People v. Freer — 1 Cai. 485

Majority

p. 603

The People against Freer.

Headnote

On a rule to show cause why an attachment should not go for a contempt in publishing things reflecting on the court, in a cause then pending, the defendant should appear in person on the day for showing cause. Denying any disrespectful intent is only an excuse, but no justification, if tho words published be, in the opinion of the court, contemptuous.

A Bule was granted last term, for the defendant to show cause, on the first day of this, why án attachment should not issue against him for a contempt in publishing some paragraphs in the Ulster Gazette, respecting the trial of Harry Croswell, for a libel on the president, then sub judias.

Hamilton,

on bringing in the affidavit of the defendant, (who did not himself appear in court,) moved for an enlargement of the rule till the next term, to consult with the defendant as to expunging some part of the matters introduced, as irrelevant. The idea of an intentional contempt was, he said, denied, but there were circumstances introduced, which counsel thought had better be omitted.

Hamilton

then read the affidavit, which did not deny the publication, but only went to negative any intentional contempt or disrespect towards either the court or its members.

Sanford, contra.

The publication being confessed, the

p. 604

court has only to pronounce whether it amounts to a contempt or not. The intention, giving it the utmost latitude, can be taken only in mitigation. It cannot make the publication less a contempt. A man cannot justify his conduct by saying I have offended, but did not mean to sin. The question is simply this, ought an attachment to go [*486] for this *publication ? In deciding this question the court is not to look beyond the words contained in the paper.

If the application had been to supply any new fact, and that fact had been made to appear' by affidavit, it would have been attended to; but we cannot enlarge a rule merely to give counsel an opportunity to consider of the propriety of expunging parts of an affidavit, which, we must consider, has been made according to the truth of the case.

Hamilton, in reply.

I cannot subscribe to the doctrine that the court will not look beyond the paper itself This is extending the doctrine of libels. I have heard, that tliere the truth may not be given in evidence, but never yet did I hear that another paper, or circumstance, may not be given in evidence to show the intent. So here, the motive of publication may surely be urged to prove that no contempt, in fact, existed.

The affidavit does not justify the publication. It is at best but an excuse. On such occasions as the present, the defendant ought to appear in person and answer. Let, therefore, the rule for an attachment be made absolute.

Rule for attachment absolute.