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.
REUBEN CRANDALL, M. D.
PUBLISHING AND CIRCULATING
SEDITIOUS AND INCENDIARY PAPERS, &c.
DISTRICT OF COLUMBIA,
WITH THE INTENT OF
EXCITING SERVILE INSURRECTION.
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.
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.
REUBEN CRANDALL, M. D.
ON A CHARGE OF
CIRCULATING INCENDIARY PAPERS.
UNITED STATES' CIRCUIT COURT,
District of Columbia, Friday, April 15th, 1836.
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.
H. B. Robertson, constable, deposed that he found some tracts on Dr. Crandall's table at his office in Georgetown. Don't recollect how many. There were also a number of them at his lodgings, in a trunk. He denied to me that he had distributed any, but did not conceal or deny that he was in possession of them. He mentioned that he was formerly a subscriber to the Emancipator, but they had stopped it, and he had taken them in its place. They were sent to him from New York, and came in a box by water, and not by mail. Witness collected and brought them to the jail, tied up in a handkerchief. Being fearful of some trouble when he got into the hack, he proposed to Mr. Jeffers to take Crandall to the jail through the back streets, and keep him there during the night, for fear he might be wrested from us and lynched. It was Dr. Crandall's desire to be taken out of the way of the people, and be carried to the jail. Before they left the office a crowd had collected, and they made an effort to get off as quick as possible, being very apprehensive that Dr. Crandall would suffer some harsh treatment, and serious injury from them. The event verified his expectations, for he found afterwards that the carriage was waited for somewhere on the avenue, where it was expected to pass, by a numerous and excited collection of people.
Cross examined.—Conversed with Dr. Crandall at his office and on the way to the jail. Went to his lodgings, and found Emancipators there. Did not offer to carry him before a magistrate in Georgetown. Told Dr. Crandall what my apprehensions were for his personal safety, and of being waylaid, and proposed that he should stay at the jail that night. He attempted no concealment, and gave witness free leave to search his papers, &c. Witness found Boston, New York, and Baltimore newspapers, and a great many Telegraphs. Dr. Crandall opened the trunk himself and showed the tracts. Don't remember whether they were loose, or tied together and enveloped. Those were the pamphlets now in court. Don't recollect whether the letters were brought away. There were many plants in the office. Don't know what they were put up in. Think it was pasteboard, or something like it. Asked him if he was Dr. Crandall, to which he replied yes. Then told him that he was charged with being an abolition agent and exhibited the warrant for his arrest. He did not then say any thing about the tracts in his possession, but when they were found he stated they were sent to him from New York, instead of the Emancipator, to which he had formerly been a subscriber. He did remark that he had not distributed any tracts of the kind.
Question by Key. Which of the pamphlets did you find at the office, and which at the house?
Coxe objected to the question.
Key. I wish to know which kind were sent to Crandall in the box from New York.
Cranch, C. J., saw no objection to the question.
Witness then stated that he found the Anti-Slavery Reporters in the office. Did not recollect any others in the office, except the newspapers. The other tracts, together with some books, were found in his trunk at the house. Crandall did not say all the papers came in the box. Did not endeavor to elicit any confessions from Dr. Crandall, and, in fact, reminded him that he and Mr. Jeffers might be called on as witnesses. Witness recollected that, during the examination, there was a paper produced by Dr. Crandall, who was too much agitated to read it. One of the magistrates attempted to read it, but don't know whether it was read or not. Dr. Crandall was much agitated. There was a great excitement outside the jail, and much alarm in it. Dr. Crandall was arrested on the 10th, and examined on the 11th of August.
Witness remembers that there was a conversation in the hack, as they were coming from Georgetown to the jail, in which the following question was asked Dr. Crandall:—"Don't you think it would be rather dangerous, at the present time, to set all the negroes free?" Don't recollect the precise words of the reply, but he inferred from it——
The Court interposed. We don't want your inferences, Mr. Robertson; give us the facts, if you please.
