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two powers cannot be supreme over each other. This meaning is entirely perverted by the gentlemen. But, it is said, disputes between collectors are to be referred to the federal courts. This is again wandering in the field of conjecture. But suppose the fact certain; is it not to be presumed that they will express the true meaning of the constitution and the laws? Will they not be bound to consider ths concurrent jurisdiction-to declare that both the taxes shall have equal operation-that both the powers, in that respect, are sovereign and co-extensive? If they transgress their duty we are to hope that they will be punished. Sir, we can reason from probabilities alone. When we leave common sense and give ourselves up to conjecture, there can be no certainty, no security in our reasonings.

I imagine I have stated to the committee abundant reasons to prove the entire safety of the State governments and of the people. I would go into a more minute consideration of the nature of the concurrent jurisdiction and the operation of the laws in relation to revenue, but at present I feel too much indisposed to proceed. I shall, with the leave of the committee, improve another opportunity of expressing to them more fully my ideas on this point. I wish the committee to remember that the constitution under examination is framed upon truly republican principles, and that, as it is expressly designed to provide for the common protection and the general welfare of the United States, it must be utterly repugnant to this constitution to subvert the State governments or oppress the people.

SPEECH IN THE CASE OF HARRY CROSWELL.

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tined to it by the spirit and letter of our law. It is important on account of the influence it must have on the rights of our citizens. Viewing it, therefore, in these lights, I hope I shall, in the arduous attempt, be supported by its importance, and if any doubt hangs on the mind of the court, I shall, I trust, be able to satisfy them that a new trial ought to be had.

The question branches itself into two divisions. The first as to the truth-whether, under a general issue of not guilty, it ought to be given in evidence. The other, as to the power of the court-whether it has a right, exclusively, over the intent, or whether that and the law do not constitute one complicated fact, for the cognizance of the jury, under the direction of the judge. The last, I trust, can be made to appear, on the principles of our jurisprudence, as plainly as it is possible to evince any thing to a court; and that in fact, there are no precedents which embrace the doctrines of the other side, or rather that they are so diverse and contrarient that nothing can arise from them to make an application to this case.

MAY IT PLEASE THE COURT: In rising to address your honors at so late a period of the day, and after your attention has been so much fatigued, and the cause has been so ably handled, I may say, so exhausted, I feel a degree of embarrassment which it is with difficulty I can surmount. I fear lest it should not be possible for me to interest the attention of the court on the subject on which I have to speak. Nevertheless, I have a duty to perform, of which I cannot acquit myself, but by its execution. I have, however, this consolation, that, though I may fail in the attempt, I shall be justified by the importance of the question. I feel that it is of the utmost magnitude; of the highest importance viewed in every light. First, as it regards the character of the head of our nation; for, if indeed the truth can be given in evidence, and that truth can, as stated in the indictment, be established, it will be a serious truth, the effect of which it will be impossible to foresee. It is important also as it regards the boundaries of power between the constitu-lated to destroy. ent parts of our constitutional tribunals, to The liberty of the press consists, in my idea, which we are, for the law and the fact, to re-in publishing the truth, from good motives and sort our judges and our juries. It is important, as it regards settling the right principles that may be applied to the case, in giving to either the one or the other the authority des

See note at page 205.

After these preliminary observations, and before I advance to the full discussion of this question, it may be necessary for the safety and accuracy of investigation, a little to define what this liberty of the press is, for which we contend, and which the present doctrines of those opposed to us, are, in our opinions, calcu

for justifiable ends, though it reflect on government, on magistrates, or individuals. If it be not allowed, it excludes the privilege of canvassing men, and our rulers. It is in vain to say, you may canvass measures. This is impossible without the right of looking to men.

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side, than myself; but I must forget what human nature is, and what her history has taught us, that permanent bodies may be so corrupted, before I can venture to assert that it cannot be. As then it may be, I do not think it safe thus to compromit our independence. For though, as individuals, they may be interested in the general welfare, yet, if once they enter into the views of government, their power may be converted into the engine of oppression. It is in vain to say that allowing them this exclusive right to declare the law, on what the jury has found, can work no ill; for, by this privilege, they can assume and modify the fact, so as to make the most innocent publication libellous. It is therefore not a security to say, that this exclusive power will but follow the law. It must be with the jury to decide on the intent; they must in certain cases be permitted to judge of the law, and pronounce on the combined matter of law and of fact. Passages have been adduced from Lord Mansfield's declarations to show that judges cannot be under the influence of an administration. Yet still it would be contrary to our own experience, to say that they could not. I do not think that even as to our

