Alvin Victor Sellers.

Classics of the bar, stories of the world's great jury trials and a compilation of forensic masterpieces (Volume 3) online

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degree, a contempt or hatred against the trangressing

These observations of Mr. Madison were made in
respect to the freedom of the press. There were two
views entertained at the time when the sedition law
was passed concerning the power of Congress over


Curtis's Defense of the President

this subject. The one view was that, when the Con-
stitution spoke of freedom of the press, it referred to
the common-law definition of that freedom. That
was the view which Mr. Madison was controverting
in one of the passages which I have read to you.
The other view was that the common-law definition
could not be deemed applicable, and that the freedom
provided for by the Constitution, so far as the action
of Congress was concerned, was an absolute freedom
of the press. But no one ever imagined that freedom
of speech, in contradistinction from written libel,
could be restrained by a law of Congress; for whether
you treat the prohibition in the Constitution as abso-
lute in itself, or whether you refer to the common law
for a definition of its limits and meaning, the result
will be the same.

Under the common law, no man was ever punished
criminally for spoken words. If he slandered his
neighbor and injured him, he must make good in
damages to his neighbor the injury he had done; but
there was no such thing, at the common law, as an
indictment for spoken words. So that this prohibi-
tion in the Constitution against any legislation by
Congress in restraint of the freedom of speech is neces-
sarily an absolute prohibition; and therefore this is
a case not only where there is no law made prior to
the act to punish the act, but a case where Congress
is expressly prohibited from making any law to oper-
ate even on subsequent acts. What is the law to be?
Suppose it is, as the honorable managers seem to


Classics of the Bar

think it should be, the sense of propriety of each
Senator appealed to. What is it to be? The only
rule I have heard the only rule which can be an-
nounced is that you may require the speaker to
speak properly. Who are to be the judges whether
he speaks properly? In this case the Senate of the
United States, on the presentation of the House of
Representatives of the United States; and that is
supposed to be the freedom of speech secured by this
absolute prohibition of the Constitution.

That is the same freedom of speech, Senators, in
consequence of which thousands of men went to the
scaffold under the Tudors and the Stuarts. That is
the same freedom of speech which caused thousands
of heads of men and of women to roll from the guillo-
tine in France. That is the same freedom of speech
which has caused in our day, more than once, "order
to reign in Warsaw." The persons did not speak
properly in the apprehension of the judges before
whom they were brought. Is that the freedom of
speech intended to be secured by our Constitution?

Mr. Chief Justice and Senators, I have to detain
you but a very short time longer, and that is by a
few observations concerning the eleventh article, and
they will be very few, for the reason that the eleventh
article, as I understand it, contains nothing new
which needs any notice from me. It appears by the
official copy of the articles which is before us the
printed copy that this article was adopted at a later
period than the preceding nine articles; and I suppose


Curtis's Defense of the President

it has that appearance that the honorable man-
agers, looking over the work they had already per-
formed, perhaps not feeling perfectly satisfied to
leave it in the shape in which it then stood, came to
the conclusion to add this eleventh article, and they
have compounded it out of the materials which they
had previously worked up into the others.

In the first place, they said: Here are the speeches;
we will have something about them. And, accord-
ingly, they begin by the allegation that the President,
at the executive mansion, on a certain occasion, made
a speech, and without giving his words, but it is at-
tributed to him that he had an intention to declare
that this was not a Congress, within the meaning of
the Constitution; all of which is denied in his answer,
and there is no proof to support it. The President,
by his whole course of conduct, has shown that he
could have entertained no such intention as that. He
has explained that fully in his answer, and I do not
think it necessary to repeat the explanation.

Then they come to the old matter of the removal
of Mr. Stanton. They say he made this speech deny-
ing the competency of Congress to legislate, and, fol-
lowing up its intent, he endeavored to remove Mr.
Stanton. I have sufficiently discussed that, and I
shall not weary the patience of the Senate by doing
so any further.

Then they say that he made this speech, and
followed up its intent by endeavoring to get posses-
sion of the money appropriated for the military ser-


Classics of the Bar

vice of the United States. I have said all I desire to
say upon that.

