In re Fite | Cases | Westlaw

The issues presented by the rule and answer in this case are of the utmost moment—indeed, they are of graver importance than any other questions with which this court has been called upon to deal. Had we consulted our personal feelings, we would infinitely have preferred to take no official notice of the article written by the respondent, and let his conduct receive that censure which it merits from an enlightened public opinion. Many times have courts been forced into a trying situation such as that which now confronts this court. In a similar case in Virginia many years ago Judge Dade thus gave expression to his own feelings upon the subject: “If the judges, in the discharge of their official duties, could permit themselves to be influenced by personal considerations, they might deplore the occurrence of this case. They cannot but feel it a delicate and invidious task to define and decide upon the extent of their own powers, nor be ignorant that the judgment they are called upon to render may expose them on the one hand to the imputation of timidity and irresolution, or on the other to that of usurpation and tyranny. The verity of these suspicions would not be more unworthy of the judges than the fact of their shrinking from this question, because of the consequences in which themselves might be involved by it. Every occasion of resort to their extraordinary powers should, without doubt, be carefully avoided by them, but, when forced *412 upon them, should be met in the front with deliberation and firmness. And although the issue of the contest might be to prove them naked, powerless, and defenseless, they would yet prefer this to a flimsy panoply of deception, which would be a defense against the weak only, until the strong should please to tear it from their shoulders. With such sentiments they have entered upon the consideration of this case, conscious that they have less at stake than the public, and regardless of consequences, which could not have been averted without a dereliction of duty.” Com. v. Dandridge, 4 Va. 414. Speaking along the same line, Lord Chancellor Cottenham said in Charlton's Case: “If I consulted my own personal feelings upon the subject, I should pass by these [letters] as a foolish attempt at undue influence; but if I were to adopt that course, I should consider myself guilty of a very great dereliction of my high duty.” 14 Eng. Ch. Rep. 343. Every high–minded judge must share the sentiments expressed by those two jurists. Indeed, I may say, for my associates as well as for myself, that this rule would never have been issued except from an impelling sense of public duty. Our duty in this case lies midway between judicial tyranny and judicial timidity. If the duty is plain the consequences of its exercise are of comparatively little moment.

We cannot be deterred by the suggestion that we are judges in our own case, for we are following precedents handed down from the earliest times, that only the court whose dignity is offended has jurisdiction to punish the offender. Moreover, this is not our case. It is the case of the people, whose servants and representatives we are. It may be granted that the judge cannot be completely separated from that intangible thing called the court; but, when the motives and conduct of the judge are impugned, the integrity of the court is assailed, the administration of the law is embarrassed, and the law itself brought into dispute. The people have a right to demand of the individual citizen, not only obedience to the law, but proper respect and regard for the authorities appointed by them to administer the law. When they either directly or through their representatives commission their judges, they in effect say to the individual members of society: “These servants of ours must be obeyed and respected as such so long as they are in commission, and we confer upon them full power and authority to compel that obedience and respect to which they are, as our representatives, entitled.” No one contends that judges are beyond fair and respectful criticism for either personal or official conduct. No such contention would be admissible in a free government; and, indeed, such criticism is necessary to the maintenance of an upright and unsullied judiciary. This court was created by the sovereign people for the public weal. It is incompatible with the public interests and inconceivable that the people could have intended that one member of society should be permitted, by spoken or written language, or by overt acts, to impair the efficiency of the court or destroy the usefulness of this agency of the people, created to aid in the preservation of law and order. The people were careful to insure the independence of the judiciary by providing that this department of the government should remain separate and distinct from the legislative and executive. And, as if to emphasize the important position of the judiciary, it was expressly provided in our Constitution that legislative acts in contravention of the Constitution should be declared void by this department of the government. Civil Code 1910, § 6392. As a further safeguard to the independence of the judiciary, no judicial officer can be held civilly liable for his official acts, even when in excess of his jurisdiction. Calhoun v. Little, 106 Ga. 336, 32 S. E. 86, 43 L. R. A. 630, 71 Am. St. Rep. 254. The people, therefore, are vitally interested in the preservation of the integrity of their courts and the maintenance of that respect for constituted authority so essential to the perpetuation of our system of government. The effect on the individual temporarily holding judicial office is of small concern. An insult to him, which is not likewise an affront to the people whom he for the time being represents, may be passed unnoticed; but when corrupt motives are ascribed to him as the basis for his official conduct, and he is charged with violating his oath of office and with having intentionally, for base and unworthy reasons, rendered an incorrect judgment in a case pending before him, then it is well enough to inquire whether he ought not, in his official capacity as the representative of the people, to call the wrongdoer to account and punish him for the indignity offered, not to the individual as such, but to the tribunal commissioned by the people to administer the law in their behalf.

