Report of the trial. The people versus Dr. Horatio N. Loomis, for libel. : Tried at the Erie County Oyer and Terminer, June 24, 1850. Justice Mullett, presiding. John Treanor, Leander J. Roberts, associate justices. Reported by Frederick T. Parsons, stenographer.

Date:
1850
Catalogue details

Licence: Public Domain Mark

Credit: Report of the trial. The people versus Dr. Horatio N. Loomis, for libel. : Tried at the Erie County Oyer and Terminer, June 24, 1850. Justice Mullett, presiding. John Treanor, Leander J. Roberts, associate justices. Reported by Frederick T. Parsons, stenographer. Source: Wellcome Collection.

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    ignorant of its existence, until it had been thrown broad-cast, all over the cit)', in the daily edition of the Courier. So that we shall insist, gentlemen of the Jury, that, even admitting all to be true that Dr. White claims for himself, and that the public prosecutor claims for him : Admit for ttieargument, that Dr. While, although he made a startling innovation upon the practice of two centuries on this con¬ tinent, yet that he in fact made a great advance fn science ; that he is, what the public prosecutor seems to cluim him to be, the Hervey of the Nineteenth Century—still we shall insist, that the proof shows but a technical libel, and shall demon¬ strate to you tl.at our act was, in intent, for justifi¬ able ends, and with good motives. I deem it proper, gentlemen of the Jury, to briefly state your relations to this cause. You are not sitting under the old rule, “the greater the truth, the greater the libel.” That rigid rule fell with the Star Chamber, where it originated. And yet it was the rule in this State, until the year 1805. No popular right was ever so long and success¬ fully resisted, as that of the citizen, to he> tried by bis peers, on informations and indictments for Rbel. Under the old rule, you would now be ready to render your verdict of guilty, guilty of the 'pub¬ licationvi'wh the truth of the libel, with our intent in publishing, you would have had nothing to do. You find the paper in our hand, and say we published it. And the Court determines wheth¬ er or not it is a libel. This right of juries to decide upon the intent of publishing, and of the accused to give evidence of the truth, has been one of the great battle fields of popular liberty, a right strongly contested by the throne, and at last won, only through the action of the British Parliament. The same contest was re-fought in this State in 1804, in the celebrated case of The People against Croswell, in which the Star Chamber doctrine was sustained by our Supreme Court, and practically reversed iu 1805 by an act of the Legislature. This act, allowing the truth to be given m evidence by the accused, and that he published with good motives and for justifiable ends, was aubsequently embodied in the Constitution, and has from that time to the present been a part of the fundamental law of the State. So sacredly is now the right of the accused in cases of this cha¬ racter secured against power and oppression. Now, gentlemen, under this right, we shall seek to establish that this “ libel ” is substantially true, that the publication by us was without malice, and for justifiable end'. The District Attorney seemed in a maze of doubt as to whether or not we intended to defend. I will relieve his anxieties by assuring him that we do intend to defend this libel. Now what are the main facts as we expect to prove them? Dr. White, the prosecutor, holds the chair of the Professor of Obstetrics, in the Buffalo Medical College of this city, an institution founded by the liberality of our citizens, and fostered by the patron¬ age of the State. In the latter part of January last, it was currently reported in all circles throughout the city, that a case of “ Demonstrative Mid¬ wifery” had been exhibited by the Professor, in the College. That a woman, enciente, had been kept within its walls for several days prior to her confinement; that, when her labor came on, the graduating class of students were invited to witness her delivery ; that her person was exposed to the view of twenty young men, contrary to any mode of teaching in this or any other country. The shock felt by this public at so startling, so gross, so wanton an innovation upon professional deli¬ cacy and public decency was such as 1 never be¬ fore witnessed or shared since my sojourn in your city. Dr. White himself, in his letter to his stu¬ dents, spoke of this transaction as an innovation “ likely to be opposed by popular prejudice,” and one which, without their co-operation, “ could not have been satisfactorily accomplished in this in¬ stance, nor the hope of its repetition indulged-” This matter, as I remarked, was a theme of public comment and rebuke. In the early part of February, the Medical Journal of this city had come to the rescue of Dr. White, and strongly commended the “inno¬ vation.” But all the comment had been entirely abstained from by the secular journals, until the 18th of February, when some friend of Dr. White, some brave Ivanhoe, entered the lists, threw down the glove, and challenged to the combat. An article appeared in that day’s Buffalo Commercial Advertiser, championing Dr. White’s “innova¬ tion,’' challenging scrutiny, and claiming it as one of the great achievements of modern science. The lance offered was encountered, and a sober, mode¬ rate article, representing the sentiment to which I have alluded, was written in reply. That reply is the alledged libel, and the answer to which is the enginery of the law. Now, gentlemen of the Jur)% all that Dr. White insists upon may be true. Perhaps you, and I, and our forefathers, have all come into the world iu a wrong way, and the great command has been but half fulfilled, bet ause of a long night of ignorance in this blanch of science. Dr. Y'hite may be, for aught I know, the modern Prometheus, who has brought down the fire from the gods, with which to illumine our hitherto darkness, and it was left for him to successfully over-ride the usages ofages, and the prejudices and principles rooted and grounded in us from childhood to old age ; yet we shall insist here, that something is to be pardoned to public (irejudices, we shall deny his right to stretch us out upon his Procrustean bed, and hack off our limbs, if too long, or stretch them out, if too short, without waiting for us to grow up, or to grow down, to his “ innovating position.” He hav¬ ing thrown the glove of controversy we shall insist on our right to take it up, and deny that all dis¬ cussion is to be on his side. He had had his Eu- logium—his innovation, its panegyric. And we