by the preposterous folly of the claim they set up over the persons of
God's creatures, doom to slavery the free African the moment his eyes
are opened on the light of heaven, for no other offence than being the
child of parents thus doomed before him, can, in the judgment of truth
and the estimation of a just posterity, be held inferior in heinousness
only to the first act of piracy which made them slaves. It is in vain
that we cover up and avoid such reflections. They cling to us, and earth
cries shame upon us that their voice has been so long unheeded. The free
Lybian, in his scorching deserts, was as much a slave when he rushed,
in the wild chase, upon the king of beasts, as is his unhappy offspring
before our laws cleave to him. God creates no slaves. The laws of man do
oftentimes pervert the best gifts of nature, and wage an impious warfare
against her decrees. But you can discover what is of the earth and what
is from above. You may take man at his birth, and by an adequate system
make him a slave, a brute, a demon. This is man's work. The light of
reason, history and philosophy, the voice of nature and religion, the
Spirit of God himself, proclaims that the being he created in his own
image he must have been created free."
"It can be no less incorrect to apply any arguments drawn from the right
of conquest, or the lapse of time, as against the offspring of persons
held to involuntary servitude. For neither force nor time has any
meaning when applied to a nonentity. He cannot be said to be conquered,
who never had the opportunity or means of resistance; nor can time
run against one unborn. Those who lean to a contrary doctrine should
well consider to what it leads them. For no rule of reason is better
received, or clearer, than that force may be always resisted by force;
and whatever is thus established, may, at time, be lawfully overthrown.
Or, on the other hand, if error is made sacred by its antiquity, there
is no absurdity or crime which may not be dug up from its dishonored
tomb, and erected into an idol around which its scattered votaries may
reassemble."
Mr. Bradley then went on to argue upon the tendency of the libels, and
contended that they were not calculated to excite sedition. They are
not addressed to the colored people, nor adapted to excite insurrection
and revolution among them. They are calm appeals to reason, designed
to produce measures to arrest a danger which they think threatens them,
in common with their brethren of the South.
He next adverted to the law of publication. There were two grounds of
publication--one is legally to be inferred--the other actually proved.
The monstrous doctrine is contended for by the prosecutor, that if a
man has a libel in his possession, if it was publicly circulated in the
country, the possession is _prima facia_ evidence that he put it in
circulation. To show the absurdity of such a position he took a case
of a favorite popular libel, which would be all sold in a day, and said
that it would be impossible to find an impartial jury to try a case
under such a law--because it would not be easy to find twelve men drawn
as jurors who would not have been possessors in some way of the libel,
and of course equally criminal.
Having a written copy of a published libel in one's own handwriting may
be _prima facia_ evidence; but it is not so with a printed copy. The
publication must be brought home to the defendant. An actual publication
is when the party puts the libel in circulation--when he gives it to a
third party, either by himself or an agent, for the purpose of having it
put in circulation.
The evidence in this case, he contended, afforded not only no proof,
but no presumption that he published the libel. The one copy he allowed
King to take was not given to be circulated. He had been warned of the
danger, and had avowed his opposition to having such papers put in
circulation. There could be no pretence that it was given to stir up
mischief; and if any one was responsible for any evil effects, supposing
any to accrue, it was Mr. King who had shown it, and left it exposed
openly in a shop. But he argued that the loan of the paper to King was
simple possession--he had afterwards taken it back from the shop, and no
evil had been done or intended.
The intent, he said, must be gathered from the circumstance of the
publication, and not alone from the libel charged; and he then commented
upon the manner in which this paper was taken by Mr. King, and upon his
character as a substantial, respectable man, who had just given the
prisoner a warning, to show that no presumption could arise of an intent
as charged in the indictment. The words "read and circulate," upon which
so much stress had been laid, showed no evidence of an intent to publish
the pamphlets here, for they were put on two years before in Peekskill;
and even the having them brought here was no act of the prisoner's, nor
does it appear that he knew they were in the box.
