thereafter word was sent by the judge to the counsel for plaintiff advising him of the overruling of the motions. This information was conveyed to the counsel for defendant, one of whom wrote and forwarded the following letter:

Winfield, Cowley County, Kansas, June 26, 1876. Hon. W. P. Campbell-Dear Sir: Mr. Hackney this evening informed me that he had received a letter from you stating that you had overruled the motions to dissolve those injunctions. I can hardly believe that such is the fact, for it is directly contrary to every principle of law governing injunctions, and everybody knows it, I believe. Consequently we send herewith orders dissolving said injunctions. But if you have concluded to overrule said motions, as Hackney says, you will please allow our exceptions to each and every of your rulings, and allow us time to make and file our case in supreme court, which we will do as quickly as it can be done; for it is our desire that no such decisions or orders shall stand unreversed in any court we practice in. Also, fix terms for staying orders.

Yours respectfully,

Pryor, Kager & Pryor.

The judge on the receipt of this letter construed it as a contemptissued his warrant for the arrest of the writer, and after a hearing adjudged him guilty of contempt, fined him fifty dollars therefor, and suspended him from practice in the courts of that district until the fine should be paid. And the question presented for our consideration is, whether this ruling and order of the judge shall be set aside, or permitted to stand. It appears from other testimony in the case, as well as from the intimations in the letter, that no orders had actually been signed. Notice of his conclusions had simply been given by the judge, and the attorneys requested to prepare the formal order. The matter was therefore still pending before him.

Upon this we remark in the first place, that the language of this letter is very insulting. To say to a judge that his ruling is contrary to every principle of law, may be simply a reflection upon his intelligence; but to couple with it an assertion that everybody knows it, is clearly an imputation upon his integrity. How can a judge be honest, and yet decide contrary to that which he as well as all others knows to be the law?

We remark secondly, that an attorney is under special obligations to be considerate and respectful in his conduct and communications to a judge. He is an officer of the court, and it is therefore his duty to uphold its honor and dignity. Certain privileges attach to him by reason of such official position. He may in the trial of cases use language concerning witnesses, and parties, and all matters and things in issue, which elsewhere and under other circumstances would be libelous. By virtue of this privilege, we often hear from the lips of counsel in argument, or read in the briefs filed in proceedings in error in this court, the most severe animadversion and criticism upon the conduct and rulings of the courts from which the proceedings are

brought. They have the same right of criticising the ruling and conduct of those courts in proceedings pending here, that they have in those courts of criticising the actions and conduct under review there. In other words, the independence of the profession carries with it the right freely to challenge, criticise, and condemn all matters and things under review and in evidence. But with this privilege goes the corresponding obligation of constant courtesy and respect toward the tribunal in which the proceedings are pending. And the fact that the tribunal is an inferior one, and its rulings not final and without appeal, does not diminish in the slightest degree this obligation of courtesy and respect. A justice of the peace before whom the most trifling matter is being litigated, is entitled to receive from every attorney in the case courteous and respectful treatment. He is pro hac vice the representative of the law, as fully as the chief justice of the United States in the most important case pending before him. A failure to extend this courteous and respectful treatment, is a failure of duty; and it may be so gross a dereliction as to warrant the exercise of the power to punish for contempt.

Now as we have said, the language of the letter is insulting. It would be so regarded outside of judicial proceedings, and in the intercourse of gentlemen. To charge another with knowingly doing an illegal act, would always be regarded as an imputation to be resented. Change the circumstances a little: suppose in a public trial in the court-house, after a ruling had been made, an attorney in the case. should say to the court: "That ruling is not the law, and your honor knows it." Who would doubt that the court might rightly treat such language as contempt, and punish it accordingly? Yet practically that is this case. The fact that in the case supposed, others are listening, and hear the words, and in this the language reaches the judge alone, does not change the quality of the act.

