Majority
p. 266HENRY BERGH’S CASE. New York General Sessions, February, 1875, before Hon. John K. Hackett, Recorder.
Headnote
Contempt.—Grand Jury.—Attorney-General. —Delegation oe Power.—Deputy.At common law it was a contempt of court for a witness or bystander to communicate with the grand jury touching a complaint under examination before them, without their request.
To constitute such communication a contempt under the New York statute relative to criminal contempts (3 Rev. Stat. 378, § 10), the manner of making it must involve some contemptuous behavior committed during the sitting of the court, and at least tending to impair the respect due to it.
It seems that the word “ behavior ” in 3 JSev. Stat. 378, § 10, subd. 1, providing for the punishment of disorderly, contemptuous and insolent behavior committed during the sitting of a court of record, may embrace the delivery to the grand jury of an aspersive letter from an unofficial person; for the grand-jury room is an extension of the court-room, and its session is a part of the session of the court.
But where the president of the American Society for the Prevention of Cruelty to Animals, while holding written appointments from the Attorney-General of the state and the District-Attorney of the county, authorizing him to act as deputy of each of those officers in prosecuting complaints within the cognizance of the society, addressed a letter signed by him as president of the society and under its seal, to the grand jury, reviewing and expostulating against a recent decision by them, ignoring a bill founded on a •complaint for promoting a dog-fight which had been preferred by an agent of the society,—Reid, that such letter ought not to be construed as designed to interrupt the administration of justice, but rather as having been sent in an honest endeavor to discharge official duty; and that, so construed, it could not be deemed a contempt.
The powers of the Attorney-General of the state of New York, and his authority to appoint a deputy, discussed in argument.
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The Grand Jury of the county on February loth, 1875, made the following presentment:
New York, Feb. 15, 1875.
To his Honor, Recorder Hachett, presiding in Court of General Sessions :
Dear Sir : The accompanying communication was received from Mr. Henry Bergh, president of the American Society for the Prevention of Cruelty to Animals, February 10, inst. :
We, the members of the Grand Jury, consider the sending of such letter on the paid of Mr. Bergh as totally uncalled for, and reflecting upon our integrity as grand jurors. It has certainly never occurred within the experience of any of us to be called to account by a party to a criminal proceeding for what we may have done after calm deliberation and weighing of evidence. Thinking that some action in the matter, on the part of the court, would be right and proper in order to secure to future grand juries the respect which is their due, we leave the matter in the hands of the court, to be acted upon or not, as may be deemed proper.
Respectfully submitted,
Christian S. Delavan,
Foreman.
The American
Society eor the Prevention of [seal.] Cruelty to Animals,
Headquarters, Fourth Atenúe, cor. 22 d Street.
New York, Feb. 10, 1875.
To Christian S. Deletan, Fsq., Foreman of the Grand-Jury, for the city and county, at present sitting :
Sir: On the 10th of December last were found a number of disreputable men engaged in a dog-fight in a back basement at 12 Rivington-street. Two savage bull-dogs had been fighting a moment before the arrival of the officers ; and the respective owners of the animals
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were at the time handling the animals, their bands at the time being covered with blood, and the dogs terribly cut up by reason of the contest. The proprietor of one of the dogs and place where they fought was present, and the lease of- the vile premises is in the possession of this society. This fellow and some of his comrades have been proceeded against before; but, as in the present instance, they have escaped through means which I forbear to mention. On Monday, the 8th inst., this case came up before your jury, and, notwithstanding these facts were fully represented, as I believe, these notorious ruffians and keeper of one of the most disorderly houses in this or any other city, was relieved of all responsibility, and, in his own language, since uttered to one of our officers, “was honorably acquitted.” I think, on reflection, you will in a measure realize the discouragement I feel at finding my earnest and unselfish laborsin the public service diverted from their legitimate ends by this decision of the grand jury, the inevitable consequence of which will be to double the already onerous duties of this society, and go far to make dog and cock fighting, if not respectable and honorable, at least tolerable in this city. I do not mean this as a censure, for your associates acted doubtless conscientiously, but erroneously. The result, however, is the same. A scandalous stain upon our civilization has been condoned, and these execrable wretches led 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,
“Tour obedient servant,
“Hehky Bekgh, President ”
On February 16, Mr. Henry Bergh appeared voluntarily at the bar of the court with his counsel,—
Mbridge T. Gerry, who moved to quash the pre
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sentment, and that it, with, the letter, be stricken from the files of the court, upon affidavits showing the following facts:
On December 10, 1874, a warrant was duly issued and executed by the police, accompanied by officers of the American Society for the Prevention of Cruelty to Animals, against one Jefferson Carpenter, proprietor of the premises No. 12 Rivington-street, for using the same for the purpose of fighting dogs thereon, in violation of the statute.
