THE COMMONWEALTH against OSWALD. In the SUPREME COURT, July Term, 1788.
I. An attachment lies for endeavouring to prejudice the public mind in writings respecting a cause depending in the court.
II. When the defendant is present on a rule to shew cause why an attachment should not issue, the court will not make the rule absolute, but proceed to give judgment for the offence.
12th July.UPON the opening of the court this morning, Lewis moved for a rule to shew cause why an attachment should not issue against Eleazer Oswald, the printer and publisher of the Independent Gazetieer. 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 2d. day of July; and therein demanded bail for £1000. Previously to the return day of the [...], 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 appeared 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.
"When violent attacks are made upon a person under pretext of justice, and legal steps are taken on the occasion, 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 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 profession, 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, [Page 4] 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 caninvent.
"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 mariner 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 shew 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 interred 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 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 pupose, 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 plainiff'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 shew that an attachment was the [Page 5] 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 shew cause on Monday next, at 9 o'clock in the morning.
THE SAME CAUSE.
14th July.THE defendant, appearing agreeably to the rule to shew cause, &c. 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.
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 shewn.
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.
This was not the reason that influenced tne 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.
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 been authorized by the constitution of that kingdom for near a century past.
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 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.’ —Now, the present proceeding against the defendant it 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 to the practice upon attachments, he will be compelled to answer interrogatories; in doing which, he must either he 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.
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 [Page 6] of the case, Oswald's publication, whether true or false, amounted to a contempt of the court, as it respected a cause theu de, ending to 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 meant 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 chanceilor 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 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 [...]. Judge BRYAN having shortly before taken his seat.
—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 Andrew Browne is the plainest, 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 prejudice and destroy the defendant; that he acted under the particular influence of Dr. Rusa, 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 reparted, 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 be 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 antedote 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; 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 tree 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," * 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 †." However ingenuity may torture the expressions, there can be little doubt of the [...] sense of these sections: they give to every citizen a right of investigating the conduct of those [...] [Page 7] 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 diffusive 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 biass and intimidate with respect to matters still in suspense? The futility of any attempt to establish a construction of this sort, 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 desame. 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 just 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 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,—wilfully 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 artifice 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 virtue 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, is 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 injurious consequences might then be justly imputed to the court, for refusing to exercise their legal power in preventing them.
[Page 8]For these reasons we have no doubt of the competency of our jurisdiction; 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.
Will the defendant enter into a recognizance to answer interrogatories, or will he answer gratis?
I will not answer interrogatories. Let the attachment issue *.
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 shew cause, and that was an improper day for applying to the records of the court.
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 to-morrow. Will he answer, or not?
Sergeant prayed the court would grant 'till to-morrow morning to form a determination on the subject, and offered bail for the defendant's appearance at that time.
Be it so. Let the bail be taken, himself in £. 200, and one surety in the like sum, for his appearance to-morrow morning.
THE SAME CAUSE.
15th July.THE defendant appearing in discharge of the recognizance entered into yesterday, the CHIEF JUSTICE again asked, whether he would answer interrogatories or not?
for the defendant, requested that the interrogatories might be reduced to writing before he was called upon to determine.
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.
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 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.
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.
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.
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 [Page 9] incapacitated for taking any part in this business.
We can immediately furnish the court with the proofs.
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 serving 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
I still say, that not having heard what has been offered in extenuation of the offence, I am incompetent to join in any opinion 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:
— 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 10l. 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.