
    Ex parte Walter Hickey.
    Any one of the judges of the high court of errors and appeals, or all of them, as individuals, have full jurisdiction over the writ of habeas corpus; but they have not power as a court, to act thereon, in the first resort.
    So much of the common law as is strictly in accordance with the constitution of the state, upon the adoption of that constitution, and before the enactment of any statutory law, became a portion of the law of the state.
    The power to punish by fine and imprisonment, for consequential or constructive contempt, such as a newspaper publication, reflecting upon the courts, is at war with the constitution of this state.
    The statute of this state, (How. & Hutch.*436,) prescribing the mode of punishing contempts, limits the power of the courts to the punishment of contempt of the character defined in the statute, and in the mode, and to the extent established by the statute.
    A newspaper article, published during the session of a court, pending the trial before that court of a prisoner indicted for murder, charging the judge presiding over the court with being an abettor of the murderer, is not a contempt of the court, but a mere libel upon the functionary.
    The governor of this state has power, under the constitution of the States, conferring upon him “power to grant reprieves and pardons, and to remit fines in all criminal and penal eases, except in those of treason and impeachmeut,” to pardon a contempt committed against a circuit court, and to release and remit the sentence of fine and imprisonment, inflicted upon the offender.
    On the 10th day of June, 1844, while the circuit court of Warren county was in session, in which an indictment was pending against Daniel W. Adams,' Esq. for the killing of Dr. James Hagan, the following article appeared as editorial in 
      “ The Vicksburg Sentinel,” a newspaper published daily in the city of Vicksburg, in that county :
    
      “ Judge Coalter and the murderer of Hagan. — We have information, from the most undoubted authority, that immediately after the grand jury of Warren county brought in a true bill against Adams, for murder in the. first degree, for killing Dr. James Hagan, District Attorney Walker, obedient to his sworn and solemn duty, twice demanded of Judge Coalter, that Adams, should be committed to prison, both of which demands the judge disregarded, and Adams is still at large. Having disregarded his oath of office, and failed to execute the laws, Judge Coalter deserves to be hurled from a seat he desecrates, and brought as a criminal abettor of murder to the bar, to answer for his crimes. The oldest and most influential lawyers in Vicksburg, are filled with profound astonishment at such a proceeding. If Judge Coajtér- cannot be made to execute the laws in this case, the governor of the state should offer a reward for the apprehension in some jail for safe keeping of the man, against, whom, a, bill for murder in the first degree has been found by a grand jury, and immediate steps should be taken, in accordance with the laws, to impeach Judge Coalter.”'
    On Tuesday, the 18th day of June, 1844, the Warren circuit eourt being still in session, the following- order was made on the minutes of the court, namely :
    “ It appearing to the satisfaction of the court, that Walter Hickey, and John Lavins, late of Vicksburg, on a former day of the present term of the circuit court, now in session, were guilty of a contempt of this court; and' it further appearing to the satisfaction of the court, that said Walter Hickey has removed himself to the county of Hinds, in the state of Mississippi; whereupon it is ordered by the court that an attachment issue, and directed to the sheriff of Hinds county, commanding him to attach the body of the said Walter Hickey, immediately, and bring him forthwith before this, court, to answer for said contempt as said court may direct.”
    
      This attachment issued and was served; and on the 11th day of November, 1844, Walter Hickey, the defendant, was brought into the circuit court of Warren county; whereupon the following written interrogatories were propounded to him by C. G. Walker, district attorney, namely :
    Interrogatory 1. Were you or not the editor of a certain newspaper, called the Vicksburg Sentinel, published in the city of Vicksburg, on the 10th day of June, A. D. 18441 and 2d, if yea, was a certain publication, appearing in said paper, headed 11 Judge Coalter and the murderer of Hagan,” written by you, and published with your knowledge and consent, in the said Vicksburg Sentinel 1”
    To these interrogatories, Hickey answered, “ That he was editor of the Vicksburg Sentinel on the 10th day of June, 1844; and that he wrote and had published the article headed ‘ Judge Coalter and the murderer of Hagan,’ ” and made no other reply.
    The circuit court adjudged the answer insufficient to discharge the attachment, and made the following order:
    “It is considered by the court, that said Walter Hickey, for said contempt, be committed to the jail of Warren county, for the term of five months from this date; that he pay to the state of Mississippi a fine of five hundred dollars, and the costs herein expended, and that he be detained in said jail until the fine and costs aforesaid be paid ; and it is ordered that the sheriff of this county do forthwith execute this judgment;” which was immediately done.
    The governor of the state, having been solicited by a number of citizens, on the next day granted a pardon to Hickey in these words, viz:
    Albert G. Brown, Governor of the State of Mississippi. To the Sheriff of Warren County, Greeting :
    
    Whereas it appears from a certified copy of certain proceedings had in the circuit court of the county of Warren in this state, to wit, on the 30th October, 1844, that Walter Hickey was by the order and sentence of the presiding judge of said Court, committed to jail for five months, and fin.ed in the sum of five hundred dollars, and directed to be detained in prison until said fine and costs be paid, for an alleged contempt of court; and whereas it appears from the proceedings aforesaid, that said contempt consisted in certain newspaper publications made by said Walter Hickey, on the 10th of June 1844, and not alleged to have been in any wise done or committed in the presence of said court, or in its hearing, and whereas, by the 26th section of the circuit court law of this state, page 486, (How. <fc Hutch. Digest,) “ the said court shall have power to- fine and imprison any person who may he guilty of a contempt of the court, while sitting either in the presence or hearing of such court, provided that such fine shall not exceed one hundí ed dollars, and no person for such contempt shall be imprisoned for a longer period than the term of the court at which the contempt shall have been committedAnd whereas it now appears that the said Walter Hickey has been committed for a longer period than the term of the court, fined in a greater sum than one hundred dollars for an offence not alleged to have been committed in the presence or hearing of said court, nor during the sitting of said court, and this at a term subsequent to. that at which the offence was said to have been committed ; and whereas there is, in this proceeding an exercise of judicial power over the liberty and property of the citizen, not, as I conceive, warranted by the constitution and laws of the land; and whereas a large number of citizens have appealed to me to interpose the executive clemency in this case; now, therefore, I, Albert G. Brown, Governor of the State of Mississippi, by virtue of the power in me vested, by the 10th section of the fifth article of the constitution, do grant to the said Walter Hickey, a full and free pardon, and do moreover direct the sheriff of Warren county forthwith to set him at liberty.
    Given under my hand, and attested by the great seal of the state, at the city of Jackson, November the 13th, 1844.
    A. G. Brown.
    [l. s.] By the Governor,
    Wiluam Hemingway, Secretary of State.
    
