New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1877-09-10
SpErcH TREE AND LICENTlOUS.

| Mr.. Benjamin +. Batter, we suppose, Is one
of those lawyers who are not particular about
their professional opinions unless they are well
paid for them. Certain members of +" the Labor
Party" in Philadelphia, beng under indict-
nient for making speeches tending to breaches
OF the peace, sent to the Massachusetts advo-
cate a retainer, which he declined and returned
with this remarkable observation g have
"been under the impression, as You were,
that free speech was permitted and that no
"man could be arrested simply for making
"speech.n If Mr.. Butler, as a lawyer, were no
wiser than this he would very properly be re-
garded as an ignOramus, and have but a small
chance in future of declining retainers, great
or small, from anybody But he does not cheat
himself, however he may try to mslead others.
He knows, nobody better, that under the Con-
stitutOn and laws of the United States,
ga man may be arrested for making
"speecl," and indicted, and if found guilty,
subjected to fine and imprisonment lie
knows that freedom OF speech imports
that every one shall be at liberty to
state his opinions only upon the condition
that he does not mjure any person III hiS
rights. his body or his reputation, and es-
pecially that he does not attempt to subvert
the Government. He knows 60 quote the
words Of an eminent legal writer That " 1t
Z" is possible TO do a grieyOus wrong 10 another,
in his rights, his peace, his property ana his
reputation, by wrongful speaking" Mr.. But
Ter, if he ever read them, can hardly have Tor
gotten the words of Mr. Justice Story, used In
commenting upon the very clause OF the Con-
stitution which secures freedom of speech. II
was never intended, says the Judge, that the
clause should secure to every citizen the right
TO destroy at his pleasure the reputation, the
"pcace, the property, and even the personal
Z" safety OF every other citizen" or "to stir
cup sediton, rebellion and treason even
against the Government ITSELF in the wan
"tonness of his passions or the corruption OF
"his heart. Civil society could not 90 on
"under such circumstances
Against this construction of the Constltu-
ton by the most eminent Of Amcricap juH5tS
Mr.. Butler launches his little dictum " have
&" been under the impression that no man
"could be arrested simply for making
speech" SO speaks the Attorney; hut how
would the General have acted if, when he
was in command at New-York during the
draft riots, he had found man making
"speechn to the rioters, and recommending
them TO hang Gen. Butler from the nearest
lamp-post. if only they could catch him. Our
opinion il that his views of constitutional law
and of " free speech - would, under such per-
iiou3 and portcntous circumstances, have I'M
dcrgone a sudden modification. 1t is all very
well for him to write from Massachusetts to
PENNSYLVANIA IN 1877 that a speech intended
to incIte rioters to burn depotS, Obstruct rail
way trains, hinder the transportation OF the
mails and defy the civil and military author
lily, should not subject its maker to lndlct-
ment; but what would have been his opinion
IN New-Orleans in 1862 if some cOntumacOus
person had been brought before him charged
with making public address in favor of pull
ing down the American flag Would he have
beamed mildly with either eye upon the el0-
cutionary offender ordering his immediate re-
lease, and authorizing him 10 go on lndel-
nitcly with his stimulating Outp0uringsY
Mr. Buffers letter to the Philadelphia men
is very sh0rt-he could not, of course, afford
to be exhaustive and verbose graruitousiy. Per-
haps if he had entered into the niceties OF the
dueston-say about IL hundred dollars worth
he might have shown that, while 1t was eX-
tremely wrong to tear mp the rails, it was per-
fectly constitutional to recommend the doing
of the deed Lacking the lawyers logical
demonstration, we must be allowed to hold
fast By the old law maxim, "Whoeyer advises
g the act is as guilty as the actor '-guitler, iii
fact if he has had better opportunities OF learn
ipp how to discriminate between right and
wrong. From this point of view, Mr. Buffers
opinion that "nO man can be arrested simply
"for making IA speech" seems to be the
height of cunning or the depth of simplicity
and nobody ever charged Mr.. Butler with be-
Ing a fool.