
    CONSTITUTIONAL COURT,
    CHARLESTON,
    MAY, 1802.
    The State v. Johnson.
    A justice of the peace may commit for a contempt in his presence, whilst engaged in the performance of his duties as a public magistrate.
    The authority of courts to commit for contempt is not abridged by the 34th section of the act of 1731, P. L. 129, giving authority to fine for contempt, and to imprison until the fine is paid. Nor, as it seems, is such authority inconsistent with the 2nd section 9th article of the constitution of this State.
    A justice of the peace is not indictable for oppression in office, although he mistake the law, unless it appear that he acted from corrupt motives, and was influenced by malice, ill-will, or resentment, and not by a sense of duty. [Vide 2 Bay, 385, S. C.]
    Indictment for false imprisonment. The [defendant being a city magistrate, had granted a warrant against a slave of Mrs. Hart, the prosecutrix; who, hearing thereof, came to his office, and treated him in a style of much contempt, and ridicule, and threatened him for what he had done : whereupon the defendant committed her to prison for the insult and contempt. Grimke, J., who presided at the trial, read to the jury a part of the act of assembly of 1731, P. L. 129, which authorizes the judges to impose a fine of ten pounds proclamation money, and commit the offender until payment, for misbehaviour or contempt in court, by word or gesture; and observed thereon, that if the judges of the courts of sessions were restrained in their power of punishing for contempt, to a certain extent, and to a certain mode, or measure, justices of peace must also be confined to the same restraints at least: and, therefore, the power exercised in this instance, by the defendant, was illegal and oppressive ; and although he might have erred through ignorance, or mistake, yet having infringed (the personal rights of a fellow citizen, and deprived him of his liberty, he was answerable for this abuse of office, as he ought to have known better, having exceeded the obvious limits of his authority.
    The jury found the defendant guilty : and he now moved to set aside the verdict, and for a new trial, on the grounds : 1. That the evidence did not support the indictment. 2. That the judge, at the trial, misinstrucled the jury as to the law.
    M’Crady, Baxley, and Gaillard, argued for the defendant. Ddncan, Cheves, and Ward, for the State.
    
      ^01 ^e^en^ant ü was urged, that a power of imprisonment is necessarily incident to every court of justice; and this power is secured by the constitution, under the general phrase, “ the law of ^le lan<b” Every court must have this power, since without it, they could, maintain neither dignity nor authority, and, of course, would become despicable and useless. .3 Wils. 202. The act of assembly in question, was not intended to abridge or restrain this common law power, which the courts, at the time of passing the act, clearly possessed, but only to lay down a rule in affirmance of the common law, and to publish to the then infant community, the impropriety and danger of misbehaving in open court. The act contains no negative words, or words prohibiting the exercise of any authority to puhish beyond the rule laid down in the act; and it cannot be implied that the act intended to repeal the common law in this respect.. Justices of peace are ancillary to the courts of sessions: they are the conduit pipes through which all the criminal business of the country flows into the courts of sessions : and they are officers of the first use and necessity, without whom it would be impossible to preserve the peace and good order of society. The office of a justice of peace is as ancient as the first institution of law and government in this country ; and the powers attached to the office have always been the same as in England, so far at least as they are of common law origin. As conservators of the public peace, they have always been held in high respect, and regarded as possessed of all the powers incident to that office in England, in that behalf. No man of respectability would accept the office of a justice of peace unless he had power to maintain the dignity of his office, and enforce due obedience and respect to his orders and jurisdiction, while in the legitimate discharge of his functions. But it is clear that every justice of peace is entitled to exercise the authority in question. Justices of peace in England have always been allowed to exercise powers of this sort. Bac, Abr. Justices of Peace. F. 1 Str. 420. 2 Str. 1168. 1 T. R. 653. 1 Ld. Raym. 454. We have derived the office, and all its incidents, from England and these magistrates must, at any rate, be possessed of all the powers and authorities which they were possessed of under the royal government in this country; unless it be such as have been expressly taken away by our statute laws, or by necessary construction. The power of committing for contempt in face of the justice’s authority, i. e., before his face, while acting in the line of his duty, as a justice, was always held in England, a power necessarily incidental to his office»-' It has •never been considered otherwise in this country: and there is no positive law against it, nor any necessary inference or construction, which, upon principles of law, or sound policy, can be made to take this power away from our justices of peace, or impair its strength or exertion. Allowing the power to be absolutely necessary to the support of the office, and that it may be exercised on lawful occasions by justices of peace here, the instructions given to the jury on this point, by the judge, were founded on misapprehension ; and his conclusion, drawn from the justice’s supposed want of authority, was erroneous. It is admitted that if a magistrate will use a lawful power unlawfully, as where he has a power to imprison, and imprisons without lawful and justifiable cause, he shall be punishable. If he acts from malicious and corrupt motives, and designs oppression, he is indictable. But although he may err in point of law, not in exceeding the known bounds of his duty, or the obvious limits of his authority, but in the exercise of his judgment, on questions where it may be expected, there will often happen mistakes, and erroneous opinions ; in the exercise of authorities belonging to him, and in business within his jurisdiction ; yet he shall not be indicted for such errors. Mistakes through ignorance, or ill judgment, shall never be imputed to him as crimes or misdemeanors, where they happen in the use of his proper authority, and not in the abuse of it. 1 T. R. 653. 2 T. R. 190, 197. 7 T. R. 631. But the jury in this case took it for granted, that the .defendant had exceeded his authority ; or rather that he had usurped an authority which did not belong to his office: and that in the use of such usurped authority he acted oppressively ; and was, therefore, punishable, whatever might have been the private motives that influenced his conduct.
    
