also concurring:
A return has been made to the rule issued in this case, in which the respondents acknowledge the publication of the article, in the .Chicago Evening Journal, and insist upon the right, through their paper, to examine the proceedings of every department of the government of the State, and that they are not responsible for such publications, nor answerable to the summary process of attachment for contempt, unless the publications impede, embarrass, or obstruct the administration of justice. It is also urged the.publication had no such tendency.
The cause pending in the court, when the obnoxious publication was made, was Rafferty v. The People. Rafferty had been found guilty of murder, in the court below, and sentenced to be hanged. As was his right, according to the constitution and laws of the land, he demanded of this- Court a calm and dispassionate examination of the facts and questions presented in the record, and insisted that the law had been violated in his trial and conviction.
The life of a fellow man awaited bur decision. The result, to him, was fearful; grave responsibility rested upon the court and the counsel, and solemn deliberation was required.
Under such circumstances, the publication was made, and while the court was in session. It refers to the court, and the case pending in it;—intimates that the court had blandly assured the public that there should be a speedy examination; asserts that time had sped away, and no information had been given- that any thing definite had been done;—that the prisoner’s counsel was studying the policy of delay, with success; that the sum of fourteen hundred dollars, contributed to demonstrate that “ hanging is played out,” is operating splendidly ;—that the prisoner will be granted a new trial, and finally pardoned, in spite of the virtuous indignation of the public, “ because the sum of fourteen hundred dollars is enough nowadays to enable a man tó purchase immunity from the consequences of any crime” and then charges that “ the courts are now completely in the control of corrupt and mercenary shysters—the jackals of the legal profession—who feast and fatten on human blood spilled by the hands of other men.” The slight allusion to the action of the legislature can not relieve the gross attack upon the court and its officers. The case referred to in. the publication has been reversed by an unanimous court, for manifest error in denying the accused a change of venue, and thus, it may be, depriving him of an impartial trial, vouchsafed to him by the constitution and the laws.
Was the publication a contempt of court? Or can there be none, except for disobedience of its orders or process, or disorderly or contemptuous behaviour in its presence ?
The law, as it is written, must answer. In 2 Hawkins, 220, contempts are classified, as contempts in the face of the court, and contemptuous words or writings concerning the court. Again, they are termed ordinary or extraordinary. The latter consists of abusive and scandalous words respecting the court. Bouvier’s Inst. vol. 4, 385. According to Blackstone, book 4, 285, they may be committed either in the face of the court, or “by speaking or writing contemptuously of the court or judges acting in their judicial capacity.”
This court has defined them to be, direct, such as are offered in the presence of the court, while sitting judicially, or constructive, such, though not in its presence, as tend by their operation to obstruct and embarrass or prevent the due administration of justice. Stuart v. The People, 3 Scam. 395.
Bishop thus defines constructive contempts : “ According to the general doctrine, any publication, whether by parties or strangers, which concerns .a cause pending in court, and has a tendency to prejudice the public concerning its merits, and to corrupt the administration of justice, or reflects on the tribunal or its proceeding, or on the parties, the jurors or the counsel, may be visited as a contempt.” Vol. 2, sec. 26.
In this State the constitution has established the judiciary, and made it a co-ordinate department of the State government. A necessary incident to its establishment is the power to punish for contempts.
This court held, in an early case, that the power to punish for contempts was an incident to all courts of justice, independent of statutory provisions. Clark v. The People, Breese, 340. Courts in other States have also announced the doctrine that this power is inherent in all courts of justice—necessary for self protection, and an essential auxiliary to the pure administration of the law. United States v. New Bedford Bridge, 1 Woodbury & Minot, 407; State v. Johnson, 1 Brevard, 155; Yates v. Lansing, 9 Johns. 416; Cassart v. The State, 4 Ark. 541; Neil v. The State, 4 Eng. (Ark.) 263; United States v. Hudson, 7 Cranch, 32. The statute likewise approves the exercise of the power, when it provides that the supreme court “shall have power to punish contempts offered by any person to it while sitting.” This provision was in force July 1st, 1829, and ivas the law when the decision in the case of Stuart v. The People, supra, was rendered. The court then declared that the statute “ affirms a principle inherent in a court of justice, to defend itself when attacked, as the individual man has a right to do for his own preservation.” The statute merely affirms a pre-existent power, and does not attempt to restrict its exercise to contempts in the presence of the court; but leaves them to be determined by the principles of the common law.
Without the power courts could not fulfill their responsible duties for the good of the public. They would lose all self respect, and would not perform the duty they owe to the State, if they failed to struggle for their .independence and defend their life.
