
    
      The State vs. B. F. Hunt.
    
    The court refused to strike from the docket an appeal from the decision of the Circuit Judge, imposing afine, after rule served to shew cause, upon an attorney of the court for contempt, although the fine had not yet been paid.
    The Judge not only has power to fine for a contempt committed by air attorney in the use of improper expressions towards another attorney, in the argument of a cause in the presence of the court, but also he may, or not, in the exercise of his legal discretion, use that power, and the punishment following its use is altogether discretionary with him.
    Extraordinary cases may occur, in which the court might hold that the power to attach for a supposed contempt had been improperly used; but where the contempt is palpable, and where the defendant in contempt, without apology, puts himself in the attitude of justification throughout, these facts do not afford a case for the interference of the court.
    Every court has the power to fine for contempt, but notwithstanding this undeniable power, still whenever it is exercised, every citizen has the right to appeal.
    Every appeal does not, necessarily, in all cases, operate as a supersedeas.
    
    The provision of the Act of 1811, that no one shall be imprisoned without a hearing, renders the proceeding by rule proper in all cases of contempt of court.
    
      Before Frost, J. at Charleston, October, 1849.
    REPORT.
    Frost. J.
    The disorderly expressions and deportment which made it necessary to institute the proceeding for contempt, which is the subject of appeal, occurred at the hearing of a motion, made by the appellant, to set. aside an order for nonsuit, in the case of M’Dermaid and Wife v. Earnest, which had been entered on the call of the issue docket, during the term. That case had been several times called, when neither the appellant, who was the attorney on record of the-plaintiff, nor any other attorney, appeared to answer to the case; and it was as often passed and left open, to give an opportunity to some one to appear for the plaintiff, though the defendant’s attorneys were present, demanding trial. At the last and peremptory call of the docket, the appellant not appearing,, nor any attorney in his stead, a gentleman of the bar stated that he had received a letter from the appellant, in which the appellant mentioned that he was detained at the North by business. I did not understand that it was professional business; but if the appellant’s engagement had been a professional retainer in a cause pending in the court of another State, that would not warrant the suspension of justice in our own courts, in the many causes in which the appellant is employed. Under these circumstances, the order for nonsuit was reluctantly made. It could not have been refused without infringing the firm and established practice of the Court, nor without incurring the censure of an unequal, and discriminating enforcement of the rules of practice upon parties, from an undue or partial deference to the attorney in the cause. Mr. Yeadon, who was assistant counsel of the defendant, was unwilling to urge the nonsuit, on account of the absence of the plaintiff's attorney, but called attention to an order for security for costs, which had been made at the preceding term, and required the clerk to state if the security had been given, in conformity with the rule of court.
    On Monday, after the term, the appellant made a motion to set aside the nonsuit in M’Dermaid v. Earnest. In his remarks in support of the motion, the appellant adverted to the inquiry, made of the clerk by Mr. Yeadon, when the nonsuit was granted, respecting the entry of security for costs, and was proceeding in a strain of harsh comment on the conduct of Mr. Yeadon, when I interrupted him, for the purpose of explaining what had occurred, and did make a statement of what was said and done by Mr. Yeadon, which, it seemed to me, should have removed from the mind of the appellant the impression that the inquiry was directed by any apparent intention to make it personal or offensive to him. Mr. Yeadon, in opposition to the motion, rested on the failure of the plaintiff to enter security for costs, in conformity with the rule of court. He accordingly interrogated the clerk respecting the manner in which the security had been entered. The clerk’s recollection was not distinct, and he answered with uncertainty and hesitation. This protracted the examination. Mr. Yeadon pressed the inquiries, by whom was security given, in what form, and whether it was indorsed on the record. In the end, the record was produced, and it appeared that a memorandum check of B. F. Hunt, junior, the partner of the appellant, had been taken and accepted by the clerk as cash, and that there was an indorsement on the record, by the clerk, that the required security had been given. ■ Mr. Yeadon denied that this was in conformity with the rule of court. He disclaimed any objection to the check, but insisted that the clerk had no authority to accept security for costs in a memorandum check. Mr. Yeadon’s manner was excited and angry, his tone rude, and, by both, he evinced a disregard of the offence which his pursuit of the inquiry gave to the appellant. The appellant more than once interrupted Mr. Yeadon, objecting to the investigation. Once he rose and advanced towards the Bench, . and, with violent tone and manner, required the court to call Mr. Yeadon to order. The appellant was himself called to order, when he resumed his seat. In his argument on the motion, the appellant proceeded in a strain of offensive reflection on the course Mr. Yeadon had pursued, and said, in allusion to Mr. Yeadon, that “ this prying and peeping behind the record, was disgraceful and degrading to the profession; and must be so felt to be by every honorable or high minded practitioner.” This was repeated with some variation. Mr. Yeadon rose and pronounced “what the appellant had said to be wholly unfounded and untrue, and grossly and deliberately false.” The appellant repeated what he fiad said. Mr. Yeadon replied, “I sh,all heed nothing which that man can say — nothing he can say is slander.” This abusive altercation was silenced by notice to both the parties, of process of contempt against them, returnable the Friday following ; which was accordingly issued and served.