      Upon the reception of the pardon by the sheriff, who is ex officio jailer, he discharged Hickey from custody, and on the fourteenth day of November, in the year of our Lord one thousand eight hundred and forty-four, the circuit court made the following order: — “Whereas at a former day of the present term of this court, by the judgment of said court, Walter Hickey, for a certain contempt of court by him charged to have been committed, as editor of a certain newspaper called the Vicksburg Sentinel, was sentenced to be fined in the sum of five hundred dollars and costs, and also to be imprisoned for five months in the jail of Warren county, from the eleventh instant, and thereafter to remain in said jail until said finé and costs be paid, and it being now represented to the court by E. G. Walker, Esq. district attorney, that the said Walter Hickey has by some means escaped from said jail, and is now going at large in contempt of said order of said court; whereupon it is now ordered that a bench warrant be issued against said Walter Hickey, instan ter, whereby the sheriff of Warren county shall' be commanded forthwith to arrest and take into his custody, the said Walter Hickey, and to commit him without delay to the jail of said county of Warren, there to rethain as required by the former order of said court made on the 11th day of November, 1844, and that said sheriff without delay make return of said process, and how he may have executed the same.”
    Under this order the bench warrant was issued and Hickey again arrested and imprisoned.
    On the 15th day of November, 1844, a writ of habeas corpus ad subjiciendum was granted by the Hon. J. S. B. Thacher; upon, the petition of Hickey, setting forth that he was illegally and unjustly detained in the custody of the sheriff of Warren county, and praying to be released upon an examination of the causes of his commitment. This writ was returnable forthwith before Judge Thacher at the court room of the high court of errors and appeals at Jackson; and on the 16th of November, 1844, in obedience to the mandate of the writ, the sheriff of Warren county, E. B. Scarborough, Esq. had the body of Walter Hickey at the place named in the writ, and returned also the causes of the commitment as herein before set out.
    
      At the trial before Judge Thacher the proceedings in the circuit court, the newspaper publication and the pardon of the governor, and the deposition of E. G. Walker, Esq. were offered and read in evidence.
    Mr. Walker proved that at the May special term, 1844, of the Warren circuit court, the grand jury returned an indictment for murder, a true bill against Daniel W. Adams for the murder of James Hagan ; that immediately after the jury returned the indictment into court, he, as district attorney, moved for the arrest of Adams who was, as witness believed, at that time in the court room, though personally unknown to witness ; that in his motion for the arrest of Adams he did not call the name of Adams for the reason that the indictment was at the time in the hands of the judge (Coalter) of the court, and was the only indictment for murder returned at that term of the court; that he expected the order placing Adams in the custody of the sheriff would be made, but leaving the court room soon after, he did not return until the afternoon, when he ascertained of the clerk that no entry on the subject had been made; that he then went upon the bench and asked Judge Coalter in person, if he had not granted the order asked for; to which the judge responded that he had not; that Adams was upon bail, and such an order was not necessary; and that having discharged thus, what he conceived to be his duty, he said nothing further to the court upon the subject; that at that time Adams was under a recognizance entered into before the mayor of the city to appear before the Warren circuit court to answer a charge of manslaughter, as witness believed.
    This was all the evidence before the judge, upon the trial of the writ :
    
      Hutchinson for petitioners.
    It has been said, by the opposing counsel, that the transactions opened for consideration are to be regretted. It is true, when an event unexpected and inherently deplorable, as was the homicide of James Hagan, is presented; when a stricture upon judicial action, so bitter and indiscreet as to mark a deviation from the dispassionate course required of every public journal, has followed ; and when the censured functionary, overleaping the barriers of the constitution, has taken punishment and revenge into his own hand, we must say and feel, as of any human aggression, it is to be regretted. But since regret cannot repair inflicted wrong; and since the deliverance of the petitioners must be immediate and inevitable, we may rejoice at the opportunity afforded of giving-further illustration of our government, and of showing especially its efficiency in restraining each department within its prescribed sphere, and its policy in preserving inviolate the privileges of the press, and the personal freedom of the citizen. These great themes come directly into discussion, and the commonwealth may have ground of gratulation if the principles to be declared and applied in judgment shall be sound, safe, practical and comporting with the present enlightened and advancing age.
    The counsel has burdened his imagination and argument with the profound apprehension that, as the judiciary is the weakest branch of the government, if the licentiousness of the press and of speech shall not speedily and effectually be restrained, its independence and even existence must be subverted. He has explored modern history in quest of incidents condemnatory of the invention ascribed to Faust or the devil. Encountering the French revolution, his rhapsody became remarkably enkindled, and with an effort of tragic power, he gathered into one huge and frightful mass all the horrors and atrocities of that struggle, and branded upon it the liberty of the press and atheism 1 It is true it was much owing to the diffusion and vast increase of knowledge irradiating from a press, not utterly trammelled, that the oppressed millions of France received the first conception of equal rights; but it is equally certain that debased through centuries of political and ecclesiastical thraldom, they were unprepared to receive and at once to develop and sustain in its full purity and force the heaven-descended idea. I too may be allowed a passing historical recollection. It should not be forgotten that the immediate predecessor of the French monarch, whose head was brought to the block, in the midst of his court had been heard to boast that he had met with but one female in his kingdom who had repelled his overtures ! and yet a Massillon had, in the presence of royalty, denounced the immeasurable guilt of vicious examples by those in high stations. Such examples were fatally contagious : and at the outbreak of the revolution had impressed a moral leprosy upon the people, which the blood of that revolution did not entirely efface. Again it should be remembered that it was the obstinate refusals of the parliament, a judicial semblance of the French polity, to register venal, rapacious and oppressive royal decrees, that was one of the impulses to the revolution.
    Passing the special instances of the abuse of the press and of speech, on which the contracting climax of the counsel' has descended to the bowie-knife and pistol, may it not be asked, if in these United States, the judiciary has not maintained its legitimate influence and authority, notwithstanding the sweep of a free press, and the unrestrained exercise of speech? Nay, has it not received the most clear demarkation, the most enduring establishment, and the happiest consecration in the public mind and affection, from- those sources so much deprecated ? What, more than all other causes, originated our revolution ? Are we to forget Franklin’s Journal— the papers entitled Common Sense, Rights of Man, the Crisis, Letters to Howe' — and, not the least, the songs, composed, printed, and circulated, to be chanted by the patriot bands, whose naked, bleeding feet marked the march to liberty ? Were those, and the addresses and resolutions of the assemblies and congress, and the Letters of Washington, disseminated from the press, the causes of the evils of that contest? Did not the numbers of the Federalist contribute to the formation of the national constitution? In a word, can it be embraced in one conception, however comprehensive and sublime, the vast debt due to the press and unshackled popular inquiry and discussion, for the constitutional conservative systems unfolded in the western hemisphere, of which that compact is the archetype? How fleeting and contemptible the occasional aberrations of the press, in comparison ; and how utterly impotent the breath of calumny, the brawl of the agitator, or even the cabals of treason ?
    