These observations lead me to inquire: (1) Did this court have jurisdiction to issue the rule? (2) Is the article written by the respondent a contempt of this court? (3) If so, is the showing made sufficient to purge the respondent of the contempt?

1. There is perhaps no principle better settled than that all courts, at least those of superior jurisdiction, have the inherent power to punish for contempt, even in the absence of any authority so to do from the legislative department of the government. A mere casual inspection of the digests and text–books will show the unanimity with which this proposition has been announced from the earliest times. If the court be statutory—that is, having only legislative sanction for its existence—its power to define and punish contempts may be limited by statute. If, however, the court be created *413 in the Constitution, by the direct sanction of the whole people, its power in this respect can be limited only by its creator. Upon this branch of the case, therefore, I need only inquire whether any limitation has been placed by the Constitution upon the power of this court to define and punish contempts. That instrument declares that “the power of the courts to punish for contempts shall be limited by legislative acts.” Civil Code 1910, § 6376. The General Assembly has declared that the power of the several courts in this state to inflict summary punishment for contempt shall not extend to any cases except “the misbehavior of any person or persons in the presence of said courts or so near thereto as to obstruct the administration of justice, the misbehavior of any of the officers of said court in their official transactions, and the disobedience or resistance by any officer of said courts, party, juror, witness, or other person or persons to any lawful writ, process, order, rule, decree, or command of the said courts.” Civil Code 1910, § 4643. If this section of the Code is binding upon this court as a proper execution of the constitutional mandate, then the respondent is not in contempt and cannot be punished. Indeed, under a literal interpretation of this section, one might threaten or even assault a judge off the bench to compel the rendition of a particular decision in a pending cause, he might publicly abuse and insult a magistrate to coerce a decision, or in revenge for one already rendered, and yet not be in contempt, provided only that the wrongful conduct be not in court or so near thereto as to obstruct the administration of justice. If this were true, deplorable indeed would be the condition of our courts, and no fearless and impartial man could afford to seek or hold judicial office. Fortunately for the public and for the orderly administration of law and justice, the Supreme Court of this state has expressly declared that the constitutional provision above quoted conferred authority upon the General Assembly to limit the punishment for contempt which a court created by the Constitution might impose, but did not grant the right to take away from such a court the inherent power to define contempts and punish therefor, within the statutory limitations. Bradley v. State, 111 Ga. 168, 36 S. E. 630, 50 L. R. A. 691, 78 Am. St. Rep. 157. This decision was by a full bench of six justices and was rendered more than 12 years ago. There having been no effort to amend the Constitution since this decision, it may be assumed that the people are satisfied with the construction placed upon the Constitution by the Supreme Court, and that they are willing for the courts to use the power, inherent in them under the common law, for the purpose of maintaining their independence and insuring the fearless and impartial administration of the law.