To say that measures can be discussed, and that there shall be no bearing on those who are the authors of those measures, cannot be done. The very end and reason of discussion would be destroyed. Of what consequence to show its object? Why is it to be thus demonstrated, if not to show, too, who is the author? It is essential to say, not only that the measure is bad and deleterious, but to hold up to the people who is the author, that, in this our free and elective government, he may be removed from the seat of power. If this be not to be done, then in vain will the voice of the people be raised against the inroads of tyranny. For, let a party but get into power, they may go on from step to step, and, in spite of canvassing their measures, fix themselves firmly in their seats, especially as they are never to be reproached for what they have done. This abtract mode, in practice can never be carried into effect. But, if under the qualifications I have mentioned, the power be allowed, the liberty, for which I contend, will operate as a salutary check. In speaking thus for the freedom of the press, I do not say there ought to be an unbridled license; or that the characters of men who are good, will naturally tend eter-own country it may not be. There are always nally to support themselves. I do not stand here to say that no shackles are to be laid on this license.

I consider this spirit of abuse and calumny as the pest of society. I know the best of men are not exempt from the attacks of slander. Though it pleased God to bless us with the first of characters, and though it has pleased God to take him from us, and this band of calumniators, I say, that falsehood eternally repeated would have affected even his name. Drops of water, in long and continued succession, will wear out adamant. This, therefore, cannot be endured. It would be to put the best and the worst on the same level.

motives and reasons that may be held up. It is therefore still more necessary, here, to mingle this power, than in England. The person who appoints there, is hereditary. That person cannot alone attack the judiciary; he must be united with the two Houses of Lords and of Commons, in assailing the judges. But, with us, it is the vibration of party. As one side or the other prevails, so of that class and temperament will be the judges of their nomination. Ask any man, however ignorant of principles of government, who constitute the judicial? he will tell you the favorites of those at the head of affairs. According then to the theory of this, our free government, the indeI contend for the liberty of publishing truth, pendence of our judges is not so well secured with good motives and for justifiable ends, even as in England. We have here reasons for apthough it reflect on government, magistrates or prehension not applicable to them. We are private persons. I contend for it under the re- not, however, to be now influenced by the prestraint of our tribunals. When this is exceed-ference to one side or the other. But of which ed, let them interpose and punish. From this will follow none of those consequences so ably depicted. When, however, we do look at consequences, let me ask whether it is right that a permanent body of men, appointed by the executive, and, in some degree, always connected with it, should exclusively have the power of deciding on what shall constitute a libel on our rulers, or that they shall share it, united with a changeable body of men, chosen by the people? Let our juries still be selected, as they now are, by lot. But it cannot be denied, that every permanent body of men is, more or less, liable to be influenced by the spirit of the exista depraved mind, and wicked and diabolical disposition; and ing administration; that such a body may be also deceitfully, wickedly, and maliciously devising, conliable to corruption, and that they may be in- triving, and intending Thomas Jefferson, Esq., President of clined to lean over towards party modes. No the United States of America, to detract from, scandalize, man can think more highly of our judges, and traduce, vilify, and to represent him, the said Thomas JefI may say personally so of those who now pre-ferson, as unworthy of the confidence, respect, and attach

side soever a man may be, it interests all, to have the question settled, and to uphold the power of the jury, consistently however with liberty, and also with legal and judicial prinples, fairly and rightly understood. None of these impair that for which we contend-the right of publishing the truth, from good motives and justifiable ends, though it reflect on government, on magistrates, or individuals.*

well, late of the city of Hudson, in the county of Columbia, *The indictment in this case charged that Harry CrosNew York, printer, being a malicious and seditious man, of

Blackstone and Hawkins declare that it is any malicious defamation, with an intent to blacken the reputation of any one, dead or alive.

Some observations have, however, been made well-deserved eulogy, says that he has never in opposition to these principles. It is said, yet been able to form a satisfactory definition. that as no man rises at once high into office, | All essays made towards it, are neither accuevery opportunity of canvassing his qualities rate nor satisfactory; yet, such as they are, I and qualifications is afforded, without recourse shall cite them and animadvert. to the press; that his first election ought to stamp the seal of merit on his name. This, however, is to forget how often the hypocrite goes from stage to stage of public fame, under false array, and how often, when men attain the last object of their wishes, they change from that which they seemed to be; that men, the most zealous reverers of the people's rights, have, when placed on the highest seat of pow-mitted that the word falsity, when the proer, become their most deadly oppressors. It becomes, therefore, necessary to observe the actual conduct of those who are thus raised up.