      It is asked, with great emphasis, can the legislature interpose no check to the libertinism of the press and of speech ? I answer, in the language of the 5th, 6th, and 7th sections, and the conclusion of the'first article of the constitution, declaring the great rights excepted out of the general powers of government, and which are to remain forever inviolate, that such legislation would be flagrantly void. No one is to be molested for any opinion; and every citizen may freely speak, write, and publish his sentiments on all subjects, “being responsible for the abuse of that liberty.” And although he shall be responsible for such abuse, still, “ no law shall ever be passed to curtail or restrain the liberty of speech, or of the press.” I, therefore, in reply, ask for the legislative project to curtail or restrain that constitutional liberty? Who will have the temerity to attempt such a scheme? Is it to be supposed that, at this day — among Mississippians, as enlightened, as free, and perhaps as orderly, virtuous and happy as their cotemporaries of other states or nations — is it to be viewed as less flagrant for the judiciary to erect itself into a censorship over the press, or interpose discretionary fine and imprisonment, as gags upon the mouth? The citizen is to be responsible for any abuse of the liberty. If there were neither statute nor common law, defining and punishing, or redressing, as public or private wrongs,- libellous publications and oral calumnies — still, the person injured could have remedy, because, in the words of the constitution, the libeller or the calumniator, is “ responsible for the abuse.” Upon principles resting in the foundations of civil society, he, at least, could be properly cited and impleaded, and rendered responsible before a jury of his peers, for the private injury. Thus then it is, that the constitution, whilst it prohibits any censorship or gag, it does not give invitation to falsehood and detraction. On the contrary, it tacitly but plainly reposes a broad confidence and justified prescience, that, in the main, the rights secured will not be abusively exerted.
    To come to the specific objections to the discharge of the petitioners, it is urged that your honor, apart from the appellate court, of which you are a member, has no power to award and act on the writ of liberty; that the circuit court of Warren had general common law jurisdiction, including the power to impose fine and imprisonment; and that its sentence was a judicial definitive action that could alone be revised for error in the appellate tribunal. By the new constitution the high court “shall have no jurisdiction but what properly belongs to a court of errors and appeals.” Con. IY. 4. It may, therefore, be conceded that that court may not grant and act upon the writ of liberty; although this is a concession that could not properly be made, if, compatibly with the system of government declared by the constitution, there were no judicial officer invested with that indispensable power, According to the first constitution, the act of June II, 1822, (How. & Hutch. 662,) had been passed, and was in full operation at the adoption of the present compact. Its first section provided that the supreme, chancery, or circuit court, or any judge of either, in vacation, should have power to grant and act upon the writ. That statute is the existing law regulating (he writ and the proceedings upon it, save only so far as rendered inoperative by the constitutional limitation of the present supreme court, as the appellate tribunal. That court is as much the supreme tribunal as was the former; and it cannot be regarded as a specious assumption that your honoris one of the supreme judges; for it is so in every substantial sense. The language of the sections bestowing jurisdiction upon the superior court of chancery and circuit court, is not limitative or restrictive, although, in respect of the powers expressly allotted to either, the jurisdiction must be regarded as exclusive. No one can doubt but that the chancellor, or a circuit judge, when holding his court, can, as a court, in a proper case, award and decide upon the habeas corpus; or that he can do so in vacation. It is true that a circuit judge would, in this case, have felt inclined not to act, because it would have been to control an action of an officer of his own grade; but no such sentiment could deter the chancellor or the appellate judge; and the only question with either would be, is the power conferred ? But by the constitution itself, your honor is not restricted to appellate power; for the judges of all the courts are conservators of the peace. Con. IY. 22. The privilege of the writ of habeas corpus shall not be suspended, except in case of invasion, or insurrection. Con. I. 17. This last alone is sufficient. It is useless to cite authorities. What in Britain, if we must refer to her jurisprudence for the context of the fax use privilege of the writ — what, according to the current of decision and practice in our national and state courts, is couched in the clause 1 Is it not that the citizen shall, at all times, save in either extremity of the state excepted, have issued for his enlargement from illegal detention this writ — the great safeguard against oppression — and have it as of right from some court, or some judicial officer 1 Suppose, in this state, legislation were silent on the subject, would the constitutional clause be but an impotent mockery ? No; it would be an ample chart of power, and an imperious mandate to the judges — to the judge of appropriate grade — to bring up the imprisoned, with the cause of his incarceration, for fair and full inquiry. If in a despotism it be grievous to have a subject thus immured, it cannot be endured in a free state. Without, therefore, attempting to illustrate what should seem self-evident, it may be asserted that the constitution devolves upon the superior courts, and the judges of those courts, a separate branch of jurisdiction, in favor of the personal liberty of the citizen, totally distinct and irrespective of all the other distributions of judicial cognizance. Your honor should ever hesitate to exert a doubtful power to inflict penalties or privations; but not, were it doubtful, should there be hesitation when the object is to restore.
    The question, however, has been settled in the case of Mitchell, imprisoned on a charge of murder, who, in 1833, as believed, was brought before the appellate court, to be admitted to bail, when it was ruled, that, although that court would not interfere, yet, that each member of the court, as a judicial officer, had the power, and was bound to exert it. Ever since the chief justice and his associates have acted in accordance. Dunn’s case, before the chief justice, is of recent occurrence.
    But we are told the writ of error was our sole remedy. If the position of the counsel, that each judicial tribunal has inherently an unlimited discretion to impose fine and imprisonment for what it may conceive to be a contempt, can be maintained as sound American doctrine, then this dilemma obtrudes. It has been held in Britain that there is a commendable, proper, and necessary courtesy — sometimes called comity — to be observed among the courts of superior and subordinate jurisdiction, that an order, judgment, or decree, predicated upon discretion, should not be revised for error. I do not say the doctrine is sound, or that it can bear the test of scrutiny, or quadrate with the safety of a free people; but it has been recognized more than once on this side the Atlantic. It would follow, of course, that as the circuit court of Warren exerted only a discretionary power, the high court, through comity, or courtesy, would not entertain the writ of error sued out to revise it. Those re-echoes from the British bench sounded harshly in our way to the door of the appellate court! We do not say that court would have closed its door; but we saw inscribed in the compact of the commonwealth that the writ of liberty should not be suspended.
    The 9th section of the habeas corpus act of June 11, 1822, provides, that one imprisoned “under a lawful judgment founded on a conviction for a criminal offence,” shall not have the benefit of the writ. It is admitted that the offence, if one were committed, was a criminal offence; but it is very certain that neither Hickey nor Lavins was convicted. Had they jointly, or separately, been indicted, put before a jury, convicted, and sentenced of a criminal offence, however erroneously, however flagitiously, then, indeed, the arcanum of personal liberty, erected by the constitution, would have remained to them unopened. They would have been compelled to have shown error upon the record, or to have applied to executive interposition. I am speaking of the last committals. There was no indictment preferred, or found; no jury of traverse, and so no conviction. What preceded the last committal? A summary sentence of fine and imprisonment for an assumed contempt to the court, then the pardon of the executive ; and then, what was worse than a naked order of recommitment, an order untruly asserting an escape. The barrier of the statute did not intervene ; and in examining the next objection we shall find that the last action of the circuit court, as well as the first, was coram non judice.
    
