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Case of Matthew Lyon.

JANUARY, 1821.

However much Mr. Adams might have been was not a native of this country; I hope to Heaven him, anamh confident he never Intimated applied in the beauty and it had been otherwise ; if it had turned favor of a prosecution. Most probably this took out upon this posthumous trial, that his story was place in consequence of the advice of those who true, it would have been a source of lasting regret advised that Robbins should be given up. About | to Mr. Adams; and, had he known precisely how this time Mr. Adams thought proper to repress the the case stood before Judge Bee, sure I am he would zeal of his political friends by pardoning Fries, not have interfered in the manner he did. He who had been guilty of a misdemeanor, but was was governed, no doubt, by a rigid sense of justice, convicted of treason, and by other acts evincing and a regard for the conditions of our treaty with a disposition to pursue a more moderate system Great Britain. But I have ever thought, and still than that which had prevailed for two preceding think, the act was precipitate, and peculiarly unyears. It will also be remembered, that, not long fortunate. Mr. Cooper, without doubt, thought after this period, he dismissed some of his advi- this interference was without precedent, because sers, in whom he had probably placed too much no such case had happened before. He thought confidence.

it against law, because the facts alleged by RobAt the present time of good feelings it seems bins, as to his birth and impressment, should have incredible, that what Mr. Cooper said of the ex- been ascertained with certainty before he was depenses of a permanent navy—of the standing livered up. He thought it against mercy, because army—the eight per cent. loan, and the projected the man was delivered up to certain death. Such embassies to Prussia, Russia, and the Sublime were the opinions of Mr. Cooper; opinions which, Porte, should have been considered as the subject under our free system of Government, he ought to of indictment. What was said as to the case have been allowed to express and publish, without of Jonathan Robbins, otherwise called Thomas being dragged before a criminal court, or sentenced Nash, was of a more serious character, and should to a loathsome prison. Yet for this he was senthave been answered, if it could have been answer- enced to pay a fine of four hundred dollars, to be ed, by a true history of that transaction—not by imprisoned for the term of six months, and to punishing Mr. Cooper; for, if this interference on enter into recognizance for his good behavior after the part of the President, was without precedent that period, himself in one thousand dollars, with against law and against mercy, fining and impris- two sureties in five hundred dollars each.' And oning Mr. Cooper could not make it otherwise. was this no abridgment of the liberty of the press ?

It has never been pretended that there was any The press is more free under the monarchy of precedent for delivering up Robbins. He had Great Britain. been charged with piracy and murder on board A further examination of this trial will show the British sloop Hermione, and demanded by the that the difficulty of proving facts and opinions of British minister. His case was depending before common notoriety, under this law, was such as to Judge Bee, of South Carolina. He alleged that leave no chance of escape to any one indicted he was a native citizen of the United States, and under it; and, accordingly, I believe none did escape. that he had been forcibly impressed on board the Judge Chase, in his charge to the jury, observed, Hermione. If his story had been true, it will not that: be pretended by those who recollect the history

“ The traverser, in his defence, must prove every connected with that transaction that he ought to charge he has made to be true. He must prove it to have been given up. But, as he averred it to be the marrow.

If he asserts three things, and proves true, and produced his passport under the authority but one, he fails ; if he proves two, he fails in his deof the United States, in support of his assertion, fence, for he must prove the whole of his assertions the proof that he stated a falsehood should have to be true. If he were to prove that the President been so complete as to leave no loop, to hang a

had done every thing charged against him in the first doubt

upon, before he should ever have been given paragraph of the publication ; though he should prove up to certain death. The proof, if it deserves the to influence the decisions of a court of justice ; that he

to your satisfaction, that the President had interfered name, was of a very doubtful character as to this had delivered up Jonathan Robbins without precedent, point. While the case was thus before the Judge,

gainst law and against mercy, this would not be sufMr. Pickering, then Secretary of State, wrote a ficient unless he proved, at the same time, that Jonaletter to the Judge, containing, among others, this than Robbins was a native American, and had been expression :

forcibly impressed and compelled to serve on board a “ The President has, in consequence hereof, au- British ship of war.”. thorized me to communicate to you his advice and re- According to this, the most trivial mistake in quest that Thomas Nash should be delivered up to the point of fact or opinion would deprive the party consul or other agent of Great Britain, who shall ap- indicted of all the advantages of that part of the pear to receive him."

