ON Wednesday, the 9th of April 1800, Mr. Cooper was informed by Mr. Hall the Marshal of the Court, that a writ was issued against him for a libel. Mr. Hall wished to know when it would be convenient for Mr. Cooper to attend at judge Peters's on the occasion, and the next morning at 10 o'clock was fixed for that purpose. On attending there, judge Peters shewed Mr. Cooper a paper, of which the following is a copy: The publication of it appeared to be attested by John Buyers, Esq. of Sunbury in Pennsylvania^*.

Mr. Cooper gave bail for his appearance at the ensuing court, himself in 1000 dollars, and Israel Israel, esq. in the like sum.

On the second day of the court (Saturday) the grand jury found the fol­lowing bill of indictment (presented ex officio by William Rawle, esq. the United States' attorney for the district of Pennsylvania) a true bill.

CIRCUIT COURT of the United States for the Pennsylvania district, April term, 1800.

To this bill of indictment Mr. Cooper put in the plea of not guilty, and also pleaded the truth of the facts in justification. He directed subpoenas to be issued for the President of the United States, for Timothy Pickering Esqr. Jacob Wagner, (a clerk in Timothy Pickering's office,) and John Davenport Esqr. Member of Congress. Previous to directing the Sub­poenas', he stated to the court, that he understood it had been customary, and was considered as a proper practice to prevent any question arising on the subject of privilege, that when a member of the Legislature was intend­ed to be subpoenaed during session, for the court from whence the sub­poena issued, to write to the Speaker of the House requesting that the House would permit the process to be served. If that were the practice, Mr. Cooper begged the court would be pleased to conform to it in the present instance on his behalf.

I know of no such practice and no such privilege. I do not know that any such privilege is given by the Constitution, and if it be [Page 9] not given there, I cannot give it. I do not like setting precedents of this nature. The court will do its duty, and direct process to be issued upon any man whatever his situation may be, if the law does not exempt him from it: I shall certainly write no such letter.

I believe Sir, the practice has been to apply in that man­ner. I believe the Judges of the supreme court of this state after delibera­tion, determined on the expediency of proceeding in that way to avoid gi­ving occasion for any dispute on the subject.

When I was the Speaker of a single Legislature, I have had letters of that kind addressed to me for a similar purpose.

I beg leave to suggest to the court, that the practice of wri­ting to the Speaker in such a case was adopted to avoid the difficulty that might arise from the clashing of jurisdictions: If a subpoena were served on a member of the Legislatue during session, and he did not choose to attend, the next process of the court (if prayed for,) must be attachment; and attach­ment cannot be enforced without arrest: But the members of the Legisla­ture are privileged from arrest during session.

Sir, the court thank you for your suggestion as Amicus Curiae; but we should take care to avoid this clashing of jurisdictions. If the member subpoenaed during the session would not attend, we would issue no attachment, we would put off the cause till his attendance could be com­pelled. Mr. Cooper may take out his subpoena's, we shall write no such letter.

I wish it to be understood that in my opinion, no such process ought to issue to members of the Legislature during session; for I do not approve of issuing process which we cannot enforce.

Mr. Cooper on coming into the court on Wednesday morning (the time appointed for bringing on the trial,) enquired if his subpoena's had been served, and particularly the subpoena directed to the President of the United States.

No Sir; the clerk of the court shewed us your directions to him, to subpoena the President of the United States, and we directed him not to issue the subpoena; we thought the proceeding very improper.

Will the Court have the goodness to hear rne on that que­stion?

Certainly Sir; go on.

I did not expect (may it please the court) that any objec­tion would have been made to issuing this process to procure the attendance of the President. It is the duty of every good citizen for the furtherance of justice, to give his testimony when duly called upon for that purpose by the process of a court of justice. Before I determined on applying for this subpoena, I examined (as it was my duty to do) the Constitution of the U­nited States, to discover if any privilege of exemption from this process was given to the President by that Constitution: I could find none; If the the gentleman whose duty it is to conduct this prosecution, or the court will be kind enough to point out any such exemption, I shall most willingly re­tract my error; but if the Constitution and the laws of our country confer no such privilege on the President, it is not in the power of this court to sup­ply what they have omitted: notwithstanding the application to the court on [Page 10] Monday last, for a letter to the Speaker, proceeded from myself, I was glad to hear the opinion of your Honour that you would not undertake to confer privileges which the Constitution had not granted: if no such ex­emption then can be claimed in your opinion by any member of our Legis­lature, why should it be assumed by the President? if the Constitution does not give him this privilege of exemption, I may claim the subpoena as a matter of right.

There is a farther and a peculiar reason in this cause, why the President even if he had this privilege should not claim it as against myself; if I call him into this court, who compels me to do it? Himself. Who has he to blame for the trouble I may occasion him by his attendance here? Himself. The publication for which I am indicted is not a voluntary effusion, it was forced from me—I was compelled to write it in vindication of my own cha­racter, grossly and falsely attacked in consequence of a disclosure on the part of the President, of what I cannot but deem private correspond­ence. It is from information then, proceeding directly or indirectly from himself, that I was first compelled to appear before the public, and am now dragged into this court to vindicate my character against anonymous slander and legal accusation.—If for no other, for this reason may it please the court, in my opinion the President ought to appear. Nor in such a country as this, do I see why this exemption should be granted to one man and not to another. This is, and I hope, will long continue a republican country. A government of equal rights and equal Laws.—But the privilege now claimed is out of harmony with these equal principles of republican gover­ment; and I hope the decision of the court in the present case, will author­ize us to believe that no man in this country, is possessed of a situation so ele­vated as to be above the Laws, or of any privileges paramount to justice.

We have heard you Sir; patiently; and in consideration of your being without counsel, we have permitted you to say what we would not have suffered any counsel to advance: Sir, we consider your si­tuation, but you have totally mistaken the whole business. It is not upon the objection of privilege that we have refused this subpoena: This court will do its duty against any man however elevated his situation may be.— You have mistaken the ground.—We are of opinion that in the case of a pro­secution for a libel tending to bring the President of the United States into contempt, he cannot be compelled to appear at all. What? shall you bring the President on such an prosecution, into this court to prove your charges? to ask him, did you do so and so? were you guilty of maladmi­nistration? Sir, this cannot be permitted, and if you had been a lawyer you would not have made the request.

I have great deference for the opinion of the Court, but this is a new point: will the Court be good enough to hear me upon it?

No Sir; the Court will not hear you after they have given their decision: It was a very improper and a very indecent request.

I assure the Court, I am not guilty of intentional impro­priety. But a preliminary question will arise between Mr. Rawle and me not connected with the substance of the Indictment: cannot I have the be­nefit of the President's testimony on that question?

No Sir; He cannot be brought here at all upon this Trial. Are you ready to proceed.

I believe Sir, I shall be.

The Jury were then called, but before they were sworn, Mr. Cooper suggested to the court that some of the passages charged in the indictment were grounded upon certain addresses to the President in the summer of one thousand seven hundred and nintey-eight, and the answers thereto; that he had applied to Mr. Rawle to admit as evidence of those documents, the publications of them in the common news-papers; that he meant to use Fenno's paper for the purpose; that Mr. Rawle at first consented, but had since written him a note retracting that assent, that if the court should de­cide when the cause had gone half thro, that such evidence on the part of the defendant was inadmissible, he would be compelled to move the court to put off the cause till he could procure the best evidence, the nature of the case would admit of, and which Mr. Rawle seemed to insist on, namely official copies of those documents.

When the question comes before us we will cconsider it. In the mean time you must go on your own way and judge for yourself. But, Mr. Rawle, what objection have you to admit the news-papers to be read (that is so far as they are relevant to the question,) if you have no reason to suspect their accuracy?

I beg leave to state to the court, that on Mr. Cooper's ap­plying to me on this subject, I at first consented, but afterwards I retract­ed that consent for the reasons assigned in the following letter which I sent him,

the court will see therefore that I cannot properly assent to the admission of evidence of this kind.

It is quite time enough for us to decide this question when it comes regularly before us.

If that be the case I must not in point of prudence subject myself to the hazard of being deprived of a most material part of my testi­mony on a legal objection; and tho' I think the evidence I offer could be legally supported, ^* yet I must run no risk: I therefore pray the court to defer the trial until I can procure office copies.

Will you be ready on Saturday Sir?

If I can procure the copies I shall.

Sir, that is not the question. If your evidence is not rea­dy we shall judge of that, then.

I shall be ready on Saturday.

The court met A [...]pril 19th. at 9 o'clock.

The court may perhaps remember the proposals I made to the Attorney General respecting some public documents, which I meant to give in evi­dence as they were published in a news-paper wherein all the acts of govern­ment were usually inserted: that paper was Fenno's United States Gazette. The Attorney General ^† thought it his duty to object to this kind of evi­dence, since either from design or inaccuracy, mistakes might take place in the publications.

I was extremely desirous at that time to have met the charge substantially; the court however, thought Mr. Rawle might insist on my producing official copies of such documents as were necessary for my defence.

In conformity to this expectation, I have endeavoured to procure those copies without delay. Much of the supposed libel is founded on expressions contained in certain addresses to the President in the summer of one thousand seven hundred and ninety-eight, and his answers thereto. On the autho­rity therefore of the case of the King vs. Holt, in 5th. term, reports page 442. I applied by letter to the Secretary of State, who returned for an­swer the next morning that there were none of those addresses or answers de­posited in his office; on receiving this information I sent directly the following note to the President,

to which I received no answer that day. The next morning conceiving there was a mode of expediting the business, I sent my son to purchase a [Page 13] book purporting to be "A selection of addresses and answers to and from the President of the United States in the year one thousand seven hundred and ninety eight," with this book I sent to Mr. Shaw, (the private secretary to the President,) the following note,

Mr. Shaw returned the following answer:

I suppose you mean the President's house? was he there at that time?

