In re Cheeseman

• Decision Date: 05 November 1886
• Citation: 6 A. 513,49 N.J.L. 115
• Parties: In re CHEESEMAN.
• Court: New Jersey Supreme Court

6 A. 513

49 N.J.L. 115

In re CHEESEMAN.

Supreme Court of New Jersey.

November 5, 1886.

(Syllabus by the Court.)

On appeal. Facts are given in the opinion.

Wm. E. Potter, for appellant.

DIXON, J. The appellant, John Cheeseman, had been indicted at the January term of 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 30, 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 again be 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 of court 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 reference 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. Ch. "D." 1, note n.

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, Strange, 185;) again, in 1724, against one who had used contemptuous words on the delivery to him of a declaration in ejectment, (Rex v. Unitt, Strange, 567;) and again, in 1737, under circumstances like those of Rex v. Jones, supra, (North v. Wiggins, Strange, 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 prohibition 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 Camp. Ch. Jus. 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, Strange, 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 the court in prejudicing mankind against persons before the cause is heard." Roach v. Garvan, 3 Atk. 60.

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 punishable, "contemptuous words or writing 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. c. 22, §§ 33, 36. Before 1740, Comyn's Digest was published, and it is therein asserted that attachment will lie in abusive usage or words of the process or officers of the court. Com. Dig. Ch. "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 domination 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 two generations next...