2. In determining what is the inherent power of this court in the matter of contempts, resort must be had to the common and statute law of England at the time of our adopting statute; for we are bound by that law as it then existed, unless it be unsuited to our conditions or has been changed by our Constitution, or some valid statute passed in pursuance thereof. As has been seen, there is no such statute. In Mitchum v. State, 11 Ga. 615, 631, Judge Nisbet, one of the purest judges who ever sat on any bench, used this language: “All courts have power to protect themselves from contempts, and indecency in words or sentiments is a contempt. This is a matter of course in the courts of civilized communities. Nor is it a matter of form merely; for no court can command from a civilized public that respect which is necessary to an efficient administration of the law without maintaining in the business of the court that courtesy, and dignity, and purity which characterize the intercourse of gentlemen in private life.” The following appears in Oswald on Contempt of Court, p. 9: “A court of justice without power to vindicate its own dignity, to enforce obedience to its mandates, to protect its officers, or to shield those who are intrusted to its care, would be an anomaly which could not be permitted to exist in any civilized community. Without such protection courts of justice would soon lose their hold upon the public respect, and the maintenance of law and order would be rendered impossible.” Blackstone declared that contempts were of two kinds—direct, those which openly insult or resist the powers of the courts or the persons of the judges presiding there; or consequential, those which “plainly tend to create an universal disregard of their authority.” Among the latter class of contempts he mentions “speaking or writing contemptuously of the court or judges, acting in their judicial capacity, by printing false accounts (or even true ones without proper permission) of causes then depending in judgment, and by anything, in short, that demonstrates a gross want of that regard and respect which when once courts of justice are deprived of, their authority (so necessary for the good order of the kingdom) is entirely lost among the people.” 4 Black. 284, 285. “A criminal contempt embraces all acts committed against the majesty of the law, and the primary purpose of their punishment is the vindication of public authority.” 7 Am. & Eng. Enc. Law (2d Ed.) 28. “A constructive contempt is an act done, not in the presence of the court, but at a distance, which tends to belittle, to degrade, or to obstruct, interrupt, prevent, or embarrass the administration of justice.” 9 Cyc. 6. “To charge a judge with injustice is a grievous contempt. To accuse him of corruption might be a worse insult; but a charge of injustice is as gross an insult as can *414 be imagined short of that. The arraignment of the justice of the judges is the arraigning the king's justice; it is an impeachment of his wisdom and goodness in the choice of his judges, and excites in the minds of his people a general dissatisfaction with all judicial determinations, and indisposes their minds to obey them.” Oswald, Contempt of Court, 49. In a leading case, often cited and referred to, that of the Printer of the St. James Evening Post, 2 Atk. 469, Lord Chancellor Hardwicke stated that “one kind of contempt is scandalizing the court itself.” A constructive contempt has been defined to be some act done, “not in the presence of the court or judge, that tends to obstruct the administration of justice, or bring the court or judge or the administration of justice into disrespect.” In re Dill, 32 Kan. 668, 5 Pac. 39, 49 Am. Rep. 505. Criminal contempts consist in “acts disrespectful to the court or its process, or obstructing the administration of justice or tending to bring the court into disrepute.” Wyatt v. People, 17 Colo. 252 (7), 26 Pac. 961. “The right to punish for contempts extends, not only to acts which directly and openly insult the powers of the court or the persons of the judges, but to indirect and constructive contempts, which obstruct the process and degrade the authority of the court.” Watson v. Williams, 36 Miss. 331. These definitions serve to illustrate in a general way what has been regarded as an indirect or constructive criminal contempt; that is, conduct or language which tends to scandalize the court itself and bring it into disrepute. The definitions proceed upon the idea that courts are the agents of the people, and that contempts against the courts in the administration of the laws are insults offered to the authority of the people themselves, and not to the agents of the law whom they employ in the conduct of this branch of governmental affairs. When this is understood, no good citizen will make the mistake of assuming that in punishing for contempt the judge is acting from private motives to gratify personal revenge.

We will proceed next to inquire how these general definitions have been applied, and then see whether or not the respondent is in contempt. All the authorities are agreed that it is contempt for one to use language or be guilty of conduct which has for its purpose the improper influencing of a court in reference to a decision in a pending proceeding. A publishing company was held in contempt for promulgating an article threatening the judges with public odium and reprobation if they did not decide a pending case a certain way. State v. Bee Pub. Co., 60 Neb. 282, 83 N. W. 204, 50 L. R. A. 195, 83 Am. St. Rep. 531. In West Virginia it was held that a publication in a newspaper with reference to a case pending in the Supreme Court of that state, which charged three of the four judges with attending a political caucus more than a year before and advising action out of which the case arose, and promising to hold the action legal and proper, and charged the court with agreeing to decide the case before an approaching political convention for political purposes, was a contempt of court which might be summarily punished. State v. Frew, 24 W. Va. 416, 49 Am. Rep. 257. In Massachusetts it was held that the publication of a newspaper article pending a trial and concerning the pending cause, which was calculated to prejudice the jury and prevent a fair trial, was a criminal contempt, and that the publishing company might be summarily punished. Telegram Newspaper Co. v. Com., 172 Mass. 294, 52 N. E. 445, 44 L. R. A. 159, 70 Am. St. Rep. 280. In Re Pryor, 18 Kan. 72, 26 Am. Rep. 747, an attorney addressed to the presiding judge a communication in reference to a cause pending upon a motion to dissolve an injunction, in which connection this language was used: “The ruling you have made is directly contrary to every principle of law, and everybody knows it, I believe,” and it is “my desire that no such decision shall stand unreversed in any court I practice in.” The attorney was adjudged in contempt, and the judgment was affirmed by the Supreme Court.

