On the 12th of July, Lewis moved for a rule to show cause why an
attachment should not issue against Eleazer Oswald, the printer and
publisher of the Independent Gazetteer.
The case was this: Oswald having inserted in his newspapers
several anonymous pieces against the character of Andrew Browne,
the master of a female academy, in the city of Philadelphia, Browne
applied to him to give up the authors of those pieces; but being
refused that satisfaction, he brought an action for the libel
against Oswald, returnable into the Supreme Court, on the 2nd day
of July; and therein demanded bail for L1000. Previously to the
return day of the writ, the question of bail being brought by
citation before Mr. Justice Bryan, at his chambers, the Judge, on a
full hearing of the cause of action, in the presence of both the
parties, ordered the Defendant to be discharged on common bail; and
the Plaintiff appealed from this order to the court. Afterwards, on
the 1st of July, Oswald published under his own signature, an
address to the public, which contained a narrative of these
proceedings, and the following passages, which, I conceive, to have
been the material grounds of the present motion.
[319-Continued.]
'When violent attacks are made upon a
person under pretext of justice, and legal steps are taken on the
accasion, not perhaps to redress the supposed injury, but to feed
and gratify partisaning and temporising resentments, it is not
unwarrantable in such person to represent the real statement of his
case, and appeal to the world for their sentiments and
countenance.
'Upon these considerations,
principally, I am now emboldened to trespass on the public
patience, and must solicit the indulgence of my friends and
customers, while I present to their notice, an account of the steps
lately exercised with me; from which it will appear that my
situation as a printer, and the rights of the press and of freemen,
are fundamentally struck at; and an earnest endeavour is on the
carpet to involve me in difficulties to please the malicious
dispositions of old and permanent enemies.'
'But until the news had arrived last
Thursday, that the ninth state had acceded to the new federal
government, I was not called upon; and Mr Page in the afternoon of
that day visited me in due form of law with a writ. Had Mr. Browne
pursued me in this line, 'without loss of time,' agreeably to his
lawyer's letter, I should not have supposed it extraordinary-but to
arrest me the moment the federal intelligence came to hand,
indicated that the commencement of this suit was not so much the
child of his own fancy, as it has been probably dictated to and
urged on him by others, whose sentiments upon the new constitution
have not in every respect coincided with mine. In fact, it was my
idea, in the first progress of the business, that Mr. Browne was
merely the hand-maid of some of
Page 1 U.S.
319, 320
my enemies among the federalists; and in this class I must rank,
his great patron Doctor Rush (whose brother is a judge of the
Supreme Court) I think Mr. Brown's conduct has since confirmed the
idea beyond a doubt.' 'Enemies I have had in the legal prosession,
and it may perhaps add to the hopes of malignity, that this action
is instituted in the Supreme Court of Pennsylvania. However, if
former prejudices should be found to operate against me on the
bench, it is with a jury of my country, properly elected and
empannelled, a jury of freemen and independent citizens, I must
rest the suit. I have escaped the jaws of persecution through this
channel on certain memorable occasions, and hope I shall never be a
sufferer, let the blast of faction blow with all its furies!' 'The
doctrine of libels being a doctrine incompatible with law and
liberty, and at once destructive of the privileges of a free
country in the communication of our thoughts, has not hitherto
gained any footing in Pennsylvania: and the vile measures formerly
taken to lay me by the heels on this subject only brought down
obloquy upon the conductors themselves. I may well suppose the same
love of liberty yet pervades my fellow citizens, and that they will
not allow the freedom of the press to be violated upon any refined
pretence, which oppressive ingenuity or courtly study can invent.'
'Upon trial of the cause, the public will decide for themselves,
whether Mr. Browne's motives have been laudable and dignified;
whether his conduct in declining an acquittal of his character in
the paper, and suing me in the manner he did, was decent and
consistent; and, in a word, whether he is not actuated by some of
my inveterate foes and opponents, to lend his name in their service
for the purpose of harrassing and injuring me.' A transcript from
the records was read to show that the action between Browne and
Oswald was depending in the court; James Martin proved that the
paper containing Oswald's address was bought at his printing
office, fresh and damp from the press; and a deposition, made by
Browne, was read to prove the preceding facts relative to the cause
of action, the hearing before Mr. Justice Bryan, and the appeal
from his order. Lewis then adverted to the various pieces, which
were charged as libellous in the depending action; and argued,
that, though the liberty of the press was invaluable in its nature,
and ought not to be infringed: yet, that its value did not consist
in a boundless licentiousness of slander and defamation. He
contended, that the profession of Browne, to whom the education of
more than a hundred children was sometimes entrusted, exposed him,
in a peculiar manner, to be injured by wanton aspersions of his
character; and he inferred the necessity of the action, which had
been instituted, from this consideration, that if Browne were
really the monster which the papers in question described him to
be, he ought to be hunted from society; but, that if he had been
falsely accused, if he had been maliciously traduced, it was a duty
that he owed to himself and to the
Page 1 U.S.
319, 321
public to vindicate his reputation, and to call upon the justice
of the laws, to punish so gross a violation of truth and decency.
For this purpose, he continued, a writ had been issued, and bail
was required. The defendant, if not before, was certainly, on the
hearing at the Judge's chambers, apprized of the cause of action:
The order of Mr. Justice Bryan on that occasion, and the appeal to
the court, were circumstances perfectly within his knowledge; and
yet, while the whole merits of the cause were thus in suspense, he
thought proper to address the public in language evidently
calculated to excite the popular resentment against Browne; to
create doubts and suspicions of the integrity and impartiality of
the Judges, who must preside upon the trial; and to promote an
unmerited compassion in his own favour. He has described himself as
the object of former persecutions upon similar principles; he has
asserted that, in this instance, an individual is made the
instrument of a party to destroy him; and he artfully calls upon
his fellow citizens to interest themselves to preserve the freedom
of the press, which he considers as attacked in his person. Nay, in
order to cast an odium upon the new government of the United
States, he insinuates, that his arrest was purposely protracted
'till the ratification of nine states had given stability to that
system: a falsehood, as unwarrantable as it is insidious; for, it
will be proved that this delay took place at his own request,
communicated by Col. Proctor. Col. Proctor, being examined on this
point, said, that he, at first, desired the action might not be
brought, in hopes of accomplishing a compromise between the
parties; that, afterwards, he requested Mr. Lewis to defer issuing
the writ 'till as near the term as it was possible; but that all
this interference was of his own accord, and not at the instance of
the defendant. He acknowledged, however, that he had informed
Oswald, that the commencement of the action would be postponed as
long as possible, after having obtained a promise to that effect
from Mr. Lewis. Lewis said he was very much mistaken, indeed, if
Col. Proctor had not mentioned the request as coming from the
defendant; and Col. Proctor answered, 'if ever I told you so, he
certainly sent me; but I cannot remember that ever he asked me to
do a thing of the kind.' Lewis, then added, that the address to the
public manifestly tended to interrupt the course of justice; it was
an attempt to prejudice the minds of the people in a cause then
depending, and, by that means, to defeat the plaintiff's claim to
justice, and to stigmatize the Judges, whose duty it was to
administer the laws. There could be no doubt, therefore, that it
amounted to a contempt of the court; and it only remained, in
support of his motion, to show that an attachment was the legal
mode of proceeding against the offender. For this he cited 4 Black.
