RESPUBLICA
versus
OSWALD.
Supreme Court of United States.
*324 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 Andrew 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. Rush, 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 inocent 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 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 defame him; for, many will read the charge, who may never see the answer; *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,"[*] 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 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 setter 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 or 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 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 *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, 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 *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 gu-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.
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 shew cause, and that was an improper day for applying to the records of the court.
M`KEAN, C.J. 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.
M`KEAN, C.J. 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 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 *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. 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 immediately 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.
*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 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 rol. 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.[*]
NOTES
[*] Declar. of Rights, s. 12.
[] Constit. of Penn. s. 35.
[*] 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 defect.
[*] 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.
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, to 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, with 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 shewing 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.
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, 2dly, 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 shewn 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.
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 vel. 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 prefs. 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 encroachments of men in power.
It has been asserted, however, that Mr. Oswald's address was of a harmless texture; that is was no abute 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 insulious 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, 2dly, Abusing parties who are concerned in causes there; and 3dly, 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 issues 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.
With respect to the address itself Mr. Lewis annalysed its offensive parts, in order to shew 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, 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 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, 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 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, 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 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 shewed, 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 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 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 "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 prosess, and every honest citizen must will 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 cloquent 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 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 disquisition; 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 shewn 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 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 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 is 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 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, 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. Fitzsimens, 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. 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 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 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 2dly, 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