The Trial of Reuben Crandall, M.D. / Charged with Publishing and Circulating Seditious and Incendiary Papers, &c. in the District of Columbia, with the Intent of Exciting Servile Insurrection. Carefully Reported, and Compiled from the Written Statements of the Court and the Counsel.

by Unknown

some three or four of them were endorsed with the words "read this and circulate," in the handwriting of the traverser, and this was evidence of malice in the publication of the pamphlet charged in the first count, and of which evidence of the publication has been offered to the jury. But this pamphlet last spoken of had also the same words written on it: whatever evidence of malice may be inferred from these words, is furnished by the said pamphlet itself, and therefore it is not necessary to resort to other sources for such evidence. It is true that a multiplication of the same inscriptions on other pamphlets may, and do, manifest greater zeal, and more intense interest in the subject matter of the writings, and indicate an intention on the part of the writer of such inscriptions to publish them. The malice which the law denounces is in the publication, not in the writing or composition: a man may express his thoughts or opinions in writing with impunity, and is as innocent in the eye of the law (provided he keeps such writings or compositions locked up from the public eye) as if they were locked up in his own mind. Is not an indication or manifestation of an intention to publish certain writings or printed compositions, and the withholding the execution of such intention as strong evidence of change of purpose from fear of the consequences or for other reasons, as of malice in the publication of one of them in the way, and under the circumstances, in which the one charged to have been published in the first count was published? It is very clear, it seems to me, that if there were no other evidence of any other publication of any of the pamphlets in question, than the inscription on the corner "read this and circulate," that the indictment could not be sustained, because such inscriptions, if the pamphlets are never shown to any other person, is in the eye of the law harmless. If, then, we are asked to admit such inscriptions or pamphlets never shown to, or seen by any other person within this District, because there is evidence that one such pamphlet was permitted to be seen and partly read by another, must we not look at the evidence which proves such exhibition of such pamphlets, and connect that with such inscriptions on other pamphlets not published, to see how far such inscriptions go to fortify and strengthen the evidence of malice as to the published pamphlets? In other words, to see what legal inferences of additional evidence such inscriptions afford? If this were a case of ordinary importance, I should say without much hesitation, that they afford no such inferences. It is for the jury to draw inferences of guilt or malice from circumstances; they are fully competent to do so in the present case from the evidence now before them; but it is often and almost always a nice point for a court to instruct a jury from what circumstances or facts inferences of guilt or malice may be drawn. It is saying, Gentlemen of the jury, such and such a circumstance, if proved to your satisfaction, is evidence from which you may and ought to find against the traverser. It satisfies our minds and ought to satisfy yours. But juries ought and will judge for themselves in criminal cases; and I have always thought it a delicate matter in criminal cases, to give such instructions to juries. Here we are not asked to give an instruction; but we are asked to permit evidence to go the jury, which, if allowed, carries with it the opinion of the court that such evidence affords inference of malice. I must see such inference pretty clear myself, before I give my sanction to the jury to draw such inference themselves. It is true the law denounces any published writing having

a tendency to produce a breach of peace, or insurrection, or to jeopardize the general rights of property, whether the intent of the writer was wicked or innocent, as libellous. The writing itself being of a libellous character, is of itself evidence of malice in the publication, and it would be no excuse for the publisher to say, I meant no harm, I thought I was doing good. In the eye of the law he is as guilty as if this intention was really wicked. This is called implied malice, in the absence of any other proof of malice than what is offered by the internal evidence of the writing itself. Now the object of the motion to lay before the jury other libellous papers, can be for no other purpose than to prove express malice; for the published libel charged in the first count, if it contain libellous matter, and was published, is of itself, sufficient proof of implied malice, and if it be not libellous, no other libellous writing can be introduced to make it so. Then, if it be libellous itself, it implies malice; and if other similar writings be introduced to prove malice, what does it amount to but proving the implied malice of one libel by the implied malice of other libels? Or, if it be said that some evidence of express malice has been laid before the jury, can you make this evidence more strong or clear by evidence of implied malice, contained in other similar writings not published? Upon the whole, I do not distinctly see, under all the circumstances of this case, how the unpublished writings can be admitted to prove the implied malice to be gathered from them if they had been published, the implied malice in the libel charged and allowed to have been published, or how such evidence of implied malice in them, can be brought to prove express malice in the publication of the charged libel in the first count. I am against the motion.