Well, if it please the Court, continued Mr. Robertson, my impression was, at the time, that Dr. Crandall's reply amounted to this—that he was for abolition, without regard to consequences. Mr. Jeffers asked the Doctor if he did not think that abolition would produce amalgamation and also endanger the security of the whites. The doctor did not object to these consequences. He thought the negroes ought to be as free as we were.
M. Jeffers, constable, deposed that he saw some pamphlets endorsed "please read and circulate" in Dr. Crandall's office. Witness, when he entered the office, said, "we want all your incendiary tracts, Doctor." Witness looked into a large box and saw the pamphlets.
The box was without cover, and the pamphlets lay in a corner. At his lodgings, more pamphlets were found. Don't know how many there were in the box. Those in the trunk, at the house, were nearly all new. Dr. Crandall explained that they had stopped the Emancipator and sent the pamphlets in lieu of it. Think he said they were sent around in a vessel, in a box. Witness asked him what he was doing with so many of them. The reply was that he had procured them for information. Don't recollect that any of the botanical specimens were in newspapers. He said they had stopped sending papers weekly and sent them monthly. Witness asked what he was doing with so many of the same numbers at the same time, to which he replied that they all came in the box, and that he wanted them merely for information. Witness looked into, and not liking their language, remarked that he did not see how any one could derive much improvement from such stuff.
Witness recollected that there was a paper which Dr. Crandall tried to read, but was prevented from reading, by extreme agitation. Dr. Crandall rolled it up and put it in his pocket. He was much agitated, and witness thought, at the time, that he was indiscreet in so freely expressing his sentiments. No pamphlets with the endorsement "read and circulate" were found in the trunk. When Crandall was asked why he wanted so many of the same number of the Anti-Slavery Reporter for information, he made no reply. In the course of the conversation in the hack, Crandall said he did not intend to deny his principles. Witness asked him if colonization would not be better than abolition. He replied: No; he was in favor of immediate emancipation.
Question by Bradley. Did he not say, "I am for immediate preparation for emancipation." Witness did not recollect precisely. That might have been the answer. Would not say it was not. When he said he was in favor of immediate emancipation, witness remarked that it would be attended with dreadful consequences. We should all have our throats cut, and the next thing would be amalgamation.
Thruston, J. Would the amalgamation occur after our throats are cut, Mr. Jeffers?
Witness. Dr. Crandall in reply to this remark, said, "well let the law take care of all that."
B. K. Morsell, Esq., one of the justices who committed the traverser, stated that, at the examination of the traverser in the jail, the witness just examined, Henry King, deposed that the pamphlet which he took from Crandall's office had written upon it the words "please to read and circulate." This deposition was made in the presence of Crandall, and Crandall did not pretend to deny it, and admitted that the words were in his own handwriting. He said that when he was about to take passage in the steamboat, at New York, there was a bundle of pamphlets brought to him. Don't recollect whether he said they were brought to him before or after he went on board of the boat. Don't remember whether Crandall said they were sent or brought to him. He stated that he was then on his way to this city. A bundle of pamphlets were brought into the jail, at the time of the examination. Crandall said that all he brought on were there, except twelve or thirteen. Crandall did not state at what time the words "please read and circulate" were written upon the pamphlets. There was no distinction drawn between those which were endorsed and those which were not. They were all thrown together. Don't recollect that Crandall made any distinction in regard to them. He was understood to speak of all the pamphlets together. The only contradiction in Crandall's statement was that he, at first, said that pamphlets were brought to him as he was leaving New York in the boat, and afterwards said they had been in his possession for some time. Witness looked at some of them and saw that some were of older date than others. Could not distinctly recollect which were of old and which of new date. There was a considerable interval between the dates, but don't remember how long. While the examination was going on, there was a great commotion outside of the jail, and a loud knocking at the door; the prisoner seemed agitated, which was not wonderful, considering the circumstances. Don't recollect that he said any thing about the time when the words "please read and circulate" were written on the pamphlets.
Mr. Key here admitted that he recollected hearing the prisoner say, at the examination in the jail, that the endorsements were written two years before.
Mr. Morsell continued. Don't remember that Crandall presented a written paper. Think it likely he did. There were three magistrates sitting, and it might have been given to one of the other two. He believed it appeared, on the examination, that Crandall had been in this District some months.
