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with Publishing and Circulating Seditious and Incendiary Papers, &c. in the District of Columbia, with the Intent of Exciting Servile Insurrection., by Unknown
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Title: The Trial of Reuben Crandall, M.D. Charged with Publishing and Circulating Seditious and Incendiary Papers, &c. in the District of Columbia, with the Intent of Exciting Servile Insurrection.
Carefully Reported, and Compiled from the Written Statements
of the Court and the Counsel.
Author: Unknown
Release Date: February 26, 2009 [EBook #28197]
Language: English
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Transcriber's Note
This ebook retains the spelling and punctuation variations of the
original text published in 1836. A few corrections have been made
where inadvertent typographical errors were suspected. Details of
these corrections can be found in a Transcriber's Note at the end
of this text.
THE TRIAL
OF
REUBEN CRANDALL, M. D.
CHARGED WITH
PUBLISHING AND CIRCULATING
SEDITIOUS AND INCENDIARY PAPERS, &c.
IN THE
DISTRICT OF COLUMBIA,
WITH THE INTENT OF
EXCITING SERVILE INSURRECTION.
CAREFULLY REPORTED,
AND COMPILED FROM THE WRITTEN STATEMENTS OF THE COURT
AND THE COUNSEL.
BY A MEMBER OF THE BAR.
WASHINGTON CITY.
PRINTED FOR THE PROPRIETORS.
1836.
Entered according to the act of Congress, in the year 1836, in the
Clerk's office of the District of Columbia.
NOTICE.
THE TRIAL OF CRANDALL presents the first case of a man charged with
endeavoring to excite insurrection among slaves and the free colored
population that was ever brought before a judicial tribunal. It lasted
ten days before the whole Court, and was as closely contested as any
trial on record, by the counsel on both sides. Every point of law was
fully and strenuously argued, and carefully considered by the Court;
and where no statutes have been enacted, this case may be considered
as settling the legal questions touching the rights of the slaveholding
population, on the one hand, to protect themselves from foreign
influence; and the circumstances, on the other hand, which may bring
people from the nonslaveholding States into danger of the law, by having
in their possession, showing, or circulating, papers and tracts which
advocate the abolition of slavery in such a way as to excite slaves and
free people of color to revolt and violate the existing laws and customs
of the slaveholding States. No trial has ever occurred more important to
travellers from the North, or to the domestic peace of the inhabitants
of the Southern States.
THE TRIAL
OF
REUBEN CRANDALL, M. D.
ON A CHARGE OF
CIRCULATING INCENDIARY PAPERS.
UNITED STATES' CIRCUIT COURT,
_District of Columbia, Friday, April 15th, 1836._
PRESENT:
CRANCH, chief justice, THRUSTON and MORSELL, justices.
F. S. KEY, district attorney, and J. M. CARLISLE, for the prosecution.
R. S. COXE and J. H. BRADLEY, for the defence.
John H. King, Nicholas Callan, James Kennedy, Walter Clarke, George
Crandall, William Waters, Thomas Hyde, Thomas Fenwick, Samuel Lowe,
George Simmes, Wesley Stevenson, and Jacob Gideon, jr., were empannelled
and sworn as jurors to try the issue.
This was an indictment charging, in five counts and in various forms,
the offence under the common law of libels, of publishing malicious and
wicked libels, with the intent to excite sedition and insurrection among
the slaves and free colored people of this District. The three first
counts only having been relied upon, and no evidence having been offered
under the others, an abstract, omitting the mere formal part, will be
sufficient to show the nature of the libels charged.
1st. The first count charged the defendant with publishing a libel,
containing in one part thereof these words: "Then we are not to meddle
with the subject of slavery in any manner; neither by appeals to the
patriotism, by exhortation to humanity, by application of truth to
the conscience. No; even to propose, in Congress, that the seat of
our republican Government may be purified from this crying abomination,
under penalty of a dissolution of the Union."
And in another part thereof, in an article entitled "Reply to Mr. Gurley's
letter, addressed to the Rev. R. R. Gurley, Secretary of the American
Colonization Society, Washington city," signed by Arthur Tappan and
others, the following words: "We will not insult your understanding, sir,
with any labored attempt to prove to you that the descendants of African
parents, born in this country, have as good a claim to a residence in it,
as the descendants of English, German, Danish, Scotch, or Irish parents.
You will not attempt to prove that every native colored person you meet
in the streets, has not the same right to remain in this his native land,
that you and we have. Assuming this as an incontrovertable truth, we
hold it self-evident that they have as good right to deport us to Europe,
under the pretext that there we shall be prosperous and happy, as we have
to deport them to Africa on a similar plea."
And in another part thereof, in the said reply, the following words:
"In what language could the unrighteous principles of denying freedom
to colored people in this country, (which amounts to the same thing as
demanding the expulsion of those already free,) be more effectually and
yet more plausibly inculcated than in those very words of Gen. Harper
you have, with so much approbation, quoted to us."
And in another part thereof, in the said reply, the following words:
"Against this doctrine of suspending emancipation upon the contingency
or condition of expatriation we feel bound to protest; because we
believe that every man has a right to reside in his native country if he
chooses, and that every man's native country is the country in which he
was born--that no man's right to freedom is suspended upon, or taken
away by his desire to remain in his native country--that to make a
removal from one's own native country a _sine qua non_ of setting him
free when held in involuntary bondage, is the climax of moral absurdity."
And in another part thereof, in a certain other article, entitled "Three
months' residence, or seven weeks on a sugar plantation, by Henry
Whitby," containing the most shocking and disgusting details of cruel,
inhuman, and immoral treatment of slaves by the owners and overseers,
and attorneys or agents of proprietors, according to the tenor and
effect following--that is to say: "On this and other occasions, I thought
it my duty to acquaint the attorney with my observations and feelings
in regard to the cruel floggings and severe treatment generally which
I have witnessed at New Ground. He admitted the facts, but said that
plantation work could not be carried on without the cart-whip. He
moreover labored hard to convince me that the flogging did not injure
the health of the negroes. I also told him of the exceeding immorality
and licentiousness which I had witnessed; mentioning, in substance, the
facts previously detailed. He replied that "that was a thing which they
must wink at." If a man in manners so much the gentleman, and in other
respects so estimable, was necessarily led to countenance or wink at
the enormities I have feebly attempted to describe, what, I ask, is to
be expected from its subordinate administrators who are continually
exposed to the demoralizing influences of slavery? what, indeed, but
the frightful wickedness and cruelty which are its actual fruits?"--in
contempt of the laws, to the disturbance of the public peace, to the
evil example of all others, and against the peace and government of
the United States.
2d. The second count charges the publication of another libel,
containing among other things, in one part thereof, the following
words, viz: "Our plan of emancipation is simply this--to promulgate
the doctrine of human rights in high places and low places, and all
places where there are human beings--to whisper it in chimney corners,
and to proclaim it from the house tops, yea, from the mountain tops--to
pour it out like water from the pulpit and the press--to raise it up
with all the force of the inner man from infancy to grey hairs--to
give line upon line, precept upon precept, till it forms one of the
foundation principles and parts indestructible of the public soul."
And in another part thereof, the following, viz: "I (meaning the said
Crandall) am not unaware that my remarks may be regarded by many as
dangerous and exceptionable; that I may be regarded as a fanatic for
quoting the language of eternal truth; and denounced as an incendiary
for maintaining in the spirit, as well as the letter, the doctrines
of American Independence. But if such are the consequences of a simple
performance of duty, I shall not regard them. If my feeble appeal but
reaches the hearts of any who are now slumbering in iniquity; if it
shall have power given it to shake down one stone from that foul temple
where the blood of human victims is offered to the moloch of slavery;
if, under Providence, it can break one fetter from off the image of
God, and enable one suffering African
------------To feel
The weight of human misery less, and glide
Ungroaning to the tomb--
I shall not have written in vain; my conscience will be satisfied. Far
be it from me to cast new bitters in the gall and wormwood waters of
sectional prejudice. No, I desire peace--the peace of universal love--of
catholic sympathy--the peace of common interest--a common feeling--a
common humanity. But so long as slavery is tolerated, no such peace can
exist. Liberty and slavery cannot dwell in harmony together. There will
be a perpetual war in the members of the political _Mezentius_--between
the living and the dead. God and man have placed between them an
everlasting barrier--an eternal separation. No matter under what law
or compact their union is attempted, the ordination of Providence has
forbidden it--and it cannot stand. Peace! there can be no peace between
justice and oppression--between robbery and righteousness--truth and
falsehood--freedom and slavery. The slaveholding States are not free.
The name of Liberty is there, but the spirit is wanting. They do not
partake of its invaluable blessings.
"Wherever slavery exists to any considerable extent, with the exception
of some recently settled portions of the country, and which have not
yet felt, in a great degree, the baneful and deteriorating influence of
slave labor--we hear, at this moment, the cry of suffering. We are told
of grass-grown streets--of crumbling mansions--of beggared planters, and
barren plantations--of fear from without--of terror within. The once
fertile fields are wasted and tenantless: for the curse of slavery--the
improvidence of that laborer whose hire has been kept back by fraud--has
been there, poisoning the very earth, beyond the reviving influence of
the early and the latter rain. A moral mildew mingles with, and blasts
the economy of nature. It is as if the finger of the everlasting God had
written upon the soil of the slaveholder the language of his displeasure.
"Let then the slaveholding States consult their present interest by
beginning, without delay, the work of emancipation. If they fear not,
and mock at the fiery indignation of Him to whom vengeance belongeth,
let temporal interest persuade them. They know, they must know, that
the present state of things cannot long continue. Mind is the same
every where, no matter what may be the complexion of the frame which
it animates; there is a love of liberty which the scourge cannot
eradicate. A hatred of oppression which centuries of degradation cannot
extinguish. The slave will become conscious, sooner or later, of his
strength--his physical superiority--and will exert it. His torch will be
at the threshold, and his knife at the throat of the planter. Horrible
and indiscriminate will be the vengeance. Where then will be the pride,
the beauty, and the chivalry of the South. The smoke of her torment will
rise upward, like a thick cloud, visible over the whole earth."
3d. The third count charged the defendant with publishing twelve other
libels, in which are represented and exhibited "several disgusting
prints and pictures of white men in the act of inflicting, with whips,
cruel and inhuman beatings and stripes upon young and helpless and
unresisting black children; and inflicting with other instruments,
cruel and inhuman violence upon slaves, and in a manner not fit and
proper to be seen and represented; calculated and intended to excite
the good people of the United States in said county to violence against
the holder of slaves in said county as aforesaid, and calculated and
intended to excite the said slaves in said county, to violence and
rebellion against their said masters in said county; in contempt of the
laws, to the disturbance of the public peace, to the evil example of all
others, and against the peace and government of the United States."
