consisting in mere words, which are apparently intended to be scandalous and offensive, but which are susceptible of a different construction, may be explained or construed by the speaker or writer, and that, on his sworn disavowal of an intention to commit a contempt, proceedings against him should be discontinued, but that this rule does not hold where the matter spoken or written is necessarily offensive; that in such case the disavowal of intention to commit a contempt may tend to excuse, but will not justify, the act.65 It is not a sufficient excuse for a party who refuses to perform a decree or order that he acted under advice of counsel.66 The advice of counsel may be, under some circumstances, a palliation to some extent of the of fense of his client in disobeying the lawful process of a court, but the extent of such palliation must depend upon the character of the advice, and the circumstances under which it was given.67 An attorney who has been ruled to show cause why he shall not be punished for contempt of court in aiding his client to obstruct the execution of a decree of the court purges himself by answering under oath that, in what he has done, he has acted in good faith, for what he believed to be the interests of his client, without any design of committing any contempt of, or offering any disrespect to, the court, or from a design to oust its jurisdiction.68

195; In re Woolley, 11 Bush (Ky.) 95; Dodge v. State, 140 Ind. 284, 39 N. E. 745; Territory v. Murray, 7 Mont. 251, 15 Pac. 145; United States v. Church of Jesus Christ of Latter Day Saints, 6 Utah, 9, 21 Pac. 524.

65 In re Woolley, 11 Bush (Ky.) 95; Fishback v. State, 131 Ind. 304, 30 N. E. 1088.

66 Buffum's Case, 13 N. H. 14; Green v. Griffin, 95 N. C. 50; Billings v. Carver, 54 Barb. (N. Y.) 40; Edrington v. Pridham, 65 Tex. 612;' Smith v. Cook, 39 Ga. 191.

67 State v. Harper's Ferry Bridge Co., 16 W. Va. 864. See, for advice of counsel concerning defamatory article about a court not justifying its publication, Myers v. State, 46 Ohio St. 473, 22 N. E. 43, 15 Am. St. Rep. 638.

68 Wells v. Com., 21 Grat. (Va.) 500. See, however, In re Dubose, 109 Fed. 971.

§ 551. Inability to perform order.

1

To justify an attachment for not obeying process of the court, it must appear that the disobedience was of such a nature as to indicate a design to contemn the process or authority of the court. Inability to perform a decree for payment of money because of insolvency of the defendant has been held a sufficient ground on which to refuse an attachment, if properly pleaded. Such inability should be clearly shown by the respondent,70 and must not be the result of the fault of the respondent.71

69

§ 552. Form of answer to rule to show cause.

[Title of court and cause.]

And now comes Charles L. Wilson, one of the above respondents, in obedience to the rule heretofore, to-wit, on the 25th day of October, A. D. 1872, entered in said court, requiring this respondent and Andrew Shuman to show cause why an attachment should not issue against them for a contempt of said court, on account of the matters and things in a certain information filed in said court, in said rule mentioned; and in answer to the said rule this respondent says that he is the sole proprietor of the said newspaper mentioned in the said information, called the "Chicago Journal," and that the article set forth in said information was published therein on the 16th day of October, 1872, but this respondent says that neither before nor at the time of the publication had he any knowledge or information relative to the same. This respondent did not know, before said paper in which the article appeared was published, that said article, or any article upon the subject, was written or to be written, or that any article upon the subject was to be published, and that he neither advised or counseled, nor was he advised or counseled with by, any person whatever, relative to the publication of said article, or any article upon the subject.

This respondent further says that the first knowledge or informa

69 Walton v. Walton, 54 N. J. Eq. 607, 35 Atl. 289; McClure v. Gulick, 17 N. J. Law, 343; Ex parte Cohen, 6 Cal. 318; Dodd v. Una, 40 N. J. Eq. 672, 5 Atl. 155; Herrington v. Cassem, 82 Ill. App. 594; O'Callaghan v. O'Callaghan, 69 Ill. 552; Dinet v. People, 73 Ill. 183; Blake v. People, 80 Ill. 11.

70 Martin v. Burgwyn, 88 Ga. 78, 13 S. E. 958; Holtham v. Holtham, 6 Misc. Rep. 266, 26 N. Y. Supp. 762.

71 Neal v. Price, 11 Ga. 297; Lansing v. Lansing, 41 How. Pr. (N. Y.) 248.

tion he had relative to said article or its publication was when he read the said article in said paper after its publication and distribution.

This respondent further says that he is informed and believes that no disrespect was intended by said article to said court, or to any judge thereof, and that a fair construction thereof will not warrant an inference to that effect.

This respondent is advised and believes that the publication of said article was not designed and had no tendency to impede, embarrass, or obstruct the administration of justice in said court. And this respondent does and will insist that he had and still has the right, through his said paper, by himself or his agents, to examine the proceedings of any and every department of the government of this state, and that he is not responsible for the truth of such publications, nor for the motives with which they were or are made, by the summary process of an attachment for contempt, save when such publications impede, embarrass, or obstruct the administration of justice.

This respondent further says that such has been the established law of this state for over thirty years past, and that said court has no judicial power to change the same.

This respondent takes this occasion to renew his repeated expressions of confidence in the ability and integrity of said court, and of the individual members of the same, and as evidence of the same gives the following article, which was published in said paper, issued on the 26th of September, 1872; that is to say: [Here insert the article.]

