that the President of the United States could Instigate criminal proceedings against a newspaper in any or all of the 2.809 Federal jurisdictions in which it might happen to circulate, and that a conviction in any one of these jurisdictions would not be a bar to further convictions in others and to further convictions—should such be obtainable-in each and every State of the Union.

JUDGE HOUGH QUASHED THE INDICTMENT.

Judge Hough refused to accept this view. In his judgment quashing the Indictment he said:

The court is relleved of much embarrassment by the form of one of the motions made. The jurisdiction of this court is peremptorily challenged by the motion to quash. Other motions have been made which will not be considered. But inasmuch as a decision under a motion to quash is now speedily reviewable by the highest court, I shall dispose of the case under that motion. It seems to me that there is a plain distinction between that Jurisdiction which grows out of the necessary exercise of national powers and that which is based on the physical ownership of areas of land. The first basis. or foundation of jurisdiction is governmental and fundamentally governmental. The existence and exercise of that species of jurisdiction is vital to the National Government, but territorial jurisdiction is merely a convenience. It is frequently a very great convenience, but it is no more than that.

"The criminal statutes passed in the exercise of congressional authority have always, as far as they have come under my observation, seemed to me to view offenses and offenders from one or two standpoints. The proscribed act is made an offense or crime because it either lessens the authority or attacks the sov ereignty, or interferes with the operation of or injures the property of the United States, or else it is an offense against general municipal law which happens to be committed upon a place within the exclusive jurisdiction of the nation. Now, it may be, it has in the past been thought, that under some circumstances the crime of libel might be considered to impair the authority and interfere with the efficiency of the Government of the United States, but so far as I know or am luformed by counsel, this thought has not found expression in any national statute now in force. Therefore in this court the crime charged in this indictment is to be regarded only as an offense against the United States, if it is an offense against the law of New York, which happened to be committed upon national land physically within the southern district of New York. The question is this: The libelous matter here complained of was printed and published in the county of New York. Therefore the State court sitting In that county has jurisdiction. It was also published in the county of Orange; therefore the State court sitting in that county has jurisdiction. But it was also published in the West Point reservation, which is both in the County of Orange and in the southern district of New York, and therefore this court has jurisdiction. To the proposition that this can be true I am unwilling to yield assent until instructed by higher authority.

"I am of the opinion that the construction of this act claimed by the prosecu tion is opposed to the spirit and tenor of legislation for many years on the subject of national territorial jurisdiction. It is a novelty, and the burden of upholding a novelty is upon him who alleges it.

It is therefore

ordered that a judgment of this court be entered quashing the indictment herein, because upon the construction of the statute, hereinbefore stated, the indictment is not authorized by the statute on which it rests."

On the day following Judge Hough's decision the World printed an editorial in which it said:

"If there exists in Washington the shadow of a suspicion that a Federal libel law can be created by construction or interpretation-If there still remains the likelihood that some day another Roosevelt will prostitute his powers by invoking the act to protect harbor defenses in order to prosecute newspapers that have offended him-if there be the ghost of a belief that the Federal Government has coordinate power with State governments in the prosecution of alleged libel, and that every American newspaper is at the mercy of the Presidentthen the sooner there is a final decision of the Supreme Court of the United States the better."

NEWSPAPERS EVERYWHERE CONGRATULATED THE WORLD.

Newspapers of every shade of political opinion in every State of the Union congratulated the World upon its signal victory and joined with this paper in urging President Taft to appeal the case to the Supreme Court. World on January 31, 1910:

Said the

"As the Panama case now stands there is nothing to prevent a future Roose velt from making another assault upon the freedom of the press in order t gratify his own personal malice. Ile can pretend that the United States Gov ernment or some official of the United States Government has been libeled He can select the alleged offender, declare that he should be prosecuted fo libel by the governmental authorities,' and order a subservient Attorney Gen eral to institute criminal proceedings in the name of the people of the Unite States. *

"Freedom of speech and of the press is not a favor to be exercised at the pleasure of a President. The immunity of newspapers from wholesale Federa prosecution, with the attendant possibility of bankruptcy and ruin, is either & matter of law or it is nothing. The press is not free if it is to be free only or condition that a President refrains from abusing his power and prostituting his authority.

"The Federal Government. through its officers having claimed the right to prosecute newspapers for criminal libel under the provisions of the act to protect harbor defenses, 18 morally obligated to either make that claim good in the court of last resort or to establish beyond quibble or cavil the constitutional irregularity of the whole proceeding. It has no right to leave the issue in doubt. It has no right to leave 22,000 newspapers and periodicals uncertain as to their responsibility under the law. Mr. Taft and Mr. Wickersham may both agree with Judge Hough's decision. The World assumes that they do. But Mr. Taft will not always be President of the United States and Mr. Wickersham will not always be Attorney General of the United States. Their opinions bind none of their successors.

"The power to determine great constitutional questions rests with the Supreme Court of the United States. In this department of Government it alone can speak with full authority; and in dealing with a revolutionary issue that involves public freedom and public liberty, nothing is to be taken for granted. nothing is to be left to chance, nothing is to be left to the whim or pleasure of a President or of a political party in power."

