# Respublica v. Oswald

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1788.
RESPUBLICA verʃus OSWALD.
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The cafe was this : Oʃwald having inferted in his newfpapers feveral anonymous pieces againft the character of Andrew Browne, the matter of a female academy, in the city of Philadelphia, Browne applied to him to give up the authors of thofe pieces ; but being refufed the fatisfaction, he brought an action for the libel againft Oʃwald returnable into the Supreme Court, on the 2d day oƒ July; and therein demanded bail for Ł1000. Previoufly to the return day of the wit, the queftion of bail being brought by citation beforeMr. Juƒtice BRYAN, at his chambers, the Judge, on a full hearing of the caufe of action, in the prefence of both the parties, ordered the Defendant to be difcharged on common bail ; and the Plaintiff appealed from this order to the court. Afterwards, on the 1ʃt oƒ July, Oʃwald publifhed under his own fignature, an addrefs to the public, which contained a narrative of thefe proceedings, and the following paffages, which, I conceive, to have been the material grounds of the prefent motion.
‘‘ When violent attacks are made upon a perfon under pretext of juftice, and legal fteps are taken on the occafion, not perhaps to redrefs the fuppofed injury, but to feed and gratify partifanting and temporifing refentments, it is not unwarrantable in fuch perfon to reprefent the real ftatement of his cafe, and appeal to the world for their fentiments and countenance.
‘‘ Upon thefe confiderations, principally, I am now emboldened to trefpafs on the public patience, and muft folicit the indulgence of my friends and cuftomers, while I prefent to their notice, an account of the fteps lately exercified with me ; from which it will appear that my fituation as a printer, and the rights oƒ the preʃs and of ƒreemen, are fundamentally ftruck as ; and an earneft endeavour is on the carpet to involve me in difficulties to pleafe the malicious difpofitions of old and permanent enemies.’’
‘‘But until the nows had arrived laft Thurʃday, that the ninth ftate had acceded to the new federal government, I was not called upon ; and Mr Page in the afternoon of that day vifited me in due form of law with a writ. Had Mr. Browne purfued me in this line “ without lofts of time,” agreeably to his lawyer's letter, I fhould not have fuppofed it extraordinary−but to arreft me the moment the ƒederal intelligence came to hand, indicated that the commencement of this fuit was not fo much the child of his own fancy, as it has been probably dictated to and urged on him by others, whofe fentiments upon the new conftitution have not in every refpect coincided with mine. In fact, it was my idea, in the firft progrefs of the bufinefs, that Mr. Browne was merely the hand-maid of fome of ​ my enemies among the federalists; and in this cafe I must rank, his great patron Doctor Ruʃh (whose brother is a judge of the Supreme Court) I think Mr. Brown‘s conduct his 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 Pennʃylvania. However, if former prejudices should be found to operate against me on the bench, it is why 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 his channel on certain memorable occasions, and I hope I shall never be a sufferer, let the blast of faction blow with all its furies!”
“ 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 manner he did, was decent and constistent ; and, in a word, whether he is not actuated by some of my inveterate foes and opponents, to lend his name in their 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 Oʃwald was depending in the court ; James Martin proved that the paper containing Oswald‘s address was brought 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 be inferred the necessity of the action, which had been instituted, from this consideration, that it Browne were really the monster which the papers in question described him to be, he ought to be hunted form 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 ​
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public to vindicate his reputation, and to call upon the juftice of the law, to punifh fo grofs a violation of truth and decency. For this purpofe, he continued, a writ had been iffued, and bail was required. The defendant, it not before, was certainly, on the hearing at the Judge's chambers, apprized of the caufe of action: the order of Mr. JuʃticeBRYAN on that occafion, and the appeal to the court, were circumftances perfectly within his knowledge ; and yet, while the whole merits of the caufe were thus in fufpenfe, he thought proper to addrefs the public in language evidently calculated to excite the populat refentment againft Browne ; to create doubts and fufpicions of the integrity of the integrity and impartiality of the Judges, who muft prefide upon the trial ; and to promote an unmerited compaffion in his own favour. He has defcribed himfelf as the object of former perfecutions upon fimilar principles ; he has afferted that, in this inftance, an individual is made the inftrument of a party to deftroy him ; and he artfully calls upon his fellow, citizens to intereft themfelves to preferve the freedom of the prefs, which he confiders as attacked in his perfon. Nay, in order to caft an odium upon the new government of the United States, he infinuates, that his arreft was purpofely protracted ‘till the ratification of nine ftates had given ftability to that fyftem: a falfehood, as unwarrantable as it is infidious ; for, it will be proved that this delay took place at his own requeft, communicated by Col. Proctor.