Clement T. Coote, Esq., one of the magistrates who examined the traverser in the jail, deposed that Henry King, upon his examination, stated that the words "please read and circulate" were written upon the pamphlet when he got it from Crandall. A bundle of the tracts were brought in. Crandall said he had received them just as he was leaving New York, on his way to this District. He was going down to the boat when they were brought to him. Crandall stated, as witness distinctly recollects, that the endorsements were made some time before. Witness did not recollect that he stated the precise time, but that he said the endorsements were made some time before. Did not recollect that he said he came on directly to Washington. After the pamphlets were shown to King and Crandall, witness's impression was that Crandall had been detained some where on the way, and in the interval had written the words. There was no contradiction that he noticed in Crandall's statements. Crandall admitted that the words were in his handwriting, but said they were written some time before. Crandall said they were all there except about a dozen. He did not say whether he had distributed any; but witness did not understand him to state that the number had been diminished since he came here, but that the bundle exhibited embraced all the tracts which he brought with him from New York. Witness's impression that they were all the pamphlets which witness brought to the District, except the one which he lent to King; but Crandall did not in his statement except that one. He understood Crandall that all that he received at New York were there, except about a dozen. He recollected that Crandall said he had been a subscriber to some of the abolition publications. Witness or one of the magistrates asked Crandall "whether he was aware of the nature of the pamphlets when he left New York?" To which Crandall replied that he supposed them to be of the character with those for which he had been in the habit of subscribing. Crandall was also asked "why he was put in possession by the publishers of so many copies of the pamphlets, and whether it was not because they supposed he would circulate them and be an efficient agent?" In reply to which Crandall said "it might be so." He did not intimate that he had any knowledge of his appointment as an agent.
The Court here asked witness whether the traverser intimated that the tracts were given to him with his assent and approbation.
Witness. He admitted that the tracts contained his sentiments; but he was not understood to say that he approved of his appointment as an agent, or considered himself as acting in that capacity. When Crandall said the endorsements were written some time ago, witness called his attention to the date of one which was not two years ago. Witness received a written statement from Crandall at the examination. Does not know what became of it. Thinks it was returned to Crandall. Crandall did not say he knew the contents of the tracts when he received them, but said he supposed they were of similar character to those which he had subscribed for. Witness read a paper which contained Crandall's statement on the subject, and recollects that it was written in the jail. Has no recollection that it stated that Crandall was a member of an Abolition or Emancipation Society. When witness called Crandall's attention to the endorsements on the tracts, Crandall said they had been on some time. Believes he said something about two years, and recollects that he then remarked to Crandall that one of them had not been published two years.
B. K. Morsell, Esq., (called again) stated that Crandall, when asked whether he was acquainted with the nature of the pamphlets sent to him in New York, said he supposed that they contained his sentiments, and were of the same character with those which he had taken some time before. He used these very words, "I don't pretend to deny that I am an anti-slavery man, and profess these sentiments." The pamphlets were then before us, and the examination referred to them. He added, that when he came on here, he found he was too far South to circulate the tracts, and that all he had received were those before us, except about a dozen. He did not deny that he came direct to this city from New York. He said nothing which impressed witness with the belief that he stopped on the road, if he said he stopped on the way, witness did not hear it. There was considerable confusion in the jail during the examination. Crandall might have said many things which witness did not hear. There were a great many people in the jail. He recollected that Crandall said the words "please read and circulate" were written two years before, and that Mr. Coote pointed to a pamphlet, so endorsed, which had been printed within two years; but he understood that Crandall's statement was applied to all the pamphlets together. He understood that some of the pamphlets were found at Crandall's office, and some at his lodgings, and that they were found scattered about the office.
Does not recollect that there was any testimony about unpacking a box. There was nothing in the testimony which made any impression that there was any distinction between the pamphlets. They were all brought together. Recollects that Crandall handed him a written paper. Began reading it, but could not get through with it; could not read it, and handed it back to Crandall; supposed that it was written under some agitation.
