er language, charging the court with "gross partiality," and with acting of> ficially from "corrupt motives." He stated further, that he had expressed such opinions before, and would continue to express them; that he did not fear the judge, and did not care how soon Mr. Lansing should inform him of these declarations. In the course of the conversation, Mr. Lansing alluded to certain remarks which Tillinghast had made on a former occasion in court, and which he stated had been understood by some of those who heard them, to have been intended as reflections upon the judge. To this Tillinghast replied, that he did so intend them.

At the opening of the court on the third day, Tillinghast having, in the mean time, become engaged in the trial of a cause, the rule was voluntarily enlarged by the court until the termination of the trial, which did not take place until Friday morning of the second week. Tillinghast having then risen to make some motion, was reminded by the court that the limitation of the rule had expired, and that he was then expected to comply with its requisition. He thereupon, in a tone of great insolence, demanded to know what crime he was charged with, and immediately proceeded in a train of contumelious remarks, to deny that the court had any authority to act in the case; and said, among other things, that he was not afraid of the judge of this court, or any other man. He then again demanded to be informed what it was he was charged with: whether it was treason, felony, or some other crime. The court here replied to him, that, from the affidavit which had been served upon him, and which formed the basis of this proceeding, he could not but know the offence with which he was charged.

The judge then requested the clerk to hand up the original affidavit, and remarking that there might be a propriety in having it publicly read, proceeded to read it. Tillinghast then again demanded to be told what his offence was, and again denied the power of the court to punish him for any thing he might have said out of court. The judge then told him that he had determined to hear him with patience, and should continue to do so as long as it was possible, without degrading the character of the court, to listen to him; and that, whatever he chose to say, would be considered and treated as his deliberate response to this call upon him. Upon this, Tillinghast proceeded to make a series of incoherent remarks, which appeared to be designed for no other purpose than that of evincing disrespect to the court, and at length sat down. The court then proceeded to other business, and after it was finished, took a recess until 4 o'clock.

Upon coming in at that hour, the judge, immediately after he took his seat, pronounced his decision upon this case, accompanied with a statement of the reasons upon which it rested. He stated that it was unnecessary to enter into a minute recital of the declarations of the defendant as detailed in Mr. Lansing's affidavit; that their import might be stated in a word. They amounted to nothing less than a direct and unqualified impeachment of the integrity of the court. They were repeated in more aggravated language, notwithstanding the seasonable admonition of Mr. Lansing; and, if any extenuation could otherwise be drawn from the angry state of feeling under which the speaker appears to have labored, it was precluded by his declaration, that he had made similar assertions before, and would continue to repeat them; that, to permit such assaults as this upon the court to pass without animadversion, would be to warrant a belief in their justice, to invite new attacks, and thus indirectly to lend the aid of the court itself, to sap the foundation of public confidence in its integrity.

Under this view of the case, he had considered it to be his indispensable duty to institute this unpleasant proceeding, in vindication of the honor and dignity of the Court. That the declarations of the defendant amounted, in law, to a contempt of the Court, could not be doubted. That Sir William Blackstone, in the 4th volume of his Commentaries, p. 285, among other instances of contempt for which the courts of justice are authorized to punish the aggressor, enumerated the following: "Speaking or writing contemptuously of the Court, or Judges, acting in their judicial capacity." That it was unnecessary to refer to authorities to prove that the power to punish these offences in a summary manner, belonged as well to the courts of this country as to those of Great Britain. It had been repeatedly exercised in this and the other States, and rested upon the strong foundation of necessity. That the ordinary mode of proceeding was by attachment; and when punishment followed, it was by fine and imprisonment. Where the offender was not an attorney, or other officer of the Court, this indeed was the only mode by which he could be reached. In the present instance, he was an attorney, &c. of the Court; a circumstance, which, while it greatly aggravated his offence, afforded an additional alternative in the mode of punishment. Various considerations, intimately connected with the pure administration of justice, required that courts should possess ample discretionary powers in determining upon the fitness of persons to be permitted to practice in them. This discretion extended as well to moral, as to professional qualifications. That in this State there was an express rule of the Supreme Court, requiring a certificate of good moral character, as a prerequisite to admission; and in several instances, persons have been suspended from, or altogether deprived of, the privilege of practising, by reason of improper conduct. It was true that this power was most frequently exercised in cases of professional miscon-. duct. But the authority of courts was not limited to cases of this description. Thus, when an attorney had been convicted of larceny, the Court ordered him to be struck from the roll, although the conviction had taken place five years before, and no subsequent misconduct was attributed to him; but the Court held that the conviction rendered him an unfit person to practise as attorney. Cowper, 829.