Col. Proctor, being examined on this point, faid, that he, at firft, defired the action might not be brought, in hopes of accomplifhing a compromife between the parties ; that, afterwards, he requefted Mr.Lewis to defer iffuing the writ ‘till as near the term as it was poffible: but that all this interference was of his own accord, and not at the inftance of the defendant. He acknowledged, however, that he had informed Oʃwald, that the commencement of the action would be poftponed as long as poffible, after having obtained a promife to that effect from Mr. Lewis.
Lewis faid he was very much miftaken, indeed, if Col. Proctor had mentioned the requeft as coming from the defendant ; and Col. Proctor anfwered, ‘‘if ever I told you fo, he certainly fent me ; ‘‘but I cannot remember that ever he afked me to do a thing of the ‘‘kind.’’
Lewisthen added, that the addrefs to the public manifeftly tended to interrupt the courfe of juftice ; it was an attempt to prejudice the minds of the people in a caufe then depending , and, by that means, to defeat the plaintiff's claim to juftice, and to ftigmatize the Judges, whofe duty it was to adminifter the laws. There could be no doubt, therefore, that it amounted to a contempt of the court ; and it only remained, in fupport of his motion, to fhew that an attachment was the legal mode of proceeding againft the offender. For this he cited 4 Black. Com. 280. 2 Atk. 469.
by the court :–Take a rule to fhew caufe on Monday next at 9 o'clock in the morning. ​
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The Defendant appearing on Monday the 14th, agreeably to the rule to fhew caufe, obtained on Saturday, prayed that the rule might be enlarged, as he had not had a reafonable time to prepare for the argument. But Lewis oppofed the enlargement of the rule, obferving that the defendant would be heard in extenuation, or excufe, of the contempt, after the attachment had iffued.
By M‘KEAN, C.J.–I know not of nay inftance where a delay of a term has been allowed in the cafe of an attachment: one reafon for fuch a fummary proceeding is to prevent delay. Let caufe be now fhewn.
Sergeant, in fhewing caufe againft the attachment, contended that the doctrine, in 4 Black. Com. 280. was laid down much too wide; that in 2 Atk 469. the Chancellor exprefsly affigns this reafon, for his determining without a jury, that he was a judge of ƒact; 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.
M'KEAN, C.J.– This was not the reafon that influenced the court in their decifion.
But, whatever the law might be in England, Sergeant in fifted that it could not avail in Pennʃylvania. Even in England indeed, though it is faid to be a contempt to report the decifions of the courts, unlefs under the imprimatur of the judges ; yet, we find Burrow, and all the fubfequent reporters, proceeding without that fanction. But the conftitution of Pennʃylvania authorizds many things to be done which in England are prohibited. Here the prefs is laid open to the infpection of every citizen, who wifhes to examine the proceedings of the government ; of which the judicial authority is certainly to be confidered as a branch. Conʃt. Penn. ʃect. 35.
M'KEAN, C.J.– Could not his be done in England? Certainly it could: for, in fhort, there is nothing in the conftitution of this ftate, refpecting the liberty of the prefs, that has not been authorized by the conftitution of that kingdom for near a century paft.
