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Entered, according to act of Congress, in the year eighteen hundred and seventy-one,
By WEED, PARSONS AND COMPANY,
THE ALBANY LAW JOURNAL,
A WEEKLY RECORD OF THE LAW AND THE LAWYERS.
The Albany Law Journal.
other hand, such assaults tend to degrade the bench in public estimation -- an apparently anomalous state of affairs, but nevertheless real.
We say a slandered judge has no adequate remedy ALBANY, JANUARY 7, 1871.
against the slanderer, in a great majority of cases, because the slander is usually uttered in such a man
ner, and at such a time, that it is not the court, but NEWSPAPER CONTEMPTS OF COURT,
the judge, who is aggrieved. If a false and malicious One of the most disheartening signs of the times is
report is published, pending an action or proceeding, the reckless and intemperate spirit of the newspaper
it is a contempt of court, and is amenable to substanpress. Liberty and free speech are good things, cer
tial and effectual punishment. This was settled in tainly, but liberty is not license, and free speech is
Respublica v. Oswald, 1 Dallas, 319, A. D. 1788, a case not irresponsible abuse. How different is the con
of historic celebrity, in which Chief Justice McKean dition of the newspaper press from what it was for
thus remarks on the nature of newspaper libels: “It generations at common law, when it labored under
is in vain to object, that those who know him will the star chamber doctrine, that falsehood was no more
disregard the slander, since the wide circulation of libelous than truth, and punishment followed pub- public prints must render it impracticable to apply lication, without reference to the truth or falsity of
the antidote as far as the poison has been extended. the publication; much on the same principle that ac- Nor can it be fairly said that the same opportunity is tuated the puritan mother, who whipped all her chil- given to vindicate which has been employed to defame dren every Saturday night, without reference to their
him, for many will read the charge who may never conduct during the week, but purely “for the good
see the answer, and while the object of accusation is of their souls.” So powerful have newspapers be- publicly pointed at, the malicious and malignant come, especially during the last quarter of a century, author rests in the dishonorable security of an anonythat they seem to have acquired an unrebuked license
mous signature. Where much has been said, someof slander, as a man who is sick with the small-pox thing will be believed.” This case, and the case of is sure to have the street all to himself, if he chooses
Hollingsworth v. Duane, establish the doctrine that to walk abroad, and the denizens know that he is
any publication, pending a suit, reflecting upon the coming.
court, the jury, the parties, the officers of the court, We have little objection to the political slanders the counsel, etc., with reference to the suit, or tendthat the party press heap on one another's candidates, ing to influence the decision of the controversy, is a and on editors of opposite faith. If a man wants to contempt of the court, and punishable by attachfind out what an unredeemed villain he is, let him ment." “If then," continues Chief Justice McKean, stand for political office. Next to a "revival meet- in Respublica v. Oswald, “the liberty of the press is ing,” it is the most effectual means of curing one of regulated by any just principle, there can be little self-conceit. But, after all, such attacks seldom do doubt that he who attempts to raise a prejudice against more than to wound the feelings of the person as- his antagonist, in the minds of those that must ultisailed. Those of his party, of course, give them no mately determine the dispute between them; who, credence, and those of the opposite party generally for that purpose, represents himself as a persecuted know how little they are worth. It is only when the man, and asserts that his judges are influenced by press attack a class of men who ask no favors of them passion and prejudice, — willfully seeks to corrupt the or the public, who are expected to be above the reach source and to dishonor the administration of justice.” of party influence and rancor, and who ought to be But unless the publication is made pending the trial, in reality, as in theory, independent of and exempt it is not a contempt of court, but merely a contempt from it, that we, as legal journalists, feel called on to of the judge, and the judge, having no authority to coinplain. It is when the press slander the judges wield the terrors of the court for the punishment of that we complain. It is a most cowardly crime, be- the wrong against him as an individual, is reduced to cause, on the one hand, the attacked cannot, without an action of libel or to silence. The result is, that losing their self-respect and the esteem of the com- he must be silent. In the case of P. H. Darby, 1824, munity, reply to such assaults, and because, on the decided in the supreme court of Tennessee, one of
the judges, in holding the power of the particular assailed by a leading New York city newspaper, in court to punish for contempt to be independent of an article half a column in length, for granting an all other tribunals, uses the following language, order in a certain case, when, in fact, he never made which is applicable to the magistrate who should the order, nor any order or decision in the case, and undertake to protect himself from the slanders of the the case was never before him in any form. press by private actions for libel: “The insulted judge But the abuse of newspapers takes its most virulent must go to law before some other tribunal, with every and dangerous form against judges, when, to an one whom his decisions offend. He must quit his ignorance of the law in general and of the facts of business in court, and leave the bench, and travel to the case in particular, is added the rancor of political inferior courts, and give his attendance upon them, partisanship. One of the most remarkable instances noglecting, in the mean time, the duties which belong of this combination that has ever come to our notice to his office. * * * No one would be afraid to offend ; was contained in an attack, by an influential newsthe delay of punishment, and the numerous chances paper of the city of New York, on an eminent and of escaping it, would disarm the expected punish- upright judge of the federal bench. The cause of ment of all its terrors. Nor would the insulted court offense was this a man had falsely registered himever think of the attempt to cause the intliction of self as a voter, and thus incurred the penalties of punishment under so many discouragements. No
the act of congress; there was no doubt of the comsooner does he get through one set of controversies, mission of the offense; his counsel demurred to the than some other dissatisfied suitor assails him with indictment, on the ground of the invalidity and equal outrage, and involves him in others. He must unconstitutionality of the law; the demurrer was go again, and forever, through the same routine of overruled, and judgment was passed and executed, vexation and trouble.” Well may a judge shrink without giving him the privilege of pleading. Wherefrom “the perpetual conflicts which he has to main
upon, this newspaper, acknowledging in terms the tain jn vindication of opinions in which he has no legality of the judge's practice, and admitting that individual interest, and the unceasing calumnies to the only effect of pleading over would have been to which he is exposed for the protection of others."
