dissenting:
The court has punished the respondent for a mere libel, under a proceeding for contempt; and has held that the truth is not a justification, and that, when the truth is pleaded as a justification, the pleading of it is a direct contempt and as such is punishable summarily. To do this it was necessary for the court to set aside acts of the legislature and to hold that that section of the Bill of Eights which declares, that “every person shall be free to speak, write or publish whatever he tvill on any subject, being responsible for all abuse of that liberty; and that in all 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,” is inapplicable. As I am of opinion that it is not a crime in this state to speak, write, or publish the truth of or concerning the official conduct of public officers, I must dissent from the judgment.
The respondent’s purpose in publishing the articles complained of is briefly stated in his reply to the question by the chief justice whether he had anything further to> say why the judgment of the court should not be pronounced. He said:
“I feel, if your honors please, that, without having the slightest idea what punishment the court will inflict, under the circumstances of this very peculiar case I should say something why I should not be punished for contempt.
“Certain articles were published in The News and The Times for which the writing or publication, or both, I was and am responsible.
“The chief justice, in his own way, saw fit to initiate contempt proceedings by reason of these articles, and as a result of his steps the attorney *396general filed this information commanding that I should show cause why I should not be punished for contempt, the allegations in the information being that these articles were contemptuous of the supreme court and certain of its judges.
‘ ‘ This court can rest assured that when that information and citation were served upon me I was confronted with perhaps as serious a situation as I have ever been face to face with in all the years of my manhood. I have felt, if the court pleases, the importance of maintaining the honor and dignity, not only of this court, but of minor courts, as keenly ■and as sincerely as any other citizen of the commonwealth; and one of the most gratifying episodes in my life was when Mr. Justice Campbell, now upon the bench bo try me, but a few years ago commended me in the warmest terms for the respect I had always shown to courts with which he was associated, whether sitting as a nisi prius judge or as a member of this great body.
“I want to say to the court that I realize as keenly as any man in the United States the importance of an unsullied judiciary, and the importance of that judiciary ever maintaining the respect and the confidence of the people, for, if all else fails, it may be that the people of this country must depend upon the justice, the integ'rity and the patriotic spirit of our highest courts to preserve the liberties of the country.
“But, if your honors please, I have always felt that there should be reciprocity between courts and the 'people. While the courts- should receive the respect and confidence of the people, there is a duty devolving upon'the courts to ever maintain the law and the integrity of the constitution, and to keep within the limits prescribed by the constitution and laws of the state and the country; and in every one *397of their judgments, as their consciences tell them, to do the very right, and nothing hut the right. If these relations exist between the people and the bar upon the one side, and the courts of the country upon the other, there will be little need of contempt proceedings, and there will be little provocation for criticism either of the courts, or by the courts, of the public press.
‘ ‘ So far as these articles are concerned, I want to say that I never wrote or published articles in my life the justice of which I was more sincerely convinced of; not only convinced of the justice was I, but of 'the necessity for their publication, and when this citation was served upon me, as I said, I was confronted with the most serious situation in which I had ever found myself in all of either my public or my private life. From all the information I could obtain after careful investigation — from those whose word could not be doubted — I felt that whatever was in those articles was justified, and the question was then up to me: Shall I, to escape the wrath of the court, say that I have been a slanderer, a libeler? Shall I proclaim to the public that I am infamous, in that I falsely charge the supreme court of my state with such things as are supposed to be contained in those articles? Or should I do what any true man ought to do, firmly believing that he spoke the truth, say, that he had spoken the truth and offer to establish the verity of the articles?
“That, may it please the court, was the reason for the answer I filed.
“The attorney general tells the court that this court should not for a moment sit to investigate charges against its membership. I can only say, if your honors please, that is the most stupendous indictment that can be framed against this whole doctrine of constructive contempt; or, has it come to this *398in the United States, that the publisher of a newspaper, because men are judges, may not speak the •truth of them as to their official actions, except at the peril of confinement in the common jail, the payment of heavy monetary penalties, or both ?
“I realize, if your honors please, that, so far as the legislature of this state is concerned, it has done everything in its power to change that condition. It has declared what shall be contempt, and has omitted everything with reference to constructive contempt; therefore, so far as the legislature is concerned, it has eliminated proceedings in constructive contempt from the powers of the court. The legislature has further provided for answers in contempt proceedings, for investigations, for juries, has fixed a limit to the power of the court in assessing punishments for contempts; and, if constructive contempt is to he maintained, as it has been maintained by this court, it can simply mean — and I speak it in a thoroughly impersonal way so far as the membership of this court is concerned, I speak it as though I were addressing an impartial jury with no duty devolving upon its membership except to find and declare the truth — if this is to be maintained, it simply means that we have in each of the states of this Union a chosen body of men who may commit any crime; who may falsify justice; who may defy constitutions and spit upon laws, and yet no man dare make known the fact.
‘ ‘ So far as I am concerned, if the court please, I am unwilling to be hound by such a system, and, therefore, if no other result is to come from these proceedings beyond my own punishment, than the arousing of the public to the danger of such a power in the hands of any body of men, a great good will have been accomplished; more, perhaps, than is necessary to compensate for what I may suffer; and *399I only desire to say, further, before I sit down, that no matter what penalty the court may inflict, from this time forward I will devote myself — by constitutional amendment if necessary, and by the decisions of the court it has become necessary — to deprive every man and every body of men of such tyrannical power, of such unjust and dangerous prerogative, of the ability to say to- publishers of newspapers: ‘While about everybody else you may speak the truth, no matter what our offenses may be, you speak the truth with the open door of the jáil staring you in the face, or the depletion of what you may possess of this world’s goods, and probably of both.’
“If the court pleases, I am now ready'to receive the judgment of the court.”
The opinion of my brother Gunter, which, I am pleased to note, is based upon the doctrine of stare decisis, rather than his own opinion, declares: First, That an affidavit is not essential to the jurisdiction of the court in cases of constructive contempt; Second, That the offense of constructive contempt-was committed by the respondent by publishing the articles set out in the information, and that a direct contempt was committed by filing the answer; Third, That it is immaterial whether the articles or the averments of the answer were true or false.
I shall discuss these matters -in their order, and shall endeavor to demonstrate that the court, instead of announcing the Taw applicable to the conditions of the people and the institutions of this country, has revived the oppressive and tyrannical doctrines of the star chamber. In no case found in the Colorado reports was the proceeding begun without affidavit; and in every one, as I read them, where the subject is mentioned, it is stated that an affidavit is essential to the jurisdiction of the court. The attorney general appears to have regarded an affidavit as necessary; *400for, before the return day of the order to show cause, he, under leave of court, attached his verification .to the information. This of course did not cure the defect, if any existed; for, if an affidavit is essential to give the court jurisdiction, it must be filed! as the initial step in the proceedings. The opinion correctly states that up to the time of the decision in People v. Wyatt, 17 Colo. 252, there appears to have been no distinction made in the opinions between civil and criminal contempts; but I do not agree with the court in its statement that the case of Thomas v. The People, 14 Colo. 254, which holds that an affidavit is essential to the jurisdiction, has beep, overruled by the decision in the Wyatt case. The holding that an affidavit is essential has been expressly affirmed; and in the Wyatt case it is held that an affidavit is required by the common law. The court says, in the Wyatt case:
“Constructive contempts — those not committed in the presence of the court — must of course in some regular and legitimate way be brought to the court’s knowledge; until this is done the process of attachment will not issue. * * * And in Gandy v. The State, supra, it is said that such proceedings must be commenced by a sworn information. But the practice generally recognized throughout the United States, and according to Blackstone frequently followed in England, is for some proper official or interested party to set forth by affidavit the material facts relied on. A little contrariety of opinion exists as to whether the warrant of commitment or.the order of court must recite the jurisdictional facts. But the overwhelming weight of authority in this country sustains the proposition that the affidavit upon which the proceeding for a constructive contempt is based must staté facts which, if established, would constitute the offense; and that if the allega*401tions of the affidavit are not sufficient in this respect, the court is without jurisdiction to proceed. Rapalje on Contempts, secs. 93, 94, and cases cited; Mullin v The People, supra; Thomas v. The People, supra; Cooper v. The People, supra; Wilson v. The Territory, 1 Wyo. 155; Ex parte Peck, 3 Blatch. (C. C.) 113; McConnell v. The State, 46 Ind. 98; Phillips v. Welch, 12 Nev. 158; Gandy v. State, supra; Batchelder v. More, 43 Cal. 412. Some of the opinions above cited refer the authority for the affidavit to statutes similar to section 322 of our civil code. But the statute mentioned and others of like tenor are simply declaratory in this particular of what may fairly be termed the modern common-law practice. And the-rule concerning- the materiality of the affidavit should prevail to the same extent in the absence of statute. * * *
“The position of those authorities which hold that where the contempt is constructive the affidavit must show the offense, commends itself with irresistible force. A proper regard for the liberty of the citizen forbids the arrest of parties upon criminal attachment charged with this kind of contempts, without information under oath touching the precise character of the alleged offenses.”
Wyatt was discharged for the reason that the court was without jurisdiction. This although the judgment of the court recited the fact essential to jurisdiction, the affidavit failing to set forth such fact. This does not appear to overrule the case of Thomas v. The People, but appears to- approve it. The case is cited with approval, and holds,- as does the Wyatt case, that unless an affidavit showing facts constituting contempt.is presented, the court is without jurisdiction; and the practice of instituting the proceeding by affidavit in cases of contempt not com*402mitted in the court’s presence lias been invariably followed in this jurisdiction.
In reviewing the Wyatt case, the court says:
“Tbe question that tbe court considers is not whether the information filed in the court as a basis for the attachment should have been verified, but whether or not it stated facts sufficient to constitute a contempt of court. It held that it did not do so, not because the court could not punish for constructive contempt, but for certain facts omitted from the information not material to this ruling. As for example an order of the court requiring the grand jury to make the inspection refused by the respondent. The court then considers the question as to whether the missing matter is supplied by the answer, and while not holding whether it could or could not be so supplied, held that the information was not aided in such particular by the answer.”
The proceeding was commenced by affidavit, not by information. The court, of course-, did not hold that the information, must be verified; but it did hold that the overwhelming weight of authority sustains the position that the affidavit must state facts which, if established, would constitute the offense. It also holds that the principle generally recognized throughout the United States is for some proper official or interested party to set forth by affidavit the material facts relied upon; and the word “affidavit” is italicized. Mr. Justice Helm, writing the opinion, says:
“It is not necessary to consider whether this jurisdictional defect could be waived, or could be cured by answer o-r other subsequent proceeding; for certain it is that such waiver or correction did not take place. The judgment, it is true, says that an order of court was disobeyed, and also- that the grand jury was investigating a criminal offense. But this judgment was rendered upon the pleadings wherein *403no such order or its disobedience was alleged or admitted. * * * There is absolutely nothing in the record, save the judgment, intimating the existence of this order. To say that such recitals in the judgment are sufficient, would be to nullify all attempts by appellate tribunals to inquire into the jurisdiction of the court pronouncing the same. It would be to make that court the sole arbiter as to what does or does not constitute a contempt, and render the judgment itself conclusive of this jurisdictional question. ’ ’
This decision, it seems to me, does not sustain the contention of the court that it is not necessary that an affidavit be presented, but clearly says that an affidavit must be presented, and that unless an affidavit is presented the court is without jurisdiction.
