gress had no right to pass any law at all on the subject. It cannot be denied, that if we are to have a federal law of libel, that which permits the truth to be given in evidence is as good as any. It was not to the nature of the law that we objected, but to the having a federal law of libel at all; though indeed, sir, the permission to give the truth in evidence is but an idle mockery when we consider that the officer, whose duty it is to provide an impartial jury, is but the breath of the nostrils of the prosecutor. You ought to recollect that in all cases where the Government becomes a party, whether pro or con, you too often have an administration of politics, instead of an administration of law and justice. It is true, that the Constitution does declare that Congress shall make no law abridging the freedom of speech or of the press; but if Congress, or the courts below, can at once saddle us with the common law of England, there is no necessity for prohibiting the abridgement of the freedom of speech, or of the press. We know what the common law of England is an unlimited license to print, aud an almost equally unlimited license to punish. This restriction of the Constitution, therefore, is wholly nugatory, if the courts are permitted to entertain prosecutions for libels. Sir, that the present Chief Magistrate of the United States should permit an attorney of the United States to hold his office one second after having commenced a prosecution in a court of common law for libel, is what I will not believe, for he could not do it without libelling, by that act of omission, the fairest page of the history of his own life, to wit: his celebrated report made in the session of the Virginia Assembly, which commenced in December, 1799. But I am willing to have some better security than the disposition of any Executive, for what I conceive one of the highest, proudest attributes of American freemen. I know it may be said, as it once was, when the writ of habeas corpus was set at defiance, that forasmuch as the right is contained in the Constitution and supported by it, all legislative provision on that subject would be a mere work of supererogation; and yet, sir, who has heard of any recovery under the Constitution for the violation of the best, dearest, most invaluable right of a citizen? In fact, take away the writ of habeas corpus to-morrow, and I would not give a pinch of snuff for our Constitution, for without it, every man may be imprisoned at pleasure. Government might possibly demand a forced loan, with which, if the citizen did not comply, he might be carried to jail. There is no free government where this wonderful contrivance, this best hope of man, this sheet-anchor of freedom, the writ of habeas corpus, is not found. And yet we may be told that, as the freedom of the speech and press is secured by the Constitution, all legislative provision on the subject is not merely superfluity, but not respectful to the Constitution; and so our citizens are to go on to be prosecuted at common law, and when they get no remedy, they are told their rights are guarantied by the Constitution, but receive no satisfac H. OF R. tion. I therefore think it would be a very wise provision on our part, at this time, to prevent a recurrence of similar cases, guarding against the future by woeful experience, a school in which it is said a fool himself must learn, although he will learn in no other; and, as far as that epithet may be considered as applying to myself, I do most candidly confess that I have been compelled to learn from this school; for when the gentleman from South Carolina uttered that brilliant declamation in order to induce this House to reenact the sedition law, and hang it over their heads as a shield from prosecution. I really thought it a mere speech for the people, for I had no conception that a court of the United States would ever entertain a prosecution for libel at common law. I therefore submit to you the following resolution, premising, before I conclude, that my object will be, finding the Constitution inert on this subject, as it only contains an acknowledgment of the right to administer wholesome fine and imprisonment to those who shall hereafter undertake to carry on such prosecutions: Resolved, That a committee be appointed to inquire whether any and what prosecutions have been entertained by the courts of the United States for libels at common law, and to report such provisions as in their opinion may be necessary for securing the freedom of speech and of the press. Mr. DANA said perhaps that the resolution, as now expressed, did not go to the whole extent to which the gentleman intended. That prosecutions had been instituted for supposed slanders or for supposed seditious words, was unquestionable. For two, three, or four years past, prosecutions of this character had been pending in the circuit court of the United States, in the district of Connecticut. That some of the pros ecutions attempted to establish the imputation of crime against individuals, and in cases not comprehended under the provisions of the statute so much reprobated under the name of the sedition act, was unquestionable. Prior to the institution