Lancaster daily intelligencer. [volume] (Lancaster, Pa.) 1864-1928, 1880-10-04
the land, this last phrase meaning, as
We have been taught by Lord Coke, "due

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process of law :. =
By the seventh section Of the first articl'
Of the constitution of 1874, the bill
rights, it is declared that "no conviction
shall be had in any prosecution TO
the publication Of papers relating to th'
official conduct Of officers or men in public
capacity or to any other matter proper fol
} public investigation or information
where the fact that such publication
was not maliciously or neg'igently made
shall be established to the satisfaction o
the jury This is new and very impor:
tant provision, introduced into the bill o1
rights by the constitution of 1874. 1twould
be a clear infraction of the spirit, if not the
letter, of this article to hold that
an attorney can be summarily disbarred
for the publication of a libel on a man in a
public capacity, or where the matter was
proper for public investigation Or informa-
ton, for a man certainly does not forfeit
his constitutional rights as a freeman by
becoming an attorney. 1t guarantees to
him immunity from all liability to punish
mcnt in case Of the publication Of papers
relating to the official conduct of officers or
men in public capacity g where the fact
that such publication was not maliciously
| or ncgligcntly made shall be established to
the satisfaction of the jury But the
gravamen of the offenses of the complain
ants was that the publication was libel
on the court of which they were attor-
ncys, and this, it is earnestly contended,
was "misbehavicr in their Office, which
gave the court power to exercise summary
jurisdiction by removing them. The
duty Of All attorney is briefly comprehend
cd i'm the terms of his oath, ''tO behave
himsclfin the Office OF attorney according
to the best of his learning and ability and
with all good fidelity as well to the court
rs to the client Was the publication
in question breach Of this oath: Fidel-
ity to the court includes many particu
lars, but they all evidently concern his Of
fetal relations. 'The sum of the matter
says Chief Justice Gibson in the Austin
case, ) Rawle 20j, ''is that III at
torrcy at law holds his; Office during
good behavior, and that he is not profess
sionally answerable for a scrutiny into the
official conduct of the judges which would
not expose him to legal animadversiOn as
citizen.' Some of the remarks in the
opinion in that case have been much
relied on by the learned counsel who
have argued rs Gmic; eurie in
support OF the action Of the court below.
But there are two considerations bearing
upon the question which now exist, but
did not at The time that decision was reE-
dercd. The first is the new provision on
the subject OF the liberty Of the press
which has been Introduced into the bill
Of rights of the constitution of 1874,
and the second is that ut that time the
judiciary was not elective. Judges in 1885
were appointed by the governor and their
tenure Of Office was during good behavior.
There might then be some reason for hold
ing that IN appeal to the tribunal of popular
opinion was in all cases of judicial miscOn-
duct 4 mistaken course and injustifiable
in All attorney. The proceedings by i'm
parchment or address We're the only ones,
which could he rcsorted to, 10 effectively
remedy the supposed evil. To petition
the Legislature was then The pro-
per step: to appeal to the people
was to diminish confidence in the
court and bring them into contempt with
out any good result. We need not say
that the case is altered, and that it is now
the right and duty of 4 lawyer to bring to
the notice of the people, who elect the
judges, every instance of what he believes
to be corruption or part;sanship. No class
Of the community ought to be allowed
freer scope in the expression or publication
ofopinions as to the capacity, impartiality
Or integrity of judges than members of the
bar. They have the best opportuE
tiles Of observing and forming
correct Judgment they arc in
constant attendance OH the courts hum
drelS of those who are called on to vote
never antera court room or il they Go it is
only at intervals as jurors, witnesses or
parties. TO say that an attorney can
only act or speak on this subject
under liability to be called to account |
and to be deprived of his professional live. |
lihood by the very judge Or judges whom
he may consider it his duty to attack and
expose, is 4 position too monstrous to be
entertained for moment under our pres
ent system.
In admitting. as hc seems to do, that a
libel on the court may be breach of pro-
fessional duty in an attorney, Chief JUS
tlcc Gibson adds Il most material Iualifi-
cation ''Thc motive should be clearly
shown to have been the requirement Of
an influence over the judge in
the exercise OF his judicial functions by
the instrumentality of popular prejudice"
No such motive has been or can bc I'M
puted to these complainants. The learned
judge who delivered the opinion of the court
below imputcs no such motive to them. He
says, "Their motive, though not openly
Or at all avowed in the publication, is too
obvious to admit of doubt. The least
motive by which their
professional misconduct can be sup
posed to have been animated is
a desire for the prominence or notoriety in
the editorial corps. The real or true mo.
tive could be 10 other than partisan NAL
ice, or a wilful headlons zeal to promote