    We come now to the important point. Was the editorial article in the Sentinel, of June 10, 1844, a contempt to the circuit court of Warren? Adverting to the facts shown by the transcripts and proof, an indictment in the circuit court, for the murder of James Hagan, had been returned by the grand jury as true; the finding had been mentioned to the court by the district attorney, once and again. The presiding judge, on the second intimation of the fact, remarked, in effect, that the prisoner was on recognizance. No order was given to the sheriff to commit the prisoner, and he was not confined. The editorial followed. The petitioners were successively brought into court for the contempt, and each, in succession, being put on interrogatories, admitted the publication, declared it had not been made in contempt of the court, but in their right as citizens to write and publish their sentiments, and refused to answer further. A fine of five hundred dollars, and imprisonment for five months, was the sentence on each. The matters of fact stated in the publication were as represented; it was the commentary on the omission of the court to direct the prisoner into custody, that raised the question of contempt. This we are bound to presume, since there was no falsehood in the article. Did the judge err in the omission? or did he conform to the law? Did the petitioners, unduly excited by the unexpected loss of their predecessor, and perhaps their friend, indulge in an inference unjustified by the facts, and incompatible with the charity, forbearance and moderation so much expected and required of a public journalist ? These were considerations that the judge ought properly to have entertained, dismissing personal resentment, provided the publication had been cognizable as a contempt. It plainly was not.
    In reference to the article, it was no'interruption to the administration of justice in the court; no indecorum, indecency* 
      or insult committed under the court’s eye; no disobedience to its order or process; no malversation in an officer directly responsible to it. If it had been utterly and basely false and calumnious, it was perpetrated at a distance from the court’s place of action, and could have had no possible influence upon its action. Its utmost effect could only have been to impair the reputation of the man invested with the judicial ermine; or to have produced an indignation against the libeller, admonitory to those inclined to utter similar assailment. There are two corrections; the constitution, that has no. weakness or passion, to which government and people must submit; and public opinion, sometimes fallible, but generally just; and woe to him who utters or publishes a falsehood concerning what occurred before the public eye in the temple in which the people will have justice openly, fairly, and speedily administered ! Had the article been unprovoked, intolerably abusive, and corruptly false, to what would it have amounted ? Toa libel, as a public offence, and to a grievous private wrong; in the prosecution of either of which the injured man could have had pecuniary recompense for himself, and reparation for the public; but in neither prosecution could he have been, the presiding minister of the-commonwealth’s majesty. How. & Hutch. 668; Con. I. 8.
    Then as to the British doctrine of contempts. I admire and love the Caucasian race, and cherish fraternal feelings for the people of Britain as a portion of that race. On account of our ancestry and the introduction of the common law as the basis of our jurisprudence — a great error- — we should explore that system, as it existed at the era of our emigration, when obliged to do so; but seeing the dominations under which the Britons now groan, we should have only a profound abhorrence for their present polity and juridical interpretations. But suppose it demonstrable that in Britain, at this day, a publication like that in question could be punished.as a contempt according to the absolute will of the offended judge. What more would it establish than that their boasted concessions at Runny mede had been covered up and confounded with modern maxims of despotism 1
    
      Nor ought we to receive with abject submission the opinions of any American judge or jurist, however eminent, that is plainly fashioned after transatlantic models, more than upon a careful, affectionate, and proud reference to our own constitutions. If we would have clear, just, and grand views of this portion of judicial power we need only consult the opinion of De Witt Clinton, in the case in which Yates was persecuted. 6 Johns. 495. Has. his reasoning- been met, or the principles he deduced been shaken or touched ? Whatever sentiments had been previously entertained on this side the Atlantic favorable to the propriety or necessity of the exertion of undefined judicial. authority, in cases of constructive contempt, no lawyer or judge of great eminence in- these States, has' da-red to avow or give sanction to the doctrine, since- the castigation it received from Clinton.
    How can the idea of such power be entertained for a moment in the view of the clauses in the declaration of rights concerning the freedom of the press, and of speech ? If there had been no legislation defining the judge’s power, in instances of contempt to him as a court, what room would there have been to justify such an enormous assumption?' Should it not have been seen that as no law could be passed, to curtail' or restrain the liberty of the press or of speech, no judicial sentence could! curtail or restrain it? Should it not have-been perceived* that,, if the publication were such an abuse of the liberty as to lessen, the sanctity of the judicial office, and offend the majesty of the people, it was punishable as a libel. Con.. I. 8, 10; How. & Hutch. 668, 669;
    But the statute had furnished the criterion and limits of the court’s aetion (Haw. & Hutch. 486; § 26)- and how could this be transcended? It is contended that it-, is an- inherent and. necessary power ; that it is an inherent attribute' of a court, o» a legislature, invested respectively with portions of the sovereignty of the state, to enforce’ obedience and respect;. and that the possession and exertion of that attribute is essential- to its existence, If the proposition, thus broadly asserted, be maintainable,. it involves the possession and exertion, of unlimited' power, utterly subversive of the constitutional barrier. A court, in the exertion of its legitimate authority, must be obeyed. To the end of obedience it is armed with final process, ministerial officers to execute it, and even the posse comitatus. Its jurisdiction is defined by the fundamental law and legislation in accordance; and since it was necessary it should have unmolested action the statute has invested it with a specific power to fine and imprison for any direct interruption to that action. All these are necessary, and in harmony with the freedom of the press, and of speech. The respect and veneration due to the tribunal must mainly depend upon the amenity, dignity, moderation, probity, and wisdom of the functionary. Respect and veneration for him cannot be commanded by a naked sentence of infliction ! The notion that it is necessary to the existence of the tribunal, that the officiating minister should be allowed to sit as censor over public sentiment, and punish what he may esteem a disrespectful commentary or remark concerning his action, without limit, is suited to a government, whose constitution and laws are to be found alone in the will or caprice of the governors. Yet it is insisted that this monstrous prerogative, notwithstanding the bill of rights, and the act fixing the quantum of fine and duration of imprisonment for a contempt in the presence or hearing of the court, is derived from the jurisprudence of Britain ! If so, it is a derivative that cannot be received here — an exotic that cannot germinate in this soil.
    I need not dwell on this branch of the question. The impeachment of Peck, for an abuse of judicial power, will afford much fuller and abler illustrations of the doctrine of constructive contempt than could be furnished hastily by the most accomplished American jurist. I speak of this from my recollections of it impressed when it occurred; for 1 have searched in vain for the report of it. The district judge of Missouri would doubtless have been convicted if Lawless had not been an attorney of the court, which, in the opinion of some of the senators, rendered the authority exerted by the judge somewhat less reprehensible. Here that trait of extenuation did not exist. He, the circuit judge, united in himself the prosecutor, the grand and traverse jury, and court, in a case that, in its worst possible aspect, could only have been a public wrong, indictable and prosecutable before a judge not involved, and so not interested. I may conclude this branch of the reply by assuming as shown, that the first sentences of committal were coram nonjudice. It is to be noted that on the result of Peck’s trial, the act of May 2, 3831, was passed by congress, defining and limiting the power of the federal judiciary. (4 Story’s Laws, 2256.) Our present constitution was adopted shortly afterward; and the marked language in the declaration of rights may possibly have been in a degree influenced by the lights afforded by that trial.
    Now in regard to the pardon under the 10th section of the fifth article of the constitution. It is contended that the publication treated as a contempt was not a public wrong, and so not a criminal offence subjected to the pardoning power, and cases have been read to show the traits of difference between a summary sentence for a contempt, and a regular conviction for a crime or misdemeanor. What if there were ten thousand such decisions ? Could they alter the inherent character of a contempt to a court? If an act be a contempt is it not interruptive of the public administration of justice? Blackstone treats of contempts as a class of public wrongs. He speaks of such wrongs as crimes or misdemeanors. If it was a contempt it was a misdemeanor, a criminal offence, within the pardoning power. If it was not, still the court treated it as a criminal matter, and the governor had power to release. It is objected, however, that if the executive have the rightful power to interfere in one case of contempt he has it in every case; so that the rightful exertion of this necessary power by the courts is liable to be defeated, and the court subverted by the executive. This at first seemed a plausible position ; but on a second thought it is nothing. Is it not as important to the commonwealth that high crimes and misdemeanors should be punished as a transient insult to the presiding judge ? And yet may not the governor set the murderer and atrocious offender at liberty ? It was necessary that the departments should in some respects have checks or countervailing authority. It was essential that the remitting and pardoning power should be somewhere vested ; and the constitutive law imparted it to the chief magistrate, as was usual in all limited civilized governments. It was so given not to be used indiscriminately, but only in extreme cases of injustice, hardship, or tyranny. It is therefore all-sufficient that the governor found a clear warrant in the political compact for his act, which public petitions, and above all, the public liberty demanded.
    Upon the last action of the circuit court it cannot surely be required to make a single remark. Indeed no observation could be indulged, even with the utmost forbearance, without a seeming cast of severity. If the first action of the court in imposing the fine and imprisonment was without jurisdiction and void, if it had not been even a wanton usurpation and oppression, the recommittal in defiance of the pardon would have been an outrage.
    In conclusion, it is an empty bugbear to fear detriment to the judicial authority by the rejection of this fearful power of constructive contempt. Let the judge, the legislator and the public functionary, whether state or national, remember that his ministry and action is for the common good ; and that it is essential to official fidelity, purity, and moderation, and the common safety, that his official course should be open to free, fair, courteous, and fearless investigation by speech, and in the press. If falsehood be asserted, or calumnious and indecent opprobrium used, if it be not instantly rebuked by public sentiment, there are left an open trial and a prosecution in the courts, before the proper juries, and a due and full course of law to repair the injury, and punish the offence. We cannot endure a judicial censorship of the press.
    