    At the return of the rule, Mr. Yeadon appeared, by counsel, and submitted a written statement, in which, bringing to view the offensive imputations which had been cast upon him, in extenuation of the unbecoming manner in which he had replied to them, unreservedly declared his regret that he had been betrayed into expressions derogatory to his own self-respect, and the decorum which should be observed in the public assembly of the court. The rule against him was discharged.
    The appellant also, submitted a return in writing. In it, he animadverts on the nonsuit ordered in the case of M’Dermaid v. Earnest, and on the conduct of the Judge in refusing the motion to set it aside, charges Mr. Yeadon with the design of exposing a private transaction, by his inquiry respecting the security for costs, and complains that when Mr. Yeadon was called to order by the appellant, he was not required by the court to desist from his examination of the clerk. The appellant further states, that when he was overruled in his call of Mr. Yeadon to order, he acquiesced and submitted to, what he terms, the unmannerly and uncalled for remarks of Mr. Yeadon, and declares himself at a loss to know what' he was required to answer to. It is denied that the expressions applied to Mr. Yeadon violate the prudence or freedom of debate, and denies the authority of the Judge to suppress, by attachment of the person or by penalty, disorderly conduct in court, if it is not personally offensive to the Judge, or does not interrupt the business of the court. In his argument the appellant enlarged on the satire topics, and again spoke of the conduct of Mr. Yeadon with harshness, characterising it as disgraceful, so that it became necessary to caution him against repeating the transgression of order which he was defending. Other legal objections, besides those made in, the notice of appeal, were also insisted on and overruled.
    On the points presented in the first and second grounds of appeal, it was affirmed that power is vested in the court, by fine and imprisonment, under process of contempt, to restrain and suppress disorderly conduct or expressions by an ney or other officer of the court, though the offence may be directed against the Judge, and though the course of justice may not be actually interrupted. The power is possessed, as incident and necessary to the administration of justice, by every court. . A court of the most inferior jurisdiction may punish for a contempt committed in its presence. Many precedents and authorities concurrently shew that this power is not contrary to that clause of Magna Charta which is incorporated in the Constitution of this State. Nor is it embraced in that clause of the Constitution which declares that trial by jury, ás heretofore used in this State, shall be forever inviolably preserved, which relates to such crimes only as, by law and custom, were, before the adoption of the Constitution, tried by jury. The power is not restricted to the case of a contempt of the court by an actual interruption of its proceedings,, but extends to every contempt manifested by indecent, disorderly or indecorous conduct or language. Nor is it designed only for the protection of the Judge from indignity or insult, but comprehends the officers of the court, jurors, parties, witnesses, and all persons who, in obedience to lawful summons,, are in .attendance on the court. And it extends not merely to prevent or remove an actual interruption of the proceedings of the court, but also to punish con-tempts by fine and imprisonment.
    The third ground of appeal exhibits various misapprehensions. . The appellant wasnot required by the rule, to retract any opinion he'might entertain respecting any person or thing.
    He was called to account, not for his opinions, but for the use of his expressions, which were not the less a violation of order and propriety, because they may have declared his convictions.
    It is difficult fora dispassionate mind to comprehend in what way Mr. Yeadon’s enquiries, respecting the security for costs, can be regarded as an attack upon the anpellant.
    The inquiry was important in opposition to the appellant’s motion. No censure or charge of impropriety could be made against the giving of a check to the clerk, instead of depositing money as security for the costs,- if the clerk was willing to accept it.
    The court did not refuse to listen to a call to order, but declined to stop Mr. Yeadon, because his examination of the clerk was pertinent and in order.
    I do not know of any discussion which was permitted, and, in the end, ruled to be illegal. After the facts connected with the taking security for costs were disclosed, I declined to rest the order for non-suit on the ground of the alleged irregularity of the security, because' if there was any default, it proceeded from the error of the clerk, which should > not be used to the surprise and prejudice of the plaintiff on the call of the case, who had confided in the clerk’s certificate, that the order for security for costs had been complied with.
    A fine of two hundred dollars was imposed on the appellant, who has served the annexed notice of appeal.
    
      In Re Benj. F. Hunt. — Before Judge Frost. — Fine $200.
    In this case, the respondent gives notice that he will appeal to the Court of Appeals to set aside the said order, and furnish full grounds of appeal as soon as he has time to draw them out, and in the meantime, states the same in effect.
    That the imposition of said fine was illegal, against common right, unjust and partial, because the respondent did not offer any indgnity to the court, and the course of justice was not interrupted.
    Because the court is not authorised, under the laws and Constitution of this State, by its own motion, to inflict punishment in a criminal case beyond what is indispensible to the progress of justice, and not by way of penalty, it being an exception from the Common Law.
    Because the court is not authorized to call on a member to retract what was said in repelling an attack made upon him by permission of the court, in refusing to listen to a call to order, and permitting a discussion which was, in the end, ruled illegal.
    Generally, because the whole proceeding was uncalled for, illegal, and persecuting.
    Nov. 24, 1849.
    B. F. HUNT.
    
      South Carolina, Charleston District.
    