Com. 280. 2 Atk. 469. By the Court: Take a rule to show cause on
Monday next, at 9 o'clock in the morning.
Page 1 U.S.
319, 322
The Defendant appearing on Monday the 14th, agreeably to the
rule to show cause, obtained on Saturday, prayed that the rule
might be enlarged, as he had not had a reasonable time to prepare
for the argument. But Lewis opposed the enlargement of the rule,
observing that the defendant would be heard in extenuation, or
excuse, of the contempt, after the attachment had issued.
By M'Kean, C. J.
I know not of any instance where a delay of a term has been
allowed in the case of an attachment: one reason for such a summary
proceeding is to prevent delay. Let cause be now shown.
Sergeant, in showing cause against the attachment, contended,
that the doctrine, in 4 Black. Com. 280. was laid down much too
wide; that in 2 Atk. 469. the Chancellor expressly assigns this
reason, for his determining without a jury, that he was a judge of
fact; and in 1 Burr. 510. 513. an information is granted on this
principle, that courts of common law will not decide upon facts
without the intervention of a jury.
M'Kean, C. J.
This was not the reason that influenced the court in their
decision.
But, whatever the law might be in England, Sergeant insisted,
that it could not avail in Pennsylvania. Even in England, indeed,
though it is said to be a contempt to report the decisions of the
courts, unless under the imprimatur of the judges; yet, we find
Burrow, and all the subsequent reporters, proceeding without that
sanction. But the constitution of Pennsylvania authorizes many
things to be done which in England are prohibited. Here the press
is laid open to the inspection of every citizen, who wishes to
examine the proceedings of the government; of which the judicial
authority is certainly to be considered as a branch. Const. Penn.
sect. 35. [322-Continued.]
M'Kean, C. J.
Could not this be done in England? Certainly it could: for, in
short, there is nothing in the constitution of this state,
respecting the liberty of the press, that has not bee authorized by
the constitution of that kingdom for near a century past.
Sergeant. The 9th section of the Bill of Rights, however, puts
this supposed offence into such a form, as must entitle the
defendant to a trial by jury; and precludes every attempt to compel
him to give evidence against himself. It declares, 'that, in all
prosecutions for criminal offences, a man has a right to be heard
by himself and his council, to demand the cause and nature of his
accusation, to be confronted with the witnesses, to call for
evidence in his favour, and a speedy public trial, by an impartial
jury of the country, without the unanimous consent of which jury he
cannot be found guilty; nor can he be compelled to give evidence
against himself; nor can any man be justly deprived of his liberty
except by the laws of the land, or the judgment of his peers.' Now,
the present proceeding against the defendant is for a criminal
offence; and, yet, if the attachment issues, the essential parts of
this section must be defeated: for, in that case, the defendant
cannot be tried by a jury; and, according
Page 1 U.S.
319, 323
to the practice upon attachments, he will be compelled to answer
interrogatories; in doing which, he must either be guilty of
perjury, or give evidence against himself. The proceeding by
attachment is, indeed, a novelty in this country, except for the
purpose of enforcing the attendance of witnesses. Those contempts
which are committed in the face of a court stand upon a very
different ground. Even the court of Admiralty ( which is not a
court of record) possesses a power to punish them; and the reason
arises from the necessity that every jurisdiction should be
competent to protect itself from immediate violence and
interruption. But contempts which are alledged to have been
committed out of doors, are not within this reason; they come
properly within the class of criminal offences; and, as such, by
the 9th sect. of the bill of rights, they can only be tried by a
jury.
M'Kean, C. J. Do you then apprehend that the 9th sect. of the
bill of rights introduced something new on the subject of trials? I
have always understood it to be the law, independent of this
section, that the twelve jurors must be unanimous in their verdict,
and yet this section makes this express provision. Sergeant said,
that he had discussed the subject as well as the little opportunity
afforded him would admit. He pressed the court to give further time
for the argument, or, at once, to direct a trial. This he contended
was, at least, discretionary; and, considering the Defendant's
protestation of innocence*, his readiness to give ample security
for his future appearance, the magnitude of the question as arising
from the constitution, and its immense consequences to the public,
he thought a delay, that was essential to deliberation and justice,
ought not to be refused. Heatly and Lewis, in support of the
motion, contended, that under the circumstances of the case,
Oswald's publication, whether true or false, amounted to a contempt
of the court, as it respected a cause then depending in judgment,
and reflected upon one of the Judges in his official capacity; that
the argument of the adverse counsel went so far as to assert, that
there could be no such offence as a contempt even in England, since
the very words inserted in the constitution of Pennsylvania, were
used in the Magna Charta of that kingdom; that, in truth, neither
the bill of rights nor the constitution extended to the case of
contempts, for they mean only to secure to every citizen the right
of expressing his sentiments with a manly freedom, but not to
authorize wanton attacks upon private reputation, or to deprive the
court of a power essential to its own existence, and to the due
administration of justice; that the court were as competent to
judge of the fact and the law, upon the inspection of the
publication in question, as the Chancellor was in the authority
cited from Atkins; and that although the prosecutor could, perhaps,
proceed either by indictment or information, yet that the abuses of
the Star Chamber had rendered the process by information
Page 1 U.S.
