Chapter 64
Section 64 of American State Trials, Volume 1. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. Read by T.R. Love.
American State Trials, Volume 1, by John D. Lawson. Section 64. Trial of Mordecai M. Noah for breaking open and publishing a letter. New York City, 1818, Part 2. Mr. Price.
Called on counsel for the prosecution to produce the authorities on which it was intended to sustain the prosecution. Mr. Van Wick. Read from 2nd Hawkins, page 301, section 4. There can be no doubt but that all capital crimes whatsoever, and also all kinds of inferior
crimes of a public nature, as misprisions and all other contempts, all disturbances of the peace, all oppressions, and all other misdemeanors whatsoever, of a public evil example against the common law, may be indicted, but no injuries of a private nature unless they some way concern the king. The seventeenth section of the Act of the United States Concerning Post Offices and
Post Roads, Gradence Digest, page 341, enacts that, If any person shall take any letter or packet, not containing any article of value or evidence thereof, out of the post office, or shall open any letter or package which shall have been in the post office, or in the custody of a mail carrier, before it shall have been delivered to the person to whom it is directed, with design to obstruct the correspondence,
to pry into another's business, or secrets, or shall secrete, embezzle, or destroy any such mail letter or packet, such offender, upon conviction, shall pay for every offence a sum not exceeding one hundred dollars. Mr. Fisk. I rise with no inconsiderable degree of embarrassment as counsel for the defendant, not because
I consider the least blame is imputable to my client in a criminal point of view, but because throughout the criminal code there is no authority, no precedent, for so extraordinary a prosecution. I have searched the authorities and looked in vain for a precedent which might justify this indictment.
And after a most diligent inquiry, am bold to say that the highest charge contained in this indictment is not a public offence. If it were so, why do the laws of the United States annex a penalty to the offence? For it surely cannot be denied but that this statute is remedial and intended to prevent an offence unknown to the common law.
On this occasion, defendant was unwilling, at the commencement of the trial, to move to quash the indictment, well knowing that the facts in the case would not warrant the charge in the indictment of breaking open a seal and reading a private letter. Not admitting that this is anything more than a private wrong for which the party injured might sustain his civil action, we nevertheless repelled the charge and contend that the evidence
does not support it but expressly proves the contrary. All the evidence in the case fully supports our position that the letter came into the hands of defendant after it was opened by some other person. The breaking of the seal of a letter is an act which it is reasonable to suppose would occur frequently.
Had it ever been considered an indictable offence, there might surely have been found some precedent either in our records of criminal jurisprudence or in those of England. To say the most of it, it is but a private wrong or an infringement of imperfect right. Under the circumstances of this case, it was a laudable act in defendant to publish this letter with strictures and comments.
This letter contained an atrocious libel against defendant, it called him a wretch, and the prosecutor, moreover, spoke of a concert between his firm and Mr. Spooner, his correspondent, the avowed object of which was to have something done by the Republicans at Albany this winter to distribute the state printing more generally. This, if not a plot, was a matter relating to the interests of the people in general
and ought to have been exposed. In a country of equal rights, no citizen should be subjected to a criminal prosecution for a matter uncertain and not well defined, for, as an elegant writer has remarked, miserable is the situation of the subject where the law is undefined or unknown. Mr. Price to the jury.
The act of breaking open the seal of a private letter is not an indictable offence. Had it been, surely some precedent could be found for such an indictment in the judicial records of that country from whence we have derived our criminal jurisprudence. The offence was against the private rights of individuals only and not against those of the public, but in this case the evidence clearly shows that the defendant is not guilty
of the offence laid in the first three counts. The letter came into his possession, opened, and under the circumstances it was just and laudable in him to give it publicity. Let any unprejudiced man on this jury lay his hand on his breast and say whether, if he had received a letter in the manner this was received, wherein he was called a wretch,
he would not have published it with comments on the conduct and motives of the writer. Nay, more, whether he would not, in the language of one of the witnesses, have retained the letter and laid it before a grand jury. Besides, the avowed object in the letter was to affect something in concert with Mr. Spooner, touching the distribution of the state printing more generally.
We wish to have something done this winter by the Republicans. Now, as the object to be affected this winter was confined exclusively to those whom the writer was pleased to term the Republicans, I confess it gave me some considerable degree of alarm. It really looks ill.
There used to be a party in this state termed Federalists, with whom I acted, and I therefore regretted to see that by the terms of that letter the Federalists were not to be consulted relative to the measure of distributing the state printing. It was to be done by the Republicans, and for the Republican printers only. I confess the jury is to lay aside all party prejudices.
You were impenetrable to pronounce the law as it stands, unbiased by party feelings, and it is not your province, however it might gratify the political opponents of defendant, to step in the place of legislators and make that a law which was not so before. Mr. Bogartis, Mr. Van Wick, and Mr. Maxwell summed up the case for the prosecution. They contended that a private letter was a species of unprotected property, and that
among men in every country a seal had been considered sacred and inviolate. Every member of the community was concerned in the preservation of that peculiar property which was protected by public opinion alone. If no precedent could be found for an indictment for the specific offense laid in this, it is because no man had ever yet been so depraved as to be guilty of its perpetration.
It cannot be denied that the act is highly immoral and concerns the public interest, which constitute the distinguishing characteristics of a public offense. Though there is no direct evidence that defendant broke the seal and opened the letter, yet the circumstances of the case fully justify that conclusion. Defendant was the first person in whose possession the letter was found after it had been surreptitiously
obtained, and counsel urged to the jury that he had not satisfactorily accounted for the possession. In the next place, he made an improper use of the letter by publishing its contents. Had he, as is pretended, found the letter open, he ought, as an honest and honorable man, to have sent it unread and unexamined to Mr. Spooner.