    PersonaPy appeared before me, L. J. Messervy, who, being duly sworn, deposeth and saith, that he this day served Judge Frost, through the post office, directed to him in Columbia, (he being in Columbia,) with a notice of appeal, in Re Col. B. F. Hunt, which is a correct copy from the original, written and signed by Col. B. F. Hunt, and on file in his office.
    L. J. MESSERVY.
    Sworn to before me, this 24th day of Nov. 1849.
    W. Pinckney Shingler, Not. Pub.
    
      Additional Grounds, afterwards abandoned by Col. Hunt.
    
    In this case, the respondent appeals from the order of Judge Frost, directing the respondent to pay a fine of two hundred dollars, for having used language in vindication of his own character, upon these grounds :
    Because the court refused its protection when he called his opponent to'order,-and thus permitted a discussion to proceed, necessarily offensive to the appellant, and fully justifying every word uttered in repelling this wanton attack upon himself, and the responsibility of his son fora few paltry dob, lars ; which vindication, appellant insists, was fully justified by the personal attack upon him, and within that liberty of speech without which no citizen can vindicate and sustain his rights and feelings in a Court of Justice.
    Because, appellant having fully disavowed any intention of offending the person or authority of the Judge, and having implicitly obeyed every call to order, was not bound to the humiliation and degradation of a falsehood, by denying the truth, and expressing any regret for having repelled the insult offered to him, as far as the counsel concerned could do so, which he did repel when it was received, and permitted by the presiding Judge, notwithstanding the appeal to him to stop a useless and irritating discussion.
    ■ Because, a mistake of the Judge was manifested, by repeatedly putting the refusal to open the order for a non-suit, upon the state of facts as understood by the Judge at the call of the case, when the motion was in truth based upon a full and new statement of facts, which the court twice omitted to consider, and which, if true,-and their truth was not denied, authorized and required the court to set aside the non-suit, to wit: that the state of the public health forbid the hope that witnesses from the country could be obtained; and that finding that appellant could employ the time in arguing the cause of his Carolina client before Judge Woodbury in the Circuit Court of the United States, he so wrote to a member of the Charleston bar, who on the call of the case so represented, or certainly intended to represent; but at all events, the fact was fully made known to Judge Frost, on the motion, who still refused to restore the case; this being an exemption from the rule, without exception pursued in relation to every other member of the bar.
    Because, the Judge was more than once personally insulted by my adversary, but the moment the appellant ventured to repel a personal attack permitted by the court, who refused. the call to order, and yet decided the argument when made was ineffectual, he was ruled to answer for a contempt, and notwithstanding an explicit disavowal of an intention to offend the court, was fined for not laying perjury upon his soul, by expressing his sorrow for vindicating his own feelings from a useless and wanton assault; it was not the de-fence of the dignity of the bench, but to degrade the appellant, that induced the decision of the court.
    Because, the imposition of a penalty in a criminal case, by a single Judge, who decides the facts for himself, and measures penalties by his own unchecked will, where no interruption to the administration of justice took place, and the call of the court to order was promptly obeyed, is illegal and against common right, against the rights of a citizen to answer only for a crime, in the usual course of justice.
    Because, mere words between members of the bar, not followed by a breach of the peace, are not the subject of summary trial and punishment by a single Judge.
    Because, the imposition of the fine aforesaid was without justification in law or in fact.
    
    BENJ. F. HUNT, Appel’t. in pro. per.
    
    It is ordered, that a rule be served on Richard Yeadon, Esq., an attorney of this court, requiring him to shew cause-why he should not be attached for contempt of the court, by reason of words spoken in presence of the court this day, and that said rule be made returnable before me on Friday next, at 10 o’clock, A. M. By order of the court, this 19th Nov. 1849.
    EDWARD FROST.
    Daniel Hoelbeck, Esq., Clerk of Court.
    Sir. — Judge Frost having intimated that a rule, returnable on Friday, was taken against me, I respectfully request that I may be forthwith furnished with a copy of the- rule, and the specifications, to which I am to shew cause.
    Respectfully, your obed’t. serv’t.
    BENJ. F. HUNT.
    21 si November, 1849.
    N. B. Since writing the above, I have a notice, not specifying what words spoken in presence of the Judge are complained of; and, until I know, I am not prepared to admitj justify, or excuse them.
    B. F. HUNT.
    
      (Answer.)
    
    Dear Sir. — 1 have sent you the rule exactly as it was drawn by the Attorney General, and signed by his Honor Judge Frost. You, no doubt, imagine I may have drawn the rule, and, therefore, ought to furnish the words.
    I did not pay sufficient attention to the matter to recollect the words.
    Respectfully,
    DAN’L. HORLBECK, C. C. P.
    
    
      22 nd November, 1849.
    P. S. If you design your letter as a return at present to the rule, you can direct me to forward the same to the Judge, and 1 will do so.
    
      State of South Carolina.
    
    It is ordered, that a rule be served on Benjamin F. Hunt, Esq. an Attorney of this Court, requiring him to shew cause why he should not be attached for contempt of tins Court,, by reason of words spoken in presence of the Court this day, and that said rule be made returnable before me, on Friday next, at 10 o’clock, A. M. By order of the Court of General Sessions and Common Pleas for Charleston District, this 19th November, 1849.
    EDWARD FROST.
    Dah’l. Horlbeck, C. C. P. &• G. S.
    