He went at length into an examination of the evidence tending to show
Crandall's good character, and the accidents which brought him here and
induced him to make it his permanent residence. The trouble and
excitement, he said, had not been owing to the prisoner or to any act of
his, but was entirely owing to the misapplied zeal of the officers, and
to their indiscretion and stupidity. He said he had gone over all the
evidence of publication, and it was certain that no other publication
had been made by him, for the District Attorney would have brought proof
of it; if one had been dropped ten fathoms deep, into the vilest well,
some one would have been found to fish it up.
He traced the course of the prisoner from his boyhood to college, and to
the study of his profession--from that to his settlement at Peekskill;
and urged upon the jury the consideration of his uniformly sustained
character, and of his blameless life. He followed him with Mr. Austin's
family to this city, and afterwards shewed his course to New York, when
the important bundle of abolition tracts was palmed upon him; and then
followed him here with those papers, which he did not even open, and
of which he could not have known the contents, till he was informed by
Mrs. Austin. He had shewn that no Anti-Slavery Society existed where he
came from, and that he had never been a member of any such society. He
had also shewn his acts, in connection with his good character and
principles, when he went to Connecticut to suppress the school founded
by Arthur Tappan & Co., which he thought an improper and dangerous
institution; and though he has always avowed himself to be opposed to
slavery, yet he has always been as firmly opposed to excitement. He had
traced him here, and shewn his declarations and principles here, and the
business in which he was engaged.
He said he had been satisfied, early in the trial, that there was no
ground for the prosecution--that the counsel for the United States had
not made out a case which would satisfy themselves or you; but it was
necessary to go on with the trial, for the satisfaction of others. The
public were anxious to have the whole truth before them; and he was
happy to believe that the jury would come to the conclusion that the
Government had wholly failed, upon their own evidence, to make out a
case which would justify a conviction of the prisoner.
_Mr. Coxe_ addressed the jury. He was not aware, he said, that during
his whole career as a professional man, he had ever entered upon the
discharge of his professional duties with feelings of more anxiety than
in the present case. The interest which he felt in the result was not
limited to the consequences which might befall the traverser--an
individual to whom he was an entire stranger; but principles had been
advanced, and a course of proceeding adopted in this case, which
involved results of the most general and momentous character; results
which may to-morrow, and through all time, be brought to bear upon each
one of us and upon our posterity.
The cause now on trial was the first of the same description which, to
his knowledge, had ever been brought up for judicial decision. It was an
indictment for a seditious libel at common law. Mr. Coxe here adverted
to a portion of our history, during the administration of the elder
Adams, when we were threatened with a foreign war and internal
commotion, and when it was believed that a resort to unusual means of
protection from impending peril was necessary. At that crisis was passed
the act of July 14, 1798, commonly called the Sedition Act, by which it
was provided that any person guilty of uttering a seditious libel
against the Government of the United States, with intent to defame the
same and bring it into contempt and disrepute, shall be punished by a
fine not exceeding two thousand dollars, and by imprisonment not
exceeding two years. The act was denounced as tyrannical, oppressive,
unconstitutional, and destructive of the liberty of speech and of the
press, and it was made one of the principal charges against the party in
power of that day, and was the chief means of its overthrow. During the
short period of the existence of that odious law, some few prosecutions
were instituted under it against obnoxious individuals; and these were
the only cases of prosecution for seditious libel that had ever occurred
in this country.
In the present case, an attempt was made to apply the well known
principles of the common law to the same improper and unconstitutional
end. The case was new to our courts, and was of rare occurrence in the
courts of England. Without being a prophet or the son of a prophet,
Mr. Coxe said he would venture to predict that, if the doctrines which
had been urged in behalf of this prosecution, and the proceedings which
had been here justified by the District Attorney, should be established
as lawful, the seeds will have been sown from which will be reaped, for
us and for our children, a harvest of woe and disaster.
He could not, therefore, but deeply feel the share of responsibility
which devolved upon him in the management of this case, and in the
vindication of the great principles of constitutional liberty in which
he had been nurtured and to which he was bound to adhere.