It is insisted by counsel for the respondent that the power to punish for a constructive or indirect contempt is limited to cases such as those just referred to; that is, conduct or language tending to reflect upon the court or influence its action in reference to a pending proceeding. Undoubtedly there are cases which either seemingly or actually support counsel's view, some of which they cite in their briefs. But all of us are of the opinion that this contention is supported neither upon principle nor by the weight of authority. Let us examine some of the decided cases. In Com. v. Dandridge, 4 Va. 408, a person who was interested in a pending cause met the judge as he was proceeding up the steps of the courthouse to take his seat on the beach, and used insulting language toward him. Counsel for the respondent in a rule for contempt sought to draw the same distinction which counsel now seek to make, which cannot better be answered than to quote the following language of Judge Dade in that case: “It is said that the attaching power may be exercised for contempts touching the prospective conduct of the judge, but not for such as touch his past conduct. In reason, I see but one pretense for this distinction: Threats and menaces of insult or injury to a judge, in case he shall render a certain judgment, may be considered as impairing his independence and impartiality in the particular case to which the threats refer. And if the power of punishment stop here, a curious consequence may ensue. A man may be attached for threatening to do that for which he *415 could not be attached when actually done. One says of a judge, ‘If he render a certain judgment against me, I will insult or beat him.’ For this he may be attached. But if (the judgment having been rendered) the insult be actually offered, an attachment no longer lies, because the contempt is in relation to the past conduct of the judge, and to a case no longer pending. A recurrence to original principles, the only true test, by demonstrating that the weight, authority, and independence of the court may be equally assailed either way, will prove that this distinction is merely ideal.” Perhaps no finer language on the subject can be found in the books than that of Judge Jones in McLeod's Case (D. C.) 120 Fed. 130. He says: “Why are officers protected, if not to safeguard the administration of justice? There is generally no reason for protecting an officer as to the discharge of duty, which does not apply with equal force as well after it is done as while it is being performed. What a man fears may happen to him in the future because of doing his duty, if contemplated at the time the duty is being considered, may, and generally does, influence the discharge of that duty. The desire for vengeance frequently arises only after the duty is performed, because of its performance, creating greater need for protection to the officer than while he is executing the duty. In divine and human laws the effective means relied on to restrain the acts of men is to hold up before their eyes the consequences which may result from their acts. Will the ordinary officer discharge his duty, fearlessly and unawed, against the powerful, the vicious, and the desperate, when he knows that, the moment the duty is done, the power he serves will withdraw its protection, and leave him naked to the vengeance his act arouses? Will the lawbreaker dread to give loose rein to his passion, when he feels that the court cannot or will not punish assaults upon its officers because of past discharge of duty? *** Greater still must be the sweep of the evil, if judicial officers can with impunity be subjected, without resort to any court, to responsibility for judicial acts, and punished therefor by private vengeance, administered by persons who in the past have come in harsh contact with their power. Who would have any respect for the authority of a court whose judge, the moment he left the courthouse, could be subjected, with impunity, to insult and assault because of acts done in his judicial capacity while on the bench? Is it in the power of any person, by insulting or assaulting the judge because of official acts, if only the assailant restrains 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 indignity, or else set in his own person the evil example of punishing the insult by taking the law into his own hands? If he forbear for the time, and resort to the criminal law, the remedy is hardly better than the wrong, since then he must become a private prosecutor in some other court, and depend on it to vindicate the independence of his own court. Unless the court, whose officer he is, can and will punish such conduct and acts towards the person of the judge, when past discharge of duty is the motive for the indignity, the judge must submit to some of these alternatives; and any of them degrade his office, and bring the administration of justice into scandal. No high–minded, manly man would hold judicial office under such conditions. Justice would depend not alone on the learning and integrity of the judge. His ability and will to fight unto death, even in a street brawl, would be equally, if not more, important. Are not these things of grave concern to the court, which can exercise its functions of administering justice only through the judge who is thus badgered, assaulted, and intimidated because of judicial acts? When the duty and power of the court to deal with such evils are considered in the light of principle and reason, the real question is not where the indignity occurred, but whether it related to the discharge of duty, and has the evil consequences in the administration of justice to which we have adverted. If these results follow, it is not at all material, so long as the judge is assailed for official acts, where the judge is at the time of the assault, nor whether he is then engaged in the discharge of any duty, nor whether the court is then sitting, nor whether the assault was with reference to a past, instead of a pending case. These things are not of the essence of the offense and evil.” In Burdett v. Com., 103 Va. 838, 48 S. E. 878, 68 L. R. A. 251, 106 Am. St. Rep. 916, Burdett was charged with contempt in writing and publishing in a newspaper an article severely arraigning the conduct of the county judge in disposing of some indictments against him to which he had pleaded guilty. He contended that as the cases were ended he was not in contempt for commenting upon the conduct of the judge, however offensive the communication might have been. The Supreme Court of Appeals said: “In the nature of things, why should not defamatory and scandalous criticisms upon a court or judge with respect to an ended cause be punished as for a contempt? It is true that it can no longer injure the particular litigant, but it degrades the administration of justice by bringing the courts and judges into disrepute.”