    I have served the within named B. F. Hunt personally with a true copy of the rule
    (Signed)
    J. S. SHINGLER, 8. C. D.
    
    
      22nd November, 1849.
    
      ¿South Carolina, Charleston District.
    
    B. F. Hunt, being duly sworn, says, that helms been served with a rule to shew cause “why he should not be attached for a contempt of this Court by reason of words spoken in presence of the Court this day, (19th Nov. 1849 ;”) that said rule was served upon him on 21st Nov. at 10 o’clock; and, in answer thereunto, he says, that no specific words having been set forth in said rule, he is not able to answer thereunto; and he claims that by the laws and statutes of this State he is entitled to be heard in his defence, and cannot do so without a specific allegation ; the right to be heard in his defence includes the right to have the offence set forth with such specifications as will enable the accused, first, to controvert the facts; secondly, to offer proof of other facts tending to excuse or explain the allegation, and thus to be heard upon the question whether the facts amount to a contempt for which the accused can, by the law of the land, be deprived of his liberty, without indictment by a Grand Jury and conviction by a Petit Jury, as he denies positively that he did utter any words calculated to impede the administration of justice.
    The accused also denies that a Judge, after the expiration of the Court, has any right to act of his own motion touching a criminal proceeding.
    Since drawing the above affidavit, deponent has received a statement of the words complained of, uttered in the presence of the Court, and he alleges that the substance of them appears correct, but he demurs to the conclusion that they exceed the liberty of speech to which every man is entitled,, inasmuch as they contain only the estimation in which the effort to bring under discussion a private transaction of a member of the bar with an officer of the Court, not at all impairing the rights and security of his client, by a lawyer, was held — that it was a voluntary introduction of private matters, for no useful end, and well calculated to excite the indignation of the party affected, if not intended to do so; which uncaue¿ for discussion deponent then held, and still holds, a violation of the courtesies of the profession, and calculated to bring it into ridicule and contempt; and deponent is yet to learn that such an expression of his real opinions transcends the liberty of speech, and much less, that it is matter cognizant by a Judge by way of criminal prosecution. The production of the record was conclusive, and an assistant counsel endeavoring to wound the feelings of a lawyer, by a useless discussion on the sufficiency of his check, deponent felt, and still feels, a disgrace to the courtesy of the bar; and, whether his opinion is just or not, he entertains it, and was authorised to repel it as a public attack on him, uncalled for and unjustifiable,
    BENJ. F. HUNT.
    Sworn to before me, this Nov. 1849.
    
      Charleston, Nov. 22d, 1849.
    Judge Frost asks leave to supply the expressions used by Col. Hunt in Court last Monday, which caused the rule to be issued, which is returnable to-morrow.
    Col. Hunt, alluding to Mr. Yeadon’s enquiries respecting the compliance with the order for security for costs in the case of M’Dermaid and wife v. Earnest, said, with great excitement, and in a very offensive tone and manner, “ this peeping behind the record is degrading and disgraceful to the profession, and m ust be .felt as a disgrace by every member of the profession;”
    Col. B. F. Hunt.
    
      State of /South Carolina, Charleston District.
    
