Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol II).djvu/316

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308

CONSTITUTION OF THE U. STATES.

[BOOK III.

has finally received the adjudication of the highest judicial tribunals in each country. In each country upon the fullest consideration the result was the same, viz. that the power did exist, and that the legislative body was the proper and exclusive forum to decide, when the contempt existed, and when there was a breach of its privileges; and, that the power to punish followed, as a necessary incident to the power to take cognizance of the offence.^[1] The judgment of the

↑ The learned reader is referred to Burdett v. Abbott, 14 East R. 1; Burden v. Colman, 14 East R. 163; S. C. 5 Dow. Parl. R. 165, 199; and Anderson v. Dunn, 6 Wheat. R. 204. The question is also much discussed in Jefferson's Manual, § 3, and 1 Tuck. Black. Comm. App. note, p. 200 to 205. See also 1 Black. Comm. 164, 165.—Mr. Jefferson, in his Manual, (§ 3,) in commenting on the case of William Duane for a political libel, has summed up the reasoning on each side with a manifest leaning against the power. It presents the strength of the argument on that side, and, on that account, deserves to be cited at large.
"In debating the legality of this order, it was insisted, in support of it, that every man, by the law of nature, and every body of men, possesses the right of self-defence; that all public functionaries are essentially invested with the powers of self-preservation; that they have an inherent right to do all acts necessary to keep themselves in a condition to discharge the trusts confided to them; that whenever authorities are given, the means of carrying them into execution are given by necessary implication; that thus we see the British parliament exercise the right of punishing contempts; all the state legislatures exercise the same power; and every court does the same; that, if we have it not, we sit at the mercy of every intruder, who may enter our doors, or gallery, and, by noise and tumult, render proceeding in business impracticable; that if our tranquillity is to be perpetually disturbed by newspaper defamation, it will not be possible to exercise our functions with the requisite coolness and deliberation; and that we must therefore have a power to punish these disturbers of our peace and proceedings. To this it was answered, that the parliament and courts of England have cognizance of contempts by the express provisions of their law; that the state legislatures have equal authority, because their powers are plenary; they represent their constituents completely, and possess all their powers, except such, as their constitutions have expressly denied them; that the courts of the several states have the same powers by the laws of their states, and those of the federal government by the same state laws

[s844n1-1] The learned reader is referred to Burdett v. Abbott, 14 East R. 1; Burden v. Colman, 14 East R. 163; S. C. 5 Dow. Parl. R. 165, 199; and Anderson v. Dunn, 6 Wheat. R. 204. The question is also much discussed in Jefferson's Manual, § 3, and 1 Tuck. Black. Comm. App. note, p. 200 to 205. See also 1 Black. Comm. 164, 165.—Mr. Jefferson, in his Manual, (§ 3,) in commenting on the case of William Duane for a political libel, has summed up the reasoning on each side with a manifest leaning against the power. It presents the strength of the argument on that side, and, on that account, deserves to be cited at large.
"In debating the legality of this order, it was insisted, in support of it, that every man, by the law of nature, and every body of men, possesses the right of self-defence; that all public functionaries are essentially invested with the powers of self-preservation; that they have an inherent right to do all acts necessary to keep themselves in a condition to discharge the trusts confided to them; that whenever authorities are given, the means of carrying them into execution are given by necessary implication; that thus we see the British parliament exercise the right of punishing contempts; all the state legislatures exercise the same power; and every court does the same; that, if we have it not, we sit at the mercy of every intruder, who may enter our doors, or gallery, and, by noise and tumult, render proceeding in business impracticable; that if our tranquillity is to be perpetually disturbed by newspaper defamation, it will not be possible to exercise our functions with the requisite coolness and deliberation; and that we must therefore have a power to punish these disturbers of our peace and proceedings. To this it was answered, that the parliament and courts of England have cognizance of contempts by the express provisions of their law; that the state legislatures have equal authority, because their powers are plenary; they represent their constituents completely, and possess all their powers, except such, as their constitutions have expressly denied them; that the courts of the several states have the same powers by the laws of their states, and those of the federal government by the same state laws

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