And in harmony with what was said supra, in the case of Craig v. Hecht, 263 U. S. 255, 68 L. ed. 293, 44 Sup. Ct. Rep. 103, decided by the Federal Supreme Court, Mr. Chief Justice Taft, concurring in the opinion of the court, observed: "The remedy of the judge as an individual is by action or prosecution for libel. If, however, the publication is intended and calculated to obstruct and embarrass the court in a pending proceeding in the matter of the rendition of an impartial verdict, or in the carrying out of its orders and judgment, the court may, and it is its duty to, protect the administration of justice by punishment of the offender for contempt."

Without venturing on the perilous enterprise of framing an adequate definition, it may be said that a summary contempt of court, as is evident from the judicial expressions above set forth, and they are of the highest character, carries these fundamental conceptions: It is conduct intended and calculated to obstruct and embarrass the court in pending proceedings in the matter of the rendition of an impartial verdict (criminal contempt), or in the carrying out of orders and judgment (civil contempt), which justifies the court, or rather makes it the duty of the court, to visit such punishment upon the offender as will protect the administration of justice. Taft, Ch. J., in Craig v. Hecht, supra. The substance of the proceeding is the exertion by the court of the implied power of self-preservation. The object of the exertion of the power is not punishment as punishment. Toledo Newspaper Co. v. United States, supra. But the punishment is only a means to an end. Id. And the quantum of punishment is limited, of necessity, by the end which it contemplates, "the least possible punishment adequate to the end proposed." Anderson v. Dunn, 6 Wheat. 204, 5 L. ed. 242. The end is, of course, the effective and impartial administration of justice.

Conceding that what is above said

is a correct analysis of the essential nature of contempt, it follows that the entire operation of proceedings in contempt matters is within the power of self-preservation, implied to courts by reason of the grant to them of the judicial function. The power to punish for contempt emanates from the court, and not from the lawmaking power created by the Constitution. This is so far the fact that a conviction in summary contempt proceeding bears no relation to a conviction for criminal contempt as defined by the lawmaking power, both convictions referring to the same act. Re Chapman, 166 U. S. 669, 41 L. ed. 1159, 17 Sup. Ct. Rep. 677; Marshall v. Gordon, 243 U. S. 521, 61 L. ed. at page 881, L.R.A.1917F, 279, 37 Sup. Ct. Rep. 448, Ann. Cas. 1918B, 371. A court punishing for criminal contempt is vindicating its own authority, and not administering the criminal law. Re Debs, 158 U. S. 564, 39 L. ed. 1092, 15 Sup. Ct. Rep. 900; Eilenbecker v. District Ct. 134 U. S. 31, 33 L. ed. 801, 10 Sup. Ct. Rep. 424; Bessette v. W. B. Conkey Co. 194 U. S. 324, 48 L. ed. 997, 24 Sup. Ct. Rep. 665. The relation of the power to the effective and impartial administration of justice is such as to be essential to it. Re Debs, supra; Gompers v. Bucks Stove & Range Co. 221 U. S. 443, 55 L. ed. 807, 34 L.R.A. (N.S.) 874, 31 Sup. Ct. Rep. 492. And since the power is essential, the legislature can no more deprive courts created by the Constitution of it than they can deprive them of the power to perform the judicial function. Hale v. State, 36 L.R.A. 254 and note (55 Ohio St. 210, 60 Am. St. Rep. 691, 45 N. E. 199).

That a crime, therefore, as judicially defined, and a criminal contempt, bear no kinship one to the other, would seem to be the statement of a truism. The two conceptions are mutually exclusive, diverso intuitu. Re Chapman, supra. They are as different as the lawmaking function is different from the judicial function; as the general

welfare of society, with which the criminal laws are concerned, is different from the vindication of the authority of a particular court with reference to a pending case.

