417 Supplemental Speeches. the enemy. These presses, instead of being the these are evils against which the Government can is given to any thing they detail, even if it be the SPEECH OF MR. TALBOT, OF KENTUCKY We are told that the voice of the people of this nation had passed judgment upon this law, and now demanded at your hands that you declare it unconstitutional. We are also cautioned to beware how we oppose public opinion. Mr. S. said, no gentleman had more respect for public opinion than he had, or would yield with more obedience to its mandate, whenever it was his duty, or became respectful for him to do so; but, in forming an opinion upon a Constitutional question, the Constitution itself should be his guide, not public , opinion. The people whom he had the honor to represent were a magnanimous people, and intended him to form his own opinion upon Constitutional law, or they ought not, as they would not, have sent him here. Mr. Chairman, it is with some hesitation I rise to address this honorable body, on the present important subject of their deliberations; a subject which involves in its decision questions of the highest moment; of Constitutional principles and constructions; of the character and merits of a former, as well as of the present, administration of our Government, as well as considerations of justice, as applied to the claim of the petitioner, who has appealed to the justice and liberality of his country for redress. I have waited long, during 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 state 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 judges having subverted the liberties of a nation. Whenever the civil liberties of this nation are destroyed, it must be by one of the other departments; and, if the opinion of Congress is to be the standard of right, instead of the Constitution of your country, it may unfortunately fall there. If Congress is not bound by the Constitution, it is under the control of no law but the law of opinion, which is the law of tyrants. Your judges may err, and very often do; sometimes from a want of capacity, sometimes from corruption, and sometimes from interest; but they are circumscribed by law, and subject to its penalties. If it is too difficult to reach them by impeachment, change your Constitution. It would be better for the nation that the judges should be subject to the control of onethird of the Senate, upon a case of impeachment, than that Congress should assume the power of revising their decisions. If you can organize yourselves into a high court of appeal, upon no other authority than that justice cannot be done without your interference, there can be no limits to your usurpation. The pure ermine may be stained; your judges may become corrupt; but 16th CoN. 2d SESS.-14 floor, who were also members of the National Supplemental Speeches. merated powers there contained; nor is such authority to be deduced by any fair rule of argument or construction, as the execution of a power conferred on the Congress of the United States, as subsidiary to the powers expressly delegated; and I challenge honorable gentlemen who are the advocates or apologists for this measure, to point out, to put their finger on the clause or section of the Constitution, which confers such power, or from which it can be rationally, or even plausibly, inferred. If this be true, and I have a right to assume it, no honorable gentleman opposed to the resolution on your table, though repeatedly called on to do so, having come forward to controvert it, need I even advert to that article in the amendments to the Federal Constitution, emphatically called the Bill of Rights, (amendments, dictated by the cautious and jealous spirit of liberty, the watchful guardian of the people's rights,) which contains an inhibition, positive and express, to the Congress of the United States, to enact any law "concerning an establishment of religion, or abridging the freedom of the press." The general frame and scope, as well as the subject and intent, of our national compact, the Constitution of the United States, affords no argument, or even countenance, for such a course of legislation; the whole frame and organization of the Federal Constitution, in the power delegated to the National Government, embracing only objects of national concern, connected with the national defence, and such as are placed beyond the scope and limits of the powers belonging to the individual States, to which was intended to be left the exercise of all the sovereign powers connected with internal government and municipal regulation. In illustration of this view, it is to be remarked, that the Constitution of the United States has, in no part of that instrument, vested Congress with the power to enact a criminal code for the restraint and punishment of crimes within the limits of the respective States. The absurdity, as well as dangerous consequences, of conferring such power, is obvious, and must obtrude itself on the mind of every man. That this power belongs to the sovereignty of the individual States, will not be controverted. A power in the National Government, to be exercised over the same subject, operating on each and every citizen in the United States, to be exercised simultaneously by each of these sovereign powers, by prosecutions and convictions in their respective courts, would produce a conflict of jurisdictions and of powers, which must hasten, by rapid strides, to a dissolution of that Government, which could not long endure. But no warrant is to be found in the Constitution of the United States for a construction which would lead to consequences so disastrous. The power in Congress to enact a criminal code for the government of the citizens of the several States is repelled by every view which can be taken of its principles and provisions. Why did the framers of this sacred instrument, this charter of our rights and liberties, employ an entire section of the Constitution in defining treason against the United States, and prescribing what should be the limits of the punishment to be