had been given in evidence against him at a former trial; and he might not be able to procure witnesses, whose testimony would be sufficient to establish this point. These are the reasons which in duce me to think, that this back ought not to be admitted to go in evidence to support the charges in the indi&ment. This principle has a considerable opera tion in questions of a private property. In an action of a debt, if a bond or writing be the ground of the action; if there be the most minute variance between the bond or writing stated in the declaration, and that which is adduced in evidence in support of it, the party must suffer a nonsuit. If this precision and minute attention to accuracy be required in actions of property between man and man, is it not infinitely more important that the same principles should govern in crimiJual cases? If the argument be good in one case, it appears to be irresistible and omnipotent in the other.

Here judge Chase requested Mr. Hay to point out these parts of the authorities referred to, on which he relied to estabļish his doctrine.

Mr. Hay. If the court will have a lit tle patience I will find the places.

Judge Chase.I will have a great deal.

Mr. Hay. The authorities I rely on are, Hawkins's plea of the crown, page and Salkeld's reports, page 660. In this laft book it is adjudged, that when an indictment ufes the words ❝ fecundum tenorem et effectum," it binds the profecutor to a literal recital; and any the leaft variance between the charge in the indictment and evidence offered to fupport it, is fatal. The cafe I here refer to was an information for a libel: "In which libel were contained divers Jibellous matters fecundum tenorem et effettum, and in fetting forth a fentence of the libel, it was recited with the word "nor," instead of the word "not," but the fenfe was not altered thereby ; the defendant pleaded not guilty, and this appearing upon evidence, a fpecial verdict was found, and the court held, that the word tenor, imports a true copy, and that the variance was fatal; for, not," and "nor," are different; different grammar, and different in fenfe; and Powy's Juftice held as to the point where literal omiffions, &c. would be

fatal; that where a letter omitted or changed, makes another word, it is a fatal variance; otherwife, where the word continues the fame; and in the principal cafe, no man would fwear this to be a literal copy."

It appears from well established autho rities, that the words "in manner and form following," do not bind the profe cutor to recite exaftly, but the word tenor," both fo ftri& a technical mean.` ing, that it binds him to a literal copy.

66

Thefe principles certainly apply to the cafe before the court. The wo ds "tenor and effect following," are stated, and the evidence is variant,

Here judge Chafe interrupted Mr. Hay, and fpoke to this effect: You are certainly mistaken in your fatement of the law, as applied to the cafe now before the court, In the cafes you mention, there is really a variance between the indictment and the evidence. Your objection is, that there is a variance between the thing charged in the indictment and the writing offered in evidence.-But this cafe is very different; there is no variance: To afcertain this point, I will fate the indictment, and compare it with the law on which the profecution is founded, The indictment charges, that the traverfer, maliciously intending to defame the prefident of the United States, and to bring him into contempt and difrepute, and to excite the hatred of the good people of the United States against him, did wickedly and maliciously write, print, utter and publi.h a falfe, fcandalous and malicious writing, against the prefident of the United States, of the tenor and effect following, that is to fay:The reign of Mr. Adams has hitherto been one continued tempeft, &c." Now what is the law? The act of congrefs provides among other things that,

if any perfon fhall write, print, utter or publish, or fhall caufe or procure to be written, printed, uttered or published, any false, scandalous and malicious writing or writings, against the government; or either boufe of the congrefs, or the prefident of the United States, with intent to defame the faid government, or either houfe of congrefs, or the faid prefident, or to bring them, or either on any of them, into contempt or difrepute, or to excite against them, the hatred of the good people of the United States

c." The indictment charges the defendant with publishing a falfe, fcandalous and malicious writing against the prefident, and the law provides against the publication of falfe, fcandalous and malicious writings again ft the prefident. -The offences ftated in the indictment correfpond with thofe expreffed in the Jaw; the question then is, whether the name of the book in which fuch falfe, fcandalous and malicious writings are published, must be recited in an indictment against an offender? It brings it to this point-Is it neceffary that the title of the publication fhould be examined, before it can be afcertained that it comes within the law. Any falfe, fcandalous and malicious writing published with intent to defame, is provided against by law, whatever may be its title or name, or whether it have any name or not. I know that cafes can be produced, where the title of the libel is recited in the in dictment. I remember one cafe where a man was indicted for publishing a libel called "The Nun in her mock;" but it was not neceflary to mention the title of the libel in that cafe, nor is it effential in any. Why is it neceffary that every charge against a defendant fhould be explicit? It is that he may clearly compre. hend it, and be prepared to make his defence: It is not neceffary for this purpofe to recite the name of the libel. The charge against the traverfer is very explicit, and he well underftands and is prepared to defend it; but it is no cenfure on his counfel, that they urge this argument in his favor. You argue further, on a fuppofition, that if a fubfequent profecution were to be inftituted for the fame offence, the verdict and judgment now to be rendered, could not be pleaded in bar. It requires very little legal ability to demonftrate, that the title need not be recited and it is equally eafy to prove, that the decifion in this cafe may be plead. ed in bar of any other profecution for the fame offence. The attorney for the United States must prove, that the traverfer did publish a falfe, fcandalous and malicious writing, with intent to defame the prefident. This can be done without reciting the title; and if he fupports by the evidence any entire charge-if he proves that the traverfer did publish any falfe, fcandalous and malicious writing, it

