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the enemy. These presses, instead of being the these are evils against which the Government can guides to the true character of political men, have protect itself. A well-regulated judiciary, with become the sordid channels of intrigue, in which the right of trial by a jury, is the great palladium every scribbler can puff his patron, whether he has of civil liberty ; it will hover round the temple of merit or not, provided he has secured the affec-justice after it shall have forsaken these walls. tions of the editor. This is so truly the character of many of your newspapers, that little or no credit is given to any thing they detail, even if it be the SPEECH OF MR. TALBOT, OF KENTUCKY truth. Yet these are the presses which gentlemen consider to be the ark of your political safety, and
IN THE SENATE, JANUARY 17, 1821. the shield to your holy religion.
We are told that the voice of the people of thisOn the report of the Committee on the petition of Matnation had passed judgment upon this law, and
thew Lyon. now demanded at your hands that you declare it Mr. Talbot, of Kentucky, addressed the Senate unconstitutional. We are also cautioned to beware as follows: how we oppose public opinion. Mr. S. said, no Mr. Chairman, it is with some hesitation I rise gentleman had more respect for public opinion to address this honorable body, on the present imthan he had, or would yield with more obedience portant subject of their deliberations; a subject to its mandate, whenever it was his duty, or be which involves in its decision questions of the came respectful for him to do so; but, in forming highest moment; of Constitutional principles and an opinion upon a Constitutional question, the constructions ; of the character and merits of a Constitution itself should be his guide, not public former, as well as of the present, administration opinion. The people whom he had the honor to of our Government, as well as considerations of represent were a magnanimous people, and inten- justice, as applied to the claim of the petitioner, ded him to form his own opinion upon Constitu- who has appealed to the justice and liberality of his tional law, or they ought not, as they would not, country for redress. I have waited long, during have sent him here.
the protracted discussion of these various topics, Gentlemen speak of party, and have denounced with much anxiety and some impatience, to hear those who oppose the resolutions as apostates from from some gentleman qualified for such a task, a the republican cause. Mr. S. observed, that apos- development of the causes, either in the peculiar tacy could not be ascribed to himself, for he had condition of the country; the sentiments, feelenlisted under no party banner. Nor was he ings, or opinions of the people; the dangers to emulous to belong to any party, if he must sacrifice which the Government may have been exposed, his honest opinion as the price of such a privilege. either from external or domestic enemies ; or the
The judges are said to be tyrants, and, if not actual stạte of parties at this important and alarmcontrolled, may demolish your Government. Your ing crisis, we are to ascribe this extraordinary act judges may become ambitions of power, and aspire of national legislation. I have waited for this inafter dominion, but it is not in the nature of their formation with more anxiety, from the consideraavocations that they should obtain that sort of in- tion that we are fortunately honored with the presfluence in the Government, which could render ence of more than one gentleman, who, as memthem dangerous to its peace. There is not an in-bers of the Senate, are now in their seats on this stance recorded in history of the common law floor, who were also members of the National judges having subverted the liberties of a nation. Councils at the enaction of the sedition law; but Whenever the civil liberties of this nation are de- a development of the policy, scope, and object, of stroyed, it must be by one of the other departments; the extraordinary act, the cause of so much terror and, if the opinion of Congress is to be the standard and alarm, and the instrument of so much oppresof right, instead of the Constitution of your coun-sion and injustice, was most emphatically to have try, it may unfortunately fall there. If Congress been expected from an honorable gentleman from is not bound by the Constitution, it is under the Massachusetts, (Mr. Otis) who, if my recolleccontrol of no law but the law of opinion, which is tion of the history of the times does not deceive the law of tyrants. Your judges may err, and me, not only gave his voice in favor of the passage, very often do; sometimes from a want of capacity, but, as a warm and able advocate, most signally sometimes from corruption, and sometimes from contributed to the success of this obnoxious measinterest ; but they are circumscribed by law, and ure. But my expectations have been in vain. A subject to its penalties. If it is too difficult to silence the most profound, a discretion the most reach them