No one doubts either the right or duty of a court to punish, as contempts, rude and contumelious behaviour, breaches of the peace, or any willful disturbance in its presence.-
Whence the necessity for the exercise of the power ? It is that the law may be administered fairly and impartially) uninterrupted by any influence which might affect the safety of the parties, or the'judge or officers of the court,—that the court may have that regard and respect so essential to make the law itself respected,—and that the streams of justice may be kept clear and pure.
If the court is scandalized and its integrity impeached, while a cause is pending before it,—if the counsel are grossly libelled, and low and obscene terms are applied to them, which may have the effect to intimidate, the consequences must be the same as if direct contempts are offered. The administration of the law is embarrassed and impeded, the passions, often unconsciously, are roused, the rights of parties are endangered, and a ca,lm ‘ and dispassionate discussion and investigation of causes are prevented.
The authority to .punish for constructive contempts has been recognized by numerous courts, in England and America. I shall merely cite a few of these cases. Respublica v. Passmore, 3 Yeates, 441; Oswold’s Case, 1 Dallas, 319 ; People v. Freer, 1 Caines R. 515; Tenney’s Case, 3 Foster (N. H.) 162; Hollingsworth v. Duane, Wallace C. C. U. S. 77; United States v. Duane, id. 102.
In Tenney’s Case, the respondent was interested in a suit brought by his son against one of the defendants in a bill of equity, in which suit the soil was unsuccessful, but he was not a party to and had no interest in the suit in equity, and while the bill was pending he caused- copies thereof to be printed and circulated extensively. The bill contained serious charges, and the respondent also said that he could stop the-proceedings in equity if one thousand dollars were paid to him.
The conduct and language were out of the presence of the court,- and it was held to be a contempt, and calculated to disturb the free course of justice. In conclusion, the court said :
“ The circulation of such charges, in- the absence of proof, by a person unconnected with the questions to be tried, was dishonorable and vindictive in the highest degree, and an unwarrantable interference with the administration of justice.”
In Respublica v. Passmore, supra, the defendant affixed a-writing to a board in the. exchange room in the city tavern, reflecting upon the parties ro the suit, and the court held that the publication of such a paper prejudiced the public mind in a cause depending in court, and was a contempt.
In Oswold’s Case, the publication in a newspaper, of wanton aspersions upon the character of the opposite party, was ruled to be a contempt, and Chief Justice McKean said, that without the power .to punish for contempts no court could possibly exist.—“ Kay, that no contempt could, indeed, be committed against us, we should be so truly contemptible.”
In the ease of The People v. Freer, supra, a publication was made in a newspaper in regard to a cause under investigation, and was intended to prejudice the public mind- against the court, and to intimidate it in its decision on the motion for a new trial in the case of The People v. Croswell. Kent, J. afterwards Chancellor, delivered the opinion of the court, and said that publications scandalizing the courts, or intending, unduly, to influence or overawe their deliberations, were con-tempts, which should be punished by attachment; and that it was essential to their dignity of character, their utility and independence, that they should possess and exercise such authority. • *
In United States v. Duane, there was a publication in a newspaper, pending the cause, reflecting upon the court and jury. The court held that it was a contempt, which had a tendency to deter counsel and intimidate the court, if they were susceptible of intimidation.
In The State v. Morrill, 16 Arkansas, 384, a publication was made in a newspaper, while the court was in session, which, in the language of the court, seemed “ to intimate, by implication, that the court was induced by bribery to make the decision referred to.” It was regarded as a contempt, and-an imputation upon the purity of the motives of the members of the court while acting officially in a particular case.
In determining the sufficiency of a plea to the jurisdiction of the court, Chief. Justice English delivered an able opinion, and held that the right to punish for contempts was inherent in all courts of justice—a part of their life and a necessary incident to the exercise of judicial powers—that the section in the Bill of Bights, that “ every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty,” gave the right to any citizen to' publish the proceedings and decisions of courts, to comment upon them freely, discuss their correctness, the fitness or unfitness of the judges, and the fidelity with which they perform their public trusts; but not by defamatory publications, to degrade the tribunal, destroy public confidence in it, and thus dispose the community to set at naught its judgments and decrees.
In the class of constructive contempts, this court has said, “ 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.” Stuart v. The People, supra.
The power is arbitrary, and should be exercised with prudence and moderation, and only in extreme cases. Indeed, all power is arbitrary; but this furnishes no reason why the silent power of a court should not be awakened to restrain wrong, and to check the attempt to destroy all respect for the law by calumniation of its officers, who are the channels by which justice is conveyed to the people.
