Imatges de pàgina

lard's case was his text, his publication was intended to have a bearing on claims of a similar character, and depending on the same principles, which were still before the court, and upon a multitude of cases, which, in presumption of law, were to be brought before it. It was, then, by his own admission, a publication with relation, not to one cause, but to many, which were still depending before the court and was intended to produce an effect on the public mind, with relation to the merits of those cases, and, as he himself states, did produce such effect. It meets, therefore, the third description of contempt, given by Lord Hardwicke, as well as the first, inasmuch as it was a publication tending and intended to prejudice mankind with regard to those causes, before they had been heard by the court.

It has been intimated that this publication was made in the recess of the court, and that, to constitute it a contempt, it is necessary that it should have appeared in term time. There is nothing in the authorities which countenances this suggestion; and it seems to proceed again, from losing sight of the distinction between the several classes of contempts. With regard to a contempt in open court, it is necessary that the court should be in session: but, with regard to a publication, tending to bring the tribunal into contempt, or tending to bias and prejudice the public mind with regard to causes depending before that tribunal, there is no such necessity: for, whether in session or not, the tribunal is still, in legal contemplation, in constant existence, and the causes which have been there instituted, are as much pending causes in the recess as in the session of the court; and the mischief is precisely of the same character, in both instances, whether the court be in session or not. It does not appear, in the cases cited, that the court was in session when the publication took place; and had this been an essential ingredient in the composition of the offence, it would certainly have been noticed. But no definition and no decided case adverts to it as entering at all into the offence of contempt by publication; and, in reason, it is precisely the same whether the offence be committed in the recess or in the session of the court; because the offence consists in producing, or seek. ing to produce, the effect of drawing contempt on the tribunal, or ezciting prejudice for or against one side of a pending cause. And it is manifest that the effect is just as certainly produced, and as pernicious, and the mischief just the same, whether done during the session of the court, or after its adjournment; the tribunal being still in existence, and the eause yet pending; and the maxim is, that, where the reason is the same, the law is the same. To support the objection, some authority must be produced, directed to these two kinds of contempt, and this, it is confidently believed, cannot be done: the authorities, on the contrary, are the other way,

Was it any excuse for the complainant, that his publication spoke of Judge Peck as Judge Peck, and not as the court? The very same thing occurred, and the same excuse was made, in Almon's case: for there, too, the publication spoke of the Lord Chief Justice, by his title of Lord Chief Justice; and the defamation was with regard to an act done by him singly, and out of court. Yet, says Lord Chief Justice Wilmot, this is no excuse; because the act was done by him in his judicial character; and the contempt, therefore, was offered to him in his judicial character, and as a member of the court.

In the case before the House, Judge Peck, alone, composed the Court of Missouri; and the act, with regard to which he is defamed, was an act done hy him in his character of a court.

It is said, that, if this publication was a libel, the author was subject to punishment by an indictment; and it seems to be supposed, that, because he was so piinishable, he was not subject to punishment by an attachment for a contempt of the court. But the same objection was urged in the case of Almon, in the same form, and was supported by the same popular topics— that the party had a right to a trial by a jury of his peers; and that, in the form of the proceeding adopted by the court, they were making themselves at once parties and judges in their own causes. But the objection was open to these obvious answers, and received them, to wit, that the offence was double. First, it was a libel, (and was, moreover, scandalum mugnatum,) because it tended to a breach of the peace, and, in this form, was punishable by indictment. Secondly, That it was a contempt of the court, in which aspect it was not punishable by an indictment, and could be punished only by the summary process of an attachment for contempt. That the latter power belonged to all courts from time immemorial, and was indispensable to their existence as courts. It is, indeed, a strange defence for a party to make against a punishment for one offence, to allege, that, by the same act, he has also made himself liable to punishment for another. According to this mode of reasoning, the more a party multiplies and complicates his offences, the more he increases the probability of his escape from punishment for either.

In the case Yates against Lansing, (9 Johnston's Rep. 416,) Platt, Senator, says, "contempt is an offence against the court as an organ of public justice, and the court can rightfully punish it on summary conviction, whether the same act be punishable as a crime or misdemeanor, on indictment or not. To challenge a senator or a judge, may, under circumstances, be a contempt, but is certainly indictable: a conviction on indictment will not purge the contempt; nor will a conviction for a contempt be a bar to an indictment. The offence may be double, and so are the remedy and the punishment. For instance, assaults in the presence of the court, rescues, extortion, libels upon the court or its suitors, relating to suits pending, forging a writ, &c. are indictable offences, and certainly they are also contempts.” Such, also, is the principle maintained by the Court of Tennessee, in the case of P. H. Darby.

