The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1884-07-08
mr.. Hubbnrd's Argument.

~. AAAs AA~oo@stu q argument g' .III.
Mr.. Hubbard followed for the defend.
ants. He insisted that the rule was i'm.
providently awarded because il was no,
founded on affidavit. He cited az cases in
which an affidavit had been held ueces.
sary Bates case, IS N. II. 325; In re Judsou
. Blatch AS; 10 $. c. 81; SO Ind, 1866: Ia
Nebraska 45l; IS N. @. 3S5 snd Burns csss
8 Wheat 529. and challenged the produc.
tlon OF contrary. decision OF any court,
II the matter complained Of took place in
the presence OF the court, no affidavit was
needed, but for example, how conld ibe
court know judicially, or in what method
known to the law had 1t learned thst @. B.
Hart WAS chief editor Of the INrELLlGENcgR?
Mr.. Hubbard further claimed that the
rule was impro,idently awarded because
there was no charge that deiendants had
published the article complained OF, this
proceeding is crimina! in ltd nature, Is
Graft 10. The same degree Of certainty is
required rs in criminal prosecution, Is
Neb. AS, II Bush (ky.) 90. It was ex-
Bressly held in er ,parte Ireland IS Tex.
Si4, that the proceedings were bad for
want OF direct averment that the defend.
ants had published the obnoxious article,
Here there is no such averment, and no:
even an svesment tina. they were the pub.
fishers or editors Of the ISrELLIGEslEB at
the time the article was published. Is. 4
Z Proceeding to the discussion Of the stat.
ute limiting the powers Of courts With re-.
gard to contempls, Mr.. Hubbard argued
that the statute Was we'll and wisely drawn.
Only euch PAYERS are inherent in court
as are necessary to the undisturbed admin.
lstratiou OF justice by it. All these powers
are eaved to the courts by the statute; and
the Legislature very wisely limited the
amount Of punishment in the Rrst claes of
cases mentioned in the statute, for il was
in that class that the personal resentments
Of Judges would most likely be found.
all powers not necessary are taken away
by the statute. This, however, does not
interfere with the punishment Of con.
tempss alter conviction upon Indictment,
or with the power Of the courts to bind
over the accused 10 keep the peace or to
anawer an indictment. .''5l... a z, Z. 90
There is but one case holding invalid
such statute as ours, Morrill's case 16
Arkansas, and in that case no punishment
was inflicted, the Court having taken six
months to cool of; On the o, her hand such
statutes have been held valid and Consti.
tutionsl by the courts OF North Carolina,
(65 N. @. 353); Iowa, Is Iowa 245); Tennes.
see, Is Cold 22l); Florids. III Fla. la;
Mississippi, q =: & N. 1871; Illinois, e
scammon S95); California, l42 Cal. 4l2);
New York, Is Hun 3l7j; Pennsylvanis, Il
Grants cases 1881; Connecticut, (M;ddle,
brooks case 43 Conn, J; the United States,
Il Kent's Com. SOl; l Wall, it,, l and u
Am. Dec. $50 1note}; and Virginia, a
Leigh 6S5 .s,3,9 1. FTi Z 4
Suppose all these courts were wrong and
the Arkansas Court right, still in view OF
the law thus settled In all these States
what becomes OF the argument OF necessity.
The power 10 punish for constructive con.
tempt cannot be necessary when in a
dozeh leading States, the conrts get along
without it, and the administration OF ius.
tice ID at least as much respected in those
States aa in Arkansas. l3S > TFg p; 2 '1I4333
To punish summarily for contempt is
forbidden by Art III, Section 10 OF the
Constitution, under which no one can be
deprived Of lie liberty or property without
due process Of law and the judgment Of bis
peers. I, e. 2 u;
Mr.. Hubbard next inquired, what is
the gravamen OF the charge here? Ia II
that tho editorial was insulting to the
judges or tina! 1t Was an attempt to inilu.
ence the determination OF a pending castI
II the former, this Is not the prope.
method Of punishment. The Judges can.
not convince the public that the punish.
ment ia not dictated by passion. Lat The
proceeding be BY indictment or civil suit
where there can be cross examination, q
There is no necessity for this proceeding
The power to punish for contemp,s is pre-
sentative not indicative. It is Ike Ii,