concurring:
At the return of the rule to show cause, the defendants did not appear in person, but caused their separate returns under oath to be filed by attorneys, who declined to appear and argue the questions raised by the returns. In this aspect of the case, it is unnecessary to consider how far the matters set forth go in excuse of the publication; because, if the defendants relied upon an excuse only they should have appeared in their own proper person. Not having done so, no mere excuse can be regarded as a cause for discharging the rule, but only as going to the question of punishment, in the event that the court finds the absence of a legal justification in the return. The People v. Freer, 1 Caines R. 519.
The only legal justification sought to be established by the returns, is the disavowal of a bad intent and matter of law arising upon the face of the whole proceedings. In this behalf, their position is that they have the legal right to do just what they have done, and this court has no power or authority, by this proceeding, to call their acts into question, inquire into their motives or the pernicious tendency of the publication. The editor of the paper states his position thus: “ This respondent is advised and believes that the publication of said article had no tendency to impede, embarrass or obstruct the administration of justice in said court;, that it was not so designed' and had not that tendency; and this respondent does and will insist that he had, and still has, the right, as managing editor of said paper, to examine the proceedings of any and every department .of the government of this State, and that he is not responsible for the truth of such publication, nor for the motives with Avhich they were or are made, by the summary process of attachment for contempt, save when such publications impede, embarrass or obstruct the administration of justice.”
This position has been deliberately taken, and it is all there is of the case. If it has been well taken, the rule should be discharged; if ill, the attachment should issue. For the purpose of analyzing the alleged justification, we will treat it as in the nature of a plea in bar. Then what are its elements? By the return, actual participation in the act of publication by the editor, and constructive by the proprietor, are admitted. Then the only fact presented is the one of intentj by a disavowal of any bad intent; for the question, whether or not the publication had a tendency or was calculated to impede, embarrass or obstruct the administration of justice, is clearly a question of law, to be determined by the court upon inspection of the article. So also is that of the power of the court.
The return impliedly admits, that if the publication had the tendency to either, impede, embarrass or obstruct the administration of justice, the power of the court to punish the defendants for a contempt exists; but it claims virtúally that the exercise of the power is precluded by the disavowal of any bad intent, and defendants’ denial that the article had any such pernicious tendency. If the publication had the pernicious tendency which is claimed for it on behalf of the people, it is believed that no respectable authority can be found to the effect that a disavowal of a bad intent amounts to a justification. It would bet contrary to the rule of law that every man must be presumed to intend the natural and necessary consequences of his own deliberate acts. In the case of The People v. Freer, above cited, which was a proceeding like this, the point was expressly adjudicated by the Supreme Court of Hew York, Kent, J. delivering the opinion of the court. “We can not but perceive,” said that great judge, “that-the disavowal of any bad intent will not do away with the pernicious tendency or effect of publications reflecting on judicial proceedings which are before us.”
I have said that the construction and tendency of the article in question were a matter of law for the court. Of the truth of this proposition there can be no doubt. ' But the court is bound to give it a fair and reasonable construction, according to the natural and common import of the language employed; and when so construed, the question whether its publication constituted a contempt which the court is authorized to punish by attachment, must be determined by the character of the publication and the circumstances under which it was made.-
As to the circumstances, it will suffice to say, that at the time of the publication, the case of Rafferty, referred to in the article, was pending before us for decision. This fact was well known to the defendants, and especially to the editor, as appears by both his return and the article itself. It is of that cause and its pendency here, that the article speaks; and the ordinary and natural meaning of the language used conveys, in the most direct and unequivocal manner, the charge of corruption,- on the part of this court, in respect to that very case; and was calculated and intended to portray the character and position of the court as being so degraded as to be under the control of the most unprincipled and despicable class of society. The first paragraph, relating to the delay of the court in deciding the case, evidently refers to its action at the time of allowing the supersedeas, in requiring Rafferty’s counsel to submit the cause, in order that it might be passed upon at this term. Then it proceeds: “ The riff-raff who contributed fourteen hundred dollars to demonstrate that ‘ hanging is played out,’ may now congratulate themselves on the success of their little game. Their money is operating splendidly. We have no hesitancy in prophesying clear through to the end just what will be done with Rafferty. He will be granted a new trial. He will be tried-somewhere, within a year or two.. He will be sentenced to imprisonment for life. Eventually he will be pardoned out, and this in spite of all our public meetings, resolutions, committees, virtuous indignation and what not. And why ? Because the sum of fourteen hundred dollars is enough nowadays to purchase immunity from the consequences of any crime.” Then, that there might be no misunderstanding as to what is meant by this tissue of scandal, there come these significant words: “ The courts are now completely in the control of corrupt and mercenary shysters—the jackals of the legal profession—who feast and fatten on human blood spilled by the hands of other men.” This expression would be understood, and was intended, to refer to this court, which was the only one previously alluded to; and what more degrading and scandalizing charge could be couched in language ? It is well understood by the public that this court is the only one in the State which has the power to license and strike the names of attorneys from the rolls. If the court is under the complete control of the vile class designated, the degradation must be voluntary on the part of the court, yet it is here proclaimed to the public that a court which possesses the power to rid itself of the shysters and jackals of the legal profession, is nevertheless completely under their control. After this charge is followed what may well be called a threat: “ All this must be remedied; there can be found a remedy, and it must be found.”
