An account of the trial of Thomas Cooper, of Northumberland; on a charge of libel against the president of the United States; taken in short hand. ; With a preface, notes, and appendix, by Thomas Cooper.

APPENDIX No. VI.

To shew that Dr. Priestley had a right to make use of the freedom with Mr. Adams which has given rise to this trial, I quote the following extracts from the letters of Mr. Adams to Dr. Priestly. I think this necessary in vindication of the character of Dr. Priestly himself, and it is evident there is nothing in these extracts but what will do honour to both.

The people themselves we see are capable of perfecting a Priestly, as an|other people formerly persecuted a Socrates.

Letter of Feb. 19 1792.

By a compliment which I hold very precious in your familiar letters to the inhabitants of Birmingham, I am emboldened to hope you will not be dis|pleased to receive another copy of my Defence especially as that which was presented to you formerly has probably had the honour of sharing the fate of your

library. Col. Smith will take one from New York, and present it to you, with my sincere veneration.

ibid.

Although it would give me great pleasure to see you in America, yet I cannot but think your removal would be a great loss to the political and literary world.

May 12, 1793.

But if any arrangements of the post-office, or other provision occurs to you, I beg you would mention it to me, for as I consider mankind in general under obligations to Dr. Priestly, I shall as one of them think it my duty to do what|ever may be in my power to contribute to his convenience in life or his comfort in this country.

Nov. 21, 1794.

TO JUDGE CHASE.

SIR

I address you, on the subject of my trial, because the Doctrines and asser|tions I object to, were particularly delivered by you. And tho' judge Peters sat upon the Bench, you were the presiding judge and prominent per|son in delivering the opinions that were given.

I hope this appeal to the public on the points whreon we differ, will not be deemed improper. Lord Mansfield submitted to have his Doctrines at|tacked and scrutinized* 2.1 and you may be as liable to err as he was. In|deed notwithstanding the sarcasms thrown out against my professional talents (with what propriety we shall soon see) they can hardly be called in ques|tion for differing in opinion from judge Chase or judge Peters, who not on|ly differ from each other but from themselves. You Sir, are averse to con|sidering the common law as part of the law of the United States; † 2.2 judge Peters admits it—you incline to issue but not to enforce, subpoenas to mem|bers of the Legislature; judge Peters is against issuing a process he cannot enforce—you, think it right not only to take for granted the existence of political parties, but thro' my fine, to tax the one in favour of the other; judge Peters more wisely, does not presume to know any thing but what passes in Court, or to care whether I pay a fine with the Money in my pock|et, or with the Money I may borrow—Both of ye in my case, (like the Senate in Duane's) determined a new point without condescending to hear argument upon it: You did the same afterward in the case of Fries, by pre-determining with the deliberation of a written opinion, the legal ques|tion of treason; and yet the next day your recalled you papers, withdrew your refusal to hear counsel on the point, and pressed them against your own solemn decision, to tread without fear, the forbidden ground. After

differences of opinion so repeated and so recent—after conduct so wavering and indecisive, I may safely venture to assert that your insinuations respect|ing my legal capacity may be controverted without presumption. While I am in court, I know it is my duty, and I feel it my inclination to submit with deference to the ex Cathedra decisions you are authorized to pro|nounce; but that deference to the constitutional expounders of the laws, does not deprive me of the right to call up in self defence their erroneous opinions before the more solemn tribunal of the Public.

I shall now proceed to the points of difference between us.

I. I claimed a right to the attendance of the President under process of the court.

When an opinion is once settled by the deliberate decision of a court, I think the Judges are right not to permit counsel to travel over beaten ground, or to re-urge the arguments and objections that have been already maturely considered and settled: it was for this reason I declined making any objection to the constitutionality of the sedition law, though I had no doubt of the validity of that objection. But I appeal to common sense and to professional experience, whether it is either proper or usual for a court to decide a new and a doubtful point, without hearing argument, when re|quested by a party concerned? Whether the decision of the court was right or not, your refusal to hear me on the subject, cannot be defended. Patience is required in a judge at all times, particularly on the decision of new cases, particularly toward a defendant on an indictment, and particu|larly when he pleads for himself. All these considerations should have in|duced you to have listened to the following observations that then occurred to me.

