The English courts are, if anything, even more severe in this class of cases, a recent decision of the Court of King’s Bench being a noteworthy illustration. During the trial of two persons for felony, the “special crime investigator” of the _Bristol Weekly Dispatch_ sent to his paper reports, couched in a fervid and sensational form, containing a number of statements relating to matters as to which evidence would not have been admissible in any event against the defendants on their trial, and reflecting severely on their characters. Both of the defendants referred to were convicted of the crime for which they were indicted, and sentenced to long terms of imprisonment. Shortly after their conviction and sentence the editor of the _Dispatch_ and this special crime investigator were prosecuted criminally for perverting the course of justice, and each of them was sentenced to six weeks in prison. Lord Alverstone, who rendered the opinion on the appeal taken by the editor and reporter, in affirming the judgment of conviction, expresses himself in language well worth repeating. He says:[8]—
“A person accused of crime in this country can properly be convicted in a court of justice only upon evidence which is legally admissible, and which is adduced at his trial in legal form and shape. Though the accused be really guilty of the offense charged against him, the due course of law and justice is nevertheless perverted and obstructed if those who have to try him are induced to approach the question of his guilt or innocence with minds into which prejudice has been instilled by published assertions of his guilt, or imputations against his life and character to which the laws of the land refuse admission as evidence.”
In the state of New York the courts have permitted themselves to be deprived of the greater portion of the power which the courts of Massachusetts, in common with those of most of the states, exercise of punishing for contempt the authors of newspaper publications prejudicial to fair trials. Some twenty-five years ago the state legislature passed an act defining and limiting the cases in which summary punishment for contempt should be inflicted by the courts. Similar legislation has been attempted in other states, only to be declared unconstitutional by the courts themselves, which hold that the power to punish is inherent in the judiciary independently of legislative authority, and that, as the Supreme Court of Ohio says, “The power the legislature does not give, it cannot take away.” But while the courts of Ohio, Virginia, Georgia, Indiana, Kentucky, Arkansas, Colorado, and California have thus resisted legislative encroachment upon their constitutional powers, the highest court of New York has submitted to having its power to protect its own usefulness and dignity shorn and curtailed by the legislature. The result is that while by legislative permission they may punish the editor or proprietor of a paper for contempt, it can be _only_ when the offense consists in publishing “a false or grossly inaccurate report of a judicial proceeding.” The insufficiency of such a power is apparent when one considers that the greater number of the cartoons and comments contained in publications fairly complained of as prejudicing individual legal rights are not, and do not pretend to be, reports of judicial proceedings at all, but are entirely accounts of matters “outside the record.” If the acts done, for example, in any of the cases cited as illustrations above, had been done under similar circumstances in New York, the New York courts would have been powerless to take any proceeding whatever in the nature of contempt against the respective offenders. The result is that in the state which suffers most from the gross and unbridled license of a sensational and lawless press the courts possess the least power to repress and restrain its excesses. A change of law which shall give New York courts power to deal summarily with trial by newspaper is imperatively needed.