Sergeant. The 9th ʃection oƒ the Bill oƒ Rights, however, puts this fuppofed offence into fuch a form, as muft entitle the defendant to a trial by jury; and precludes every attempt to compel him to give evidence againft himfelf. It declares, “that, in all profecutions for
“ criminal oƒƒences, a man has a right to be heard by himfelf and
“ his council, to demand the caufe and nature of his accufation, to
“ be confronted with the witneffes, to call for evidence in his favour,
“ and a fpeedy public trial, by an imparital jury of the country, without
“ the unanimous confent of which jury he cannot be found guilty;
“ nor can he be compelled to give evidence againʃt himʃelʃ; not can any
“man be juftly deprived of his liberty except by the laws of the
“land, or the judgment of his peers.–” Now, the prefent proceeding againft the defendant is for a criminal oƒƒence; and, yet, if the attachment iffues, the effential parts of this fection muft be defeated for, in that cafe, the defendant cannot be tried by a jury; and, ​
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according to the practice upon attachments, he will be compelled to anʃwer interrogatories; in doing which, he muft either be guilty of perjury, or give evidence againʃt himʃelʃ. The proceeding by attachment is, indeed, a novelty in thus country, except for the purpofe of enforcing the attendance of witneffes. Thofe contempts which are committed in the face of a court ftand upon a very different ground. Even the court of Admiralty (which is not a court of record) poffeffes a power to punifh them; and the reafon arifes from the neceffity that every jurifdiction fhould be competent to protect itfelf from immediate violence and interruption. But contempts which are alledged to have been committed out of doors, are not within the reafon; they come properly within the clafe of criminal oƒƒences; and, as fuch, by the 9th ʃect. of the bill of rights, they can only be tired by a jury.
M‘KEAN, C.J. Do you then apprehend that the 9th ʃect. of the bill of rights introduced fomething new on the fubject of trials? I have always underftood it to be the law, independent of this fection, that the twelve jurors muft be unanimous in their verdict, and yet this fection makes this exprefs provifion.
Sergeant faid, that he had difcuffed the fubject as well as the little opportunity afforded him would admit. He preffed the court to give further time for the argument, or, at once, to direct a trial. This he contended was, at leaft, difcreationary ; and, confidering the Defendant's proteftation of innocence, his readinefs to give ample fecurity for his future appearance, the magnitude of the queftion as arifing from the conftitution, and its immenfe confequences to the public, he thought a delay, that was cifential to deliberation and juftice, ought not to be refufed.
Heatly and Lewis, in fupport of the motion, contended, that under the circumftances of the cafe, Oʃwald's publication, whether true or falfe, amounted to a contempt of the court, as it refpected a caufe then depending in judgement, and reflected upon one of the Judges in his official capacity ; that the argument of the adverfe counfel went fo far as to affert , that there could be no fuch offence as a contempt even in England, fince the very words inferted in the conftitution of Pennʃylvania, were ufed in the Magna Charta of that kingdom ; that, in truth, neither the bill of rights nor the conftitution extended to the cafe of contempts, for they mean only to fecure to every citizen the right of expreffing his fentiments with a manly freedom, but not to authorize wanton attacks upon private reputation, or to deprive the court of a power effential to its own exiftence, and to the due adminiftration of juftice; that the court were as competent to judge of the fact and the law, upon the infpection of the publication in queftion, as the Chancellor was in the authority cited from Atkins; and that although the profecutor could, perhaps, proceed either by indictment or information, yet that the abufes of the Star Chamber had rendered the procefs by information ​
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odious, and an attachment, which was fanctified by immemorial ufage, was the moft expeditious, and, therefore, the moft proper remedy for the evil complained of.
The chief justice delivered the opinion of the Court of the following effect, Judge BRYAN having fhortly before taken his feat.
M‘KEAN,C.J.–This is a motion for an attachment againft Eleazer Oʃwald, the printer and publifher of the Independent Gazetteer, of the 1ft of July laft, No. 796. As a ground for granting the attachment, it is proved, that an action for a libel had been inftituted in this court, in which Andrew Browne is the plaintiff, and Eleazer Oʃwald the defendant ; that a queftion with refpect to bail in that action, had been agitated before one of the Judges, from whofe order, difcharging the defendant on common bail, the plaintiff had appealed to the court; and that Mr. Oʃwald's addrefs to the public, which is the immediate fubject of complaint, relates to the action thus depending before us.
The counfel in fupport of their motion, have argued, that this addrefs was intended to prejudice the public mind upon the merits of the caufe, by propagating an opinion that Browne was the inftrument of a party to perfecute and deftroy the defendant; that he acted under the particular influence of Dr. Ruʃh, whofe brother is a judge of this court ; and, in fhort, that from the ancient prejudice of all the judges, the defendant did not ftand a chance of a fair trial.
Affertions and imputations of this kind are certainly calculated to defeat and difcredit the adminiftration of juftice. Let us, therefore, enquire, firʃt, whether they ought to be confidered as a contempt of the court ; and, ʃecondly, whether, if fo, the offender is punifhable by attachment.
