But a fair account of proceedings in a court of justice will be considered as privileged from proceedings by contempt.1

Or-even if the publication be otherwise construable as contemptuous-if it appear that no right or remedy of the parties to the suit be defeated, impaired, impeded, or prejudiced; and if the misrepresentation be not willful, the court will accept a disavowal of an intentional contempt, and withhold punishment.?

133. V. As to the publication of reports: courts have always claimed and exercised the right to dictate whether or not their proceedings should be published. In the time of Edward the Third, Lucius de Thacstead, a notary public, was committed to the Tower, for merely attending in court to take a note of the

1 Hoare v. Silverlock, 9 C. B. 20; Ryalls v. Leader, 1 L. R. 298 Ex.; Pillock v. Onell, 63 Pa. St. 253; Hearne v. Stowell, 12 Adol. & El. 718; 4 Per. & D. 696; Turner v. Pullman, 6 Law Times Rep. N. S. 130; Rex v. Wright, 8 T. R. 298; Chambers v. Payne, 2 C. M. & R. 156; Cincinnati, &c. Co. v. Timberlake, 10 Ohio, N. S. 548; Flint v. Pike, 4 B. & C. 84; Saunders v. Mills, 6 Bing. 213; 3 M. & P. 520; Lewis v. Levy, 1 El. B. & E. 537; Andrews v. Chapman, 3 C. & K. 286; Smith v. Scott, 2 Id. 580; Thomas v. Croswell, 7 Johns. 264; Rish Allah Bey v. Whitehurst, 18 L. T. (N. S.) 298 Ex. No reporter, editor, or proprietor of any newspaper shall be liable to any action or prosecution, civil or criminal, for a fair and true report in such newspaper of any judicial, legislative, or other public official proceedings, of any statement, speech, argument, or debate, in the course of the same, except upon actual proof of malice in making such report, which shall in no case be implied from the fact of publication (Laws of N. Y. 1854, ch. 130, §1). Nothing in the preceding section contained shall be so construed as to protect any such reporter, editor, or proprietor, from an action or indictment for any libelous comments or remarks superadded to and interspersed or connected with such report. Id. § 2. Edsall v. Brooks, 17 Abb. Pr. 227; 26 How. Pr. 426.

proceedings between Johannes de Bourne and Ricardus de Potesgrave; and a disregard of the prohibition of a court,' or even of a magistrate, is a contempt.

4

3

Lord Eldon once remarked that, when he first came into Westminster Hall, the law was well understood that it would be a contempt to publish the proceedings of the court before they were finished; and Lord Tenterden, in one case, ordered that there should be no publication of the proceedings, until the several indictments against the defendant had been tried; and fined a newspaper proprietor £500 for disobedience to this order, in publishing an account of the first trial before the second had begun.

Nothing," said Lord Hardwicke,5 " is more incumbent upon courts of justice than to preserve their proceedings from being misrepresented; nor is there anything of more pernicious consequence than to prejudice the minds of the public against persons concerned as parties in causes, before the cause is finally heard. It has always been my opinion, as well as the opinion of those who have sat here before me, that such a proceeding ought to be discountenanced." And the jurisdiction has been exercised in very recent cases.

611.

2

6

In the state of New York, "publishing a false or

1 See Flint v. Pike, 4 Barn. & C. 473.

* Cox v. Coleridge, 1 B. & C. 37; Garrett v. Ferrand, 6 Id.

3

4

Knight v. Knight, 1 Jacc. & Walk. 167.

Rex v. Clement, 4 B. & Ald. 218. The courts upheld the action of Lord Tenterden in this proceeding, but Campbell (Lives of the Chief Justices, vol. iii. p. 208) gives it as his opinion that this transaction tarnished the fame of Lord Tenterden, and that the order forbidding the publication was "imprudently" made.

5

6

In Baker v. Hart, 2 Atk. 488.

So recently as 1867, a justice of the Superior Court of the city of New York prohibited the publication of proceedings

grossly inaccurate report of the proceedings of a court of record is a criminal contempt," by statute.1

It is very far from the purpose of the law to forbid newspaper comments upon public and well-known and accomplished facts.