Upon entering the premises, the officers found in the back basement a crowd of men surrounding two dogs, who were lying panting on the floor in the middle of the room, which was marked up in divisions, and part of which was scratched and torn up from the recent conflict. The animals were bleeding from various fresh bites on their bodies, and the arms and shirt sleeves of William Kelly, a notorious dog-fighter, who was holding one of them, was covered with fresh blood. At either end of the room stood pails with sponges and bloody soap-suds in them. In fact, to use the language of the spectators who met the officers as they were coming in, “the first round was just over.” In the presence of the spectators and officers, and in full view of the scene just described, Jefferson Carpenter announced and proclaimed that “he was proprietor of the premises.”
Carpenter was arrested and held to bail upon the complaint of Alonzo S. Evans, one of the officers of the society, who knew all about him, and procured from his landlord the lease to him of the premises in question.
Early in February, 1875, Henry Bergh, president of the society, called on the district-attorney, and laid the case upon the facts before one of his assistants, who advised that the facts were sufficient to warrant an indictment, and ordered the papers to be sent before the
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grand jury. Mr. Bergli at the time was authorized by the attorney-gen eral of the State to appear and act for the people of this State as counsel in all actions or prosecutions instituted by the American Society for the Prevention of Cruelty to Animals, its officers or agents, or in which they are 'complainants, in which the attorney-general has a right to appear as represent ing the people, and also held a like authorization from the district-attorney of this county.
On February 8, 1875, the complaint went before the grand jury. Upon the back of it were indorsed the names of six witnesses for the people. There were eight present, including the complainant, in the witness-room, all of whom sent in their names to the grand jury. About noon the grand jury called before them two of the witnesses—Hartfield, who saw the scene described, and Roundsman Folk, who simply executed the warrant and arrested the parties. The examination of these two witnesses did not last fifteen minutes. Immediately thereafter the grand jury dismissed the remaining witnesses, without ever calling the complainant Evans, who was prepared and ready to substantiate his complaint, and had notified the grand jury of his presence. Shortly thereafter the grand jury dismissed the complaint and adjourned for the day. The next morning the prisoner, Carpenter, triumphantly announced that “the grand jury had not only honorably, but unanimously discharged him.” Subsequent to this the grand jury came into court with the presentment and letter in question.
I. This presentment was made by the grand jury in • order to justify their own misconduct in dismissing the complaint against Carpenter. (1.) They omitted to call the complainant Evans, whose sworn complaint was before them, and who stood ready with evidence to substantiate it. (2.) They called only two out of eight witnesses present for the people, six of whom
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were so named on the complaint before them. (3.) They were guilty' of a gross misdemeanor in dismissing the complaint on this hasty and partial examination of the facts (Astry on Grand Juries, 11 ; 1 Arehih. G?\ Pr. & PI., by Waterman, 322, note ; Somers on Grand Juries, 28-31; Dawson’s Case, 13 Howell St. Tr., 455). (4.) And if these facts had been made known to the court before their discharge, they could have been punished for their misconduct (People v. Naughton, 7 Abb. Pr. N. S., 425-6; Hale P. G., 156, as to the proper punishment).