319, 324
odious, and an attachment, which was sanctified by immemorial
usage, was the most expeditious, and, therefore, the most proper
remedy for the evil complained of. The Chief Justice delivered the
opinion of the Court to the following effect, Judge Bryan having
shortly before taken his seat.
M'Kean. C. J. This is a motion for an attachment against Eleazer
Oswald, the printer and publisher of the Independent Gazetteer, of
the 1st of July last, No. 796. As a ground for granting the
attachment, it is proved, that an action for a libel had been
instituted in this court, in which Anderw Browne is the plaintiff,
and Eleazer Oswald the defendant; that a question with respect to
bail in that action, had been agitated before one of the judges,
from whose order, discharging the defendant on common bail, the
plaintiff had appealed to the court; and that Mr. Oswald's address
to the public, which is the immediate subject of complaint, relates
to the action thus depending before us. The counsel in support of
their motion, have argued, that this address was intended to
prejudice the public mind upon the merits of the cause, by
propagating an opinion that Browne was the instrument of a party to
persecute and destroy the defendant; that he acted under the
particular influence of Dr. Ruth, whose brother is a judge of this
court; and, in short, that from the ancient prejudices of all the
judges, the defendant did not stand a chance of a fair trial.
Assertions and imputations of this kind are certainly calculated to
defeat and discredit the administration of justice. Let us,
therefore, enquire, first, whether they ought to be considered as a
contempt of the court; and, secondly, whether, if so, the offender
is punishable by attachment. And here, I must be allowed to
observe, that libelling is a great crime, whatever sentiments may
be entertained by those who live by it. With respect to the heart
of the libeller, it is more dark and base than that of the
assassin, or than his who commits a midnight arson. It is true,
that I may never discover the wretch who has burned my house, or
set fire to my barn; but these losses are easily repaired, and
bring with them no portion of ignominy or reproach. But the attacks
of the libeller admit not of this consolation: the injuries which
are done to character and reputation seldom can be cured, and the
most innocent man may in a moment be deprived of his good name,
upon which, perhaps, he depends for all the prosperity, and all the
happiness of his life. To what tribunal can he then resort? how
shall he be tried, and by whom shall he be acquitted? It is in vain
to object, that those who know him will disregard the slander,
since the wide circulation of public prints must render it
impracticable to apply the actedote as far as the poison has been
extended. Nor can it be fairly said, that the same opportunity is
given to vindicate, which has been employed to desame him; for,
many will read the charge, who may never see the answer;
Page 1 U.S.
319, 325
and while the object of accusation is publicly pointed at, the
malicious and malignant author, rests in the dishonorable security
of an anonymous signature. Where much has been said, something will
be believed; and it is one of the many artifices of the libeller,
to give to his charges an aspect of general support, by changing
and multiplying the style and name of his performances. But shall
such things be transacted with impunity in a free country, and
among an enlightened people? Let every honest man make this appeal
to his heart and understanding, and the answer must be no! What
then is the meaning of the Bill of rights, and the Constitution of
Pennsylvania, when they declare, 'That the freedom of the press
shall not be restrained,'1 and 'that the printing presses shall be
free to every person who undertakes to examine the proceedings of
the legislature, or any part of the government?2' However ingenuity
may torture the expressions, there can be little doubt of the just
sense of these sections: they give to every citizen a right of
investigating the conduct of those who are entrusted with the
public business; and they effectually preclude any attempt to
fetter the press by the institution of a licenser. The same
principles were settled in England, so far back as the reign of
William the Third, and since that time, we all know, there has been
the freest animadversion upon the conduct of the ministers of that
nation. But is there any thing in the language of the constitution
(much less in its spirit and intention) which authorizes one man to
impute crimes to another, for which the law has provided the mode
of trial, and the degree of punishment? Can it be presumed that the
slanderous words, which, when spoken to a few individuals, would
expose the speaker to punishment, become sacred by the authority of
the constitution, when delivered to the public through the more
permanent and dissusive medium of the press? Or, will it be said,
that the constitutional right to examine the proceedings of
government, extends to warrant an anticipation of the acts of the
legislature, or the judgments of the court? and not only to
authorize a candid commentary upon what has been done, but to
permit every endeavour to bias and intimidate with respect to
matters still in suspense? The futility of any attempt to establish
a construction of this fort, must be obvious to every intelligent
mind. The true liberty of the press is amply secured by permitting
every man to publish his opinions; but it is due to the peace and
dignity of society to enquire into the motives of such
publications, and to distinguish between those which are meant for
use and reformation, and with an eye solely to the public good, and
those which are intended merely to delude and defame. To the latter
description, it is impossible that any good government should
afford protection and impunity. If then, the liberty of the press
is regulated by any suit principle, there can be little doubt, that
he, who attempts to raise a prejudice against his antagonist, in
the minds of those that must ultimately
Page 1 U.S.
319, 326
determine the dispute between them; who, for that purpose,
represents himself as a persecuted man, and asserts that his judges
are influenced by passion and prejudice, willfully seeks to corrupt
the source, and to dishonor the administration of justice. Such is
evidently the object and tendency of Mr. Oswald's address to the
public. Nor can that articice prevail, which insinuates that the
decision of this court will be the effect of personal resentment;
for, if it could, every man might evade the punishment due to his
offences, by first pouring a torrent of abuse upon his judges, and
then asserting that they act from passion, because their treatment
has been such as would naturally excite resentment in the human
disposition. But it must be remembered, that judges discharge their
functions under the solemn obligations of an oath: and, if their
value entitles them to their station, they can neither be corrupted
by favour to swerve from, nor influenced by fear to desert, their
duty. That judge, indeed, who courts popularity by unworthy means,
while he weakens his pretensions, diminishes, likewise, the chance
of attaining his object; and he will eventually find that he has
sacrificed the substantial blessing of a good conscience, in an
idle and visionary pursuit. Upon the whole, we consider the
publication in question, as having the tendency which has been
ascribed to it, that of prejudicing the public ( a part of whom
must hereafter be summoned as jurors) with respect to the merits of
a cause depending in this court, and of corrupting the
administration of justice: We are, therefore, unanimously of
opinion, on the first point, that it amounts to a contempt. It only
remains then to consider, whether the offence is punishable in the
way that the present motion has proposed. It is certain that the
proceeding by attachment is as old as the law itself, and no act of
the legislature or section of the constitution, has interposed to
alter or suspend it. Besides the sections which have been already
read from the constitution, there is another section which
declares, that 'trials by jury shall be as heretofore,' and surely
it cannot be contended, that the offence, with which the defendant
is now charged, was heretofore tried by that tribunal. If a man
commits an outrage in the face of the court, what is there to be
tried? what further evidence can be necessary to convict him of the
offence, than the actual view of the Judges? A man has been
compelled to enter into security for his good behaviour, for giving
the lie in the presence of the Judges in Westminster Hall. On the
present occasion, it not the proof, from the inspection of the
paper, as full and satisfactory as any that can be offered? And
whether the publication amounts to a contempt, or not, is a point
of law, which, after all, it is the province of the judges, and not
of the jury, to determine. Being a contempt, if it is not punished
immediately, how shall the mischief be corrected? Leave it to the
customary forms of a trial by jury, and the cause may be continued
long in suspense, while the party perseveres in his misconduct.
