[From the N. Y. Express.]
SUMMING UP FOR DEFENCE.
Shortly after the opening of the Court, Mr. Ashmead rose and commenced to sum up for the defence. He opened by pointing out the responsibilities of the Jury, stating that should they find a verdict in favor of the prosecution, it would establish a precedent which would strike a serious blow at the liberty of the citizen. He characterized the prosecution as one of the most extraordinary character. In commenting on the experience of the opposing counsel, he said he remembered a comment by a most eminent divine, on the words of Solomon, “I have never seen the righteous forsaken, nor his seed begging their bread,” namely, that what Solomon had not seen he had. He spoke strongly against the fact that the prosecution had originated with the Grand Jury, instead of taking the action before a committing magistrate, having a preliminary examination. Here was a citizen, humble if they pleased, on one side, while on the other was the Mayor of the greatest city in the New World, and these officers of the Grand Jury, forgetting that in this republic all should be treated alike, encroached upon the liberty of this citizen by stepping out of their usual course. Should the jury adopt the precedent of convicting a man under such circumstances, then God help the liberty of the citizen; but the consequences would rest upon the heads of them and their children. [Mr. Ashmead here read extracts from the opinions of eminent Judges, showing that a prisoner had a right to a preliminary examination before the case could go before the Grand Jury.] But this unfortunate man was not so served; he knew nothing of the accusation, nor was he brought face to face with his powerful accusers. Were this man immaculate, he stood, under these circumstances, subject to all the lightning elequence of the opposite side, and was not able to do as was his right, namely, bring an action for damages against his accusers, because the responsibility rested with the public prosecutor.
Mr. Ashmead continued to read from the same book, contending that no indictment should be smuggled into a Grand Jury room as this had been. The Mayor, or the Governor, or His Honor on the Bench had no right to adopt a system denied to the meanest citizen; and in their anxiety to punish crime, they should take care that they did not strike a blow at the liberty of the community, nor should Judicial Legislation take away the rights of the citizen. The Jury should take care that this man was not made a victim through the variation of the Grand Jury from the usual course; but they should follow the example of English Grand Juries, and take care how they struck a blow at Constitutional rights. He next referred to the noble speech of Robert Emmet, before Lord Norbury, who several times attempted to stop the criminal when speaking before he was sentenced. He said: “Though I am to be sacrificed, I insist that all the forms be gone through.” Let the Jury, then do as Emmet did to Lord Norbury—make the Mayor go through the forms. (Here McKeon smiled.) And though the District Attorney should smile at these remarks, this matter was serious, and a laugh and a sneer were not an argument. He referred to the case of the libel of MacIntosh, where, it was asserted, there was on one side a Napoleon, the ruler of the greatest empire in the world, and on the other, as in this case, a poor and obscure citizen; yet in that case a British Jury taught future generations a lesson, and showed an example which an American Jury should endeavor to follow.
Mr. Ashmead next read from the revised statutes, showing that an accused person should have a preliminary examination before being indicted, and contended that a great privilege had been taken from his client, and by this means a blow had been struck at the liberties of the citizen. He alluded to the fact that Mr. Draper had not been before the Grand Jury at all, and yet this poor man had been indicted for a libel on him; this was a proceeding which, if sanctioned by the Jury, would establish a perfect tyranny by breaking down all the safeguards of the law which surrounded the citizen. He insisted that the prosecution had taken away every privilege from this man, and environed him by a wall, so that he could not escape, by getting up this Trinity of indictments. These three indictments were united so that one should support the other. The Recorder had said that Mr. Draper was old enough to take care of himself, but wisdom didn’t come with length of year, and certainly Simeon Draper was not bred in the school of Chesterfield, for he forgot common courtesy by saying the alleged libel was a lie. Mr. Ashmead then commented on the conduct of the prosecution in putting in only one half of the libel in the indictment, and keeping out that part which had a foundation in truth, which he said was a piece with the remainder of these proceedings. Such conduct struck a serious blow at our free institutions, and as Erskine said if such proceedings were to obtain, our halls of justice would be turned into altars, and the poor victim would be immolated at the shrine of persecution.
Mr. Ashmead then proceeded to explain the law of libel, contending that it was necessary that “malice” should be proved, in order to sustain an indictment for libel. He spoke of the law in England, which would not permit the truth to be given in evidence, and contrasted such with the laws of New York, which provided that if an article was published without malice, it was not libellous; for it permitted a reporter to publish the proceedings of a meeting or of a legislative body without holding him liable, provided it was proved that it had been published without malice. The counsel then commented on the remark made by the Recorder relative to his taking no decisions but his own, and that Mr. Ashmead’s points would not be fit for a Kamschatka Court, and proceeded to justify his own course in the matter.
The Recorder remarked that Mr. Ashmead must have forgotten his own observations, he had said that “a certain decision had been made by one of the Judges of this Court” and that caused his Honor to make the remark to which he had alluded.