It will be borne in mind that the remarks we have made apply only while the matters which give rise to the words or acts of the attorney are pending and undetermined. Other considerations apply after the matters have finally been determined, the orders signed, or the judgment entered. For no judge, and no court, high or low, is beyond the reach of public and individual criticism. After

8 "The bar have great liberty and high privileges in the assertion of their clients' rights as they view them; but on the other hand they have equal obligations as officers in the administration of justice, and no duty is more fundamental, more unremitting, or more imperative than that of respectful subordination to the court. The foundation of liberty under our system of government is respect for the law as officially pronounced. The counsel in any case may or may not be an abler or more learned lawyer than the judge, and it may tax his patience and his temper to submit to rulings which he regards as incorrect; but discipline and self-restraint are as necessary to the orderly administration of justice as they are to the effectiveness of an army. The decisions of the judge must be obeyed, because he is the tribunal to decide, and the bar should at all times be the foremost in rendering respectful submission."-Mitchell, J., in Matter of Scouten's Appeal, 186 Pa. 270, 279, 40 Atl. 481 (1898).

a case is disposed of, a court or judge has no power to compel the public, or any individual thereof, attorney or otherwise, to consider his rulings correct, his conduct proper, or even his integrity free from stain, or to punish for contempt any mere criticism or animadversion thereon, no matter how severe or unjust. Nor do we wish to be understood as expressing any opinion as to the power to punish others than attorneys and officers of the court, for language or conduct even while the matter is pending and undetermined. Whether the same rules and considerations apply to them or not, we do not care to inquire. Such is not the case before us; and to this case alone do our remarks apply.

We remark again, that a judge will generally and wisely pass unnoticed any mere hasty and unguarded expression of passion, or at least pass it with simply a reproof. It is so that, in every case where a judge decides for one party, he decides against another; and oftimes both parties are beforehand equally confident and sanguine. The disappointment therefore is great, and it is not in human nature that there should be other than bitter feeling, which often reaches to the judge as the cause of the supposed wrong. A judge therefore ought to be patient, and tolerant of everything which appears but the momentary outbreak of disappointment. A second thought will generally make a party ashamed of such outbreak, and the dignity of the court will suffer none by passing it in silence. On the other hand, a little thing which is properly unnoticed once, may by its repetition require notice and punishment. It is but a little matter to whisper a single time in the presence of a court in session, but if repeated, and the monitions of the court disregarded, it may become not merely the privilege, but the clearest duty of the court to punish for contempt. So an attorney sometimes, thinking it a mark of independence, may become wont to use contemptuous, angry, or insulting expressions at every adverse ruling, until it becomes the court's clear duty to check the habit by the severe lesson of a punishment for contempt. The single insulting expression for which the court punishes may therefore seem to those knowing nothing of the prior conduct of the attorney, and looking only at the single remark, a matter which might well be unnoticed; and yet if all the conduct of the attorney was known, the duty of interference and punishment might be clear.

We make these suggestions, not as intimating that such has been the prior conduct of the attorney in this case, for we neither know nor

"Remember that the judge may decide against you without being a fool or a knave. Sometimes he could not be for you without being one or both." -Frederic R. Coudert, Addresses (1905) pp. 413, 414.

"He [the Barrister] does not interfere after the judge has decided. He knows that perfection in the administration of justice consists in causes being fully heard, deeply considered, and speedily decided. When the cause has been fully heard, the advocate's duty is terminated. 'Let not the counsel at the bar,' says Lord Bacon, chop with the judge, nor wind himself into the handling of the cause anew, after the judge hath declared his sentence.'" -Basil Montague, The Barrister, in his Essays and Selections (1837)

have heard anything outside of this single matter which reflects at all upon him. We do it simply to indicate that the wisdom or necessity of the court's action is not always disclosed by the single matter apparent in the record, and that therefore, in a matter like this, involving personal conduct toward the court, a large regard must be paid to its discretion. If the language or conduct of the attorney is insulting or disrespectful, and in the presence, real or constructive, of the court, and during the pendency of certain proceedings, we cannot hold that the court exceeded its power by punishing for contempt. See generally on the subject of contempts, 2 Bishop on Cr. Law (5th Ed.) ch. 12, § 242, and following, and cases cited; 4 Blackstone, 283; Com. v. Dandridge, 2 Va. Cas. 408. Order affirmed.10

Ex parte STEINMAN.

(Supreme Court of Pennsylvania, 1880. 95 Pa. 220, 40 Am. Rep. 637.)

The Court below entered rules on A. J. Steinman and W. U. Hensel, to show cause why they should not appear and answer for contempt of court, and also why they should not be disbarred for misbehavior in their offices as attorneys of said court.

