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Transcriber's Note
This ebook retains the spelling and punctuation variations of the
original text published in 1836. A few corrections have been made
where inadvertent typographical errors were suspected. Details of
these corrections can be found in a Transcriber's Note at the end
of this text.
THE TRIAL
OF
REUBEN CRANDALL, M. D.
CHARGED WITH
PUBLISHING AND CIRCULATING
SEDITIOUS AND INCENDIARY PAPERS, &c.
IN THE
DISTRICT OF COLUMBIA,
WITH THE INTENT OF
EXCITING SERVILE INSURRECTION.
CAREFULLY REPORTED,
AND COMPILED FROM THE WRITTEN STATEMENTS OF THE COURT
AND THE COUNSEL.
BY A MEMBER OF THE BAR.
WASHINGTON CITY.
PRINTED FOR THE PROPRIETORS.
1836.
Entered according to the act of Congress, in the year 1836, in the
Clerk's office of the District of Columbia.
NOTICE.
THE TRIAL OF CRANDALL presents the first case of a man charged with
endeavoring to excite insurrection among slaves and the free colored
population that was ever brought before a judicial tribunal. It lasted
ten days before the whole Court, and was as closely contested as any
trial on record, by the counsel on both sides. Every point of law was
fully and strenuously argued, and carefully considered by the Court;
and where no statutes have been enacted, this case may be considered
as settling the legal questions touching the rights of the slaveholding
population, on the one hand, to protect themselves from foreign
influence; and the circumstances, on the other hand, which may bring
people from the nonslaveholding States into danger of the law, by having
in their possession, showing, or circulating, papers and tracts which
advocate the abolition of slavery in such a way as to excite slaves and
free people of color to revolt and violate the existing laws and customs
of the slaveholding States. No trial has ever occurred more important to
travellers from the North, or to the domestic peace of the inhabitants
of the Southern States.
THE TRIAL
OF
REUBEN CRANDALL, M. D.
ON A CHARGE OF
CIRCULATING INCENDIARY PAPERS.
UNITED STATES' CIRCUIT COURT,
_District of Columbia, Friday, April 15th, 1836._
PRESENT:
CRANCH, chief justice, THRUSTON and MORSELL, justices.
F. S. KEY, district attorney, and J. M. CARLISLE, for the prosecution.
R. S. COXE and J. H. BRADLEY, for the defence.
John H. King, Nicholas Callan, James Kennedy, Walter Clarke, George
Crandall, William Waters, Thomas Hyde, Thomas Fenwick, Samuel Lowe,
George Simmes, Wesley Stevenson, and Jacob Gideon, jr., were empannelled
and sworn as jurors to try the issue.
This was an indictment charging, in five counts and in various forms,
the offence under the common law of libels, of publishing malicious and
wicked libels, with the intent to excite sedition and insurrection among
the slaves and free colored people of this District. The three first
counts only having been relied upon, and no evidence having been offered
under the others, an abstract, omitting the mere formal part, will be
sufficient to show the nature of the libels charged.
1st. The first count charged the defendant with publishing a libel,
containing in one part thereof these words: "Then we are not to meddle
with the subject of slavery in any manner; neither by appeals to the
patriotism, by exhortation to humanity, by application of truth to
the conscience. No; even to propose, in Congress, that the seat of
our republican Government may be purified from this crying abomination,
under penalty of a dissolution of the Union."
And in another part thereof, in an article entitled "Reply to Mr. Gurley's
letter, addressed to the Rev. R. R. Gurley, Secretary of the American
Colonization Society, Washington city," signed by Arthur Tappan and
others, the following words: "We will not insult your understanding, sir,
with any labored attempt to prove to you that the descendants of African
parents, born in this country, have as good a claim to a residence in it,
as the descendants of English, German, Danish, Scotch, or Irish parents.
You will not attempt to prove that every native colored person you meet
in the streets, has not the same right to remain in this his native land,
that you and we have. Assuming this as an incontrovertable truth, we
hold it self-evident that they have as good right to deport us to Europe,
under the pretext that there we shall be prosperous and happy, as we have
to deport them to Africa on a similar plea."
And in another part thereof, in the said reply, the following words:
"In what language could the unrighteous principles of denying freedom
to colored people in this country, (which amounts to the same thing as
demanding the expulsion of those already free,) be more effectually and
yet more plausibly inculcated than in those very words of Gen. Harper
you have, with so much approbation, quoted to us."