I [...] was at the President's house.—Under the circumstances I have related, I do not think it possible for me safely to go on, while the person who may fairly be considered in some degree as my prosecutor, holds in his possession the legal evidence on which I must rest my defence. Nor in­deed is Fenno's paper quite accurate, for in a collated copy, procured for me by Colonel Lyon from the office of the Secretary of War, I find manu­script corrections, altho' they are not very material.

I presume there is the same law for Mr. Rawle as for me, and as he ob­jected to the production of news-paper evidence in the first instance, so may I, on the same grounds: therefore I move the court to put off the trial until I can procure the papers required.

You are mistaken in supposing the prosecutor of this in­dictment is the President of the United States. It is no such thing.—It is at the suit of the United States you are indicted, for publishing a false scanda­lous and malicious libel, with intent to defame the President of the United States.—Nor do I understand that the Attorney General objected to your producing the testimony you mentioned.—But your mistakes must fall on yourself.—You must take the chance.—Nor had you a right to make these assertions unless you had proof that would bear you out in them.

If in making those assertions you relied on the public papers it was at your own risk; and it was your own fault not to have had authentic copies. You think that you have a right to obtain official copies of what may be necessary for your Defence, you are greatly mistaken, ^*. No law that I know of, authorizes you to require them, and I see no reason why the proper officers should give copies.

You suppose that the offices of government ought to be open to your in­spection—it is not so—even if you had these copies the court would deter­mine on their admissibility as evidence. If you offer news-papers, the court will determine whether they can be given in as evidence or not. If [Page 14] you wish to abide by your own judgment, you must stand or fall by it. But do not take it for granted that you may examine witnesses or produce evidence that has nothing to do with the cause.

Since the court is of opinion that I cannot produce this evi­dence, which I consider as material to my Defence, and as I am not fully prepared for trial, expecting that I could obtain this evidence, I wish the trial to be put off on other grounds.

If you can shew good grounds the court will consent to put it off.

I have Subpoenaed several members of the Legislature, but I am apprehensive they deem it inconsistent with their duty to attend, and I am given to understand that there is a difference of opinion on this question: whether they will appear when called I know not. If they do not, I fear I cannot go on.

The court enquired of the Marshal whether he had Subpoenaed the wit­nesses? On being answered in the affirmative, they directed the witnesses to be called, viz.

• Timothy Pickering,
• Jacob Wagner,
• John Davenport,
• Albert Gallatin,
• Thomas Pinckney,
• Robert Goodloe Harper,
• Edward Livingston,
• Colonel Matthew Lyon,
• John Langdon.

No one appeared.

Mr. Pinckney has informed us that he will attend.

As the evidence of some of these gentlemen is material, I wish the court to put of my trial, until I can procure their attendance.

Sir you must move it upon affidavit, and then the court will con­sider of it. But take care it will justify you.

(The substance of the affidavit was: that the witnesses therein named who had been Subpoenaed and did not attend, were material witnesses, and who the Defendant understood and believed were capable of giving testi­mony of facts maerial to the issue joined).

After the affidavit had been read, the court said:

This affidavit is not sufficient, you do not state your reasons why you be­lieve they are material witnesses. As you are without Counsel the court will shew you more indulgence. Had Counsel offered this affidavit we should not allow any explanatory affidavit to be made, but we shall allow you to make one. Therefore take time for your affidavit.

Whilst Mr. Cooper was preparing his affidavit, Judge Chace (after some conversation with a gentleman near him said) I am inclined to think the witnesses will all attend. Therefore call them, I am informed that they will all attend. Mr. Harper and Mr. Gallatin were in court, we had better send for them. We must no doubt pay attention to the conveniences of the house.

If the gentlemen will voluntarily appear, it is well; if not, we cannot compel them.

Go and ask them if it is convenient to attend?

I have seen several of them. They will attend. The of­ficer says they will attend.

If that be the case I have no objection; but as I did not expect my trial to commence this morning, my papers are not here. Will the court permit me to go for them?

No doubt Sir, no doubt.

I do not know whether the witnesses whom I have subpoenad will attend or not, but at all events I am ready to go on upon the proofs I have.

Call the Jury.

• Andrew Whelen, Foreman.
• George Holsten,
• Abraham Bickley,
• Charles Deshler,
• George Slough,
• William Young,
• Samuel Evans,
• Henry Pepper.
• George Ellig,
• William Guier,
• Ely Canby.
• Peter Shyner.

W. RAWLE, Attorney General Began by observing that the Defendant stands charged with attempts which the practice and policy of all civilized nations has thought it right all times to punish with severity. With having published a false scandalous and malicious attack on the character of the President of the United States with an intent to excite the hatred and contempt of the people of this country against the man of their choice.

It was much to be lamented that every person who had a tolerable facility at writing should think he had a right to attack and overset those authorities and officers whom the people of this country had thought fit to appoint. Nor was it to be endured that foul and infamous falsehoods should be uttered and published with impunity against the President of the United States, whom the people themselves had placed in that high office, and in which he has acted with so much credit to himself and benefit to them. Thomas Cooper stands charged in the indictment as follows—(here the At­torney General read the indictment) It was a sense of public duty that called for this prosecution. It was necessary that an example should be made to deter others from misleading the people by such false and defamatory publications. There was a peculiarity in the manner also of this publication; we generally observe that persons who take these liberties, endeavour to avoid punishment by sheltering themselves under fictitious signatures or by concealing their names; but the Defendant acted very differently. Being of the profession of the law, a man of education and literature, he availed himself of those advantages for the purpose of disseminating his dangerous productions in a remote part of the country where he had gained influence. Such conduct must have arisen from the basest motives. It would be proved to the Jury that at the time of this publication, the Defendant went to a magistrate and acknowledged it to be his production in the same formal manner as if it had been a deed.

A conduct so grossly improper, had occurred in no instance within his recollection and the manner constituted no slight aggravation of the offence. [Page 16] Indeed it was high time for the law to interfere and restrain the libellous spirit which had been so long permitted to extend itself against the highest and most deserving characters.

To abuse the men with whom the public has entrusted the management of their national concerns, to withdraw from them the confidence of the people, so necessary for conducting the public business, was in direct oppo­sition to the duties of a good citizen. Mischiefs of this kind were to be dreaded in proportion as the country around is less informed, and a man of sense and education has it more in his power to extend the mischief which he is inclined to propagate. Government should not encourage the idea, that they would not prosecute such atrocious conduct, for if this conduct was allowed to pass over, the peace of the country would be endangered.

Error leads to discontent, discontent to a fancied idea of oppression, and that to insurrection, of which the two instances which had already happened, were alarming proofs, and well known to the jury.

That the jury, as citizens, must determine whether from publications of this kind the prosperity of the country was not endangered; and whether it was not their duty, when a case of this nature was laid before them and the law was applicable, to bring in such a verdict as the law and the evidence would warrant; and shew, that these kind of attacks on the government of the country, were not to be suffered with impunity.

This indictment is founded on a statute which you will be pleased to read to the jury.

Attorney General here reads the act as follows:

Sec. II. And be it further enacted, That if any person shall write, print, utter or publish, or shall cause or procure to be written, printed, uttered, or published, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either house of the congress of the United States, or the president of the United States, with intent to defame the said government, or either house of the said congress, or the said president, or to bring them or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States, or to stir up sedition within the United States or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the president of the United States, done in pursuance of any such law, or of the powers in him vested by the constitution of the United States, or to resist, oppose, or de­feat any such law or act; or to aid, encourage or abet any hostile designs of any foreign nation against the United States, their people or govern­ment, then such person, being thereof convicted before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.

Sec. III. And be it further enacted and declared, That if any person be prosecuted under this act, for the writing or publishing any libel aforesaid, it shall be lawful for the d [...]fendant, upon the trial of the cause, to give in evidence in his defence, the truth of the matter contained in the publication charged as a libel. And the jury who shall try the cause, shall have a right [Page 17] to determine the law and the fact, under the direction of the court, as in other cases.

John Buyers, sworn. examined by Mr. Rawle.

Q. Do you know this paper? (hands a paper to him)

A. Yes.

Court. Look at the back of it?

Q. Who brought that paper to you?

A. Thomas Cooper.

Q. At what time?

A. The evening of the sixth of December, 1799.

Where?

A. At my my house at Sunbury. He came to me at the door of my house. Asked me to walk in. We walked in. This was between candle-light and day light. He asked for a candle. He perused this paper, which I have in my hand, pointed to his name, and said, this is my name, and I am the author of this piece.

There was nothing further passed, only he said, this may save you trouble another time. I knew very well what he meant by it.

Q. Did you give intimation of this to any one?

A. I gave it to Mr. Rawle's Deputy, who prosecutes for the United States.

Cross-examined by Mr. Cooper.

Q Had not you and I been in the habit of frequently joking each other upon political subjects?

A. O yes—very often.

The Attorney general here read that part of the publication which is in­cluded in the indictment, for which reason it is omitted here.

MR. COOPER's DEFENCE:

Gentlemen of the Jury,

If it were true, as it is not true, that in the language of the attorney general of the district, I have been guilty of publishing with the basest motives a foul and infamous libel on the character of the President; of exciting against him the hatred and contempt of the people of this country, by gross and malicious falsehoods—then indeed would it be his duty to bring me before this Tribunal, it would be yours to convict, and the duty of the court to punish me. But I hope in the course of this trial, I shall be enabled to prove to your satisfaction, that I have published nothing which truth will not justify. That the assertions for which I am indicted are free from malicious imputation: and that my motives have been honest and fair.