of these prosecutions, however, from an apprehension of what might be done by men who had professed much zeal for liberty, but not in practice given stronger instances of regard for it than those who professed less, in the State of Connecticut a bill was introduced into the Legislature for securing the freedom of the press. That bill consisted of one section, which was copied from the reprobated sedition act-that very section which provided that the truth should be given in evidence; and it was called an act for securing the freedom of the press. And before any prosecutions were instituted, when only a district judge presided in the court, that judge declared that he should consider the act of the State of Connecticut relative to giving the truth in evidence, as binding on the Federal court in that State. This was the opinion of one judge; there was some question how it would be ultimately decided before a full court. Such a law formed a more abundant protection against any persecution which might be directed against individuals under the form of a prosecution, than any pro fessions whatever. In the State of Connecticut, said Mr. D., there is one further security: that our jurors are designated by lot. The names of freeholders selected by certain officers in the towns are put into a box, and then selected by lot. There have been seven or eight prosecucutions commenced, I scarcely know for what, whether for libellous or seditious words, against clergymen and public preachers, for words uttered by them; and very considerable expenses have been incurred by them. But I cannot say that any man ever suffered any further than this; that they were at a very great expense in defending themselves. They had a great security in one respect that the talents of the bar were against these prosecutions; and there was such a peculiar talent of going backwards in the prosecution, that the suits generally went out of court with a nolle prosequi, from some error in the indictment, some defect in professional skill, or some error in clerkship. The only case in which there seemed to be any possibility of conviction, was one in which a question was made as to the power of the court to take cognizance of the subject. The question was on the prosecution of a printer there, for publishing what had appeared with perfect safety in another State. The judges declared themselves divided in opinion on the question of jurisdiction. That diversity of opinion was certified, and the question expected to be brought before the Supreme Court last February. On applying to the judge, I found that the clerk of the circuit court had not forwarded the certificate, and of course the case did not come up here as expected. I suppose that the whole thing will die without any noise. Another reason why the persons in Connecticut were not disposed to make very much noise about it while prosecutions were depending, was, that the State was not a large one; that it could not be supposed to be in great favor at the palace. It was supposed, sir, (whether correctly or not I will not undertake to say, but I rather incline to the opinion that it was an erroneous supposition) considering the manner in which appointments were made in that State, and under the belief that it was through the means of certain influential characters, that the District Attorney did institute those prosecutions with the approbation of the Administration of the United States. This was an opinion in the State; and, supposing the influence of the Executive to be exerted, they felt that it would be in vain to make much clamor, and rather chose to contend alone against it. As the prosecutions are now at an end, I think it very desirable that the subject should be investigated. As respects the District Attorney's not being removed, I do not think that he is much to be censured in this case. I am not certain that he acted altogether on his own opinion; I rather suppose that he was impelled by the influence of certain persons who are generally supposed to have the chief weight in appointments under the United States in that State, and who are therefore by some called the council of appointment; and I suppose that the District MAY, 1809. Attorney could scarcely oppose the will and pleasure of these gentlemen. I very much question, therefore, whether any peculiar degree of fault is to be attributed to him, except his putting the United States to so much expense without ever bringing the question to a decision. This, sir, is about the general state of the business. As it cannot be said that the court has in fact entertained the prosecutions, and some of them have been dismissed, the substitution of the word instituted instead of entertained, may accomplish the gentleman's wishes. Mr. RANDOLPH consented to the amendment. Mr. BACON said he was, for one, by no means displeased with the introduction of the motion of the gentleman from Virginia. He took occasion to remark that it was with some pain that he perceived any remaining particles of this political heresy in any part of our country. He was happy that there were so few remnants. He had known of no instances, except those mentioned by the gentleman from