 tion whether courts created by a constitution 
 which vests in them " all judicial power" are 
 beyond the reach of the legislative depart- 
 ment in respect of that judicial power, is yet 
 an open, though, as stated by the court, a 
 doubtful one. That august tribunal has never 
 chosen to exercise its power to punish for con- 
 tempt not committed in its presence, though 
 many opportunitieshave arisen which could have 
 been seized upon to put in operation the pro- 
 cess of attachment for contempt, for its de- 
 cisions and its judges too have been assailed 
 in numerous cases and in a most vindictive, 
 turbulent and, in many cases, malicious way. 
 Hitherto the judges of that court have main- 
 tained a dignified silence and non-action, 
 assuming, it is to 'be presumed, that time 
 would vindicate them if they deserved vindi- 
 cation and if they did not deserve vindica- 
 tion, no action they could take would bene- 
 fit them. 
 
 But nevertheless, one thing is apparent by 
 the passage of the above act and that is that 
 Congress does not believe in the exercise of 
 the jurisdiction of the courts to punish for 
 contempts not committed in their immediate 
 presence, and it is made plain what its desire 
 is even in respect of the Supreme Court itself.
 
 APPENDIX I. 
 
 THE CONTEMPT STATUTE IN FORCE SINCE 1835 — 
 THE SECTIONS ARE THOSE OF THE REVISION OF 
 189!». 
 
 Sue. 1616. May Punish for Contempts. — 
 Every coiii't of record shall have power to 
 punish, as for a criminal contempt, j^ersons 
 g-uilty of any of the following acts, and no 
 other: First, disorderly, contem[)tuous or in- 
 solent behavior, committed during its sitting, 
 in immediate view and presence, and directly 
 tending to interru])t its proceedings, or to im- 
 pair the respect due to its authority; second, 
 any breach of the peace, noise or other dis- 
 turbance, directly tending to interi-upt its 
 proceedings; third, willful disobedience of 
 any process or order, lawfully issued or made 
 by it; fourth, resistance willfully offered by 
 any person to the lawful order or process of 
 the court; fifth, the contumacious or unlaw- 
 ful refusal of any person to be sworn as a 
 witness, or, when sworn, the like refusal to 
 answer any legal and [)roper interrogatory. 
 
 Sec. 1617. Punishment for Contem|)t. — 
 Punishment for Contempt may be by fine or 
 imprisonment in the jail of the county, where 
 the court may be sitting, or both, in the dis- 
 cretion of the court; but the line in no case 
 shall exceed the sum of fifty dollars, nor the 
 imprisonment ten days ; and where any per- 
 son shall be committed to prison for the non- 
 payment of any such fine, he shall be 
 discharged at the expiration of thirty days. 
 
 (175)
 
 17<) THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 Sec. 1618. May be Punished Suminarilj. — 
 Contempt committed in the immediate view 
 and presence of the court, may be punished 
 summarily: in other cases the party charged 
 shall be notified of the acusation and have a 
 reasonable time to make his defense. 
 
 Sec. 1619. Commitment for Contempt. — 
 Whenever any person shall be committed for 
 any contempt specified in this chapter, the 
 particular circumstances of his offense shall 
 be set forth in the order or warrant of com- 
 mitment. 
 
 Sec. 1620. Preceding' Sections Construed. — 
 Nothing contained in the preceding sections 
 shall be construed to extend to any proceed- 
 ing against parties or officers, as for con- 
 tempt, for the purpose of enforcing any civil 
 right or remedy. 
 
 Sec. 1621. Parties May Be Indicted, when. — 
 Persons punished for contempt under the 
 preceding provisions, shall, notwithstanding, 
 be liable to indictment for such contempt, if 
 the same be an indictable offense : but the 
 court before which a conviction shall be had 
 on such indictment shall, in forming its sen- 
 tence, take into consideration the punishment 
 before inflicted.
 
 APPENDIX L. 
 
 STATE K.v INK. GROW, Atty.-Gkx , v. SIIEPHEUD. 
 (Supreme Court of Missouri, Oct. 13, 1903.) 
 
 In Banc. Proceeding.s for coiitcMnpt l^y the 
 State, on the information of Edward C. Ci'ow, 
 Attorney-Genei'al, again.st J. M. Shej)herd. 
 Defendant adjndged gnilty of contempt. 
 
 Tlie Attorney-General, for plaintiff, X. M. 
 Bradley, and Alexander Xevv, for defendant. 
 
 Marshall, J. This is an ex officio informa- 
 tion by the Attorney-General, informing- the 
 court that the defendant, as publisher of a 
 certain weekly newspaper at Warrensbuig, 
 Mo., called the Standard-Herald, on the 19th 
 of June, 1903, published in said paper the 
 following article : " When a citizen of Mis- 
 soui'i stoi)s long enough to think of the condi- 
 tion of affairs in his State, it is enough to 
 chill his blood. A grand jury in Cole County 
 has just found indictments against four mem- 
 bers of the highest lawmaking body in the 
 State, and the St. Louis grand jury has heard 
 evidence within the ])ast few months that, if 
 it had the necessary jurisdiction, would have 
 indicted many other members of the State 
 Senate. The ^Missouri citizen has also seen 
 the Cole County grand jui-y dissolved before 
 the work mapped out for it was hardly begun, 
 on the advice of the Attorney-Genei-al of the 
 State. They also see the Chief Executive 
 sitting passively at his office in the State- 
 house, not making a move to bring to justice 
 the men who have been proven guilty of bood- 
 
 (177)
 
 178 THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 ling- in the Missouri Legislature by the St. 
 Louis griind jury, but over whom the authori- 
 ties of that city have uo jurisdictiou. And 
 now, as the ca])sheaf of all this coi'i'U])tioii in 
 high places, the Supreme Coui't has, at the 
 whipcrack of the Missouri Pacific Railroad, 
 sold its soul to the corporations, and allowed 
 Rube Oglesb}' to drag his wrecked frame 
 through this life without even the pitiful re- 
 muneration of a few paltry dollars. Learned 
 men of the law say that Rube Oglesby had the 
 best damage suit against a corporation ever 
 taken to the Supreme Court. This ver\^ tribu- 
 nal, after reading theevidence and hearing the 
 arguments of the attorneys, rendered a deci- 
 sion sustaining the judgment of the lower 
 court, which decision was concurred in by six 
 of the seven members of the court. This is 
 usually the end of such cases, and the deci- 
 sion of a Supreme Court, once made, usually 
 stands. But not so in the Oglesby case. 
 Three times was this case, at the request of 
 the railway attorneys, opened for reheai'ing, 
 and three times was the judgment of the lower 
 court sustained. But during this time, which 
 extended over a period of several years, the 
 legal department of this great corporation 
 was not the only department wdiich was busy 
 in circumventing the defeat of the Oglesby 
 case. The political department was very, 
 very busy. Each election has seen the hoist- 
 ing of a railway attorney to the Supreme 
 Bench, and, when that body was to the satis- 
 faction of the Missouri Pacific, the onslaught
 
 THE LAW OF CONSTRUCTIVE CONTEMI'T. 179 
 
 to kill the Oglesby case beg-an. A motion 
 for a rehearing was gi'anted, and at the hear- 
 ing of the case it was reversed on an error in 
 record of the trial conrt, and was sent back for 
 retrial. That was in the early part of the 
 year 1902. The case was tried in Sedalia be- 
 fore Circnit Judge Longan, one of the ablest 
 jurists in the State, and we have been informed 
 that no error was allowed to creep into the 
 record at the second ti'ial. Again the jury 
 rendered judgment in favor of Oglesby for 
 $15,000, and again the case was appealed to 
 the Snj)reme Court. An election was coming 
 on, and the railroad needed yet another man to 
 beat the Oglesby case. The Democratic 
 nominating convention was kind and fur- 
 nished him, in the person of Fox. The 
 railroad, backed by four judges on the 
 bench, allowed the case to come uj) for 
 final hearing, and Monday the decision was 
 handed down, reversed and not remanded for 
 retrial. The victory of the railroad has been 
 complete, and the corruption of the Supreme 
 Court has been thorough. It has reversed 
 and stultified itself in this case until no sane 
 man can have any other opinion but that the 
 judges who concurred in the opinion dismiss- 
 ing the Oglesby case have been bought in the 
 interest of the lailroad. What hope iiave the 
 ordinary citizens of Missouri for justice and 
 equitable laws in bodies where such open 
 venality is practiced? And how long will 
 they stand it? The corporations have long 
 owned the Legislature, now they own the
 
 180 THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 Supreme Court, aiul the citizen who applies 
 to either for juntiee against the corporation 
 gets nothing. Rube Oglesby and his attor- 
 ney, Mr. O. L. Honts, have made a sti'ong 
 fight for justice. They have not got it. The 
 quivering limb that Rube left beneath the 
 rotten freight car on Independence Hill, and 
 his blood that stained the right of way of the 
 soulless corporation, have been buried be- 
 neath the wise legal verbiage of a venal 
 court, and the wheels of the Juggernaut will 
 continue to grind out men's lives, and a 
 crooked court will continue to refuse them 
 and their relatives damages, until the time 
 comes when Missourians, irrespective of pol- 
 itics, rise up in their might and slay at the 
 ballot box the corporation-bought law-makers 
 of the State." 
 
 Upon the filing of said information, the 
 court caused to be issued against the defend- 
 ant the following citation: " Whereas, it is 
 I'eprescnted to our Sui)i'eme Court in banc, by 
 the infoi'mation of Edward C. Crow, Attor- 
 ney-General of the State of Missouri, ex of- 
 ficio, a copy of which information is hereto 
 attached, that yon, the said J. M. Shepherd, 
 publisher of a certain weekly newspaper at 
 the city of Warrensburg, Missouri, called the 
 Standard-Herald, did on the 19th day of 
 June, 1903, while the case of H. R. Oglesby, 
 respondent, against the Missouri Pacific Rail- 
 way Company, api)ellant, was and still is 
 pending in this court, publish a certain edi- 
 torial and article then and there charging the
 
 THE LAW OF CONSTRUCTIVE CONTEMPT. 181 
 
 Supreme Court of tlie State of Missouii, and 
 the nu'inhei-s tliei-eof, witli l)i-ibeiy and cor- 
 ni[)ti()n, ill connection with the action of the 
 court in the dis|)osition of said case, and that 
 you, tlie said J. X. Shephei'd, by said edi- 
 torial and article aforesaid, published in the 
 said Standard-HerahU did defame, de^-rade, 
 and insnlt tlie Su[)reme Coui't of the State of 
 Missoui'i, and the members thereof, and did 
 charge the said court and its members with 
 corruption and pai'tiality in the discharge of 
 their otticial duties, and in the judicial official 
 determination and disposition of said case of 
 Oglesby vs. The Missouri Pacific Railway 
 Company | 7(5 S. W. — ], and that said action 
 in publishing said editoi-ial and article brings 
 the Supreme Court, and the members thei'e- 
 of, and the highest department of the judicial 
 branch of the State government, charged with 
 the final disposition and enforcement of law 
 and justice, into disrepute, contumely, and 
 contempt, and tends to destroy the power and 
 influence of the court as an independent, co- 
 ordinate branch of the State government, in 
 the enforcement of the law and the adminis- 
 tration of justice, and tends to and does 
 causelessly inflame and incite the jn-ejudices 
 of the peoi)le against the said Supreme Couit, 
 and tends to and does affect the said court 
 so as to directly obstruct and interfere with 
 and impede the administration of justice in 
 the above-mentioned cause, and which said 
 cause is now and here pending in said Su- 
 preme Court: Now, therefore, you, the said
 
 182 THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 J. M. Shepherd, are hereby commanded to 
 be and appear before the Honorable Supreme 
 Court of Missouri, in banc, on Wednesda}'^, 
 July 22, 1903, at nine o'clock in the forenoon, 
 at the Supreme Courthouse in the City of Jef- 
 ferson, in the county of Cole, in the State of 
 Missouri, then, and there to show cause, if 
 any you have, why an attachment should not 
 issue against you for the contempt of this 
 coui't, in publishing- said editorial and article 
 a»foi'esaid, and hereof fail not." 
 
 On the return day of the rule the defendant 
 filed the following return : "In obedince to 
 the command of this court heretofore made 
 upon him. comes J. M. Shepherd, and for his 
 return to the order to show cause heretofore 
 issue herein, resj^ectfully shows: (1) That 
 this court has no jurisdiction to hear and de- 
 termine the charge as contained in said com- 
 plaint. (2) That said complaint and informa- 
 tion does not state facts sufficient to authorize 
 the issuance of an attachment for contempt 
 of this court. (3) That it is true that on the 
 19th day of June, 1903, and long prior there- 
 to, he was, and is still, the pubHsher and pro- 
 prietor of a weekly newspaper published in 
 the cit}' of Warrensburg, State of Missouri, 
 called the Standard-Herald, and that at said 
 date he caused to be published in said news- 
 paper the article set out in full in said com- 
 plaint. (1:) That he denies the other allega- 
 tions set out in said complaint and informa- 
 tion, and demands strict proof thereof. (5) 
 Said article was not issued or circulated in
 
 THE LAW OF CONSTHKTIVK CONTEMPT. 183 
 
 the ])i-c'S('nce or hearing of the eourt, and was 
 not inteiuled to interfere, nor did it intei'fere, 
 with any of the business of said conrt, oi- any 
 of its olHeers. (6) That notliing in said article 
 I'eferred to in said information tends to, or 
 does it, affect tlie said coui't so as to obstruct 
 or interfere with or impede the administra- 
 tion of justice l,)y said court. (7) That at the 
 time said article was published respondent be- 
 lieved the cause therein referred to had been 
 finally disposed of by this court, and, if said 
 cause was still pending in this court, he had 
 no knowledge of that fact. (8) Said complaint 
 and information, and the notice issued there- 
 in, and all proceedings thereunder, were and 
 are in violation of section 14, art. 2, of the 
 Constitution of Missouri, which provisions are 
 specially invoked herein. (9) That said infor- 
 mation, and the i)roceedings thereunder, as 
 proi)Osed, deny to said Shepherd the right of 
 a trial by jury of questions of which this court 
 has no ])ei-sonal knowledge, all in violation of 
 section 28, art. 2, of the Constitution of ]\[is- 
 souri, which is specially invoked herein. (10) 
 That said complaint, and the i)roceedings there- 
 under, as proposed, ai'e in violation of section 
 30, art. 2, of the Constitution of Missouri, 
 which is specially invoked herein. (11) That 
 said complaint and information, and the pro- 
 ceedings had and proposed thereunder, are all 
 in violation of section 1 of the fourteenth 
 amendment to the Constitution of the United 
 States, which is specially invoked herein, to- 
 gether with all the rights and privileges guar-
 
 184 THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 antied thcM'eiindei-. (V2) That section 161G of 
 the Revised Statutes for 1899 provides : ' Sec. 
 1616. May Punish Contempt. Every court 
 of record shall have j)o\ver to i)unish, as for a 
 criminal contemjit, persons guilty of an}' of 
 the following acts, and no other: First, dis- 
 orderly, contemptuous or insolent behavior, 
 committed during its sitting, in immediate 
 view and presence, and directly tending to in- 
 terrupt its proceedings, or to impair the re- 
 spect due to its authority; second, any breach 
 of the peace, noise or other disturbance, 
 directly tending to interrupt its proceedings ; 
 third, willful disobedience of any process or or- 
 der, lawfully issued or made by it ; fourth, re- 
 sistance willfully offered by any person to the 
 lawful order or process of the court; fifth, 
 the contumacious and unlawful refusal of any 
 person to be sworn as a witness, or when so 
 sworn, the like refusal to answer any legal 
 and proj)er interrogatory.' And this respond- 
 ent states that, by virtue of said statute, this 
 court is not authorized to punish this respond- 
 ent on account of any of the matters charged 
 in the information herein. Wherefore he 
 asks that this complaint be dismissed. 
 
 The matter coming on for hearing, the 
 defendant appeared in person and by counsel. 
 
 The Attorney-General, in open court, de- 
 manded of the defendant and his counsel to 
 know whether or not they desired an oppor- 
 tunity to introduce evidence to show the truth 
 of the matters charged in the articles aforesaid, 
 and announced the readiness of the State to
 
 TIIK LAW OF CONSTRUCTIVE CONTKMPT. 18-5 
 
 proceed at oiiee with tlie trial thereof. One of 
 defendant's counsel, Mr. New, stated that as 
 the return denied all the alleviations of the 
 infoi'ination not specially admitted, and de- 
 mande(i strict proof of the alle^-ations of the 
 infoiauation, his position was that the burden 
 of proof was u|)on the informant to prove the 
 falsit}^ of the chai'ges, and not u[)on the de- 
 fendant to prove the truth of the charges. The 
 other counsel foi- the defendant, Mr. Bi-adlev, 
 stated that, so far as he was concerned, he did 
 not believe the charges were true, and that he 
 did not desire an opportunity to introduce any 
 evidence to show that they were true. There- 
 upon the hearing was proceeded with ; the 
 defendant standing u[)on the defenses set u[) 
 in his I'eturn, with theadditional point that the 
 information was not verified. U[)on final sub- 
 mission, the coui't adjudged the defendant 
 guilty of contempt of court, and fixed his 
 punishment at a fine of $500 and costs, the 
 defendant to stand committed until the same 
 was paid. Thereupon the fine and costs were 
 paid. Ordinai'ily this would close the case 
 and the incident. But as this is the first case 
 of this charactei" that has ever arisen in this 
 State or court, it was stated at the time of 
 the rendition of the judgment that a written 
 opinion would be pi-epared and promulgated 
 latei-, in oi-der that the reasons upon which 
 the judgment rested, and the law a[)i)ricable 
 to such cases, might be known and under- 
 stood to the end that well-disposed and good 
 citizens might not innocently offend in such
 
 180 THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 regard, and that all others guilty of like vio- 
 lations of law should have notice of the con- 
 sequences. 
 