As a reason for holding that an affidavit is not necessary, the court says: ‘ ‘ This court has no power to compel the verification of an information for contempt—People v. Court of Sessions, supra. To hold the verification of the information essential would be to deprive this court of the power in many cases to punish for criminal constructive contempts, which power, as we have seen, has been by our decisions declared to be inherent and essential to the existence of the court.”
This means that there may be times when no one — the ever-vigilant counsel, the ethical bar association, the zealous friend, or the officer designated by law to represent the authority of the state — would be willing — because no contempt had in fact been committed, because it would escape attention, or because the criticism was truthful and just — to initiate proceedings in contempt, and that the court should therefore have power to proceed; that whenever no one else is willing to maintain the dignity and honor of the court in this manner that it is essen*404tial that the court itself should have the power to act. It is difficult to conceive 'of a case in which there would not be some one willing and anxious to become the court’s champion- — although, in this instance, the court proceeded upon.its own motion; and it would seem to be wise for the court to ignore publications or speeches charging its members with corruption and political intrigue. In the case reported in 46 Kan. 613, the court, in discussing this branch of the subject, uses this language:
“And a careful examination of the authorities satisfies us that in all cases of constructive contempt, whether the process of arrest issues in the first instance, or a rule to show cause is served, a preliminary affidavit or information must be filed in the court before the process can issue. This is necéssary to bring the matter to the attention of the court, since the court cannot take judicial notice of an offense out of court and beyond its power of observation. There are a few cases in the books where the courts have taken notice of constructive contempts, and issued process without any affidavit or information having been filed to bring the -subject-matter of the contempt to- the attention of the court; but such cases are very rare in this country, and the practice is nearly or quite obsolete. The great weight of authority is certainly opposed to such practice. Courts should .never be required to go about looking forcontempts of their authority. To do so- is sufficient to lower their dignity and bring them into contempt. ’ ’
The court, in the Stapleton case, was careful to say:
“This proceeding was not instituted or instigated by this court of its own motion. A party whose cause was pending in this court presented his sworn petition complaining of the articles published by *405respondents, and praying protection from such assaults pending the consideration and determination of his cause. We were thus hound to take cognizance of his petition or give some reason for refusing1 so to do. If we refused, what reason could we give? Could we say to petitioner: ‘You are a convicted criminal, and, therefore, you have no rights which this court is bound to respect’? # # *
“It is true, this court could have disposed of the petition in this ease, by quietly declining to take cognizance of it. Only petitioner, his counsel, and a few of their confidential friends, perhaps, would have known of our refusal. But we should always have been conscious that we had been wanting in courage to meet a disagreeable issue; and that we had declined to hear a suitor because he was under the ban of a public, newspaper’s displeasure. The only just and honorable way, therefore, was to take jurisdiction of .the proceedings, and require respondents to show cause, if any they had, why they had thus deliberately and repeatedly assailed the honesty and integrity of this court in and about petitioner’s cause.”
The court has not only taken unto itself a power which most of the courts of the country do not regard as essential, but it has added another section to the enumeration of powers heretofore taken by the court, so that it is now essential to the very existence of the court that, in the event no one else is willing to take the initiative, it may proceed of its own motion to attach and punish those who incur its displeasure. In its struggle for existence; its necessities would seem to be without limit. To assert that such a power is necessary is the assertion of weakness, and inability to otherwise maintain dignity and the respect of the people. Of course, it is not essential to the existence of the court, notwithstanding the assertion *406to the contrary. If it is essential to' the existence of the court, how does it happen that only a very few of the courts of the country have taken this power; that none of the federal courts could take it if they would; and that the supreme court of the United States has never regarded such a power as essential to its existence? What the court really means is this: not that it is essential, hut that it is convenient. That, as the respondent made charges against the court which it did not relish (there being no one who would voluntarily present the matter), it was essential to the court’s convenience and satisfaction that it should proceed swa sponte.
The respondent’s plea to the jurisdiction is said to be a general appearance, and it is held that by filing his plea he waived the right to question the jurisdiction. The respondent, even if it he conceded that by moving to quash the information he entered a general appearance, could not confer jurisdiction upon the court except of his person. But, according to the authorities, the court has no- jurisdiction of the subject-matter unless an affidavit is presented.setting forth the facts constituting the alleged contempt; and it will not be seriously contended that jurisdiction of the subject-matter can be conferred by waiver or consent. The subject under discussion has no very important bearing upon the case at bar; for the court might have sustained the motion to quash and granted leave to refile, and ordered respondent to answer by the return day of the order to show cause. I dissent from the order overruling the motion, not so much because the respondent’s rights and privileges have been infringed, as upon the ground' that the court has, in my judgment, changed the practice that has always prevailed in this jurisdiction.
The following citations clearly declare that, unless the cause is pending and the articles are calcu*407lated and intended to influence the court in its decision, the court is without authority to punish for contempt. They not only hear upon the very subject under consideration, but discuss generally the whole matter, including the liberty of the printing press and the freedom of speech, and I quote at length from them because they seem to controvert every conclusion reached by the court.
In the case of Stuart v. The People, 3 Scammon 395, after quoting from several authorities upon the subject of constructive contempt, Mr. Justice Breese said:
“Into this vortex of constructive contempts, have been drawn, by the British courts, many acts which have no tendency to obstruct the administration of justice, but rather to wound the feelings, or offend the personal dignity of the judge, and fines imposed, and imprisonment denounced, so frequently, and with so little question, as to have ripened, in the estimation of many, into a common-law principle; and it is urged, that inasmuch as the common law is in force here, by legislative enactment, this principle is also in force. But we have said, in several cases, that such portions only of the common law as are applicable to our institutions, and suited to the genius of our people, can be regarded as in force. It has been modified by the prevalence of free principles, and the general improvements of society, and whilst we admire it as a system, having no blind devotion for its errors and defects, we cannot but hope, that in the progress of time, it will receive many more improvements, and be relieved from most of its blemishes. Constitutional provisions are much safer guaranties for civil liberty and personal rights than those of the common law, however much they may be said to protect them.
*408‘ ‘ Our constitution lias provided that the printing presses shall be free to- every person who may undertake to examine the proceedings of any and every department of the government, and he may publish the truth, if the matter published is proper for public information, and the free' communication of thoughts and opinions is encouraged.
* * '* “The right to' punish for contempts committed in the presence of the court is acknowledged by our statute; and while it affirms a principle that is inherent in all courts of justice, to defend itself when attacked, as the individual man has a right to do* for his own preservation, it may also, with great propriety, be regarded as a limitation .upon the power of the courts to punish for any other con-tempts. In this power would necessarily be included all acts calculated to impede-, embarrass, or obstruct the court in the administration of justice. Such acts would be considered as done in the presence of the court. ' So of rules entered by the court prohibiting the publication of the evidence or other matters while the case is pending and undecided. The limitation of the power to such cases only, is better calculated to strengthen the judiciary, and fasten it in the affections and esteem of the people, who have so large a stake in its purity and efficiency, than the enlarging the power to the extent claimed.
“An honest, independent and intelligent court will win its way to public confidence, in spite of newspaper paragraphs, however pointed may be their wit or satire, and its dignity will suffer less by passing them unnoticed, than by arraigning the perpetrators, trying them in a summary way, and punishing them by the judgment of the offended party.
“It does not seem to- me necessary, for the protection of courts in the exercise of their legitimate powers, that this one, so liable to abuse, should also *409be conceded to them. It may be so frequently exercised as to destroy that moral influence which is their best possession, until, finally, the administration of justice is brought into disrepute. Respect to courts cannot be compelled; it is the voluntary tribute of the public to worth, virtue and intelligence, and whilst they are found upon the judgment seat, so long, and no longer, will they retain the public confidence.
“If a judge be libelled by the public press, he and his assailant should be placed on equal grounds, and their common arbiter should be a jury of the country; and if he had received an injury, ample remuneration will be made.
“In restricting the power to punish for con-tempts, to the cases specified, more benefits will result than by enlarging it. It is at best an arbitrary power, and should only be exercised on the preservative, and not on the vindictive, principle. It is not a jewel of the court, to be admired and prized, but a rod rather, and most potent when rarely used.”
In speaking of liberty of speech and of the press, Cooley, in his work on constitutional limitations, at page 520, says:
“Except so far as those guaranties relate to the mode of trial, and are designed to secure to every accused person the right to be judged by the opinion of a jury upon the criminality of his act, their purpose has evidently been to protect parties in the free publication of matters of public concern, to secure their right to a free discussion of public events and public measures and to enable every citizen at any time to bring the government and any person in authority to the bar of public opinion by any just criticism upon their conduct in the exercise of the authority which the people have conferred upon -them. To guard against repressive measures by the several departments of the government, by *410means of which persons in power might secure themselves and their favorites from just scrutiny and condemnation, was the general purpose; and there was no design or desire to modify the rules of the common law which protected private character from detraction and abuse, except so far as seemed necessary to secure to accused parties a fair trial. The evils to he prevented were not the censorship of the press merely, hut .any action of the government by means of which it might prevent such free and general discussion of public matters as seems absolutely essential to prepare the people for an intelligent exercise of their rights as citizens.”
Seymour D. Thompson, in reviewing the decision in the Stapleton case, said, in 28 American Law Review, page 122:
“The whole case, including the statement of facts and the opinion of the court, furnishes very painful reading. A considerable portion, both of the statement and of the opinion, is devoted to a vindication of the court against insinuations and charges made in language so- reckless and extreme as to he unworthy on its face of the slightest credit. We are not commenting on the decision for the purpose of offering any opinion upon the propriety of the conclusion of the court. Undoubtedly the publications quoted in the statement of the case constitute contempts at common law, and contempts which no editor in England' would dare to commit; for the judges in that country would deal very severely with the authors of such a publication. It must also he said that such publications are a great public evil, for they tend to impair the just confidence which the public should possess in the integrity of their judges — a confidence which in the United States, as in the parent country, has seldom been misplaced. If the constitution and statute law of *411Colorado throw no restraints upon the power which judges possess at common law to punish contempts committed against their own dignity and authority, then undoubtedly the court reached the correct conclusion; and if the proceeding has resultéd in imposing a severe punishment- upon the authors of those wanton and malicious libels upon the integrity of the judges, no right-minded citizen will regret the fact.