Your objection was, that being an indictment for a false and malicious libel against the President, he could not be called upon to give testimony at all: for it was improper to subject him to questions that might make him accuse himself of mal-administration.

I reply first, that the President is not the prosecutor here. That there is no ground for considering him as a legal party to this indictment, and it might be brought without his consent. It is not the United States on the prosecution of the President against Thomas Cooper, but the United States on the prosecution of the Attorney General ex officio, against Thomas Coo|per. Not being a party therefore, he might be examined.

I say secondly, that it is still further evident that he is not legally a par|ty, for I could not demand, on such an indictment, to have a prosecutor indorsed.

I say thirdly, that ex-officio informations may lie, where the Attorney Ge|neral has a right to call upon the person injured to support the prosecution by giving testimony on behalf of the United States: and farther that prosecu|tors or indictments are liable to be cross-examined by a defendant, whene|ver they are called as evidences, (as they very commonly are) in support of their own prosecution. So that the objections of your honour would avail in a considerable degree against common and known practice: but as I doubt whether they could be cross-examined out of the examination in chief, I do not rest on this argument.

Fourthly, the questions put, need not have been such as would in|duce any legal crimination by the answers. For instance, suppose I had ask|ed

the President, did you direct the present prosecution? did Mr. Stoddart consult you on his report respecting the Navy? Was you privy to and did you approve of Colonel Mc'Henry's reports on the army? Did Mr. Lis|ton or any person on the part of Great Britain, apply to you under the Trea|ty for the delivery of the Hermione sailors, tried before Judge Chase in the Jerseys? was there any communication between you and Judge Bee, pre|vious to Mr. Listons letter? Were you apprised of the case of the United States vs. Judge Lawrence? Surely the answers to those and many other questions relevant to the issue that might be framed, need not have inclu|ded any legal crimination. For that is the point: a man is not relieved from a question because it may tend to shew that he has been mistaken or faulty; if the answer does not subject him to legal reproof, the question may be put.

Fifthly, I think I had a clear right to his evidence on a preliminary and collateral question; for instance, as we have no Gazette as yet printed by Royal authority in this country, I wanted to shew that the President had countenanced and given authenticity to Fenno's Gazette. I wanted to bring my evidence completely within Rex v Holt. The President I believe could have enabled me to do this, and surely such questions as this point would have required, could not be objected to as within the reason of your deci|sion.

Sixthly, Nor did your own ideas on the light in which the President was to be considered seem quite clear: This rejecttion of his testimony evi|dently goes on the supposition that he would have appeared too much in the character of a prosecutor, and yet you decided that I was mistaken in considering him in that light. But your honour mistook me: I knew that he was not the legal, but I had a right to look upon him as the actual pro|secutor.

I know that men of eminence at the bar think you were wrong in deci|ding the point against me; but it may admit of doubt, for the case is new, and no analogous case can occur under Fox's Libel Bill.

But can it admit of doubt whether you ought to have heard arguments on so new a point?

II. You denied that I had any right to copies of official documents.— You said you knew of no law that would entitle me to them.

Be good enough Judge Chase to read the following extracts from the act of Congress entitled

An act to provide for the safe keeping of the acts, records, and seals of the United States and for other purposes.

Approved September 15th. 1789.

Sect. 5 The said Secretary (of State) shall cause a seal of office to be made for the said department (of State) of such device as the President of the United States shall approve; and all copies of records and papers in the said office, authenticated under the said seal shall be evidence equally as the original record or paper.

The next section prescribes the fees to be paid by persons requiring copies, viz. 10 cents per 100 words, and 25 cents for the seal.