 1. The Contempt Involved in This Case. — 
 At the outset, it is proper to analyze the 
 article in question, so as to clearly understand 
 the character and scope of the charges. The 
 article starts out with an attack upon the 
 Attoi"ney-General and the Governor of the 
 State, in connection with offenses alleged to 
 have been committed by members of the leg- 
 islative branch of the govei'ument. Then it 
 alleges that, " as a capsheaf of all this cor- 
 ruption in high places," this court, " at the 
 whipci'ack of the Missouri Pacific Railroad, 
 sold its soul to the coi'porations," It then 
 refers to the course, on former appeal, of the 
 case of Oglesby against the Missouri Pacific 
 Pailroad in this court, and says: "Each 
 election has seen the hoisting of a railroad 
 attorney to the Supreme Bench." It then 
 charges that the case was reversed and re- 
 manded for a new trial, and upon such new 
 trial the plaintiff again obtained a verdict, 
 and an appeal was again taken ; that the rail- 
 road needed another man to beat the case, and 
 that the Democratic nominating convention 
 furnished him, and that " the railroad, backed 
 by four judges on the bench, allowed the case 
 to come up for final hearing; " and that the 
 judgment was reversed, and the cause not re- 
 manded for retrial. The article then charges 
 that " the victoi-y of the railroad has been 
 complete, and the corruption of the Supreme
 
 THE LAW OF CONSTKUCTIVK CONTKMI'T. 187 
 
 Coin"t lias Ix'en tlK»roiig-li. It has reversed 
 and stultified itself in this ease until no sane 
 man can have any other opinion but that the 
 judiies who coneurred in the ojjinion dismissing 
 the Oglesb}' case have been bought in the in- 
 terest of the railroad. What hoi)e have the 
 ordinary citizens of ^Missouri for justice and 
 equitable laws in bodies wheresuch ojjen venal- 
 ity is i)racticed? And how long- will they stand 
 itV The corpoi"ations liave long owned the 
 Legislatui'e, now thc}'^ own theSupremeCourt, 
 and the citizen who ai)plies to either for 
 justice against the corpoi'ation gets nothing." 
 Thus it will be observed that this scandalous 
 article makes the following charges : First, 
 it charges the Attoi'uey-General and the 
 Governor with faithlessness in the discharge 
 of their duties ; second, it charges the legis- 
 lative department with high and grave mis- 
 demeanoi's ; third, it charges the Supreme 
 Court with having " sold its soul to the cor- 
 porations," of being com})osed of railroad 
 attorneys, of being guilty of corruption, of 
 practicing open venality, of having been 
 " bought in the interest of the railroad," and, 
 like the Legislature, of being "owned" by 
 the raili'oads; fourth, it charges the Demo- 
 cratic nominating convention of '902 with 
 having been dominated by the railroads, and 
 with having nominated a candidate foi- Su- 
 preme Judge who would favor the railroad 
 in the Oglesby case. In short, the article at- 
 tacks the honesty, integrity, and purity of 
 every bi-anch of the State government, and
 
 188 THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 of the several officers, and then attacks the 
 Democratic nominating convention of 1902. 
 If these charges are trne, the persons who 
 are thns charged shonld be prosecnted and 
 removed from office. On the other liand, 
 any one who makes such charges should be 
 prepared to make some sort of a decent 
 showing of their truth. Instead of standing 
 ready to prove the truth of the charges, the 
 defendant, when called into coui-t, neither 
 asserts the truth of the charges, nor does he 
 accept the challenge of the Attorney-Gen- 
 eral to introduce any evidence whatever of 
 their truth. On the contrary, one of his 
 counsel takes the very erroneous position 
 that the burden of proof is upon the inform- 
 ant to show the falsity of the charges and 
 not upon the defendant to prove the truth 
 of the charges, while his other counsel ex- 
 pressly states that he does not believe the 
 chai'ges are trne, and does not desire to in- 
 troduce any evidence to show that they are 
 true. In other words, the defendant has 
 grossly, indecently, and cruelly vilified and 
 scandalized every department of the govern- 
 ment under which he lives, and which affords 
 him protection for his life, liberty, and prop- 
 erty, and, when challenged to make his 
 words good, he consummates his offending by 
 failing absolutely to produce one word of 
 testimony to show that he told the truth, and, 
 instead of making the " amende honorable," 
 b}' withdrawing the charges and apologizing 
 like a man, he seeks to escape punishment by
 
 TlIK I-AW OF CONSTRUCTIVK CONTEMrr. 189 
 
 clKillLM)<j;iii<^- tlie juiisdiction of tliis court to 
 })rotc'C't itsulf from iuHult and to maintain the 
 respect and dignity ^vith which the i)eoi)le 
 have invested it, denies that tlie facts charged 
 are sullicient to constitute a contem[)t, and 
 raises other technical and constitutional ques- 
 tions. As above stated, this is the fii'st case 
 of this kind that has come before this court. 
 It is not, however, the first time that highly im- 
 ])roper articles have been publisiied concerning 
 this court and othei" courts in this State, but 
 it is the first case wherein the character and 
 heinousness of the charges has made it abso- 
 lutely imj)ei-ative upon this court to take cog- 
 nizance of them. It is, by no means, however, 
 the first case of its kind that has arisen. 
 The books are full of cases, both Eng- 
 lish and American, where other courts have 
 been similarl}' scandalized, and have punished 
 the vilifiers as for a contempt of court. 
 
 2. Inherent Power of Courts of Record to 
 Punish Contempts. — The first question i-aised 
 by the defendant in this case is as to the 
 power and jurisdiction of this court to i)un- 
 ish him summarily for a criminal contempt. 
 The [)()wer to punish for contempt is as old as 
 the law itself, and has been exercised so often 
 that it would take a volume to refer to the 
 cases. From tlie earliest dawn of civilization, 
 the power has been conceded to exist. It has 
 been exercised, or not, as a matter of public 
 policy, but its existence has never been de- 
 nied. In England it has been exercised when 
 the contein[)t consisted of scandalizing the
 
 190 TIIK LAW OF CONSTRUCTIVE CONTEMPT. 
 
 sovereign or his ministers, the lawmaking 
 power or the courts. In the American 
 colonies the same rule obtained, and was ex- 
 ercised quite frequently. Since the Revolu- 
 tion, and the adoption of the Constitution of 
 the United States, and the establishment of 
 this government of the people, by the people, 
 and for the ))eople, the English rule has been 
 modified so far as the executive department 
 and the ministers of state are concerned, and 
 in some decree so far as the legislative 
 department is concerned, but has been 
 almost universall}^ preserved so far as the 
 judicial department is concerned. For 
 instance, in England it was an offense, 
 called "sedition" to speak or write against 
 the character and constitution of the gov- 
 ernment, or to seek to change it by any 
 means except those prescribed. There was 
 also an offense known as " scandalum magna- 
 tum," which consisted of scandalizing the 
 sovereign, his ministers, members of Parlia- 
 ment, the courts and the judges, and certain 
 other persons of high rank. It is interesting 
 to note the difference in policy with refer- 
 ence to the enfoi'cement of the laws of other 
 countries in respect to sedition and scanda- 
 lum magnatum. The first case of which 
 there is a report at hand " was that wherein 
 Emperor Augustus desired to punish a histo- 
 rian who passed some stinging jest on him 
 and his family, but Maecenas advised him that 
 the best policy was to let such things pass 
 and be forgotten. Other sovereigns took the
 
 THE LAW OF CONSTRUCTIVE CONTEMI'T. 191 
 
 same view. Ca\sar said tliat to retaliate was 
 only to eonteiid witli impudence and put one- 
 self on the same level. And even Tibeiius 
 acted upon the same view. The Theodosian 
 Code also made this the law, and expressly 
 declai'ed that slanderers of majesty should be 
 unpunished, for, if this proceeded from levity, 
 it was to be despised ; if from madness, it 
 was to be pitied; and, if from malice, it 
 was to be forgiven ; for all such sayings weie 
 to be regarded according to the weight they 
 bore." Patterson on Liberty of Pi'ess, Speech, 
 etc., p. 87. But while such was the policy 
 of these Latin countries, exactl}^ the converse 
 has long been the established law among 
 English-speaking people. As early as the 
 reign of Edward I, it was an offense to pub- 
 lish false news or tales, whereby discord 
 might grow between the King and his peo- 
 ple. 3 Edw. I, c. 34. Construing this act 
 LordEllenborongh, C. J., said ; " If a person 
 who aduiits the wisdom and virtues of his 
 majesty laments that in the exercise of these 
 he has taken an unfortunate and erroneous 
 view of the interests of his dominions, he 
 was not prepared to say that this tends to de- 
 grade his majesty or to alienate the affec- 
 tions of his subjects. He was not prepared 
 to say this is libelous, but it must be with 
 perfect decency and respect, and without any 
 imputation of bad motives. If the writer 
 were to go one ste[) further, and say or in- 
 sinuate that his majesty acts from any })ai- 
 tial or corrupt view, or with an intention to
 
 192 THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 favor or ()])prc'ss any individual or class of 
 men, then it must have been most libelous." 
 In England it is an offense to libel ministers 
 of state. Holt, C. J., in Tutchin's Case, 14 
 St. Tr. 1128, said that "to assert that cor- 
 rupt officers are ap|)ointed to administer af- 
 fairs is a reflection on the government, and 
 tends to beget an ill opinion of the adminis- 
 tration of the government. Criticisms which 
 make no fair allowances to these public serv- 
 ants as being honestly desirous to do their 
 work well, and imputing corruption or dis- 
 honesty, or any other personal vice incom- 
 patible wdth a high sense of duty, are thus 
 treated as libels." In 1801 one Cobbett pub- 
 lished a letter in which he spoke of Lord 
 Hardvvicke, Lord Lieutenant of Ireland, and 
 Lord Redesdale, Lord Chancellor of Ireland, 
 as " a very eminent sheep-feeder from Cam- 
 bridgeshire, assisted by a very able and 
 strong-built chancery pleader from Lincoln's 
 Inn." He w^as prosecuted for libel, and Lord 
 EUenborough told the jury that 'Mf a public- 
 ation be calculated to alienate the affections 
 of the people, by bringing the government in- 
 to disesteem, whether the expedient be by 
 ridicule or obloquy, the person so conducting 
 himself is exposed to the inflictions of the 
 law. It is a crime." Rex v. Cobbett, 29 St. 
 Tr. 54. In 1786 the Moiming Herald charged 
 Pitt, the Prime Minister, with gambling in 
 the funds, and fraudulently availing himself 
 of official information to make money on the 
 stock exchange. He sued the publisher for
 
 TllK LAW OF COXSTRUCTIVK ( ONTK.Ml'T. 193 
 
 libel, and Loi'd Miui.sfiuld told the jury to re- 
 meinbei- this was " a very serious question, 
 in which all the i)ublic were concerned, 
 namely, whether there should be any protec- 
 tion to the I'eputation of honorable men in 
 public or [)rivate life.'"' The jury returned a 
 verdict for £250. Pattei'son on Liberty of 
 the Press, etc., p. 95. 
 
 The offense of scandalum magnatum has 
 not existed in this counti'y since the Revolu- 
 tion, but every one, of whatever rank or sta- 
 tion in life, stands uj)on the same footing 
 before the law, and is entitled to the same pro- 
 tection for his life, his liberty, his |)roperty, 
 and his re{)utati()n. In the eye of our consti- 
 tutions and laws, every man is a sovereign, a 
 ruler, and a freeman, and has equal rights 
 with evei-y other man. \Ye have no rank or 
 station, except that of respectability and in- 
 telligence, as opposed to indecency and igno- 
 rance ; and the door to this rank stands open 
 to every man to freely enter and abide therein, 
 if he is qualified, and whether he is qualified 
 or not depends upon the life and character 
 and attainments and conduct of each j)erson 
 for himself. Evei'y man may lawfully do 
 what he will, so long as it is not mala in se or 
 mala prohibita, or does not infringe upon the 
 equally sacred rights of others. Every man 
 may speak or write what he will, so long as 
 he tells the truth, but no man has any more 
 right to-day to bear false witness against his 
 neighbor than he had in the days of Moses. 
 
 During the administration of the elder Ad- 
 
 13
 
 194 THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 ams a sedition law was enacted, making it an 
 offense to libel the government, the Congress, 
 or the President of the United States, and 
 four cases were prosecuted under it. But 
 its constitutionality was always disputed by 
 a large part of the citizens, and its impolicy 
 was beyond question. It brought about the 
 very conditions it was intended to repress, 
 and was soon repealed. Cooley's Const. Lim. 
 (6th Ed.), p. 526; Odgers on Libel & Slan- 
 der, p. 416. The only offense of this general 
 character which is known to our law is at- 
 tempt, "by word, deed, or writing, to promote 
 public disorder, or to induce riot, rebellion, 
 or civil war, which acts are still considered 
 seditions, and may, by overt acts, be trea- 
 son." Odgei's on Libel and Slander, p. 419. 
 The Parliament of England has, at least since 
 as early as the reign of Richard IT, claimed 
 an inherent right to punish summarily, as for 
 a contempt, an}' breach of its ])rivileges, and 
 the books are full of cases wherein it exer- 
 cised the power, as many as 80 cases occur- 
 ring during the seventeenth century. The 
 Parliament has always claimed and exercised 
 the right to be the sole judge, without any 
 interference or review by the courts or other- 
 wise, whether a contempt against its privi- 
 leges has been committed, and how it shall 
 be punished, and this power has been con- 
 ceded to it. Paterson on Liberty of Press, etc. , 
 p. 105 et seq. ; Odgers on Libel and Slander, 
 p. 422. So jealous and tenacious is Pai'liament 
 of its rights in this i-egard, that in 1689 it
 
 Tin: LAW Ol' CONSTRrf'TTVE rOXTKillT. 195 
 
 [ictiially cited two judges before it for con- 
 tempt, for eiitei-ing- n judgment against tlie 
 sergeant of the House, Ijased upon his act in 
 executing the orders of the House. x\nd 
 although the judges insisted that their act was 
 only an error of judgment, they were ad- 
 judged guilty of contempt of the privileges of 
 Parliament, and were eonunitted to prison in 
 Newgate, where they remained eight months. 
 Paterson's Liberty of the Press, etc., p. 201. 
 The Congress of the United States and 
 the Legislatures of the several States have 
 also an inherent power to punish for cer- 
 tain contempts, but this power is not 
 generally admitted to be as broad as that 
 of the Parliament of England. The courts 
 of England have uniformly, from the begin- 
 ning, exercised the right to punish for con- 
 tempt, and the courts of America have always 
 exercised a like power. Blackstone, vol. 4, 
 p. 285, in tieating of such contempts, and 
 the power of the court to punish therefor, 
 says: "Some of these contempts may arise 
 in the face of the court, as by rude and con- 
 tumelious behavior ; by obstinacy, pervei'se- 
 ness, 01' prevarication ; by breach of the peace, 
 or any willful distui'bance whatever ; others, 
 in the absence of the pai'ty, as by disobeying 
 or tieating with disrespect the King's writ, or 
 the rules or process of the court; b}^ pervert- 
 ing such writ or process to the pui-poses of 
 pi'ivate malice, extortion, or injustice; hf/ 
 speaking or writing contempt aoushj of the 
 court or judges, acting in their judicial
 
 19() THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 capacity " (the italics are superadded for the 
 sake of emphasis) ; " by ])rinting false ac- 
 counts, or even true ones without proper per- 
 mission, of causes then depending in judg- 
 ment; and by anything, in short, that 
 demonstrates a gross want of that regard and 
 respect which, when once courts of justice 
 are deprived of, their authority, so necessai-y 
 for the good order of the kingdom, is entirely 
 lost among the people." 
 
 Speaking to this subject, Patei-son on Lib- 
 erty of the Press, etc., p. 121, aptly says: 
 " Courts of law must, therefore, as in the 
 case of Parliament, be credited with sufticient 
 power to vindicate and protect their pi'oced- 
 ure against attacks, for, as courts are the 
 appointed means of adjudicating on all dis- 
 putes, and foi- discovering all sufficient 
 materials to that end, their labors would be 
 often futile, if irresponsible volunteers in- 
 truded crude opinions and speculations, 
 founded, as they must usually be, on defective 
 data. The first requisite of a court of justice 
 is that its machinery be left undisturbed, and 
 this cannot be effected unless comments be all 
 but excluded till the court has discharged its 
 function. The same power to commit sum- 
 marily for contempt all persons who intrude 
 into the judicial function, and profess to have 
 better and superior means of knowledge, or 
 who suggest partial or corrupt conihict, is 
 thus deemed inherent in all courts of record, 
 though the occasion and extent of this sum- 
 mary jurisdiction have given rise to nice dis-
 
 TIIK LAW OF CONSTIUC TIN K CONTK.M 1' T. I'.'T 
 
 tiiictions. It is saifl to be a necessaiy incident 
 to every coui't of jnstice, whether of lecoid 
 or not, to tine and imprison for a contempt 
 acted in the face of it. This exercise of 
 power is as ancient as any other part of the 
 common hxvv. If the course of justice is ob- 
 structed, that ol)struction must be violently 
 removed. AVhen men's allegiance to the laws 
 is fundamentally shaken, this is a dangerous 
 obstruction. That the judges should be cred- 
 ited with impartiality is absolutely necessary. 
 Therefore to libel or slander the adminis- 
 tration of tile law by imputing misconduct 
 to the judge or jury is an indictable of- 
 fense. Judges are also protected in other 
 ways. To kill a judge in the performance of 
 his duties is no less than high treason. Coke 
 says that to draw a weapon at a judge sit- 
 ting in court was a great mis|)rision, for 
 which the right hand was cut off and the 
 goods were forfeited. To utter threats or 
 reproaches to a judge sitting in court is al- 
 ways an indictable misdemeanor." Rapalje 
 on Contempts starts his woi"k, in section 1, 
 with these statements: "It is conclusively 
 settled by a long line of decisions that at 
 common law all courts of record have an 
 inJK'rent power to punish contempts com- 
 mitted in facie curia' ; such power being es- 
 siMitial to the very existence of a court as 
 such, and granted as a necessary incident in 
 establishing a tribunal as a court. * * * 
 Each superior coui't being the judge of its 
 own [)Ower to punish contemnei's, no otlicr
 
 198 THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 court can question the existence of that power, 
 and the facts constituting the contempt 
 need not be set out in the record. This in- 
 herent and necessary power can be exercised 
 by a superior coui't independently of statu- 
 tory authority, and such court may go be- 
 yond the powers given by statute, in order 
 to preserve and enforce its constitutional 
 powers, when acts in contempt invade them. 
 Indeed, the conferment of the power by stat- 
 ute upon a superior court of record is deemed 
 no more than declaratory of the common 
 law." In the note to the text the author 
 has collated decisions establishing this 
 to be the law^ in Alabama, Arkansas, Cali- 
 fornia, Connecticut, Florida, Indiana, Illi- 
 nois, Kansas, Kentucky, MasKachusetts, 
 Maine, Mississippi, IS'ew Hampshire, New 
 Jersey, New York, North Carolina, Pennsyl- 
 vania, South Carolina, Tennessee, AVest Vir- 
 ginia, and in the United States courts, as 
 well as in England. In 7 Am. & Eng. Enc. 
 of Law, p. 30, the rule of law is thus stated : 
 " The light of every superior court of record 
 to punish for contempt of its authority or 
 process is inherent from the very nature of 
 its organization, and essential to its existence 
 and protection and to the due administration 
 of justice." And in the note to the text the 
 writer sets out a multitude of cases from the 
 States and jurisdictions i-eferred to by Ra- 
 palje, and shows that such is also the law 
 in Colorado, Georgia, Michigan, Nebraska, 
 Ohio, Oklahoma, South Dakota, Vermont,
 
 TIIK LAW OF CONSTKICTIVK COXTEMl'T. 199 
 
 and Virj^inia. fJiidgH- (Jocjley, in his W(jik on 
 Constitutional Limitations (Gtli Ed.), p. 389, 
 note 2, says: "Cases of contempt were never 
 triable by jury, and the object of the power 
 would be defeated in many cases if they 
 were. The power to punish contempts sum- 
 maiily is incident to courts of record." In 
 support of the law as thus stated the learned 
 author cites cases from England, the United 
 States courts, Maine, Xew York, Tennessee, 
 Illinois, Arkansas, Kentucky, Xorth Caro- 
 lina, ]\[ississippi, Xew Hampshire, Connecti- 
 cut, Indiana, and Rhode Island. Best, J., in 
 Rexv. Davison, 4 Bai'u & Aid. loc. cit. 340, 
 decided in 1821, said: "From the earliest 
 period of our histoi-y, this authority has been 
 exercised. The Year l^ooks record instances 
 of such commitments." All the judges in 
 Miller v. Knox, 4 Bing. N. C. 574, said it is 
 '• an acknowledged principle that the power 
 of summarily punishing for contempt has 
 been inherent in all courts of recoi'd from 
 time immemorial." In fact, so well settled is 
 the law in England in this regard that it is 
 said in 3 Enc. of the Laws of England, p. 
 313: '' A court of justice, without power to 
 vindicate its own dignity, to enforce obedi- 
 ence to its mandates, to protect its officers, 
 oi" to shield those who are intrusted to its 
 caie, would be an anomaly which could not 
 be permitted to exist in any civilized com- 
 munity. ''■ * * Without such protection, 
 courts of justice would soon lose their hold 
 upon public respect, and the maintenance of
 