And in another part thereof, in the said reply, the following words:
"Against this doctrine of suspending emancipation upon the contingency
or condition of expatriation we feel bound to protest; because we
believe that every man has a right to reside in his native country if he
chooses, and that every man's native country is the country in which he
was born--that no man's right to freedom is suspended upon, or taken
away by his desire to remain in his native country--that to make a
removal from one's own native country a _sine qua non_ of setting him
free when held in involuntary bondage, is the climax of moral absurdity."
And in another part thereof, in a certain other article, entitled "Three
months' residence, or seven weeks on a sugar plantation, by Henry
Whitby," containing the most shocking and disgusting details of cruel,
inhuman, and immoral treatment of slaves by the owners and overseers,
and attorneys or agents of proprietors, according to the tenor and
effect following--that is to say: "On this and other occasions, I thought
it my duty to acquaint the attorney with my observations and feelings
in regard to the cruel floggings and severe treatment generally which
I have witnessed at New Ground. He admitted the facts, but said that
plantation work could not be carried on without the cart-whip. He
moreover labored hard to convince me that the flogging did not injure
the health of the negroes. I also told him of the exceeding immorality
and licentiousness which I had witnessed; mentioning, in substance, the
facts previously detailed. He replied that "that was a thing which they
must wink at." If a man in manners so much the gentleman, and in other
respects so estimable, was necessarily led to countenance or wink at
the enormities I have feebly attempted to describe, what, I ask, is to
be expected from its subordinate administrators who are continually
exposed to the demoralizing influences of slavery? what, indeed, but
the frightful wickedness and cruelty which are its actual fruits?"--in
contempt of the laws, to the disturbance of the public peace, to the
evil example of all others, and against the peace and government of
the United States.
2d. The second count charges the publication of another libel,
containing among other things, in one part thereof, the following
words, viz: "Our plan of emancipation is simply this--to promulgate
the doctrine of human rights in high places and low places, and all
places where there are human beings--to whisper it in chimney corners,
and to proclaim it from the house tops, yea, from the mountain tops--to
pour it out like water from the pulpit and the press--to raise it up
with all the force of the inner man from infancy to grey hairs--to
give line upon line, precept upon precept, till it forms one of the
foundation principles and parts indestructible of the public soul."
And in another part thereof, the following, viz: "I (meaning the said
Crandall) am not unaware that my remarks may be regarded by many as
dangerous and exceptionable; that I may be regarded as a fanatic for
quoting the language of eternal truth; and denounced as an incendiary
for maintaining in the spirit, as well as the letter, the doctrines
of American Independence. But if such are the consequences of a simple
performance of duty, I shall not regard them. If my feeble appeal but
reaches the hearts of any who are now slumbering in iniquity; if it
shall have power given it to shake down one stone from that foul temple
where the blood of human victims is offered to the moloch of slavery;
if, under Providence, it can break one fetter from off the image of
God, and enable one suffering African
------------To feel
The weight of human misery less, and glide
Ungroaning to the tomb--
I shall not have written in vain; my conscience will be satisfied. Far
be it from me to cast new bitters in the gall and wormwood waters of
sectional prejudice. No, I desire peace--the peace of universal love--of
catholic sympathy--the peace of common interest--a common feeling--a
common humanity. But so long as slavery is tolerated, no such peace can
exist. Liberty and slavery cannot dwell in harmony together. There will
be a perpetual war in the members of the political _Mezentius_--between
the living and the dead. God and man have placed between them an
everlasting barrier--an eternal separation. No matter under what law
or compact their union is attempted, the ordination of Providence has
forbidden it--and it cannot stand. Peace! there can be no peace between
justice and oppression--between robbery and righteousness--truth and
falsehood--freedom and slavery. The slaveholding States are not free.
The name of Liberty is there, but the spirit is wanting. They do not
partake of its invaluable blessings.
"Wherever slavery exists to any considerable extent, with the exception
of some recently settled portions of the country, and which have not
yet felt, in a great degree, the baneful and deteriorating influence of
slave labor--we hear, at this moment, the cry of suffering. We are told
of grass-grown streets--of crumbling mansions--of beggared planters, and
barren plantations--of fear from without--of terror within. The once
fertile fields are wasted and tenantless: for the curse of slavery--the
improvidence of that laborer whose hire has been kept back by fraud--has
been there, poisoning the very earth, beyond the reviving influence of
the early and the latter rain. A moral mildew mingles with, and blasts
the economy of nature. It is as if the finger of the everlasting God had
written upon the soil of the slaveholder the language of his displeasure.
