THE delays of justice which occur in courts nowadays are not those which gave our English ancestors trouble. Delay caused by the unjust spirit of the sovereign, or by his indifference to the wrongs of his subjects, came to an end with end of individual sovereignty. Though the history of Barnard’s and Cardozo’s court shows that for a time, at least, the popular sovereign may be as unjust and indifferent as any other, these instances are exceptional. There are few cities like New York in the world, and matters of private right in most courts throughout the United States are Still adjudicated without flagrant and open denial, delay, or sale of justice. It is in matters of public right that most of the trouble takes place. It is the thieves and murderers for whom justice is delayed, and this delay in nine cases out of ten occurs without fault of the court which grants it. The legislation of the various States on the subject of criminal jurisprudence has been so hasty and ill digested, that at every stage between the commission of a crime and the termination of judicial proceedings the criminal finds doors of escape ready to his hand. The popular idea that courts of appeal grant new trials and writs of error out of pure love of the thing is not founded on fact. They generally have no discretion in the matter, and the remedy must be found in the revision of the slipshod legislation which is gradually making a thieves’ paradise out of every court of justice. To be sure, there is great weakness in the appellate courts themselves, which comes from the influence of politics ; strong courts have a wonderful way of finding principles of construction in doubtful cases which advance the ends of justice, but even strong courts cannot repeal the fundamental principles of Anglo-Saxon jurisprudence ; for centuries it has been the policy of our law to make hanging and incarceration difficult; a policy which found its origin in a deep-seated jealousy of arbitrary power, and also in a deep-seated and religious respect for life. By a curious irony of events, our jealous devotion to the interests of the accused subject, and our desire to protect him from the tyranny of courts, has ended in the establishment of a worse tyranny,—the lives and liberties that we protect best are those of thieves and assassins. It must take a long time before we succeed in striking a just balance between the protection of individual rights and the maintenance of social security.
Meantime, there being no doubt that our panel-thieves, pickpockets, burglars, and car-hook murderers are carrying things with a high hand, the press has arrogated to itself the function of making life less agreeable to them by frequent, and we wish we could say searching, criticisms of the judicial proceedings instituted against them. The indictment, the jury, the plea, the verdict, the exceptions, tire motions in arrest, and indeed every action of the judge, the jury, the prosecuting and defending attorneys, are appealed to the selfconstituted tribunal of journalism, and there retried. On the whole, it cannot be denied that in most cases (he press has used its influence on the side of order and security. Without displaying much legal acumen, it has generally succeeded in discovering and making known to the public the guilt of the criminals whom it has attacked ; and it has shown little or no disposition (in cases in which politics were not involved) to persecute the innocent. As a general rule, when it has attacked courts, it has done so with good motives ; and although we firmly believe that the judiciary in its present weak state needs the support of all honest people, we are not at all inclined to think that a crusade against the press will in the end secure it any solid or valuable power. Every now and then attempts of the kind are made, but they , always fail. We find an apt instance in some recent proceedings of the Supreme Court of Illinois.
A man named Raffertv had been tried for murder in the county in which Chicago lies, found guilty, and sentenced to death. His counsel had obtained a writ of error which was still pending. There was at the time a great deal of excitement in Chicago with regard to unpunished crime; public meetings had been held, and committees had been appointed, and the papers had called general attention to the subject, when (in October last) the Chicago Evening Journal published the following editorial article.
“THE CASE OF RAFFERTY.
“ At the time a writ of supersedeas was granted in the case of the murderer Chris. Rafferty, the public was blandly assured that the matter would be examined into by the Supreme Court and decided at once, that possibly the hanging of this notorious human butcher would not be delayed for a single day. Time speeds away, however, and we hear of nothing definite being done. Rafferty’s counsel seems to be studying the policy of delay, and evidently with success. The riff-raff who contributed fourteen hundred dollars to demonstrate that ‘ hanging is played out,’ may now congratulate themselves on the success of their game. Their money is operating splendidly. We have no hesitancy in prophesying clear through to the end just what will be done with Rafferty. He will be granted a new trial. He will be tried somewhere within a year or two. He will be sentenced to imprisonment for life. Eventually he will be pardoned out. And this in spite of all our public meetings, resolutions, committees, virtuous indignation, and what not. And why ? Because the sum of $ 1,400 is enough, nowadays, to enable a man to purchase immunity from the consequences of any crime.