Jacob Oyster knew the prisoner in Georgetown, and prisoner hired a shop of him. He was sick some time after he hired it, but had a large box put into it. When he hired it he said he was going to lecture on botany at different places. Witness was present when he opened the box, and it contained books, surgical instruments, and pamphlets. He saw two or three such pamphlets as were shown in court, which were thrown out of the box. Mr. King came in and picked up a pamphlet and said he should like to have the reading of one; and the prisoner said he might. When King saw it, he said it would not answer, it was too far South. A day or two after he asked King what he thought of it, and he said he didn't like it, and asked witness if he had seen the endorsement, which he showed, "read and circulate." Witness didn't see any writing on the others. He had some conversation with Crandall when the news first came of the attempt to murder Mrs. Thornton, and told prisoner nobody was to blame but the New Yorkers and their aid de camps; and that the boy said he had made use of their abolition pamphlets. Crandall replied, that he didn't approve of putting them into circulation, for the excitement was too high already.
Cross-examined. He said he helped unpack the box—that he knew of no other pamphlets; but Crandall had newspapers to put up his plants. Witness was in the shop almost every day, and never saw more than two or three people there; and never saw Crandall talking with any colored people or slaves. He was in the habit of going out into the fields, and brought back a great many plants. He thought the prisoner conducted himself very well, and was a very steady man in every respect. The papers in his office were of all sorts, and from different cities.
William Robinson saw the words "read and circulate," but had never seen the defendant write. He had received similar publications but did not know where they came from. One came through the post-office, but was not postmarked where it was sent from; and had no postage on it. He returned it to New York to the publisher. He heard Crandall admit the handwriting to be his in the jail.
Charles Gordon was in the War Department, and the whole building was flooded by them. He returned his to New York to the agent with remarks, and had received none since. This was just before Crandall's arrest.
Coxe remarked he had done the same; and it was no evidence against Crandall.
The Court was of opinion that the printing and publishing these pamphlets in New York, is not evidence of their publication here, so as to fix upon the defendant here such a knowledge of their publication as to make his possession alone, even with the words "read and circulate" written upon them, evidence of the publication of them by him here.
That in order to show the evil intent with which the defendant published the paper charged in this first count, it is not competent for the United States to give in evidence to the jury other unpublished papers or pamphlets found in the defendant's possession, unless accompanied by evidence of some acknowledgment or admission, by the defendant, that he knew and approved their contents.
That the evidence did not appear to the Court to justify the inference that the defendant knew and approved the contents of those pamphlets, unless it can be connected with evidence that they were of the same nature with those which he had been a subscriber for.
Key then proposed, as he had shown that the traverser had by his declaration approved of the publications, and had also implied approval by writing on the words read and circulate, to put them in as evidence of intent, in relation to the one published, and given to the witness King.
The Court ruled that they could not be given in evidence, without proof of publication.
Key then proposed to read the Emancipator, as a paper he had subscribed for, instead of which these had been sent.
This was objected to on the ground that there was no proof that he had subscribed for the Emancipator; and that if he had, it was at a period previous to the time about which he was charged with any offence. The Emancipator was sent gratis, and taken by many persons who did not approve of it.
Jeffers was called, and said Crandall said he had taken the Emancipator, or subscribed for it, he didn't know which.
The Court decided that such Emancipators might be given in evidence as were published before the declarations of the traverser.
Thruston, J., dissented from this opinion on the ground that it was not competent to put in one libel, for which the prisoner was not indicted, to show the sentiments he entertained in regard to one for which he was indicted.
In the midst of considerable discussion as to the parts which were proper to be read on the different sides, the most of the day, Tuesday and Wednesday, was consumed in reading long articles from different numbers of the Emancipators, to show that the Anti Slavery Society intended to use every exertion to procure the immediate abolition of slavery. In the course of this reading, Key proposed to read an advertisement of the different works published by the Anti Slavery Society, which was objected to on the ground that it would admit all the works named to be read, and as Crandall had not been proved to be a member of that Society, he ought not to be made answerable for all their doings, nor for all that the editor of the Emancipator might see fit to publish.
