The Washington herald., 1909-01-18


United States as the prosecutor.
1t seems TO be certain. however, that
President Roosevelt's contention that the
publications about the reported Panama
Canal deal ARE, in fact. wholly and in
form partly libel upon the United States
government Is 10 be applied by the Fed
ersl district attorney here. and that the
government viii be complainant as well
as prosecutor
Based on Contention.
The understanding Saturday that the
proceedings would be based on the con
tention that the government was person
and could be isbeled. caused much sur
prise and speculation. as the Federal
courts had decided that there could be no
lIbe! against the United States in the sb-
sence OF a specific statutory declaration
on the subject, and that there was no
warrant for prosecuting a libel against
the United States under the common law
II is understood that persons interested
in the proposed prosecution maintain that
while il is true that this principle applies
elsewhere in the Republic. the sixty-fOur
square miles constituting the area known
as the District OF Columbia are excepted
from its application. In the District OF
Columbia. they contend. the United States
IS regarded as an individual person and
can be Iibeled criminaily.
The contention Is founded on a compli-
cation of laws growing out OF the cession
to the Federal government by the States
OF Maryland and Virginia Of the territory
Of the District Of Columbia and Of sue
cee6lng acts in Congress.
The District OF Columbia Is now gov
erned by a code which became effective
on January /, 1852 The necessity FOR this
code was manifest for many years or ac-
count Of the conflict Of laws. However,
in the code. in fact. section !. is the ba-
sis, Il is believed. OF the present proceed
ing. This section provides:
The common law, al British statutes
IN force in Maryland on February 2. IS0I.
the principles OF equity. and admiralty
in application in the District OF Columbia.
and all acts OF Congress by their terms
applicable 70 the District Of Columbia and
70 other places under the jurisdiction Of
the United States. in force az the date
OF the passage Of this act. shall remain in
force except in so far as the same are
inconsistent or replaced by some pro-
vision OF this code.
The code under the subhead. Libel"
provides.
Whoever publishes a libel shall be
punished by a fine not exceeding Si.o00 or
Imprisonment for a term not exceeding
i've years
The code also provides that the truth
or the alleged libel shall be justification
for the same. Under the common lSw in
England. prosecutions lie for libel against
the government and as this law was IN
force in Maryland in 1901. II is supposed
that President Roosevelt believes that
prosecutions can be undertaken under Il.
Attention Is Directed.
Attention was directed yesterday 10 the
fact that In the case OF the United States
against James y. Tyner the Court Of Ap-
pesls here held that the common lax
prevailed IN the District Of Columbia
where the injured party was the Federal
government Mr. Tyner was Assistant
Attorney General for the Posi- Office De
paTtment, and was charged by the gov
ernment with being derelict in his duty
and not taking proper steps TO protect
the interests Of the government
There was no provision In the code
covering his alleged Illegal acts. so he
was indicted under the acts IN force IN
the District Of Columbia on February 2.
1901. at which time the Federal govern
ment formally took possession OF the
territory ceded By Maryland and Vir-
ginia- He was charged with mslfeasancs
in Office, this being a common law crime
Mr.. Tyner's attorneys demurred on the
ground that there was no statute cover
ing the alleged Offense. and the case was
carried 20 the Court OF Appeals. which
held that the statutes in force in Feb
ruary. 1S01 common law Of England. were
in force and effective Upon trial Mr.
Tyner was acquitted upon the facts in
the case.
Some people yesterday found an anal
ogy between the present prosecution and
the Tyner case, in that in each instance
President Roosevelt has declared the ae-
cused party to be guilty before he was
tried. Prior TO Mr.. Tyner's trial. Mr..
Roosevelt wrote a vigorous denunciation
Of him for his alleged crime.
In the present instance the President,
through the medium OF a special message
TO Congress, declared that the real Of
fender IS Mr. Joseph Pulitzer. editor and
proprietor Of the World" He spoke also
OF the criminal ofTense OF which Mr.
Pulitzer has been guilty. and that thai
he tMr. Pulitzer) has not one shadow OF
justification Of any sort OF description for
the charge he has made
Enough subpoenas have already been
served in this case 10 make IL clear that
the President means to fight to finish,
although no enc knows whether he Is
operating a sort of a ''dragnet" 30 gain
more evidence against Mr.. Pulitzer or is
merely placing his outposts in prepara-
tion for the final attack
Senators and Representatives are still
baffiec at what they term the sudacity
OF the Presidents action, reiteratiBg their
statements already made that the govern
ment has never yet gone into the business
Of picking auarreIs with newspapers and
private individuals IN the courts for
libel
Case without Precedent.
Regardless Of any evidence the Presi-
dent may or may not have, Senators ano
Members OF the lower House Insist that
this is another case without precedent into
which the President is plunging. Senator
Rayner, Of Maryland. is a leader among
the members Of Congress who term the ac-
ion Of the President preposterous, without
consideration OF what Mr. Pulitzer may or
may rot have done.
Representative Sheriey, Of Kentucky
strongly re-enforCes the Senator rom
Maryland in ridiculing the outcome Of The
suit. which. he says, should be qGashed
before It is begun