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.
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Prosecuting attorney Jack Casey makes opening arguments for Henry Livingston.

"What is a poet? ... To me, a poet is a person who has a deep feeling that he or she wishes to communicate to the rest of mankind."

Jack talks about Moore. "He wrote poetry, and most of his poets are lessons about how to behave. If you don't behave properly you're going to get punished. There's a snake under every flower in the garden of Clement Moore." "Clement Clarke Moore is always trying to impart a moral. He thinks that mankind is evil and should be chastized."

"Henry Livingston was also a poet. He turned out poetry day by day by day. He very rarely put his name on it. Published enormous amounts of poetry in journals and never signed them."

Moore's defending attorney, E. Stewart Jones, Jr., makes opening arguments for Moore.

"This poem was published in Troy in 1823. Mr. Livingston was alive in 1823." "Did you know that from 1823 to 1828, Mr. Livingston never, ever took credit for this poem."

... "Did you know that the only existing copies of this poem are in the handwriting and signed by Clement Moore? Did you know there's not a single copy of this poem in the handwriting of Mr. Livingston?"

..."In 1844 Mr Moore published a book of poetry and this was included in that anthology." ... "At no point in time until after Mr Moore passed away did this family [the Livingstons] come forward."

Jack Casey calls his first witness, Kathryn Sheehan, the Rensselaer County historian. He showed her the letter sent by Norm Tuttle to Clement Moore just before Moore published his 1844 book. He also showed her a comparison of the poem published by the Troy Sentinel in 1823 and in 1830. She said there were few differences.

[This is where she should have been stopped. There were 21 differences, some significant and some not. The point being attempted is that the letter was in response to a letter from Moore asking the publisher if he knew who wrote the poem when he published it. Don Foster considers this "the coast is clear" letter that let Moore feel safe publishing the poem under his name. Enclosed with the letter was the changed 1830 Troy Sentinel version of the poem. A Moore family deposition emphasizes the point that though no Moore story ever mentions a corrected version of the poem, the reason was that Moore wrote it down as he wanted it to read, and only made a few corrections when he came to publish the poem in his book. But, in fact, Moore made only a few changes from the version much changed by Tuttle, the 1830 version, NOT the original 1823 version. These facts were lost in this part of the interrogation.]

Jones goes on to cross examine the witness, with the judge sustaining Molly Casey's objections, even though he and Jones went to law school together. Jones: "How many copies of any Christmas poems are there, to your knowledge, in the handwriting of Mr. Livingston?" Sheehan: "None that I know of that exist."

[While no copies exist today, family stories down the lines of Henry's children tell in witness letters of finding Henry's corrected manuscript. Son Sidney owned the manuscript until he willed it to his younger brother Edwin. Edwin owned the manuscript until it burned in a house fire in Wisconsin while he was living with his sister Susan around 1859.]

Ms. Sheehan went on to explain that the poem was taken by a friend of the Moore family, Harriet Butler, who lived in Troy and who gave it to her Sunday school teacher, Mrs. Daniel Sackett, who took it to the Troy Sentinel. Jones: "And the link there to both [Harriet Butler and Mrs Daniel Sackett] then would be to the Moore family."   Sheehan: "The Moores and the Butler family."

[The Moores and Butlers were distantly related, but close friends. Harriet Butler's brother, Rev. Clement Moore Butler, was closely related to Henry Livingston since Clement Butler was married to Frances Livingston Hart, the granddaughter of Judith Newcomb Livingston, who was Henry's first cousin and next door neighbor. Judith's husband, John Moore, was related by marriage to Clement Moore's family.]

The Episcopal Sunday school teaching of Mrs. Sackett is not known to me, but Honor Conklin unearthed the information that Daniel Sackett was very active within the Presbyterian Churches of Troy.]

Jack Casey was then allowed to again examine Ms Sheehan in redirect. The primary purpose of the redirect was to examine the changes of the reindeer names from the time the poem was first published in the Troy Sentinel of 1823 to when Moore handwrote copies of the poems late in his life.

Jack: "So in 1823 it was Dutch, then an editor took it upon himself to change it to German, but when he [Moore] rewrote it he didn't change it back to the way he had originally written it."

[The initial 1823 version identified two of the reindeer as Dunder and Blixem, the Dutch exclamation meaning "thunder and lightning!" Editors changed the names attempting to get a better rhyme. When Moore finally published his 1844 book, his version took an editor's change from Dunder to Donder, and added one change of his own of Blixen, the overwhelming favorite change of editors, to Blitzen.

In discussing the reindeer name changes, the witness also said that "Dunder and Blixem" was a favorite exclamation of Mrs. Moore, who was partially Dutch. No proof of that statement was ever made, and in all my readings I have never come across anything that even implied that statement. Mrs. Moore was the third cousin, 3x removed of Henry Livingston, Jr. Mrs Moore was 1/4 Dutch through her mother's father, Philip Van Cortlandt, though her grandfather resided in New Jersey, not in Dutch New York.

