wept for such a cause, but whether they did in fact weep from that cause. I may not speak for them, but I confess that, in far distant lands, I heard and knew the fame of the author of "The Spy," and of "The Pioneers." I rejoiced as his countryman, and as his countryman I have sorrowed and been afflicted by the undignified attitude the distinguished author has held in the litigation described in this plea. And if I and others of his fellow citizens have thus deplored his infatuation, it is not unnatural to suppose that the same cause has brought regret, sorrow, and even tears into that domestic circle where his great fame is so greatly and so fondly cherished.

I will not detain the court with further reply to the criticisms on the pleas. They will be found fully answered in the points submitted to the court.

In conclusion. I have shown in the first place that certain departures as to the law of pleading, which took place long ago in this court before any of its present members had seats on the bench, have rendered the defence in actions of libel complicated, dangerous and difficult. Secondly, that obiter dicta which have fallen from the bench have extended still wider the broad and dangerous definitions of libel which in an unfortunate age were adopted in England, and have rendered it next to impossible to justify any libel, however true.

I beg leave with all deference and respect to implore a review of the law in all these respects. Actions of libel are now at least comparatively unnecessary. A virtuous and humble life carries with it its own vindication. And if this be not enough, the press has the antidote to its own poisons. If it sometimes wounds, it can effectually heal. An eminent citizen who once presided in this court commenced public life with actions in defence of his character. Assailed as he thought in the evening of his life, he appealed to the press, and his vindication was complete and successful. The licentiousness of the press has impaired its power to defame and the worst libel ever published would be effectually counteracted by a publication in the simple words, "I am not guilty," if it bore the signature of James Milnor, or of one who like him walked among his countrymen in the ways of a pure and blameless life.

The undesigned encroachments on personal rights in the law of libel have at length brought about a conflict between the judiciary and the press. The press is a necessary, a potential institution in

our democratic system. It is the agent by which the people acquire the information they need in regard to the conduct of every department of the government-the judiciary as well as the legislative and executive authorities. All these departments, as well as the public conduct of all citizens, are subjected to the scrutiny of an all-powerful and all-controlling public opinion, ascertained, collected, and pronounced by the public press. That public opinion is higher than courts, and will, when it is necessary, correct even judicial errors. The conductors of the press have legitimate functions to perform, and if they perform them honestly, fairly, and faithfully, they ought to be upheld, favored and protected, rather than discouraged, embarrassed and oppressed. Under such circumstances it is neither wise, nor will it be successful, to enforce on an honest, enlightened and patriotic journal, the rules of libel established in the worst of times in England-that if a publication reflect upon any man or magistrate it shall be presumed, without proof and against all rational presumption of candor and fairness, that the error was intentional, malicious and malignant, and that vindictive damages shall be awarded where an honest but unsuccessful effort to justify is made. Far wiser and better would it be to open the doors wider to defence in such cases, and to restore the ancient English law which distinguished harmless invective, or that temperate and discreet censure or ridicule which promoted public morals, from vicious and licentious defamation. If this course is not taken, and we shall still adhere to the dictum that any censorious or ridiculing writing shall be deemed malicious and therefore libelous, the law cannot be executed, because not sustained by a sound public opinion. The action of libel will more and more be relinquished by good men, for whom it was designed, and be left to fall more completely into the hands of litigious and corrupt men as an engine of extortion and oppression. The judgments of a court will be but brutum fulmen if they be not sustained by the candid judgment of society, and will have no power to arrest the evil of licentiousness. Whatever may be the course of courts of justice, the press will go on to perform its high and imperative duties, sustained by the free people, whose liberties it maintains and defends. To fetter it with the star chamber rescripts of libel will be an effort as vain as would be an attempt to graduate and control by the ancient laws of the highway the velocity of the newly discovered and all-revolutionizing magnetic telegraph.

