presented to the court of chancery for the winding-up of a company, which contains grave charges against the directors.1 thereby to believe, however mistakenly, that a certain amount of sympathy exists in this community with their atrocious calling. I have the honor to remain, Your obedient servant, HENRY BERGH, President." On February 16, Mr. Henry Bergh appeared voluntarily at the bar of the court with his counsel,— The court said-In giving my action upon this proceeding, it is proper I should submit my views in writing. I am clear that it is contempt of court at common law, for a witness or by-stander to communicate with the grand jury without its request; but to be a contempt under the statute, the commu 1 Re Cheltenham v. Swansea Ry. Carriage & Wagon Co., 20 L. I. N. S. 169; L. Rep. 8 Eq. 580.--It was contended, in this case, on behalf of the newspaper proprietor, that the case of a petition to wind-up was an exceptional one, because under the Act it must be advertised, and the advertisement must be accompanied by a statement that persons desiring to possess it might obtain copies from the solicitor by an ordinary application. Malins, V. C., said: "No doubt, every contributory and creditor can obtain such copies, but it is not open to any one of the public, strangers to the matter, and does not give a general license to publish the petition. It is the duty of the solicitor, before he gives copies of such a petition, which frequently contains unpleasant charges, to ascertain whether the applicants are contributories or creditors: he cannot give copies to any one who will pay for them. There is nothing in the Act or rules which sanctions the publication of a petition of this kind, any more than a bill in Chancery. It was said that there was no intention to injure in this publication; but it is a sound rule that you cannot dive into men's minds, but must draw inferences from their acts. In this case I must attribute to these proprietors, that they did not print these grave charges of fraudulent conduct against these directors unknowingly and unwittingly. They may be true or false, but that must be decided on the evidence. If you once permit such a publication as this, any person may file a petition, and any proprietor of a newspaper may print and publish it, and thus it may be made the vehicle of grievous injury to an individual character." Shortt, p. 374. 128. While the tendencies of the times are clearly to construe the offense of contempt of court with the greatest liberality, it is none the less true now than nication must savor of the degree of contemptuous behavior committed during the sitting of the court, and directly tending to impair due respect. I think that the term behavior may cover the writing and delivery to the grand jury of a contemptuous and insulting letter. It is clear from the elementary writers, and from what the court of appeals imply in the Hackley Case, 24 N. Y. 78, that the grand-jury-room is an enlargement of the court-room, and part of the court sitting. Handing to the petit jury a letter containing remarks upon the case pending before them has been at nisi prius adjudged a contempt; the jury, for convenience, being outside of the court-room proper, it is true, but legally and technically, nevertheless, a part of the court sitting; and both the grand and petit jury-rooms were merely extensions of the court apartment, and are under equal jurisdiction. The insinuation conveyed by this expression in the letter of Mr. Bergh, "as in the present instance they have escaped through means which I forbear to mention," addressed to any officer of the court during its sitting, could not be made worse for contemptuous and insolvent behavior tending to impair respect. At the commencement of the last October term of this court, I charged the then grand jury as follows: "The minutes of some grand juries have, in the past, distinctly shown traces as well as evidences of considerations and of reconsiderations and preferences, which can only be explained upon the belief that grand juries have yielded to lobby pressure, either in finally finding or finally dismissing bills of indictment. The grand juror who suffers himself to be even impliedly approached upon subject-matters pending before the body of which he is a sworn member, not only violates his oath, but transcends the common law that forbids such approaches, either in the act of the citizen or in the consent of the juror. Should it so happen during the present term of your duty as grand jurors that any person whomsoever (except the district-attorney, who, when desired, becomes your legal adviser), shall approach either of you and seek to confer, or endeavor to influence your action for or against the prosecution of any complaint pending before you, then it will become your duty to promptly communicate the fact to this court, in order that the person so offending may be summarily dealt with. The district-attorney has done all in his power ever before, that the usefulness of courts of justice is capable of being greatly hampered, if not wholly destroyed, by a too great license on the part of the to destroy the opportunities for this lobby influence with the grand inquest, but if jurors allow letters to be delivered to them by accused persons, accusers, or their counsel, or visits to be made to them at their places of business, or houses, by friends of suspected persons, they cannot obviate such a scandal or frustrate the