II. The presentment is false in fact besides being evasive. (1.) It states that Mr. Bergh was a party to-the proceeding while the minutes of the grand jury prove the reverse. (2) It speaks of what the grand jury may have done after “calm deliberation”' and “weighing of evidence.” All the time they gave to the case was fifteen minutes, and the complaint was dismissed very shortly thereafter on the same day.
III. The motion is proper, because a presentment is a record equally with an indictment (4 Bl. Com., 301; Hawlc. P. G., ch. 25, § 1; Bouvier Lexicon, in verbo), and differs from the latter in that it states the facts and leaves it to the court to take action thereon or not. Hence, like an indictment, it may be quashed for fault or irregularity in the proceeding leading to it (People v. Hnlbut, 4 Ben., 133 ).
The recorder directed the motion to stand over until after Mr. Bergh hadD explained the apparent contempt of sending the letter. He directed the following question to be put to Mr. Bergh :—
“Did you write, or cause to be written, and send or cause to be sent, the annexed original letter to the grand jury of this court at this term, with the intention that the said letter should reach the said grand jury V’
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Mr. Bergh replied, “ I did, in view of the facts and under the circumstances stated and referred to in the papers which I now submit and hand to the court ” (handing up the papers on the motion to quash).
The recorder directed the entry of a rule requiring Mr. Bergh to show cause why he should not be punished for a contempt of court.
Mbridge T. Gerry, in behalf of Henry Bergh, showed ■cause.
First, as to the law of contempts.
I. At common law, criminal contempts were of two kinds. (1.) Physical, consisting of acts of misconduct perpetrated by a person in immediate view and presence ■of the court; such as a breach of the peace, insolence to it or its officers, standing mute when arraigned to plead (Amos’ Ruins of Tine, 42 ; Jacob’s Law Dict. Mute; ” 4 Bl. Com., 326). (2.) Constructive, being acts committed without the immediate view and presence of the court, calculated to obstruct its administration of justice, or to impair the respect due to it or its officers ; such as speaking disrespectfully of a grand jury (Isaac Van Hook’s Case, 3 City Hall Rec., 64, A. D. 1818), publishing in a newspaper defamatory articles concerning a grand jury (Matter of Spooner, 5 Id., 109, A. I). 1820), or sending a letter to a grand jury improperly to influence their j udgment in a matter pending or about to pend before them (Commonwealth v. Crans, 3 Penn. Law Jour., 442 , A. D. 1844), or sending a threatening letter to a prosecutor (Matter of Strong, 5 City Hall Rec., 8, A. D. 1820). (a.) The odious court of star chamber owed its power chiefly to its abusive exercise of process for actual or constructive contempts (Burn on the Star Chamber, 94,114 ; Star Chamber Cases, 24, 46). Indeed, the threat (recorded by Shakespeare, “Merry Wives,” act I, scene 1), “I will make a star chamber case of it,” was no idle
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menace when applied to a person who ventured to criticise the action of the court. (5.) And the common law in regard to these offenses prevailed in this State prior to the Revised Statutes (Cases cited supra).
