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it to discharge wisely, and impartially, its manifold and momentous duties." a Under this general term, or class of crime, is intended to be included all public offences, down to the lowest grade of misdemeanors, including also contempts committed against courts, and other public bodies who are invested with authority to preserve order.

It follows, from the submission of the individual to the government of the state for his protection, that these rights to the enjoyment of personal liberty, are not so absolute, that they may not be lost or forfeited, and it is entrusted to the exercise of governmental authority to determine, for what causes these rights and privileges shall cease to be enjoyed by the citizen. These rights and privileges can be properly held only, to aid in the maintenance and administration of governmental authority, for the safety and wellbeing of society. When however, it shall happen that the citizen, or a class of citizens, banding themselves together, shall so act as to subvert and destroy society, there can be no question as to the right and duty of those charged with the exercise of the prerogative powers of sovereignty, to disarm the guilty citizen, by disfranchising him of those privileges. b

When the citizens of a state repudiate the charter or constitution under which they have been created a political corporation, and under which they have been entitled to all the natural and inherent political rights which it allows and protects; and renounce their political connection with, and allegiance to, the authority which has so protected them, and levy war upon it, that they may overthrow and destroy it, and establish themselves in a new organization upon its ruins; there can be no question that their political franchises are forfeited, and that they, as citizens, are left to be dealt with at the mercy of that sovereignty which they attempted to destroy.

This position is well illustrated in the recent rebellion, in which the citizens of certain states of the Union, attempted, and assumed by a new organization, by their states, to renounce their political connection with, and allegiance to the people and government of the United States; recalled their senators and representatives from

a Hurd on Personal Liberty, 7.

b Tiffany's Government and Const. 315.

the congress of the Union; threw up their constitutions, or charters under which they existed and exercised political rights in respect to state and national interests; adopted other constitutions upon their own assumed authority; expelled by force from their limits, all those who attempted to exercise the authority of the United States therein; tore down the flag of the Union; hoisted the flag of rebellion in its place; made war upon the nation; and exerted their utmost power to destroy it; claimed and were recognized as having belligerent rights; carried on the war for years, and until overcome and subdued by the power of the nation they renounced and warred against; and only laid down their arms, because they were conquered and utterly subdued. These acts, committed by them against the authority of the nation, is, in its nature, treason; and a forfeiture of all their political rights to governmental protection. The right to protection as a citizen, cannot co-exist with such acts of rebellion in the same individual. The commission of an act of rebellion against the government, extinguishes, and forfeits the right of protection. a

Of the various statutes which authorize, direct, or limit the amount of punishment for offences; and the right of the state to inflict it; presents a subject that belongs to works of practice, or to elementary commentaries upon the philosophy of law and government. We are treating of constitutional rights as they exist under our system, and to that end, shall assume that system to be the best.

The rights and duties existing between the state under constitutional government, and the citizen of the same government, are correlative. While it is the duty of the state to protect the citizen in all his rights, including that of personal liberty, it is equally the duty of the citizen to support the state, by yielding to all its reasonable demands, not only of his means, but whenever in the judgment of the state, the public emergency requires it, it is within the power of the state to compel, and the duty of the citizen to yield obedience to the demands of the state; to enter into her service, to defend or protect and aid the state with his personal service. This is but a reasonable limitation upon his personal liberty, and is but a fulfilment of the duty due from him for governmental protection.

a Id. 316.

CONTEMPTS.

There are various other conditions, which limit the enjoyment of the personal liberty of the citizen, arising out of the duties he owes to the society of which he is a member. Among these, is that of obedience to a subpoena to appear and testify as a witness in court, especially in criminal cases, in which he may be compelled to enter into a recognizance to appear at a future day to give evidence in behalf of the state, and in case of his refusal, he inay be committed to prison. a So too in civil cases, a refusal to bey, subjects the citizen to liability to punishment for contempt, which may extend to imprisonment; b such power, harsh as it may eem, is necessary for the good order of the government. Blackstone says: "Laws without competent authority to secure their administration from disobedience and contempt, would be vain and nugatory. A power therefore in the supreme courts of justice to uppress such contempts by an immediate attachment of the offender, results from the first principles of judicial establishments, and must be an inseparable attendant upon every superior Iribunal." c

