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BY ROBERT W. WINSTON

Former Judge of the Superior Court of North Carolina; Author of "A Freshman Again at Sixty"

T

HE sentence of the court is sixty days in jail and a fine of a thousand dollars; the jail sentence to be remitted if the fine is promptly paid."

"A thousand dollars! I won't pay a penny-I'll rot in jail first," came from the prisoner before his astonished lawyers could stop him.

"Very well," the judge blandly added. "The jail sentence will begin at once, and the prisoner is in the custody of the marshal."

The clerk's desk was soon piled with tens, twenties, and fifties, as men by the score pressed forward to pay the fine. "If those people do not resume their seats, bring them to the bar of the court and I will teach them how to behave them selves," the judge sternly rapped. What good would it do to pay the fine, anyway, the jail sentence remained and must be served. Grimly the crowd filed out of the court-house, and Josephus Daniels, for such the prisoner was, passed on to jail.

Surely, to draw such a sentence, Daniels's offense must have been a grievous one. Well, this was his offense: the State of North Carolina owned a controlling interest in a well-located railway, extending down to the sea: a little road but the dream of the fathers-the pride of the State-affectionately called the "Mullet." Now, a rival road wished to purchase the Mullet, but the State refused to sell. Thereupon the larger road determined to throw the Mullet into bankruptcy, hoping to buy it in at public auction for a song. A convenient nonresident dummy was accordingly presented with two shares of stock to enable him to qualify as plaintiff and invoke "equitable relief." In due course this party, now duly styled "your orator," filed his bill, falsely charging that the

Mullet was mismanaged and insolvent, and asking for a receiver. On application to a United States district judge, and without notice to the other side, the relief was granted: the Mullet was taken away from the State and handed over to a receiver to the dismay of governor, council of State, and people. In fact, it was a foregone conclusion that the hostile judge would take the bit in his teeth, order a sale, and that the conspirators would get away with the swag. But in an early stage of the game Editor Josephus Daniels had taken a hand. Boldly, his paper charged fraud and conspiracy, devised and contrived by the larger railroad and the judge, who, according to the editor, was a tyrant if not corrupt. This charge Daniels thundered at the court day in and day out, till he was finally arrested for contempt. After a hurry-up "trial," limited to two hours, the judge under fire acting as prosecutor, court, and jury combined, the champion of the Mullet found himself "in limbo," for a season.

Some years later another constructive contempt matter arose in Ohio. In response to popular demand the city of Toledo had ordered car-fare reduced from eight cents to five cents. The street-car company thereupon appealed to a United States judge to set aside this reduction and restore the eight-cent fare, alleging that the new rate would not pay overhead and operating expenses. The judge granted the motion and put the fare back to eight cents. Fiercely the editor of a Toledo paper began to attack the court, charging that the judge was a corporation tool and urging disobedience to his orders. As in the Raleigh case, so in the Toledo case, the editor was arrested for contempt, and editor and paper promptly fined seven thousand seven hundred dollars-the judge attacked acting as prosecutor, court, and jury.

A recent New York contempt case is quite as notorious. A lawyer named Craig

wrote a letter to an official of the bankruptcy court, charging that the United States judge presiding had the habit of stifling free investigations, and that therefore his client would not be at the hearing at all. Craig went on to explain that there could be no fair investigation in a bankruptcy matter unless a trustee representing both sides was appointed, and that this particular judge never appointed that kind of a trustee. The indignant judge, getting wind of this letter, which was not intended for publication, handed out a sixty-day sentence to Craig; stoutly protesting, the while, that he had no feeling whatsoever against Craig, but was merely maintaining the dignity of the bench.

And then came the Magee case from Albuquerque, N. M. The charge against Magee was contempt; the libellous words -printed July 17, 1924-were these: "As to my case pending before Judge Leahy, I stand about as much chance as a lamb with a butcher." Magee having been found guilty by the judge, this colloquy ensued: "Have you anything to say why judgment shall not be pronounced on you?" the judge blandly inquired. "I deny I am being accorded due process of law," the prisoner responded. "I deny this is a court."

"That is untrue, and you know it," the judge snapped. "You are a low-down skunk a measly yellow cur. I give you six months in the county jail."