On February 26, 1910, the Government filed a writ of error and the appeal came before the Supreme Court of the United States on Monday, October 24. 1910. It was heard by Mr. Justice Harlan, Mr. Justice White (now Chief Justice of the United States), Mr. Justice Day, Mr. Justice Holmes, Mr. Justice McKenna, Mr. Justice Lurton, and Mr. Justice Hughes. The unanimous deci sion of the courts in favor of the World was handed down on January 3, 1911, by Mr. Chief Justice White.

DISMISSAL OF THE WASHINGTON INDICTMENTS.

There still remained in force the indictments handed up February 17, 1909, In the Supreme Court of the District of Columbia under the direction of Attor ney General Bonaparte, acting on the direct orders of President Roosevelt. No attempt had ever been made to serve warrants on Mr. Pulitzer or the two news editors of the World, although word had been formally sent to the United States attorney for the southern district of New York that each held himself subject to the latter's call whenever he wished to push the matter. The effort made before Federal Judge Anderson in Indianapolis in October, 1909, to drag Delevan Smith and Charles R. Williams to Washington for trial had failed utterly.

In due course, after a careful consideration of all the papers in the case in the Department of Justice, United States Attorney Clarence R. Wilson, acting under instructions from Attorney General Wickersham, made a formal motion on March 31, 1911, before Justice Daniel Thew Wright in the Supreme Court of the District of Columbia for the dismissal of these indictments. "It is so ordered," said the justice.

"The indictments were dismissed," said the district attorney later, "because the Attorney General, after considering the decision of the United States Supreme Court in this same matter, came to the conclusion that there was nothing more to be done in those cases."

The effort to revive the spirit of the alien and sedition laws, to establish the doctrine of lese majesty, had come to an inglorious end.

The decision of the Supreme Court of the United States, while safeguarding the liberty of the press for all time against the encroachments of Federal authority, and more than justifying the great effort of the World in a cause it knew to be just, yet leaves unanswered the question: "Who got the money?"

#59. Diplomatic Exchanges between Colombia and the United States Leading to the 1909 Tripartite Treaties*

Confidential.]

Minister Barrett to Secretary Root.

AMERICAN LEGATION, Bogota, May 23, 1906. SIR: I have the honor to submit to you a confidential report of an informal discussion enjoyed between President Reyes and myself which has a most important bearing on the relations of the United States and Colombia and indirectly on the coming Pan American Conference.

As you are aware from previous dispatches of mine, it has been my well-defined policy here not to urge in any way the recognition of Panama by Colombia or to appear insistent on reaching any understanding with the United States as to the questions which Colombia holds are outstanding and unsettled. On the other hand I have endeavored to employ officially and personally every ligitimate and dignified means to soften the bitter feeling aroused against the United States and President Roosevelt by the Panama incident and to develop a friendlier attitude toward our Government and Presi-. dent. If a just conclusion can be drawn from the treatment of myself as American minister by the Colombian Government, people, and press, it would seem as if my efforts were reciprocated and appreciated, and good results in consequence were being accomplished. Such feeling, however, has not crystallized into a tangible specific diplomatic step in the desired direction until to-day, Wednesday, May 23, when the President invited me to spend the day with him informally at Madrid, his country residence. I am writing this dispatch immediately after my return on the evening train to Bogota, when all that was said is fresh in my mind.

Soon after my arrival at his house, the President invited me into his private office with Dr. Climaco Calderon, his minister of foreign affairs, and remarked in effect as follows:

Mr. Minister, I am talking with you now not so much as President Reyes but as your old friend Reyes of the second Pan American conference. I desire to speak frankly with you as one in whom I have complete confidence and whom I believe to be a sincere friend of mine and Colombia, while a loyal minister of the United States. Then, too, you know that, despite the Panama affair, I have always been a supporter and admirer of the United States and President Roosevelt, and that, for instance, at the second Pan American conference in Mexico, I invariably acted in harmony with you and your colleagues from the United States. Now

He continued

I want to read to you a confidential memorandum that has been submitted to me by one of our prominent and able citizens in regard to the relations of the United States, Colombia, and Panama, and to learn what you think of it. In

Diplomatic History of the Panama Canal (1914), pp. 112-116. The complete correspondence from 1905 to 1910 dealing with the tripartite treaties, transmitted at Congresslonal request by President Wilson, is included in this volume on pp. 107-249.

the main it expresses my views as far as proposed policy is concerned with su modifications as are self-evidently necessary.

He then read the memorandum, a translation of which made by h orders, I attach hereto in the exact language of the form handed m and I would earnestly recommend that you read it at this point b fore proceeding to consider what I have hereinafter written.

When the President had concluded the reading of the memorandur he made the following observations:

It is true, as the memorandum says, that a movement has been started Cauca, Antioquia, and the Atlantic Provinces, in harmony with some agenci and influences in Panama, to form a new republic including Panama, and make Panama City the capital.

The failure of Mr. Mendoza to accomplish anything for the benefit of Colomb has given strength to the movement, and the story has been circulated that th United States will not only quietly aid such a plan, but gladly recognize th new republic.

