The American Judiciary

by Simeon E. Baldwin

In States the control of which by one of the great political parties is assured, the real contest is for the nomination, and here there is even more license for unfavorable comment on the judicial record of one who seeks it. In a Southern State there was such a struggle in 1903 for the nomination of the prevailing party for Governor. The person who then held that place desired it. So did one of the justices of the Supreme Court. It is said that the friends of the former circulated a cartoon representing the five justices together as five jackasses, and another in which the justice whom they were trying to run off the field was caricatured in the act of setting aside a verdict in favor of a child injured by a railway accident. The two candidates subsequently met upon the platform for a joint discussion of the issues before the people. The Governor sharply criticised the character of the Supreme Court. The judge caught him by the collar and was about to strike him when friends intervened, and an explanation of the remarks was made which was accepted as satisfactory.

In the heat of a political campaign men do not always stop to measure words or weigh questions of propriety. The personal character and public acts of an opponent are a legitimate subject of description and comment. Sharp attacks must be expected as a natural incident of such a contest, and by candidates for judicial office as well as others. The public record of all for whom votes are asked at a public election must be the subject of open criticism, or there would be danger that unworthy men would succeed. To treat such observations as have been quoted upon opinions previously written by a candidate for re-election, however unseemly or unjust, as a contempt of court would be indirectly to impair the right of free suffrage.

If assertions published as to acts done or words said are false, it does not follow that they are libellous. An honest mistake may be a defense for such a misstatement.[Footnote: Briggs v. Garrett, 111 Penn. State Reports, 404; 2 Atlantic Reporter, 513.]

Judges of trial courts, when candidates for re-election, may expect the publication of similar attacks on rulings which they have made. The following dispatches, which appeared in the same issue of a local newspaper in Pennsylvania in 1903, when a county election was soon to occur, will sufficiently illustrate this:

HOT JUDICIAL FIGHT PROMISED FOR MERCER. COUNTY WILL BE SCENE OF AN INTERESTING STRUGGLE FOR SEATS IN THE LEGISLATURE.

Sharon, Pa., Dec. 25.—From present indications the coming judicial fight in Mercer County will be a bitter one. Public interest centers in the efforts of Judge S. H. Miller and his friends to secure a re-election, and the attempts of his opponents to place A. W. Williams of Sharon on the bench instead. While the sole topic politically is on the judgeship, the twenty or more candidates for Assembly are not losing the opportunity of fixing their fences. They, too, have assumed a reticence in regard to the matter of the judgeship. It is expected that on the last lap of the race Williams and Miller will be the only two men remaining. There are three other candidates for the Republican nomination who have thus far announced themselves. They are: W. J. Whieldon of Mercer; W. W. Moore of Mercer, and L. L. Kuder, burgess of Greenville. Judge Miller and A. W. Williams are the closest of friends.

JUDGE MILLER ASKS FOR MODERATION. BARS PURE FOOD PROSECUTIONS BY REFUSING TO SENTENCE THOSE CONVICTED.

Harrisburg, Pa., Dec. 25.—State Dairy and Food Commissioner Warren has been confronted with a new proposition in his crusade in Western Pennsylvania against violators of the pure food laws. Judge S. H. Miller of Mercer County, before whom several oleomargarine dealers were recently convicted for the illegal sale of "oleo," has refused to sentence them on the ground that the procedure of the State Pure Food Bureau is persecution and lacking in equity. He takes the position that grocers and saloon keepers, not being expert chemists, should at least be warned previous to arrest, and be given a chance to determine whether the foods they are handling are pure or adulterated. Judge Miller's position is a serious impediment in the way of the enforcement of the law, and Commissioner Warren is preparing to take action that may compel him to punish offenders convicted before him.

Not infrequently in the judicial history of the United States there has been presented to a judge the choice between rendering a decision according to his opinion of the law and the facts and losing his seat, and rendering one according to public opinion, or the public opinion of his party friends, and keeping it.

A judge of the High Court of Errors and Appeals in Mississippi was one of the earlier martyrs in the cause of judicial independence. The State had incurred a heavy bonded debt, which she found it inconvenient to pay. The Governor, who had approved the bills under which over $15,000,000 of the bonds had been issued, concluded in 1841, after the issue, that it was forbidden by the Constitution of the State, and issued a proclamation declaring them void. In a suit in chancery this question came up for decision in 1852. Meanwhile the policy of "Repudiation" had been made a political issue and the people had given it their approval by electing its advocates year after year to the highest offices. The chancellor upheld the validity of the bonds, and on appeal his decision was unanimously affirmed.[Footnote: State v. Johnson, 25 Mississippi Reports, 625; Memoir of Sergeant S. Prentiss, II, 268.] A few months later the term of office of one of the judges who had concurred in this opinion expired, and the people put a successor in his place who held doctrines better suited to the public sentiment of the hour.