All these counts contained averments that at the time of the publication
of these libels, the citizens of the United States residing in the
county of Washington, in the District of Columbia, were lawfully
authorized to hold slaves as property, and many of them did so hold
them--and that many free persons of color also reside in the District;
and that the defendant, unlawfully, maliciously, and seditiously,
contriving and intending to traduce, vilify, and bring into hatred
and contempt, among the citizens of the United States, the laws and
government of the United States in the county of Washington as duly
established and in force, and to inflame and excite the people of the
United States to resist and oppose and disregard the laws and Government
aforesaid, and the rights of the proprietors of slaves in the said
county, and to inflame and excite to violence, against the said
proprietors of the said slaves, not only the ignorant and ill disposed
among the free people of the United States and the free persons of color
in the said county, but also the slaves; and to produce among the said
slaves and free persons of color, insubordination, violence, and
rebellion, and to stir up war and insurrection between the said slaves
and their said masters, published the said libels, containing among
other things divers false, malicious and seditious matters, of and
concerning the laws and Government of the United States in the said
District, and of and concerning the citizens of the United States
holding slaves in the said District, and of and concerning the said
slaves and free persons of color, and their labor, services, and
treatment, and the state of slavery in the said District.
The defendant pleaded not guilty.
_The District Attorney_ opened the case for the Government. He said
this was a serious and important charge of publishing inflammatory
and seditious libels, which was always an indictable offence. In this
particular case, situated as the population of the District is, it
was peculiarly dangerous and atrocious. In point of law, it would be
necessary to prove a publication; that the prisoner did in some way
or other exhibit or circulate one or more of the libels; and with that
view he should connect evidence that he was found with many similar
libels of a most dangerous and inflammatory tendency, with the words
"_read and circulate_" upon them, in writing which Crandall admitted to
be his own handwriting; and that he gave different and contradictory
accounts of how he came by them, and how they came here in his
possession. Also, that similar libels were dropped into the post-office,
and sent by nobody could tell whom, to almost every body in the
District. After proving these facts, he said he should carry the libels
before the jury, and let them judge whether the prisoner could have been
here with any good motive, or have such a mass of obnoxious papers with
any good purpose.
_Mr. Coxe_ wished to state, at the outset, what he understood to be the
law. The libels charged were not upon individuals, nor the Government,
but were said to be designed to excite the whole community; and
therefore publication or circulation with the intent charged, would
be necessary to sustain the prosecution. Possession, however bad or
dangerous the libels might be, was no crime; any man might have and keep
the worst libels with entire innocence; and in this case, it would be
no evidence of malicious or dangerous intent that he loaned or gave one
to respectable individuals, who would not be injured and would not do
any injury to others.
_Henry King_ testified that about last June or July, he knew Crandall in
Georgetown, where he came and took an office as a botanist, and followed
that business.
_Key_ handed him a pamphlet, and asked if he had seen any like it;
stating, upon objection being made by Coxe, that his object was to show
that Crandall gave the witness such a paper to read.
_Coxe_ objected to the testimony, as furnishing no ground of inference
that the act of publication by giving the paper to a respectable white
free man, was intended to create excitement, or was the result of a
malicious intent.
_Key_ said he would connect this with other circumstances to show the
intent. It was proper evidence to go to the jury, and they must judge
what the intent really was.
_The Court_ ruled that the evidence was admissible; and,
_Henry King_ went on to testify: He was in Crandall's office in
Georgetown, some time in July last. Received from Dr. Crandall a
pamphlet similar to the one now shown him, called the "Anti-Slavery
Reporter." There was something written on it, but can't say what it
was. He left it at Linthicum's store. Some one took it away from the
store and it was lost.
_Judge Morsell._ Did Crandall make any remark, when you took the
pamphlet?
_Witness._ No. Witness was looking at the botanical preparations in the
office, and seeing this and other tracts on the subject of abolition
lying about, he took up one and remarked, "the latitude is too far south
for these things;" "they won't do here;" but, "by your leave, I will
take this and read it over." Crandall was at the time engaged in taking
out preparations of plants from a large trunk. There were three of these
pamphlets on the table, but don't know whether they were taken from
the trunk or not. Crandall used newspapers, or something like them, as
wrappers for the preserved plants. Witness is not a slaveholder himself.
Witness after looking over the pamphlet threw it on the desk in
Linthicum's store, and afterwards threw it under the counter. When the
excitement arose, looked for it and could not find it. Had thought
nothing about it till then. Did not remember what words were written
on the pamphlet. Crandall did not call his attention to the tracts.
He asked Crandall for the pamphlet, as a loan, and took it away with
Crandall's leave. Crandall never asked for it afterwards. He saw
something written on the pamphlet, and recollects that Crandall at his
examination in the jail, admitted the words, "please read and circulate"
to have been written by himself. He saw in Crandall's shop two or
three of them, not more than three. The plants were enveloped in large
newspapers. Crandall had been in Georgetown about three weeks or a
month, at this time. Witness was frequently in the shop. Crandall was
much engaged in gathering and preserving plants.
_Key_ proposed to read from the pamphlet.
_Coxe_ objected that the publication, with the malicious intent charged,
had not been proved, and that it was necessary before going into any
other evidence to make out the fact of publication. The paper could not
be read to show the intent, when no evidence of publication is offered
to show such a publication as is charged; and he cited various
authorities of no interest to the general reader.
_Key_ argued that possession alone of a known published libel, was
evidence of publication sufficient to call upon the defendant to show
how he came by it. The intent was to be inferred from the character of
the libel: and the evidence he had already given was sufficient _prima
facia_ evidence to put the prisoner to his defence, and allow the libel
to be read to the jury. He meant to show other circumstances which would
show the intent. If the evidence of having given one to a witness, and
having in possession a bundle of other similar libels was not enough,
then a man has only to keep them on hand, and take care not to give them
away; but he may tell every body that he has them, and advertise them
from one end of the country to the other; and may give them to every
body who chooses to call for them, without any danger from the law.
_The Court_ called King again, when he stated that Crandall permitted
him to take away the pamphlet at his request, reluctantly; that it was
a private office, without any sign, or indication of business, or any
thing shown for sale at the windows, nor any thing for sale in the shop.
The pamphlets might have been thrown down in the confusion of unpacking;
and he never saw but three persons in the shop, which was usually kept
locked. Crandall was mostly out collecting plants; and he once saw him
describing some specimens to Mr. Cruickshank and Doctor King; he
understood Crandall had given out that he was about to teach botany.
The counsel for the defence here contended, that this was not sufficient
evidence of malicious publication. The delivery to King was no more than
simple possession in the eye of the law, and was compatible with entire
innocence; and possession alone was no offence.
_Key_ cited a number of authorities to show that _prima facia_ evidence
of publication only, was necessary to let the libel go to the jury.
Here was a publication--the jury must judge of the intent--with the
handwriting of the prisoner endorsed with the words "read and
circulate;" and he made the point that when a libel is printed, and
a copy is found in possession of the prisoner, it is _prima facia_
evidence to allow the libel to be read. To prove that the words were
on the libel given to King, in the prisoner's handwriting, he called
_William Robinson_, who testified, that he saw the pamphlet which King
said he got of Crandall in Linthicum's shop, and that the words "read
and circulate" were written on it.
_The Court_, deeming this to be _prima facia_ evidence of publication,
permitted the pamphlet to be read to the jury, or so much thereof as
either party might think proper to be read, and pertinent to the issue.
_Key_ was about to read the libel.
_Coxe_ objected, that it was not the libel proved to have been given
to King, for that was lost.
_King_ was called again and said the paper he had was lost; how or where
he did not know; but he identified the one handed to him as an exact
copy of the same pamphlet; but said he could not say what writing was
on the one he had. He might have remembered if he had not seen some with
and some without writing.
_C. T. Coote_ was one of the examining magistrates in the jail when
Crandall was arrested. He recollected that King pointed out one with
the writing on, as similar to the one he had, and that Crandall admitted
the writing to be his.
_B. K. Morsell_, another of the magistrates, recollected that King
stated distinctly, that the words "read and circulate" were on the paper
when he got it; and that Crandall said it was his handwriting, but he
did not recollect Crandall's saying it was put on a year before.
The question was here raised and argued by the counsel on both sides,
whether any evidence could be given of any libels, except those of which
the publication was proved, unless they referred distinctly to the
libels charged in the indictment.
_The Court_ was of opinion that the United States could not give in
evidence to the jury, for the purpose of proving the intent of the
defendant in publishing the libel stated in the first count, any papers
subsequently published by the defendant, or found in his possession
unpublished by him, which would be libels, and might be substantive
subjects of public prosecution, if published.
_Thruston, J._, differed with the majority and delivered the following
opinion:
There are five counts in the indictment charging, in various ways,
the publishing by the traverser of sundry libels with intent to create
sedition and excite insurrection among the slaves and free blacks. The
first count in the indictment charges the publication of a certain
libel, not otherwise described or set out in the count, than by
selecting certain paragraphs in the supposed libellous pamphlet, and
setting them out severally in the count. To this count only and to the
libellous matter charged thereon has any evidence of publication been
given. The Attorney for the United States has moved the court to be
permitted to give in evidence to the jury other printed pamphlets of
the same character and on the same subject, and which the traverser
acknowledged to represent his sentiments, as evidence of malice on
the part of the traverser in the publication of the libel in the first
count; the libel in the first count being one of those which, with the
others now asked to be given in evidence, the traverser acknowledged
contained his sentiments.
That is, that it is competent to prove malice in the publication of one
libel by others found in the possession of the traverser on the same
subject, of which no proof of publication has been offered. The motion
to admit the said alleged libellous pamphlets in evidence has been
supported by no precedent or adjudged case, but from analogies drawn
from proceedings in other cases, and from the expediency or necessity
of punishing the enormous crime of which the defendant stands accused;
enormous, we all admit the crime to be, if substantiated, but which
judges cannot punish but under the rules and principles of law. Enormous
as the offence is, it is questionable whether from public considerations
it is not better that the accused should escape punishment, than that
the law should be perverted to obtain his conviction.
There being no authorities cited to sustain the motion of the Attorney
for the United States, we have no other guide to enlighten and direct
us than the established principles and rules of law in criminal
proceedings. I take it to be well settled, that in indictments for
libels, publication is the gist and essence of the crime; that having
in one's possession one or more seditious or libellous writings, whether
written or printed, if their contents be not communicated or made known
to one or more persons, then the possessor is not criminal in a legal
point of view. It is true that Hawkins was cited to prove that having
in one's possession a known published libel is _prima facie_ evidence
of publication against such possessors; admitting this authority, it
seems not to touch the case before us, unless those libels were
published within this District. They purport on the face of them to
have been printed in _New York_, and there published, so far as sending
them abroad, within that state, from the printing office, and putting
them into the hands of others amounts to a publication within this
District; and no evidence has been offered that the traverser ever
distributed a single copy or imparted their contents to any person
within this District saving the one charged in the first count. Hawkins
surely did not mean that having a copy of a libel published in a foreign
country in one's possession, was evidence of publication in another
state or country where the possessor of such copy may be found: for
example, a libel against the British government printed and published
in France would be no publication in England, to charge a person found
in England with one or more copies of such libels in his possession,
with the guilt of publishing such libel against the laws of England.
