Imatges de pàgina
PDF
EPUB

shown to the court, confirming incomplete claims of precisely a similar character, and that the court, with these laws before their eyes, assumed that they furnished no argument or protecting principle in favor of the claim at bar: whereas, in truth, no such law was shown, nor, as the Judge believes, can be shown. But how does this statement agree with Mr. Lawless's evidence, that he considered the case of the heirs of Soulard, as peculiar and original in its leading characteristics?"

The author, not satisfied with this catalogue of misrepresentations, proceeds, in his concluding paragraph, in these words: "In addition to the above, a number of other errors, consequential upon those indicated, might be stated." This is true: for as the author was not governed by the opinion of the court in the enumeration of his charges, their number depended entirely on the fertility of his own invention. He proceeds: "The Judge's doctrine as to the forfeiture, which, he contends, was inflicted by Morales' regulations, seems to me to be particularly pregnant with grievous consequences."

To whom was this sentence addressed? To the public of Missouri! What rights were menaced by those disastrous consequences? The rights of those land claimants whose suits were yet depending in court, and rested upon the same principles with those which had decided the case of Soulard. It was not the case of Soulard which was to be benefitted by this publication, for that was gone, having been sent, for correction of errors, to the Supreme Court. And what were the benefits which were to be derived from the publication, with regard to the claims still remaining in court? To array against the Judge, a power which might over-awe and control him, in the decision of the pending cases; or to render him, in his character of a court, an object of contempt and indignation, if he should dare to follow up, in future cases, the principles which he had laid down in Soulard's; or to render the decisions of the court so despicable in the public estimation, as to destroy all the weight and authority of the court, by holding up to the public, the Judge who composed it, as among the most stupid and absurd, or unprincipled of mankind; to beget, in the public mind, a sympathy and respect for these claims, which would unfit that public to perform the office of jurors in the trial of those issues of fact which the court was authorized to direct with regard to these claims, and if a jury should be drawn from the public for this purpose, to bring them to the jury-box with such a load of pre-conceived prejudice against the court, as to indispose them to receive, with respect, any instruction, even on a point of law, which might be given from the bench; in short, to erect a trophy for these land claimants, and their claims, on the ruins of the court itself.

The petitioner says, that his whole object in this publication, was to save his clients from speculation, under the despondency which the decision of Soulard's case had inspired. He does not say this in the article signed “A Citizen;" nor did he say it when he was brought before the court to answer for this contempt. It seems to be an after thought; but does it furnish any justification of his conduct? The purpose was commendable, but were the means employed to effect it equally so? There are those, who hold that the end justifies the means, and assassination has been defended on this ground: but this is not the doctrine of courts. If the author's object had really been that which he avows, to-wit: to restore the confidence of his clients against the despondency which the decision of the Judge had inspired, and thus to protect them against the rapacity of speculators, there was no occasion for

him to have gone into the public prints to produce this effect. His personal assurance that the decision was erroneous, and would be certainly reversed by the Supreme Court, would have been far more likely to have produced this effect on clients who knew him, and confided in him, than an anonymous article in a public newspaper. The publication, therefore, must have looked beyond his clients; it must have looked to the whole public, to whom he addressed himself: and what effect could it have been his purpose to produce upon them? In law, as well as in common sense, every man is supposed to intend the natural consequences of his own actions; and what were the natural consequences which must have been expected to follow the imputation of such a catalogue of errors and absurdities, to the opinion of the court? To bring the court into public contempt, and, with the public contempt, to arouse the public indignation against the court; to restrain the Judge from the free exercise of his opinion, by the fear of the public resentment; and, by these means, to operate, indirectly, on the causes which yet remained for decision.

Was not this publication a libel on the court? "A libel," says Blackstone, "is a writing of an illegal tendency, as a malicious defamation of any person, and especially a magistrate, when it tends to provoke him to wrath, or expose him to public hatred, contempt, or ridicule. The falsehood of a libel aggravates it, and enhances its punishment." 4 Bl. Com. 150. Chitty says, "To constitute a libel, it is not necessary that any thing criminal should be imputed to the party injured. It is sufficient if the writer has exhibited him in a ludicrous point of view, has pointed him out as an object of ridicule or disgust; has, in short, done that which has a natural tendency to excite him to revenge.. And, therefore, words, in themselves not scandalous, become criminal if put in writing, so that they tend, in any degree, to a man's discredit. This applies still more strongly to persons in public capacities, so that, to publish any thing which tends, in any degree, to the discredit of public functionaries, whether true or false, is libellous: and this seems to be the true boundary of the freedom of discussion." 3 Chitty, Cr. Law, 636. [868.]

Be it granted, that, in the United States, and especially under the Constitution of Missouri, a different boundary is contemplated, to wit: that boundary which shall discriminate between truth and falsehood. Still this bound

ary will not protect this publication against the imputation of being a libel, since it has been shown to be destitute of truth, from the beginningto the end.

. Was it not also a contempt of court, punishable by attachment? Was it necessary, to make it such a contempt, that it should have been committed in the face of the court?

Blackstone says, that "Contempts which are thus punished, are either direct or consequential--direct, as open insults; consequential, which plainly tend to create an universal disregard of the court's authority." 4 Bl. Com. 283, 284,

Again he says, in page 285, "Some of these contempts may arise in the face of the court, as by rude and contumelious behaviour, by obstinacy, perverseness, or prevarication; by breach of the peace, or any wilful disturbance whatever; others in the absence of the party, as by disobeying or treating with disrespect the King's writ, or the rules or process of the court; by perverting such writ or process to the purposes of private malice, extortion, or injustice; by speaking or writing contemptuously of the court

or judges, acting in their judicial capacity; by printing false ac counts, (or even true ones, without proper permission,) of causes then depending in judgment; and by any thing, in short, that demonstrates a gross want of that regard and respect, which, when once courts of justice are deprived of their authority, (so necessary for the good order of the kingdom) is entirely lost among the people." Hawkins says, "that, for contemptuous words or writings concerning the court, the party is punishable by attachment for contempt." And with regard to the last class of contempts, he adds, "it seems needless to put instances of this kind, so generally obvious to common understanding."

