The Respublica against Eleazer Oswald (1788)

Eleazer Oswald (ca.1750–1795) was a Revolutionary War colonel and professional printer. Oswald joined the Maryland Journal in the summer of 1778 and then founded his own paper, the Independent Gazetteer, in Philadelphia in 1782. The Gazetteer would become one of the few papers to consistently oppose ratification of the U.S. Constitution in 1787.¹

From January to March 1788, the Gazetteer printed several anonymous notes attacking Andrew Browne, a British immigrant-turned Federalist who presided over an academy for girls and seems to have been trying his own hand at printing. Some of the notes are pretty innocuous and just make fun of Browne’s fledging career as a publisher, but a few are pretty nasty and accuse him of having embezzled from the British government, of having a secret wife in the UK, and of being abusive to his wife, mistresses, and students.²

On April 21, Browne’s lawyer William Lewis wrote Oswald, demanding the names of the anonymous writers and threatening legal action. After some back-and-forth, Oswald refused to give up the names on April 26. Oswald thought it significant that suit was not initiated until June 26, the same day news reached Philadelphia that the federal Constitution had been ratified by the requisite number of states.³ Oswald interpreted the suit to be a politically motivated punishment for his anti-federalism.

The Libel Suit & Civil Bail

Browne sued Oswald for libel, a private civil suit, in the Pennsylvania Supreme Court. He demanded bail of £1,000. “Mr. Justice Bryan, at his chambers, . . . 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.”⁴ Common bail, available only in civil suits, employed fictitious sureties and seems to be equivalent to today’s “own recognizance” release.⁵

Free to return to his home and work, Oswald prepared a broadside (literally) to be published July 1, attacking Browne, implying the Supreme Court was corrupted by Federalists, and proclaiming “the rights of the press and of freemen, are fundamentally struck at.”

On July 12, Lewis (Browne’s attorney) moved for a rule to show cause why an attachment should not issue against Oswald for contempt of court over the broadside and Oswald’s attorney appeared on the 14th to answer the motion. Oswald’s principal argument was that contempt functioned as a criminal prosecution and thus had to be subject to criminal procedure, including the right to a jury.⁶ Browne’s counsel responded that such a rule would destroy the very function of contempt, a traditional proceeding whose constitutionality had to be obvious notwithstanding the generalities of Magna Carta or the Pennsylvania Constitution.

The Contempt Proceedings

The Old Chester Courthouse, the oldest extant meetingplace of the Supreme Court of Pennsylvania.

Oswald’s case has become somewhat notable in the annals of free speech as an early example of how little the courts regarded freedom of the press. Justice McKean’s famous lines: “I must be allowed to observe, that libelling is a great crime, whatever sentiments may be entertained by those who live by it. With respect to the heart of the libeller, it is more dark and base than that of the assassin, or than his who commits a midnight arson.”⁷ The court accordingly found Oswald in contempt. With the term about to end the next day, Oswald asked to postpone the argument till the next morning while giving security for his appearance in the meantime. He was ordered to post a bail of £200 pounds and one surety for the same amount.⁸

Oswald appeared the next day, “in discharge of his recognizance.” The question was whether Oswald would submit to interrogatories or be forced to answer by an attachment. The interrogatories appear to relate to the circumstances of the contempt, not the underlying libel.⁹ Refusing to speak lest he incriminate himself on the underlying charge, Oswald was sentenced to one month imprisonment and a fine of £10, the imprisonment to continue until the fine and costs were paid.

