142. The foregoing pages, it is believed, exhibit the American law of contempt in its extreme form. But it is well that it should be studied in that rather than in its more lenient form, in order that we may know the extreme of its operation.

The sentiment which pervades our courts, undoubtedly, is that which was well expressed by the court in Stuart v. People.1 Respect of courts can

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3 Scam. 397; quoted with approval by Scott, J., in People v. Wilson, 6 Albany Law Journal, 352. The question as to what is a contempt of court, its definitions and penalties, will be usually found treated by the statutes of the different states. In 1871, a successful attempt was made in the New York legislature to enact, along with others, the following amendment to the code of procedure:

"SECTION 24.-The said act is hereby amended by adding thereto an additional title, to be known as title sixteen, as follows: Conferring power upon courts of record, and every judge or justice of any such court, to punish for contempts.' Every court of record, and every judge or justice of any court of record, shall have the like power which courts of record, or a judge or justice thereof, possessed at common law, to punish as for a contempt of court, any person or persons for any act, matter, or thing for which courts of record or a judge or justice thereof could at common law punish any person or persons as for a contempt of court; and the proceedings for contempt shall be had and conducted in such manner as the court, or judge, or justice shall direct, and the punishment, which may include fine or imprisonment, or both, shall be in the discretion of the court, or judge or justice, before whom the proceeding is had. And all laws and parts of laws inconsistent herewith are hereby, so far as the courts of record and judges or justices thereof are concerned, repealed."

But an earnest and intelligent opposition was made by the public, and notably by the Bar Association of the city of New York; a committee of which association waited upon the Governor (Hoffman), through whose efforts the Governor was induced to veto the whole. Said Hon. Theodore W. Dwight, one of that committee:

"It can scarcely be possible that the people of the state of New York, after an experience of forty years of full liberty of speech and of the press, as far as the doctrine of constructive

not be compelled, it is the voluntary tribute of the public to truth, virtue, and intelligence, and while they contempts is concerned, are ready to endanger, and perhaps sacrifice it, by giving deliberately such portentous powers to a single judge, having no check upon his will except the cumbrous, well-nigh obsolete and quite ineffectual method of trial by impeachment. Assuming that there is no danger at the present moment, the hour may arrive when the common-law power to commit for contempt will furnish a ready and efficient weapon in the hands of the bold and unscrupulous, to silence, not only the press, but also the utterances of advocates or counsel. Arbitrary power always frets at free speech on the part of members at the bar. So Gov. Coldon wrote to the Earl of Halifax a letter in which he refers to the dangerous influence which the profession of the law had obtained in this province more than in any other, and wishes that 'the people were freed from the domination of the lawyers.' This so-called 'domination' was nothing more than a fixed determination, on the part of the few members of the bar of that day, to insist upon a rational freedom-a determination which the governor in vain hoped to overcome. Should the struggle for free speech ever commence again, the bar will not be unfaithful to its traditions, and will strive again to 'dominate' in the same good sense. If, by the doctrine of constructive contempts, its members are cowed into silence, there will be hushed a potent voice of the tribunes of the people."

The question of contempt by written matter alone is, of course, within the province of this inquiry. What constitutes contempt, however, by other means, as by words or gestures in the presence of a judge, can not fail to be an interesting inquiry, and we can not forbear the insertion of some additional memoranda under that head.

Calling a magistrate, in a court of justice, a fool, but not so speaking of him in his absence, and without reference to the execution of his office (Simmons v. Sweete, Cro. Eliz. 78; Reg. v. Wrightson, Salk. 698; see also 2 Roll. Rep. 78; 4 Inst. 181; ex parte the Mayor of Yarmouth, 1 Cox Crim. Cas. 122); giving the lie to the steward of a manor holding a court leet (Earl of Lincoln v. Fisher, Cro. Eliz. 581; Ow. 113; Mo. 470), or telling him in court that he is forsworn (2 Rol. Abridg. 78); saying to justices in session "Though I can not have justice here, I will have it elsewhere" (Rex v. Mayo, 1 Keb. 508; 1 Sid. 144); putting on one's hat in presence of the lord of a

are found on the judgment-seat, so long, and no longer, will they retain the public confidence."

court leet, and saying he cared not what he could do (Bathurst v. Coxe, 1 Keb. 451, 465; Raym. 78); saying to a justice of the peace in the execution of his office that he was a rogue and liar (Rex v. Revel, 1 Str. 420); but not saying of a justice in his absence that he was a scoundrel and a liar (Rex v. Weltie, 2 Camp. 142).