"Let then the slaveholding States consult their present interest by
beginning, without delay, the work of emancipation. If they fear not,
and mock at the fiery indignation of Him to whom vengeance belongeth,
let temporal interest persuade them. They know, they must know, that
the present state of things cannot long continue. Mind is the same
every where, no matter what may be the complexion of the frame which
it animates; there is a love of liberty which the scourge cannot
eradicate. A hatred of oppression which centuries of degradation cannot
extinguish. The slave will become conscious, sooner or later, of his
strength--his physical superiority--and will exert it. His torch will be
at the threshold, and his knife at the throat of the planter. Horrible
and indiscriminate will be the vengeance. Where then will be the pride,
the beauty, and the chivalry of the South. The smoke of her torment will
rise upward, like a thick cloud, visible over the whole earth."
3d. The third count charged the defendant with publishing twelve other
libels, in which are represented and exhibited "several disgusting
prints and pictures of white men in the act of inflicting, with whips,
cruel and inhuman beatings and stripes upon young and helpless and
unresisting black children; and inflicting with other instruments,
cruel and inhuman violence upon slaves, and in a manner not fit and
proper to be seen and represented; calculated and intended to excite
the good people of the United States in said county to violence against
the holder of slaves in said county as aforesaid, and calculated and
intended to excite the said slaves in said county, to violence and
rebellion against their said masters in said county; in contempt of the
laws, to the disturbance of the public peace, to the evil example of all
others, and against the peace and government of the United States."
All these counts contained averments that at the time of the publication
of these libels, the citizens of the United States residing in the
county of Washington, in the District of Columbia, were lawfully
authorized to hold slaves as property, and many of them did so hold
them--and that many free persons of color also reside in the District;
and that the defendant, unlawfully, maliciously, and seditiously,
contriving and intending to traduce, vilify, and bring into hatred
and contempt, among the citizens of the United States, the laws and
government of the United States in the county of Washington as duly
established and in force, and to inflame and excite the people of the
United States to resist and oppose and disregard the laws and Government
aforesaid, and the rights of the proprietors of slaves in the said
county, and to inflame and excite to violence, against the said
proprietors of the said slaves, not only the ignorant and ill disposed
among the free people of the United States and the free persons of color
in the said county, but also the slaves; and to produce among the said
slaves and free persons of color, insubordination, violence, and
rebellion, and to stir up war and insurrection between the said slaves
and their said masters, published the said libels, containing among
other things divers false, malicious and seditious matters, of and
concerning the laws and Government of the United States in the said
District, and of and concerning the citizens of the United States
holding slaves in the said District, and of and concerning the said
slaves and free persons of color, and their labor, services, and
treatment, and the state of slavery in the said District.
The defendant pleaded not guilty.
_The District Attorney_ opened the case for the Government. He said
this was a serious and important charge of publishing inflammatory
and seditious libels, which was always an indictable offence. In this
particular case, situated as the population of the District is, it
was peculiarly dangerous and atrocious. In point of law, it would be
necessary to prove a publication; that the prisoner did in some way
or other exhibit or circulate one or more of the libels; and with that
view he should connect evidence that he was found with many similar
libels of a most dangerous and inflammatory tendency, with the words
"_read and circulate_" upon them, in writing which Crandall admitted to
be his own handwriting; and that he gave different and contradictory
accounts of how he came by them, and how they came here in his
possession. Also, that similar libels were dropped into the post-office,
and sent by nobody could tell whom, to almost every body in the
District. After proving these facts, he said he should carry the libels
before the jury, and let them judge whether the prisoner could have been
here with any good motive, or have such a mass of obnoxious papers with
any good purpose.
_Mr. Coxe_ wished to state, at the outset, what he understood to be the
law. The libels charged were not upon individuals, nor the Government,
but were said to be designed to excite the whole community; and
therefore publication or circulation with the intent charged, would
be necessary to sustain the prosecution. Possession, however bad or
dangerous the libels might be, was no crime; any man might have and keep
the worst libels with entire innocence; and in this case, it would be
no evidence of malicious or dangerous intent that he loaned or gave one
to respectable individuals, who would not be injured and would not do
any injury to others.
_Henry King_ testified that about last June or July, he knew Crandall in
Georgetown, where he came and took an office as a botanist, and followed
that business.
_Key_ handed him a pamphlet, and asked if he had seen any like it;
stating, upon objection being made by Coxe, that his object was to show
that Crandall gave the witness such a paper to read.
_Coxe_ objected to the testimony, as furnishing no ground of inference
that the act of publication by giving the paper to a respectable white
free man, was intended to create excitement, or was the result of a
malicious intent.
_Key_ said he would connect this with other circumstances to show the
intent. It was proper evidence to go to the jury, and they must judge
what the intent really was.
