The morning call. [volume] (San Francisco [Calif.]) 1878-1895, 1891-08-01
JUDGE-MADE LAW.

Judges are making law in the new State
of Montana. The Helena Journal, Russell
Harrison's paper, lately published para
graph to which a County Judge named Nc
Hatton took exception. He summoned the
offending scribe-one James A. Mcknight
before him, and inquired whether he was
responsible for the publication. Mcknight
admitted that he was. The Judge then
asked him where he got his Information.
That Mcknight refused to divulge, where
upon the Judge committed him for Gen.
tempt in refusing to answer. Mcknight
was taken to Jail, and apparently would
have had some prospect of spending his life
there if friends had not applied to the Su-
preme Court for writ of habeaS corpus.
At latest dates the matter was held under
consideration by the Supreme Court.
Judges have so frequently of late abused
their privilege Of issuing commitments for
contempt that the subject has attracted
general attention. Under the old common
law of England the whole matter was left
TO the discretion OF the Judge. He decided
what constituted contempt, and he fixed
the penalty. There was no appeal from his
decision on either point OF late years sew
eral statutes have been passed both by State
Legislatures In this country and by the Par
lament Of Great Britain, defining contempts
and limiting the powers OF Judges; but this
branch of Jurisprudence is still in an I'M
satisfactory state In California communi-
cations from client to his lawyer, from
patient TO his doctor. from a church member
10 his cOnfessor, are privileged; witness
Is not bound to reveal them in reply to ques-
tons in court, and Judge may not hold
him IN contempt In refusing to answer. No
law protects a newspaper writer who re-
fuses to state where he got the information
embraced in his articles. But modern prac-
tice does not sanction his being held for
contempt because he refuses to reveal the
source of confidential information. The
writer Of libel is answerable to the law
for what lie has published; that is enough,
without going back of the actual libeler.
Il is contrary to the public interest that
newspapers should be compelled to reveal
tie sources of their information. 1t not I'M
frequently occurs that facts which the pub
lie ought TO know are discovered by parties
not connected with the press. If the public
knowledge of such facts would be beneficial
the party who possesses that knowledge
feels duty to impart it. His natural in
clinatiOn is to go TO some newspaper and
tell what he knows for the information and
instruction of the public at large. But if he
cannot do so without mourning the risk of a
libel suit he is tempted to hold back. Libel
suits cost money and time, and involve an
noyances; quiet people may object to pro-
voking them merely to serve the public.
Here is where the usefulness of the news
paper comes in. 1t is the special business
OF public journal to denounce knavery and
wrong-dolng, even though the denuneiation
may involve suit for SANDER or libel. Such
suits are part of the regular cost of con-
Quoting newspaper, and no conscientious
editor will allow them to deter him from
stating what he believes to be truth, if he
feels sure that the utterance Will do good.
The party whom he assails has his recourse
upon the newspaper, if he has been untruth-
fully maligned; that remedy ought to satisfy
him.
As to the assumption which appears to
prevail in Montana that an occupant of the
bench can be plaintiff, Judge and jury in his
own case, that an antiquated delusiou which
had better be abandoned as soon as possible
Judge on the bench, in all matters not in
volying the orderly administration of justice
in his court, has the same rights as other
citizens; no more, no less. II he is libeled
he has his recourse against the libeler, I'M
der the law, and in accordance with the
rules of procedure. He can no more sit in
his own case than he could try suit for the
title TO field which he claimed. There are
some Judges in other places besides Mon
tana who still deny this common sense doc
Urine. They may find that a too energetic
application of their peculiar views would
constitute substantial ground for an I'M
parchment.