by impeachment, change your Consti- circumspect and refined, has kept the friends and tution. It would be better for the nation that the advocates of this measure mute. In vain has this judges should be subject to the control of one sedition act been denounced by my honorable friend third of the Senate, upon a case of impeachment, from Virginia, (Mr. BARBOUR,) as an usurpation than that Congress should assume the power of on the Constitution; as oppressive, tyrannical, and revising their decisions. If you can organize unjust. This denunciation, Mr. Chairman, I take yourselves into a high court of appeal, upon no the liberty to repeat—declaring it as my most sinother authority than that justice cannot be done cere conviction, that the sedition act is not only, without your interference, there can be no limits in its principle and enactions, without warrant or to your usurpation. The pure ermine may be authority to be deduced from the Constitution of stained ; your judges may become corrupt; but the United States, amongst the defined and enu
16th Con. 2d Sess.--14
merated powers there contained; nor is such au- the limits of the punishment to be inflicted on the thority to be deduced by any fair rule of argument culprit? The answer is obvious: this crime beor construction, as the execution of a power con- ing committed against the nation, and not against ferred on the Congress of the United States, as a State, the authority of the nation is alone consubsidiary to the powers expressly delegated; and cerned in, and competent to, its punishment; and I challenge honorable gentlemen who are the ad- besides, not only the peace and happiness, but the vocates or apologists for this measure, to point out, very existence of the nation essentially depend on to put their finger on the clause or section of the the possession and exercise of such a power. Why Constitution, which confers such power, or from has the Constitution of the United States, after which it can be rationally, or even plausibly, in- delegating, in the most explicit and ample terms, ferred. If this be true, and I have a right to as- to Congress, power over the currency and coins of sume it, no honorable gentleman opposed to the the United States, in the very next and succeedresolution on your table, though repeatedly called ing paragraph, conferred the additional, and thereon to do so, having come forward to controvert it, fore not merely an incidental power, of providing need I even advert to that article in the amend- for the punishment of those who should be guilty ments to the Federal Constitution, emphatically of counterfeiting such currency or coin? Can we called the Bill of Rights, (amendments, dictat- deem so irreverently of the wisdom of the framers ed by the cautious and jealous spirit of liberty, of this glorious instrument, as for a moment to the watchful guardian of the people's rights,) indulge the supposition, that they would have taken which contains an inhibition, positive and express, the pains, by an express provision, to delegate the to the Congress of the United States, to enact power to provide for the punishment of the crime any law concerning an establishment of religion, alluded to, if they had contemplated, by any other or abridging the freedom of the press."
provision in the Constitution, either to confer a The general frame and scope, as well as the general power to provide for the punishment of subject and intent, of our national compact, the crimes, the perpetration of which might be deemed Constitution of the United States, affords no argu- to affect the prosperity of the nation, or the quiet ment, or even countenance, for suc a course of and tranquil operation of the General Governlegislation ; the whole frame and organization of ment? Yet such is the supposition on which arthe Federal Constitution, in the power delegated guments must be based which are employed to to the National Government, embracing only ob- vindicate the power of Congress to punish politijects of national concern, connected with the na- cal libels by the enaction of sedition laws, to be tional defence, and such as are placed beyond the enforced by the powers and intervention of a scope and limits of the powers belonging to the Federal judiciary. But when it must be conindividual States, to which was intended to be ceded by the advocates of this sedition act, that left the exercise of all the sovereign powers con- there is no express power to be found in the Connected with internal government and municipal stitution for its enaction ; that, if it can be claimed regulation. In illustration of this view, it is to at all, it must be supported on the ground that it be remarked, that the Constitution of the United is amongst the subsidiary powers necessary and States has, in no part of that instrument, vested proper for the execution of expressly delegated Congress with the power to enact a criminal code powers, when it is answered that no such exfor the restraint and punishment of crimes within pressly delegated power has or can be shown to the limits of the respective States. The