“ If next winter’s session of the Legislature does not hermetically seal up every chink and loophole through which murderers now escape, it will deserve the bitter censure of every honest man in Illinois. We must simplify our mode of procedure in murder trials. The criminal should be tried at once, and, when found guilty, should be hanged at once, and the quicker hanged the better. The courts are row completely in the control of corrupt and mercenary shysters, — the jackals of the legal profession, who feast and fatten on human blood spilled by the hands of other men. All this must be remedied. There can be found a remedy and it must be found.”
The scurrility of this article naturally attracted the attention and the anger of the Supreme Court. It plainly insinuated, although it did not in so many words charge, corruption ; such at least must have been its meaning for any casual reader not bent on a favorable construction. The judges, whose reputation is perfectly good, determined to make an example of the offending newspaper, and attached the publisher and editor for contempt of court. By a bare majority the judges determined to pass sentence, and fined the respondents three hundred dollars and costs. This absurd result filled the Chicago Evening Journal and all the other papers of the Northwest with great delight, and afforded them an opportunity of perpetrating editorial contempts of the most open kind, of advertising themselves as martyrs, and of enlisting the sympathy of the press all over the country. Waiving all question as to the policy of proceeding against the newspaper in the first place, and also as to the power of the court to punish for contempt not committed in its presence, it is obvious that the punishment imposed was ridiculously inadequate. The offence was “ the impeding and embarrassment of the administration of justice ” by the publication of an article tending to bring the Supreme Court of the State into public contempt ; such an offence, if punished at all, should have been punished very severely. The fine of three hundred dollars certainly produced the impression on the mind of any one who had followed the proceedings that the article had produced its effect, and that the court was really frightened.
Very likely it is the last attempt of the kind we shall see, because it only adds one more to a list of experimental attacks which have been made upon the press within the last few years, no one of which had been attended with any success. During the rule of Tweed in New York, the Ring introduced into the Legislature at Albany a provision for the restoration of the common-law rule as to contempts, the effect of which would have been to give to Barnard, Caidozo, and the other rascals who happened to have seats on the bench, the power to prevent all discussion of their action. The common law on the subject was that which appears from the decision of the court in the Journal case to be in force in Illinois, but three hundred dollars and costs would not have been the penalty imposed on newspapers in New York. The proposal, however, was too monstrous for consideration, and even the Albany Legislature was forced to decline having anything to do with it. The next attempt to make use of the power to punish for “ constructive " contempt was made by Congress, which has the same rights in this matter that are enjoyed by courts of law. Two members of the press were incarcerated for publishing proceedings of the Senate when the publication had not been authorized. Nothing came of it however.
These instances serve to show how extremely improbable it is that the power to punish for contempt by “ construction ” can ever come much into vogue as a means of bolstering up the dignity of courts. The punishment of actual contempts committed in open court is a different matter. Judges must have that power for the purpose of preserving order, and it would be well if they exercised it much more severely than they now do ; but the press has become far too powerful an engine to make it possible for judges to silence or frighten it back into the attitude it once held towards those in authority. As it is evidently supposed, however, by some people, that this is not so, and as it is impossible not to sympathize with the desire of any honest court, however mistaken it may be in its choice of means, to strengthen its position in the fight which it is perpetually called upon to engage in against popular clamor and stupidity, it may be worth while to trace in a few words the history of “ constructive contempt ” ; the briefest retrospective glance will serve to show how completely it belongs to an age and system of society which has gone by.