SHARSWOOD, C. J. * * * The complainants were members of the bar of Lancaster county, and were also the editors of a newspaper published there. They printed in their paper an article very severely

10 In In re Griffin (City Ct. N. Y.) 1 N. Y. Supp. 7 (1888), it was held not to be contempt of court for a lawyer to write a letter to a trial judge charging him with trying to conceal facts from the appellate court, stating that his decision was unjust, and threatening, in case of an adverse decision in another case, to lay the whole proceedings before the appellate court and the public, but it was held to be unprofessional conduct which would justify discipline. Discipline was not recommended, however, because the lawyer made a satisfactory apology.

In People v. News-Times Pub. Co., 35 Colo. 253, 84 Pac. 912 (1906), on criminal contempt proceedings against the newspaper corporation and against Senator Thomas M. Patterson, the corporation's lawyer director, majority stockholder, manager, and editor in chief, who had charged in newspaper articles that the Colorado Supreme Court and certain of its judges were influenced by corrupt motives in certain rulings in certain pending causes, the court held that the truth of the publication was no defense, and that it was no defense to show that there was no intent to commit a contempt. This was because "there can be no doubt that the articles tend to degrade the court in, the eyes of the public, impair its authority and embarrass it in the disposition of pending business." 35 Colo. at page 391, 84 Pac. 948. See, also, 35 Colo. page 393, 84 Pac. 912. The Supreme Court of the United States refused to interfere with the contempt proceeding fine. Patterson v. Colorado, 205 U. S. 454, 27 Sup. Ct. 556, 51 L. Ed. 879, 10 Ann. Cas. 689 (1907).

For an interesting case of disbarment for intemperate public criticism of the court, see In re Hilton (Utah) 158 Pac. 691 (1916). See, also, State v. Kirby, 36 S. D. 188, 154 N. W. 284 (1915).

On criticism of court action as contempt or as ground for disbarment, see 17 L. R. A. (N. S.) 572, note; 15 Ann. Cas. 205, note. On court action in reference to scandalous or disrespectful language in briefs, see 9 Ann. Cas. 168, note; 15 L. R. A. (N. S.) 525, note.

reflecting upon the conduct of the court in a certain prosecution in the Quarter Sessions, in which the defendant had been acquitted on an indictment for violating the liquor law. It charged that the acquitted "was secured by a prostitution of the machinery of justice to serve the exigencies of the Republican party," and added that as the judges belonged to that party it was "unanimous-for once-that it need take no cognisance of the imposition practised upon it and the disgrace attaching to it." We may safely assume that it meant to charge and did charge that the judge had decided the case wrongfully from motives of political partisanship. We have no hesitation in pronouncing such a publication to be a gross libel on its face. Nothing can be more disgraceful-not even perhaps that of direct briberythan such an imputation on the motives of judges in the administration of justice.

But the gravamen of the offence of the complaints was that the publication was a libel on the court of which they were attorneys, and this, it is earnestly contended, was "misbehavior in their office," which gave the court power to exercise summary jurisdiction by removing them.

The duty of an attorney is briefly comprehended in the terms of his oath "to behave himself, in the office of attorney according to the best of his learning and ability, and with all good fidelity as well to the court as to the client." Was the publication in question a breach of this oath? Fidelity to the court includes many particulars, but they all evidently concern his official relations. "The sum of the matter," says Chief Justice Gibson, in Austin's Case, 5 Rawle, 205, 28 Am. Dec. 657, "is that an attorney-at-law holds his office during good behavior, and that he is not professionally answerable for a scrutiny. into the official conduct of the judges which would not expose him to legal animadversion as a citizen.” 11

Some of the remarks in the opinion in that case have been much relied on by the learned counsel who argued as amici curiæ in support of the action of the court below. But there are two considerations bearing upon the question which now exist, but did not at the time that decision was rendered. The first is, the new provision on the subject of the liberty of the press which has been introduced into the Bill of Rights of the Constitution of 1874, and the second is that at that time the judiciary was not elective. Judges, in 1835, were

*

11 Leading up to this conclusion the court had said in that case: "The conduct of a judge, like that of every other functionary, is a legitimate subject of scrutiny, and where the public good is the aim, such scrutiny is as open to an attorney of his court as to any other citizen. Even a battery might be committed by an attorney on a judge consistently with the official relation, if provoked in matters of social intercourse. It is the mo tive, therefore, that makes an invasion of the judge's rights a breach of professional fidelity; from which he is to be protected for the sake of the public and the suitors of his court, not for his own.”—Gibson, C. J., in Case of Austin, 5 Rawle (Pa.) 191, 205, 28 Am. Dec. 657 (1835).