inflicted on the culprit? The answer is obvious: this crime being committed against the nation, and not against a State, the authority of the nation is alone concerned in, and competent to, its punishment; and besides, not only the peace and happiness, but the very existence of the nation essentially depend on the possession and exercise of such a power. Why has the Constitution of the United States, after delegating, in the most explicit and ample terms, to Congress, power over the currency and coins of the United States, in the very next and succeeding paragraph, conferred the additional, and therefore not merely an incidental power, of providing for the punishment of those who should be guilty of counterfeiting such currency or coin? Can we deem so irreverently of the wisdom of the framers of this glorious instrument, as for a moment to indulge the supposition, that they would have taken the pains, by an express provision, to delegate the power to provide for the punishment of the crime alluded to, if they had contemplated, by any other provision in the Constitution, either to confer a general power to provide for the punishment of crimes, the perpetration of which might be deemed to affect the prosperity of the nation, or the quiet and tranquil operation of the General Government? Yet such is the supposition on which arguments must be based which are employed to vindicate the power of Congress to punish political libels by the enaction of sedition laws, to be enforced by the powers and intervention of a Federal judiciary. But when it must be conceded by the advocates of this sedition act, that there is no express power to be found in the Constitution for its enaction; that, if it can be claimed at all, it must be supported on the ground that it is amongst the subsidiary powers necessary and proper for the execution of expressly delegated powers, when it is answered that no such expressly delegated power has or can be shown to which this power of enchaining the freedom of the press, and closing up the avenues to a full and free investigation of the characters and measures of public men, who are the delegates and servants of the people, as necessary and proper. When it is further answered, that the amendment to the Constitution, inhibiting all abridgment of the freedom of the press; an amendment dictated by the jealous and watchful caution of the Legislatures of the States, by which it was recommended; a jealousy springing from a deep sense of the value of the liberties intended to be secured and justified by the histories of all Governments and nations of the earth. That this amendment ought to put to silence all arguments derived from vague and general speculations in relation to the power with which Governments ought to be endowed for the preservation of those called on by the people to administer it, from the licentious tongues or pens of malicious libellers or calumniators. But it is not on the silence of the Constitution, or the absence of delegated power to form that instrument; nor only on the amendment to that Constitution, so emphatic in its terms, that the opponents to the sedition law need rest their oppo Supplemental 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 States, even their Chief Magistrate, has, by the municipal regulations, the laws of every State, his appropriate remedy, to demand and receive, in common with the lowest and meanest citizen, an equivalent for the injury he has sustained. And why is he who has been selected from amongst his fellow-citizens, to exercise, for their benefit and advantage, a little brief authority, to be hedged around with the ramparts of sovereign power, to be armed with the artillery of a criminal code, for the protection of his person or reputation, which is denied to every other citizen? My honorable friend from Georgia has disclaimed, in pathetic strains, and my honorable friend, who sits before me, (Mr. SMITH,) has indulged in terms and anecdotes, humorous and sportive, against the slander and calumny, which flow from the licentiousness of the press. Have my honorable friends omitted to remark what is of such familiar observation in all the walks of human life, how few, if any, of the benefits of Heaven are granted us by the all-wise Disposer of Events without alloy? How liable are our greatest blessings to abuse? And that the question in the case we are now discussing is, whether the liberty of the press is not one of those political blessings inestimable in itself, the abuse of which is inseparable from its advantageous use? If gentlemen still doubt on this question, let me refer my honorable friends to the history of the late trials and prosecutions for libels in England, as well as in Ireland, for the last hundred years. What heart endowed with the common feelings of sympathy, not steeled against every soft emotion of our nature, can forbear to feel for them? Humanity herself must weep over the helpless fate of philosophers, statesmen, and patriots, the victims to the love of liberty and their country's rights, who have been offered up on the altar of their country, to the corruption, tyranny, and usurpations of power; and all under the specious pretence of punishing the licentiousness of the press; yet England boasts (how vain the boast!) that she enjoys the liberty of the press. Believe me, Mr. Chairman, that neither the liberties of the people, nor the inestimable institutions of our free republican Government, can be preserved in their purity, while the freedom of unrestrained investigation of the character, conduct, principles, and motives of public men, or the ten well as actions of the ruler of the country-thus far shalt thou go, and no farther, and here shall the proud wave of popular discontent be stayed? While therefore, Mr. Chairman, I reciprocate in the warmest terms the sentiments of indignation which my honorable friend from Georgia so forcibly and eloquently expressed against the guilt, as well as infamy, of those concerned either in the fabrication or propagation of malicious slanders-a vice, the prevalence of