Entered, according to act of Congress, in the year eighteen hundred and seventy-one, BY WEED, PARSONS AND COMPANY, In the office of the Librarian of Congress, at Washington. APR 2 0 1966 THE ALBANY LAW JOURNAL, A WEEKLY RECORD OF THE LAW AND THE LAWYERS. The Albany Law Journal. ALBANY, JANUARY 7, 1871. NEWSPAPER CONTEMPTS OF COURT. One of the most disheartening signs of the times is the reckless and intemperate spirit of the newspaper press. Liberty and free speech are good things, certainly, but liberty is not license, and free speech is not irresponsible abuse. How different is the condition of the newspaper press from what it was for generations at common law, when it labored under the star chamber doctrine, that falsehood was no more libelous than truth, and punishment followed publication, without reference to the truth or falsity of the publication; much on the same principle that actuated the puritan mother, who whipped all her children every Saturday night, without reference to their conduct during the week, but purely "for the good of their souls." So powerful have newspapers become, especially during the last quarter of a century, that they seem to have acquired an unrebuked license of slander, as a man who is sick with the small-pox❘ is sure to have the street all to himself, if he chooses to walk abroad, and the denizens know that he is coming. We have little objection to the political slanders that the party press heap on one another's candidates, and on editors of opposite faith. If a man wants to find out what an unredeemed villain he is, let him stand for political office. Next to a "revival meeting," it is the most effectual means of curing one of self-conceit. But, after all, such attacks seldom do more than to wound the feelings of the person assailed. Those of his party, of course, give them no credence, and those of the opposite party generally know how little they are worth. It is only when the press attack a class of men who ask no favors of them or the public, who are expected to be above the reach of party influence and rancor, and who ought to be in reality, as in theory, independent of and exempt from it, that we, as legal journalists, feel called on to complain. It is when the press slander the judges that we complain. It is a most cowardly crime, because, on the one hand, the attacked cannot, without losing their self-respect and the esteem of the community, reply to such assaults, and because, on the 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 against the slanderer, in a great majority of cases, because the slander is usually uttered in such a manner, and at such a time, that it is not the court, but the judge, who is aggrieved. If a false and malicious report is published, pending an action or proceeding, it is a contempt of court, and is amenable to substantial and effectual punishment. This was settled in Respublica v. Oswald, 1 Dallas, 319, A. D. 1788, a case of historic celebrity, in which Chief Justice McKean thus remarks on the nature of newspaper libels: "It is in vain to object, that those who know him will disregard the slander, since the wide circulation of public prints must render it impracticable to apply the antidote as far as the poison has been extended. Nor can it be fairly said that the same opportunity is given to vindicate which has been employed to defame him, for many will read the charge who may never see the answer, and while the object of accusation is publicly pointed at, the malicious and malignant author rests in the dishonorable security of an anonymous signature. Where much has been said, something will be believed." This case, and the case of Hollingsworth v. Duane, establish the doctrine that "any publication, pending a suit, reflecting upon the court, the jury, the parties, the officers of the court, the counsel, etc., with reference to the suit, or tending to influence the decision of the controversy, is a contempt of the court, and punishable by attachment." "If then," continues Chief Justice McKean, in Respublica v. Oswald, "the liberty of the press is regulated by any just principle, there can be little doubt that he who attempts to raise a prejudice against his antagonist, in the minds of those that must ultimately determine the dispute between them; who, for that purpose, represents himself as a persecuted man, and asserts that his judges are influenced by passion and prejudice, - willfully seeks to corrupt the source and to dishonor the administration of justice." But unless the publication is made pending the trial, it is not a contempt of court, but merely a contempt of the judge, and the judge, having no authority to wield the terrors of the court for the punishment of the wrong against him as an individual, is reduced to an action of libel or to silence. The result is, that he must be silent. In the case of P. H. Darby, 1824, decided in the supreme court of Tennessee, one of assailed by a leading New York city newspaper, in an article half a column in length, for granting an order in a certain case, when, in fact, he never made the order, nor any order or decision in the case, and the case was never before him in any form. But the abuse of newspapers takes its most virulent and dangerous form against judges, when, to an ignorance of the law in general and of the facts of the case in particular, is added the rancor of political partisanship. One of the most remarkable instances of this combination that has ever come to our notice was contained in an attack, by an influential newspaper of the city of New York, on an eminent and upright judge of the federal bench. The cause of offense was this a man had falsely registered himself as a voter, and thus incurred the penalties of the act of congress; there was no doubt of the commission of the offense; his counsel demurred to the indictment, on the ground of the invalidity and unconstitutionality of the law; the demurrer was overruled, and