Henry Livingston, Jr. was over 3/4 Dutch and lived in a heavily Dutch town where his Uncle Johnnie Conklin used that expression extensively. Livingston's children said it was a favorite of his, as well. A descendant of Henry Livingston's also reported that the reindeer were named for the horses in Henry's stable.]

This interchange was followed by Jack Casey getting Ms Sheehan to correct the defense lawyer's opening assertion that the poem was not brought to Mrs Sackett by her child but, rather, by her Sunday school student. Upon this being confirmed, Jack suggested to the judge that a legal principle says that if there was an error in the defense opening, then everything else that Mr Jones said during his opening could also be suspected as being untrue.

The next witness was Pamela McColl. Ms McColl had published an edition of "Night Before Christmas" which left out the 13 words describing Santa smoking a pipe, because of her advocacy for non-smoking. She explained that not only did Moore have a dislike of tobacco, but that he called it "opium's treacherous friend."

Molly Casey asked her, "What's your opinion of the authorship of the poem, 'A Visit From St. Nicholas'?" McColl: "I think there is enough evidence to put this authorship of the poem in great question, and although I did put [attribute] this poem to him on the cover of the book, and I put a portrait of Clement C. Moore in the book, I think from the amount of scholarly research I've done on it, I have a very hard time believing he wrote this poem."

Repeating the question to obtain a more direct answer, the defense objected but the judge explained, "It may be irrelevant, but I want to hear the answer." Molly: "Miss McColl, is your opinion that Clement C. Moore was not the author of this poem to a reasonable degree of certainty?" McColl: "Yes, that is my opinion."

With no further witnesses subpoenaed to appear, Molly and Jack decided to call a ghost witness. With bells. Henry Livingston, Junior appeared in ghostly fog playing his favorite violin. Remembering that the dead voted in the past in Troy, the judge agreed that a ghost could also testify.

Jack: "Did you ever write poems to delight and educate your children?" Henry: "Of course." Jack: "Did you ever write a poem about, let's take a stab, St. Nicholas?" Henry: "Yes, I did."

Horrified by two stanzas of a poem written by Clement Moore,

But where I found the children naughty,
In manners rude, in temper haughty,
Thankless to parents, liars, swearers,
Boxers, or cheats, or base tale-bearers,

I left a long, black, birchen rod,
Such as the dread command of God
Directs a Parent's hand to use
When virtue's path his sons refuse.

Henry went on to note that he was trying to celebrate the joy and the love of Christmas. He went on to recite some of his own poetry. The first he recited was from a Letter to Brother Beekman

Then bounce all hands to Fishkill must go in a clutter
To guzzle bohea and destroy bread & butter
While you at New Lebanon stand all forlorn
Behind the cold counter from ev'ning to morn
The old tenor merchants push nigher & nigher
Till fairly they shut out poor Baze from the fire.
Out out my dear brother Aunt Amy's just come
With a flask for molasses & a bottle for rum
Run! help the poor creature to light from her jade
You see the dear lady's a power afraid.
Souse into your arms she leaps like an otter
And smears your new coat with her piggin of butter

To repeat his love of the words clutter/clatter, Henry read a few lines from a humorous letter said to be written to his sister Cornelia by a tenant.

Well Madam, the long and the short of the clatter
For mumbling & mincing will not better the matter;

Henry continued by reading Careless Philosopher's Soliloquy.

I rise when I please, when I please I lie down
Nor seek, what I care not a rush for, renown:
The rattle call'd wealth I have learnt to despise
Nor aim to be either important or wise.

Let women & children & children-like men
Pursue the false trollop the world has called fame.
Who just as enjoyed, is instantly flown
And leaves disappointment the hag in her room.

If the world is content not to stand in my way
The world may jog on both by night & by day
Unimpeded by me - not a straw will I put
Where a dear fellow-creature uplifteth its foot.

While my conscience upbraids not, I'll rise
      and lye down
Nor envy a monarch his cares and his crown.

Jack then asked him about the version of the Christmas poem published in the Poughkeepsie Journal a few days before Henry's death, and whether that version still used the Dutch reindeer names. Henry confirmed that it did, and that he had never considered changing the names to the German names. Henry made the point that Vixen and Blixem actually DO rhyme because the last stressed syllables of the words are Vix and Blix, not en and em. What DOESN'T rhyme is Vixen and Blitzen - Vix and Blitz!

[That is a COMPLETELY new argument I've never seen made anywhere but here.

Under cross-examination by Defense, Henry managed to forget the manuscript with crossouts that figured so prominently in his descendants' stories. [This was probably the most extreme error of the trial.]

When asked why if Henry seeks no credit for the poem, then what are Henry's relatives doing going after Mr. Moore for his authorship. Henry replied that he was moved by the evident fact that he has family members to whom this does matter a great deal, such as sitting just here [Henry pointed at the prosecution table where his 5th great granddaughter, Mary Van Deusen, sat]. He explained that it was for their sake that he would certainly assent of the proper authorship being recognized.

Mr Jones noted that this is why you never ask the why question in a real trial. At that, the whole audience cracked up, and Jack introduced Mary as a lineal descendant.

At this point, the prosecution rested.