Arguments

IN THE

GREAT CAUSE

OF THE

PEOPLE,

AGAINST

HARRY CROSWELL.

THIS

HIS was an issue of traverse upon an indictment, found at the general sessions of the peace for the county of Columbia, in the term of January last, and removed into the Supreme Court by Certiorari, and tried before his honor the Chief Justice, at the Circuit in Columbia, in July last. Previous to the commencement of the trial, an application was made to put it off upon the following affidavit.

HARRY CROSWELL, the defendant in the above cause, being Columbia 88. duly sworn, deposeth and saith, That James Thompson CalCounty, lender, of the State of Virginia, is a material witness for this deponent, without the benefit of whose testimony, as he is advised by his counsel, and verily believes, he cannot safely proceed to trial. That this deponent expects to be able to prove, by the said James Thompson Callender, the truth of the charge set forth in the indictment against this deponent, so far forth as this: That the said James Thompson Callender was the writer of a certain pamphlet called " The Prospect before us," and that he caused the same to be printed and published-That Thomas Jefferson, Esquire, President of the United States, well knowing the contents of the said publication, called "The Prospect before us," paid, or caused to be paid to the said James Thompson Callender, the two several sums of fifty dollars; one of which sums was paid, prior to the publication of the said pamphlet, for the purpose of aiding and assisting him the said James Thompson Callender in the publication thereof, and the other subsequent thereto, as a reward, thereby shewing his, the said Thomas Jefferson's approbation thereof; and this deponent further saith, that in the said publication called the "Prospect before us," George Washington, Esquire, late President of the United States, deceased, is charged in effect with the several crimes in the indict ment aforesaid mentioned, and that John Adams, Esq. late President of the United States, is therein expressly declared to be a hoary headed incendiary. And this deponent says it has been wholly out of his power to procure the voluntary attendance of the said James Thompson Callender at this Court, though he had, at the last Court of the General Sessions of the Peace in this County, and since, until a few days past, good reason to believe, that he would attend as a witness at this court. And this deponent also says, that he expects to be able to procure the voluntary attendance of the said

James Thompson Callender at the next Circuit Court, to be held in and for this County, and that he will bring with him two letters from the said Thomas Jefferson, to the said James Thompson Callender, wherein he expressed his approbation of a certain publication, then about to be printed by the said James Thompson Callender, which publication this deponent expects to be able to prove, by the said James Thompson Callender, was, "The Prospect before us," unless the said Court should grant a commission to examine the said James Thompson Callender, upon an application which this deponent intends at the next term to make for that purpose. The application being over-ruled by his honor the Chief Justice, the Indictment which charged as follows, was read.

At a Court of General Sessions of the Peace, holden, &c. Columbia 88. It is represented THAT HARRY CROSWELL, late of the City County of Hudson, in the County of Columbia aforesaid, Printer, being a malicious and seditious man, of a depraved mind and wicked and diabolical disposition, and also deceitfully, wickedly, and maliciously devising, contriving, and intending, Thomas Jefferson Esq. President of the United States of America, to detract from, scandalize, traduce, vilify, and to represent him, the said Thomas Jefferson, as unworthy of the confidence, respect, and attachment, of the people of the said United States, and to alienate and withdraw from the said Thomas Jefferson Esquire, President as aforesaid, the obedience, fidelity, and allegiance, of the Citizens of the State of NewYork, and also of the said United States; and wickedly and seditiously to disturb the peace and tranquility, as well of the People of the State of New-York, as of the United States; and also to bring the said Thomas Jefferson, Esquire, (as much as in him the said Harry Croswell lay) into great hatred, contempt, and disgrace, not only with the people of the state of New-York and the said people of the United States of America, but also with the citizens and subjects of other nations; and for that purpose the said Harry Croswell, did on the ninth day of September, in the year of our Lord one thousand eight hundred and two, with force and arms, at the said city of Hudson, in the said County of Columbia, wickedly, maliciously, and sedi* tiously, print and publish, and cause and procure to be printed and published, a certain scandalous, malicious, and seditious libel, in a certain paper or publication, entitled "The Wash;" containing therein, among other things, certain scandalous, malicious, inflammatory, and seditious matters, of and concerning the said Thomas Jefferson Esquire, then and yet being President of the United States of America, that is to say, in one part thereof according to the tenor and effect following, that is to say: Jefferson, (the said Thomas Jefferson Esquire meaning) paid Callender, (meaning one James Thompson Callender) for calling Washington (meaning George Washington Esquire, deceased, late President of the said United States) a traitor, a robber, and a perjurer; for calling Adams (meaning John Adams Esquire, late President of the said United States) a hoary-headed incendiary, and for most grossly slandering the private characters of men, who he (meaning the said Thomas Jefferson) well knew to be virtuous, to the great scandal and infamy of the said Thomas Jefferson Esquire, President of the said United States, in contempt of the people of the State of New-York, in open violation of the laws of the said State, to the evil example of all others in like case offending, and against the peace of the People of the State of New-York, and their dignity.

