More Advice to Mr. Barnard.
When Mr. Recorder Barnard sat in Solomonic judgment on Stephen H. Branch, he evidently forgot for the moment the dignity of a judge, and assumed the questionable attributes of a politician. That Mr. Recorder Barnard is nominally a lawyer we will admit, for he comes under all provisions of the New Code, which creates lawyers with the celerity of machinery; but that he understands the law, we emphatically deny. Before Mr. Barnard mounted the Bench, was his name ever known to the community as a successful barrister? Was he ever intrusted with any important civil or criminal case? Did he ever make a speech the most common-place reporter thought worthy of being reproduced in type? Not one of those tests of popularity, which appertain to the career of the most common of attorneys, seem to apply to the case of our learned Recorder, upon whose brow honor and glory have stumbled as it were by accident.
Mr. Barnard, in sentencing Mr. Branch, evidently desired to impress the public mind with an idea of his individual authority; forgetting that he was armed with the sword of mercy, he wielded only that of justice, and with a vindictiveness, as reckless as it was violent, loaned himself to the wishes of partizan leaders, who daily stand in dread of exposure from an unbridled press. As vermin cannot dwell in certain atmospheres, these men stifle coming in contact with the air of a free press; and it is to them we owe the bitter persecution of free opinion, as is glowingly instanced in the judgment passed upon Branch. A self-same punishment would have been meted out to any offending editor, who may touch the dignity of the confederated band, who thus attempt to throttle speech, whose freedom should be indigenous to the soil.
How long has Mr. Barnard learned that a convicted editor is a mere felon? That he should be maltreated, disgraced, and placed even below the level of thieves and malefactors? The case of Mr. Branch is probably the first on record, wherein a man condemned for libel was compelled to submit to prison discipline, intended only for a minor class of felons. But as this case has occurred, it has afforded to our people a fair opportunity of judging upon the irresponsibility, we will not say imbecility, of an elective judiciary. Catch the most insignificant errand-boy in the nearest lawyer’s den, and he will give you a better legal, if not more humane, exposition of the true genius of the laws than was publicly enunciated by Mr. Recorder Barnard, who indirectly repudiated pure maxims of jurisprudence, and substituted vagaries of vengeance. Let us, therefore, profit by this casual display of sentiment; for say we to all quarters of the city, with a voice as of that of a watchman in the hour of alarm, that none, not even the pure and guileless, are safe while fantasies such as these are suffered to be fulminated from a criminal bench. And likewise mind, we draw a grave distinction between our civil and criminal judiciary. Unfortunately, the highest and most respected of our judges are occupied solely with the rights of property, and we have committed the rights of the person to the most obscure of obscure attorneys, accidentally thrust from pure partizan influence upon the Bench. While the truly learned Justice Clerke, a lawyer such as the way of Christian life would make him, is simply occupied in matters of dollars and cents, our lives, our persons, our future, immaculate, are intrusted to the supervision of such learned pundits as Mr. Recorder Barnard and City Judge Russell.
Liberty of speech is a right, paramount to that of every other consideration; it has been treasured as the key-stone to the great, unwritten Constitution of Britain and of our own land; it is the vital essence of our political existence, and its abuse has been judicially tolerated that the spirit shall be perpetuated. But as Mr. Recorder Barnard has not probably indulged in the intellectual luxury of perusing Hallam’s Constitutional History—such a work being unknown to the New Code—we will excuse him from any implied admiration of that respect, yea, adoration, for personal rights, which animated the manly soul of Algernon Sidney and fired the patriotism of John Hampden.
We simply wish to inform Mr. Recorder Barnard that he labors under a delusion when he presumes libel to be a misdemeanor in the literal sense of the word, and although the law may be virtually misconstrued in such a wise as to authorize interpretation that it may verge upon misdemeanor, still the practice of Courts, presided over by Kent, by Eldon, and by Camden, has essentially abrogated any such pretence in fact. In meeting out to Mr. Branch the doom of a common thief, in disgracing and degrading him before the eyes of a community, he attempted in a feeble way, it may be observed, to instruct and enlighten. Mr. Barnard and his satellites not only erred in tempor, but in absolute legality. They have reaped a harvest of glory in the unmurmured cases of a sympathetic public who will profit by the lesson we have received, and hence forward seek not such servants as these.