Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1867-12-27

zen. not warranted by the Constitution
and laws OF the land.n The Court or
6sred HICKEY TO be rsarrested, and he
wss again imprisoned, and Obtained a
I ha6eas corpus from s Judge OF the Su.
preme Court. The opinion Of Judge
/ THATCHER, in deciding this case, applies
directly and forcibly to the proceedings
taken against GALLAwAYi RHEA and
! CLUsKEY, and much Of it would, il
quoted here, almost seem to have been
written for their case. For here, as
there, the Court constitutes itself " the
Judge Of his own privileges and the vim
dicator Of his own wrongs, whether real
or supposed, and his Jurisdiction in this
particular is without measure. The
offence is without specification and with
cut definition aud though, legally
viewed, it is said to refer solely to the
functionary, it necessarily touches and
stimulates this individual, who finds il
hard TO separate himself from the office
and station" He denied that it followed
that such q publication could be punished
a. a contempt, in Mississippi, because
judicial decisions in England and else
where had established the legitimacy OF
7 the exercise there Of such \ power and
said that by the doctrine Of contempts,
a. thus established, there existed an
offence not only undeseribed and unde-
fined In nature and character, and one
whose very existence was dependent
upou the opinion and discretion of a
Judge, but a Punishment, to use the
words Of Senator CLINTON, in YATES
case, 4" unlimited, uncontrolled, indefin-
tie, arbitrary and omnipotent." Courts
are always inclined to widen the limits
Of their prerogaBve, to-day by one
means, tomorrow by another. To-day
they deny to juries in criminal cases the
right to decide the law tomorrow they
imprison the fearless denoUncer Of judi
cial abnses and too generally the caustic
words Of the great CHATHAM are sppli-
cable to them, who said: Shake the
WlIAE NDlHLlllDlNu " tic CGAAAFH aAA LAlc
lawyer will sit tranquil in his cabinet;
bat touch a single thread in the cobwebs
Of Westminster Hall, and the exasper-
a5ed spider crawls out in its defence
Judge THATCHER quoted these impress
i've words Of Senator CLINTON: ct is to
be remembered that summary eonvic-
tons are against the genius and spirit Of
u institutions, and in d~erogation Of
civil liberty. The Judge is without check,
snd the accused without the usual guards
OF freedom. There is no Grand Jury to
accuse, no Petit Jury to try but his prop.
erty and liberty depend upon the fiat Of
the Court. Here, theE, is a case where
an unjust and tyrannical Judge may, at
pleasure, imprison an innocent man for
life, and, it being q judicial act for which
he cannot be questioned, thus placing
punishment at defiance. A doctrine
pregnant with such horrible results can
Eever be in unison with the letter or the
spilit Of a free and enlightened system Of
Jurisprudence
And, ia abort, he held, that, under the
Constitution and LAYS Of Mississippi, the
~publicstiou by HICKEY, instead Of being
a contempt Of Court, was q mere libel on
the f~unctionsry, and subject only to the
punishment preseribed-by the law for
that offence.
In all the English cases upon the sub
ject OF contempt, the Judge has only one
or twice been a party. 1t has only n C
or twice happened there that the integ-
rity Or capacity OF the Magistrate him
self has been even Indirectly impeaehed
ard thus the Judge has only in these me
or two Instances been constrained to &C.
cupy the humiIisting position Of justify
ing and ~vindicatlng himself by the exer
else Of an arbitrary and desP1t tie power.
Nor was there ever q ease in England, in
WHICH the Magistrate used his Judicial
power 20 aVenge and punish the insults
offered MIN Sc : maD. The Judge who
should do that, there, IGight continue TO
be a Magistrate, but would e6zss 10 be
deemed a 1T associate for gentlemen.
Al insult offered a Judge IN open Court,
an imputatiou ca bis integrity in regard
TO q Gaze depending before him, would Of
course be punished, IS a contetapt, not
Of the man, but Of the Court itself.
To q HARDwICKE, a CAMDEN or 3
Holt the power DOW claimed over the
press might perhaps have been entrusted
with safety but those Who framed the
Constitutions aud enacted the laws Of
our American States were wise Il they
did not entrust it to ali the judges whom
the will OF q partizan Executive or Leg
islature or the tickle notions OF the peo-
pie might elevate TO the Bench.
We speak Of the unenviable position
which would be occupied by a Judge
required by law 70 punish Is contempts
Of the Court, injuries done and insults
offered to himself, not TO reflect upon
Judge HUETER, but to show that it can
not be possible that the law demands
that he should expose himself 20 50 terri
bic Al ordeal where his motives could
net fail 10 be ~impeached, his impartislity
doubted as impossible, his opinions
deemed to Os coloured by bis passion,
prejudices and interest. he must truly
look st the case with "a blGod-shotten
eye.u No lawgiver has TIE right TO eZ-
pose men, however great they may be,
TO such a temptation b wrongfully and
oppressively exercise arbitrary power (;
for there are few men 50 cold and tame
as not 10 resent insults and desire TO pun
ish those who assail their fair fame and
inpute 10 them dishon0rahle motives.
No a believes the Judge who protests
that be is entirely indifferent 10 saExe
and the stingings OF the tongue or pen.
In the United States, the motives Of
Judges have often been i~ndecently inn
pugBed bgt there are few instances in
deed, In which they have EesoFted either
for protection or revenge to their sup
posed power to punish for contempt.
Mr.. JEFFERSON trsdgeed Chief Justice
MARsBALL for his rulings Ia tbs case Of
bLhhs AlAEA JUSTICE AAhEh was EtaA-
dered without stint for bis Judgment in
the case Of DRED SCOTT and more re-
Gently Mr. Justice MILLER and those OF
bis BrethTea who agreed with him ia
holding Military Commissions illegal,
we're DETAINED aud m~sligned by the Pres
and the VenenOus creatures that
hiss ia that House Of Repre-
s~entatives which rsiBs plaques upon
the nation. In DUASR's case, vixen
party spirit was at boiling beat
the Judges were sssailed; bat ia
deeidiBg on the question Of contempt
they soorEsd 70 take into consideration
the assaults upon THEMSELVES and there
will be found, iB the whole range o.
American decisions, hardly half
dozeu eases in which the an
welcome responsibility was imposed
on the Judge Of deciding whether vilif-
Of himself was = contempt Of the
Court and never, IL England or Am err
les, has it been held that to censure OF
q Judge, outside Of the Court, for
ais conduct ia = case no longer depsDd-
.ng, or 70 libel him generally or particu-
&rly AZ = man was = contempt Of Court
IL viii be q saddening and humilisting