Now, if such cases were rare or exceptional, it would not so much matter, but they are not rare. They are occurring all over the country. In fact, whenever a self-centred judge is ridiculed or criticised, some one is likely to wind up in jail. This his honor's dignity demands, the Ku Klux furnishing a handy precedent. What boots it, indeed, whether one be lynched by the mob or mobbed by the law?

II

CERTAINLY, no one would justify the slanderer of judges. Far from it. The slanderer of courts deserves the same punishment as other slanderers. The complaint is not against courts as courts, but against the usurpation of courts. Speaking of such usurpation in the To

ledo case, Justice Holmes-four of the nine judges concurring-declares in substance that American courts are a hundred years behind the times; that no English judge would imprison one for constructive contempt without a legal trial. It follows that no English judge would have "railroaded" Craig, Daniels, or Magee to jail, but would have proceeded against them in the orderly way by indictment. One of the least creditable chapters in American judicial history, indeed, is the power judges arrogate to themselves to suppress free speech by this side-wind, called constructive contempt-a power which neither Congress nor the President nor any other person or department of government possesses, or claims to possess.

For example, if the Toledo, the Albuquerque, or the Raleigh editor had charged that a United States senator, or the President himself, was a tyrant, or corrupt, the offender could not have been haled before Senate, President, or court, and summarily punished. In such a case a bill would be drawn, a grand jury would sit, if a true bill were found the case would be set down for trial, due time to prepare the defense would be allowed, witnesses summoned, a jury of impartial men chosen and sworn, and a disinterested judge would preside. None of these safeguards would or could be omitted they are a part of every freeman's heritage.

How, it may be asked, do American courts get around this sacred right of trial by jury, and act as judge, jury, and prosecutor combined? Why, this is done by a bit of sophistication and twisting of the plain language and guarantees of the law, that would do credit to Dean Swift in "A Tale of a Tub." The judge puts his case this way: "I am a judge, possessing certain inherent constitutional rights, of which no legislature can deprive me. One of these rights is to hold my court without interruption or criticism from any source whatever."

The natural result of the assumption of this power is that American newspapers stand in awe of tyrannical judges. When it comes to criticism of such judges, newspapers fear and tremble; they write at their peril. The lawyer indeed who ad

vises that an editor may criticise a judge in the performance of his duty may, himself, be guilty of constructive contempt. Thus, for example, for suggesting in open court that a certain judge was unfair, and asking that a case before him be removed to an impartial judge, the attorneys for the defense were given to understand that if they filed a motion of this kind they would be held for contempt. Indeed, in the Magee case, two of his attorneys were driven from the case by the presiding judge.

Although the first amendment to the Constitution guarantees freedom of speech and of the press, declaring that such freedom shall in nowise be abridged; although there are remedial statutes that no judge shall summarily punish for contempt, except for misbehavior in the presence of the court, or so near as to disturb its deliberations, American courts disregard these laws, and go their way, regardless of consequences. Indeed, the attempt of legislatures to safeguard free speech reminds one of how the devil mended the dog's hind leg: he mended it in one place but broke it in two others. Freedom to criticise courts is as much restricted to-day as a hundred years ago, when there were neither constitutional nor statutory guarantees of freedom of speech. Courts seem to have grown indignant and resentful that their supposed prerogatives have been invaded by the lawmaking power.

Not long ago during the recess of a certain court, a witness who had been insulted by a browbeating lawyer called the latter to account. That afternoon when court convened the judge summarily punished the witness without any jury whatsoever, not for fighting, but for contempt of court.

In another case this situation developed. The court had adjourned for the term and the court-room was closed. A party who fancied he had been wronged by the presiding judge engaged in a fisticuff with him at his hotel. The judge, going back into the court-room, reopened court, which had expired several hours before the fight, and put his assailant in jail for sixty days, depriving him of any defense whatsoever.

In another State, a judge, known to be

autocratic and tyrannical, was scheduled to hold a certain court. The entire bar thereupon met in advance of the term and continued the docket. Shortly afterward the judge opened his court and, ascertaining what had been done, summoned the lawyers to the bar of the court, and sentenced every mother's son of them to jail for contempt. They had insulted the dignity of the judge.

