like to see it in for this single reason, after satisfying myself that it is reasonable and just.

I am, sir, considered by my constituents a conservative in regard to the right of trial by jury, and I believe it is the unanimous opinion of the bar in the county which I represent that this Convention met for the purpose, amongst other reforms, of adopting the section which has just been voted down, in connection with that upon which we are now acting. If we do it, we shall, so far as the district in which I live is concerned, be enacting one of those reforms which the people hoped for and expected. I trust, therefore, that the mere bugbear of innovation, after gentlemen have satisfied themselves as to the reesons given, will not deter the members of this Convention from doing that which they deem consistent with the spirit of the age.

The PRESIDENT pro tem. The Clerk will call the names of members on the second branch of the amendment of the gentleman from Philadelphia.

The question was taken by yeas and nays with the following result:

YEAS.

Messrs. Bailey, (Huntingdon,) Bannan, Bardsley, Bartholomew, Beebe, Calvin, Campbell, Carter, Collins, Corbett, Craig, Curtin, Dallas, De France, Dodd, Edwards, Ewing, Finney, Hanna, Hay, Hazzard, Land s, Lilly, Littleton, Mott, Newlin, Patton, Reynolds, Russell, Smith, William H., Temple, Turrell, Wherry and White, David N.-34.

NAYS.

Messrs. Andrews, Baily, (Perry,) Baker, Biddle, Bigler, Black, Charles A., Black, J. S., Bowman, Boyd, Brodhead, Broomall, Brown, Bullitt, Clark, Corson, Darlington, Elliot, Gibson, Gilpin, Guthrie, Harvey, Heverin, Hunsicker, Kaine, Knight, Lamberton, Lear, MacConnell, MacVeagh, M'Clean, Mann, Mantor, Niles, Palmer, G. W., Palmer, H. W., Patterson, D. W., Purviance, Samuel A., Reed, Andrew, Rooke, Ross, Runk, Sharpe, Simpson, Smith, H. G., Smith, Henry W., Stanton, Struthers, Walker, Woodward, Worrell and Wright—50.

vis, Dunning, Ellis, Fell, Fulton, Funck, Green, Hall, Hemphill, Horton, Howard, Lawrence, Long, M'Camant, M'Culloch, M'Murray, Metzger, Minor, Mitchell, Parsons, Patterson, T. H. B., Porter, Fughe, Purman, Purviance, John N., Read, John R., Stewart, Van Reed We herill, J. M., Wetherill, John Price, White, Harry, White, J. W. F. and Meredith, President— 49.

Mr. CAMPBell. I offer the following amendment, to be inserted after the word "inviolate," at the end of the section:

"The General Assembly may modify or abolish the grand jury in all cases."

Mr. President, we are all of us so familiar with this question that I do not propose to discuss it, but I merely wish to have the vote taken upon it directly. We are all acquainted with it, and we have made up our minds whether we shall vote to abolish the grand jury system or to retain it. Therefore I hope we shall have a vote without any long discussion. I call for the yeas and nays on the amendment.

The PRESIDENT pro tem. It requires ten delegates to second the call.

Messrs. Worrell, Calvin, Sharpe, Dallas, Corbett, Hanna, Ross, Littleton, Temple, Bartholomew, Bigler, Brodhead, H. W. Smith, Heverin and Curtin rose to second the call.

The PRESINENT pro tem. The call is sustained, and the Clerk will call the roll. The question being taken by yeas and nays, resulted: Yeas, twenty-five; nays, fifty-nine, as follow:

YEAS.

Messrs. Bailey, (Huntingdon,) Bannan, Bardsley, Bartholomew, Beebe, Brodhead, Campbell, Collins, Corbett, Corson, Craig, Gilpin, Hanna, Hazzard, Littleton, Mann, Newlin, Patton, Reynolds, Ross, Simpson, Smith, H. G., Smith, Henry W., Temple and White, David N.-25.

NAYS.

Messrs. Achenbach, Andrews, Baily, (Perry,) Baker, Biddle, Bigler, Black, Charles A., Black, J. S., Bowman, Boyd, Broomall, Brown, Bullitt, Calvin, Clark, Curtin, Dallas, Darlington, Dodd, Edwards, Elliott, Ewing, Finney, Gibson,

ABSENT.-Messrs. Achenbach, Addicks, Ainey, Alricks, Armstrong, Baer, Barclay, Buckalew, Carey, Cassidy, Church, Cochran, Cronmiller, Curry, Cuyler, Da

sicker, Kaine, Knight, Lamberton, Landis, Lilly, MacConnell, MacVeagh, M'Clean, Mantor, Metzger, Mott, Niles, Palmer, G. W., Palmer, H. W., Patterson, D. W., Purviance, Sam'l A., Reed, Andrew,

Rooke, Runk, Russell, Sharpe, Smith, Wm. H., Stanton, Struthers, Turrell, Walker, Wherry, Woodward, Worrell and Wright-59.