And a court may be insulted by the most innocent words uttered in a peculiar manner and tone (per Lord Denman, C. J., Carus Wilson's Case, 7 Q. B. 1015). Wherever a justice may commit for such words, the offender may also be indicted for the misdemeanor (Str. 420). A justice can commit only where the contemptuous words are spoken in his presence; in other cases the remedy is by indictment of the offender (Rex v. Revel, ubi supra; see also Rex v. Wrightson, ubi supra, and 1 Vent. 169; 2 Keb. 249; Hutt. 131; 3 Mod. 139; Rex v. Selby, Mich. 4 Anne K. B.; Rex v. Penny, 1 Ld. Raym.; Rex v. Pocock, Str. 1157). A barrister may also commit a contempt of court in the conduct of a caușe (Re pater, 33 L. J. 142 Q. B.) and so may one of the parties to the cause in the course of addressing the jury (Rex v. Davison, 4 B. & Ald. 329).

The act of congress of March 2, 1831 (ante, p. 291), is claimed to have been induced by the case of Judge James H. Peck, a district judge of Missouri, who, having written and published an opinion in a certain case (upon which, during the vacation of the court, one of the counsel therein, one Lawless, published a criticism), at a subsequent term, imposed an imprisonment and fine for contempt of court upon Lawless. Lawless complained to the House of Representatives, which voted articles of impeachment against Judge Peck, which were tried before the Senate in 1830, Monday, Dec. 13, and following days. Judge Peck was acquitted by one vote, but upon the ground that he had acted in good faith and in his understanding of the law (annals of congress, p. 4 et seq). And see Wharton's criminal law, 3439; Cole on criminal information, ch. 2; Re Oswald, I Dall.; Respublica v. Passmore, 3 Yeates, 441.

CHAPTER IV.

OF ORIGINALITY.

143. Once having satisfied itself that the work asking its protection is innocent in its nature, that is, that it does not subvert the state; or libel, deceive or injure the morals of her subjects, or undermine the sanctity and usefulness of her courts of justice; the law will, lastly, inquire whether the work be original; that is to say, whether the person asking to be protected therein, be, in any legal sense, its producer or originator, and entitled to a property by occupancy therein. For, as in the case of a title by occupancy to the solid earth, which he has not made, the author must show something in his published work of which he is the first possessor. Some idea, of which no other can claim to be in possession, must enter into its design, material, or manufacture, or employment. Something there must be new and original.

144. This question of originality is by no means one easy of solution, for many reasons. In the first place-like the fact of innocence-the originality must exist in every case, independently of any actual possession of the manuscript, either by manual custody or statutory registration. Though one be the owner, by legitimate purchase, of a written work; if it be actually the production of a foreigner, the owner cannot claim the protection of the law therefor. Nor,

again will the fact of compliance with any formal requisites of a statute, be anything more than prima facie proof of his ownership so long as it remains undisputed; and equity will not fail, in either case, not only to withhold its protection from the work not original, as it did from the work not innocent, but in this case to endeavor, if possible, to restore or compensate therefor to its rightful owner.

145. In the second place, it is very clear that a legal, as contradistinguished from the popular and derivitive meaning of the word original, must be sought. For in the field of literature, any such thing as absolute originality is very rarely to be met with. As long ago as the old Librarian wrote, he declared that men were in the habit of "making new books as: apothecaries make new mixtures, by pouring only out of one vessel into another;" and he lived at a time when the presses of the world were not taxed with new volumes, nor the world glutted with bookwriters.

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That we must accept a legal definition of the words "original" and "originality," as distinguished from the strict and derivative meaning, is apparent, too, from the impossibility of following the latter at all, in these days. If we were to declare that none but he who devised from his own brain, without a knowledge of the compositions of other men, should be entitled to protection, what author could claim that protection? (And it might be added, of what value would his production be?) From the very inception of literature, language not only has been a common stock in trade of authors; but sentiments, similies, phrases, and compositions; whose recurrence might sorely tax the credulity of those who would believe them mere coin1 Burton's Anatomy of Melancholy, 435.