A writer well observes, "The judiciary would hold but a barren cepter, if their powers ceased with declaring the law. They are invested with a power to enforce, as well as to pronounce their judgments. In many cases of contumacious conduct, they secure bedience to their orders by attachment, and commitment of the lelinquent party. Imprisonment in such cases, is not regarded nerely as a punishment for contempt, but as a necessary means of enforcing compliance with the decision of the court."d The power to punish, by the courts for contempts, existed not only at common law, but is expressly conferred by statute.e "Every court of record shall have power to punish as for criminal contempt, persons guilty of either of the following acts, and no others. 1. Disorderly, contemptuous or insolent behavior committed during its sitting, in its immediate view and presence, and directly tending to interrupt its proceedings, or to impair the respect due to b Id. 278, § 10.

a 2 Rev. Stat., 709 § 25.

c 4 Black Com. 286.

d Hurd on Personal Liberty. 9.

e 2 Bev. Stat. 278, §§ 8 to 13.

its authority. 2. Any breach of the peace, noise or other disturbance directly tending to interrupt its proceedings. 3. Wilful disobedience of any process or order, lawfully issued or made by it. 4. Resistance wilfully offered by any person to the lawful order or process of the court. 5. The contumacious and unlawful refusal of any person to be sworn as a witness, and when so sworn, the like refusal to answer any legal and proper interrogatory. 6. The publication of a false, or grossly inaccurate report of its proceedings; but no court can punish as a contempt, the publication of true, full and fair reports of any trial, argument, proceeding, or decision had in such court.

§ 9. Punishment for contempts may be by fine or by imprisonment in the jail of the county where the court may be sitting, or both, in the discretion of the court, but the fine shall in no case exceed the sum of $250, nor the imprisonment thirty days; and when any person shall be committed to prison for the nonpayment of any such fine, he shall be discharged at the end of thirty days.

§ 10. Contempts committed in the immediate view and presence of the court, may be punished summarily; in other cases, the party charged shall be notified of the accusation, and have a reasonable time to make his defence.

§ 11. Whenever any person shall be committed for any contempt specified in this article, the particular circumstances of his offence shall be set forth in the order or warrant of commitment.

§ 12. Nothing contained in the preceeding sections shall be construed to extend to any proceeding against parties or officers as for a contempt for the purpose of enforcing any civil right or remedy.

§ 13. Persons punished for contempt under the preceeding provisions, shall, notwithstanding, be liable to indictment for such contempt if the same be an indictable offence, but the court before which a conviction shall be had on such indictment, shall, in forming its sentence, take into consideration the punishment before inflicted. By another provision of the Revised Statutes, a every person who shall be guilty of any criminal contempt, (above enumerated) shall be liable to indictment therefor as a misdemeanor, and punished with the same punishment as other misdemeanors. This power to punish for contempts, is also extended by statute

a Rev. Stat. 692, § 14.

to referees and other officers exercising judicial duties. Legislative bodies, like judicial tribunals, are also authorized to punish persons, whether members of their body or others, who are guilty of any contempt towards it, by disorderly or contumacious behavior in its presence, or by any wilful disobedience to its orders, and it may be observed, that the contempts punishable by a legislative assembly, are not confined to proceedings in its judicial capacity, but may arise in the course of its legislative, or other functions. a The criminal jurisdiction of a legislative assembly, is much more extensive than the civil courts, or than that of the courts, embracing the misconduct or disorderly behavior of its own members, as well as misdemeanors, breaches of privilege, and other offences committed by other persons. In both cases, the offence may be committed either against the assembly itself, or against its members individually. But unlike the powers of a court, which are limited by the letter and control of the statute or common law, the powers of legislative assemblies, seems to be subject to no control or restraint from any appellate power; and within the sphere of this power, it depends solely upon their own absolute will and pleasure. No other tribunal can control their action, set aside their judgment, or revise their proceedings.

This power, as a general rule, will not be greatly abused, inasmuch, as by the theory of our government, the legislative power should be, and doubtless generally is, confided to men eminent for talents, character, experience and virtue, and are selected by the people themselves. If the conduct of any particular body shall be found an exception to the rule based upon this theory, the evil is temporary, and its correction lies with the people themselves. The power it is true, if exercised by corrupt or incompetent members, is dangerous in its action, and the injured party is, in degree, remediless.

This concludes all we propose to say on the subject of contempts of courts, which subject, is one of the constitutional qualifications, or limitations of the right of personal liberty of the citizen, except as to contempts committed against legislative bodies, which will be treated of in a separate chapter, by itself.

a Cushing's Legislative Assemblies, § 655.

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