law which allows the truth to be given in evidence. Whether Robbins, or, as he is called in this let. Indeed, that part of the act appears a mere mockery, ter, Nash, was or was not a native citizen, will when we read this trial

, and see the difficulty of probably never be known with certainty. After proving facts and opinions of common notoriety, he was hung in chains, a strong disposition was by the technical nicety of the common law. discovered to try his case, and great pains were If the Government'in 1798 had been sufficiently taken to prove that he was not a native of the strong, as, thank Heaven ! they were not, to give town in which he said he was born. Probably he i permanency to such a law, and such an adminis

JANUARY, 1821.

Case of Matthew Lyon.


tration of the law, there would have been an end It was opposed and supported on Constitutional to our boasted liberty of the press. The silence grounds, and is a declaration of the three branches of despotism would have pervaded the Union, of the Legislature of the meaning of the Consticommunicating a palsy to every part of our Con- tution in this particular. And it is not yet ascerstitution, which was intended to retard the march tained that, in construing the Constitution, Conof aristocracy, or to defend the just rights of the gress is subordinate to the Judiciary. Probably great body of the people.

the first decisive experiment upon this subject will The friends of the sedition act say that Con- prove the contrary. gress were authorized to pass it, as a law necessary

The honorable gentleman from Georgia (Mr. and proper for carrying into effect

the powers WALKER) informed us that, as long as the act was vested by the Constitution in the Government, in force, Constitutional or unconstitutional, it was under the Sth section of the 1st article of the Con- the law of the land, and we were bound to obey stitution.

its dictates. If it was the law of the land, it was This part of the Constitution is very elastic, and the duty of the judges to see it enforced. The act, some gentleman discovered that under it Congress though not declaratory of the common law, was may do what they please, by simply making the declaratory of the Constitution, or meant to be so. word niecessary mean convenient. But I cannot im- And the Judiciary considered that they were bound agine what power vested by the Constitution in to carry it into effect, leaving those by which it the Government it was necessary to carry into was enacted to be responsible for its consequences. effect by the sedition act. That no such necessity If Congress infringe the Constitution, can they as is alleged did exist is evident from this circum- not heal the breach? If not, this is the most unstance, that the Government went on very well fortunate instrument ever devised by man as a before that act passed, and quite as well since it system of Government-subject indeed to the laws has expired. However convenient, therefore, the of decay and dissolution, without the possibility of law might have been, it certainly was not neces- redemption. If such be the case, our delightful sary. If it was necessary in the meaning of the anticipations of transmitting this instrument únimConstitution, it was indispensably necessary-not paired to the latest posterity are idle dreams-the partly necessary. If necessary then, it must be baseless fabric of a vision. But I trust, sir, there necessary now, and Congress must of course be is a redeeming spirit, by which this sacred charter neglecting their duty in not reviving that law. of our liberties, when violently and insidiously

But the most extraordinary reason offered for invaded, may be restored to its pristine purity. passing that law is, that it was part of a system If the last Congress had passed an act limited to of national defence. If so, it must be required by the duration of the Congress, levying a duty on that part of our Constitution which imposes it as articles exported from the United States, with proa duty upon Congress to provide for the common per and penal clauses to enforce obedience; and if defence. Whether this bill was recommended by some individual with the spirit of Hampden had the Secretary of War, or reported by the Commit- refused obedience to the law, and had been fined tee on Military Affairs, I have not 'inquired; but, by the court for such disobedience one thousand if it was intended as a part of our system of na- dollars, and that fine had gone into our Treasury; tional defence, it should have been incorporated can any one doubt that the present Congress would into the bill for establishing a navy, or for raising restore the money, and by that act virtually dea standing army, or for arming the whole body of clare the former to have been unconstitutional ? the militia of the United States. If national de- We do not assume an appellate jurisdiction over fence was the object of the bill, it should have the courts, but declare the law under which they appeared in some of its sections, or in its preamble, acted null' and void—the proceedings under it to or in its title; its duration should have been lim- have been coram non judice—the fines to have been ited to the period of the just and necessary war levied in direct violation of our Constitution, and which it was then intended if posssible to get up consequently no part of the lawful revenue of the against France; instead of which it was limited, country: We restore the money to those from with an aspect somewhat ominous, to the third of whom it was extorted, agreeably to the dictates of March, 1801—the very day on which the Admin- common honesty. istration which it was meant to support ceased to The honorable gentleman from Georgia wishes exist. From all which it has been suspected that to know in what part of the Constitution we are this act was no part of a system of defence for the authorized to make donations. I leave that to be nation, but for a party—a defence of the ins against discovered by those who so frequently vote for dothe outs—a defence of a falling administration nations. At present, no donation is contemplated. against the people who had determined to change If we restore the money to Matthew Lyon, it will: their public servants.

