It is a delicate matter for a court to sit in judgment, when it is in any way connected with the matter under consideration. It is contrary to the spirit of our institutions and should onty be done when the public good and the public service demand it: then it should be done promptly, firmly and without personal consideration.
Our courts constitute one of the co-ordinate departments of our government, established by the Constitution and the legislation thereunder. They are not only a part of the government, but are necessary to the enforcement of the lawr and the protection of the lives, the liberty and the property of our citizens. This they cannot do without the power to protect themselves by enforcing order and respect for the court and obedience to its mandates. To this end it is clothed with inherent power to punish sum: marily for any act committed in its presence or so near its sittings as to disturb the proceedings of the court in violation of its rules of orderly conduct, or that is calculated to disturb the business of the court or to impair its usefulness or to bring it into disrespect and contempt. State v. Mott, 4 Jones, 449; Ex Parte Schenck, 65 N. C., 353; Ex Parte Moore, 63 N. C., 397; In re Deaton, 105 N. C., 59, and cases cited.
These po'wers, it is conceded cannot be taken from the courts by legislation. But at common law there were many other acts, not committed in the presence of the court, which were considered as calculated and intended to impair *538the usefulness of tbe courts and to bring them into disrespect, and which the courts treated as contempts and punished the offenders. And it is held that, this class of contempt may be regulated and prescribed by legislation. Ex Parte Schenck, supra, and cases cited in the argument in that case.
The case we are now considering falls under this class, and whatever may have been the law before, the Act of the 4th of April, 1871, governs this case. Ex Parte Schenck, supra. It is contended that respondent violated Section 648, Sub Section 7 of The Gode, in publishing the article set out in the rule to show cause and is on that accoirnt guilty of contempt. This section is as follows ; “The publication of grossly incorrect reports of the proceedings in any court, about any trial or other matter pending bofore said court, made with intent to misrepresent orto bring into contempt the said court; but no person can be punished as for contempt in publishing a true, full and fair report of any trial, argument, decision or proceedings had in court.”
The only part of the article complained of that seems to undertake to give a report of the proceedings of the court, is as follows: “The reasons that Judge Ewart gave for the removal of the cause were founded on the unintentional error, corrected by the context, which the Citizen made in reporting the testimony of John Sumner, and the affidavits of men from various parts of the county, stating that in their opinion, Sumner could not obtain an impartial trial in Buncombe. ” The respondent, in his answer to the rule, says this statement is not grossly incorrect and that he believes it is a ful and true report of the proceedings of the Sumner case.
There is nothing inherent in this statement that shows that it is grossly incorrect; the respondent says that, as he *539is informed and believes, it is correct. The answer makes the issue as to whether it is correct or not, and while we do not agree with the counsel for respondent'that he was entitled to have it tried by a jury (if he had demanded a jury, which he did not) yet we are of the opinion that he was entitled to have this issue tried by the court, unless the court chose to submit it to a jury; because, if it was a correct statement of the facts, then, under the statute, it was no contempt to make the publication. It does not appear that the matter was tried in any way — the court simply holding. that respondent’s “ answer was not responsive to the rule,'” and adjudged him guilty of contempt.
We do not see that that part of the publication purporting to give an account of the proceedings, ’of itself, is calculated to produce disrespect and contempt for the court; but, if it had been found to be grossly incorrect, pointed as it is, by the comments that followed, we do not say it would not amount to contempt under the statute.
But we must hold that under the statute of 1871 the respondent cannot be punished for contempt for the language used in his comments upon the court, that we think were calculated and must have been intended to bring the court into ridicule and contempt only as they might point and furnish evidence of the intent with which the misrepresentations as to the trial were made, if it had been found they were grossly erroneous.
It is our duty to declare the law as we find it, and it is not within our province to say whether it is wise or not. There are two sides to it — on one side the protection of the citizen, on the other the usefulness and efficiency of the courts. The most of our citizens and many of our. newspaper men recognize the delicate position a judge occupies— that his position neither allows him to defend himself phys*540ically or through the public press against false and slanderous charges, and these do not consider it manly to make such charges, — and no judge ought to object to just and fair criticism by the press.
But respondent also puts his defence on another ground; he says under oath : 3rd “Affiant states that said publication was not made with intent to misrepresent this court, or to bring this court into contempt and ridicule. ”
It is not for the court to judge whether this was false or true; the law made him his own judge, — his own trier— and as to how well he did this he will answer at another bar; we must take his verdict. Ex Parte Biggs, 64 N. C. 202.
There is error in the judgment.
Error.