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FROM JANUARY 9th TO JULY 220, 1871.




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Entered, according to act of Congress, in the year eighteen hundred and seventy-one,

In the office of the Librarian of Congress, at Washington.

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of the


APR 20 1968



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 manNEWSPAPER CONTEMPTS OF COURT.

ner, and at such a time, that it is not the court, but

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 complain. 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 I 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 inost remarkable instances neglecting, 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 newgthe 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 infliction 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 blunders 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 misrepresents | and defame. To the latter description, it is impossiations occasioned by ignorance of the law. As an l ble that any good government should afford protecexample of misrepresentation arising from ignorance tion and immunity.” It was well said, in the celeof 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 l balanced between extremes upon this subject, and has

allowed all reasonable and useful freedom of inquiry,

WHERE SIGNATURE TO NEGOTIABLE IN. without granting the pernicious indulgence to traduce

STRUMENT IS OBTAINED BY FRAUD. and blacken private reputation. A free discussion of public measures, without decending to delineate pri

TWO IMPORTANT DECISIONS. vate vices, is sufficient for all beneficial purposes. To The general term of the supreme court, in the fourtb expose personal vices, defects, and foibles to the pub- , department, has recently made a decision of considerlic eye, corrupts the morals of the community, tends | able interest to the legal profession as well as to the to drive useful men from office, and to render the public at large. The case is a novel one, and, at “first press a vehicle to scatter firebrands, arrows, and blush,' we were inclined to regard the decision as a death." And the great Alexander Hamilton, in his departure from the settled rules of the law merchant, immortal argument for the defendant in that case, as applied to negotiable instruments. But a more caredisclaimed the imputation of “ being the advocate of | ful exainination has led us to the conclusion, that the a press wholly without control. He reprobated the decision is in harmony with the principles both of law novel, the visionary, the pestilential doctrine of an and of equity. unchecked press, and ill-fated would be our country, | The point decided is briefly this: the fact that the if this doctrine was to prevail. It would encourage maker of a negotiable instrument was induced, withvice, compel the virtuous to retire, destroy confidence, out negligence on his part, to sign it by fraudulent and confound the innocent with the guilty. * * * He representation that it was an instrument of an entirely did not contend for this terrible liberty of the press." different nature, is a defense to an action against the The learned and high-minded Kent, too, in giving the maker on the note by a bona fide holder for value. opinion of the court, denied that he meant, " by the | The case was that of Whitney v. Snyder, and the freedom of the press, a press wholly beyond the reach action was brought against the defendant as maker of the law, for this would be emphatically Pandora's of a promissory note. The plaintiff had testified box, the source of every evil.” It would be well, that he purchased the note for value, and before indeed, if the press would regulate themselves by maturity. The defendant offered to prove, in deHamilton's proposition, which has become a recog sense, that he was unable to read, and that when he nized maxim of our law: "The liberty of the press signed the note it was represented to him, and he consists in the right to publish, with impunity, truth, believed, that it was a certain other contract, offered with good motives and for justifiable ends, whether to be also produced in evidence, and which purported it respects government, magistracy or individuals." to be a contract inter partes of an entirely different

But, after all, it may be asked, “What do you pro- character. The offer was overruled, and the defendpose to do? If a contempt of court is committed, ant excepted, and moved for a new trial. there is a law to punish it, and iť a judge is slandered, Mr. Justice Talcott, in delivering the opinion of the he has his right of action against the slanderer. You | court, said: surely would not make a law forbidding the press to “We think the learned judge at nisi prius erred in speak of the judges in any but a complimentary rejecting the evidence offered. The consent of the strain ?" No; but what we would effect if we could, | party alleged to have made it is essential to the bindwould be so to elevate and refine the popular idea of ing force of a contract. This principle has been often individual right and the freedom of the press, that applied to the case of deeds and other instruments the slanderer of the magistraty should be frowned misread, or the contents of which have been misdown and lose caste. Let it be understood, that a news- | represented to the party against whom the instrument paper which indulges in reckless aspersions of men is sought to be enforced. A bona fide holder of comwho cannot defend themselves, and whose lives are mercial paper, for value and before maturity, is prospent in thankless toil, in matters which are of no tected, in many cases, against defenses which are personal interest to themselves, will lose patronage in perfectly available as between the original parties, consequence, and much will have been done to cor such as that the signature was obtained by false and rect the evil, But, so long as reckless or malicious fraudulent representations; that the paper has been statements, tawdry and sensational rhetoric, and diverted; that a blank bill, or acceptance, has been licentious pictures, fill the columns of our newspapers, filled up for a greater amount than the party to whom it must be because there is a demand for such things it was delivered was authorized to insert, etc. But in on the part of the public. The present state of our | all these cases the party intended to sign and put in journalisın is disheartening, not so much on account circulation the instrument as a negotiable security, of the few bad men who publish lying and indecent Where this is the case, he is bound to know that he newspapers, as on account of the many bad men who 1 is furnishing the means whereby third parties read and enjoy such a literature. Law cannot suppress may be deceived, and innocently led 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, is

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 beforo maturity, was pro

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