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COMMONWEALTH vs. CHILD.
Hon. MARCUS MORTON, Justice. .
COUNSEL FOR COMMONWEALTH,
Hon. DANIEL DAVIS, Solicitor General.
COUNSEL FOR DEFENDANT, RICHARD FLETCHER & WILLIAM H. GARDINER, Ese's.
On the 12th day of January, A.D. 1829, David Lee CHILD
was arraigned before the Supreme Judicial Court of Massachusetts, holden at Cambridge, in the County of Mid. dlesex, upon the following Indictment:
Commonwealth of Massachusetts, MIDDLESEX SS. At the Supreme Judicial Court, begun and holden at Concord, within and for the said County of Middlesex, on the second Tuesday of April, 1828. The Jurors for the said County upon their oath present that David L. Child, of the city of Boston, in the County of Suffolk, Esq. being a person of a malicious disposition, and wickedly intending and contriving, as much as in him lay, to injure and vilify the good name, fame, credit and reputation for honesty, and integrity,ofone John Keyes, Esq. a member of the Honourable Senate of the General Court of Massachusetts aforesaid, and Chairman of the Committee of Accounts, duly appointed thereto by the Legislature of the said Commonwealth, and maliciously intending to deprive the said John Keyes of his offices aforesaid, and the confidence of the people of his senatorial district, on the 29th day of March, 1828, with force and arms, at Acton, in the County of Middlesex aforesaid, a certain false, scandalous and malicious Libel, of, concerning, and against, the said John Keyes, falsely, wickedly and maliciously, did frame and make, and did then and there cause the same false, scandalous and malicious libel to be printed, in a public newspaper, called the Massachusetts Journal, wherein under a paragraph headed “The new nomination in Middlesex,” among other things, the said false, scandalous, and malicious libel, of, and concerning the said John Keyes, is set forth in the words, and to the effect following, to wit ;“ People of Middlesex, we have gone through these troublesome details to prepare you for the fact which we are now to state. In this Committee of Accouts (meaning the Committee of the Legislature aforesaid) which had advertised for sealed proposals for the contract of printing, the Honor
able Chairman, Mr. Keyes (meaning the said John Keyes) proposed before a seal was broken, that the contract should be given to the Boston Statesman (meaning to the Proprietors of that Paper) provided their proposals were not more than $500 higher than any oth
This was no more nor less than a proposal to give $500 from the Treasury of Massachusetts to that reprobated Jackson Press. And that the said David L. Child, on the day and year last aforesaid, with force and arms, at Acton aforesaid in the County aforesaid, the aforesaid false, scandalous and malicious Libel, so as aforesaid framed, printed and published, did utter and publish, to divers good citizens of the said Commonwealth, in different towns in the said County of Middlesex to the great damage, infamy, and discredit of the said John Keyes, in evil example to others in like case to offend against the Peace of the Commonwealth aforesaid, and the laws thereof in such case provided.
To this Indictment the Defendant pleaded Not Guilty; and the following Jurors were empanelled and sworn to try the issue.
AMOS HILL, FOREMAN, West Cambridge,
Solicitor General. You perceive, Gentlemen, by the indictment just read, that David L. Child has been indicted, by the Grand Jury of Middlesex, for a libel on the Hon. John Keyes. The part which is derogatory to Mr. Keyes is inserted in the indictment. I am disposed to conduct this prosecution with liberality and fairness towards both of the respectable individuals. It involves important consequences. I have had no conversation with the prosecutor upon the subject; but I am persuaded that if he had not been a Senator, and one of the eyes of the Legislature, or if the publication had touched only his private character, he would have viewed it in the same light as highminded men do the libels, which are strown from one end of the country to the other. You will agree with me that if Mr. Keyes is conscious of innocence he could hardly delay one hour to vindicate himself. He is a man occupying a station, where public money, to a vast amount, much more than I had any idea of, depends upon the
honesty and intelligence with which he conducts himself therein.