Then they say that he made it with the intent to
obstruct what is called the law "for the better govern-
ment of the rebel States," passed in March, 1867, and
in support of that they have offered a telegram to
him from Governor Parsons, and an answer to that
telegram from the President, upon the subject of an
amendment of the Constitution, sent in January be-
fore the March when the law came into existence;
and, so far as I know, that is the only evidence which
they have offered upon that subject. I leave, there-
fore, with these remarks, that article for the consid-
eration of the Senate.

It must be unnecessary for me to say anything con-
cerning the importance of this case, not only now, but
in the future. It must be apparent to every one in
any way connected with or concerned in this trial that
this is and will be the most conspicuous instance
which ever has been or can ever be expected to be
found of American justice or American injustice,
of that justice which Mr. Burke says is the great
standing policy of all civilized states, or of that in-
justice which is sure to be discovered, and which
makes even the wise man mad, and which, in the
fixed and immutable order of God's providence, is
certain to return to plague its inventors.

After the introduction of the evidence and the presenta-
tion of the arguments, the vote was taken. The eleventh


Curtis 's Defense of the President

article was first voted upon, each member of the Senate
voting "guilty," or "not guilty," as his name was called.
The result was, thirty-five Senators voted for conviction,
and seventeen for acquittal. This was a victory for the
President as a two-thirds vote was required to condemn.
Later the second and third articles were voted upon with
precisely the same result. Upon the remaining articles
no vote was taken.

The greatest trial of its kind in history was now over,
and the Senate adjourned sine die.

Referring to the speech of Mr. Curtis, which was prob-
ably the greatest of his many forensic efforts, Benjamin
F. Butler, one of the House managers, said, after the trial:
"After Judge Curtis had presented the case of his client,
nothing more was added in his behalf, although in the five
or six closing speeches of his other counsel, much else was

One of the newspaper correspondents, in a communica-
tion to his paper, wrote as follows:

"It became evident to those who were not already
familiar with his style of oratory that Mr. Curtis was not,
in the highest sense, an orator. He spoke from volumi-
nous notes, and frequently consulted and read from the
books of reference beside him. The clearness of his state-
ments, the accuracy of his logic, and the precision and
steadiness with which he advanced from every premise he
established to conclusions, needed, in fact, no fiery oratory
to enhance the effect. If his tones did not often thrill the
heart, they reached the brain. They were earnest, if not
eloquent, and there was a certain fascination in their
monotony. They bore a heavier burden of matter than the
chaff blown from the lips of many windy elocutionists, and


Classics of the Bar

that is one reason why their equable, repressed accents
were tolerable.

"Two or three times Mr. Curtis indulged a fervor which
gave to his aspect an inspiring majesty and glow. Then
his voice had the tremor of a waterfall. Then his form
shook like a pine; but as a pine recovers itself after a gust,
and stands erect and stately as before, so, in an instant
after these noble outbursts, the speaker of today was seen
composed and motionless, as if every hot impulse of his
nature had been thrust back beaten into its lair.

"It is generally regarded that the speech is an original
and invincible effort."



Tom Watson in His Own Defense

THE grand jury serving at the November
term, 1912, of the United States District
Court, in session at Augusta, Ga., preferred
an indictment against Thomas E. Watson, editor and
publisher of Watson's Jeffersonian Magazine, charg-
ing him with having violated Section 211 of the Penal
Code of the United States, which declares "every ob-
scene, lewd and lascivious book, pamphlet, picture,
paper, letter, writing, print or other publication of
an indecent character, and every article, instrument,
substance, drug and medicine " of a certain nature, to
be non-mailable.

The indictment alleged in substance that the de-
fendant caused to be deposited in the mails of the
United States for mailing and delivery to divers per-
sons, " certain obscene, lewd, lascivious" publications
contained in a series of articles published in Mr.
Watson's magazine and entitled, "The Roman Cath-
olic Hierarchy: The Deadliest Menace to our Liber-
ties and our Civilization."

