The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1899-10-27

pealed Forty Years Ago.
Arguments on tho rule for a new trial
Tor Editor Little of the Scrantonian,
convicted of libeling Colonel L. II.
ripple, were heard by Judges Arch
paid, Gunster and Edwards in the
superior court room yesterday morn
ing.
The room was crowded and there was
general expectation that something
racy would be sprung. as it was known
Cornelius Smith would make the argu-
ment for the defense. The crowd was
disappointed, though, nothing bearing
the semblance of a sensation was forth
coming and not the slightest reference
was made by the defense to the jury
fixing fiasco which was sprung Satur-
day.
JOhn Gibbons occupied a front seat
in the spectators benches and by his
side sat William LOTUS, of Carbon
dale, "the man" in the case. Mr.. Lof-
tus, however, was not given an oppor-
tunity of showing, as the prosecution
wished to show, how utterly hollow the
allegation was.
Mr.. Smiths argument was eloquent
and characterized by extreme earnest
ness, and layman would pronounce it
profound. He devoted his attention al
most wholly to the what he termed the
main proposition of the case as con-
tanned in the first two reasons assigned
for new trial:
First-The court erred in ruling that
the alleged libelous matter was not
privileged communication.
Second-The court erred in excluding
the evidence offered by the defendants
to prove the truth of the charges con-
tained in the libelous articles.
SUM OF HIS ARGUMENT.
The sum of his argument was that
Tree speech is right, not a privilege:
that that right can not be modified
restrained or withheld; that it can be
abused; that the constitution stipulates
that the abuse of that right is to pub
llsh libel maliciously or negligently,
and that the burden of pleading and
proving that abuse rests on the COM
monwealth.
In other words, instead of the Scran-
tonian editors being compelled to prove
that the publications in question were
not malicious and not negligently
made, it was the duty of the prosecu-
ton to show the malice or negligence;
and then it was incumbent upon the
defense to rebut it if it could, by show
ing that it was published from a good
motive and for justifiable ends and that
it was true.
Mr.. Smith asserted without the
slightest equivocation that no lower
court has as yet properly interpreted
the law of libel all, without exception,
have misconstrued this question of
privilege; none have given it the in
depreciation he would put upon it and
the libel law as accepted for the last
century has been nothing more or less
than msapplication of the inten-
tions of the constitution trainers. He
claimed his position was impregnable
unanswerable and impossible to get
away from. 1t would overturn the
whole theory of libel law as now gem
orally accepted and establish bran
new system of pleading and practice.
His argument was grounded mainly
/. on the Act of 1856 and the constitu-
tions of 1880, 1888 and 1874 the con-
clusion as whole resting on the sum
OF the deductions drawn from each.
PRIVILEGE DEFINED.
Great stress was laid on the distinc-
tion between special authority and
legal right in defining privilege"
That distinction will reverse all our
lower courts in their ideas of criminal
libel" Mr. Smith declared
A liquor license, Mr.. Smith said, by
way of example, is a privilege to vio-
late the law. Free speech and self
defense are not privileges of that kind
The first is special authority. The lat
ter are special rights, that do not be-
come violations of the law until they
are abused. Selling liquor is an offense
against the law from the beginning
The freedom of the press is not a privi-
lege, but legal right. That right can
not be withheld, but publisher can
be held responsible for the abuse of II.
That abuse is a question for the jury
and cannot be determined by the court.
If an article is published from a good
motive and is true, it is not an abuse
of that right, under the Act of 1856.
The burden of pleading and proving
that an abuse has occurred rests on the
commonwealth. The constitution says
an abuse Of that right is maliciously
or negligently published LIBEL The
malice and negligence must be alleged
in the indictment and proved. The
prosecution must say so in the plead
ings and then prove it.
Judge Edwards at this juncture re-
marked. You contend that it is i'm
material whether the libel is true or
false, do you?"
In the prima facie case it is en-
trely immaterial," Mr.. Smith ex-