II. But in 1830 the Revised Statutes abolished the whole common law of contempts, (l.j They enacted (2 Rev. Stat., 278, §10), that “every court of record shall have power to punish as for a criminal contempt, persons guilty of either of the following acts, and no others: (a.) Disorderly, contemptuous, or insolent behavior, committed during its sitting, in immediate view and presence, and directly tending to interrupt its proceedings, or to impair the respect due to its authority. (6.) Any breach of the peace, noise or other disturbance, directly tending to interrupt its proceedings, (c.) Wilful disobedience of any process, &c. (/I.) Wilful re sistance to process, &c. (e.) Refusal to be sworn, &c. (/.) Publication of false report of proceedings.” (2.) This enactment did away with all constructive con-tempts, and the revisers in their notes on this section say (Revisers’ Notes, 5 Edni. Stat. at L., 684-5, original note to §§ 10 to 15): “ In preparing the preceding sections, the revisers have not designed to take from the courts of justice any power which was essential to the maintenance of their dignity, or the enforement of their mandates. But they have herein pursued their general plan, to define and limit undefined powers wherever it was possible, as well for the information as the protection of the citizen; and they have supposed that their declaration and enumeration in a legislative act, would frequently prevent the necessity of resorting to them, and would strengthen the hands of the courts whenever their exercise became indispensable, by justifying an appeal to the written law. A solid and obvious distinction exists between contempts, strictly such, and those offenses which go by that name, but which are punished as contempts, only, for the purpose
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of enforcing some civil remedy. ‘ This distinction has been observed, and the former are intended to be included in the preceding sections. The latter class are-treated of subsequently, among miscellaneous proceedings in civil cases. In the 4th part, many offenses which are now punished as contempts, and which are omitted in the preceding sections, will be included among misdemeanors. It can not be necessary at this ‘day, to urge any reasons for substituting the trial by jury in all possible cases, instead of a trial by an offended tribunal.” (3.) And tliey made the attempting - improperly to influence a juror, which was previously, as shown, a constructive contempt, a statutory misdemeanor, triable and punishable as such (2 Rev. Slat., 693, §16).
III. The sending of the letter by Mr. Bergli was not an offense under the Revised Statutes. (1.) He did nothing in the “ immediate view and presence of the court.” These words mean ocular vision and physical presence. They are equivalent to the old common-law expression “in the face of the court ” (2 Bacon Abr. “Courts,” 633). The word “immediate” is the opposite of “constructive.” (2.) In Hackley’s Case-( 24 N. Y., 79 ), the witness refused to answer at the bar of the court, and besides willfuly resisted the process of subpoena with which he had been served. (3.) The grand jury in the present case had dismissed the complaint about which the letter was written. They had no power to reconsider their action, and the case was not pending, and could not again come before them (Reg. v. Humphreys, Carr. & M., 601; Reg v. Austin, 4 Cox Cr. Cas., 386).
Second, as to Mr. Bergh’s right to send the letter under the power derived from the attorney -general and the district-attorney.
I. The attorney-general, at common law, was the chief legal representative of the sovereign in the courts ;
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and it was peculiarly Ms province and duty to appear for, and prosecute in behalf of, the crown in matters criminal as well as in certain matters civil. (1.) His office is one of great antiquity, (a.) Mr. Foss says (3 Foss's Judges of England, 44): “ The designation ‘ Ail rrnaius Regis ’ was certainly adopted before 6. Edward 1. (A. D. 1278), inasmuch as there are two instances in that year of such an officer appearing, without any uam.e being mentioned.” (b.) Mr. Reeves says (4 Reeces’ Hist. Eng. Law, ch. 25, 122): “The king’s attorney was the only law officer of the crown of that kind till the reign of Edward IV.” And he states the first patent of appointment which can be found, in 1472. (2.) His very place in court, upon any special matters of a criminal nature wherein his attendance was required, was “ under the judges on the left hand of the clerk ” (1 Jamb’s Law Diet., 174, in verbo). (3.) He represents the sovereign, in whose name all criminal process issue ; and his power to prosecute all criminal offenses is unquestionable at common law (3 Blades. Com., 27; Bur. Law Biot., in verbo). (4.) He had the peculiar power to institute criminal proceedings on his own information for misdemeanors, especially those affecting the public at large ; and was the sole judge of what public misdemeanors he would prosecute (4 Bladest. Com., 312; 2 Woodeson Law Led., 562; 1 Ghitty Gr. L., 844-5, enumerating his powers). (5.) At no time was his power in this respect ever attempted to be invaded, except on two occasions, (a.) The first of these was, says Mr. Ghitty (1 Or. L., 844), “ when the court of star chamber, in which the members were the sole judges of the law, the fact and the penalty, was used in the reign of Henry VII., by Empson and Dudley, his corrupt and favorite ministers, as the engine of oppression to the subject, and of unjust emolument to the crown, {b,) When this court' of star chamber was abolished, in 1640 (by act of 15 Car., 1