absurdity, which this power of enchaining the freedom of as well as dangerous consequences, of conferring the press, and closing up the avenues to a full and such power, is obvious, and must obtrude itself on free investigation of the characters and measures the mind of every man. That this power belongs of public men, who are the delegates and servants to the sovereignty of the individual States, will of the people, as necessary and proper. When it not be controverted. A power in the National is further answered, that the amendment to the Government, to be exercised over the same subject, Constitution, inhibiting all abridgment of the freeoperating on each and every citizen in the United dom of the press; an amendment dictated by the States, to be exercised simultaneously by each of jealous and watchful caution of the Legislatures these sovereign powers, by prosecutions and con- of the States, by which it was recommended; a victions in their respective courts, would produce jealousy springing from a deep sense of the value a conflict of jurisdictions and of powers, which of the liberties intended to be secured and justified must hasten, by rapid strides, to a dissolution of by the histories of all Governments and nations of that Government, which could not long endure. the earth. That this amendment ought to put to
But no warrant is to be found in the Constitu- silence all arguments derived from vague and gention of the United States for a construction which eral speculations in relation to the power with would lead to consequences so disastrous. The which Governments ought to be endowed for the power in Congress to enact a criminal code for preservation of those called on by the people to the government of the citizens of the several administer it, from the licentious tongues or pens States is repelled by every view which can be of malicious libellers or calumniators. taken of its principles and provisions. Why did But it is not on the silence of the Constitution, the framers of this sacred instrument, this charter or the absence of delegated power to form that inof our rights and liberties, employ an entire sec- strument; nor only on the amendment to that tion of the Constitution in defining treason against Constitution, so emphatic in its terms, that the the United States, and prescribing what should be opponents to the sedition law need rest their oppoSupplemental Speeches.
sition. But, in illustration of the wisdom of its dency of public measures, shall be restrained and framers, understood and interpreted as we ex- fettered by restrictions on the press; and that such pound it, the opinion which I entertain, and avow investigations will never be free or useful while with pride and pleasure, is, that this, and all other restrained by the perpetual terrors and actual dansedition or libel laws, having for their design and gers of criminal prosecutions. And I put to my purposes the control of free and full investigation honorable friends from Georgia and South Caroof the character and opinions of public men and lina, to say what legislator, jurist, or ingenious public measures, without limit and without re- casuist, has yet been able to draw a precise line of straint, I mean from criminal prosecution, are hos demarcation between the liberty and licentiousness tile, in their very essence and principle, to liberty, of the press, in case of political libels? In cases and to the free and republican institutions under where party meets party in hot contention on which we live, and which are so justly our pride questions of political opinions and public measand boast; for the private or individual injury, re-ures ? What usurping or tyrant legislator, like sulting from the publication of libels or malicious the tyrant Dane, has dared to say to the political slanders, the incumbent of office, the representa- writer, investigating the opinions and motives as tive of the people in the Congress of the United well as actions of the ruler of the country-thus States, even their Chief Magistrate, has, by the far shalt thou go, and no farther, and here shall municipal regulations, the laws of every State, the proud wave of popular discontent be stayed ? his appropriate remedy, to demand and receive, in While therefore, Mr. Chairman, I reciprocate in common with the lowest and meanest citizen, an the warmest terms the sentiments of indignation equivalent for the injury he has sustained. And which my honorable friend from Georgia so forwhy is he who has been selected from amongst cibly and eloquently expressed against the guilt, his fellow-citizens, to exercise, for their benefit as well as infamy, of those concerned either in and advantage, a little brief authority, to be hedged the fabrication or propagation of malicious slanaround with the ramparts of sovereign power, to ders-a vice, the prevalence of which is so much be armed with the artillery of a criminal code, for to be deplored, but a vice too firmly ingrafted in the protection of his person or reputation, which our frail imperfect natures by the indulgence of is denied to every other citizen?