      E contra.
    
    It was contended, that no court but a court of record has power to commit for contempt, except courts of admiralty. 1 Woodes. 139. Bac. Abr. Courts. E. No citizen ought to be deprived of his liberty without the privilege of a trial by his peers. State constitution, 9 art. 2 sec. Contempts, it is true, are indictable ; but they belong to that class of offences, coming under the term misdemeanors, and are bailable. But if a justice has the powér contended for, he cannot lawfully exert it on every petty occasion, but in cases of flagrant misbehaviour only. 1 Str. 617.-.2 Str. 1168. The occasion in this case did not .justify such an exertion of authority. It was a wanton stretch of power, and, therefore, unlawful and oppressive ; and as the jury have, in fact, so found, their verdict ought to be supported. The people ought to be protected against the tyranical acts of ignorant and passionate men, who “ dressed in a little brief authority, play fantastic tricks,” of oppression against law and reason ; and then themselves under the cloak of office, and the veil of ignorance.
   Per curiam.

Justices of peace have a power derived from the common law, and necessarily attached to their offices, of committing and confining for gross misbehaviour in their presence, while engaged in the proper discharge of their duties, as public magistrates. This power has always been recognized and respected, as lawful, and indispensably requisite, for the maintenance of their offices and jurisdiction ; not only in England, but in this country, from its first settlement. It must strike every mind, that without such a power their offices must be exposed to disgrace and contempt; and from being offices of- dignity, reverence, and utility, they would sink into insignificance and uselessness. The act of assembly which has been quoted, does not oppugn their authority in this respect, nor that of the judges: it is in affirmance of the authority, which they before possessed by the common law, and not in derogation of it. It is a mere act of supererogation : or, at most, can only be extended to limit the power of fining ; and cannot be construed to abridge the power of the courts as to imprisoning ; for in the same act, which establishes the court of sessions, it is declared, that court shall have powers equal to the court of King’s Bench in England. A. A, 1731, P. L. 128. A like declaration is contained in the act of 1712, P. L. 99. This act of 1731 was improperly noticed to the jury, as having any application to the question to be tried by them; and on this ground a new trial must be granted; The true question, and the only one, which can, on the next trial, be fairly tried, is, whether the magistrate was actuated by a sense of duty, no matter whether he was mistaken or not, or hy corrupt motives, in committing the prosecutrix to gaol. Unless he acted corruptly, and ought not to have committed her for the conduct she is accused of, a court of sessions cannot punish him by indictment. In many cases a civil action may be maintained against a justice of peace for blunders committed by him through ignorance and mistake: but unless his motives are proved to be impure; and he has been influenced hy malice, [ill will, resentment, or some other improper impulse, or motive ; an indictment against him cannot he main, tained for any thing done by him as a magistrate, within the sphere of his office.

New trial granted.  