Argument for Plaintiff in Error.

205 U.S.

14 Colorado, 254; Cooper v. The People, 13 Colorado, 355, and cases cited.

The legislature having defined contempts, fixed a practice and declared a punishment, the court was without authority to ignore the statutes and proceed in defiance of their provisions.

The legislature did exercise its authority over contempt and changed the rule of the common law by positive statute. It, like Congress, declared what should constitute contempt, and in doing so it included what has been divided by the courts into civil and criminal contempts in its enumeration. Sec. 321, Colorado Civil Code.

Every one of these enumerated contempts are declared by Rapalje to be criminal contempts, and Rapalje's definition is approved by the Colorado Supreme Court. Rapalje on Contempts, 21; Wyatt v. The People, 17 Colorado, 258.

To fine or imprison an accused person in contempt proceedings for publishing the truth about a judge or court when the truth of the charge is pleaded in justification and an offer to prove the same is made, is to deprive him of liberty or property without due process of law. 4 Blackstone's Commentaries, 285; Cooper v. People, 13 Colorado, 337, 365; Matter of Sturock, 97 Am. Dec. 626; State v. Circuit Court, 38 L. R. A. 559, 560; In re Shortridge, 99 California, 526; Postal Co. v. Adams, 155 U. S. 698; Windsor v. McVeagh, 93 U. S. 277; Galpin v. Page, 18 Wall. 350; Hovey v. Elliot, 167 U. S. 414, 419.

This court has a right to review the decisions of the state courts in contempt cases. Walker v. Sauvinet, 92 U. S. 90; Eilenbecher v. Plymouth County District Court, 134 U. S. 31; Tinsley v. Anderson, 171 U. S. 101; Manley v. Park, 187 U. S. 547; Detroit Co. v. Osborne, 189 U. S. 383; Abbott v. National Bank of Commerce, 175 U. S. 409.

Mr. I. B. Melville and Mr. Horace G. Phelps, with whom Mr, William H. Dickson, Attorney General of the State of

205 U.S.

Argument for Defendant in Error.

Colorado, Mr. Samuel H. Thompson, Jr., and Mr. N. C. Miller were on the brief, for defendant in error:

This court has no jurisdiction to review the judgment of the Supreme Court of Colorado in this case. No treaty or Federal statute of, or any authority exercised under, the United States is involved. No statute of, or authority exercised under, the State of Colorado is involved on the ground of their being repugnant to the Constitution, treaties or laws of the United States.

The legislature of the Territory of Colorado in 1861 adopted the common law of England, so far as applicable and of a general nature, as well as all the acts and statutes of a general nature passed by the British parliament in aid of the common law prior to the fourth year of James I. Laws of Colorado, 1861, p. 35.

A following legislature, in 1868, repealed this statute, but afterwards, at the same session, reënacted it, and it has ever since remained in force in this commonwealth. 2 Mills' Ann. Stat. §4184; Herr v. Johnson, 11 Colorado, 393, 396; Chilcott et al. v. Hart, 23 Colorado, 40, 51; Teller v. Hill, 18 Colo. App. 509, 512.

The constitution of the State of Colorado was adopted July 1, 1876, and the Supreme Court of such State was created and its duties defined by article VI thereof. 1 Mills' Ann. Stat. 252.

The original thirteen States inherited the common law, and so held it at the time of the adoption of their respective constitutions. Colorado adopted the common law by legislative enactment, and so held it at the time of the adoption of its constitution.

When the courts of those States came into existence by constitutional creation, they became possessed of common law powers by reason of the existence of the common law in their respective jurisdictions; and for the same reason, when the Supreme Court of Colorado came into existence, by virtue of the constitution of such State, it became possessed of common law powers, except as otherwise provided in said instrument.

The Supreme Court of Colorado is a constitutional court, with common law powers, and right of self-preservation is an inherent right in such courts. Rapalje on Contempts, § 1; Abbott's Trial Brief (Crim. 2d ed.), 13; 7 Am. & Eng. Ene. of Law (2d ed.), 30; 9 Cyc. of Law & Proc. 26; 2 Bish. New Crim. Law, §243: Ex parte Bollman, 4 Cr. 75, 94; United States v. Hudson, 7 Cr. 32, 34; Anderson v. Dunn, 6 Wheat. 204, 227: Ex parte Kearney, 7 Wheat. 39, 42; Randall v. Brigham, 7 Wall. 523, 540; Ex parte Robinson, 19 Wall. 505, 510; Ex parte Terry, 128 U. S. 289, 303 et seq; Ex parte Savin, 131 C. S. 267, 275; In re Debs, 158 U. S. 564, 596.