 200 THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 law and order would be rendcM'ed impossi- 
 ble." Blackstone declai-es that " laws with- 
 out a competent authoi'ity to secure their 
 administration from disobedience and con- 
 tempt would be vain and nugatory. A power, 
 therefore, in the supreme courts of justice, to 
 suppress such contempts by an immediate 
 attachment of the offendei-, results from the 
 first principles of judicial establisliments, 
 and must be an inseparable attendant upon 
 every superior tribunal. Accordingly we 
 find it actually exercised as early as the an- 
 nals of our law extend." 4 Black. Com. 286. 
 And the law is as firmly settled in America 
 as it is in England. In Ex parte Robinson, 
 19 Wall. 505, 22 L. Ed. 205, the Supreme 
 Court of the United States, speaking through 
 Mr. Justice Field, said : " The power to pun- 
 ish for contempts is inherent in all courts. 
 Its existence is essential to the preservation 
 of order in judicial proceedings, and to the 
 enforcement of the judgments, orders, and 
 writs of coui'ts, and consequentl}'^ 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 became possessed of this 
 power." In Cartwright's Case, 114 Mass. 
 238, Gray, C. J., afterwards Associate Justice 
 of the Supreme Court of the United States, 
 said : " The sumniar\^ power to commit and 
 punish for contempts tending to obstruct or 
 degrade the administration of justice is in- 
 herent in courts of chancery and other supe-
 
 TlIK LAW ol- ( ONSTKUCTIVK CONTK.Ml'T. 201 
 
 rior courts, as essential to tlie cxfciitioii 
 and to the maiiitciumce, of tlieir authoi-ity, 
 and is pait of the law of the hmd, witliin 
 the nu'-.min*;- of Ma^-na Charta and of the 
 twelfth aitiele of our Declaration of Kif;hts." 
 In AVatson v. Williams, 36 Miss, ^-il, Harris, 
 J., said: "The power to fine and imprison 
 foi- contempt, from the earliest histoi'V of 
 jurisprudence, has been regarded as a neces- 
 sary incident and attribute of a court, without 
 which it could no more exist than without 
 a judge. It is a power inherent in all 
 coili'ts of record, and co-existing with them, 
 by the wise provisions of the common law. 
 A court without the power to effectually pro- 
 tect itself against the assaults of the lawless, 
 or to enforce its orders, ju(Jgments, or de- 
 crees against recusant i)ersons befoi-e it, 
 would be a disgrace to the legislation, and a 
 stigma upon tlie age that invented it." In 
 State V. Frew, 24 W. Va. 416, 49 Am. Kep. 
 257, Snyder, J., said : " It may be stated as 
 a proposition of law unquestioned and un- 
 questionable that by the common law of 
 England, as well as by the uniform decisions 
 of the courts of tins country, courts have the 
 inherent i)owe!' to i)unish contemi)ts in a 
 summai-y manner, and that this power is an 
 essential element and i)art of the court itself, 
 which cannot be taken away without impair- 
 ing the usefulness of the c^oui't, because it is 
 a power necessar}' to the exercise of all 
 others." To the like effect are the decisions 
 in the other States of the Union above refer- 
 red to.
 
 202 THE LAW OF CONSTRUCTIVE CONTEMPT, 
 
 If eaeli court did not possess tlie power to 
 punish contempts committed against itself, 
 the jury, and, its officers, summarily, it 
 would be easy foi* a contemner to escape 
 punishment entirely. For if the matter was 
 sent to another court, or left to be tried by 
 a jury, the contemner could so insult and 
 abuse such other court or the jury as to ren- 
 der it impossible for them, also, to try him, 
 also, and, by thus renewing his offense to 
 every court he was called before, make it im- 
 possible to punish him at all. It is manifest 
 that if the jury is insulted and treated with 
 contempt, the court must protect them, for 
 they can render no judgment and are power- 
 less to protect themselves. It would be par- 
 adoxical to say the court alone can punish a 
 contempt of the jury, but had no powder to 
 pi'otect itself from contempt. Without further 
 exemplification, therefore, the law must be 
 regarded as settled that this court has the 
 inhei-ent power and jurisdiction to punish 
 contempts summarily. 
 
 3. What Contempts may be Punished Sum- 
 marily. — The next proposition in this case is, 
 what character of contempts this court has 
 the inherent power to punish summarily. Con- 
 tempts are classified as civil or criminal, and 
 as direct or constructive. Civil contempts are 
 defined to be such as a private person is 
 affected by, as, for instance, where a party 
 refuses to obey a judgment or order of couit 
 which will benefit such private person. In 
 such instance the case is not punitive, but ex-
 
 Tin: LAW OF CONSTia < TIVE CONTEMPT. 203 
 
 ecutivc, and tlic i)iinisliincnt is to coiiiinit the 
 offendei' until he com[)li('s witii the order. 
 (/I'iminal contempts are all acts committed 
 against the majesty of the law, ov against the 
 court as an agency of government, and in 
 which, theiH'fore, the state and the whole peo- 
 ple are concerned. In such instance the pro- 
 ceeding is i)unitive, and the punishment oper- 
 ates in tei-rorum, and b}^ that means has a 
 tendency to prevent the repetition of the of- 
 fense. Rapalje on Contempts, §21, adopting 
 the definition of Beatty, J., in Philli|)S v. 
 Welch, 11 Nev. 187. See also 7 Am. & Eng. 
 Enc. Law (2d Ed.), p. 28. Direct contempts 
 are generally those which ai-e committed in the 
 pi'esence of the court, while in session, or so 
 near as to inten-upt its proceedings, hut also 
 include any imj)r(>per conduct tending to 
 defeat oi- imi)airthe administration of justice, 
 while constructive contempts arise from mat- 
 tei's not transpiring in coui't, and which tend 
 to degrade or make impotent the authority of 
 the court, oi* in some mannei' to impede or 
 embarrass the administration of justice. The 
 powei' to punish is the same in both cases. 
 The difference is only one of procedure. In 
 cases of dii-ect contemi)ts the court acts s[)on- 
 taneously, ex mero motu, and commits the 
 offender summarily. In cases of constructive 
 contempts the court, u[)on infoi-mation fur- 
 nished by any citizen, and verified by atiidavit, 
 or exhibited by the Attorney-General ex officio, 
 which is supported b}' his official oath, and 
 therefore needs no other verification, or upon
 
 204 THE LAAV OF CONSTRUCTIVE CONTEMPT. 
 
 its own information or motion, issnes a cita- 
 tion to the offender to show cause why he 
 should not be punished for contempt. 4 
 Bhick. Com. 286-7 ; Odgens on Libel & Shm- 
 der, [)p. 483-4 ; Paterson on Liberty of Press, 
 etc., p. 99. Lord Chancellor Hardwicke, in 
 the Ccise against the printer of the St. James 
 Emnhuj Post, 2 Atkyns' Rep. loc. cit. 471, 
 defines contempt of court as follows: "There 
 are three different sorts of contempt. One 
 kind of contempt is scandalizing the court it- 
 self. There may likewise be a contempt of this 
 court in abusing parties who are concerned 
 in cases here. There may be also a contempt 
 of this court in pi'ejudicing mankind against 
 persons before the cause is heard . There can • 
 not 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." It will be 
 observed that the first kind of contempt spoken 
 of, to wit, scandalizing the court itself, is a 
 matter ^vherein the State, the people, and the 
 com tare vitally interested. It is therefore 
 a public matter, and hence is a ci'iminal con- 
 tempt. The other two kinds of contempt 
 spoken of are such as directly affect a party 
 litigant, and at the same time affect the public 
 generally only in so far as it is of importance 
 " to keep the streams of justice clear and 
 l)ure." Blackstone also makes the same dis- 
 tinction, and defines contempts, i)iter alia, to 
 consist in "speaking or writing contemptu- 
 ously of the court or judges, acting in their
 
 TIIK LAW OF C'ONBTKLCTIVK CONTK.M I'T. 20') 
 
 official c.jpaeity." 2 ]51afk. Com., p. 285. 
 This distiiic'tioii has been overlooked in some 
 of the adjudicated cases, and hence the ei'i'or 
 they have fallen into of saying- that the con- 
 tempt mnst relate to a canse that is still penrl- 
 ing-, and, if the canse is disposed of, that will 
 be no contempt which wonld have been a con- 
 tem])tif it had occnrred while the canse was 
 pending-. The theoi-y of snch cases is that the 
 act had a tendenc}^ to injnrionsly affect the 
 rights of a party litigant in a pending litiga- 
 tion, or had a tendency to embari'ass, althongh 
 it might not actnally inflnence, the conrt in the 
 determination of a pending canse. It mnst 
 be obvions to the discriminating mind that 
 snch cases fall pi'operly nnder tlie second 
 or thii'd classes pointed ont by Lord Hard- 
 wicke, supra., bnt that they do not cover the 
 whole field, for there is still the first kind of a 
 contempt, to wit, scandalizing the conrt itself, 
 in which the pnblic is [)rimai'ily interested, 
 and as to which the injnry is jnst as great 
 whether it referred to a particnlar pending- 
 case, or onl}' to the conrt as an instrnmentality 
 of government. This is illnstrated by the ad- 
 jndicated cases. In the case of In re Charl- 
 ton, 2 INIylne & Craig, 31(3, decided in 1836, 
 in ISIacgill's Case, 2 Fowl, ex pi-. -lOi, and in 
 Ke Wallace, L. R. 1 P. C. 283, 6-. c. 1 Privy 
 App. 283, it was held to be a direct contempt 
 of court to send libelous, scandalous, or threat- 
 ening letters to a court or a judge. Charlton's 
 Case, supra, is one of the most celebrated of 
 its kind. Lord Cottenham, Lord Chancellor,
 
 20(3 THE LAW OF CONSTKUCTIVE CONTEMPT. 
 
 said : " Tt is a contempt of the hig-hest orrler ; 
 and, although such a foolisii attempt as this 
 cannot be supposed to have any effect, it is 
 obvious that, if such cases were not ])unished, 
 the most serious consequences might follow. 
 If I consulted my own personal feelings upon 
 the subject, I should pass by these letters as 
 a foolish attempt at undue influence; but, if 
 I were to adopt that course, I should consider 
 myself guilt}^ of a very great dereliction of 
 my high duty." Charlton's Case, 2 Mylne 
 & Craig, loc. cit. 342. 
 
 The limits of this opinion preclude an}^ ex- 
 tensive review of the cases wherein attorneys, 
 citizens, and newspaper editors have been pun- 
 ished summarily, as for a criminal contempt, 
 for scandalizing the court or a judge. The 
 following are only a few of such cases: 
 Wraynham was convicted of saying of Lord 
 Bacon that he had done unjustly and was 
 worse than a murderer. 2 St. Tr. 1071. For 
 saying to Judge Hutton, " I accuse you of 
 high treason," Harrison was fined ^5,000 and 
 sent to prison, and in addition the judge re- 
 covered .^10,000 damages. Rex v. Harrison, 
 3 St. Tr. 1375. Lord George Gordon was con- 
 victed and punished for publishing a libel on 
 the judges, in which he said : " How long shall 
 these whited walls of counsel command us to 
 be hanged contrary to law? They make long 
 charges to the juries, with a show of justice 
 and religion. They shed our innocent blood 
 for expiable trespasses." In Reg. v. Skip- 
 worth and l)e Castro, 12 Cox, Crim. Cases,
 
 THK LAW OF CONSTRUCTIVE CONTEMPT. 207 
 
 371, Hccidt'd ill 1873, De Castro luid been the 
 claimant of the Tichbourne entates, had been 
 nonsuited, and was committed for trial n|M.ii 
 a charg'c of perjury. He and Skipvvorth lield 
 meetings in vaiious parts of the country to 
 excite sympathy for his cause and to collect 
 funds foi'his defense. At a meetingin Bi'ight- 
 on, Skipworth presided, and in his s[)eech he 
 impugned the honesty and impartiality of 
 Lord Chief Justice Cockburn. the judge who 
 was to preside at the trial of his fi-iend, Dc 
 Castro, for perjur3^ Some one hissed, and 
 he replied, " Yes, sir ; you may hiss, but I hiss 
 at the Lord Chief Justice." Ue Castro also 
 spoke and charged the Lord Chief Justice 
 with having denounced him as a rank im- 
 postor, and therefore of being too pi-ejudiced 
 to try his case. They were cited for con- 
 tempt, and each fined ioOOand sent to i)rison 
 forthree months. In Rex v. Almon, AVilmot's 
 Notes of Opinions & Judgts., p. 233, s. c. 8 St. 
 Tr. 53. it was held to be a contt'uipt of court, 
 and a libel, punishable by attachment, to pub- 
 lish a pamphlet assei'ting that judges have no 
 l)Ower to issue an attachment for libels upon 
 themselves, and denying that retlections upon 
 individual judges are contem|)ts of court at 
 all. In Ex parte Turner, 3 Mont., D. & De 
 G. 523, a solicitor for the defeated party, after 
 the case was over, published a i)amj)hlet in 
 which he pi'onounced the judgment '' an elab- 
 orate production, wholly beside the merits of 
 the case," and employed other llippant and 
 coutunuicious observations. He was held
 
 208 TIIIO LAW OF CONSTRUCTIVE CONTEMPT. 
 
 guilty of contempt. Other cases which hold 
 the same doctrine will be referred to herein- 
 after, in connection with the right of trial by 
 jury in contempt cases, and the liberty of the 
 press, because they also beai* upon those 
 questions. 
 
 These considerations result in holdincx that 
 this court has jurisdiction to punish sum- 
 marily civil as well as criminal contempts, 
 and that this power is the same whether the 
 contempt be dii'ect or constructive, there be- 
 ing only a difference of procedure in the two 
 cases. The contempt in this case is both 
 criminal and civil. It is ci'iminal, because 
 it scandalizes the court itself, and therefore 
 it is a matter of public concern ; and it is 
 civil, because it abuses parties to a cause 
 that is still pending in this court, and be- 
 cause it seeks to ))rejudice mankind against 
 parties to such pending litigation. It is also 
 a libel upon a majority of the individuals 
 composing this court, for which such indi- 
 viduals have a private right of action. Such 
 judges, as individuals, may choose to treat 
 the article with contempt as Lord Chancellor 
 Cottenham did in Charlton's Case, 2 Mylne 
 & Craig, 342, and as the judges of the Colo- 
 rado court did in Cooper v. People, 22 Pac. 
 loc. cit. 800. But because, as the Supreme 
 Court of Colorado said in the Cooper Case, 
 supiri, " they are the people's courts, and 
 contemptuous conduct towards the judges in 
 the discharge of their official duties, tending 
 to defeat the due administration of justice.
 
 THE LAW OF CONSTKUCTl VK CONTKMIT. 209 
 
 is iiioiv than an offense a,n-ainst the person 
 of the judges — it is an offense against the 
 people's court, the dignity of which the judge 
 should protect, however willing he may be to 
 forego the private injui-y " — and because, as 
 Lord Chancellor Cottenham said in Charlton's 
 Case, supra, " it is obvious that, if such 
 cases were not punished, the most serious 
 consequences might follow," and because, if 
 the contemner was allowed to escai)e punish- 
 ment, the people would have just cause to 
 complain of the judges of this court for not 
 enforcing proper respect for this instrument 
 established by the people for the adminis- 
 tration of justice, this court felt constrained 
 to take notice of the contemi)t in this case. 
 
 The ill-disguised effort of the contemner to 
 make a political issue of the matter is not a 
 proper subject for the court to deal with. 
 The law-abiding, intelligent and patriotic 
 people of this State will effectually settle that 
 matter, if they are ever given an opportunity 
 to deal with it. 
 
 4. Power of the Legislature to Abridge the 
 Inherent Power of the Court to Punish Con- 
 tempt. — The defendant further invokes sec- 
 tion IGIO, Rev. St. 1899, and claims that un- 
 der this section this court has no power to 
 ])unish this contempt, because it does not 
 fall under any of the offenses which courts 
 are authorized by that section to punish as 
 contempts. The section relied on is as fol- 
 lows : "Sec. 161G. May Punish Contempt. 
 Every court of record shall have [)ower to 
 
 14
 
 210 THK LAW OF CONSTRUCTIVK CONTEMPT. 
 
 punish, as foi' a criminal contempt, j^ereons 
 guilty of the following acts, and no other: 
 First, disorderly, contemptuous oi- insolent 
 behavior, committed during the sitting, in 
 immediate vicAv and presence, and directly 
 tending to interrupt its proceedings, or to 
 impair the respect due to its authority ; sec- 
 ond, any breach of the peace, noise or other 
 disturbance, directly tending to interrupt its 
 proceedings; third, willful disobedience of 
 any process or order, lawfully issued or 
 made by it ; fourth, resistance willfully offered 
 by any person to the lawful order or pro- 
 cess of the court; fifth, the contumacious 
 and unlawful refusal of any person to be 
 sworn as a witness, or, when so swoi-n, the 
 like refusal to answer any legal or proper 
 interrogatory." If the Legislature had power 
 to abridge or impair the power of this court 
 to punish for contempts, then the defendant 
 in this case could not be held liable. But if 
 the Legislature had no such power, then the 
 section of the statutes quoted is unconstitu- 
 tional and not binding upon the court. It 
 has already been pointed out, in paragrai)h 2 
 of this opinion, that the power of this court 
 to punish contempts is inherent, and that 
 statutes which attempt to confer such power 
 have always been treated as conferring no 
 new power, but as simply declaratory of the 
 common-law power that alread}^ belonged to 
 every court of record. The law is well 
 settled, both in England and Amei'ica, that 
 the Legislatui'e has no power to take away,
 
 Tin; LAW OF CONSTKUCTIVK CONTEMPT. 211 
 
 abfi(J*4-e, impair, liinit, or rut^ulate the power 
 of courts oi" recoi'd to punish for contempts. 
 Kapulje on Contcuipts, § 11 ; 7 Am. & Eng. 
 Ene. of Law (2d Ed.), p. 33; Arnold v. 
 Commonwealth, 80 Ky. 300, U Am. Kep. 
 480; Middlebrook v. State, 43 Conn. 257, 
 
 21 Am. Rep. 650; State v. Morrill, 16 Ark. 
 384; People v. AVilson, 64 111. 195, 16 Am. 
 Rep. 528; Ex parte Robinson, 19 AVall. 505, 
 
 22 L. Ed. 205; Worland v. State, 82 Ind. 
 49; Clieadle v. State, 110 Ind. 301, 11 N. E. 
 426, 59 Am. Rep. 199; Holman v. State, 
 105 Ind. 513, 5 N. E. 556; Matter of 
 Shortridge, 99 Cal. 526, 34 Pac. 227, 21 L. 
 R. A. 755, 37 Am. St. Rep. 78; People v. 
 Stapleton, 18 Colo. 568, 33 Pac. 167, 23 L. 
 R. A. 787 ; In reChadwick(Mich.), 67 X. W. 
 1071 ; llawes v. State, 46 Xeb. 150, 64 l>f. 
 W. 699; Hale v. State, 55 Ohio St. 210, 45 
 ISr. E. 199, 36 L. R. A. 254, 60 Am. St. Rep. 
 691. In Wyatt v. People, 17 Colo. 261, 28 
 Pac. 964, the court said : " Though the Leg- 
 islature cannot take away fi'oni the courts 
 created by the Constitution the power to pun- 
 ish contempts, reasonable regulations by that 
 body toucliing the exercise of this power 
 will be regarded." But this, it must be ob- 
 sei-ved, leaves it to the courts to decide 
 whether or not the regulations that may be 
 prescribed are reasonable, and also [)roceeds 
 npon lines of comity between the courts and 
 the Legislature, and not upon any recogni- 
 tion of the absolute right of the Legislature 
 to enact such regulations. In addition to
 