It would be easy to multiply cases, decided both in England and in this country, in which contempts by publications reflecting on the proceedings of a court, have been held punishable by the summary process of attachment. Judge Peck begs leave to refer the House to the following:-2d Atkins, 469. Proceedings against the printers of the Champion, and the St. James' Evening Post. 13th Vesey, Jun. ex parte Jones. The King against Almons. Opinions and judgment of Lord Chief Justice Wilmot, page 243. 1st. New York term Reports 485. The people gainst Freer; and the same case 518. The people against Feu. 2d Johnson's Rep. 290. Oswald's case, 1st Dallas, 319.

The case of P. H. Darby, in Tennessee. [Knoxville Register, 27th August, 1824, in the Department of State.]

The petitioner alleges, that at the time of his publication, the case to which it related had been finally decided by the court, and seems to infer, from this circumstance, that it was not a contempt of the court in the sense of the law, and that he was, therefore, not within the power of the court.

The first answer to be given to this remark, is, that the petitioner confounds by it, contempts of a distinct character. In 2d Atkins, 471, Lord Hardwicke, says, "There are three sorts of contempts. One kind of contempt is scandalizing the court itself. There may be, likewise, a contempt of this court, in abusing parties who are concerned in causes here. There may be also a contempt of this court in prejudicing mankind against persons before the cause is heard."

There cannot be any thing of greater consequence than to keep the streams of justice clear and pure, that parties may proceed with safety, both to themselves and their characters.

Now each of these contempts is separately punishable, and the publication in question, is punishable as a contempt of the first description mentioned by Lord Hardwicke, because it tended to the scandal of the court itself, by misrepresenting its proceedings. The reason for punishing this conten.pt, is entirely different from that which furnishes a contempt with regard to a pending cause. With relation to the first, it is because the publication degrades and vilifies the tribunal, and tends to destroy its authority and utility, as a public tribunal; while, with regard to the second, the reason for punishing the contempt, is, because it tends to obstruct the course of justice in the particular case, by prejudicing the minds of the court or the public with regard to the parties or their cause. Hence, it is manifest, that, to constitute the first kind of contempt, it is not all necessary that the proceeding with regard to which the court is defamed, is still pending before the tri

bunal.

The case of the King against Almon, which has been cited from Wilmot, page 243, is a case of the first description.

It was an application for an attachment against Mr. Almon for a publication containing many libellous passages upon the Court of King's Bench, and upon the Chief Justice of that court, for his conduct both in court and out of it; and it charges the court, and particularly the Chief Justice, with having introduced a method of proceeding to deprive the subject of the benefit of the Habeas Corpus act. The Charge against the Chief Justice was, that he had amended, at his chambers, an information against Mr. Wilkes. He was charged with this act as the Chief Justice of the court, and not as the court itself; the act charged was one done by Lord Mansfield, at his chambers, and consummated there; and yet, Lord Chief Justice Wilmot held it to be a contempt of court.

It does not appear that the cause was pending in court; no notice whatever is taken of this circumstance in the opinion of Lord Chief Justice Wilmot; and in an opinion so minute and dilated, had that circumstance been considered as essential to the offence, it would not have escaped the notice of the Judge. In the same case, the court had been reflected upon for rules which they had established in relation to the proceeding by Habeas Corpus, and also for the delay to afford a remedy upon the writ of Habeas Corpus in a particular case. Justice Wilmot decides the reflections upon the court, in relation to each of these subjects, to be a contempt. It is certain, therefore, that, with respect to either of these, there was no cause depending, and that reflections upon the court to constitute a contempt, need not relate to a cause depending, much less the misrepresentations of the decision of the court in relation to a cause which, in fact, supposes its determination.

The opinion, in this case, is replete with all the learning upon the subject, and meets every objection which has been urged against the proceeding by Judge Peck.

The case of P. H Darby, in Tennessee, was a case in which, at the time of the publication, punished as a contempt, the particular cause had been decided by the Supreme Court, against which the contempt was committed, and had been sent back to the Inferior Court, for further proceedings.

The person who had been guilty of the contempt was an attorney, who had been engaged in the cause; his offence was that of a publication tending to excite the public indignation against the Judges of the Supreme Court, for having given that opinion, and to bring the same into contempt; and for this offence, he was struck from the roll of attorneys in that court. The cause, it is true, was pending in another tribunal, and might, perhaps, be again brought up before the Supreme Court; and so the case of Soulard was depending before another court, and might, perhaps, be remanded to the court of Missouri for further proceedings. In both cases, therefore, the particular cause had, at the time of the contempt, been finally decided by the court, and had passed out of that tribunal into another; and in both, there was a possibility that it might come back again for further proceedings before the libelled tribunal. Yet, in Darby's case, the fact that the cause had, at the time of publication, passed away from the tribunal whose opinion was defamed by him, did not protect him from punishment for the contempt.

A copy of the opinion of the court of Tennessee in Darby's case, is herewith respectfully presented to the House, and is marked D.

But again: If it were essential to the power of the court to punish for a contempt, that the publication should relate to a cause still pending before the court, the evidence in this cause has proved that the publication in question is of this description. The accuser has admitted that, although Sou

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 seeking to produce, the effect of drawing contempt on the tribunal, or exciting 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 cause 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 by him in his character of a court.

« AnteriorContinua »