Читать книгу The Trial of Reuben Crandall, M.D. - Unknown - Страница 2

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

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.