The
Page 1 U.S.
319, 327
injurious consequences might then be justly imputed to the
court, for refusing to exercise their legal power in preventing
them.
For these reasons we have no doubt of the competency of our
gujurisdiction; and we think, that justice and propriety call upon
us to proceed by attachment.
Bryan, Justice, observed, that he did not mean to give an
opinion as to the mode of proceeding; but, added, that he had
always entertained a doubt with respect to the legality of the
process by attachment, in such cases, under the constitution of
Pennsylvania.
M'Kean, C. J.
Will the defendant enter into a recognizance to answer,
interrogatories, or will he answer gratis?
Oswald, I will not answer interrogatories. Let the attachment
issue.
*
M'Kean, C. J.
His counsel had better advise him to consider of it.
Sergeant said that the defendant had not had time, even to
peruse what had been sworn against him; for only Sunday had
intervened since the obtaining the rule to show cause, and that was
an imporper day for applying to the records of the court.
M'Kean, C. J.
[327-Continued.]
In criminal matters Sunday has always been deemed a legal day.
There has been as ample time for consideration as could well be
allowed; the term will end tomorrow. Will he answer, or not?
Sergeant prayed the court would grant 'till tomorrow morning to
form a determination on the subject, and offered bail for the
defendant's appearance at that time.
M'Kean, C. J.
Be it so. Let the bail be taken, himself in L. 200, and one
surety in the like sum, for his appearance tomorrow morning.
The Defendant appearing on the 15th of July, in discharge of his
recognizance; the Chief Justice again asked, whether he would
answer interrogatories or not?
Bankson, for the defendant, requested, that the interrogatories
might be reduced to writing before he was called upon to
determine.
M'Kean, C. J.
Is that your advice to him? He must now say whether he will
answer them or not; they will be filed according to the usage of
the court, and all just exceptions to them will be allowed.
Bankson, He instructs me to declare that he will not answer
interrogatories; and he then began to urge, that there was no
contempt committed, but was told by the Chief Justice, that, as
Page 1 U.S.
319, 328
that point had been determined by an unanimous opinion of the
four judges yesterday, it was not now open for argument.
Lewis said, that as a misrepresentation had been industriously
spread abroad respecting the conduct of the court, he thought it
proper, at this time, concisely to state the real nature of the
present proceedings. It has been asserted that the court were about
to compel Mr. Oswald to convict himself of the offence with which
he is charged: but the fact is this, that it is incumbent upon the
person who suggests the contempt to prove it by disinterested
witnesses; and then, indeed, the defendant is allowed by his own
oath to purge and acquit himself, in spite of all the testimony
which can possibly be produced against him. It appears clearly,
therefore, that Mr. Oswald's being called upon to answer
interrogatories, is not meant to establish his guilt (for that has
been already done) but to enable him to avoid the punishment which
is the consequence of it. The court employ no compulsion in this
respect. He may either answer, or not, as he pleases: if he does
answer, his single oath, in his own favour, will countervail the
oaths of a thousand witnesses; and if he does not answer, his
silence corroborates the evidence which has been offered of the
contempt, and the judgment of the court must necessarily
follow.
M'Kean, C. J.
Your statement is certainly right, and the misrepresentation,
which is attempted, must either be the effect of wickedness, or
ignorance.
Lewis now prayed, that the rule might be made absolute; but
remarked, that, according to the authorities, the court might
either do that; or, as the defendant was present, they might
proceed at once to pass sentence upon him.
M'Kean, C. J. [328-Continued.]
There can be no occasion, when the party is present, to make the
rule for the attachment absolute: the court will proceed to give
judgment.
Bryan, Justice.
I was not here when the complaint was made to the court, when
the evidence in support of the motion was produced, or the
arguments against it were delivered: I consider myself therefore
totally incapacitated for taking any part in this business.
Lewis. We can immedialty furnish the court with the proofs.
Bryan, Justice.
Can you furnish me, likewise, with Mr. Sergeant's arguments?
Lewis said, that he had not penetration enough to discover any
argument in what had been said for the defendant; and having again
read all the evidence which had been produced, he recapitulated
what he had before said in support of the motion.
Page, the under-sheriff, was then called upon to prove, that the
writ in the action of Browne vs. Oswald had been in his possession,
at least twelve days before it was served; and that the delay in
sering it arose at first, from the defendant's being at Baltimore;
and, afterwards, from his not being at home when the witness had
repeatedly called upon him.
Page 1 U.S.
319, 329
Bryan, Justice.
I still say, that not having heard what has been offered in
extenuation of the offence, I am incompetent to join in any opinion
of respecting the punishment. I cannot surely be suspected of
partiality to libellers: I have had my share of their malevolence.
But, it is true, I have not suffered much; for these trifles do not
wrankle in my mind.
The Chief Justice pronounced the judgment of the court in the
following words:
M'Kean, C. J.
Eleazer Oswald: Having yesterday considered the charge against
you, we were unanimously of opinion, that it amounted to a contempt
of the court. Some doubts were suggested, whether, even a contempt
of the court, was punishable by attachment: but, not only my
brethren and myself, but, likewise, all the judges of England,
think, that without this power no court could possibly exist; nay,
that no contempt could, indeed, be committed against us, we should
be so truly contemptible. The law upon the subject is of immemorial
antiquity; and there is not any period when it can be said to have
ceased, or discontinued. On this point, therefore, we entertain no
doubt.