Open footnote. Mr. Maxwell admitted that no evidence existed in the case showing that the defendant broke the seal, but he contended that as this was a private letter, defendant had no right to publish its contents with strictures and comments. The other counsel for the prosecution opposed this admission and insisted that there was
evidence to warrant the conclusion that defendant broke the seal. Close footnote. It was not just to argue that, because no precedent for such an indictment could be found, that therefore this prosecution could not be maintained. It was sufficient to say that the act in itself was indecent and immoral and concerned the
interests of the public. In the case of him who in the public streets of London stripped himself naked, there might not have been, and probably was not, a precedent of an indictment for such an offense to be found. And yet a public prosecution was maintained.
And in the case of William J. Jenner, tried in this court, no precedent existed of an indictment for so singular an offense, and yet his counsel, by not raising the question, passively admitted that the indictment was supportable on general principles. Brackcliff Mayor. To the jury.
This is a new case, and the first question presented for consideration is whether it is a misdemeanor in any individual to break the seal of a private letter and publish its contents. It is not the case of a letter intercepted by the authority of government or a public officer, which under certain circumstances might be justified and necessary to detect
designs against the public safety or peace. The case before us is that of an individual who is charged with committing the act without such authority. It is admitted that there is no precedent for such an indictment, but counsel for the prosecution contend that on general principles the charge against the defendant must amount
to an offense. In the absence of precedent or direct authority, we can only resort to general principles, though it would be more satisfactory to have former decisions for our guide. To constitute a misdemeanor punishable by indictment, two things appear to be essential. First, that the act be in itself improper or immoral, and secondly, that it be of public
interest or concern and have a tendency to produce general or public evil. It is not the immorality of an act alone which constitutes a public offense. Many gross frauds and injuries are committed by individuals towards each other for which there are no other than private remedies. But when the act complained of be also of a public nature and the community have a general
interest in suppressing or preventing its repetition, it then becomes a public offense punishable by indictment. Upon these principles and the best consideration we have been able to give this subject, the court is of the opinion that the breaking open and publishing a private letter is a misdemeanor and therefore indictable.
Correspondence by letter has become very extensive and important. As to that of personal intercourse, it is a medium of communication, the most general and interesting of any that exists in a civilized community. It may relate to matters of friendship, of business, and to all the concerns of human life, whether of a public or private matter.
A letter is usually protected by a seal to guard it against public inspection, and by the common consent of the world, this seal is to be held sacred. It is the interest of every man in the community that it should be so, and to permit it to be violated would lead to incalculable evils and strike at the root of all public and private confidence.
If therefore the proof in this case can support the charge that defendant broke open this letter, or which would amount to the same thing if he had any agency directly or indirectly in doing it, in the opinion of the court he ought to be found guilty. The direct evidence of the witnesses on the subject is that it was found open on the floor of his office, but it was contended by some of the counsel for the prosecution that there
are circumstances which go to show that he must have had an agency in procuring and breaking open the letter. If there be circumstances to satisfy you of this, according to the opinion we have expressed, the indictment would be sustained. Otherwise, defendant ought to be acquitted.
Another question is also made. Considering the evidence not to warrant this conclusion against defendant, and the letter to have been found open on the floor of his office, and that it came to his hands in that situation, as stated by the two witnesses, Birch and M.S. Phillips, is the act of reading and publishing it an indictable offense?
As far as my own opinion is concerned, I have no hesitation in saying that I consider it incorrect as between individuals to read or make use of a private letter addressed to another to whom it is known to belong whether it be found open or not. The proper course for a defendant, I think, would have been to have sent this letter to Spooner and to have published nothing on the subject.
On this point, however, I am sensible a difference of opinion exists among the members of this court, but it does not affect the legal question with respect to which there is no difference. It is not every incorrect or improper act which is indictable. To render it so, it is necessary, as before stated, that it should be of a public nature, and of a general evil tendency, or the community have not such an interest in it as to make
it the ground of a public prosecution. The finding a letter open is not a common occurrence and can rarely happen. Generally it must have reached the owner and have been lost or mislaid through his negligence or carelessness. The public have, therefore, no general interest on this question, and the law does not provide
against the carelessness or negligence of individuals. Whether therefore it be or not be incorrect or immoral to read and make use of a letter found open, by publication or otherwise, contrary to the intent of the writer or his correspondent, it is, in our opinion, not a matter of public concern and therefore not indictable.
It has also been made a question whether the strictures and comments of the defendant which accompanied the publication of the letter or the use made of it in connection with those comments does not amount to an offense. The strictures and comments do not, in our opinion, alter the case or affect the question on the present indictment.
If they are indictable at all, it can only be by the way of prosecution for a libel. Having expressed our opinion as to the law on the questions that have been made, it is admitted, as has been contended by a counsel for defendant, that you have a right in this, cases to judge of the law as well as the fact. But in deciding on the law, it must rest with you to consider how far it is prudent or discreet
to respect the opinions delivered by the court. The jury retired and returned with a verdict of guilty. Mr. Price demanded that the jury should be polled, which was done, and they confirmed the verdict. On February 6th the verdict of guilty was set aside by the court and a new trial ordered
on the ground that the verdict was against the weight of the evidence. The jury, said the court, had really decided, contrary to the opinion of the court, expressed to them that the reading or publishing of a letter, whether found open or not, was an offense.