I have already shown, that though libelling shall continue to be a crime, it ought to be so only when under a restraint, in which the court and the jury shall co-operate. What is a libel that it should be otherwise? Why take it out of the rule that allows, in all criminal cases, when the issue is general, the jury to determine on the whole? What is then a libel to induce this? That great and venerable man, Lord Cambden, already cited with so much

ment of the people of the said United States, and to alienate and withdraw from the said Thomas Jefferson, Esq., President as aforesaid, the obedience, fidelity, and allegiance of the citizens of the State of New York, and also of the said United States; and wickedly and seditiously to disturb the peace and tranquillity, as well of the people of the State of New York, as of the United States; and also to bring the said Thomas Jefferson, Esq. (as much as in nim, the said grace, not only with the people of the State of New York,

Harry Croswell, lay), into great hatred, contempt, and dis

The criminal quality is its maliciousness. The next ingredient is, that it shall have an intent to defame. I ask, then, if the intent be not the very essence of the crime? It is adceedings are on the statute, must be proved to the jury, because it makes the offence. Why not then the malice, when, to constitute the crime, it must necessarily be implied? In reason there can be no difference.

A libel is, then, a complicated matter of fact and law, with certain things and circumstances to give them a character. If so, then the malice is to be proved. The tendency to provoke is its constituent. Must it not be shown how and in what manner? If this is not to be the case, must every one who does not panegyrize be said to be a libeller? Unless the court are disposed to go that extreme length, it is necessary that the malice and intent must be proved. To this, it is certain the definition of Lord Coke may, in some degree, be opposed. He does seem to superadd "the breach of the peace." Lord Coke, however, does not give this as a specific definition; and even then the defamatory writing, which he particularizes, includes the question both of intent and malice. The breach of the peace, therefore, is not made the sole, but only one of the qualities. The question is not on the breaking of the peace, but depends on time, manner and circumstances, which must ever be questions of fact for jury determination. I do not advocate breaking the peace: observations may be made on public men, which are calculated merely to excite the attention of the community to them; to make the people exercise their own functions, which may have no tendency to a breach of the peace, but only to inspection. For surely a man may go far in the way of reflecting on public characters, without the least design of exciting tumult. He may only have it in view, to rouse the nation to vigilance and a due exertion of their right to change their rulers. This, then, being a mere matter of opinion, can it be not a matter for them to judge of, to whom it is addressed? The court, to be sure, may, like a jury, and in Adams, Esq., late President of the United States, a hoary-moral discernment to determine on this; yet common with them, have the legal power and headed incendiary, and for most grossly slandering the pri

and the said people of the United States of America, but also

with the citizens and subjects of other nations; and for that purpose the said Harry Croswell did, on the ninth of September, in the year of our Lord 1802, with force and arms, at the said city of Hudson, in the said county of Columbia, wickedly, maliciously, and seditiously print and publish, and cause and procure to be printed and published, a certain scandalous, malicious, and seditious libel, in a certain paper or publication entitled The Wasp; containing therein, among other things, certain scandalous, malicious, inflammatory, and seditious matters of and concerning the said Thomas Jefferson, Esq., then and yet being President of the United States of America; that is to say, in one part thereof according to the tenor and effect following, that is to say Jefferson (the said Thomas Jefferson, Esq., meaning) paid Callender (meaning one James Thompson Callender) for calling Washington (meaning George Washington, Esq., deceased, late President of the United States), a traitor, a rob

ber, and a perjurer; for calling Adams, meaning John

vate characters of men who he (meaning the said Thomas Jefferson) well knew to be virtuous, to the great scandal and Infamy of the said Thomas Jefferson, Esq., in contempt of the people of the State of New York, in open violation of

the laws of the said State, to the evil example of all others in like case offending, and against the peace of the people of the State of New York, and their dignity.

it does not arise out of the writing, but by adverting to the state of things and circumstances. It, therefore, answers no purpose to say it has a tendency to a breach of the peace.

Lord Loughborough, in the Parl. Chron. 644, 657, instances that passages from holy writ may be turned into libels.

Lord Thurlow admits that this may happen, and that time and circumstances may enter into the question. He, it is true, sanctioned the doctrines of our opponents, but allowed time and circumstances to be ingredients; and, strange to say, though these are extrinsic to the record, was of opinion for the old law. Lord Thurlow says, however, that it might be something more than a bare libel. Intimating here, that it may be even treason; and is it not, then, to confess that intent is a matter of fact? If so, who, or where shall be the forum but the jury?