But some difficulty has arisen with respect to our sentence;
for, on the one hand, we have been informed of your circumstances,
and on the other, we have seen your conduct: your circumstances are
small, but your offence is great and persisted in. Since, however,
the question seems to resolve itself into this, whether you shall
bend to the law, or the law shall bend to you, it is our duty to
determine that the former shall be the case.
Upon the whole, therefore, the Court pronounce this sentence:
That you pay a fine of 101. to the Commonwealth; that you be
imprisoned for the space of one month, that is, from the 15th day
of July to the 15th day of August next; and, afterwards, till the
fine and costs are paid. Sheriff he is in your custody.*
[329-Continued.]
On the 5th of September 1788, Mr. Oswald presented a memorial to
the General Assembly, in which he stated the proceedings against
him, complained of the decision of three of the Judges of the
Court, in the principal case, and of the direction of the Chief
Justice to the Sheriff, by which, he alledged, his confinement had
afterwards been illegally protracted: finally calling upon the
house to determine, 'whether the Judges did not infringe the
constitution in direct terms in the sentence they had pronounced;
and whether, of course, they had not made themselves proper objects
of impeachment.'
The Assembly, having previously appointed a committee to report
the order of proceeding on Mr. Oswald's memorial, resolved itself
into a committee of the whole, to hear the evidence in support of
the charges exhibited. Three days were consumed in the examination
of witnesses, during which, the above report was substantially
proved, together with the subsequent transaction relative to Mr.
Oswald's imprisonment.
Mr. Lewis, as a member of the house, then delivered a very
elaborate argument, in vindication of the conduct of the judges;
and, though, this is, in some degree, foreign to my immediate
undertaking, it may not be unprofitable to those, who either now or
hereafter, wish to understand the principles of so interesting a
case, to delineate the leading features of the doctrine which he
maintained.
He began with stating the inestimable character of true liberty,
which is equally endangered by tyranny on the one hand, and by
licentiousness upon the other. He said, it did not consist in the
uncontrouled power of doing whatever the will might prompt an
individual to attempt; but, while it was independent of arbitrary
and despotic rule, it was happily regulated by the laws and
constitution of the state. Having rescued Sir William Blackstone
from the stigma of being a courtly writer, by showing the
enthusiasm of that author in favor of the trial by jury, Mr. Lewis
referred to the celebrated Commentaries in support and illustration
of his sentiments upon liberty. 1 Black. Com. 125. 2 Black. Com. 4
Black. Com. 3. 42. [329-Continued.]
He then commented upon the origin, nature, and purposes of a
state of society, which, he said, was principally formed to protect
the rights of individuals; and, of those rights, he pathetically
described the right of enjoying a good name, to be the most
important and most precious. He observed, that the injuries which
could be done to any other property, might be repaired; but
reputation was not only the most valuable, but, likewise, the most
delicate of human possessions. It was the most difficult to
acquire; when acquired, it was the most difficult to preserve; and
when lost, it was never to be regained. If, therefore, it was not
as much protected, as any other right, the aged matron, and the
youthful virgin, (since purity of character is the palladium of
female happiness) while they are fettered by the habits and
expectations of society, are exposed and abandoned by its laws and
institutions. But this evil is effectually removed, when we
consider the bill of rights as precluding any attempt to restrain
the press, and not as authorizing insidious falshoods and anonymous
abuse. The right of publication, like every other right, has its
natural and necessary boundary; for, though the law allows a man
the free use of his arm, or the possession of a weapon, yet it does
not authorize him to plunge a dagger in the breast of an
inoffensive neighbour.
Mr. Lewis then proceeded to consider the immediate subject of
complaint. He stated it to be two-fold; 1st. That the Chief Justice
had protracted Mr. Oswald's imprisonment beyond the legal
expiration of his sentence; and, 2ndly, That the imprisonment
itself, was unconstitutional, illegal, and tyrannical.
On the first point, he observed, that it was, indeed, a serious
charge, if Mr. Oswald could prove that a single justice, had
arbitrarily altered, or counteracted, the record of the court, in
order to accomplish the imprisonment of a citizen. But how was the
charge supported? The opinion given by the Chief Justice to the
jailer, was not given in his judicial capacity; and though a paper,
said to be a transcript from the records, was shown to him, yet it
was not subscribed by the Prothonotary, nor was it under the seal
of the court. This, therefore, could not be a sufficient document
to set aside his recollection of the sentence; it was no legal
evidence of the fact which it stated, (Gilb. law of Ev. 23.) and
the little time that elapsed between the opinion given to the
Jailer, and the directions for Mr. Oswald's release, we may fairly
presume to have been consumed in examining the records.
[329-Continued.]
On the second point, he engaged in a long and ingenious
disquisition upon the nature of what is called the liberty of the
press; he represented the shackles which had been imposed upon it
during the arbitrary periods of the English government; and thence
deduced the wisdom and propriety of the precaution, which declares
in, the bill of rights, that the press shall not be subject to
restraint. He gave an historical narrative of the British acts of
parliament and proclamations, which debarred every man of the right
of publication, without a previous licence obtained from officers,
established by the government to inspect and pronounce upon every
literary performance; but observed, that this oppression (which was
intended to keep the people in a slavish ignorance of the conduct
of their rulers) expired in the year 1694, when the dawn of true
freedom rose upon that nation. 9 vol. Stat. at large, p. 190. Since
that memorable period, the liberty of the press has stood on a firm
and rational basis. On the one hand, it is not subject to the
tyranny of previous restraints, and, on the other, it affords no
sanction to ribaldry and slander; so true it is, that to censure
the licentiousaess, is to maintain the liberty of the press. 4
Black. Com. 150. 151. 152. Here, then, is to be discerned the
genuine meaning of this section in the bill of rights, which an
opposite construction would prostitute to the most ignoble
purposes. Every man may publish what he pleases; but, it is at his
peril, if he publishes any thing which violates the rights of
another, or interrupts the peace and order of society; as every man
may keep poisons in his closet, but who will assert that he may
vend them to the public for cordials? If, indeed, this section of
the bill of rights had not circumscribed the authority of the
legislature, this house, being a single branch, might in a despotic
paroxism, revive all the odious restraints, which disgraced the
early annals of the British government. Hence, arises the great
fundamental advantage of the provision, which the authors of the
constitution have wisely interwoven with our political system; not,
it appears, to tolerate and indulge the passions and animosities of
individuals, but effectually to protect the citizens from the
encroachemnts of men in power. [329-Continued.]
