The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1891-02-12
CONTEMPT OF COURT.
Hearing in the Case of John E.
Bush = Motion Made for a
Discharge of the RuIe-4r-
~ SuInenf of Counsel.

The Supreme Court in banco open
ed at 10 O'Clock this morning. Case
called was that of John E. Bush to
show cause why he should not be
adjudged guilty of contempt of
Court.
Mr.. G. w. Ashford appeared as
counsel for respondent, who read a
motion to discharge the rule, as fol-
lows:
John E. Bush, respondent in this
cause, moves the Court that the rule
entered against him on the 9th day
OF February instant, wherein and
whereby this respondent is cited to
appear before this honorable Court
and to show cause why he should
not be adjudged in contempt of said
Court; may be discharged and that
this respondent may be allowed to
go free of any further proceedings
herein.
And respondent alleges the follow
ing grounds for the discharge of said
rule, viz:
l. The act complained of in the
petition upon which said rule is
based, is not in law a contempt of
this Court, for which this Court has
power to punish this respondent.
2. This Court cannot legally pun
ish as for contempt, a publication
of the nature of that herein com.
planned of, made in newspaper and
not done in the immediate presence
of the Court.
3. No publication out of Court in
relation to the Court, or to any of its
individual members, amounts in law
to contempt, and the same cannot
be punished as such.
4. 1t is nowhere alleged or init
mated in said petition, or in the rule
issued in Pursuance thereof, that the
said publication was made while this
honorable Court was sitting as such,
nor that said publication was de
signed or calculated, or had any
tendency to obstruct, embarrass or
prevent the due administration of
justice.
5. If this respondent were in fact
the publisher of, or legally RESPONSE
BILE for said publication, which he
doth in nowise admit to be true, then
such fact and the offense involved
therein are matters concerning
which this respondent is, by the
Constitution and the statute law, en-
titled to trial by jury of his peers. |
Attorney General Peterson, not
being ready, asked for time to pre-
pare reply to the motion, which re-
quest was granted by the Court. An
adjournment was made till 1 80 P. M. |
The Court convened at 1:35
o'clock in the afternoon, when Mr..
Ashford proceeded with his argu-
ment. He confined his remarks to |
reference to the different contempts !
of Court, the kind under which the /
respondents case came and to quot
ing various authorities on law to |
his arguments.
He traced the origin of contempt |
of Court to an ancient period in
the history of the British Isles. He |
classified the same into the direct |
and the consequential contempt.
By the former the contempt con
sists of an open insult to the Court,
open vituperation, hindrance to the
passing of DEGREES, and disturbance
at the time of the session of the
Court was being held. Consequen-
tial contempt comprised a more in
direct contempt, having a tendency
to prejudice the Court in the eye
of the jury and people. Gases of
direct contempt of Court are not so
numerous as the construction con-
tempt, as the latter is styled in later
times. The point and pith of his
arguments lay in the fact that the
Legislature had abolished construc-
tive contempt of Court. Under the
constructive contempt the present
case undoubtedly was to be classed.
While taking for granted that the
publishing of the articles in ques-
ton before the passage Of this law
would make the publisher liable to
punishment, since the abolishing of
the former constructive contempt
law, the case was one in which no
punishment could be made. If con-
sidered a constructive contempt,
counsel held that the Court had no
authority to punish. Gases were
cited showing the case constituted
nothing of contempt under the new
law. There is nothing in the publ
cation that in any way interferes
with the Court, to influence the
opinion of jurors, or to bring
the Court into contempt. 1t
was worthy of considering whether
the publication of the respondent
was brought against the Court or
against individual members of the
Court. It is possible that one or
several members of the Court being
libeled without the Court being
libeled. If the article had been read
in Court with the intention of injur-
ing decision of Court or to put it in
any disrepute, etc, then that would
be different matter. But no trial
was pending, the Court was not in
session, the publication mad no tend
ency to interfere with a case then
pending, consequently it did not con-
stitute contempt of Court. In this
case it cannot be held the Court was
in session or in banco, hence the
publication had no tendency what
ever of interfering, obstructing or
influencing the opinion of the Court.
Nothing in the publication had any
design to exert influence, consequent
" could not come under the head of
constructive contempt