My definition of a libel is, and I give it with all diffidence after the words of Lord Cambden, my definition, then, is this: I would call it a slanderous or ridiculous writing, picture or sign, with a malicious or mischievous design or intent, towards government, magistrates, or individuals. If this definition does not embrace all that may be so called, does it not cover enough for every beneficial purpose of justice? If it have a good intent, it ought not to be a libel, for it then is an innocent transaction; and it ought to have this intent, against which the jury have, in their discretion, to pronounce. It shows itself to us as a sentence of fact. Crime is a matter of fact by the code of our jurisprudence. In my opinion, every specific case is a matter of fact, for the law gives the definition. It is some act in violation of law. When we come to investigate, every crime includes an intent. Murder consists in killing a man with malice prepense. Manslaughter, in doing it without malice, and at the moment of an impulse of passion. Killing may even be justifiable, if not praiseworthy, as in defence of chastity about to be violated. In these cases the crime is defined, and the intent is always the necessary ingredient. The crime is matter of law, as far as definition is concerned; fact, as far as we are to determine its existence.

But it is said the judges have the right, on this fact, to infer the criminal intent, that being matter of law. This is true; but what do we mean by these words, unless the act dependent on, and united with its accessaries, such as the law has defined, and which when proved, constitute the crime? But whether the jury are to find it so, with all its qualities, is said to be a question; no act, separate from circumstances, can be criminal, for without these qualities it is not a crime. Thus, as I have before instanced, murder is characterized by being with malice prepense; manslaughter, by being involuntary; justifiable homicide, by having some excuse. Killing, therefore, is not a crime; but it becomes so in consequence of the circumstances annexed. In cases that are, in the general opinion of mankind, exceptions to the explanations I have given, the law contemplates the intent. In duelling, the malice is supposed, from the deliberate acts of reflecting, sending a challenge, and appointing the time and place of meeting. Here, it is true,

the law implies the intent; but then let it be remembered that it is in consequence of its having previously defined the act. and forbidden its commission. This too is on the principle of natural justice, that no man shall be the avenger of his own wrongs, especially by a deed, alike interdicted by the laws of God and of man. That, therefore, the intent shall in this case constitute the crime, is because the law has declared it shall be so. It is impossible to separate a crime from the intent. I call on those opposed to us to say what is a libel. To be sure they have told us that it is any scandalous publication, &c. which has a tendency to a breach of the peace. This, indeed, is a broad definition, which must, for the purposes of safety, be reduced to a positive fact, with a criminal intent. In this there is no violation of law; it is a settled maxim, that mens facit reum; aon reus, nisi sit mens rea. When a man breaks into a house it is the intent that makes him a felon. It must be proved to the jury that it was his intention to steal: they are the judges of whether the intent was such, or whether it was innocent. Then so, I say, should it be here; let the jury determine, as they have the right to do, in all other cases, on the complicated circumstances of fact and intent. It may, as a general and universal rule, be asserted that the intention is never excluded in the consideration of the crime. The only case resorted to, and which is relied on by the opposite side, (for all the others are built upon it,) to show a contrary doctrine, was a starchamber decision. To prove how plainly the intent goes to the constituting the crime of libel, the authority cited by the counsel associated with me, is fully in point. In that, the letter written to the father, though (as far as words were concerned) perfectly a libel, yet having been written for the purpose of reformation, and not with an intent to injure, was held not to amount to a libel. Suppose persons were suspected of forging public papers, and this communicated by letter to the Secretary of State, with a good design; still, if the doctrines contended for were to prevail, it would be libellous and punishable, though the party not only did it with the best of motives, but actually saved the State. In madness and idiocy, crimes may be perpetrated; nay, the same malicious intent may exist, but the crime does not. These things tend to show that the criminality of an act is a matter of fact and law combined, and on which it cannot belong to the exclusive jurisdiction of the court to decide the intent; for the question is for ever a question of fact.

The criminal intent, says Lord Mansfield, in the dean of St. Asaph's case, is what makes the crime.

