Chapter III: Part 3

_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.

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