I take the liberty of referring you next to the case of Rex vs. Holt. 5 T. R. 442. so often quoted, wherein Lord Kenyon declares

That the Ga|zette is evidence of many acts of state, cannot be doubted.***** These

are acts done by and to the King in his regal character: they are the ad|dresses of different bodies of subjects going to offer their loyalty at the foot of the throne and received by the King in his public capacity.— They then become acts of State, and of such acts announced to the public in the gazette, the gazette is evidence in courts of justice.

Hence I had a right to demand copies of these as PUBLIC PAPERS.

Take the trouble of reading the following determination of Dr. James Marriot in the case of the Ship Columbus.—Collect. Jurid. page 68.

On the opening of this cause it was suggested by the counsel for Mr. Le Mesurier, that frequent applications had been made by him to Go|vernment for a copy of the order of counsel.—Now if such an order had existed and had been produced it would have prevented this flood of li|tigation. Mr. Le Mesurier would not have heard so many brilliant ar|guments either for or against himself, nor the court have had the fatigue of watching them with extraordinary attention.—In any cause, where the crown is a party, it is to be observed, that the Crown can no more withhold evidence of documents in its possession than a private person.— If the court thinks proper to order the production of any public instru|ment, that order must be obeyed.—It wants no Insignia of authority de|rived from the Crown.—The order will enforce itself.—For if a party suing refuses to produce a necessary document, what follows? He shall take nothing by his petition.

All this was before me on the table; the reference marked.—Why did I not quote it? Because I should have been again liable to the charge of impropriety and indecency and perhaps with additional reproach, for a|gain venturing to doubt your honours decision—We are now before the public—let them judge whether you or I more deserve the professional sar|casms you thought fit to aim at me.

III. The documents I read seemed permitted on the part of your ho|nours rather as a matter of indulgence than of right. I was without coun|sel, and you were graciously pleased to permit me to say and to quote many things that a professional advocate would have been restrained from. The chief evidence I wanted was Fenno's paper; in which all my quotations were marked; though I used the selection of addresses for temporary con|venience.

Now I say, I was not obliged to your honours for the permission to read Fenno's paper—For 1st, I contend still that on a political trial that evidence to which the public constantly resorts is prima facie evidence to go to a jury. 2dly, Fenno's Gazette approaches so near to the case of a Royal Gazette that it is hardly distinguishable. It is a paper approbatory of the measures of government. Fenno is printer to the senate; and had I not been restrained from examining the President, I think I could have proved that Fenno was his printer too. But 4thly, it was the best evidence the na|ture of the circumstances would admit, for the higher grades of evidence were refused me by your honours' decision, and by the illiberal conduct of Mr. Adams. If I was interdicted from procuring better, this became the best.

IV. You denied the President's message to be evidence, because I had it not by me at the time I wrote.—I think this objection is founded on a mis|take of the issue, which was, true or not true generally; without reference

to time. But having dwelt on this before I shall not repeat my argu|ments here.

V. My allegation that the notoriety of political fact, was a proper cir|cumstance to be judged of by the jury, seemed evidently by your manner, to be permitted out of indulgence and compassion, while on my part I sub|mitted to what passed, out of deference to the high character with which you were cloathed; but a man must be very ill read in the trials for sedi|tion, and must very carelessly have attended to Mr. Rawle's speech and your charge, not to be convinced that notoriety of political fact must sometimes be taken for granted: how far it ought to avail, is circumstanse to the jury. If on trial where character can be given in evidence—if on trials as in England on prescriptive road-causes—if on trials respecting marriage, common reputation may be stated as evidence, how much more proper is it on the general facts of public politics. The hardship and ab|surdity of insisting on strict legal evidence in such a case, is in my opinion too glaring to be enlarged upon.

VI. You object to charging the navy on the President, and yet you must have known, that the measure was grounded on the President's speeches and on Mr. Stoddard's report. Qui facit per alium facit per se. That it is a permanent establishment appears from the purchase of woods and islands for the use of the navy. See the reports and acts of Congress relative to the navy. But if it met with no more than his sanction, my position was true, independent of the proof I adduced.