The indictment contained three counts.

The first count related to an alleged unlawful pub-

Classics of the Bar

lication contained in the July, 1911, issue of the
magazine beginning with the words, "In Cut No. 7
we have the 'sacred four' of Phallic worship," and
concluding with the words, "the most profligate of
pagan religions."

The second count charged to be unlawful a publi-
cation contained in the May, 1912, issue of the mag-
azine beginning with the words, "A chapter for the
consideration of legislators, husbands, and fathers.
Some of the matters on which the Priest of Rome
must question his penitents. Dens wants the con-
fessors to interrogate on the following matters," and
continuing with the Latin words, "Peccant uxores,
qua susceptum viri" and other words in the same
language, and concluding with the words, "jam ne-
quentjure conjugii uti."

The third count alleged the unlawfulness of a pub-
lication contained in the April, 1912, issue of the
magazine beginning with the words, "In the Con-
fessional these modern priests of Bacchus can and do
learn," and concluding with the words, "are both de-
stroyed morally by the confessional."

Not all of the words included in the portions of the
magazine charged to be non-mailable were specifically
quoted in the indictment, which alleged that each of
the publications prosecuted for was "so obscene, lewd
and lascivious as to be offensive to the court if set
forth herein, and improper to be spread upon the


Tom Watson in His Own Defense

records of the court, for which reasons the same is
not set forth in full in this indictment."

The case came on for trial before Judge Rufus E.
Foster, presiding, at Augusta, Ga., on October 21,

The right of the Government to prosecute for the
publication of an extract from a written or printed
article was denied by the defense, which took the
position that unless the article as a -whole was obscene,
the character of the extract could not be inquired into.

The defense insisted further that a publication in
a dead language was not criminal under the terms of
the statute upon which the prosecution was based.

Moreover, that the statute itself, if applicable to
a case of this character, was void and unconstitu-
tional in that it was an attempt to abridge the free-
dom of the press.

Hon. S. G. McLendon, of counsel for the defense,
made a masterful plea on the motion to quash the

When Mr. McLendon had concluded, Mr. Watson
himself addressed the court, presenting his own
views in an argument that was brief but compelling.

Mr. Watson was formerly a member of the Ameri-
can Congress, and at one time a candidate for the
Presidency of the United States. He is a brilliant
lawyer, a far-famed orator, and, as writer and his-
torian, his reputation is international in its scope.


Classics of the Bar

As he spoke, the lawyers and laymen of the crowded
courtroom listened as one man.

Owing to the prominence and distinction of the
defendant, the nature of the case and the several
issues involved, the trial was of such magnitude and
interest as to assume high place in the forensic litera-
ture of the times.

Mr. Watson's Address to the Court

IF THE COURT PLEASE : I submit that under this
statute no extract from a book or pamphlet can
be prosecuted.

The general character of the book or pamphlet
must, on the face of it, and from the unavoidable
construction which would be placed upon it by the
average reader, be violative of the law.

Now, if the court please, take a view of this statute,
from beginning to end, and see the scope of it. Where
there are two lines dealing with an obscene book,
there are ten lines dealing with vile drugs that are
intended to destroy the fruit of a woman's womb;
where there are two lines in the statute aiming at an
improper book, a book which from its very character
tends to inflame the basest of passions and leads
toward the doing of those acts which bring into play
the vile arts of the man who deals in drugs, to pro-
duce abortion, there are ten lines here to catch the


Mr. Watson's Address to the Court

man or woman that tries to conceal the consequences
to which the crime leads. That's the statute.

Ask any lawyer what Congress was aiming at when
it framed that bill! It was aiming at race suicide!
It was aiming at those men who prostitute the pro-
fession of medicine and prevent conception; those
doctors who tell rakes how to escape the consequences
of their immorality; who advise women how to escape
the shame which, in a moment of weakness and pas-
sion and temptation, they have brought upon them-
selves, their mothers, their fathers, their families!

