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Case of Matthew Lyon.

JANUARY, 1821.

those of the present; expenses of the war, with the advantages gained by it. Besides, our political concerns were not of the most flattering kind; there was a great deficit in our revenue; our foreign relations were not in the most prosperous train; some troubles with France. This, to be sure, is not threatening, but looks a little like it. For one, I do not fear, but rather court, such comparisons; for, if the results of such comparisons should sometimes turn out unfavorably to those who have the expenditure of public moneys, or of those who authorize those expenditures, it would operate as an excellent corrective; it might do much good, but no hurt.

would sometimes be very great, at other times very small, but generally rather small. I trust, however, in voting on this resolution, we shall not stop to inquire how much money there may be in the Treasury; if we do, sure I am, the gentleman's motion, the indefinite postponement, must prevail. If the friends of the liberty of the press have heretofore neglected to urge this subject upon the consideration of Congress, let the reproach rest with them; their apathy affords no apology to us for refusing to act. If we have been negligent, let us now redeem our character. Those who consider the sedition act constitutional, and called for by the circumstances of the times, must consider this inquiry as altogether unnecessary and improper-and those who believe that the act was unconstitutional and oppressive, I fear, feel satisfied that much good has resulted to themselves from the sufferings of those who were fined and imprisoned under that act and that the party with whom it originated, not only failed to accom

We cannot but feel some reluctance at entering upon the investigation of a question, which, by many, has long been considered at rest; more especially when that question is calculated to call

I regret that the merits or demerits of Matthew Lyon should be called up in deciding a principle, involving consequences much more important than the character or sufferings of any individual. I am aware that Matthew Lyon is unpopular in Congress, but that want of popularity should have no unfavorable effect in fixing a principle in which the citizens of the United States are deeply inter-plish the object they had in view, but in fact by ested. We are not to try the man; we are to de- this very measure lost the power which it was incide his cause, which is one of general interest. tended to perpetuate. Under such comfortable, Why, we are triumphantly asked by the honorable but selfish reflections, I fear we are disposed to gentleman from Georgia (Mr. WALKER) has this forgot the victims of the law. question been suffered to sleep for twenty years? Why are its slumbers now disturbed? Frequent attempts have been made to disturb its slumbers, but in vain ; an attempt is now made, but that gentleman seems resolved to perpetuate those slum-up feelings that once painfully agitated the public bers, by this motion for indefinite postponement. mind. Under such circumstances, a love of ease Perhaps there have been in Congress too many will prevail, where a strong sense of duty does not who believe, with that gentleman, that no injury impel to action. has been done to Matthew Lyon; who think that the eulogiums which have been bestowed upon him, have been a sufficient compensation for his sufferings; for eulogiums have been poured out upon him in great profusion, from the time he became an object of persecution. If he could be paid for his sufferings in this way, he might be overpaid; and it may be thought that, upon a reckoning, there may be found a balance against Mr. Lyon, and that it would be but fair that he should suffer a little more; but, trust me, that honorable gentleman, who seems to envy the happy estate of Mr. Lyon, would not suffer what he did for all the eulogiums which fame herself, with her hundred trumpets, could pour out upon him for the rest of his life.


But why, says the honorable gentleman, is this time, when our Treasury is empty, selected for voting money to Mr. Lyon-why was not this done in the time of Mr. Jefferson's Administration, when we had an overflowing Treasury-and we were at a loss for the means of disposing of the public money? In the first place, there was really not so much difficulty in disposing of the public money as seems to be imagined-emptying the Treasury was a very simple business then, as we have found it to be in latter days. In the next place, a full Treasury was no good reason for paying M. Lyon a thousand dollars then, any more than a bare Treasury is, for withholding it now. The merits of the case do not depend on the state of the Treasury; if they did, those merits 16th CoN. 2d Sess.-7