Statements about the jailing and release are confusing, including whether the court actually ordered Oswald detained for failure to pay the fine.¹⁰

Reaction in the Legislature

Unusual both for its time as well as now, the case report includes an appendix of legislative history. On September 5 (presumably after his release?), Oswald petitioned the General Assembly to impeach the justices who imprisoned him. Three days of debate in the committee of the whole were devoted to Oswald’s memorial. The case reporter includes only a summation of William Lewis’s argument before the assembly, which offered an alternative reading to Magna Carta to counter Oswald’s insistence on criminal process: “But does not the constitution of Pennsylvania further distinguish between the laws of the land, and the judgment of our peers; furnishing a striking alternative, by the disjunctive particle or? This very sentiment, expressed in the same words, appears in the Magna Charta of England, and yet Blackstone unequivocally informs us, that the process of attachment was confirmed by that celebrated instrument.”¹¹ By this reading, punishment, including imprisonment, could be ordered not just by a unanimous jury but also in cases where the “laws of the land,” including common law, so prescribed. This reading seems to be at odds with William Penn’s understanding but may shed light on how Pennsylvania’s reconciled summary criminal punishment with Penn’s statutes in practice.

A response to Lewis’s argument was published, where else, in Oswald’s Gazetteer under the authorship of “X. Z.” “The constitution and laws of the country are to be our only rule, in deciding upon the point [of imprisonment without a jury trial]; and constructive power shall deprive a man of his liberty, where the constitution is either silent on the subject, or expressly forbids it.”¹² “[N]o case—no opinion must ever be permitted to overrule the fundamental liberties of our country.” Against Lewis’s disjunctive reading of “or the laws of the land,” the editorial argued that juries could be dispensed with only where positive law expressly allowed. General statutes conferring the same powers on Pennsylvania court as exercised in England were not enough to cut it. From there, the editorial engages in a classic argument from the period that the common law imported from England had necessarily transformed under American constitutionalism. “[W]ere I in England, I should undoubtedly submit to the laws—but we have a magna charta of our own; a constitution so far refining upon the common laws of England, as to protect every man from suffering imprisonment; not only on allegations of crimes of which the judges may suspect him guilty, but in all prosecutions for criminal offenses.”¹³ The editorial rhapsodizes on the theme of no punishment before or without trial, and that legal process alone can “disseize” a man of life, liberty, or property. “The sine qua non, is a trial by jury; and if by any process of law a man shall be imprisoned, before trial, he may have his remedy; for the 28th section of the frame of government admits that ‘all prisoners shall be bailable…’”

Another editorial written to the Assembly during its deliberations by “A Pennsylvanian” made similar arguments.¹⁴

Throughout all the newspaper battles, courtroom arguments, and legislative debates, there is only one possible oblique reference to the Penn-Meade trial, which is pretty striking since that trial too resulted in an arguably unconstitutional contempt fine. Oswald himself, offering his own account of the proceedings,¹⁵ may have identified the (unnamed) Penn when writing, “Many have been the victims to tyranny in the old world, who have been gaoled, fined, pilloried, and exposed under these star-chamber maneuvers.” He called “upon the fathers and protectors of the people to discountenance and punish the audacious and tyrannical invasions of our constitution in my case,” recognizing that the forefathers’ sufferings “have redounded at length to the deathless and immortal honor of the sufferers.” Of course, these descriptions might apply to many people, and Star Chamber had been abolished by Penn’s day.

Legacy

Oswald’s case appeared to establish that justices enjoyed a summary jurisdiction of contempt for which imprisonment could be directly ordered. Such imprisonment, because it was a punishment upon conviction, was not bailable. The very next spring, an indignant merchant published in the Federal Gazette his account of being held in contempt by a justice of the peace who refused bail.¹⁶ James Mitchell, accused of riot, grew exasperated at his initial appearances that the witnesses were being led yet Mitchell could not say anything in his own defense. After multiple objections, he stated the justice of the peace physically struck him and then ordered him to jail without bail.¹⁷ Interestingly, Mitchell reports he had sued the justice but the case had not come to trial yet because the justice kept complaining of “gout in the head” every time his case was called. The justice was Joseph Wharton, who appears in several of the early entries in the Prisoners for Trial docket.

The legislature gave no relief to Oswald, or to Mitchell, in their own day. But it did change the rule for contempt in 1819, requiring presentation of evidence to a jury for all out-of-court activities giving rise to a contempt of court.¹⁸

In sum, a case strikingly similar to the Penn-Meade trial, involving arguments about fundamental law and the power of courts to issue contempts and admit to bail, elicited not a single direct reference or even indirect allusion to Penn or his intentions in setting up the Frame of Government the way he did.