judgment was passed and executed, without giving him the privilege of pleading. Whereupon, this newspaper, acknowledging in terms the legality of the judge's practice, and admitting that the only effect of pleading over would have been to cause "twelve hours' delay, and a little additional the judges, in holding the power of the particular court to punish for contempt to be independent of all other tribunals, uses the following language, which is applicable to the magistrate who should undertake to protect himself from the slanders of the press by private actions for libel: "The insulted judge must go to law before some other tribunal, with every one whom his decisions offend. He must quit his business in court, and leave the bench, and travel to inferior courts, and give his attendance upon them, neglecting, in the mean time, the duties which belong to his office. *** No one would be afraid to offend; the delay of punishment, and the numerous chances of escaping it, would disarm the expected punishment of all its terrors. Nor would the insulted court ever think of the attempt to cause the infliction of punishment under so many discouragements. No sooner does he get through one set of controversies, than some other dissatisfied suitor assails him with equal outrage, and involves him in others. He must go again, and forever, through the same routine of vexation and trouble." Well may a judge shrink from "the perpetual conflicts which he has to maintain in vindication of opinions in which he has no individual interest, and the unceasing calumnies to which he is exposed for the protection of others." 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." The newspapers, it seems to us, meanly and ungenerously avail themselves of their technical privilege to convert what would ordinarily be a contempt of court into a mere personal wrong against the magistrate, and presume on the magistrate's leniency, or dread of litigation, as a means of escape from responsibility. It is, of course, much safer to libel an individual who despises the libeler, or is too busy to pursue him, than to exhibit toward the same individual, in his character of magistrate in court, a contempt which he would feel bound in self-respect and in respect for the public to punish. Now, much of the abuse of judges in the newspapers, arises from ignorance; sometimes ignorance of the law, and sometimes ignorance of the facts in the particular case which excites the animadversion. No newspaper that does not employ a reporter with a legal education, ever reports a case of any intricacy without making blunders that shake the sides of the whole legal profession. Only the other day, one of the ablest newspapers in northern New York spoke of an order to show cause why a mandamus should not issue, as being returnable before Messrs. Hand & Hale, at Albany; the truth being, that those gentlemen were of counsel for the defendants. Judges are frequently abused for the performance of imperative duties, such as issuing a writ of habeas corpus, which they could not refuse without rendering themselves liable to a pecuniary fine. If a person accused of crime is admitted to bail, the local newspaper immediately denounces the judge, if he happen to be of opposite politics. Such are some of the misrepresentations occasioned by ignorance of the law. As an example of misrepresentation arising from ignorance of the facts of the case, we may cite an instance reported to us by one of the purest and ablest judges of this State, who assures us that he was once grossly 66 tled An Unjust Judge," and comparing the judge to Jeffries, Scroggs, and Buller, and all based on what? why, the judge's "petulance," in perform ing his clear duty. Assuming that the judge was "petulant," we think the circumstances went far to excuse it, and that more "petulance" in similar cases on the part of the bench would do much to purify the politics of the great metropolis. To reconcile the freedom of the press with the immunity of individuals from aspersion has always been one of the most difficult problems of modern society. The terrible power of the press has always been recognized. As of those who control powerful and dangerous physical engines extraordinary care is demanded, so from those who direct an agency so potent in the dissemination of good or evil reports as the newspaper press the most vigilant discrimination should be required. We make laws to control the management of railroad trains, the vending of poisons, the storing of explosive agents, and the care of persons afflicted with infectious diseases; but the newspaper, like some superhuman and indomitable monster, seems at liberty to crush, to poison, to mangle, and to infect, at its own wild will. This is not the true liberty of the press. "The true liberty of the press," said Chief Justice McKean, "is amply secured by permitting every man to publish his opinions; but it is due to the peace and dignity of society to inquire into the motives of such publications, and to distinguish between those which are meant for use and reformation, and with an eye solely to the public good, and those which are intended merely to delude and defame. To the latter description, it is impossible that any good government should afford protection and immunity." It was well said, in the celebrated case of People v. Croswell, 3 Johns. Cas. 350, by the counsel for the people, that "the law has wisely balanced between extremes upon this subject, and has allowed all reasonable and useful freedom of inquiry, without granting the pernicious indulgence to traduce and blacken private reputation. A free discussion of public measures, without decending to delineate private vices, is sufficient for all beneficial purposes. To expose personal vices, defects, and foibles to the public eye, corrupts the morals of the community, tends to drive useful men from office, and to render the press a vehicle to scatter