_The Court_ ruled that the evidence was admissible; and,
_Henry King_ went on to testify: He was in Crandall's office in
Georgetown, some time in July last. Received from Dr. Crandall a
pamphlet similar to the one now shown him, called the "Anti-Slavery
Reporter." There was something written on it, but can't say what it
was. He left it at Linthicum's store. Some one took it away from the
store and it was lost.
_Judge Morsell._ Did Crandall make any remark, when you took the
pamphlet?
_Witness._ No. Witness was looking at the botanical preparations in the
office, and seeing this and other tracts on the subject of abolition
lying about, he took up one and remarked, "the latitude is too far south
for these things;" "they won't do here;" but, "by your leave, I will
take this and read it over." Crandall was at the time engaged in taking
out preparations of plants from a large trunk. There were three of these
pamphlets on the table, but don't know whether they were taken from
the trunk or not. Crandall used newspapers, or something like them, as
wrappers for the preserved plants. Witness is not a slaveholder himself.
Witness after looking over the pamphlet threw it on the desk in
Linthicum's store, and afterwards threw it under the counter. When the
excitement arose, looked for it and could not find it. Had thought
nothing about it till then. Did not remember what words were written
on the pamphlet. Crandall did not call his attention to the tracts.
He asked Crandall for the pamphlet, as a loan, and took it away with
Crandall's leave. Crandall never asked for it afterwards. He saw
something written on the pamphlet, and recollects that Crandall at his
examination in the jail, admitted the words, "please read and circulate"
to have been written by himself. He saw in Crandall's shop two or
three of them, not more than three. The plants were enveloped in large
newspapers. Crandall had been in Georgetown about three weeks or a
month, at this time. Witness was frequently in the shop. Crandall was
much engaged in gathering and preserving plants.
_Key_ proposed to read from the pamphlet.
_Coxe_ objected that the publication, with the malicious intent charged,
had not been proved, and that it was necessary before going into any
other evidence to make out the fact of publication. The paper could not
be read to show the intent, when no evidence of publication is offered
to show such a publication as is charged; and he cited various
authorities of no interest to the general reader.
_Key_ argued that possession alone of a known published libel, was
evidence of publication sufficient to call upon the defendant to show
how he came by it. The intent was to be inferred from the character of
the libel: and the evidence he had already given was sufficient _prima
facia_ evidence to put the prisoner to his defence, and allow the libel
to be read to the jury. He meant to show other circumstances which would
show the intent. If the evidence of having given one to a witness, and
having in possession a bundle of other similar libels was not enough,
then a man has only to keep them on hand, and take care not to give them
away; but he may tell every body that he has them, and advertise them
from one end of the country to the other; and may give them to every
body who chooses to call for them, without any danger from the law.
_The Court_ called King again, when he stated that Crandall permitted
him to take away the pamphlet at his request, reluctantly; that it was
a private office, without any sign, or indication of business, or any
thing shown for sale at the windows, nor any thing for sale in the shop.
The pamphlets might have been thrown down in the confusion of unpacking;
and he never saw but three persons in the shop, which was usually kept
locked. Crandall was mostly out collecting plants; and he once saw him
describing some specimens to Mr. Cruickshank and Doctor King; he
understood Crandall had given out that he was about to teach botany.
The counsel for the defence here contended, that this was not sufficient
evidence of malicious publication. The delivery to King was no more than
simple possession in the eye of the law, and was compatible with entire
innocence; and possession alone was no offence.
_Key_ cited a number of authorities to show that _prima facia_ evidence
of publication only, was necessary to let the libel go to the jury.
Here was a publication--the jury must judge of the intent--with the
handwriting of the prisoner endorsed with the words "read and
circulate;" and he made the point that when a libel is printed, and
a copy is found in possession of the prisoner, it is _prima facia_
evidence to allow the libel to be read. To prove that the words were
on the libel given to King, in the prisoner's handwriting, he called
_William Robinson_, who testified, that he saw the pamphlet which King
said he got of Crandall in Linthicum's shop, and that the words "read
and circulate" were written on it.
_The Court_, deeming this to be _prima facia_ evidence of publication,
permitted the pamphlet to be read to the jury, or so much thereof as
either party might think proper to be read, and pertinent to the issue.
_Key_ was about to read the libel.
_Coxe_ objected, that it was not the libel proved to have been given
to King, for that was lost.
_King_ was called again and said the paper he had was lost; how or where
he did not know; but he identified the one handed to him as an exact
copy of the same pamphlet; but said he could not say what writing was
on the one he had. He might have remembered if he had not seen some with
and some without writing.
_C. T. Coote_ was one of the examining magistrates in the jail when
Crandall was arrested. He recollected that King pointed out one with
the writing on, as similar to the one he had, and that Crandall admitted
the writing to be his.