This report has even gone to Chile, Argențina, and Brazil and secured suff cient official credence there to cause our minister to these countries, Ge Uribe-Uribe, to telegraph me concerning it and inform me that some of th delegates of these countries to the Rio conference might refer to it as evidenc that the United States was secretly preparing to repeat the Panama inciden and add to its hold on South America. I now wish to wire him not only tha the United States is not abetting such a movement, but has given me assuranc of an eventual settlement of our differences-aud so frustrate the enemies o the United States.

I am speaking frankly, as you know, when I tell you that strong influence ha been brought to bear on me from other countries of South America to oppos the United States at the Pan-American conference and even not to send dele gates, but I have refused, as you are well aware, to listen to such sugges tions, believing in the high purpose of President Roosevelt and Secretary Roo and the justice of the United States in its final attitude toward Colombia.

I am reliably informed that there are men at work in Panama beyond my reach to assist a revolution in Cuaca and Cartagena, looking to union with Panama, and I wish you would kindly ask Mr. Root to instruct Minister and Governor Magoon to watch any schemes or schemers of this kind and use his in fluence against it. Such a movement can not succeed without a long and bloody war, for, if necessary, I should take the field and command nayself while, as it is, I know that I am in control of the situation and can prevent any outbreak if the United States does not intervene against me.

I shall be grateful if you will cable your Government an outline of my sug gestions, together with a request that its representative in Panama watch the situation there in reference to Cauca, etc., and then confirm your message with a full report of our meeting and conversation.

I then took up the conversation for a few minutes, and said in effect the following:

Without committing my Government in any way, I thank you for your frankness in reading and discussing this memorandum. I will forward it in a confidential dispatch, as you desire, to Secretary Root, and await his instructions. Referring to the comments you have just made, I would say first, that I will. of course, treat its suggestions as confidential and ask my Government to so treat it. As to the withdrawal of Mr. Mendoza, it would seem better to ine to postpone such action for the present or until any negotiations might be actually begun, for fear that his recall might be misinterpreted as Colombian displeasure with the United States or as a break off of relations just before the Pan-American conference, when signs of good wil! were desirable on all sides.

As to the formation of a new republic, I need hardly assure you that the United States has not lent and will not lend the least shadow of assistance to any arrangement of the kind described by you, and, if it is asserted that the United States is secretly favoring its consummation, such allegation is the pure fabrication of its enemies. I am aware of the anti-American influences brought

to bear on you in connection with the Pan American conference, and I have also informed my Government that you not only were not moved by them, but that Colombia's delegates at Rio would not embarrass the United States by any discussion of the Panama question.

I shall telegraph my Government the substance of your suggestions as ex-pressed in this memorandum and the recommendation that Minister Magoon keep an eye on any revolutionary or new republic movement in Panama.

In regard to the transfer of negotiations from Washington to Bogota, suggested in the memorandum, I must state that, while I appreciate deeply the compliment to myself I can not personally advise or request my Government to approve of such a step. It might seem better in its opinion to conduct any actual negotiations in Washington where my Government is always in close touch with Panama and where the approval of the Senate is required to any treaty, but, as you do not insist on negotiations being conducted here, that is a point that can be easily arranged later on.

At this point I called attention to the fact that, as you would be leaving the United States early in July for the Rio conference and a visit to South America and not be returning before September or October, my Government, if disposed to act on these new suggestions of Colombia, could not take up their careful consideration before fall. Gen. Reyes replied that he understood that situation and would not expect anything explicit to be accomplished until after your return, but he did hope, for reasons stated above and in the memorandum, that the United States Government would give him some direct assurance of willingness to undertake negotiations along these general lines before the Pan American conference meets simply answered that I would confirm my telegram with this extended and detailed report which should reach Washington in the latter part of June, and it might be possible to receive some definite word, although I could not promise it, before your departure.

President Reyes then enlarged upon the hope that you and the President would think favorably of his proposals. He said: (a) That you could not realize how strong still was the feeling, amounting almost to intense hatred, among the people of Colombia against the United States on account of its standing by Panama in the latter's separation; (b) that only by his constant watchfulness and personal good will to the United States for three years, followed now by my friendly attitude, had outbreaks against Americans and American property been prevented; (c) that this feeling had been recently revived by those agitators, politicians, and priests, who insisted on making capital out of your reply to Minister Mendoza's notes; (d) that in Antioquia, Cauca, and the Atlantic Provinces, it had developed in another form into a movement, as already described, for a new republic, until credence was given the report of the secret assistance of the United States, not only in the other parts of Colombia, but in other nations of South America; (e) that Colombia, if peace could be preserved, was about to enter upon a period of great material and commercial development that would be of the highest value and importance to the export and financial interests of the United States; (f) that European trade and money interests recognized the situation and were doing all in their power to get a firm hold on the commercial and material opportunities of Colombia and (g) that, finally, in a practical desire to obtain results and inaugurate a new era in the foreign relations of Colombia, he now gave up all hope of arbitration or indemnity being conceded by the United States-so dear to the expectations of the Colombian