It follows that the legislature is without power to limit or restrict the exercise of such inherent power, whenever the latter is necessary for the protection and preservation of the efficiency and usefulness of such court. Rapalje on Contempts, § 1; Abbott's Trial Brief (Crim. 2d ed.), note, p. 13; 9 Cyc. Law. & Proc. 27, and cases cited under note 40; 7 Am. & Eng. Enc. of Law (2d ed.), 33, and cases cited under note 1; Ex parte Robinson, 19 Wall. 505, 510.

While freedom of the press, like that of freedom of speech, is necessary to the perpetuation of a republican form of goverm ment, this does not mean that either can be carried to such an extreme as to impede, embarrass, or unjustly influence the due and orderly administration of justice, or prejudice the rights of litigants in pending cases, for the latter would more surely impair the existence of our government than the former. Cooley's Const. Lim. (7th ed.), 604, 605; 7 Am. & Eng. Enc. of Law (2d ed.), 59; 9 Cyc. Law and Proc. 20; 2 Bish. New Crim. Law, $259; Abbott's New Trial Brief (Crim. 2d ed.), 15; Oger's Libel & Slander (3d ed.), 519, 524.

MR. JUSTICE HOLMES delivered the opinion of the court.

This is a writ of error to review a judgment upon an information for contempt. The contempt alleged was the publication of certain articles and à cartoon, which, it was

charged, reflected upon the motives and conduct of the Supreme Court of Colorado in cases still pending and were intended to embarrass the court in the impartial administration of justice. There was a motion to quash on grounds of local law and the state constitution and also of the Fourteenth Amendment to the Constitution of the United States. This was overruled and thereupon an answer was filed, admitting the publication, denying the contempt, also denying that the cases referred to were still pending, except that the time for motions for rehearing had not elapsed, and averring that the motions for rehearing subsequently were overruled, except that in certain cases the orders were amended so that the democratic officeholders concerned could be sooner turned out of their offices. The answer went on to narrate the transactions commented on, at length, intimating that the conduct of the court was unconstitutional and usurping, and alleging that it was in aid of a scheme, fully explained, to seat various republican candidates, including the governor of the State, in place of democrats who had been elected, and that two of the judges of the court got their seats as a part of the scheme. Finally, the answer alleged that the respondent published the articles in pursuance of what he regarded as a public duty, repeated the previous objections to the information, averred the truth of the articles, and set up and claimed the right to prove the truth under the Constitution of the United States. Upon this answer the court, on motion, ordered judgment fining the plaintiff in error for contempt.

The foregoing proceedings are set forth in a bill of exceptions, and several errors are alleged. The difficulties with those most pressed is that they raise questions of local law, which are not open to reëxamination here. The requirement in the Fourteenth Amendment of due process of law does not take up the special provisions of the state constitution and laws into the Fourteenth Amendment for the purposes of the case, and in that way subject a state decision that they have been complied with to revision by this court. French v.

Taylor, 199 U. S. 274, 278; Rawlins v. Georgia, 201 U. S. 638, 639; Burt v. Smith, 203 U. S. 129, 135. For this reason, if for no other, the objection that the information was not supported by an affidavit until after it was filed cannot be considered. See further Ex parte Wall, 107 U. S. 265. The same is true of the contention that the suits referred to in the article complained of were not pending. Whether a case shall be regarded as pending while it is possible that a petition for rehearing may be filed, or, if in an appellate court, until the remittitur is issued, are questions which the local law can settle as it pleases without interference from the Constitution of the United States. It is admitted that this may be true. in some other sense, but it is not true, it is said, for the purpose of fixing the limits of possible contempts. But here again the plaintiff in error confounds the argument as to the common law, or as to what it might be wise and humane to hold, with that concerning the State's constitutional power. If a State should see fit to provide in its constitution that conduct otherwise amounting to a contempt should be punishable as such if occurring at any time while the court affected retained authority to modify its judgment, the Fourteenth Amendment would not forbid. The only question for this court is the power of the State. Virginia v. Rives, 100 U. S. 313, 318; Missouri v. Dockery, 191 U. S. 165, 171.

It is argued that the decisions criticised, and in some degree that in the present case, were contrary to well-settled previous adjudications of the same court, and this allegation is regarded as giving some sort of constitutional right to the plaintiff in error. But while it is true that the United States courts do not always hold themselves bound by state decisions in cases arising before them, that principle has but a limited application to cases brought from the state courts here on writs of error. Except in exceptional cases, the grounds on which the Circuit Courts are held authorized to follow an earlier state decision rather than a later one, or to apply the rules of commercial law as understood by this court, rather than those