Mr. Ashmead replied that it had been so ruled in this Court in the case of Coleman vs. Magoon, in 1818. The Counsell then pointed out the fact that Mayor Tiemann had testified that he had been spoken to on this subject nearly a year ago, and wanted to know why he had not then pursued the originator of these stories. This showed clearly that Branch did not originate the alleged libel, and that therefore there was no malice on his part.—He complained that the testimony for the defence had been entirely shut out by objections, and asked why the Mayor did not come in manfully and clear his skirts of these charges, without shielding himself under technicalities. He, however, did not pursue the originator of this story, but when this poor man who considered himself a sentinel upon the watch-tower of this great city, exposed what he considered to be corruption in high places, then the Mayor pounced upon him. Why did not the Mayor go into the civil court, as he could have done, and then this poor man could stand on an equal footing with him, and tell his own story? In God’s name if they wanted a victim let them take him, but they should not condemn him without show of a trial. If a sacrifice was required Mr. Branch was ready to be immolated; but here was an extraordinary fact. Why did not Mayor Tieman bring forward the matron? He had seen her before witnesses. If this thing was done, no one knew it but his Excellency the Mayor, and this lady. No eye but that of the Omniscient One above, saw the act if it had occurred? Why, then, did he not bring this lady here, and then if she swore that it did not occur, there was an end of the matter. But they might ask, why did not he (Counsel) bring the lady? For a very sensible and legal reason, because, if he had brought her into Court, she would become his own witness, and he could not bring evidence to contradict her, whereas, if Mayor Tiemann had put her on the stand, and she had told her statement, then they could have cross-examined her and brought Evans and other witnesses to contradict her. If, therefore, the prosecution had examined her, and other evidence would have been admitted which had been shut out, but by the course the prosecution had pursued half the defence was made non-effective. He admitted that what was acknowledged by the Mayor did not amount to proof, yet it was very extraordinary. The Mayor admitted that there was a friend who visited the lady whom he ordered should not be allowed on the island.—There was no impropriety shown in these visits; he came every Sunday, he behaved himself, and yet he was interdicted. Now there was other matrons there; they had friends, no doubt, and yet this lady was the only one selected for deprivation of her friend’s society. This to say the least of it was very extraordinary. Another thing, the Mayor had lent this lady money, but he lent money to no other matron. Now this was curious, if he was simply friendly to this lady he would not prevent her other friends from coming to see her, or did he give this money to the lady, and give her the money for her torn dress to compensate her for interdicting her friend from visiting the island?
But this was not alone,—Mr. Draper suspended this lady, and the Mayor persuaded her to write an apologetic note, and so she got restored. Now this was a friend indeed a friend he was going to say that “sticketh closer than a brother” (laughter), but he allowed her to have no friend but himself, although one would suppose that a lone woman should be surrounded by friends. Now these little things loomed up curiously, but his honor was not content with being her friend, he was the friend of her boy? He said it was his duty to procure situations for boys; yes, certainly; but this boy was not then in New York at all—he was in the far West, and not under the control of the Alms House Governors at all. He had been sent safely away from the temptations of this great Metropolis: and yet the Mayor brought him back, and provided for him—proving himself the friend of the boy’s mother in every way, except that of letting her other friend come on the island. The Mayor was willing to lend her money, to get her boy a situation, to get her friend, Waters, a situation, and to do everything for her except to allow her friend to see her. He did not say that this proved anything against Mayor Tiemann; he was an honorable and upright man, as far as Counsel knew; but these little circumstances looked suspicious, and it was curious that the Mayor had shut out the rest of the testimony. The whole case however showed that Mr. Branch had not fabricated these stories, and certainly did not publish them with malice; and therefore he ought to be acquitted. Mr. Ashmead then referred to an extraordinary conversation between Justice Buller and Mr. Erskine, in a libel case, where the Jury returned a verdict of “guilty of publishing ONLY” the Judge wanted the word only left out, and Mr. Erskine defended the verdict, notwithstanding that the Judge threatened to proceed in another manner. Erskine replied that he knew his duty as an advocate, as well as His Lordship knew his as a Judge.
Mr. Ashmead then submitted several points,—upon which he argued,—namely: That if the libel was published with an honest motive, then the defendant was guiltless: that the Jury, in Libel cases were judges of the law as well as of the fact, they having the right and the sole right to determine what was and what was not a libel, and this was the law in England and Ireland, also. He contended that according to the Mayor’s testimony the base of the libel was true, and if so, he begged and pleaded that the Jury would not, for the sake of truth, for the sake of an innocent man, for the sake of a newspaper publisher, who did not fabricate what he wrote, for the sake of the liberty of the press, immolate this humble citizen. But, he concluded, if Branch must be immolated, he had only to say in the words of that immortal Irishman Curran:—
“If it be determined that because this man would not bow to power and authority, because he would not bow down to the golden calf and worship it, he should be cast in the fiery furnace, I do trust in God that there is a redeeming spirit in the constitution which will go with the sufferer through the flames and preserve him unhurt by the conflagration.”