1824.

NASHVILLE has been interpreted under the term "law of the land," to include the power in courts of judicature and in both branches of the legislature to punish for contempts. 4 Inst. 23.; Sullivan's Lectures, 494.; 1 Dallas, Oswold's case; 14 East, 85. That it is a part of the law of the land, is proved by its constant exercise by all our courts of judicature, and by both houses of the legislature when necessary. This power the house of commons of NorthCarolina exercised in the year 1777, a few months only after the formation of the constitution, in the case of William Blount, who made an assault on Mr. Nash, the speaker of that house.

The power to punish for contempts is no part of the criminal law. If it were, courts which had no criminal jurisdiction could not punish for contempts, as the houses of the legislature, the court of chancery, and this court. Where the contempt amounts to an indictable offence as well as a contempt of the court, punishment inflicted by the latter is no bar to a prosecution for the former, and vice versa. And neither the contemned court, nor the court of criminal jurisdiction, is obliged to suspend proceedings till the other has acted. 9 Johns, 413. 417.; Cowp. 829.

This power itself, from its very nature, must necessarily be independent of all other tribunals. For if it depends upon another, whether punishment can be inflicted or not, that very dependence defeats and overturns it, The insulted judge must go to law before some other tribunal, with every one whom his decisions offend. He must quit his business in court, and leave the bench, and travel to inferior courts, and give his attendence upon them, neglecting in the mean time the official duties which belong to his office. The inferior judge may not

REPORTS OF CRIMINAL LAW CASES.

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be disposed to discourage the contempt; the proceed- NASHVILLE ings may not be regular or legal; they may in the end be set aside and quashed, by arresting or reversing the judgment, and must be commenced again, and the same difficulties again encountered. No one would be afraid to offend the delay of punishment, and the numerous chances of escaping it, would disarm the expected punishment of all its terrois. Nor would the insulted court ever think of the attempt to cause the infliction of punishment under so many discouragements.. No sooner does he get through one set of controversies, than some other dissatisfied suitor assails him with equal outrage, and involves him in others. He must go again and forever through the same routine of vexation and trouble. With such embarrassments to contend with, will he remain upon the bench? He must either quit it, or submit to be directed by men who resort to such means for the attainment of their ends, and become an instrument in their hands for the sake of rest, abandoning his duties and resigning the rights of the people. Without power to repress the efforts of designing men, that shall be directed against him because of an unyielding temper, how will the judge be able to uphold his integrity when interests of the highest magnitude are to be settled by his decisions? When it shall be observed that the most submissive pass unmolested, will not submission at least plead in recommendation of itself? Will it not set before him the perpetual conflicts which he has to maintain in vindication of opinions in which he has no individual interest, and the unceasing calumnies to which he is exposed for the protection of others, who hardly know the cause why he is so worried? If in so many difficulties the judge is not furnished with the means of imme

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NASHVILLE diate defence and repression, his authority must fall, and the rights of the people with it. For what rights have they but those which the law gives, by means of the courts it has instituted? And if these cannot support them, the rights themselves are nominal. The authority which courts have to punish for contempts cannot therefore be interfered with in any degree by any other court or judge. If the party be committed, and brought before another judge or tribunal by habeas corpus, and it appear upon the face of the commitment that he was committed for a contempt, that being a matter not cognizable in any other but the committing court, he will therefore, without further inquiry, be remanded. Cro. Ch. 168.; 2 Bl. Rep. 757.; Dyer, 59. b.; Cro. Ch. 579.; L. Ray. 1108; 2 Bay's Rep. 183.; 1 Dall. Rep. 319.; 5 Johns. 239.; 9 Johns. 419. 421. 423. Nor can the sentence be suspended by writ of error. Reports, 602. Johnston's case, and the decision of this court at the present term in the case of The State v. Shumate; also 14 East, 84, 85. 95. 100, 101; 3 Wils. 200, 201, 202, 203, 204. All these conlusions are established by repeated decisions in different ages through a long succession of centuries; are indispensable to the existence of courts of judicature; have never been complained of, or restrained or regulated in any constitution or national instrument produced by the struggles of the people against oppression; but on the contrary, has been considered as a power in support of the courts of judicature; upon which they depended for protection, against the usurpations of prerogative, and therefore was considered as a privilege belonging to the people. And when these evidences are properly understood, they furnish an answer to the principal questions which can arise in this application.

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If no judge or other tribunal can interfere to defeat a NASHVILLE sentence given for a contempt, shall it be allowed to judges of the circuit court, by circuity, to defeat a sentence through the medium of a new license, which, by any direct means, they were not allowed to defeat? They have powertogive license to practice as an attorney by the act of 1809, ch. 6. But by the act of 1815, ch. 97. sec. 2., "If the judge, upon an investigation into a charge alleged against an attorney, should be of opinion that he is guilty of a misdemeanor which ought to disqualify him from practising as an attorney, it shall be the duty of such judge to strike his name from the rolls; and it shall not be lawful for any attorney, so disgraced, to practice as such in any court of record in this state." If, by the act of 1809, he has power to grant license, does that extend to grant license to one who by law is disqualified to practice? If they have power to grant license to one who is certified by the county court to be a person of good moral character, does this authorize them to grant license to one who on record of the highest court is stricken from the rolls because of his misbehaviour? Does it give them power, in the face of a conviction of misbehaviour standing on record, to reverse the conviction, or to release from the punishment which is in consequence of it, unless they have power to pardon the conviction, to relieve from punishment, to discharge the order for repealing the license, that yet stands upon the record a bar to their proceeding to any act which can indirectly have that effect? For either the entry on record must have its effect, or the license which they have given must be of no effect. They are repugnant to each other, and one or the other must give way. The judges of the circuit court have no power by the common law, or by any staVOL. III.

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NASHVILI E tute, to give license to a removed attorney who has been stricken from the rolls for misbehaviour. As the power given to them by the act of 1809 must be in accordance with the act of 1815, and not repugnant to, or subversive of it; therefore they have no power so to use their authority as to defeat a sentence given under the act of 1815, and to render the same void, and of no effect. The act of 1817, ch. 61. sec. 3. also gives the like power of removal, and at least is not to be made void by the prior act of 1809, but must be deemed restrictive of that act so far as any thing done under it would directly operate against the provisions of the act of 1817. In short, the act of 1809 must not be made to undo and defeat that which is legally done under the act of 1817. The act of 1817 says, that the judges of the court of errors and appeals shall have power to silence any practising attorney, upon the due proof that such practising attorney has been guilty of any of the offences mentioned in that act, or that such practising attorney is guilty of such other acts of immorality or impropriety as are inconsistent with the character or faithful discharge of that office. Was it the meaning of the legislature, that when discharged by the judges of the supreme court, the judges of the circuit court should restore him the next day in face of the record made by the judges of the supreme court, and in opposition to, and in defeasance of what they have lawfully done in pursuance of the act of of 1817? Their power and conduct under the law of 1809 must be in accordance with that which is legally done under the act of 1817, and not in subversion of it. And hence it follows, that a new license, the effect of which, if valid, will be to restore to the practice from which he is removed, leaving the conviction against him