The Court decided that the reading must be confined within some reasonable limits. That the District Attorney might read such editorial articles, or parts of them, as he saw fit, and the counsel for the defence might read any other parts, or the whole, if they chose. The advertisement was of course rejected, but reading of other parts was continued.
The District Attorney afterwards offered evidence, under the third count of the indictment, to put in certain tracts with pictures upon them, which was objected to upon two grounds. First, that the count was insufficient, as it did not specify any libellous publication and did not declare that the offence was against any person, or government, or people, which was said to be an essential form of indictment; and, second, because the whole of the tracts, papers, and pamphlets, were illegally obtained from the prisoner.
The defendant's counsel then read the warrant under which Crandall was apprehended, which authorized the officers to take the person of the prisoner, and to search his papers; and contended that such search warrant was illegal—that a man's private papers were sacred from search.
The objection was resisted on the ground that the objection was made too late. It should have been taken at the outset of the trial, or before the magistrates—that the warrant (which was admitted to have been made by the District Attorney) was proper, and conformable to the law which admitted of search in the premises and in the persons of thieves and counterfeiters for the tools and implements with which they were enabled to commit their crime—and that it was competent to use the evidence which had been obtained, although it was illegally gotten in the first instance.
The Court was of opinion that the evidence was competent, on the principle upon which evidence might be given of stolen goods found in consequence of confession, though the confession might be forced from the prisoner by threats or evil treatment. The confession might not be evidence, but the fact of finding the stolen goods could be proved to the jury.
The Court also overruled the objection to the form of the count, and did not consider it so imperfect as to authorize them to reject evidence offered under it.
Key then went on to prove that certain libels found in the possession of the prisoner were circulated in the District.
Gen. Hunter identified one of the tracts as a copy of one sent to him through the post office, marked one cent postage, both the tract and envelope of which having been burnt. He thought it strange the postage from New York should be only one cent. It was about the time the city was inundated with abolition papers.
Coxe objected to the testimony, if the paper was destroyed.
Key was called as a witness by Bradley, and testified that the paper handed the witness was one of them handed in at the jail as found upon Crandall, and had not been out of his possession, since.
Bradley remarked that the paper was a July number, and had not been published when Crandall came from New York. If, by the testimony showed, they were all delivered in New York, this paper could not have been found upon him.
James A. Kennedy was shown a paper, and said his initials were on it. A considerable number of the same came on in a bag—about a bushel and a half—from New York, some of which were delivered and some were returned to the post office. The rest were not delivered at all. He did not recollect any of the same kind sent before, though many had been sent since, every month, as late as March last. They came in an envelope addressed to single individuals. The postage for a sheet was two and a half cents. These were marked half a sheet, and some were charged one cent and a quarter; afterwards, they were found to be more than half a sheet, and were charged two and a half cents, as for a whole one. There was no postmark put upon them, as that is confined wholly to letters.
Benj. E. Giddings saw some of these papers at the time spoken of by Mr. Kennedy; and never saw any before July last. They all came in a bag, and he did not think any were dropped into the post office here. The office here, as well as at Georgetown, had been watched to see if any were put in by persons here.
The two last witnesses were clerks in the post office.
Mr. Ball said the papers were given to him at the jail, after Crandall's examination, and he kept them locked up till they were sent for and delivered to Mr. Key at his office.
It appeared that they were kept at the office some time, and were sealed and labelled by Charles McNamee, though one or two persons were in the office while he was doing it; and Mr. Key certified, that on the first day of the trial, before they were sorted, many persons in court took different numbers of them to look at, but he believed they were all returned, and he took pains to request them who took them to hand them back to him. To the best of his belief, the pamphlets now in court were the same which were delivered at the jail, without addition or diminution.
P. R. Fendall was connected with the office of the Colonization Society. The Anti-Slavery Reporter was sent from New York in exchange for the African Repository published by the Colonization Society; some controversy had existed between the two Societies, and it was necessary to read their attacks in order to be able to answer them. The papers received were open for the use of members, and were sometimes loaned to others to take away and read.