which the peace and happiness of society has My honorable friend from Georgia has dis- been so often disturbed and blasted; yet I for one claimed, in pathetic strains, and my honorable must be permitted to indulge the consolatory hope, friend, who sits before me, (Mr. Smith,) has in- if not the fond belief, that there is in truth, integdulged in terms and anecdotes, humorous and rity, and conscious worth, a charm sufficient of sportive, against the slander and calumny, which itself to insure the triumph of virtue; and that, flow from the licentiousness of the press. Have armed with these, the utmost rage of malice may my honorable friends omitted to remark what is be defied, and that, although the excellence of of such familiar observation in all the walks of such a character may, for a time, be sullied, yet, human life, how few, if any, of the benefits of like the luminary in the heavens, which shines Heaven are granted us by the all-wise Disposer of with light and glory on our sphere, which suffers Events without alloy? How liable are our great- a transient obscuration from the passing clouds, it est blessings to abuse? And that the question in is only permitted, that it may, when the transient the case we are now discussing is, whether the vapor is passed, give fresh lustre to his beams. liberty of the press is not one of those political But, Mr. Chairman, having detained you much blessings inestimable in itself, the abuse of which longer than I intended on that branch of the discusis inseparable from its advantageous use? If gen- sion from which our opponents have retreated, and tlemen still doubt on this question, let me refer my as the honorable gentleman from Massachusetts has honorable friends to the history of the late trials declined the task for which the conspicuous part and prosecutions for libels in Éngland, as well as he took at the period of the enaction of this too in Ireland, for the last hundred years. What heart famous law, so well qualified him, permit me to endowed with the common feelings of sympathy, fill the chasm left by his omission in the history of not steeled against every soft emotion of our na- the Administration at this eventful period-not ture, can forbear to feel for them ? Humanity from observation of the passing scene, or entirely herself must weep over the helpless fate of philos- from the documents of authentic history of the ophers, statesmen, and patriots, the victims to the times; but in part from the contemporaneous imlove of liberty and their country's rights, who pressions and opinions ratified and sanctioned by have been offered up on the altar of their country, the public voice. to the corruption, tyranny, and usurpations of From these sources, the best which I have been power; and all under the specious pretence of enabled to procure, I feel myself authorized to inpunishing the licentiousness of the press; yet fer that this sedition act was one of the last links England boasts (how vain the boast!) that she in the chain of measures adopted and pursued by enjoys the liberty of the press.
that party in whose hands the administration of Believe me, Mr. Chairman, that neither the lib- the Government was then reposed, measures of a erties of the people, nor the inestimable institu- tone and character to arouse, and which had tions of our free republican Government, can be aroused strong alarms in the bosoms of the Ameripreserved in their purity, while the freedom of un- can people, for those liberties on which repeated restrained investigation of the character, conduct, and successive invasions had been made. These principles, and motives of public men, or the ten-1 alarms, first producing expressions of discontent, Supplemental Speeches.
had gradually increased and swelled into loud and pation of Congress, in the enaction of laws, not clamorous expressions of indignation, which were warranted by the Constitution ; and that, when echoed from one extremity of the Union to the this department has interposed the sanction in the other. It was to silence the voice of just censure, exposition or execution of a law, that no other of awakened and indignant discontent-to stifle department of our Government have a right to the public voice—to throw around them a ram- interfere. And that, as the law in question, dupart of defence against the assault of popular in- ring its existence, was enforced by the judicial dignation. That it was the last desperate recourse power and is now expired, that Congress have no of a falling party tottering on the brink of the pre- Constitutional right to interfere
. These doctrines cipice, over which this measure, intended for their are beautiful in theory, and the arguments deduced preservation, as full of rashness as of danger, only therefrom are plausible and ingenious. They are served the sooner to precipitate them—and to this such as caughi my youthful mind as sterling pocause are we to ascribe the revolution of power litical orthodoxy, but which recent events in the from the hands of those who, by this measure, history of our country have taught me to receive hoped to have secured the means of its perpetua- with caution and distrust; as subject to many tion.
limitations; and as entirely inapplicable to the A new and extraordinary feature in this law questions we are now called upon to decide. was the short period of its duration. Other por- But, before I proceed to their refutation, permit tions of your criminal code, Mr. Chairman, enact-me, Mr. Chairman to premise that there is no ed for the prevention or punishment of offences, honorable gentleman on this floor who can enterare, as it seems they should always be, calculated tain a higher reverence for the judicial character for all times and all circumstances.