In still another State, because the members of the bar residing at the capital had protested when the judges of the court of appeals were seen marching to the music of drum and fife in a political parade, the offending lawyers were summoned to appear before "the political" judges aforesaid and make due explanation. Some of the offending "brethren" apologized, though some fled the State.

It is conceded that a judge must maintain order in the court-house, and that if a person create disorder therein or is guilty of misbehavior so near the court as to disturb its deliberations, he should be summarily suppressed-put in jail if necessary. Such misbehavior, for example, as drunkenness in the court-room, loud and boisterous talking, disobedience to the order of the judge, and the like, needs instant correction. In cases of this kind the judge must act at once, it is an emergency matter. Here there is no constructive contempt, the contempt is actual. The inherent right of a court to function should never be abridged.

But when the matter occurs outside the court-house the case is quite different. When, for example, an editor criticises a judge, not knowing his name, perhaps never having been in his court, to punish such editor for contempt by calling his editorial "misbehavior calculated to disturb the court" would really be absurdif the judges had not decided otherwise. The contempt statute provides that no judge shall punish for contempt except for "misbehavior." This word misbehavior has a well-recognized value. It means disorder, rowdiness, impoliteness. Thus, when a child misbehaves, it is roundly spanked by its mother. Even so, an editorial in the New York Times, or in the Boston Transcript, according to American courts, may be misbehavior for which the editor should be spanked.

III

COURTS may hold that a judge has the right to try a case in which he himself is interested, but is such a thing democratic is it fair? To be judge, witness, and prosecutor all in one is bad enough. Is the situation improved if the constitutional guarantees of free speech be violated? I, therefore, enter a plea for the slanderer himself, not on his account, but on account of free speech, which he unwittingly advances, for an illegally suppressed slanderer, John Wilkes, for example, becomes oftentimes a martyr to that liberty which he has abused.

If it be urged that courts must be protected, I submit that that would be better accomplished by absolute freedom of speech than by a "nigh-cut"-as contempt proceedings are popularly called. Must this not be said of the judiciary, indeed of government itself: "If it be not strong enough to endure criticism, it is not strong enough to endure at all, for no great principle has ever developed except by the fiercest opposition." Criticism being the foundation of all worth-while government, free speech needs no vindicationit has justified itself. True, a virtue overdriven may become a vice-freedom of speech run into scurrility; on the other hand, vice may become the handmaid of virtue-abuse, even coarse abuse, pave the way for constructive criticism. A law by whatever name called-paradox or an avenging god-which keeps the world in balance: it is the cunning of reason.

Undoubtedly, the philosophy of free speech is deeper than the protection of the slanderer; free speech being not only a shield of defense but also a sword of attack. Why do judges fret themselves overmuch about the slanderer, anyway? He harms no one but himself. Indeed, I once heard a man say this of his neighbor: "He is so busy cheating me, he cheats himself." Does not the saying of Joboh! that mine adversary had written a book-imply that if a book be true it will uncover truth; if false it will in the long run do the same thing? "Hear the other side-give the man a chance" is the American spirit.

Who more maligned in their day than Lincoln or Woodrow Wilson? Thus a

friend of mine once started out to discredit Lincoln. "Why," said he, "Lincoln, a tyrant, ought to have been impeached-declaring war on the South without the sanction of the Senate." "Great God," I replied, "did Lincoln do all that-single-handed and alone, did he save the Union? What a man he must have been!" Shortly after another friend would discredit Wilson. "Woodrow Wilson!" he angrily asserted. "Why, one expression of his 'people everywhere should have the right of self-determination'-has put the devil into the nations throughout eternity." "In the name of humanity," I reflected, "he, too, must have been tremendous."

It sometimes happens that the slanderer himself is slandered-a kind of cross-paradox working itself out however through its opposite. Thus a suit for slander having been entered, some editor takes up the fight, distorts the facts, and vilifies the slanderer. The sympathetic public, resenting such methods, goes over to the side of the original slanderer, who has now become the under-dog and goes scot-free.