The present case, however, comes before us, in consideration. One of our citizens has brought a way that demands, and must receive a serious his claim before us in the usual form of petition. The Constitution, laws, and usages, by which this body is governed, make it imperative upon us to decide for or against the petitioner; and whatever vidual, his case involves consequences of the highgentlemen may think, as to the merits of the indiest importance, such as cannot be decided but with will insure a correct decision. great responsibility, a responsibility which I trust

Some who think the sedition act unconstitu

tional may be of opinion that it is not necessary, nor even consistent with the dictates of sound policy, after a lapse of twenty years, to relieve the sufferers under that law. With such it will remain to devise a better mode of restoring and reviving, as far as it can be done by Congress, the first article of the amendments to the Constitution, which was practically suspended by the sedition act, and which may be considered as null and void if the constitutionality of the act shall now receive the sanction of Congress.

If it were known with absolute certainty that a result, similar to that which attended the passing of the sedition act, would inevitably attend every similar attempt that part of our Constitution which respects the liberty of the press would remain secure from further violation. But, such a result is by no means certain-and we deceive our

Case of Matthew Lyon.


selves if we suppose that the rage and fury of party are no more to prevail in this country.

Should an attempt hereafter be made to revive the sedition law, Constitutional objections would have but little avail, as coming too late. It would be said the sedition act of ninety-eight was not repealed, although every effort was made to procure its repeal, expressly on Constitutional grounds. It was suffered to expire by its own limitation. Its constitutionality was sanctioned by two decisions of Congress; and those decisions corroborated by all the force which the judiciary could give them.

5th. That it was a part of a system of national defence, adopted at a crisis of extraordinary difficulty and danger.

Most of those arguments we have heard upon this floor, and all of them are contained in a very celebrated report of a committee of the House of Representatives, made on the 21st of February, 1799, in which report the committee condensed whatever they supposed could be urged in favor of the sedition act, and against its repeal. This re

If those who raised their voice from one extrem-ceived the sanction of the House of Representaity of the Union to the other against the constitu- tives, and was published in many journals of the tionality of this act, when it was passed, and when day as proof positive of the unerring wisdom of an attempt was made to repeal it, will not now, Congress. when they have the power, make an effort to repair the breach in the Constitution, it will be yielding the point, and acknowledging that all their clamor was raised to gain power, which they did gain; not to preserve the Constitution, which is left mutilated, without an effort at reparation. And this precedent, thus sanctioned by one party and acquiesced in by the other, will be considered as the legislative and judicial construction of the Constitution; and, by this process, the Constitution will practically be altered, and the liberty of the press be as completely within the control of Congress and the Judiciary of the United States, as if the first amendment to the Constitution had declared Congress shall have power to abridge the liberty of the press.

For my part, I have never doubted that the sedition act, so far as it respects the printing and publishing of libels, was a direct, open, and unequivocal breach of the Constitution. And, although I do not hold the United States responsible for all the losses sustained under that act, I would not willingly retain in our Treasury a single dollar of the money iniquitously acquired under it. The whole forms but a small sum, but if it were large, it should be returned to those from whom it was taken. I should not stop to inquire whether it was a thousand or a hundred thousand dollars.

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JANUARY, 1821.

Government, and, therefore, required under the eighth section of the first article of the Constitution.

3d. That it did not abridge the liberty of the press, inasmuch as it imposed no previous restraint upon publications-established no censorship or system of licensing.

4th. That it was necessary for carrying into effect the powers vested by the Constitution in the

It was to be hoped that the dangerous doctrine that the common law was the prop and support of the sedition act, would long since have been formally abandoned, but I see nothing like it. The honorable gentleman from Massachusetts, two years ago, when the subject was under discussion, did say, in justification of the sedition act, that every Government had an inherent right to punish offences which endanger its existence-which sentiment he now reiterates. Such rights, if not derived from the Constitution, must be derived from the broad principles of the common law-such principles as were assumed by the committee in their celebrated report. He seems to have abated nothing in his reverence for the common law; he considers the stigma cast upon it by gentlemen, particularly by gentlemen of the bar, as a species of profanation. The eulogium he has pronounced upon this common law is such as to leave no doubt as to his opinion that it ought to be ingrafted upon our system, if it does not already form the vital part of it. He informs us that the common law, I quote his words, is a system in which, under God, we live, and move, and have our being.