DEFENCE OF WILLIAM FREEMAN.*

INTRODUCTORY NOTE.-In 1845, Henry Wyatt, a convict in the State Prison at Auburn, murdered another convict. Wyatt was indicted, and eminent counsel were applied to, to defend him. But they declined, on the eve of the trial, on the ground that no provision was made for their compensation.

Wyatt appealed to Mr. Seward's humanity, and he at once consented. When the circumstances were investigated, reason was found for the belief that the prisoner was insane. The trial came on in February, 1846, and after an impartial hearing, the jury disagreed. On the 12th of March, succeeding, a fearful tragedy occurred near Auburn. William Freeman, a negro, and a native of that place, who had recently been discharged from five years' confinement in the State Prison, having provided himself with weapons, proceeded to the house of John G. Van Nest, in the suburbs of Auburn, and there, without notice and without any apparent motive, slew Mr. Van Nest, a wealthy and worthy citizen, Mrs. Van Nest, her sleeping infant, and her aged mother, and wounded mortally, as was then thought, the laboring man who dwelt with them, leaving only the maid-servant of the family, and she only had been spared because he had been disabled in the affray. He took an old horse from the stable, and, finding the animal unfit to travel, stabbed and left it by the road-side. He proceeded to the house of a relative, forty miles from Auburn, expressing a desire to remain there until he should recover from his wounds. He was arrested and conveyed back to Auburn, and then, surrounded by the people of Auburn and the adjacent country, was taken to the scene of his crimes, to be identified by the survivors, in the presence of the dead bodies of his victims.

So far from manifesting any compunction, he avowed the deed, and described its details, and laughed continually during the recital. The incensed people saw in this and other strange conduct of the prisoner, and in the absence of any motive of the crime, reason to apprehend that he might escape punishment, by a plea of insanity. They were easily made to believe that the partial success which had attended that plea in Wyatt's case, had emboldened the negro to commit acts so atrocious and so horrible. They resolved, therefore, and prepared to take him from the hands of the police, and to inflict summary justice upon him.

This design, however, was baffled by stratagem, and the multitude reluctantly dispersed, after being assured by a judge that Freeman should be tried, and "no Seward should defend him."

Meantime the victims were buried, amid sincere exhibitions of popular sympathy, mingled with execrations against the homicide, and unsparing denunciations of the lawyer whose defence of Wyatt was supposed in some way to have brought about these

Argument in defence of William Freeman.-Auburn, July 21 and 22, 1846.

