Henry Livingston, Jr.

On December 7th, 2014, a mock trial was put together by Duncan Crary and Jack Casey in Troy NY, the city where 'Night Before Christmas' was first published in the Troy Sentinel.
Watch Webcast

Can't Wait? Jump to the Verdict

Go Back to read the prosecution's case

The first witness the defense called with the ghost bells was Mrs. Daniel Sackett. She related that a Sunday school student of hers, Harriet Butler, had given her a copy of a poem written by Clement Moore that Butler had copied from one of Moore's children when Butler was visiting the household in New York City. Mrs Sackett went on to say that she had taken the poem she was given to the Troy Sentinel, which published it.

Molly Casey rose for the cross-examination, asking Mrs Sackett if she had personally known Clement Clarke Moore. Mrs Sackett had not and could not speak from her own knowledge that Mr Moore had written the poem, though she repeated that her student had told her that she had heard from Moore's child that he had written it.

Ms Casey asked that the testimony be stricken as hearsay, but the judge felt there was some room when taking testimony from a ghost and said that he would allow the comment to stand, and that the jury was allowed to consider that comment.

Under questioning by Jones, the ghost of Clement Moore described going out for a Christmas turkey in 1822 with his driver, a roly poly Dutchman. "And it was that image of my driver, backlit with the snow falling, that inspired me to go home and write as I had never written before!" Jones went on to ask Moore what happened in 1837 that changed for Moore, since he had not previously had his name attached to the poem. "There had been, shall we say, this game of cat and mouse that was going on among some of my friends, teasing me about having written that poem, knowing full well I was eather embarrassed having never obtained any of the recognition I suppose I'd sought as a scholar. Someone spilled the beans."

Moore was also asked whether anyone had claimed authorship of the poem at any time before Moore's death, but he said that they had not.

Getting into the matter of the editorial changes in the poem from the Troy Sentinel versions of 1823 and 1830, the 1837 "New-York Book of Poetry" and Moore's own 1844 "Poems," Jones asked about Moore's reaction to those changes. Moore replied that such changes were natural and that editors were, in fact, quite ruthless.

McColl had previously testified that Moore would not have included Santa smoking because he was against tobacco. Moore explained that he was struggling for a rhyme to go with teeth. "What if we had a short, stubby pipe, right? Like those that were ubiquitous in the working class. That could have been a signal to all that we were moving away from the stern, magisterial bishop image of St. Nicholas and down toward something that was more egalitarian and democratic that everyone could participate in." Jones asked Moore if he saw any conflict between his dislike of smoking and putting a pipe into the mouth of Santa for a poem aimed at children. "No. I think smoking was so commonplace I never gave it another thought. I mean, Santa was a bit overweight, too. It wasn't just the smoking, I suppose"

In describing how the names of "Dunder and Blixem" came about in the 1823 version, Moore explained that the Dutch exclamation for "thunder and lightning" was one that his wife used. He went on to say that he had always been uncomfortable with the way the names rhymed, so changed it to the German "Donder and Blitzen."

[As previously discussed, Mrs. Moore was only 1/4 Dutch through her mother's father, Philip Van Cortlandt, who lived in New Jersey, not Dutch New York. I have seen no proof that Mrs. Moore ever used that expression.]

Moore recited a spontaneous poem to show that he was at ease in writing anapestic verse.

On whether with ease, I would that meter write?
I would offer this verse, right here in plain sight.
Though falsehoods he offers and makes with a shout,
On this point, Mr Casey, though mighty, strikes out.

Jones asked Moore directlyu who authored "Night Before Christmas." Moore replied, "I did, Mr. Jones." And with that, Jones stated that he had no further questions.

Jack Casey rose for his cross-examination, challenging Moore's changing the Dutch reindeer names to German because of their rhyme. Jack: "Donder and Blitzen. Does, in your immense poetical taste, Blitzen rhyme with Vixen." Moore: "Yes." The audience laughed.

To the direct question, "You didn't write this poem at all, did you?" Moore replied, "No, Mr. Casey, that's a falsehood."

Moore's explanation for the writing of the poem taking only three hours was that the poem had flowed easily, and admitted that the day he wrote the poem WAS a good writing day.

The defense rested.

Defense attorney Jones began his closing arguments by sharing some things with the jury - his socks, his pants and his tie.

