RESPUBLICA v. OSWALD

• Court: U.S. Supreme Court
• Writing for the Court: Justia & Oyez
• Citation: RESPUBLICA v. OSWALD, 1 U.S. 319 (1788)
• Decision Date: 01 July 1788
• Parties: Respublica v. Oswald

1 U.S. 319 (Dall.)

Respublica v. Oswald

Supreme Court of Pennsylvania

July Term, 1788

On the 12th of July, Lewis moved for a rule to show cause why an attachment should not issue against Eleazer Oswald, the printer and publisher of the Independent Gazetteer.

The case was this: Oswald having inserted in his newspapers several anonymous pieces against the character of Andrew Browne, the master of a female academy, in the city of Philadelphia, Browne applied to him to give up the authors of those pieces; but being refused that satisfaction, he brought an action for the libel against Oswald, returnable into the Supreme Court, on the 2nd day of July; and therein demanded bail for L1000. Previously to the return day of the writ, the question of bail being brought by citation before Mr. Justice Bryan, at his chambers, the Judge, on a full hearing of the cause of action, in the presence of both the parties, ordered the Defendant to be discharged on common bail; and the Plaintiff appealed from this order to the court. Afterwards, on the 1st of July, Oswald published under his own signature, an address to the public, which contained a narrative of these proceedings, and the following passages, which, I conceive, to have been the material grounds of the present motion. [319-Continued.]

'When violent attacks are made upon a person under pretext of justice, and legal steps are taken on the accasion, not perhaps to redress the supposed injury, but to feed and gratify partisaning and temporising resentments, it is not unwarrantable in such person to represent the real statement of his case, and appeal to the world for their sentiments and countenance.

'Upon these considerations, principally, I am now emboldened to trespass on the public patience, and must solicit the indulgence of my friends and customers, while I present to their notice, an account of the steps lately exercised with me; from which it will appear that my situation as a printer, and the rights of the press and of freemen, are fundamentally struck at; and an earnest endeavour is on the carpet to involve me in difficulties to please the malicious dispositions of old and permanent enemies.'

'But until the news had arrived last Thursday, that the ninth state had acceded to the new federal government, I was not called upon; and Mr Page in the afternoon of that day visited me in due form of law with a writ. Had Mr. Browne pursued me in this line, 'without loss of time,' agreeably to his lawyer's letter, I should not have supposed it extraordinary-but to arrest me the moment the federal intelligence came to hand, indicated that the commencement of this suit was not so much the child of his own fancy, as it has been probably dictated to and urged on him by others, whose sentiments upon the new constitution have not in every respect coincided with mine. In fact, it was my idea, in the first progress of the business, that Mr. Browne was merely the hand-maid of some of

Page 1 U.S. 319, 320

my enemies among the federalists; and in this class I must rank, his great patron Doctor Rush (whose brother is a judge of the Supreme Court) I think Mr. Brown's conduct has since confirmed the idea beyond a doubt.' 'Enemies I have had in the legal prosession, and it may perhaps add to the hopes of malignity, that this action is instituted in the Supreme Court of Pennsylvania. However, if former prejudices should be found to operate against me on the bench, it is with 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 this channel on certain memorable occasions, and hope I shall never be a sufferer, let the blast of faction blow with all its furies!' 'The doctrine of libels being a doctrine incompatible with law and liberty, and at once destructive of the privileges of a free country in the communication of our thoughts, has not hitherto gained any footing in Pennsylvania: and the vile measures formerly taken to lay me by the heels on this subject only brought down obloquy upon the conductors themselves. I may well suppose the same love of liberty yet pervades my fellow citizens, and that they will not allow the freedom of the press to be violated upon any refined pretence, which oppressive ingenuity or courtly study can invent.' '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 consistent; and, in a word, whether he is not actuated by some of my inveterate foes and opponents, to lend his name in their service for the purpose of harrassing and injuring me.' A transcript from the records was read to show that the action between Browne and Oswald was depending in the court; James Martin proved that the paper containing Oswald's address was bought 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 he inferred the necessity of the action, which had been instituted, from this consideration, that if Browne were really the monster which the papers in question described him to be, he ought to be hunted from 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

Page 1 U.S. 319, 321

public to vindicate his reputation, and to call upon the justice of the laws, to punish so gross a violation of truth and decency. For this purpose, he continued, a writ had been issued, and bail was required. The defendant, if not before, was certainly, on the hearing at the Judge's chambers, apprized of the cause of action: The order of Mr. Justice Bryan on that occasion, and the appeal to the court, were circumstances perfectly within his knowledge; and yet, while the whole merits of the cause were thus in suspense, he thought proper to address the public in language evidently calculated to excite the popular resentment against Browne; to create doubts and suspicions of the integrity and impartiality of the Judges, who must preside upon the trial; and to promote an unmerited compassion in his own favour. He has described himself as the object of former persecutions upon similar principles; he has asserted that, in this instance, an individual is made the instrument of a party to destroy him; and he artfully calls upon his fellow citizens to interest themselves to preserve the freedom of the press, which he considers as attacked in his person. Nay, in order to cast an odium upon the new government of the United States, he insinuates, that his arrest was purposely protracted 'till the ratification of nine states had given stability to that system: a falsehood, as unwarrantable as it is insidious; for, it will be proved that this delay took place at his own request, communicated by Col. Proctor. Col. Proctor, being examined on this point, said, that he, at first, desired the action might not be brought, in hopes of accomplishing a compromise between the parties; that, afterwards, he requested Mr. Lewis to defer issuing the writ 'till as near the term as it was possible; but that all this interference was of his own accord, and not at the instance of the defendant. He acknowledged, however, that he had informed Oswald, that the commencement of the action would be postponed as long as possible, after having obtained a promise to that effect from Mr. Lewis. Lewis said he was very much mistaken, indeed, if Col. Proctor had not mentioned the request as coming from the defendant; and Col. Proctor answered, 'if ever I told you so, he certainly sent me; but I cannot remember that ever he asked me to do a thing of the kind.' Lewis, then added, that the address to the public manifestly tended to interrupt the course of justice; it was an attempt to prejudice the minds of the people in a cause then depending, and, by that means, to defeat the plaintiff's claim to justice, and to stigmatize the Judges, whose duty it was to administer the laws. There could be no doubt, therefore, that it amounted to a contempt of the court; and it only remained, in support of his motion, to show that an attachment was the legal mode of proceeding against the offender. For this he cited 4 Black. Com. 280. 2 Atk. 469. By the Court: Take a rule to show cause on Monday next, at 9 o'clock in the morning.

Page 1 U.S. 319, 322

The Defendant appearing on Monday the 14th, agreeably to the rule to show cause, obtained on Saturday, prayed that the rule might be enlarged, as he had not had a reasonable time to prepare for the argument. But Lewis opposed the enlargement of the rule, observing that the defendant would be heard in extenuation, or excuse, of the contempt, after the attachment had issued.

By M'Kean, C. J.

I know not of any instance where a delay of a term has been allowed in the case of an attachment: one reason for such a summary proceeding is to prevent delay. Let cause be now shown.

Sergeant, in showing cause against the attachment, contended, that the doctrine, in 4 Black. Com. 280. was laid down much too wide; that in 2 Atk. 469. the Chancellor expressly assigns this reason, for his determining without a jury, that he was a judge of fact; and...