One of the most thoroughly considered cases to which our attention has been directed is that of State v. Shepherd, 177 Mo. 205, 76 S. W. 79, 99 Am. St. Rep. 624. After a most exhaustive examination of the authorities, both English and American, the conclusion was reached that “scandalizing a court itself is a criminal contempt, and the contempt *416 need not relate to a cause that is still pending.” The attachment for contempt in that case was directed against the publisher of a newspaper, and arose out of an article which seriously and offensively reflected upon the integrity of the judges of the Supreme Court of Missouri and the motives which actuated them in deciding a case which had been finally disposed of. It is interesting to note that, while the case to which the criticism was directed was decided by a divided bench, the judges were unanimous in adjudging the publisher of the newspaper article guilty of contempt. In the course of the very able opinion, delivered by Judge Marshall, the court, after referring to Lord Hardwicke's definition of contempt in the case against the Printer of the St. James Evening Post, said (177 Mo. 229, 76 S. W. 86, 99 Am. St. Rep. 624): “It will be observed that the first kind of contempt spoken of, to wit, scandalizing the court itself, is a matter wherein the state, the people, and the court are vitally interested. It is, therefore, a public matter, and hence is a criminal contempt. The other two kinds of contempts spoken of are such as directly affect a party litigant, and at the same time affect the public generally only in so far as it is of importance ‘to keep the streams of justice clear and pure.’ Blackstone also makes the same distinction, and defines contempts, inter alia, to consist in ‘speaking or writing contemptuously of the court or judges, acting in their official capacity.’ 4 Blackstone's Commentaries, 285. This distinction has been overlooked in some of the adjudicated cases, and hence the error they have fallen into of saying that the contempt must relate to a cause that is still pending, and if the cause is disposed of, that will be no contempt which would have been a contempt if it had occurred while the cause was pending. The theory of such cases is that the act had a tendency to injuriously affect the rights of a party litigant in a pending litigation, or had a tendency to embarrass, although it might not actually influence, the court in the determination of a pending cause. It must be obvious to the discriminating mind that such cases fall properly under the second or third classes pointed out by Lord Hardwicke, supra, but that they do not cover the whole field, for there is still the first kind of a contempt, to wit, scandalizing the court itself, in which the public is primarily interested, and as to which the injury is just as great, whether it referred to a particular pending case, or only to the court as an instrumentality of government.” In State v. Morrill, 16 Ark. 384, it was held: “By the common law, courts possessed the power to punish, as for contempt, libelous publications upon their proceedings, pending or past, tending to degrade the tribunals, destroy that public confidence and respect for their judgments and decrees, so essential to the good order and well–being of society, and to obstruct the free course of justice.” Chadwick's Case, 109 Mich. 588, 67 N. W. 1071, was another case of contempt for the writing and publication in a newspaper of a scandalous communication in reference to the court. In that case one of the defenses was that the case to which the article referred was not pending, but the court held: “The power of a court of record to punish for contempt persons guilty of vilifying the court in its judicial character is not limited to contempts arising out of pending proceedings.”

The line of distinction at common law in reference to contempts is thus well expressed in Neel v. State, 4 Eng. (9 Ark.) 259, 50 Am. Dec. 209: “By the common law, a court may punish for contemptuous conduct toward the tribunal, its process, the presiding judge, or for indignities to the judge while engaged in the performance of judicial duties in vacation, or for insults offered him in consequence of judicial acts; but indignities offered to the person of the judge in vacation, when not engaged in judicial business, and without reference to his official conduct, are not punishable as contempts.” In the English case of In re Crawford, 18 L. J. Com. Law (N. S.) 225, a proceeding for contempt was instituted against the writer of a newspaper article tending to defame and scandalize the court. It was held: “Every tribunal has the power of committing those who treat it with contempt; and the question whether a contempt has or has not been committed is for the sole decision of that court itself. A libel, reflecting contemptuously on the proceedings of a court, published while the court is not sitting, may be punished by immediate commitment, as well as such a contempt committed in its face and sedente curia.”