So where an attorney sent a letter to a person threatening him with a public prosecution for a penal offence, for the purpose of extorting money from him, the Court ordered the attorney to be struck from the roll, saying that he was an improper person to remain as attorney on the rolls of the Court. C. East, 143.

That having thus shown the power of the Court to strike attorneys from the roll for other offences than mal-practice, it only remained to be determined whether the case before the Court presented a fit occasion for the exercise of this power.

The Judge then proceeded to state, that in his opinion it did, upon two grounds: First, because, in the language of the cases referred to, he had shown himself to be an unfit person to practise in the Court; and secondly, because this was a proper punishment for this offence against the Court.

The former ground alone would be amply sufficient: for how could it be said that a man who is doing all in his power to bring the Court into public discredit and contempt, is a fit person to practise in it? But if he should proceed exclusively upon this ground, it would leave the defendant still liable to punishment by fine and imprisonment for the contempt. That

he preferred, however, to consider the defendant's expulsion from the Court, not only as an act of justice to the Court itself, to rid it of an individual, by any further connexion with whom, as one of its officers, (without at least the most ample amends on his part) it would be dishonored, but as a punishment of the individual also: for, having entered with great reluctance upon this proceeding, he was desirous of stopping at the shortest limit which the occasion would justify. That it was in this spirit that he thought proper also to add, that, if the defendant (who was perceived to be present in Court) would solemnly retract his aspersions upon the Court, apologize for having uttered them, and engage to abstain from all opprobious or indecorous language and conduct toward the Court in future, the contemplated sentence would still be withheld; and that the defendant was now therefore called upon to say whether he chose to accept this alternative. The defendant not embracing this offer, but again insolently demanding what his offence was, they ordered his name to be struck from the roll."

Copy of a letter from Judge Conkling to Edwin Croswell, Esq. editor of the "Albany Argus."

ALBANY, February 2, 1828.

SIR: I have just received your note of yesterday, in which you state, that Mr. Tillinghast desires to be informed by whom you were furnished with a report of a proceeding against him at the late session of the District Court, and inquiring whether I have any objection to your communicating to him the fact, that it was prepared by me. I feel no hesitation in replying, that I have none. In my note to you enclosing the report, I stated, and now repeat, that I considered the publication of a correct statement of the proceedings a necessary act of justice to the Court: for, although the whole of it was witnessed by several gentlemen of the bar, of the highest respectability, as well as by many other persons, I thought it would be improper to suffer a very erroneous, and, I am sorry to add, apparently insidious account of it, which I had seen in another newspaper, to pass without correction, I am, Sir, with great respect, Your obedient servant, A. CONKLING.

It will be perceived from the above proceedings, that the offence charged as a contempt, was for uttering words out of court to a third person, imputing unfairness and partiality to the judge, in the discharge of his official duties; and that the punishment inflicted was the expulsion of the offender from the bar of that court, by striking his name from the rolls. It also appears from the affidavit of R. R. Lansing, that J. L. Tillinghast had, in argument in court, drawn an unfavorable portrait of a Judge, and admitted out of court, that it was "aimed at, or designed as a censorious reflection on the Judge:" but what the precise character of that portrait was, does not appear from the affidavit of Lansing, nor is it noticed in the opinion of the Judge, other than in reciting the affidavit of Lansing. The "contempt" obviously appears, from the opinion and the argument of the Judge, to have

consisted in the imputation made out of court, of "unfairness and partiality," which the Judge has erroneously quoted "gross partiality," and "corrupt motives."

The minority of the committee believe that words uttered out of court, reflecting upon the conduct or character of a Judge, do not constitute the offence technically called a contempt, and therefore not punishable by the summary process of rule or attachment; or, that the District Court of the United States, even in cases of contempt, have any power to punish by striking an attorney from the rolls; and consequently, that the order of Judge Alfred Conkling to strike the name of J. L. Tillinghast from the rolls of the court over which he presided, was illegal, unconstitutional, and oppressive. This opinion is believed to be sustained by the decisions and practice of most of the respectable Judges in England, as well as in this country; and it is hoped that a brief reference to the origin of the offence, and the procedure on it, will be excused, when it is remembered that many members of the House are not lawyers by profession, and therefore not acquainted with legal technicalities, however well versed in the great principles of constitutional liberty.