You will observe, Gentlemen of the Jury, that the law requires it to be proved as a necessary part of the charge, that the passages for which I am indicted should be false and scandalous, and published from malicious motives: and before you will be able, consistently with your oaths, to con­vict upon this indictment, you must be thoroughly satisfied that both these parts of the charge are well founded. Nor does it appear to me that the [Page 18] expression of the act, to bring the President into contempt, can be fulfilled if the accusation, as in the present instance, related to an examination of his public conduct, and no improper motives are imputed to him. And that I have carefully avoided imputing any impropriety of intention to the President even in the very paper complained of—that the uniform tenor of my conduct and language has been to attribute honesty of motive even where I have strongly disapproved of, the tendency of his measures, I can abundantly shew.

Gentlemen of the Jury, you, and all who hear me, well know that this country is divided, and almost equally divided, into two grand parties; usually termed, whether properly or improperly, Federalists and Anti-Feder­alists: and that the governing powers of the country, are ranked in public opinion under the former denomination—of these divisions, the one wishes to increase, the other to diminish the powers of the Executive; the one thinks that the people, (the Democracy of the country) has too much, the other, too little influence on the measures of government: the one is friendly, the other hostile, to a standing army and a permanent Navy: the one thinks them necessary to repel invasions and aggressions from without, and commotions within; the other, that a well organized Militia is a sufficient safeguard for all that an army could protect, and that a navy is more dangerous and expensive than any benefit derived from it can com­pensate: the one, thinks the liberties of our country endangered by the licentiousness, the other, by the restrictions on the Press: Such are some among the leading features of these notorious divisions of political party. It is evident, Gentlemen of the Jury, that each will view with a jealous eye the positions of the other, and that there cannot but be a bias among the partizans of the one side, against the principles and doctrines inculcated by the other. In the present instance I fear it cannot but have its effect: For without impeaching the integrity of any person directly concerned in the progress of the present trial, I may fairly state, that under the Sedition Law, a defendant, such as I stand before you, is placed in a situation un­known in any other case.

Directly or indirectly, the public, if not the private character of the President of the United States is involved in the present trial. Who nominates the judges who are to preside? the juries who are to judge of the evidence? the Marshal who has the summoning of the jury? the President. Suppose a case of arbitration concerning the property of any one of you, where the adverse party should claim the right of nominating the persons whose legal opinions are to decide the law of the question, and of the very man who shall have the appointment of the arbitrators? what would you say to such a trial? and yet in fact such is mine, and such is the trial of every man who has the misfortune to be indicted under this law. But although I have a right to presume something of political bias against my opinions, from the court who try me, to you who sit there as jurymen, I am still satisfied you will feel, that you have some some character to support and some character to lose; and whatever your opinions may be on the subjects alluded to in the indictment, you will reverence as you ought the sacred obligation of the oath you have taken.

Gentlemen of the Jury, I acknowlege as freely as any of you can, the ne­cessity of a certain degree of confidence in the executive Government of the [Page 19] Country. But this confidence ought not to be unlimitted, and need not be paid up in advance; let it be earned before it be reposed; let it be claimed by the evidence of benefits conferred, of measures that compell approbation, of conduct irreproachable.—It cannot be exacted by the guarded provisions of Sedition Laws, by attacks on the Freedom of the Press, by prosecuti­ons, pains, and penalties on those which boldly express the truth, or who may honestly and innocently err in their political sentiments.—Let this re­quired confidence be the meed of desert, and the public will not be back­ward to pay it.

But in the present state of affairs, the Press is open to those who will praise, while the threats of the Law hang over those who blame the con­duct of the men in power.—Indiscriminate approbation of the measures of the executive, is not only unattacked, but fostered and received with the utmost avidity.—While those who venture to express a sentiment of opposi­tion must do it in fear and trembling, and run the hazard of being dragged like myself before the frowning tribunal, erected by the Sedition Law.— Be it so; but surely this anxiety to protect public character, must arise from fear of attack.—That conduct which will not bear investigation will natu­rally shun it; and whether my opinions are right or wrong as they are stated in the charge, I cannot help thinking they would have been better confuted by evidence and argument than by indictment.—Fines and im­prisonment, will produce conviction neither in the mind of the sufferer, nor of the public.

Nor do I see how the people can exercise on rational grounds their elective franchise, if perfect freedom of discussion of public characters be not allow­ed.—Electors are bound in conscience to reflect and decide who best de­serves their suffrages; but how can they do it, if these prosecutions in ter­roren [...] close all the avenues of information, and throw a veil over the gross­est misconduct of our periodical rulers.

Gentlemen of the Jury,

After having offered these preliminary remarks, I shall give an account of the paper on which I am accused, and then proceed to examine the charges of the indictment in the order in which they are laid: much that I intended to have advanced I must relinquish, that I may not trespass too long on your time, or weaken the effect of my own defence by fatiguing your attention.

The scored paper now handed to me by the attorney-general, suggests an observation, which, though trite, is material. Upon the plan usually adopted in these ex officio accusations, a good Christian might easily be proved an arrant atheist. "The fool hath said in his heart there is no God." Take the four last words and they are atheistical: take the sen­tence and it is scripture. So, take the marked passages in this paper and they may perhaps be forced into something like improper imputation against the president: take the paper itself, and the very first paragraph is a plain and positive approbation of his intention. Though I must acknow­ledge, that however upright I might formerly have believed his motives of action, I cannot upon reflection, pay that tribute to his conduct or his motives on the present occasion.

The general circumstances that gave rise to the paper I now hold are [Page 20] these: Dr. Priestley, a man whose name implies a greater combination of learning, science, and ability, of important discovery, of exertion for the benefit of mankind, and of private integrity, than any other man now liv­ing can boast—whose conduct towards me in the instance detailed in this paper is praise sufficient to bear up my mind against any consequences which the present trial can produce—had long been an acquaintance and an intimate acquaintance of Mr. Adams in England and in this country. The letters of the latter to dr. Priestley are full of strong expressions of friend­ship and esteem. Relying upon this long intercourse of cordiality between them, dr. Priestley urged me to permit him to write to Mr. Adams on the subject of a vacancy mentioned in this paper, and which as you will have it before you when you retire, I shall not read at length. This appli­cation was from one friend to another; upon the face of it a confidential communication; although containing nothing but what might do credit to all the parties concerned. Mr. Adams, however, did not think it so confidential; and from some disclosure on his part has been founded the base and cowardly slander which dragged me in the first instance before the public in vindication of my moral and political character, and has at length dragged me before this tribunal, to protect, if I can, my personal liberty and my private fortune against the legal attack of an ex officio information. Hence it is evident, gentlemen of the jury, that this is not a voluntary, but an involuntary publication on my part: it has originated not from motives of turbulence and malice, but from self-defence; not from a desire of at­tacking the character of the president, but of vindicating my own. And in what way have I done this? My motives, my private character, my public character, were the object of falsehood and calumny, apparently founded on information of high authority. In reply, I give credit to the intentions of the president, I say nothing of his private character, and I attack only the tendency of measures notorious to the world, which having been known to disapprove publicly, I was charged with being ready from motives of interest, to approve privately. I think, gentlemen, you can­not help feeling this contrast of behaviour, and if the president is satisfied with his side of the picture I am with mine.

The FIRST article selected for accusation is, that at the time I allude to, he was but in the infancy of political mistake. Why this expression should have been fixed on as seditious I know not, unless it be that quem deus vult perdere prius dementat; for have we advanced so far on the road to despotism in this republican country, that we dare not say our President may be mis­taken? Is a plain citizen encircled at once by the mysterious attribute of political infallibility the instant he mounts the presidential chair? If so, then indeed may it be seditious to say he is mistaken; but before you can condemn me for this kind of sedition you must become catholic believers in this new-fangled doctrine of infallibility. I know that in England the king can do no wrong, but I did not know till now that the President of the United States had the same attribute.

I have said (and I am accused for saying it) "that even those who doubted his capacity thought well of his intentions." Is it a crime to doubt the ca­pacity of the President? Suppose I had said that there were some who did not give him credit for capacity sufficient for the office he holds, is that a crime? Or if in them, is it a crime in me, who have not said it? Nor can [Page 21] the word capacity here be fairly construed into any other than a compara­tive meaning; for surely no one who has read his Defence, as it is called, of the American Constitution, or who reflects that he has had abilities enough to raise himself to his present situation, can say that he is devoid ei­ther of industry or talents. But those who voted for his opponent must have believed Mr. Adams of inferior capacity to that gentleman. Of that number was I; of that number was at least one-half of the people of the United States. If it be a crime thus to have thought and thus to have spoken, I fear I shall continue in this respect incorrigible. But if of two constructions the one is absurd, improbable and unfavorable, surely it should be rejected in favour of that meaning which was most likely to have occurred, and which in its effects will do least injury to a defendant like myself. This is common, this is legal charity.

Nor had we yet under his auspices, been saddled with the expence of a perma­nent navy.

Gentlemen is it true or not that we are saddled with the expence of a permanent navy? Is it necessary that I should enter into a detail of autho­rities to prove that the sun shines at noon day? But farther, is it true that we incur this expence under his auspices and sanction?

I have before me two publications, the one the Gazette of the United States, published by Mr. Fenno in this city; and another in a form more portable and convenient, purporting to be a selection of addresses and an­swers to and from the President during the summer of 1798. Not having been able to procure office copies of the documents I wished to refer to, I must offer in evidence such publications as I can find; that class of publi­cations, upon which in fact the mind of the public is usually made up; and upon whose authority the electors of this country determine the characters whom they honour with their suffrage. Indeed if the opinion that fell from the court this morning be accurate, that no man should hazzard an as­sertion but upon sufficient and legal evidence, and if documents from the public offices in proof of notorious facts are required as such evidence, then are the mouths of the people compleatly shut up on every question of public conduct or public character: but I cannot help thinking it a fair and reasonable position, that a defendant in such a case as this should be permitted to offer to the jury any evidence that appears to him a sufficient ground for his assertion, and let them decide on its credibility.