“But what we want to draw attention to is this: That the offense thus committed, in. so far as it was an offense personally to the judges, should have been redressed, if worthy of notice at all, in an action for damages for libel; and that, in so far as it consisted of public offense1 — an offense against the people of Colorado — it should have been redressed in a proceeding by indictment against the offenders, in which proceeding all questions of law and fact would have been, under the principles of American constitutions, committed to the decision of twelve disinterested and impartial citizens, instead of being decided by the judges who themselves were smarting under the sense of injury and outrage. Except so far as is absolutely necessary to protect, their proceedings from interruption and their process from obstruction, the judges of a court, whenever they arraign a person for contempt of their court, present to the public the unseemly spectacle of a judge sitting in his own cause. In this case it was that and little else. We doubt whether the confidence of the people in the administration of public justice is not more deeply wounded by such a spectacle than by the publication of the libel and the passing it by unnoticed. It is, moreover, to be observed that in states where, as in Colorado, the people elect their judges, it is in accordance with the spirit of our institutions that the newspaper press should possess *412the same right to criticise the conduct of the judges which they possess to criticise the conduct of any other public officer. No sound reason can be urged for exempting the judges from public criticism for their official acts which will not equally apply to the officers of the legislative and executive departments of the state. The article of Mr. Pingrey in a former number of this publication, which attracted attention in England, contains valuable suggestions upon this question. The right publicly to criticise public officers and candidates for public office is a valuable popular right, which ought not to be unreasonably curtailed. But those who abuse the1 privilege, by the publication of wanton and unfounded libels, ought to- be punished; but they ought to be punished, not by the officers against whom the libels are written, but by the verdicts of impartial juries. ”
In the case Ex parte Steinman, 95 Pa. St. 220, Chief Justice Sharswood, speaking of a former opinion of that court, said:
‘ ‘ Some of the. remarks in the opinion in that case have been much relied on by the learned counsel who argued as amici curiae■ in support of the action of the court below. But there are two considerations bearing upon the question which now exist, but did not at the time that decision was rendered. The first is, the new provision on the subject of the liberty of the press which has been introduced into the Bill of Bights of the constitution of 1874, and the second is that at that time the judiciary was not elective. Judges, in 1835, were appointed by the governor, and their tenure of office was during good behavior. There might then be some reason for holding that an appeal to the tribunal of popular opinion was in all cases of judicial misconduct a mistaken course and unjustifiable in an attorney. The proceedings by impeachment or address were the course and the *413only course which could be resorted to effectually to remedy the supposed evil. To petition the legisture was then the proper step. To appeal to the people was to diminish confidence in the court and bring them into contempt without any good result. "We need not say that the case is altered and that it is now the right and the duty of a lawyer to bring to the notice of the people who elect the judges every instance of what he believes to be corruption or partisanship. No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system.”
The editor of The Central Law Journal, in discussing the decision of the Michigan court in the case of In re Chadwick, reported in 109 Michigan, and cited with approval by this court, says, on page 403 of Vol. 57, of that journal:
“In view of this decision it may be well to emphasize the opinion which we expressed of this dictum in the case of In re Chadwick, 57 Cent. L. J. 102. If, as we have said, the dictum in that case was an ‘unprecedented and revolutionary extension of the court’s jurisdiction,’ how much more so is it in a case which actually decides that point and at*414tempts to sustain it by argument and tbe citation of ancient authority. The individual members of the court should have no greater rights in cases of libel than the governor or other officers of the state government in matters of libel. No halo of immunity from public criticism should surround the heads of the state’s judiciary while other servants of the people, equally as honorable, must stand forth in the broad light of day open to attacks of adverse criticism and searching investigation on the part of the press and the people. The judiciary are but men, and therefore are as open to corrupting influences as those in control of any other of the co-ordinate branches of government, and like them, need the deterring influence of free public criticism. Like them, also, they should have their individual actions for libel. Certainly, no greater right to shut off adverse criticism can be given to them without throwing wide open the door to the corruption of the judiciary. The argument that it is the court and not the members thereof that has been libeled is purely metaphysical and does not rest on the facts. Every contempt of this kind that is ever committed is not against the court as a court, but against the court as then constituted; in other words, against the particular members of the court. No one but an avowed anarchist would denounce the court as an institution. A good judge will make the court highly respected, while a Jeffreys will bring it into contempt, but in both cases, in reality, it is the judge himself who is either respected or held in contempt. Any criticism not in regard to a case pending, therefore, alleged to constitute a contempt, must, in nearly every instance, constitute merely a libel on the judge or judges composing the court, for which, like other citizens, they should have their right of action, but no greater rights.”
*415In State ex rel. Ashbaugh v. Circuit Court, reported in 38 L. R. A., page 554, the court, in considering the question of constructive contempt, said:
“Important as it is that courts should perform their grave public duties unimpeded and unprejudiced by illegitimate influences, there are other rights guaranteed to all citizens by our constitution and form of government, either expressly or impliedly, which are fully as important, and which must be guarded with an equally jealous care. These rights are the right of free speech and of free publication of the citizen’s sentiments ‘on all subjects’ (Const. U. S., Amend. 1; Const. Wis., art. I, sec. 3); the right of trial by jury (Const. Wis., art. I, secs. 5, 7); also the right to freely discuss the merits and qualifications of a candidate for public office, being responsible for the abuse of such right in a proper action at law. In the present case it is of the utmost importance to bear in mind that Judge Bailey was a candidate before the people for re-election. Had he been a candidate for any other office, it would not be contended by anyone that the publications in question would afford ground for any other legal action than an action for libel in the regular course of the law; but the claim is that because he was a judge, and was holding court at that time, such unfavorable criticism of his past actions may be summarily punished by the judge himself as for contempt. Truly, it must be a grievous and weighty necessity which will justify so arbitrary a‘proceeding, whereby a candidate for office becomes the accuser, judge, and jury, and may within a few hours summarily punish his critic by imprisonment. The result of such a. doctrine is that all unfavorable criticism of a sitting judge’s past official action can be at once stopped by the judge himself, or, if not stopped, can be punished by immediate imprisonment. If there can be any more *416effectual way to gag the press and subvert freedom of speech, we do not know where to find it. Under such a rule the merits of a sitting judge may be rehearsed, but as to 'his demerits there must be profound silence. In our judgment, no such divinity as this ‘doth hedge1 about’ a judge; certainly not when he is a candidate for public office. ’ ’
“In our opinion, it is not admissible, under our constitution, that a publication, however libelous, not directly calculated to hinder, obstruct or delay courts in the exercise of their proper functions, shall be treated and punished, summarily, as a contempt of court.”—Storey v. People, 79 Ill. 45.
If the publication was intended to influence the decision in a pending case, so as to prevent litigants from having a fair and impartial trial upon the merits, it should be punished as contempt of court. —Sturoc’s case, 48 New Hampshire 428.
Mr. Justice Brewer, when a judge of the supreme court of Kansas, said:
“It will be borne in mind that the remarks we have made apply only while the matters which give rise to the words or acts of the attorney are pending and undetermined. Other considerations apply after the matters have finally been determined, the orders signed, or the judgment entered. Por no judge, and no court, high or low, is beyond the reach of public and individual criticism. After a case is disposed of, a court or judge has no power to compel the public, or any individual thereof, attorney' or otherwise, to consider his rulings correct, his conduct proper, or even his integrity free from stain, or to punish for contempt any mere criticism or animadversion thereon, no matter how severe or unjust. Nor do we wish to be understood as expressing any opinion as to the power to punish other than attorneys and officers of the court for language or conduct, *417even while the matter is pending and undetermined. ’ ’—In re Pryor, 18 Kan. 72.
In Telegram Newspaper Co. v. Commonwealth, 172 Mass. 294, the court stated that, “The publica.tions contained statements of facts, evidence of which was not competent at the trial and was not introduced at the trial, and they were so made that it was likely that the presiding justice and the jurors would read them during the trial, and the natural and probable effect of them would be improperly to influence the justice and the jury in the determination of the cause.”
“The general rule is, that tq constitute any publication a contempt, it must have reference to a matter then pending in court, and be of a character tending to the injury of pending proceedings upon it, and of the subsequent proceeding.”—Percival v. State, 45 Neb. 741.
Wharton, in his work on Criminal Pleading and Practice, speaking of constructive contempts, says:
“(Sec. 958.) But in any view, to justify a committal, it must plainly appear that the effect of the publication is to interfere with the due administration of justice.
“We should remember, however, that summary conviction is a process only to be used when no other remedy can protect public justice from obstruction. For a judge, who supposes himself insulted, to fine and imprison his supposed insulter, may be necessary, as where the insult is in open court, and is of such a character that unless it is summarily stopped and punished the court cannot proceed with its duties; but to enable a judge to punish by summary procedure contempts other than those just mentioned is to set at ncmght, without adequate reason, some of our highest constitutional sanctions. • Such a process dispenses with a grand jury. It inflicts punishment *418without conviction of a petit jury. It permits the party ivho supposes himself injured to be the tribunal which binds over, finds the bill, decides both the lato and fact, convicts, and sentences. We are also told, though, as will be seen erroneously, by those who advocate the prerogative to its full extent, that the process is subject neither to writ of error, nor to revision by habeas corpus, nor pardon. But the prerogative rests on a vicious line of reasoning. The supposed contempt is such that the judge wall or will not be intimidated or swerved by it in the discharge of his duty. If not, then there is no reason for such an extraordinary remedy. If otherwise, then for the judge to confess his weakness in this respect, and to make this confession in so conspicuous a way, is at least as injurious to public justice as is the publication in which the objectionable matter is contained. But there is another view beyond this. We can conceive not only of a weak judge who dreads intimidation, but of a corrupt judge who dreads exposure. To give a bad, bold man of this class an engine so potent as this, is to take away one of the few means by which he can be exposed. Certainly a prerogative so violent and so damaging should not be exercised except in case of necessity.
“It may well be asked why, if such an extreme remedy is necessary in case of the judiciary, it is not in case of the executive? The executive, in cases of application for pardon, exercises a semi-judicial function, in which, equally with the judge trying the case, it is important that he should be kept free from the influence of fear, favor, or affection. The executive, when dealing with great questions of war, or almost equally great questions of currency expansion or contraction, should be in an eminent degree superior to the clamor of ignorant or timid or fanatical *419declaimers, and to the false public sentiment generated by a real but baseless panic. . Who, however, would consider it consistent with either law or liberty for the executive to summarily arrest and imprison, without the relief of bail, without the interposition of a responsible prosecutor, without examination of witnesses, without the right of subsequent revision by habeas corpus, those from whom such publications should issue ? Or, to take an alternative still more applicable, is such a prerogative safely to be claimed for the legislature? The .legislature is co-ordinate in power and dignity with the judiciary. The legislature, either federal or state, has no doubt power to punish summarily for contempts by which the exercise of' its distinctive functions is physically impeded; but can we rightfully claim for the legislature power to commit summarily persons criticising, no matter how unfairly or corruptly, measures over which it is still deliberating? But if the exercise of such a power is not permitted to executive or legislature, why should it be conceded to the judiciary? Or, if so conceded to the judiciary, why should we withdraw from the prerogative those general considerations of policy already noticed, which, while retaining for libels common-law prosecutions, invoke, in the institution of such prosecutions, peculiar caution, tenderness, and reserve? . But however these questions may be determined, two points remain : first, the doctrine of constructive contempt is of recent introduction, not being part of the common law brought with them to this country by our colonists ; and, secondly, it is a violent remedy, justifiable only in cases not reached by bindings over to keep the peace,- or bindings over- for trial. ’ ’
. The case of Myers v. The State, 46 Ohio St. 473, was the review of a. cause originating in the circuit court at Columbus. Myers and another had *420been jointly indicted, and upon the trial of the person joined with him in the indictment, Myers caused to be published in a newspaper circulated at the place of trial, an article in which it was charged that the indictment was returned for partisan purposes, that the jury was never honestly drawn, and that the judge, clerk and prosecutor had packed the grand jury. The supreme court of Ohio, in considering the case, said:
“It was not the libel against the judge which constituted the offense for which the respondent was liable as for a contempt of court. The offense consisted in the tendency of his acts to prevent a fair trial of the cause then pending in the court. It is this offense which constitutes the contempt, and for which he could be punished summarily; and the fact that in committing this offense, he also libeled the judge, and may be proceeded against by indictment therefor, is no reason why he may not and should not be punished for the offense against the administration of justice.”
