The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1904-06-30
Full Opinion in the Dam
iels Case.
Continued from First Page.)

| TO ascertain its meaning anu u w. CoiL-
| struction. 1t was enacted shortly al
! ter the acuuittal of Judge Peck, or MIS-
| souri, on an impeachment preferred
| against him for issuing an attachment
| against a member of the bar for max
| ing a publication in relation TO SUIT
| which had been decided by that judge.
| On the trial the law of contempt was
| deliberately examined by the learned
| managers of the House OF Repfesen-
| tatiVeS and the counsel Tor the Judge
| 1t was not contraVerted that all courts
| had power to attach any person who
| should make a publication concerning
| a cause during it's tendency ana all
f! admitted it's ilegality when done while
| the cause was actually on tflal. IL
| had too often been exercised TO ascer-
| tain the slightest doubt that the courts
| had power. both by the common law
| and the express terms of the judiciary
| act, sec. II q STATE as declared by
! the Supreme Court to protect their
| suitors by the process of attachment
with this distinct knowledge and
| recognition of the existing law, 1t can
| not be doubted that the whole subject
was within the view of the Leglsla-
ture nor that they acted most ad-
| visedly on the law of contempt, in
| tending to define in what cases the
| summary power of the courts should
| be exercised and to confine it to the
! specified cases. From the title ana
| phraseology of the act it would seem
! to have been their intention to declare
! that it never existed in any other
| cases than those enumerated. 1t is
declaratory act which is a declaration
| of what the law was, is and shall
| be hereafter taken when put into the
| form usual in statutes which operate
| to settle the law retrospectively.
The acts of 1881 must be taken
| to be the declared construction of this
| and all other laws limiting it's oper
| alton in the manner prescribed and
| as generally considered, Congress is to
this court what the Constitution is to
! the Supreme Court 1t Is
/ in the discretion of the legislative
| power to confer upon the courts
| summary jurisdiction to protect their
suitors or itself by cummahy ko;snoa
SuitorS or itself by, summary process
! or to deny it. It has been thought
| proper to do the latter. in language
| too plain to doubt of the meaning OF
| the law or if it could be doubted by
| any ordinary rule of construction, the
| occasion and circumstances of its en-
| actment would most effectually remove
| them. 1t would i'll become any court
| of the United States to make a strug
| gle to retain any summary power, the
exercise of which is manifestly contra
ry to the declared will of the legisla-
| tive power.
"The law prohibits the issuing of an
| attachment, except in certain cases,
of which the present is not one. 1t
| would therefore be not only utterly
useless, but place the court in a posi-
| ticn beneath contempt to grant rule
| to show cause why an attachment
should not issue, when an exhibition
| of the act of 1881 would show most
| conclusive cause. The court is dis
| armed in relation to the press; it can
| neither protect itself nor its suitOrs;
| libels may be published upon either
| without stint; the merits of a cause
| depending for trial or judgment may
| be discussed a t pleasure; anything may
| be said to the jurors through the
| press, the most Wilful 9miSrepreSenta-
| tons made of judicial proceedings, and
| any improper mode of influencing the
| decision of causes by out of door in
| fuence practiced with impunity."
| Rapalje on Contempt in section So,
| says:
"But mere libels on the judge, as
| man and an officer. printed in news
| paper, are not contempts. Thus
newspaper article, published during
| the sitting of a court pending the
trial before that court of the prisoner
| indicted for murder, charging the pre-
/ siding judge of being an abettor of the
| murderer is not a contempt of the
court, but a mere libel upon the func-
| tionary.
1.-The force of public opinion in this
| country in favor of the freedom OF
| the press. has restrained the free eX-
| ercise of the power to punish this
| class of contemptS and in many juris-
| dictionS statutes have been enacted
| depriving the court of the power to
| punish them. 1t was taken from the
| Federal courts by the act of Congress
| of 1881. which ,act depriVes those
| courts of the common law power to
| protect by this process. their suitors,
| against the libel of the press, though
published and circulated pending the
| trial of cause therein
| Under the Judiciary act of Sept.
| "a. 1889, Chap. 20, Sec II. courts of
! the United States were given power
to punish by fine or Imprisonment
at the discretion of the said court, all
| contempts of authority in any cause or
| hearing before the same"
The act of 1889 did not define or
| limit the power or authority of the
| courts Of the United States to inhjct
| summary punishment in any cause or
| hearing before them. 1t was also ST
| lent as to any rules of procedure for
| determining what constituted con-
| tempt. w Hat particular oiCLo COllSIl-
| tuted contempt, as well as the
mode of procedure against the often
| der, were to be determined in accord
| ance with the established rules and
| principles of the common law with
| reference to existing conditions I'm
| der this act it was contended that the
| authority which courts had to punish
| for contempt at their discretion had
| been greatly abused, and in order
| that the citizen might not be subject
| ed to annoyance on account of the
commission Of acts not contemplated
| by the law, and that the freedom of
the press, as well as the liberty of the
individual might be preserved in the
| spirit guaranteed by the Constitution,
Congress defined the limit to which the
| courts could go in such cases. Sec
| ton 725 of the Revised Statutes is In
the nature of limitation of the pow
er of the court to punish for con-
| tempt
An examination of the record dis
closes the fact that the petitioner is
the editor of daily newspaper pub
| lished in the city of Raleigh, North
| Carolina, where the court was held.
1t also appears that on the goth day