*39Dissenting Opinion of
Mr. Justice McCully.The first Hawaiian statute relating to Contempt is found in the Act to Organize the Judiciary Department, enacted September, 1847, Section 8, Chapter I. of Vol. 2. It provides that the said Courts, being Courts of record, have power to punish summarily any person guilty of the following acts : six classes of acts are enumerated. The maximum penalties are fixed, and there is a proviso that persons punished for contempt under any of these provisions shall, notwithstanding, be liable to indictment for such contempt, if the same be an indictable offense.
This Act was expressly repealed by Section 1491 of the Civil Code, May 17, 1859, but had been amended by implication by the provisions of the Penal Code, first enacted June 21, 1850, in Sction 18 of Chapter XXX., which somewhat more fully and particularly enumerates acts of contempt which, on conviction in a jury trial, may be punished by certain penalties. It also provides that every judicial tribunal, acting as such, may punish contempts by summary proceeding, upon a scale of penalties, differently prescribed to the different Courts.
The Civil Code (1859) has a Chapter XXIV., entitled “ Of Contempts.” It provides for the summary punishment of contempt, with a scale of punishments, which may be imposed by the Supreme Court, Circuit Court, Circuit Judge, District Justice, etc. No definition or description of acts which may be considered contempts is given in this chapter. The penalties are slightly varied from those prescribed in Chapter XXX. of the Penal Code of 1850, but otherwise it is a re-enactment in the Civil Code of the provision in the Penal Code for summary punishment of contempt, omitting, however, the enumeration of acts which are contempt, and the provision for trying such by jury, and.the penalty following such conviction. But it adds to the statutes upon contempt by Section 1097, that persons punished summarily shall also be liable to indictment for the same misconduct, if it be an indictable offense, the Court, in passing the second sentence, to take into consideration the previous penalty, and by Section 1098, the provision that when the con*40tempt consists in the omission or refusal to perform an act which is yet in the power of the party to perform, he may be imprisoned until he have performed it.
The last legislation is the enactment of the new or compiled Penal Code, 1870, which retains the description of offenses, and subjoins the 24th Chapter of the Civil Code, in place of the former list of penalties for contempt punished summarily, with also Sections 1097 and 1098.
It appears from this statement of the statutes that we have always had a statute describing acts which are contempts of Court, and providing for the summary punishment of them, and, in addition, that when they are indictable offenses, they may also be presented on indictment, and further punished.
The view taken by the Court is that there may be also other acts not prescribed in the statute which may be held and punished for contempts under the common law power of the Court; and that this is intimated by Section 1097 in the phrase, “persons punished according to the provisions of this chapter shall also be liable to indictment for the same misconduct, if it be an indictable offense.”
My construction of this is, that persons who have been punished summarily, which is what this chapter prescribes, may also be proceeded against by indictment, and that the offenses, not being defined in this chapter, for which a penalty may be imposed summarily, are those 'which are described in the statute which enumerates contempts, and no others.
Section 1098, which allows a conditional term of imprisonment, does not seem to me to authorize an enlargement of cases beyond the statute; it merely providing this new mode of penalty for cases in the statute which it might apply to, for instance, “ refusal to answer as a witness,” or “ refusal to answer legal and proper interrogations,” “willful disobedience of any lawful process or order.”
If we were without statutes prescribing for contempt, the Court might be left to its inherent power of self-protection, and would probably find its rules in the common law authorities.
*41This is only conjectural. The need of such a power in the Courts was recognized from the beginning by statutes granting that power, and I am unable to assent to the conclusion of the Court that, besides the expressly enumerated acts of contempt, the Court can hold other acts to be contempts, and subject summarily to penalties of fine, imprisonment, or both. This Court has often had occasion to hold that the common law, eo nomine and proprio vigore, did not exist here.
The terms of Section 18 of Chapter XXX. of the old Penal Code, being Chapter XXIX. of the new Penal Code, in describing contempts, are definite and not general. Says Broom, in commenting on the maxim, expressio unius est exclusio alterius ; “ It sometimes happens that in a statute, the language of which may fairly comprehend many different cases, some only' are expressly mentioned, by way of example merely, and not as excluding others of a similar nature. Sometimes, on the contrary, the expressions used are restrictive, and intended to exclude all things which are not enumerated.”
The citation made by the Court of that part of the statute which concerns contempts by newspaper publication, it will be seen, contains no general provision for “ like or similar ” cases, and, in the view of the Court, cannot be extended to the case before us. With great respect, I dissent from the view that cases of publication, not coming within the statute, can be treated as contempts.
Upon the newspaper article under consideration I will only say, in addition to the view of the Court that there is no animadversion on evidence in a pending trial, that I regard the sentence “it is best to be square” as applying not to the merits of the pending trial, viz.: the question whether Congdon was or was not justly indebted for the whole bill of freight: but to the proceeding of the arrest, which was a measure taken to procure his attendance at the trial, or to obtain security for any judgment which might be gained — a proceeding which is applicable to any debtor about to leave the Kingdom.