If, upon such a warrant as was issued against this traverser, any
individual in this community might be arrested, his papers seized and
examined, his most private correspondence exhibited to the public gaze,
and if all this proceeding was to be warranted by the laws under which
we live, then, gentlemen, said Mr. Coxe, this District is no place for
me. He would seek some place where he would be safe from such
outrages--some place where the principles of civil liberty are still
understood and cherished.
If, upon testimony thus illegally obtained from him, without having been
guilty of any overt act against the peace of the community, he could
be indicted for sedition, incarcerated for eight months preparatory
to a trial, and then be told that for having such publications as the
traverser had in his private custody, under his own lock and key, or
for loaning one to an intelligent friend, for his single perusal, he
should be exposed to conviction and punishment for sedition, then he
would, to escape such tyranny, expatriate himself, abandoning a land
no longer free.
But this was not, and could not be the law of this District. What was
the case? Let us go back to the 10th of August last, when this warrant
was placed by a justice of the peace, acting under the advice of the
District Attorney, in the hands of the officers who served it. The only
foundation of the prosecution was simply this: Mr. King, while visiting
the office of the traverser, with whom he was in habits of intimacy and
free intercourse, saw there lying about the room, amongst various works
on different branches of science and the arts, three pamphlets, which
were taken from a box containing surgical instruments, books on surgery,
and botanical preparations, in packing all which the pamphlets had been
with other papers employed. Mr. King casually taking up one of these
pamphlets, read its title page, and remarked that this was too far South
for such things. He asked permission of the traverser to read it, which
was granted, and up to the 10th day of August, a month afterwards, this
was the extent of Dr. Crandall's offence. The affidavit in the warrant
did not even go so far as this, in any positive charge. William
Robinson, who made the affidavit, deposed that he had seen in Georgetown
an incendiary pamphlet having upon it the name of Dr. Crandall, and that
he, the deponent, had been informed and believed, that Dr. Crandall was
engaged in distributing and circulating such pamphlets. The only
positive averment in the affidavit was unimportant, and, if important,
was untrue. Mr. Robinson, when examined, had no recollection of such
a pamphlet, and there was abundant evidence to prove that the pamphlet
loaned to King was now in court, and there was no such endorsement on
it. He had not, therefore, seen a tract with Dr. Crandall's name upon
it. That Dr. Crandall was engaged in the circulation of this or similar
pamphlets was equally unsupported by evidence. Upon this allegation, so
flimsy and so false, the Justice, acting under the advice of our learned
District Attorney, issued the illegal and unconstitutional precept which
he held in his hand. By this warrant the constable was directed to
search and examine the traverser's private papers, to select such as
might appear to be incendiary and to bring them and the traverser before
some justice of the peace, to be dealt with according to law.
This illegal process, thus illegally executed, had been justified by
the District Attorney, who had avowed himself ready, whenever required,
to prove that it was lawful. On the other hand, he, Mr. Coxe, pledged
himself, on all occasions, and whenever the question might be presented
for argument and decision, to brand it as tyrannical, oppressive,
illegal, and unconstitutional.
The next evidence for the prosecution was found in the pamphlets thus
stolen, and the possession of them by the traverser was alleged as proof
of their publication by him. Against this false and more than
inquisitorial doctrine, he solemnly protested. Let the accidental
possession of a denounced pamphlet be made proof of its utterance and
publication by the possessor, and let the new process of detecting and
bringing to light that obnoxious pamphlet be established, and what man,
in the whole community, can be safe in the enjoyment of his personal
rights? May not any man be subjected to be treated as a felon, upon the
instigation of private malice, or party animosity, or religious rancor?
How easy would it be to find a magistrate at any time, who, confiding in
the learning and experience and official character of the District
Attorney, will, at his instance, grant such a search warrant against any
individual?--and how easy will it not be to find constables, who, in the
execution of it, will raise a hue and cry, and an excitement against the
individual at whom the process is levelled?--so that if he escape the
tyranny of the law and of the officers of the law, he may, nevertheless,
fall a victim to the blind and ignorant violence of popular fury!
