In re Contempt of Cumberland County Oyer & Terminer

The opinion of the court was delivered by Dixon, J. The appellant had been indicted at the January Term, 1884, of the Cumberland county Oyer and Terminer, and at the January Term, 1885, had been tried on the indictment, but the jury disagreed. On January 30th, 1885, he published in his newspaper an article intended to cast discredit upon the members of the grand jury that had indicted him, upon the sheriff who had summoned the jury, and upon the judge who had presided at his trial, and who, in the regular course of official duty, would preside when he should be again tried. For this article the appellant was adjudged by said court to be guilty of contempt and to be fined $100, whereupon he appealed to this court. The appellant’s counsel insists that such a publication is not a contempt of court in this state. Fully admitting that it would be regarded as a contempt in England according to the views of the present day, he contends that such views had their origin subsequent to the American Revolution, and are therefore not to be considered as indicating our common law. That this position is, however, false will appear from a refer — 138 — ence to many declarations and decisions made before our separation from the mother country, by writers and courts to whom we are wont to look for authoritative evidence of the common law. As early as the time of Lord Clarendon, the first Chancellor after the Restoration, prosecutions for contempt by abusive words uttered out of court had become so frequent, that a special rule of court was adopted for their regulation. Com. Dig., tit. “Chancery,” D. 1, note h. In 1709, a defendant, on being served with a rule of the Queen’s Bench to show cause why an information should not be filed against him, spoke of the rule in a contemptuous manner. The court sent an attachment for contempt against him, without even a rule that he show cause why it should not be issued. Anon., 1 Salk. 84. In 1720, the same practice was pursued in the King’s Bench against one Jones, who had treated the process of the court contemptuously, (Rex v. Jones, Str. 185); again in 1724, against one who had used contemptuous words on the delivery to him of a declaration in ejectment (Rex v. Unitt, Str. 567); and again in 1737, under circumstances like those of Rex v. Jones, supra. North v. Wiggins, Str. 1068. In 1720, Pool was committed for contempt of the Court of Chancery, in having put an advertisement in the “Daily Courant,” offering a reward of £100 for legal proof of a certain marriage then in question before the court; Lord Chancellor Parker saying: “ This tends to the suborning of witnesses, * * * and is a contempt of court, being a means of preventing justice in a cause now depending, * * * and as the court may, so in justice it ought to punish this proceeding.” Pool v. Sacheverel, 1 P. Wms. 675. It was this jurist whom Hawkins, in the preface to his second book on the Pleas of the Crown, described as possessing the most perfect skill and experience in the common law. About 1724, Dr: Colbatch was attached for contempt in the King’s Bench, for having written in his Jus Academicum, in allusion to the court’s granting writs of mandamus and pro — 139 — hibition against the University of Cambridge, “that they who intend to subvert the laws and liberties of any nation commonly begin with the privileges and immunities of the universities.” Chief Justice Pratt sentenced him to be imprisoned, fined, and bound over to good behavior. 3 Campb. Lives of Ch. Just. 70. Shortly afterwards, Dr. Colbatch’s adversary, Dr. Bentley, complained to the King’s Bench that Cambridge had taken away his degree without hearing him, because, on being served with process to appear in an action of debt before the Vice Chancellor of the university, he had said contemptuously to the beadle, that the process was illegal and he would not obey it, that the Vice Chancellor was not his judge, and was acting foolishly. The same Chief Justice, in reversing the action of the university, remarked: “ If Dr. Bentley had said as much of our process, we would have laid him by the heels for it he is not to arraign the justice of the proceedings out of court, before an officer who has no power to examine it.” Rex v. University of Cambridge, Str. 557, 565. In 1744, the King’s Bench granted a rule for an attachment against one Redman, for threatening Murphy (the prosecutor in an information for a misdemeanor) with danger of his life, and saying he would be hanged. Rex v. Carroll, 1 Wils. 75. About the same time, Lord Hardwicke committed two printers to prison for contempt of court in printing reflections on the parties and witnesses in a cause pending in chancery, saying “ there is nothing of more pernicious consequence, than to prejudice the minds of the public against persons concerned as parties in causes, before the cause is finally heard. * * * 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.” Roach v. Garvin, 2 Atk. 469. About 1720, Hawkins’ Pleas of the Crown was issued. In it the learned sergeant enumerates among the most remarkable instances of contempts for which any person is punish — 140 — able, “ contemptuous words or writings concerning the court,” of which kind, he says, it seems endless to put any instances, since they are generally so obvious to common understanding. 2 Hawk P. C., ch. 22, §§ 33, 36. Before 1740, Comyn’s Digest was published, and it is therein asserted that attachment will lie for abusive usage or words of the process, or officers of the court. Com. Dig., tit. “ Chancery,” D. 3. Between 1740 and 1750, Viner’s Abridgment appeared, which, under the title “ Contempt,” states: “ Sometimes a contempt arises in using words imputing scorn, reproach or diminution of the court.” And finally, Blackstone, in his fourth book (page 283), published within a decade before the American Revolution, mentions among the principal instances of contempts of court punishable summarily by attachment, those committed away from the presence of the court, by parties writing or speaking contemptuously of the court or judges acting in their judicial capacity. In this array of authorities, running through the two generations next preceding the “ Declaration of Independence,” is not to be forgotten Chief Justice Wilmot’s opinion in Almon’s case, written in 1765, vindicating the power to punish this species of contempt as one inherent in the superior courts according to the settled principles of the common law. Wilmot’s Opinion 243. These citations may be fitly closed by the testimony of Lord Erskine, uttered indeed thirty years after New Jersey had ceased to be a colony of Great Britain, but toward the end of a life made illustrious by such devotion to the “ liberty of the press ” as not even its extreme advocates will question; he said, in Ex parte Jones, 13 Ves. 237 (1806): “ It never has been, or can be denied, that a publication, not only with an obvious tendency, but with the design to obstruct the ordinary course of justice, is a very high contempt.” It thus appears, beyond dispute I think, that the superior courts of England, before the formation