Ask any lawyer what Congress had in mind when it
passed that Act, and the conclusion must be inevitable
that Congress was aiming at those who, debauching
women, bring into the world boys and girls that have
no father who can say, "This is my son," or "This is
my daughter!" Aiming against infanticide! That's
the whole policy of the statute; if your honor will
consider it fairly you will see that it does not say that
you can seize a drug that is going through the mail,
and by subtle analysis take out of that drug some
arsenic, some strychnine some element which, by
itself, would destroy. No! You can do that with
almost any compound that is prepared. Some of
the very best compounds known to the pharmacists
are the scientific mixtures of those elements which,
when taken singly, would destroy life, after destroy-
ing health.

Congress did not mean to say that you can go, for
instance, to old Doctor Sam Johnson's Dictionary,
ii 165

Classics of the Bar

which that rugged scholar worked on year after year
in his attic, in Grub Street, London, and pick out the
plain English of certain definitions there, and indict
the man who sends the whole book through the mail.
The book in its entirety is a monument of learning.
You can go there and find filth, but as Doctor Sam
Johnson himself replied to the lady who said to him
at a social party, "Doctor Johnson, I object to your
dictionary because it has so many filthy words in it,"
the stern old lexicographer frowned upon her, and
growled, "Madam, you have been looking for them!"

Does the law mean to say: Go to Shakespeare and
pick out those lines which are familiar to every
reader, and indict a man for sending Shakespeares
through the mail, because those lines are there?

Any such construction will not only cast out Shake-
speare, but all of the English dramatists of olden times
and many of those since.

The law does not mean to say: Go to Holy Writ,
and lay your hand upon those plain English words
of the old English translation, and indict one for
sending them through the mail because they are ob-
scene. They are obscene! I could read passage
after passage, until your honor's face would mantle
with the blush of modesty; but in sending the whole
Bible through the mails no man violates the law, and
Congress did not mean that.

Now, then, is the defendant at the bar indicted for
publishing a book which in its whole tendency and
character is obscene and demoralizing? There are


Mr. Watson's Address to the Court

writings I could name many of them your honor
will voluntarily call them to mind where the whole
book is meant to inflame the sensual passion!

Does the learned District Attorney in his indict-
ment say that this entire series of magazines, or any
one single copy of the magazine, is of that tendency
and character? This law requires Mm to do it.

The learned District Attorney says: "I can go to
Watson's Jeffersonian Magazine and I can pick out
certain passages that are obscene"; and I can say to
him here in the presence of this court and this coun-
try, he can go to the Word of God and do the very
same thing.

Take a sermon, if your honor please. Suppose a
sermon delivered by Spurgeon, or Wesley, or Car-
dinal Gibbons, on the Seventh Commandment, "Thou
shalt not commit adultery" I cannot conceive that
the preacher would not go to the sayings of Solomon,
and the songs of David, to Jeremiah and the prophets,
and to the conditions in Sodom and Gomorrah. I
cannot conceive of a preacher who would sweep with
imperial mind that vast question of the passions
which would destroy the man, if not restrained; would
destroy the woman, if not restrained; would destroy
the nation, if not restrained ! cannot conceive of a
sermon preached upon that subject that would not
have words in it which you could take out and say,
this extract is obscene.

That's enough to give the court my idea.

Now, the language of the law is plain. It does not

Classics of the Bar

say every line or paragraph, or page, or chapter; it
says every book, pamphlet, picture, paper, letter, writ'

Judge the man by what he is, his entirety.

Judge not Cromwell by the wart on his face.

That's the law, that's common sense, and that's

Here comes half a page where Congress goes after
articles and things that are designed, adapted, and
intended to prevent conception, or to destroy the
fruit of the womb after conception, showing that the
entire purpose of Congress was to do away with,
penalize, drive out of business those vile creatures
who have polluted themselves and prostituted what-
ever talent God gave them, to making books, pic-
tures and devices for that vile purpose.