It is true, in times of great excitement in England, when the rebellious
principles of France were gaining ground and endangering the very
existence of the government, the Scottish courts did condemn and send
to Botany bay, Muir and Palmer for having in their possession a printed
copy of Thomas Paine's Rights of Man. It is very long since I read the
case; indeed shortly after we first obtained the information of their
trial, and shortly indeed after the trial; but I have never heard the
judgment of the court in their case spoken of but with reprobation. I
cannot remember the particulars of the case. The evidence was, that the
book had been reprinted and published in Great Britain. If so, that case
is stronger than that of having a printed copy in possession of a libel
published only in a foreign country; and so far, if such be the fact, it
is sustained by the dictum in Hawkins, but this dictum is not itself
sustained, as far as I could judge from the authorities cited at the
bar, from Hawkins himself, nor by any adjudged case. I think I may
boldly assert, then, that the merely having in possession a libel
printed and published in a foreign country only, is not an indictable
offence here, and publication of the same libel here.
Let us then examine how far these alleged libels, which, although not
subjects of criminal prosecution here, can be made use of to sustain the
publication, or prove, or aid in proving, the criminal intent or malice
in the publication of another libel charged in the first count, and of
the publication of which some evidence has been offered to the jury. Now
the libels in the first count, of which evidence of publication has been
given to the jury, is of itself libellous, or it is not; if it be
libellous and published, the law deduces the criminal intent from the
libellous matter itself, and therefore requires no aid from other
libellous writings to sustain it: if it be not libellous, it cannot be
made so by showing other libellous writings of the traverser, of which
he is not accused or charged in the indictment. I mean the libellous
matter itself in the libel is, in the eye of the law, proof of criminal
intent, if it be published, unless the traverser can rebut this
inference of law by proving his innocence of any criminal intent, by
some sufficient excuse, as that some person stole the copy from him and
published it without his knowledge or consent. But the Attorney for the
United States urged that these pamphlets, indicating the one charged in
the first count, contained or expressed opinions which coincided with
his sentiments on the subject matter of them; and this was urged as a
reason for admitting them in evidence. This, in my view, amounts to
nothing more than that he appropriated to himself and adopted the
thoughts of others. What proof could this appropriation or adoption
afford of a malicious intent in their publication? Every man has an
unquestionable right to his own moral or religious sentiments: there
is no crime in this: it would be criminal to restrain any man in this
country in his own, or in adopting the moral or religious opinions of
others, if he please; it is criminal only when he attempts to propagate
them, and only when they have a tendency to disturb the peace of
society--to invade the general rights of property--and are most
essentially criminal, if they have a tendency to produce the dreadful
results charged in the indictment. But bad as the tendency of those
writings may be, and unquestionably are, if truly portrayed in the
indictment, I know not how much less danger would result, if, led away
by our feelings, we bend the rules and principles of law from expediency,
or the supposed political necessity of convicting the accused. The present
crisis may pass without leaving any dangerous consequences behind it. The
good sense and virtue of the people, and the fear of punishment in
transgressors, will check the progress of these alarming doctrines; but
if we invade the panoply which the law has provided for the protection
of the accused against arbitrary or vindictive judgments, we establish
precedents, the evil consequences of which cannot be calculated. The
criminal intent, then, does not consist in the writing or possession of
a written or printed libel, but in the publishing it. It is not easy to
conceive how the criminal intent of publishing one libel, can be proved
by the having in possession other libels not published, any more than
you would be permitted to prove a man guilty of stealing one horse,
because you might prove that he had a propensity to horse-stealing. But
you would not be allowed to introduce such proof. The _quo animo_ with
which a horse is taken, is as necessary in an indictment for horse
stealing, as for publishing a libel. Now, as I observed before, if the
matter of the pamphlet charged in the first count in the indictment is
libellous, does not the acknowledgment of the traverser that the
sentiment in the several pamphlets coincided with his own, embrace in it
the sentiments in the pamphlets charged in the first count, and of which
evidence has been offered of publication? If so, does not this libel of
itself afford sufficient evidence of malice, without resorting to the
matter of other pamphlets not charged? Then why resort to them? The
traverser was not apprised from this first count, that he was
responsible for any libel or libellous matter, except what was contained
in the libel set out in said count. If you are permitted in order to
prove malice in publishing the libel in the first count, to read to the
jury the libellous matter of other alleged libels, what will be the
consequence? The matter in those other libels may be of a more
aggravated or inflammatory character than in that set out in the first
count. Is it not evident, if such be the case, that the jury may be
influenced to convict the traverser, not by the matter of the libel with
which he is charged, but from that of other libels with which he is not
charged? Surely, if malice in the publication of a libel be an inference
of law, that inference must be drawn only from the libel charged and
published, not from other writings which are not libellous because not
published. As I observed before, if the paper charged in the first count
be of itself libellous, the criminal intent of publication is to be
inferred from the confession of the traverser that he approved of the
sentiments contained in it. If such inference can be drawn from such
confession it can as well be sustained from the matter of this libel, as
from that of any number of others, and there is no need to resort to
them for such inference; if the matter of such papers be not libellous,
no number of other libels found in the traverser's possession, however
coinciding with his own opinions, can sustain the libel charged.
Again: if the matter of those pamphlets, which the Attorney for the
United States has moved the court to be permitted to lay before the
jury, be libellous, may not the traverser be hereafter arraigned upon
them if proof shall be had of their publication? This is possible;
almost probable, if his zeal in the cause be so great as has been
attempted to be proved. Then might he not be convicted by their
instrumentality in the present prosecution, and again in a subsequent
prosecution for publishing those very libels? I thought the court had
decided this point in a former opinion in this case, where they said
they could not be evidence if _they were of themselves indictable
writings_.
Again: if the proof of malice in the publication of the charged libel
be not complete, can it be made so by the production of other pamphlets
or libels not published? Is it an inference of law, that having such
libels in the traverser's possession furnishes any proof of malice in
the publication of the charged libel? I question the legal logic of such
an argument. It was almost as easy to publish by distributing fifty
pamphlets as one. Now if but one of fifty was given out, is it not as
probable that he did not desire to publish them, as that he did? Now an
inference from facts, or acts, is matter of law, and I should hesitate
to tell the jury that the traverser having in his possession fifty other
libels, or any lesser or greater number, which he might have published
with the same ease as he published one, is proof of malice in
publishing that one. An inference to be drawn from proved facts or
circumstances is something like a corollary drawn from a previously
demonstrated theorem in mathematics.
I wish it was as certain and clear. An inference deduced from a proved
theorem in geometry is unquestionable. Every body will agree to it. An
inference drawn by law from previously proved facts or circumstances,
is doubtful at best. Two discreet judges may and often do disagree in
regard to it. Do we not hear every day, in this court, of the most
wise and able judges--of the venerated Hale himself--admonishing
courts and juries not to lend a willing ear to them; at least against
circumstantial evidence, which is the same thing. How many almost
irresistable cases of inferences drawn from pregnant facts have been
shown, in which time proved the fallacy of such inferences, and that
many an innocent man has been consigned to an ignominious death by
circumstantial or (which is the same thing) inferential evidence, and
still so strong were the facts and circumstances in the very cases
cited by them, (where time proved the innocence of the accused who had
suffered the penalty of the law), that under the same circumstances I
should permit the same evidence to go to the jury--but in the case
before the court those admonitions are well worth considering. We are
asked to admit certain pamphlets said to be of similar libellous
tendency, and proved by the confession of the traverser to coincide
with his opinions, as the one charged in the indictment, and of the
publication of which evidence has been offered to the jury, although
such pamphlets were never out of the possession of the traverser nor
shown to any one, to prove malice in the traverser in the publication
of another pamphlet charged to have been published by him in the first
count in the indictment. I do not distinctly see the legal inference of
malice in having in his possession those unpublished pamphlets. He
could have published them, if this malice was in his heart. Why did he
not? Is it not in evidence that when he permitted one of those pamphlets
to be taken from his counter and read by Mr. King, that he did it
with reluctance, and that he was warned of the danger of bringing
such writings so far South? Is it unreasonable to suppose that he was
deterred by the warning? Taking then the whole evidence together,
although it proved great indiscretion in the traverser, and great guilt
had he propagated his writings--and that he would have deserved the most
condign punishment had he had the temerity to have published them--yet,
if I am to take the whole of the testimony in the case, I should be
compelled to say, that in withholding the other pamphlets from the
view of others, or of any other, he was influenced by the counsel he
had received, and was afraid to publish them; and that, under the
circumstances in which he permitted the first pamphlet to be taken from
his counter and published, if such permission be a publication, that he
then was aware of the danger he was in, and that under such circumstances
the having in his possession other pamphlets of a similar character, (if
the publication by permitting the pamphlets charged in the first count
to be taken from his counter and read by Mr. King, be not taking the
contents of the pamphlet into view of itself a malicious publication),
it cannot be made so by having other pamphlets of similar tendency in
his possession, which he did not publish nor attempt to publish.
It was contended, among the reasons assigned by the Attorney for the
United States for the admission of those pamphlets in evidence to the
jury, that some three or four of them were endorsed with the words
"read this and circulate," in the handwriting of the traverser, and this
was evidence of malice in the publication of the pamphlet charged in the
first count, and of which evidence of the publication has been offered
to the jury. But this pamphlet last spoken of had also the same words
written on it: whatever evidence of malice may be inferred from these
words, is furnished by the said pamphlet itself, and therefore it is not
necessary to resort to other sources for such evidence. It is true that
a multiplication of the same inscriptions on other pamphlets may, and
do, manifest greater zeal, and more intense interest in the subject
matter of the writings, and indicate an intention on the part of the
writer of such inscriptions to publish them. The malice which the law
denounces is in the publication, not in the writing or composition:
a man may express his thoughts or opinions in writing with impunity,
and is as innocent in the eye of the law (provided he keeps such writings
or compositions locked up from the public eye) as if they were locked up
in his own mind. Is not an indication or manifestation of an intention
to publish certain writings or printed compositions, and the withholding
the execution of such intention as strong evidence of change of purpose
from fear of the consequences or for other reasons, as of malice in the
publication of one of them in the way, and under the circumstances, in
which the one charged to have been published in the first count was
published? It is very clear, it seems to me, that if there were no other
evidence of any other publication of any of the pamphlets in question,
than the inscription on the corner "read this and circulate," that the
indictment could not be sustained, because such inscriptions, if the
pamphlets are never shown to any other person, is in the eye of the law
harmless. If, then, we are asked to admit such inscriptions or pamphlets
never shown to, or seen by any other person within this District,
because there is evidence that one such pamphlet was permitted to be
seen and partly read by another, must we not look at the evidence which
proves such exhibition of such pamphlets, and connect that with such
inscriptions on other pamphlets not published, to see how far such
inscriptions go to fortify and strengthen the evidence of malice as to
the published pamphlets? In other words, to see what legal inferences
of additional evidence such inscriptions afford? If this were a case
of ordinary importance, I should say without much hesitation, that they
afford no such inferences. It is for the jury to draw inferences of
guilt or malice from circumstances; they are fully competent to do so in
the present case from the evidence now before them; but it is often and
almost always a nice point for a court to instruct a jury from what
circumstances or facts inferences of guilt or malice may be drawn. It is
saying, Gentlemen of the jury, such and such a circumstance, if proved
to your satisfaction, is evidence from which you may and ought to find
against the traverser. It satisfies our minds and ought to satisfy
yours. But juries ought and will judge for themselves in criminal cases;
and I have always thought it a delicate matter in criminal cases, to
give such instructions to juries. Here we are not asked to give an
instruction; but we are asked to permit evidence to go the jury, which,
if allowed, carries with it the opinion of the court that such evidence
affords inference of malice. I must see such inference pretty clear
myself, before I give my sanction to the jury to draw such inference
themselves. It is true the law denounces any published writing having a
tendency to produce a breach of peace, or insurrection, or to jeopardize
the general rights of property, whether the intent of the writer was
wicked or innocent, as libellous. The writing itself being of a
libellous character, is of itself evidence of malice in the publication,
and it would be no excuse for the publisher to say, I meant no harm, I
thought I was doing good. In the eye of the law he is as guilty as if
this intention was really wicked. This is called implied malice, in the
absence of any other proof of malice than what is offered by the
internal evidence of the writing itself. Now the object of the motion to
lay before the jury other libellous papers, can be for no other purpose
than to prove express malice; for the published libel charged in the
first count, if it contain libellous matter, and was published, is of
itself, sufficient proof of implied malice, and if it be not libellous,
no other libellous writing can be introduced to make it so. Then, if it
be libellous itself, it implies malice; and if other similar writings
be introduced to prove malice, what does it amount to but proving the
implied malice of one libel by the implied malice of other libels? Or,
if it be said that some evidence of express malice has been laid before
the jury, can you make this evidence more strong or clear by evidence of
implied malice, contained in other similar writings not published? Upon
the whole, I do not distinctly see, under all the circumstances of this
case, how the unpublished writings can be admitted to prove the implied
malice to be gathered from them if they had been published, the implied
malice in the libel charged and allowed to have been published, or how
such evidence of implied malice in them, can be brought to prove express
malice in the publication of the charged libel in the first count. I am
against the motion.