_B. K. Morsell_, another of the magistrates, recollected that King
stated distinctly, that the words "read and circulate" were on the paper
when he got it; and that Crandall said it was his handwriting, but he
did not recollect Crandall's saying it was put on a year before.
The question was here raised and argued by the counsel on both sides,
whether any evidence could be given of any libels, except those of which
the publication was proved, unless they referred distinctly to the
libels charged in the indictment.
_The Court_ was of opinion that the United States could not give in
evidence to the jury, for the purpose of proving the intent of the
defendant in publishing the libel stated in the first count, any papers
subsequently published by the defendant, or found in his possession
unpublished by him, which would be libels, and might be substantive
subjects of public prosecution, if published.
_Thruston, J._, differed with the majority and delivered the following
opinion:
There are five counts in the indictment charging, in various ways,
the publishing by the traverser of sundry libels with intent to create
sedition and excite insurrection among the slaves and free blacks. The
first count in the indictment charges the publication of a certain
libel, not otherwise described or set out in the count, than by
selecting certain paragraphs in the supposed libellous pamphlet, and
setting them out severally in the count. To this count only and to the
libellous matter charged thereon has any evidence of publication been
given. The Attorney for the United States has moved the court to be
permitted to give in evidence to the jury other printed pamphlets of
the same character and on the same subject, and which the traverser
acknowledged to represent his sentiments, as evidence of malice on
the part of the traverser in the publication of the libel in the first
count; the libel in the first count being one of those which, with the
others now asked to be given in evidence, the traverser acknowledged
contained his sentiments.
That is, that it is competent to prove malice in the publication of one
libel by others found in the possession of the traverser on the same
subject, of which no proof of publication has been offered. The motion
to admit the said alleged libellous pamphlets in evidence has been
supported by no precedent or adjudged case, but from analogies drawn
from proceedings in other cases, and from the expediency or necessity
of punishing the enormous crime of which the defendant stands accused;
enormous, we all admit the crime to be, if substantiated, but which
judges cannot punish but under the rules and principles of law. Enormous
as the offence is, it is questionable whether from public considerations
it is not better that the accused should escape punishment, than that
the law should be perverted to obtain his conviction.
There being no authorities cited to sustain the motion of the Attorney
for the United States, we have no other guide to enlighten and direct
us than the established principles and rules of law in criminal
proceedings. I take it to be well settled, that in indictments for
libels, publication is the gist and essence of the crime; that having
in one's possession one or more seditious or libellous writings, whether
written or printed, if their contents be not communicated or made known
to one or more persons, then the possessor is not criminal in a legal
point of view. It is true that Hawkins was cited to prove that having
in one's possession a known published libel is _prima facie_ evidence
of publication against such possessors; admitting this authority, it
seems not to touch the case before us, unless those libels were
published within this District. They purport on the face of them to
have been printed in _New York_, and there published, so far as sending
them abroad, within that state, from the printing office, and putting
them into the hands of others amounts to a publication within this
District; and no evidence has been offered that the traverser ever
distributed a single copy or imparted their contents to any person
within this District saving the one charged in the first count. Hawkins
surely did not mean that having a copy of a libel published in a foreign
country in one's possession, was evidence of publication in another
state or country where the possessor of such copy may be found: for
example, a libel against the British government printed and published
in France would be no publication in England, to charge a person found
in England with one or more copies of such libels in his possession,
with the guilt of publishing such libel against the laws of England.
It is true, in times of great excitement in England, when the rebellious
principles of France were gaining ground and endangering the very
existence of the government, the Scottish courts did condemn and send
to Botany bay, Muir and Palmer for having in their possession a printed
copy of Thomas Paine's Rights of Man. It is very long since I read the
case; indeed shortly after we first obtained the information of their
trial, and shortly indeed after the trial; but I have never heard the
judgment of the court in their case spoken of but with reprobation. I
cannot remember the particulars of the case. The evidence was, that the
book had been reprinted and published in Great Britain. If so, that case
is stronger than that of having a printed copy in possession of a libel
published only in a foreign country; and so far, if such be the fact, it
is sustained by the dictum in Hawkins, but this dictum is not itself
sustained, as far as I could judge from the authorities cited at the
bar, from Hawkins himself, nor by any adjudged case. I think I may
boldly assert, then, that the merely having in possession a libel
printed and published in a foreign country only, is not an indictable
offence here, and publication of the same libel here.