of the United States, — 141 — had legal power to punish summarily for any words uttered by speech, by writing or by printing, outside of the regular course of litigation, which were designed to bring contempt upon the courts in the exercise of their judicial functions, or to pervert in a pending cause the due administration of justice. The appellant’s counsel contends, in the next place, that this power did not pass to the courts of New Jersey. So far as our courts are modeled after English courts of common law, a presumption arises that they possess all the powers .which their prototypes lawfully exercised, and the burden of establishing the contrary rests upon him wlm asserts it. Counsel endeavors to maintain his position upon the ground that the power now denied is contrary to the spirit of our institutions, and so far as our reports show has never been exercised in this state. The reason for deeming it contrary to the spirit of our institutions that our courts should have the same power as their predecessors to defend themselves against abusive words, is not apparent. Only two arguments for withdrawing from them this authority can be imagined, one that abusive words have ceased to be regarded as a means of injury; the other, that such power could no longer be safely intrusted to the courts. But neither argument is' well founded; for, by adopting the common law touching slander and libel, our forefathers unequivocally asserted their opinion that injury would still flow from unbridled tongues and pens, and by conceding to the courts the power of punishing contempts generally, they recognized the trustworthiness of the judiciary in vindicating, by summary process, their own authority and dignity. Why, then, should this single species of injury be taken from the category in which it has always stood ? The importance of the “liberty of the press” is urged upon us. We do not underestimate it; but after all, the liberty of the press is only the liberty which every man has to utter his sentiments, and can be enjoyed only in subjection to that precept both of law and of morals: sio utere iuo, ut alienum non laidas. In a government where order is secured, not so much — 142 — by. force as by the respect which citizens entertain for the law and those charged with its administration, nothing which tends to preserve that respect from forfeiture on the one hand and detraction on the other, can be hostile to the commonwealth. It is true, as stated, that there is not, in our reports, any instance of the exercise of the power to punish for mere words as a contempt; but this by no means indicates that the power has not been employed. The occasions on which it might properly be used are most likely to have arisen in those courts that try and decide causes in the immediate presence of interested parties, and therefore under circumstances more calculated to excite evil dispositions ; and the proceedings of these courts are not reported, nor until the statute of 1884, under which the present appeal is taken, were they subject to review in courts whose decisions are reported. The authority of our superior tribunals over this class of contempts has never been questioned; and whenever it has been referred to in our reported cases, it has been either declared or assumed to remain with us in its original vigor. In Flommerfelt v. Zellers, 2 Halst. 31 (1823), counsel spoke of it as an undoubted power; in State v. Doty, 3 Vroom 403 (1868), Chief Justice Beasley mentions it as one repeatedly enforced; and in Rhinehart v. Lance, 14 Vroom 311 (1881), where Mr. Justice Depue discussed at large the subject “ contempts,” there is no intimation that this branch of judicial authority has been lopped off. In our judgment the power exists, notwithstanding the apparent infrequency of its exercise.* Counsel further contends that the proceedings of the court below should be annulled because there does not seem to have been any affidavit of the facts as a foundation for the rule to show cause. This is not now a sufficient reason for reversal. No doubt the ordinary course of practice in such cases in courts of law is that an affidavit of the facts should first be presented; then, that a rule should be entered requiring the — 143 — alleged offender to show cause why he should not be attached for contempt; then, if good cause be not shown, that an attachment should issue, and the accused, on being brought in, should be either held to bail or committed to answer interrogatories; then, that interrogatories should be exhibited and answered; and thereupon, according as his answers confess or deny his guilt, he should be punished or discharged. But the practice has not been uniform. Sometimes a rule to show cause has been allowed without an affidavit, on a mere suggestion; sometimes an attachment has issued without a rule to show cause; sometimes punishment has been inflicted forthwith on the offender’s confession when brought in by the writ, without interrogatories-; and sometimes, as in McQuade v. Emmons, 9 Vroom 397, the penalty has been imposed on the offender’s admissions made under the original rule, without either writ or interrogatories. So that these various steps are manifestly not jurisdictional, except to the extent of laying before the court matters which constitute a contempt, and affording to the party accused a fair opportunity of denying or confessing their truth. In the present case, the appellant, on the return of the rule to show cause, filed his affidavit declaring the truth of all the matters alleged in the rule as the basis for its allowance, and although the consideration of the cause was then adjourned from term to term, yet the appellant never intimated that an affidavit should have been presented before the rule was granted, or that he was entitled to have an attachment issue or interrogatories filed, or that the rule should be discharged for want thereof; and even after sentence was pronounced, he obtained leave to amend his affidavit, but did not complain of any irregularity or illegality in the proceedings. Under these circumstances the objection now made cannot be sustained. Lastly, we are pressed with the impolicy of exercising the power to punish abusive publications as contempts. We decline to weigh the pro and con of this argument, in performing our duty as an appellate tribunal. Although by the statute (Pamph. L. 1884, p. 219) we are to rehear the — 144 — case of the appellant both upon the law and the facts, and to give such judgment as shall seem to be lawful and just, yet we are to do this in review of a judgment already rendered in the court below for the protection of its own dignity, peace and good order; and if in such judgment there is found, according to the law and the facts, nothing unlawful or unjust, it should be affirmed, whether in our individual opinions it was politic or impolitic to set the machinery of prosecution in motion. We consider the judgment of the Oyer both legal and just, and therefore it is affirmed. Footnotes [*] A large collection of cases on the subject “Contempt of Court” will be found in “The American Law Register,” February to July, 1881.