The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1871-05-14
THE CODE AMENDMENTS.
lRview Of the Effect Of the Proposed Amend
ments to the Code Of Procedure.
TIE "COMMoN Law" DEFINED.
English and American
PrecedCntS.

changes In the usual course OF The administration OF
the laws, attaching TO the proposed amendments to
the code OF procedure we give below review OF
the proposed amendments Many OF the clauses
are merely decaratory OF existing pro-
visions OF law: but IN the contempt
clause. removal OF suits, appointment OF referees
&c, pcrusal OF the changes 10 be effected, as set
forth below, win make the whole subject matter in
controversy clear 10 the comprehension OF the
readers OF The HERALD We give rirst. as the most
important
t.,ionai title to be Known as title sixteen AS folowse
Coner'ng power npon courts Of record and every judge
Every e9a q fsGors and every uass or Of any
record Judges justices Their Of possessed
law to punish as for conemp, Of court
judge justice a punish
proceedings contempt be and conducted in such
manner as The court or Judge ar justice shall direct and the
ho,h shall be in the discretion OF the court judge JUS
parts OF laws comic, herewith are hereby so FAR as
OF record and judges justices thereof
$50 y provides that this &C, SHAH apply to actions and
he brought, and shall take effect immediately.
The foregoing clause. for the powers II contem-
plates comforting upon the judges OF our several
courts OF record, has received the largest share OF
the criticism and also Of the condemnation that has
been levelled against the bin as whole. This, no
doubt arises from the fact that its PROVISIONS are
supposed 10 aim more directly against the liberty Of
The press tnan against the rights Of the individual.
And this is II should be, for with free, untranl-
melied and independent press there is ite the ind
vidual, or even any class in the community need
fear IRON the arbitrary exercise OF power in any
quarter. But let us see how far or to what extent
this clause menaces the rights OF the press.
In The first place. II makes no alusion whatever 10
she press nor does It by word or by fair inference
especially relate 10 liberty OF speech Of any sort or
III any way, and II II has such application 1t must
arise from necessary construction OF the section.
Ii says that every court OF record and It's judges
shall have the like power which courts OF record
and their Judges possessed al common law, to pun
Ash for contempt person or persons Tor any act
&C., punishable at common law.
All tins has necessary application 10 the press
nor TO members OF the such; dces 1t any
way threaten or abrogate Tie liberty Of speech II
u did the constitutional guarantee OF
LIBERTY SPEECH
would render II u nugatory act. The seeming ohec-
ton to tins section from this-thai the pun,s-
ment-nne imprisonment, or both--is left To the
discretion OF The court judge before whom the
proceeding 10 punish Tor contempt is had. l; is
consequently argued-jusily, douot-ihal a
mans discretion, though that man be Judge, Is
very capriclOus, and certainly unsafe guide
perry or liberty. The fine. II may be said. could
extend 10 the condscaton OF mans entire pro-
perry and his Imprisonment TO his whole lie. But
this part OF the section must be read as is every
other legislative act. subortli latlon To anu in
conformity with the organic law. Tie constitution
h.Al there shall he no
CRUEL AND UNUSUAL PUNISHMENT
aud besides this IL must be allnitteI that few
powers or preioatves are more under the restraint
or correction oil law than those winch nigh: lenu to
the abuse Of Judicial authority by Judges Yet there
II always
REMEDY WITHIN TIE LAW.