Key then offered four numbers of the second volume of the Anti-Slavery Reporter to the jury.
Bradley claimed one as his, which never was in the possession of the prisoner.
Key requested him to be sworn, and
Bradley testified, that he could identify the paper by several marks which he pointed out. He received it in November last, in consequence of a letter which he had written with a view to procure two or three, which were sent on through the post office. He wrote for them in consequence of conversation with Crandall; (but he was not allowed to state the substance of what Crandall said.) How this paper came into Mr. Key's possession he did not know, but this disappeared from his desk in court, and two others had been taken from his office.
Considerable argument ensued upon the point, whether it was competent to give in evidence a printed copy of a known published libel, or whether in order to be evidence against the person on whom it is found, it must not be a written copy. On one side it was argued that every one might innocently have a printed copy, but the having a written copy would show some extraordinary interest in the libel; and the books all spoke of a written copy only as evidence of publication. For the prosecution it was urged that having a printed copy was stronger evidence than a written one, especially when the party had a number of copies of the same libel, endorsed in his own handwriting with words that showed an interest, and an intent to circulate it.
The Court was of opinion that it was competent to give in evidence such printed copies of the known published libel as were found upon the prisoner with the endorsement "read and circulate."
Two witnesses were called, Colclazier and Tippet, to testify to conversations held with Crandall in the jail, in which he spoke in favor of immediate emancipation and against slavery.
The case for the prosecution was here closed.
Mr. Bradley then stated the opening of the defence. After some general remarks upon the course taken by the prosecution, and difficulty of getting witnesses here to testify in behalf of the prisoner, from so great a distance, as well as the impossibility of putting in depositions in a criminal case, without the District Attorney's consent, which he would not give, he went on to call the attention of the jury to the details he meant to prove. He intended to show Crandall's whole course of life, from his boyhood up; that he was regularly educated as a surgeon and physician, and settled in Peekskill; and that no man ever obtained a higher character for probity and skill; that he never was a member of an abolition society, and there was none in the place where he lived; that he had no idea of stopping here when he came on, but came as the attendant of an invalid family with whom he had resided; that the pamphlets were packed up, not by him, but by the lady of the house, as waste paper, without his even dreaming of their contents; and that the endorsements were put on some two years ago. He would show also that he had subscribed for temperance papers; but that the abolition papers were sent to him without his knowledge of their contents; that after he arrived here, and found this the best field in the world for the study of botany, he concluded to stop and give a course of lectures, instead of going to the West, as had been his intention previously, according to arrangements he had made. The bundle that was given him in New York was sent without his knowledge of their contents. It remained tied up till a day or two before his arrest, when it was untied by Mrs. Austin; and, as had been proved by the officers who arrested him, up to that moment they had never been opened or even separated. He said he would show the law, and bring it to bear upon the points of the case; and he declared if he believed Crandall guilty of distributing or intending to distribute incendiary papers, he would abandon his cause, and no longer consider himself his counsel.
The following extracts of speeches made in the Capitol at Washington, at the eleventh annual meeting of the Colonization Society, in which slaveholders themselves made remarks which, it was urged by the defendant's counsel, were quite as strong, and as much calculated to excite sedition, as the words of the libel charged against the prisoner. Mr. Key read the parts of his own speech not enclosed in brackets, to show the difference of meaning in the whole papers, and the difference of intent. The paragraph in brackets was read by Mr. Bradley.
The following is from Mr. Harrison's speech:
"But a dearer land to our hearts is too to be regenerated. A wretched class, cursed with ineffectual freedom, is to be made free indeed, and an outlet is to be opened to those who will voluntarily disencumber themselves of the evil and the threatening ruin of another domestic pestilence. Public opinion must be the only agent in this: the most reluctant shall not be forced; the most timid shall not be alarmed by any thing we are to do. Hitherto and henceforward our plan has been and shall be without constraint on any one, and never shall we offer any argument or invitation to humanity divorced from patriotism. To this truly quiet, unofficious spirit, do I trust for bringing about the time when we shall be one homogeneous nation of freemen; when those great principles now true of us only in part, shall be true in the whole; and when the clear light now in our upper sky only, shall brighten the whole expanse of the American character."