"This poem is historical tradition. It is vitally important to the city of Troy that this poem be recognized for what it was recognized as back in 1823. To distort and disrupt the historical rhythm by concluding that Mr Moore is not the author of this poem would do irreversible, long-term damage to the psyche of this city, wherever that psyche may be. I don't want to disappoint the Livingstons, Mrs Van Deusen's come all this way, so I have a suggestion, that you agree to disagree. That you have another hung jury. That way, no one wins; no one loses. That way, we come back again next year and do it all over again.

"Pay careful attention to the Casey's summation. The more time they spends on it, the more desperate of the evidence they are. Don't let them talk longer than I just did."

The prosecution's Molly Casey stood up to present the final closing arguments.

"I'd just like to object to Mr Jones' attempt to bias the jury. We're going to do this next year anyway, so I encourage you to NOT come back with a hung jury as that will not affect whether we come back and do this again next year. "When this poem was first published anonymously in the Troy Sentinel, the editor of that newspaper had this to say about it, 'There is, to our apprehension, a spirit of cordial goodness in it, a playfulness of fancy, and a benevolent alacrity to enter into the feeling and promote the simple pleasures of children, which are altogether charming.'

"You had a chance to see Mr Moore here tonight, the man who for two centuries almost was falsely credited as the author of this poem. The steely, rigid biblical scholar. Now Mr Moore did write a poem about Santa Claus and you heard that today, too. And in that poem, Santa Claus differentiated between the good little girls and boys and the bad girls and boys. He made a moral judgment about these children and the bad kids, even if they were just a little loud, they got long, black birchen rods from Santa Claus. And not only that, but their parents were encouraged to beat them with those rods. There's nothing playful about that. Beating your children is just about the opposite of promoting children's simple pleasures, wouldn't you say? That poem was not anonymous. That poem was written by Moore and there's no question about that."

[Ms Casey was inaccurate here. The poem she describes, Old Santeclaus," was attributed to Moore by Don Foster. The Santa Claus poem which was in Moore's handwriting was "From St. Nicholas." In that poem, Moore sympathizes with his daughter whose stocking was left "quite empty."]

"Now let's compare that with the poem at issue here today. 'The children were nestled all snug in their beds / While visions of sugarplums danced in their heads.' And then describing Santa Claus, 'He was chubby and plump, a right jolly old elf, / And I laughed when I saw him, in spite of myself.' Now if Mr Moore was such a biblical scholar, would he take a saint and turn him into a jolly little elf? I don't think so."

[Actually, he did exactly that with the poem "From St. Nicholas."]

"The Santa Claus in the poem 'A Visit from St. Nicholas,' Livingston's Santa Claus, he filled the stockings with treats for the children. He didn't differentiate between the good kids and the bad kids. He made the parents laugh, in spite of themselves. He didn't encourage them to beat their children. I want you to ask yourself, "Could the same man have written those two poems? The answer to that question is no. You know it. I know it. And Clement Clarke Moore knows it, too.

"Now you also had the chance to meet Henry Livingston tonight - the jovial, good-natured, gentleman farmer. Twinkling eyes, his merry dimples, his cheeks like roses, mouth like a cherry. He wrote poems for children. He wrote poems for his family. He wrote poems to make the world happy. He didn't write poems to teach lessons and he didn't write poems for fame.

"Now I also want you to pay attention to the styles that these poems were written in. We talked about that today, too. I have a poem written by Henry Livigston which he didn't read on the witness stand tonight. I'll read you that verse.

"Such gadding - such ambling - such jaunting about
To tea with Miss Nancy - to sweet Willy's rout
New parties at coffee - then parties at wine
Next day all the world with the Major must dine.
  Brother Beekman
"And you have a poem by Moore.
"Amid life's wreck, we struggle to secure
Some floating fragment from oblivion's wave
We pant for somewhat that may still endure,
And snatch at least a shadow from the grave."

Ms Casey was interrupted by defense counsel Jones objecting that the poem from which those lines were taken was not in evidence, but the judge found the lines and allowed the lines to stand. Ms Casey resumed her closing arguments.

"I know you've been given an instruction by the court that you're not allowed to do any independent research, but I'm going to tell you, ladies and gentlemen, that if you were to go out and you were to read every single poem that was written by Henry Livingston and every single poem that was written by Clement Clarke Moore, and you paid attention to the metres, cadences of the rhyme scheme and the syllables, you would see..."

Jones objected to the fact that all the poems were not in evidence. The judge ruled it was fair comment.