_Mr. Key_, for the United States, then offered to prove the publication
by the defendant of the libels stated in the first, second, and third
counts, _by proving the following facts_, viz: that a large collection
of libels, and among them several copies of those charged in those
counts, with the words "_read and circulate_" in his handwriting, were
found upon the traverser--that he undertook to account for their being
in his possession, and gave untrue and contradictory accounts--that he
acknowledged that he had brought here those then shown to him, being
the same now in court, and that they comprehended all he brought here,
except about a dozen; and that prior to the traverser's arrest sundry
similar publications had been privately sent to various persons in this
District by some unknown person or persons in this District.
After arguments which occupied nearly the whole of Saturday, in which
the counsel on both sides displayed great learning and ingenuity,
_The Court_ delivered the opinion that the Attorney for the United
States may give evidence of the publication, in this District, of any
copies of the libels charged in the first and second counts of the
indictment. That if he shall have given any evidence tending to show
such a publication here, he will be permitted to show that other copies
of the same libels were found in the possession of the defendant. He may
then give evidence that a certain number of papers or pamphlets were
found in the possession of the defendant, together with the copies of
the libels charged, and of the publication of which in this District,
he shall have given evidence; but he will not be permitted to give in
evidence to the jury the contents of any of the papers other than those
charged as libels in this indictment, unless such other papers have
relation to the libels charged in the indictment, and would not in
themselves be substantive ground of prosecution. He may then give
evidence to the jury of any confessions or acknowledgments made by the
defendant in relation to any of the matters charged in the indictment.
_The District Attorney_ then put in evidence as follows, to show that
the prisoner had many similar libels in his possession, and that others
were distributed throughout the District.
_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.
"Let the philanthropist look at the facts. Nearly two millions of this
unhappy people tread our soil. In the Southern climate their increase is
more rapid than that of the whites. What is the natural result, if some
means are not applied to prevent it? What is now, compared to our own
population, but as a mole hill, will become a mountain, threatening with
its volcanic dangers all within its reach. What is the next consequence?
Why, as in the slave colonies of other countries, you must have an army
of troops to keep in awe this dangerous population. What a sight would
this be in a land of liberty! The same breeze that fanned our harvests,
that played among the leaves of the cane and the corn, would also rustle
banners of war! By the side of implements of agriculture, employed in
the works of peace, will appear the gleam of arms. Shall it be said that
we are not liable to the same vicissitudes that have overtaken other
nations? No, sir; we are operated upon by the same circumstances to
which other nations have been subjected.--The same causes will produce
the same effects, as long as the nature of man is unchanged, in every
clime.
"I trust, sir, that the march of mind is now upon its glorious way. I
trust that the minds of all have been sufficiently opened to the true
interest and glory of the country, to agree with me, that this is no
fitting place for the slave. That this country must, at some future
time, be consecrated to freemen alone. There are many individuals in the
Southern country, of which I am a native, who predict that the plan must
fail. They say we shall go on and partially succeed, that a portion of
the black population will go out to the colony, and after residing there
a short time, become discontented, when the plan must be given up--and
that the evil which we have endeavored to remove will be only the worse
for our exertion to obviate it. But this, sir, will not hold true. It
was, as it were, but a few day since, a small number of individuals were
thrown upon the shores of Africa. And what is the result? Here let it be
said--in the palace of legislation--that this people, but just now a
handful, are rising to consequence, and to a capability of the enjoyment
of political and civil rights;--and let us say to those who doubt--this
is the evidence in favor of our plan! Ought not this to join all hearts,
and call forth renewed exertions from those whose labors have thus far
been crowned with unexpected success?
"May not this be looked upon as a glorious work, the success of which
has been demonstrated! And when the time shall come,--and I trust in
God it will come--when this free and enlightened nation, dwelling in
peace and happiness under the mild influences of its government and
laws, shall have fixed deep the foundations of civilization in that
distant land, hitherto only known for its wide-spread deserts and its
savage race. Oh! sir, what will be the gratitude of that people, who,
transferred from the abode of their bondage, shall enjoy the rights
of freemen in their native clime!--And, oh sir, when we look to
ourselves--when we see the fertilization of those barren wastes which
always mark the land of slaves--when we see a dense population of
freemen--when lovely cottages and improved farms arise upon the now
deserted and sterile soil--and where now deep silence reigns, we hear
the chimes of religion from the village spire;--will you not--will
not every friend of his country, thank this Society for its patriotic
labors! Yes! Kings might be proud of the effects which this Society will
have produced. Far more glorious than all their conquests would ours be:
for it would be the triumph of freedom over slavery--of liberality over
prejudice--and of humanity over the vice and wretchedness which ever
wait on ignorance and servitude!"
_B. Hallowell_, having affirmed, stated that he knew Crandall, and
that he came here in May last, with introductions from very respectable
sources. Dr. Crandall had also been here about a year before, at
which time he (Mr. H.) wished to engage a person at his seminary in
Alexandria, as a lecturer on botany. He offered him $100 a year, and
encouraged him to believe that he would considerably add to that income
by making up different classes during the year. Dr. Crandall said, at
the time, that he would take it into consideration, and if he should
determine upon it, would move down. The Doctor did not return in time to
fulfil that engagement. But he brought with him letters showing that he
was a christian, a man of science, and a gentleman. He understood it to
be Dr. Crandall's object to have a class not merely for one session, but
for every summer, while he remained here. It was about the last of May
or first of June when Dr. Crandall returned.
_General Fowler_, of Georgetown, stated that he knew Dr. Crandall,
and that he was introduced to him, soon after he came, by a person
interested in botany, as a man well acquainted with that science.
Witness was fond of hunting after wild flowers, and proposed to take
excursions with Dr. Crandall. They went out botanizing, six, eight,
or ten times together. Their conversation was confined to that
subject, and witness had no reason to suppose that Dr. Crandall had
any incendiary pamphlets, or was at all engaged in the circulation
of them. His conduct, so far as he had seen him, was that of a
gentleman. He never knew him to converse with any negro. He never
had any pamphlets with him, to his knowledge. Dr. Crandall's
knowledge of the science was far beyond that which witness professed
to have.
_Ward B. Howard_ stated that he had known Crandall some years: at least
for seven or eight years. Witness was then resident at Peekskill. His
reputation was good, and he never heard that he was an abolitionist.
Witness himself had no fancy for abolitionists. There was no society
of them at Peekskill. Crandall resided in Peekskill seven or eight
years, and had, as he understood, attended the medical lectures at
Philadelphia, and received a diploma there. He had brought letters of
introduction to witness when he came to Peekskill, with the view to
settlement there. Dr. Crandall was actively engaged as an agent for the
temperance society. Witness would not now know the handwriting of the
traverser. He might know the signature, but not the general handwriting.
_Jackson O'Brown_ was living at Peekskill when Dr. Crandall first came
there. He boarded with him nearly two years, and had an opportunity of
seeing much of his character; a great part of the time he roomed with
him. The witness never heard that he was engaged in the abolition
societies, though he knew he was an active member of the temperance
society.
_Henry Gaither_ said he was in Linthicum's shop at the time when
Dr. Crandall was arrested. That an hour before he had heard that the
officers were in pursuit of him. He saw the officers, Robertson and
Jeffers, enter the office; and noticed a crowd gathering around it.
He asked Jeffers, as soon as he came out, what he had discovered, and
Jeffers, in reply, said he had found more than he expected, and had
taken 150 or 160 pamphlets. There was much excitement then in the
vicinity. Witness was then himself excited. When Crandall came out,
witness was apprehensive that he would be wrested from the officers
by the people. Oyster came in, and witness asked him if he had seen
any pamphlets. He said yes, but not more than two or three. Witness
remarked, that Jeffers said he had seen and taken 150 or 160. Oyster
replied, Jeffers is a liar. Some conversation followed, in which it
was suggested that attempts might be made to prejudice the public mind
against Crandall. Witness had since met Jeffers, on the Avenue, and
spoken with him on the subject. Witness remarked to Jeffers, the poor
fellow has suffered enough by so long a confinement, and Jeffers
assented to the remark, and added that he believed Crandall to be
innocent.
_Jared Stone_ was acquainted with Crandall, who lived three years in
witness's family, and eat at his table, in Peekskill. Crandall was a
physician who obtained a good reputation in that part of the country,
and it continued unblemished. He never was known to have any abolition
papers, or to say any thing in its favor, but was, if any thing,
opposed to it.
_Mr. Wilson_ was present at the time spoken of by Mr. Gaither, and said
one of the officers came out and said he had discovered more than he
expected, and remarked, my hopes are more than realized. He could not
recollect exactly the number of papers the officer said he had found,
but thought it was one hundred or a hundred and twenty. Some one in the
crowd said "we ought to take the damned rascal and hang him up on one
of the trees opposite." The witness then went away.
_Mr. Judson_, Representative in Congress from Connecticut, had known
Crandall from his boyhood. Crandall studied with witness's family
physician, and acquired a good reputation; nobody stood better in the
neighborhood. After he had finished his education he removed to
Peekskill, since which witness had been in the habit of seeing him
frequently; and he had always known him as a peaceable citizen. The
precise year when Crandall was admitted he could not recollect, but it
was about 1827 or 1828. Witness had not seen him for two years till he
saw him here in prison, and had never heard aught against him till now.
Mr. Judson also testified, that the prisoner was a brother of Prudence
Crandall, and that at the time of the difficulty with her and her school
for blacks in Connecticut, he met Crandall on board the boat on his way
home from New York; that he talked with him about that school, and the
prisoner said he was going to break it up; that he did not know as he
should be able to do it, for his sister Prudence was obstinate, but his
other sister, who was with her, he knew he could get away. Crandall then
continued home with the witness, and exerted himself with as much zeal
as any one could to break up the school.