The speech of Mr. Key, the District Attorney, is as follows:
"On behalf of the Board of Managers, who had this night seen and heard all that was calculated to animate them to a faithful discharge of their duties, he begged leave to present a resolution of thanks for the zealous co-operation of the Auxiliary Societies throughout the United States. In the increasing exertions of these valuable branches of the parent Institution, the Society believed itself to possess the most satisfactory pledge that its design had received the approbation, and would ere long enjoy the support of the great body of citizens throughout our country. Such an anticipation was not to be thought delusive, because the opposition made to the Society at its commencement still continued. On the contrary, this very opposition, properly considered, affords the fullest proof of the wisdom of our object, and the fairest presage of its success.
"At its origin the Society found itself in a very extraordinary situation. It had scarcely been formed when it was assailed by opponents of the most contrary character, from the North and South. Men who held, upon these subjects, the most opposite views, who agreed in no one thing that related to our colored population, united in denouncing us. This state of things, in some measure, still continues. But the Board of Managers have long ceased to look upon it with alarm. They soon perceived that a wisdom far higher than their own, was, in a way most contrary to their expectations, gradually preparing the public mind for a fair consideration and favorable reception of their measures. They were compelled to see and to acknowledge that it was best it should be so. Had the design of the Society been approved and supported in the outset by either of these opposing parties, it must have encountered the settled and irreconcileable opposition of the other; but as it is, the Society, instead of being espoused by the North in opposition to the South, or by the South in opposition to the North, has been silently filling its ranks with converts from both. Its cause has been gradually bringing over the moderate, the reasonable, the humane, the patriotic, from all parties and from every portion of the Union to give their aid and countenance to the support of a scheme which they once opposed only because they misunderstood it. I have adverted to this extraordinary opposition that the friends of the Society may not be dismayed by it; and I take this occasion to address a few words to each of these classes of opponents.
["I would premise what I have to say to them by stating two very plain propositions. The first is, that the subject of slavery, in some way or other, will come into the thoughts, feelings, and plans of men situated as we are. It is vain to say—let it alone. There may have been a time when the excitement now felt on this subject might have been stifled. When it was determined by our fathers to secure to themselves and their posterity the rights of freemen and the blessings of independence, then should they have been warned of the exciting consequences that would result from the acquisition and enjoyment of such rights. Then should it have been shewn how they would lead to conceptions and discussions dangerous to the rights of property and the public peace. Then should they have been called to choose between these conflicting interests, and to count the cost of what they might lose by declaring to the world that all men were free and equal, and appealing to heaven for its truth. But there was, then, no man cold enough for such a calculation; no man who could darken the brightness of that day by raising such a question. It is too late now. In this age, in this country, the agitation of this subject is unavoidable. Legislation never can restrain it. Public sentiment never will. You may as well forge fetters for the winds, as for the impulses of free and exulting hearts; if speech and action could be repressed, there would be excitement in the very looks of freemen.]
"The other proposition is this, that among the plans and descriptions that relate to this delicate subject, it must happen that some will be rash and dangerous.
"It is not to be expected, that men, not well informed of facts as they exist, and misled by the ardor of an inconsiderate zeal, will not devise projects and hold them out to others, which may be attended with the most disastrous consequences. This is the nature of things. It must ever be so upon every subject, which like this contains within itself the elements of great excitement; more especially when that excitement is connected with some of the best principles and feelings of the heart.
"Now, sir, put these two propositions together; that silence and inaction are unattainable, and dangerous and improper projects almost unavoidable, and what are we to do? Something we must do. However desirous we might be to do nothing, it is impossible, because others will not consent to do nothing; and if we relinquish the task of action, it will infallibly fall into hands most unfit to receive it. Nothing remains, then, but to devise something safe and practicable and place it in prudent hands.