It is true the constitutional provision upon the construction of which this case turns employs the term "offense," yet there is not such a distinction between the two expressions as to lend any force whatsoever to the argument based upon the use of the one word rather than the other. "So the words 'offense' and 'crime' are synonymous when applied to convictions of a public nature." 16 C. J. 52. In Campion v. Gillan, 79 Neb. 367, 11 L.R.A. (N.S.) 865, 126 Am. St. Rep. 673, 112 N. W. 586, 16 Ann. Cas. 319, the supreme court of Nebraska examined the provisions of the Constitution of that state as to the pardoning power, which is: "The governor shall have the power to grant reprieves, commutations, and pardons, after conviction, for all offenses except treason and cases of impeachment."

It said: "The Constitution gives the governor power to pardon offenses,' and it is suggested that bastardy is an offense, although we have no statute defining and punishing it as a crime, and so the governor may pardon the wrongdoer and relieve him from all consequences of his act. The provision of our Constitution is too plain to lead to such absurd conclusions. The word offense' in a public statute is generally, though not always, used as synonymous with 'crime.' In State ex rel. Erickson v. West, 42 Minn. 147, 43 N. W. 845, it is said that the terms 'crime,' 'offense' and 'criminal offense' are all synonymous, and are ordinarily used interchangeably. At all events, the words are so used in the section of the Constitution under consideration. There can be no doubt that 'crime,' in the latter part of the section, is used as an exact equivalent of the word 'offense' in the first part, and that the words 'convict' and 'sentence' are used with reference to both. Unless

there has been a crime and conviction, the governor cannot interfere with a pardon."

Indeed, that the nature of an ordinary criminal prosecution is wholly foreign to that of summary proceedings for criminal contempt is universally recognized by all courts. Crimes are punishable only in courts having criminal jurisdiction. Criminal contempts, however, are punishable in all courts of record, whether or not their jurisdiction be limited to civil, chancery, or appellate matters. This court, for instance, is without original criminal jurisdiction. Yet I doubt if it would so far hold to the proposition that a criminal contempt committed against it was a "crime" that the offense would, of necessity, go unpunished unless by the usual course of indictment and trial by a court of inferior jurisdiction.

Moreover, the designation of a criminal contempt as a crime or offense, considered with reference to another constitutional provision, leads to serious difficulties, for this reason: It is a familiar rule of statutory construction that statutesand the same rule applies to constitutional provisions-in pari materia should be construed together, because, the cardinal purpose of construction being the ascertainment of legislative intent, it is presumed that provisions relating to the same. subject-matter are consistent and harmonious, so that an expression conveying a fixed meaning in one provision carries the identical meaning in another provision in pari materia. Section 14, art. 2, of our Constitution, provides: "In all criminal prosecutions the accused shall have the right," etc., of a "public trial by an impartial jury of the county or district in which the offense is alleged to have been committed."

Now, it is clear that this provision is in pari materia with the constitutional provision, supra, relating to the pardoning power. pression cannot carry radically different meanings in the two provi

The ex

sions; it cannot be Dr. Jekyll to support a pardon and Mr. Hyde to deny a trial by jury.

The decision uniformly disavows the applicability of such constitutional provisions to a criminal contempt. The reason is obvious; on the one hand, the power of selfpreservation ex vi termini implies the exclusive right to the court to try the offender and to judge as to the punishment adequate to the vindication of its own authority (Gompers v. Bucks Stove & Range Co. supra), and, on the other hand, defines the conduct of the contemner as not coming at all within the meaning of such constitutional guaranties (Re Debs, supra).

The overwhelming weight of authority is to the effect that a criminal contempt of court is not a crime, and a proceeding thereon not a criminal proceeding, and that, positively considered, because the proceeding is only the exertion by the court of the power of self-preservation, it is sui generis. I refer the bar to the very able opinion of the supreme court of Arizona, decided December 30, 1922, Van Dyke v. Superior Ct. 24 Ariz. 508, 211 Pac. 576, in which case there is a careful and exhaustive analysis of about all the authorities in regard to the nature of a criminal contempt. The case concludes: "It is no less certain that it is not a criminal action which is to be prosecuted by indictment or information, as provided by our Constitution and Penal Code (Const. art. 2; Penal Code, § 750). It is perhaps not unwarranted to say that virtually all the authorities which announce any express holding as to the nature of a proceeding to punish for criminal contempt go upon the assumption that such a proceeding is sui generis, being the exercise of the inherent power of courts to free themselves from influences calculated or tending to obstruct, embarrass, or corrupt the administration of justice." From these general principles, in their bearing upon "the specific cases of applications to secure