It has been asserted, however, that Mr. Oswald's address was of
a harmless texture; that is was no abuse of he right of
publication, to which, as a citizen, he was entitled; and, in
short, that in considering it as a contempt of the court, the
judges have acted tyrannically, illegally, and unconstitutionally.
But let us divest the subject of these high-sounding epithets, and
the reverse of this assertion will be evident to every candid and
unprejudiced mind: For, such publications are certainly calculated
to draw the administration of justice from the proper tribunals;
and in their place to substitute newspaper altercations, in which
the most skilful writer will generally prevail against all the
merits of the case. But it is moreover the duty of the judges to
protect suitors, not only from personal violence, but from
insidious attempts, to undermine their claims to law and justice.
Hence, Lord Chancellor Hardwicke, (who was an ornament to his
country, and not one of whose decrees during the period of twenty
years which he sat as chancellor, was ever reversed) has described
three forts of contempts 1st, Scandalizing the court itself 2ndly,
Abusing parties who are concerned in causes there; and 3rdly,
Prejudicing mankind against persons, before the cause is heard. 2
Atk. 471. And in 2 Vesey 520, though no reflection was cast upon
the court, and the offender pleaded ignorance of the law, yet, it
is expressly laid down, that ignorance was not an excuse, and that
the reason for punishing was, not only for the sake of the party
injured, but also for the sake of the public proceedings in the
court to hinder such advertisements, which tend to prepossess
people as to those proceedings. A similar doctrine is maintained in
1 P. Williams 675. And 4 Black. Com. 282. pronounces the printing,
even true, accounts of a cause depending in judgment, to be a
contempt of the court.
But it has been said, that this cause was not depending in
court, when the offence was committed, because the address was
published on the first of July, and the writ against Mr. Oswald was
not returnable 'till the succeeding day. This idea originates in an
ignorance of the constitution of our courts, which, in this respect
differs essentially from the constitution of the courts of England.
There all original process issued out of the Court of Chancery, and
is made returnable into the King's Bench or Common Pleas; so that,
in truth, the writ gives the jurisdiction, and, of course, 'till it
is returned, the
court cannot take cognizance of the cause. Here, however, the
original process issues out of the very court into which it is
returnable, and is usually tested the last day of the preceeding
term. It is absurd, therefore, to say that the jurisdiction of a
court, by whose authority a suit is actually instituted, can be
thus suspended and parcelled out. [329-Continued.]
With respect to the address itself Mr. Lewis annalysed its
offensive parts, in order to show that it treated the judges with
indecent opprobrium; that, in some respects, it was inconsistent
with truth, and that, in its general operation, it was intended,
and could not fail, to excite resentment against Browne, the
plaintiff, and compassion for Oswald, the defendant, in the
cause.
He now proceeded to consider the mode of punishment, which
formed a material part of Mr. Oswald's complaint, and, in support
of its legality, refered, generally, to the authorities, which he
had already cited. He observed that much declamation had been
wasted upon this topic; and that the proceeding by attachment had
been vehemently reprobated as the creature of the Court of Star
Chamber. Though that court might have employed the process of
attachment (of which, however, he did not recollect an instance)
yet, he insisted, that it was idle and absurd to consider it as the
creature of a jurisdiction, whose own existence was of a much later
date, than that of the subject to which we are told it gave birth.
To prove this, he stated that the court of Star Chamber was not
instituted 'till the year 1368; that Magna Charta was confirmed, at
least, 113 years before that time; and, as all the authorities
concur in declaring that the process by attachment is as ancient as
the laws themselves, and that it was confirmed by Magna Charta, its
origin is consequently long antecedent to that of the Court of Star
Chamber. 4 Black. Com. 280.281.282. 283.284.285.
But he argued, with great strength and perspicuity, that the
process of attachment, which in practice was multiplied into
innumerable uses, was essential to the administration of justice;
and that if the exercise of this power was suppressed, the courts
themselves might as well be annihilated. He represented, that it
was an established principle in law, that one court could not
punish a contempt committed against another, then, continued he,
how shall the Common Pleas repel an injury of that nature? It is
not vested with any criminal jurisdiction; it cannot impannel a
grand Jury, nor try an indictment; the only remedy therefore which
the case can admit, is by an attachment. He applied the same
reasoning to the Supreme Court; and with respect to the Orphan's
Courts, the Court of Admiralty, and the Courts of the Registers of
Wills, &c. he observed, that their proceedings, according to
the civil law, were totally independent of juries; and that
consequently if they were deprived of the process of attachment,
[329-Continued.]
it was in vain for them to decide and to decree, for they would
then be without any means to enforce obedience to their decisions
and decrees. Nay, he added, that, without this power, the
legislature itself would be exposed to wanton insult and
interruption; and that letters, such as he had received, menacing
his existence for his conduct on the present occasion, might be
written and avowed with absolute impunity. He then enumerated many
instances in which gross injustice would take place, but for the
intervention of this summary proceeding. Where a sheriff refuses,
or neglects, to return a writ; or to pay money which he has
received upon an execution; where an inferior court refuses to
transmit a record; a witness, or juryman, to attend or to be sworn;
and where a defendant in ejectment refuses to pay costs, after a
nonsuit, for want of a consession of lease entry and ouster; in all
these and many other cases he demonstrated, that the great,
efficient remedy, was by an attachment to be issued against the
delinquent.
In tracing the antiquity of the process by attachment, he
remarked, that, it was admitted to be a part of the common law by
the most authoritative writers; and that the common law was a
compound of the Danish, Saxon, Norman, Pict and Civil law 1 Black.
Com. 63. As, therefore, the attachment is derived from the civil
law, and the civil law was introduced into England by the Romans,
early in the first century, he hought it impracticable at this day
to ascertain its source; but insisted that enough appeared to prove
it to be of immemorial usage, and a part of the law of the
land.
