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nor is there any thing of more pernicious consequence, than to prejudice the minds of the public, against persons concerned as parties in causes, before the cause is finally heard. That it had always been his opinion, as well as that of his predecessors, that such a proceeding should be discountenanced. But that, notwithstanding it should be a libel, yet, unless it was a contempt of the court, he had no cognizance of it; for, whether it was a libel against the public, or private persons, the only method was to proceed at law. That, upon the whole, there was no doubt this was a contempt of court.' See 20 Atk. 469. 2 Ves. 520.

With regard to the courts of the United States, the law concerning contempts of court is declared, by Stat. 1831, ch. 98.

In the first section it is provided,

That the power of the several courts of the United States. to issue attachments and inflict summary punishments for contempts of court, shall not be construed to extend to any cases, except the misbehaviour of any person or persons in the presence of the said courts, or so near thereto as to obstruct the administration of justice, the misbehaviour of any of the officers of the said courts in their official transactions, and the disobedience or resistance by any officer of the said courts, party, juror, witness, or any other person or persons, to any lawful writ, process, order, rule, decree, or command of the said courts.

The second and last section provides, 'that if any person or persons shall corruptly, or by threats or force, endeavor to influence, intimidate, or impede any juror, witness, or officer, in any court of the United States, in the discharge of his duty, or shall corruptly, or by threats or force, obstruct or impede, the due administration of justice therein, every person or persons, so offending, shall be liable to prosecution therefor, by indictment, and shall, on conviction thereof, be punished by fine not exceeding five hundred dollars, or by imprisonment not exceeding three months, or both, according to the nature and aggravation of the offence.

The power of punishing for contempts, as it is not denied to the lowest tribunals of justice, it would be absurd to suppose denied to a legislative assembly, when in session, whether

belonging to the government of a state, or to that of the United States. In the case of Yates v. Lansing, before the supreme court of errors, of the state of New York, it is observed by Platt, senator, that the right of punishing for contempts by summary conviction, is inherent in all courts of justice, and legislative assemblies, and is essential for their protection and existence. It is a branch of the common law adopted and sanctioned by our state constitution. The discretion involved in this power, is in a great measure arbitrary and undefinable; and yet the experience of ages has demonstrated, that it is perfectly compatible with civil liberty, and auxiliary to the purest ends of justice.' 9 Johns. 417.

It is obvious, that this power, to a certain extent, is absolutely necessary to the exercise of all those other powers, with which the people have seen fit to invest the deliberative assemblies of their state and general governments, and the proper discharge of the important trusts and duties, belonging to their respective offices; and so far, must be considered as incidentally conferred by the mere creation of those offices and the assignment of their duties. Every deliberative assembly acknowledged by law, while engaged in the discharge of its public functions, must therefore be considered as tacitly invested with full authority, to take into custody any individual who should disturb their deliberations, by any act of violence, insult, or indecorum, offered in their actual or constructive presence, and keep him in confinement without bail or mainprise, until their meeting adjourns. To admit him to make explanations, by administering interrogatories, or to afford him an opportunity of making an apology, and to discharge him from imprisonment, upon any promises which he may make of good behaviour for the time to come, are merely indulgences which they may grant at their discretion, but are under no obligation to do so. For, they have a right to take effectual measures to prevent interruption, and this can be done in no other way than by imprisoning the person of the offender. It is true, they may, if they see fit, direct their officer in attendance to carry him before a suitable magistrate on a complaint for a disturbance of the peace, and compel him to find bonds for his good behavior; but this remedy they have in common with private citizens, and is wholly collateral to the

exercise of their own authority. Whether the legislature have an authority to fine for a contempt, does not seem settled, but there is not the same necessity for it, because they may secure their deliberations from disturbance without it, by keeping the offender in custody. If the legislature should adjourn without day, leaving a prisoner in custody, it would seem that he would immediately be entitled to his liberty, because his confinement would no longer be necessary. But, if the legislature have a right to fine and imprison for a contempt, in the same manner as a court of record, then they may imprison for a longer time than that of their own session. The distinction lies here, that where the legislature order an individual into custody for a contempt, it inay be done, either as a mere measure to secure themselves from interruption, or, as a punishment inflicted on the offender for his contempt. In the former case, it is not necessary that there should be a formal judgment or decree, that the offender be imprisoned a certain number of days; but, in the latter case, if there is any judgment of imprisonment, the duration of it must be ascertained; for the law will not permit an indefinite judgment. If the prisoner is fined, the amount of the fine must be ascertained in like manner, and for the same reason; if left uncertain, it would be merely void; or, the payment of the smallest sum imaginable would discharge it. This leads to the final reason, why a prisoner left in custody by the legislature at the end of their session, for a contempt, without any limitation of the duration of his confinement, must be discharged; i. e. because the imprisonment ceases to be lawful, as soon as the authority which imposes it, is determined.