which is so much to be deplored, but a vice too firmly ingrafted in our frail imperfect natures by the indulgence of which the peace and happiness of society has been so often disturbed and blasted; yet I for one must be permitted to indulge the consolatory hope, if not the fond belief, that there is in truth, integrity, and conscious worth, a charm sufficient of itself to insure the triumph of virtue; and that, armed with these, the utmost rage of malice may be defied, and that, although the excellence of such a character may, for a time, be sullied, yet, like the luminary in the heavens, which shines with light and glory on our sphere, which suffers a transient obscuration from the passing clouds, it is only permitted, that it may, when the transient vapor is passed, give fresh lustre to his beams. But, Mr. Chairman, having detained you much longer than I intended on that branch of the discussion from which our opponents have retreated, and as the honorable gentleman from Massachusetts has declined the task for which the conspicuous part he took at the period of the enaction of this too famous law, so well qualified him, permit me to fill the chasm left by his omission in the history of the Administration at this eventful period-not from observation of the passing scene, or entirely from the documents of authentic history of the times; but in part from the contemporaneous impressions and opinions ratified and sanctioned by the public voice. From these sources, the best which I have been enabled to procure, I feel myself authorized to infer that this sedition act was one of the last links in the chain of measures adopted and pursued by that party in whose hands the administration of the Government was then reposed, measures of a tone and character to arouse, and which had aroused strong alarms in the bosoms of the American people, for those liberties on which repeated and successive invasions had been made. These alarms, first producing expressions of discontent, Supplemental Speeches. had gradually increased and swelled into loud and clamorous expressions of indignation, which were echoed from one extremity of the Union to the other. It was to silence the voice of just censure, of awakened and indignant discontent-to stifle the public voice-to throw around them a rampart of defence against the assault of popular indignation. That it was the last desperate recourse of a falling party tottering on the brink of the precipice, over which this measure, intended for their preservation, as full of rashness as of danger, only served the sooner to precipitate them-and to this cause are we to ascribe the revolution of power from the hands of those who, by this measure, hoped to have secured the means of its perpetua tion. A new and extraordinary feature in this law was the short period of its duration. Other portions of your criminal code, Mr. Chairman, enacted for the prevention or punishment of offences, are, as it seems they should always be, calculated for all times and all circumstances. But this is one among the few which have met my observation, which was for the short and limited duration of two years and a half, and by its limitation was to expire with the term of service of the then President of the United States. On that day, by a happy change, Mr. Jefferson by the voice of his country, was called to preside over its destinies. The commencement of this new and happy era furnished an illustrious proof to an admiring world of the futility and folly of sedition and libel laws. The inaugural speech of this enlightened statesman asserted the true and genuine principles of liberty, and of our free republican institutions; and established the dominion of integrity, truth, and honor, over the demons of error, falsehood, and malice. It claimed no exemption of rulers, magistrates, and representatives; their motives, designs, or measures, from the rigid strictures, from the free and unrestrained investigations of the press. He demanded no libel or sedition act to shield the purity of his motives, the integrity of his character, from the assaults of a virulent and implacable, though fallen party. But, armed with the conscious integrity of his own heart, with this immortal ægis, stronger than adamant or brass, this illustrious philosopher and enlightened statesman reared his head above the stormy clouds of faction, intrigue, and passion; and the envenomed shafts of calumny fell harmless at his feet. But our opponents, Mr. Chairman, not choosing to encounter this question by arguments in support either of the constitutionality or expediency of the sedition act; not willing to encounter the general sentiments of reprobation with which this obnoxious measure is now held and viewed in these United States; and entertaining, as I fondly trust my honorable friends from Georgia and South Carolina do, the same opinions with myself in relation thereto; they have taken shelter behind the bench of judges; contending that the Constitution is a government of checks and balances; that, by this theory, the judiciary of the United States is the efficient check on the usur pation of Congress, in the enaction of laws, not warranted by the Constitution; and that, when this department has interposed the sanction in the exposition or execution of a law, that no other department of our Government have a right to interfere. And that, as the law in question, during its existence, was enforced by the judicial power and is now expired, that Congress have no Constitutional right to interfere. These doctrines are beautiful in theory, and the arguments deduced therefrom are plausible and ingenious. They are such as caught my youthful mind as sterling political orthodoxy, but which recent events in the history of our country have taught me to receive with caution and distrust; as subject to many limitations; and as entirely inapplicable to the questions we are now called upon to decide. But, before I proceed to their refutation, permit me, Mr. Chairman to premise that there is no honorable gentleman on this floor who can entertain a higher