Connecticut. He could not account for their appearance in that State only; whether it was because this doctrine of common law jurisdiction in the courts of the United States was there planted in a more congenial soil, he could not say. Certain it was, it had not pervaded any other State in the Union. I have understood, said Mr. B., that it is not through the peculiar instrumentality of the District Attorney that these suits were commenced. As I understand it, the District Attorney has no power to entertain suits; that he has no power but to reduce to form indictments of the grand jury. It is certainly the case in the State in which I am a Representative, and, I presume, in Connecticut also. It is a mere clerical office to reduce to form presentments of the grand jury. With respect to the courts, I understand that the question was first brought before the district judge of Connecticut. Whatsoever was his opinion, he said he considered the law as settled by his betters, by the judges of the Supreme Court; and he did not consider it incumbent on him to reverse that opinion until it should be done by a court of equal authority, leaving the question, however, open to appeal by the parties. I will only observe that I am very happy this motion is brought forward, and hope that, as we succeeded in getting rid of the sedition law, we shall get rid of all the political heresies of former times, and shall succeed in rooting out this obnoxious weed from the territory of Connecticut. Mr. RANDOLPH observed, that he had understood, long ago, that prosecutions of this sort had been entertained in the federal courts, under the administration of Mr. Adams; and he had been one of those who had supposed that when that administration had been turned out of office, and a new one inducted, there would be an end, substantially, of these prosecutions at common law, as much as of the sedition law, although on the vote, whether the sedition law should be engrossed for a third reading on its proposed re-enactment, there was only a majority of three or four in the negative. During the prosecution of Mr. MAY, 1809. Doctrine of Libels. H. OF R. these opinions anterior or posterior to his induction into office. If he was one of the federalists of the old school, if he was an Essex man, and held that the common law was supreme, I cannot blame him for executing his duty. But if he was one of those who held up his hands against that doctrine, and protested against the men who supported it, then, I say, that he is blameable-for I will not acknowledge the right of any man to make a commutation of principles and the good of this country for his office; or that he is bound by the instructions of his superior to do that which he conceives illegal, unconstitutional, and unjust. As an honest man, he would give up his office rather than his principle. And, I trust, sir, that we live in a state of society in which a man acting in that manner will always meet with con Chase before the Senate, said Mr. R., I had a pa- the Attorney General be blame-worthy or not, per put into my hands by a member of that hon-will depend much upon the fact whether he held orable House, stating that a Judge of the Supreme Court of the United States, and one who, I believe, is considered an ornament to his profession, even with all his political heresies thick upon him, had entertained a prosecution for a libel at common law in the district of Vermont, and stated that such was the law as settled by the Supreme Court of the United States. I could not tell for what purpose this paper was put into my hands, unless under the idea that it would induce me to bring forward a motion for the impeachment of the gentleman in question. It was no business of mine that this was done by one of the persons sworn to judge the case of impeachment, if instituted-every man is the keeper of his own conscience. Neither was it my desire to divert the public mind from the steady view of justice in relation to the gentleman then under prosecu-fidence and support. tion by bringing any other before the House; nor Mr. LIVERMORE said that, for his own part, he did I know, nor do I now know that the opinion had no idea that a District Attorney was the mere that the common law is the law of the United officer of a grand jury, or in any way dependent States, is an unpardonable offence; because you on the grand jury. He was an officer as indemay have heard gentlemen of the first legal eru- pendent of the grand jury as the grand jury were dition on this floor, support the doctrine. I allude of him. He is, said Mr. L., an officer appointed particularly to a late member from the State of by the United States to prosecute all offences Delaware (Mr. Bayard.) But my object in mak- against the United States. If the common law ing this motion was to go back to the institution of England be admitted in the courts of the Uniof the Government itself, and bring into view ted States, if it be taken as a rule of proceeding, every case in which prosecutions at common law I conceive it should be taken in all its parts. The for libel had been entertained by the courts of the District Attorney may not only prosecute by inUnited States, by way of