So I say the publication in its entirety should be
alleged to be of that character, and the proof should
follow up the allegations. In this case the learned
District Attorney says on the face of the indictment,
"I do not accuse the defendant of publishing an ob-
scene book; I do not arraign this defendant for an
obscene chapter, even; I do not say that he is engaged
in a business such as aimed at by Congress, but I
find on one page, or two pages, or three pages out of
thousands of pages, extracts which I think objection-
able; and I am indicting him, not for the publication,
but for the extracts."

If you honor please, if that be the law, the Code of
the State of Georgia, sent through the mails, would


Mr. Watson' 's Address to the Court

convict the man who sent it, because there are stat-
utes in the Code of Georgia that are necessarily ob-
scene, because they deal with things obscene.

How can you define sodomy without being ob-
scene? How can you define the crime of the white
slaver without calling up the picture obscene, and
defining the crime in language which, by itself, is

That's enough, on that.

Now, the second count, with submission:

Whenever our law speaks of publication, it means
in the language of the realm. Whenever English law
speaks of finance of any kind, pounds, shillings and
pence are suggested; the German mention of finance
brings up one word, the French mention, another;
but when we allude to money in the United States, it
naturally suggests dollars and cents. That's the lan-
guage of our law.

Suppose a man indicted in France for publishing
obscene literature. We would naturally infer, until
the contrary appeared, that he published it in the
French language. Why? Because the ordinary man
who reads the newspaper, or the book, is not sup-
posed to know anything but the language of his
country. When the very same law that speaks of
publications here, tells the marshal of this court how
to advertise property for sale, what does it mean?
Advertise it in English, the language of the coun-

I need hardly remind your honor that you cannot

Classics of the Bar

go to any library and take out any standard book of
history, whether it be Gibbon or some other, that
you won't find certain passages in which he says, "I
think it best to leave this passage in the language of
the original." // is published to scholars, to the few
who can read some other language, but not published
within the purview of the law.

The point I make is, that the learned District
Attorney, in this case, arraigns the defendant because
he put in his magazine a certain quotation in a dead
language, to-wit, the Latin language. I respectfully
submit that the learned District Attorney cannot
produce to this court a single decision hi which it
has ever been held that that is a violation of the

The District Attorney says that two or three pages
in Watson's Magazine are in Latin, and we respect-
fully submit that that is not published within the mean-
ing of the law.

As to the liberties of the press, and as to the power
of Congress over the liberties of the press, your honor
has indicated your opinion. I beg you, however, to
bear in mind this: it is an unsatisfactory course of
reasoning to argue that a publisher is not denied the
liberties of the press when he is shut out of the mails.

Of course he can send his book by freight train; of
course he can send his book by the express train; of
course he can send his book by hand: but when the
general Government takes to itself the monopoly
(which used to be enjoyed by private parties) of fur-


Mr. Watson's Address to the Court

nishing the country its mail matter, then the Gov-
ernment joins itself with the publisher, and when
the Government denies a man access to the mail, it
has denied him the freedom of the press.

Now," without entering into the question as to
whether Congress had the authority to abridge the
freedom of the press, and whether the curtailing of
the privilege to publishers would be an abridgment
of the press, I simply wish to remind your honor of
the enormous consequences of the judiciary being
called upon to set precedents, which, in turn, become
laws, for stifling freedom of expression.

John Marshall said one thing which my learned
counsel did not read. I will read it by the permis-
sion of the court:

Perhaps it (abuse of free press) is an evil inseparable
from the good with which it is allied. Perhaps it is a shoot
which cannot be stripped from the stalk, without wounding
vitally the plant from which it is torn. However desirable
these measures might be which might correct without en-
slaving the press, they have never yet been devised in

And Mr. Justice Field said, in ex parte Jackson:

The difficulty attending the subject arises, not from the
want of power in Congress to prescribe regulations as to
what shall constitute mail matter, but from the necessity
of enforcing them consistently with the rights reserved to
the people, of far greater importance than the transporta-
tion of the mail.


Classics of the Bar

If your honor please, in our complex and compli-
cated system and society, if there is anything that is
becoming apparent it is, that freedom of expression
of old-tune beliefs are becoming more and more re-

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