 212 TlIK LAW or CONSTKUCTIVE CONTEMPT. 
 
 this, it is now well-settled law in this State, 
 as well as in other States, that the courts 
 have nothing to do with the policy or i-ea- 
 sonableness of a law, those being legislative 
 and not judicial questions. So that, if it be 
 conceded that the Legislature had any power 
 to regulate the exercise of the inherent power 
 of the court to punish contempts, the court 
 could not refuse to obey the law because it 
 deemed the regulations uin-easonable. How- 
 ever, it is a contradiction of terms to say 
 the power to punish is inherent, but that the 
 Legislature may regulates the exercise. As 
 the Supreme Court of the United States said 
 in Gibbons v. Ogden, 9 Wheat. 1, 6 L. Ed. 
 23, the power to regulate includes the power 
 to say in what cases the right shall be exer- 
 cised. It is worthy of obsei'vation that in 
 only the States of Georgia and Louisiana is 
 power given by the Constitution of the State 
 to the Legislature to hmit the power of the 
 court to punish for contempt. In all the 
 other States the better opinion is that, where 
 the court is a creature of the constitution, the 
 inherent power to punish centempt cannot be 
 shorn, abridged, limited, or regulated. This 
 is the onl}' logical view to take, because by 
 Const, art. 3, the powers of government are 
 distributed between the legislative, execu- 
 tive, and judicial departments, and it is fur- 
 ther expressly provided that " no person, or 
 collection of persons, charged with the exer- 
 cise of powers properly belonging to one of 
 these departments, shall exercise any power
 
 TIIK LAW OF C'ONSTRUCTIVK CONTEMPT. 213 
 
 pi'opei'ly lx'l()n<^ing' to eitlier of the others, 
 except "^in the instances in this Constitution 
 expressly <lirecte<l or |)cnuitte(l." And no- 
 where in the (Jonstitution is the Le,o-ishitnre 
 given any power to meddle with the inhci'ent 
 powers of the courts. It was upon the faith 
 of this i)i'ovision of the Constitution that this 
 court refused to interfere with the prero^^a- 
 tives of the Governor in the discharge of his 
 duties in the case of State ex rel. Robb v. 
 Stone, 120 Mo. 428, 25 S. W. 876, 23 L. K. A. 
 194, 41 Am. St. Rep. 705, and likewise re- 
 fused to interfere with the inlierent i)owers 
 of the Legislature in State ex rel. v. Holte, 
 151 Mo. 362, 52 S. W. 262, 74 Am. St. Rep. 
 537. In its dealings with the powers and 
 acts of the co-ordinate branches of govern- 
 ment, this court has scrupulously refrained 
 fi-om interfering, and has accorded to such 
 co-ordinate branches the fullest measure of 
 respect; and upon the same principle this 
 court will not tolerate any intei-ference by a 
 co-ordinate branch of the government, or by 
 any one else, with the powers and duties and 
 prerogatives and dignity of this court. The 
 people of this State conferred those powers, 
 in trust for themselves, upon this court ; and 
 this court will sacredly and fearlessly guard 
 and protect them until the people discharge 
 the trust and give the powers to some other 
 tribunal, if they shouM ever be minded so 
 to do. It is also well-settled law that the 
 court alone in which a cojitempt is commit- 
 ted, or whose authority is delied, has power
 
 214 THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 to punish it, or to entertain proceedings lo 
 that end. ^o other cout't has an^^ jurisdic- 
 tion oi- })ower in such cases. Rapalje on 
 Contempt, § 13; 7 Am. & Eng. Enc. Law 
 (2d Ed.), p. 34, and cases citei in note 1, 
 and from which it appears that this is the 
 rule laid down by the United States courts, 
 and by the couits of Alabama, California, 
 Colorado, Florida, IJhnois, Iowa, Kentucky, 
 Louisiana, Mississippi, Nevada, ]N^ew Hamp- 
 shire, Tennessee, Texas, Utah, and Vermont. 
 Paterson on Liberty of the Press, etc., p. 
 121, says this power must be accorded to all 
 courts, just as it is possessed by Parliament. 
 The law now known as section 1616, Rev. 
 St. 1899, has been on the statute books, in 
 substantially the same form, ever since 1845. 
 Rev. St. 1845, p. 338, c. 45, § 61. It was re- 
 ferred to by this court in Harrison v. State, 
 10 Mo. 688, but its constitutionality was not 
 called in question, or discussed or decided. 
 The same law, then known as section 65, c. 
 47, p. 542, 1 Rev. St. 1855, was referred 
 to by this court in the matter of Greene Co. 
 V. Rose, 38 IMo. 390, where it was said : 
 "When the contempt is committed in the im- 
 mediate view and presence of the court, it 
 may be punished summarily. In all other 
 cases the part}' chai-ged must be notified of 
 the accusation, and have a reasonable time 
 to make his defense." But the power of the 
 Legislature to enact the law was not raised 
 or decided. The same law, then known as 
 section 1056, Rev. St. 1879, was referred to
 
 THK LAW Ol' CONSTRUCTIVK CONTESIPT. 215 
 
 in Ex parte Crenshaw, 80 M(j., loc. cit. 450, 
 and tho coui't was nnaninious in holding- that 
 it did not liavc llu' effect of taking away the 
 power of conrts to i)nnish other kinds of 
 eoiitemjjts. The constitutionality of the law 
 was not considered by the majority of the 
 coni't, hut Sherwood, J., concurred in the 
 judgment, holding the statute " to be uncon- 
 stitutional, as an invasion by the Legislature 
 of the domain of the judiciary." It follows 
 that the Legislature exceeded its jjowers 
 when it enacted section 1616, Rev. St. 1899, 
 and that this court has an inherent and con- 
 stitutional right to punish contempts sum- 
 marily, which cannot be taken away, abridged, 
 limited, oi" regulated by the legislature. 
 For the manner in which this power may be 
 executed, this court is answerable alone to 
 the sovereign people of this State ; and to 
 their judgment and wishes, legally expressed, 
 it has always given cheerful and respectful 
 obedience, and it stands ready to do so now 
 and at all times. 
 
 5. Right of Trial by Jury in Contem[jt 
 Cases. — The defendant invokes the [)r()teetion 
 of section 28, art. 2, of the C'onstitutiou, which 
 provides that " the right of trial by jury, as 
 heretofore enjoyed, shall remain inviolate,'' 
 and demands a trial by jury in this case, and 
 incidentally argues that it is not seemly or 
 fair that he should be tried for contem[)t by 
 judges of the court that he has scandalized. 
 The judges of this court would have gladly 
 sent this matter to some other court for
 
 216 THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 trial, and by a jmy, too, if such a course had 
 any precedent or justification in law. But as 
 such a course would have been illegal and a 
 shirking- of their imperative obligations under 
 the law, they had no option but to deny the 
 request and to execute the law. Attention 
 has already been called to the law as laid 
 down by Judge Cooley in his work on Con- 
 stitutional Limitations (6th Ed.), p. 389, note 
 2, wherein he says : " Cases of contempt of 
 court were never triable by jury, and the ob- 
 ject of the power would be defeated in many 
 cases if they were." Cases from England, 
 Pennsylvania, Maine, N^ew York, Tennessee, 
 Illinois, Arkansas, Kentucky, North Carolina, 
 Mississippi, i^ew Hampshire, Connecticut, and 
 Rhode Island are cited by the learned author 
 in support of the rule. Rapalje on Contempts, 
 § 10, says : " It has been held that the pro- 
 vision in the Constitution of theUnited States 
 that the trial of all crimes shall be by jury 
 does not take away the right of court to pun- 
 ish contempts in a summary manner. The 
 provision is to be construed to relate only to 
 those crimes which, by our former laws and 
 customs, had been tried b\" a jury." The au- 
 thor cites in support of the text the cases of 
 Hollingsworth v. Duane, Wall. Sr. 77, Fed. 
 Cas. No. 0,616, Ex parte Grace, 12 Iowa, 208, 
 79 Am. Dec. 529, and State v. Doty, 32 N. J. 
 Law, 403, 90 Am. Dec. 671. In the case last 
 cited the Supreme Court of New Jersey held 
 that the constitutional right of trial by jury 
 was not infringed by the infliction of summary
 
 THK LAW (JK (;ONSTKUCTIVK CONTHMIT. 217 
 
 punislniicnt for contempt of court. In that 
 case the contempt consisted of impioper con- 
 duct towards a juror, not in tlie presence of 
 the court. Kapalje on Contem[)ts, § 112, 
 says: " In nearly all of the States, as well 
 as under the practice of the Federal courts, 
 the common-law rule denying- to one accused 
 of contempt the right of trial by jury is still 
 in force, the courts holding that the various 
 constitutional guaranties of this right iiave 
 no application to these proceedings." In 4 
 Enc. of PI. & Tr., p. 789, the rule of law is 
 thus aptly stated : '^ Although the question de- 
 terminable in proceedings to redress con- 
 tempts is one of fact, and not of law, yet, the 
 offense itself being one against the court and 
 the majesty of the law, neither at common 
 law was there any right to a jui-y trial (Wells 
 V. Caldwell, 1 A. K. Marsh. U\ ; Eilenbecker 
 V. District Court, 134 U. S. 31, 10 Sup. Ct. 
 424, 33 L. Ed. 801), nor according to the cur- 
 rent weight of modern authoi-ity, except so 
 far as the rule has been modified by local 
 statutes [the author evidently means ''Con- 
 stitutions," for the statutes could not confer 
 a right of trial by jury which the Constitu- 
 tion°did not permit], does any such right 
 inure to the benefit of the contemner.'' The 
 author cites in sup[)ort of the text the follow- 
 ing cases : Xeel v. State, 9 Ark. 259, 50 Am. 
 Dec. 209 ; Huntington v. McMahon, 48 Conn. 
 174; Ex parte (irace, 12 Iowa, 208, 79 Am. 
 Dec. 529; :McDonnell v. Henderson, 74 Iowa, 
 619, 38 N. W. 512 ; State v. Durein, 40 Kan.
 
 218 THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 695, 27 Pac. 148 ; Hart v. Robinett, 5 Mo. 11 ; 
 Gaudy V. State, 13 Neb. 445, 14 N. W. 143; 
 Lnddeii V. State, 31 Neb. 429, 48 N. AV. 61 ; 
 State V. Matthews, 37 N. H. 450 ; Bates' Case, 
 55N.H.325;Bnrkev.Temtory(]894),20kl. 
 499, 37 Pac. 829; Grow v. State, 24 Tex. 12; 
 King V. OhioR.R.Co.,7Biss.529, Fed. Gas. 
 No. 7,800. The author further adds, at the 
 same page : " x\ud it is held that the fact that 
 thei'e is no I'ight to a jury trial does not vio- 
 late the constitutional provisions which guar- 
 anty the same;" citing in sujjport thereof 
 State V. Mitchell, 3 S. D. 223, 52 N. W. 
 1052; State v. Becht, 23 Minn. 411, and 
 Mandercheid v. District Gt., 69 Iowa, 240, 
 28 N. W. 551. The case of Hart v. Robi- 
 uett, 5 Mo. 11, cited, was a rule on a consta- 
 ble to show cause why he had not returned 
 an execution within the time requii'ed by law. 
 The ti'ial court submitted the matter to the 
 determination of a jury. This court held 
 that this was error, saying: " The cause was 
 matter to be shown to the court, and not uiatter 
 to be found by a jury. The proceeding was 
 in the nature of a proceeding for a contempt, 
 and was matter to be inquired into and adju- 
 dicated by the court." In Reg. v. Skip- 
 worth & De Gasti'o, 12 Gox's Grim. Cases, 
 371, already referred to, De Castro demanded 
 a trial by jury. The following colloquy took 
 place between him and Blackbui-n, J. : De 
 Castro said : "I am not aware that I have 
 committed any contempt, and if I have done 
 so, it was not my intention ; but I submit
 
 THE LAW OF CONSTFiUCTIVE CONTEMIT. 219 
 
 that tin* cluirfife ought to l)e trie*) l)y a jury. 
 Ik'f'oie tlieni I could prove what I have stated 
 to l)e true." Blackl)uiii iutimated that iu a 
 })roce('diug- for couteuipt the uiattei- was to l)e 
 trii'd by tlie court. De Castro: " Theu you 
 decide that you are to try it youi'selves? 
 Bhicklniin, J. : Sucli is the course. De Cas- 
 ti'o: But, you see, I am chai-ged with con- 
 tempt in complaining' of the Loi-d Chief Jus- 
 tice, and you are liis colleagues. It is not fair 
 that you should try it without a jui-y. Black- 
 burn, J. : To use any argument upon that 
 point would be without avail. It hjis long- 
 been settled that an attempt to interfere with 
 the course of justice is a contempt of court. 
 It is too late to dispute that." Accordingly, a 
 jury trial was denied him. In Kespublica v. 
 Oswald, 1 Dall. 319, 1 L. Ed. 155, the de- 
 fendant, as i)ublisher of the Independent Ga- 
 zetteer, published an addi'ess to the public 
 concerning a pioceeding, then pending in 
 coui't, whei'ein he was a pai-fy. which tended 
 to prejudice the i)ublic with reference to the 
 merits of such pending litigation. He was 
 cited for contempt. It was insisted that the 
 Constitution of l*ennsylvania guarantied hiin 
 a trial by jui-y, and hence the court could not 
 itself try the case. The Supreme Court of 
 that State, however, si)eaking through Mc- 
 Kean, C. J., said : " It is certain that the pro- 
 ceeding 1)}' attachment is as old as the law 
 itself, and no act of the Legislature, or sec- 
 tion of the Constitution, has interposed to 
 alter or suspend it. Besides the sections
 
 220 Tin: law of constructive contempt. 
 
 which have been ah-cady read from the Con- 
 Htitution, thei'c is another section, which 
 declares that' trials by jury shall be as hereto- 
 fore ; ' and surely it cannot be contended that 
 the offense with which the defendant is now 
 charged was heretofore tried by that tribunal. 
 If a man commits an outrage in the face of 
 the court, what is there to be ti'ied? What 
 further evidence can be necessary to con- 
 vict him of the offense than the actual view 
 of the judges? A man has been compelled to 
 enter into security for his good behavior for 
 giving the lie in the presence of the judges in 
 Westminster Hall. On the present occasion 
 is not the proof, from the inspection of the 
 paper, [is full and satisfactory as any that 
 can be offered? And whether the publica- 
 tion amounts to a contempt or not is a point 
 of law, which, after all, it is the province of 
 the judges, and not of the jury, to determine. 
 Being a contempt, if it is not punished im- 
 mediately, how shall the mischief be correct- 
 ed? Leave it to the customary forms of a 
 trial by jury, and the cause may be continued 
 long in suspense, while the party perseveres 
 in his misconduct. The injurious consequen- 
 ces might then be justly imputed to the court 
 for refusing to exercise their legal power in 
 preventing them. For these reasons we have 
 no doubt of the competency of our jurisdic- 
 tion, and we think that justice and propriety 
 call upon us to proceed b}'' attachment." Ac- 
 cordingly, the defendant was denied a trial 
 by jury, and was fined $100 and sent to pris-
 
 THE LAW OK CONSTRUCTIVE CONTEMIT. 221 
 
 on for 80 days. This case will !)(• tiij^nin i-c- 
 feiTC'd t(j in connection with the discnssion of 
 the liberty of the [)i'ess. The right of tiial 
 by jnry in contempt cn.ses nevei" existed at 
 connnon law, and was wholly nnknown to 
 the laws of Missouri at the time of the adop- 
 tion of the Constitutions of 1820, 1865, and 
 1875. The guarant}^ of tlie Constitution of 
 1875, therefore, that ^' the right of ti'ial by 
 jury, as heretofore enjo3'ed, shall I'emain in- 
 violate," was not intended to confer such a 
 light in contempt cases, for such a right 
 had never been " heretofore enjoyed," either 
 in this State or in England. There is, there- 
 fore, no man in the demand of the defendant 
 in this ease for a trial l)y jury. 
 
 But, even if all this was not true, what is 
 the attitude of the defendant in this case, 
 and what issues of fact had he raised that a 
 jury could pass on? The retui-n made by the 
 defendant raises absolutely no issue of fact 
 whatever. It admits that the defendant is 
 the publisher of the paper, and that he pub- 
 lished the article. A verdict of a jury could 
 uot settle those facts any more conclusively 
 than the defendant himself has done by his 
 admission. The return does not dare to say 
 that tlie charges made are true. Xeithei* does 
 it plead any facts in mitigation, What issue 
 of fact is there, then, for a jury to pass upon? 
 l*ositively none. The ivtum raises only 
 questions of law, and, if the case was one 
 wherein a jury could be impaneled, the court 
 would be compelled, under this state of the
 
 222 THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 pleadings, to direct a verdict, for, after the 
 court had decided tlie questions of law, the 
 case would be decided, and there would be no 
 function for the jury to perform. These con- 
 siderations are recorded here, not because 
 there is a pai'ticle of doubt in the mind of 
 the court that the defendant is not entitled to 
 a trial by jury, but simply for the purpose 
 of showing that, even if the defendant was 
 entitled to such a, tiial, it would do him no 
 good in this case, and the result would neces- 
 sarily be the same. It must be remembered 
 that this is a case of contempt, and not one 
 of libel. In libel cases the jury, under the 
 direction of the court, determines the law as 
 well as the fact. Heller v. Pulitzer Pul). Co., 
 153 Mo. 205, 5i S. W. 457. In contempt 
 cases the whole matter is for the determina- 
 tion of the court. 6 Am. & Eng. Enc. Law 
 (2 Ed.), 978, and cases cited in note 1. 
 