What is the nature and character of the publication, and what is its tendency and effect ?
This court is charged, impliedly, if not directly, with bribery. If such was not the intent, words are useless to convey an intent. This court, and the cause pending therein, are mentioned, and a new trial predicted, not because the law demands it, but because immunity from crime can be' purchased.
It is said that the money had been contributed. This court, at the time, had the control of the cause, and the power to condemn or acquit; and the charge is that it is so corrupt and debased, that it will sell justice for a paltry sum, violate a solemn oath, and release a murderer in willful disregard of the law.
The legislature is then threatened with bitter censure, unless it provides the most summary procedure in trials for murder, and immediate hanging upon conviction.
Wherefore this public outcry against the criminal law? The answer is given, because the courts are now completely in the control of corrupt members of the legal profession. This is defamatory of the court, as well as the profession, and particularly so of the counsel for the accused, an officer of this court of pure character and high standing.
• Can it be possible that a court has power to punish at discretion, and in ,a summary mode, by fine and imprisonment, slight and trivial offences in its presence, merely temporary in their effects, an undulation of the quiet surface, and can not punish for calumny, and defamation and impeachment of its integrity, which tend to embarrass its action, destroy its independence, rob it of its good name, intimidate it, if timidity is an element in its constitution, and eventually to degrade it?
Has it no'power to protect counsel from the effect of publications, which are calculated to deter them from a bold and manly defence of suitors, for fear of the denunciation of the press ?
Ho man who values character more than, riches, and who has a consciousness of his own integrity, can aspire tó be a member of a court; no lawyer, imbued with the spirit of an honorable profession, and who appreciates his own manhood, will practice in a court when infamous and damning charges are published against them while a cause is pending,—and there is no power to stay the calumny and afford protection, by summary punishment.
The exercise of the-power to, punish for such publications, is not an abridgment of the freedom of the press. It can be no restraint upon the right to examine the proceedings of every branch of the government.
It is no restriction upon the privilege, secured to every citizen in the Bill of Bights, that “ every person may freely speak, write and publish, on all ..subjects, being responsible for the abuse of that liberty.”
These rights have well defined limits. They are correlative, and must respect other rights. They are not independent of all control. Even liberty is not unlicensed, but is regulated by law- The press can be free, in the broadest sense of the term, without blackening character or having a license to defame. Every man may freely speak and write without indulgence in slander or libel. Every branch of the government may be freely examined without false accusation, and unjust charges of crime against those who hold positions of trust. The truth 'is never to be feared, and may always be spoken and written; but the utterance of willful and deliberate falsehood, disguise it as you may with good intentions, is dangerous and cowardly, and deserves punishment and reprobation. It is an abuse of the rights guaranteed by the constitution.
This court has not the power, nor the desire to arrogate it, to direct or control the press, in its legitimate sphere. Freedom of speech, and of the press, should be most jealously guarded. The utmost latitude should be allowed for fair, full and free review of the entire action of the courts. Just criticism may assail the opinions, expose their fallacy, and warn of their errors. The opinions of courts are not solemn edicts, to be blindly assented to, but are subject to calm and fearless stricture. The good taste and severity of the language,—the weapons to be employed,—whether reason or ridicule, must be determined by the writer. In popular governments, neither the public action nor official opinion of persons, in positions of trust, can be exempt from condemnation by the press, or in the assemblages of the people. But there must be toleration, for “ error of opinion should always be tolerated, when reason is left free to combat it.” This character of animadversion should never be regarded as a contempt of court.
The freedom of the press, however, is fully protected, without licensing libel and ribaldry, and charges of corruption and bribery, against courts and their officers. Whatever the intent may be, though it may mitigate the offence, it can not lesson the injury to character, or undo the mischief.
The right of the respondents must be conceded to examine the proceedings of every department of the government, not in passion and with abuse, but with fair and manly argument. Good will then result, error may be exposed, and reason will resume its sway. Then thfe press will be a power and a blessing, and will exercise its constitutional right.
The publication under consideration is not criticism. Its tendency is to embarrass the court. It charges crime, when none exists. It is scandalous, abusive, passionate, in tone and spirit. It impugns the integrity of this court, and classes the counsel of the accused amongst the most degraded of the profession. Its false charges of crime are calculated to disturb the mind of the pure man, and unfit him for the discharge of arduous and responsible duties. Abuse can never convince. Passion must rouse passion.
The tendency must be to impair the usefulness of this court, deprive it of respect, obstruct it in the due administration of the law, and if silently submitted to, so debase.it as to present it a spectacle, beneath even contempt.
I concur in the issuance of the attachment.