changes of venue, or to disqualify the presiding judge, the rule is deduced that, unless the statute contain language broad enough in meaning to include a proceeding instituted to punish for contempt, the change of judge or venue cannot be made, and that the language 'criminal action' or 'civil action' is not to be interpreted as embracing a contempt proceeding." Bessette v. W. B. Conkey Co. 194 U. S. 324, 48 L. ed. 997, 24 Sup. Ct. Rep. 665.

Here it might be worthy to note that the language employed by some of the decisions of the Federal Supreme Court as to the nature of criminal contempts has been misinterpreted to mean that that court considered proceedings in regard to them as criminal proceedings. A careful reading of the cases forbids such a conclusion. That court has always characterized contempt proceedings as sui generis, and, for the purpose of review only, has considered them as governed by the rules applicable to criminal matters. This is the interpretation which the court itself has expressed as to these cases. In Toledo Newspaper Co. v. United States, 247 U. S. 402, 62 L. ed. 1186, 38 Sup. Ct. Rep. 560, to this point, the court says: "We are of opinion that a motion to dismiss the writ of error must prevail, since it is settled that a conviction for a criminal although summary contempt is, for the purposes of our reviewing power, a matter of criminal law not within our jurisdiction on error,"-citing numerous cases, among them, as being within the interpretation thus announced, Gompers v. United States, 233 U. S. 604, 58 L. ed. 1115, 34 Sup. Ct. Rep. 693, Ann. Cas. 1915D, 1044, which case the majority opinion refers to as decisive of the proposition that a criminal contempt is a crime or offense within the meaning of the constitutional provision defining the pardoning power.

The view which this court thus takes of the case is not in harmony

with that of the Federal Supreme Court itself.

I recur now to Ex parte Hickey, 4 Smedes & M. 751, to assess the soundness of the argument therein elaborated to the conclusion that a criminal contempt was within the pardoning power of the governor, notwithstanding that it had been found by the court that there was no contempt involved in the case.

The provision of the Constitution of Mississippi (Const. 1832, art. 5, § 10), examined by that court, was, the governor shall, etc., "have power to grant reprieves and pardons, and to remit fines in all criminal and penal cases, except treason and impeachment," the language employed, in form, being more restrictive than the language employed in our Constitution, though not so in substance. At the threshold the court tacitly admitted that, in order to sustain the pardon, it was essential to bring a contempt of court as an offense within the classification of a "criminal charge" or "criminal case," which expression it held to be within the purview of Blackstone's definition, namely: "A crime or misdemeanor is an act committed or omitted in violation of a public law either forbidding or commanding it."

The court proceeded, and very correctly, upon the premise that the acts pardonable, under the Constitution, were public offenses, which are generally defined as "the doing that which a penal law forbids to be done or omitting to do what it commands." 32 Cyc. 1249. That is to say, a contempt of court, to be pardonable, must be a crime or a public offense. The minor premise is attempted to be established evidently by drawing a distinction between public offenses and civil wrongs, which latter are wrongs to the individual, in which the public have no interest. A contempt of A contempt of court, it was argued, because it is not an offense against the functionary as an individual, was consequently a public offense and a crime. The fallacy of the argument lies in

the manner of establishing the minor premise. To affirm logically that X is A because it is not B requires, first, satisfactory proof that of necessity X must be found within the alternatives. A contempt of court, as has been shown, is, in essential character, neither a criminal case nor a civil case, but sui generis; that is, an offense against the court; so that the possibility of X being C instead of A or B being proven, the whole argument collapses.