What is it that you say sir fell from the court? They have not yet decided what was or what not proper evidence for you to ad­duce. The court said if you thought the public documents at your ser­vice you were mistaken. If you undertake to publish without having pro­per evidence before you to justify your assertions, you do it at your own risk. Most assuredly in common traverses you could not offer the evidence you mention. But we acknowledge that in such a case as this greater la­titude may be given. If you say the president did write a letter you must prove it. We should incline to admit gazettes and acts of public autho­rity and notoriety: you might read the speech of the President to both houses of congress in evidence. If you want to prove that the President advocated a navy, you may read the journals of congress or any authentic public document.

If I am defeated in my endeavors to procure these docu­ments, [Page 22] I must offer such evidence as I can procure; and where there is no reasonable suspicion or assignable motive why the publications I offer should misrepresent the transactions I allude to, the probability is in favour of their accuracy; especially when the printers of them are severely pu­nishable for wilful misrepresentation or gross mistake in detailing the public acts of government.

I admit a great many things from Mr. Cooper who is without counsel, which I would not admit from others.

You may read any thing and every thing you please.

Then read the following extracts: Answer of the presi­dent to the address of the Boston Marine Society. (Patriotic addresses printed for John and W. Folsom, at Boston, 1798) p. 93. ‘Floating bat­teries and wooden walls have been my favourite system of warfare and defence for this country for TWENTY-THREE years. I have had very little success in making proselytes. At the present moment how­ever, Americans in general, cultivators as well as merchants and mari­ners, begin to look to that source of security and protection, and your assistance will have great influence and effect in extending the opinion in theory, and introducing and establishing the practice.’

To the same purpose is the answer of the President to the young men of Boston. ‘To arms then my young friends, to arms: especially by sea, to be used as the law shall direct let us resort; for safety against dangers which we now see cannot be averted by truth, reason or justice.’ Pat. add. p. 38.

In unison with these opinions of the President the Secretary of the Navy, Mr. Stoddart, presented a report to congress early the next session (2d Jan. 1799) recommending (p. 1) a navy of 12 seventy-fours, as many frigates, and twenty or thirty smaller vessels: in another part (p. 2 and 16) he re­commended an addition of 12 seventy-fours to the existing establishment.— Some of the reasons given by Mr. Stoddart deserve our most serious atten­tion.^* Surely after these statements it will not be denied that our navy is established under the sanction, not to say express recommendation of the President.

In the passage thus indicted, there is no expression of blame against the measure, nor any imputation of improper motive or conduct to the Presi­dent on account of it: but I scorn this subterfuge of construction: I did mean when I wrote it to imply a disapprobation of the measure: I thought it objectionable at the time; I think so still. I have elsewhere^† stated my reasons for this disapprobation, and why we are protecting our commerce [Page 23] at double its worth: I shall not therefore detail my reasons for this opinion, but appeal to you, gentlemen of the jury, if I have the misfortune of dif­fering in opinion with the President on this subject, as wiser heads have done before me, whether I ought to be indicted and punished for this dis­agreement. Our opinions are not in our own power; they are the inevita­ble result of such evidence and argument as we happen to light upon: at all events, let me ask, have I proved the facts as stated or not? If I have, you cannot find me guilty consistently with the law that has been read to you, or the oaths you have taken.

It is farther imputed to me as a crime, that I have said, under the auspices of the President we are threatened with the existence of a standing army.

I feel it very difficult to prove facts so notorious as those I am charged with asserting. Gentlemen of the jury, have we or have we not a standing army? Is it or is it not sanctioned with the approbation of the President? Independent of his official approbation giving to our mil [...]tary establishment, he has certainly expressed himself voluntarily much in favour of the mea­sure. Is his reply to the address of the young men of Boston, pat. add. p. 37, he says, that ‘this country never appeared to him to be in greater danger than at that moment from within or without—never more ur­gently excited to assume the functions of soldiers.’ And to the students of Dickinson College, pat. add. 240, he hopes, that none but those who feel a natural genius and disposition to martial exercise "and exertions will ever be called from the field of science," &c. These are certainly evi­dences of his approbation of a military force distinct from the militia; evi­dences confirmed by the repeated official statements and reports^* of the pre­sent executive department on the same subject. Without his approbation we could not have had a standing army, and to the inhabitants of our towns and villages who have eyes and ears, no farther proof than the use of them is necessary that we have one.

This measure, like the former, I certainly meant to inculpate; and if I most sincerely disapprove it, I shall not hold an opinion unconfirmed by an­cient or modern history, or by testimonies of weight among the dead and the living, whose authority Mr. Adams himself will not disallow. Is it ne­cessary for me, gentlemen of the jury, to enumerate the many governments in ancient and modern history called republics, which a standing military force has overthrown, and converted into despotisms?^† No man can have [Page 24] read history without remarking it, or perused any of the modern discussi­ons on this subject^‡ without finding them enumerated. Are we ourselves unacquainted with the inconveniences attending them, or are the particu­lar objections to a standing army in such a country as ours so deep and dif­ficult as to require diffuse illustration? I think not; I think I may safely venture to trust to your recollection of recent events in support of the dis­approbation, I certainly meant to cast on a standing army in any form, or to any extent, or on any pretence, except perhaps the dubious necessity of actual invasion.

General Washington, whose opinions every man who hears me will lis­ten to with respectful attention, was a decided enemy of these kind of mi­litary establishments. In his speech to both houses of congress, December 1793, he apologizes thus for having recommended certain measures of a military nature: ‘Nor can such arrangements with such objects be ex­posed to the censure or the jealousy of the warmest friends of republican government. They are incapable of abuse in the hands of a MILITIA, who ought to possess a pride in being the depository of the force of the republic, and may be trained to a degree of energy equal to every military emergency of the United States.’ Again—In that last and most delibe­rate act of his most useful life, his farewell address to his countrymen, he expresses himself thus— ‘Hence likewise they will avoid the necessity of those overgrown military establishments which under any form of govern­ment are inauspicious to liberty, and which are to be regarded as particularly hostile to republican liberty.’ Such are the sentiments of general Wash­ington toward the close of a public life that gave him pec [...]liar opportunities of judging on this subject.^* Nor has Mr. Adams himself been at all times so favourable as he seems to be at present to the modern system of standing armies. "We have seen," says he, (alluding to England) ‘one of the first nations in Europe, possessed of ample and fertile territories at home, and extensive dominions abroad, of a commerce with the whole world, immense wealth, and the greatest naval power which ever be­longed to any nation, who have still preserved the power of the people by the equilibrium we have been contending for, by the trial by jury, and by constantly refusing a standing army. The people of England alone, by preserving their share in the legislature, at the expence of the blood of heroes and patriots, have enabled their kings to curb the nobility without giving him a standing army.’ ^†

[Page 25]Hence then we see that whatever the President may be now, the time has been when he was not an advocate for a standing army; if the Presi­dent has thought fit to change his opinion, still I hope it is no crime in me, to have retained mine. The next charge, is that which respects the project­ed Embassies to Prussia, Russia and the Sublime Porte. Mr. Pickering who is on the bench with the court, can prove the persons appointed, the date of their appointment, and their salaries. But this will be to occupy time in proving a matter of notoriety, and I feel now disinclined to enter into all the details of conclusion which the facts he could tell us would lead me to. I have much yet to go through; I feel the effect of interruption, and there­fore without resorting to his testimony, I shall observe very briefly in the first place, that the obvious tendency of these appointments, beside pro­viding for those who are nominated to them, is to put us in a way of being drawn into the vortex of European politics and European quarrels, with which we have nothing to do: 2dly. That they are commercially useless; the commerce of this country to those places does not furnish profit enough to pay the expenses of cur diplomatic and consular establishments there. 3dly. That they have hitherto produced no national benefit whatever, so far as the the public yet know; and 4thly. I am, as a citizen of this country, a sincere convert to the doctrine of General Washington in his farewell address. Hear his words: ‘The first rule of conduct for us in regard to foreign nations, is in extending our commercial relations to have with them as little political connexion as possible; so far as we have formed engagements, let them be fulfilled with perfect good faith: here let us stop. Europe has a set of primary interests, which to us have none or a very remote relation. Hence she must be engaged in frequent con­troversies, the causes of which are essentially foreign to our concerns. Hence therefore it must be unwise in us to implicate ourselves by artificial ties in the ordinary vicissitudes of her politics, or in the ordinary combi­nations and collisions of her friendships or enmities,’ again: ‘why forego the advantages of so peculiar a situation? why quit our own stand upon foreign ground? why by interweaving our destiny with that of any part of Europe, entangle our peace and prosperity in the toils of European ambition, rivalship, interest, humour or caprice. 'Tis our true policy to steer clear of all permanent alliances with any portion of the foreign world: so far, I mean, as we are now at liberty to do it; for let me not be understood as capable of patronizing infidelity to existing engagements. But in my opinion it would be unwise to extend them.’

Here then, Gentlemen of the Jury, do I stand before you, indicted for being an advocate for the doctrines, solemnly and deliberately recommend­ed to his fellow citizens, by GEORGE WASHINGTON.