will be fufficient to fupport the indictment as to that charge, but he must be acquitted of the other charges; and the charges of which he may be found guilty, can be eafily compared to charges in any fubfequent indictment. This is quite different from the cafes where there is an actual variance between the paper charged, and the paper offered in evidence. I under ftand that difference to be, that where the profecuror undertakes to fay, that certain precife awords have been published, he muft eftablish them; but when he states words of the tenor and effect following, he will only be obliged to prove the subftance; but you infift that the whole original. including the title, must be copied in the indictment verbatim et literatim. I wonder you did not add et puncutatim alfo. There is no real variance, and there is an end of the objec tion. You are mistaken.-I pronounce this to be the law, and I fhall inftruct the jury, that they may find the traverser guilty of part of the charges, and acquit him of fuch as are not proved.

Judge Chafe then informed the attorney for the United States, who was about to rife to prove the admiflibility of the book as evidence, that it was unneceflary for him to make any reply, and there was no good reafon to exclude it; that all that was neceffary to be done on the part of the Uni ed was to prove the charges to be true, and the book called The Profpect Before Us, was good evidence to fupport it.

This point being determined, Mr. Nelfon then addreffed the jury at great length, to the following effect:

GENTLEMEN,

Although the paper is long and compli cated, the teftimony is not fo. The teftimony, as I ftated to you before, is concife, plain and correct. If there be a man who, now that he has heard that teftimony, entertains a doubt whether this libel was published by the traverfer, it will be faithlefs for me to addrefs him; if there be a man who doubts on that point, his mind must be imperviable to the traits of truth; his mind must be panoplied o'er with doubt, fcepticism and prejudice. If no doubt remain on this point, the queftion first in order to be examined, is decided: whether there be room for doubt, a fummary review of the

&c." The indictment charges the de. fendant with publishing a falfe, fcanda. lous and malicious writing against the prefident, and the law provides against the publication of falfe, fcandalous and malicious writings again ft the prefident. -The offences ftated in the indictment correfpond with thofe expreffed in the Jaw; the question then is, whether the name of the book in which fuch falfe, fcandalous and malicious writings are published, must be recited in an indictment against an offender? It brings it to this point-Is it neceffary that the title of the publication fhould be examined, before it can be afcertained that it comes within the law. Any falfe, fcandalous and malicious writing published with intent to defame, is provided againft by law, whatever may be its title or name, or whether it have any name or not. I know that cafes can be produced, where the title of the libel is recited in the in dictment. I remember one cafe where a man was indicted for publishing a libel called "The Nun in her fmock;" but it was not neceflary to mention the title of the libel in that cafe, nor is it effential in any. Why is it neceffary that every charge against a defendant fhould be explicit? It is that he may clearly compre. hend it, and be prepared to make his defence: It is not neceffary for this purpofe to recite the name of the libel. The charge against the traverfer is very explicit, and he well underftands and is prepared to defend it; but it is no cenfure on his counfel, that they urge this argument in his favor. You argue further, on a fuppofition, that if a fubfequent profecution were to be inftituted for the fame offence, the verdict and judgment now to be rendered, could not be pleaded in bar, It requires very little legal ability to demonftrate, that the title need not be recited and it is equally eafy to prove, that the decifion in this cafe may be plead. ed in bar of any other profecution for the fame offence. The attorney for the United States must prove, that the traverfer did publish a falfe, fcandalous and malicious writing, with intent to defame the prefident. This can be done without reciting the title; and if he fupports by the evidence any entire charge-if he proves that the traverfer did publish any falfe, fcandalous and malicious writing, it

will be fufficient to fupport the indictment as to that charge, but he must be acquitted of the other charges; and the charges of which he may be found guilty, can be eafily compared to charges in any fubfequent indictment. This is quite different from the cafes where there is an actual variance between the paper charged, and the paper offered in evidence. I under ftand that difference to be, that where the profecuror undertakes to fay, that certain precife words have been published, he muft eftablish them; but when he states words of the tenor and effect following, he will only be obliged to prove the fubftance; but you infift that the whole original. including the title, muft be copied in the indictment verbatim et literatim. I wonder you did not add et puncutatim alfo. There is no real variance, and there is an end of the objec tion. You are mistaken.-I pronounce this to be the law, and I shall inftruct the jury, that they may find the traverfer guilty of part of the charges, and acquit him of fuch as are not proved.

Judge Chafe then informed the attorney for the United States, who was about to rife to prove the admiflibility of the book as evidence, that it was unneceflary for him to make any reply, and there was ro good reafon to exclude it; that all that was neceffary to be done on the part of the Uni ed was to prove the charges to be true, and the book called The Profpect Before Us, was good evidence to support it.

This point being determined, Mr. Nelfon then addreffed the jury at great length, to the following effect:

GENTLEMEN,

Although the paper is long and compli cated, the teftimony is not fo. The teftimony, as I ftated to you before, is concife, plain and correct. If there be a man who, now that he has heard that teftimony, entertains a doubt whether this libel was published by the traverfer, it will be faithlefs for me to addrefs him; if there be a man who doubts on that point, his mind must be imperviable to the traits of truth; his mind must be panoplied o'er with doubt, fcepticism and prejudice. If no doubt remain on this. point, the queftion firft in order to be examined, is decided: whether there be room for doubt, a fummary review of the