Mr. Key, for the United States, then offered to prove the publication by the defendant of the libels stated in the first, second, and third counts, by proving the following facts, viz: that a large collection of libels, and among them several copies of those charged in those counts, with the words "read and circulate" in his handwriting, were found upon the traverser—that he undertook to account for their being in his possession, and gave untrue and contradictory accounts—that he acknowledged that he had brought here those then shown to him, being the same now in court, and that they comprehended all he brought here, except about a dozen; and that prior to the traverser's arrest sundry similar publications had been privately sent to various persons in this District by some unknown person or persons in this District.

After arguments which occupied nearly the whole of Saturday, in which the counsel on both sides displayed great learning and ingenuity,

The Court delivered the opinion that the Attorney for the United States may give evidence of the publication, in this District, of any copies of the libels charged in the first and second counts of the indictment. That if he shall have given any evidence tending to show such a publication here, he will be permitted to show that other copies of the same libels were found in the possession of the defendant. He may then give evidence that a certain number of papers or pamphlets were found in the possession of the defendant, together with the copies of the libels charged, and of the publication of which in this District, he shall have given evidence; but he will not be permitted to give in evidence to the jury the contents of any of the papers other than those charged as libels in this indictment, unless such other papers have relation

to the libels charged in the indictment, and would not in themselves be substantive ground of prosecution. He may then give evidence to the jury of any confessions or acknowledgments made by the defendant in relation to any of the matters charged in the indictment.

The District Attorney then put in evidence as follows, to show that the prisoner had many similar libels in his possession, and that others were distributed throughout the District.

H. B. Robertson, constable, deposed that he found some tracts on Dr. Crandall's table at his office in Georgetown. Don't recollect how many. There were also a number of them at his lodgings, in a trunk. He denied to me that he had distributed any, but did not conceal or deny that he was in possession of them. He mentioned that he was formerly a subscriber to the Emancipator, but they had stopped it, and he had taken them in its place. They were sent to him from New York, and came in a box by water, and not by mail. Witness collected and brought them to the jail, tied up in a handkerchief. Being fearful of some trouble when he got into the hack, he proposed to Mr. Jeffers to take Crandall to the jail through the back streets, and keep him there during the night, for fear he might be wrested from us and lynched. It was Dr. Crandall's desire to be taken out of the way of the people, and be carried to the jail. Before they left the office a crowd had collected, and they made an effort to get off as quick as possible, being very apprehensive that Dr. Crandall would suffer some harsh treatment, and serious injury from them. The event verified his expectations, for he found afterwards that the carriage was waited for somewhere on the avenue, where it was expected to pass, by a numerous and excited collection of people.

Cross examined.—Conversed with Dr. Crandall at his office and on the way to the jail. Went to his lodgings, and found Emancipators there. Did not offer to carry him before a magistrate in Georgetown. Told Dr. Crandall what my apprehensions were for his personal safety, and of being waylaid, and proposed that he should stay at the jail that night. He attempted no concealment, and gave witness free leave to search his papers, &c. Witness found Boston, New York, and Baltimore newspapers, and a great many Telegraphs. Dr. Crandall opened the trunk himself and showed the tracts. Don't remember whether they were loose, or tied together and enveloped. Those were the pamphlets now in court. Don't recollect whether the letters were brought away. There were many plants in the office. Don't know what they were put up in. Think it was pasteboard, or something like it. Asked him if he was Dr. Crandall, to which he replied yes. Then told him that he was charged with being an abolition agent and exhibited the warrant for his arrest. He did not then say any thing about the tracts in his possession, but when they were found he stated they were sent to him from New York, instead of the Emancipator, to which he had formerly been a subscriber. He did remark that he had not distributed any tracts of the kind.

Question by Key. Which of the pamphlets did you find at the office, and which at the house?