Here that truly great man-for great he was, and no one more really estimates him than I do, yet he might have some biases on his mind not extremely favorable to liberty-here, then, he seems to favor the doctrine contended for;

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the constitution of libel, cannot be disputed, and must be inquired of by some body. Now, unless this is to be tried by the jury, by whom is it to be determined? Will any man say, that in the case in the star chamber, respecting the letter written to the child's father, the intent was not the reason why it was held inno cent, and the quo animo not gone into? Did they not then endeavor to prove the guilt by the intent? Now, if you are to show things malicious aliunde, you may defend by the same means. The mens is the question, and in common parlance it is that to which we resort to show guilt. 11 Mod. the Queen vs. Brown will explain how it is to be found. Nay, in this very case, when the counsel for the defendant objected to the attorney general's reading pas

but he will be found to be at times contradic- | fact for the jury. That the quo animo affects tory, nay, even opposed to himself. "A criminal intent in doing a thing in itself criminal, without a lawful excuse, is an inference of law." How can that be in itself criminal which admits of a lawful excuse? Homicide is not in itself a crime, therefore it is not correct to say a criminal intent can be inferred, because a lawful excuse may be set up. A thing cannot be criminal which has a lawful excuse, but as it may have a certain quality which constitutes the crime. To be sure, you may go on to say that where the intent bestows the character of criminality on an act indifferent, then it is a matter of fact, and not where the act is bad in itself. But this is begging the question. We contend that no act is criminal, abstracted and divested of its intent. Trespass is not in itself innocent. No man has a right to enter anoth-sages from the prospectus of the Wasp, and er's land or house. Yet it becomes in this latter case felony only in one point of view, and whether it shall be holden in that point is a subject of jury determination. Suppose a man should enter the apartments of the king; this, in itself, is harmless, but if he do it with an intent to assassinate, it is treason. To whom must this be made to appear in order to induce conviction? to the jury. Let it rather be said that crime depends on intent, and intent is one parcel of the fact. Unless, therefore, it can be shown that there is some specific character of libel that will apply in all cases, intent, tendency, and quality must all be matters of fact for a jury. There is, therefore, nothing which can be libel, independent of circumstances; nothing which can be so called in opposition to time and circumstances. Lord Loughborough, indeed, in the parliamentary debates on this very subject, to which I have referred the court, admits this to be the case. Lord Mansfield, embarrassed with the truth and strength of the doctrine, endeavors to contrast meaning with intent. He says that the truth may be given in evidence to show the meaning, but not the intent. If this can be done to show the application where the person is imperfectly described, why not to prove the intent, without which the crime cannot be committed? Whatever is done collaterally must show this, and in all cases collateral facts are for the jury. The intent here has been likened to the construction of a deed, or any written instrument, in all of which the intent is for the court. But the comparison will not hold; for even there the intent may be inquired of aliunde. When you go to quality and explain, what is this but to decide on the intent by matters of fact? Lord Mansfield is driven into this contradiction when, on one occasion, he says it is a matter on which the jury may exercise their judgment, and in another, that it is not. I am free to confess, that in difficult cases, it is the duty of a jury to hearken to the directions of a judge with very great deference. But if the meaning must be either on the face of the libel or from any thing aliunde, then it must be a matter of

from other numbers, he expressly avowed that he thus acted in order that the jury might see it to be "manifest that the intent of the defendant was malicious." This, I here observe, is a mistake that law officers would not be very apt to slide into. Yet, on this very intent, this malicious intent thus proved to the jury, and on which they founded their verdict, is the court now asked to proceed to judgment. To demonstrate how fully this matter of intent is by our law a subject of jury determination, suppose the grand jury had, in the present case, returned to the bill ignoramus; on what would they have founded their return? Is not this, then, a precedent that the quo animo is for a jury? If it be necessary only to find the publication, why is not the grand jury competent for the whole? For if the supposition is that the grand jury may decide on the finding of the bill, surely the petit jury may acquit. If so, then is the case I have mentioned an important precedent. In Rex vs. Horne, an authority that has been justly urged, the principle is allowed. It appears there that the jury are to exercise their judgment from the nature of the act, what is its intent. Into a confession of this is Lord Mansfield himself driven. Regina vs. Fuller, we are told from the other side, was a case on the statute for scandalum magnatum. Of this, however, I can find no trace in the books, and there Lord Holt repeatedly interrogated as to the truth, would have allowed it to be given in evidence, and directed the jury that, if they did not believe the allegations false, they were not to find the defendant guilty. This, then, is a decision, as we contend, that not only the intent, but the truth is important to constitute the crime, and nothing has been shown against it. Nay, Lord Holt goes on still further; he bids the jury consider whether the papers have not a tendency to beget sedition, riot, and disturbance. Surely this authority of that great man demonstrates that intent and tendency are matters of fact for a jury. This argument will be further strengthened when I enumerate those cases where truth has been permitted to be shown. But before I

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