Denver Law Review

Volume 3 Issue 9 Article 5

August 2021

A Political Libel Suit

Denver Bar Association Record

Follow this and additional works at: https://digitalcommons.du.edu/dlr

Recommended Citation A Political Libel Suit, 3 Denv. B.A. Rec. 10 (1926).

This Article is brought to you for free and open access by the Denver Law Review at Digital Commons @ DU. It has been accepted for inclusion in Denver Law Review by an authorized editor of Digital Commons @ DU. For more information, please contact [email protected],[email protected]. THE DENVER BAR ASSOCIATION RECORD derer was awaiting trial, so the Judge except to verify his reputation as a instructed the clerk to enter an order poker player. He and Senator Riddle- of adjournment sine die as soon as he burger of Virginia became close could get out of town, which he and the friends, the latter being equally handy prosecutor proceeded to do. They hot with the cards. On one New Year's footed it to Red Hill about five miles day Riddleburger said to Bowen that distant to the railway station, boarded he would make some late calls and the train for Denver and neither of leave cards without entering his them ever returned to Park County. friends' houses. "Leave a few packs Bowen soon after resigned, pursuant for me", said Bowen, "and let 'em be to an announcement which he had squeezers." made prior to the episode above re- Edward 0. Wolcott easily beat Sen- counted. ator Bowen when he tood for re-elec- He was elected to the General Assem- tion. He returned to Colorado and bly from Rio Grande County in the moved to Pueblo where he spent his fall of the same year and to the United last few years in relative seclusion. States Senate by that Assembly in His party nominated him for Con- January, 1883. He accomplished this gress in 1894, but he was defeated by feat by asking for and securing the John C. Bell. He died soon afterwards. pledge of a complimentary vote suffi- Thus ended his unique career. While ciently large with his own to give him most interesting, it can hardly be re- a bare majority. Being a member of garded as worthy of imitation. He the caucus, he could easily see that possessed undoubted talents, which the vote was cast as promised. The were nearly always misdirected. His result was a sensation, but his real ambitions were lofty, but, when realiz- supporters pressed their advantage ed, they were distorted to ignoble ends. and his election followed. As a sena- While he achieved some distinctions, tor his record was a blank. Beyond he ignored or despised their respon- drawing his salary and voting with sibilities. The fates have been kind his party he did practically nothing, to him, for he is gone and forgotten.

Az1 Political Libel Suit

It seems incredible that the man to 1808 to break up the Union and re- whom his constituents gave the well annex New England to England. known "Webster Vase", bearing the in- This prosecution arose out of the scription "PRESENTED TO DANIEL political campaign of 1828. The Feder- WEBSTER, THE DEFENDER OF alist ticket for the election was headed THE CONSTITUTION, BY THE CITI- by John Quincy Adams for President. ZENS OF BOSTON", and who is The Democratic candidate was Andrew known today as "The Defender of the Jackson. Adams, in 1807 and 1808, as Constitution", should ever have a Federalist senator had split with his thought it necessary, in protecting his local party over the Embargo Acts for reputation, to institute a prosecution which he had been a staunch advocate. against Theodore Lyman, Jr., for al- However, in 1828, Webster and most leged criminal libel upon him, Webster, Federalists in Massachusetts supported as a senator of the United States in Adams as against Jackson, while other publishing that he, Webster, conspired Federalists, who had not forgotten with other leading Federalists in 1807- Adams' support of the detested Em- THE DENVER BAR ASSOCIATION RECORD