    Benjamin F. Hunt, being sworn, says that in relation to the facts, out of which a rule to show cause has arisen, as far as he recollects them, they were as follows : A nonsuit had been entered in a case on the Country Docket, a litigated case, in which deponent was attorney on record, and Mr. Seigling was defendant’s attorney ; and a motion was made to set aside the nonsuit, because the health of the city was such that there was no probability of obtaining witnesses residing in the country, and the attorney on record, to save the expense of mileage and subpoenas, omitted to issue them.
    Second, because the attorney on record in this case, assured that no trial could be had, had gone away o.n professional business. These facts were stated on oath, and it is believed that no other litigated case was urged on, because of the sickness in the city.
    When the case came before Judge Frost on this motion, the assistant counsel for defendant, Richard Yeadon, opposed the motion, chiefly on a question relating to security for costs. The Court was pleased to refuse to set aside the nonsuit, cause at the time it was granted, the Court was not apprized that the counsel was absent on professional business, in which the gentleman who represented the attorney on record, was not so happy as to be fully understood by the Court. But the motion did not involve the propriety of ordering the non-suit at the call, but on the new state of facts presented — according to which, no other case, to the knowledge of deponent, was peremptorily ordered for trial, and the motion being made at the same Court, and the only difference to the defendant being the costs of the nonsuit, the plaintiff’s attorney submitted to this peculiar denial to him of the same indulgence without exception granted to the other members of the bar, especially as his attempt to explain that the motion was not any impeachment of the original order, but a distinct motion on all the facts presented by the affidavit, the Court indicated so much unwillingness to listen, that the payment of a few dollars cost were too trifling to compare with a controversy with the Judge.
    This deponent further says, that for very satisfactory reasons, wishing to avoid any contact with Mr. Yeadon, who although only assistant counsel, he carefully abstained from saying a word until he asked Mr. Yeadon if he was done, that he might be without excuse for any interruptions. The record, which was not before the Court at the call of the docket, was produced, and upon it was endorsed a regular entry signed by the clerk that security for costs had been given. Mr. Yeadon, with the avowed intention of bringing before the public a private act of confidence between deponent arid the clerk, insisted that security for costs had not been given, although so endorsed and of record, and was about to go behind the record to comment, as he did, most offensively, upon the truth of the record, and enquire whether the clerk had in fact taken the security under tfie rule. As before stated, Mr. Yeadon was a man with whom deponent has carefully avoided any controversy, for reasons fully satisfactory to himself, and, with a view to put an end to all such irritating controversy, deponent called him to order when about to go behind the record, and question the dealings of the clerk ; and had the Court observed the undoubted rule of all deliberative bodies, when a question of order is made, to compel the party to stop until the question of order was heard and decided, it refused to hear deponent upon the question, and overruled him without a hearing; and this lead as was inevitable, to an unnecessary personal and mean disquisition not worth the paltry stake of a few dollars costs ; still deponent submitted to all the remarks and insinuations of Mr. Yeadon, as the Court ruled him in order, until he ab- , solutely answered he was done. Then only did deponent proceed to comment upon his remarks and conduct in a man'ner fully justified by the unmannerly, rude, and uncalled for remarks of Mr. Yeadon — and while doing so was interrupted by Mr. Yeadon, in a gross and half-blustering allegation that the opinion expressed of his conduct was untrue, repeating the allegations in a tone which, from any other member of the bar, would have been insulting. But as deponent had stated no matter of fact at all, but only expressed an opinion, which he still entertains, desiring tó shun being a party to any controversy with him, deponent had hoped for the protection of the Court from interruption, but being disappointed, in order to avoid all controversy in Court, deponent thus replied, he was answerable for what he had said, and insisted upon the propriety of his comments — trusting that so clear an indication of his abhorrence of an emeute in Court at all, and especially with Mr. Yeadon, would compel him to silence. He was in the actual repetition and continuance of his illegal interference, when deponent was told he was to answer to a rule, for what, except the ill luck of having been compelled to answer the arguments and be exposed to the ill manners of Mr. Yeadon, he is still at a loss. That he uttered one word disrespectful to the Judge, or expressed any repining at what he deemed a peculiar and singular exception from the rule adopted during the term; that his language was in any way calculated to-disturb the Court, he is still to learn. He used no violence, but had the parol, after enqui-ring if the adversary was done, and was entitled to a prompt rebuke from the Cóurt of the interruptions, and only resorted to a proposal to adjourn the controversy, expressly to avoid any disturbance in Court.
    Deponent demurs to the authority of any Judge to menace his personal liberty, unless for legal and sufficient cause, resulting from the interruption of the administration of justice, or an insult tó the person of the Judge, both of which are most explicitly disavowed. If deponent has offended against the laws of the State, he is ready to answer in' due course of law; but he interposes the immunity of the constitution against being deprived of his liberty, except by the judgment of his peers, in due course of indictment and trial by jury.
    As the Court has intimated that deponent had not made any acknowledgement as to the proceedings in Court, deponent expressly disavows.the slightest disrespect to the Court., and only -resorted to the expressions in Court, because he felt himself publicly and intentionally insulted, and his remarks, so elicited, were solely and entirely intended for the advocate, and had the offence been out of Court, it would have been there, and there only, repelled ; and deponent expressly denies all intention to disturb the peace of the Court, and he exceedingly regrets that any such personalities should have been exhibited in public, but he was the first victim.
    BENJ. F. HUNT.
    Sworn to this 23d Nov. 1849.
    Dan ’l. Horlbeck, C. C. /S'. & C. P.
    
    The respondent having made no sufficient return to the rule in this case, it is ordered, that he be fined in the sum of two hundred dollars.
    (Sigued,)
    EDWARD FROST.
    The State of South Carolina.
    
      Richard Yeadon ads. The State.
    