As it is considered of great consequence in a free government, that the legislative and judicial powers should, as little as possible, be exercised by the same hands; and as generally there seems to be no reason, why the legislature should have a power to punish for contempts, except that it does not seem consistent with their dignity, that they should be obliged to call on the judicial department for protection, it would seem no more than reasonable, that their power in this respect, should be limited by the necessity to which it owes its origin. Consequently, there seems to be no sufficient reason, why the legislature should ever pass a judgment of fine or imprisonment on an

individual for a contempt. To pass such a judgment, is in the first place, to make a certain act a contempt; which, being done by a vote of the house, is an act of legislation, and such a law being passed after the commission of the act, seems liable to the exception of being ex post facto, and consequently unconstitutional. In the second place, the passing of such judgment is a judicial act of course. The legislature, therefore, so far becomes a court; and the jurisdiction not being defined either by the common law, or by the general, or any of the state constitutions, is discretionary, and may become arbitrary and tyrannical. It is very clear that the legislature have no authority to enact laws, which is not given either expressly or by necessary implication, in the constitution, whence the legislature derives its own existence. Yet a law, though enacted by usurped power, would have one advantage over an arbitrary decree, made for a particular occasion. The former would be certain, and might be known, and the people would be on their guard; but against a decree, grounded on the discretion or will of the house, as shown on a particular occasion, it is impossible that the people should be on their guard. These considerations are sufficient to show, that the legislature have no unlimited power, either to determine the extent of their own privileges by ex post facto laws, or decide from time to time as the case occurs, what shall, and what shall not be considered a contempt. Within their constitutional limits, without doubt, they may enact what laws they judge expedient in relation to both subjects. But, when a case occurs, offenders must be tried by the laws as they existed at the time of the act committed, and if by law it was not a contempt at that time, the legislature cannot, by any decree made afterwards in relation to it, constitute such act a contempt.

An imaginary, though not improbable case, may serve for illustration. Let it be supposed then, that the legislature of a state sit with closed doors, with the view of keeping their deliberations from the public, but the secret is suffered to leak out and is published in a certain newspaper. Suppose the legislature then send for the editor, and require of him to take an oath to answer interrogatories truly in relation to the subject of such publication, &c. and the editor refuses to take

the oath, and the legislature commit him for the contempt, or fine him; is there any thing to be said to justify their proceedings? Certainly, nothing at all. For, unless some provision is made in the constitution, whence the legislature derives its authority, or, unless the legislature have previously passed some law making provision in such cases, it will be difficult to show, that the legislature have any power whatever to compel the attendance of any individual, who does not belong to their body, except as a witness on an impeachment. Where the legislature appoint a committee with authority to send for persons and papers, if the constitution and laws are both silent on the subject, it is merely the respect which a good citizen owes his rulers, which induces him to attend their summons, and not any implied authority over him in this respect. For, except in their capacity, as legislators, the legislative assembly have no higher authority than any other assembly of individuals of equal respectability.

When therefore the editor in the case put, is sent for by the house, unless he is summoned in writing, and a sufficient legal cause for his attendance is assigned in his notification, he is under no legal obligation to attend. If he should refuse to attend, therefore, and should be taken into custody, it would be a case of false imprisonment, for which he might have redress against the officer who attached him, and if he were imprisoned for the contempt and disobedience to the legislature, in such case he would be entitled to his release on a habeas corpus before a competent tribunal. For, a citizen can never be adjudged guilty and punished, for a peaceable assertion of his rights. But, on the supposition that he submitted to the order of the legislature so far as to attend, and he was then required to answer interrogatories under oath; if he declined to take the oath, this of itself could be no contempt, unless an impeachment was then actually pending, and he was summoned to give testimony, or unless the legislature has a legal authority to resolve itself into a court of inquisition. For, it will hardly be pretended that, if the legislature should see fit to sit as a court, that they have authority to act in an arbitrary manner, and differently from all the regular tribunals of justice. If, however, the legislature should assume to themselves such a capa

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