Nor do we see how the objection of interest can be waived by the other party. If not taken before the decision is rendered, it will avail in an appellate court; and the suit may there be dismissed on that ground. The judge acting in such a case is not simply proceeding irregularly, but he is acting without jurisdiction. And if one of the judges constituting a court is disqualified on this ground, the judgment will be void, even though the proper number may have concurred in the result, not reckoning the interested party.2 Mere formal acts necessary to enable the case to be brought before a proper tribunal for adjudication, an interested judge may do; but that is the extent of his power. 1 Richardson v. Welcome, 6 Cush. 332; Dimes v. Proprietors of Grand Junction Canal, 3 H. L. Cas. 759. And see Sigourney v. Sibley, 21 Pick. 101; Oakley v. Aspinwall, 3 N. Y. 547. But it is held in Pettigrew v. Washington Co., 43 Ark. 33, that after judgment it is too late to object that relationship to a party disqualified a judge. But see succeeding note. 2 In Queen v. Justices of Hertfordshire, 6 Q. B. 753, it was decided that, if any one of the magistrate hearing a case at sessions was interested, the court was improperly constituted, and an order made in the case should be quashed. It was also decided that it was no answer to the objection that there was a majority in favor of the decision without reckoning the interested party, nor that the interested party withdrew before the decision, if he appeared to have joined in discussing the matter with the other magis trates. See also the Queen v. Justices of Suffolk, 18 Q. B. 416; The Queen v. Justices of London, 18 Q. B. 421; Peninsula R. R. Co. v. Howard, 20 Mich. 18. 3 Richardson v. Boston, 1 Curtis, C. C. 250; Washington Insurance Co. v. Price, Hopk. Ch. 1; Buckingham v. Davis, 9 Md. 324; Heydenfeldt r. Towns, 27 Ala. 423; State v. Judge, 37 La. Ann. 253. If the judge who renders judgment in a cause had previously been attorney in it, the judgment is a nullity. Reams v. Kearns, 5 Cold. 217; Slaven v. Wheeler, 58 Tex. 23. [Or if he has advised one of the parties upon his rights in regard to any fact involved in the case. Tampa St. R. & P. Co. v. Tampa Suburban R. Co., 30 Fla. 595, 11 So. 562, 17 L. R. A. 681.] So though the case in suit is not precisely the one in which he has been consulted. Newcome v. Light, 58 Tex. 141, CHAPTER XII. LIBERTY OF SPEECH AND OF THE PRESS. THE first amendment to the Constitution of the United States provides, among other things, that Congress shall make no law abridging the freedom of speech or of the press. The privilege which is thus protected against unfriendly legislation by Congress, is almost universally regarded not only as highly important, but as being essential to the very existence and perpetuity of free government. The people of the States have therefore guarded it with jealous care, by provisions of similar import in their several constitutions, and a constitutional principle is thereby established which is supposed to form a shield of protection to the free expression of opinion in every part of our land.1 The following are the constitutional provisions: Maine: Every citizen may freely speak, write, and publish his sentiments on any subject, being responsible for the abuse of this liberty. No law shall be passed regulating or restraining the freedom of the press; and, in prosecutions for any publication respecting the official conduct of men in public capacity, or the qualifications of those who are candidates for the suffrages of the people, or where the matter published is proper for public information, the truth thereof may be given in evidence; and in all indictments for libel, the jury, after having received the direction of the court, shall have a right to determine, at their discretion, the law and the fact. Declara tion of Rights, § 4-New Hampshire: The liberty of the press is essential to the security of freedom in a State; it ought, therefore, to be inviolably preserved. Bill of Rights, § 22. - Vermont: That the people have a right to freedom of speech, and of writing and publishing their sentiments concerning the transactions of government; therefore the freedom of the press ought not to be restrained. Decla ration of Rights, Art. 13. Massachusetts: The liberty of the press is essential to the security of freedom in a State; it ought not, therefore, to be restrained in this Commonwealth. Declaration of Rights, Art. 16. — Rhode Island: The liberty of the press being essential to the security of freedom in a State, any person may publish his sentiments on any subject, being responsible for the abuse of that liberty; and in all trials for libel, both civil and criminal, the truth, unless published from malicious motives, shall be sufficient defence to the person charged. Art. 1, § 20.- Connecticut: No law shall ever be passed to curtail or restrain the liberty of speech or of the press. In all prosecutions or indictments for libel, the truth may be given in evidence, and the jury shall have the right to determine the law and the facts, under the direction of the court. Art. 1, §§ 6 and 7. — New York: Every person may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or the press. In all criminal prosecutions or indictments for libels, the truth may be given in evidence to the jury, and if it shall appear to the jury that the matter charged as libellous is true, and was pub It is to be observed of these several provisions, that they recognize certain rights as now existing, and seek to protect and per lished with good motives and for justifiable ends, the party shall be acquitted, and the jury shall have the right to determine the law and the fact. Art. 1, § 8.