VII. I must join issue with you on the subject of the army, though I much dislike the harsh terms wherein you have expressed the alternative. I think you are wrong; for, 1st, a standing army, as I have before stated, is a body of troops existing in permanent discipline in contradistinction to the periodical discipline of militia forces. The term is English, used in this sense by every author who has written on the subject in that country, and particularly in the legislative debates and the lords' protests.

2dly, The appropriations for the standing army in that country as well as the mutiny bill, are annual, as appears by the annual "Distribution of Grants," presented to the house of commons of Great-Britain.

3dly, The soldiery there are enlisted for life, although the appropriati|ons are annual. Here they are enlisted on the PERMANENT ESTABLISH|MENT (M'Henry's Rep. 13th Jan. 1800, p. 35) for five years. No man is enlisted for 1, 2, 3 or 4 years—hence there is a regular succession and supply kept up. So are the instructions of enlistment.

4thly, The Terms made use of for that army in the reports of colonel M'Henry, and in the act of congress entitled, "An an act to ascertain and fix the Military establishment of the United States," are establishment, per|manent establishment, to keep up by enlistments, &c. You ought to have known this. The five-year army is not a five-year army, but a permanent army, where every soldier enlisted, is enlisted for the term of five years from the date of his enlistment.

VIII. I cannot account for your mode of arguing the case of JONA|THAN ROBBINS, but whoever attended the trial will be able to account why I did not examine you on the business of the Hermione seamen indicted for piracy before you in Jersey. How happens it in the first place that you so strangely omitted to notice the prominent charge of Piracy? A charge that came before yourself in the case of the other seamen of the Hermione▪

a charge that came before Judge Bee in Robbins's case, that was specifically recognized by the President and by Mr. Pickering in the message noticed by myself, and which you must know gave indisputable jurisdiction to the circuit court. Surely you ought to have known, and ought not to have omitted this strong point.

A pirate is described as Hestis humani Generis. Moll. l. 1. c. 4. § 1.— He is not an offender against a particular country, but against all countries, and therefore all countries have jurisdiction. This doctrine is recognized in the following cases of English law:

The king of England hath not only an empire and sovereignty over the British seas for the punishment of piracy; but in concurrence with other Princes and States, an un|doubted jurisdiction and power in the most remote parts of the world. If any person therefore, native or foreigner, Christian or infidel, Turk or pagan, with whose country we are in amity, trade or correspondence, shall be robbed or spoiled in the narrow or other seas, whether the Medi|terranean, Atlantic, Southern or any blanches thereof either in this or the other side of the line, it is piracy within the limits and cognizance of the admiralty sessions. Sir Ch. Hodge's charge. Old Bailey 8. w. 3. Hawk. pl. c. 152, of Dublin ed. 1788.

"The Captain of a French merchantman, having put into a port in Ire|land, was accused by his crew of robberies on the seas, and fled. His ship and goods were considered as having belonged to pirates. The French consuls presented memorials requiring the cause to be remanded to the na|tural judge, as was pretended, in France. But the king and his counsel finally adjudged that he was sufficiently founded in point of jurisdiction, to confiscate the ship and goods, and to try capitally the captain himself, had he been in hold; the matter of Renvoy being a thing quite disused among princes; and as every man by the usage of our European nations is justiciable in the place where the crime is committed, so are pirates, being out of the protection of all laws and privileges, and to be tried in what part soever they are taken. 2. Wooddeson, § 428. Sr. Leol. Jenk. Rep. 714.

The jurisdiction having thus attached to the Circuit court, and having been acted upon, ought not to have been surrendered at the advice or re|quest of any man whatever.