But we have borrowed money says this paper of mine, at 8 per cent in time of peace.—Have we or have we not? If we have, am I guilty of a crime in making the assertion? or can you really deem it necessary that I should adduce proof to establish this fact? But perhaps Mr. Attorney Ge­neral may say, I meant to imply a censure on the President for his sanction to this measure: I did so.—I think the causes of the Loan, the measures that produced it, had a tendency unfavourable to the interest of the coun­try: I have already urged what I had to say on our permanent navy, and our standing army, and therefore I shall not repeat the objections.—I think [Page 26] the loan was extravagant, for in no period of war do I recollect that Great Britain has ever offered this high interest. I think the interest thus given improper, as a sanctioning of usury by Government, while our laws repress it individually, I dread the principles of all Loans; for I abhor a funding system and a national debt.—If thus to think be a crime, I must patiently abide the punishment.—Nor do I see why this expence should have been made necessary by any previous measures, while the state of our finances was so unfriendly to any expenditure that could have been avoided.—If Mr. Gallatins book on the finances of this country, be not authority, it ought to be.—In page 48 and the subsequent pages of that book, you may find that about the time when General Washington declined and Mr. Adams ac­cepted the Presidency, our receipt and expenditures about balanced each other; they were in round numbers 6½ million of dollars per annum. I hold now in my hand the report of the committee of ways and means of February 21st. 1800, published by order of the house of Representatives of Congress, from page 15 whereof it appears that the estimated revenue for the year 1800, is only 9,301,258 dollars, while the estimated expence is 15,393,034▪ leaving a deficiency of above 6 million of dollars! As the ex­ample of borrowing at 8 per cent is now set; time only can shew us how much of this alarming deficiency is to be made up by such loans, at this enormous interest. If this be the price of borrowing in time of peace what will be the interest demanded in a period of war! Is this giving a proof of our strength, or of our weakness?

This money was borrowed when the violence of official expressions might have provoked a war.

Gentlemen of the Jury, the court will concede that Vattel's Treatise on the Law of Nations, is a book of acknowledged authority: and from that book I will read a quotation or two. ‘Nothing is more opposite to the duties of humanity nor more contrary to the society which should be cul­tivated by nations, than offences or actions which give a just displeasure to others. Every Nation therefore should carefully avoid giving any real offence: I say a real; for should he who manifests a displeasure at our behaviour when we are only using our rights or fulfilling our duties, he is to blame, not we. Offences excite such asperity and rancour between nations, that we should avoid giving room even for ill grounded offences, when it can be done without any inconveniency or failure in our duty. It is said that some medals and dull jests, were what irritated Lewis XIV against the United Provinces, and were the chief cease of his expedition in 1672, by which that Republic was brought to the brink of ruin.’ L. 2. Ch. 1. § 19.

Again, L. 3. Ch. 4. § 65. ‘In so civilized an age, it may be unneces­sary to observe, that in these pieces, published on account of a war, all opprobrious words are to be avoided, together with every expression in­dicating hatred, animosity, and rage, as these can only excite the like sentiments in the enemy. A prince, both in his discourses and in his writings, ought to observe the most noble decency. He is to respect himself in the person of his equals: and though it is his misfortune to be at variance with a nation, shall he inflame the quarrel by offensive expressions, and thus deprive himself of the hopes of a sincere reconcilia­tion? Homer's heroes called each other dog and drunkard, and in their [Page 27] wars they observe no manner of decorum, they were filled with the most brutal outrages. Frederick Barbarossa with other Emperors, and the Popes their enemies, treated each other with the same roughness and violence. Let us congratulate our age on the superior gentleness of its manners, and not deny us an empty politeness, customs which have consequences truly beneficial.’

Thus far Vattel; and I most sincerely wish it were in my power to con­gratulate my fellow citizens of America, and the administration of our country, with having uniformly preserved that tone of superior gentle­ness, and beneficial politeness, so wisely recommended by our author.

But I have no such congratulations to make; and it is to me a very un­pleasant task to detail, though in my own defence, those official expressions on the part of the President, which have given undoubted cause (and in my opinion just cause) of offence to France. I shall pass by the abberations from decorum of language which I might quote from the documents of secondary officers, and confine myself however unpleasantly, to those which the Pre­sident himself has thought fit to furnish or to sanction. I have many of them to adduce; but I feel fatigue; and it is a task too irksome to wade through the whole collection.

Gentlemen of the Jury, these are expressions respecting the characters and conduct of the French rulers, and of the French nation, that I am about to quote. I know that reflections have been thrown upon many persons in this country, especially if they are not natives, as too much addicted to French politics. I hope it will not be improper to obviate that stigma in my own case: nor do I know how to do it but by quoting a passage publish­ed by myself, when this imputation and this trial could not have been in contemplation.

Does the court conceive this can be evidence?

Surely not: but let Mr. Cooper read what he pleases.

By no means: I shall not deliberately avail myself of what is not evidence, and perhaps this is not strictly so.

But, Gentlemen of the Jury, in a cause like this, so completely political, I know the bias that may arise from these collateral suspicions and party imputations; and I wish if I can, to meet and to refute them as they arise. In the present instance, if they are entertained by you, they will be ill founded and unjust. I am American enough to feel that both the belligerent powers have furnished us with a just cause for war, if common prudence had not forbidden our resorting to it.

All my extracts con­tain references to Fenno's Gazette, but as the selection of addresses is more handy than the files on the table, I will use it till you wish to see the Paper itself respecting any of my quotations.

In the President's answer to the address of the inhabitants of the town of Arlington and Sandgate in Bennington county Vermont (Pat. ad. p 11, Fen­no July 2, 1798) he says, ‘I have seen in the conduct of the French nation for the last 12 years, ^* a repetition of their character displayed under [Page 28] Louis the 14th. and little more excepting the extravagancies which have been intermixed with it of the wildest philosophy that was over professed in this world since the building of Babel and the Fables of the Giants who by piling mountains on mountains invaded the skies. If the spell is broken, let human nature exult and rejoice.’

In the address of the Mayor, Aldermen &c. of the city of Vergennes in Addison county Vermont, patr. ad. 14. Fenno July 12, 1798, there is the following passage: ‘The perfidious republic which boasts of its terror and prowess to us is more terrible in vice and impieties than in arms.’

In his answer the President replies ‘your opposition to that policy, if indeed it can be called policy, which is equally destructive of persons things and nations, does honour to your understanding and dispositions.’

In page 35 of the Pat. ad. the same kind of language is used in an address from the young men of Boston, wherein they say ‘at a period when a powerful and perfidious nation aspiring to the dominion of the world, annuls in the career of her pride all bonds of national amity.’

In the address from Concord in Massachusets pat. ad. 49. ‘they cordi­ally acquiesce in the vigorous measures adopted by our executive towards an aspiring power, who unprovoked, encouraged the piracy and perfidy of Gothic darkness and Vandal barbarity; who has perpetrated crimes unparrallelled in the history of man! France grasping at universal domi­nation has abandoned every moral and religious principle, trampled on sacred faith, sported with national laws, and demanded pecuniary ex­actions which bankrupt our nation and make us slaves indeed of a free and independent people.’

I do not want to interrupt Mr. Cooper, but (I presume from inadvertence) he has read the addresses to the President as if they were the answers of the President. I do not think he wishes to mislead, but this is improper, I do not find that the answer to the address of the young men of Boston ^* contains the passage he has quoted.

I wish Mr. Cooper to do and say whatever he chooses; go on Sir.

If I have committed a mistake I am very sorry for it, but I have committed none: where this language is permitted or encouraged— where the answers re-echo or approve the addresses, that approbation a­mounts to an adoption by the President. For instance, in the answer to the last address I read, the President begins ‘Gentlemen, I thank you for this address, Your encomiums on the executive authority of the government is in a high degree flattering.’ Sir, I have a right to contend that this retort complimentary, on the part of the President, is a direct approbation of the language of the address. I need not however refer to the addresses at all, for I have enough among the answers in the twenty other instances I have selected, compleatly to establish my position; not that a few cases of harsh and intemperate language, have inadvertendly escaped through warmth of temper and a sense of national provocation, but that they have been systematically, perseveringly, indulged in.

But I begin to grow weary of this cause; and I feel disinclined to fatigue [Page 29] myself and you still more by wading through this collection of unpleasant and irritating expressions: nor do I think it worth while to employ my time and yours in contending every technical objection. I did not fully expect such frequent interruptions, on a trial of this nature, or to have fought my way, per tot ambages, per tot discrimina rerum. I shall quit therefore the paper of extracts ^‡ I hold in my hand, and quote no more of them. But these ad­dresses and answers are not the only foundations of the assertions I made. The French themselves have complained of this violent language and un­just accusation of their principles and conduct. They have felt the indig­nity, and have expressly made it an obstacle to negotiation. In page 19 of the instructions to the Envoys, &c. published by the Secretary of State, in conformity to the resolution of Congress of June 22, 1798, those Envoys inform us that ‘M. Y. took out of his pocket a French translation of the President's speech, the parts of which objected to by the Directory, were marked agreeably to our request to M. X. and are contained in the exhibit A,’ (this exhibit I need not read at length: it will be found in p. 24 of the book I am quoting.) ‘Then he made us the second set of pro­positions, which were dictated by him and written by M. X. in our presence, and delivered to us, and which translated from the French are as follows: There is demanded a formal disavowal in writing, de­claring that the speech of the Citizen President Barras did not contain any thing offensive to the government of the United States, nor any thing which deserved the epithets contained in the whole paragraph.’

In another part of the same page the envoys tell us M Y. informed them that "the directory were extremely irritated on account of some parts of the President's speech." Now, gentlemen of the jury, that speech is mildness itself compared with the extracts I have read, and was prepared to read to you from the addresses and answers of the President, published in the same month with this very book.