"Ladies and gentlemen, if you went out and read all those poems, you wouldn't have any doubt that Henry Livingston is the author of 'A Visit from St. Nicholas'. You'd really have to strain your rationale to find very many similarities at all with Moore's other work. And I'd also like to just draw attention to the fact that the only copies of 'A Visit from St. Nicholas' written in Moore's hand or after 1844 - anyone could have copied it.

"And you also heard from Pamela McColl today. She's our expert witness. She's an anti-smoking advocate - a smoking cessation advocate. She took smoking out of this poem because she felt strongly about smoking. Now you also heard that Clement Clarke Moore was avid, vocal anti-smoking advocate. A man who hated smoking. Would he have painted the hero of a children's poem and made him a smoker? No. It's another example of how Clement Clarke Moore's story and his case just doesn't add up. You can rely on Mrs McColl as an expert.

"Moore dudn't have an expert. The only thing supporting Moore's case is his own self-serving claims. Well, and those of Mrs Sackett. You also heard from Mrs Sackett. She was here today. She came back from the dead to tell you all about how she was the reason the poem was published. She was the only reason it made it into the newspaper. She had absolutely nothing probative to offer at all. She told you that she got the poem from one of her students, and that was all she was able to tell you about it.

"Now, ladies and gentlemen, for some reason, after all of these years, we don't know the reason, for some reason this poem was attributed to Clement Clarke Moore somewhere along the line. We don't know why. You've heard all of this evidence here today, and still weren't able to answer it.

"Twenty-one years after this poem was published, Clement Clarke Moore made a furtive enquiry of the editor of the newspaper to make sure that no author had come forward. And he did that so he could misappropriate this poem with impunity. Literary piracy at its finest, ladies and gentlemen. Mr Moore wanted to make sure that he didn't get caught. And he didn't during his lifetime.

"But now 160 years later, you have the ability to set this right. You heard the evidence. You know that Henry Livingston wrote this poem. And you honor his memory and his reputation with your verdict in his favor tonight. I want to thank you for your service, and I want to thank you for doing the right thing. Finally."

The judge then instructed the jury to consider the testimony of the witnesses, not the lawyers. They could also consider the testimony of the ghost witnesses. He explained that 5 out of 6 of the jurors had to agree upon a verdict. Otherwise, there would be no verdict.

While the jury deliberated, the audience was entertained by a saxophone playing Santa and elf, and by Elvis - just to add another ghost to the event.

The jury chairperson announced that the verdict was for Henry Livingston as the author of "Night Before Christmas", aka "A Visit From St. Nicholas." The audience and the plaintiffs were overjoyed.

Judge: "Order, order in the court. Let me ask the jurors. Will you please stand. The verdict reported was that Mr. Livingston prevails. So say you all? [jury affirms] Would anyone care to poll the jury?" Jones: "I want the jury investigated, not polled." Judge: "Please be seated. Now, at this time, I want to thank the jurors for their service. You have been asked to do a nobel thing and, based upon the evidence, you have made a decision today and I commend you for your service.

"I would also like to thank the participants. I note that a lot of preparation went into this and Mr. Casey, Ms Casey, Mr Jones, you're to be complimented for your decorum. I'm really gratified that in the course of these two hours you have done nothing to destroy the integrity of Santa Claus. And I'm happy about that.

"At this time I would like to introduce Duncan Crary, who put this whole thing together."

Duncan: "Thank you. I'm going to be busy tonight working on the press release to announce this verdict to the world tomorrow. Thank you all so much for coming. Paul Rapp had a great review of this event in the Metroland this Thursday. It's still on the shelves. And it said that he believed that 'The Trial Before Christmas' could become the next great holiday event like 'The Nutcracker,' like 'A Christmas Carol.' Only there's one thing that's different about this, and those productions, and he said, 'This one's ours. It belongs to us.' And it does."

Ben Karis-Nix
Troy Cloth and Paper


All Henry Livingston's Poetry,     All Clement Moore's Poetry     Historical Articles About Authorship

Many Ways to Read Henry Livingston's Poetry

Arguments,   Smoking Gun?,   Reindeer Names,   First Publication,   Early Variants  
Timeline Summary,   Witness Letters,   Quest to Prove Authorship,   Scholars,   Fiction  

   Book,   Slideshow,   Xmas,   Writing,   The Man,   Work,   Illos,   Music,   Genealogy,   Bios,   History,   Games  

Henry's Home

Mary's Home

IME logo Email: Mary S. Van Deusen
Copyright © 2014, Mary S. Van Deusen