    Before his Honor Judge Frost, at Charleston, 23d Nov. 1849.
    This respondent, on whom a rule has been served, to shew cause why he should not be attached for a contempt of the Court of General Sessions for Charleston District, by reason of words spoken in presence of said Court, at a special Court
    holden on Monday last, the nineteenth instant, for cause, respectfully sheweth, that he acknowledges and deeply regrets that he was forced, under the influence of high provocation and excited feeling, to commit a contempt of Court, on the occasion referred to in the rule, but a contempt entirely wanting in the element of designed or voluntary disrespect or discourtesy, either to the Court or his Honor the presiding Judge; that no one is more sensible than this respondent of the indecorum of making the Court House an arena of personal insult, quarrel, or conflict, and he recognizes the obligation and duty of the bar (of which he has the honor to be a member) to aid and unite with the Court, in preventing and supporting, instead of originating and participating in, scenes so discreditable to the profession, and so much calculated to lessen the reverence and impair the authority and usefulness of our Courts of justice. That while confessing, however, his departure from proprietjq on the occasion in question, and by no means designing to justify the conduct which has subjected him to the mortification of this proceeding, this respondent owes it to himself as á man, and to his profession as a practising attorney in the Superior Courts of his native State, to submit matter in excuse or mitigation of his oflence, in manner and form following :
    That this respondent, on the occasion of this rule, was in the lawful and proper discharge of his professional duty, according to his conscientious sense of right, stating and arguing his point, without designing or giving offence by word, look, gesture, or manner, to the opposing counsel. That for so doing, this respondent was wantonly assailed by gross and repeated discourtesy and insult — repeated after explanation by this respondent, and again repeated, after explanation kindly volunteered and added by the Court, (in still more offensive terms) — and this respondent must be permitted (while meaning thereby no disrespect to the Court) to add, and trusts he will be pardoned for adding, unrebukecl by the Court, until this respondent had been goaded to retaliation. That this respondent, thus wantonly assailed, provoked, and aggravated, would have been either more or less than man, had he been able to preserve his equanimity and self-command ; and he confesses, however erringly he may have acted, that he felt at the time, and his sober second thought scarcely admonishes him otherwise, that he had forborne until forbearance ceased to be a virtue, and that it was due to self-respect to repel such an assault without delay, and on the spot, even in the high and respected presence in which it was made.
    And this respondent, again utterly disclaiming all intentional disrespect to the Court or its presiding magistrate, and, on the contrary, professing and feeling the highest respect for both, for the one, officially, and for the other, both officially and personally, respectfully apologizes for what he felt constrained to do by more than common aggravation ; and he humbly hopes that much will be pardoned to human infirmity, and also to manly and professional feelings, roused to the vindication of personal and professional honor.
    • This respondent submits himself to the judgment, and casts himself on the clemency and tender consideration of the Court, and respectfully subscribes himself,
    RICHARD YEADON.
    Mr. Y. states, that he never used or designed to use, any personality to Col. H., in excepting to the taking of a memorandum check, instead of a deposite of money, in the case of M’Dermaid and wife v. Earnest. That on the contrary, he carefully avoided all such personality; that he never questioned, directly or indirectly, the validity or sufficiency of the check, nor even named or hinted whose check it was — that Mr. Y. believes it was not the check of Col. H.; that Mr. Y. said he did not object to the check or that of any particular individual, but that he would.make the same objection to the memorandum check of the richest man in the community. Mr. Y. denies that there was any prying or peeping in the case, but thatj he merely questioned, as he had a right to do, the propriety of the clerk’s course, after the clerk had made it public, by stating it in open Court.
    