 6. Due Process of Law. — The defendant 
 also invokes the protection of section 30 of 
 article 2 of the Constitution, which provides 
 " that no person shall be deprived of life, lib- 
 erty or property without due process of law." 
 The defendant has been accorded the full 
 benefit of this wise provision of the organic 
 law. He has been regularly charged, brought 
 into court, has appeared in person and b}'^ 
 counsel, has pleaded, and has had a trial ac- 
 cording to the practice in such cases. He 
 has had his day in court, and therefore he 
 has had the benefit of due process of law. 
 Cooley's Const. Law (6th Ed.), p. 481. This
 
 THE LAW OF CON8TKI CTIVK CONTEMIT. 223 
 
 also disposes of the claim that the (JcfeiKiaiit 
 has been deprived in some wa}^ of the benefit 
 of the fourteenth amendment to the Consti- 
 tution of the United States. Dartmonth Col- 
 lege V. AVoodward, 4 Wheat. 519, 4: L. Ed. 
 629; xVndrns v. Insurance Co., 1(J8 Mo. loc. 
 cit. 1(32, G7 S. W. 582 
 
 7. Libeity of the Pi-ess. — The defendant in- 
 vokes section M of article 2 of the Constitu- 
 tion, which is as follows: " That no law shall 
 be passed impairing- the freedom of speech ; 
 that every person shall be free to say, write 
 or publish whatever he will on any snbject, 
 being responsible for all abuse of that liberty; 
 and that in suits and prosecutions for libel, 
 the truth thereof may be given in evidence, 
 and the jury, under the direction of the 
 court, shall determine the law and the fact." 
 It will be observed that the liberty of the 
 press is not mentioned at all. The freedom 
 of speech is guarantied to "every person." 
 Of course, the press will be included in the 
 general designation of " every person." But 
 the press has no greater liberty in this regard 
 than any citizen. Xe\vspapers and citizens 
 have the same right to tell the truth about 
 anybody or any institution. Neither has any 
 right to scandalize any one or anv institution. 
 Barnes v. Campbell, 59 X. II. l28, 47 Am. 
 Rep. 183; Pratt v. Pioneer Press Co., 80 
 Minn. 41, U N. W. 02; Mallorv v. Pioneer 
 Press Co. ,34Minn. 521, 2GX. W.'^9()4; Bron- 
 son V. Bruce, 59 :\[ieh. 467, 26 N. W. 671, 60 
 Am. Rep. 307; McAllister v. Detroit Free
 
 224 TlIK LAW OF CONSTRUCTIVE COiNTEMPT. 
 
 Press, 76 Mich. 338, 43 N. W. 431,15 Am. St. 
 Rej). 318; JSTcgley v. Farmvv, 60 Md. 158, 45 
 Am. Rep. 715. The first amendment to the 
 Constitution of the United States specifically 
 mentions the liberty of the press. It is as 
 follows : " Congress shall make no law respect- 
 ing* the establishment of religion, or prohibit- 
 ini»- the free exercise thereof ; or abrid^ino* 
 the freedom of speech, or of the press, oi* 
 the right of the people peaceably to as- 
 semble, and to petition the government for 
 a redress of grievances." It will be noted, 
 however, that, though the press is here spe- 
 cially referred to, it is coupled with the free- 
 dom of speech of the citizens, and no special 
 freedom is conferred upon the om; that is not 
 likewise conferred upon the other. It is most 
 important, therefore, to clearly understand 
 what is meant by " freedom of speech," or, 
 as it is usually termed when speaking of news- 
 papers, the " liberty of the press." 
 
 In 18 Am. & Eng. Enc. Law (2d Ed.), p. 
 1125, " liberty of the press " is thus defined: 
 " The liberty of the press consists in the right 
 to publish with impunity the ti-uth, with good 
 motives, and for justifiable ends, whether it 
 respects governments or individuals ; the right 
 freely to publish whatever the citizen may 
 please, and to be protected against any re- 
 sponsibility for so doing, except in so far as 
 such publications, from their blasphemy, ob- 
 scenity, or scandalous character, may be a 
 public offense, or as by their falsehood and 
 malice they may injuriously affect the st^ind-
 
 Tin: r,Aw of constrictive contkmit. 22/) 
 
 ing*, reputation, oi- pecuiiiarv intorestR of in- 
 diviflnnls.'^ 
 
 Judge Cooley, in iiis iiivaliuibit' work on 
 Constitutional Limitations (6th Ed.), p. 518, 
 Bays: "The coiiHtitutional liberty of speech 
 and of the press, as we understand it, implies 
 a right to freely utter and publish whatever 
 the citizen ma}' please, and to be pi'otected 
 against any responsibility for so doing, except 
 so far as such publications, from their blas- 
 phemy, obscenity, or scandalous character, 
 may be a jiublic offense, or as by theii* false- 
 hood and malice they may injuriously affect 
 the standing, reputation, or pecuniaiy inter- 
 ests of individuals. Or, to state the same 
 thing in somewhat different words, we un- 
 derstand liberty of speech and of the press to 
 imply not only liberty to publish, but com- 
 plete immunity from legal censure and pun- 
 ishment for the publication, so long as it is 
 not hai-mful in its character, when tested b}^ 
 such standards as the law affords. For these 
 standards we must look to the common law 
 rules which were in force when the constitu- 
 tional guaranties were established, and in 
 reference to which they have been adopted.'' 
 
 Patei'son on the Liberty of the I'ress, etc., 
 p. 5, clearly explains the right as follows: 
 "The restraints which confine the natural lib- 
 erty of speech will be found ranged under foui* 
 great heads of blasphemy, immorality, sedi- 
 tion, and defamation. There are bounds to be 
 set to the expression of thoughts and opinions 
 and these must rest on the fundamental [)riii_
 
 226 THIO LAW OF CONSTRUCTIVE CONTEMPT. 
 
 ciples on which all societies are founded. It 
 is assumed that there is a God in whom all 
 citizens in their gravest moods are so inter- 
 ested that it becomes offensive to all the rest 
 if any one speaks of Him publicly in a scur- 
 rilous and conteniptuous tone, such as would 
 provoke a breach of the peace. Hence the 
 first limit to free speech is blasi)hemy . There 
 are also rules of morality, which are so uni- 
 versal, and so underlie the conscience of every 
 individual, that speeches and writings which 
 treat these rules with public contempt, and 
 sap and mine the simple faith in all that is 
 good, noble, and worthy, are also deemed a 
 species of constructive breach of the peace 
 too irritating to be allowed. Hence another 
 limit to free speech and writing is immoral- 
 ity. Again, there are rules of good conduct, 
 founded on the general duty of all citizens to 
 support the government under which they live, 
 and, if possible, to insure due respect and fair 
 treatment to its leading administrators. Hence 
 gross contemi)t of all laws, and violent men- 
 aces of revolt against such guardians, must 
 not be allowed, for these necessarily discom- 
 pose every citizen, and pei'plex him with fear 
 of change or fear of public disaster and an- 
 archy. And when this last head is still fur- 
 ther examined, it will appear that the great 
 factors of government, consisting of the Sov- 
 ereign, the Parliament, the ministei's of State, 
 ihe courts of justice, must all be recognized 
 as holding functions founded on sound princi- 
 ples, and to be defended and treated with
 
 TlIK LAW OF CONSTUUCTIVK CONTKMPT. 227 
 
 an established and well-nigh unalteiahle re- 
 spect. Each of these threat institutions has 
 peculiar virtues and peculiai" weaknesses, but 
 whether at any one time the virtue or the 
 Aveakness piedoniinates, there must be a cer- 
 tain standard of decorum reserved for all. 
 Each guarded remonstrance, each lieiy in- 
 vective, each burst of indignation must rest 
 on some basis of respect and deference to- 
 wards the depository, for the time being, of 
 every great constitutional function. Hence 
 another limit of free speech and writing is 
 sedition. And yet within that limit there is 
 ample room and verge enough for the freest 
 use of the tongue and pen in passing stric- 
 tures on the judgment and conduct of every 
 constituted authority. While the restiictions 
 already mentioned, which are founded on 
 blasphemy, immorality, and sedition, .show 
 the boundai'ies of free speech and thought as 
 affecting the i)ublic generally, there is a 
 fourth limit on the other side as affecting 
 individuals, known under the head of 'Libel,' 
 or the invasion of the reputation (jf private 
 persons. This last limit involves the neces- 
 sity of at once tracing the origin of that 
 tendency of the individual to acquire such 
 reputation and the valur it possesses in his 
 eyes, for it is here that the exercise of one 
 natural right clashes directly with the exer- 
 cise of the other, and both are equally natu- 
 ral and equally inevitable.'" 
 
 No better oi' clearer exposition of this sub- 
 ject has ever been written than what is sai<l
 
 228 THK LAW or CUNfeTKUCTIVE (ONTKMl'T. 
 
 by Mc'Kean, C. J., of the Supreme Court of 
 Peiiu.sylvania, in Respublica v. Oswald, 1 
 Dall. 319, 1 L. Ed. 155. He said: "Asser- 
 tions and impntatioiis of this kind are cer- 
 tainly calenlated to defeat and discredit the 
 administration of justice. '" * * And 
 here I must be allowed to observe that 
 libeling is a great crime, whatever senti- 
 ments may be entertained by those who 
 live by it. With respect to the heart of the 
 libeler, it is more dark and base than that 
 of the assassin, or than his who commits a 
 midnight arson. It is true that I may never 
 discover the wretch who has burned my house 
 or set fire to my barn ; but these losses are 
 easily repaired, and bring with them no por- 
 tion of ignominy or reproach. But the at- 
 tacks of the libeler admit not of this consola- 
 tion. The injuries which ai"e done to the 
 character and reputation seldom can be cured, 
 and the most innocent man may in a moment 
 be deprived of his good name, upon which, 
 perhaps, he depends for all the prosperity and 
 all the happiness of his life. To what tiibuual 
 can he then resort V How shall he be tried, 
 and by whom shall he be acquitted? It is in 
 vain to object that those who know him will 
 disregard the slander, since the wide circula- 
 tion of the public prints must render it im- 
 practicable to apply the antidote as far as the 
 poison has been extended. l^ov can it be 
 fairly said that the same opportunity is given 
 to vindicate which has been employed to de- 
 fnmo him, for many will read the charge who
 
 Tin: LAW (»1' (ONSTfCUCriVK CONIKMIT. 22\) 
 
 will nc'VL'i' sec the answei- ; and, while the 
 object of accusation is |)ublicly pointed at, the 
 nialicions and malignant author i*ests in the 
 dishonoi-ahk' seeui-ityof an anonymous signa- 
 tui'e. Where much has been said sometlung 
 will be believed; and it is one of the many 
 artifices of the libeler to <^ive to his char^^es 
 an asi)ect of g-enerul support by changing 
 and multiplying the style and nanu; of 
 his performances. But shall such things 
 be transacted with impunity in a free 
 country, and among an enlightened 
 people? Let every honest man make this 
 appeal to his heart and understanding, 
 and the answer must be Xo ! Wliat, then, is 
 the meaning of the Bill of Rights and the 
 Constitution of Pennsylvania when they de- 
 clare ' that the freedom of the jjress shall not 
 be restrained,' and ' that the printing pi'esses 
 shall be fi'ee to every person who undertakes 
 to examine the pi'oceedings of the Legisla- 
 ture, or any part of the governmentV ' llow- 
 evei' ingenuity may construe the expressions, 
 there can be little doubt of the just sense of 
 these sections. They give to every citizen a 
 right of investigating the conduct of those 
 who are intrusted with the public business, 
 and they effectually preclude any attempt 
 to fetter the press l)y a licensor. The same 
 principles were settled in England so far 
 back as the reign of William III, and since 
 that time we all know there has been the 
 freest animadversion upon the conduct of 
 the ministers of that nation. liut is thei-e
 
 230 THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 anything in the Inngnage of the Consti- 
 tution (mucii less in its spirit and inten- 
 tion) which authorizes one man to impute 
 crimes to another, foi* which the law has 
 provided the mode of trial and the degree 
 of punishment? Can it he presumed that 
 the slandei'ous words, which, when spoken to 
 a few individuals, would expose the speaker 
 to punishment, become sacred, by the author- 
 ity of the Constitution, when delivered to the 
 public thi'ough the more permanent and dif- 
 fusive medium of the press? Or will it be 
 said that the constitutional I'ight to examine 
 the proceedingsof government extends to war- 
 rant an anticipation of the acts of the Legis- 
 lature or the judgment of the court; and not 
 only to authorize a candid commentary upon 
 what has been done, but to permit every en- 
 deavor to bias and intimidate with respect to 
 matter still in suspense? The futility of any 
 attempt to establish a construction of this sort 
 must be obvious to every intelligent mind. 
 The true liberty of the press is amply secured 
 by permitting eveiy man to publish his opin- 
 ions ; but it is due to the peace and dignity 
 of society to inquire into the motives of such 
 publications, and to distinguish between those 
 which are meant for use and reformation, and 
 with an eye solely to the public good, and 
 those which are intended merely to delude 
 and defame. To the lattei- description, it is 
 impossible that any good government should 
 afford protection and impunity. If, then, 
 the liberty of the press is regulated by any
 
 TIIK LAW OF COXSTUrCTIVK COXTKMIT. 281 
 
 jnst pi'iiiciple, tliere can he little doul)t that 
 he who attc'mi)ts to raise a prejudice against 
 hifi anta«j^oni.st in the minds of those that mnst 
 ultimately determine tlie dispute between 
 them, who, for that pnr[)ose, represents him- 
 self as a persecuted man, and asserts that his 
 jud<^es are influenced by passion and preju- 
 dice, willfull}' seeks to corrupt the source and 
 to dishonor the administration of justice." 
 
 This wholesome and vigoi'ous code of mr)r- 
 als and i-ule of conduct is just as necessary to- 
 day as it was when it was established in the 
 early liistory of these United States.- It ac- 
 coi'ds with the sense of i-i<;ht of all good and 
 l)atriotic people, and those who live by slan- 
 der must expect to suffer the just punish- 
 ments which the law imposes for their crimes. 
 
 Among the ten commandments given b}^ 
 God to Moses was: "Thou shalt not bear 
 false witness against thy neighbor." Exorlus, 
 c. 20, verse 16. And when Christ went into 
 Judaea, teaching the j^eople, one came unto 
 Him, and said, "'Good master, what good 
 thingshall I do that T may have eternal life?" 
 And He said unto him : " Why callest thou me 
 good? There is none good but one. That is 
 God. But if thou wilt entei' into life, keep 
 the Connnandinents. He saith unto him, 
 ' Which?' Jesus said, ' Thou shalt do no mur- 
 der; thou shalt not commit adultery; thou 
 shalt not steal ; thou shalt not bear fals(> wit- 
 ness ; honour thy father and thy mother; and 
 thou shalt love thy neighbor as thyself.'" 
 Matthew, c. 19, verses 17, 18, and 19. These
 
 232 TJIE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 obligations are just as binding to-day as they 
 have always been since they were thus prom- 
 ulgated. The laws of Moses also provided 
 that, if a man slandered his wife, tlie elders 
 of the city should chastise him, and should 
 amerce him in an hundred shekels of silver, 
 which should be given to the wife's father. 
 Deut. c. 22, verses 13 to 19. " Coke says libel- 
 ing and calumniation is an offense against 
 the law of God." Paterson on Liberty of 
 Pi'ess, etc., pp. 224, 225. Good people obey 
 the laws, slander no one, and speak the truth. 
 Othei's must do so, or be punished. Upon no 
 other basis could good govei-nment rest, or 
 the rights of the people be protected. A 
 court that failed to enforce these laws would 
 be so cowai'dly that it would be contemptible, 
 and a disgrace. 
 
 It is material to investigate the history of 
 the adoption of the constitutional guaranty 
 of free speech, and to understand the evils it 
 was intended to supjn'ess. Cooley's Consti- 
 tutional Lim. (6th Ed.), p. 513, says these 
 constitutional provisions were not intended to 
 confer any new I'ights, but simply to protect 
 the citizen in those already possessed. It is 
 then said : " At common law, however, it will 
 be found that libeity of the press was neither 
 well protected nor well defined. The art of 
 pi'inting in the hands of private persons, has, 
 until within a comi)aratively recent period, 
 been regarded rather an instrument of mis- 
 chief than as a power for good, to be fostered 
 and encouraged. Like a vicious beast, it
 
 rilK LAW OF CONSTKUCTIVE CONTEMl'T. 233 
 
 iHi<;ht bu iiKide iisot'iil if j)i'o|)LMly haiin ssc'd 
 and I'csti'aiiiL'd. 'J^'lic <j;()V('i'nmc'iit assinnt'd 
 to itsc'lC tlic riglit to dc.'tcrnjiiu' what ini<^lit or 
 might not bu publisiied ; and ('cnsors wure 
 ajj[)()intc'd, without wiiosc pei'iiiissioii it was 
 C'l-iiuiual to piiblisli a Ijook or |)a|)c*i- upon any 
 suljji'Ct." The learned author then points 
 out that the censoi'sliip continued until tin* 
 revolution o(* 1(588, and it was a criminal 
 offense to publish the proceedings of Pailia- 
 nient or of the courts, or even the curient 
 news of the day, without permission. He 
 also shows that the same practice was fol- 
 lowed in the American colonies until the 
 Revolution, and that even after the Rev- 
 olution "the public bodies of the united na- 
 tion did not at once invite publicity to their 
 deliberations. The Constitutional Convention 
 of 1787 sat with closed doors, and, although 
 impei'fect reports of the debates have since 
 been published, the injunction of secrecy 
 upon its members was never removed. The 
 senate for a time followed this example, and 
 the first open debate was had in 1793." The 
 same author, at page 516, then adds : " It 
 must be evident from these historical facts 
 that liberty of the press, as now understood 
 and enjoyed, is of very i-ecent origin ; and 
 commentators seem to be agieed in the ojnn- 
 ion that the tei'm itself means only that libei'ty 
 of publication without the i)revious permis- 
 sion of the goveiMnnent, which was obtained 
 by the abolition of the censorship. In asti'ict 
 sense, Mr. Ilallam says it consists merely in
 
 234 TUK LAW or constructivj*: contempt. 
 
 exemption Ironi a licenser. A similar view is 
 expressed by De Lolme. ' Liberty of the 
 j)ress,' he says, 'consists in this: that neither 
 conrts of justice nor any other jnclges what- 
 ever ai'e authorized to take notice of writings 
 intended for the press, l)ut are confined to 
 those which are actually printed.' Black- 
 stone also adopts the same opinion, and it has 
 been followed by American commentators of 
 standard authoi'it}^ [he refers to Story on 
 Const., § 1889 ; 2 Kent, 17 et seq., and Rawle 
 on Const, c. 10] as embodying correctly the 
 idea incorporated in the constitutional law of 
 the country by the provisions of the American 
 Bill of Rights. It is conceded on all sides 
 that the common-law rules that subject the 
 libeler to responsibility for the private injury, 
 or the public scandal or disorder occasioned 
 by his conduct, are not abolished by the pro- 
 tection extended to the press in our Consti- 
 tutions. The words of Parker, C. J., of 
 Massachusetts, on this subject, have been 
 frequently quoted, generally recognized as 
 sound in principle, and accepted as au- 
 thority. ' Nor does our Constitution or Dec- 
 laration of Rights,' he saj^s, speaking of his 
 own State, ' abrogate the common law in this 
 respect, as some have insisted. The sixteenth 
 article declares that " liberty of the press is 
 essential to the security of freedom in a State. 
 It ought not, therefore, to be restrained in this 
 commonwealth." ' The liberty of the press, 
 not its licentiousness ; this is the construction 
 which a just regard to the other parts of that
 
 THE [.AW OF rONSTKUf'TlVp: fONTKMrT, 230 
 
 instnimciif. aiul to tho wisrjoin oi' those who 
 foinulcd it, re'(juii-cs. In tho olt'vcnth ;irticle 
 it is dechnvd that ' every subject of the coin- 
 monwealth oii^^ht to fiiul a eertaiii i-eincdy \)y 
 having i-eeourse to tlie hnvs for all iiijui-ies or 
 wrongs which he may recei\e in his person, 
 ])i-operty, or character ' ; and thus the general 
 declai'ation in the sixteenth ai'ti(de is quali- 
 fied. Besides, it is well undei'stood and re- 
 ceived as a commentary on this piovision foi* 
 the libert}^ of the [)ress that it was intended 
 to prevent all such previous restraints upon 
 publications as had been practiced by other 
 governments, and in early times here, to stifle 
 the efforts of patriots towards enlightening 
 theii" fellow-subjects upon their rights anrl the 
 duties of rulers. The liberty of the press was 
 to be unrestrained, but he who used it was 
 to be responsible in case of its abuse ; like 
 the right to keep firearms, which docs not 
 jirotect him who uses them for annoyance or 
 destruction." 
 
