Commonwealth v. Duane

Tilghman C. J.

This is an indictment for a libel against the late governor MKeani in his official capacity. The defendant was convicted, and moved in arrest of judgment. In this situation the act concerning libels was passed, the object of which is to take away the prosecution by indictment, in cases of this nature. The question now to be decided, is, whether the court can proceed to give judgment on the indictment. The counsel for the commonwealth have raised an objection to this law, on the ground of its being a violation of the ninth article of the constitution. Although their argument was rather faintly urged, it is proper to take notice of it. By the first section of the ninth article it is declared, that all men have a right of acquiring, possessing, and protecting property and reputation; and it is supposed that the protection of reputation will be less perfect, when the punishment of libels by indictment is taken away. It may be so; and I fear it will be so. But it is sufficient to remark, that the civil remedy by action is still left unimpaired, and that the proceeding by indictment is not the right of the injured party, but of the public* The seventh section cf the same article provides, that in prosecutions for the publication of papers investigating the official conduct of officers or men in a public capacity, the truth may be given in evidence. This, say the counsel for the commonwealth, shews, that it was understood that there should be prosecutions by indictment. I think it only shews, that at the time of the framing of the constitution, such prosecutions were lawful, and there was no reason to suppose that they might not continue to be lawful; but there is no ground for drawing an inference, that the constitution intended to provide for the continuance of such prosecutions for ever. It was intended to protect the defendant by permitting him, when prosecuted, to give the truth in evidence; but there is no intimation that it should be unlawful for the legislature to take away the prosecution altogether.

I will now consider the act of assembly. The first section enacts, that “ from and after the passing of the act, no person “ shall be subject to prosecution by indictment in any of the “ courts of this commonwealth, for the publication of papers “ investigating the official conduct of officers, or men in a pub- “ lie capacity.” The prosecution by indictment is the only criminal prosecution of such offences known to our law; because the proceeding by information is forbidden by our constitution. When therefore it is said, that a man shall not be subject to prosecution by indictment, it is saying that he shall not be subject to any criminal prosecution. Now what is a prosecution? It is the whole proceeding, including the judgment. In the case before us, the judgment, the most material part of the prosecution, remains to be given. Can the court pronounce judgment, and inflict punishment, when the law declares that the defendant shall not be subject to prosecution? I do not see how they can.

But it is contended by the counsel for the prosecution, that although it might be improper to pronounce judgment, if the matter rested on the first section of the law, yet taking into consideration the second section, it will appear on the whole, that there was no intent to give relief in case of prosecutions commenced before the passing of the law. It is necessary therefore to examine the second section; for it is true,that in construing ecay part of a law, the whole must be considered; the different parts reflect light on each other; and if possible, such a construction is to be made, as will avoid any contradiction or inconsistency. That part of the second section which is material 1° the present purpose, declares, that “ it any prosecution by “ indictment be instituted against any person, contrary to the u j-rLle Jntent and meaning of this act, the defendant in such in- “ dictment may plead this act in bar, or give the same in evi- “ dence on the plea of not guilty.” It appears then, that the first section declares the law, and the second section provides the mode by which in certain cases the defendant shall avail himself of that law. The mode of thus availing himself, is confined to indictments which have not been tried; and I incline to think, although I give no decided opinion, that it is confined to prosecutions commenced after the passing of the law. For, without entering into a critical examination of the meaning of the word institute, in common parlance, when applied to legal proceedings, it signifies the commencement of the proceeding. When we talle of instituting an action, we understand bringing an action. Supposing then that this is the meaning of the word, which is giving the greatest possible weight to the argument for the commonwealth, how will the matter stand? It will hárdly be contended that the affirmative words in the second section, confine the defendant to the mode of defence pointed out in that section, if the first section entitles him to other modes of defence. For instance, if a prosecution is commenced after the passing of the law, for a matter which on the face of the indictment is a libel against a man in his official capacity, the defendant may surely take advantage of this act, by motion in arrest of judgment, although he neither pleaded it in bar, nor gave it in evidence on the plea of not guilty. I conclude, therefore, that there is no contradiction or inconsistency in giving to the second section the construction contended for by the commonwealth; and at the same time allowing the first section to operate in its full extent. If the legislature intended that the proceedings should be continued on indictments already commenced, the)*- ought to have said so expressly. This lav/ is not drawn as clearly as it might have been. If the same expressions had been used, as applied to a civil action, I should have thought myself warranted in giving it a different construction, because then it would have operated in a retrospective manner, so as to- take away from a citizen a vested right. But there is a wide difference between a civil and a criminal action. In the latter, the commonwealth only relinquishes its own right of inflicting punishment. In nothing is the common law, which we have inherited from our ancestors, more conspicuous, than in its mild and merciful intendments towards those who are the objects of punishment. We apply the principles of this law to the construction of statutes. Supposing, therefore, as is certainly the case, that this act is not without obscurity, I feel myself on the safest and strongest ground, in adopting that construction which takes away the punishment.

-•My opinion is that the judgment be arrested.

Ye ates J.

It appears to me that the meaning of the words in the late act concerning libels, “ that from and after the “ passing of this act no person shall be subject to prosecution by “ indictment,” &c. refers to indictments found after the law was enacted. The expressions of the legislature are in the future tense, and in my idea not retrospective. This construction seems strengthened by the second section, “ that if any prose- “ cution by indictment, or any action be instituted against any “ person or persons contrary to. the true intent and meaning of “ this act, the defendant or defendants in such action or indict- “ ment may plead this act in bar, or give the same in evidence “ on the plea of not guilty.” The provisions here relate to indictments thereafter originated or set on foot, and where there has been no plea or trial; and cannot be extended to indictments already found, particularly where juries have passed upon them. I have thrown my sentiments hastily together, within these few minutes past; and deem it my duty to mention them, ass the result of my judgment upon the argument.

Brackenridge J. I am of opinion with the chief justice, that the act of assembly has put an end to the prosecution.

Judgment arrested.