So the amendment was rejected. ABSENT.-Messrs. Addicks, Ainey, Alricks, Armstrong, Baer, Barclay, Buckalew, Carey, Carter, Cassidy, Church, Cochran, Cronmiller, Curry, Cuyler, Davis, De France, Dunning, Ellis, Fell, Fulton, Funck, Green, Hall, Hemphill, Horton, Howard, Lawrence, Lear, Long, McCamant, M'Culloch, M'Murray, Minor, Mitchell, Parsons, Patterson, T. H. B., Porter, Pughe, Purman, Purviance, John N., Read, John R., Stewart, Van Reed, Wetherill, J. M., Wetherill, Jno. Price, White, Harry, White, J. W. F. and Meredith, President-49.

The PRESIDENT pro tem. The question now is on the section.

The section was agreed to.

The CLERK read the next section as follows:

SECTION 7. That the printing press shall be free to every person who undertakes to examine the proceedings of the Legislature 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 prosecutions for the publications of papers investigating the official conduct of officers or men in public capacities, 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.

Mr. DALLAS. I move to amend the section by striking out all after and including the word "in," at the commencement of the seventh line, to and including the word "evidence," in the tenth line, and inserting in lief thereof the following:

"All papers relating to the conduct of officers or men in public capacity, or to any other matter proper for public investigation or information, shall be privileged, and no recovery or conviction shall be had in any suit or prosecution, civil or criminal, for the publication thereof, where the fact that such publication was not

maliciously made shall be established to the satisfaction of the jury.”

Mr. President, the clause in the present Constitution for which this proposition is intended to be substituted is as follows:

"In prosecutions for the publications of papers investigating the official conduct of officers or men in public capacity, or where the matter published is proper for public information, the truth thereof may be given in evidence."

The amendment now offered by me somewhat differs from that which I heretofore proposed, and which will be found in the fourth volume of the Debates, page 711. That former amendment reads as follows:

"All papers relating to the conduct of officers or men in public capacity, or to any other matter proper for public investigation or information, shall be privileged, and no recovery or conviction shall be had or sustained in any suit or prosecution, civil or criminal, for the publication thereof, except where such paper shall have been maliciously published, and malice shall not be presumed from the fact of publication."

The difference between the present amendment and that originally offered is indicated by that portion of the language of each now printed in italics in the copy laid upon our tables this morning.

The amendment as it was originally offered by me was founded upon a long line of English decisions. At the time at which I had the honor to offer that amendment I think I demonstrated beyond question that I claimed simply the same liberty for the press here which the judge-made Constitution of England now gives to the press of that country, and that the press of Republican Pennsylvania should have the same liberty precisely which the press of Monarchial England at this day has. I do not propose to go over that argument. It would not be fair to this Convention, hurried, reasonably hurried as it is, that I should repeat a single word of what I have heretofore said.

It will be observed, Mr. President, that the article as reported is precisely the same as that of the Constitution of 1838, aye, sir, and that of 1790; so that with the advance of newspaper enterprise in this State from 1790 until this date, we have not advanced a single step on the subject now before us; and we have reported to us, from the Committee on the Bill of

Rights, precisely the same clause as to the liberty of the press which was adopted by the Convention of 1790. That clause presents the simple proposition, that "in prosecutions for the publication of papers investigating the official conduct of men in public capacity, or where the matter published is proper for public information, the truth thereof may be given in evidence.

That was the Constitution of 1790; that is the Constitution of 1838. The radical defect in that Constitution is that it makes the touchstone the question of truth. Sir, that is not the point which should be made vital in any case of libel. I say, sir, and I speak this not for the press but for the people, whose tribune the press is, that the truth is not the real question, but that the fact of malice or no malice in the publication should be the criterion of responsibility. The press of Pennsylvania is carrying on as legitimate a business as any man in this Convention, be he lawyer or layman, conducts to-day; and a very material portion of the legitimate duty and business of the press is to give to its readers fair, reasonable and even stirring comments upon public events, and I claim that in doing so they should have the same privilleges as those who conduct any other business of the State; and that if, in the legitimate, regular, proper conduct of their business, they fall into unintentional error, they shall not be held responsible. I claim that a typographical error, if you please, should not subject the editor of a public paper to a felon's cell. Why, sir, I am told that in the county of Bucks, very ably represented upon this floor, this peculiar case arose: A newspaper published of a very respectable citizen of that county that he had been committed by a magistrate for the crime of larceny; the compositor who set the type, making a mistake incident to his trade, led to the publication that he had been so committed; and the next day the magistrate appeared before

the

editor of that paper and said: "Sir, you have done me injustice; you have published me as guilty of a theft, whereas, in point of fact, I was the magistrate, who bound another man over for that theft." The statement of that magistrate was precisely true, and a mechanic, a setter of type in the office of of that paper, had been unfortunate-not guilty-in making the misprint. If that magistrate had been a less just man than he was, instead of going to the editor of

that paper and saying, “Sir, you have made a mistake; I wish you to contradict it, which, as an honest man, you will," he would have brought suit in the court of common pleas of Bucks county, and its judge, although the high-toned, honorable man that he is, would, if he had followed decisions which I have heretofore quoted in the presence of this body, have said: "You cannot open your mouth to show that that was an error: you must show that it was true that that magistrate was a thief, and was committed as a thief, or you must go to the penitentiary." To that extent have the rulings under the Constitution of the State of Pennsylvania gone.