In applying the doctrine of “pending case,” the court has indulged in a mere fiction, and has enlarged its powers as heretofore declared in the Cooper and Stapleton cases, where the court held that the articles were clearly calculated and intended to improperly influence a decision, and has punished for contempt a publisher who criticised the past action of the court. No party or person interested brought the matter to the attention of the court, and those in whose favor the judgments were rendered appear to have been entirely satisfied that their rights would be protected, and that the mental poise of the court would not be affected by the publications. No one will seriously contend, I think, that .the respondent had any intention or expectation of influencing the ruling upon a motion for rehearing. *421The parties were lost sight of completely. The judgments, while affecting individuals, in effect declared a constitutional amendment unconstitutional; and the respondent condemned the judges and impugned their motives. He was guilty of libel, and not of contempt, if the articles published were false. That the judges regarded themselves, and not the parties, and proceeded against the respondent. for libeling them, rather than for intermeddling in a pending cause, is apparent from the fact that he is the only publisher in Denver against whom proceedings were commenced; although another journal, during the period covered by the articles in question, was in unmeasured terms commending the alleged patriotic action of the court, and announced that, although petitions for rehearing would be filed, they would be filed as a mere matter of form and without hope of favorable action.
The court says: “While such causes were before the court upon the petition for rehearing they were, as to the law of contempts, pending- causes. ’ ’
They were pending — theoretically. The court had rendered judgment. The opinions were filed, giving reasons for the judgments, as required by law. No petition for rehearing had been filed when the articles were published. The opinions were given out for publication, and, as they involved great public questions, they were published. By giving out the opinions, the court invited criticism, and should have expected that would happen which did happen —that they would be freely discussed in the public journals. It was not only the right of these journals to criticise at this most opportune time, but it was the right of the public to read and hear concerning them. Moreover, under our practice, nothing that has been presented will be considered by the court on petition for rehearing; so that, unless it is de*422signed to stifle and prevent criticism at the time when it is intended the public should hear what judgments its judges are rendering, the rule announced by the court is unjust. But, whether it was so designed or not, its effect is the same; for it is left to the judges to determine when they will pass upon a petition for rehearing, and it may be a year1 or more after the judgment is rendered before the petition for rehearing is granted or denied. In a case filed by one Moyer, in which the decision was rendered in the spring of 1904, leave to withdraw the petition for rehearing was not granted until the summer of 1905, although leave was asked in the summer of 1904. This was a case in which the people were vitally interested and the public had a right to hear the questions involved discussed, yet the court withheld its permission to withdraw the petition for nearly a year.
The judgment clothes every judge in the state with a power he shquld not possess; thal it was never intended by our people that he should possess; and to possess which is altogether at variance with our free institutions. The judges should court criticism, not stifle it. The surest way to lose the confidence of the people is to render a judgment the effect of which is to suppress the truth, particularly if it affects the judge personally. The people want to respect the judges, and probably do respect them more than they do the officers of any other department; but they cannot be driven to respect them by oppressive and tyrannical judgments. They may, for the time, sullenly obey judgments such as this, but they have a right that is quite as sacred as the individual right of the printer or speaker, and that is the right to hear and know about all their servants; and it will require more than one judgment *423to effectually deprive them of the right to hear and know about their judges.
The so-called “Auditorium Case” was pending; and if the judgment had been based upon the article in which that case is mentioned, I should have undertaken to show that under the decisions no contempt was in fact committed. But the court has punished the respondent, not because he has undertaken to unduly influence a decision and to prevent the litigants from having a fair trial, but because he has impugned the judges’ motives, and because when he filed his answer he reasserted his charges.
The court cites one case in support of the proposition that the causes were pending, for the purposes of contempt. The general doctrine is that after the judgment is rendered, the people are at liberty to discuss it; and this is particularly true where, as under our statute, the court is required, when it announces its judgments, to file' an opinion stating its reasons therefor. In the two cases from Colorado, the causes were both pending. The writer of the articles not only libeled the judges, but he stated facts concerning the parties which had a tendency to influence the community and the judges with respect to their causes. In the Ohio case which we have cited, People v. Myers, it was expressly held that the defendant was not punished for libel upon the judge, but because he had undertaken to publish matters in the presence of the court and the jurors which might have a tendency to affect the decision in the case. In the Massachusetts case, it will be observed that the newspaper articles published contained facts which, the court remarks, would not be admissible in evidence, and therefore the publisher, inasmuch as such facts were brought to the attention of the court and jury, was held for contempt. In a South Dakota case, on the day after the trial of a *424criminal case, the publisher condemned the court and its judgment, but the supreme court of South Dakota said:
“The object of contempt proceedings is not to enable the judge, who deems himself aggrieved, to punish the supposed wrongdoer to gratify his own personal feelings, but to vindicate the dignity and independence of the court, and to protect himself, and those necessarily connected with it, while a matter is pending before it, from insolent and contemptuous abuse calculated to intimidate, influence, embarrass, or prevent a fair and impartial, trial. If the judge was unjustly assailed by the article in question, he had the same, and only the same, remedies for the redress of the wrong which belong to all other citizens. After the conclusion of a trial the right of the press, without fear of punishment by contempt proceedings, in the interest of the public good, to challenge the conduct of the judge, parties, jurors, or witnesses, and to arraign them at the bar of public opinion in connection with causes that have been fully determined, cannot be denied by a court in any other manner than by the ordinary proceedings in courts of justice. It would be a perversion of the salutary doctrines governing the proceedings of courts and their power to punish for contempts, to permit a judge to summon before him and punish by fine and imprisonment one who challenges his learning, integrity, or impartiality as a judge in a public newspaper, except when the interests of the state demand it, to vindicate the independence and integrity of the courts, and .to protect them from publications directly calculated to embarrass, impede, intimidate, or influence- them in the due administration of justice in proceedings pending before them.”
*425The New Hampshire case mentioned in the opinion as sustaining the decision of the court was a case in which a publisher, while jurors were in attendance upon the court ready to be summoned to try the cause, published articles reflecting upon one of the parties to the suit and commenting in severe terms upon the prosecution; and the court- held that as the articles had a direct bearing upon the cause that was then pending, and might influence the jurors in the determination of that cause, that it was a contempt of court.
In the case State v. Dunham, reported in 6th Iowa 245, the court says, speaking of newspaper articles the publication of which had been held to be contempt of an inferior court:
“Nor are we to be understood as sanctioning the propriety of the course pursued by respondent in his comments and references to the proceedings of the court. If his attack was libelous, then it seems to us that he and the judge assailed should be placed on the same grounds, and ‘their common arbiter should be a jury of the country.’ No court can or .should hope that its opinions and actions can escape discussion or criticism. When a case is disposed of, and the decision announced, such decision becomes public property, so to speak. The construction given to a statute — the reasoning and conclusion of the court upon the facts — all go to the public, and become subject to public scrutiny and investigation. In such cases, it is perfectly competent and lawful for any one to comment upon the decision, ■ and expose its errors and inconsistencies. If such comments do not correct errors, they will, at least, lead to renewed caution and circumspection upon the part of those whose duty it is to declare the law. It would be a fruitless undertaking in this country — where the freedom of speech and the press *426is so fully recognized, and so highly prized — to attempt to prevent judicial opinions from being as open to comment and discussion as an opinion or treatise upon any other subject. It is well, and fortunate that it is so. This right is fully recognized in England, and it would be strange, if, under our institutions, we should be less tolerant. To investigate and discuss the opinion of the court, and to disobey its mandates or orders, are quite different things. All men may rightfully make their comments, but none should disobey, except upon pain of suffering the penalty attached for violation. And should those thus commenting leave the subject, and impute dishonesty or base motives to the judge, he may be punished by indictment for a libel — he may be answerable in damages in a civil action — or he may be liable to both prosecutions.”
But in none of the cases I have cited is language more applicable than that of Mr. Justice Helm in the case of People v. Green, 7 Colo. 244, where he says:
“But respondent undertakes to shield himself under the plea of freedom of speech, and a right to criticise. In this country, and in England also, the utmost liberty of speech is guaranteed by statute and enforced by the courts; the right to discuss all matters of public interest or importance is everywhere fully recognized; judicial decisions and conduct constitute no exception to the rule; the judge’s official character, and his acts in cases fully determined, are subject to examination and criticism; in most states the office is elective, and it is proper and right that the people should be informed of the occupant’s mental' and moral fitness. True, under the guise of criticism in the public press, and otherwise, judges are often compelled to endure the sting of misrepresentation and calumny, with no other redress than an ordinary civil action; and doubtless it sometimes *427happens that their efficiency in office is thereby lessened, to the detriment and injury of the public service; but it is wisely considered better that these wrongs and injuries should be tolerated, than that the sacred liberty of speech, printed or spoken, should be abridged by lodging an arbitrary power to interfere therewith in the hands of the court or judge, so long as such criticism is not designed to influence the mind of the judge in a cause still undetermined. ’ ’
It is, as "Wharton says, “a confession of weakness” for a judge to confess in so conspicuous a way as punishment for contempt,, that criticism of his opinions handed down may influence a decision on a petition for rehearing if one is filed. And it is, ‘ ‘ at least as injurious to public justice as is the publication in which the objectionable matter is contained.”
But the court makes the plea that it is one of the essential powers of the court — essential to its very existence, and absolutely necessary to maintain dignity and command respect. I concede that power to punish for contempt is essential to a proper enforcement of the decrees of a court, for this is recognized by the legislature; but I deny that it is essential and necessary, to maintain dignity and command the respect of the people, that the power should extend to contempts of this character. Instead of commanding respect, it has the opposite effect. The respect must be earned by honest judgments and upright conduct of the judges; and when this arbitrary power is used, the people regard- it as an element of weakness rather than as an evidence of integrity.. The people themselves will rally to the support of the court. The newspapers will be first of all to resist an unwarranted attack upon the court. Public opinion will discountenance unjust assaults, and when the court is unreasonably assailed, the per*428sons who thus assail it will in the end suffer. For a court having the confidence and esteem of the public cannot be harmed by unjust criticism.
