OF THE CONVENTION OF THE COMMONWEALTH OF PENNSYLVANIA, TO PROPOSE AMENDMENTS TO THE CONSTITUTION, COMMENCED AT HARRISBURG, MAY 2, 1837. VOL. XII. Reported by JOHN AGG, Stenographer to the Convention. ASSISTED BY MESSRS. WHEELER, KINGMAN, DRAKE, AND M'KINLEY HARRISBURG: PRINTED BY PACKER, BARRETT, AND PARKE. 1839 PROCEEDINGS AND DEBATES. OF THE CONVENTION HELD AT PHILADELPHIA. TUESDAY, FEBRUARY 6, 1838. Mr. Cox, of Somerset, presented the petition of sundry citizens of the county of Somerset, praying that the constitution may be so amended, as to prohibit the administration of extra judicial oaths: Which was laid on the table. Mr. FULLER, of Fayette, submitted the following resolution, viz: Resolved, That the several amendments agreed to by this convention to the constitution, shall be arranged and embodied in such manner as to submit to the electors of this commonwealth a whole constitution as amended, to be by them adopted or rejected at the next general election for members of the legislature. Mr. FULLER moved that the convention proceed to the second reading and consideration of this resolution. Mr. SMYTH, of Centre, asked for the yeas and nays on this question, and they were ordered. The question was then taken on the motion of Mr. FULLER, and decided in the negative as follows, viz: YBAS-Messrs. Banks, Brown, of Northampton, Cleavinger, Crain, Cummin, Curll, Darrah, Dillinger, Earle, Foulkrod, Fuller, Gamble, Gearhart, Gilmore, Grenell, Hastings, Hayhurst, High, Houpt, Hyde, Keim, Kennedy, Krebs, Lyons, Magee, Mann, M'Cahen, Miller. Myers, Overfield. Scheetz. Sellers, Seltzer, Shellito, Smith, of Columbia, Smyth, of Centre, Stickel, Taggart, Weaver, White 40. NAYS-Messrs. Ayres, Baldwin, Barclay, Barndollar, Barnitz, Bedford, Biddle, Chambers, Chandler, of Philadelphia, Clapp, Clarke, of Beaver, Clarke, of Indiana, Cline, Coates, Cochran, Cope, Cox, Crawford, Crum, Cunningham, Denny, Dickey, Dickerson, Doran, Fleming, Forward, Fry, Harris, Hays, Henderson, of Allegheny, Henderson, of Dauphin, Hiester, Hopkinson Jenks, Kerr, Konigmacher, Long, Maclay, Martin, M'Sherry, Merrill, Merkel, Montgomery, Nevin, Payne, Pennypacker, Porter, of Lancaster, Read, Riter, Ritter, Russell, Saeger, Serrill, Snively, Sturdevant, Thomas, Woodward, Porter, of Northampton, President pro tem.-58. Mr. COCHRAN, from the committee to prepare the amendments made in convention on second reading, for a third reading, made the following report: "That they find the amendments to the fifth article correctly printed and report the same as they stand on the printed files." And, on motion of Mr. COCHRAN, The said report was laid on the table and ordered to be printed. NINTH ARTICLE. The convention resumed the second reading of the report of the com mittee, to whom was referred the ninth article of the constitution. The seventh section of the said report being under consideration in the words following, viz: SECT. 7. That the printing presses shall be free to every person who undertakes to examine the proceedings of the legislature or any branch of 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 publication of papers, investigating the official conduct of officers, or men in a public capacity, 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. A motion was made by Mr. Doran, To amend the said section by striking therefrom all after the word "liberty," in the sixth line, and inserting in lieu thereof the following, viz: “In all prosecutions or indictments for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libellous is true, and was published with good motives and for justifiable ends, the party shall be acquitted, and the jury shall have the right to determine the law and the fact." Mr. DORAN said, that in submitting this amendment to the consideration of the convention, he wished it to be distinctly understood, that he did not desire the indulgence of private malice and personal slander through the medium of the press. On the contrary, he would check and resist it by every legal means. Yet, he would say that the press was, in his opinion, a restraint upon bad men and the execution of bad acts; and where the public were interested in the knowledge of those men and those acts, every guard should be thrown around it, and no man should be convicted for a libel where the matter published was true-was published with the purest motives and for the benefit of the community. But this cen sorial power was all important in relation to public officers, for by it they were compelled to do their duty, and when they failed to do it they were held up as objects of reproach; in fact, with a free press, a magistrate had to choose between his duty and his reputation. So great was the power of the press, that it had in England been emphatically denominated" the fourth estate," and in every free country it was no less effective; and such was its importance to the cause of liberty, that every friend to a free form of government had defended it, whenever an attempt had been made to trample on it. The members of this convention were not ignorant of the deadly struggle between it and certain arbitrary judges of the former country, which eventuated in the passage of a law by which it was protected from such persons, by the salutary law that in libel cases the jury might determine the law and the fact. But what was the law in Pennsylvania? Why, in short, let your publication be as true as it may, let it be published from the best of motives, let it be a matter with which the people should be acquainted, unless it relates to a public officer or public men, the publisher may be tried, convicted, and punished; yes, and sent to prison, from which he could not be extricated unless he paid the fine and costs or if too poor to pay them, where he must remain for at least two months before he could be discharged as an insolvent debtor. this right? was this just? No man could say that it was, and yet numerous cases had occurred in our criminal courts similar in their severity, and would occur, unless the law was altered. Impostors might now practise the greatest cheats on the community, and any one that would dare to expose them through the press, the only way to warn the public against them, would do it at the risk of a criminal prosecution. Was Mr. EARLE said, that he approved in some measure of the object of the proposed amendment of his colleague, (Mr. Doran) but that he (Mr. E.) should like it better, if it was so modified as to allow the jury to judge whether the matters alleged were proper for public information. He would, therefore, in the hope that his colleague from the county might be induced, on reflection, to accept the modification, move to amend the amendment, by inserting after the word "libel," the words following: "where the jury shall think the matter published proper for publication." Mr. DORAN said, he thought it would be found that the amendment he had offered embraced the idea of his colleague (Mr. Earle). Mr. MERRILL, of Union, said that the convention ought to be careful, and to reflect well on what they were doing, before they give their consent to this change in the fundamental law. This matter, continued Mr. M., is admitted to be within the power of the legislature. They have tried it, and found it to fail. But according to the amendment of the gentleman from the county, (Mr. Doran) the jury is to decide. I ask, if such a principle is carried into operation, whether it will not lead to slander and libel in all cases, where a resort to such weapons might answer the ends, or gratify the malice of individuals. The verdict will be made to depend on the will and caprice of the jury, without any rule of law; it will be placed on the simple ground whether, in the opinion of the jury, the matter alleged may be true, or not. Why should men have even the truth told about them, where it may disparage them, from mere pique, revenge or malice? I believe that there is very little danger of injustice being done according to the state of things which now exists; and if I can imagine a case in which gross injustice would be done, it would be that of publishing a libel against a man where he can |