A “ constructive contempt ” is “ any publication, whether by parties or strangers, which concerns a cause pending in court, and has a tendency to prejudice the public concerning its merits and to corrupt the administration of justice, or reflects on the tribunal or its proceedings, or on the parties, the jurors, or the counsel.” The power to punish is very wide. Short of torture or execution, it may be said to have no limits. It is in the discretion of any court, which either by statute or common law has the power, to prevent absolutely all discussion of any pending case by the press. There is no appeal from its decision ; the proceedings are summary and final. Outside of England and America the power does not exist among civilized states. In France and in Germany there is an active supervision of the press, but it is by the administration, not by the courts ; and, what is particularly worthy of notice, the power rests primarily, not on the danger that public discussion may lead to resistance of judicial decrees, but on the danger to the dignity of the court. No one will deny that the dignity of courts ought to be preserved, and that general respect for them and for their decrees is a great safeguard against disturbance and civil commotion ; but then so also is the dignity of other branches of the government important. Respect for the proceedings of the Treasury Department is a great safeguard against the depreciation of the national credit ; and if a newspaper publishes an article showing that Mr. boutwell knows nothing about finance or political economy, it may very likely affect the price of government securities, and through these the fortunes of thousands of poor and helpless persons. But Mr. Boutwell has no power to punish for constructive contempts of the Treasury. So, too, the publication of articles calling attention to the unfitness of the President for his position, holding up to public scorn his ignorance of law, his indifference to public opinion, his lack of interest in specific measures of reform ; all this has a very bad effect on the reputation of the country and its inhabitants ; we have heard a sensible man express doubts as to the morality of caricature when it handled persons of exalted station ; but General Grant cannot have Mr. Matthew Morgan locked up in the Old Capitol prison. We may say the same thing even of such a small branch of the government as the signal service. Constructive contempts of the weather reports might lead to all sorts of disasters by sea and land, the loss of much property and many lives ; but the chief of the service cannot prevent the publication of such criticism as the press may see fit to make. It is only the courts whose dignity is of sufficient importance to be thus protected.
The explanation of this anomaly is to be found where the explanation of so many other anomalous features of our system of government are to be found, in the peculiar character of the growth of the English Constitution, the so-called principles of which we have inherited. The English Constitution, or rather the constitutional rights of the English people, have been obtained and established, not as a general rule according to any systematic plan, but accidentally, on the impulse of the moment, under the pressure of actual tyranny. Magna Charta and the Bill of Rights were not well-considered reforms, introduced, like the Prussian reforms of Stein and Scharnhorst, from above, because they were seen to be necessary to the social progress of the people; they were liberties, wrung from unwilling superiors by aggrieved subjects. Down to the time of the American Constitution no system or scheme of government had been devised for any portion of the English race, and indeed it had hardly occurred to any one that such a thing was possible. The Federalist was the first modern essay on the art of government in our language which recognized any principles in politics. At that period even representation (in the modern use of the term), the freedom of the press, and the independence of the judiciary, were things unknown in England, Indeed, we may almost say that down to the time of our Revolution, the sum and substance of political wisdom among Englishmen was, that the contest for forms of government was a fool’s contest, that the best government was the best administered government, that politics was a game by which power was won and lost, that every man had his price, but that Britons never had been and never would be slaves. In this century the subject has received a very different kind of discussion. The great principle, that government is the agent of the people, having been fairly adopted, the road is at length opened to systematic and scientific consideration of questions which have heretofore been mere questions of power or force. But though the road is opened, the goal is by no means reached. The continual struggle for liberty and rights in which our ancestors were forced to engage, left them, as we have just said, little time or inclination for making the charters they obtained consistent and complete. They were content with securing themselves from acts of oppression when oppression was attempted. The result is that the inheritance they have bequeathed to us is a strange compound of modern liberty, ancient and perhaps obsolete custom, and forgotten prerogative, some of it belonging to one century, some to another, some going beyond the memory of man, some rational, some irrational, some unintelligible. Every now and then, in the midst of these entangled constitutional strata, some fossil remains of a by-gone period are turned up in the course of judicial investigation, and it has been the custom with courts and legislatures which understood their duty clearly to remit them to the care and study of historical and antiquarian inquirers, and not attempt to adopt and declare them part of the organic life of the period.