Lord Erskine, in speaking upon the subject of free speech and fundamental rights, said: ‘‘ Engage the people by their affections, convince their reason and they will be loyal from the only principle that can make loyalty sincere, vigorous, or rational — a conviction that .it is their truest interest, and that their government is for their good. Constraint is the natural parent of resistance, and a pregnant proof that reason is not on the side of those that use it. You must all remember Lucian’s pleasant story: Jupiter and a countryman were walking together, conversing with great freedom and familiarity upon the subject of heaven and earth. The countryman listened with attention and acquiescence while. Jupiter strove only to convince him — but, happening to hint a doubt, Jupiter turned hastily around and threatened him with his thunder. ‘Ah! ha!’ says the countryman, ‘now, Jupiter, I know that you are wrong; you are always wrong when you appeal to your thunder.’ ”
So I say. Whenever we exert this arbitrary and despotic power, as pelting and petty officers always do; this power not given by the constitution or by legislative enactment, but taken and exercised because of its alleged necessity, we convince no one; and that unless our judgments are wise and just, and our members are themselves honest and incorruptible, we shall receive the just censure of the public, through the exercise of the right of free speech and through the medium of the printing press, notwithstanding our thunder.
For nearly thirty years the judges of the federal court have held sessions here, and have determined great and momentous eases of public import. Yet, *429in the face of the fact that they have not the power to punish as for contempts the publishers of articles, or for spoken words defaming the judges, no one that ■I now recall has ever attacked the integrity of the judges or impugned their motives. During this time, one of the judges has resided here in Denver, and notwithstanding the fact that he is forbidden by statute to entertain proceedings of this nature, he holds the respect and confidence of the people, and the motives for his judgments are not questioned. .
In a recent work on Constructive Contempt by John L. Thomas, former judge of the supreme court of Missouri, this subject is so convincingly presented that I shall quote what he says upon the “Law of Necessity,” at length. This eminent jurist says:
* ‘ The courts base their power to punish for contempt chiefly upon the law of necessity, which is the law of self-defense. To some extent that may be true. That the courts should have power, 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 by argument; but acts or words, done or said, or published away from the courts, and not in their presence, stand upon different grounds entirely, beccmse 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 court to try and punish for contempt any one for the publication of a libel upon them or for other acts not done in their presence. . An abstract theory, though in appearance it may be most plausible and beautiful, is sometimes flatly contradicted by experience and *430the 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 constitutional courts only — that a statutory 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 States in Ex parte Robinson, 19 Wall. 505; in the Frew case, 24 W. Va. 416; in the 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 distinction is not apparent to the writer. To my mind, that so-called law of necessity is no law 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 applicable to the punishment for contempt for newspaper publications, is flatly contradicted by the facts of history. The supreme court of the United States has never exercised, or attempted to exercise, such a power, 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 National Bank cases, the Dartmouth College ease, the Dred Scott case, the Reconstruction cases, the Legal Tender cases, and we all remember the vituperative and libelous attacks, made by the press and many public speakers, upon that high tribunal for its decisions in the Income Tax and Insular cases; and yet the court remained silent and passive^ but it still exists in all its vigor. That court, in 1873, in Ex parte Robinson, decided that under the act of congress of March 2, 1831, the courts, inferior to the supreme court of the United States, have no jurisdiction in a contempt proceed*431ing for acts not committed in their presence; and yet there are no courts of the states of this Union that stand higher 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 the law in the trial of causes. These courts are absolutely, so far as their power to punish 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 extraordinary prerogative prior to 1903, and yet they continued to exist. The same may be said of ninety-nine per cent, of all the courts in our country. Lords Ersldne and Campbell did not think the power essential to a court.
‘ ‘ Speaking upon this very, point, the supreme court of Illinois, in the Storey case, supra, quoting’ from a former decision of the same court, said: ‘It does not seem necessary for the protection of courts in the exercise Of their judicial power, that this one (contempt for libelous publication), so liable to abuse, should be conceded to them. It may be so frequently exercised as to destroy that moral influence which is their best possession, until finally the administration of justice is brought into disrepute. Eespect for courts cannot be compelled. It is the voluntary tribute of the public to worth, virtue and intelligence, and while they are found upon the judgment seat, so long, and no longer, will they retain the public confidence. If a judge be libeled by the public press, he and his assailant should be placed on equal grounds, and their common arbiter should be a jury of the county.’
*432“The supreme court of Wisconsin, speaking on the same subject, in State ex rel. v. Court, 44 L. R. 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 poioer as this is necessary for the due administration of justice. It may be fully admitted that under the common law as administered in England, 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 power is inconsistent 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 Mississippi, in Ex parte Hickey, 4 Smedes & M. 751, and it has been the firm conviction of the people of this country for over a hundred years that this power is not necessary, but that it is a power so arbitrary and so liable to abuse, that it ought not to be intrusted to the court, but that cases involving the abuse of freedom of speech and the' press ought to be tried by an impartial 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 protect 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 tribunal, 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.
*433' ' 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 process or orders of the court, and beyond these the law of necessity, if it exist at all, does not extend.”
This plea of necessity has always been urged as the reason for the exercise of arbitrary power not sanctioned by law. All tyrants take refuge behind it. It is the reason urged for misgovernment everywhere. The constitution is ignored and the statutes disregarded mainly upon the plea of necessity. The power of judging of the necessity is, by this same doctrine of necessity, as a matter of course lodged in the person making the plea.
Judge Thomas further says, page 41:
“Those who opposed proceedings, based on attachment for contempt of court for newspaper publications, did not deny that courts ought to be protected against unjust and malicious criticism; but they did deny the propriety, if not the right of the judge to try any issue in which his personality must, of necessity,- more or less enter, and which, they felt, can but influence his decision. This objection, however, applies only where the contempt proceeding is for criticism of the judge by print, writing or picture, and does not apply to the enforcement 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 appreciable influence over the. decision of a just judge. Lord Erskine, at the close of his great career, gave it as his opinion that there ought to be a jury trial when a person is charged with libeling a court or judge; and Lord Campbell, one of the chief justices of England, in a note to the case of Rex v. Almonds (Wilm., Op. 243, 3rd volume of his 'Lives of the Lord *434Chief Justices,’ 190), says: ‘In consequence of the resignation of Sir Fletcher Norton, who as attorney-general had made the motion, it (the Almond case for contempt) was dropped after cause shown while the court was considering its judgment; and although there can he 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 indictment, so as to avoid placing them in the invidious situation of deciding where they may be supposed to be parties. ’ ’ ’
The court says that the case of Hughes v. The People is authority for holding, as it does, “that the truth of the matter charged as contemptuous is not justification to the charge of contempt.” The court further says that, the court very briefly disposed of the offer of Hughes to prove the truth of his charges; and quotes the following language used by the court: “It is further assigned for error, that the court rejected testimony offered to prove the truth of the matter charged in the writings. After what we have already said, it is scarcely necessary to add that this assignment is untenable.”
I cannot place such construction on this portion of Justice Stone’s opinion. He had already said:
“A contempt consists as well in the manner of the person committing it, as in the subject-matter of its foundation; matters which, if true, would in their very nature be scandalous, may be presented, hinted at or brought to the attention of the court in so respectful a manner, that no judge would ever think to construe a contempt therefrom; while, on the other hand, it is easy to see, when under the guise and pretense of setting out privileged and necessary matters, circumstances are detailed, and scandalous and insulting charges and innuendoes are made'and insinuated, upon pretended ‘information and belief,’ *435in a manner that bears the unmistakable earmarks of malice and deliberate contempt.
“These remarks, we think, will indicate sufficiently clear the path which each attorney is expected to advise and follow in choosing’ the language he employs in papers filed in court, as well as in speech addressed directly to the judge.”
This explains the words quoted as declaring that the proof of the truth of the matter charged in an alleged contemptuous paper filed in the court is not a justification. Taken all together, it is not authority for the opinion in this case, but is simply a. holding that the attorney who presents a paper to a court must use language, if possible, that is not scandalous; and that he should, rather than relate a plain, unvarnished tale, hint at such matters, and gloss them in such a way that a discriminating judge will not deem the language contemptuous. But it is not possible to use this case as authority for holding that under no circumstances is the truth a justification; for, suppose that an attorney has merely hinted at a scandalous matter, and the judge has cited him for contempt, and as a justification, the attorney offers to prove the truth. There is positively nothing in the' opinion which would justify the court in denying the attorney the right to prove such matters in justification.
In the ease Mullin v. People, 15 Colo. 437, Mullin had prepared a petition for a change of venue, wherein he set forth, among other things, that the wife of the judge had just before the trial of a certain cause told him that she must return home at once and see the judge and arrange with him to have Mrs. Davis win her case; that Mrs. Davis did wiu the ease; and that, as he was interested in the same litigation, although in another suit, he feared that the judge would be prejudiced against him, and he asked *436to have the venue of the cause changed. After stating that the statute requires the petitioner, in cases where the change of venue is asked on account of the prejudice of the judge, to set forth the facts upon which he bases his fears that he will not receive a fair trial, Mr. Justice Hayt, who delivered the opinion of the court, said:
“Assuming then, for the purposes of this case, that the wife of the presiding judge made the statement attributed to her, plaintiff in error had the undoubted right to embody such statement in his petition for a change of venue without subjecting himself to being punished for contempt. The principal ground relied upon to sustain the action of the court below therefore fails. Had it been charged that the affidavit was false in this respect, and that such false statements were made willfully and maliciously, as argued, a different case would have been presented.”
This case seems to hold that in a petition for change of venue the party seeking the change may set out the reasons upon which he bases his fears that he will not receive a fair trial, and that if the statements therein contained are true, he is not subject to punishment for contempt.
John Peter Zenger was tried for a defamatory publication of certain public officials in New York, in 1735. Andrew Hamilton defended him. Speaking of the effect of censuring those in power, Hamilton said:
“It is said that it brings the rulers of the people into contempt so that their authority is not regarded, and so that in the end the laws cannot be put into execution. These, I say, and such as these, are the general topics insisted upon by men in power and by their advocates. But I wish it might be considered at the same time how it often has happened that the *437abuse of power has been the primary canse of these evils, and that it was the injustice and oppression of these great men which has commonly brought them into contempt with the people. The craft and art of such men are great, and who that is the least acquainted with history or with law can be ignorant of the specious pretenses which have often been made use of by men in power to introduce arbitrary power and destroy the liberties of a free people. * * *
“But, to conclude, the question before the court, and you, gentlemen of the jury, is not of small nor private, concern; it is not the cause of a poor printer, nor of New York alone, which you are now trying. No! it may, in its consequences, affect every free man that lives under a British government on the main continent of America. It is the best cause; it is the cause of liberty; and I make no doubt but your upright conduct, this day, will not only entitle you to the love and esteem of your fellow-citizen, but every man who prefers freedom to a life of slavery will bless and honor you as men who have baffled the attempt of tyranny, and, by an impartial and uncorrupt verdict, have laid a noble foundation for securing to ourselves, our' posterity, and our neighbors, that to which nature and the laws of our country have given us a right — the liberty of exposing and opposing arbitrary power (in these parts of the world, at least) by speaking and writing truth.”