Two things, Mr. Coxe said, must combine to bring the traverser, in this
case, within the law, if indeed there was any law to meet the case. The
publications themselves must be calculated to excite insurrection among
the blacks, and contempt of government among the whites; and the mode
and manner of the publication must be such as to justify the supposition
that the publisher intended to produce this effect.
If both of these facts could not be proved, the prosecution must fail,
and the traverser be entitled to a verdict of acquittal. Admitting that
the character of the pamphlets was incendiary, and as mischievous in
their tendency as the District Attorney may, on this occasion, be
pleased to represent them, still it cannot be shown that the traverser
was guilty of any injurious or malicious dissemination of them. The loan
to Mr. King was the only instance proved of distribution, and could that
be considered malicious? Mr. King was admitted to be an intelligent and
discreet citizen, without any sympathies with the abolitionists, and he
could read one of these pamphlets with as little injury to the public
welfare, as could this court and the many individuals to whom the
District Attorney had been reading them. If the traverser had been
criminal, Mr. Key had been still more so. If Dr. Crandall is punishable
for yielding a reluctant and hesitating consent to the request of
Mr. King to be allowed to take one of these pamphlets and read it, to
what condemnation has Mr. Key subjected himself by forcing these same
tracts, and particularly the worst passages he could select from them,
upon the attention of so many individuals?
But another ground had been taken against the traverser. He was charged
with being a northern man; a native of Connecticut, and a resident of
New York. Have we then, said Mr. Coxe, lived to see the day when in a
court of justice, in the federal city, under the very eyes of Congress,
and of the National Government, it can be urged against an individual
arraigned at the criminal bar, as a circumstance of aggravation, or as
a just ground for suspicion, that the individual comes from the North
or the South, from the East or the West? But we were told, that the
Northern men were interlopers and intruders amongst us. He protested
against the use of such language, especially in the District of
Columbia, which was dependant for its very existence upon the bounty
of Congress, and which owed so much to the liberal policy extended to
it by Northern men. Mr. C. admitted that there were in the North some
vile fanatics, who, under the guise of purity and zeal, had attempted
to scatter firebrands amongst us; men who propose to accomplish the
worst ends by the most nefarious means; men who, under the professions
of christian sympathy and humanity, seek to involve the South in all
the accumulated horrors of a servile war. These men were, however, few
in number and contemptible in resources. On the other hand, there were
men at the South who, for base motives, make themselves auxiliaries to
this excitement, and endeavor to alarm and agitate the people of the
South by misrepresentations of the general feeling and policy of the
people of the North. With neither of these two classes of fanatics had
the people of this District any common interest. As a citizen of this
District, he protested against making it the arena for the operations
of these incendiaries. It was for this jury to resist the first attempt,
now made, to render our courts of justice accessory to their designs.
He would demonstrate from the evidence that the traverser had no part
in producing the excitement which prevailed in this District during the
last summer. Dr. Crandall was not even the innocent cause of it. It
was an excitement got up against Crandall, and not by him. When the
constables went to his lodgings and office with their warrant, there was
no excitement nor commotion among the people. All was calm, and but for
the constables and their process, would have remained so. But they
published in the streets of Georgetown the nature and object of their
errand, and collected a number of individuals who were curious to see
the result of this extraordinary search. One of the constables, Jeffers,
after leaving the office of the traverser, goes to Linthicum's shop, and
there proclaims to the assembly that "they had found more than they
expected;" that "their hopes were more than realized." The constable
then goes on to proclaim that he had found a large number of incendiary
pamphlets, 150 or 160. Then ensued an excitement, and a cry was at once
heard, "carry him across the street and hang him to the tree!" Such was
the origin of the excitement which pervaded our community, and which the
District Attorney lays to the charge of the traverser.