before the election for bargo Acts, supported Jackson and es- fortnight President all over the Country? Why tablished a semi-weekly paper, called for three years he has held to his the "Jackson Republican", to support counsellor, Dan- Jackson. Theodore Lyman was one bosom, as a political man, whom he called of the proprietors of this paper. iel Webster, a in his midnight denunciation, a October 29, 1828, the following ar- traitor in 1808? And as the last ticle appeared in this paper: "We question, why, during the visits he this morning a letter of De- publish has made to Boston, he always met cember, 1825, of Mr. Jefferson to in friendly and intimate and social Mr. Giles, and Mr. Adams' own state- terms all the gentlemen whose ment, published last week in the names a few years before he placed Intelligencer at Washing- National upon a secret record in the archives ton, concerning disclosures said, of our Government as traitors to many months ago, to have been made their country? Why did he eat their Mr. Adams to Mr. Jefferson, in by salt, break their bread and drink to the conduct of the leaders regard their wine?" of the Federal party in New Eng- land during the whole course of the The letter of Mr. Jefferson, referred commercial restrictive system. Mr. to in this article and published in the Adams confirms in his statement, in same issue of the Jackson Republican, a positive and authentic form and mentioned that Mr. Adams said "cer- shape, the very important fact that tain citizens of the Eastern States" in the years 1807 and 1808, he did without mentioning Webster or any- make such disclosures. The reader one, and did not use the words "en- will observe that Mr. Adams dis- gaged in a plot to dissolve the Union." tinctly asserts that Harrison Gray Webster had been a leader in oppo- Otis, Samuel Dexter, William Pres- sition to the Embargo Acts and had cott, Daniel Webster, Elizah H. Mills, openly stated they were unconstitu- Israel Thorndike, Josiah Quincy, tional. There were many movements Benjamin Russell, John Welles, and in opposition to these acts, some of others of the Federal party of their which contemplated secession. Mr. age and standing were engaged in a Webster, in his second speech on Foot's plot to dissolve the Union and to re- Resolution, when charged by Hayne annex New England to Great Brit- with having advocated secession as ain; and that he (Mr. Adams) pos- a last resort in opposition to the Pm- sessed 'unequivocal evidence' of that bargo Acts, replied that he had always most solemn design. The reader will stated that the Acts were unconstitu- also observe that in the statement tional but had never advocated any- is just published, of Mr. Adams, there thing but submitting to the decision no intimation whatever, that he does of the Supreme Court. not still believe what he revealed to hurt the dignity Mr. Jefferson and Mr. Giles twenty Perhaps it deeply years ago. All the gentlemen we of Webster to be thus linked up with it was for have mentioned above are, with one his past. More probably exception, still living, and with two political purposes that a criminal pros- exceptions, are active and ardent po- ecution was instituted. At any rate, edition litical friends of Mr. Adams. We Mr. Webster in the six volume here beg leave to ask why Mr. Adams of his works, compiled by himself, statement has been withheld from makes no mention of this trial and the public eye more than a year? omits any reference to his writings Why it has been published only one or speeches on the Embargo Acts. THE DENVER BAR ASSOCIATION RECORD

It is historical that no demand was did publish the statement ascribed to made for an explanation, although him. Webster and Lyman had been close 2. The letter of Mr. Jefferson to political bed-fellows in 1807 and 1808 Mr. Giles. and still were on intimate social terms 3. That Mr. Webster in 1808 was a in 1828. Moreover, it was a criminal conspicuous member of the Federal prosecution which was started, and not party. a civil suit for damages for defama- 4. That Mr. Adams wrote the let. tion. ters ascribed to him, but denied that Seemingly, without a word of warn- Mr. Webster was comprehended or in- ing, Webster struck by complaining cluded in the terms of Mr. Adams' before the Grand Jury and securing statement. a true bill which charge that Theodore The continuance was denied and the Lyman, Jr., "unlawfully, maliciously trial commenced on December 16th. and deliberately, devising, contriving Isaac Parker, Chief Justice of the Su- and intending to traduce, vilify and preme Court, presided. After the jury bring into contempt and detestation, was empanelled, the prosecution pro- one Daniel Webster * * * to cause it ceeded to prove the election of Mr. to be believed that the said Daniel Webster to the Senate of the United Webster * * * had been engaged in an States, the publication of the alleged atrocious and treasonable plot to dis- libel, the circulation of the paper, its solve the Union * * * unlawfully, mali- ownership by Mr. Lyman, and rested. ciously and deliberately, did compose, Mr. Dexter opened for the defense; a print and publish, and did cause and certain pamphlet, which it was stated procure, to be composed, printed and had been written by Mr. Webster, published, * * * of and concerning him, called "Considerations on the Embargo the said Daniel Webster, an unlawful, Laws" was introduced for the purpose malicious and infamous libel" * * * of using certain extracts from it; the charging Webster with having "enter- objection to its introduction without ed into a plot to dissolve the Union." its being read entire was sustained. Mr. Webster was then called and ad- Mr. Lyman appeared with Samuel mitted writing a pamphlet with that Hubbard and Franklin Dexter, as title. The question.again came up on counsel, and was arraigned on Novem- reading the entire document. Chief ber 17th, pleading "not guilty". Mr. Justice Parker observed that the time Lyman's counsel then moved for a con- to be embraced in reading it was tinuance to 1829, and in support of the material; that he had no doubt but motion filed an affidavit, which, in sub- that Mr. Webster wrote as strongly stance, set forth (1) that Mr. Lyman against the Embargo as anyone could. did not intentionally libel Mr. Webster, Mr. Webster from his seat said, "I (2) but that it might become necessary meant to." The Chief Justice then to prove the truth of the statements ruled that the constitutionality of the set forth in the alleged libel, and time Embargo was not on trial. The at- would therefore be required to get tempt to introduce the Rockingham evidence. Memorial met the same result. Wit- Solicitor-General Davis filed objec- nesses were put on who testified as tions to the affidavit of Lyman and con- to statements made by General Lyman, tended that the affidavit did not make that he did not intend to libel Mr. any positive statements and the Solic- Webster, and that the article was di- itor-General admitted: rected at Mr. Adams. The defense 1. That Mr. John Quincy Adams rested. The prosecution called Mr. THE DENVER BAR ASSOCIATION RECORD