- New Jersey: Every person may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press. In all prosecutions or indictments for libel, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libellous is true, and was published with good motives and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact. Art. 1, § 5.-Pennsylvania: That the printingpress shall be free to every person who may undertake to examine the proceed ings of the legislature, or any branch of government, and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty. No conviction shall be had in any prosecution for the publication of papers, relating to the official conduct of officers or men in public capacity, or to any other matter proper for public investigation or information, where the fact that such publication was not maliciously or negligently made shall be established to the satisfaction of the jury; and in all indictments for libels, the jury shall have the right to determine the law and the facts, under the direction of the court, as in other cases. Art. 1, § 7. Delaware: The press shall be free to every citizen who undertakes to examine the official conduct of men acting in public capacity, and any citizen may print on any such subject, being responsible for the abuse of that liberty. In prosecutions for publications investigating the proceedings of officers, or where the matter published is proper for public information, the truth thereof may be given in evidence; and in all indictments for libels, the jury may determine the facts and the law, as in other cases. Art. 1, § 5.- Maryland: That the liberty of the press ought to be inviolably preserved; that every citizen of the State ought to be allowed to speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that privilege. Declaration of Rights, Art. 40.- West Virginia: No law abridging the freedom of speech or of the press shall be passed; but the legislature may provide for the restraint and punishment of the publishing and vending of obscene books, papers, and pictures, and of libel and defamation of character, and for the recovery in civil action by the aggrieved party of suitable damages for such libel or defamation. Attempts to justify and uphold an armed invasion of the State, or an organized insurrection therein during the continuance of such invasion or insurrection, by publicly speaking, writing, or printing, or by publishing, or circulating such writing or printing, may be by law declared a misdemeanor, and punished accordingly. In prosecutions and civil suits for libel, the truth may be given in evidence; and if it shall appear to the jury that the matter charged as libellous is true, and was published with good motives, and for justifiable ends, the verdict shall be for the defendant. Art. 2, §§ 4 and 5.-Kentucky: That printingpresses shall be free to every person who undertakes to examine the proceedings of the General Assembly, or any branch of the government, and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty. In all prosecutions for the publication of papers investigating the official conduct of officers or men in a public capacity, or where the matter published is proper for public information, the truth thereof may be given in evidence; and in all indictments for libels, the jury shall have a right to determine the law and the facts, under the direction of the court, as in other cases. Art. 13, §§ 9 and 10.— Tennessee: Nearly the same as Pennsylvania. Art 1, § 19.-- Ohio: petuate them, by declaring that they shall not be abridged, or that they shall remain inviolate. They do not assume to create Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of the right; and no law shall be passed to restrain or abridge liberty of speech or of the press. In all criminal prosecutions for libel, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libellous is true, and was published with good motives and for justifiable ends, the party shall be acquitted. Art. 1, § 11.Iowa, Art. 1, § 7, and Nevada, Art. 1, § 9. Substantially same as Ohio. — Illinois: Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that liberty; and in all trials for libel, both civil and criminal, the truth, when published with good motives and for justifiable ends, shall be a sufficient defence. Art. 2, § 4. Indiana: No law shall be passed restraining the free interchange of thought and opinion, or restricting the right to speak, write, or print freely on any subject whatever, but for the abuse of that right every person shall be responsible. In all prosecutions for libel, the truth of the matters alleged to be libellous may be given in justification. Art. 1, §§ 9 and 10. Michigan: In all prosecutions for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libellous 18 true, and was published with good motives and for justifiable ends, the party shall be acquitted. The jury shall have the right to deter mine the law and the fact. Art 6, § 25.Wisconsin: Same as New York. Art. 1, § 3. Minnesota: The liberty of the press shall forever remain inviolate, and all persons may freely speak, write, and pub. lish their sentiments on all subjects, being responsible for the abuse of such right. Art. 1, § 3. Oregon: No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject what ever; but every person shall be responsible for the abuse of this right. Art. 1, § 8. -California: Same as New York. Art. 1, § 9.