The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1905-09-06

| 1HlS assault is Cne most grleVOuS
character of contempt against the
court imaginable. 1t tends to degrade
the administration of justice and hui
initiate the Judge His Honor. who is
"a brave and fearless man, in this in
stance in order to uphold and main
tain the dignity of the bench, received
without physical resentment a blow
upon his person the mark of which
he now bears to public gaze while pre-
siding over the courts of Alamance
county. If this conduct is tolerated
and the courts declare themselves
helpless to defend their judges against
such assaults while off the bench, then
we may all we'll join with the sheriff
| lin adjourning court and cry God save
the State and this Honorable Court
Attorney General Gilmer'S Argument.
| Attorney General Gilmer, who fol-
: lowed Mr.. Brooks for the state con-
| fined himself almost entirely to the
discussion of the constitutional right
| of the courts to protect themselves
| through attachments for contempt, cit
| ing numerous authorities and also ar
guing that in no North Carolina case
| had the court gone so far as to con-
coded absolutely the power of the Leg
| iSlature to repeal the common law
| with respect to punishments therefor.
His argument was based, LIST. on the
by the judge; End, on the inherent
power of courts of record to punish
for contempt; 3rd, what contempt can
be punished summarily; and, 4th,
power of the Legislature to abridgc
the inherent power of the court to
punish for contempt
In answer to the claim that the
statutes had repealed the powers of
the courts except as therein speCi-
ri
he cited Kccnc vs.. Haywood, 66-1,
relative to the Act of 1871 in which
it was raid: The constitutionality of
this statute, with certain savings in
respect to the inherent rights of the
court. is settled by Elk Parte Schenck,
65-253.
And in In re Oldham. it was said by
Smith, G. j., that 1T cannot be doubt
ed that the withdrawal of the power
to punish for contempt would be to
cripple it in the exercise of its func-
tons and impair it's essential attri-
butes; and that legislation attempting
to do this would be wholly imperative
and void. 1t was needless to cite au-
thoritieS in support of a proposition
so manifest, for otherwise justice could
not be administered and the court
would be deprived of the means of
preserving it's own existence"
Although the cOnstitutionality of the
statutes had been generally admitted,
nevertheless certain inherent rights
had been saved TO the court.
In NeeI vs.. The State, 18th Eng. (9th
Ala.), p. 259, separating the personal
ity of the judge from the office. the
court said by the common law a
court may punish for contemptuous
conduct toward the tribunal, its pro-
cess, the presiding judge, or for in
dignities to the judge while engaged in
the performance of judicial duties in
vacation, or for insults offered him in
consequence of judicial acts; but in
dignities offered to the person of the
judge in vacation, when not engaged
in judicial business and without refer
encc to his official conduct, are not
punishable as contcmpts'
when we talk of the court, we
mean its impersonation in a living,
moving man of flesh and blood, not
an intangible fiecting thing but an i'm
bodiment in living, breathing human
beingi" "a. .sA
In Baker vs. Georgia. Lawyers Re-
ports Annotated, Book 4. p. 1876 it is
said: "A court is. not dissolved by a
mere recess or necessary adjournment
from one day to the next"
In State vs.. Garland. 25 LA. An.
o32, while the Chief Justice of the
Supreme Court was reading an opin-
ion he was interrupted by a mem
Der of the bar. The Chief Justice di-
rected him to take his seat, and after
wards, after the court had taken a
recess, Garland, while i'm the court
room, committed a violent assault
upon the Chief Justice He was sum-
marily punished for contempt.
In Ex Partc McLcad. 100 Fed. Rep.
1870 at 1872 it is said: "Who would
have any respect for the authority Of
a court whose judi the moment he
left the court house could be sub
jected. with impunity, to insult and
assault because of acts done in his
judicial capacity while on the bench?
Is it i'm the power of any person, by
insulting or assaulting the judge be-
cause of official acts, if only the as
sailant restraints his passion until the
judge leaves the court building, to
compel the judge to forfeit either his
own self respect and the regard of
the people by tame submission to the
ndignity, or else set in his own per-
son the evil example of furnishing the
insult by taking the law into his
own hands? If he forbear for the time,
the resort to the criminal law, the
remedy is hardly better than the
wrong, since then he must become Il
private prosecutor in some other court,
and depend on it to vindicate the in
dependence Of his own court"
AS showing the practice in other
Jurisdictions as to contempt in cases in
which similar statutes had been enact
ed, the Attorney General cited State
vs.. Morrill, rs Ark 1888; Little vs..
State, 30 Ind. 1888, 16 Am. Law Rep;
People VS.. StapIetOn, Cal, 33 Pac.
Reports, III; Hale vs.. State, Ohio, rs
n. G. 200; In Re Chadwick, Michigan,
81, n. w. Rep. 1875: State vs.. Shep-
herd, Mo-. rs, 5. w. SO.
In all of these cases the contention
that the court was controlled by the
statute and could not go beyond it's
provisions was not sustained In two
or more the statutes in question were
identical with those in force in North
Carolina.
The doctrine that the right of self
protection was inherent in the court
was, said General Gilmore, as we'll
established as that of self-defense,
which had never yet been the subject
of a statute, but was written in the
hearts of men long before a Legisla-
ture ever sat-"
Major Guthrie Replies.
Replying to the argument of the
State Major Guthrie took up the Ma
gle case relied upon and quoted from
the minority opinion to the effect that