The testimony was silent as to any act of publication by the traverser
of more than one of the publications referred to in the indictment, and
in that he was shown to have had no improper design. We were told,
however, that the possession was proof of criminal design. Was it to be
endured that, without authority of law, and contrary to all law, private
papers should thus be wrested from the possession of an individual,
and then be offered as a proof of malicious intent and malicious
publication? In any prosecution for a libel it was necessary to prove a
malicious publication. Malice may be inferred to an individual from the
simple act of publication. But in cases of seditious libel, it was
necessary, in order to infer malice, to prove that the publication was
made to such persons as that the public could be injured by it. His case
being destitute of such proof, the traverser was entitled to a verdict
in his favor. Mr. Coxe went into a minute examination of the testimony
to prove that the pamphlets were brought innocently and without intent
to circulate them. Those in the box were brought with other papers, and
were packed by a lady, for the purpose of wrappers, &c., for plants.
The pamphlets given to him in New York, by a person from whom he had
purchased a book, he had received without any knowledge of their
contents, and the package remained unopened in his trunk until it was
taken by the constables. No mischief had been produced; no insurrection
raised; no human being injured, except the unfortunate traverser
himself, whom, after an incarceration of eight months, the prosecutor
wishes you still further to punish. This was a reproach to our
community; a burlesque of our courts of justice; it had no support in
principle or reason. Was this the boasted intelligence, spirit, and
generosity of the South!
From a review of the testimony it would be found that the traverser
came into possession of the papers innocently; that he retained them
innocently; and that they were never distributed by him.
Mr. Coxe then proceeded to maintain, at length, that, granting the
publication, there was nothing in the quotations from the pamphlets
incorporated in the indictment from which a criminal intent could be
inferred. If there was no criminal matter in the extracts, then there
was no crime charged. He went on to prove that they did not contain a
single sentiment or expression on the subject of slavery, and its
political, moral, and social results, which had not also been used by
slaveholders; by the statesmen, and lawyers, and writers of the South.
Mr. Coxe proceeded to compare the language charged as seditious in the
indictment, with passages from colonization speeches made by Mr. Key
himself; by Mr. Archer, Mr. Custis, Bishop Smith, General Harper;
by Patrick Henry, in the Virginia Convention; Mr. Pinckney, in the
Legislature of New York; by Mr. Jefferson, in his notes on Virginia;
by Judge Tucker, in his notes to Blackstone's Commentaries; and by
other distinguished gentlemen at the South.
Neither he, nor the jury, nor the District Attorney, could distinguish
the language and sentiment of one of those parties from the other. If
there was any difference it was in this, that the northern publications
were somewhat more temperate than the others. The controversy which had
grown up between the rival Societies for Colonization and Abolition had
given birth to this excitement. Which of them was right, or whether they
were both right or wrong, was not now a matter in issue; but he would
allude to the fact that the sincerity and personal excellence of the
abolitionists had been warmly acknowledged by the amiable Secretary of
the Colonization Society, and by one of its most distinguished members
and friends, Mr. Gerrit Smith.
But the District Attorney denounced the Abolition Societies and
Dr. Crandall, whom he alleged to be a member of the American Abolition
Society. This assertion was unsupported by testimony, and untrue in
fact. One of the constables, indeed, had testified that Crandall, after
his arrest, admitted that he was a member of that society; but this was
disproved by all the other testimony in the case.
Mr. Coxe, without defending the Abolition Societies, here undertook to
prove, from various documentary evidence, that there was, after all, but
very little difference between the sentiments and objects of the
colonizationists and the abolitionists.
In conclusion, Mr. Coxe remarked, that if any the smallest injury had
resulted from the traverser's sojourn in this District, it was not his
fault. He was innocently occupied in professional pursuits, and was
quietly pursuing the even tenor of his way. Whatever excitement and
injury had grown out of his visit here was solely attributable to the
illegal course taken by the prosecutor in procuring his arrest and the
seizure of his papers, which were harmlessly reposing in his trunk.
With these remarks, and his thanks for the patient hearing afforded him
by the jury, Mr. Coxe submitted the case, with entire confidence, to
their hands.