This respondent further says that, at the time of the publication of said article first mentioned, there was an intense excitement in the community, and particularly in the city of Chicago, on account of the frequent murders, and the escape of the perpetrators thereof; and this respondent is informed and believes that the design of said article was to impress upon the community the importance of electing members of the next general assembly of this state who would remedy the defects in the criminal law of the state, by which criminals are able to escape punishment, and not to reflect upon the ability or integrity of said court, or any member thereof, nor to impede, embarrass, or obstruct the administration of justice.

Wherefore, this respondent prays that the said rule, as against him, may be discharged. Charles L. Wilson.

Charles L. Wilson, being duly sworn, says he is one of the respondents named in the foregoing answer, and that the matters stated in said answer are true. Charles L. Wilson.

Subscribed and sworn to before me this 29th day of October, 1872. Henry W. Farrar, Notary Public.72

[Seal.]

553. Interrogatories and reference.

After the respondent appears upon a rule to show cause, or is brought up on attachment, he may submit his contempt to the court upon his own answer in the form of an affidavit, or he may demand of the prosecutor to file interrogatories for him to answer. The usual course when the alleged misconduct is denied is for the court to allow the prosecutor to file interrogatories intended to elicit a full statement of all the facts and circumstances of the alleged contempt. These may be filed in court, and the respondent's answers thereto taken and reported to the court, who may procced in a summary manner to decide the question of the guilt of the accused; or a master or commissioner may be appointed, before whom the interrogatories may be filed, and who will take down and report to the court the respondent's answers thereto, with such other testimony as either the respondent or the prosecutor may desire to have taken. But the proofs before the master, and not merely his opinion upon the proofs, must be reported to the court."

554. Trial of contempts-Right to trial by jury.

As a general rule, punishment for contempt is by summary proceeding.75 It is held that a court, in enforcing obedience to its orders by proceedings for contempt, is not executing the criminal laws nor invading the constitutional right of trial by jury. It was therefore held that an act providing for pun

72 The foregoing form was taken from People v. Wilson, 64 Ill. 195199.

73 Herring v. Tylee, 1 Johns. Cas. (N. Y.) 32; People v. Brown, 6 Cow. (N. Y.) 41; People v. Ball, 5 Cow. (N. Y.) 415; Hollingsworth v. Duane, Wall. Sr. 141, Fed. Cas. No. 6,617; State v. Matthews, 37 N. H. 450.

74 Albany City Bank v. Schermerhorn, 9 Paige (N. Y.) 372; Rapalje, Contempt, § 124.

75 Eilenbecker v. District Court of Plymouth County, 134 U. S. 31; Gandy v. State, 13 Neb. 445, 14 N. W. 143; State v. Doty, 32 N. J. Law, 403; State v. Matthews, 37 N. H. 450; State v. Mitchell, 3 S. D. 223, 52 N. W. 1052; In re Debs, 158 U. S. 596.

Te In re Debs, 158 U. S. 593; In re Perkins, 100 Fed. 950; Savin, Petitioner, 131 U. S. 267; Eilenbecker v. District Court of Plymouth Coun

ishment for contempt of court was unconstitutional, in so far as it attempted to provide for jury trial for contempt of a court which had been created by the constitution, for the reason that the power to punish for contempt was inherent in the courts."7

§ 555. Judgment.

The proceeding for contempt properly ends in a judgment of acquittal and discharge or conviction and sentence.78 To authorize punishment as for a contempt, there must be a judgment adjudicating that the person proceeded against is guilty of a contempt. Unless the record shows a judgment of conviction of contempt, a person committed therefor may avail himself of the remedy of habeas corpus.79 In some jurisdic tions it is held that the judgment should recite the offense of which the contemnor stands convicted.so By other authorities it is held that facts constituting the contempt need not be set forth.81 It is held that the judgment or order of committal to jail for contempt must be specific and certain. It must determine the penalties imposed, and be such as the defendant may readily understand, and be capable of performing. It is therefore held that an order that he stand committed to jail until the further order of the court, where such imprisonment is inflicted as punishment for disobeying the order of the court, and not to enforce the performance of some act, is void,82 but

ty, 134 U. S. 31; Cartwright's Case, 114 Mass. 230; Carter v. Com., 96 Va. 791, 32 S. E. 780; Wells v. Com., 21 Grat. (Va.) 503. See Ex parte Grace, 12 Iowa, 208.

77 Carter v. Com., 96 Va. 791, 32 S. E. 780. See Arnold v. Com., 80 Ky. 300, 44 Am. Rep. 480.

78 Edrington v. Pridham, 65 Tex. 612.

79 Ex parte O'Brien, 127 Mo. 477, 30 S. W. 158; People v. Baker, 89 N. Y. 460; Ex parte Adams, 25 Miss. 883; Rapalje, Contempt, §§ 128, 129; Andrews v. Knox County Sup'rs, 70 Ill. 65.

80 In re Deaton, 105 N. C. 59, 11 S. E. 244; State v. Galloway, 5 Cold. (Tenn.) 326, 98 Am. Dec. 404; People v. Turner, 1 Cal. 152.

81 State v. Miller, 23 W. Va. 801; Fischer v. Hayes, 6 Fed. 63; Easton v. State, 39 Ala. 551; Ex parte Henshaw, 73 Cal. 486, 15 Pac. 110; Ex parte Smith, 40 Tex. Cr. App. 179, 49 S. W. 396.

82 People v. Pirfenbrink, 96 Ill. 68; Rex v. James, 5 Barn. & Ald. 894;