He then adverted to the leading objection made by the advocated
for Mr. Oswald, that, however the process of attachment might be
legal in England, it was not so in Pennsylvania. From a decision in
the time of Judge Kinsey, he showed, that, before the revolution,
an attachment had issued for a contempt, and that the party had, in
fact, answered certain interrogatories filed by order of the court;
so that it only remained to enquire, whether any alteration had
been introduced by the constitution of the state. In the 24th sect.
of that instrument, it is declared, that, the Supreme Court, and
the several courts of Common Pleas of this Commonwealth, shall,
besides the powers usually exercised by such courts, have the
powers of a court of chancery, so far as relates, &c.' Now, as
it appears by the case which occured while Mr. Kinsey was chief
justice, that the power of issuing attachments was usually
exercised by the Supreme Court, so far from altering the law, this
is a direct confirmation of the jurisdiction of the court; for, the
greater naturally included the less; and if the court is vested
with all its former powers, by what possible construction can we
deprive it of this? But it is answered, that a section in the bill
of rights provides, that 'In all prosectuions for criminal offences
the trial shall be by jury, &c.' True; but the whole system
must be taken together; or, if we examine a particular part, it
must be with a recollection of the immediate subject to which that
part relates. For, otherwise, this very section might as properly
be brought to prove, that the judges could not be impeached (since
surely that is not a trial by jury) as that they have not the power
of issuing attachments. All cases proper for a trial by jury, the
bill of rights clearly meant to refer to that tribunal; but can any
thing more explicitly demonstrate, that the framers of the
constitution were aware of some cases, which required another mode
of proceeding, than their declaration, that [329-Continued.]
'Trials shall be by jury as heretofore? Who will assert that
contempts were ever so tried? who will hazard an opinion, that it
is possible so to try them?
But does not the constitution of Pennsylvania further
distinguish between the laws of the land, and the judgment of our
peers; furnishing a striking alternative, by the disjunctive
particle or? This very sentiment, expressed in the same words,
appears in the Magna Charta of England, and yet Blackstone
unequivocally informs us, that the process of attachment was
confirmed by that celebrated instrument. In the 14 chap. of Magna
Charta, it is also said, that 'no amercement shall be assessed, but
by lawful men of the vicinage;' and who, that is at all acquainted
with the law, or with the reason of the law, can think it possible,
in that case, to pursue the generality of the expression?
From these analogous principles, therefore, and the construction
of ages, we may safely argue on the present occasion. But the wild
and hypothetical interpretations, which some men have offered,
would inevitably involve us in a labyrinth of error, and eventually
endanger that liberty, which they profess, and every honest citizen
must wish, to preserve.
As to the manner of proceeding upon the attachment, the court on
this occasion have followed the precedent in Mosley's Rep. 250.
where it is liberally said, that the defendant shall not be
permitted to be examined to bring himself into contempt; but upon
proof of the contempt, he shall be allowed to purge himself upon
his oath.
Upon the whole, Mr. Lewis concluded, that the only grounds of
impeachment, were bribery, corruption, gross partiality, or wilful
and arbitrary oppression; and that as none of these had been
proved, Mr. Oswald's memorial ought to be dismissed. He said,
indeed, that it would be preferable to return to the state of
nature, than to live in a state of society upon the terms which
that memorial presented; terms, which left the weak and the
innocent a prey to the powerful and the wicked; and which gave to
falsehood and licentiousness, all that was due to freedom and to
truth.
When Mr. Lewis's argument was closed, Mr. Findley, a member from
Westmoreland, rose, and delivered his sentiments, with great
ability and precision. He acknowledged, that he had received great
information and pleasure, from the learned and eloquent speech of
the member who preceeded him; but he thought it was unnecessary,
upon the present occasion, to explore the dark and distant periods
of juridical history. The rights and immunities which formed the
great object of the revolution, he contended, were capable of an
easy and unequivocal definition; they were not of such remote
antiquity as to be lost even to the feelings of the people; and the
constitution of the state was the only proper criterion, by which
they could be judged and ascertained. He did not, therefore, intend
to pursue Mr. Lewis, in the tract of legal disquistion; but,
appealing confidently to the instrument itself, he deemed it to be
his duty to pronounce, that the decision of the supreme court was a
deviation from the spirit and the letter of the frame of
government. In doing this, he observed, that he did not mean to
assert, that any ground had been shown for the impeachment of the
judges. But, on the contrary, he agreed with Mr. Lewis, that
bribery, corruption, or a wilful and arbitrary infraction of the
law, were the only true causes for instituting a prosectuion of
that nature; and his candor readily induced him to believe, that as
none of these had been proved, neither did any of them actually
exist on this occasion. But, he said, it was due to the dearest
interests of posterity, that the legislature should act with that
circumspection, [329-Continued.]
should decide with that wisdom, which, leading on the one hand,
to an acquittal of the judges, did not tend, on the other, to
establish a baneful and destructive precedent. It was in this point
of view, that the present proceeding presented itself to his mind,
as a matter of the greatest magnitude and importance; and he said
it were better far that Mr. Oswald had suffered in silence and
obscurity, than that the attention of the legislature should be
awakened, only to give additional strenght and authority to the
mistaken judgment of the court.
That it was a mistaken judgment, every man, he alledged, who
possessed a competent share of common sense, and understood the
rules of grammar, was able to determine on a bare perusal of the
bill of rigths and constitution. With these aids, he defied all the
sophistry of the schools, and the jargon of the law, to pervert or
corrupt the explicit language of the text; and therefore he
regretted, that in listening to the ingenuity of Mr. Lewis's
paraphrase, his admiration was not necessarily followed by
conviction.
He then discussed the 9 sect. of the bill of rights, which
provides, 'that in all prosecutions for criminal offences a man
hath a right to be heard by himself and his council, to demand the
cause and nature of his accusation, to be confronted with the
witnesses, to call for evidence in his favour, and a speedy public
trial, by an impartial jury of the country, without the unanimous
consent of which jury he cannot be found guilty, nor can he be
compelled to give evidence against himself, nor can any man be
justly deprived of his liberty except by the laws of the land or
the judgment of his peers.' He said, that in these expressions,
there was nothing ambiguous or uncertain; they contained a
recapitulation of the most valuable privileges, in the msot
positive language; and they did not require to be illustrated, or
explained, by the Roman institutions, or the British practice.