Was the sedition act passed in mitigation of the common law? If it was, it will conclusively follow that the press was more free during the existence of that act than it was before it passed, or has been since it expired. And that period, which has been called the reign of terror, should be recorded and remembered as the golden days of the publishers of pamphlets and newspapers.

In investigating a proposition so extraordinary as this, we are led to inquire into the motives of those by whose means the act passed. Why should the party in power, who had everything to fear from the press at this time of difficulty and danger, pertinaciously insist upon mitigating the rigor of the law upon the subject of libels, while those for whom all this kindness was meant as pertinaciously refused to receive the boon? Had the Legislatures of any of the States instructed their Senators and Representatives to obtain any such mitigation of the common law? Had the printers asked this as a favor? Had any meetings of the citizens presented memorials to Congress upon this subject? Had the cries of any convicted for libels, and sentenced to a fine of more than two thousand dollars, and imprisonment more than two

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If this act was in truth meant to extend the liberty of the press, these publishers of pamphlets and newspapers have been guilty of the vilest ingratitude towards their benefactors. For, so far from puffing them in their publications, or toasting them at their feasts, or giving them dinners for their patriotic exertions, they have poured out upon them innumerable streams of invective, which, with the aid of some other causes, not necessary to be detailed, have deprived them of the power of further mitigating the rigor of the common law.

But I believe the charge of ingratitude will not lie against these publishers of pamphlets and newspapers. They judged correctly, and some of them know by sad experience the exact nature of the good things intended for them by the dominant party in Congress.

If Congress by this act meant to mitigate the rigor of the common law, they most certainly missed their aim. But I hope it will not be thought uncharitable to suspect that nothing was further from their intention. If such was indeed their intention, it should have appeared in the bill; the evils to be remedied should have been pointed out, and such parts of the common law as were deemed too severe should have been expressly abrogated; otherwise the courts might have gone on to indict and punish offenders at common law, the sedition act notwithstanding, and in this way have entirely defeated the benevolent intentions of Congress.

It is impossible that it could be declaratory of the common law of the individual States, for the laws upon the subject of libels were not probably alike in any two of them. And Congress never stopped to inquire whether, in all the States, authors of libels upon the Government of the United States were punishable by fine and imprisonment, at common law, whether any had been punished for such offences to an extent beyond two thousand dollars fine and two years imprisonment; and, if so, whether the States might not have been left to mitigate their own common law.

If the State courts had power to punish at common law, or any other law, those guilty of the offences mentioned in the sedition act, that act did not take away such power, and the offenders might have been punished both in the State and Federal courts; for, in such a strange complexity of jurisdictions, the plea of autre fois acquit would not have been available on the second indictment, more especially as one prosecution would be for an offence against the State, the other for an offence against the United States. Such a divi


ded empire in matter of jurisdiction cannot be tolerated. If Congress have power to provide for the punishment of the offences mentioned in the sedition act, they must have the exclusive power, uncontrolled by the States. For, if the States have such control, they might mitigate the rigor of the sedition act, by providing that the punishment for offences mentioned in that act should be merely nominal, and thus render that act inoperative, except in the District of Columbia.

The United States and individual States can have no concurrent jurisdiction in the trial of criminal prosecutions. If the United States have jurisdiction in such cases, it must be exclusive jurisdiction. And Congress cannot declare what is the law of the States; the States must be left to declare for themselves.