The authorities have been examined at some length for the purpose of showing that it is no new question with which we are called upon to deal and that the courts from the earliest times have found it necessary to vindicate their dignity and authority by summary punishment for contempt. We have also endeavored to make it clear that the purpose in so doing has been to aid in the administration of the law. A judge who would use his power to punish for a personal affront would himself be contemptible. In the nature of things there can be no valid distinction as to this matter between pending and past proceedings. If the case be pending, a contemptuous writing in reference to the conduct of the court may have a tendency or be designed to influence a decision in the particular cause; but this merely aggravates the contempt. So far as the effect on the court and the administration of the law generally is concerned the result is the same in both cases. If it be said of a judge that all of the decisions which he rendered in the past were based upon unworthy and corrupt *417 motives, this does not differ substantially from the statement that all of the decisions which he will render this year, as well as those in causes then depending, will be based upon like motives. Both equally tend to bring the court into disrepute, hold the judge up to public contempt, and cause the people to distrust the agency appointed by them to administer the law. Indeed, the latter is more harmful than the former, because the former is history, and there are criteria by which its truth or falsity may be judged, while the latter is prophecy, and its baneful effects are harder to counteract. If it be contempt to scandalize the court and bring the administration of the law into disrepute, then it makes no difference whether the scandalous conduct be in reference to pending or past proceedings.

This much has been said in order that my position upon the contention of counsel for the respondent may be made plain; but there can be no doubt that the language of the respondent was written with reference to a pending case. The Court of Appeals has jurisdiction to review the decisions of the trial courts in all criminal cases except convictions in capital felonies. The effect of the judgment of this court in the McCullough Case was to send it back for another trial. If the accused should be again convicted, the judgment could be again reviewed in this court. But the case was pending in a more specific sense than this. Cases are pending “as long as any proceedings can be taken.” Oswald, Contempt of Court, 97. The term had not adjourned. The remittitur had not been sent down. The judgment was “in the breast of the court.” There are precedents in this court for entertaining a motion for a rehearing filed by the state in a criminal case. But be this as it may, the judgment was subject to be modified or even vacated ex mero motu. The case was therefore, even in a technical sense, still pending in this court, and the language of the respondent was used in reference to a pending case.

3. But it is said that the respondent had a right to publish the article under his constitutional guaranty of freedom of speech. Our Bill of Rights provides that “no law shall ever be passed to curtail or restrain the liberty of speech, or of the press; any person may speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that liberty.” Civil Code 1910, § 6371. The Constitution guarantees liberty, not license. There are no absolute rights. Even the right to live may be forfeited. All our so–called rights, privileges, and liberties are to be enjoyed in subordination to the public good. One may speak or write freely, but he may not slander or libel his neighbor. If he libel a judge as an individual, he is amenable to both the civil and the criminal law. If he libel a judge in relation to his official conduct, he is not only subject to prosecution and to an action for damages, but also to punishment for contempt. Bradley v. State, supra. Even privileged communications may be abused. One may plead his privilege, but he cannot excuse an abuse of it. The Constitution no more intended to exempt the libeler from punishment for contempt in a proper case than from other remedies, both corrective and compensatory, that might be pursued. In this connection I take the liberty of quoting from the remarks of Judge Samuel B. Adams, one of the distinguished members of the bar of this court, whom the court called to its assistance in the determination of the important and delicate questions involved in this case. Before quoting this extract, I trust it is not out of place for me to say that the people of Georgia owe to Judge Adams and his colleague, Judge Andrew J. Cobb, a debt of gratitude for their defense of the courts, the people's institutions, and for the lofty and patriotic sentiments expressed by them.

On the subject of freedom of speech Judge Adams, in part, said: “Legal objection cannot be made to the respectful criticism of the views of a court. Every citizen has that right. A judge who is reversed by an appellate court may go into the newspaper and criticise the views of the court in a respectful way. Such conduct would raise questions of good taste and propriety. Most well–instructed men would say that the only dignified course of the trial judge is to obey the decision of the tribunal which the fundamental law of the land makes his reviewing court, and to which that fundamental law, which he is bound to obey, gives the right of reversal. These appellate courts have the right to reverse, whatever their reasons. They do their duty as they see it, and the plain duty of the trial court is to respect their decisions and carry them out. But there is no law, there can be no principle of sound policy, which permits the judge of the lower court, because he is reversed, or for any other reason, to impugn the honor, the integrity, or the good faith of the appellate court. Such conduct involves, not only bad taste, but the violation of plain duty and plain right.”