revolting crimes, and who also, it was supposed, would have the audacity to appear in defence of the wretch who had committed them. The clergyman who conducted the funeral, carried the excitement to a higher pitch, by appealing to the instincts of self-preservation and against the indulgence of moderation and forbearance toward "adroit counsel,” in their efforts to lower the standard of moral accountability by the plea of insanity. Mr. Seward's law-partners and his friends, overpowered by these demonstrations of popular prejudice, gave pledges to the public that he would not outrage the prevailing sentiment, by defending the prisoner. The governor, Silas Wright, responded promptly to the popular demand for a special term of the court, to try both Wyatt and Freeman on the 1st of June. In the meantime, Mr. Seward returned from Washington, and heard the strange facts in the case with pain and surprise. They raised a suspicion that the prisoner was a lunatic. He thereupon wrote to the most eminent members of the Medical Faculty in New York, Connecticut, and Massachusetts, and called their attention to the case, as one which interested science and humanity not less than justice, and requested them to attend on the trial and make the necessary examinations of the prisoner, to the end that if he was sane the law might have its due vindication, and if he was not, the country might be saved from the crime of inflicting judicial murder upon a lunatic. He received favorable answers, and then rested, willing and anxious to leave the conduct of the case to any proper member of the bar who might be in any way em ployed, or induced, or assigned to defend the prisoner. The court assembled. The physicians pronounced the prisoner a lunatic. No counsel, however, appeared in his behalf, and the people who thronged the court-house and streets were expecting an unobstructed triumph. Mr. Seward however appeared and interposed a preliminary plea that the prisoner was insane. The plea was received, but it drew down upon Mr. Seward the public indignation in that vicinity and throughout the whole country, and his conduct became the subject of a political issue. His own party generally recoiled from a proceeding so unpopular, while the other party condemned him without reserve, and without moderation. After a trial of a fortnight, as to the sanity of the prisoner, the jury went out for consultation. Eleven were for a verdict that he was sane, and one for a verdict that he was insane. A private intimation of these facts was conveyed to the court, and a message returned that a verdict might be rendered that the prisoner was sane enough to distinguish between right and wrong. The twelfth juror joined in this verdict, believing it insufficient to put the prisoner on his trial; the other eleven, however, privately knew that the court would decide it to be sufficient. The trial proceeded, (Mr. Seward's efforts to set aside the verdict having failed), and after the lapse of another fortnight, a verdict of guilty was rendered, and the unconscious prisoner was sentenced to be executed. Mr. Seward applied to the governor for a pardon, but was denied. He then appealed to the Supreme Court for a new trial. John Van Buren, Attorney-General, appeared in opposition. After a patient hearing of the case, however, the court reversed the judgment, and granted a new trial. The same judge, who had before tried and condemned the prisoner, now refused to try him again, on the ground of his manifest idiocy. Indeed, the time soon arrived when all doubts were at an end. Freeman died in his cell, about a year after his trial and conviction. A post mortem examination was made of his brain, and seven of the physicians of Auburn concurred in a statement that it was the subject of a chronic disease, remarkable in its extent. Such is a brief outline of this most extraordinary case. For other facts in this interesting trial, the reader is referred to the "Trial of William Freeman, by B. F. Hall, Esq., Auburn, N. Y., 1847," to the Memoir, and to the following argument :-ED.

MAY IT PLEASE THE COURT-Gentlemen of the jury: "THOU SHALT NOT KILL," and, "WHOSO SHEDDETH MAN'S BLOOD, BY MAN SHALL HIS BLOOD BE SHED," are laws found in the code of that people who, although distracted and dispersed through all lands, trace their history to the creation; a history that records that murder was the first of human crimes.

The first of these precepts constitutes a tenth part of the jurisprudence which God saw fit to establish, at an early period, for the government of all mankind, throughout all generations. The latter, of less universal obligation, is still retained in our system, although other states, as intelligent and refined, as secure and peaceful, have substituted for it the more benign principle that good shall be returned for evil. I yield implicit submission to this law, and acknowledge the justness of its penalty, and the duty of courts and juries to give it effect.

In this case, if the prisoner be guilty of murder, I do not ask remission of punishment. If he be guilty, never was murderer more guilty. He has murdered not only John G. Van Nest, but his hands are reeking with the blood of other, and numerous, and even more pitiable victims. The slaying of Van Nest, if a crime at all, was the cowardly crime of assassination. John G. Van Nest was a just, upright, virtuous man, of middle age, of grave and modest demeanor, distinguished by especial marks of the respect and esteem of his fellow-citizens. On his arm leaned a confiding wife, and they supported, on the one side, children to whom they had given being, and, on the other, aged and venerable parents, from whom they had derived existence. The assassination of such a man was an atrocious crime, but the murderer, with more than savage refinement, immolated on the same altar, in the same hour, a venerable and virtuous matron of more than three-score years, and her daughter, the wife of Van Nest, mother of an unborn infant. Nor was this all. Providence, which, for its own mysterious purposes, permitted these dreadful crimes, in mercy suffered the same arm to be raised against the sleeping orphan child of the butchered parents and received it into Heaven. A whole family, just, gentle, and pure, were thus, in their own house, in the night time, without any provocation, without one moment's warning, sent by the murderer to join the assembly of the just; and even the laboring man, sojourning within their gates, received