Let us then examine how far these alleged libels, which, although not
subjects of criminal prosecution here, can be made use of to sustain the
publication, or prove, or aid in proving, the criminal intent or malice
in the publication of another libel charged in the first count, and of
the publication of which some evidence has been offered to the jury. Now
the libels in the first count, of which evidence of publication has been
given to the jury, is of itself libellous, or it is not; if it be
libellous and published, the law deduces the criminal intent from the
libellous matter itself, and therefore requires no aid from other
libellous writings to sustain it: if it be not libellous, it cannot be
made so by showing other libellous writings of the traverser, of which
he is not accused or charged in the indictment. I mean the libellous
matter itself in the libel is, in the eye of the law, proof of criminal
intent, if it be published, unless the traverser can rebut this
inference of law by proving his innocence of any criminal intent, by
some sufficient excuse, as that some person stole the copy from him and
published it without his knowledge or consent. But the Attorney for the
United States urged that these pamphlets, indicating the one charged in
the first count, contained or expressed opinions which coincided with
his sentiments on the subject matter of them; and this was urged as a
reason for admitting them in evidence. This, in my view, amounts to
nothing more than that he appropriated to himself and adopted the
thoughts of others. What proof could this appropriation or adoption
afford of a malicious intent in their publication? Every man has an
unquestionable right to his own moral or religious sentiments: there
is no crime in this: it would be criminal to restrain any man in this
country in his own, or in adopting the moral or religious opinions of
others, if he please; it is criminal only when he attempts to propagate
them, and only when they have a tendency to disturb the peace of
society--to invade the general rights of property--and are most
essentially criminal, if they have a tendency to produce the dreadful
results charged in the indictment. But bad as the tendency of those
writings may be, and unquestionably are, if truly portrayed in the
indictment, I know not how much less danger would result, if, led away
by our feelings, we bend the rules and principles of law from expediency,
or the supposed political necessity of convicting the accused. The present
crisis may pass without leaving any dangerous consequences behind it. The
good sense and virtue of the people, and the fear of punishment in
transgressors, will check the progress of these alarming doctrines; but
if we invade the panoply which the law has provided for the protection
of the accused against arbitrary or vindictive judgments, we establish
precedents, the evil consequences of which cannot be calculated. The
criminal intent, then, does not consist in the writing or possession of
a written or printed libel, but in the publishing it. It is not easy to
conceive how the criminal intent of publishing one libel, can be proved
by the having in possession other libels not published, any more than
you would be permitted to prove a man guilty of stealing one horse,
because you might prove that he had a propensity to horse-stealing. But
you would not be allowed to introduce such proof. The _quo animo_ with
which a horse is taken, is as necessary in an indictment for horse
stealing, as for publishing a libel. Now, as I observed before, if the
matter of the pamphlet charged in the first count in the indictment is
libellous, does not the acknowledgment of the traverser that the
sentiment in the several pamphlets coincided with his own, embrace in it
the sentiments in the pamphlets charged in the first count, and of which
evidence has been offered of publication? If so, does not this libel of
itself afford sufficient evidence of malice, without resorting to the
matter of other pamphlets not charged? Then why resort to them? The
traverser was not apprised from this first count, that he was
responsible for any libel or libellous matter, except what was contained
in the libel set out in said count. If you are permitted in order to
prove malice in publishing the libel in the first count, to read to the
jury the libellous matter of other alleged libels, what will be the
consequence? The matter in those other libels may be of a more
aggravated or inflammatory character than in that set out in the first
count. Is it not evident, if such be the case, that the jury may be
influenced to convict the traverser, not by the matter of the libel with
which he is charged, but from that of other libels with which he is not
charged? Surely, if malice in the publication of a libel be an inference
of law, that inference must be drawn only from the libel charged and
published, not from other writings which are not libellous because not
published. As I observed before, if the paper charged in the first count
be of itself libellous, the criminal intent of publication is to be
inferred from the confession of the traverser that he approved of the
sentiments contained in it. If such inference can be drawn from such
confession it can as well be sustained from the matter of this libel, as
from that of any number of others, and there is no need to resort to
them for such inference; if the matter of such papers be not libellous,
no number of other libels found in the traverser's possession, however
coinciding with his own opinions, can sustain the libel charged.
Again: if the matter of those pamphlets, which the Attorney for the
United States has moved the court to be permitted to lay before the
jury, be libellous, may not the traverser be hereafter arraigned upon
them if proof shall be had of their publication? This is possible;
almost probable, if his zeal in the cause be so great as has been
attempted to be proved. Then might he not be convicted by their
instrumentality in the present prosecution, and again in a subsequent
prosecution for publishing those very libels? I thought the court had
decided this point in a former opinion in this case, where they said
they could not be evidence if _they were of themselves indictable
writings_.