      Mr. Y. denies that he was a volunteer in the case of M’Der-maid and wife v. Earnest, but avers that he was the fee'd and paid counsel of the defendant, especially instructed to enquire into the regularity of the security for costs, having the approbation and acting on the request of his colleague, Mr. Seigling.
    Mr. Y. states, that with the costs, he had and could have no connection whatever, as he was only assistant counsel, and the costs belong exclusively to Mr. Seigling, the attorney on record.
    RICHARD YE AD ON.
    November 23d, 1849.
    Mr. Yeadon’s return to the rule in this case, having been heard, it is ordered that the rule be discharged.
    In the Court of Sessions, Nov. 23d, 1849.
    Hunt, in pro. per. for the' motion.
    The motion to strike the case from the Appeal Docket, on precedent from the English books, cannot prevail. The Revolution has constituted us a Republican, and no longer a Monarchical Government. In England, the king is the court, once it is said in person, and still in the persons of his Judges, and hence this doctrine of contempts triable by the party who is prosecutor, jury, and almost executioner too. The word and the thing do not belong to the jurisprudence of a free country. I fully admit, that any impropriety in court, like disturbing a religious congregation, is an offence punishable as a misdemeanor. But beyond the power to remove the offender from the presence and1 hearing of the court, there is no necessity for action by the Judge, other than to bind the accused to answer, as every free man alone should be compelled to answer, by imprisonment and trial by jury. Let the Judge be the witness and be subject to cross examination, and let twelve free men say guilty or not guilty. I should have been proud to show an independent jury, that I at least did not degrade myself by an emeute in court, but explicitly stated my desire to settle personalities out of the presence of the Judge. I should have proved' what was the entire state of facts, instead of being compelled to be heard on the statement of the Judge, who I consider directed his power to keep order against the wrong person. J. put no faith in the decisions of English Judges, personating the king and acting on subjects and not citizens. Now who are the Judges 1 They have no hereditary prerogative, either directly or by imputation, as representing any other majesty than other men. They are public servants, selected to serve the public, and must be respected and' protected fully, in quiet and order-,]y discharge of their duties. But the power to put their , hands into the pocket of a citizen, or shut him up in prison at his own discretion, is not necessary to the keeping the peace. The removal of the alleged offender beyond the court, and binding him to answer, is all that is necessary $ beyond that, power to fine and imprison, without indictment and conviction, is but the remnant of royal prerogative, and utterly adverse to the equal rights of the citizen. A lawyer is the representative of his client — of the sovereign people— and as such, is fully on a level with the Judge, who is no more than also a public servant; and as the lawyer must necessarily have to protect his client against the prejudices, the ignorance or the wilfulness of the court, it is wholly unjust that the court should stand in relation, to the bar as a criminal accuser, entitled to decide for himself, and mete out his own measure of punishment, extending to the bread and liberty of as free a man as himself. It is extending to one equally the servant of the people, a good share of royal prerogative. It is as important that the people should protect whom they employ, against the injustice of the general agent, the Judge, as it is indispensible to protect the Judge from the injustice, obloquy,- or interruption of a lawyer, who must be silent when called to ord.er; and if he is, the Judge ought not, in the excitement of what he deems a contempt, to invade the person or the purse of the lawyer, but leave him to be tried by his peers. To deprive a free man of his liberty or his money, without the judgment of a tribunal wholly in-dependant of either litigant, is but a remnant of tyranny. It is possible that a Judge may have personal antipathies ; he may be mistaken from design or ignorance, simply because he is a man, and subject to the 'infirmities of his race. An election to the bench is not like an election by a college of Cardinals. It does not convert mere human fallibility into the unerring Pontiff. He is the same man as when at the bar, and he ought not to wish for power beyond his personal protection, and order and silence, and the commitment of an offender to the regular tribunals of the country.
    There isa conclüsive reason against this ad libitum invasion of the purse or person of a lawyer. The Appeal Court take the Judge’s statement in a case in which he is personally implicated, and the lawyer, in the Appeal Court, has no means to compel the statement of the other side. Affidavits are voluntary; no man is compelled to make one, and few are willing to volunteer against a Judge who may remember it. But without the power “ to send for persons and papers,” and compel a reluctant witness to disclose the whole truth, and appear, is bitter mockery. The Judge tells his own story, and he tells it to his fellows, who may each in turn have his case to decide. I aver that the only record I can procure, does not give the statement which the compulsory attendance and cross examinations of witnesses would secure.
    on I contend ; the report of the Judge mits that Mr. Yeadon, in a matter evidently personal, too, proceeded without any regard to the pain he inflicted. A call was made to order, and had the Judge then been as peremptory in the exactions of his duty as he was in inflicting a flue, enormous for ordinary gross misdemeanors, he would have then decided if this “peeping behind the record”was admissible. He, in the end, ruled that it was not, that the record was conclusive. Now what is the head and front of my offence? After every effort to stop Mr. 'Yeadon in his gross and unmannerly course, 1 simply said, “it was disgraceful ; that every member of the profession must feeMt to be so y’ and so it was, and so I still maiutain, and so will every man of common sensibility ; but when ihe court interposed, I expressly disavowed all disrespect to the Judge. It is not my disposition to offend any one incapable of self-de-fence, and I admit a woman, a clergyman or a Judge are under no obligation to defend themselves, and that it is unmanly to attack them. But a man. sui juris, who undertakes to be offensive, must expect the chastisement he merits. Yet, in this instance, the Judge let off, with impunity, aman who, it is true, after he had received, as he avers, the first offence, descended to the language in the report. I am aware that when a gentleman deems he is injured, mere words, however gross, which he substitutes for redress, are inoperative, and are set down as entirely without power to convejr •insult. After the first offence any abjurgations are the imbecile outbreaks of one incapable of seeking other redress.— But I aver the Judge, by neglecting and refusing to decide the questions of order, was the true cause of all the difficulty, and so a jury, or a Court of impeachment, would decide. In the Court of Appeals, I must be heard on the statement of my accuser, who even enters the councils of the tribunal to which I appeal, while I have no compulsory process to subpoena witnesses. If I resort to impeachment, I shall' be told that requires to be sustained by proof of moral guilt; and thus all the evils of one being Judge in his own case, and the reporter of the facts, are entailed on the victim, I aver that Judge Frost was, himself, the cause of much that occurred, and that so a jury or the inquest of the State would decide, if all the facts could be extorted from witnesses compelled to testify. But what becomes of all the safeguards of liberty and property, if a citizen has no such power ? In the United States Courts, and in those of most States' of the Union, the Judge is restricted to the mere power to remove one interrupting the proceedings of his Court, and thus be able to proceed in peace. All beyond that is a criminal ac- • tion against a free man, and demands the sanction of a jury, where I invite an investigation. But if a lawyer may have the means of living taken from himself and his family, at the will of a Judge — or be imprisoned and deprived of the means of supporting his family, without trial by jury, by a jury not implicated in the result — a lawyer is the poorest creature in the State, worse than a petty larceny thief — his money or his liberty can be taken from him without indictment or trial1, and the extent of his punishment is to be measured by a Judge who may desire to avert odium from his own imbecility, by attracting it to the victim by the extraordinary amount of his fine or imprisonment.
    There is no doubt that any contempt of Court is an indictable offence, and so long as the peace of the Court room is not disturbed, one would think that a Judge would prefer to submit the case to a jury. - There is no exigency requiring such “ hot haste.” It is admitted that when called to order, I instantly obeyed — why then decline the plain resort to an indictment and conviction ? Are the Judges to set in their own cases, examples of their disregard to the impartiality of the people ? Do they cherish prerogative instead of equality?
    I-insist this Court ought to set aside the fine of $200, and the imprisonment consequent on its non-payment, and direct the Attorney General to present the matter to a grand juryj and if they find a bill to the petit jury, and a conviction, it will be time enough for a Judge, not personally prejudged, to inflict any punishment merited.
    This involves not only the liberty and property of many lawyers, but what is more, that of every citizen who employs one ; and if a lawyer is to do his duty to his client, with arbitrary fine and imprisonment staring him in the face, the citizen- may well suspect the independence and fearlessness of lawyers, to whom the defence of their lives and fortunes are committed.
    H'áyne, Att. Gen. contra.
   Curia, per O’Neall, J.