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ch. 10), the ancient power of the attorney-general revived; and this especial power of prosecuting for misdemeanors seems to have been further confirmed to him in 1692, by statute (4 and 5 Will. & Mary, cb. 18), which checked the abuse then existing of private men laying their complaints before the court as the king’s complainants, (c.) Wilkes’ Case (12 How. Si. Tr., 1128; S. C., 19 Id., 1102-4), was the second attempt to interfere with this power of the attorney-general. There the solicitor-general attempted to usurp his functions and file an information for libel. On objection made, Lord Mastsfijsld held that the attorney-general represented the crown, except where the crown appointed other officers to represent it, and that no officer could usurp the functions of the attorney-general, (d.) This last case was in 1768. In 1770 an attempt was made in parliament, under color of revising the act of 4 and 5 William & Mary referred to, to deprive the attorney-general of his power. The attempt failed by a vote of 164 in the negative to 72 affirmative (16 Hansard Pari. Hist., 1127-1211, containing the debate in full). (6.) Hence, as the great law officer of the sovereign, says Mr. Chitty, ‘‘the conduct, the continuance, the suspension, and the dropping the prosecution are left entirely to his discretion; . . . his power remains as at common law, without diminution, and without control” (1 Chitty Or. I., 846; 1 Hawk. PI. Or., Book 2, ch. 26, § 6). (7.) So absolute in this respect is his power, that he may nolle pros, an indictment without consulting any one, and the court will not interfere with him (Regina v. Allen, l Best & S, 850 ; S. C., 9 Cox Cr. Cas., 120 ; S. C., 8 Jurist, N. S., 230; S. C., 5 Law Times, N. S., 636 ; People v. McLeod, 1 Hill., 405 ; S. C., 25 Wend., 483 , considered infra).
II. During the existence of this State as a province of Great Britain, there was always an officer known as
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the attorney-general, representing the sovereign, and possessing the common-law powers referred to. (1.) The journal of the legislative council shows this to have been the case from 1691 to 1775. (2 Jour. Leg. Council, 2007, index in verbo). (2.) Thus, in 1691 Cl.' Jour. Gen. Assembly, 12), it was voted nem. con., “That whosoever advised his excellency to send the attorney-general out of this province during the sessions of this assembly, were obstructors of their majesties’ interest and the good settlement of this government.” His excellency said, in reply, he had pursued his instructions, and did not find it to be the duty of the attorney-general to attend this house ; upon which the speaker produced an order of council dated 16th of April (1 Jour. Leg. Council, 3), declaring it was the duty of the attorney-general to attend this house. (3). In 1691, April 24, Mr. Farewell was appointed “ to doe the office of attorney-general to the house of representatives ” (1 Jour. Leg. Council, 5). (4.) In 17t 0 (1 Jour. Leg. Council, 152), while the Earl of Bellemont was governor, Colonel Cortland, as chairman of a committee in the council, reported as to a certain bill, “That they are informed that his most Sacred Majesty hath been so gracious to this province as to appoint a chief justice and an attorney-generall, gentlemen educated and experienced in the law, who are dayly expected, for which reason they are of opinion that this bill be deferred until their arrivall.” (5 ) Shortly after, in 1701 {Jour. Leg. Council, 158), the lieutenant-governor reported that “his majesty had, out of his own exchequer, ... for the better administration of justice among you, settled £150 a year upon an attorney-general.” (6.) Thirty years later, in 1734, the attorney-general was ordered (1 Jour. Leg. Council, 642) to prosecute Zenger for publishing a seditious newspaper. He did this upon his own information (17 How. St. Tr., 679), and appeared and
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tried the case in person. Mr. Hamilton appeared and defended Zenger, who was acquitted. (7.) In .1743 (2 Jour. Leg. Council, 826), Richard Bradléy Esq., “ his majestie’s attorney -general for this province,” appeared before the council and objected to the passage of a bill to regulate prosecutions by information. He was heard (827), with Mr. Murray, of counsel with him, and the bill was defeated. (8). In 1762 (2 Jour. Leg. Council, 1488), governor Robert Monckton sent the following message to the provincial council: “ Gentlemen: No provision being made for defraying any expense, however necessary, in the carrying on prosecutions at the suit of the crown, the publiek justice is in danger of suffering, and in some instances may be defeated. At the same time, I can not avoid observing that his majesty’s attorney-general, the only officer who .prosecutes for the crown, after the most able and faithful discharge of his trust, has no recompense adequate to services so essential to the community, the law not giving any costs in criminal cases. I therefore recommend these matters to your consideration, not doubting but you will provide for them amply and effeci ually.