The tendency of the article is to degrade and scandalize the court, to overawe its deliberations and extort a decision against the accused. That such was the intent and purpose, scarcely admits of a doubt. In this attempt to extort a decision of affirmance rests the great criminality of the article, rather than the reflections upon the court. Publications scandalizing the court, and intended to unduly influence and overawe its deliberations in causes pending, are contempts which this court is authorized to punish by attachment, and it is essential to the dignity of character, the utility and independence of the court, that it should possess,-and'exercise such authority. Here the corruption is imputed, and the effect predicted in such a manner as to prepare the public mind to believe the charge, if the decision turns out ,to be as predicted. Any well constituted judge would receive the threats of a mob gathered about the court house for the purpose .of overawing his deliberations upon a particular case, with far greater coolness and equanimity than such a threatened blot upon His character. Whatever may be the character of Rafferty, however humble and lowly in life, or however bad a man he may be, he is nevertheless clothed with the samé constitutional rights which belong tó the highest and best citizens in the state. He can be deprived "of his life only by due process of law. He has the same right to invoke the safeguards devised for the protection of innoeence and to secure a fair and impartial trial, as though he were in fact innocent, and as any other citizen might do ; because the law is, and in the nature of things must be, general in its application. The establishment of these rights by our beneficent constitution has cost too much suffering and blood, though in the distant past, to be readily relinquished by an intelligent people; and it-seems an extraordinary spectacle to witness such an attack upon the character of this court, acting under the sanction of an oath of office, for exhibiting in its judicial -action a proper respect for principles heretofore esteemed so sacred and so indispensable to the proper protection to life and liberty, and I can not refrain from remarking in this connection, that if this publication was made for the purpose of destroying those safeguards, as a necessity for the suppression of the crime of murder in Chicago, as is avowed in the return, such a purpose ought to enhance instead of mitigating the criminality of the publication. It would take a 'long time, in my judgment, to inspire those criminally disposed, those born and reared in the haunts of vice, neglected by parents and society, without moral development, with a ¿feeling of just respect for the sanctity of human life, by giving them examples, frequent examples, of the summary and reckless violation of that sanctity, by the public authorities, under forms of law divested of all the consecrated principles for the protection of innocence, by trials which could not be otherwise than grim mockeries of justice, controlled, swayed, and their results dictated by the passion and popular clamor of the hour. While I may truly say, that I have no feelings of resentment for the unwarranted attack upon the court, of which I am a member, yet for this assault upon institutions which I have been educated to revere, I have feelings of deprecation and sorrow; and it is to be believed that a little' careful observation and sober reflection will lead both the people and the press of Chicago to the conclusion that the fault lies not in the law nor yet in the courts. It seldom happens that a good and careful lawyer, who has a good cause and wins it, has any trouble with errors in his record.
It is an unpleasant duty, but I feel constrained by the deepest convictions of conscience, by a lively regard for the credit of the State and her institutions, for the administration of justice, to concur in the opinion, that, the rule should be made absolute and that an attachment should issue.