The passage in the latter opinion-is so peculiarly apposite to the case under consideration, that Judge Peck begs leave to make it more accessible to the House, by a quotation: "The power to punish for a contempt is no part of the criminal law; if it were, courts which had no criminal jurisdiction could not punish for contempt, as the Houses of the Legislature, the Court of Chancery, and this court. Where the contempt amounts to an indictable offence, as well as contempt of the court, punishment inflicted by the latter is no bar to a prosecution for the former, and vice versa. And neither the contemned court, nor the court of criminal jurisdiction, is obliged to suspend proceedings till the other has acted—9 Johns. 413, 417. Cowp. 829. This power itself, from its very nature, must, necessarily, be independent of all other 'tribunals: for, if it depends upon another, whether a punishment can be inflicted or not, that very dependence defeats and overturns it. The insulted judge must go to law before some other tribunal, with every one whom his decision offends. He must quit his business in court, and leave the bench, and travel to inferior courts, and give his attendance upon them, neglecting, in the mean time, the official duties which belong to his office.

The inferior judge may not be disposed to discourage the contempt; the proceedings may not be regular, or legal; they may be, in the end, set aside and quashed, by arresting or reversing the judgment, and must be commenced again, and the same difficulties again encountered. No one would be afraid to offend; the delay of punishment, and the numerous chances of escaping it, would disarm the expected punishment of all its terrors; nor would the insulted court ever think of the attempt to cause the infliction of punishment under so many discouragements. No sooner does he get through one set of controversies than some other dissatisfied suitor assails him with equal outrage, and involves him in others.

He must go again, and forever, through the same routine of vexation and trouble. With such embarrassments to contend with, will he remain upon the bench? He must either quit it, or submit to be directed by men who resort to such means for the attainment of their ends, and become an instrument in their hands for the sake of rest, abandoning his duties, and resigning the rights of the people, without power to repress the efforts of designing men that shall be directed against him, because of an unyielding temper. How will the Judge be able to uphold his integrity, when interests of the highest magnitude are to be settled by his decisions?

When it shall be observed that the most submissive pass unmolested, will not submission at least plead in recommendation of itself? Will it not set before him the perpetual conflicts which he has to maintain in viudication of opinions in which he has no individual interests, and the unceasing calumnies to which he is exposed for the protection of others, who hardly know the cause why he is so worried? If, in so many difficulties, the judge is not furnished with the means of immediate defence and repression, his authority must fall, and the rights of the people with it. For what rights have they but those which the law gives, by means of the courts it has instituted? and if these cannot support them, “the rights themselves are nominal.”

It is said, that, in punishing this publication as a contempt, “the Judge has invaded the liberty of the press.” What is the “liberty of the press and in what does it consist? Does it consist in a right to vilify the tribunals of the country, and to bring them into contempt, by gross and wanton misrepresentations of their proceedings? Does it consist in a right to obstruct and corrupt the streams of justice, by poisoning the public mind with regard to causes in these tribunals, before they are heard? Is this a correct idea of “the liberty of the press?" If so, the defamer has a charter as frce as the winds, provided he resort to the press for the propagation of his slander; and, under the prostituted sanction of the liberty of the press,” hoary age and virgin innocence lie at his mercy. This is not the idea of “the liberty of the press” which prevails in courts of justice, or which exists in any sober and well regulated mind. The “liberty of the press" is among the greatest of blessings, civil and political, so long as it is directed to its proper object--that of disseminating correct and useful information among the people. But this greatest of blessings may become the greatest of curses, if it shall be permitted to burst its proper barriers. The river Mississippi is a blessing to the country through which it flows, so long as it keeps within its banks; but it becomes a scourge and a destroyer when it breaks them.

What earthly blessing is so great as civil liberty? What curse so terrë ble as licentiousness and anarchy?

'It is to check the last that laws are made; and it would be just as rational to complain of all laws as a restraint on Natural Liberty, as to complain of that portion of them which restrains the licentiousness of the press.

The liberty of the press has always been the favorite watchword of those who live by its licentiousness. It has been from time immemorial, is still, and ever will be, the perpetual decantatum on the lips of all libellers. Oswald attempted to screen himself under its ægis in the case which has been cited from the first Dallas. But the attempt was in vain. The court taught him the difference between the liberty of the press and the licentiousness of the press; and, in his further attempt to raise an impeachment against the judges for that sentence, the House of Delegates confirmed the wholesome lesson.

[Judge Peck prays a reference to the note in the case of Oswald.)