In page 92 the Envoys give us a translation of the letter of M. Talley­rand, the minister of foreign relations, to them. In p. 97 there is the fol­lowing paragraph of that letter. ‘The newspapers ^§ known to be under the indirect controul of the cabinet, have, since the treaty, redoubled the invectives and calumnies against the republic and against her princi­ples, her magistrates and her envoys. Pamphlets openly paid for by the minister of Great Britain, have re-produced in every form those insults and calumnies, without a state of things so scandalous ever having attract­ed the attention of the government which might have repressed it. On the contrary the government itself was inte [...] upon encouraging this scan­dal in its public acts. The executive directory has seen itself denounced in a speech delivered by the President in the course of the month of May last (O. S.) as endeavouring to propagate anarchy and division within the United States. The new allies which the republic has acquired, and who are the same that contributed to the independence of Americans have been equally insulted in the official correspondencies that have been made public, or in the newspapers. In fine, one cannot help discover­ing in the tone of the speech and of the publications which have just [Page 30] been pointed out, a latent enmity which only waits an opportunity to break out.’

Gentlemen of the jury, after the serious manner in which the tone of of­ficial expressions had been noticed by the French nation—after it was made an avowed obstacle to negociation—where was the prudence or propriety of a persevering reiteration of language such as I have read to you? For my own part, I cannot help thinking such conduct in a public character rash and indecorous, and highly deserving the reprehension I have expressed.

The next and last point, that which seems to be the most serious of all, is, the interference of the President in the decision of a court of justice in the case of Jonathan Robbins.

This case has received such full and such recent discussion; it has been so much talked of in congress, and written of out of congress, that I do not think it necessary to enter into all the details of evidence and argument which would have been necessary could I have presumed you unacquainted with the subject. I shall, however, prove to you, gentlemen of the jury, that there has been such an interference on the part of the President, that it was not only without, but against precedent and against law; and if so, you will also conclude with me that it was against mercy. Here is the mes­sage of the President to congress on the case of Jonathan Robbins, authen­ticating the communications of Mr. Pickering. In page 5 ^* Mr. Picker­ing states, that he had communicated Mr. Liston's application to the Presi­dent, and that Nash (Robbins) is charged, as it is understood, with piracy and murder, committed on board a British frigate on the high seas; the [Page 31] President gives his opinion on the subject of jurisdiction, and on the con­struction of the clause of the treaty; and authorizes Mr. Pickering to com­municate the President's ADVICE and REQUEST that Nash should be delivered up. Now, gentlemen, without entering into any argument on the question of territorial jurisdiction; or the construction of the clause of the treaty—without going into the point that the crime of piracy gave ju­risdiction to the court here—I rest my assertion that the President interfered improperly on this; that if he had authority to do what he did, he would not have advised and requested, but REQUIRED AND DIRECTED: an advice may be rejected; a request may be refused, without attaching blame to the person who by this language is permitted to exercise his own judgment and inclination. Either the President had authority to interfere or he had not; if he had authority, the language should have been peremptory and not subject to excuse o [...] evasion. If he had not authority he should not have in­terfered at all. But it is as evident as language can make it, that the Pre­sident doubted of his own jurisdiction; advice and request is the expression of hesitation and distrust; he felt the impropriety of his conduct at the time, and his language bears the impression of his feelings.

I might have made enquiry by testimony into the circumstances attending the trial of the sailors from the Hermione before his honour Judge Chase, in New-Jersey. In those cases we hear of no such interference, though I have understood they were precisely similar to that under discussion: but I really feel myself too much exhausted to go into any verbal testimony on this head of the charge, though I had much to examine.

Then if you do not mean to examine witnesses, the gentlemen who attend on this occasion need not be detained.

Certainly not now: I must relinquish my intentions, for I shall not be able to go through with them.

Sir, the court do not want to press you; they will wait for an hour if you wish it to give you time to recruit your strength.

I am much obliged to the court, and to the gentlemen who have attended; but I shall proceed and finish as soon as I can.

I have said this was an interference that the monarch of Great-Britain would have shrunk from. Let the case be pointed out if it can, when a mo­narch of Great-Britain has made such an attempt. I know of none; and I know also enough of the law and of the spirit of that country, to be satis­fied, that no such attempt would be ventured on there.

It is without precedent—I say further, it is against precedent. I hold in my hands the case of the United States vs. judge Lawrence (p. 42 of 3 Dall. Rep.) The substance of that case is this: Capt. Barré of the French vessel le Perdrix, abandoned his ship, became resident at New York, was claim­ed as a deserter by the Consul of the French Republic, and required to be delivered up under the 9th art. of the consular convention between the United States and France, which authorizes the mutual delivery of deserters to the consuls or vice consuls of the respective Countries, on demand made in writing to the Courts, Judges, and officers competent; and on proof by the exhibition of the Ship's Roll, that the persons required were part of the Crews. The French consul could not produce the original register or role d'equipage, but a copy only: this, Judge Lawrence thought insufficient evidence under the clause of the Convention. The Minister of the French [Page 32] Republic then applied to the executive, complaining of the refusal, and ‘the present motion was made in order to obtain the opinion of the Su­preme Court (of the U. S.) upon the subject for the satisfaction of the Min­ister. After counsel were heard in opposition to the motion’ the Attorney General (Bradford) in reply premised that the Executive of the U. S. had ‘no inclination to press upon the Court any particular construction of the article on which his motion was founded, but as it was the wish of our Government to preserve the purest faith with all nations, the President could not avoid paying the highest respects and the promptest attention to the representation of the Minister of France, who conceived that the decision of the district Judge involved an infraction of the conventional rights of his republic, ***** In the present case from the nature of the subject as well as from the spirit of our political constitution, the Judici­ary department is called on to decide. For it is essential to the indepen­dance of that department, that judicial mistakes should only be corrected by judicial authority. The President therefore introduces the question for the consideration of the Court, in order to insure a punctual execution of the Laws, and at the same time to manifest to the world the solicitude of our Government to preserve its faith and to cultivate the friendship and respect of foreign nations.’

Here then in both cases, (the constitutional powers of Gen. Washington and Mr. Adams being the same) a foreign Consul claims a Man to be de­livered up under a Clause of a treaty. The claim in both cases is made to a district Judge: in both cases the foreign Minister afterwards applies for the same purpose to the President of the U. S. and at this point, the Similitude ends. For Gen. Washington did not hazard an opinion of his own or exert executive influence in favour of the application from the French minister, but introduced the question for the consideration of the Court—Mr. Adams did ha­zard his own opinion in favour of Mr. Liston's application, and advised and requested Judge Bee to conform to it. Gen. Washington ‘had no inclina­tion to press upon the Court any particular construction of the clause in the Treaty’ Mr. Adams not only inclined, but indulged his inclination in press­ing upon Judge Bee that construction of the clause in the Treaty which was most favourable to the British claim. Gen. Washington deemed it ‘es­sential to the independence of the Judiciary Department, that judicial mistakes should be corrected by judicial authority’ —Mr. Adams not so tender of ju­diciary honour and independence, boldly satisfied the scruples of Judge Bee by executive authority. Gen. Washington ‘from the nature of the subject, as well as from the Spirit of our political Constitution’ left the ju­diciary department to decide the question—The nature of the subject and the spirit of our political Constitution, were no obstacles to Mr Adams; he decided the question himself without being restrained by the one considera­tion or the other. In the case of capt. Barré, Gen. Washington had a pre­tence for interfering, which Mr. Adams had not; for it was the application of the consul alone that gave jurisdiction to Judge Lawrence—whereas the charge of Piracy in the case of Robbins brought him compleatly within the jurisdiction of our Courts, even tho' it had been legally established that he was a native subject of the British monarch. Gen. Washington acted in a new case; he had no previous decision to guide his conduct; he can [Page 33] counter to no precedent of authority, to no case in point; no charge of Piracy gave undeniable jurisdiction: even though his good sense had not prevented his interference with Judge Lawrence, the mistake might in him have been forgiven—But Mr. Adams had a precedent to go by; he had law to guide his conduct? the case in point was within the compass of his information; the example set by his predecessor,

Gentlemen of the jury, after these observations it will be for yor to de­cide whether I have asserted too much in saying that Mr. Adams interfered without precedent and against law—might I not have been justified had I gone a little farther? [...]f he did so, it was against mercy, for the man was hanged.

In this message of the President there are certificates from certain per­sons of the town of Danbury denying that any man or any family of the name of Robbins had been known for many years within that town. There are two or three singular circumstances attending these certificates.

This is information subsequent to the libel.

Is not the whole of the Message of the President subsequent to the publication charged in the indictment? If so, how can it be evi­dence? Sir, you had not this evidence before you when you wrote that paper.

Sir, the point in question is, the truth or falsehood of the charge. I had evidence sufficient before me when I wrote it; sufficient to satisfy my own mind: what if I have still better evidence now? Is the fact the less true because the President confirms it? The facts had been publish­ed in almost every paper of the United States—they were detailed at length in a publication then before me, and now on the table, by a most respectable member of the Senate, Mr. Charles Pinckney; which I do not offer in evidence because I know it will be objected to. Besides this, I have already stated that these facts are and must be to the jury, matters of recent and public notoriety: they are so referred to by Mr. Pickering in his own report: they have boen given in all the debates in Congress lately published, and even now daily publishing; and I have a right, as I think, to adduce this message, at least as additional and corroborative testimony. But the issue between us is, TRUE or NOT TRUE; the issue is not, had I the best evidence at the time I wrote or not. Whatever evidence I possessed at the time I wrote, it is enough for me at this time, to prove that what I wrote was and is true: and the message goes directly to this point.