wrong intended." It will thus be perceived that the considerations growing: out of the action of Mr. Bergh are not new and were not suggested by the attitude taken by the late grand jury, and I had determined to reprehend the first instance of grand jury lobbying or outside interference which should be submitted to my consideration. But Mr. Bergh shows that he is, for the purposes of his society, both a deputy attorney-general and an assistant district-attorney by written appointments from Messrs. Pratt and Phelps. Mr. Bergh, in his affidavit swears: "Such letter was sent and intended to be sent, as an official communication in the interests of the people of this State, which deponent then honestly believed he was then representing, and not to subserve any private or personal interest, or to gratify any individual spleen or malice; and deponent firmly and conscientiously believed at the time that he was only doing his duty, and that his course was entirely justifiable under the authority derived from the attorney-general and district-attorney referred to." In the matter of Strong, in this court, half a century since,. it was held that the act of sending a scurrilous letter to the grand jury ought not to be considered a contempt, unless it clearly appeared that it was designed to interrupt the administration of justice. The supreme court has held (Weeks v. Smith, 3 Abb. Pr. 211) that if the alleged contempt be capable of a construction consistent with innocence of the party of any intentional disrespect, there is no legal contempt. It would seem that Mr. Bergh's explanation that he was acting as the agent of the prosecuting officers is consistent with innocence. The court, however, trusts it may be pardoned for observing that the representative of the attorney-general and the district-attorney owes it to those gentlemen, if not to himself, to infuse into his oral or written intercourse with grand. juries, rather the suaviter in modo than the forliter in re; and to remember an old saying, "that he who impugns motives, should always rigidly examine his own." press. It is to the good sense of the press that the doctrine of contempt of court most earnestly appeals. 129. There can be no doubt—in the case of proceedings of legislative bodies, for instance that the newspapers should be untrammeled, by the law, in their comments thereon (and yet, as we shall presently see, wanton attacks upon such bodies, will on no hand be privileged). For in legislative proceedings the whole people are directly interested; since the result of legislative deliberations is to give to the public the laws which shall govern them; and since, to that end, they have sent thither their own representatives, armed as their mouth-pieces, with their own desires and opinions, and since it is for their unquestioned benefit that such scrutiny should accompany them. But in the case of courts it is different; for although it is to the best interest of every citizen that a tribunal should exist in which they should have every confidence, still, when an individual case is once before that tribunal, the public interest can only extend so far as to be solicitous that justice (in whatever remedy that justice may consist) shall be done; which would be impossible if the deliberate examination of the court into the merits thereof were to be anticipated by a newspaper trial. 130. The fact that a publication, contemptuous of court, was innocent of any intention of its writer to be so, cannot be permitted to purge it of contempt. Ignorantia juris non excusat It is evident, from the theory upon which punishments for contempt are based, that this must be so. Let the rule be discharged, and Mr. Henry Bergh stands. exonerated under his explanatory oath from any intentional contempt. The great principle of the safety of the people (which is the supreme law), is evidently the principle upon which punishments for contempt proceed; and against the safety of the people no evidence of good or harmless intentions can be allowed to avail. A publication, then, once being confessed; no course is left the court but to pronounce judgment. The intention can only be taken in mitigation of the punishment, not in mitigation of the offense. During the trial of one Nixon,1 an article appeared in the "New York Tribune," headed, "A Judicial' Outrage," which was supposed to reflect upon the conduct of the judge' presiding. The article was supposed to have been written by Horace Greeley; and an order was issued that Mr. Greeley show cause, before that judge, why he should not be attached for contempt. Instead of showing cause, he moved for a writ of prohibition, which was denied, and the following order made : It is ordered, by the court, that the said Horace Greeley answer (and the answer under oath is waived) the following interrogations, and have until Monday next, being the 25th day of April inst., at 11 o'clock, A. M., to file answers thereto, and be then heard in this court in defense of the accusation that he published a grossly inaccurate report of the proceedings of this court in the 'Daily Tribune' of April 14, 1864, in the language contained in and recited in interrogatory the first. "Interrogatory the First. Did you write in manuscript the following matter, which appeared in page 4, in column 2 thereof, in the New York Daily Tribune' of Thursday, April 14, 1864? 1 1 Supreme Court of New York, Oyer & Terminer, New York city, April, 1864. 2 Geo. G. Barnard. |