I do not know that this is a time to speak to you of the pernicious tendency and consequences of political libels; but if I were a candidate for a popular election, I should expect to have my character ripped and torn all to pieces by lawless writers for the public press. I do not speak of the editor of the Massachusetts Journal in particular. He is a gentleman for whom I have a high respect for his talents, his integrity, and his standing as a member of the community.
I will now state the grounds on which I am going to rest this prosecution. I hold in my hand a paper, called the Massachusetts Journal, of which Mr. Child was, and, as he has done nothing in the dark, I presume he will admit that he is, the editor
You are aware, gentlemen, that in the last spring there was in the county of Middlesex a sharply contested election. Mr. Keyes among others, and he in particular, was the object of newspaper attack; and the whole artillery, I may say tremendous artillery, of the Massachusetts Journal was levelled at him. Within two days of the publication of the libel, Mr. Keyes did what a gentleman and a good citizen should do. He waited on Mr. Child, and told him that this piece was utterly false, and called upon him to disavow it. He stated to him, that as to other matters he did not care, and should not trouble him; but in respect to that part which touched his official conduct, he should not permit it to pass with impunity, unless it were publicly retracted. For some reason Mr. Child did not choose to comply with the demand ; but by making it, Mr. Keyes has put himself on as good ground as a gentleman and a good citizen can stand upon in a like case.
The publication is a charge of corruption. It purports to be a libel on the face of it.
It amounts to a charge of corruption. If it be true, it is not a libel; if it be false, it is a libel. You will observe, that it is contained in a publication, of the 29th of last March, which I will now read.
“ THE NEW NOMINATION IN MIDDLESEX. The proceedings of this county become daily more interesting. We have had the presumption to offer some remarks heretofore upon a certain hasty, ill advised, (and as has abundantly appeared by the conclusive testimony of General Rutter), illegitimate meeting, which nominated, on the 12th of this month, all the old Middlesex list except Mr. Jewett, who declined.
Almost every hour some new fact is brought to us in relation to this meeting. It now appears that there were at least three decided and active Jackson men on the Committee which reported Messrs. Parker, Keyes, &c. for the candidates. One of those Jacksonians, was, as we have stated, the famous Cunningham; another was from Charlestown, and the third from Groton, thus making a majority of Jackson men on the nominating Committee.
There is a further fact, which we wish to ascertain, viz :-who was the person that called this same illegitimate meeting? who was it that thus attempted to steal a march upon the people of Middlesex? We hear that a written notice of the meeting was stuck up in Concord, on the day that it took place; we should like, if it is not a secret, to know who wrote, who put up, and who instigated that notice. We understand that Mr. Keyes authorized and requested a Concord delegate at the meeting on Thursday evening, to say that he regretted that meeting, and had intended to decline the honor of a nomination at their hands. It is unfortunate for Mr. Keyes, who no doubt is sincere and honorable in this declaration, that he did not think of expressing his intention immediately, when nobody would have attributed to necessity, or fear, that which he wishes them to attribute to virtue and a love of the people.
Contrary to our wishes and hopes, though not to our expectations, Mr. Keyes has been put upon the ticket nominated at Concord on Thursday evening last.
We are gratified at this result, not for its own sake, but on account of the means by which it was produced. Mr. Keyes was obliged to call in Administration men, to vouch for his administration attachments, and, if one may so say, to endorse him. When, after three years of as fierce contention as was ever carried on in any country, without actually coming to blows, a man's opinions and intentions are so far unknown that he is obliged to bring certificates and vouchers for them, we think it certain that he is uncertain. We understand that Mr. Keyes came out on the evening of the meeting at Concord, for the purpose of choosing delegates to the Convention, with a vehement Administration speech!
We shall oppose to this important fact, a single question. When was Mr. Keyes ever known to come out either in public or private with a decided declaration in favor of the Administration, until such declaration became necessary for his re-election to the Senate ? Was it when we were struggling to get an able, nay, a decent man for United