showing the necessity dictment but by presentment. Although a pros of providing some legal provision on this subject. ecution be generally instituted by indictment, it The gentleman from Massachusetts, with his does not follow that it must be so, for it may be usual accuracy, has declared that the District At- by information lodged by the District Attorney in torney is but the instrument of the grand jury. which the grand jury has no kind of agency. If But, sir, the grand jury is selected by the Marshal, the prosecution be by indictment, the authority of and the Marshal and the District Attorney are the District Attorney must come in aid of it, or appointed-how? Removable—how? no prosecution can proceed; it can have no effect perfectly convinced, sir, that, in all cases of libel, until it receive the sanction of the District Attorin all cases where, too often, politics and not lawney, who has equal authority to put an end to it or justice preside, it is idle to expect impartiality of trial. If the Government or judge take part for or against a prosecution, it is perfectly idle to expect justice. To guard against evil, I hold, sir, in my hand a resolution, which, if the House agree to that which is under consideration, I shall lay on the table: I am "Resolved, That provision ought to be made by law to secure the right of an impartial jury, in all cases, civil and criminal, maintained in the courts of the United States." at any instant, without accounting for it. In short, he has the whole control in suits in behalf of the United States. He is, therefore, an Executive officer, made use of to prosecute, on behalf of the United States, or to persecute, if he chooses to submit to superior influence. Far be it from me, sir, to say that this is the case; but, I conceive that there is a possibility of making provision by law to prevent persecution in this way. It is high time some law was provided to punish those who make such egregious abuses of But, before I sit down, I will make one observa- power; it is high time there was some law to tion on what has fallen from the gentleman from punish those who prostrate the laws of the United Connecticut. He says he feels no disposition to States to such purposes. I shall, therefore, vote censure the District Attorney. I am happy to say for the appointment of this committee; and I that I know not the District Attorney, his name, hope they will be able to point out some mode to or person. I am equally ignorant of the name or prevent such abuses in future. As to the sedition person of the district judge; nor do I know that law, that has passed away; I do not know that it I am acquainted with the circuit judge. On this is necessary for "an Essex man," or any other, to subject, I am happy to be ignorant, because I am defend it. It had one excellent feature in it; that sure that I am in a better state to act impartially one relative to libels. It is no great injury to any than if I were acquainted with his person or pol- man to be prosecuted for a libel if he be admitted itics; for, whatever may be said of an unbiassed to give the truth in evidence on his defence. mind, human nature will have its way. Whether | When it was the practice, as it was ten or twelve years ago, to tell infamous lies without being subject to prosecution, it was necessary that some remedy should be applied. If the citizen were allowed to give the truth in evidence, he could suffer no injury from an impartial jury of his country. Mr. DANA said, that if it was intended that this resolution should be adopted with the peculiar view of liberating the soil of Connecticut from its crop of political heresy, he should be averse to having this favor forced upon them. I feel no particular obligation, said Mr. D., to the gentleman from Massachusetts, (Mr. BACON,) or any other, who wishes to reform the heresies of the people of Connecticut, with a view that they should be adopted into his political church. As to the prosecutions in that State, however, it might be well to inquire into them, and to put a stop to them; or, if we do not put a stop to them, to assure to the people the liberty of giving the truth in evidence. It would be well now, sir; but it would have been better while the prosecutions were pending, and before they were all defeated. Three years have elapsed since this subject was mentioned in the House by myself, and a call made for an account of the expenses which had been incurred in certain prosecutions at common law, and they were laid on the table and printed, I think, two sessions before the last. I made a motion at the time in respect to the subject; but, from the pressure of business, it was not ultimately acted on. I was not very solicit ous to press it; but chose to give public information on the subject, that the experiment might pass before the public whether, when this information was made public, the Government would undertake to arrest the prosecution. I am not certain that it was not known prior to that time. Certain I am that I mentioned it to one of the heads of departments at that session. The prosecutions were not arrested; and really, sir, there must have been something peculiarly bad in that