:i Robert Monckton.
“ Port George, New York, 24th of November, 1762.”
III. The powers belonging to the office of attorney-general in England, at common law, are still possessed by the attorney-general of the State of New York • except where the same have been modiiied by statute. (1.) As already shown, the office existed eo nomine, as a well recognized common-law office during the entire time of the colonial government of this State. (2.) The Constitution of 1777 (1 Rev. Slat, § 33, 1 ed., 3-1), while not naming this officer, evidently includes him in the category of those to be appointed by the council of appointment which it created.' It pursued a similar course in regard to the supreme court; omit
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ting, as Mr. Graham says (Grail. on Jur., 140-1), “to define its powers, but regarding it as a court of well-established common law jurisdiction.” (3.) Neither of the subsequent constitutions of this State attempted to define his powers, while they each recognize his office. Thus, by the Constitution of 1822 (1 Rev. Stat., 1 ed., 45, art. 4, § 6), he was appointed by the legislature. By the Constitution of 1846 (art. 5, § 1), he is to be elected by the people every two years. (4.) Now, under the colonial government both the attorney-general and chief justice of the supreme court held commissions from the crown (Zenger’s Trial, 17 Hoto ell St. Tr., 683, where one is given at length), “as emanating from the crown, at that time the source and fountain of justice both in England and in the then existing colony of New York, coupled with the fact that they were found in actual existence and force;” and that under them they were “ exercising unquestioned powers, it is evident that, by common consent, the authority either of common law or of legislative-enactment was regarded as belonging to them.” (5.) The revisers, in presenting the Revised Statutes for enactment in 1830, say, in their note relative to the article on the attorney-general (see Revisers’ Notes, 5 Bdm. Stat. at L., 523) : “ This chapter contains, .amongst other matters, . . . the act concerning actions of ejectment commenced by the people of the State, and certain duties of the attorney-general. It will be seen that this chapter by no means embraces ■all the duties of the officers included in the executive class. Many of those duties are so intimately connected with the particular subjects to which they relate, that the attempt to treat them separately, it was found, would lead to great obscurity or useless repetition.” (6.) Now, prior to the passage of the Revised Statutes, in 1796 (3 Greenl. L., 265, ch. 8), the legislature passed an act providing for the appointment by
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the executive, by commission, of “ a proper person for each of the districts hereinafter mentioned, each of whom shall be of the degree of counsel in the supreme court, and resident in such district, to the office of assistant attorney-general, hereby created.” It was made the duty of these to attend the courts of oyer and terminer and jail delivery and general sessions of the peace ; “and that, except with respect to prosecutions at the courts of oyer and terminer and jail delivery in the city and county of New York, any regulation or establishment of the office of attorney-general, whereby it may be supposed his duty to manage and conduct all public prosecutions at the courts of oyer and terminer and jail delivery, shall, after the passage of this act, cease.” The act further provided for the calling on the attorney-general to prosecute, by the governor or justice of the supreme court, for the oath and salary