      J. 8. Yerger, contra.
   Mr. Justice Teacher

delivered the following opinion.:

This is an application for the discharge under the writ of habeas corpus ad subjiciendum,

The facts of the case are in brief as follows : —The petitioner, as editor of a public journal, called the Yicksburg Sentinel and Expositor, published an article in his paper reflecting upon the judicial conduct of the judge of the circuit court of Warren county, pending a capital trial. An attachment for contempt was issued against him, and upon interrogatories addressed and answered, the petitioner was, by the court, ordered to be imprisoned for the term of five months, fined five hundred dollars, and to remain in custody until the fine was paid. The petitioner then prayed the executive clemency, which was extended to him to the amount of both fine and imprisonment, by virtue of which he was discharged from custody by the sheriff of Warren county. Subsequently to this discharge, the circuit court of said county issued its bench warrant for the arrest of the petitioner, as an escaped prisoner, by virtue whereof, he is now arrested and detained. This writ is sued out by him for his liberty.

Upon the threshold of this investigation, counsel have suggested a doubt of the power of a single judge of the high court of errors and appeals to issue and act under this writ. To resolve this, we must ascertain what was the writ at common law, and what it is under the constitution, statutes and common law of this state. Personal liberty, by the laws of England, was considered a strictly natural right, and not to be abridged without sufficient cause, nor at the mere discretion of the magistrate, without the explicit permission of the laws. Magna charta declares that no freeman shall be taken or imprisoned, but by the lawful judgment of his equals, or by the law of the land. (Mag. Chart, c. 29.) When any person was restrained of his liberty, by order or decree of any illegal court, or by the command of the king’s majesty in person, or by warrant of the council board, or of any of the privy council, he was entitled, on demand, to the writ of habeas corpus, to have judgment upon the justice of his commitment. English writers, in commenting upon the British constitution, express themselves in the warmest terms upon what is in that country called “the subjects’ writ of right” “ Of great importance,” they say, “ to the public is the preservation of this personal liberty, for if once it were left in the power of any, the highest magistrate to imprison arbitrarily, whenever he or his officers thought proper, there would soon be an end of all other rights and immunities. Personal liberty ought not to be abridged in any case without special permission of law; and the glory of the English law consists in clearly defining the times, the causes, and the extent, when, wherefore, and in what degree, the imprisonment of the subject may be lawful. Nevertheless, shifts and devices, not very creditable, to the judges of the' times, were made use of to secure to the king the power to commit by his special command, and'others were forced into practice, which from time to time have been checked by parliamentary enactments.” Tomb L. D. title Hab. Cor. Sir W. Blackstone has said, “ that the principal aim of society is to protect individuals in the enjoyment of their absolute rights which were invested in them by the immutable laws of nature, and hence it follows, that the first and primary end of human laws is to maintain and regulate these absolute rights of individuals. 1 Bla. Com. 125. This high prerogative writ is issuable from the courts of king’s bench, common pleas, exchequer and chancery, in term time, and before a single judge of either in vacation. Anciently, no one in any case could controvert the return of a habeas corpus, upon which alone the court or judge decided upon the legality of the commitment or detainer. But by virtue of 56 G. 3, c. 100, s. 4, a prisoner brought up under a habeas corpus issued at common law, may controvert the truth of the return. The judgment of the court or judge is final. Thus it is seen that this writ is founded on the common law, and gradually improved and extended in England by statutes to carry into actual and practical utility the free privileges of the subjects secured to them by magna charta and the constitution. It creates a jurisdiction, distinct, separate and independent, and though courts, and judges of those courts, are nominated by law to exercise it, they do so, not by virtue of their otherwise judicial character, authority and jurisdiction, but by the actual grant of power to act in this particular.

This writ has been transplanted, to this country, and assuredly it has lost nothing of those virtues so lauded by foreign writers because of its removal to a land enjoying far more enlarged and enlightened sentiments upon persona] rights and franchises. Both the present and the former, constitution of this state guaranty to its citizens the benefit of the writ of habeas corpus. Under the first constitution, the mode of issuing and the proceedings under the writ were regulated by statute, June 11, 1822. The power to issue the writ was deposited with the supreme, the circuit and the chancery courts, in term time, or any judge of either in vacation. The present constitution established the high court of errors and appeals, with a jurisdiction such as properly belongs at law to a court of that name. By law, H. and H. 531, s. 6, the several acts for the organization of the supreme court, not repugnant to the constitution or inconsistent with the act establishing the high court of errors and appeals, were declared to be in full force for the government of the high court of errors and appeals. By the constitution, (Const. Sched. s. 4,) all laws then in force, not repugnant to it, were continued in operation. Then, that through the force of the constitution, the statutes and the common law, the judges of the high court of errors and appeals, which is now the supreme court of this state, possess a full jurisdiction, and one greatly enlarged by the statutes beyond that of the writ at common law, over this writ, but in their individual capacity alone, seems plain and obvious, but that they have not power to act thereon, in the first resort as a court, seems equally plain and palpable. The statute, H. and H. 664, s. 7, gives to any party to the judgment on the writ, aggrieved thereby, the right to a writ of error, which could only be returnable into the high court of errors and appeals, thus involving, if the court must act in the first instance, the solecism and absurdity of an appeal from a court to itself. It is always proper to give such a construction and interpretation to a statute as will make it consistent with itself and the end to be attained by it.