soil, which wanted the culture of such a District Attorney as was placed at the head of it. As to the District Attorney, I acquit him of any peculiar malignity in this business; I had rather supposed that he was impelled by such influence as appointed him; that the persons concerned in appointing him, or others connected with them, were desirous of instituting these prosecutions, and that he had not the firmness to resist them. As to the sedition law, for my constituents, I ask but one privilege; that, when they are prosecuted for libels, they may have the liberty to prove the truth of what they publish; and, if they do not prove the truth, let them suffer. I ask nothing further for them. I should wrong their opinion of the respect which is due to truth, if I asked for them any greater liberty than that of proving the truth of what they utter. As to their being peculiarly attached to what is called common law, it is not the common law of the British empire, but that portion of unwritten law which they have found at once adapted to convenience, conformable to the principles of moral rectitude, favorable to the support of Government, and of MAY, 1809. the principles of civil liberty. So much they choose to adopt, whether it come from beyond the Atlantic, or out of our own soil, they find it at once conducive to their happiness, conducive to moral order, to the good of society, and to the perpetuity of Government; this is the common law, which chastises guilt and protects innocence, and to this they are attached. Mr. BACON asked whether any prosecutions had been commenced in the State of Connecticut in any other manner than by indictment? Mr. DANA.-Certainly not. Mr. GOLD made some observations upon the duty of an Attorney General. He said that this officer looked to the jury for facts; but, if law combined with fact, they were bound to look to him for their guide. In offences against the public peace, they wanted no guide but their own eyes and ears; indictments for such offences flowed from the grand jury alone, from their own conviction; but, when otherwise, that officer was immediately referred to. Having had occasion to observe something in relation to the course which had been pursued in cases of criminal prosecutions, Mr. G. said, he had thought proper to state thus much. He noticed another observation made by a gentleman from Massachusetts, (Mr. BACON,) in relation to the prosecutions having been produced from the peculiar soil of Connecticut. In repelling this remark, if, indeed, there were anything to be repelled in it, it was proper to observe that, when a question of justice, especially of that kind to be obtained by prosecution, was brought before the House, nothing could be more unfortunate than for a moment to connect it with party. Justice, Mr. G. said, had a nobler view; it defied such weapons. He conceived the public justice of the country to have been wounded, and that the wound was aggravated when it was carried on the narrowed theatre of politics. He thought it peculiarly unfortunate, not only as respected the reputation of the Administration, but as respected the expense, that of six or eight prosecutions, the whole should have fallen to the ground, without one of them having been put to an issue. After all, if the persons implicated were guilty, a rod had been held over them, which had never fallen; and, if innocent, a great expense had been incurred, and it was right, at least, that they should have an opportunity, before a jury of their country, to be compensated. It seemed, he said, that the persons prosecuted had been defended, and he had no doubt, well defended. He believed that justice demanded that their expenses, in consequence of the prosecutions, should be refunded to them. Mr. TROUP said that he was so sensibly alive to whatever might directly or indirectly affect the reputation of the late President of the United States, that he could not forbear expressing a hope that, whatever might be done, directly or indirectly, affecting his character, might be so done that the truth, and all the truth, in relation to it, might be in possession of the House. If he had understood the gentleman from Connecticut MAY, 1809. HISTORY OF CONGRESS. Doctrine of Libels. correctly, he had declared himself ignorant what was the nature of the prosecutions directed to be instituted. He conceived the inquiry to be important, not only as to what was the nature of the prosecutions, but, as to the fact whether the prosecutions were directed to be instituted, and by whom they were so directed. Mr. DANA observed, in explanation, that it was supposed, in the State of Connecticut, that the prosecutions were produced by the influence of the administration of the United States; that he himself doubted the correctness of that opinion. The fact had been known, two sessions ago, for he had then mentioned it to an officer of the Government, who, when it was mentioned, appeared at that time to have been entirely ignorant of it. 8 H. OF R jurisdiction of the State courts. He, therefore had no kind of reference to actions of slander, in the resolution, and he assured his friend from Georgia (Mr. TROUP) that he should feel a pleasure, not