If, therefore, the sedition act was declaratory of any common law, it must have been the common law of the United States. The United States, it will be allowed, could have had no common law from immemorial usage. If they had it at all, it must have been by adoption. But, where do we find, in the Constitution, the power to adopt the common law as a part of our criminal code? With such a power, the Constitution itself would never have been adopted. That such a power exists, is a doctrine the most extraordinary and the most dangerous that has ever been urged in Congress or in our courts of justice.


But Congress should have been very sure that they had this common law before they undertook to mitigate it.

Yet the committee who made the celebrated report I have already mentioned declare that "the act in question (sedition act) cannot be unconstitutional, because it makes nothing penal that was not penal before; gives no new powers to the courts, but is merely declaratory of the common 'law; libels against the Government are offences arising under the Constitution, (second section of 'the third article,) and consequently punishable at

How far can the sedition act be considered as declaratory of the common law?

If it is declaratory of the common law of Eng-common law by the courts of the United States." land, and not of this country, it is idle, as much so as if it was declaratory of the common law of France or China.

This report has been sanctioned by a vote of a majority of the House of Representatives, and by an acquiescence on the part of the then minority of more than twenty years. And yet, if the committee were right, the same common law still exists, and the Federal courts can now take cognizance of the offences mentioned in the sedition act, and try the offenders without allowing them the privilege of giving the truth in evidence, for Mr. Fox's bill can form no part of the common law, and punish them by fine and imprisonment at their discretion. Can we tolerate such doctrines? Will we now by our decision give currency and effect to such damnable heresies?

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The discussion upon this point alone would form a long argument. Whatever can be said upon it has been said by Mr. Madison and other members of the Virginia Legislature in their debates upon this subject, which have been published. For the present, I will satisfy myself with quoting the opinion of Judge Chase, in the case of the United States against Worral, 2 Dallas's rep. 398. In the term of April, 1798, three months before the passing of the sedition act, the defendant was tried and convicted at common law, in the circuit court for the Pennsylvania district, for an

Case of Matthew Lyon.


attempt to bribe Tench Coxe, the commissioner of the revenue. A motion was made in arrest of judgment, and it was alleged that the circuit court could not take cognizance of this offence, inasmuch as it was not a crime against any of the statute laws of the United States, and that the common law could give no jurisdiction to the court in this case.

ted States." 66

Chase, Justice: "This is an indictment for an of fence highly injurious to morals, and deserving the severest punishment; but, as it is an indictment at common law, I dismiss at once every thing that has been said about the Constitution and laws of the UniIn my opinion, the United States, as a Federal Government, have no common law; and, consequently, no indictment can be maintained in their courts for offences merely at the common law. If, indeed, the United States can be supposed for a moment to have a common law, it must, I presume, be that of England; and yet it is impossible to trace when or how the system was adopted or introduced."

The Judge supported this opinion by sound argument, but not such as to convince his brother Peters, who dissented.

Peters, Justice: "Whenever a Government has been established, I have always supposed that a power to preserve itself was a necessary and inseparable concomitant. But the existence of the Federal Government would be precarious; it could no longer be called an independent Government, if, for the punishment of offences of this nature, tending to obstruct and pervert the administration of its affairs, an appeal must be made to the State tribunals, or the offenders must escape with absolute impunity.


The power to punish misdemeanors is originally and strictly a common law power; of which I think the United States are constitutionally possessed. It might have been exercised by Congress as a legislative act; but it may also, in my opinion, be enforced in a course of judicial proceeding. Whenever an offence aims at the subversion of any federal institution, or at the corruption of its public officers, it is an offence against the well-being of the United States. From its very nature, it is cognizable under their authority, and consequently is within the jurisdiction of this court, by virtue of the eleventh section of the judicial act."

JANUARY, 1821.

broad and sweeping doctrine of the common law under which Worral was punished. Further comment, as to this point, is unnecessary.

It is said that the sedition act is no abridgment of the liberty of the press, inasmuch as it imposes no previous restraint upon publications-establishes no censorship, or system of licensing.

