885 Sheet – American State Trials 1918 Volume X Leo Frank Document

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Here is the translated text as follows:

JAMES THOMPSON CALLENDER, 845

A prosecution by information was initiated against the Chevalier De Ou for publishing a libel against the Count de Guerehy, ambassador from France. The prosecution commenced in the Court of King's Bench. The information states the title and the name of the libel fully and literally, as it was published in French, and then provides the translation in English at full length. I present these cases to demonstrate what the practice is; and it is an observation of one of the best judges who ever sat in the King's Bench, Lord Holt, that "the form of pleading is evidence of what the law is."

If, then, it is the practice to recite in the indictment the name and describe the title of the book or libel published, and if this has been the invariable practice ever since the unfortunate prosecutions for libels took place in that country, I believe there is no doubt that the title of this book ought to have been stated in the indictment. I have learned to think with diffidence, but I am firmly persuaded that the attorney for the United States cannot provide a single case from the English books of a contrary practice. With respect to prosecutions in the United States, I am not aware of what the practice may be in the few instances that may have occurred. It appears, too, that substantial reasons, founded on principles of sound law and sound justice, can be adduced in support of this practice.

A principle on which I rely to explain this practice as correct is that it is a universal rule of law that if a man's words, spoken or written, are made the foundation of a charge against him, the whole should be taken together. If the entire writing charged to be libelous is stated in the indictment, it will be in the power of the defendant to refer to other passages of the same book to explain it. If the defendant were indicted for publishing "The Prospect Before Us," he could refer to other parts of the book for an explanation. It was the duty of the attorney for the United States to have done so; as he has omitted it, he ought to be precluded from producing it in evidence.

I will now state another reason in support of my objection to the admissibility of this book as evidence. It is founded on this principle, which has always prevailed, or was supposed to prevail, in criminal law: that in all criminal cases, the offense should be described with all possible accuracy and precision. In felony, it is necessary to insert in the indictment the goods and chattels alleged to be stolen, as well as the name of the person to whom they belong. The reasons are furnished by the books for why this precision is deemed necessary: first, so that the defendant may know the charge against him and be able to defend himself; second, so that he may plead the conviction or acquittal in bar of a subsequent prosecution for the same offense (Hawkins' Pleas of the Crown, page 322).

The defendant is charged with writing and publishing a libel of the following tenor and effect. However, very few passages are selected from the books, which bear but a very little proportion to the extent of the whole of it. I ask, how is the defendant to know whether these few passages were taken from "The Prospect Before Us," or from some newspaper in which they have been republished by some person for whose conduct he was not responsible? Unless...