Respublica v. Oswald

Mr. Oswald repeatedly declared, that he meant no contempt of the court, in what he had published.

Declar. of Rights, § 12.

Const. of Penn, of 1776, § 35.

Sob Const. of 1874, art. I., § 7. Commonwealth v. Singerly, 38 Leg. Int. 177; Commonwealth v. Willard, 9 W. N. C. 524 Commonwealth v. Woodward, 7 Luz. L. Reg. 39, 44.

In Hollingsworth v. Duane (Wall. C. C. 77, 106), the circuit court of the United States held that a similar provision in the constitution of the United States did not de-' prive the courts of the right to punish contempts in a summary mode. 1

And see United States v. Hudson, 7 Cr. 32; United States v. New Bedford Bridge, 1 W. A M. 401.

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 in.stantaneous, 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, l am happy in the opportunity of supplying this defect.

Proceedings for contempt are criminal in their character. Durant v. Supervisors, 1 Wool. 377.

Wartman v. Wartman, Taney, Dec. 362.

See Hollingsworth v. Duane, Wall. C. C. 78.

In Respublica v. Passmore, 3 Yeates 438, it was held, that a publication, attempting to prejudice the public mind on the merits of a suit pending at court, was punishable by attachment; and the defendant in that case was sentenced to fine and imprisonment. The power of the courts to punish in a summary way, for what are called constructive contempts, has since been taken away by the act of 19th April 1809 (5 Sm. L. 55), which restricts their power of summary punishment, to cases of “ official misconduct of the officers of the courts, to the negligence or disobedience of officers, parties, jurors or witnesses, against the lawful process of tho court, and to the misbehavior of any person in the presence of tho court, obstructing the administration of justice.” The act, however, declares that publications tending to bias the public mind respecting any question depending in court, may be punished by indictment, or by a civil action. 1

The sentence on the point of imprisonment, was entered upon tho record for the space of one month, without taking notice of the explanatory words used by tho 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, unti' 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 until the morning of the 15th of August; but, having shortly afterwards examined the record, he wrote to the sheriff, that Mr. Oswald, agreeable to the entry there, was entitl sd to his discharge.

On the 5th of September 1788, Mr. Oswald presented a memorial to the General As *345 sembly, in which he stated the proceedings against him, complained of the deci don 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 alleged, 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. Ho said, it did not consist in the uncontrolled 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 Blaekstone from the stigma of being a com'tty 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 Id.; 4 Id. 3, 42.

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 authorising insidious falsehoods 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 authorise him to plunge a dagger in the breast of an inoffensive neighbor.

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 2d, 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 oi’der 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 recoi ds, 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.

*346 On the second point, he engaged in a long and ingenious disquisition upoi the nature of what is called the liberty of the press; he represented the shackles whicn had been imposed upon it during the arbitrary periods of the English government; and thence deduced 'he wisdom and propriety of the precaution, which declares, in the bill of rights, tkat 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 license obtained from officers established by the government to inspectand 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 licentiousness, 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 anything 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 paroxysm, 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 encroachments ef men in power.

It has been asserted, however, that Mr. Oswald’s address was of a harmless texture; that it was no abuse of the 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 adr ministration 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 sorts of contempts — 1st, Scandalizing the court itself: 2d, Abusing parties who are concerned in causes there; and 3d, 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. Wms. 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 until 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 issues out of tho court of Chancery, and is made returnable into the King’s Bench or Common Pleas; bo that, in truth, the writ gives the jurisdiction, and of course, until it is returned, the *347 court cannot taxe cognisance 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 preceding 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.

With respect to the address itself, Mr. Lewis analysed 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 ijLadant 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, referred, 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 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 until the year 1368, that Magna Gharta was confirmed, at least, 118 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 Gharta, its origin is consequently long antecedent to that of the court of StaChamber. 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 orphans’ court, the court of admiralty, and the courts .of the registers of wills, &c., he observed, that their proceedings, according to the civil law, w'ere totally independent of juries; and that, consequently, if they -were deprived of the process of attachment, it was in vain Cor 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; 1 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 confession 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, Piet, and civil law. 1 Black. Com. 68. 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 cer tury, 2 he *348 thought 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 advocates 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 inquire 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 bjr such courts, have the powers of a court of chancery, so far as relates, &c.” Now, as it appears by the case which occurred 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 includes 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 prosecutions for criminal offences, the trial shall be by jury, &c.” True, but the whole system must be taken together ; or, if wo 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 bo impeached (since surely that is not a trial by jury), as thatthey 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 anything more explicitly demonstrate, that the framers of the constitution were aware of some cases, which retired another mode of proceeding, than their declaration, that “trials shall be by jury as heretofore ?” — Who will assert that contempts wore ever so tried ? who will hazard an opinion, that it is possible so to try them ?

But does not the constitution of Pennsjdvania 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 Ohao’ta 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 Qliawta, it is also said, that “no amercement shall be assessed, but by lawful men of the vicinageand 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 Moseley’s Hep. 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 *349 speech of the member who preceded 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 popple; 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 track of legal disquisition ; but, appealing confidently to the instrument itself, ho 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 ho 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 prosecution 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, 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 strength and authority to the mistaken judgment of the court.

That it was a mistaken judgment, every man, he alleged, 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 rights 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 9th 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 counsel, to demand the cause and nature of his accusation, to be confronted with the witnesses, to call for evidence in his favor, and a speedy public trial, by an impartial jury of the country, without the unanimous consent of which jury, ho 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 most 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, 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, *350 and wh ich, in tl .eir operation, involved a variety of facts, that a jury was only competent to investigate a ad determine.

With respect to the argument offered by Mr. Lewis, that at attachments had issued In Pennsylvania, before the revolution, and as the 24th 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. Mndley observed, that the fallacy of this interpretation would be notorious, by recollecting that the last sentence of that fery section stipulates, that such powers shall not be inconsistent with the constitution. JSior would he admit the inference which had been drawn from the next section, that says, “trials shall bo by jury as heretoforefor, 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 nis 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 «vas 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. 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. Ch/mer, 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 supersede Mr. CVymer'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 interesting 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 *351 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 2d, 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. Glymer’ revived resolution, adopted by the house: Yeas 34. Nays 23.

The case of Respublica v. Passmore led to an impeachment of the judges of the Supreme Court, ou which they were acquitted. See Trial of the Judges, which .ontains an. es-haustive review of the prior authorities ou thf question of contempts.

See Anderson v. Dunn, 6 Wheat. 204; Ex parte Nugent, 1 Am. L. J. 107; Kilbourn v. Thompson, 103 U. S. 168.

See Finlason’s Introduction to Reeves’ Hist, of the English Law.