The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1904-06-01

LAS we have seen, the chief pur-
pose of the statute 'declaratory of the
law of contempts of court approved
March 2, 1881, which is now codified
; in section 725 of the Revised Statutes
III. 5. Camp. st. 1901, p. 5S31. was TO
prevent the punishment, as for con-
tempt, of what were really only the
exercise of free speech and liberty OF
the press in criticising judicial officers
and acts and chrOnicling the doings
of the courts.
And then Your Honor's mind will
run back to when you studied the
law, and Your Honor will remember
the old books. And here we have this
old statute, giving judges of the Fed
eral Court power to punish for con-
tempt, and we have the great learned
Judge Peck impeached for exercising
this right. Following close upon that
impeachment we have the act of 1881.
And then, may it please Your Honor,
shall we not give effect to the eX-
preston of the great people of the
United States, as enunciated through
the National Congress, which Con-
gress now is heard over all the land.
i Shall this voice not be heard?
know Your Honor too WE'LL [ know
Your Honor too we'll to say that Your
Honor will not heed the voice of the
4 Congress of the United States, if Your
Honor thinks that it calls to you.
| read from ex parte Robertson, 10
Wallace, quoted by the leadned Judge
Jones:
Now he takes pfurther down this
question OF the passage of this act in
consequence of the impeachment of
/ Judge Peck. 1t is a mere history of
the act and l will not further read
that. Now / will say to Your Honor
that further in that opinion want
to deal perfectly frankly with Your
Honor-further in that act the Judge
| goes on to say that if a party sets
III motion any machinery which OBJ
structs the administration of justice.
| then he may be punished for contempt
| of court, but the language employed
| there is miSbehavior in the presence
| of the court, or SO near to the court
as to obstruct the administration of
justice and the wording of the opinion
by Judge Jones clearly excerpts this
| publication of the newspaper article.
| That was not the publication of any
newspaper article.
Now, may it please Your Honor, i
want to read you another authority.
/ This is a very learned work on this
subject, as Your Honor knows.
Rapalje OF Contempt, PIP. 1922:
1.-THE force of public opinion in this
/ country, in favor of the freedom of
the press, has restrained the free eX-
ercise of the poWe rto punish this
class of contempts, and in many juris-
dictionS statutes have been enacted
defining the courts of the power to
punish them. 1t was taken from the
) Federal courts by the act of Congress
of 1881, which act deprived those
courts of the common law power to
; protect, by this process, their suitors,
: witnesses, officers and themselves
against hbelS of the press, though
7 published and circulated pending the
: trial of a cause therein; but it did not
withdraw from them the power, of ex-
Guiding reporters from within TIE
, bar, pending the trial of a cause.
Now that is as plain Jas it can be.
This learned author states that power
r to punish the press has been taken
away by the act of 1891 l will cite
t a very familiar illustration to Your
t Honor I could sue a receiver ap-
s pointed by Your Honor in the State
{ Court without getting permission OF
+ Your Honor so to do, but / could not
: sue State receiver without getting
Il permission from the State Court so to
E do because the common law rule OBJ
S tainS.
: / have cited to Your Honor from
r Judge Curtis, Ralpaje, and ould d
+ fuckers notes. / will read now in re
$ Robinson's case. 10 Wallace, 206. III
= Your Honor will pardon me for a mo-
r ment. | want to refresh Your Honor
f recollection of this elementary pro-
: ceeding by reading froA a great Chan
cellor of New York on this subject.
:. Senator Clinton in Yates against the
\ People says: what awful and
u sweeping language from that New
). York Report, quoting from john
: son, 467.
t (Read from U. S. Reports, 10 Wal
e lace, by Justice Fields.)
S But the power has been limited and
|. confined by the Act of 1881 and Your
), Honor has power to punish only by
+ statute. The chart by which we are to
I be guided here is the Act of 1881.
e (Quote here from sc u. S., page
G 511.)
n [ have commented on that, and l
: have read these authorities on it, and
1 all of them say it does not apply to
the press.
Secondly, (quote)
4 In the third place is Where there
1 has been resistance, etc" The third
;, does not apply. Therefore, according
/. to the division made by Justice Fields
i if it applies at all, it is under the
c first application, and l will read that
\ again.
Now when we come to pause OF
c to construe those words or to get al
0 the meaning of the words, by no sor'
i of stretch of construction will 1T APP
DIV TO the press of the United States
: The very idea of supposing that q
: learned editorial in Mr.. w j. Bryan
:, Commoner out in Nebraska, or learn
y ed editorial or cartoon in Harper's
I Weekly-the very idea that an edi-
: torial i'm one of those papers is misbe-
), havior. That is not what m1Sbe-
n havior is. Misbehavior cannot be tor
5, tured into that. Misbehavior is q
e minor matter, an that is the Language
), of the statute.
l We don't have any such thing as
constructive contempt, may 1t please
\ Your Honor. Your Honor cannon
:, punish Josephus Daniels in this case
without some eXtraneous evidence. he
G aad to make an admission here before
5, Your Honor could punish him. He
: had to admit that he was the writer
0 of those articles. Now that is not II
J the presence of the court, because
E something must be done by YOU
i Honor before you can get to Josephu
= Daniels If l were to take this BOOB
d and throw it at somebody over there
you would put me in Jail. If You
c Honor Furnishes Josephus Daniels il
: this case, it will be as for contempt
t 1t will be as going on the other sid
~