Page:Harvard Law Review Volume 10.djvu/203

Rh that an order not to commit the contempt was an unheard of proceeding; that the prisoner's rights would not be jeopardized, for if the state of public feeling should render an impartial trial impossible, he would be granted a new trial.

Two judges dissented from the majority opinion, contending that the right of free speech should be limited by the constitutional power of the judiciary to insure litigants fair trials; and that while it might be going too far to enjoin the publication of an ordinary libel, a court should certainly be allowed to prevent all interference with the course of justice in a pending trial.

The argument of the dissenting judges seems to lead to the more satisfactory conclusion, and it is certainly a pity if it cannot be reconciled with the language of the Constitution. There is room for much false sentiment on the subject of free speech and other high-sounding natural rights of the freeborn citizen. No one would contend that the right of a man on trial for his life to secure justice should not rank paramount to the right of a theatrical manager to coin shekels by inflaming the popular mind against him. To compel the prisoner to go to the expense of a new trial or a change of venue is an unsatisfactory way out of the difficulty. The public interest may demand that a man shall generally be free to speak his thoughts; it certainly demands that the course of justice shall always run smooth.

. - That a woman suing for divorce may be required to pay temporary alimony and solicitor's fees to her husband is the decision of the Circuit Court of Cook County, Illinois, in Groth v. Groth, reported in 7 Chicago Law Journal, 360. The ratio decidendi is, that, where changed circumstances bring a case within the reason of an old rule, the rule must be applied, tlhough what seems a novel result is thereby attained.

It can hardly be questioned that the law administered in the Ecclesiastical Court of England, what may be called the common law of divorce, is law in this country. 1 Bishop, Mar., Div. & Sep. § 133. Temporary alimony was allowed in North v. North, 1 Barb. Ch. 241, without a statutory provision. The result then in the principal case is undoubtedly correct if the old ground for compelling the payment of alimony now exists in the woman's case as well as the man's. Bishop states as the reason for allowing it in the Ecclesiastical Court, "that the marriage has taken from the wife her property and vested it in the husband, leaving her when acting apart from or adversely to him in poverty." 2 Mar., Div. & Sep. § 922. This ground does not exist to-day in most jurisdictions, but the wife's right to temporary alimony in a proper case is too firmly established to be denied. If, then, as the court says, the wife "has been placed on an equality with her husband in respect to her personal and property rights," common fairness requires that it should be allowed to the husband too, and such a result is justifiable on the theory advanced by the court. While strict construction is the rule when a statute is in derogation of the common law, repeated legislation on a subject imbues the judges with the spirit of the change. So that ultimately, when questions come up which are not within the letter of the statutes, this effect is apparent in the manner in which they are treated. Smart v. Smart, [1892] A. C. 425, is an instance of this. At page 435 of the opinion, Lord Hobhouse does not hesitate to say that this is