So, in October, 1797, the fever being at its worst, Dr. Rush makes the following communication to the Philadelphia Gazette:—
“Mr. Brown,—Having brought actions against John Fenno, junior, and William Cobbett, for their publications against me in their papers, I request you not to insert anything in your paper which may be offered, in answer to those publications, or in defence of my character.
“Benj. Rush.”
Well, this was “libel,” certainly. A man who was compelled to ask his friends to desist from repartee must be suffering either in his sensibilities or in his income; and whatever justification there may have been, it is always held that a charge of libel can be entertained in such cases.
The suit against Fenno was never heard of more. Mr. Fenno was an American, although a political opponent. Not so, however, with Peter Porcupine’s case; for there were others behind Dr. Rush who wanted some old scores paid off. But the trial was put off from time to time, until two years had elapsed.
“At last, on the 13th December, 1799, it was resolved to bring it to an issue. The moment I saw the jury-list, ‘Ah,’ said I to a friend that happened to be with me, ‘the action of Rush is to be tried this time.’—We looked over the list again and again, and, after the most mature consideration, we could find but seven men out of the forty-eight whom we thought fit to be trusted on the trial; but, as I had the power of rejecting no more than twelve, there were left, of course, twenty-nine whom I disapproved of; and, as every one of these seven was struck off by Rush, there remained not a single man on the jury in whose integrity I had the slightest confidence.”
Meanwhile, Peter Porcupine had been for some time considering a plan for removal from Philadelphia. The Chief Justice M’Kean was a candidate for governorship of the State, and Cobbett openly stated his determination not to remain, in the case of his election, any longer a resident of Pennsylvania. The event proved that the Democratic element was the stronger, for M’Kean was elected by a small majority over his Federal opponent. Accordingly, Porcupine’s Gazette having been discontinued at the end of October, Mr. Cobbett made preparations for transferring his business to New York. It would almost appear that advantage was wilfully taken of his temporary absence from Philadelphia to bring the cause to an issue; “it was known that my books, furniture, &c., &c., were already sent off to New York, but I remained in the neighbourhood of the city (where I was seen every day) in order to be present at the trial, if it should come on. On the 7th of December there was no prospect of the cause being brought to trial; on the 8th, therefore, I came off for New York, where my affairs required my presence. On the 11th, my correspondent wrote me that the cause was put off to another court; but the very next day it was all at once resolved to bring it to trial immediately.” He attributes this sudden decision to the advertisement in the newspapers, signifying his arrival in New York, and his resolution not to revive his Gazette.
Mr. Cobbett’s leading counsel was Edward Tilghman, a gentleman who had acquired distinction at the bar, and whose name is still remembered with honour. He had been recently a candidate for representing the state in Congress, but was beaten by John Swanwick, Democrat. Mr. Tilghman took up Cobbett’s side con amore; but there is no record of his speech.[8] Claypoole’s Advertiser goes so far as to say that “the pleadings on both sides were lengthy, ingenious, and eloquent,” but does not reproduce them. Mr. Harper, however, another counsel for the defendant, is stated by Brown’s Gazette to have spoken as though he had a bad cause in hand, and “appeared resolved not to defend it at the sacrifice of his honour and character as a gentleman.” The judge’s summing-up has not, likewise, gone into oblivion; for Mr. Cobbett took pains to preserve it, and it appears among his reprinted American publications.
The judge (Shippen) dwelt strongly upon the imputation of personal malice, which had been advanced by the prosecution, and urged that no attempt had ever been made to combat the doctor’s arguments with regard to the system he had pursued with his fever-patients. To call the plaintiff a quack and an empiric—to charge him with intemperate bleeding, and the injudicious administration of mercurial purgatives, and with “puffing himself off,” besides calling him the Samson of medicine, for he had “slain his thousands”—was slander, and a pernicious abuse of the liberty of the press. He concluded with reminding the jury that offences of this kind had, for some time past, too much abounded in the city, and it was high time to restrain them; and, to suppress so great an evil, it would not only be proper to give compensatory, but exemplary damages! Which the jury did, to the tune of five thousand dollars, and to the dismay of the defendant.