dissenting:
Having been opposed in the first instance to issuing the rule to show cause, I am of opinion, after more mature reflection, that the rule should not be made absolute.
Whatever may be the true construction of the article set out in the information, the respondents have both denied, under oath, any purpose in its publication to obstruct or influ-, ence the administration of the law, or any intention to reflect upon the integrity of any member of the court; and this,'it seems to me, is all that they ought to be required to do. No public good can possibly result from pressing the matter further. Independently of the disclaimer on the part of the respondents, I am unable to perceive how the article in question could in any manner affect, hinder or obstruct the administration of the law in this court. The newspaper in which the paragraph was printed was published in a city distant from the one where the court is now holding its sessions, and it was not thrust upon the attention of the court by the respondents or anyone else. It is unlike the objectionable article in the case of Stuart v. The People, 3 Scam. 397, which was published in the city where an important trial was pending before a jury, and which, with some propriety, could be said to be a constructive contempt, committed in the presence of the court. If it is anything more than simply an unjust criticism on the court in reference to a cause then pending, the most unfavorable view that can be taken is that it is a constructive contempt, and as such it could not directly or indirectly affect the administration of justice in an appellate court. I should be very unwilling to admit that it could have any such effect. It seems to me that the majority of the court have attached an undue importance to a mere newspaper paragraph.
From an early period in the history of our jurisprudence, the power has been conceded to all courts of general jurisdiction to punish, in a summary manner, contempts committed in their presence. The right rests on the necessity that was found to exist to enable courts to administer the law without interruption or improper interference, and to maintain their own dignity. So indispensable is this power that its just exercise, so far as it may be necessary for the due protection of the courts, has never been questioned.
The legislature has provided that the Supreme and Circuit Courts may punish parties for contempts committed against them while sitting, and it is a very grave question whether it was not the intention, by implication at least, to limit the power of courts to punish for contempts to such as should be committed in their presence. I am not, however, unmindful that courts of the highest authority in this country and in England have assumed jurisdiction to punish, in a summary manner and on their own motion, what are termed constructive contempts—such an one as is sought to be set forth in the information filed.
The exercise of this extraordinary power by a court of final jurisdiction has ever been regarded as of questionable authority, and one liable to great abuse, and which might become dangerous to the liberty of the citizen. Its exercise by the courts in this country has been tolerated rather than conceded by constitutional provisions or legislative enactments. The objection -proceeds on the ground that the court ought not to assume to be the judge of the offence against itself, and of the mode and measure of redress, where the law has provided, and where in the very nature of things there can be no mode of reviewing the action of the court in the premises. There has always existed jealousy against the exercise of arbitrary power, by any tribunal, supposed to be derived from common law sources, and not expressly granted by constitutions or the laws enacted 'by legislative assemblies. It must be 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 can not abridge. Such criticism should always be just and with a view to promote the public, good. In case the conduct of any public officer is willfuly corrupt, no measure of condemnation can be too severe; but when the misconduct is simply an honest error of judgment, the condemnation ought to be mingled with charity.
The public have a profound interest in the .good name and famé 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 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 due 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 willfuly 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 commonwealth.
But who shall furnish the remedy ? Shall the court that is assailed, or shall the legislative power of the State? In my judgment, there are many and politic reasons why the legislative power alone should provide the remedy, if any shall be found to be necessary. It is far better that the judges of the courts should endure unjust criticism, and even slanderous accusations, than to interpose of their own motion to redress the offence against themselves, where the offence complained of is not committed in their immediate presence. It is a matter of public history that it has been the policy of the press in this country to uphold and maintain the authority and dignity of the courts. If a contrary policy should ever be inaugurated in this State, to such an extent as to seriously affect the reputation or impair the efficiency of the courts in the administration of the law, I have no doubt that the legislature will afford an appropriate remedy. It was said bythis court, in the case of Stuart v. The People, supra, that respect to courts can not be compelled; it is the voluntary tribute, of the public to worth, virtue and intelligence,- and while they are found on the judgment seat, so long and no longer will they retain the public confidence.