Shortly after the opening of the Court, Mr. Ashmead rose and commenced
to sum up for the defence. He opened by pointing out the
responsibilities of the Jury, stating that should they find a verdict in
favor of the prosecution, it would establish a precedent which would
strike a serious blow at the liberty of the citizen. He characterized
the prosecution as one of the most extraordinary character. In
commenting on the experience of the opposing counsel, he said he
remembered a comment by a most eminent divine, on the words of Solomon,
“I have never seen the righteous forsaken, nor his seed begging their
bread,” namely, that what Solomon had not seen he had. He spoke strongly
against the fact that the prosecution had originated with the Grand
Jury, instead of taking the action before a committing magistrate,
having a preliminary examination. Here was a citizen, humble if they
pleased, on one side, while on the other was the Mayor of the greatest
city in the New World, and these officers of the Grand Jury, forgetting
that in this republic all should be treated alike, encroached upon the
liberty of this citizen by stepping out of their usual course. Should
the jury adopt the precedent of convicting a man under such
circumstances, then God help the liberty of the citizen; but the
consequences would rest upon the heads of them and their children. [Mr.
Ashmead here read extracts from the opinions of eminent Judges, showing
that a prisoner had a right to a preliminary examination before the case
could go before the Grand Jury.] But this unfortunate man was not so
served; he knew nothing of the accusation, nor was he brought face to
face with his powerful accusers. Were this man immaculate, he stood,
under these circumstances, subject to all the lightning elequence of the
opposite side, and was not able to do as was his right, namely, bring an
action for damages against his accusers, because the responsibility
rested with the public prosecutor.
Mr. Ashmead continued to read from the same book, contending that no
indictment should be smuggled into a Grand Jury room as this had been.
The Mayor, or the Governor, or His Honor on the Bench had no right to
adopt a system denied to the meanest citizen; and in their anxiety to
punish crime, they should take care that they did not strike a blow at
the liberty of the community, nor should Judicial Legislation take away
the rights of the citizen. The Jury should take care that this man was
not made a victim through the variation of the Grand Jury from the usual
course; but they should follow the example of English Grand Juries, and
take care how they struck a blow at Constitutional rights. He next
referred to the noble speech of Robert Emmet, before Lord Norbury, who
several times attempted to stop the criminal when speaking before he was
sentenced. He said: “Though I am to be sacrificed, I insist that all the
forms be gone through.” Let the Jury, then do as Emmet did to Lord
Norbury—make the Mayor go through the forms. (Here McKeon smiled.) And
though the District Attorney should smile at these remarks, this matter
was serious, and a laugh and a sneer were not an argument. He referred
to the case of the libel of MacIntosh, where, it was asserted, there was
on one side a Napoleon, the ruler of the greatest empire in the world,
and on the other, as in this case, a poor and obscure citizen; yet in
that case a British Jury taught future generations a lesson, and showed
an example which an American Jury should endeavor to follow.
Mr. Ashmead next read from the revised statutes, showing that an accused
person should have a preliminary examination before being indicted, and
contended that a great privilege had been taken from his client, and by
this means a blow had been struck at the liberties of the citizen. He
alluded to the fact that Mr. Draper had not been before the Grand Jury
at all, and yet this poor man had been indicted for a libel on him; this
was a proceeding which, if sanctioned by the Jury, would establish a
perfect tyranny by breaking down all the safeguards of the law which
surrounded the citizen. He insisted that the prosecution had taken away
every privilege from this man, and environed him by a wall, so that he
could not escape, by getting up this Trinity of indictments. These three
indictments were united so that one should support the other. The
Recorder had said that Mr. Draper was old enough to take care of
himself, but wisdom didn’t come with length of year, and certainly
Simeon Draper was not bred in the school of Chesterfield, for he forgot
common courtesy by saying the alleged libel was a lie. Mr. Ashmead then
commented on the conduct of the prosecution in putting in only one half
of the libel in the indictment, and keeping out that part which had a
foundation in truth, which he said was a piece with the remainder of
these proceedings. Such conduct struck a serious blow at our free
institutions, and as Erskine said if such proceedings were to obtain,
our halls of justice would be turned into altars, and the poor victim
would be immolated at the shrine of persecution.
Mr. Ashmead then proceeded to explain the law of libel, contending that
it was necessary that “malice” should be proved, in order to sustain an
indictment for libel. He spoke of the law in England, which would not
permit the truth to be given in evidence, and contrasted such with the
laws of New York, which provided that if an article was published
without malice, it was not libellous; for it permitted a reporter to
publish the proceedings of a meeting or of a legislative body without
holding him liable, provided it was proved that it had been published
without malice. The counsel then commented on the remark made by the
Recorder relative to his taking no decisions but his own, and that Mr.
Ashmead’s points would not be fit for a Kamschatka Court, and proceeded
to justify his own course in the matter.
The Recorder remarked that Mr. Ashmead must have forgotten his own
observations, he had said that “a certain decision had been made by one
of the Judges of this Court” and that caused his Honor to make the
remark to which he had alluded.