of these assistants, and required the latter to aid the attorney-general in all prosecutions when called on to do so. (7.) The' Revised Statutes provide (1 Lev. Stai., 179, § 1), “It shall be the duty of the-attorney-general to prosecute and defend all actions, in the event in which the people of this State shall be interested.” (a.) This statute, as shown by the notes of the revisers, is simply declaratory of a part of the duty of the attorney-general, (b.) It may be urged with considerable plausibility, that the word “action” here is broad enough to include both civil and criminal ' proceedings. It is defined (Laws of 1849, oh. 438, § 5, 614) to be “an ordinary proceeding in a court of justice, by which a party prosecutes another party for the enforcement or protection of aright, the redress or prevention of a wrong, or the punishment ofapublie offense.” (cl) The statute last quoted proceeds to define “actions ” as being of two kinds—civil and criminal; and then declares “ a criminal action is prosecuted by the people of the state as a party, against a person charged
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with a public offense, for the punishment thereof.” (d.) Now, although the code of procedure has no application to the criminal law of procedure, as it embraces enactments only as to civil procedure ; yet these definitions are not so restricted, nor are they limited to the matters embraced in that act. (8.) But it is-really immaterial to consider whether, under this statute, power is given to the attornéy-general to-prosecute in all criminal proceedings; because, as-shown, he had this power at common law, and that power has not been taken away, except inferentially in certain cases, (a.) In 1841, the supreme court, in. People v. McLeod ( 1 Hill, 377 ; S. C., 25 Wend., 483 ), refused to compel the attorney-general to nolle pros* an indictment. - (5.) Justice Cowex said {at p. 405) “At common law the attorney-general alone possessed this power, and might, under such precautions as he-felt it his duty to adopt, discontinue a criminal prosecution in that form at any time before verdict. It probably exists unimpaired in the attorney-general to-this day ; and it has been by several statutes delegated to district attorneys, who now represent the attorney-general in nearly everything pertaining to indictments- and other criminal proceedings local to their respective counties.” (c.) Then he goes on to say that the legislature, finding the power in so many hands, and fearing its abuse, passed a statute (2 Rev. Stat., 728, § 54) forbidding district attorneys to enter a nolle pros. without leave of the court. (9.) True, the statute (1 Ren. Stat., 180, § 5) makes it the duty of the attorney-general to attend certain courts of oyer and terminer- and jail delivery, and prosecute there for the people on the requisition of the governor or of a justice of the-supreme court. But this simply imposes on him a duty which he must perform when so required ; just as other sections of the same statute compel him to» prosecute on the requisition of certain other officials.
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(10.) So, his power to prosecute by information for certain misdemeanors has been substantially done, away with by the constitutional proviso (Art. I., § 6) requiring an indictment. (11.) True, he has the power now to file certain civil informations, e. g., a quo warranto; but in this he exercises a discretionary power which he had at common law, of which he was deprived in 1788 (1 R. L., 108), but which was restored to him by the revised statutes in 1830. (People ex rel. Peabody v. Attorney-General, 13 How. Pr., 179 .)