much inferior to his, at seeing the reputation of the party involved, whomsoever that States, the District Attorney, or the District party might be, the late President of the United Judge, rescued from any imputation which, what had fallen from the gentleman from Connecticut (Mr. DANA) at the last session, might have a tendency to cast upon it. Mr. R. here most solemnly avowed, that the mention made of this subject by the gentleman from Connecticut, at the last session, was the first time that he ever had what he deemed creditable evidence of the fact. He newspapers; but, on inquiring if they were true, had, indeed, seen intimations of the kind in the he had been told that they were Federal lies; and, accordingly, he had set them down as Federal lies; he meant of the editors of the Federal newspapers; for, indeed, it was known that newspapers were not confined to the truth, and that those people in the United States who could afford to take but one paper, or whose prejudice was so strong that they would read but one side of the question, stood but little chance of knowing the real state of affairs. Mr. TROUP said he was happy at the explanation of the gentleman from Connecticut; and he, as he was sure the House did also, felt indebted to him for the liberality which he had displayed. It was important to understand on what ground the prosecutions had been commenced; if upon the common law doctrine of libel, and the prosecutions were criminal, the defendant was precluded from giving the truth in evidence; but if they were actions for libellous or slanderous words spoken, even by the common law doctrine of England, the defendants were permitted to give the truth of the words so spoken in evidence. he had moved an inquiry into the conduct of Mr. R. stated the circumstances under which It therefore resulted as material to the inquiry, to Samuel Chase, as being similar to those under know not only what was the nature of the prose- which he moved the present inquiry. When the cutions, but by what authority they had been in-fact had been stated by the gentleman from Constituted. On that account, he moved to amend necticut at the last session, he said, he had been the motion, so as to inquire not only by what au- astonished that it had created so little sensation thority the actions had been instituted, but who in the House or in the nation. If he, a Reprewere the institutors of these actions. of seeing various publications and having access sentative of the nation, who had an opportunity to various information which others had not, was until then ignorant of the fact, was it not possible, nay, more than probable, that the great mass of the American people were, at the moment he If we are to preserve our Republic pure, said Mr. was speaking, in perfect ignorance of the fact? R., we must often recur to fundamental principles, look frequently over our file of precedents, and expunge those which are not salutary, and those especially which we find to be unconstitutional; especially, we should draw the pen over Mr. RANDOLPH said he had no objection to the amendment. His object was to come at the truth, to do justice, and secure the liberty of the citizen; and, if that was done, it was perfectly indifferent to him by whom it was done, or who had the credit of it, whose reputation was tarnished, or whose brightened by it. One thing he knew, that he would never attack the reputation of any man by any indirect mode; and, he conceived, it would become the duty of the Committee to sift into the particulars. With respect to actions for slander commenced in the Federal courts of the United States, in which the defend-all ant was permitted to put in the dangerous plea of justification, he never heard of any, nor did he believe there was an instance, in which they had been instituted. He spoke, in the resolution before the House, of prosecutions at common law for libel. On what species of plea could the Federal court get jurisdiction of a case of that nature between the two parties? As he understood the Constitution, Mr. R. said, the circuit court had no such jurisdiction. They might as well attempt to punish murder, because the man killed, lived in one State, and the murderer in a different State. Even the gentleman from Delaware (Mr. BAYARD) had never pushed his argument to the length that Federal courts had cognizance of murder or felony committed within the made in hard and unconstitutional times. With regard to one observation made by the gentleman from Connecticut, that he wishes his constituents to have no other law of libel or of justice than that which they find under the sedition act, viz: the privilege of giving the truth in evidence, I will remark that, however proper this principle might be in a single integral government, it varies when we apply it to a Federal Government, exercising only certain specified powers, and having an aspect principally to foreign affairs. To what purpose does the Constitution declare that Congress shall make no law abridging the freedom of the press, if Congress can make laws, such as the sedition law, or, if the courts can entertain prosecutions at common law for libels? That there should be power on this |