And here, I muft be allowed to obferve, that libelling is a great crime, whatever fentiments may be entertained by thofe who live by it. With refpect to the heart of the libeller, it is more dark and bafe than that of the affaffin, or than his who commits a midnight arfon. It is true, that I may never difcover the wretch who has burned my houfe, or fet fire to my barn ; but thefe loffes are eafily repaired, and bring with them no portion of ignominy or reproach. But the attacks of the libeller admit not of his confolation: the injuries which are done to character and reputation feldom can be cured, and the moft innocent man may in a moment be deprived of his good name, upon which, perhaps, he depends for all the profperity, and all the happinefs of his life. To what tribunal can he then refort? how fhall he be tried, and by whom fhall be he acquitted ? It is in vain to object, that thofe who know him will difregard the flander, fince the wide circulation of public prints muft render it impracticable to apply the antedote as far as the pofion has been extended. Nor can it be fairly faid, that the fame opportunity is given to vindicate, which has been employed to deʃame him ; for, many will read the charge, who may never fee the anfwer; ​
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and while the object of accufation is publicly pointed at, the malicious and malignant author, refts in the difhonorable fecurity of an anonymous fignature. Where much has been faid, fomething will be believed ; and it is one of the many artifices of the libeller, to give to his charges in afpect of general fupport, by changing and multiplying the ftyle and name of his performances. But fhall fuch things be tranfacted with impunity in a free country, and among an enlightened people? Let every honeft man make this appeal to his heart and underftanding, and the anfwer muft be–no! What then is the meaning of the Bill oƒ rights, and the Conʃtitution of Pennʃylvania, when they declare, “ That the freedom of the prefs fhall not be reftrained,” and “ that the printing preffes fhall be free to every perfon who undertakes to examine the proceedings of the legiflature, or any part of the government?” However, ingenuity may torture the expreffions, there can be little doubt of the juft fenfe of thefe fections: they give to every citizen a right of inveftigating the conduct of thofe who are entrufted with the public bufinefs ; and they effectually preclude any attempt to fetter the prefs by the inftitution of a licenʃer. The fame principles were fettle in England, fo far back as the reign of William the Third, and fince that time, we all know, there has been the freeft animadverfion upon the conduct of the minifters of that nation. But is there any thing in the language of the conftitution (much lefs in its fpirit 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 punifhment? Can it be prefumed that the flanderous words, which, when fpoken to a few individuals, would expofe the fpeaker to punifhment, become facred, by the authority of the conftitution, when delivered to the public through the more permanent and diffufive medium of the prefs? Or, will it be faid, that the conftitutional rights to examine the proceedings of government, extends to warrant an anticipation of the acts of the legiflature, 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 biafs and intimidate with refpect to matters ftill in fufpenfe? The futility of any attempt to eftablifh a conftruction of this fort, muft obvious to every intelligent mind. The true liberty of the prefs is amply fecured by permitting every man to publifh his opinions; but it is due to the peace and dignity of fociety to enquire into the motives of fuch publications, and to diftinguifh between thofe which are meant for ufe and reformation, and with an eye folely to the public good, and thofe which are intended merely to delude and defame. To the latter defcription, it is impoffible that any good government fhould afford protection and impunity.
If, then, the liberty of the prefs is regulated by any juft principle, there can be little doubt, that he, who attempts to raife a prejudice againft his antagonift, in the minds of thofe that muft ultimately ​
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determine the difpute between them ; who, for that purpofe, reprefents himfelf as a perfecuted man, and afferts that his judges are influenced by paffion and prejudice,–willfully feeks to corrupt the fource, and to difhonor the adminiftration of juftice.
Such is evidently the object and tendency of Mr. Oʃwald's addrefs to the public. Nor can that artifice prevail, which infinuates that the decifion of this court will be the effect of perfonal refentment ; for, if it could, every man might evade the punifhment due to his offences, by firft pouring a torrent of abufe upon his judges, and then afferting that they act from paffion, becaufe their treatment has been fuch as would naturally excite refentment in the human difpofition. But it muft be remembered, that judges difcharge their functions under the folemn obligations of an oath : and, if their virtue entitles them to their ftation, they can neither be corrupted by favour to fwerve from, nor influenced by fear to defers, their duty. The judge, indeed, who courts popularity by unworthy means, while he weakens his pretenfions, diminifhes, likewife, the chance of attaining his object ; and he will eventually find that he had facrificed the fubftantial bleffing of a good confcience, in an idle and vifionary purfuit.