Again: if the proof of malice in the publication of the charged libel
be not complete, can it be made so by the production of other pamphlets
or libels not published? Is it an inference of law, that having such
libels in the traverser's possession furnishes any proof of malice in
the publication of the charged libel? I question the legal logic of such
an argument. It was almost as easy to publish by distributing fifty
pamphlets as one. Now if but one of fifty was given out, is it not as
probable that he did not desire to publish them, as that he did? Now an
inference from facts, or acts, is matter of law, and I should hesitate
to tell the jury that the traverser having in his possession fifty other
libels, or any lesser or greater number, which he might have published
with the same ease as he published one, is proof of malice in
publishing that one. An inference to be drawn from proved facts or
circumstances is something like a corollary drawn from a previously
demonstrated theorem in mathematics.
I wish it was as certain and clear. An inference deduced from a proved
theorem in geometry is unquestionable. Every body will agree to it. An
inference drawn by law from previously proved facts or circumstances,
is doubtful at best. Two discreet judges may and often do disagree in
regard to it. Do we not hear every day, in this court, of the most
wise and able judges--of the venerated Hale himself--admonishing
courts and juries not to lend a willing ear to them; at least against
circumstantial evidence, which is the same thing. How many almost
irresistable cases of inferences drawn from pregnant facts have been
shown, in which time proved the fallacy of such inferences, and that
many an innocent man has been consigned to an ignominious death by
circumstantial or (which is the same thing) inferential evidence, and
still so strong were the facts and circumstances in the very cases
cited by them, (where time proved the innocence of the accused who had
suffered the penalty of the law), that under the same circumstances I
should permit the same evidence to go to the jury--but in the case
before the court those admonitions are well worth considering. We are
asked to admit certain pamphlets said to be of similar libellous
tendency, and proved by the confession of the traverser to coincide
with his opinions, as the one charged in the indictment, and of the
publication of which evidence has been offered to the jury, although
such pamphlets were never out of the possession of the traverser nor
shown to any one, to prove malice in the traverser in the publication
of another pamphlet charged to have been published by him in the first
count in the indictment. I do not distinctly see the legal inference of
malice in having in his possession those unpublished pamphlets. He
could have published them, if this malice was in his heart. Why did he
not? Is it not in evidence that when he permitted one of those pamphlets
to be taken from his counter and read by Mr. King, that he did it
with reluctance, and that he was warned of the danger of bringing
such writings so far South? Is it unreasonable to suppose that he was
deterred by the warning? Taking then the whole evidence together,
although it proved great indiscretion in the traverser, and great guilt
had he propagated his writings--and that he would have deserved the most
condign punishment had he had the temerity to have published them--yet,
if I am to take the whole of the testimony in the case, I should be
compelled to say, that in withholding the other pamphlets from the
view of others, or of any other, he was influenced by the counsel he
had received, and was afraid to publish them; and that, under the
circumstances in which he permitted the first pamphlet to be taken from
his counter and published, if such permission be a publication, that he
then was aware of the danger he was in, and that under such circumstances
the having in his possession other pamphlets of a similar character, (if
the publication by permitting the pamphlets charged in the first count
to be taken from his counter and read by Mr. King, be not taking the
contents of the pamphlet into view of itself a malicious publication),
it cannot be made so by having other pamphlets of similar tendency in
his possession, which he did not publish nor attempt to publish.
It was contended, among the reasons assigned by the Attorney for the
United States for the admission of those pamphlets in evidence to the
jury, that some three or four of them were endorsed with the words
"read this and circulate," in the handwriting of the traverser, and this
was evidence of malice in the publication of the pamphlet charged in the
first count, and of which evidence of the publication has been offered
to the jury. But this pamphlet last spoken of had also the same words
written on it: whatever evidence of malice may be inferred from these
words, is furnished by the said pamphlet itself, and therefore it is not
necessary to resort to other sources for such evidence. It is true that
a multiplication of the same inscriptions on other pamphlets may, and
do, manifest greater zeal, and more intense interest in the subject
matter of the writings, and indicate an intention on the part of the
writer of such inscriptions to publish them. The malice which the law
denounces is in the publication, not in the writing or composition:
a man may express his thoughts or opinions in writing with impunity,
and is as innocent in the eye of the law (provided he keeps such writings
or compositions locked up from the public eye) as if they were locked up
in his own mind. Is not an indication or manifestation of an intention
to publish certain writings or printed compositions, and the withholding
the execution of such intention as strong evidence of change of purpose
from fear of the consequences or for other reasons, as of malice in the
publication of one of them in the way, and under the circumstances, in
which the one charged to have been published in the first count was
published? It is very clear, it seems to me, that if there were no other
evidence of any other publication of any of the pamphlets in question,