Gentlemen of the Jury, I say there are two or three singular circumstan­ces attending these certificates. They also, are far more liable to this objection than the evidence I have offered; for they have been pressed into the service, long after the publication of Robbins's affidavit that he was a native American. These certificates do not state that no such family as Robbins, was known in the neighbourhood of Danbury, as I sincerely be­lieve may yet be proved. ^* The time of the enquiring into this fact is also curious: While Robbins was alive, while he claimed (for I again repeat it as a notorious fact, and a fact referred to by Mr. Pickering him­self in the first page of the Report, that he d [...]d claim) to be a native [Page 34] American, no enquiry was thought necessary: while he could have an opportunity to repel by evidence a counter affidavit, none was made: nay the Judge himself appears to have thrown the consi­deration of citizenship out of the question.—But now, when Rob­bins has been delivered up and executed—when the enquiry can do him no service, and he is no longer alive to direct or to benefit by it, it has become an important question! The industry of Mr. Pickering has been exerted to bring us proof from all quarters, from Connecticut to Jamaica: the guarded evidence of the wise men of Danbury, and the disin­terested testimony of Sir Hyde Parker are set in array against the claim of Robbins. The President transmits this accumulation of irrefragable proof to Congress; our Representatives debate upon it; and the citizenship of Rob­bins at length becomes a question most material to be ascertained^†; If the evidence I have offered is objectionable, what shall we say to Mr. Picker­ings authorities? It is well that Congress is not scrupulous about the admis­sibility of testimony: It is well that the evidence contained in the Presi­dents message on this part of Robbin's history, was not subjected to as ma­ny tests as I have had to combat!

Gentlemen, I do contend that this is not like a trial on a matter of pro­perty, where every technical objection to evidence is admissible. That evi­dence which does in fact, and ought in reason, to decide your political con­duct when you are out of that box, is the kind of evidence which ought to decide mine; and it is unreasonable in my opinion on a political trial to re­quire any other; or to harrass a defendant by putting him to the enormous trouble and expence of travelling from one end of the Continent to the other, to bring forward legal evidence of a fact which nobody doubts before hand. I do contend, Gentlemen of the Jury, that there are, and may be certain facts of public politics sufficiently notorious to obviate the necessity of legal proof, and whose notoriety, is itself a matter of fact, which may in all cases be safely left to a jury to judge of.

The affidavit of Jonathan Robbins so often published, so commonly known, whose authenticity has never been scrupled, tho' its veracity has lately been denied, is one of those notorious facts that fall within the spirit of the preceding observations. While Robbins lived, it was uncontradicted by equal evidence; indeed it is so still: I had reason to give credit to it at the time I wrote, and I believe in the probability of it now.

Gentlemen, I have gone through all the charges; and I am satisfied that I have brought in support of my assertions, the best evidence the nature of my case would admit of.—It is true by resorting to Danbury for depositions and to Charles Town for records, I might have made the evidence in the last charge, more compleat; but I did not and do not think them necessary to produce further conviction on your minds, than you feel on the subject already. This is an important point under the law in question. If such strictness of testimony is required, there is an end at once of all political con­versation in promiscuous society. The time, the labour, the difficulty, the [Page 35] expence, the barrassment and fatigue, of mind as well as of body, which such doctrine would occasion, to every citizen whom a corrupt administra­tion might determine to ruin, would be an engine of oppression of itself sufficiently powerful to establish a perfect despotism over the press▪ and would be a punishment for innocence before trial, too severe to be inflicted on sedition itself. I think you must feel the truth of these remarks: the pro­ceedings on this trial, irresistibly suggest them.

Gentlemen, if the assertions I have made are true, whatever the motives of them may be, you cannot find me guilty. But I think it impossible if you consider the paper all together that you can ascribe the publication of it to malice: it is on the force of it not voluntary but compelled. I have in the very outset of the paper spoken well of the President: I have been in the habit of thinking his intentions right, and his public conduct wrong: and that this has been the general tennor of my language and behaviour, I believe I can even now bring proof enough from among my friends and my neighbours.

This is not necessary: it is your conduct, not your cha­racter that is in question. If this prosecution were for a crime against the United States, you might give evidence to your character and shew that you have always been a good citizen, but this is an indictment for a libel against the President, where your general character is not in question.

I am satisfied.—I shall fatigue the Jury no longer.—But rest my defence here.

Mr. RAWLE, in reply:—

Gentlemen of the Jury,

The defence you have just heard is one of the most extraordinary and unexampled I ever remember to have witnessed in a court of justice. It is no less than to call into decision whether Thomas Cooper, the defendant, or the President of the United States, to whom this country has thought proper to confide its most important interests, is best qualified to judge whe­ther the measures adopted by our government are calculated to preserve the peace and promote the happiness of America. This, however, does not seem to me the real point which you are to try; and I shall therefore (un­der direction of the court) proceed to state what I conceive to be the ques­tion which you, Gentlemen of the Jury are now called upon to determine. Thomas Cooper is charged in the Indictment with having published a false scandalous and malicious libel with intent to defame the President of the U­nited States and to bring him into contempt and disrepute, and to excite against him the hatred of the good people of this country. In the act which defines this offence, and points out the punishment, a liberality of defence is given, unknown I believe in any other Country ^* where the party is tri­ed for a libel on the Government. Here, the defendant is allowed under the third section of that act, to give in evidence the truth of the matters charged as a libel in the publication, and the Jury have a right to determine the Law and the fact under the direction of the Court. The [Page 36] true spirit of the Law is that the defendant shall not be found guilty of pub­lishing defamatory writings, unless they be false, nor altho' they may be false, shall he be considered as guilty under the law, unless the intent of the publication appear to be malicious.

That such publication has proceeded upon a knowledge of the truth, he is permitted to give as matter of evidence; and if true, it must be allowed to go far to satisfy the minds of the Jury, that the malicious motives impu­ted to him are not true. In private actions for slander, where a man seeks pecuniary redress for the injury his character has sustained, the defendant is entitled to give in evidence as a defence to the action, the truth of the words spoken or the written libel; and if the truth of the assertions be pro­ved, it will amount to a justification. There is no difference then between the defence that may be set up to an action of slander, or libel on a private person, and that which is permitted under the law whereon this indictment is grounded.

The defendant has undertaken to satisfy the mind of the Jury that in this publication he had no malicious intention against the President of the Uni­ted States; I join issue with him on the point, and request your particular attention to it. He alledges that he did not impute improper motives to the President, and attempts to substantiate his allegation by referring you to his declaration in the outset where he says that "I cannot believe him (the President) capable of such gross misrepresentations, for I still think well of his intentions, however I may disapprove of his conduct," but to this I shall add that he goes on and concludes with a paragraph, evincing in the clearest manner a settled design to persuade the public that the President of the United States is not fit for the high office he bears, and of this you must be fully convinced from the whole tenor of the expressions which have been read to you in the Indictment.

It is very far from my views to press hard upon any part of his long ad­dress to you, or to make use against him of any unguarded expression, which on more deliberate consideration he might have omitted or corrected; yet when I cannot but observe from the whole tenor of his present argu­ment, as well as from his publication, that his object is not so much to con­vince you Gentlemen of the Jury, that his assertions are true, as to cast an unmerited reflection on the general character and conduct of the President, I cannot help suspecting him of the motives he disclaims, and I must do my duty by exposing the design as well as the fallacy of the justification he has set up.

The defendant has used a little observation respecting the separating in the indictment the text, from the context, as I believe he was pleased to term it; and argued that by this means the most upright intentions and laudable expressions might be perverted from their true and obvious meaning. Such an insinuation however is not calculated to influence your minds. In fra­ming an indictment it is my duty to leave out matters of little importance, and to introduce those circumstances only that are truly and legally repre­hensible: and he well knows that he can read if he pleases the whole of the publication, and that you will have it with you when you consider of your Verdict. You will judge therefore whether by this observation it was his, or whether it is my design to confound and perplex the sense.

[Page 37]Whether the reflections he has thrown upon the conduct of Government in so many instances throughout his defence as well as in his publication, evince the regard he professes to entertain for the intentions of the President, is to me as it will be to you extremely dubious; nor have those professions been con­firmed by the singular manner in which he has cited and selected the passages on which his defence has been grounded. Throughout the quotations he has made, particularly from the addresses to the President, and the answers to them, there has been a series of misrepresentations which it will be my duty to observe upon when I come to consider that part of the charge and his vin­dication of it. But it is fair to observe that if from the perusal of partial ex­tracts and passages selected from various publications he has thought proper to publish a libel, such as that for which he is indicted against the character of our President, there is no excuse for his conduct; if on the other hand he had the whole of the publications before him, and has extracted from them partially and unfairly, his conduct is still more reprehensible, and there is the less excuse, as it is evident, and as you Gentlemen of the Jury, must have observed, that he is a man of talents and letters.

Mr. Cooper has thought proper to take up the several passages of his publication in the order in which they stand in the indictment, and in reply­ing to what he has said I shall follow the order he has pursued.

I pass over the passages respecting the incapacity of the President, and the infancy of political mistakes as of no great importance, and proceed to that part of the publication which accuses our Chief Magistrate of having sanctioned and promoted, a permanent navy, a standing army, and a loan at the high interest of 8 per cent in time of peace, while the unnecessary violence of official expressions might justly have provoked a war.

Here then the implication against the President is that at the same time when he was unnecessarily plunging us into a War he promoted a Navy, a standing Army, and borrowed money at an exorbitant interest, the one measure calculated to enslave and the other to oppress. But Gentlemen, how has the defendant shown this, what proof has he offered that these are measures for which the President in particular is blameable? Need I recall to your re­collection the Summer of the year 1798 when in consequence of the disgrace­ful and insulting treatment and rejection of our envoys by the French Go­vernment, the Citizens of this Country from every part of the United States addressed the President approving his measures and pledging their sup­port? Amongst others the Marine society at Boston came forward congra­tulating the American Nation that their beloved Washington has been suc­ceeded by a Man who treads with equal steps the honest plain and strait road so strictly followed by that wise and able statesman.

