gate. It had been the pleasure of the court to observe that the defence had begun and continued in error. What he was about to say, would not, perhaps, induce the court to change that opinion; but if he was mistaken in the position which he meant to advance, the severity of the censure which the court might pronounce, ought to be mitigated, when it was remembered that the trial was brought on with a rapidity which precluded the possibility of a full examination of the case.

Mr. H. proceeded to observe that the specific proposition for which he commenced was, that the book in the hands of the Attorney for the United States, which was intitled, "The Prospect before Us," was not evidence in support of the indictment.

In prosecutions for libels, said Mr. H. in the English courts, great strictness is observed; if there be a difference of a single letter, between the libellous words charged in the indictment, and the printed or written paper adduced in evidence, the variance is fatal. It is the duty of the prosecutor to give the tenor" of the libel, and it has been frequently determined that this word imposes on him the necessity of giving an exact and liberal copy. The omission or addition of a letter, or the substitution of one letter for another, where a different word was produced, was an incurable defect. Mr. Hay, in support of this opinion, quoted Salkeld's Reports, page 417, and Hawkin's pleas of the crown. Here Judge Chase interrupt

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ed Mr. H. to tell him that he was mistaken in the law. That the words "tenor and effect," which were used in the indictment, justified the prosecutor in giving only the substance of the libel if he thought proper. It is contended, said he, that the original must be copied in the indictment, terbatim et literatim. I wonder they do not conform punctuatim too. The law is not so.

Mr. H. observed that he did not know what the decisions in the courts of the United States had been; but the English authorities supported the doctrine which he advanced.

The principle, continued Mr. H. which renders this strictness necessary and proper, applies with full force to the case before the court. The traverser is charged with a libellous writing of the following tenor "The reign of Mr. Adams, &c." In support of this charge a book is introduced, which is not named in the indictment, which begins with different words, and which contains not the precise words recited in the indictment, but many passages and pages besides. Mr. H. conceived that the "Prospect" could not therefore be offered in evidence, unless the indictment had charged the traverser with a false, scandalous and malicious writing, intitled, "The Prospect before Us," containing among other things, the passages which occásioned the prosecution.

Mr. H. said that he had examined many adjudged cases, and in every instance the title of the

writing charged to be libellous, was recited, and called on the Attorney of the United States to produce a single instance to the contrary. If then the variable practice was as he stated it to be; if the ablest lawyers had uniformly adhered to it, the observation of Coke, (Co. Lyt. 115, b.) that the forms of pleading are the best evidence of law, seemed to be conclusive, that the title of the libel ought to have been stated in the indictment.

Mr. H. said that from about twenty cases which he had examined, he would select three, which seemed best calculated to shew that the description of the libellous writing, by the title given to it by the author, was essentially necessary. The first case was, where the title was very long; the second was, where the paper containing the libel had a number as well as a title; in which case the number as well as the title was recited; and the third was, where the libel was published in the French language, in which case the title, though very lengthy, was recited in French, and then in English.

Here Judge Chase interrupted Mr. Hay, to tell him that he was mistaken. I pronounce the law to be otherwise, said he. I know that cases can be produced where the title of a libel is recited in the indictment. I remember, continued he, with an increased elevation of voice, one case particularly. A man was indicted for publishing a libel

called "Nun in her smock," but it was not necessary to mention the title of the libel in that case, nor is it necessary in any case.

Mr. H. observed that if he could be permitted to proceed, he would go on to state to the court the reasons which impressed his mind with a belief that the omission was fatal, and precluded the prosecutor from the right to introduce as evidence "The Prospect before Us."

The practice was, he said, as he had stated it to be. It appeared to him, that the reasons which might be urged in vindication of the practice, could not readily be answered.

It is a principle of universal law, said Mr. H. as well as of common sense and justice, that if a man's words, spoken or written, are made the foundation of a charge against him, they are all to be taken together. If the title of the "Prospect" had been inserted, and the whole book thus brought before the jury, the traverser might resort to any part of it for an explanation of the passages charged to be libellous. But if passages of this description are taken from a book or writing without naming or describing it, and charged in the indictment as constituting a libel, the only questions before the jury would be 1st. Did the traverser write, print, or publish the words charged; and 2d. Are these words false, scandalous and malicious. If this reasoning were correct, the traverser would be excluded from the benefit held out to him by the prin

ciple which has been just stated, and which was deemed incontrovertible.

Here the judge again interrupted Mr. H. There is no doubt, said he, but that the traverser, under the present indictment, will have the benefit from which you seem to fear he is excluded. I say he will have that benefit....you know that he will.

Mr. H. said, that he did not know it before; but as the court meant to allow the traverser the privilege which he conceived belonged to him, he would say no more on that point.

But, continued Mr. H. another reason presents itself in vindication of the practice so uniformly maintained in England, which perhaps may merit a more serious consideration from the court.

It is doctrine hitherto unquestioned, that in all criminal prosecutions, the offence shall be described with all possible certainty.

In larceny, it is necessary to mention not only the specific articles alledged to be stolen, but the name of the person to whom they belonged. The same principle was extended to every description of criminal prosecutions, and had a very considerable operation even in questions of a private nature. If an action of debt were brought upon a bond, the declaration must describe precisely such a bond as that adduced in evidence.

Two reasons were furnished by the books why this precision was deemed necessary: the first was, that the party accused might know exactly how to