On the part of the prosecution, it was proved, that the defendant was

5

the editor of a Newspaper entitled "The Wash," a series of which were printed and published in the City of Hudson. In one of them (number seven) was contained a piece, from which was extracted the matter charged in the indictment as the libel, the whole of which piece was read by the prosecutor, in the following words: "Holt says, the burden of the federal song is, that Mr. Jefferson paid Callender for writing against the late administration. This is wholly false. The charge is explicitly this: Jefferson paid Callender for calling Washington a traitor, a robber, and a perjurer; for calling Adams a hoary-headed incendiary; and for most grossly slandering the private characters of men, who he well knew were virtuous.... These charges not a democratic editor has yet dared, or ever will dare to meet in an open and manly discussion." It was further proved on the part of the prosecutor, that a file of the Wasp, from number one, to number twelve inclusive, was purchased at the office where they had been printed; from number one, to number five, had been sold by the defendant, and the residue by one of the journeymen in his office. The prosecutor then called a witness to prove the truth of the inuendoes; to this the counsel for the defendant objected; the Chief Justice over-ruled the objection. The witness was then examined and testified that he understood the epithets Jefferson, Washington, and Adams, mentioned in the alleged libel to be as stated in the inuendoes in the indictment, and that he had seen similar charges, in other papers, previous to the publication in the Wasp; which was one of the reasons which induced his opinion, that the inuendoes were correct. The prosecution being rested on this evidence, the defendant offered to prove, that he had no agency in devising, writing, or inditing, the publication in question, and that the same was handed to be printed to a person in his employ, and in his absence, without his knowledge. To the introduction of this testimony the prosecutor objected, and the Chief Justice refused to receive the same, unless the defendant meant also to prove, that he was not prior to the printing and publication of the alleged libel. This the defendant's counsel did not offer to prove. The defendant's counsel proceeded to sum up the evidence and read a paragraph in the Bee, a Newspaper printed in the City aforesaid, by Holt, the person in the alleged libellous piece mentioned, to shew that he declared the burthen of the federal song to be such, as mentioned in the libel. Though this, had not been previously proved or read in evidence, it was not objected to. In the course of the summing up on the part of the prosecution, the Attorney General offered to read certain passages from number seven of "The Wash," and the prospectus contained in the first number, which had not before been shewn or pointed out to the defendant's counsel or read in evidence....To this objections were made, but the Chief Justice decided that the prosecutor had a right to read such passages from such numbers of the Wasp as he thought fit. The Attorney General accordingly read, in order to shew the intent of the defendant in publishing the alleged libel, to be such as charged in the indictment, from number one of the Wasp, the prospectus, and another piece from number seven, in neither of which passages was there any thing alleged against Thomas Jefferson, in his private or official capacity. The Attorney General further stated, that from an examination of every number of the Wasp, it would be manifest, that the intent of the defendant was malicious. The Judge charged the Jury among other things, that particularly on trials for libels they were not the judges of the law and the fact; and that in cases of libel

only.

*

6

Could the Court set aside a general verdict of guilty, if the indictment set forth nothing in their judgment libellous.

His honor then read to the Jury the opinion of Lord Mansfield in the case of the Dean of St. Asaph, as reported in a note in third Term Reports, and charged the Jury that the law therein laid down, was the law of this state. That it was no part of the province of a Jury to inquire or decide on the intent of the defendant; or whether the publication in question was true, or false, or malicious. That the only questions for their consideration and decision were; first, whether the defendant was the publisher of the piece charged in the indictment; and second, as to the truth of the inuendoes. That if they were satisfied as to these two points, it was their duty to find him guilty.... That the intent of the publisher, and whether the publication in question was libellous or not, was, upon the return of the Postea, to be decided exclusively by the Court, and therefore it was not his duty to give an opinion to them on these points; and accordingly no opinion was given.

Upon the foregoing case the following grounds were relied on for a new trial.

I. Because the trial ought to have been put off, in order to give an opportunity to the defendant to procure the testimony in the affidavit mentioned.

II. That the piece alleged to be libellous, and which was read in evidence from number seven of the Wasp, is materially and substantially differ. ent from that charged in the indictment, and the piece so read is not li bellous.

III. That the admission of proof, of the truth of the inundoes was improper.

IV. That the defendant ought to have been permitted to prove that he was not the author of the alleged libellous piece, and that the same had been handed to another person to be printed in his absence.

V. That the permission given to the Attorney General to read to the Jury certain passages from numbers of the Wasp, other than number seven, was improper.

VI. For misdirection by his honor the Chief Justice, in his charge to the Jury in this, that he charged the Jury, that particularly in cases of libel, they were not the judges of law and fact....That in cases of libel only, could a Court set aside a general verdict of guilty. That the law, laid down in the case of the Dean of St. Asaph, is the law of this State. That the intent was simply a question of law, and therefore not to be left to the Jury, but to be decided exclusively by the Court on the return of the Postea. And that Whether the piece in question was libellous or not, was not to be decided by the Jury; and because the Judge did not, as he ought to have done, give his opinion to the Jury on the point last mentioned.

MR. VAN NESS.

IT has been assigned to me, to open to the Court, the grounds upon which the defendant relies for a new trial. In reflecting upon the immense importance of the principles which are to be investigated; the interesting nature of the questions which the discussion involves, and, above all, how much depends upon a correct decision of them, I feel an oppression and dismay, the discouraging operations of which, I have in vain attempted to resist. On the argument, the Chief Justice said his charge was not in this respect, accurately stated: That it was thus, "In cases of libel, the court could only set aside a generál verdict of guilty."