Through the efforts of Hamilton, Zenger was acquitted, in spite of the judge’s efforts; and this at a time when the truth was not a defense to such an action. Gouverneur Morris is said to have stated that instead of dating American liberty from the Stamp Act, he traced it to the persecution of Zenger; because that event revealed the philosophy of freedom, both of thought and speech, as an inborn human right, *438so nobly set forth in Milton’s speech for the liberty of unlicensed printing. 1
Harry Croswell, the publisher of a newspaper at Hudson, New York, was convicted for libeling Thomas Jefferson, the then president of the United States. The case was taken to the supreme court. It has attracted great attention, not only because of the importance of the questions raised, but because of the eminence of court and counsel. The lower court had refused to instruct the jury that it was the judge of the law and fact, and that the truth was a justification. The case is reported in 3 Johnson’s cases, page 323. In opening the case, counsel for Croswell said:
“The opposite doctrine, which maintains that a writing is equally libelous, whether true or false, originated in a polluted source, the despotic tribunal of the star chamber; (Moore 627, 5 Co. 125.) * * * The star chamber had no authority to alter the common law. Our ancestors, when they emigrated to this country, brought with them the common law as their inheritance and birthright; and one of the earliest acts of our colonial legislature was to assert their claim to the enjoyment of the common law. * * * The doctrine which will be ■ contended for on the other side, that the truth cannot be given in evidence, and is in no case to justify libel, although it should be promulgated with the purest motives, is repugnant to the first principles of policy and justice, and contrary to the genius of a free representative republic. Freedom of discussion and a freedom of the press, under the guidance and sanction of truth, are essential to the liberties of our country, and to enable the people to select their rulers with discretion, and to judge correctly of their merits. ’ ’
Gen. Alexander Hamilton appeared for Croswell; he said, in the closing argument:
*439“The liberty of the press consists, in my idea, in publishing the truth, from good motives and for justifiable ends, though it reflect on government, on magistrates, or individuals. If it be not allowed, it excludes the privilege of canvassing men, and our rulers. It is in vain to say, you may canvass meas-ures. This is impossible without the right of looking to men. To say that measures can be discussed, and that there shall be no bearing on those who are the authors of those measures, cannot be done. The very end and reason of discussion would be destroyed. Of what consequence to show its object? Why is it to be thus demonstrated, if not to show, too, who is the author? It is essential to say, not only that the measure is bad and deleterious, but to hold up to the people who is the author, that, in this our free and elective government, he' may be removed from the seat of power. If this be not done, then in vain will the voice of the people be raised against the inroads of tyranny. * * * But if, under the qualifications I have mentioned, the power be allowed, the liberty for which I contend will operate as a salutary check. In speaking thus for the freedom of the press, I do not say there ought to be an unbridled license; or that the characters of men who are good will naturally tend eternally to support themselves. I do not stand here to say that no shackles are to be laid on this license.
“I consider this spirit of abuse and calumny as the pest of society. I know the best of men are not exempt from the attacks of slander. Though it pleased God to bless us with the first of characters, and though it has pleased God to take him from us and this band of calumniators, I say that falsehood eternally repeated would have affected even his name. Drops of water, in long and continued succession, will wear out adamant. This, therefore, cannot *440be endured. It would be to put the best and.the worst on the same level.
“I contend for the liberty of publishing truth, with good motives and for justifiable ends, even though it reflect on government, magistrates, or private persons. I contend for it under the restraint of our tribunals. When this is exceeded, let them interpose and punish. From this will follow none of those consequences so ably depicted. When, however, we do look at consequences, let me ask whether it is right that a permanent body of men, appointed by the executive, and, in some degree, always connected with it, should exclusively have the power of deciding on what shall constitute a libel on our rulers, or that they shall share it, united with a changeable body of men chosen by the people. Let our juries be selected, as they now are, by lot. But it cannot be denied that every body of men is, more or less, liable to be influenced „by the spirit of the existing administration; that such a body may be liable to corruption, and that they may be inclined to lean over towards party modes. No man can think more highly of our judges, and I may say personally so of those who now preside, than myself; but I must forget what human nature is, and how her history has taught us that permanent bodies may be so corrupted, before I can venture to assert that it cannot be. As then it may be, I do not think it safe thus to compromise our independence. For though, as individuals, the judges may be interested in the general welfare, yet, if once they enter into these views of government, their power may be converted into an engine of oppression. It is in vain to say that allowing them this exclusive right to declare the law, on what the jury has- found can work no ill; for, by this privilege, they can assume and modify the fact, so as to make *441the most innocent publication libelous. It is, therefore, not a security to say, that this exclusive power will but follow the law. * * * Passages have been adduced from Lord Mansfield’s declarations to show that judges cannot be under the influence of an administration.' Yet still it would be contrary to our own experience to say that they could not. I do not think that even as to our own country it may not he. There are always motives and reasons that may be held up. It is, therefore, still more necessary here to mingle this power, than in England. The person who appoints there, is hereditary. That person cannot alone attack the judiciary; he must be united with the two houses of lords and of commons, in assailing the judges. But, with us, it is the vibration of party. As one side or the other prevails, so of that class and temperament will be the judges of their nomination. Ask any man, however ignorant of principles of government, who constitute the judiciary, he will tell you the favorites of those at the head of affairs. Accordingly, then, to the theory of this our free government, the independence of our judges is not so well secured as in England. We have here reasons for apprehension not applicable to them. We are not, however, to be influenced by the preference to one side or the other. But of which side soever a man may be, it interests all to have the question settled, and to uphold the power of the jury, consistently however with liberty, and also with legal and judicial principles, fairly and rightly understood. None of these impair that for which we contend— the. right of publishing the truth, from good motives and justifiable ends, though it reflect on government, on magistrates, or individuals.
“Some observations have, however, been made in opposition to these principles. It is said, that as no man rises at once high into office, every oppor*442tunity of canvassing liis qualifications is afforded, without recourse to the press; that his first election ought to stamp' the seal of merit on his name. This, however, is to forget how often the hypocrite goes from stage to stage of public fame, under false array, and how often, when men obtain the last object of their wishes, they change from that which they seemed to be; that men, the most zealous reverers of the people’s rights, have, when placed on the highest seat of power, bécome their most deadly oppressors. It becomes, therefore, necessary to observe the actual conduct of those who are thus raised up.
“I affirm that, in the general course of things, the disclosure of truth is right and prudent, when liable to the checks I have been willing it should receive as an object of animadversion. It cannot be dangerous to government, though it may work partial difficulties. If it be not allowed, they will stand liable to encroachments on their rights. It is evident that if you cannot apply this mitigated doctrine, for which I speak, to the cases of libels here, you must forever remain ignorant of what your rulers do. I never can think this ought to be; I never did think the truth was a crime; I am glad the day has come in which it is to be decided, for my soul has ever abhorred the thought that a free man dared not speak the truth ; I have forever rejoiced when this question has been brought forward.
“It is impossible to say that to judge of the quality and nature of an act, the truth is immaterial. It is inherent in the nature of things, that the assertion of truth cannot be a crime. In all systems of law this is a general axiom, but this single instance, it is attempted to assert, creates an exception, and is *443therefore an anomaly. If, however, we go on to examine what may be the case that shall be so considered, we cannot find it to be this.
“It is true that the doctrine originated in one of the most oppressive institutions that ever existed; in a court whose oppressions roused the people to demand its abolition, whose horrid judgments cannot be read without freezing the blood in one’s veins. This is not used as declamation, but as argument. If doctrine tends to trample on the liberty of the press, and if we see it coming from a foul source, it is enough' to warn us against polluting the stream of our own jurisprudence. It is not true that it was abolished merely for not using the intervention of juries, or because it proceeded eso parte, though that, God knows, would have been reason enough, or because its functions were discharged by the court of king’s bench. It was because its decisions were cruel and tyrannical; because it bore down the liberties of the people, and inflicted the most sanguinary punishments. It is impossible to read its sentences without feeling indignation against it. This will prove why there should not be a paramount tribunal to judge of these matters.”
Mr. Justice Kent, in an opinion, sustained General Hamilton, and adopted his views. He said, in part:
“Mr. Barrington (‘Observations on the Statutes,’ 68) has given us a part of a curious letter, written at that time by the Dean of St. Paul’s,from which we may infer his alarm and disgust at the new libel doctrines of the star chamber. ‘There be many cases,’ he observes, ‘where a man may do his country good service, by libelling; for where a man is either too great, or his vices tco general to be brought under *444a judiciary accusation, there is no way but this extraordinary method of accusation. ’ * * *
“It appears clear, from this historical survey, that the doctrine now under review originated in the court of star chamber, and was introduced and settled there about the beginning of the reign of James I. (Breverton’s case, 2 Jac. 1, and the case in 5 Co. 125, 3 Jac. 1, both settled the rule.) It was no doubt considered, at that time, as an oppressive innovation; but opposition must have been feeble to a court whose action and whose terrors were then at the greatest height, and which exercised its superlative poioers (as Hudson terms them) with enormous severity. The principle was, however, received in after times with jealousy and scrutiny, as coming without the sanction of legitimate authority; and it was not to be expected that a people attached to the mild genius of the common law, of which trial by jury, in criminal cases, is one of its most distinguished blessings, would willingly receive the law and limits of the press from the decrees of so odious and tyrannical a jurisdiction. * * *
‘ ‘ The first American Congress, in 1774, in one of their public addresses (Journals, vol. 1, p. 57), enumerated five invaluable rights, without which a people cannot be free and happy, and under the protecting and encouraging influence of which these colonies had hitherto1 so- amazingly flourished and increased. One of these rights was the freedom of the press, and the importance of this right consisted, as they observed, ‘besides the advancement of truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of government, its ready communication of thoughts between subjects, and its consequential promotion of union among them, whereby oppressive officers are shamed *445or intimidated into more honorable and just modes of conducting affaii s. ’ * * *
“I have thus shown, that the rule denying permission to give the truth in evidence, was not an original’ rule of the common law. The ancient statutes and precedents, which are the only memorials to which we can resort, all place the crime on its falsity. The court of star chamber originated the doctrine, and it was considered an innovation. When it was brought into a court of common law, it was resisted and denied; the court dared not practice upon it, and the jury gave it their negative. Lord Holt totally disregarded the rule, in the case of Fuller; and it did not become an express decision of a court of common law till Franklin’s case, in 1731; and there the counsel made a zealous struggle against it, as new, dangerous, and arbitrary. In the trial of Horne, Lord Mansfield laid the rule aside, and the counsel for the crown rejoiced at an opportunity to meet the defendant upon the merits of the accusation. In 1792, it was made a questionable point, in the house of lords, and one of the highest law characters in the house seems to have borne his testimony against it. I feel myself, therefore; at full liberty to examine this question upon principle, and to lay the doctrine aside, if it shall appear unjust in itself, .or incompatible with public liberty,. and the rights of the press. * * *
“I adopt, in this case, as perfectly correct, the comprehensive and accurate definition of one of the counsel at the bar (Hen. Hamilton), that the liberty of the press consists in the right to publish, with impunity, truth, with good motives, and for justifiable ends, ivhether it respects government, magistracy, or individuals.”