fhls Is eAeinplncd III an English elsewhere the
contempt power has always rested with the Judges
LHc famous case OF solicitor Dyas against Lord
broagnam, nj The time LORD High Chancellor OF
England. Dyas was committed Tor contempt and
be sued Lord Brouglain court or common law
10 recover damages or abuse OF his Judicial ali-
Ih0ry, and Tie loss and injury lie sustained
sequence OF his commitments. In that case the ex-
ample was given 10 all others in judicial authority
that they could not with impunity abuse Their pow
frs, aud that an action Tor damages under sucD
circumstances could toe sustained IN law. IL a.. IN
FACT, principle OF jurisprudence that when Der
sonal discretion rs the rule OF ones condact III once
personal responsibility III law always accompanies
ENGLISH AuTnoRIrIEs on THE SUBJECT
, The law OF England as laid down what Is
Known as Lord oaApbets act, goes 10 The eXtent OF
declaring mat journalist, writing III Lie interest
81 Tie public ana free from malicious motive, may
even pubilsh matter hbellous Itself Al lie
satisfactorily show that the publication made
5or Tue public good aud In The interest Of the general
community. For instance II a board Of directors OF
% Runway any other company enter INTO a con
sriracy 10 cneat the shareholders II would be held
under Inc Law Of England, ana ought to lie held
under The law oi every country, that journalist cX-
posing the fraud, wrilng severely about H. and
caustcally regarding the persons concerned IN Tie
wrong, snOuiu not he punished IN any way for such
ACT In ike manner the crihcisn, the censure
condemnation Of the press as decided against
wrong or supposed wrong dong on the part OF any
judiciary Is Justified, and must lie hcd Justified III
law when the same is done III the interest .! the
general community
II A. claimed, and no doubt with great prorlicly
and force, that the
ORDINARY Law or THE STATE
~ sunciently strong To protect Judges from
tempt aud IRON any invasion d their dignity aud
prerogauves, ana why there should nave been AN at
tempt now NJ new legislation on the subJecI, unless
The trainers Of the bill contemplate dong something
which They expect the press VIII denounce, Is mat
Ter OF grave conjecture That the amendment In
question was designed 10 place IN the hands OF
judges power 10 muZzlc the new papers, as con.
tended for Dy the opponents oil the b l. hardly con.
Coivable III This age ~ enlightenment ana progress.
III the tncd states courts before Congress legis-
laied on The subject Of punishment Tor contempt,
the common law OF England relating 10 the same
was IN operation, Or supposed TO be so; but ~
our abIest luflsis Lave held that sucn common law
was never recognized as having any force here. The
Just legislation VI Congress on TINS matter
If contained IN the seventeenth section o the act OF
.'lhat al the sad courts OF the United states shall
have power TO grant new trials IN cases where there
has been una ~ Jury, for reasons for which new
trials have usually been grahtci in the courts Of
law, anu shall have power 10 impose and administer
sl necessary Oaths Of ailrmaions aud 10 punish 10y
yue or imprisonment ~ the discretion ~ said
courts, all COntenlpts Of authority In any cause or
hearing before tbe same, and 10 make aud establish
al necessary rules for the orderly conducting of bush
ness III the SAID courts, provided such rules not
JcpugIant 10 The laws OF the United States.n Here
comes IN the great check aud barrier 10 q despolC
ar arbitrary of capricious exercise o this
cOSTEAlT OF PUwER
provided that such rules (punshmcnD are not repug-
blni 70 the laws of the United States. what Law or
enactment authorizing the punishinc for contempt
al iree ana honest expression on the part of The
WuiNluhdl ur 81 The press OF crluciSm censure
condemnation-speaL IN the Interest ana an he.
Haii 81 the general communlty--wnat law, In such
case, would not come wtthlY Thar Just and compre-
bcnsye proylso provided SUCH rules are no, repug-
nant 10 the laws Of the United States Really, II
word seem, notwithstanding the opposition ol emf,
ncnt lawyers, who have taken the bllt It's trainers
nd ibe Judges 70 task as II they were fighting wind.
1piEs Liberty ~ speech can never tie chez ked
sTuc or unusual pun sLment (hne or imprIson.
mcn) can never pe inflicted. ana rules OF statutes
cepugnant To the laws OF the United states win never
DE recognized or submitted 10 10y American citizens.
obnoxious amendments 10 Tie tpde are innoXlDus
an dharnitcss, and are or'y bultiui and poxous IN
- L. 49, L