_Dr. Sewall_ testified that the traverser came to him some time in the
spring to get a license to practice in the District, and showed him two
letters of high recommendation. He had some conversation with Crandall
upon subjects of science and upon his knowledge of medicine and surgery,
and formed a high opinion of his talents and acquirements. He advised
the defendant by no means to abandon the practice of his profession
for entering upon botany or chemistry, but if he could do that without
interfering with practice, it might do; he thought him too well
qualified in the profession to give it up. Crandall also showed the
witness a diploma, which was regularly signed, and he gave a verbal
license to practice, and said at the meeting of the Board he would have
a regular license made out. He had no reason to believe, from his
conversation with the prisoner, that he had any object in view except
the pursuit of his profession. All the stories that he had talked upon
the subject of abolition with witness, and given him Anti-Slavery
papers, were mere idle talk.
_Mr. Howard_ said he was sheriff of Winchester county, where Crandall
lived, and identified the handwriting of signatures to a letter of
recommendation which Crandall brought with him, and which was allowed in
evidence. All the signers were respectable men. Witness thinks he should
have known if any Anti-Slavery Society existed there--but he knew of
none. He also remembered that Crandall delivered lectures on chemistry
there, and he attended them.
_Mr. Ward_, Representative from the district where Crandall resided,
knew that he had lived there seven or eight years, and that he had a
high reputation as a respectable man, and a good physician.
_Mr. Austin_ was now a resident in Georgetown, but formerly lived in
Peekskill, where he knew the prisoner, who lived in his family three
years. He came then in consequence of having raised up Mrs. Austin
from a dangerous sickness. Witness was a lawyer, and knew Crandall's
reputation to be high as a physician and surgeon, far and near. Witness
was President of a Temperance Society, and Crandall was Secretary; he
did not know of any Anti-Slavery Society, and did not know or believe
that the prisoner belonged to any, or had any thing to do with them.
Crandall came on at his request to accompany Mrs. A., who, with her two
children, were always severely sick in travelling; and returned home
soon after, when he came back again to stop here to teach botany. He
came to witness's house on his return, and was taken sick soon after and
confined to his room. Witness was not a subscriber for the Emancipator,
though he understood one of the numbers in court was addressed to him.
He never saw any abolition papers in Crandall's possession. If he had,
they would have attracted his attention. Witness did not know how the
large box of books and papers came on, but supposed they came by water
when Crandall came the second time. He could not say distinctly, but he
thought a Mr. Dennison, an abolition agent, once left some abolition
pamphlets at his house for himself, and some for Crandall. He could not
identify them in court as the same, and he could not swear whether the
endorsement on them was in Crandall's handwriting or not.
_Mrs. Austin_ said she had known the prisoner as long as Mr. Austin,
and that his conduct in her family was irreproachable. She remembered
Mr. Dennison's having left pamphlets for Crandall and her husband, but
could not say those in court were the same, but they were similar.
Crandall came at her husband's request, to accompany the family, because
they were sick in travelling. He did not wish to come further than New
York, and would not consent to come further than Philadelphia; but as
Mr. Austin did not meet them there, he kindly came on to Washington. She
was cleaning up the house, preparatory to leaving it, and gave Crandall
the large box; and asked his permission to put into it his books and
papers. These pamphlets were lying as waste paper in the garret, and she
threw them with others into the box. Saw that some of them had writing
on, but didn't know of any with writing on in the trunk. The box was sent
round by water, but he brought the trunk when he came on the second time.
He did not carry it to the house when he arrived at night, but it was
sent over in the morning. Crandall was immediately taken sick, and
witness frequently went to the trunk for various purposes, and saw a
package nicely done up, which she supposed to be books. The package
remained just as it was tied up at the bookstore, till six or eight days
before the prisoner's arrest, when she had curiosity to know what it
contained, and he consented that she might open it.
Some conversation was held between witness and prisoner, before and
after opening, which the court refused to admit in evidence.
Mrs. Austin went on and testified, that she did not tie up the package
again, but left it, and she saw it repeatedly in the same state up to
the time of prisoner's arrest. She also saw several Emancipators in the
house, and one or two tracts sent by mail, which she used or destroyed
as waste paper.
_Bradley_ here offered to put in two letters and a deposition from the
man who gave Crandall the package in New York.
_Key_ objected that it was not legal evidence.
_Bradley_ knew it was not, but the witnesses were beyond the reach
of the court--they could not be forced to come and testify; and had
distinctly declared that they were afraid to come into the District.
He had last term requested the District Attorney to join him in taking
their depositions, in consequence of the circumstances, but having been
refused, he had gone on and taken them exparte, and he hoped they would
be allowed to go to the jury.
_Key_ was willing to admit any thing reasonable, but this testimony was
clearly inadmissible.
_The Court_ said, by the rules of evidence, it could not be given but
by consent.
_Mr. Carlisle_ opened the summing up for the prosecution, and remarked
that his was observed by the opposite counsel to be the only case of
seditious libel ever brought before this court, and I will add,
gentlemen, that the decision of it may determine whether or not it may
be the last;--whether or not this traverser may return to his fellow
laborers in iniquity, and inform them that _here_ he has found the gates
wide open, and the way all clear for the propagation of their libels and
their plans. It has been truly said that this topic is one of excitement
all over the country. Under these circumstances this traverser may
congratulate himself upon the opportunity of a fair and full trial, and
that he has not been the victim of summary justice. But, gentlemen, let
justice lose nothing of its proper efficiency by being administered with
coolness and deliberation. The opposite counsel say that the charge
is grave. Aye, gentlemen, it is so, but the proof is full. The offence
charged is one of a fatal, devastating, and, beyond all power of
palliation, most horrid character. These libels are not like common
libels, which tend to bring individuals into discredit and disrepute.
It is an offence of which the like is not contained in the annals of
criminal jurisprudence, peculiar to the state of our society, and in
enormity equal to all other crimes combined. An opulent and extensive
society send out their emissaries and commission and enjoin them to
scatter these infamous productions in the highways and by-ways; to
proclaim them from the house tops, and whisper them in the chimney
corners; to teach to all, high and low, that slaveholding is
man-stealing; and yet they mean no such thing as breaking the peace,
and abhor all violence and tumult. Does the preaching such language
to slaves tend to pacification?
Mr. Carlisle was here commenting upon the nature of the agents employed
for these unlawful purposes, to show that educated men, such as
Dr. Crandall, were the kind naturally to be selected, and was further
proceeding to examine the evidence as applicable to the laws, and, in
his opinion, conclusively establishing the guilt of the traverser, when
extreme physical debility and indisposition prevented him from
proceeding.
_Mr. Bradley_ then commenced summing up for the defence. He said the
nature of the charge was such that it was almost impossible to set aside
the prejudices which had been cherished from youth up, and which were
so natural to men of this section of the country; but he felt confident
the jury would give him a patient hearing, and judge correctly after a
careful consideration of the case. He then gave a statement of the
points of the evidence, upon which there was no dispute; such as--That
the prisoner allowed one pamphlet to be taken by Mr. King; that he was
found here with a number of other papers; that some came round in a box
by water; and that others were given him in New York, and brought on in
his trunk. He wished to draw a distinction between the kinds of papers.
It was proved that a bundle of papers were found, and they were here in
court; but the contents were unknown; whether good or bad the jury had
no right to infer. A large number of papers were found, some of which
were brought away and the others were left. That was all the jury had
to consider, except in regard to three numbers of the Anti-Slavery
Reporter, five numbers of the Emancipator, and the late pictures which
were cut from a work, and represented in contrast two modes of
education--one where children were whipped, and the other where they
were taught more mildly by means of books.
He would not stop now to consider the declarations said to have been
made before the magistrate. Nothing could be more unsatisfactory and
uncertain evidence than these examinations. The very fact that a man is
accused throws him off his guard, and he may say what he does not
intend, or which, if he did, in the midst of excitement the witnesses
might not properly understand or correctly remember. It was said there
were contradictions in his statements, but that supposition arose
entirely from a mistake of one of the justices. The other understood it
differently and saw no mistake at all. It respected the manner in which
he brought on the books--one understood him to say that they were all
given to him in New York, and that he brought them here, and they were
all in the jail but about a dozen; and then, at another time, he said
that he had some of them a long time. The other justice understood him
to say that all that he brought into the District were there, and that
they were all he brought from New York, except about a dozen, which he
supposed he had left by the way. Neither of these suppositions were
right. When he said they were all of them, he meant to say all he
brought from New York; that he had distributed none, for even the one
he loaned to Mr. King was taken by the prisoner from Linthicum's shop,
and was then in Mr. Key's possession, though they supposed it was lost;
and when he referred to about a dozen, he meant that he brought them all
with him except about a dozen, which came in a box by water. It had been
said that he admitted he had circulated a dozen; and yet the United
States' witnesses prove that he denied having circulated any, and from
the first disapproved of putting them in circulation. When the learned
counsel asked why the persons were not brought, to whom he had given the
dozen, to show that they were respectable men, he should have remembered
that the testimony was all against such an idea; and that, if he had
distributed any, the zeal and perseverance of the District Attorney and
the officers would have discovered evidence of it.
It was also asked why the person who gave the bundle to him in New York
was not brought to testify in his favor? as if the criminal wretch who
had palmed off these incendiary papers upon an innocent man, without
his knowledge, could be brought here to testify, when he was beyond
the jurisdiction of the court, and had declared that he was afraid to
come. He had requested the Attorney to have a deposition taken, but he
refused; and when he was spoken to, he threatened a prosecution, and
said he should like to see him; he wished he could get him. The Attorney
now says he would be safe; perhaps so from him; but there are here, as
elsewhere, hundreds of base cowardly scoundrels, who are willing in mobs
to hunt down any one against whom they conceive a prejudice; men who
dare not face a man alone, but who, backed by a mob, are willing to
assail an individual without knowing any thing of his guilt or
innocence.
Mr. B. then commented upon the character of the libel charged, and read
the first count. The first paragraph, he argued, contained no incendiary
language, unless it was to call slavery a crying abomination. He had not
known before that those words were calculated to stir up insurrection.
People were in the habit of hearing them daily from the pulpit, and he
never knew that they became seditious on account of it. The whole of
the matter was a controversy between the Anti-Slavery Society and the
Colonization Society, in relation to the expediency of their different
measures; and if any body could make any thing libellous, he must have
intellectual spectacles stronger than those with which Newton looked at
the stars. In the next paragraph slavery is called "unrighteous," which
was the great offence charged there. If this was a libel, he should show
that Arthur Tappan & Co. were not singular in the guilt of libelling;
for that fathers of the church in a slave state had called slavery
unrighteous too, and that some of the most eminent of our patriotic
Southern politicians had used far stronger and more exciting language.
This was all a controversy whether it was proper that provision should
be made that no slave should be emancipated unless provision was made
for sending him out of the country; and the writer contends that to make
sending a man out of this country, where he was born, a condition of
releasing him from bondage, in which he was forcibly held was a moral
absurdity; and to say so might be libellous, but he could not understand
how it should be so. Some of the jury would recollect when a discussion
of this topic took place in the Legislature of Maryland upon a proposed
law to the same effect, and they would remember that similar arguments
were used there.
