A Fun Little Judicial Diatribe

From Stewart v. Howe, 17 Ill. 71 (1855):

This was an action for slander, commenced by Sophia Howe, by her next friend, complaining of Amos Stewart. The words, as proved, were: "She stole my money;" ""she stole ninety dollars;" "she is a smart little thief." It was also in proof that Sophia was but nine years and nine months old....


The slanderer insists, in effect, upon the infancy of his intended victim, in justification of his malice. Feejee cannibalism could ask no greater license or security for the gratification and satiety of its unnatural and morbid appetite. I must confess that while the law recognizes the speaking and publication of actionable words as a wrong and injury, for which it offers a remedy, I shall feel, if judges may be allowed that pardonable weakness, that such a defence has not a solitary grace to recommend it to favor. I would sooner see the action abolished, than to read out infancy from the pale of its protection. If there can be a redeeming trait in the character of the cormorant, it must be in satiating his gluttony upon the strong and powerful, at the hazard of physical retribution. But judges have no right to feel, or at least to make it a predicate of their judgment. It is the head, and not the heart; and from it must proceed justice, legal justice, though the heavens fall by the fiat....

[The defendant's argument was that the statement would only be slanderous, at least in these circumstances, if it alleged that plaintiff had committed an indictable crime — and that couldn't be the case, because she was under the age of 10, and state law treated children under 10 as not being criminally responsible. The judge engaged in an extensive rebuttal of the argument, and concluded: -EV]

The law may and will spare infancy, but the slanderer cries aloud and spares not. I am not called on to say how young a plaintiff may sustain this action for words imputing crime, but, as called upon in this case, I am compelled to say that this plaintiff shall not shield himself from accountability, by alleging defendant's infancy, which should have afforded a conclusive reason for charitable forbearance of his malice and shall not constitute a shield and ground of defence to him.

UPDATE: "Plaintiff" and "defendant" are thus in the original (at least on Westlaw). I take it that the judge said this because Stewart, the defendant at trial, was the appellant before the Illinois Supreme Court (that's why his name is first in the case name), and Howe, the plaintiff at trial, was the appellee; perhaps in the lingo of the time, this led them to be called plaintiff and defendant (something that wouldn't be done today). Or maybe the judge just erred.

When was the last time someone invoked the cormorant in an opinion?
5.28.2009 5:41pm
Apep (mail):
What are you talking about? Posner does all the time. He has one on his shoulder during oral argument.
5.28.2009 5:52pm
Jonathan F.:
Probably more recently than the last time someone invoked Feejee cannibalism.
5.28.2009 5:54pm
Gabriel McCall (mail):
But judges have no right to feel, or at least to make it a predicate of their judgment.

You'll never get to the Supreme Court that way, buddy.
5.28.2009 6:04pm
jdporter (mail):
That's just wrong. The cormorant is strictly out of bounds!
5.28.2009 6:05pm
I've seen cases from the early 19th century that refer to the "plaintiff in error" and "defendant in error", i.e., the appellant and respondent.
5.28.2009 9:35pm

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