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