Without directing attention to the questions of the sufficiency of the bench warrant, or to other technical objections, which, whether ill or well taken, are swallowed up in the more important questions involved in this examination, I will proceed at once to the discussion of the leading and prominent points that stand forth in this interesting controversy.

( The power of courts to imprison for contempts is declared by English writers, and so quoted by writers on this side of the Atlantic. It has been repeatedly decided in the English courts, and those decisions followed in the courts of this country, to be of immemorial usage and practice, since the law itself was known. It is claimed to be a vitally essential attribute and consequence of the administration of the law itself, without which it dies, becomes a dead letter, a command without obedience, a judgment without execution. It is held to have arisen from the necessity of the thing itself, and though not until later times legislated upon, it is said to have become the law of the land, coeval with the period when the administration of law was established, in the shape of courts and other legal tribunals. It is in this point of view that it is insisted by Blackstone (4, 237,) to have been confirmed by the statute of magna charta when it requires that “no freeman shall be imprisoned and condemned, but by the judgment of his peers, or by the law of the land.” Now this charter bears date the 15th June, A. D. 1215, being the 17th year of the reign of King John. The first enactment upon the subject of contempts was that of the statute of Westm. (13 Ed. I. c. 39,) being seventy years after the date of magna charta. This statute has reference to contempts in resisting the process of the king’s courts. This species of contempts is classed by Blackstone (4, 235,) among those of consequential contempts. If then the power to punish the class of consequential contempts constituted a part of “ the law of the land” so long anterior to the date of magna charta as to have become at that early day a very maxim of law, where was the necessity for legislation upon the subject 1 Why should parliament have legislated upon an individual instance of consequential contempt, unless the evil were then first discovered, and a remedy then, for the first time, sought % To what extreme the courts had extended their jurisdiction over contempts, up to the time of magna charta, we have no actual knowledge — it is but conjecture; but that seventy years afterwards, parliament, for the first time, legislated upon the subject, we do have proof; and we have further proof from the language of the statute and the grant of power to the courts, that such was, in its nature, an enlarged power, which consequently presumes its non-existence until the passage of that act. The phraseology of the preamble of that statute most strongly fortifies this position. The reason for the enactment is given in the following language, and Lord Coke says the preamble of a statute is a good means to find out the intention of if;: “forasmuch as justices, to whose office it belongeth to minister justice to all that sue before them, are many times disturbed in due execution of their office,” <fcc. This, at the present day, would be deemed a consequential contempt of court, and if it were so before magna charta, and the power dwelt in the courts then to punish and check it, the statute was certainly uncalled for legislation; but if so, it is a solitary and isolated instance of such at that early period. It was by a train of similar reasoning, I imagine, that a very learned author, as he is styled by Blackstone, 4, 237, (see Gilb. Hist. C. P. c. 3,) was inclined to deduce the present doctrine of contempts exclusively from this statute, and to allow it no greater antiquity. How much then of the present doctrine in England owes its origin to that and subsequent legislation, and how much to judicial assumption of power, it is here unnecessary to inquire, but in stating the historical argument, all that with fairness can be said is, that magna charta conferred to the courts the power to preserve themselves, and no more, and not that it necessarily recognized, as the law of the land the many kinds of contempts now known to the courts and judges. For so far as the newspaper publication of a libel upon a court is concerned, a case of the kind could not have occurred until the time of Queen Elizabeth, when newspapers were first established, which was three hundred and forty-three years after the date of magna charta. The proposition which is thus laid down is, that the doctrine of consequential contempts, in its present broad understanding, was unknown to and not confirmed by the earliest constitutional law of England — magna charta.

We must next test this doctrine of contempts by the touchstone of the constitution of the state. This is the only proper, legal and safe criterion by which it can be judged and decided upon. In doing so, we must be careful to allow no hypothetical interpretations, or equivocal definitions of the explicit text of this instrument. It is a compact between the people and their officers. There are restraints placed upon both. Power to govern has been confided, but it has also been limited and restricted. It remains then to examine whether the exercise of power in the case now under consideration, is within the constitution and laws of this state.

Immediately upon the adoption of our constitution, and before the enactment of any statutory law, so much of that which is generally termed “ the common law,” and which is also strictly in accordance with that constitution, was likewise necessarily adopted. For instance, the constitution established and erected courts of justice. It gave them the jurisdiction of courts of justice as the same were before understood, less so much power and authority as trenched on that constitution which created them. To carry on these courts, certain machinery is necessary, and that machinery must be without clog, hindrance or interference. This was necessary to the ends of their creation, for the exercise of the functions entrusted to them, and indispensable to serve and vindicate the interest and dignity of the government, which has been built up by the people. Is then the case in hand, the use of a power vested in our courts either directly or by implication, and is the act for which the petitioner is now imprisoned a clog upon the wheels of courts of justice 7 I shall endeavor to show why they are not.

What is a contempt of court ? Besides the various classes of contempts which were known to the common law of England and particularly described, besides these relating to officers and others connected with the courts, concerning which the law is plain and explicit, there are many which are claimed to lie exclusively within the discretion of the courts. The belief in the existence of such is alone in the breast of the court. They may be construed to spring from a gesture, a word or a look. Thus the court is constituted the judge of his own privileges and the vendicalor of his own wrongs, whether real or supposed, and his jurisdiction in this particular is without measure. The offence is without specification and without definition; and though legally viewed, it is said to refer solely to the functionary, it necessarily touches and stimulates the individual, who finds it hard to separate himself from the office and station. It may thus become an offence of opinion, of feeling or of prejudice — an offence which has no other legislation than the imperfections of human nature, blinded and misled by the circumstances of the moment, notions of caprice, and the improper bias of passion, or by those powerful, but imperceptible influences from which the most upright and enlightened minds cannot be considered or trusted to be wholly exempt. The power of pnnishing may be extended to a degree despotic, and, as it is extended in a judicial capacity, it is irresponsible, and may therefore be used regardless of consequences. Under such a state of things, liberty and property may become precarious and there is no protection against oppression. The rights and privileges which our constitution has retained and reserved to its citizens may thus be despotically abridged or wholly refused, and their “remedy by due course of law denied” or at least “delayed,” until vendicated and restored by the slow process of the proverbially sluggish channels of jurisprudence. Many cases of the infringement of constitutional rights could be conceived and enlarged upon to illustrate in strong relief this position, but the mere admission of the principle of entire and complete power without responsibility, to adjudicate for the time being upon those rights and privileges, will suggest them to all freemen who are acquainted with, and jealous of what of right belongs to them as their inheritance under our form of government. It is a legal motto, full of meaning and not too strong in expression, which declares that,

" Misc.a est servilus, ubi lex est vaga aut incerta.”