Upon the whole, we confider the publication in queftion, as having the tendency which has been afcribed to it, that of prejudicing the public (a part of whom muft hereafter be fummoned as jurors) with refpect to the merits of a caufe depending in this court, and of corrupting the adminiftration of juftice: We are, therefore, unanimoufly of opinion, on the firʃt point, that it amounts to a contempt.
It only remains then to confider, whether the offence is punifhable in the way that the prefent motion has propofed.
It is certain that the proceeding by attachment is an old as the law itfelf, and no act of the legiflature or fection of the conftitution, has interpofed to alter or fufpend it. Befides the fections which have been already read from the conftitution, there is another fection which declares, that “ trials by jury fhall be as heretoƒore; and furely it cannot be contended, that the offence, with which the defendant is now charged, was heretoƒore tried by that tribunal. It a man commits an outrage in the face of the court, what is there to be tried?– what further evidence can be neceffary to convict him of the offence, than the actual view of the Judges? A man has been compelled to enter into fecurity for his good behaviour, for giving the lie in the prefence of the Judges in Weʃtminiʃter-Hall.
On the prefent occafion, is not the proof, from the infpection of the paper, as full and fatisfactory 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 punifhed immediately, how fhall the mifchief be corrected ? Leave it to be cuftomary feems of a trial by jury, and the caufe may be continued being in fufpenfe, while the party perferves in his mifconduct. The ​
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injurious confequences might then be juftly imputed to the court, for refufing to exercife their legal powers in preventing them.
For thefe reafons we have no doubt of the competency of our gujurifdiction; and we think, that juftice and propriety call upon us to proceed by attachment.
BRYAN,Juʃtice, obferved, 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 refpect to the legality of the procefs by attachment, in fuch cafes, under the conftitution of Pennʃylvania.
M‘KEAN, C.J. Will the defendant enter into a recognizance to anfwer interrogatories, or will be anfwer gratis?
Oʃwald, I will not anfwer interrogatories. Le the attachment iffue.
M‘KEAN, C.J. His counfel had better advife him to confider of it.
Sergeant faid that the defendant had not had time, even to perufe what had been fworn againft him ; for only Sunday had intervened fince the obtaining the rule to fhew caufe, 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 confideration as could be allowed ; the term will end to-morrow. Will he anfwer, or not?
Sergeant prayed the court would grant ‘till to-morow morning to form a determination on the fubject, and offered bail for the defendant's appearance at that time.
M‘KEAN, C.J. Be it fo. Let the bail be taken, himfelf in Ł.200, and one furety in the like fum, for his appearance to-morrow morning.
The Defendant appearing on the 15th of July, in difcharge of his recognizance ; the CHIEF JUSTICE again afked, whether he would anfwer interrogatories or not?
Bankʃon, for the defendant, requefted, 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 muft now fay whether he will anfwer them or not; they will be filed according to the ufage of the court, and all juft exceptions to them will be allowed.
Banʃon. He inftructs me to declare that he will not anfwer interrogatories ; and he then began to urge, that there was no contempt committed, but was told by the CHIEF JUSTICE, that, as ​
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that point had been determined by an unanimous opinion of the four judges yefterday, it was not now open for argument.
Lewis faid, that as a mifreprefentation had been induftrioufly fpread abroad refpecting the conduct of the court, he thought it proper, at this time concifely to ftate the real nature of the prefent proceedings. It has been afferted that the court were about to compel Mr. Oʃwald to convict himfelf of the offence with which he is charged: but the fact is this, that it is incumbent upon the perfon who fuggefts the contempt to prove it by difinterefted witneffes ; and then, indeed, the defendant is allowed by his own oath to purge and acquit himfelf, in fpite of all the teftimony which can poffibly be produced againft him. It appears clearly, therefore, that Mr. Oʃwald's being called upon to anfwer interrogatories, is not meant to eftablifh his guilt (for that has been already done) but to enable him to avoid the punifhment which is the confequence of it. The court employ no compulfion in this refpect. He may either anfwer, or not, as he pleafes: it he does anfwer, his single oath, in his own favour, will countervail the oaths of a thoufand witneffes ; and if he does not anfwer, his filence corroborates the evidence which has been offered of the contempt, and the judgment of the court muft neceffarily follow.