2

If, for instance, one engaged in the trial of a cause should himself commit a contempt of court, it would not be contempt for a newspaper to chronicle the fact, or to call the attention of the public or of the court thereto. So, if a newspaper remark upon the conduct of a juror, who—while engaged in the trial of a capital cause, and while apart from the public and in charge of the court officers-was furnishing articles for publication to the daily press, and call the attention of the court to the fact, in a manner irritating to the presiding judge, though not in any way impeaching his impartiality or uprightness, it is not contemptuous in the newspaper.3

134. In 1831, it was enacted by congress, that "the power of the several courts of the United States. to issue attachments, and punish for contempt of court, shall not be construed to extend to any cases except the misbehavior of any person or persons in the presence of the said courts, or so near them as to obstruct the administration of justice. The misbehavior of any of the officers of the said courts, in their official transactions, and the disobedience or resistance by any officer of the said courts, party, juror, witness,

had before him, and his course was approved by the other justices of that court. Townsend on Slander and Libel, p. 370 (note).

1

2 Rev. Stat. 278, §1.

"Stuart v. People, 3 Scam. 395.

9 Id.

4

* Act of March 2nd, 1831. Sec. 725, Title xiii., ch. 12. Revision of 1873-74. Where the wording was slightly changed.

or any other person, or persons, to any lawful writ, process, order, rule, decree, or command of the said courts. But there may undoubtedly, and do, arise cases in which it is expedient that a court should regulate the publication of its own proceedings. As, for instance, where these proceedings might or did awaken such intense public sympathy or indignation as might prejudice or interfere with the progress and calmness of the judicial inquiry. Such a case was United States v. Holmes,1 where the defendant was a survivor of a party who, having been shipwrecked, had found themselves forced to sacrifice the life of some of their number to save the rest, and had drawn lots for their lives. The case attracted great attention, and public sentiment was intensely agitated in the matter. In that case, Mr. Justice Baldwin said:

By act of congress, passed some years since, the court has no longer the power to punish, as for contempt, the publication of testimony pending a trial before us. We have, however, the power to regulate the admission of persons, and the character of proceedings within our own bar; and as the court perceives several persons, apparently connected with the daily press, whose object, we presume, is to report the proceedings and evidence in this case, as it advances, the court takes occasion to state that no person will be allowed to come within the bar of the court for the purpose of reporting, except on condition of suspending all publication till after the trial is concluded."2

135. As we have before had occasion to remark,

1 Wallace Jr. 1.

* Vid. also Rex v. Clement, 4 B. & Ald. 218; per Lord Hardwicke, 2 Atk. 471; S. C. nom; Roach v. Garvan, 2 Dick. 794; Mrs. Farley's Case, 2 Ves. Sen. 520; Garnett v. Ferrand,

fair comments upon matters of public interest will be rather encouraged than otherwise, but the privilege will not be construed by courts to extend to comments on matters still pending, which have a direct tendency towards directing and swaying the mind of the court or jury by whom the cause is to be determined.1

1

136. The misrepresentation of a decision of a court, or of its views and reasons in making the decision, may be a contempt of court, or possibly the suppression of its authorized reports, made by its own reporter.2

6 Barn. & Cress. 616. The rule would to-day appear to be eminently the reverse, for almost as much a matter of course as the presence of the court itself, has come to be the presence of the representative of the daily press.

1 Shortt L. L. 371; Tichborne v. Mostyn, 17 L. T. N. S. 7; L. Rep. 7 Eq. 57. In this case it was held a gross contempt of court to publish in a newspaper an article commenting on affidavits which had been filed on behalf of the plaintiff in a suit, but were not yet before the court; and the publisher, after making an ample apology, was ordered to pay the costs of a motion to commit him.

It is also a contempt to reprint in another newspaper an article of this sort. In the case last referred to, a motion to commit the publishers of two newspapers which had simply reprinted the article was refused, but the publishers had to pay their own costs. The printer of a newspaper which had gone beyond merely reprinting the article, was made to pay the costs of the motion.

Vice-Chancellor Kindersley committed to prison the publisher of a newspaper, for having published a leading article commenting on affidavits made in a suit in Chancery, which had not yet come on for hearing, and holding up to ridicule the makers of the affidavits, and characterizing their conduct as utterly disgraceful.

If a court made an order prohibiting the publication of the proceedings pending a trial likely to continue for several successive days, it is a contempt of court to disobey such order. Shortt L. L. 371.

2 Morrison v. Moat, Edw. Ch. 25.