*446In the case of King v. Root, 4 Wend. 114, the trial court instructed the jury upon the liberty of the press, as follows:
“A vigilant watch should be kept over the editors of our journals, to prevent them becoming vehicles for the indulgence of private resentment. Yet, however aggravated the practice of traducing character so openly and virulently through the press may become, you must be cautious not to let your anxiety to check a great evil, lead you to do a great wrong to these defendants. * * * and in seeking to restrain the licentiousness of the press, you will be careful not to trammel fair discussion, nor punish the truth, however painful it may be to those of whom it is published. ’ ’
The judgment was affirmed, and this instruction was approved.
Horace Greeley was defendant in a suit for defamation. He pleaded that the articles published by him were true. In passing upon a preliminary motion, the court said:
‘ ‘ The press is allowed to comment fully and freely upon public characters, from the president down, and to utter those things with the utmost freedom— to charge official men with incompetency and imbecility, with ignorance or corruption — to charge judges with ignorance, incompetency, or- venality — and the proof of any of these allegations is a perfect defense. But the press has no right, under its guaranteed freedom, to publish what is not true.”—Littlejohn v. Greeley, 13 Abbott’s Pr. 41.
In the case of Negley v. Farrow, 60 Md. 158, at page 176, the court, through Robinson, Justice, says:
“No one denies the right of the defendants to discuss and criticise boldly and fearlessly the official conduct of the plaintiff. It is a right which, in every free country belongs to the citizen, and the exercise *447of it, within lawful and proper limits, affords some protection at least against official abuse and corruption. But there is a broad distinction between fair and legitimate discussion in regard to the conduct of a public man, and the imputation of corrupt motives, by which that conduct may be supposed to be governed. And if one goes out of his way to asperse the personal character of a public man, and to ascribe to him base and corrupt motives, he'must do so at his peril; and must either prove the truth of what he says, or answer in damages to the party injured.”
In the case of State v. Frew, 24 West Virginia 416, Mr. Justice Snyder, one of the justices of the-court, said:
“Having thus shown that the court has the power to punish for contempts, it must not be overlooked that this power can be justified by necessity alone, and should rarely be exercised, and never, except when the necessity is plain and unmistakable. It is not given for the private advantage of the judges who sit in the court, but to preserve to them that respect and regard, of which courts cannot be deprived and maintain their usefulness. It is given that the law may be administered fairly and impartially, uninterrupted by any influence which might affect the rights of the parties or bias the minds of the judges— that the court may command that respect and sanctity so essential to make the law itself respected — and that the streams of justice may be kept pure and uncorrupted. * * *. The public have a profound interest in the’good name and fame of their courts of justice, and especially of the courts of last resort. Everything that affects the well-being of organized society, the rights of property, and the life and liberty of the citizen, is submitted to their final decision. The confidence of the public in the judiciary should not be wantonly impaired. It is all-important to the *448due and efficient administration of justice that the courts of last resort should possess in a full measure the entire confidence of the people whose laws they administer. All good citizens will admit that he who willfully and wantonly assails the courts .by groundless accusations, and thereby weakens the public confidence in them, commits a great wrong not alone against the courts, but against the .people of the state. It must be and is cheerfully conceded that public journals have the right to criticise freely the acts of all public officers — executive, legislative and judicial. It is a constitutional privilege that even the legislature cannot abridge. But such criticism should always be just and with a view to promote the public good. Where the conduct of a public officer is tuillfully corrupt, no measure of condemnation can be too. severe; but when the misconduct, apparent or real, may be simply an honest error of judgment, the condemnation ought to be withheld or mingled with charity. ’ ’
This is one of the cases cited by the court in support of its position in this case. Yet, by the use of the adverb wantonly, and of the adjective groundless', it would seem that, in the opinion of this justice, if the accusation were not wantonly made and were not groundless, no contempt would have been committed. He also appears to favor severe condemnation of those public officers who are willfully corrupt. The justices were careful to state that they had been falsely charged; and one of the judges insisted that the attorneys should have been fined because they must have known that the answer filed was false.
My brother Gunter relies upon the case In re Moore et al., 63 North Carolina 397, decided in the year 1869, as supporting one of the positions taken by the court in this case. In that case more than one hundred members of the bar signed and published a *449protest entitled: “A SOLEMN PROTEST OF THE BAR OF NORTH CAROLINA AGAINST JUDICIAL INTERFERENCE IN POLITICAL AFFAIRS.” The protest declared, among other things, that, “Active and open participation in the strife of political contests by any judge of the state, so far as we recollect, or tradition or history has informed us, was unknown to the people until the late exhibitions. To say that these were wholly unexpected, and that a prediction of them, by the wisest among us, would have been spurned as incredible, would not express half our astonishment, or the painful shock suffered by our feelings when we saw the humiliating fact accomplished. * # * Many of us have passed through political times almost as excited as those of to-day; and most of us, recently, through one more excited; but, never before have we seen the judges of the supreme court, singly or en masse, moved from that becoming propriety so indispensable to secure the respect of the people, and, throwing aside the ermine, rush into- the mad contest of politics under the excitement of drums and flags. From the unerring lessons of the past we are assured, that a judge who openly and publicly displays his- political party zeal, renders himself unfit to hold ‘the balance of justice,’ and that whenever an occasion may offer to serve his fellow-partisans, he will yield to the temptation, and the ‘ wavering balance’ will shake.”
This article was held to be libelous because false, and contemptuous because libelous. The court said: “The only allegation of fact on which this ‘solemn protest’ rests, is that ‘the judges, single or en masse, did rush into the mad contest of politics, under the excitement of drums and flags.’ Is this allegation of fact true, or is it false? There is' no pretense that it is true. It is said, this is a figure of speech, sug*450gested by something- that Was expected to occur, but never did occur; so the allegation of fact is false, and the inference drawn from it is also false. In our judgment the paper is libelous, and ‘ doth tend to impair the respect due to the authority of the court.’ ”
No case from America, since the constitutional provisions concerning free speech and the printing press have been in force, has been cited, in which a judge has undertaken to punish as for contempt statements such as these. A redeeming feature of this case is that the respondents did not retract or apologize, and were not punished; and that the court held that to publish such an article is not contempt unless it is false.
In the Wyatt case, the court held that the legislature had not undertaken to control the procedure in criminal contempt, because the statute on the subject was contained in the civil code. It recommended, however, a substantial compliance with the code provisions in cases of criminal contempt.
In the Stapleton case, the court did not. declare that the legislature could not legislate upon the subject of contempt, but expressly declares that, as it had not done so, the court had the common-law power of punishing for constructive contempt. Mr. Justice Elliott said, quoting from the Hughes case: “ ‘Such a statutory enumeration of'causes as is found in our code, when applied to the ever-varying facts and circumstances out of which questions of contempt arise, cannot be taken as the arbitrary measure and limit of the inherent power of a court for its own preservation, and for that proper dignity of authority which is essential to the effective administration of law. ’
“The Hughes case was based upon the code of 1877, which was repealed in 1887. Chapter 30 of the present code is, however, a substantial re-enactment of the former provisions relating to contempt pro-r *451ceedings. These provisions were re-enacted more than six years after the announcement of the decision in the Hughes case. Thus hy a well known rule of statutory construction it must he presumed that the legislature had knowledge of, and were satisfied with, the construction given to such provisions, and so reenacted them without change.—Harvey v. Travelers’ Ins. Co., ante, 354. Moreover, neither in the code of 1877 nor in the present code are there any negative or other qualifying words limiting contempts to such causes as are therein specified. ’ ’
This language cannot he misunderstood; and the court has, in this case, in effect, overruled the Staple-ton case — for it says-:
“We do not desire to intimate by the excerpt from People v. Stapleton, that it would he competent for the legislature to limit the power of courts, created hy the constitution, in reference to either civil or criminal contempt. ’ ’
Instead of accepting the decisions of this court as a warning that the court had already taken all the power necessary for its existence, it goes beyond that, and intimates, if it does not hold, that the subject of contempt is one over which the legislature has no control. Colorado has thus joined the group of states consisting of Arkansas, West Virginia, Virginia, Georgia and Missouri in declaring that necessity — a necessity essential to the very existence of the court —requires that the legislature should not legislate upon the subject of contempt. How the federal courts and the courts of the other thirty-nine states have managed to exist, for lo! these many years, without this essential power, is not explained in the opinion.
I shall not discuss the proposition that the common-law powers cannot he taken from the courts created hy the constitution, by legislative enactment, *452further than to say that, as the constitution that created the court adopted the common law only until altered or repealed by the general assembly, it would seem to follow that it is within the power of the legislature to take away any power not expressly granted by the constitution.
Although the court is sustained, in part, by the courts of the states mentioned, this court stands alone in holding that the truth is immaterial. In Georgia and Virginia the contempt was of an entirely different character. In Arkansas, the court says that one is punishable for contempt who tuantonly attempts to obstruct public justice; and in West Virginia, the court speaks of groundless accusations made against the court as being contemptuous; while in Missouri, the court squarely holds that the power to punish is limited to those who tell an untruth. The doctrine that “the truth is immaterial,” comes, as Kent and Hamilton say, from a polluted source, the obnoxious star chamber, and it was undoubtedly the cowardly conception of corrupt officials, as a means of shielding themselves from exposure, and why it should be revived in this day and generation is beyond my understanding.
The court disposes of the contention of the respondent, that he should not be punished for publishing, the truth, by saying:
“State v. Shepherd, 147 Mo. 244, has been cited as contra our conclusion. The question is not presented by the answer of the respondent in that case, nor is its sufficiency as a defense considered or passed upon by the court. No case has been found which sustains, or tends to sustain, the contention of counsel.”
It is true that the answer of the respondent did not justify by alleging the truth of the charges; but I can place no other construction upon the language *453of the court than that, in the judgment of that court, proof of the truth of the alleged contemptuous articles is a perfect defense. As my brother Cfunter and I have placed constructions upon the Missouri case that are diametrically opposed to each other, I shall quote from the opinion in that case the language upon which I base my conclusion that the court held that the truth of the charges made is a justification in a proceeding for contempt. The publisher of a newspaper had charged, in effect, that the judges of the supreme court had been bribed by the Missouri Pacific Railroad Company to render a certain judgment in its favor. The article stated, among other things, that “As the cap-sheaf of all this corruption in high places, the supreme court has, at the whip-crack of the Missouri Pacific Railroad, sold its soul to the corporations.” Further, that: “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 ever have any other opinion but that the judges who concurred in the opinion dismissing the Oglesby case have been bought in the interest of the railroad.” The court then proceeds: “If these charges are true, the persons who are thus charged should be prosecuted and removed from office. On the other hand, anyone 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 court, neither asserts the truth of the charges, nor does he accept the challenge of the attorney general to introduce any evidence whatever of their truth. * * * In other words, the. defendant has grossly, indecently, and cruelly vilified and scandalized every department of the government under which he lives, and which affords him protection for his life, liberty, and prop*454erty, and, when challenged to malee 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,’ by withdrawing the charges and apologizing like a man, he seeks to- escape punishment by challenging the jurisdiction of this court.”