Webster, and, among other questions, dict of the jury of their country." The asked "Did you at that or any other Chief Justice then discussed thbe ques- period, ever enter Into any plot to tion of the liberty of the press. Pro- dissolve the Union?" Mr. Webster ceeding he said, "I am of the opinion answered "No sir." The evidence in that if you should be satisfied that the the case was closed. gentlemen named in Mr. Lyman's ar- At three o'clock in the afternoon Mr. ticle were the persons whom Mr. Hubbard began the closing argument Adams intended to designate as the for Mr. Lyman. He said to a common leaders of the Federal party at that sense view, the question was whether time * * * the insertion of those names the circumstances of the case showed would not be an unfair or unjustifiable beyond a reasonable doubt that Gener- commentary upon the communication al Lyman intended to libel Mr. Web- * * * ." As to the words of the arti- ster, pointing out that the paper was cle, saying that Mr. Adams had placed organized to oppose the election of the names of the gentlemen mentioned Mr. Adams, and not in a malicious upon a secret record in the archives of effort directed against Mr. Webster. the Government, as traitors to their "Mr. Adams meant somebody", and Mr. country, he said: "if this were a mere Lyman, in putting in the names ot the rhetorical flourish * * * the remark is self-acknowledged leaders of the Fed- not libelous". eralist party at that time, was merely The jury disagreed and were dis- descriptive of Mr. Adams' meaning, charged (it is reported they stood ten not libeling Mr. Webster. "The prose- to two for conviction), and the case cution originated in a mistake, an un- was dismissed in the November Term doubted mistake. No explanation was of Court, 1829. made by General Lyman, or called for Aside from the historic interest, this by Mr. Webster, and no opportunity trial illustrates how even the greatest was given to explain." Mr. Hubbard men sometimes make mistakes in thc closed his argument without any in- heat and bitterness of a political cam- termission at seven o'clock in the even- paign. ing. The closing argument of the prose- -C. M. H. cution was postponed until the 17th. (The arrangement and conclusions of this arti- cle are by the writer. The record facts are taken Solicitor-General Davis argued for in the main from the excellent book on this trial three hours, and the argument was by Josiah H. Benton, Jr.) closed. In charging the jury, the Chief Jus- THE REASON WHY tice began by saying "It is unfortunate Hubby: "I miss the old cuspidor there ever was occasion for this prose- since its gone." cution, unfortunate that there has not Wifey: "You missed it before--that's been some amicable disposition of it why it's gone". upon explanations not derogatory to the honor of the accused, and yet ONLY A WARNING satisfactory to the aggrieved. It is apparent but that for some point of Landlady: "You seem to be musi- etiquette, to which importance has cally -inclined, Mr. Jones, I have so been attached, such disposition of the often heard you singing while taking case would have taken place. * * * your morning bath." We can only regret that the contro- Roomer: "I do enjoy music, bu versy must be determined by the ul- the reason I sing in the bathroom tima ratio of peaceable citizens-a ver- because the door won't lock."