Once while I was managing a senatorial campaign for a certain chief justice, I asked if he did not think matters were going along fairly well. "No," he sighed.

Eight years ago the trusts elected me. I was dragging the judicial ermine in the dust, they charged. Now I cannot induce them to attack me at all."

In a Western State, a street-car ran into a passing vehicle. The company being sued for damages employed a person to offer himself to the injured party as an eye-witness that the street-car had no headlight on the night of the injury. At the trial the car company showed that this witness was speaking falsely, that he was not present when the accident took place, but was in a distant city. This one bad egg spoiled the whole omelet, and the plaintiff, double-crossed, lost a perfectly good case.

Now that the public has caught on to the slanderer, his praise is really more harmful than his abuse-a thing that every one seems to understand except judges they alone, annoyed by the slanderer, flee in terror, much as Æsop says the lion does at the crowing of a cock.

vises that an editor may criticise a judge in the performance of his duty may, himself, be guilty of constructive contempt. Thus, for example, for suggesting in open court that a certain judge was unfair, and asking that a case before him be removed to an impartial judge, the attorneys for the defense were given to understand that if they filed a motion of this kind they would be held for contempt. Indeed, in the Magee case, two of his attorneys were driven from the case by the presiding judge.

Although the first amendment to the Constitution guarantees freedom of speech and of the press, declaring that such freedom shall in nowise be abridged; although there are remedial statutes that no judge shall summarily punish for contempt, except for misbehavior in the presence of the court, or so near as to disturb its deliberations, American courts disregard these laws, and go their way, regardless of consequences. Indeed, the attempt of legislatures to safeguard free speech reminds one of how the devil mended the dog's hind leg: he mended it in one place but broke it in two others. Freedom to criticise courts is as much restricted to-day as a hundred years ago, when there were neither constitutional nor statutory guarantees of freedom of speech. Courts seem to have grown indignant and resentful that their supposed prerogatives have been invaded by the lawmaking power.

Not long ago during the recess of a certain court, a witness who had been insulted by a browbeating lawyer called the latter to account. That afternoon when court convened the judge summarily punished the witness without any jury whatsoever, not for fighting, but for contempt of court.

In another case this situation developed. The court had adjourned for the term and the court-room was closed. A party who fancied he had been wronged by the presiding judge engaged in a fisticuff with him at his hotel. The judge, going back into the court-room, reopened court, which had expired several hours before the fight, and put his assailant in jail for sixty days, depriving him of any defense whatsoever.

In another State, a judge, known to be

autocratic and tyrannical, was scheduled to hold a certain court. The entire bar thereupon met in advance of the term and continued the docket. Shortly afterward the judge opened his court and, ascertaining what had been done, summoned the lawyers to the bar of the court, and sentenced every mother's son of them to jail for contempt. They had insulted the dignity of the judge.

In still another State, because the members of the bar residing at the capital had protested when the judges of the court of appeals were seen marching to the music of drum and fife in a political parade, the offending lawyers were summoned to appear before "the political" judges aforesaid and make due explanation. Some of the offending "brethren" apologized, though some fled the State.

It is conceded that a judge must maintain order in the court-house, and that if a person create disorder therein or is guilty of misbehavior so near the court as to disturb its deliberations, he should be summarily suppressed-put in jail if necessary. Such misbehavior, for example, as drunkenness in the court-room, loud and boisterous talking, disobedience to the order of the judge, and the like, needs instant correction. In cases of this kind the judge must act at once, it is an emergency matter. Here there is no constructive contempt, the contempt is actual. The inherent right of a court to function should never be abridged.

But when the matter occurs outside the court-house the case is quite different. When, for example, an editor criticises a judge, not knowing his name, perhaps never having been in his court, to punish such editor for contempt by calling his editorial "misbehavior calculated to disturb the court" would really be absurd— if the judges had not decided otherwise. The contempt statute provides that no judge shall punish for contempt except for "misbehavior." This word misbehavior has a well-recognized value. It means disorder, rowdiness, impoliteness. Thus, when a child misbehaves, it is roundly spanked by its mother. Even so, an editorial in the New York Times, or in the Boston Transcript, according to American courts, may be misbehavior for which the editor should be spanked.

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