reverence for the judicial character than myself, believing as I do, that there is no station in the social body requiring for the discharge of its arduous duties more exalted qualities of mind and heart; and, next to the ministers of our holy religion, they have my esteem and veneration-sentiments which I have cherished during an intercourse of more than twenty years, during which, my professional pursuits have produced an almost daily intercourse with gentlemen who have filled the bench with honor and integrity. But, entertaining these sentiments, as I sincerely do, I cannot forget that judges are at best but men, partaking, in common with us all, the frailties, passions, and imperfections, incident to our nature. That, like us, they are what nature, education, habit, and particular modes of life, have made them. I must be permitted to express my own opinion with much humility indeed, that the judiciary of the United States is not the only depository of the Constitution of the United States, and of the rights and liberties of its citizens; the only expositors in the last resort of the Constitution and laws of the different States as regards the delicate and important questions which have occurred, and will again occur, from the conflicting claims of national and State sovereignties. Much as these conflicts are to be deprecated, they must occur, and whenever they do occur, believe me, Mr. Chairman, I speak it in no spirit of evil augury or melancholy foreboding, but from my limited observations on men and events which have passed before me, or are to be found recorded on the page of history, you will find the opinions of your judiciary arrayed on the side of that power from which they have derived their honors and emoluments, and so of our State judiciaries too. It is human nature, which in spite of the utmost efforts of the virtuous and the wise, will bend the human mind, unconscious of the bias, to the dominion of her imperious sway. But, admitting the truth of this doctrine of the Constitutional power, as well as of the efficiency of the judicial power to check the usurpations of the Congress of the United States, in its utmost latitude, it is entirely inapplicable to the present Supplemental Speeches. what, then, I ask emphatically, is the argument predicated, that this law, having received the judicial sanction, that Congress are thereby precluded from a solemn decision on the question? If, indeed, Mr. Chairman, after having invested your judges with their ermine, (spotless, if you please,) with their silk or satin gowns, you could place in their hands the magician's wand, with the powers of necromantic change, then, indeed, might its potent touch convert the sedition act, before unconstitutional, and a violation of the sa case. What is the complaint of the petitioner before you? What the argument of the advocates of the proposition on your table? Is it that the judicial power interposed a check improperly; that, without Constitutional authority it interposed its power to shield the citizen, to protect the liberties of the country from legislative usurpation? No, sir; directly the reverse. As far as complaint or imputation is directed towards the judges, it rests upon the charge, not that they did, but that they did not, interfere to arrest the career of legislative usurpation in the enaction of un-cred charter of our rights, into a Constitutional constitutional laws. It is, Mr. Chairman, when the firm, virtuous, and upright judge, strong in the integrity of his heart and the dignity of the station assigned him by his country, who, when the tempest of frenzied and infuriated party spirit rages round our happy land, like the tall and majestic oak, rears his head and hears the storm of angry passions beat in vain against its side; and not the supple, obliged, and obliging friend of a party from whom he derives his undeserved honors, like the gentle ozier plant, nods and bends his head at every gale that blows, that this salutary judicial check is to be ascribed. law, free from blemish and from stain. But, until some such magic power is conferred on, or to be assigned to, judges, it is, I must confess, beyond the reach of my comprehension to perceive how the simple facts attending the indictment and trial of Matthew Lyon can confer on this act the character of Constitutional, which it never had before. But there is another view of the subject, Mr. Chairman, which is, if possible, more conclusive than that which has been just pointed out to the consideration of the Senate, to show the entire inefficiency of the supposed sanction of the Federal 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 prisoner; on which the judge presiding pronounced his sentence, condemning the prisoner to an imprisonment of four months; the payment of a fine of one thousand dollars, and to be imprisoned until the fine was paid. Now, I put it distinctly to my honorable friend from Georgia, from this brief narrative of the trial, to inform the Senate in what part of the transactions attending this trial does he find the materials of which to erect the defences by which the opponents to the proposition on your table are to shelter and protect themselves from the investigation in which we have challenged them to enter. The constitutionality of the sedition law. Are they to be found in any check interposed by the judiciary, to the execution of what we pronounce an unconstitutional act? Has there been any decision by the highest judicial power of the United States, the Supreme Court of the nation? Was the constitutionality of the law in question raised, discussed, or decided on, by the judge who presided at the trial? Or was it even a subject of deliberation in the judge's mind? To all these interrogatories, as far as we are informed by evidence, either recorded or tra- | ditional, we must answer in the negative. On to be had, followed by a sentence of condemnation, But it is contended by our opponents on this occasion, that the act in question having long since expired by its own limitation, that Congress is not |