The offence of contempt derived its origin from the fact that the ancient Kings of England presided, in person, in their own courts, dispensed justice or injustice there to their subjects, and actually performed the functions of a judicial officer. Acts of disorder or insult were, therefore, treated and punished as acts of disrespect to the person of the King. Hence the various classes of contempt, at common law, after the powers and prerogatives of the King were parcelled out to, and the separate duties performed by, the agents of his appointment.

Contempts against the King, as arranged by Crown Lawyers, were, 1st, contempts against his palace; 2d, against his courts; 3d, against his prerogative; 4th, against his government; and 5th, against his title. As soon as English jurisprudence assumed a permanent character, and established fixed rules for its action, but more especially after the act of habeas corpus and bill of rights, the doctrine of judicial contempts became, for the most part, limited by the practice, usage, and customs of the courts of England, to offences committed in the presence of the court, and to such as occasioned obstructions to judicial proceedings. The highest English authority on criminal law, in treating on this subject, after citing some ancient cases, says: "But it seems the better opinion of this day, that a man cannot be indicted for any scandalous or contemptuous words spoken of, or to, such officers, not being in the actual execution of their office; for such an offence seems rather to proceed from ill-breeding than a contempt of the government. Vol. 1, Hawkins' pleas of the Crown, page 64. But he says, "if one speaks contemptuous and reproachful words to a Judge, in execution of his office, he is immediately finable." The very phrase "contempt of court," defines itself and limits the power. A Judge off the bench is not a court; nor is he, in common or legal parlance, ever so called. The title, indeed, of Judge, when out of court, is merely by courtesy, or to designate him.

That cases are to be found, both in England and this country, where a a Judge has exercised arbitrary power, by this mode of proceeding, may be very true; but the acquiescence of the timid, the poor, and the powerless, who are generally the subjects of those high-handed measures, should never be received as precedents any where, and, in this country, it is hoped never

will. The extent of such precedents can only show, that Judges may, sometimes, be arbitrary and tyrannical; that they may, occasionally, cleave down the liberty and trample upon the rights of the subject and the citizen, and escape punishment.

The proceeding by rule or attachment, has been generally exercised in this country, rather as a power springing from the universal law of self-defence, than as derivable from the common law of England; and has been exercised for the purpose of keeping silence, enforcing decorum, and suppressing disorders in court, and not as a mode or means of punishing insults to the person, or slanders on the character of the Judge When this proceeding has been used as punitory, it has been chiefly confined to cases of obstructions of the process or proceedings of a court. Be the law practice of the courts of England, however, what they may, the Constitution of the United States, and the spirit of our institutions, forbid the practice and prohibit the adoption of any mode of judicial procedure that violate any of its principles.

The Constitution of the United States abounds in safeguards for the liberty of the citizen.

1st. "The trial of all crimes, except in cases of impeachment, shall be by Jury." Art. 3, sec. 2.

2d."No person shall be held to answer for a capital or otherwise infamous crime, unless on presentment or indictment;" "Nor be deprived of life, li berty, or property, but by due process of law." Amendments, Art. 5.

"Congress shall make no law abridging the freedom of speech or of the press." Amendments, Art. 1.

What can be more opposite and conflicting than the spirit and intention of the checks and guards just enumerated, and that which originated, and which is now endeavoring to sustain, the procedure by rule or attachment? The object and operation of the first, is to secure to the citizen the right of trial by jury, with a view of obtaining a disinterested and impartial tribunal; the operation and effect of the latter, is to place an unfortunate offender in the hands of an interested, enraged, and offended party, for his trial. What hope can such an unfortunate man have for a trial, embued with that mingled spirit of justice and mercy so highly recommended by the law itself, when the offended party is to be the Judge, jury, and executioner, in his

own cause.

The sedition law, that roused to indignation a whole country, and was the chief cause of effecting the great civil revolution or reformation of 1801, was judicial meekness and self denial compared with the ancient doctrine of contempts, now attempted to be revived and put in practice. The sedition law created no new crime-it did not leave the offence undefined, or to the heated fancy or angry passions of a judge-it did not make a citizen liable to a system of espionage-it did not invite the eaves-dropper to carry and retail to a judge, verbal and personal slander-it did not deprive a defendant of the right to be tried by presentment and indictment, and to be confronted by his accusers-it did not refuse him that palladium of liberty, a fair and impartial trial by jury-it did not prohibit the right of giving the truth in evidence!! Suppose a case in which a defendant had uttered nothing but the truth, and possessed adequate proof to sustain it-would the judge hear him? If he should, would it produce any effect in favor of the defendant? Or, would it not rather again light up the angry passions of the judge, and increase his thirst of vengeance? Again: Where is this doctrine to stop? May not a judge construe an attempt to impeach him as a contempt