On the subject of the liberty of the press and the right of newspapers to comment upon judicial proceedings, see Wynn v. City & Suburban Ry., 91 Ga. 344, 17 S. E. 649. In speaking upon this subject Judge Cooley says: “The constitutional liberty of speech and of the press, as we understand it, implies a right to freely utter and publish whatever the citizen may please, and to be protected against any responsibility for so doing, except so far as such publications, from their blasphemy, obscenity, or scandalous character, may be a public offense, or as by their falsehood and malice they may injuriously affect the standing, reputation, or pecuniary interest of individuals. (a) Or, to *418 state the same thing in somewhat different words, we understand liberty of speech and of the press to imply, not only liberty to publish, but complete immunity from legal censure and punishment for the publication, so long as it is not harmful in its character, when tested by such standards as the law affords. For these standards we must look to the common–law rules which were in force when the constitutional guaranties were established, and in reference to which they have been adopted.” Cooley, Constitutional Limitations (7th Ed.) 604, 605. Alexander Hamilton, in his brief in a celebrated case, said that liberty of the press “consists in the right to publish, with impunity, truth, with good motives and for justifiable ends, whether it respects government, magistracy, or individuals.” And Chancellor Kent said that this definition was perfectly correct, comprehensive, and accurate. People v. Croswell, 3 Johns. Cas. 336, 394. See, also, Pavesich v. New England Life Ins. Co., 122 Ga. 190, 202, 50 S. E. 68, 69 L. R. A. 101, 106 Am. St. Rep. 104, 2 Ann. Cas. 561, where Mr. Justice Cobb discusses this question at some length. In State v. Shepherd, 177 Mo. 205, 76 S. W. 79, 99 Am. St. Rep. 624, 653, cited supra, a very comprehensive discussion of this subject will be found. From it we quote the following: “This is the true rule. The liberty of the press means that any one can publish anything he pleases, but he is liable for the abuse of this liberty. If he does this by scandalizing the courts of his country, he is liable to be punished for contempt. If he slanders his fellow men, he is liable to a criminal prosecution for libel, and to respond, civilly, in damages for the injury he does to the individual. In other words, the abuse of the privilege consists, principally, in not telling the truth.” In State v. Morrill, 16 Ark. 384, supra, the Supreme Court of Arkansas said: “Any citizen has a right to comment upon the proceedings and decisions of this court, to discuss their correctness, and the fitness or unfitness of the judges for their stations, and the fidelity with which they perform the important trusts reposed in them; but he has no right, under the seventh section of the Bill of Rights, to attempt, by libelous publications, to degrade the tribunal, etc. Such publications are an abuse of the liberty of the press, for which he is responsible.” This statement of the rule was adopted by the Supreme Court of Appeals of Virginia in Burdett v. Commonwealth, supra. It must be apparent, from these authorities, that the respondent cannot find shelter under that section of the Bill of Rights which guarantees freedom of speech and of the press.

4. This brings me to consider whether, upon legal principles, the article written by the respondent subjects him to punishment for contempt by this court. This must be determined from the language used. It is not a question of intention. Cartwright's Case, 114 Mass. 230. The case of McCullough v. State was twice before this court, and each time the judgment overruling the motion for a new trial was reversed. The first decision was rendered before the writer of this opinion came upon the bench, and the opinion in the second case was prepared for the court by the writer. It is not my purpose to discuss the merits of that decision. The opinion speaks for itself. Suffice it to say that I then thought it was right, and I am of the same opinion still. With great deliberation I make the assertion that no fair–minded man can read the record in the McCullough Case without grave doubt as to the defendant's guilt of the crime of which he was convicted, and I think the opinion of the court clearly demonstrates that the trial judge committed errors of law which entitled the accused to a new trial. But whether the decision is right or wrong is apart from the question. We do not claim to be infallible. We often make mistakes. But the respondent, whatever may have been his opinion as to the correctness of the decision, went beyond his rights when he publicly attacked the motives and integrity of the judges who rendered it.