 This is the true rule. The liberty of the 
 press means that any one can publish any- 
 thing he pleases, but he is liai)le foi- the abuse 
 of this liberty. If he rloes this by scandaliz- 
 ins: the courts of his countrv, lie is liable to 
 be punished for contempt. If he slanders his 
 fellow-men, he is liable to a criminal prosecu- 
 tion for libel, and to i-esi)ond, civilly, in dam- 
 ages foi' the injui'v he does to the individual. 
 In othei- words, the abuse of the privilege 
 consists principall}' in not telling the truth. 
 It is no new claim that newspapers have a
 
 23i) TIIK LAW OF CONSTRUCTIVE CONTEMPT. 
 
 g-rcatiT privilege than the ordinary citizen. 
 This is a grave error. In King v. Root, 4 
 Wend. 113, 21 Am. Dec. 102, Chancellor 
 Walworth said: "It has been nrged upon 
 you tiiat conductors of the public press are 
 entitled to peculiar indulgences, and have 
 special rights and privileges. The law recog- 
 nizes no such peculiar rights, privileges, 
 or claims to indulgence. They have no 
 i-ights but such as are common to ail. 
 They have just the same rights that the rest 
 of the community have, and no moi-e. They 
 have the right to publish the truth, but no 
 right to publish falsehood to the injury of 
 others with impunity." And in Hotchkiss v. 
 Oliphant, 2 Hill, 510, Chief Justice Nelson, 
 speaking foi" the Supreme Court of New York, 
 said: "It is made a. point in this case, and 
 was insisted u|Jon in argument, that the editor 
 of a public newspaper is at Libert}'' to copy an 
 item of news fiom another paper, giving at 
 the same time his authority, without subj^'ct- 
 ing himself to legal responsibility, however 
 libelous the article may be, unless express 
 malice be shown. It was conceded that the 
 law did not and ought not to extend a similar 
 indulgence to any other class of citizens; but 
 counsel said that a distinction should be made 
 in favor of editors on the ground of the pe- 
 culiarity of their occupation ; that their busi- 
 ness was to disseminate useful knowledge 
 among the people; to i)ublish such matters 
 relating to the current events of the day hap- 
 pening at home or a!)road as fell within the
 
 TlIK LAW OF CONSTKUCTHK roNTKMI'T. 2.")7 
 
 sphoro of tlic'ir oI)servation, aiul as tlic public 
 oiii-insity 01' taste dciriaiuled ; and that it was 
 iinpractical)le foi* tiioin at all titnes to ascci-- 
 tain the truth or falsehood of the various 
 statements contained in otiier jouinals. AVe 
 are also told that, if the law were not thus 
 iiidulg-ent, some legislative relief mig-lit l»ecf)mc 
 necessary for the pi'otection of this class of 
 citizens. Undoubtedly, if it be desii-able to 
 l)ampei' a depi'aved public ap|)e(ite or taste if 
 there be any such, by the republication of all 
 the falsehoods and caluTimies upon private 
 character that may find their wa}' into the 
 press, to give encouragement to the widest 
 possible circulation of these vile and defama- 
 tory pul)lications by protecting the retailei's 
 of them, some legislative interference will be 
 necessary, for no countenance can be found 
 for the irresponsibility claimed in the common 
 law. That reprobates the libeler, whether 
 author or publisher, and subjects him to both 
 civil and criminal responsibility. His offense 
 is there ranked with that of the ivceivei- of 
 stolen goods, the perjurei" and suborner of 
 perjui'y, the disturber of the peace, the con- 
 spirator, and other offenders of like charac- 
 ^^,y ¥: ¥c V: rpi^^ ^^^ ^^^ pubHcatiou is an 
 
 adoption of the original calumny, which must 
 be defended in the same way as if invented 
 b}' the defendant. The i-epul)lication assumes 
 and indorses the truth of the chai'ge, and, 
 when called on b}' the aggrieved pai'ty, the 
 publishei- should be held strictly to the pi'oof. 
 If he chooses to become the indorser an<l re-
 
 238 THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 taller of private scandal, without taking the 
 trouble of inquiring into the truth of what 
 he publishes, there is no ground for complaint 
 if the law, which is as studious to protect the 
 character as the property of the citizen, holds 
 him to this responsibility. The rule is not 
 only just and wise in itself, but, if steadily and 
 inflexibl}^ adhered to and applied by courts 
 and juries, will greatly tend to the promotion 
 of truth, good morals, and common decency 
 on the part of the press, by inculcating caution 
 and inquiry into the truth of chai'ges against 
 private character before they are published 
 and circulated throughout the community." 
 Time was, vvhen, if any citizen or news- 
 paper insulted or slandered oi* maligned a citi- 
 zen, the injured party demanded satisfaction 
 according to the code of honor, and, if this 
 was refused, treated the offender as a mad 
 dog is usually dealt with. It is worthy of 
 notice that in those days every one was care- 
 ful to tell the truth about his fellow-men, and 
 equally careful to avoid scandalizing them. 
 But even in those days there were occasional 
 breaches of decency in this regard, which 
 were promptly dealt with. A sentiment, how- 
 ever, grew up that such a method settled 
 nothing; that the innocent party was as liable 
 to be removed or hurt as the guilty, and that 
 the result did not show which told the truth. 
 Thus public sentiment discouraged, if it did 
 not forbid, such a method of settling such 
 grievances, and' it was insisted that the rem- 
 edies afforded by the laws were ample to
 
 TlIK LAW OF CONSTRUCTIVE CONTEMPT. 239 
 
 properly liandle all such matters, and heiiee 
 that any one ag<^rievL'(i must not take the law 
 in his own hands, but must let the c(;urts 
 settle it. So the old methtKl has become 
 nearly obsolete; but even now it is occasion- 
 ally resorted to when the offense is peculiarly 
 aggravated, and so indecent that it is impos- 
 sible for luimau nature to stand it. 
 
 Now, it is gravely argued by libelers that 
 the liberty of the press includes a right to 
 scandalize courts, to lil)el and slander and 
 utter the most llagi-ant and indecent calumnies 
 about public officers, and even pi'ivate citi- 
 xens, and to invade the sanctuaries of the 
 churches, tiie temples of justice, or the sacred- 
 ness of the home and the private family, and 
 without any good motive, or for any public 
 purpose, to publish the most cruel, false, and 
 scandalous articles concerning them. And 
 there ai'e nevvs[)a[)ers that have so far mis- 
 conceived their proper functions, or been mis- 
 guided by other considerations, as to indulge 
 in such practices. And there is always a class 
 of moral perverts and degenerates in every 
 community who feed their morbid appetites 
 upon such scandals, and rejoice at the injuiy 
 thus done to those who are so infinitely their 
 superiors that they are not worthy to fasten 
 the latchet of their shoes. But, to the credit 
 of the newspaper profession, it is due to here 
 make a record of the fact that the gi'eat ma- 
 jority of the members of that profession do 
 not approve or sanction such practices or such 
 "yellow" journalism, but have a proper ap-
 
 240 THE LAW OF COXSTKUCTIVE CONTEMPT. 
 
 preeiation of the rights niul piu-posos and func- 
 tions of a newspapei-, and deplore the fact that 
 8iich unworthy persons are engao'ed in thepi'o- 
 fession, as much as lawyers deplore the black 
 sheep that will sometimes creep into the fold. 
 The contrast between the fwo classes marks 
 the difference between res[)ectability and in- 
 decency, between intelligence and ignorance, 
 between the law abiding, patriotic citizen and 
 the Ishmaelite — the assassin of character for 
 the accumulation of lucre. The g»-eat body 
 of the people condemn such practices and such 
 miscreants, and the courts would deserve con- 
 demnation and abolition if they did not vigor- 
 ously and fearlessly punish such offenders. 
 Such practices are an abuse of the liberty of 
 the press, and if the slander relates to the 
 courts it concerns the whole public, and is 
 therefore punishable summarily as a criminal 
 contempt; and if it concerns an individual it 
 is punishable civilly and criminally as for a 
 libel. 
 
 There is no species of property and no 
 class of people that need the protection of 
 the law as much as newspapers and editors, 
 and they would feel the loss of such protec- 
 tion more speedily and more acutely than 
 any one else. Self-interest should, therefore, 
 induce them not to impair the power or au- 
 thority of the courts, and not to inculcate a 
 feeling of disrespect or want of confidence in 
 the courts. Curran called the liberty of the 
 press a " sacred palladium." But without 
 the shield and the bulwark of the law and the
 
 TIIK LAW OF CONSTUUCTIVK CONTKMIT. 241 
 
 courts, even the Goddess Pallas would be 
 unaljle to i)rotect the press, or to preserve 
 the ri<^hts and safety and peace of the peo- 
 ple. Without the law and the courts, chaos 
 and anarchy would prevail. There would be 
 no protection for life, liberty, propei'ty, or 
 chai-acter. He, therefore, who seeks to de- 
 sti'oy the authority of the courts, invites an- 
 archy, and sows seed for his own undoing. 
 It is the liberty of the press that is guaran- 
 tied, not the licentiousness. It is the right to 
 speak the truth, not the right to bear false 
 witness against your neighbor. Every citi- 
 zen has a constitutional right to the enjoy- 
 ment of his character as well as to the own- 
 ership of his property, and this right is as 
 sacred as the liberty of the press. In King 
 V. Hurdett, 4 Barn. & Aid. 95, it was said: 
 " The liberty of the press cannot impute crim- 
 inal conduct to others without violating the 
 right of the character, and that right can 
 only be attacked in a court of justice, vvhei-e 
 the party attacked has a fair oi)portunity of 
 defending himself. Where vitHperation he- 
 ginSy the liberty of the press ends.''' (The 
 italics ai-e added.) It must be clearly undei- 
 stood and always borne in mind that there is 
 a vast difference between criticism or fair 
 comment on the one side and defamation on 
 the other. Odgers on Libel <fc Slander, page 
 35, says : "Every one of the public is en- 
 titled to pass an o{)inion on everything which 
 in any way invites pr.blic attention. Those 
 of the public whose opinion on such matters 
 
 IG-
 
 242 Tllli: LAW OF CONSTKUCTIYE CONTEMPT. 
 
 is l)eKt worth hnving are called 'critics.' 
 From their character, ability, oi" experience 
 they can judge with precinion (which is the 
 true meaning of the word 'criticise'), and 
 their opinion, therefore, is entitled to i"e- 
 spect. Their criticism may be commenda- 
 tory, hut it is, perhaps, moi'e generally un- 
 favoral)le. Still, so long as it continues to 
 be criticism at all, it is not defamatory. 
 Whei'e defamation commences true criti- 
 cism ends. True criticism differs from def- 
 amation in the following particulars: (1) 
 Criticism deals only* with such things as in- 
 vite pul)lic attention or call foi" j)ublic com- 
 ment. (2) Criticism never attacks the indi- 
 vidual, but only his woi-k. Such work may 
 be either the polic}' of the govei'ument, the 
 action of a member of Pai'liament, a public 
 entertainment, a book published, or a pic- 
 ture exhibited. In every case the attack is 
 on a man's acts, or on some thing, and not 
 upon the man himself. A true critic never 
 indulges in personalities. (3) True criticism 
 never unputes or insinuates dishonorable mo- 
 tives (unless justice absolutely requires it, 
 and then only on the clearest proofs): (4) 
 The critic nevei- takes advantage of the oc- 
 casion to gratify private malice, or to attain 
 any other objict beyond the fair discussion 
 of matters . of public interest, and the judi- 
 cious guidance of thepublic taste." The same 
 author quotes with ap|)roval the language of 
 Huddk'Ston, B., in Whistler v. Ruskin, where 
 he says: "A critic must confine himself to
 
 TllK LAW OF ( ONS'IlircTIN K CONTEMI'T. 243 
 
 criticisiM, and not iiiakc it the veil for per- 
 sonal censure, noi' allow himself to inn int(j 
 reckless and unfair attacks merely foi- (lie 
 love of exercising his power of denunciation." 
 And the authoi- adds (page 88) : " But 
 all comments must he fair and honest. Mat- 
 ters of puhTu^ intei'est must he discussed tem- 
 perately . Wicked and corrupt motives shout d 
 never be wantonly assigned [The italics 
 are added.] And it will he no defense that 
 the writei , at the time he wrote, honestly 
 believed in the truth of the charges he 
 was making, if such charges he made reck- 
 lessly, unreasonably, and without any foun- 
 dation in fact. Some people ai-e very cred- 
 ulous, especially in politics, and can readily 
 believe any evil of theii' opponents. There 
 must, thei'cfore, be some foundation in fact 
 tov' the charges made. The wM-ittM- must 
 bring to his task some degree of inoderation 
 and judgment." The author also quotes 
 with ai)proval the language of Cockburn, C. 
 J., in Campbell v. Spotteswoode, 32 L. J. Q. 
 B. 199: "A line must be drawn between 
 criticism upon public conduct and the im|)U- 
 tation of motives by which that conduct may 
 be 8U[)|)0sed to be actuated. One man has 
 no right to impute to another, whose conduct 
 may be fairly open to ridicule or disapproba- 
 tion, base, sordid, and wicked motives, unless 
 there is so much ground for the imputation 
 that a jury shall find, not only that he had 
 an honi-st belief in the truth of his state- 
 ments, but that his belief was not without 
 foundation."
 
 244 TJIK LAW OF CONSTKUCTIVK CONTKMPT. 
 
 PattTson on Liberty of Press, etc., p. 131, 
 says: " While, theiefore, it is lawful for any 
 one to publish a i-ei)oi"t of a proceeding in a 
 court of justice, still this must be a fail- and 
 authentic report of what happened. If the 
 report is mixed up with comments showing 
 an animus agains*: a party, and giving an un- 
 fair impression, the publishei- then ceases to 
 have the benefit of this absolute protection." 
 The author is discussing the liberty of the 
 press. 
 
 The courts of other States have held that 
 it is libelous to chai'ge an officer with having 
 taken a bribe, or with corruption, or want of 
 integrity. In such cases the publishei* must 
 stand ready to prove the truth of his charges, 
 or he will not go unwhipped of justice. 
 Hamilton v. Eno, 81 N. Y. 116; AV'ilson v. 
 :N'oonan, 35 Wis. 321; Gove v. Blethen, 21 
 Minn. 80; 18 Am. Eep. 380; Russell v. 
 Anthony, 21 Kan. 450; 20 Am. Rep. 436; 
 Littlejohn v. Greeley, 13 Abb. Prac. 41; 
 Bole V. Yan Renselaer, 1 Johns. Cas. 330 ; 
 m^gley V. Farrow. 60 Md. 158; 45 Am. Rep. 
 715; Xeeb v. Hope, 111 Pa. 145; 2 Atl. 
 568. 
 
 It is pertinent and profitable to set out a 
 few of the cases wherein the courts of other 
 jurisdictions have summarily punished per- 
 sons as for a criminal contempt on account 
 of publications which were calculated to 
 brijig public odium upon the court. 
 
 The case of Respublica v. Oswald, 1 Dall. 
 319.1 L.Ed. 155, has already been referred to.
 
 TllK LAW Ul- (■(JN.STKL."( TIN K CONTKMIT. 24.') 
 
 Ill R('s|)iil)lic;i V. Passinore, 3 Ycates, 441, 
 2 Am. Dec. :]SS, the dcfendimt was fiiiefl $50 
 and sent to jail for 30 days for publishing an 
 aiticle I'cllecting- iii)on one of the parties to a 
 pending cause, which tended to interfei'e with 
 the course of justice. 
 
 In People v. Freer, 1 Caines, 518, the de- 
 fendant published, in the Ulster Gazette, cer- 
 tain comments concerning a trial that had 
 occurred in court, that were calculated to 
 piejudice and influence the public mind 
 against the court, and to intimidate and ii>- 
 tluence the court in deciding a motion for a 
 new trial that was then pending. He was 
 punished for contempt. The court said: 
 " Publications scandalizing the court, or in- 
 tending unduly to influence or overawe their 
 deliberations, are attempts which they are 
 authorized to punish by attachment; and, 
 indeed, it is essential to their dignity of char- 
 acter, their utility and independence, that 
 they should possess and exercise this au- 
 thority." 
 
 In Tenney's Case, 23 X. H. 1(32, the de- 
 fendant, who had no interest in a pending- 
 action, except that his son had sued one of 
 the defendants and had lost, caused copies of 
 the petition in the [)ending action, which 
 contained serions charges against tlu' defend- 
 ants, to be published and cii'culated among 
 persons with whom the defendants had busi- 
 ness relations, in which he said he could stoi) 
 the suit if the defendants would pay him 
 $1,000— that being the amount he said he
 
 246 THE LAW or constructive contempt. 
 
 liad lost by bis son's unsncccssfnl suit a_i>-ainst 
 tbe defendants. It was licld tbat "f^ucli con- 
 duct tended to obstruct tbe free coui'se of 
 justice, and was a contemi)t of court," and a 
 rul<' in attacinnent was granted. 
 
 For [)ubliHbing' an account of a tiial for 
 treason wben tbe coui't bad forbidden any 
 pubbcation of it, because bke cases were 
 pending- against otber persons, whose rights 
 might be affected, the defendant, as editor 
 of tbe Observer, was fined c€500 by tbe Court 
 of King's Bench in England in 1821. King 
 V. Clement, 4 Barn. & Aid. 218. 
 
 In Sturoc's Case, 48 N. H. 428, 97 Am. 
 Dec. 626, the defendant, a membei" of the 
 bar, was punished as for a criminal contempt 
 for publishing a communication in a newspa- 
 per respecting a prosecution under the liquor 
 laws of that State, which tended to prejudice 
 the minds of tbe people against the case. 
 
 In State v. Morrill, 16 Ark. 384, the de- 
 fendant, as editor of tbe Des Arc Citizen^ 
 published an article in which, b}^ implication, 
 he charged the judges of the Supreme Court 
 of Ail^ansas with having been bribed to ren- 
 der a certain decision in a habeas corpus case 
 that bad been finally decided by that court. 
 Upon tbe publication being called to the at- 
 tention of the court by a communication ad- 
 dressed to one of the judges of the court by 
 a member of the bar, the court issued a rule 
 to show cause. The defendant pleaded the' 
 statute of that State prescribing that in 
 certain instances, and no others, the court
 
 TllK LAW OF CONSTKUCTIVK CUMICMI'T. ^47 
 
 could punish for eoiitcuipt . It was admitted 
 that llio ;ic't coinphiiiR'^l of did not fall 
 within tlu- terms of tlic statute, and it was 
 (daimed that the court had no power to 
 l)nui8h for any other kind of a contemi)t than 
 that specified in the statute. The statute 
 was, in ipsissimi^s ver'ois, exactly like section 
 161G, Kev. St. Mo. 1899. It will he ob- 
 served that the charge was practically the 
 same in that case as in the case at bar, 
 and that the. statute relied on in that case 
 is exactly like our statute. The court held 
 the statute to be beyond the power of the 
 Legislature to enact, and that the power to 
 punish as for a criminal contempt was in- 
 herent in the court. The court also held, as 
 stated in the headnote, that: " Any citizen 
 has a right to comment upon the proceedings 
 and decisions of this court, to discuss their 
 correctness, and the fitness or unfitness of 
 the judges for their stations, and the fidel- 
 ity with which they perform the important 
 trusts reposed in them; but he .has no right, 
 under the seventh section of the Bill of 
 Rights, to attempt, by libelous publications, 
 to degrade the tribunal, etc. Such publica- 
 tions are an abuse of the liberty of the 
 press, for which he is responsible " It wa-i 
 also objected that it was not a contempt of 
 court, because it did not relate to a case 
 then pending, and therefore the rights of no 
 party litigant were affected by it. But the 
 court referred to the adjudications — particu- 
 larly CommonweaUh v. Dandridge, 2 Ya.
 