firebrands, arrows, and death." And the great Alexander Hamilton, in his immortal argument for the defendant in that case, disclaimed the imputation of "being the advocate of a press wholly without control. He reprobated the novel, the visionary, the pestilential doctrine of an unchecked press, and ill-fated would be our country, if this doctrine was to prevail. It would encourage vice, compel the virtuous to retire, destroy confidence, and confound the innocent with the guilty. *** He did not contend for this terrible liberty of the press." The learned and high-minded Kent, too, in giving the opinion of the court, denied that he meant," by the freedom of the press, a press wholly beyond the reach of the law, for this would be emphatically Pandora's box, the source of every evil." It would be well, indeed, if the press would regulate themselves by Hamilton's proposition, which has become a recognized maxim of our law: "The liberty of the press consists in the right to publish, with impunity, truth, with good motives and for justifiable ends, whether it respects government, magistracy or individuals." But, after all, it may be asked, "What do you propose to do? If a contempt of court is committed, there is a law to punish it, and if a judge is slandered, he has his right of action against the slanderer. You surely would not make a law forbidding the press to speak of the judges in any but a complimentary strain?" No; but what we would effect if we could, would be so to elevate and refine the popular idea of individual right and the freedom of the press, that the slanderer of the magistracy should be frowned down and lose caste. Let it be understood, that a newspaper which indulges in reckless aspersions of men who cannot defend themselves, and whose lives are spent in thankless toil, in matters which are of no personal interest to themselves, will lose patronage in consequence, and much will have been done to correct the evil. But, so long as reckless or malicious statements, tawdry and sensational rhetoric, and licentious pictures, fill the columns of our newspapers, it must be because there is a demand for such things on the part of the public. The present state of our journalism is disheartening, not so much on account of the few bad men who publish lying and indecent newspapers, as on account of the many bad men who read and enjoy such a literature. Law cannot suppress such journalism; all that its disciples can hope to do is to render it unpopular. The death of James White, Esq., of Belfast, Maine, is announced. Mr. White was one of the oldest lawyers in Maine. The Cardiff giant has been seized under an attachment for debt. An exchange very naturally wonders "how any man, woman, sheriff, or devil could have an attachment for that callous monster." WHERE SIGNATURE TO NEGOTIABLE INSTRUMENT IS OBTAINED BY FRAUD. TWO IMPORTANT DECISIONS. The general term of the supreme court, in the fourth department, has recently made a decision of considerable interest to the legal profession as well as to the public at large. The case is a novel one, and, at "first blush," we were inclined to regard the decision as a departure from the settled rules of the law merchant, as applied to negotiable instruments. But a more careful examination has led us to the conclusion, that the decision is in harmony with the principles both of law and of equity. The point decided is briefly this: the fact that the maker of a negotiable instrument was induced, without negligence on his part, to sign it by fraudulent representation that it was an instrument of an entirely different nature, is a defense to an action against the maker on the note by a bona fide holder for value. The case was that of Whitney v. Snyder, and the action was brought against the defendant as maker of a promissory note. The plaintiff had testified that he purchased the note for value, and before maturity. The defendant offered to prove, in defense, that he was unable to read, and that when he signed the note it was represented to him, and he believed, that it was a certain other contract, offered to be also produced in evidence, and which purported to be a contract inter partes of an entirely different character. The offer was overruled, and the defendant excepted, and moved for a new trial. Mr. Justice Talcott, in delivering the opinion of the court, said: "We think the learned judge at nisi prius erred in rejecting the evidence offered. The consent of the party alleged to have made it is essential to the binding force of a contract. This principle has been often applied to the case of deeds and other instruments misread, or the contents of which have been misrepresented to the party against whom the instrument is sought to be enforced. A bona fide holder of commercial paper, for value and before maturity, is protected, in many cases, against defenses which are perfectly available as between the original parties, such as that the signature was obtained by false and fraudulent representations; that the paper has been diverted; that a blank bill, or acceptance, has been filled up for a greater amount than the party to whom it was delivered was authorized to insert, etc. But in all these cases the party intended to sign and put in circulation the instrument as a negotiable security. Where this is the case, he is bound to know that he is furnishing the means whereby third parties may be deceived, and innocently led to part with their property on the faith of his signature; and in ignorance of the true state of facts. But, while this is a rule of great convenience and propriety, there are and must be some limits to its application, some defenses as to which even a bona fide purchaser purchases at his peril. The familiar case of a note declared void by statute, as in the case of usury, furnishes an illustration. During the period when, according to the statute law of this state, a bona fide holder for value, and before maturity, was pro |