than myself, believing as I do, that there is no But this is one among the few which have met station in the social body requiring for the dismy observation, which was for the short and lim- charge of its arduous duties more exalted qualiited duration of two years and a half, and by its ties of mind and heart; and, next to the ministers limitation was to expire with the term of service of our holy religion, they have my esteem and of the then President of the United States. On veneration-sentiments which I have cherished that day, by a happy change, Mr. Jefferson by the during an intercourse of more than twenty years, voice of his country, was called to preside over its during which, my professional pursuits have prodestinies. The commencement of this new and duced an almost daily intercourse with gentlemen happy era furnished an illustrious proof to an ad- who have filled the bench with bonor and integmiring world of the futility and folly of sedition rity. But, entertaining these sentiments, as I sinand libel laws. The inaugural speech of this en- cerely do, I cannot forget that judges are at best lightened statesinan asserted the true and genuine but men, partaking, in common with us all, the principles of liberty, and of our free republican frailties, passions, and imperfections, incident to institutions; and established the dominion of in- our nature. That, like us, they are what nature, tegrity, truth, and honor, over the demons of error, education, habit, and particular modes of life, falsehood, and malice. It claimed no exemption have made them. I must be permitted to express of rulers, magistrates, and representatives; their my own opinion with much humility indeed, that motives, designs, or measures, from the rigid stric- the judiciary of the United States is not the only tures, from the free and unrestrained investigations depository of the Constitution of the United States, of the press.
and of the rights and liberties of its citizens; the He demanded no libel or sedition act to shield only expositors in the last resort of the Constituthe purity of his motives, the integrity of his char- tion and laws of the different States as regards acter, from the assaults of a virulent and implaca- the delicate and important questions which have ble, though fallen party. But, armed with the con- occurred, and will again occur, from the conflictscious integrity of his own heart, with this im- ing claims of national and State sovereignties. mortal ægis, stronger than adamant or brass, this Much as these conflicts are to be deprecated, they illustrious philosopher and enlightened statesman must occur, and whenever they do occur, believe reared his head above the stormy clouds of faction, me, Mr. Chairman, I speak it in no spirit of evil intrigue, and passion; and the envenomed shafts augury or melancholy foreboding, but from my of calumny fell harmless at his feet.
limited observations on men and events which But our opponents, Mr. Chairman, not choosing have passed before me, or are to be found recorded to encounter this question by arguments in sup- on the page of history, you will find the opinions port either of the constitutionality or expediency of your judiciary arrayed on the side of thai power of the sedition act; not willing to encounter the from which they have derived their honors and general sentiments of reprobation with which emoluments, and so of our State judiciaries too. this obnoxious measure is now held and viewed It is human nature, which in spite of the utmost in these United States; and entertaining, as I efforts of the virtuous and the wise, will bend the fondly trust my honorable friends from Georgia human mind, unconscious of the bias, to the doand South Carolina do, the same opinions with minion of her imperious sway. myself in relation thereto; they have taken shel- But, admitting the truth of this doctrine of the ter behind the bench of judges; contending that Constitutional power, as well as of the efficiency the Constitution is a government of checks and of the judicial power to check the usurpations of balances; that, by this theory, the judiciary of the the Congress of the United States, in its utmost United States is the efficient check on the usur-I latitude, it is entirely inapplicable to the present
Supplemental Speeches. case. What is the complaint of the petitioner what, then, I ask emphatically, is the argument before you? What the argument of the advo- predicated, that this law, having received the judicates of the proposition on your table? Is it that cial sanction, that Congress are thereby precluded the judicial power interposed a check improperly; from a solemn decision on the question ? that, without Constitutional authority it inter- If, indeed, Mr. Chairman, after having invested posed its power to shield the citizen, to protect the your judges with their ermine, (spotless, if you liberties of the country from legislative usurpa- please,) with their silk or satin gowns, you could tion ? No, sir; directly the reverse. As far as place in their hands the magician's wand, with complaint or imputation is directed towards the the powers of necromantic change, then, indeed, judges, it rests upon the charge, not that they did, might its potent touch convert the sedition act, but that they did not, interfere to arrest the career before unconstitutional, and a violation of the saof legislative usurpation in the enaction of un- cred charter of our rights, into a Constitutional constitutional laws. It is, Mr. Chairman, when law, free from blemish and from stain. But, until the firm, virtuous, and upright judge, strong in the some such magic power is conferred on, or to be integrity of his heart and the dignity of the station assigned to, judges, it is, I must confess, beyond assigned him by his country, who, when the tem- the reach of my comprehension to perceive how pest of frenzied and infuriated party spirit rages the simple facts attending the indictment and trial round our happy land, like the tall and majestic of Matthew Lyon can confer on this act the charoak, rears his head and hears the storm of angry acter of Constitutional, which it never had before. passions beat in vain against its side; and not the But there is another view of the subject, Mr. supple, obliged, and obliging friend of a party Chairman, which is, if possible, more conclusive from whom he derives his undeserved honors, like than that which has been just pointed out to the the gentle ozier plant, nods and bends his head at consideration of the Senate, to show the entire every gale that blows, that this salutary judicial inefficiency of the supposed sanction of the Fedcheck is to be ascribed.
