Pittsburg dispatch. [volume] (Pittsburg [Pa.]) 1880-1923, 1891-04-25
A BIG LEGAL FIGHT
Soon to Occur in the Supreme Court
Over the Anti-LOttery Law.
FREEDOM OF THE PRESS IN 1T.
Line Of Arguments to Be Followed by De-
fendauts' Counsel.
The POWERS OF CONGRESS- DEFINED.
rrRo1 A STAFF CORRESPONDENCE

rrRoM A STAFF CORRESPONDENCE
WASHINGTON, April 24-As Attorney
General Miller is convalescent it is expected
that what are known as the freedom of the
press cases" which involve the question of
the constitutionality OF the anti-lottery law,
will be heard by the Supreme Court soon,
Solicitor General Taft representing the
Government If Mr.. Miller should fail to ap-
pear. The cases are against publishers of
the Mobile Register and New Orleans
States, newspapers 1or publishing lottery
advertisements.
Mr.. Hannis Taylor, the author of a vol
ume entitled "The Origin and Growth of
the English Constitution" will alone repre-
sent the Register The States will be repre-
sented by Hon. Thomas J. Semmes, the
leader of the New Orleans bar, ana James
c. Carter, ESQ.,, leading attorney OF New
York. Mr.. Taylor, in outlining his argu-
ment to representatives of the press to-day,
gave an interesting account of press censor
ship in Great Britain, and followed with his
conclusions based on present laws and
practices.
Great English Legal Fight.
Down to near the close of the last GEN.
tury," he said, "it was an open question in
England whether in a trial for criminal
libel the criminality of the subject matter of
a publication should be determined by the
Judge or the jury. This controversy led to
the great fight in Westminster Hall, in
which the right of the Judge to settle the
question was upheld by Mansfield and the
right OF the jury by Erskine.
This controversy, which began in 1164,
continued down to May, 1871, when Mr..
Fox introduced his famous libel act, which
declares that the right in question belonged
TO the Jury and not to the judge. The free
dom of speech and the press in England
means therefore nothing more than this: No
man can be punished tor an utterance or
publication until the guilt of the subject
matter of the same has been ascertained by a
jury of his peers.
THE first amendment was adopted Just
SIX months after Mr.. Fox's libel act was in
troduced, and is nothing but an echo and
embodiment of that great measure. Free
dom o. the press in America is. therefore,
lust what it is in England. No American
citizen can be punished in any form on sc-
count OF anv publication made or sent by
him until the criminality OF the subject
matter OF the same has been ascertained by
. Jury OF MS peers
The Question of immortality.
This is we'll illustrated BY the Federal
statutes, which provide that any person
who sends an immoral book through the
mails shall he punished alter jury has as
certained the fact that such book is in fact
immoral. Suppose these statutes should be
so amended as to enumerate the books
which Congress considers immoral, leaving
only the fact of sending for the jury to as
certain. In that event they would be
clearly unconstitutional, for the simple rea-
son that the vital questionable criminality
OF the subject-matter of the publication,
which is purely judicial question-would
be transferred from the jury to Congress.
This illustrates the vice of the anti-lot-
terry law. In it Congress usprps q purely
judicial function by attempting to adjudi-
cate beforehand and without due process of |
law, that the subject-matter of every publi- |
cation in a letter or newspaper concerning a |
lottery is criminal.
This cuts the heart out OF the freedom of
The press If Congress can adjudicate that |
one part of a newspaper is criminal, it can
extend the same power to every other part.
If the right of the jury alone to pass upon
the criminality of publication is taken |
away, the keystone will be withdrawn from
the arch upon which the entire fabric of |
posed. That is the main point of nv argu-
ment."
What will be the line of Mr.. Carter's |
argument?'
The Powers of Congress.
mir. Carter, in his argument, will devote |
himself mainly TO the proposition that Con- |
gress can't so pervert one of its legitimate |
powers TO an illegitImate end as to ac- |
complish purpose entirely outside of |
Federal jurisdiction. Congress has the power |
10 regulate the mails but it has no power to /
suppress Lotteries within a State The |
avowed purpose OF this act, as evidenced by |
its terms and by the reports of the commit
tees to which it was referred, is to suppress
lotteries. Mr.. Carter's strong position is up
held bv great army of authorities
''NIr. Semmes, who will close the discus
sion as leading counsel, will support the |
two contentious advanced bv Mr.. Carter and |
myself, and at the same time he will pre-
sent with his usual trenchant power the
legal status of the lottery company under
the constitution and laws of the State of
Louisiana, which alone possess the power to
suppress it.
In conclusion, Mr.. Taylor said: "This
case will no doubt become landmark, as
the judgment will embody the first defui-
lion ever made by the Supreme Court of the
freedom of the press in the United States.
Until the present Congress met, nobody had
er-ar dared IN asSa1l II -