And can we admit that no law can abridge the liberty of the press, unless it subject publications to a system of licensing? Did the first amendment to the Constitution mean only to provide against such a system? A system which no administration in England has dared to enforce since the time of William III. A system that would no sooner be tolerated in this country than would the holy inquisition. A system against which it would be wholly useless to provide by the Constitution. For, whenever Congress shall be so utterly lost to every principle of liberty as to wish for such a system, be assured no Constitution will stand in their way. Some pretext will easily be found for prostrating the liberty of the press, by some new and more rigid sedition act. If all other pretexts should fail, that of introducing it as a part of the system of national defence will be deemed satisfactory.

These opinions, thus judicially expressed, must have been well known to the majority in Congress who passed the sedition act, and well known to the committee who drew up the celebrated report, and to the majority in the House of Representatives who sanctioned that report; and they have given all the validity which they possibly could to the

If a law to punish the authors of libels with a fine of two thousand dollars and an imprisonment of two years be not to abridge the liberty of the press, because it imposes no previous restraint upon publications, then, by a parity of reasoning, to punish with ten thousand dollars fine and ten years' imprisonment would be no abridgment of the liberty of the press. No, not even if the offence should be made capital, as was done under Augustus Cæsar.

The importance of a free press in preventing the abuses of Government, was well understood at the adoption of the Constitution and its amendments, and much more justly appreciated than now. And such was the extreme jealousy of the people upon this subject, that, although no power was given to Congress to interfere with the liberty of the press, and all powers not given were reserved, yet, fearing that Congress might, by implication, arrogate this power to themselves, they provided this prohibitory amendment, that Congress should not abridge the liberty of the press.

If this opinion was correct, then, indeed, Congress had nothing further to do in a criminal code, but to soften the rigor of the common law. I must call the attention of the Senate for a moment to If, in consequence of passing the sedition act, it the extraordinary termination of this case. The was more dangerous to investigate and expose the court being divided, the motion in arrest of judg-abuses of Government, than it was before the act ment failed; but, being so divided, it became a passed, then was the liberty of the press abridged. matter of doubt whether sentence could be pronounced upon the defendant. Those doubts were removed, I know not how, and the defendant sentenced to an imprisonment of three months and a fine of two hundred dollars; and thus was punished at common law, the opinion of Judge Chase to the contrary notwithstanding.

To subject the publisher of what might be deemed a libel, to punishment by indictment, when before he was only answerable in damages to the party injured; or to be tried in two courts when before he could be tried but in one; or to be tried in a court in which he could not be tried before, is to increase the hazard and danger of such publication. But to make him, for an alleged libel on the President and Senate of the United States indictable before judges appointed by the President and Senate; by a grand jury chosen by a marshal, and before a traverse jury selected by the same marshal, holding his office at the pleasure of the President; the prosecution to be urged by the zeal

Case of Matthew Lyon.

JANUARY, 1821.

of a district attorney, also holding his office at the will of the President; is so far a restraint upon the liberty of the press, that none but the most intrepid would dare to arraign the conduct of the President before the bar of the public.


friend; a man of the most honorable feelings; a man whose name is identified with science and literature; the constant study of whose life it has been to render himself useful to his fellow beings; I saw this man dragged before a criminal court, arraigned, tried, and punished, for publishing words which nothing but the violence and blind