eral judiciary, to confer on this act, otherwise unWhat, then, is the state of fact, in relation to constitutional, the attributes of a Constitutional the application of this salutary judicial check, in law. My honorable friends from Georgia and the trial of Matthew Lyon? Why simply this. South Carolina, as members, and honorable and That one of the five judges who formed the bench distinguished members of a profession, whose study of the Supreme Court of the United States, with as well as daily occupation are, or have been, the out the aid, and probably without a previous con- municipal laws, and who must be familiar with sultation with his associate judges, presided at this the principles of that law which concern the jutrial in the circuit of Vermont. That an indict- risdiction of the courts appointed for its adminisment on the sedition act against Matthew Lyon, tration, must concede at once what it seems imwas framed by the attorney for the district; on possible to deny, that if the sedition law had never which the culprit was arraigned ; to which he been enacted, that the Federal courts would have pleaded not guilty; upon which a jury, impan- had no power or jurisdiction in the case of Matthew nelled by a marshal holding his office at the plea- Lyon, to have received an indictment, caused an sure of the President of the United States, re- arraignment of the prisoner, a trial and conviction turned their verdict of "guilty” against the pris- to be had, followed by a sentence of condemnation, oner ; on which the judge presiding pronounced all under the sedition act, on which the indicthis sentence, condemning the prisoner to an im- ment is framed. If, then, this law is admitted by prisonment of four months; the payment of a our opponents to be unconstitutional, as, by refine of one thousand dollars, and to be imprisoned treating from the discussion of that question, they until the fine was paid. Now, I put it distinctly are bound to do, what is the conclusion ? Irreto my honorable friend from Georgia, from this sistible as fate, from this admission, that the sedibrief narrative of the trial, to inform the Senate tion act being unconstitutional, was, for that cause, in what part of the transactions attending this void in its inception, and that, being a perfect pultrial does he find the materials of which to erect lity, it could confer no power or jurisdiction on the defences by which the opponents to the propo- the courts of the United States to take cognizance sition on your table are to shelter and protect of the case. And that the whole of the proceedthemselves from the investigation in which we ings of the circuit court for Vermont, in relation have challenged them to enter. The constitu- to the arraignment, indictment, trial, and condemtionality of the sedition law. Are they to be nation, of the prisoner, were, in the technical lanfound in any check interposed by the judiciary, to guage of the law, coram non judice, and therefore the execution of what we pronounce an uncon- void, and that, consequently, the trial of Matthew stitutional act?
Lyon, though accompanied with the usual cereHas there been any decision by the highest ju- monies, and clothed with all the solemn forms of dicial power of the United States, the Supreme law, was, in truth, but a solemn farce, not only Court of the nation ? Was the constitutionality without the solemn sanctions of the law, but in of the law in question raised, discussed, or decided positive violation of the inhibitions of the Magna on, by the judge who presided at the trial? Or Charta of our liberties the Constitution of the was it even a subject of deliberation in the judge's United States. mind? To all these interrogatories, as far as we But it is contended by our opponents on this are informed by evidence, either recorded or tra- | occasion, that the act in question having long since ditional, we must answer in the negative. On expired by its own limitation, that Congress is not