If, indeed, the liberty of the press was a panoply broad enough to cover every thing that is done in its name, nothing in the form of a publication could ever have been punished as a contempt of court: for the House will observe, that, in all the reported cases in which these publishers have been called to answer for a contempt, whenever the defence has appeared in the report, it is the liberty of the press which is the perpetual theme. It is uniformly claimed to be the right of the citizen to question the acts of all public men, and the changes are continually rung on that great palladium of human rights and human happiness --the liberty of the press; as if human rights and human happiness could be promoted by the prostration and destruction of courts of justice, or by poisoning their streams in the fountain head.

It is unnecessary to pursue this subject. The Judge has never pretended that his opinions are not to be questioned: he insists, however, that they are to be questioned only according to the laws of the land. One mode of questioning them under these laws, is by appeal to a Superior Court; and, after the subject-mutter shall have been finally decided, another mode of questioning them is by respectful discussion, either in the public prints or elsewhere. In the present case, the first mode of questioning the opinion, that by appeal, had been resorted to: for the second mode, that of respectful discussion, the case was not ready, because the subject-matter had not been disposed of finally; and, even if it had been, it has been shown that there was no semblance of investigation in this article-no pretence of discussion of any kind. It was sheer misrepresentation; and it does not follow, that, because an opinion of a court may be respectfully discussed, it may, therefore, be misrepresented: much less that it may be so misrepresented as not only to impair the confidence of the public in the dignity, intelligence, and purity, of the tribunal, but to render both the Judge and the court objects of universal contempt, scorn, and ridicule; and, least of all, that, in doing this, a strong prejudice shall also be infused into the public mind with regard to causes still pending in the Court.

The Judge has shown, that, in proceeding against this contempt by an attachment, he was justified by the example not only of the courts of England, from time immemorial, but the example also of other courts in the different States of the Union, where the liberty of the press and the trial by jury are as highly prized and as strongly guarantied by their Constitutions as they are in the State of Missouri; and he will now add, that, even in Missouri, the courts had led the way by the exercise of the same power in cases of contempt by publication.

One of these cases occurred a very short time before the State Government went into operation. The proceeding was against the editor of the “Missouri Gazette," for a publication, giving an account of an assault and battery which had been committed on him by another editor, after the latter had been recognised to answer for the offence.

The rule for the attachment was made absolute, and although there were mitigating circumstances in this case, the party was both fined and imprisoned.

The other case occurred in the Supreme Court of the State, only two or three years before that under consideration, and it is the case alluded to in the evidence before the committee. In the suit of Bellisime vs. M'Coy, Mr. Lawless had prosecuted a writ of error in that court, and the court had decided against his client. A petition for a re-hearing was filed, and a re-hearing was granted. After the re-hearing had been granted, a publication appeared containing strictures on the opinion which had been pronounced by the court: the court, considering it to be a misrepresentation of their opinion, made a rule on the printer to show cause why he should not be attached for a contempt. Mr. Lawless showed cause against the rule, which being deemed insufficient by the court, it was made absolute. The name of the author was then given up, and that author was the same Luke E. Lawless.

A rule was then made on him. Mr. Lawless appeared, and attempted to show cause; but the court held it insufficient, made the rule absolute, and ordered interrogatories to be filed. They were filed, and Mr. Lawless answered and purged himself of the contempt. An honorable member of this House, who was an eye witness of the case, can correct any error in this report.

In that case, the exercise of the power was as much an invasion of the freedom of the press and the right of trial by jury, as the proceeding before Judge Peck. It is true that the cause was still pending in court; but it has already been shown that this makes no difference in the law of the case, when the scandal is directly on the court; and it has been also shown, that, in this instance also, there were cases pending, on which the publication was admitted to have been intended to bear.

And, with these remarks, the Judge dismisses this branch of the subject. • It is next said, the Judge's manner and language, in pronouncing sentence on the attachment, were rude and harsh towards Mr. Lawless.

On this subject the Judge understands the resolution of the House to confine him to the evidence reported by the Judiciary Committee; and he will, therefore, make no statement of the case as it occurred, and as he believes it to have been capable of proof, if the opportunity had been afforded. But he presumes that he may call the attention of the House to the admissions made by the two principal witnesses, themselves, of the relation, in point of feeling, which they hold towards Mr. Lawless and the Judge, and to ask that their statements may be received with a reasonable allowance. But, let it be conceded that their statements are strictly correct, to what do they amount? The House will remark, that Judge Peck was delivering an opinion in a case of contempt, arising for a publication which had misrepresented an opinion of the court; the tendency of which was, to destroy all the respectability of the court, and to render it universally ridiculous and contemptible, as well as to destroy the equipoise of the public mind with regard to all the land claims depending before the court. The court was de

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