But the practice under this act, whatever was intended by it, was made to produce the effect of previous restraint. A person charged with pub-ness of party rage could have construed into crime. lishing a libel against the provisions of this act, In the year '97 Mr. Cooper had asked of the Presiwould be bound under recognizance, himself in a dent, Mr. Adams, to be appointed an agent for thousand dollars, and two good sureties in a thous- American claims; the request was made through and more, to appear and answer; and also to keep Dr. Priestley directly to Mr. Adams, with a frankthe peace and be of good behavior. If, before the ness warranted on the part of the Doctor by the session of the court, he publishes that Congress intimacy which had long existed between them. have passed an unconstitutional act, this, by the As the application was thus personal, it was supvigilant prosecuting officer, would be deemed a posed to be confidential. It was unsuccessful, and new libel and a forfeiture of the former recogni- there it should have rested. But, by some means zance. The offending party would be bound over never explained, two years afterwards this appliagain, with sureties, to appear and answer, and cation was made public, and afforded the editor of also to keep the peace and be of good behavior- a paper in Reading, an opportunity of inserting a and suits immediately commenced on the first re- scurrilous paragraph against Mr. Cooper. Irritacognizance against the party and his sureties; and ted at being thus held up as a subject of ridicule, so on toties quoties, till the party would be silent. Mr. Cooper, in justification of his own conduct, This is not merely hypothesis, but matter of fact. published the address for which he was indicted. Two suits were depending against the editor of The words contained in the indictment, stripped the Aurora and his sureties, on recognizances of the inuendoes, are the following: thus forfeited, when Mr. Jefferson came into office; I need hardly add that, soon after this, they were discontinued, and thus was Mr. Duane saved from serious embarrassment, if not ruin, and his sureties from heavy losses. It was generally a part of the sentence on conviction, that the party should find surety for his good behavior for a limited time. Those who were intrepid enough to meet the consequences of such a process in their own property and persons, were not willing to expose their friends to vexatious lawsuits and ruinous losses. They would, therefore, be as much restrained as they would be under a law requiring a license for publication-nay, more so, for any one could publish without license, subjecting himself to the penalty of the law, in which case he would not be punished through his friends; a kind of punishment much more mortifying to a man of an ingenuous mind, than fine or imprisonment in his own person. What could-what did prevent a total prostration of the liberty of the press, under such a system?-Public opinion; a tribunal which I hope no party or administration in this country will ever be able to put at defiance; a tribunal which has pronounced on this law, and the makers

of it.

To ascertain how far this act was an abridgment of the liberty of the press, let us examine a little further into its practical operation. It is unnecessary to add any thing to what has already been said upon the trial of Matthew Lyon. The trial of Thomas Cooper, in 1800, in the Circuit Court of the United States, for the Pennsylvania District, will furnish a complete illustration of the views of those who made, and of those who administered this law.

"Nor do I see any impropriety in making this request of Mr. Adams: at that time he had just entered into office; he was hardly in the infancy of political mistake; even those who doubted of his capacity, thought well of his intentions. Nor were we yet saddled with the expense of a permanent navy, or threatened, under his auspices, with the existence of a standing army. Our credit was not yet reduced quite so low as to borrow money at eight per cent. in official expressions might justly have provoked a war. time of peace, while the unnecessary violence of Mr. Adams had not yet projected his embassies to Prussia, Russia, and the Sublime Porte; nor had he influence the decisions of a court of justice; a stretch yet interfered, as President of the United States, to of authority which the monarch of Great Britain would have shrunk from; an interference without precedent, against law, and against mercy! The melancholy case of Jonathan Robbins, a native citizen of America, forcibly impressed by the British, and delivered up, with the advice of Mr. Adams, to the mock trial of a British court martial, had not yet astonished the republican citizens of this free country; a case too little known, but which the people ought to be fully apprized of before the election, and they shall be."

I have the highest veneration for the exalted statesman and revolutionary patriot against whom this censure was levelled; but he was not infallible-much less so were those around him, by whose advice, at this particular period, he was too much influenced. But, however exalted his station, he had accepted it with a full knowledge that it was the disposition and practice, and a salutary one too, in this country, to examine and censure, with great freedom, the conduct of those in power. To be censured freely, and sometimes unjustly, is a I select this case because I was a witness of the tax which every one must pay who holds the whole trial: a trial which, at the time, filled my highest station in our Government. Laws which mind with horror and indignation. I saw a man should completely prevent this, would as completewhom it was my pride then, as it is now, to call myly prostrate the liberties of the people.

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