Hither, he observed, every man could safely resort, in order to be
taught the nature and extent of his rights and obligations; and it
would be fatal indeed to the cause of liberty, if it was once
established, that the technical learning of a lawyer is necessary
to comprehend the principles laid down in this great political
compact between the people and their rulers. Even with respect to
that clause on which the proceedings of the Judges are particularly
vindicated, he did not perceive a reasonable ground for the
distinction that was attempted; but thought with many other
characters of superior information and abilities, that the law of
the land was not, in fact, contra-distinguished from the judgment
of his peers, but merely a diversity in the mode of expressing the
same thing. He admitted, however, that cases did exist in which it
was necessary, for the sake of justice, to empower the judges to
exercise a summary authority. For outrages committed in the face of
the court, for the misconduct of its officers, and for a
disobedience or resistance of its process, there seemed, he said,
to be a propriety in establishing an immediate remedy. But, this
did not extend, in his opinion, [329-Continued.]
to the case of constructive contempts; to criminal offences
perpetrated out of the view of the court: nor to such acts, as in
their nature, did not call for a sudden punishment, and which, in
their operation, involved a variety of facts, that a jury was only
competent to investigate and determine.
With respect to the argument offered by Mr. Lewis, that as
attachments had issued in Pennsylvania before the revolution; and
as the 24 sect. of the constitution, declares, that the courts
shall have all the powers which they usually exercised, therefore
the power of proceeding by Attachment is confirmed, Mr. Findley
observed, that the fallacy of this interpretation would be
notorious, by recollecting that the last sentence of that very
section stipulates, that such powers shall not be inconsistent with
the constitution. Nor would he admit the inference which had been
drawn from the next section, that says, 'trials shall be by jury as
heretofore;' for, he said, it appeared by its context and immediate
subject, that it related to the forms and modes of proceeding upon
the trial, and not to the cases in which the trial ought to be
allowed.
Having expatiated, with great energy, upon the different points
of the constitution, which the subject brought into view; having
asserted the right of every man to publish his sentiments on public
proceedings; and having urged the danger of permitting the judges,
by implication, to punish for offences against themselves
(observing, that if it was a contempt to write, it was also a
contempt to speak of a cause depending in the courts) he concluded
with intimating, that he should take an opportunity of submitting a
resolution to the house, which might serve to avert the pernicious
consequences of allowing the case of Mr. Oswald to grow into
precedent.
Mr. Fitzsimons, a member from the city of Philadelphia, now
moved the following resolution.
'Resolved, That this house, having,
in a committee of the whole, gone into a full examination of the
charges exhibited by Eleazer Oswald, of arbitrary and oppressive
proceedings in the justices of the supreme court against the said
Eleazer Oswald, are of opinion, that the charges are unsupported by
the testimony adduced, and, consequently, that there is no just
cause for impeaching the said justices.'
The proposition contained in this resolution, gave rise to a
short but animated conversation. On the one hand, it was said,
that, in admitting that there was no ground of impeachment, it was
not intended to concede, that the facts represented in the memorial
had not been proved: and, on the other hand, it was answered, that,
if there had been proof that the memorialist, according to the
complaint, 'was immured in prison, without even the shadow of a
trial, for an imaginary offence,' it would have been the
indispensable duty of the legislature to vote for an impeachment.
[329-Continued.]
A compromise, at length, took place, and the committee of the
whole agreed to report the following resolution.
'Resolved, That the charges exhibited
by Mr. Eleazer Oswald against the justices of the supreme court,
and the testimony given in support of them, are not a sufficient
ground for impeachment.'
But when this report was called up for the decision of the
house, it was postponed (and consequently lost) on motion of Mr.
Clymer, in order to introduce the resolution originally proposed by
Mr. Fitzsimons in the committee. Mr. Findley then claimed the
attention of the members, and after a judicious introduction,
presented the following resolutions to the chair, to supercede Mr.
Clymer's motion.
'Resolved, That the proceedings of
the supreme court against Mr. Eleazer Oswald, in punishing him by
fine and imprisonment, at their discretion, for a constructive or
implied contempt, not, committed in the presence of the court, nor
against any officer, or order thereof, but for writing and
publishing improperly, or indecently, respecting a cause depending
before the supreme court, and respecting some of the judges of said
court, was an unconstitutional exercise of judicial power, and sets
an alarming precedent, of the most dangerous consequence, to the
citizens of this commonwealth.'
'Resolved, That it be specially
recommended to the ensuing General Assembly, to define the nature
and extent of contempts, and direct their punishment.'
An interesing debate arose upon these resolutions, in the course
of which, much that had been said in the committee was repeated,
and many new ideas were suggested, upon the general question of the
jurisdiction of the court, in cases of attachment. With respect to
Mr. Findley's propositions, that gentleman ably supported them upon
the spirit of the constitution, and the expediency of the thing
itself. But it seemed to be satisfactorily answered by Mr. Lewis,
1st. That the legislative power is confined to making the law, and
cannot interfere in the interpretation: which is the natural and
exclusive province of the judicial branch of the government: and
2ndly, That the recommendation to the succeeding assembly would be
nugatory: for the courts of justice derive their powers from the
constitution, a source paramount to the legislature; and,
consequently, what is given to them by the former, cannot be taken
from them by the latter.
Mr. Findley's motions were lost by a considerable majority; and
Mr. Clymer's revived resolution, adopted by the house: Yeas 34.
Nay
Footnotes
[
Footnote *] Mr.Oswald repeatedly
declared that he meant no contempt of the court in what he had
published.
Footnote 1 Declar. of
Rights, f. 12.
Footnote 2 Constit. of Penn.
f. 35.
[
Footnote *] At this period of the
cause, I am informed by a gentleman of great learning and accuracy,
that the court called for the sheriff in order to commit the
defendant; but the transition from that idea to the advice which
fell from the bench, must have been so instantaneous, that, if I
heard that call, I presume I did not consider it as a part of the
proceedings, and therefore omitted it in my notes. If it is of any
importance, I am happy in the opportunity of supplying this dese
et.
[
Footnote *] The sentence on the
point of imprisonment, was entered upon the record for the space of
one month, without taking notice of the explanatory words used by
the Court. At the expiration of the legal month, ( 28 days) Mr.
Oswald demanded his discharge; but with this the Sheriff, who had
heard the sentence pronounced, refused to comply, 'till he had
consulted the Chief Justice. His Honor, remembering the meaning and
words of the Court, told this officer, at first, that he was bound
to detain his prisoner 'till the morning of the 15th of August;
but, having shortly afterwards examined the record, he wrote to the
Sheriff, that Mr. Oswald, agreeably to the entry there, was
entitled to his discharge.
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