The next passage was an extract showing the treatment of slaves in
another country, different from ours, where they have no law to protect
the persons of slaves; and could not apply to the condition of any
portion of our people. It could not be libellous to have the book giving
the original journal of the traveller, and, if it were not, he did not
see how any evil or excitement could be produced by this extract.
He came next to the passage in the second count, which was an extract
of a speech, in which the orator tried to say something grand; but it
amounted to no more than had been said by slaveholders themselves; and
though the Attorney said it with an amusing emphasis, yet he would show
stronger language, to the same purport, in the writings of Mr. Jefferson
and of Mr. Archer, of Virginia, which had been approved by all who heard
or read them.
The whole argument used in the Anti-Slavery Reporter, he contended, was
mild and temperate, more so than could be expected, when the different
habits and modes of thought of the people from whence they came were
considered--a people who, from infancy upward, had heard nothing but the
accents of freedom, and had never lived in a country where they could
actually know the practical effects of our system of slavery. The
example was set them by the ablest writers here, and if we publish and
send to them similar writings, is it to be considered wonderful that, in
their discussions, they should adopt it. Their argument is, that slavery
may increase to be an evil which, by and by, cannot be remedied without
violence and bloodshed; and it is addressed to men who have the power
and the influence to apply a remedy now. The same arguments were
published here by the Colonization Society, which does honor to human
nature, and were founded on extreme necessity.
He read numerous extracts of books to show that similar expressions to
those in the libels charged, were not considered blameable if uttered
or published at the South; and denied the right of the District Attorney
to take particular words, here and there, and hold them up to fix the
character of the paper, without regard to the connexion in which they
were used; and he said that if Crandall was indictable for the language
and meaning of the Anti-Slavery Reporter, then every member of the
Colonization Society were liable to indictment.
[It may be proper to introduce one or two extracts, that the reader may
know the character of the papers read. The following are taken from an
address to the Colonization Society of Kentucky, by _R. J.
Breckenridge_.]
"There are some crimes so revolting in their nature, that the just
observance of the decencies of speech deprives us of the only epithets
which are capable of depicting their enormity. Every well regulated
heart is smitten with horror at the bare idea of their perpetration;
and we are uncertain whether most to loathe at the claim of those who
habitually commit them to companionship with human nature, or to marvel
that the unutterable wrath of heaven doth not scathe and blast them in
the midst of their enormities. Let the father look upon the dawning
intelligence of the boy that prattles around his knee, the pride of his
fond heart, and the hope and stay of his honest name; and then, if he
can, let him picture him in distant bondage, the fountain of his
affections dried up, the light of knowledge extinguished in his mind,
his manly and upright spirit broken by oppression, and his free person
and just proportions marred and lacerated by the incessant scourge. Let
the husband look upon the object in whose sacred care he has "garnered
up his heart," and on the little innocent who draws the fountain of its
life from her pure breast, recalling, as he gazes on one and the other,
the freshness and the strength of his early and his ardent love; and
then if he be able, let him picture those objects, in comparison with
which all that earth has to give is valueless in his eyes, torn from him
by violence, basely exchanged for gold, like beasts at the shambles,
bent down under unpitied sorrows, their persons polluted, and their pure
hearts corrupted--hopeless and unpitied slaves, to the rude caprice and
brutal passions of those we blush to call men. Let him turn from these
spectacles, and look abroad on the heritage where his lot has been cast,
glad and smiling under the profuse blessings which heaven has poured
on it, let him look back on the even current of a life overflowing with
countless enjoyments, and before him on a career full of anticipated
triumphs, and lighted by the effulgence of noble and virtuous deeds,
the very close of which looks placid, under the weight of years made
venerable by generous and useful actions, and covered by the gratitude
and applause of admiring friends; let the man-stealer come upon him, and
behold the wreck of desolation! Shame, disgrace, infamy, the blighting
of all hopes, the withering of all joys; long unnoticed wo, untended
poverty, a dishonored name, an unwept death, a forgotten grave; all, and
more than all, are in these words, _he is a slave_! He who can preserve
the even current of his thoughts in the midst of such reflections, may
have some faint conception of the miseries which the slave trade has
inflicted on mankind. I am unable to state with accuracy the number of
the victims of this horrible traffic; but if the least dependance can
be placed on the statements of those persons who have given the most
attention to the subject, with the best means of information, it
unquestionably exceeds ten millions of human beings exported by violence
and fraud from Africa. This appalling mass of crime and suffering has
every atom of it been heaped up before the presence of enlightened men,
and in the face of a Holy God, by nations boasting of their
civilization, and pretending to respect the dictates of christianity.
The mind is overwhelmed at the magnitude of such atrocity, and the heart
sickens at the contemplation of such an amount of human anguish and
despair."
"The legislative acts which, with a cool atrocity, to be equalled only
by the preposterous folly of the claim they set up over the persons of
God's creatures, doom to slavery the free African the moment his eyes
are opened on the light of heaven, for no other offence than being the
child of parents thus doomed before him, can, in the judgment of truth
and the estimation of a just posterity, be held inferior in heinousness
only to the first act of piracy which made them slaves. It is in vain
that we cover up and avoid such reflections. They cling to us, and earth
cries shame upon us that their voice has been so long unheeded. The free
Lybian, in his scorching deserts, was as much a slave when he rushed,
in the wild chase, upon the king of beasts, as is his unhappy offspring
before our laws cleave to him. God creates no slaves. The laws of man do
oftentimes pervert the best gifts of nature, and wage an impious warfare
against her decrees. But you can discover what is of the earth and what
is from above. You may take man at his birth, and by an adequate system
make him a slave, a brute, a demon. This is man's work. The light of
reason, history and philosophy, the voice of nature and religion, the
Spirit of God himself, proclaims that the being he created in his own
image he must have been created free."
"It can be no less incorrect to apply any arguments drawn from the right
of conquest, or the lapse of time, as against the offspring of persons
held to involuntary servitude. For neither force nor time has any
meaning when applied to a nonentity. He cannot be said to be conquered,
who never had the opportunity or means of resistance; nor can time
run against one unborn. Those who lean to a contrary doctrine should
well consider to what it leads them. For no rule of reason is better
received, or clearer, than that force may be always resisted by force;
and whatever is thus established, may, at time, be lawfully overthrown.
Or, on the other hand, if error is made sacred by its antiquity, there
is no absurdity or crime which may not be dug up from its dishonored
tomb, and erected into an idol around which its scattered votaries may
reassemble."
Mr. Bradley then went on to argue upon the tendency of the libels, and
contended that they were not calculated to excite sedition. They are
not addressed to the colored people, nor adapted to excite insurrection
and revolution among them. They are calm appeals to reason, designed
to produce measures to arrest a danger which they think threatens them,
in common with their brethren of the South.
He next adverted to the law of publication. There were two grounds of
publication--one is legally to be inferred--the other actually proved.
The monstrous doctrine is contended for by the prosecutor, that if a
man has a libel in his possession, if it was publicly circulated in the
country, the possession is _prima facia_ evidence that he put it in
circulation. To show the absurdity of such a position he took a case
of a favorite popular libel, which would be all sold in a day, and said
that it would be impossible to find an impartial jury to try a case
under such a law--because it would not be easy to find twelve men drawn
as jurors who would not have been possessors in some way of the libel,
and of course equally criminal.
Having a written copy of a published libel in one's own handwriting may
be _prima facia_ evidence; but it is not so with a printed copy. The
publication must be brought home to the defendant. An actual publication
is when the party puts the libel in circulation--when he gives it to a
third party, either by himself or an agent, for the purpose of having it
put in circulation.
The evidence in this case, he contended, afforded not only no proof,
but no presumption that he published the libel. The one copy he allowed
King to take was not given to be circulated. He had been warned of the
danger, and had avowed his opposition to having such papers put in
circulation. There could be no pretence that it was given to stir up
mischief; and if any one was responsible for any evil effects, supposing
any to accrue, it was Mr. King who had shown it, and left it exposed
openly in a shop. But he argued that the loan of the paper to King was
simple possession--he had afterwards taken it back from the shop, and no
evil had been done or intended.
The intent, he said, must be gathered from the circumstance of the
publication, and not alone from the libel charged; and he then commented
upon the manner in which this paper was taken by Mr. King, and upon his
character as a substantial, respectable man, who had just given the
prisoner a warning, to show that no presumption could arise of an intent
as charged in the indictment. The words "read and circulate," upon which
so much stress had been laid, showed no evidence of an intent to publish
the pamphlets here, for they were put on two years before in Peekskill;
and even the having them brought here was no act of the prisoner's, nor
does it appear that he knew they were in the box.
He went at length into an examination of the evidence tending to show
Crandall's good character, and the accidents which brought him here and
induced him to make it his permanent residence. The trouble and
excitement, he said, had not been owing to the prisoner or to any act of
his, but was entirely owing to the misapplied zeal of the officers, and
to their indiscretion and stupidity. He said he had gone over all the
evidence of publication, and it was certain that no other publication
had been made by him, for the District Attorney would have brought proof
of it; if one had been dropped ten fathoms deep, into the vilest well,
some one would have been found to fish it up.
He traced the course of the prisoner from his boyhood to college, and to
the study of his profession--from that to his settlement at Peekskill;
and urged upon the jury the consideration of his uniformly sustained
character, and of his blameless life. He followed him with Mr. Austin's
family to this city, and afterwards shewed his course to New York, when
the important bundle of abolition tracts was palmed upon him; and then
followed him here with those papers, which he did not even open, and
of which he could not have known the contents, till he was informed by
Mrs. Austin. He had shewn that no Anti-Slavery Society existed where he
came from, and that he had never been a member of any such society. He
had also shewn his acts, in connection with his good character and
principles, when he went to Connecticut to suppress the school founded
by Arthur Tappan & Co., which he thought an improper and dangerous
institution; and though he has always avowed himself to be opposed to
slavery, yet he has always been as firmly opposed to excitement. He had
traced him here, and shewn his declarations and principles here, and the
business in which he was engaged.
He said he had been satisfied, early in the trial, that there was no
ground for the prosecution--that the counsel for the United States had
not made out a case which would satisfy themselves or you; but it was
necessary to go on with the trial, for the satisfaction of others. The
public were anxious to have the whole truth before them; and he was
happy to believe that the jury would come to the conclusion that the
Government had wholly failed, upon their own evidence, to make out a
case which would justify a conviction of the prisoner.
_Mr. Coxe_ addressed the jury. He was not aware, he said, that during
his whole career as a professional man, he had ever entered upon the
discharge of his professional duties with feelings of more anxiety than
in the present case. The interest which he felt in the result was not
limited to the consequences which might befall the traverser--an
individual to whom he was an entire stranger; but principles had been
advanced, and a course of proceeding adopted in this case, which
involved results of the most general and momentous character; results
which may to-morrow, and through all time, be brought to bear upon each
one of us and upon our posterity.
