Sacramento daily record-union., 1889-10-02
" FREEDOM OF THE PRESS .
Barry Must Go to Prison for Contempt
of Court.


[San Francisco Post October 1st1
judges Shafter, Hoge and Wallace rem
| dered lengthy opinions yesterday in the
conteHpt proceedings against James II.
Barry, the editor of the Weekly Star. They
| found him guilty of contempt of Court, and
| ordered him imprisoned in the County
Jail for five days and to pay fine of $500,
| aud upon failure to pay to be committed at
the rate of 81 for each day.
One opinion is written by judges Shafter
| and Hoge. After. declaring that the de-
fendant is within the jurisdiction of the
Court, the judges continue: This in
quiry involves, to some extent, the rights
| and perhaps the privileges of the press.
While this case does not require decision
| attempting to fix or declare the extent or
| limitation of such rights, we allow our
selves to say that judicial proceedings, de-
cisions and judgments are like all other
| matters pertaining to government, open to
| examination, discussion and opinion.
There is no necessity
for impugnipg either the motives
or intelligence of the Judge, still less of
vituperative denunciation. The
three departments of government in differ
ent lines are independent of each other.
Any disrespect on the part of either of tie
others is contempt of the body in which
it is uttered. If the public press insists
upon becoming a fourth estate or depart
ment it cannot complain if it is subjected
to the same rules as control such as have
a constitutional origin. The atrocity of the
article published by the respondent is such
as passes all claim to be other than a libel
and contempt. 1t is somewhat curious in
its aspersions. The Judge of this Court,
by the most contemptuous and disparaging
terms, is declared Intellectually incompe-
far,f 10 thn IV,fin Of ,ef Col
and corrupt, a criminal Judge, deserving OF
conviction as such. With the presiding
Judge he is described as the mere tool,
leaving no legal connection with the ju-
dicial Office. The article apparently was
intended to expose the whole judicial Off
GERS of the city to public execration, for it
is deemed that any appeal to them for jus.
tice would be helpless.
at is proper to say that the decision of
the Judge sustaining the demurrer in the
principal case seems in entire accord with
the People VS.. Metzler, where the same
question ives involved. The Judge simply
followed decision, which, under his oath
of office, he was bound to obey.
There remains only to determine as to the
power of the Court in this proceeding
That this power is inherent in all Courts of
general jurisdiction seems to admit of no
doubt"
The Judges then show that the case of
the People VS.. Bingham was pending in
Judge LAWYERS Court when the article was
published, and the opinion concludes as
follows: 1--WE have therefore no difficulty
in adjudging the defendant guilty of con-
| tempt, and that he must abide the penalty
he has invited"
Judge Wallace, in rendering a concur
ring opinion, says: "The publication for
which Barry is in question, was that
| Francis w. Lawler, one of the Judges of
the Superior Court, is Criminal Judge,
guilty Of deliberate lying about the law;
not merely fool but an impudent rascal,
| a criminal on the bench etc.
THE pretense now set up that to deal
| with Barry for this as constituting con-
tempt is to strike blow at the freedom of
the press scarcely requires notice. There
| is no such freedom of the press or for
| that matter, freedom of any person as
| would Justify or excuse such publication
| as this. The freedom of the press does not
| import an unrestrained license for libel
and ribaldry, nor justify mere vitupera-
| tons and charges of corruption against
Courts and their officers. If il did there
would soon come an end to that orderly
| administration of justice which it is the
highest purpose oil an enlightened press
| to subserve and promote.
w as III mere
contempt within the purview of the sta
| tute2 Did the publication amount to an
unlawful interference with the proceedings
| Of the Court?
I'm answering these questions the cir
cumstance that sthe publication was also
an attack upon the personal reputation of
Judge Lawler is of no moment; the
remedy open to the Judge himself as an
individual is but the same as that afforded
by the law to all other persons.
f" But that the publication in hand was
more than a personal attack upon the
Judge, and was distinctively an unlawful
interference with the proceedings of the
Court as such in the Bingham case is clear.
II What Barry had found in this
order which could so arouse his indigna-
ton is not little difficult to understand"
Judge Wallace maintains that the over
ruling of the demurrer in the Bingham
| case was in accordance with prior deci-
sions, and concludes but even had he
| fallen into that error, that circumstance
| would by no means have authorized Barry,
| as the editor of public journal, to assume
| to interfere with the proceedings of the
Court in the Bingham case; certainly it
| would not have justified him in making
| the vituperative attack which he did in the
publication before u.s."
Under the decision the Sheriff was di-
rected to arrest Barry at once.