than the inscription on the corner "read this and circulate," that the
indictment could not be sustained, because such inscriptions, if the
pamphlets are never shown to any other person, is in the eye of the law
harmless. If, then, we are asked to admit such inscriptions or pamphlets
never shown to, or seen by any other person within this District,
because there is evidence that one such pamphlet was permitted to be
seen and partly read by another, must we not look at the evidence which
proves such exhibition of such pamphlets, and connect that with such
inscriptions on other pamphlets not published, to see how far such
inscriptions go to fortify and strengthen the evidence of malice as to
the published pamphlets? In other words, to see what legal inferences
of additional evidence such inscriptions afford? If this were a case
of ordinary importance, I should say without much hesitation, that they
afford no such inferences. It is for the jury to draw inferences of
guilt or malice from circumstances; they are fully competent to do so in
the present case from the evidence now before them; but it is often and
almost always a nice point for a court to instruct a jury from what
circumstances or facts inferences of guilt or malice may be drawn. It is
saying, Gentlemen of the jury, such and such a circumstance, if proved
to your satisfaction, is evidence from which you may and ought to find
against the traverser. It satisfies our minds and ought to satisfy
yours. But juries ought and will judge for themselves in criminal cases;
and I have always thought it a delicate matter in criminal cases, to
give such instructions to juries. Here we are not asked to give an
instruction; but we are asked to permit evidence to go the jury, which,
if allowed, carries with it the opinion of the court that such evidence
affords inference of malice. I must see such inference pretty clear
myself, before I give my sanction to the jury to draw such inference
themselves. It is true the law denounces any published writing having a
tendency to produce a breach of peace, or insurrection, or to jeopardize
the general rights of property, whether the intent of the writer was
wicked or innocent, as libellous. The writing itself being of a
libellous character, is of itself evidence of malice in the publication,
and it would be no excuse for the publisher to say, I meant no harm, I
thought I was doing good. In the eye of the law he is as guilty as if
this intention was really wicked. This is called implied malice, in the
absence of any other proof of malice than what is offered by the
internal evidence of the writing itself. Now the object of the motion to
lay before the jury other libellous papers, can be for no other purpose
than to prove express malice; for the published libel charged in the
first count, if it contain libellous matter, and was published, is of
itself, sufficient proof of implied malice, and if it be not libellous,
no other libellous writing can be introduced to make it so. Then, if it
be libellous itself, it implies malice; and if other similar writings
be introduced to prove malice, what does it amount to but proving the
implied malice of one libel by the implied malice of other libels? Or,
if it be said that some evidence of express malice has been laid before
the jury, can you make this evidence more strong or clear by evidence of
implied malice, contained in other similar writings not published? Upon
the whole, I do not distinctly see, under all the circumstances of this
case, how the unpublished writings can be admitted to prove the implied
malice to be gathered from them if they had been published, the implied
malice in the libel charged and allowed to have been published, or how
such evidence of implied malice in them, can be brought to prove express
malice in the publication of the charged libel in the first count. I am
against the motion.
_Mr. Key_, for the United States, then offered to prove the publication
by the defendant of the libels stated in the first, second, and third
counts, _by proving the following facts_, viz: that a large collection
of libels, and among them several copies of those charged in those
counts, with the words "_read and circulate_" in his handwriting, were
found upon the traverser--that he undertook to account for their being
in his possession, and gave untrue and contradictory accounts--that he
acknowledged that he had brought here those then shown to him, being
the same now in court, and that they comprehended all he brought here,
except about a dozen; and that prior to the traverser's arrest sundry
similar publications had been privately sent to various persons in this
District by some unknown person or persons in this District.
After arguments which occupied nearly the whole of Saturday, in which
the counsel on both sides displayed great learning and ingenuity,
_The Court_ delivered the opinion that the Attorney for the United
States may give evidence of the publication, in this District, of any
copies of the libels charged in the first and second counts of the
indictment. That if he shall have given any evidence tending to show
such a publication here, he will be permitted to show that other copies
of the same libels were found in the possession of the defendant. He may
then give evidence that a certain number of papers or pamphlets were
found in the possession of the defendant, together with the copies of
the libels charged, and of the publication of which in this District,
he shall have given evidence; but he will not be permitted to give in
evidence to the jury the contents of any of the papers other than those
charged as libels in this indictment, unless such other papers have
relation to the libels charged in the indictment, and would not in
themselves be substantive ground of prosecution. He may then give
evidence to the jury of any confessions or acknowledgments made by the
defendant in relation to any of the matters charged in the indictment.
_The District Attorney_ then put in evidence as follows, to show that
the prisoner had many similar libels in his possession, and that others
were distributed throughout the District.