The cause now on trial was the first of the same description which, to
his knowledge, had ever been brought up for judicial decision. It was an
indictment for a seditious libel at common law. Mr. Coxe here adverted
to a portion of our history, during the administration of the elder
Adams, when we were threatened with a foreign war and internal
commotion, and when it was believed that a resort to unusual means of
protection from impending peril was necessary. At that crisis was passed
the act of July 14, 1798, commonly called the Sedition Act, by which it
was provided that any person guilty of uttering a seditious libel
against the Government of the United States, with intent to defame the
same and bring it into contempt and disrepute, shall be punished by a
fine not exceeding two thousand dollars, and by imprisonment not
exceeding two years. The act was denounced as tyrannical, oppressive,
unconstitutional, and destructive of the liberty of speech and of the
press, and it was made one of the principal charges against the party in
power of that day, and was the chief means of its overthrow. During the
short period of the existence of that odious law, some few prosecutions
were instituted under it against obnoxious individuals; and these were
the only cases of prosecution for seditious libel that had ever occurred
in this country.
In the present case, an attempt was made to apply the well known
principles of the common law to the same improper and unconstitutional
end. The case was new to our courts, and was of rare occurrence in the
courts of England. Without being a prophet or the son of a prophet,
Mr. Coxe said he would venture to predict that, if the doctrines which
had been urged in behalf of this prosecution, and the proceedings which
had been here justified by the District Attorney, should be established
as lawful, the seeds will have been sown from which will be reaped, for
us and for our children, a harvest of woe and disaster.
He could not, therefore, but deeply feel the share of responsibility
which devolved upon him in the management of this case, and in the
vindication of the great principles of constitutional liberty in which
he had been nurtured and to which he was bound to adhere.
If, upon such a warrant as was issued against this traverser, any
individual in this community might be arrested, his papers seized and
examined, his most private correspondence exhibited to the public gaze,
and if all this proceeding was to be warranted by the laws under which
we live, then, gentlemen, said Mr. Coxe, this District is no place for
me. He would seek some place where he would be safe from such
outrages--some place where the principles of civil liberty are still
understood and cherished.
If, upon testimony thus illegally obtained from him, without having been
guilty of any overt act against the peace of the community, he could
be indicted for sedition, incarcerated for eight months preparatory
to a trial, and then be told that for having such publications as the
traverser had in his private custody, under his own lock and key, or
for loaning one to an intelligent friend, for his single perusal, he
should be exposed to conviction and punishment for sedition, then he
would, to escape such tyranny, expatriate himself, abandoning a land
no longer free.
But this was not, and could not be the law of this District. What was
the case? Let us go back to the 10th of August last, when this warrant
was placed by a justice of the peace, acting under the advice of the
District Attorney, in the hands of the officers who served it. The only
foundation of the prosecution was simply this: Mr. King, while visiting
the office of the traverser, with whom he was in habits of intimacy and
free intercourse, saw there lying about the room, amongst various works
on different branches of science and the arts, three pamphlets, which
were taken from a box containing surgical instruments, books on surgery,
and botanical preparations, in packing all which the pamphlets had been
with other papers employed. Mr. King casually taking up one of these
pamphlets, read its title page, and remarked that this was too far South
for such things. He asked permission of the traverser to read it, which
was granted, and up to the 10th day of August, a month afterwards, this
was the extent of Dr. Crandall's offence. The affidavit in the warrant
did not even go so far as this, in any positive charge. William
Robinson, who made the affidavit, deposed that he had seen in Georgetown
an incendiary pamphlet having upon it the name of Dr. Crandall, and that
he, the deponent, had been informed and believed, that Dr. Crandall was
engaged in distributing and circulating such pamphlets. The only
positive averment in the affidavit was unimportant, and, if important,
was untrue. Mr. Robinson, when examined, had no recollection of such
a pamphlet, and there was abundant evidence to prove that the pamphlet
loaned to King was now in court, and there was no such endorsement on
it. He had not, therefore, seen a tract with Dr. Crandall's name upon
it. That Dr. Crandall was engaged in the circulation of this or similar
pamphlets was equally unsupported by evidence. Upon this allegation, so
flimsy and so false, the Justice, acting under the advice of our learned
District Attorney, issued the illegal and unconstitutional precept which
he held in his hand. By this warrant the constable was directed to
search and examine the traverser's private papers, to select such as
might appear to be incendiary and to bring them and the traverser before
some justice of the peace, to be dealt with according to law.
This illegal process, thus illegally executed, had been justified by
the District Attorney, who had avowed himself ready, whenever required,
to prove that it was lawful. On the other hand, he, Mr. Coxe, pledged
himself, on all occasions, and whenever the question might be presented
for argument and decision, to brand it as tyrannical, oppressive,
illegal, and unconstitutional.
The next evidence for the prosecution was found in the pamphlets thus
stolen, and the possession of them by the traverser was alleged as proof
of their publication by him. Against this false and more than
inquisitorial doctrine, he solemnly protested. Let the accidental
possession of a denounced pamphlet be made proof of its utterance and
publication by the possessor, and let the new process of detecting and
bringing to light that obnoxious pamphlet be established, and what man,
in the whole community, can be safe in the enjoyment of his personal
rights? May not any man be subjected to be treated as a felon, upon the
instigation of private malice, or party animosity, or religious rancor?
How easy would it be to find a magistrate at any time, who, confiding in
the learning and experience and official character of the District
Attorney, will, at his instance, grant such a search warrant against any
individual?--and how easy will it not be to find constables, who, in the
execution of it, will raise a hue and cry, and an excitement against the
individual at whom the process is levelled?--so that if he escape the
tyranny of the law and of the officers of the law, he may, nevertheless,
fall a victim to the blind and ignorant violence of popular fury!
Two things, Mr. Coxe said, must combine to bring the traverser, in this
case, within the law, if indeed there was any law to meet the case. The
publications themselves must be calculated to excite insurrection among
the blacks, and contempt of government among the whites; and the mode
and manner of the publication must be such as to justify the supposition
that the publisher intended to produce this effect.
If both of these facts could not be proved, the prosecution must fail,
and the traverser be entitled to a verdict of acquittal. Admitting that
the character of the pamphlets was incendiary, and as mischievous in
their tendency as the District Attorney may, on this occasion, be
pleased to represent them, still it cannot be shown that the traverser
was guilty of any injurious or malicious dissemination of them. The loan
to Mr. King was the only instance proved of distribution, and could that
be considered malicious? Mr. King was admitted to be an intelligent and
discreet citizen, without any sympathies with the abolitionists, and he
could read one of these pamphlets with as little injury to the public
welfare, as could this court and the many individuals to whom the
District Attorney had been reading them. If the traverser had been
criminal, Mr. Key had been still more so. If Dr. Crandall is punishable
for yielding a reluctant and hesitating consent to the request of
Mr. King to be allowed to take one of these pamphlets and read it, to
what condemnation has Mr. Key subjected himself by forcing these same
tracts, and particularly the worst passages he could select from them,
upon the attention of so many individuals?
But another ground had been taken against the traverser. He was charged
with being a northern man; a native of Connecticut, and a resident of
New York. Have we then, said Mr. Coxe, lived to see the day when in a
court of justice, in the federal city, under the very eyes of Congress,
and of the National Government, it can be urged against an individual
arraigned at the criminal bar, as a circumstance of aggravation, or as
a just ground for suspicion, that the individual comes from the North
or the South, from the East or the West? But we were told, that the
Northern men were interlopers and intruders amongst us. He protested
against the use of such language, especially in the District of
Columbia, which was dependant for its very existence upon the bounty
of Congress, and which owed so much to the liberal policy extended to
it by Northern men. Mr. C. admitted that there were in the North some
vile fanatics, who, under the guise of purity and zeal, had attempted
to scatter firebrands amongst us; men who propose to accomplish the
worst ends by the most nefarious means; men who, under the professions
of christian sympathy and humanity, seek to involve the South in all
the accumulated horrors of a servile war. These men were, however, few
in number and contemptible in resources. On the other hand, there were
men at the South who, for base motives, make themselves auxiliaries to
this excitement, and endeavor to alarm and agitate the people of the
South by misrepresentations of the general feeling and policy of the
people of the North. With neither of these two classes of fanatics had
the people of this District any common interest. As a citizen of this
District, he protested against making it the arena for the operations
of these incendiaries. It was for this jury to resist the first attempt,
now made, to render our courts of justice accessory to their designs.
He would demonstrate from the evidence that the traverser had no part
in producing the excitement which prevailed in this District during the
last summer. Dr. Crandall was not even the innocent cause of it. It
was an excitement got up against Crandall, and not by him. When the
constables went to his lodgings and office with their warrant, there was
no excitement nor commotion among the people. All was calm, and but for
the constables and their process, would have remained so. But they
published in the streets of Georgetown the nature and object of their
errand, and collected a number of individuals who were curious to see
the result of this extraordinary search. One of the constables, Jeffers,
after leaving the office of the traverser, goes to Linthicum's shop, and
there proclaims to the assembly that "they had found more than they
expected;" that "their hopes were more than realized." The constable
then goes on to proclaim that he had found a large number of incendiary
pamphlets, 150 or 160. Then ensued an excitement, and a cry was at once
heard, "carry him across the street and hang him to the tree!" Such was
the origin of the excitement which pervaded our community, and which the
District Attorney lays to the charge of the traverser.
The testimony was silent as to any act of publication by the traverser
of more than one of the publications referred to in the indictment, and
in that he was shown to have had no improper design. We were told,
however, that the possession was proof of criminal design. Was it to be
endured that, without authority of law, and contrary to all law, private
papers should thus be wrested from the possession of an individual,
and then be offered as a proof of malicious intent and malicious
publication? In any prosecution for a libel it was necessary to prove a
malicious publication. Malice may be inferred to an individual from the
simple act of publication. But in cases of seditious libel, it was
necessary, in order to infer malice, to prove that the publication was
made to such persons as that the public could be injured by it. His case
being destitute of such proof, the traverser was entitled to a verdict
in his favor. Mr. Coxe went into a minute examination of the testimony
to prove that the pamphlets were brought innocently and without intent
to circulate them. Those in the box were brought with other papers, and
were packed by a lady, for the purpose of wrappers, &c., for plants.
The pamphlets given to him in New York, by a person from whom he had
purchased a book, he had received without any knowledge of their
contents, and the package remained unopened in his trunk until it was
taken by the constables. No mischief had been produced; no insurrection
raised; no human being injured, except the unfortunate traverser
himself, whom, after an incarceration of eight months, the prosecutor
wishes you still further to punish. This was a reproach to our
community; a burlesque of our courts of justice; it had no support in
principle or reason. Was this the boasted intelligence, spirit, and
generosity of the South!
From a review of the testimony it would be found that the traverser
came into possession of the papers innocently; that he retained them
innocently; and that they were never distributed by him.
Mr. Coxe then proceeded to maintain, at length, that, granting the
publication, there was nothing in the quotations from the pamphlets
incorporated in the indictment from which a criminal intent could be
inferred. If there was no criminal matter in the extracts, then there
was no crime charged. He went on to prove that they did not contain a
single sentiment or expression on the subject of slavery, and its
political, moral, and social results, which had not also been used by
slaveholders; by the statesmen, and lawyers, and writers of the South.