cause “twelve hours' delay, and a little additional He may well say, in the words of Shakespeare, slightly labor,” publishes a column and a half of abuse, entialtered, “uneasy lies the head that wears the wig."
tled “An Unjust Judge,” and comparing the judge The newspapers, it seems to us, meanly and ungen
to Jeffries, Scroggs, and Buller, and all based on erously avail themselves of their technical privilege what? — why, the judge's “ petulance,” in performto convert what would ordinarily be a contempt of ing his clear duty. Assuming that the judge was court into a mere personal wrong against the magis- “petulant,” we think the circumstances went far to trate, and presume on the magistrate's leniency, or
excuse it, and that more “petulance" in similar cases dread of litigation, as a means of escape from respon
on the part of the bench would do much to purify sibility. It is, of course, much safer to libel an indi.
the politics of the great metropolis. vidual who despises the libeler, or is too busy to pursue
To reconcile the freedom of the press with the him, than to exhibit toward the same individual, in
immunity of individuals from aspersion has always his character of magistrate in court, a contempt which
been one of the most difficult problems of modern he would feel bound in self-respect and in respect for society. The terrible power of the press has always the public to punish.
been recognized. As of those who control powerful Now, much of the abuse of judges in the news
and dangerous physical engines extraordinary care papers, arises from ignorance; sometimes ignorance
is demanded, so from those who direct an agency so of the law, and sometimes ignorance of the facts in
potent in the dissemination of good or evil reports as the particular case which excites the animadversion.
the newspaper press the most vigilant discrimination No newspaper that does not employ a reporter with a
should be required. We make laws to control the legal education, ever reports a case of any intricacy management of railroad trains, the vending of poisons, without making lunders that shake the sides of the
the storing of explosive agents, and the care of perwhole legal profession. Only the other day, one of
sons afflicted with infectious diseases; but the newsthe ablest newspapers in northern New York spoke paper, like some superhuman and indomitable monof an order to show cause why a mandamus should
ster, seems at liberty to crush, to poison, to mangle, not issue, as being returnable before Messrs. Hand
and to infect, at its own wild will. This is not the true & Hale, at Albany; the truth being, that those gentle liberty of the press. “The true liberty of the press,” men were of counsel for the defendants. Judges are
said Chief Justice McKean, “is amply secured by frequently abused for the performance of imperative permitting every man to publish his opinions; but it duties, such as issuing a writ of habeas corpus, which
is due to the peace and dignity of society to inquire they could not refuse without rendering themselves into the motives of such publications, and to distinliable to a pecuniary fine. If a person accused of guish between those which are meant for use and crime is admitted to bail, the local newspaper imme- reformation, and with an eye solely to the public diately denounces the judge, if he happen to be of good, and those which are intended merely to delude opposite politics. Such are some of the misrepresent and defame. To the latter description, it is impossiations occasioned by ignorance of the law. As an ble that any good government should afford protecexample of misrepresentation arising from ignorance tion and immunity.” It was well said, in the celoof the facts of the case, we may cite an instance brated case of People v. Croswell, 3 Johns. Cas. 350, reported to us by one of the purest and ablest judges by the counsel for the people, that “the law has wisely of this State, who assures us that he was once grossly | balanced between extremes upon this subject, and has
TWO IMPORTANT DECISIONS.
allowed all reasonable and useful freedom of inquiry,
WHERE SIGNATURE TO NEGOTIABLE INwithout granting the pernicious indulgence to traduce
STRUMENT IS OBTAINED BY FRAUD.
But, after all, it may be asked, What do you pro- character. The offer was overruled, and the defend-
to part such journalism; all that its disciples can hope to do with their property on
the faith of his sigis to render it unpopular.
nature; and in ignorance of the true state of facts.
But, while this is a rule of great convenience and The death of James White, Esq., of Belfast, Maine, 1s
propriety, there are and must be some limits to its announced. Mr. White was one of the oldest lawyers in
application, some defenses as to which even a bona Maine.
fide purchaser purchases at his peril. The familiar The Cardiff giant has been seized under an attachment
case of a note declared void by statute, as in the case for debt. An exchange very naturally wonders “how
of usury, furnishes an illustration. During the period any man, woman, sheriff, or devil could have an attach- when, according to the statute law of this state, a bona ment for that callous monster.”
fide holder for value, and before maturity, was pro