When this case was called, the Attorney General moved to strike it from the docket, on the ground, thati an order attaching an Attorney at law for a contempt until a fine be paid, is not the subject of appeal. The case of King v. Davison, was cited and relied on. In it, the defendant was fined three several times for using improper expressions in Court, in the presence of the Judge. The power of the Judge to fine for the contempt, was collaterally drawn in question; and it is asserted by all the Judges. About it, I entertain no doubt. I presume all my brethren will concur in C. J. Abbott’s expression, as to the power of. the Judge to fine for a contempt, when he- said, “ that he has the power to do so, I can entertain no doubt; no lawyer can doubt the power of every Court to fine for contempt.” But, notwithstanding this undoubted power, still, where it is exercised, every citizen has the right to appeal. It was said in Pinckney v. Hennegan & Jones, “ that is what is guaranteed to every one by the constitutional provision requiring the Judges to meet and sit for the purpose of hearing all motions which may be made for new* trials, and in arrest of judgment, and such points of law may be submitted to them.”

Notwithstanding this right of appeal, still (as was decided in the case of Pinckney v. Hennegan & Jones,) every appeal does not necessarily, in all cases, operate as a supersedeas. In the case of a contempt committed in the presence of the Court, as in this case, if the sentence had been instant imprisonment, no appeal could have superseded it; it must have been executed. The same result would have followed, in the case of a fine where instant payment was directed to be enforced. But when, as here, there was no time fixed for payment, or for the issuing of the attachment to compel its payment, the appeal, though not operating as a supersedeas, may be considered as, by the consent of the Judge, suspending all proceedings, until the final hearing of the appeal. We all, for these reasons, agreed that the case should not be struck from the docket, but that the defendant should' be heard on his appeal.

This has been done, and we all agree, not only as-to the power of the Judge to fine for a contempt committed by an attorney, in the use of improper expressions towards another-attorney, in the argument of a cause in the presence of the Court, but also, that the Judge may or not, in the exercise of his legal discretion, use that power, and that the punishment to follow its use is altogether discretionary with him. Extraordinary cases might, but probably never will, occur, in which this Court might hold, that the power to attach for such a supposed contempt had been improperly used. The proceeding by rule is the result of the provision contained in the Act of the Legislature, passed in 1811. It grew out of the commitment, by Mr. J ustice Grimke, of the constables, at Newberry, in 1807, who were found absent from their posts, without requiring them to shew cause. Its provision, that no one shall be imprisoned without hearing him, necessarily, in a case like the present, makes the proceeding by rule proper. It has the sanction of a well settled practice, and is prudent, as affording cooling time and an opportunity for the interference of friends.

That the Judge, in the case beforeus, had no other alternative than to fine the defendant, is so perfectly, manifest, from the papers laid before us, that it is hardly necessary to-say a word about it. Let it be conceded, as the defendant supp0ses, that Mr. Yeadon was the assailant in the unbe'coming war of words between them, still, on recurring to his return to the rule, it will be seen he made to the Court every atonement in his power, when he said, “ this respondent again utterly disclaiming all intentional disrespect to the Court or its presiding magistrate, and, on the contrary, professing and feeling the highest respect for both — for the one ■officially, and for the other, both officially and personally, respectfully apologises for what he felt constrained to do by more than common aggravation, and he humbly hopes that much will be pardoned to human infirmity, and also to manly and professional feelings, roused to the vindication of personal and professional honour.” After this, nothing was left to the Judge but, in reference to him, to extend the forgiveness prayed — though here I must be permitted to remark, in reference to the closing words of the return above cited, that I think neither “personal or professional honour” was ever vindicated by rough words used in a Court House.

The defendant deprived the Judge of the pleasant duty of extending the same clemency to him which he did to his adversary, by putting himself in an attitude of justification throughout; his disavowal of disrespect to the Court was only made after the Judge had, in delivering his judgment, pointed to the entire absence of apology to the Court for the rudeness of which he had been guilty. But it is unnecessary further to refer to the facts of this unpleasant affair. The Judge’s discretion was. we think, properly exercised. He regretted, as well as the whole court now regret, that one of the oldest members of the Bar, distinguished for his talents, •and remarkable for his success as an advocate, should have evoked the necessity of inflicting punishment for a contempt. Still the example was the more necessary and proper.

The withdrawal, by the defendant, of his additional .grounds of appeal, so improperly worded and presented, and the ample and satisfactory apology by him submitted to this Court, gives us reason to hope that reflection will cause “ good .and not evil” to come out of this, to the Court, unpleasant ■exercise of the power of punishing for a contempt.

The motion is dismissed.

Richardson, Evans, Wabdlaw and Frost, JJ. concurred.  