One of these fossils is the power to punish for constructive contempt of court. It is a fossil which belongs to what might be called the arbitrary period, if politics were studied as geology is. To understand its being found as a deposit in the strata of English and American jurisprudence, we must go back to those very early times in which the king was the source of all power, the real sovereign. All states, England among the rest, which have steadily developed themselves from within, have at some period come under the domination of a single ruler, in whom all power was centred. Of course, at such a period, society is very simple. It mainly occupies itself with fighting. There is no legislation, no representation, small commerce, or domestic trade ; there are no accumulations of wealth, no complicated questions of property rights, no great cities, no public meetings, in fact no public to hold meetings. In this rude state of society, the king performs a dozen duties which in modern times are performed by a dozen separate agents. Among others he administers justice. He sits in his hall, “throned and delivering doom ” ; the suitors come in to his presence, and obtain redress for what wrongs have been done them. We have in the Arthurian legend one of the first pictures of this sort of society in England. In Mr. Tennyson’s last “ Idyl of the King” may be found an imaginary record of a day’s proceedings in one of these early courts, in which a simple viva voce order issued from the throne takes the place of all the cumbrous modern machinery of injunctions, writs of entry, mandamus, ne exeat, and arrest on mesne process ; assumpsit, detinue, replevin, trover, and waste (to say nothing of “ pleas of the crown”) are all merged in the primeval action on the case in the Aula Regis.
It was the king sitting in the Hall of Doom who first discovered that he had the right to punish for contempt of court. It required no elaborate investigation into precedents to convince him of it, for he had complete power to do what he pleased. Nor did he make any distinction between actual and constructive contempts. If any one, whether in court or at some remote place, committed acts which seemed likely to bring the administration of justice, or, in other words, the king, into contempt, the most summary measures were immediately taken with the offender. The object of such measures was, not the preservation of the dignity of law or justice, but the preservation of the royal authority itself.
The next step in the progress of society was the creation of courts, empowered to administer justice for the sovereign, but in his absence. These courts, however, were at first mere representatives of the king ; they did work for him which he could no longer do for himself. The King’s Bench and Exchequer and Common Pleas did not become courts in our sense of the word till a much later period. As the king’s judicial doubles, they possessed an enormous amount of the royal prerogative. Among other things they could punish for contempt. The king had ceased to sit as a judge, but was still sovereign, and the sovereign’s dignity must be maintained. During all this time, the power was nothing more nor less than a part of the arbitrary power of an absolute monarch, — the same sort of power which was exercised by Haroun Alraschid whenever he had a slave bastinadoed for disobedience.
By and by the administration of justice begins to be wholly separated from the other functions of government, and courts are looked upon as independent bodies. At the same time, the invention of printing makes perpetual public discussion possible, and discussion is soon turned upon the action of the courts themselves. The courts, determined to find some means of curbing the free expression of opinion, bethink themselves of the ancient prerogative we have been describing, and announce as a principle of law, that “any publication, whether by parties or strangers, which concerns a cause pending in court, and has a tendency to prejudice the public concerning its merits, and to corrupt the administration of justice, or reflects on the tribunal or its proceedings, or on the parties, the jurors, or the counsel, may be visited as a contempt.” It was precisely as if the Secretary of the Treasury should to-morrow issue an order that any publication, whether by the brokers interested or by the press, which concerns a loan in the process of negotiation, and has a tendency to prejudice the public concerning the merits of the transaction, to hamper the financial operations of the Treasury, or impair its credit, or reflect on the department in any way, may be visited with fine and imprisonment to any extent which the Secretary for the time being may deem proper to inflict.
At the time of the separation of the United States from England, this extraordinary principle had been declared to be law, and has now been declared to be in force by the Supreme Court of Illinois in a strictly modern commercial community which has grown up within the last thirty years under a republican form of government, thousands of miles away from the country where the doctrine originated in a totally different state of society, centuries before, and where the doctrine itself was merely the formal announcement in legal phraseology of a single division of the old maxim, that he who could keep the power might have it, if some one else did not take it. away.
The power to punish constructive contempt is, in short, a sovereign attribute of barbarous times, which in English history has, with the decline of the crown in power, been filched away from it by the courts. The legislature has also attempted to usurp it. It really belongs, if it belongs anywhere, to the sovereign, who in the former times was the king, but is now the people. In those states which, like Germany, do not recognize, or, like France, do not act upon their recognition of, popular sovereignty, we should expect to find this power lodged in the hands of the administration; and we do, in the censorship of the press, find something like it, though regulated by law. It is only in England and America that the power is arbitrary and really barbaric. That this is an obsolescent power, few people familiar with the position of the press in modern society will be disposed to deny ; and the attempt to reanimate it for the sake of giving the judiciary support can only be regarded as one of those attempts at selfdefence which does little but reveal the weakness of the position defended.