 248 THK LAW OK CONSTKUCTIVK CONTEMPT. 
 
 Cas. 409, pi'oseiitly to be cited — and said : 
 " The case above cited (and many more 
 might be cited if deemed at all necessary) 
 abundantly show that by the common law 
 courts possessed the power to ])unish as for 
 contempt libelous publications of the char- 
 acter of the one under consideration, upon 
 their ])roceedings, pending or past, upon the 
 ground that they tended to degrade the tri- 
 bunals, destroy 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." Accordingly, the 
 defendant was punished summarily as for a 
 criminal contempt. 
 
 In Commonwealth v. Dandridge, 2 Va. 
 Cas. 409, the court at a prior term had de- 
 cided a case against the defendant. He met 
 the judge at the door of the courthouse, be- 
 fore the opening of court for the next term, 
 and grossly insulted him, charging him with 
 corruption and co\vardice in the decision of 
 his case. He was cited for contempt, and 
 it was objected that the act did not relate to a 
 pending cause. The case was transferred to 
 the general court of the State, and that court, 
 speaking' to this point, said : " Upon this part 
 of the subject, and in reference to cases which 
 have an indirect bearing on the present ques- 
 tion, a distinction is attempted for which I 
 can find neither reason nor authority. It is 
 said that the attaching power may be exercised 
 for contempts touching the prospective con-
 
 TlIK LAW ()!■ CONSTKLCm K CONTHMrT. 249 
 
 duct of till' jihIoi-c, hut not so far as toufli his 
 past con<hict. lu leason I sec l)iit one piH'tcMise 
 for this distinction. Threats and menaces of 
 insult or injui'y to a jud<^e in case he shall 
 render a certain judgment may he considered 
 asim[)airing his independence andlm|)artiality 
 in the j)artieuhii' ease to wliieh tlie tliivats re- 
 fer. And if the power of punishment sto[) here, 
 a curious consequence may ensue. A man 
 may be attached foi' tlireateniiig to do that 
 for whicii he could not be attached when actu- 
 ally done. One says of a judge, 'If he render 
 a certain judgment against me, I will insult 
 or beat him.' For this he may be attached. 
 But if (the judgment having been rendered) 
 this insult be actually offei-ed, an attachment 
 no longer lies, because the contempt is in re- 
 lation to the past conduct of the judge, and 
 to a case no longer pending. A recur!"ence 
 to original princi[)les — the only true test — • 
 by demonstrating that the weight, authority, 
 and independence of the court may be equally 
 assailed either way, will i)i'ove that this dis- 
 tinction is merely ideal." 
 
 In the case of In I'c Pi-yor, 18 Kan. 72, 26 
 Am. Rep. 747, the court finally decided a case, 
 and the attorney for the losing party wrote a 
 letter to the judge, saying the decision " is 
 directly contrary to every piinciple of law 
 govei'uing injunctions, and everybody knows 
 it, I believe. * * * It is my desire that 
 no such decisions or ordei's shall stand unre- 
 versed in any couit I piactice in." Thecoui't 
 held that it was a criminal eontem{)t. fined
 
 250 THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 him |>50, and suspended him ffom practice 
 until the fine was paid, and the Supreme 
 Court affirmed the judgment. 
 
 In the case of In re Woolley, 11 Bush, 95, 
 the defcncJant as attorney tor the losing l)arty, 
 filed a motion for rehearing, in which in a 
 supercilious and dogmatic style, he charged 
 " that the court had overlooked the facts of 
 the case; that it had assumed facts having 
 no phice in the jiroof, and ignored others 
 which stood out on every page of the record ; 
 that it was careless and indifferent to the 
 riglits of a litigant, and that the result of 
 this carelessness and indiffei'ence was a ruin- 
 ous, disastrous, and unjust judgment against 
 a party wholly innocent of all offense." The 
 court pronounced the offense to be " of a na- 
 ture too gi'ave to be silently overlooked." 
 The defendant was cited for contempt, and 
 disclaimed, under oath, any intention to coiu- 
 mit a contempt, and in consideration of this 
 condition his fine was assessed at the nominal 
 sum of |30. 
 
 In People v. Wilson, 64 III. 195, 16 Am. 
 Rep. 528, the defendant, the editor of the 
 Chicago JEvening Jourtial,\}uhY\Hhed, in 1872, 
 an article with reference to a case then pend- 
 ing in the Supreme Court, in which he re- 
 flected on the action of the court in thai case, 
 impeached its integrity, and sought to intimi- 
 date the action of the court by thi-eat of i)<)p- 
 nlar clamor. He was cited for criminal con- 
 tempt, and fined $100. In this case the court 
 adopted the i*ule laid down by Bishop's Crim-
 
 Tin: l.AU Of CONSTia CTIVK (ONTKMIT. 251 
 
 inal Law, ^ 216. wherein it is sail : "Ae- 
 eorfling- to the <^enei'al doctiine, any publiea- 
 tion, whether by parties or strangers, which 
 concerns a case pending in (-(jnrt, and lias a 
 tendency to piejndice the public conceiiiing 
 its merits, and to corfuj)! the administration 
 of jnstice, or which ivlkcts on the tribunal 
 or its proceedings, or on the parties, the ju- 
 rors, the witnesses, or the counsel, may be 
 visited as a contempt." 
 
 In the case of In re Chadwick (Mich.j, (37 
 N. "W. 1071, the defendant, as attorney for 
 the losing i)arty, in a case that had hvvu de- 
 cided by tiie Supreme Court of Michigan, 
 wrote and pui)lished, in 1896, an article in 
 the Port Ilui-on JVeivs, criticising tlie decree, 
 and in it charged the judge with unfairness 
 and improper conrluct. The Supreme Court 
 of Michigan held it to be a contempt of court, 
 and that the j)ower to punish for contem[)t 
 existed as well aftei* a case was finally dis- 
 posed of as where it was still pending. The 
 attachment was issued in this case upon a 
 petition of the members of the bar infoi'ming 
 the court of the contempt. 
 
 In Fishi)aek v. State (Ind. Sup.), 'SO N. E. 
 1088, the defendant, as editor of the Terre 
 Haute Express, published, in 1892, a certain 
 article I'efiecting ujjou the gi'and jury, the 
 judge of the circuit coui't, the [)rosecuting 
 attoi'uey, and the cit}' engineer, and casting- 
 doubt uj)on their integi'ity and honesty with 
 respect to the investigation and punishment 
 of certain street im[)i-ovement conti'actors.
 
 252 THE LAW OF CONSTRUCTIVE CONTEMPT, 
 
 The defendant denied any intention to com- 
 mit a contempt. It was held that, where a 
 matter was hbelons per se, the denial of the 
 defendant that he intended to commit a con- 
 tempt would not avail him, but, if the article 
 was not pel' se libelous, but could be made so 
 only by innuendo, the defendant would be 
 dischai'gecl upon showing that he intended no 
 contempt. 
 
 In People ex rel. Conner v. Stapleton 
 (Colo. Sup.), 33 Pac. 167, 23 L. R. A. 787, 
 William Stapleton and Kemp G. Cooper, 
 editors of the Denver Republican^ were cited 
 for contempt in publisiiing, in 1893, an article 
 in the paper " implying that the Supreme 
 Court has been induced by improper influences 
 to delay i-endering a decision " in a certain 
 cause. The court said of the article: "It 
 is not mei'ely a private wrong against the 
 rights of litigants and the judges. It is a 
 public wrong, a crime against the State, to 
 undertake by libel or slander to impair con- 
 fidence in the administration of justice. That 
 a party does not succeed in such undertaking 
 lessens his offense only in degree." The 
 court also held that the power of the court to 
 punish for contempt was Jiot limited by the 
 provision of the Code which attempted to de- 
 fine the cases in which the court could punish 
 for contempt, and also held that the liberty 
 of the press was not in any way impaired by 
 the court punishing as for a contempt the 
 abuse of such libeity. 
 
 In Cooper v. People (Colo. Sup.), 22 Pac.
 
 Tin: LAW OF CUNSTULCTIVE CU.NTK.Ml'T. 253 
 
 790, tlie (IcfViulaiit, as editor of the* DeiiVL-r 
 Repuhlic'in, pul)li.shed in 1889 an article rc- 
 rtectin<!^ upon tlie manner in wliicli a cei-tain 
 pending case was Ijeing tried l)y the couit. 
 He was cited for contempt, lie alsodenianded 
 u trial l)y jury, and pleaded the liberty of 
 the press. A jury trial was denied him. And 
 touching his other plea, the court said : '* AVe 
 woulfl not for a moment sanction any con- 
 traction of the freedom of the press, Uni- 
 vei'sal exi)erience has shown that such free- 
 dom is necessary to the perpetuation of our 
 system of' government in its integrity, but 
 this freedom does not license unrestrained 
 scandal. By a subsequent clause of the same 
 sentence of our State Constitution in which 
 the liberty of the press is guarantied, the re- 
 S|)onsibility for its abuse is fixed. With us 
 tlie judiciary is elective, and every citizen 
 may fully and fi'eely discuss the fitness or 
 unfitness of all candidates for the positions to 
 which they aspire ; criticise freely all deci- 
 sions rendered, and by legitirnate argument 
 establish their soundness or unsoundness; 
 comment on the fidelity or infidelity with 
 which judicial officers dischai'ge their duties; 
 but the right to attem})t, by w^anton defama- 
 tion, to prejudice the rights of litigants in a 
 pending cause, degrade the ti'ibunal, and im- 
 pede, embarrass, or corrui)t that due admin- 
 isti'ation of justice which is so essential to 
 good government, cannot be sanctioned." 
 Id., loc. cit. 799. 
 
 Burke v. Territory of Oklahoma, 2 Okl.
 
 2o4 Tin: law of constkuctive contempt. 
 
 499, 37 Pac. 829, was an attaclnnent for (u>ii- 
 tc!inpt against the defendant for puljlisliing 
 in 189i, in tlic Oklahoma Times- Journal^ an 
 iii'ticle respecting' a report of the gi'and jnry, 
 where tlie question was whethi'r it should be 
 received by the court or returned to the grand 
 jury, and in wiiich article it was said that the 
 judge's cictions indicated that he intended to 
 withhold the report, and adding that, it* the 
 judge pei'sisted in carrying oul such intention, 
 it niiofht be cluiracterized as a lla«>'rant viola- 
 tion of the people's rights, and that the action 
 of the court " is an effort to browl)eat the 
 grand jury, an effort to bend the gi'and jm-y 
 to the will of the court, and a serious mat- 
 ter." It was held to be a criminal contempt, 
 and the punishment fixed at a fine of $250 
 and imprisonment for 10 days. It was also 
 held that the Legislature had no power to 
 limit or regulate the inherent power of a 
 court to punish contempts, and that in con- 
 tempt cases the defendant was not entitled to 
 a tiial by jui-y. 
 
 In Little V. State, 90 Ind. 338, 46 Am. 
 Rep. 221, decided in 1883, it was held that 
 the power of the courts to punish for con- 
 tempt is inherent, and cannot be prevented or 
 abridged b}^ legislative action, and that an 
 attempt to create the belief that a juror or 
 officer of court can be bi'ibed is a contempt 
 of court. See. also, Hawkins v. State, 125 
 End. 570, 25 N. E. 818. 
 
 Other instances whei'e public otHceis have 
 resorted to a private action of libel to remedy
 
 TIIK LAW OF CONSTRUCTIVE CONTEMPT. 255 
 
 tlie wrong can l)e foiiiHl in the following 
 cnses : Xet-l) v. Hope, ] 1 1 Va. Uf), 2 Atl. 568 ; 
 NegU'v V. Farrow, GO Md. 158, 45 Am. Kep. 
 715; Dole V. Van liennsselaei', 1 Johns. Cas. 
 330; Littlcjohn v. ''iieeley, 13 Ai)l). IVae. 41 ; 
 Russell v. Anthony, 21" Kan. 450, 30 Am. 
 Kep. 436; Gove v. Blethen, 21 Minn. 80. 18 
 Am. Ke[). 380; Wilson v. Xoonan, 35 Wis. 
 321; Hamilton v. Eno, 81 X. Y. 116. 
 
 Tims at gi-eat pains and tedions length the 
 cases bearing npon the matters involved in 
 this case have been collected and disrested, 
 with the puipose and to the end that the peo- 
 |)le may know the grounds npon whicii the 
 jndgment in this case rests, and so that all 
 othei's mav know the law, and avoid bein*'- 
 
 .'•1.1 ^ 
 
 guilty of like offenses, or else offend know- 
 ingly, and hence invite inevitable punish- 
 ment. 
 
 There was nothing in the case to which the 
 ai'ticle in this case i-eferred to call for any 
 such scandalizing of the court. The case 
 arose i)rior to the fellow-servant law. It 
 was a case wherein a brakeman was injured 
 ])y a wi'eck of the train on which he was 
 working. He based his right to recover ui)on 
 the ground that the master had failed to fur- 
 nish safe ap[)liances with which to do the 
 work, in consequence of which the injury 
 was received. The unsafe appliance was al- 
 leged to be a freight car that had unsafe sills, 
 which w^ere so rotten that the car broke down 
 from its own infirmity while still on the 
 ti'ack. The defense was that the wreck was
 
 25(j THE LAW OF CONSTRUCTIVK CONTEMPT. 
 
 caused by tlu' forewheels of tlie alleged un- 
 safe car jumping the track, and that the car 
 was whole when it left the track, and broke 
 afterwards, and hence that the injury was 
 caused by a risk which the plaintiff assumed 
 when he entered the master's service, and 
 not by any negligence of the master in fur- 
 nishing the servant unsafe appliances, A ma- 
 jority of the court was of the opinion that 
 there .was absolutely no evidence whatever to 
 support the plaintiff's case, while the minority 
 of the court was of opinion that there was 
 such evidence, or at least enough thereof to 
 take the case to the jury. No one believed 
 or dared to charge another with dishonesty of 
 opinion or action, and there was no foundation 
 in fact and in ti'uth for any such chai'ge. 
 There was therefore no legal justification or 
 excuse for the article that was published by 
 the defendant. He did not dai-e attempt to 
 prove or claim that it was true, but stood mute 
 as to that, and sought to escape punishment 
 on other gi'ounds which were untenable. 
 He was therefore guilty of malice. He 
 abused the liberty of the press and made him- 
 self liable therefor. Let the honest, fair- 
 minded, patriotic people of this State say 
 whether or not it was not the duty of the 
 court to punish him. The courts of this State 
 have been conservative in the extreme, and 
 forbearing to a fault. They have overlooked 
 remarks concerning their acts, from lawyers 
 and laymen, that were improper and outside 
 of the pale of the law, preferring, if possible,
 
 THE LAW OF CONSTKUfTIVK CONTEMI»T. 257 
 
 to atti'lbutc the offt'n^>e to the zeal of counsel 
 or the excitement of the laymen, incident to 
 disappointment of personal hopes and ambi- 
 tions. They have been considerate of the 
 feelings and chai'actei- of otheis, and have 
 many times abstained from the use of strong- 
 language, under ti'ying provocation, in decid- 
 ing cases. And it was proper to do so. But 
 the protection and safety of life, libert\% prop- 
 erty, and charactei-, the jieace of society, the 
 proper administration of justice, and even the 
 perpetuity of our institutions and foi'in of 
 government, imperatively demand that every 
 one — lawyer, layman, citizen, stranger, news- 
 pa])er man, fi-iend or foe — shall treat the 
 courts w'ith i)roper I'espect ; shall not attempt 
 to degrade them, or impair the respect of the 
 people, or destroy the faith of the people in 
 them. When the temples of justice become 
 polluted or are not kept pure and clean, the 
 foundations of free government are under- 
 mined, and the institution itself thi'catened. 
 The people have no fear of their courts abus- 
 ing their power to punish for contempt or in 
 an}^ other respect. Alexander Hamilton, in 
 advocating the adoption of the provisions of 
 the Federal Constitution relating to the judi- 
 ciary, said : '• Whoever attentively considers 
 the diffei'ent departments of power must per- 
 ceive that, in a government in which they 
 are separated from each other, the judiciary, 
 from the nature of its functions, will always 
 be the least dangerous to the political rights 
 of the Constitution, because it will be least in 
 
 17
 
 258 THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 a capacity to annoy oi- injni'c them. The ex- 
 ecutive not only dispenses the honors, but 
 holds the sword of the community. The 
 Legislature not only commands the purse, 
 but prescribes the rules by which the duties 
 and rights of every citizen are to be regu- 
 lated. The judiciary, on the contrary, has 
 no influence over either the sword or the 
 purse, no direction either of the strength or 
 the wealth of society, and can take no active 
 resolution whatever. It may be truly said to 
 have neither force nor will, but merely judg- 
 ment, and must ultimately depend upon the 
 aid of the executive arm for the efficacious 
 exercise even of this faculty." Federalist, 
 p. 355. This view is indoi'sed by Judge 
 Story in his treatise on the Constitution 
 (volume 2, ith Ed., p. 401). It may well 
 be said that courts depend, for their exist- 
 ence, usefulness, and efficacy, upon the con- 
 sent of the people. The}' must depend, first, 
 upon the loyalty, the intelligence, and the 
 counsel of the bar to the people ; second, 
 upon the faithful communication by the 
 high-minded, intelligent, and truthful mem- 
 bers of the newspaper profession to the 
 reading public, of their acts and conduct 
 and judgments; and, third, upon the wis- 
 dom, the honesty, and the patriotism and 
 sense of justice and fair play, of the great 
 body of the people, who have established 
 these institutions, clothed them with dignity 
 and ])Ower, elected the judges to serve them 
 as their judicial agents, and who have never
 
 TIIK LAW ()1- (ONSTlirc TIVE fONTKMPT. 259 
 
 failed, in tiic loni^- run, to distinguish between 
 right and wrong, between the true and the 
 false, l)etween the faithful and the faithless 
 servants, and who have no patience with 
 slanderers, or those who live by oi- feed upon 
 slanders. To be a judge over such people is 
 the highest honor that can be conferred upon 
 mortal man. To be a judge, without such 
 powers as a judge, wei'e to be a kicking post 
 for every madman, a butt for every idiot or 
 knave, and, withal, an object of contempt of 
 all men. Unfortunately, there must always 
 be a losing as well as a winningparty to every 
 suit, and courts must needs inflict pain as 
 well as impart joy by every judgment ren- 
 dered. But the loser to-day may be the win- 
 ner in another case to-morrow. And so, if 
 evei'y loser was privileged to go to the tavern 
 and "cuss the court" to-day, he would neces- 
 saril}^ have to retract his reproaches and praise 
 the court to-morrow, when he is a winner. 
 So it is in life. It is nearlj' always true that 
 one man's loss is another man's gain. But 
 life is not a failure, and business is not a 
 fraud and to be condemned for such reasons. 
 '* Do unto others as ye would others should do 
 unto you," do not bear false witness against 
 your neighbor, keej) the commandments, obey 
 the laws, tell the truth, be honest to your- 
 self as well as to your fellow-man, bear no 
 malice, but judge all men with charity, and 
 life will be sweeter and more profitable, and 
 the world will be better, and your neighbor's 
 faults will not appear quite so unpardonable.
 
 260 THE LAW OF CONSTRUCTIVE CONTEMPT. 
 
 In this spirit the judgment in this case was 
 entered, and in tliis spirit let it be judged. 
 