There was placed before us on the morning of October 5th the article which is the basis of this proceeding over the signature of the respondent, published in one of the great daily newspapers of the state, having a wide circulation. In this article the respondent states that the decision in the McCullough Case is based upon “a pitiful misconception and misconstruction of the record,” and indicates the inability of the court to comprehend the record and render a proper decision in the case “if they so desired.” Here then is a distinct intimation that the court may not have desired, and probably did not desire, to render a correct decision in the case. Further, it is averred that this court frequently reverses the Supreme Court “with great complacency.” Our oath of office requires us to follow the Supreme Court decisions as precedents. We are charged with not only frequently violating this oath of office, but with taking pleasure in so doing. The respondent refers to the grounds of reversal as “alleged and frivolous reasons,” and, after stating that the facts of the case are not correctly reported in the newspaper, but that he is sure the newspaper reporter “did not mean to prejudice the case in favor of the negro,” he adds that he fears the Court of Appeals has either “wittingly or unwittingly” done so. The article concludes with these words: “The real reason for the reversals has never been given. The truth is that the Court of Appeals don't believe that a negro should be punished 20 years in the penitentiary for an assault with intent to rape on the wife of a humble farmer; but I put them on notice that I do not agree with them, and that I will continue to do my duty as long as the juries continue to do their duties.” In this extract is a direct charge that the court did not in the opinion give the “real reason” for the reversal. A more serious charge could scarcely be brought against a reviewing court than that it gave feigned reasons for its judgment, and, from cowardice or other unworthy motive, withheld the “real reason” for its decision. The respondent charges that the “real reason” is that the judges of this court do not believe in the maximum punishment of 20 years for a black brute who attempts to rape a virtuous white woman; and this, too, after the contention of the accused that the sentence was excessive had been expressly overruled by this court in the decision. The article was a palpable attempt to arouse popular feeling against this court and bring it into contempt, by charging, not only that it gave false reasons for its decision, but that the true reason, which it thereby sought to conceal, was that the members of the court regarded lightly assault with intent to rape by a negro upon a white woman—a crime which always inflames popular indignation to the utmost, and for which no punishment could be too severe. Is it conceivable that the respondent himself believed his accusation to be true? If not, how inexcusable the charge and how flagrant his offense!

Shall the sworn ministers of the law, because of the gravity of the charge, rape justice in her very temple? Shall we forget our oaths of office, our duty to the law, and bid the mob enter the sanctuary of our mistress, and let anarchy reign? Is a man charged with this awful crime not entitled to a fair trial? How else shall his guilt be established? By what criteria shall he be judged, if not by the rules of law, administered in an orderly and impartial way? We are told that crime is on the increase. Can it be checked by impairing the confidence of the people in the agencies appointed by them *420 for this purpose? Instead of making an unworthy and dangerous appeal, not only to race but to class prejudice as well, the respondent should at most have said, if he said anything, that “while I do not agree to the legal principles announced by the court, it is my duty and the duty of every law–abiding citizen to respect the decision. If it is wrong, it can be reversed or modified in the manner prescribed by law.” This would have been a much more becoming attitude, and one more conducive to the welfare of society, one of whose guardians the respondent has been for a period of 16 years. For myself I wish to go on record here and now for all time as being in favor of the orderly administration of the law in all cases. As a judge I know but one law for the rich and the poor—one for the powerful, the defenseless and oppressed. I am not responsible for the consequences which may result from an application of the law. A judge who, knowing his duty, does not dare discharge it, is unworthy of his high office, the judicial ermine should be stripped from him, and he should pass into oblivion.

Had the respondent answered that his conduct was hasty and ill–advised, and asked leave to withdraw the offensive language, he might have purged himself of contempt; but his answer rather aggravates the contempt. He in effect says: “I made the charges. I do not withdraw them, but I did not mean to reflect upon the integrity of the court.” Such an answer presents no defense. In re Woolley, 11 Bush (Ky.) 95. Moreover, the animus of the respondent is illustrated by the repetition of the contempt, in the article of October 8th, which appears in the record.

This opinion is perhaps longer than it should have been; but I have thought it was due the public that the views entertained by this court be set forth clearly, that all may be advised of the disposition of the present incumbents of this bench to uphold if the dignity of the high tribunal over which they have been called upon to preside. I cannot better conclude than to commend what Georgia's great Chief Justice said of a distinguished nisi prius judge, Judge Marshall J. Clarke, in Ellison v. Ga. R. Co., 87 Ga. 719, 720, 13 S. E. 817: “His willingness to abide by authority which ought to control him for the time being is not the least conspicuous of his many judicial virtues.”