The authority to punish for contempt is necessarily implied in the establishment of a judicial tribunal. 1 Bishop Cr. Law, sec. 186.
The proceeding is in all cases summary before the judge, without the intervention of a jury. 2 Bishop Cr. Law, sec. 255; State v. Matthews,37 N.H. 456.
The procedure is various in different jurisdictions; and I apprehend that the discretion of the court is very broad, and will seldom be revised upon writ of error or appeal, so essential is it to the maintenance of the dignity of the court and the supremacy of the law that the offence should be punished summarily and with little delay. It has therefore been held by the United States circuit court, that even in courts not of record, nor having a general power to impose fine or imprisonment, a contempt committed in facie curiae may be punished instanter. Hollingsworth v. Duane, Wall. C. C. 51. And probably the customary procedure in such cases is, as in the state of Maine, to punish summarily, after such hearing as the presiding judge may deem just and necessary. Androscoggin c. R. R. Co. v. Androscoggin R. R. Co., 49 Me. 392.
If the offence was not committed in the presence of the court, the general practice seems to be to issue an attachment, or an order to show cause why an attachment should not issue, and this proceeding should be founded upon affidavits furnished to the court. Re Judson, 3 Blatch. 148. The object of the attachment is merely to bring the offender into court. State v. Matthews, before cited.
When the respondent appears, the case is ordinarily governed by the *Page 327 analogies of criminal procedure; and although the respondent will be allowed to make his own answer, and also to demand that the prosecutor should file interrogatories, still, under the established practice in this state he will not be allowed to discharge himself merely upon his own answers (thus affording the court and the prosecutor no redress except by process of indictment for perjury — see United States v. Dodge, 2 Gall. 313); but proofs upon both sides may be taken, and the court will thereupon determine, from a consideration of the whole evidence, the guilt or innocence of the accused. State v. Matthews, before cited.
It seems to be more appropriate, and at the same time safe enough for the protection of the court, to adhere as closely as possible to the plan and method of criminal procedure, except in the matter of a jury trial. The attachment should be substantially like an indictment, at least to the extent of giving the respondent sufficient information concerning the nature and the particulars of the offence charged; and the rules of evidence and the presumptions of law applied in criminal cases should be observed.
In the case before us, I am therefore of the opinion that the respondent could not be permitted to purge himself of the alleged contempt upon his answers alone to interrogatories; but, also, that the affidavit of Mary Angell and the record of the examination of Ellen P. Cheney were inadmissible.
The respondent's
Exceptions must be sustained.