The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1867-02-16
Tho Connolly and Kennedy Cs.pneasis.-
Tho Law of Libel.

The Law Of Libel.
While Justice Connolly and Superintendent
Kennedy have been emulating the example Of
our Councilmen, and enacting in the courts u
Justice scenes more appropriate to the City
Hall, they, in common with Justice Dowiings
have displayed an unfortunate lack Of fhinl-
liarity with the Revised Statutes Justice Com
molly caused the arrest of Superintendent
Kennedy for. libel The Superintendent was
taken before Justice Bowling, held by him to
bail on the charge, AID entered into the 70
quired recognizance to appear at future day.
The constitution of the State Of New York
provides that "no law shall be passed to re-
strain or abridge the liberty Of speech or Of
the press,n and the law based upon this pro-
vision excludes libels from the offences for
which bail may be required by any court
Under the act of 1924 the statutes Of tho
State were revised by John Duer (who was ap-
pointed by the Governor in place of James
Kent, who declined), Erastus Root and Benja-
min F. Butler. Under their revision section !
of article l, title s, of the Revised Statutes,
was made to read az follows:-
sEcox l. Every court Of criminal jurisdiction before
offence not punishable With death or imprisonment IN
the State Prison. shall have power II addition 20 such
require person 70 give security keep the peace
Of good behavior or BOTH for any term not exceed.
be given But this section shall not extend 70 oonvo
tons for writing or publishing any libel nor snau any
such security be hereafter re9ureo Dy any oo"s
writing Or publishing.
This section was enacted as reported by the
reyisers. who added thereto the following
original note, further explanatory Of thelr
Views
Substantially oonformable TO the common Law. with
the exception OF che last clause which s new. By tho
amended constitution Of this ssats article section 8
abuse q that right "a no law shall = psssss % =
4 n conceived shss ths psoyssea virtually sakes swsy
from the courts The common ~ power 81 bi.dins exes
shsctss q tbs sort arc inconsistent win ne spst q
the constitution and the ptncplee Of government
and Il b proposed 70 abrogats them
The provision above quoted is not generally
known, and our attention has been recently
called to 1t In some advance sheets Of Mr..
Townshend's forthcoming able work on The
law of libel Such work Is much needed
by our lawyers. The law Of libel -
received 80 many conflicting interpretation
INV IcYuu0o ukAsh 00ssaOkM0us W -
constitutional basis Lord Coke says, -
libeller, it seems, may be bound for his
good behavior, a. such libels tend to and
greatly excite breach of the peace" It was
always held that libel was not directly
breach Of the peace, but only had . tendency
to exotic one. On the authority Of tho dictun
Of Lord Coke practice sprung up Of holding
parties TO bail for libel. In the we'll known
case Of Wilkes, the publisher, the defendant
was committed to prison for want Of bail for
an alleged libel published in the North Brxon.
He was released ON May 8, 176s, on habeas
corpus, by the Court Of Common Pleas. The
opinion Of the court was very elaborate, and
the opinion arrived at was that publishing
libel is not breach of the peace, but only an
act leading to such breach, and hence llbellsr
cannot be called upon to give security for the
peace. II he should be 1t would be nugatory;
for II he were to write second libel II would
not be forfeiture OF his recognizance.
The idea, however, that man could be held
to bail for publishing . libel has remained
and been frequently acted upon. We trust that
this lesson in the law which we give to those
legal lights, Justices Connolly and Bowling
and Superintendent Kennedy, free Of the
usual bin of costs, viii make Thorn all better
lawyers and some of them moro courteous
gentlemen.