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844 X. AMERICAN STATE TRIALS.

my stating to the court the reasons which have led me to this con-
clusion, may subject me to the imputation which has more than ones
fallen from the bench. It has been the pleasure of the court to
observe, that the defense had been conceived and continued in error.
What I am about to say will not, perhaps, induce the court to
change that opinion. It is with great diffidence I addres the court
on a subject whieh I have not had sufficient leisure to investigate.
If, unfortunately, my conception of this law be mistaken, I hope 1
shall be exeused, and that the reprimand will not be severe, when it
is recollected that I have had not snfficient time for a full examina-
tion of the case. The position for which I contend is that the book
entitled “The Prospect Before Us” cannot be given in evidence in
support of the indietment, The title of the book ig not mentioned
in the indictment, It states, that “on the first day of February, one
thousand eight hundred, the traverser did write, print, utter and
ublish, a false, seandalous and malicious writing against the Presi-
t of the United States, of the tenor and effect following: “The
reign of Mr, Adams; ete.” Tn prosecutions for libels in the English
courts, great strictness is observed; the difference of a single letter
between the words of the indictment and those in the written or
printed paper adduced in evidence, is fatal; and when “tenor and
effect” are inserted, all the authorities eoucar in declaring, that they
impose on the prosecutor the necessity of proving the very words
in the indictment. The first charge in the indictment is for a
libellous writing of the following tenor: “The reign of Mr. Adams
has been one continued reign of malignant passions.’ The book
which is introduced in support of thie charge begins differently, and
contains a hundred other pages, and many pages besides, and is not
named in the indictment, The position for whieh I therefore mean
to contend is, that when libellous passages are extracted from a book
which has a name by which it can be deseribed, it is the duty of the
prosecutor to deseribo the book by that name; for instance, he ought,
in this case, to have stated, that the party accused had published a
falee, scandalous and malicious writing, entitled “The Prospect Be-
fore Us,” containing, among other things, the passages complained
of. There are two strong reasons to support this doctrine. Ths
first ground on which I rest the validity of this observation js, that
the practice has been invariably so. have taken the trouble of
fifteen or twenty eases, in all of which the books from
which libellous passages were taken, had a name or title, and the
prosecutor described every one of them by the name ‘which the
author had chosen to give it. From these J will select three cases,
to show that the description of the libellous writing by the title
given it by the author, has been deemed essentially necessary, the
first of which was remarkable for the length of the title; the second,
where the paper contained the libel, had a number as well as 4
title, and both the number and the title were recited. And the
third, where the libel was published in the French language, in
which case the title, though lengthy, was recited in that language,
and then in English, In page 87 of the same book there is a history

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