M‘KEAN, C.J. Your ftatement is certainly right, and the mifreprefentation, which is attempted, muft either be the effect of wickednefs, or ignorance.
Lewis now prayed, that the rule might be made abfolute ; but remarked, that, according to the authorities , the court might either do that ; or, as the defendant was prefent, they might proceed at once to pafs fentence upon him.
M‘KEAN, C.J. There can be no occafion, when the party is prefent, to make the rule for the attachment abfolute : the court will proceed to give judgment.
BRYAN,Juʃtice. I was not here when the complaint was made to the court, when the evidence in fupport of the motion was produced, or the arguments againft it were delivered: I confider myfelf therefore totally incapacitated for taking any part in this bufinefs.
Lewis. We can immediately furnifh the court with the proofs.
BRYAN, Juʃtice. Can you furnifh me, likewife, with Mr. Sergeant‘s arguments?
Lewis faid, that he had not penetration enough to difcover any argument in what had been faid for the defendant ; and having again read all the evidence which had been produced, he recapitulated what he had before faid in fupport of the motion.
Page, the under-fheriff, was then called upon to prove, that the writ in the action of Browne vs Oʃwald had been in his poffeffion, at leaft twelve days before it was ferved ; and that the delay in ferving it arofe at firft, from the defendant's being at Baltimore; and, afterwards, from his not being at home when the witnefs had repeatedly called upon him. ​
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BRYAN,Juʃtice. I ftill fay, that not having heard what has been offered in extenuation of the offences, I am incompetent to join in any opinion refpecting the punifhment. I cannot furely be fufpected of partiality to libellers: I have had my fhare of their male-violence. But, it is true, I have not fuffered much ; for thefe 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 Oʃwald: Having yefterday confidered the charge againft you, we were unanimoufly of opinion, that it amounted to a contempt of the court. Some doubts were fuggefted, whether, even a contempt of the court. Some doubts were fuggefted, whether, even a contempt of the court, was punifhable by attachment: but, not only my brethren and myfelf, but, likewife all the judges of England, think that without this power no court could poffibly exift;–nay, that no contempt could, indeed, be committed againft us, we fhould be ʃo truly contemptible. The law upon the fubject is of immemorial antiquity ; and there is not any period when it can be faid to have ceafed, or difcontinued. On this point, therefore, we entertain no doubt.
But fome difficulty has arifen with refpect to our fentence ; for, on the one hand, we have been informed of your circumftances, and on the other, we have feen your conduct: your circumftances are fmall, but your offence is great and perfifted in. Since, however, the queftion feems to refolve itfelf into this, whether you fhall bend to the law, or the law fhall bend to you, it is our duty to determine that the former fhall be on the cafe.
Upon the whole, therefore, THE COURT pronounce this fentence:–That you pay a fine of 101. to the Commonwealth ; that you be imprifoned for the fpace of one month, that is, from the 15th day of July to the 15th day of Auguft next ; and, afterwards, till the fine and cofts are paid.– Sheriff he is in your cuftody. ​ ​ ​ ​ ​
brought to prove, that the judges could not be impeached (force furely that is not a trial by jury) as that they have not the power of iffuing attachments. All cafes proper for a trial by jury, the bill of rights clearly meant to refer to that tribunal ; but can any thing more explicitly demonftrate, that the framers of the conftitution were aware of fome cafes, which required another mode of proceeding, than their declaration, that “Trials fhall be by jury as heretoƒore?” – Who will affert that contempts were ever fo tried? who will hazard an opinion, that it is poffible fo to try them?
But does not the conftitution of Pennʃylvania further diftinguifh between the law oƒ the land, and the judgment oƒ our peers: furnifhing a ftriking alternative, by the disjunctive article or? This very fentiment ; expreffed in the fame words, appears in the Magana Charta of England; and yet Blackʃtone unequivocally informs us, that the procefs of attachment was conʃirmed by that celebrated inftrument. In the 14 adop oƒ Maga Charta, it is alfo faid, that “no amercement fhall be affeffed, but “ by lawful men of the vicinage;” and who, that is at all acquainted with the law, or with the reafon of the law, can think it poffible, in that cafe, to purfue the generality of the expreffion?