 What is herein said in no matter what- 
 ever conflicts with what was said in Marx & 
 Haas Jeans Clothing- Company v. AVatson, 
 168 Mo. 183, 67 S. W. 397, 56 L. E. A. 951, 
 90 Am. St. Rep. 410. That was a suit in 
 equity to enjoin a boycott, and it was held 
 that injunction would not lie to i-estrain the 
 utterance of a libel or slander, or to restrain 
 free speech. It was held there, as it is hei-e, 
 that every one may speak, write or publish 
 what he will, but is responsible for the abuse 
 of the privileo-e. 168 Mo. loc. cit. 150, 67 
 S. W. 391, 56 L. R. A. 951, 90 Am. St. 
 Rep. 440. That case, as well as this, holds 
 that the courts cannot prevent a man telling 
 an untruth about another, but their power is 
 limited to punishing him if he does so. 
 
 For these reasons, the defendant in this 
 case was adjudged guilty of contempt. 
 
 Robinson, C. J., and Brace, Gantt, 
 Burgess, Yalltant, and Fox, JJ., concur.
 
 TABLE OF CASES CITED. 
 
 The References are to Paijes. 
 
 The cases of Lyou, Ilaswell, Cooi);!r autl Callentlar under the 
 Seiiition Law of 1798 can be found in Wharton's State Trials, 
 1 vol., anil tlie cases of Zenker, McD>)U!^all, Parks and Crosswell 
 in Hudson's Journalism in the United States and Merrill's 
 Newspaper Libel. 
 
 Almon, Rex v., 42, 207. 
 Able, State t'., 47. 
 Anderson, State v., 80. 
 Andrus w. Insurance Co., 223. 
 Anthony, Russell v., 244. 
 Arnold, Corar. v., 80, 211. 
 Baciielder v. Moore, 80. 
 Baldersou v. State, 80. 
 Baenninghousen Case, 38. 
 Barnes v. Campbell, 223. 
 Bates' Case, 218. 
 Becht, State v., 218. 
 Blethen, Guve v., 244, 245. 
 Bolte, State ex rel. v., 213. 
 Bradley, State v., 73. 
 Brick Co., Ry. Co. v., 62. 
 Brownson v. Bruce, 223. 
 Brown v. Buzan, 48. 
 Bruce, Bronson v., 223. 
 Burdett, King v., 241. 
 Burke v. Territory, 218, 253. 
 Buzan, Brown v , 48. 
 Callendar, U. S. v., loD. 
 Caldwell, Wells v. 217. 
 Campbell, Barnes u.,223. 
 Campbell v. Spotteswoode, 243. 
 Carter, State v., 73. 
 Cartwright'.s Case, 200. 
 Chase Impeachment Case, 1G7. 
 Chadwick, Rex v., 211, 251. 
 
 Charlton, Rex v., 205, 206, 208, 
 209. 
 
 Cheadle, State v., 211. 
 
 Clement, King v., 24G. 
 
 Cobbett, Rex v., 192. 
 
 Com. V. Arnold, 80, 211. 
 
 Com. V. Dandridge, 248. 
 
 Cooper, U. S. v., 149. 
 
 Cooper V. People, 208, 252. 
 
 Copelaud's Case, 49, 66, 67. 
 
 Court, State ex rel. v., 71, 80» 
 87. 
 
 Crenshaw, State v., 37, 215. 
 
 Cromartir, State v., 80. 
 
 Crosswell Case, 112. 
 
 Crow V. State, 218. 
 
 Dartmouth College v. Wood- 
 ward, 11, 223. 
 
 Dandridge, Com. v., 248. 
 
 De Castro Case, 206, 218. 
 
 Detroit Free Press, McAllster 
 v., 223. 
 
 District Court, Eilenbecker r., 
 217. 
 
 District Court, Mandercheid v., 
 218. 
 
 Dole V. VauRenselaer, 244, 255. 
 
 Doty, State v., 216. 
 
 Dred Scott Case, 11. 
 
 Duane, Ilollingsworth v , 216. 
 (261)
 
 262 
 
 TABLE OF CASES. 
 
 The References are to Pages. 
 
 Durein, Stale v., 217. 
 Edwards' Case, 80. 
 Eilenbecker v. District Court, 
 
 217. 
 Eno, Hamilton v., 2-14. 
 Farrow, Negley v , 224, 244, 245. 
 Fisiibacli v. State, 251. 
 Foster's Case, 81. 
 Freer, People v., 245. 
 Frew, State v., 69, 73, 201. 
 Galloway, Stale v., 80. 
 Gandy v. State, 218. 
 Gibbons v. Ogden, 212. 
 Gorden Case, 206. 
 Gove V. Blethen, 244, 245. 
 Grace Case, 216, 217. 
 Greeley, Littlejohn v., 244, 255. 
 Green Co. v. Rose, 35, 67, 214. 
 Hale V. State, 80, 211. 
 Hamilton v. Eno, 244. 
 Harrison, State v., 33, 67, 214. 
 Harrison, Rex. v., 206. 
 Hart V. Robinett, 218. 
 Hawliins v. State, 254. 
 Hawes v. Stale, 211. 
 Haswell, U. S. v., 144. 
 Heller v. Pulitzer Pub. Co., 222. 
 Hickey's Case, 71, 80. 
 Holmes, Rutherford v., 80. 
 Holman v. State, 211. 
 HoUingsworth v. Duane, 216. 
 Henderson, McDonnell v., 217. 
 Hope, Neef v., 244, 255. 
 Hotchkiss V. Oliphant, 230. 
 Huntington v. McMahon, 217. 
 Insular Cases, 69. 
 Insurance Co., Andrus v., 223. 
 Judges, Loudon v., 80. 
 Kaiser, State v., 80. 
 King V. Ohio R. R. Co., 218. 
 
 King V. Root, 236. 
 King V. Burdelt, 241. 
 King V. Clement, 246. 
 Lawless Case, 169. 
 Langdon ■«. Judges, 80. 
 Lyon, U. S. v., 136. 
 Ludden v. State, 218. 
 Littlejohn v. Greeley, 244, 255. 
 Little V. State, 253. 
 McKean Case, 24, 35, 115. 
 McDougal Case, 111. 
 McMahon, Huntington y., 217. 
 McDonnell v. Henderson, 217. 
 McAlister v. Detroit Free Press, 
 
 223. 
 Macgill Case, 205. 
 Matthews, State v., 218. 
 Mallory v. Pioneer Press Co., 
 
 223. 
 Marx & Haas Clothing Co. u. 
 
 Watson, 260. 
 Middlebrook, State v , 80. 
 Mitchell, State v., 218. 
 Moore, Bichelder v., 80. 
 Morrill, State v., 73, 211, 246. 
 Nash Case, 149. 
 Neef V. Hope, 244, 255 
 Neel, State v., 217, 255. 
 Negley v. Farrow, 224, 244. 
 Noonan, Wilson v , 244, 255. 
 Oswald, Respublica v., 78, 219, 
 
 228, 244. 
 Ogden, Gibbons v., 212. 
 Oliphant, Hotchkiss v., 236. 
 Ohio R. R. Co , King v., 218. 
 Passmore, Respublica v., 78, 245. 
 Parks Case, 110. 
 Peck Impeachment Case, 31,35, 
 
 169. 
 Pioneer Press Co., Pratt v., 223.
 
 TAHLK OF CASES. 
 
 2<;3 
 
 Tlic Referenc*' 
 
 Ploueer Press Co., Mallory v., 
 
 223. 
 People V. Freer, 245. 
 People V. Wilson, 211, 250. 
 People V. Stapleton, 80, 211, 
 
 252. 
 People V. Wyatt, 211. 
 People, Cooper v., 208, 252. 
 People, Storey v., 45, 70, 80. 
 Pratt V. Pioneer Pub. Co., 223. 
 Pryor Case, 249. 
 Pulitzer Pub. Co., Heller v., 
 
 222. 
 Publishing Co. Case, 80. 
 Kex V. Harrison, 20G. 
 Rex V. Cobbett, 192. 
 Rex V. Chad wick, 211, 251. 
 Rex V. Charlton, 205, 20G, 208, 
 
 209. 
 Robinson's Case, 69, 79, 200, 
 
 211. 
 Robinelt, Hart v., 218. 
 Robbins Case, 249. 
 Root, King v., 236. 
 Respublica v Oswald, 78, 219, 
 
 228, 244. 
 Respublica r. Passmore, 245. 
 Rose, Green Co. v., 35, 67, 214. 
 Rutherford v. Holmes, 80. 
 Russell V. Anthony, 244. 
 Ry. Co. V. Brick Co., G2. 
 Shepherd Case, 177. 
 Shippeu Case, 25, 43, 119. 
 Skipworth Case, 96, 206, 218, 
 
 219. 
 Shortridge Case, 211 . 
 Spotteswoode, Campbell v., 
 
 243. 
 Stapleton, People v., 80, 211, 
 
 252. 
 
 s are to Pages. 
 
 State, Fishbuck v., 251. 
 I State V. Little, 253. 
 I State V. Hawkins, 254. 
 
 State V. Able, 47. 
 
 State V. Anderson, 80. 
 
 State, BaUlerson «., 80. 
 ! State V. Bradley, 73. 
 ' State V. Carter, 73. 
 
 State V. Crenshaw, 37, 215. 
 
 Slate, Crow v., 218 
 
 State V. Dunham, 80. 
 1 State V. Doty, 216. 
 ; State v. Durein, 217. 
 
 State V. Frew, 69, 73, 201. 
 ; State, Gaudy v , 218. 
 j State, Hale v., 80. 
 j State, Worland v , 211. 
 
 State V. Harrison, 33, 67, 214. 
 I State, Hawes v., 211. 
 
 State, Holman v., 211. 
 
 State V. Kaiser, 80. 
 
 State, Ludden v., 218. 
 
 State u. Matthews, 218. 
 
 State V. Middlebrook, 80. 
 
 State V. Mitchell, 218. 
 
 State ex rel. v. Bolte, 213. 
 
 State ex rel. v. Stone, 213. 
 
 State ex rel. v. Court, 71,80, 87. 
 
 Stone, State ex rel. v., 213. 
 
 St. James Evening Post Case, 
 •204. 
 
 Storey v. People, 45, 70, 80. 
 
 Tuchiu's Case, 192. 
 
 Turner Case, 207. 
 
 Teiiney Case, 245. 
 
 Territory, Burke r., 218, 253. 
 
 U. S. r. Callendar, 169. 
 
 U. S. V. Cooper, 149. 
 
 U. S. V. Haswell, 144. 
 i U. S. V. Lyon, 136.
 
 264 
 
 TABLE OF CASES. 
 
 The References are to Pages. 
 
 VanRenselaer, Dole v., 244, 
 
 245. 
 Walker Case, 80. 
 Wallace Case, 205. 
 Watsou y. Williams, 201. 
 Watson, Clothing Co. v., 260. 
 Wells V. Caldwell, 217. 
 Wilkes Case, 142. 
 Williams, Watson v., 201. 
 
 Wilson, State v., 211, 250. 
 Wilson V. Noonan, 244, 255. 
 Woodward, Dartmouth College 
 
 v., 11, 223. 
 Wrayham Case, 206. 
 Wooley Case, 250. 
 Worland v. State, 211. 
 VVyatt V. People, 211. 
 Zenger's Case. 103.
 
 GENERAL INDEX. 
 
 The References are to Pages. 
 
 Author's views on contempt in 1884, while judge, 9. 
 Alien and Sedition Laws of 1798, 26. 
 
 History of causes leading to their enactment, 123. 
 Prosecutions under a very exciting episode in 
 
 our {)olitical history, 166. 
 Main cause of defeat of Adams for the presi- 
 dency in 1800, 135. 
 Augustus, Emperor, views on criticism of officials, 190. 
 Blackstone and his views on contempt, 22, 50, 195. 
 Campbell, Lord, and his views on contempt proceedings, 
 
 42. 
 Constitution of Missouri of 1820, 28, 39, 47. 
 Constitution of Missouri of 1875, 36, 47, 61. 
 
 The judicial power under did not extend to 
 punishment by the process of attachment for 
 contempt for libels in newspapers on the 
 courts, 39, 61. 
 The legislative power to enact contempt statute 
 existed under, 47, 61. 
 Contempt. 
 
 Civil, what is, 202. 
 
 Criminal, what is, 203. 
 
 Direct, what is, 203. 
 
 Constructive, what is, 203. 
 
 Punishment for, either punitive or executive, 
 
 203-4. 
 Power to punish for, arbitrary, 13. 
 Contempt cases, issue of fact in, 83. 
 
 No right of trial by jury in, 18, 215. 
 Contempt, attachment for, due process of law, 18, 222. 
 
 (265)
 
 266 GENERAL INDEX. 
 
 The References are to Pages. 
 
 Contempt, power to punish for not essential to courts, 67. 
 
 Contempt differentiated from libel, 84-7. 
 
 Contempt. 
 
 Statute of 1825, 29. 
 Statute of 1835, 32, 169, 209. 
 Statute of U. S., 32, 172. 
 Co-ordinate branches of the government, 18, 28, 51, 55, 
 
 95, 212, 213. 
 Due process of law, proceeding by attachment for con- 
 tempt is, 18, 222. 
 Dred Scott Case, 10. 
 Erskine and his views on contempt proceedings and right 
 
 of trial by jury in, 22. 
 Fox Libel Act, The, 21. 
 Fact, issue of, in contempt cases, 83. 
 Government, co-ordinate branches of, 18, 28, 51, 55, 
 
 95, 222, 213. 
 Genet, Citizen, his interference in American affairs, 224. 
 General Assembly. See Legislature. 
 History of the liberty of the press, libel and contempt 
 prior to 1820, 19. 
 
 Same history from 1820 to 1835, 29. 
 Same history from 1835 to 1875, 33. 
 Same history from 1875 to 1903, 36. 
 Introduction, 1. 
 
 Impeachment of McKean and Shippen, 24, 115, 119. 
 Impeachment of Chase, 167. 
 Impeachment of Peck, 31, 169. 
 Inherent power of courts, none outside of constitutional 
 
 provisions, 76. 
 Impeachment, judges subject to, 98. 
 Judicial power, The, what is, 51. 
 
 Not constant and unvarying for all time but may 
 be changed by Legislature, 77.
 
 GENEUAL INDEX. 2H7 
 
 The References are to Pages. 
 
 Judicial power under Constitutions of 1820 and 187.0 
 over contempts did not extend to libelous publica- 
 tions reflecting on the courts or their judges, 39, CI. 
 Over contempts may l)e restrained and limited 
 by statute, 16. 
 
 Judicial power, The, can be exercised in concrete cases 
 only, 51 
 
 Judges, interest of, in certain cases, 41. 
 May be impeached, 98. 
 
 Jury trial, none in contempt cases, 18, 215. 
 
 Jury determines law and fact in libel cases, 28, 36. 
 
 Jury to fix punishment under our system of govern- 
 ment, 88-9. 
 
 Kentucky Resolutions of 1798, 134. 
 
 Law, Common, status of Missouri, 27, 30, 5G. 
 
 Has force there only by virtue of statute, 27, 
 
 Legislature, power of, in general, 50. 
 
 Legislature has power to restrain and limit jurisdiction 
 of courts in contempt cases, 16. 
 
 Legislative power under constitutions of 1820 and 1875, 
 28,47. 
 
 Legislative power extends to changes of rules of i)rop- 
 erty and practice and evidence, 58. 
 
 Legislative power may exist, though subject to abuse, 81. 
 
 Legislature, sovereignty rests in, 50. 
 
 Libel, truth of charge no defense at common law in 
 criminal prosecutions, 21, 48, 50, 105, 113. 
 
 Libel, Fox Act, The, 21. 
 
 Libel, differentiated from contempt, 84-6. 
 
 Libel, never any claim of right to, 41, 121. 
 
 Lotteries in vogue generally till 1820-30, 148. 
 
 Mute, standing, effect of, 87. 
 
 " Millions for defense but not a cent for tribute," origin 
 of the mctto, 127.
 
 268 GENERAL INDEX. 
 
 The References are to Pages. 
 
 New York, controversy in, 21. 
 
 Necessity, law of, as applicable to courts in contempt 
 cases, does not exist, 07 
 
 Nullification, doctrine of, first announced in United 
 States, 123. 
 
 Newspaper in U. S. in 1798, 130. 
 
 How divided politically, 130. 
 
 Newspaper libel of courts and their judges not con- 
 tempts, 39, 61. 
 
 Ofl3cial acts, publicity of, important, 90. 
 
 Oglesby Case, the subject of Shepherd's criticism of the 
 court, 7, 
 
 Press, liberty of, struggle for, 19. 
 
 Use and abuse of liberty of, 90. 
 Censorship of, 91. 
 
 Press, liberty of, 223. 
 
 Press, never any claim of right of libel by, 41, 121. 
 
 Press, very vituperative from 1793 to 1804, 129. 
 
 Press, number of in 1798, 130. 
 
 How divided politically, 130. 
 
 " Press, the most unfettered, is a press the most re- 
 strained," 133. 
 
 Pennsylvania, controversy in, 24. 114, 122. 
 
 Peck's Impeachment, 31, 169. 
 
 Publicity of ofiScial acts, importance of, 19, 90. 
 
 Prerogative, a hateful term, 39. 
 
 Punishment for violations of law ought to be limited by 
 statute, 96. 
 
 Question^ stated to be the error of the court in hold- 
 ing the contempt statute unconstitutional, 8, 17, 
 18. 
 
 Remedies for judicial errors, 98. 
 
 Remedy by impeachment, 98. 
 
 Remedy by constitutional amendment, 98.
 
 (JENKKAL INDKX. 269 
 
 The Kefereiices are to Pages. 
 
 Remedies — Cont'd. 
 
 Remedy afforded by the court itself in overrul- 
 ing its decisions, 98. 
 Revolution, French, The, basis for division of political 
 
 parties in the United States, 123. 
 Resolutions of Virginia and Kentucky of 1798, 134. 
 
 Contained the germ of secession, 135. 
 Statutes, with no restrictive words, do not limit the com- 
 mon law powers of tlie courts over contempts, 1.3. 
 But with restrictive words, the rule is other- 
 wise, 16. 
 Statutes, rule in regard to holding them unconstitu- 
 tional, 47. 
 Statutes, construction of, G2. 
 Sedition Law, history of, 123, 132. 
 
 Cause of Adams' defeat, 123. 
 Fines imposed under, refunded by Congress, 
 148, 158. 
 Scandalum Magnatum, 190. 
 Shepherd Case. 
 
 Missouri contempt statute held unconstitutional, 
 
 210, 211. 
 According to. Legislature has no power to 
 abridge, impair, limit or regulate the power 
 of courts to punish for contempts, 210, 
 211. 
 The court assumed and exercised the judicial 
 
 power in, 95. 
 The court treats the Legislative department, 
 
 not as an equal but as a subordinate, 95. 
 According to, power of courts over contempts 
 unlimited both as to the subject-matter and 
 the punishment, 93-4. 
 Such power is dangerous, 93-4.
 
 270 GENERAL INDEX. 
 
 The References are to Pages. 
 
 Shepherd Case — Cont'd. 
 
 Libelous newspaper publication held to be con- 
 tempt, 16. 
 Inherent power to punish for contempts held to 
 be in courts, 189, 209. 
 Technicalities may be important in vindication of inno- 
 cence. 88. 
 Theodosian Code, 191. 
 Truth of charge, no defense in criminal prosecutions for 
 
 libel at common law, 48-50. 
 Treaty, Jay, The, 125. 
 Vincinage, right to be tried in, 90. 
 Virginia Resolutions of 1798, 134. 
 X Y Z correspondence, what was, 131.
 
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