And certainly in no code of laws, can be pointed out one more obnoxious to this reproach, than that of a supposed offence which finds its enactment, its tribunal and its punishment in one and the same source. As we have already seen, history teaches us that the origin of this doctrine grew out of a state of things happily unknown and unrecognized by us. Anciently, in England, the king presided in some of the courts and sat himself in judgment. The insult, as it was considered there, was addressed to majesty in person, and was, in the spirit of such a government, met with prompt, and often mortal punishment. Death and forfeiture of lands and titles were alone sufficient to atone for the offended dignity of the throne. But as a better reason grew up among men, and liberty was either enlarged or its character better understood in England, this, among other severities, passing through various stages of lesser cruelty and hardship, became modified and ameliorated, until it found its present limit and extent. It were not a bad argument then to insist that, in introducing such a principle into our especially free government, it needs must receive a correspondent abatement of those of its features which are at war with the nature of the constitution and laws into which it has been admitted. Surely the same principle should be allowed to hold in a country which rests upon the love, as in one which is enforced from the fears of its people. For in this country, there is no majesty save the majesty of the law, and the office of that majesty is to guaranty to the sovereign citizen his constitutional liberties.

It has been before admitted that there have been in England, and in this country, judicial decisions establishing in that country, and in some states of this, the legitimacy of the exercise of power in cases like the one under consideration. Either that power is derived ex necessitate rei, or it is the growth of legislation and judicial practice. In the last event, as by the circumstances of this case it seems to be, it can be claimed only by virtue of its being one of the lineaments of the common law of England. In what position do this country and this state stand in relation to that common law 1 The United States have not taken, in all respects, the common law of England. So much only of its general principles are claimed and adopted which is applicable to our situation, institutions and form of government. Van Ness v. Pacard, (2 Peters, 144.) Nor is there any such thing as a common law of the United States. The constitution and laws of the Union prevail as the authority of law throughout the Union, but each independent state may have its own common law which may not so be considered in another. Wheat, et al. v. Peters, et al. (8 Peters, 658.) When therefore, a common law power is asserted, we must look to the constitution and laws of the state in which the controversy originated. The constitution and laws of Mississippi jealously guard the freedom and rights of its citizens. The 11th section of its declaration of rights declares that no person shall be accused, arrested or detained, except in cases ascertained by law, and according to the form which the same has prescribed ; and no person shall be punished but in virtue of a law established and promulgated prior to the offence and legally applied. Its 16th section declares that excessive fines shall not be imposed nor cruel punishments inflicted. The 10th, that no citizen shall be deprived of his life, liberty, or property, but by due course of law. Yet by the doctrine of contempts, as insisted upon, there exists an offence not only undescribed and undefined in nature and character, and one whose very existence is dependent upon the opinion and discretion of a judge, but a punishment, to use the words of Senator Clinton, in Yates v. The People, (6 Johns. 467,) “ unlimited, uncontrolled, indefinite, arbitrary, and omnipotent.” “It is to be remembered,” he adds, “ that summary convictions are against the genius and spirit of our institutions, and in derogation of civil liberty. The judge is without check, and the accused without the usual guards of freedom. There is no grand jury to accuse, no petty jury to try, but his property and liberty depend upon the fiat of the court.' Here, then is a case where an unjust and tyrannical judge may, at pleasure, imprison an innocent man for life, and being a judicial act for which he cannot be questioned, thus place punishment at defiance. A doctrine pregnant with such horrible results, can never be in unison with the letter or the spirit of a free and enlightened system of jurisprudence.” These views of Senator Clinton, even if considered in the light of argument only, are most valuable and worthy of weight, not only as being those of a man of great political knowledge and ardent patriotism, but from the fact of his removal and distance from any of those selfish feelings that might be supposed to influence a judicial functionary, keenly jealous and tenacious of his self-constituted privileges, powers and immunities. For this is a quasi political question, as all such are, which involve the liberty of the citizen, restrained upon grounds not palpably and clearly established and defined by law. The argument derived from the possible duration of the punishment of an indefinite offence presents the doctrine of constructive, consequential and implied contempts in hostile opposition to the constitution. It cannot bear the collision.

It is a maxim of law that where a discretion is allowed courts in the punishment of defined offences, that discretion must be regulated by law. But in this instance, the law, as claimed, sets to itself no bounds, and, under the influence of strong passions, punishment may be inflicted to a cruel, an unusual and excessive degree. The records of the English courts are not without glaring examples, under this authority, which might be hence quoted as precedents for imitation. There are no guards, then, against a resort to the most tyrannical licentiousness, and it is not an unreasonable jealousy to distrust men clothed with arbitrary power. It is certainly better that the freedom of the citizen should be controlled by fixed and plain laws, than to be left dependent upon the uncertain moderation of those in power. The authority to punish at pleasure, and during pleasure, is indeed, more consonant and agreeable to a throne, without responsibility, than to tribunals of justice erected upon free and equal laws.

It is to be noted that our constitution, unlike some others of the states of the Union, does not contain a recognition, in so many words, of a law of the land ” presupposed to exist. As we have seen, it is upon the slight foundation of this phrase, that the doctrine of constructive contempts is claimed to have been recognized and reenacted by magna charta, and upon the same principle to be in force in those states where this term makes its appearance in their constitutions. For these words, in the constitution of Mississippi, has been supplied the language, “due course of law.” A practice of the courts, however remarkable for its antiquity, however far back into a remote period it looks for its origin, even to a period whereto the memory of man runneth not, even though evidenced by published works upon jurisprudence, carefully preserved from the earliest times of extant printing or manuscripts, claims no respect or veneration, when it is shown to be unessential to the existence, utility or preservation, of those courts, but on the contrary to be the fruitful source of many of the evils to explode which a new system of government and an improved code of laws have been established. We have before our eyes the best evidence of the needlessness of any such authority to secure to courts those essential ends, their existence, their utility and their preservation. It is in the established law, by statutory enactments upon this subject, of the United States and of some of our sister States. We are thus presented with a complete practical refutation of the whole argument which would attempt to vindicate the propriety of the claim to 'this power by the courts upon the basis of expediency and necessity. The act of congress, of March 2d, 1831, ch. 93, limited and defined the power over all contempts of courts of the United States, by declaring that the power to issue attachments and inflict summary punishments for contempts of courts, shall not be construed to extend to any cases except the misbehavior of any person in the presence of the court, or so near thereto as to obstruct the administration of justice; and the misbehavior of any of the officers of the said courts in their official transactions ; and the disobedience, or resistance by any officer of said courts, party, juror, witness or any other person, to any lawful writ, process, order, rule, decree or command of the said courts. A similar statute has been enacted in Ohio, with the further restriction that the accused shall be heard in his defence, by himself or counsel. In the “system of penal law, prepared for the state of Louisiana,” in 1824, by Edward Livingston, Esq., contempts could only be committed in presence of the court, or in pleadings or writings addressed to the judges in pending cases, and these were tried by indictment, whereby a jury found the fact. The civil code of Pennsylvania, in 1835, confined the power of imprisonment to contempts committed in open court. No publication out of court, respecting the conduct of the court, or any of its officers, jurors, witnesses, or parties in any cause pending in court, exposes the party to summary punishment, and the only remedy, for the persons aggrieved, is by indictment, or action at law. In states, then, established upon the same republican principles as our own, having courts of justice of similar jurisdiction and like authority, needing the same inherent capacity for self-preservation, and the same influence over the public mind to render them efficacious for the ends of their creation, and beneficial to the interests and purposes of their government and their people, the common law power of the judges over contempts is found to be unnecessary and useless. From this it is therefore fairly and irresistibly deducible, that the motive for arrogating a claim to an authority of this kind being taken away, and the claim being predicated upou that motive, the authority must go with it, or, in the language of the legal motto, “ cessante rations, cessat et ipsa lex.”