Mr. Ashmead replied that it had been so ruled in this Court in the case
of Coleman vs. Magoon, in 1818. The Counsell then pointed out the fact
that Mayor Tiemann had testified that he had been spoken to on this
subject nearly a year ago, and wanted to know why he had not then
pursued the originator of these stories. This showed clearly that Branch
did not originate the alleged libel, and that therefore there was no
malice on his part.—He complained that the testimony for the defence had
been entirely shut out by objections, and asked why the Mayor did not
come in manfully and clear his skirts of these charges, without
shielding himself under technicalities. He, however, did not pursue the
originator of this story, but when this poor man who considered himself
a sentinel upon the watch-tower of this great city, exposed what he
considered to be corruption in high places, then the Mayor pounced upon
him. Why did not the Mayor go into the civil court, as he could have
done, and then this poor man could stand on an equal footing with him,
and tell his own story? In God’s name if they wanted a victim let them
take him, but they should not condemn him without show of a trial. If a
sacrifice was required Mr. Branch was ready to be immolated; but here
was an extraordinary fact. Why did not Mayor Tieman bring forward the
matron? He had seen her before witnesses. If this thing was done, no one
knew it but his Excellency the Mayor, and this lady. No eye but that of
the Omniscient One above, saw the act if it had occurred? Why, then, did
he not bring this lady here, and then if she swore that it did not
occur, there was an end of the matter. But they might ask, why did not
he (Counsel) bring the lady? For a very sensible and legal reason,
because, if he had brought her into Court, she would become his own
witness, and he could not bring evidence to contradict her, whereas, if
Mayor Tiemann had put her on the stand, and she had told her statement,
then they could have cross-examined her and brought Evans and other
witnesses to contradict her. If, therefore, the prosecution had examined
her, and other evidence would have been admitted which had been shut
out, but by the course the prosecution had pursued half the defence was
made non-effective. He admitted that what was acknowledged by the Mayor
did not amount to proof, yet it was very extraordinary. The Mayor
admitted that there was a friend who visited the lady whom he ordered
should not be allowed on the island.—There was no impropriety shown in
these visits; he came every Sunday, he behaved himself, and yet he was
interdicted. Now there was other matrons there; they had friends, no
doubt, and yet this lady was the only one selected for deprivation of
her friend’s society. This to say the least of it was very
extraordinary. Another thing, the Mayor had lent this lady money, but he
lent money to no other matron. Now this was curious, if he was simply
friendly to this lady he would not prevent her other friends from coming
to see her, or did he give this money to the lady, and give her the
money for her torn dress to compensate her for interdicting her friend
from visiting the island?
But this was not alone,—Mr. Draper suspended this lady, and the Mayor
persuaded her to write an apologetic note, and so she got restored. Now
this was a friend indeed a friend he was going to say that “sticketh
closer than a brother” (laughter), but he allowed her to have no friend
but himself, although one would suppose that a lone woman should be
surrounded by friends. Now these little things loomed up curiously, but
his honor was not content with being _her_ friend, he was the friend of
her boy? He said it was his duty to procure situations for boys; yes,
certainly; but this boy was not then in New York at all—he was in the
far West, and not under the control of the Alms House Governors at all.
He had been sent safely away from the temptations of this great
Metropolis: and yet the Mayor brought him back, and provided for
him—proving himself the friend of the boy’s mother in every way, except
that of letting her other friend come on the island. The Mayor was
willing to lend her money, to get her boy a situation, to get her
friend, Waters, a situation, and to do everything for her except to
allow her friend to see her. He did not say that this proved anything
against Mayor Tiemann; he was an honorable and upright man, as far as
Counsel knew; but these little circumstances looked suspicious, and it
was curious that the Mayor had shut out the rest of the testimony. The
whole case however showed that Mr. Branch had not fabricated these
stories, and certainly did not publish them with malice; and therefore
he ought to be acquitted. Mr. Ashmead then referred to an extraordinary
conversation between Justice Buller and Mr. Erskine, in a libel case,
where the Jury returned a verdict of “guilty of publishing ONLY” the
Judge wanted the word _only_ left out, and Mr. Erskine defended the
verdict, notwithstanding that the Judge threatened to proceed in another
manner. Erskine replied that he knew his duty as an advocate, as well as
His Lordship knew his as a Judge.
Mr. Ashmead then submitted several points,—upon which he argued,—namely:
That if the libel was published with an honest motive, then the
defendant was guiltless: that the Jury, in Libel cases were judges of
the law as well as of the fact, they having the right and the sole right
to determine what was and what was not a libel, and this was the law in
England and Ireland, also. He contended that according to the Mayor’s
testimony the base of the libel was true, and if so, he begged and
pleaded that the Jury would not, for the sake of truth, for the sake of
an innocent man, for the sake of a newspaper publisher, who did not
fabricate what he wrote, for the sake of the liberty of the press,
immolate this humble citizen. But, he concluded, if Branch must be
immolated, he had only to say in the words of that immortal Irishman
Curran:—
“If it be determined that because this man would not bow to power and
authority, because he would not bow down to the golden calf and worship
it, he should be cast in the fiery furnace, I do trust in God that there
is a redeeming spirit in the constitution which will go with the
sufferer through the flames and preserve him unhurt by the
conflagration.”
Mr. Ashmead sat down amid a burst of applause, which was immediately
checked. His speech which occupied about an hour and a half, was spoken
of by several as one of the most brilliant specimens of logical
eloquence which has been heard in this Court for years. It was listened
to with breathless attention by the largest audience which had assembled
inside those walls since the Huntingdon trial.
[_From the New York Sun._]