At another place in the opinion, the court says:
“The offense of scandalwn magnatum has not existed in this country since the revolution, but everyone, of whatever rank or station in life, stands upon the same footing before the law, and is entitled to the same protection for his life, his liberty, his property, and his reputation. In the eyes of our constitution and laws, every man is a sovereign and ruler, and a freeman, and has equal rights with every other man. * * *• ]gvery 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 and 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. ’ ’
At another place, the court says: ‘ ‘ But the press has no greater liberty in this regard than any citizen. Newspapers and citizens have the same right to tell the truth about anybody or any institution. Neither has the right to scandalize anyone or any institution. ’ ’
And again: ‘ ‘ Good people obey the laws, slander no one, and speak the truth. Others must do so, or be punished. ‘Upon no other basis could good government rest, or the rights of the people be protected. * * * This is the true rule. The liberty of the press means that anyone can publish anything he pleases, but he is liable for the abuse of this liberty. If he* does this by scandalizing the courts of *455Ms country, he is liable to be punished for contempt. If he slander his fellow men, he is liable to a criminal prosecution for libel, and to respond, civilly, in. damages for the injury he does to the individual. In other words, the abuse of the privilege consists principally in not telling the truth.” .
And, quoting from a New York case, it says: “It has been urged upon you that the conductors of the public press are entitled to peculiar indulgences, and have special rights and privileges. The law recognizes no such peculiar rights, privileges or claim to indulgence. They have no rights but such as are given to all. They have just the same right that the rest of the community have, and no more. They have the right to publish the truth, but no right to publish falsehood to the injury of others with impumty. It is the liberty of the press that is guaranteed, not the licentiousness. It is the right to speak the truth, not the right to bear false witness against your neighbor.”
And, quoting the following from an English case: “Some people are very credulous, especially in politics, and can readily believe any evil of their opponents. There must, therefore, be some foundation in fact for the charges made.” * # * “The courts of other states have held that it is libelous to charge an officer with having taken a bribe, or with corruption, or with want of integrity. In such cases the publisher must stand ready to prove the truth of his charges, or he will not go unwhipped of justice. ’ ’
Here the court cites a great number of eases in support of its position. And, in speaking of the case the decision of which called forth the newspaper comment, the court said: “No one believed or dared to charge another with dishonesty of opinion or action, and there toas no foundation in fact and in truth for any such charges. There was therefore no legal justi*456ficatiom or excuse for the article that was published by the defendant. He did not dare attempt to prove or claim that it was true, hut stood mnte as to that, and sought to escape punishment on other grounds which .were untenable. He was therefore guilty of malice. He abused the liberty of the press and made himself liable therefor.” '
And, finally, in closing, the court says: “What is herein said in no manner whatever conflicts with what was said in Marx & Haas Jeans Clothing Company v. Watson, 168 Mo. 133. That was a. suit in equity to enjoin a boycott, and it was held that injunction would not lie to- restrain the utterance of a libel or slander, or to restrain free speech. It was held there, as it is here, that every one may speak, write or publish whatever he will, but is responsible for the abuse of the privilege. 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. ’ ’
I must confess my utter inability to understand ordinary English words, if the court did not declare that the defendant presented no legal justification or excuse for the articles published, because he failed to establish the truth.
The court says: “But no case has been presented which sustains, or tends to sustain, respondent’s contention that the truth is a justification. I have, presented several, and none have been cited to the contrary. And it seems to me that it is contrary to the American spirit to punish a man for telling the truth. That no case is presented in which the answer Of the respondent alleges the truth as a justification, and the court has discharged him because he proved the truth, I concede. In the cases cited' where charges were made against the appellate tribunal, the court carefully calls attention to the fact *457that the charges are false and makes explanation of its conduct. The law up to this time has been such that no judge would, probably, cite one for publishing truthful charges concerning him, unless he was satisfied that the respondent could not or would not undertake to prove his charges. This may account for there being no case just like the one under consideration.,
I have always understood that the truth was a perfect defense to actions of this kind. That it was not only a right every person had to disclose the fact, but that it was a duty he owed to his country to proclaim abuses when found to exist in public office: ‘ ‘ For truth can be outraged by silence quite as cruelly as by speech.” An exception is said to exist in favor of judges, but I know of no good reason why the judicial department of the government should be screened from the searchlight of truth, while the officers of the other departments remain in its glare.
The court says the “weight of authority” sustains the law as so announced by the court; and cites State v. Morrill, State v. Frew, Myers v. State, Sturoc’s case, State v. Shepherd, and 7 American and English Encyclopedia of Law, and cases. This statement I must flatly dispute. Judge Thomas, in his recent work on Constructive Contempts, says: “Out of forty-five states, the courts of only two, Arkansas and West Virginia, have set aside statutes in order to obtain jurisdiction to punish as for a contempt a libelous newspaper publication, * * * and two other courts, Georgia and Virginia, have held that the court’s inherent power to punish contempts cannot be limited by legislative power; but these cases did not involve newspaper publications.” * * * “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 negative or restrictive words, unconstitutional in order *458to exercise this extraordinary power. In these cases the question of the unconstitutionality of the statutd was squarely presented hy the record, and decided hy the courts.”
“Another fact must not be overlooked in the examination of this question, and that is, no court in this country, or any country for that matter, ever set aside a statute in order to.acquire jurisdiction in a contempt case until the supreme court of Arkansas, in the Morrill case, in 1855, did that.” So that .as this insignificant number of cases cannot be regarded as sustaining the weight of authority, it must be that state pride was a very important element in inducing the statement from my brother Gunter.
I do' not contend that one who in open court charges a judge with corruption may justify his act by proof that his charge is true, but I do contend that when the alleged contempt consists of the publication in a newspaper of defamatory accusations, such publication is not contempt, but libel, and that the constitution intervenes to prevent that offense from being tried by judges who are smarting under a sense of injury'; and that when a pourt takes cognizance of a newspaper libel, either directly or remotely connected with a pending case, upon the ground that the publication was calculated and intended to influence its action, it ought, nevertheless, to prosecute and convict only for the contempt, and not for the libel; and that, so far as the libel is concerned, the truth is always a justification, no matter what the court is pleased to call the offense.
I do not approve of the decision in State v. Shepherd, from which I have quoted, insofar as it declares the court’s jurisdiction; but I regard it as very much nearer correct than the decision in this case. For in that case the defendant was punished for publishing a false charg’d against the court, while *459in this case it is held that a person is guilty of contempt, even though the charges made he true.
The theory upon which is based the doctrine that the truth is not a defense is stated by counsel for the people in the case People v. Stuart, supra, when he said, referring to the provision of the constitution which provides that the truth may be given in evidence :
“This provision of the constitution only relates to criminal prosecutions; and the truth may be given in evidence in such prosecutions, but in a proceeding for contempt, this cannot be done-, and ought not to be, because it is not considered as affecting the individual, but the court. Whether the publication was true or false, is immaterial; because the court,- as a court, must be protected, whether right or wrong.” But this doctrine, though captivating, was repudiated by the court, and has found lodgment in none of the reports of this country; and I trust its lodgment here is but témpora,ry. Even in Arkansas, where we find the first decision declaring the inherent power of the court to punish for this character of contempts, and holding the legislative enactment void which regulated the punishment and procedure-, this doctrine does not germinate; for this language appears in Neal v. State, 9 Ark. 259: “But while the aegis of the law is so thrown over the judge, it finds no pleasure in him when he proves recreant to the high trust reposed in him, for, in the language of one of its oracles (Sergeant Hawkins), ‘If a judge will so far forget the honor and dignity of his post as to turn solicitor in a, cause which he is to judge, and privately and extra-judicially tamper with witnesses, or labor jurors, he hath no reason to complain if he be dealt with according to the capacity to which he so basely degrades himself.’ ”
*460In repudiating the doctrine, the Illinois court said: “If a judge be libeled by the public press, he and his assailant should be placed on equal grounds, and their common arbiter should be a jury of the country.” And, again, in People v. Storey, supra, the court said: “The theory of government (British) requiring royalty to* be invested with an-imaginary perfection which forbids question or discussion is diametrically opposed to our theory of popular government, in which the utmost latitude and freedom of discussion of business affecting the public and the conduct of those who fill positions of public trust, that is consistent with truth and decency, is not only allowable but essential to the public welfare.”
This doctrine does not thrive in Pennsylvania; for we find the supreme court of that state asserting, in Ex parte Steinman, supra, “We need not say that the case is altered, and that it is now the right and duty of a lawyer to bring to the notice of the people who elect the judges every instance of what he believes to be corruption or partisanship.”
Judge Thompson was not seduced by the pleasing doctrine; for he says: “It is, moreover, to be observed that in states where, as in Colorado, the people elect their judges, it is in accordance with the spirit of our institutions that the newspaper press should possess the same right to criticise the conduct of the judges which they possess to criticise the conduct of any other official. ”
Nor was the editor of the Central Law Journal led astray; he observes: “The judiciary are but men, and therefore as open to corrupting influences as those in control of any other of the co-ordinate branches of the government, and like them)1 need the deterring influence of free public criticism.”
And in Wisconsin — Wisconsin, upon which we so implicitly rely for our assertion of the high pre*461rogative power, and whose judgments we so- often misconstrue — does, not relish the doctrine; for its judges say, In re Ashbaugh, supra: “Under such a rule the merits of a sitting judge may be rehearsed, but as to his demerits there must he profound silence. In our judgment no such divinity ‘doth hedge about a judge’; certainly not when he is a candidate for public office.”
Justice Brewer, when judge of the supreme court of Kansas, denounced the doctrine; for he said, In re Pryor, supra: “For no judge and no court, high or low, is beyond the reach of public and individual criticism.”
With Wharton the doctrine does not find favor; for he affirms: “We can conceive not only of a weak judge who dreads intimidation, hut of .a corrupt judge who dreads exposure. To give a had and hold man of this class an engine so potent as this, is to take away one of the few means by which he can he exposed.”
The court made a mistake in instituting the proceeding ; a mistake in holding that an affidavit is not essential to its jurisdiction; a mistake in holding that the acts of the respondent constituted contempt. But infinitely greater than these was the mistake it made in holding the truth to be immaterial. For, aside from the fact that it denied to the respondent important constitutional rights, in the very nature of things, those who before believed the charges to he true are now confirmed in their belief, and those who did not believe them, now have their confidence in the court shaken solely because of the action of the court in refusing the respondent a hearing, and denying him the right to offer proof in support of the charges, and in holding that it is entirely immaterial whether the matter published is true or false.