But our own legislature has passed a law upon this subject in these words : “ The courts shall have power to fine and imprison any person who may be guilty of a contempt of the court, while sitting, either in the presence or hearing of such-court : provided, that such fine shall not exceed one hundred dollars, and no person, for such contempt, shall be imprisoned for a longer period than the term of the court at which the contempt shall have been committed.” H. and H. 436, 26. The same law, it is to be remarked, is made applicable to the circuit, the chancery, and the high court of errors and appeals. This statute describes clearly the offence, and affixes for it a limited, terminable and definite punishment.. Upon what prinple can the legislature be supposed to have overlooked the existence, if any such could be imagined under our constitution, of a power unlimited, ungranted and undefined, to punish con-tempts of courts without their walls, acts unaffecting the decorum or respect of their presence? A greater offence is thus made subject to circumscribed chastisement, and a lesser is left liable to an infinite degree of punishment. The sense, spirit, scope, and intention of a statute, are to be regarded in its construction, and judges are so to construe it as to suppress a mischief, or advance a remedy. Dwarris, 718. Is not the power of punishing implied contempts mischievous — should it not be remedied? Our statute, by this rule of interpretation, should be pronounced declaratory of the law upon the subject of con-tempts, so far as they are committed by general persons. A common sense survey of the statute creates a forcible implication that its language details the circumstances which can alone constitute a contempt of our courts. Our legislators frame the laws, acknowledging the constitution as the highest and the only authority on earth for their guide in shaping them. They found in that instrument no such principle as this doctrine of constructive contempts would establish, but rather a precedent and paramount authority to disobey it. They have, in consequence, commanded the subject of contempts of courts, not to be governed, to quote the words of Lord Coke, “by the crooked cord of.the discretion of the judges,” but to be “measured by the golden metewand of the law.”

The shield which our constitution throws around the press has been held up to interpose before the power of the courts to punish for contempts. The most dearly prized offspring of our national liberty, is the freedom of the press. It is so, because it can be made its most effectual protection at home, and because it can be employed as the apostle of those liberties to millions abroad. The worst enemy to freedom is ignorance. Instruct men in the knowledge of their rights, and a vindication of those rights follows as surely as light follows the rising sun. Yet the freedom of the press is abused to base and unworthy purposes. Such, indeed, as sad experience teaches, is often the melancholy fate of the greatest blessings that a wise providence lias bestowed upon us, or that human skill has invented. The free air we breathe is essential to our existence, but when infected with pestilential matter, it becomes the most terrible weapon of death. But who would argue, because disease may-float in the atmosphere, that that atmosphere should be destroyed 1

Our constitution has declared that “ every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that liberty. Art. I. s. 6. The reflections of the petitioner upon the circuit judge of Warren county, as set forth in the petition complained of, when judged by the practice and assumptions of the English, and some of the American courts, constitute an undoubted contempt of an aggravated character; but when passed through the crucible of our state constitution, instead of a contempt of court, they become a mere libel on the functionary, and subject only to the punishment prescribed by law for the latter offence.j)

The effect of the executive pardon upon the sentence of a court for a contempt is the only remaining question of this interesting investigation. The power to pardon is, by English writers, styled the most amiable prerogative of the crown. 4 Bla. Comm. 396. It was cotemporary with the first memorials of the law. In its extent, it reached to all offences against the crown, or the public. Ib. 398. It does not reach to cases where private justice is connected with the prosecution of offenders — non potest rex gratiam facere cum injuria et damno aliorum. 4 Inst. 236. Thus in penal statutes, where the informer has acquired a private property in a part of the penalty, the king cannot pardon the offence. 4 Bla. Comm. 398. But among pardonable offences is that of contempts of courts. In the statute of Westm. 2, 13 Edward I. c. 39, which has before been claimed to have been the origin of the doctrine of constructive contempts, in speaking of the imprisonment of those who resist sheriffs, occur these words, — “ a qua non deliberentur sine speciali precepto domini regisf — from which imprisonment they shall not be released, but by the special command of our lord, the king. It is moreover elsewhere said, that a pardon for all misprisions, trespasses, offences or contempts, will pardon a contempt in making a false return, and a striking in Westminster Hall, and barratry and even a premuniré. Jacobs’s L. D. Pardon; 2 Hale’s P. C. 252; 2 Mod. 52; Dyer, 303, a. The constitution of the state, art. 5, s. 10, bestows upon the governor of the state “ the power to grant reprieves and pardons, and to remit fines in all criminal and penal cases, except in those of treason and impeachment.” But it has been insisted by counsel that contempts of court do not come under the class of criminal or penal cases. The attachment which issues upon the information of a contempt is a criminal process. 1 Tidd Prac. 401. 4 Bla. Comm. 231, calls the offence “a criminal charge.” “ A crime, or misdemeanor, is an act committed, or omitted, in violation of a public law, either forbidding or commanding it.” 4 Bla. Comm. 5. The distinction of public wrongs from private, of crimes and misdemeanors from civil injuries, seems principally to consist in this, that private wrongs or civil injuries are an infringement or privation of the civil rights which belong to individuals, considered merely as individuals, public wrongs, or crimes and misdemeanors, are a breach and violation of public rights and duties, due to the whole community, considered as a community in its social, aggregate capacity, Ib. 6. Contempts of court are treated by all elementary writers as public wrongs. They áre distinguished from ordinary crimes or misdemeanors, because in their punishment there is no intervention of a jury, the party being acquitted or condemned by the suffrage of such person only as the statute has appointed for his judge. Ib. 279, tit. Summary Conviction. In short, the whole doctrine of con-tempts goes to the point that the offence is a wrong to the public, not to the person of the functionary to whom it is offered, considered merely as an individual. It follows, then, that the contempts of court are either crimes or misdemeanors in proportion to the aggravation of the offence, and as such, are included within the pardoning power of this state. But, say the counsel, there are certain courts which have only civil jurisdiction, and yet those courts have the power to punish for con-tempts, therefore a contempt is not a criminal offence. This conclusion is a non seqtdiur from the statement of the case. The statement of the case shows that to the civil jurisdiction of the courts alluded to, a sufficiency of criminal jurisprudence is also necessarily attached for restraining offenders from interrupting their proceedings, for without it they must cease to exist.

Prom all the foregoing considerations, I am brought to the belief that the petitioner is held in custody by unlawful authority, and that he is clearly entitled to his discharge therefrom ; which is therefore ordered and decreed.  