From thefe analogous principles, therefore, and the conftruction of ages, we may fafely argued on the prefent occafion. But the wild and hypothetical interpretations, which fome men have offered, would inevitably involved us in a labyrinth of error, and eventually endanger that liberty, which they profefs, and every honeft citizen muft with, to preferve.
As to the manner of proceeding upon the attachment, the court on this occafion have followed the precedent in Moʃley's Rep. 250. where it is liberally faid, that the defendant fhall not be permitted to be examined to bring himfelf into contempt ; but upon proof of the contempt, he fhall be allowed to purge himfelf upon his oath.
pon the whofe, Mr. Lewis conclude, that the only grounds of impeachment, were bribery, corruption, grofs partiality, or willful and arbitrary oppreffion ; and that as none of thefe had been proved, Mr. Oʃwald's memorial ought to be difmiffed. He faid, indeed, that it would be preferable to return to the ftate of nature, than to live in a ftate of fociety upon the terms which that memorial prefented ; –terms, which left the weak and the innocent a prey to the powerful and the wicked ; and which gave to falfehood and licentioufnefs, all that was due to freedom and to truth.
When Mr. Lewis's argument was elected, Mr. Findley, a member from Weʃtmoreland, rofe, and delivered his fentiments, with great ability and precifion. He acknowledged, that he had received great information and pleafure, from the learned and eloquent fpeech of the member who proceeded him; but he thought it was unneceffary, upon the prefent occafion, to explore the dark and diftant periods of juridical hiftory. The rights and immunities which formed the great object of the revolution, he contended, were capable of an eafy and unequivocal definition, they were nor of fuch remote antiquity as to be loft even to the feelings of the people ; and the conftitution of the ftate was the only proper criterion, by which
they could be judged and afcertained. He did not, therefore, Intend to purfue Mr. Lewis, in the tract of legal difquifition ; but, appealing confidently to the inftrument itfelf, he deemed it to be his duty to pronounce, that the decifion of the fupreme court was a deviation from the fpirit and the letter of the frame of government. In doing this, he obferved, that he did not mean to affert, that any ground had been fhewn for the impeachment of the judges. But, on the contrary, he agreed with Mr. Lewis, that bribery, corruption, or a willful and arbitrary inftraction of that law, were the only true caufes for inftituting a profecution of that nature; and his candor readily induced him to believe, that as none of thefe had been proved, neither did any them actually exift on this occafion. But, he faid, it was due to the deareft interefts of pofterity, that the legiflature fhould not with that circumfpection, fhould decide with that wifdom, which, leading on the one hand, to an acquittal of the judges, did not tend, on the other hand, to eftablifh a baneful and deftructive precedent. It was in this point of view, that the prefent proceeding prefented itfelf to his mind, as a matter of the greateft magnitude and importance ; and he faid it were better far that Mr. Oʃwalf had fuffered in filience and obfcurity, than that the attention of the legiflature fhould be awakened, only to give additional ftrength and authority to the miftaken judgment of the court.
That it was a miftaken judgment, every man, he alledged, who poffeffed a competent fhare of common fenfe, and underftood the rules of grammar, was able to determine on a bare perufal of the bill of rights and conftitution. With thefe aids, he defied all the fophiftry of the fchools, and the jargon of the law, to pervert or corrupt the explicit language of the text ; and therefore he regretted, that in liftening to the ingenuity of Mr. Lewis's paraphrafe, his admiration was not neceffarily followed by conviction.