It is to be noticed, also, that the court had just announced the doctrine that an offense to the person of the functionary was a criminal libel, and not a contempt. We come, therefore, by transposing terms, to the weird proposition that a contempt of court is an offense against the state and a crime because it is not a criminal libel, which is a crime. The argument, I think, need not be criticized further.

It was maintained in Ex parte Hickey that the constitutional provision in regard to the freedom of the press, quoted supra, together with the other provisions already mentioned, operated to metamorphose to a criminal libel what, judged by the practice and assumption of some of the courts, English and American, would have been a criminal contempt, and, as to publications, at least, to restrain the power of the court to punish as for the latter offense. To this doctrine the final answer, I believe, was given by Mr. Chief Justice White in Toledo Newspaper Co. v. United States: "We might well pass the proposition by, because to state it is to answer it, since it involves in its very statement the contention that the freedom of the press is the freedom to do wrong with impunity, and implies the right to frustrate and defeat the discharge of those governmental duties upon the performance of which the freedom of all, including that of the press, depends. The safeguarding and fructification of free and constitutional institutions. is the very basis and mainstay upon which the freedom of the press

rests, and that freedom, therefore, does not and cannot be held to include the right virtually to destroy such institutions. It suffices to say that, however complete is the right of the press to state public things and discuss them, that right, as every other right enjoyed in human society, is subject to the restraints which separate right from wrongdoing."

There remains, then, to be considered, the proposition which, it has been seen, constitutes the principal argument, by implication at least, in the case followed by the majority of the court, to the effect that the governor possesses the power to pardon for criminal contempt because like power was in fact possessed and exercised by the King under the English system. It is unnecessary to observe that, by statutory recognition, the common law of England is here the rule of practice and decision except as modified by express statute. Upon this rule. there is imposed the limitation that only so much of that system is adopted as is compatible with our peculiar conditions and with the genius of our government and institutions. That the application of the limitation to the question considered excludes the power of the governor to pardon for criminal contempt upon the ground of analogy to the power of the King becomes immediately apparent. Under our system, as stated above, all power emanates from the people. Under the English system, all power emanates from the King, who is in theory "the source and fountain of justice." The executive here has such power only as the Constitution confers upon him; but the King could pardon for criminal contempt because in him was reposed originally all judiciary power. He could review judicial action because the courts were his courts, and perform the judicial functions because such power was by him delegated to them. Says Blackstone in this regard: "The sole executive power of the laws is vested in the person of the

King; it will follow that all courts of justice, which are the medium by which he administers the laws, are derived from the power of the Crown. For whether created by act of Parliament or letters patent, or subsisting by prescription (the only methods by which any court of judicature can exist), the King's consent in the two former is expressly, in the latter impliedly, given. In all these courts the King is supposed, in contemplation of law, to be always present; but as that is in fact impossible, he is then represented by his judges, whose power is only an emanation of the royal prerogative."

The power of the governor and the power of the King under the English system, to the extent that they affect the power to pardon for criminal contempt, are irreconcilable. See State ex rel. Rodd v. Verage, 177 Wis. 295, 23 A.L.R. 508, 187 N. W. 830; Re Nevitt, 54 C. C. A. 622, 117 Fed. 448; Taylor v. Goodrich, 25 Tex. Civ. App. 109, 40 S. W. 515.

Therefore, I say, the cases followed by the court not only lack persuasiveness as authority, in that they are cast to the mold of Ex parte Hickey, but the doctrine announced by them as supporting the conclusion reached that the governor may pardon for criminal contempt is clearly fallacious.

"A pardon is an act of grace, proceeding from the power intrusted with the execution of the laws, which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed." This is the language of Chief Justice Marshall in United States v. Wilson, 7 Pet. 150, 8 L. ed. 640, and is the classical definition of a "pardon." It is seen that the very essence of the pardoning power lies in this: That because the governor (as here) is charged with the execution of the laws, he may pardon by an act of grace for an infraction of such laws. The laws, with the execution of which the executive is charged, are