Now, sir, my friend from York, (Mr. J. S. Black,) I hope I may call him so, asks me the question, whether any man has been put in the penitentiary for such a thing as that. My answer is that if the gentleman from York had been here when this question was argued before, he would have heard that a man had been convicted, and would have been sentenced but for a merely technical point, for publishing matter which he asked, but was not permitted, to show had been published by innocent mistake. That the gentleman from York was not here was not my fault; it was not his, perhaps, but his misfortune. He asks now: "To the penitentiary?" I reply that I refer to the case of the Commonwealth vs. C. Cathcart Taylor, in the city of Philadelphia, in which the defendant offered to show that he had received reliable information, and had used every care to discover the truth of what he published; that so far from harboring any malice against the parties inflicted, he was entirely free from malice, and that he had published matter which, if true, was (as was admitted) proper for public investigation; but because he could not prove every word and every syllable of what he had said to be true, he was not permitted to rebut a forced presumption of malice or to prove its absence, and but for a new trial, granted upon another point, he would now be under sentence of imprisonment. And, sir, to take a case somewhat distant, we have, although we live in a different city and a different Commonwealth, watched with interest the proceedings in New York which succeeded finally in dethroning the monstrous iniquity that sat there crowned; and how was it brought about? It was brought about by the press of New York, and notably by the Times, of New

York. I tell you, sir, but for that single paper, the man Tweed and his subordinates, he and his satellites, would still revolve in the heaven of political power. But, sir, the Times, of New York, undertook to show what we all know now to have been substantially correct; it undertook to lay before the people of New York what was proper for the public information of that city; and the result is that they now lie low and their power is gone. But, sir, if in publishing its account of the thefts there, if in the city of New York, the Daily Times had made a misprint, had made a slip of a single figure, and had thereby accused those men who it rightfully accused of wrong doing, of the theft of $500 beyond the millions which it now appears they had stolen, not they, but their rightful exposers would have suffered, if the decisions and judgments of some of the courts of Pennsylvania under our present Constitution, could have been made applicable.

Sir, when this proposition was before this Convention at an earlier stage of its deliberations, the objections made to it were only two-fold: First. That it proposed to alter the Bill of Rights. Upon that head, I submit that we have already altered the Bill of Rights, and that there are gentlemen who have their favorite views, which, if adopted, will still further alter it, and that, therefore, this objection is now without weight.

But, second, it was argued that the great difficulty in the proposition, which will be found at page 711 of the fourth volume of the Debates, was this, "that when a man, through the newspaper press, should be accused of any infamous crime, the burden of proof would be unfairly thrown upon him." Now, sir, I believed, and I still believe, and I submit with all sincerity and with great earnestness to this body, that just in that particular the original proposition was right. In every trial of fact that comes before a court, it must determine where the burden of proof shall lie, and it always does and always should under the law, place the burden of proof upon him who stands in opposition to the natural presumption. There is in every case that comes before a court a presumption upon one side or upon the other, and the law places upon that man who seeks to rebut a natural and reasonable presumption the burden of establishing his case by proof. In other words, the law says to every litigant in a court of justice what the presumption is, and that pre

sumption stands thus high that we assume it to be correct until it be contradicted, and therefore proof of that which tends to overthrow it must be given to entitle the person who invokes its overthrow to a verdict.

I argued here on a previous occasion, and I now repeat, that the natural and reasonable presumption as to the press of Pennsylvania, is that it does not intend maliciously, wilfully or negligently (in law the same) to charge upon any man who is a candidate for public office, or who stands in public capacity, or who is properly before the public in connection with any matter proper for public investigation, any wrong or ill-doing, from motives of personal spite or ill-will; but that the natural and reasonable presump tion in every such case is precisely the opposite; and that as to the conductor of a newspaper who presents for the consideration of the people of Pennsylvania any matter proper for their information or investigation, the natural, fair, reasonable and charitable presumption is that he does it for the public good, and in the line of his own proper business, and not for any ill-will he bears to any person.

In public contests men war for public ends. A free press alone can truly serve the State, and public purposes are best subserved by free discussion of public men, and of men who present themselves for public position, and the presumption is, even for editors, that they intend well until proved to purpose ill!

But I have learned that upon this part of my proposition a majority of this Convention do not agree with me in opinion, but while I regret that this is so, I am glad

to have also learned that the noble and true men who are the judges of the highest courts in England, have gone the whole way with me in it. They go farther than I can hope to carry the free delegates of free Pennsylvania, and therefore I have modified my amendment. The modification will be found in italics in the amendment, as it now lies on the desk of each member.

Mr. LITTLETON. I desire to ask my colleague a question.

The PRESIDENT pro tem. Will the gentleman permit himself to be interrupted?

Mr. DALLAS. With pleasure, if the Chair will permit it, under previous rulings.

The PRESIDENT pro tem. The Chair will not permit it.