State v. Hildreth

• Citation: 82 Vt. 382,74 A. 71
• Court: United States State Supreme Court of Vermont
• Decision Date: 06 October 1909
• Parties: STATE ex Inf. ATTORNEY GENERAL v. HILDRETH.

74 A. 71

82 Vt. 382

STATE ex Inf. ATTORNEY GENERAL

v. HILDRETH.

Supreme Court of Vermont. General Term.

Oct. 6, 1909.

Proceeding by the State, on the information of the Attorney General on his own motion, against David W. Hildreth to punish defendant for contempt of court. Heard on demurrer to complaint and on answer, and defendant adjudged guilty of contempt.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

John G. Sargent, Atty. Gen., for the State. Young & Young, for respondent.

ROWELL, C. J. This is an information presented to this court by the Attorney General ex mero motu, asking that the respondent be cited to show cause why he should not be punished for contempt for defaming the court in an article that he wrote and published in his own newspaper of and concerning a certain decision that the court had recently announced that finally determined the case in which it was rendered. The respondent was cited and appeared.

The article entirely misconceived and misstated the ground and reason of the decision, and the respondent did not claim that it was not defamatory, as it most clearly was, and highly so, for it impugned the motives of the court and charged it with corruption; but he objected by demurrer that, as the case was not pending when the article was published, but had been finally determined, the court had no jurisdiction to proceed against him for contempt, but that he could be proceeded against only by indictment or information. This objection was not sustained, the demurrer was overruled, and the respondent adjudged guilty of contempt and fined. There are undoubtedly many cases in this country that support the respondent's contention. But it will be found, we think, that, though a few of them rest upon constitutional provisions, the more part rest upon statutory provisions that expressly or impliedly undertake to limit the jurisdiction of courts to punish for contempt, and to confine it to pending eases; and, although it is very generally held that Legislatures cannot thus limit and confine the power of the courts, yet many courts, it would seem, have been content to follow those provisions without questioning the power of the Legislature to make them. But whatever may be true of those cases the common law governs here, for we have no constitutional provision on the subject, and no statutory provision save that which enacts that a person who defames a court of justice, or a sentence or proceeding thereof, or defames the magistrate, judge, or justice of such court as to an act or sentence therein passed shall be fined no more than so much. P. S. 5898. But this statute does not change the common law of the subject, for, as said in Dewey v. St. Albans Trust Co., 57 Vt. 332, 338, speaking of the construction of statutes, "The rules of the common law are not to be changed by doubtful implication, nor overturned except by clear and unambiguous language," and here is no certain implication of change, nor clear and unambiguous language of overturn. And, besides, it is a general rule that, if a statute fixing a penalty for an offense does not expressly nor by implication cut off the common-law prosecution or punishment for the same offense, it shall be taken to intend a cumulative remedy only. Black, Interp. Laws, 234; People v. Bristol, etc., Turnpike Co., 23 Wend. (N. Y.) 222, 244. The precise question is therefore whether it is a contempt at common law to scandalize a court of record by a newspaper publication in respect of its decision in a case no longer pending.

Lord Hardwick says there are three different sorts of contempt: One, scandalizing the court itself; one, abusing parties who are concerned in cases in court; and one prejudicing mankind against persons before the case is heard. 2 Atk. [471]. Blackstone says that contempts that are punishable by attachment are either direct, which openly insult or resist the powers of the court or the persons of the judges who preside there, or else are consequential, which plainly tend to create universal disregard of their authority. In giving the principal instances of each kind he says that a contempt arises by speaking or writing contemptuously of the court or of the judges acting in their judicial capacity, and, in short, by anything 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. 4 Bl. Com. [*283] et seq. The reason that prompted the passage of our statute for the punishment of defamation is to the same effect as shown by the preamble of the original act, passed in 1787, which recites that "whereas defaming the civil authority of the stale greatly tends to bring the same into contempt and enervate the government, for the prevention whereof" the act was passed. Rev. St. 1787, p. 47. There is a collection of cases of commitments for contempts by courts of justice in 8 St. Trials [49 and 50], all of which are more or less in point here, but we state only two of them. In Easter term (6 Geo. II), one Wilkins having confessed himself guilty of publishing a libel upon the Court of King's Bench, the court made a rule committing him to the marshal. The next term having made an affidavit charging another with being the author of the libel, he was sentenced to pay a fine and to give security for his good behavior for a year. In Trinity term (7 Geo. II), an attachment was granted against John Barber for contemptuous words of the Court of King's Bench uttered in a speech to the Common Council of London. This case is also to be found in 1 Strange [444]. It has often been said by English judges that the history, purpose, and extent of this jurisdiction are competently treated by Wilmot, C. J., in an undelivered opinion in The King v. Almon, 8 St. Trials [54]. The occasion of it was a motion in the King's Bench for an attachment against Almon for contempt in publishing a libel on the court and the Chief Justice. "Indeed, it is admitted," says the Chief Justice, "that attachments are very properly granted for resistance of process or a contumelious treatment of it, or for any violence or abuse of the ministers or others employed to execute it; but it is said that the courts of justice in those cases are obstructed, and that the obstruction must be instantly removed, but that there is no such necessity in the case of libels upon courts or judges, which may wait for the ordinary method of prosecution without any inconvenience whatever. But, when the nature of the offense of libeling judges for what they do in their judicial capacities, either in court or out of court, comes to be considered, it does in my opinion become more proper for an attachment than any other case whatsoever. * ? ? In the the moral estimation of the offense, and in every public consequence arising from it, what an infinite disproportion is there between speaking contumelious words of the rules of the court, for which attachments are granted constantly, and coolly and deliberately printing the most virulent and malignant scandal that fancy can suggest upon the judges themselves. It seems to be material to fix the ideas of the words authority and contempt of court, to speak with precision upon the question. The trial by jury is one part of that system; the punishing...