IV. In view of these powers of the attorney-general, his delegation of authority to Mr. Bergh was alike lawful and proper. (1.) He had the power at common law to appoint clerks and deputies under him ; and this, without impairing his official position, because the patent of his office recognized the privilege, (a.) Thus, in the first recorded patent of - attorney-general to William Hnsee, in 11 Edward IV., the language is i( attor natíos generalis in Anglia, cum potestcote deputandi clericos ae officiarios sub se in gualitercunque curia de recordoP (4 Reeves' Hist. Eng. Law, p. 123, cli. 25). (b.) “ Officiarius" is a term used in the canon law to designate the person to whom the bishop commits the charge of his jurisdiction, and conveys more fully than any equivalent legal term the idea of deputy with full power (Bouv. Law Lid., in verbo ; Woodeson’ s Lectures, 30, 305 / Merlin Rep. de Jurisp., in verbo). (2.) He exercised this power and privilege, and his right so to do lias never before been questioned. (a.) Lord Coke says (4 Inst, 101) of the clerk of the outlawries, in the court of Common Pleas, “ this belongs to the office of the attorney-g-eneral," who exercised it by deputy.” (5.) When Sir Samuel Romilly, in 1818, attacked the attorney-general in the House of Commons for misconduct in certain prosecutions, although it is stated he was represented on those occasions by Mr. Topping, no objection on that ground was
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preferred. (Dodsley Ann. Meg. for 1818,4.) (c.) In Regina v.Gardner (1 Car. and Kir., 628), in 1845, 1 where the post-office prosecuted a prisoner for stealing a marked letter with money, Mr. Whately claimed the right to reply on the ground that lie represented the attorney-general. It was objected that the prosecution was not instituted, by the crown, and the prisoner’s -counsel asked that the fiat of the attorney-general might be produced. The court said, “ There is no such fiat ever given. If this is a prosecution by the attorney-general, those who represent him, though not usually counsel for the crown, have the right to reply.” (3.) Under our state government he is an executive officer and classed as such in the revised statutes (M. 8., 96, § 1) ; which fact, although it can not be construed into a definition of his power, is still significant as indicating the nature of his office, (a.) The rule which forbids the delegation of powers by an official, applies only to judicial and ministerial—not to executive officers. (7 Bacon Abr., 317, “.Offices and Officers State v. City of Buffalo, 2 Hill, 438 ). (b.) A further illustration of the distinction may be gleaned from a reference to the other executive officers, named in the same statute with the attorney-general: e. g., the doorkeeper of the executive chamber, who might with as much propriety be held unable to appoint a deputy, even temporarily. (4.) Observe, that the statutes against bribery and duelling, specifically require (1 Mev. Slat., 180, §§ 8, 9) that the attorney-general shall “attendin person” to prosecute ; while in the preceding sections there is no such personal requisition. (5.) But the statute (1 Laws' 1847, ch. 288, § 1; 3 Bdm. Stat. at Large, 37) authorizes him to appoint a deputy. True, this act looks more to providing for the salary of the deputy than to his powers ; but it is still-valuable as recognizing the fact that the office is one the powers of which may be deputed. (6.) So, he is authorized by
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another statute {Laws of 1849, ch. 357, § 2) to retain counsel in prosecuting and defending suits in the supreme court, in which the people are a party, or are interested ; but this act also looks more to the compensation of such counsel than to their duties. Indeed, even during the colonial government of this state, the attorney-general appeared with counsel (2 Jour. Leg. Council, 26/ see also Zenger’s case, 12 How. St. Tr., supra), independent of any statute authorizing their retainer. (7.) The letter of authorization is sufficient It is not necessary that the cases should, be actually pending or specifically named. The authority is not a general one to commence proceedings, but to prosecute when commenced. Hence, the case of Board of Excise v. Sackrider (35 N. Y. R., 154) does not apply. (8.) The attorney-general and the district attorney, in making this appointment, simply furthered the will and intention of the people of this state, {a.) The people created this society as a special corporation, “to enforce all laws which are now or may hereafter be enacted for the protection of dumb animals.” (1 Laws of 1866, ch. 469, § 7) (b.) They intended that the society should have every possible assistance in its humane work, and in the act cited require all the police in the state to aid it.
V. The district-attorney had an equal right to authorize Mr. Bergh to represent him in these cases. (1.) He had by statute a right to go before the grand jury and aid in examining the witnesses therein (2 Lev. Stat., 725, § 33). (2.) His assistants have an equal right (U. 8. Reed, 2 Blatch. C. C., 455, per Nelsox, J).
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
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with the grand jury without its request; but to be a contempt under the statute, the communication 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. 7., 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 1 forbear to mention,” addressed to any officer of the court during its sitting, could not be made worse for contemptuous and insolent 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
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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 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 can not 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 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
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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 óf justice. The supreme court has held (Weeks v. Smith, 3 Abb. Br.j 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 suavit&r in modo than the fortiter in re ; and to remember an old saying, “ that he who impugns motives, should always rigidly examine his own.”
Let the rule be discharged, and Mr. Henry Bergh stands exonerated, under his explanatory oath, from, any intentional contempt.