- Kansas: The liberty of the press shall be inviolate, and all persons may freely speak, write, or publish their senti - ments on all subjects, being responsible for the abuse of such right; and in all civil or criminal actions for libel, the truth may be given in evidence to the jury; and if it shall appear that the alleged libellous matter was published for justifia ble ends, the accused party shall be acquitted. Bill of Rights, § 11. — Missouri: That no law shall be passed impairing the freedom of speech; that every person shall be free to say, write, or publish whatever he will on every subject, being responsible for all abuse of that liberty; and that in all prosecutions for libel, the truth thereof may be given in evidence, and the jury, under the direction of the court, shall determine the law and the fact. Art. 2, § 14. — Nebraska: Same as Illinois. Art. 1, § 5. Arkansas: The liberty of the press shall forever remain inviolate. The free communication of thoughts and opinions is one of the invaluable rights of man, and all persons may freely speak, write, and publish their sentiments on all subjects, being responsible for the abuse of such right. In all crim. inal prosecutions for libel, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libellous is true, and was published with good motives and for justifiable ends, the party shall be acquitted. Art. 1, § 2. - Florida: Every person may freely speak and write his sentiments on all subjects, being responsible for the abuse of that right, and no law shall be passed to restrain or abridge the liberty of speech or the press. In all criminal prosecutions and civil actions for libel, the truth may be given in evidence to the jury; and if it appear that the matter charged as libellous is true, and was pub lished with good motives, the party shall be acquitted or exonerated. Declaration of Rights, § 10. - Georgia: No law shall ever be passed to curtail or restrain the liberty of speech or of the press; any person may speak, write, and publish his sentiments on all subjects, being respon sible for the abuse of that liberty. Art. 1, § 1, par. 15.- Louisiana: No law shall be passed. abridging the freedom of speech or of the press. Bill of Rights, Art. 4. — North Carolina: The freedom of new rights, but their purpose is to protect the citizen in the enjoyment of those already possessed. We are at once, therefore, turned back from these provisions to the pre-existing law, in order that we may ascertain what the rights are which are thus protected, and what is the extent of the privileges they undertake to assure. At the common law, however, it will be found that liberty of the press was neither well protected nor well defined. The art of printing, in the hands of private persons, has, until within a comparatively recent period, been regarded rather as an instrument of mischief, which required the restraining hand of the gov ernment, than as a power for good, to be fostered and encouraged. Like a vicious beast it might be made useful if properly harnessed and restrained. The government assumed to itself the right to determine what might or might not be published; and censors were appointed without whose permission it was criminal to publish a book or paper upon any subject. Through all the changes the press is one of the great bulwarks of liberty, and therefore ought never to be restrained; but every individual shall be held responsible for the abuse of the same. Declaration of Rights, § 20. — South Carolina: All persons may freely speak, write, and publish their sentiments on any subject, being responsible for the abuse of that right; and no laws shall be enacted to restrain or abridge the liberty of speech or of the press. In prosecutions for the publication of papers investigating the official conduct of officers or men in public capacity, or when the matter published is proper for public information, the truth thereof may be given in evidence; and in all indictments for libel the jury shall be judges of the law and the facts. Art. 1, §§ 7 and 8.-Alabama: That any citizen may speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that liberty. That in prosecutions for the publication of papers investigating the official conduct of officers or men in public capacity, or when the matter published is proper for public information, the truth there of may be given in evidence; and that in all indictments for libels, the jury shall have the right to determine the law and the facts, under the direction of the court. Art. 1, §§ 5 and 13.- Mississippi: The freedom of speech and of the press shall be held sacred; and in all indictments for libel, the jury shall determine the law and the facts, under the direction of the court. Art. 1, § 4. Texas: Every citizen shall be at liberty to speak, write, or publish his opinions on any subject, being respon sible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press. In prosecutions for the publication of papers, investigating the official conduct of officers or men in a public capacity, or when the matter published is proper for public information, the truth thereof may be given in evidence; and in all prosecutions for libels, the jury shall have the right to determine the law and the facts, under the direction of the court, as in other cases. Art. 1, §§ 5 and 6.- Virginia: That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments, and any citizen may speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that liberty. Art. 1, § 14.-Colorado: That no law shall be passed impairing the freedom of speech; that every person shall be free to speak, write, or publish whatever he will on any subject, being responsible for all abuse of that liberty; and that [in] all suits and prosecutions for libel, the truth thereof may be given in evidence, and the jury, under the direction of the court, shall determine the law and the fact. Art. 2, § 10. |