delivered the opinion of the Court:
The record in this cause shows a proceeding instituted by the Cook Circuit Court, against tire plaintiff in error, as editor and publisher of the Chicago Daily American, for an alleged contempt, in publishing an article in that paper, supposed to reflect upon the Court and jury, whilst engaged in trying a case of murder pending therein, at the May term, 1840.
The proceedings were commenced in the usual way, by a rule upon the plaintiff in error to show cause, &c., and interrogatories duly propounded, which were answered, and he adjudged to pay a fine of $100, and the costs.
Various errors are assigned, which need not be noticed in the order in which they are presented, it being considered sufficient to state briefly the general conclusions to which the Court has arrived upon the whole case. '
There seems to be but two important questions presented for decision here, and the first is, does a writ of error lie in such case ?
By the act regulating the Supreme and Circuit Courts, (1) this Court has final and conclusive jurisdiction of all matters of appeal, error, or complaints, from the judgments or decrees of any of the Circuit Courts of this State, and from such inferior courts as may hereafter be established by law, in all matters of law and equity,wherein the rules of law or principles of equity appear from the files, records, or exhibits of any such court, to have been erroneously adjudged and determined; and this Court is authorized and enabled to take cognisance of all such causes as shall be brought before it, in manner aforesaid.
A construction has been given to this provision of the statute, by this Court, in the case of Sloo v. The State Bank, (1) where it is said, that whenever a decision takes place in any of the Circuit or inferior courts of record in this State, which is final, and of which a record can be made, and which decides the right of property, or personal liberty, complete jurisdiction is conferred on the Supreme Court to hear and determine the same.
And in the case of Wells v. Hogan, (2) this Court has said, that no particular form is required to render an order of the Circuit Court a judgment. It is sufficient if it is final, and the party against whom it may be entered up, subjected to injury thereby.
This statute, and these decisions upon it, would seem to be sufficiently comprehensive to embrace every case where a final order has been made by the Circuit Court, the effect of which may be to deprive a party of any of his rights.
The decision of the Cook Circuit Court, although it does not adjudge the plaintiff in error to be guilty of a contempt, is nevertheless a final order on the merits of a case then before it, and a fine was inflicted, subjecting his property to its payment, or in default thereof, to a deprivation of his liberty, by confinement in jai!.
Perilous, indeed, would be the condition of the citizen, if he had not the privilege, in such a case, to have it reviewed by another tribunal, and defective would be our jurisprudence, if it afforded no means of relief.
It is declared by our statute, (3) in conformity with the common law principle, that, in all criminal cases not capital, the writ of error is a writ of right, and must issue of course. This proceeding for a contempt is in the nature of a criminal proceeding, and has been so adjudged in the case of Clark v. The People. (4) This case is relied on by the Attorney General, as authority for the position he maintains, that this Court possesses no power of review in eases of contempt. I do not think that case decisive of this, for the reason, that there the contempt was committed in the presence of a justice of the peace, whilst trying a cause, and the statute gave him power to fine for contempts, in a sum not exceeding five dollars, in such a case, and he had not exceeded his jurisdiction, as the record shows. Besides, no law of the State allowed an appeal in such a case, partaking of a criminal nature, and it was properly dismissed.
The General Court of Virginia, in the case of Stokely v. The Commonwealth, (1) held, that it had jurisdiction in a case of fine imposed by an inferior court, for a contempt, and reversed the sentence of such court, on the ground that the party had not been guilty of a contempt. And in Kentucky, in the case of Brickley v. The Commonwealth, (2) the appellate court there said it would correct an erroneous sentence, though it could not re-try the question of contempt. It would have jurisdiction to entertain the writ of error, but would not enquire into the subject matter of the contempt charged.
So, in the case of Kearney ex parte, (3) the Supreme Court of the United States said it would not grant a habeas corpus, where a party has been committed for a contempt by a court having competent jurisdiction ; and, if granted, it would not enquire into the sufficiency of the cause of commitment. The inference is, that where there was an absence of jurisdiction in the inferior court, as to the subject matter of the contempt, it would enquire and discharge a party.
Upon the authority of this case, which is relied on by the Attorney General, we are justified in concluding, if the Cook Circuit Court had no jurisdiction, the judgment should be reversed. Had it this jurisdiction ?
Contempts are either direct, such as are offered to the Court while sitting as such, and in its presence, or constructive, being offered, not in its presence, but tending, by their operation, to obstruct and embarrass, or prevent, the due administration of justice. 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 improvement 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.
Our Constitution has 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 contempt, in this case, was by a printer of a newspaper, remarking on the conduct of an individual juror, who, whilst he was engaged in the trial of a capital case, and whilst separated from the public, and in charge of the officer of the Court, was furnishing articles for daily publication in a rival newspaper; and in admitting a communication from a correspondent, calculated to irritate the presiding judge of the Court, though not reflecting upon his integrity, or in any way impeaching his conduct. The paragraphs and communication published had no tendency to obstruct the administration of justice, nor were they thrust upon the notice of the Court, by any act of the plaintiff in error.
The right to punish for contempts committed in the presence of the Court is acknowledged by our statute ; (1) 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 contempts. 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 by 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 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. 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 has received an injury, ample remuneration will be made.
In restricting the power to punish for contempts, 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.
The whole case being presented to this Court, in the same form -and manner in which it was presented before the Circuit Court, we are satisfied that no contempt was committed, of which that Court •could take jurisdiction, and accordingly reverse the judgment.
Douglass, Justice, dissented, and Catón, Justice, not having heard the argument, gave no opinion.
Judgment reversed.
Gale’s Stat. 168.
1 Scam. 440.
Breese 264.
Grim. Code $ 189.
Breese 266.
1 Virg. Cases 330.
1 J. J. Marsh. 575.
7 Wheat. 88.
Gale's Stat. 173.