The People v. Frothingham.

LIBEL ON GENERAL HAMILTON.

New York, November 25, 1799.

DAVID FROTHINGHAM was indicted for publishing in the Argus of the 6th inst. a libel against Alexander Hamilton esq., late secretary of the treasury of the United States, and now inspector and major-general in the armies of the said United States.

The substance of the charges in the indictment were, that with a design to injure the fame and reputation of general Hamilton, and to expose him to public hatred and contempt, and to cause it to be believed that he was hostile and opposed to the republican government of the United States, the defendant had published a libel in which it was alleged that general Hamilton was at the bottom of efforts to purchase the Aurora; that Mrs. Bache had refused to sell her paper, in consequence of the said effort, because, in the hands of general Hamilton or his agents, it would be employed injuriously to republicanism. Secondly, that the libel insinuated, and intended to cause it to be suspected, that general Hamilton, while secretary of the treasury, had corruptly speculated. And lastly,fthat the libel insinuated, and intended to cause it to be suspected, that Mr. Liston the British minister and general Hamilton were united in a design to purchase the Aurora; and that for the execution of this design general Hamilton had received from the British minister secret service-money from the king of Great Britain. And that this partnership with Mr. Liston in the purchase of Mrs. Bache's paper was to answer corrupt purposes of the British monarch.

The counsel on the part of the prosecution were the attorney and the assistant attorney-general; Messrs. Brockholst and Edward Livingston were concerned for the defendant. The cause was however managed on the one side by the attorneygeneral, and on the other side by Mr. B. Livingston. It is not possible in sketches of this kind to do justice to the ability and ingenuity that were displayed by the counsel on either side; to prove the publishing of the paper charged as a libel the assistant attorney-general was examined. He said that in consequence of a letter he had received from general Hamilton, which has been published in our paper of the 8th inst.; from a desire to avoid directing a prosecution against a widow, he called on Mrs. Greenleaf and informed her, that if she would point out the real editor or conductor of her paper he alone should be made responsible for the offence. That Mrs. Greenleaf denied that she was at all concerned in the management or direction of her press. That she introduced the defendant as the person who was accountable for whatever was printed under her name. That after hearing from the assistant attorney-general the object of his visit; and after having examined the libel mentioned in the indictment, the defendant said he expected no one but himself was answerable for the publication.

The attorney-general had stated to the jury in opening the cause, that he would not avail himself of the law which prohibited the defendant from giving in evidence the truth of the libel; he now challenged the defendant to shew, that there was room even to suspect that any part of the offensive publication was true. The defendant's counsel having declined to do this, general Hamilton was offered as a witness on the part of the prosecution: First, to explain some of the innuendos in the indictment: and secondly, to prove that every part of it was false. He was objected to by the defendant's counsel, who in the agreement on this point, as well as at several other times in the course of the trial, was so candid as to acknowledge that they did not pretend to have any testimony whatsoever VOL. III. 2 A

as to the truth of the allegations in the publication charged as a libel; and that for his own part he did believe it a mere fabri

cation!

The court admitted general Hamilton to explain the innuendos, but declared, that the law not allowing the truth or falsehood of a libel to be controverted on a trial for that offence, they would exclude all testimony as to these points on either side, notwithstanding any consent of the counsel. The defence, which was managed by Mr. B. Livingston, with no less address and ingenuity than was expected from his well known abilities, consisted in maintaining that Mrs. Greenleaf ought to have been the person prosecuted for the libel, if it was one, and not the defendant, who was only her journeyman; and secondly, that the publication was no libel. The charge was given by his honour Mr. justice Radcliff. After cautioning the jury against the influence of party-spirit in a case so apt to excite it, he stated to them in substance that this was a prosecution under the common law of our country, by which we and our ancestors had been governed from the earliest times. That according to that law he who published a writing, a printing, or even a picture, tending to expose a man to hatred, contempt or ridicule was guilty of the offence charged against the defendant. So that the inquiry of the jury would be, whether the piece mentioned in the indictment was calculated to expose general Hamilton to the hatred and contempt of his fellow-citizens; and if it was, whether the defendant had published it. That by innuendos, the indictment had explained the offensive publication to mean to insinuate that general Hamilton was not a republican, that he had corruptly speculated while he was secretary of the treasury, and that he was in league with the British minister, and received money of the British king for purposes inimical to that form of government which was adopted by the United States, and which by the constitution was guarantied to each particular state.

That words might mean more than they expressed, and that it was the business of an innuendo to give or explain the whole or true meaning. That the jury were to judge from a due consideration of the publication, whether such was the

case in this indictment; whether the innuendos expressed the meaning of the publication, as it would be taken by men of common understanding. That upon this subject the court were unanimous, and had no doubt. They were of opinion that the innuendos were just; and that the matter was libellous. And upon the second point also, the judge was as explicit in his charge, that the defendant, even as a journeyman, was liable to the prosecution. But there could be no doubt after the explicit manner in which he had assumed all responsibility.

The jury after being out about two hours, returned with a verdict of guilty.

OPINION

By Judge Winchester on the operation of the Act of Congress, 5th of June 1794.

THE

HE owners of the privateer Unicorn, falsely called Sansculotte Laveaux, if liable to punishment in the United States, can only be prosecuted on the act of congress of the 5th of June 1794, by the third section of which law it is provided, "that if any person shall within any of the ports, harbours, bays, rivers, or other waters of the United States, fit out and arm, or attempt to fit out and arm, or procure to be fitted out and armed, or shall knowingly be concerned in the furnishing, fitting out or arming of any ship or vessel with intent that such ship or vessel shall be employed in the service of any prince or state" to commit hostilities upon nations with whom the United States are at peace, such offence is declared to be a high misdemeanor, and subjects the party convicted to a fine not exceeding 5000 dollars, and imprisonment not exceeding three years.

The offence designated by this law was, anterior to the passage thereof, a high offence against the sovereignty of the United States, and in contravention of the law and usages of independent neutral nations. But the difficulties which must ever exist in a government of limited and specified powers, in applying the punishment to the infraction of a law which created no specific penalty, as well as the doubts on the question, where does the sovereignty (as applied to the government) of the United States reside? induced the necessity of providing by an ordinary act of legislation for the punishment of such cases.

The owner of the Unicorn must therefore be considered as having violated a civil law of the United States and will incur its penalties on a conviction according to the accustomed form of judicial proceeding. The evidence to establish his guilt must be of affirmative acts corresponding to the provisions of the law, to wit: that the equipment was within the United