References

1
See Pauline Maier, Ratification: The People Debate the Constitution, 1787–1788 73–74 (2010).
2
The chronicle of correspondence between Oswald and Browne’s lawyer is found in the July 1, 1788, issue of the Gazetteer. Browne also complained about a note published in December 1786.
3
New Hampshire became the ninth state to ratify on June 22.
4
The procedural history of the case is laid out in Respublica v. Oswald, 1 U.S. 319 (1788).
5
See 3 Black. Comm. 287.
6
“Now, the present proceeding against the defendant is for a criminal offence; and, yet, if the attachment issues, the essential parts of this section must be defeated: for, in that case, the defendant cannot be tried by a jury.” 1 U.S. at 322–23.
7
Id. at 324. The opinion also pointedly articulates the nature of a reputational economy: “the injuries which are done to character and reputation seldom can be cured, and the most innocent man may in a moment be deprived of his good name, upon which, perhaps, he depends for all the prosperity, and all the happiness of his life. To what tribunal can he then resort? how shall he be tried, and by whom shall he be acquitted?”
8
The later legislative debates identify the surety as Mr. McClannaghan.
9
“It has been asserted that the court were about to compel Mr. Oswald to convict himself of the offence with which he is charged: but the fact is this, that it is incumbent upon the person who suggests the contempt to prove it by disinterested witnesses; and then, indeed, the defendant is allowed by his own oath to purge and acquit himself, in spite of all the testimony which can possibly be produced against him.” 1 U.S. at 328. “He may either answer, or not, as he pleases: if he does answer, his single oath, in his own favour, will countervail the oaths of a thousand witnesses; and if he does not answer, his silence corroborates the evidence which has been offered of the contempt, and the judgment of the court must necessarily follow.” Id.
10
Starred footnote from the case report: “The sentence on the point of imprisonment, was entered upon the record for the space of one month, without taking notice of the explanatory words used by the Court. At the expiration of the legal month, (28 days) Mr. Oswald demanded his discharge; but with this the Sheriff, who had heard the sentence pronounced, refused to comply, ’till he had consulted the Chief Justice. His Honor, remembering the meaning and words of the Court, told this officer, at first, that he was bound to detain his prisoner ’till the morning of the 15th of August; but, having shortly afterwards examined the record, he wrote to the Sheriff, that Mr. Oswald, agreeably to the entry there, was entitled to his discharge.”
11
Lewis’s argument was not universally accepted. He was challenged by a fellow member of the assembly who “did not perceive a reasonable ground for the distinction that was attempted; but thought with many other characters of superior information and abilities, that the law of the land was not, in fact, contra-distinguished from the judgment of his peers, but merely a diversity in the mode of expressing the same thing.” While the member would allow for summary process, he argued it had to be confined to in-court contempts, not “constructive” contempt established by an out-of-court publication. That indeed would become the statutory rule in Pennsylvania in 1819.
12
Independent Gazetteer, July 28, 1788.
13
Referencing only the suspension of habeas in times of war and unrest, the editorial concedes that “though he may in certain cases be detained in prison, it is only for his safekeeping, until trial—not for punishment.”
14
Independent Gazetteer, Sep. 27, 1788. (“All cases, I believe are bailable in Pennsylvania, except murder and treason. Colonel Oswald’s offence is deemed a criminal one—and our bill of rights declares that all criminal offenses shall be tried by a jury. . . . Colonel Oswald, being hurried into Court, prays for time to prepare for his defence, and offers large bail for his appearance at the next term—This was peremptorily refused.”
15
Pennsylvania Gazette, July 30, 1788.
16
Federal Gazette, Feb. 26, 1789.
17
“After he wrote my commitment I told him repeatedly to recollect that I had offered him security; it answered no purpose—it was his ipse dixit, and I was immediately consigned over to the care of Mr. Carlisle, the celebrated thief-catcher, who conducted me, at a public hour of the day, through some of the most public streets, and lodged me in the common jail of this city.”
18
See 5 Sm. I. 55.