"And now, sir, I would respectfully ask our opponents, of both descriptions, to consider whether this has not been done by the establishment of this Society. I would ask the abolitionist to suspend his own labors, and consider the object and the consequences of ours. I would ask him if it is not better to unite with us in what is safe and practicable, and may be managed with the consent of those, whose consent is not to be dispensed with, than to attempt to force his own views upon men, by means which they denounce as dangerous.
"Sir, this is the appeal which has been made by the Society, and which it yet makes to one class of its opponents. Nor is it altogether unsuccessful. Many active and benevolent men are now with us, who, but for this Society, would have been working on their own more questionable projects, and vainly attempting what, perhaps, can scarcely be pursued, with safety to the peace and happiness of the country.
"And may we not appeal also to our brethren of the South—and ask their fair consideration of the two propositions I have suggested? If feeling, discussion, and action, in reference to a subject upon which they are so sensitive, cannot be extinguished, is it not wise to endeavor to moderate and restrain them? May they not, if they cannot give their approbation to our Society, as good in itself, at least bring themselves to tolerate it as the preventive of greater evils? May it not be wise for those who must know that there are schemes more alarming to their interests than colonization, to suffer us to enlarge our sphere of action, and bring those who would otherwise be engaged in dangerous and injudicious projects, to unite in our safer labors? May we not claim at least this merit for our labors:—that they are safe? May we not appeal to the experience of eleven years, to show that the work in which we are engaged can be conducted without excitement or alarm? And who are we, we may be permitted to ask, to whose hands this charge has been committed? We have the same interests in this subject with our Southern brethren—the same opportunity of understanding it, and of knowing with what care and prudence it should be approached. What greater pledge can we give for the moderation and safety of our measures than our own interests as slaveholders, and the ties that bind us to the slaveholding communities to which we belong?
"I hope I may be excused if I add that the subject which engages us, is one in which it is our right to act—as much our right to act, as it is the right of those who differ with us not to act. If we believe in the existence of a great moral and political evil amongst us, and that duty, honor and interest call upon us to prepare the way for its removal, we must act. All that can be asked of us is, that we act discreetly—with a just regard to the rights and feelings of others;—that we make due allowances for those who differ with us; receive their opposition with patience, and overcome it by the fruits that a favoring Providence, to which we look, may enable us to present from our labors."
The next passages were from a speech of Mr. Custis, as follows:
"Sir, the prosperity and aggrandizement of a State is to be seen in its increase of inhabitants, and consequent progress in industry and wealth. Of the vast tide of emigration, which now rushes like a cataract to the West, not even a trickling rill wends its feeble course to the Ancient Dominion.—Of the multitude of foreigners who daily seek an asylum and a home, in the empire of Liberty, how many turn their steps toward the regions of the slave? None. No not one. There is a malaria in the atmosphere of those regions, which the new comer shuns, as being deleterious to his views and habits. See the wide-spreading ruin which the avarice of our ancestral government has produced in the South, as witnessed in a sparse population of freemen, deserted habitations, fields without culture, and, strange to tell, even the wolf, which, driven back long since by the approach of man, now returns, after the lapse of an hundred years, to howl o'er the desolations of slavery.
"Where, I ask, is the good ship Virginia, in the array of the national fleet? Drifting down the line, sir,—third, soon to be fourth. Where next?—following in the wake of those she formerly led in the van: her flag still flying at the main, the flag of her ancient glory; but her timbers are decaying, her rigging wants setting up anew, and her helmsman is old and weatherbeaten. But let her undergo an overhaul, let the parts decayed by slavery be removed, and good sound materials put in their stead, then manned by a gallant crew, my life on it, the old thing will once more brace upon a wind, aye, and show her stern to those who have almost run her hull under.
"Let me say, sir, in this legislative hall, where words of eloquence have so often "charmed the listening ear," that the glorious time is coming when the wretched children of Africa shall establish on her shores a nation of Christians and freemen. It has been said that this Society was an invasion of the rights of the slaveholders. Sir, if it is an invasion, it comes not from without. It is an irruption of liberality, and threatens only that freemen will overrun our Southern country—that the soil will be fertilized by the sweat of freemen alone, and that what are now deserts will flourish and blossom under the influence of enterprise and industry. Such will be the happy results of this Society.