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830 X. AMERICAN STATE TRIALS.

sel are unprepared to defend the traverser. You show
yourselves to be men of ability, and there is no difficulty in
the cause; but you say that you are not ready to discuss the
difference between fact and opinion: that the charges in
the indictment are merely opinion, and not facta falsely aa-
serted. Must there be a departure from common sense, to
find out a construction favorable to the traverser? This
construction admits the publication, but denies ita crimin-
ality. If the traverser certainly published that defamatory
paper, read it and consider it. Can any man of you say
that the President is a detestable and criminal man? The
traverser charges him with being a murderer and a thief,
a despot and a tyrant! Will you eall a man a murderer and
a thief and excuse yourself by saying it is but mere opin-
jon—or, that you heard so? Any falsehood, however pal-
pable and wicked, may be justified by this species of argu-
ment. The question here is, with what intent the traverser
published these charges? Are they false, scandalous, and
malicious, and published with intent to defame? It is for
the jury to say, what was the intent of such imputations,
and this is sufficiently obvious. The eause must be tried. I
am sworn to do justice between the United States and the
prisoner at the bar. I do not dictate to you how you are to
defend him, but you must defend every man according to
the law; and without intending any disrespect to either of
you, I must confine you to what I think the law.

The Marshal was ordered to call the jury, which was done.

Mr. Nicholas. We mean to challenge the array and take
every advantage which the laws of the country give us. In
support of this doctrine I will read a passage from ‘‘Trials
per Pais.”” (Here he read the passage.) I believe there is
testimony in court to prove that one of the jurors returned
by the marshal, has expressed his sentiments hostile to the
traverser. It is like a case stated in the books, where a ver-
diet was set aside, because a juryman had previously said
that the man accused ought to be hanged, and in that case,

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