Mr. Coxe proceeded to compare the language charged as seditious in the
indictment, with passages from colonization speeches made by Mr. Key
himself; by Mr. Archer, Mr. Custis, Bishop Smith, General Harper;
by Patrick Henry, in the Virginia Convention; Mr. Pinckney, in the
Legislature of New York; by Mr. Jefferson, in his notes on Virginia;
by Judge Tucker, in his notes to Blackstone's Commentaries; and by
other distinguished gentlemen at the South.
Neither he, nor the jury, nor the District Attorney, could distinguish
the language and sentiment of one of those parties from the other. If
there was any difference it was in this, that the northern publications
were somewhat more temperate than the others. The controversy which had
grown up between the rival Societies for Colonization and Abolition had
given birth to this excitement. Which of them was right, or whether they
were both right or wrong, was not now a matter in issue; but he would
allude to the fact that the sincerity and personal excellence of the
abolitionists had been warmly acknowledged by the amiable Secretary of
the Colonization Society, and by one of its most distinguished members
and friends, Mr. Gerrit Smith.
But the District Attorney denounced the Abolition Societies and
Dr. Crandall, whom he alleged to be a member of the American Abolition
Society. This assertion was unsupported by testimony, and untrue in
fact. One of the constables, indeed, had testified that Crandall, after
his arrest, admitted that he was a member of that society; but this was
disproved by all the other testimony in the case.
Mr. Coxe, without defending the Abolition Societies, here undertook to
prove, from various documentary evidence, that there was, after all, but
very little difference between the sentiments and objects of the
colonizationists and the abolitionists.
In conclusion, Mr. Coxe remarked, that if any the smallest injury had
resulted from the traverser's sojourn in this District, it was not his
fault. He was innocently occupied in professional pursuits, and was
quietly pursuing the even tenor of his way. Whatever excitement and
injury had grown out of his visit here was solely attributable to the
illegal course taken by the prosecutor in procuring his arrest and the
seizure of his papers, which were harmlessly reposing in his trunk.
With these remarks, and his thanks for the patient hearing afforded him
by the jury, Mr. Coxe submitted the case, with entire confidence, to
their hands.
_Mr. F. S. Key._ I consider this one of the most important cases ever
tried here; I wish the prisoner every advantage of a fair trial. It is
a case to try the question, whether our institutions have any means of
legal defence against a set of men of most horrid principles, whose
means of attack upon us are insurrection, tumult, and violence. The
traverser defends himself by justifying the libels. We are told that
they are harmless--that they have no tendency to produce the horrid
results which we deprecate. We have been told that _this_ community
has not been endangered. The Emancipator has been read, the extracts
from it justified, this prosecution scouted. If such publications
are justifiable, then are we, indeed, at the tender mercy of the
Abolitionist, and the sooner we make terms of capitulation with him the
better. What does he propose for the slave? Immediate emancipation. In
one instant the chains of the slave must snap asunder. Without delay,
and without preparation, he becomes a citizen, a legislator, goes to the
polls, and appoints _our_ rulers. If this be the plan, then am I ready,
as the opposite counsel expresses it, to seek refuge in other parts of
the United State. Are you willing, gentlemen, to abandon your country;
to permit it to be taken from you, and occupied by the Abolitionist,
according to whose taste it is to associate and amalgamate with the
negro? Or, gentlemen, on the other hand, are there laws in this
community to defend you from the immediate Abolitionist, who would open
upon you the floodgates of such extensive wickedness and mischief? There
are such laws, gentlemen; they are as essential to your prosperity and
peace as is the sacred law of self-defence to every individual.
But you have heard it denied that there are such laws; that these
pamphlets are incendiary; and this prosecution is likened to those under
the sedition law--a law reprobated and repealed--and hence we may infer
that a man may publish what he pleases, however seditious and
insurrectionary it may be. Not so. The repeal of the sedition law left
the common law, by which these offences always were punishable, in full
force; and, gentlemen, it is well known that the principal argument
against the sedition law was, that the offences which it punished were
sufficiently provided for already by the common law as it stood. But the
traverser is not content with acting merely on the defensive. It appears
that he is a _persecuted innocent man_; upon an illegal warrant, without
proper evidence, attacked, _robbed_, put in jail; all for having a few
harmless publications about him. Why does not this _persecuted_ man
bring his action for false imprisonment? Why do not his counsel advise
it? The warrant was issued upon probable cause on oath. The magistrate
was bound to issue it, but it made the constable the judge of what were
incendiary papers! Yes! and had the constable have taken any other
course he would have been responsible to the traverser for so doing. But
carry out the law as expounded on the other side. Here's a counterfeiter
caught, with his tools, plates, &c., all found upon a search for stolen
goods. The gentleman would bring him before a magistrate, have the
warrant quashed, his _goods_ returned to him, and should the articles,
thus found, be used in evidence against him, it would be horrid,
tyrannical, oppressive, shocking, and enough to make a man runaway from
a country where there are such laws, and find refuge in some other.
Gentlemen, if in searching for stolen goods you find evidence of
counterfeiting, you may use it for the purpose of convicting the culprit
of either offence.
But the papers were safe in Dr. Crandall's trunk. Yes, all were there
and safe, but those taken out and circulated, exactly as the case would
have been had they been counterfeit bank notes, and not incendiary
pamphlets. Gentlemen, did he not give Mr. King one, because he thought
that he _would not_ mention it? And, gentlemen, would he not as likely
give to those who _could not_ tell? At every step in our community, he
meets such men; he is enjoined in the language of these papers, to give
them currency "in highways and by-ways." This man should be glad of the
opportunity, by public trial, to exonerate himself from the charges
against him. They are distinctly made--the testimony clearly laid
down--testimony, in my opinion, ample for his conviction. There are two
questions in this case: are the libels charged criminal?--are they
proved to have been published by the traverser? I call your attention
to the libels and to their tendency. The Colonization Society published
them only to denounce them. The Colonization Society only contemplates
free negroes, and has nothing to do with slavery.
Mr. Key here explained the difference between the papers read by the
traverser's counsel and those charged in the indictment, and showed that
the Kentucky synod, the grand jury of our District, &c. were for gradual
emancipation by the whites, and not violence by the blacks, &c. He
thought having a number of these printed libels stronger proof against
the traverser than having only one written; commented upon these papers
coming through the post office with only one cent postage, as strong
evidence that they were sent in here; upon the fact that none of his
witnesses testified to his character or pursuits within the last two
years; upon the improbability of such a man as Crandall was represented
to be, of high character as a man and a physician, leaving Peekskill
to go botanizing merely. Mr. K. here commented upon the inflammatory
character of the libel alluding to the _colonial_, and, as he contended,
the _general_ system of slavery. Mr. K. here read again from the
pamphlet, and then added: I am accused of being emphatic; I confess my
blood boils when I read the closing sentence of this libel--this
taunting us with the torch of the negro at our threshold, and his knife
at our throats--this fiendish allusion to the _beauty_ and chivalry
of the South; it displays cool and demoniac malignity! Mr. K. then
alluded to the pictures, saying that they could be meant only for the
illiterate, and tended only to insurrection and violence. Mr. K.
animadverted upon the speeches and opinions of eminent Southern men,
quoted by the traverser's counsel, to show that their objects were
different from those of the abolitionists. Mr. Key remarked, with great
severity, on the abstract proposition of the sinfulness of slavery, and
the declaration in the libels of the "South being awakened from their
snoring by the thunder of the Southampton massacre." He contended that
Crandall admitted, in his examinations at the jail, that all the papers
he had were sent from New York, and came in a box; and said nothing
about having received two parcels; and that he also admitted, that he
had all the papers sent, but twelve or thirteen, and argued that those
twelve or thirteen were circulated here, amongst improper persons: that
if otherwise, the traverser might and could prove to him, to whom they
were delivered.
He adverted to the slander contained in the libels, that a free person
of color might be sold here for jail fees when apprehended as a runaway
slave. He commented on the evidence of Mr. Austin, and argued that it
was far from showing that the packages were not broken by Dr. Crandall,
and part of them taken out and distributed. He also argued that
Dr. Crandall took no pains to have the pamphlet returned to him, which
he delivered to Mr. King, and did not destroy those he had after hearing
that there was an excitement on the subject, and that none of these
libels and picture books were used by him, as the other newspapers were,
to preserve his plants, thereby proving his disposition to preserve and
circulate them. Mr. Key also referred, in corroboration of what C.'s
views were, to his declarations to Jeffers' favorable to the
amalgamation of the blacks and whites, and also those to Colclazier and
Tippet, "that slavery brought the slaveholder and slave into promiscuous
sensual intercourse," "and that he was willing that the North and the
South should be arrayed against each other." Mr. Key added: This is a
subject to us not of indifference. It has been one of much excitement,
and we are bound to act in self-defence. If in your conscience,
gentlemen, you think the traverser innocent, acquit him. Judge of these
libels--the words--the meaning--the tendency--read their endorsement
"please read and circulate" in the traverser's handwriting--look at
these pictures!--hear his admission, "I gave them to a man who I thought
would not tell on me." There are twelve or thirteen of them brought
here by him unaccounted for; hear his prevarications in the jail and
elsewhere: and if he is an innocent man, cruelly imprisoned under an
illegal warrant, and these vile, calumniatory libels, are actually this
_innocent_, _persecuted_ gentleman's _property_--_stolen_ from him--then
gentlemen return him his property and let him go free. It is with you,
gentlemen; I ask of you but to do your conscientious duty.
* * * * *
The jury retired, and, after a short deliberation, agreed upon a verdict
of NOT GUILTY. After which they separated, and returned their verdict
into Court the next morning.
Transcriber's Note
Some of the words in this text were verified by referencing the document
"The trial of Reuben Crandall, M.D., charged with publishing seditious
libels, by circulating the publications of the American Anti-Slavery
Society, before the Circuit Court for the District of Columbia, held at
Washington, in April, 1836, occupying the court the period of ten days."
(New-York: H. R. Piercy, 1836)
The following corrections have been made to this text:
Page 6: Removed stray quote marks (If a man in manners)
Page 10: Changed choses to chooses (to every body who chooses)
Page 14: Changed posession to possession (traverser's possession)
Page 18: Added missing end punctuation (Question by Key.)
Page 19: Changed Crrndall's to Crandall's (Dr. Crandall's reply)
Page 23: Changed did'nt to didn't (he didn't know which)
Page 28: Added missing word 'to' (I have to say to them)
Page 29: Added missing quote marks ("I hope I may be excused)
Page 30: Removed stray quote marks (run her hull under.)
Page 31: Changed desarts to deserts (its wide-spread deserts)
Page 31: Removed duplicate word 'as' (so far as he had seen him)
Page 34: Changed did to didn't (didn't know of any with writing)
(Verified by referencing the document mentioned above.)
Page 44: Changed posssession to possession (wrested from the possession)
Page 48: Changed gentlemen's to gentleman's (_persecuted_ gentleman's)
Page 48: Changed Jeffer's to Jeffers' (Jeffers' favorable)
End of the Project Gutenberg EBook of The Trial of Reuben Crandall, M.D.
Charged with Publishing and Circulating Seditious and Incendiary Papers, &c. in the District of Columbia, with the Intent of Exciting Servile Insurrection., by Unknown
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