In this particular case gentlemen, with your permission I will read the whole of the answer

Now gentlemen I appeal to you, was it not natural and becoming, that in an­swering the address of a marine society, the President should dwell upon the topic most congenial to their institution? Those who do not look with a jea­lous eye on every action and catch with a propensity to blame at every word he utters, those who know the character of that gentleman in private life, and who have impartially witnessed his unremitting endeavours to pro­mote [Page 38] the defence and welfare of his country can surely find nothing but what they may sincerely praise in the answer I have just read to you.

The next passage Mr. Cooper has quoted is from the address of the young men of Boston: this address and the answer has been used for two purposes to support; his position that the President had recommended a navy and an army. Gentlemen I will read the whole of the answer

I confess I was much surprised to find that af­ter the President had recommended them to follow the "example of their fathers, one of whose first principles it was to unite in themselves the cha­racter of citizens and soldiers, and especially to preserve the latter always subordinate to the former." I was very much surprised to find that such an answer could be quoted as reprehensible.

To arms then my young friends to arms especially by sea, to be used as the law directs. Gentlemen can such sentiments so honestly guarded, be tortured into proof of the Presidents intention to plunge us into a war, to introduce a standing army and a permanent navy? Gentlemen these are not the conclusions you will draw. The paternal care of the President has hither­to happily watched over this country, and he knew and wisely signified the time when we ought to be prepared for those gloomy events, which we had too much reason to expect. Whether the adduction of these passages can sup­port the defendant in his defence against a malicious libel you are the best judges.

The defendant has read to you a passage culled from the answer of the President to the students of Dickenson college, wherein he hopes that none of them but such as feel a natural genius and disposition to martial exer­cise and exertions, will ever be called from the pleasing walks of science to repel any attack on their rights, liberties and independence: surely gen­tlemen if a moderate and affectionate sentiment of this kind, is to be tortured into an approbation of a military force or a standing army, the most innocent expressions are not safe from perversions. I cannot however for­bear to remark with how little propriety the defendant has complained of passages being selected from his publication for indictment without the context as he calls it, when his whole defence rests upon passages thus pick­ed out, to suit the unfair and malicious purposes of his defence, an epithet which I feel myself entitled to use, when I consider how that defence has been conducted and on what it rests.

But gentlemen of the jury, the defendant must have very little know­ledge of the existing circumstances of this country,^* when he talks to you [Page 39] of a standing army. There neither is nor can be a standing army in this country, the appropriations for the pay of the army cannot be made for more than two years at a time, nor has the President more to do with the army than the Congress or the Senate,^† and the reflections thrown upon your first magistrate are equally applicable to your representatives. A man so ignorant of the subject, or whose reading has been so careless, is very un­qualified to cast a reflection on the conduct of our government, or to instruct the people on the nature and tendency of the measures of administ [...]ation.

With respect to the loan at 8 per cent. if money has been borrowed at that rate of interest, of which however the defendant has produced to you no proof, it has been done under the authority of Congress and their mea­sures^* in this respect the President has sanctioned as he had a right to do, and as I think (confiding in his wisdom and integrity) he has rightly done.

Gentlemen, I do not pretend to be a judge of the propriety of this mea­sure. The Defendant says no other country has borrowed at so high a rate of interest in time of peace; but neither is he qualified to judge of this any more than myself; those who are qualified and who have been appoin­ted for the purpose, have judged for the nation; and I am satisfied as I doubt not you are. But to raise surmises and suspicions of the wisdom and design of measures of this kind, which he cannot know sufficient of to explain, or the people to understand, is evidence in my opinion that his design at least was to excite the hatred of the good people of this country against their President.

The Defendant proceeds to charge the President with unnecessary vio­lence of official expression that might justly have provoked a war. Gentle­men, you all of you know the provoking and unjustifiable conduct of the French Nation towards our envoys: the repeated designs and attempts of this country to procure an adjustment of differences on equitable grounds, and the strange and unexampled propositions made in return by the Go­vernment of France. It is not for me to dilate upon these topics, or on the depredations subsequently committed by that Nation on the American Com­merce, you all of you know, you all of you must have felt in some degree the consequence of her injustice: the President, far better acquainted with these proceedings against America and the tendency of them, made use of such expressions as the state of the country and the sentiments of the people required. Of this he was the best judge, and I doubt not in this instance as in every other of his wise and patriotic administration he judged for the best. The Defendant however still wiser than the President judged other­wise, and has accordingly ventured to advance before the public the harsh Crimination we are now considering.

Gentlemen, the Defendant has quoted passages from the address of the inhabitants of Vergennes in Vermont. I have before remarked to you the singular, and I think the unfair method of selection the Defendant has [Page 40] adopted; and the impropriety of stating the sentiments of the address itself as if it were the answer of the President and attributable to him. I will read you the passage

no such passage appears in the answer of the Pre­sident, and whether the sentiments contained in it are true or not, they pur­port to be the sentiments of others and not of the President. Such is the way in whick this Defence has been conducted, I will not go through the rest of Mr. Coopers quotations, because I do not think they have produced any effect on your minds or on the minds of the Court, which it is necessary for me to obviate.

The Defendant next recurs to the complaints of the French Government to our Envoys of the Expressions in the President's Speech. No doubt Gen­tlemen, it was the interest and the inclination of the French Executive to raise up some frivolous objection to the conduct of our Government that they might have some plausible pretext to justify their own.

But I am fully satisfied as I hope and believe you are, that the President of the United States had sufficient foundation for all that he has said on the conduct of France toward this country, and I shall leave you to judge for yourselves whether he or the Defendant are the most proper to decide what conduct or language ought to have been adopted on such provocation.

The next and most serious part of this Indictment is that which relates to Thomas Nash, or, as he has been called, Jonathan Robbins. Gentlemen I will read you the passage in the Indictment

Now Gentlemen it is important for you to remember the remote part of the country where this libel was published, and the class of people among whom it was dis­seminated, ^* and consider what must be the effect of assertions thus boldly advanced and strongly stated. Mr. Cooper either had evidence before him of the facts he has asserted respecting this Nash or Robbins, or he had not. If he had no evidence—what shall we say of a man deliberately propagating among an ignorant people, libels of the most serious nature and accusations against the highest characters, which if he does not know to be false he can­not know to be true? In support of his assertions he has read to you the Message of the President of the United States on the subject of Thomas Nash, or rather he has read in detached parts in a mutilated manner the Let­ter of Mr. Pickering: it is observable that he could not have had this evi­dence before him at the time he wrote, and yet this is the only evidence he has offered to the court in his own defence on this part of the charge.

I do not wish improperly to interrupt Mr. Rawle, but I did state, that I had other evidence before me: that the facts had been very generally published in the newspapers of every description: that they were commonly known and much discussed: that I offered the Message of the [Page 41] President as additional and corroborative testimony of what was very generally known to the public. Beside this, I had before me Mr. Pinckney's letters containing all the facts: these also were published in the papers be­fore they were collected in a pamphlet, and that pamphlet was publish- in August 1799; while the paper indicted was not published till Novem­ber 1799.

Sir you must not indirectly accuse the court of want of in­dulgence: there has not been any evidence denied you: you may even go into fresh evidence now, if you please.

Sir I do not complain of want of indulgence.

Since the defendant has thought fit to read only a part of Mr. Pickerings letter, I will read the whole of it

You observe gentlemen of the jury, that Mr. Cooper omitted all that passage beginning with "Provided no evidence of his criminality, &c." This opinion, given by the President, was confirmed by the vote of the House of Representatives in rejecting a motion criminating his conduct; and it would be confirmed by Mr. Cooper himself as a lawyer, if he had duly considered the subject, or if his opinions had not been warped by the influence of his political prejudices. But gentlemen, suppose the President had not done his duty, as he did— that he had not directed this Nash to be delivered up, then would the party opposed to his administration, have raised an outcry as loud, and perhaps better founded than they have made already. No conduct of the President however wise, no motives however pure, could screen him from the attacks of party spirit. But he has honestly endeavoured to preserve the good faith of the country by carrying a treaty into effect, and I trust he will receive the applause of impartial and competent judges for his behaviour on that occasion.

Gentlemen you have attended to the words of this charge in the indict­ment, and you cannot but be impressed that they convey on the face and in the very tenor of them, a ccnclusive proof of a mala mens, of a malicious and deliberate intention to injure the character of the President; no man can read them without receiving this impression from the perusal.

I have not touched on the article respecting the embassies to Prussia, Russia, and the Porte, because I did not think it of importance sufficient to occupy much of your time. Indeed, I believe no embassy was ever sent to Russia.^* There is enough for your consideration against the defendant, without dwelling on these lesser articles of the indictment.

Gentlemen I have no personal animosity against Mr. Cooper, but I have instituted this prosecution because I thought it my duty so to do, and I must make those remarks which the same duty calls forth.

The defendant has endeavoured to shew that his publication was with­out malice, but his conduct with 'squire Buyers and his expressions in that publication prove otherwise; the nature of his defence, though he has stated his opinion of the good intention of the President, evidently shews that he meant to justify his own conduct and language throughout. You [Page 42] Gentlemen of the Jury under the direction of the court, will decide whe­ther he has presented to you such a justification as will entitle him to your verdict in his favour.

After the jury had returned with a verdict of GUILTY:—

Mr. Cooper, as the jury have found you guilty we wish to hear any circumstances you have to offer in point of the mitigation of the fine the court may think proper to impose on you, and also in extenuation of your punishment. We should therefore wish to know your situation in life in regard to your circumstances—It will be proper for you to consider of this: as you are under recognizance, you will attend the court some time the latter end of the week—