He then difcuffed the 9 ʃect. of the bill or rights, which provides, “ that in all
“ profecutions for criminal offences a man hath a right to be heard by himfelf and “ his council, to demand the caufe and nature of his accufation, to be confronted
“ with the witneffes, to call for evidence in his favour, and a fpeedy public trial,
“ by as impartial jury of the country, without the unanimous confent of which
“ jury he cannot be found guilty, nor can he be compelled to give evidence againft
“himfelf, nor can any man be juftly deprived of his liberty except by the laws of his liberty except by the laws of
“ the land or the judgment of his peers.” He faid, that in thefe expreffions, there was nothing ambiguous or uncertain ; they contained a recapitulation of the moft valuable privileges, in the moft pofitive language ; and they did not require to be illuftrated, or explained, by the Roman inftitutions, or the Britiʃh practice. Hither, be obferved, every man could fafely refort, in order to be taught the nature and extent of his rights and obligations and it would be fatal indeed to the caufe of liberty, if it was once eftablifhed, and the technical learning of a lawyer is neceffary to comprehend the principles laid down in this great political compact between the people and their rulets. Even with refpect to that claufe on which the proceedings of the Judges are particularly vindicated, he did not perceive a reafonable ground for the diftinction that was attempted, that the law oƒ the land was not, in fact, contra-diftinguifhed from the judgment oƒ his peers, but merely a diverfty in the mode of expreffing the fame thing. He admitted, however, that cafes did exift in which it was neceffary, for the fake of juftice, to empower the judges to exercife a fummary authority. For outrages committee in the face of the court,
for the misconduct of (illegible text) and for a disobedience or resiftance of its process, there seemed, he said, (illegible text)propriety in establifhing an immediate remedy. But, this did not extend, in his opinion to the cafe of constructive contempts ; to criminal offences perpetration of the view of the court; nor to be such acts, as in their nature, did not (illegible text) 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 opinion offered by Mr. Lewis, that as attachments had issued in Pennʃylvania before the revolution ; and as the 24 sect of the constitution, declares, that the courts shall had 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 be admit the inference which had been drawn from the next section, that says, “ trials shall be by jury as heretoƒore;” for, he said, it appeared by its content 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 exprtiated 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 proceeding; and having urged the danger of permitting the judges by implication to punish for offences against themselves (observing, that if it was a contenance to writ it also a contempt against themselves a cause depending in the (illegible text)) he concluded with intimating, that he should take an opportunity of (illegible text) resolution to the house, which might serve to averse the pernacious consequences of allowing the case of Mr.Oswald to grow into precedent.
Mr. Fitzsomons, a member from the city of Philadelphia, now moved the following resolution.
“Refolved. That (illegible text) 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 this supreme court against the said Eleazer Oswald are of opinion, that the charges are unsupported by the testimony (illegible text), and, consequently that there is no just cause for impeaching the said justices.”
The posession contained in this resolution give rise to a short but animated conversation. On the one hand, it was said that is (illegible text)that there was no ground of impeachment, it was no intended to concerned , that the facts represented that, if there had been proved and on the other hand, it was answered,
“ was immure in prison, without even the shadow of a trial, for an imaginary of-
"fence," it would have been the indespenful 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 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. Clymor, in order to introduce the
refolution originally propofed by Mr. Fitzʃoms in the committee. Mr. Findley then claimed the attention of the members, and after a judicious introduction, prefented the following refolutions to the chair, to fupercede Mr. Clymor's motion.
“Refolved, That the proceedings of the fupreme court againft Mr. Eleazer Oswald, in punifhing him by fine and imprifonment, at their difcretion, for a confructive or implied contempt, not committed in the prefence of the court, nor againft any officer, or order thereof, but for writing and publifhing improperly, or indecently, refpecting a caufe depending before the fupreme court, and refpecting fome of the judges of faid court, was an unconftitutional exercife of judicial power, and fets an alarming precedent, of the moft dangerous confequence, to the citizens of this commonwealth.”
“ Refolved, That is be fpecially recommended to the enfuing General Affembly, to define the nature and extent of contempts, and direct their punifhment.”
An interefting debate arofe upon thefe refolutions, in the courfe of which, much that had been faid in the committee was repeated, and many new ideas were fuggefted, upon the general queftion of the jurifdiction of the court in cafes of attachment. With refpect of Mr. Findley's propofitions, that gentleman ably fupported them upon the fpirit of the conftitution, and the expediency of the thing itfelf. But it feemed to be fatisfactorily anfwered by Mr. Lewis, 1ft. That the legiflative power is confined to making the law, and cannot interfere in the interpretation; which is the natural and exclufive province of the judicial branch of the government ; and 2dly, That the recommendation to the fucceeding affembly would be nugatory ; for the courts of juftice derive their powers from the conftitution, a fource paramount to the legiflature ; and, confequently, what is given to them by the former, cannot be taken from them by the latter.
Mr. Findley's motions were loft by a confiderable majoirty ; and Mr. Clymor's revived refolution, adopted by the houfe : Yeas 34. Naya 23.