Had the crime been murder alone, as your charge implies, I incline to think your doctrine would have been well founded. But you know, or ought to know, that where an inferior crime flows from a superior, the former is merged in the latter. Thus, Trespass is merged in Felony, As|sault and Battery, in Riot. In the first section of Molloy's chapter on pi|racy, he describes a pirate as a sea thief: hostis humani generis, who, to enrich himself, either by surprise or open force, sets upon merchants and others trading by sea, ever spoiling their lading, if they can by any means get the mastery, sometimes bereaving them of their lives, and sinking their ships **** against these, any prince hath power to make war, though they be not subject to his government. Molloy L. 1. c. 4. § 1. Grot. de Jur. Belli. L. 2. c. 20. § 40.

Hence it appears, that the court had jurisdiction: that the court acted upon it: that the court instead of deciding upon argument, adopted the opinion of the executive on two judicial questions: that the court listened

to and acted upon the advice and request of the executive in a case within judicial authority.

Again. Why was it that you did not notice the very strong case of the United States and Judge Lawrence? If it did not apply, why not sayh so? If it did, why not allow its proper force? Why give room to suppose it was too strong to be controverted?

IX. I complain of improper conduct in your summing up against me: I say (submitting to public opinion) that it is not a part of a judge's duty to argue a cause against a defendant on a penal prosecution—to notice the omission of an Attorney General—to dwell upon circumstances of aggrava|tion—to omit strong points of the defence, or to let the jury perceive a bias in the mind of the court. I say this is notoriously against the practice of the English Bench at least. It might have been pleasing to Mr. Pickering on your right hand, to Messrs. Read, Harper, &c. on your left, to Mr. Tracy behind you, to Messrs. Shaw, Stoddart and Mc'Henry in front of you, but I think, the public will not regard it with the same encomiastic placidity.

X. And that I may not omit any of the points of difference between us, I shall state that, tho' your objection to the generality of my affidavit, was perhaps in strictness of law defensible, yet it was not conformable to the practice I have witnessed in the courts here: where a party is not entitled according to the rules off practice, to put off a cause, and where an inconve|nience will arise to his opponent from deferring it, or where there is ground to suspect intentional delay, there the courts always require a spe|cial affidavit, going to the points that the absent witnesses are required to prove; but where no affectation of delay is imputable, and where a party has not claimed the cause to be deferred before, a general affidavit is not usually objected to.

I had a right from the common indulgence, to have put off my trial till next term, and therefore was compleatly within the equity of what I un|derstood to be, the rule of practice here: but I shall not deny your right to insist as you did, though it was certainty stretching the law to the utmost.* 2.3

Your charge of indecency for presuming to offer arguments against the decision of the court, prevented me from using at that time the authorities in my power. But you have now an opportunity if you please, of descend|ing into the arena of the public, a mark of attention on my part that you owe to the situation you fill. You have thrown out the challenge of pro|fessional imputation and it is accepted.

THOMAS COOPER.

Prison of Philadelphia, May 1, 1800.

Notes

• * 2.1

  By Andrew Stuart in the Angleasea cause, and in the Douglas cause, By Mr. Fearne in the case of Perrin and Blake.
• † 2.2

  Whoever will take the truble of perusing that fine specimen of unanswer|able reasoning by Mr. Maddison, The Proceedings of the Virginia Assembly on the answers of sundry States, &c. (Printed by Carey, Philadelphia) will be satisfied that the question about the common law forming a part of the law of the United States, is settled as far as sound argument can settle it.
• * 2.3

  In the case of the King v. Tandy and Morris, Feb. 12, 1799, in the King's Bench of Ireland, "the defendants were again brought up," and their counsel moved to postpone the trial till next term, stating the absence of several material witnesses at Hamburgh. Though in this case it should appear that the prisoners were brought up at the second term, which I was not, though the affidavit did not state that the witnesses had been sought for or served with process, which mine did; although there was reasonable doubt whether they could be procured at all—a doubt which did not exist in my case; though the offence there, was much higher than the charge against me, yet the attorney general objecting to the legal sufficiency of the affidavit, allowed the trial to be put off on that ground. This case is reported by Brown, Phil. Gaz. April 21, 1800.