be an act of justice, not of favor. We are now in effect to declare this act to have But, the honorable gentleman makes himself been Constitutional or unconstitutional. If we do somewhat merry with what he calls the modesty the latter, we correct not the errors of the court, but of Matthew Lyon. This petitioner, he says, very of Congress. If the law was not Constitutional modestly asks, not only for the thousand dollars, but when passed, the decisions of the court could not for interest, costs, and dar ges, and his pay as a make it so. Probably the court did not think that member of Congress; and he apprehends the petia question for them to decide. The act was a legis- tioner has a design to drain our Treasury. Most lative construction of the Constitution expressly. I of those, sir, who make applications to Congress,


Case of Matthew Lym.

JANUARY, 1821.

take especial care never to lose any thing by not which he was punished by the loss of his ears. asking for enough. But I can see nothing so un- “Between eight and nine o'clock in the morning, reasonable in the petition of Matthew Lyon; for, the fourteenth of June, (1637,] the Lords being if we should grant all he asks, it would fall far set in their places, in the said court of Star short of an indemnity for all his losses. But we Chamber, and casting their eyes at the prisoners, are bound to restore what we have taken from him, then at the bar, Sir John Finch, Chief Justice of with interest. Perhaps he will consider the eulo- ' the Common Pleas, began to speak after this giums he has received as a sort of set-off against manner:* the residue of his claim; if not, he seems to be “I had thought Mr. Prynne had no ears, but me. without remedy.

thinks he hath ears; which caused many of the Lords If Congress had repealed the law as unconstitu- to take a stricter view of him ; and, for their better tional, would they not have restored the money satisfaction, the usher of the court was commanded to levied under it ? Those who consider that the turn up his hair and show his ears ; upon the sight act should never have passed, as being unconsti- whereof

, the Lords were displeased that ihey had been tutional, must be of opinion that our Treasury formerly no more cut off, and cast out some disgraceshould not be replenished by such means; and, if ful words of him. so, can we conscientiously consider the money “To which Mr. Prynne replied, My Lords, there is thus acquired as ours, unless indeed long posses- never a one of your honors but would be sorry to have sion has made it so, and we are to profit by our your ears as mine are. own neglect to do justice?

“ The Lord Keeper replied again, In good faith, he I do not think it necessary to search for prece

is somewhat saucy. dents to justify us in the measure now proposed. offended; I pray God to give you ears to hear.

“ I hope, said Mr. Prynne, your honors will not be If we have no precedent let us make one that may

“ The business of the day, said the Lord Keeper, is be a memento to dominant parties not to abuse

to proceed on the prisoner at the bar. their power. But if precedents were necessary,

“Mr. Prynne then humbly desired the court to give we may find enough in the history of England, bim leave to make a motion or two; which being not in that of our own country; for, fortunately, granted, he moves : for us, our history affords but a few instances of

“First, that their honors would be pleased to accept the abuse of power. For such precedents we need of a cross bill against the prelates, signed with their not go back to the heavy time of York and Lan- own hands, being that which stands with the justice caster, when the triumphant party constantly re- of the court, which he humbly craved, and so tenversed all that had been done by the party sub- dered it. dued. We may look into a later period, when the Lord Keeper. As for your cross bill, it is not the Stuarts and their immediate successors were upon business of the day; hereafter, if the court should see the throne, when the principles of liberty were just cause, and that it savors not of libelling, we may much better understood than practised.

accept of it; for my part, I have not seen it, but have The attainder of the Earl of Strafford, who had heard somewhat of it. been treacherously given up by a cowardly King it

, being, as it is, on His Majesty's behalf. We are

Mr. Prynne. I hope your honors will not refuse to the indignation of Parliament, was reversed. The attainders against Algernon Sidney and His Majesty's subjects, and therefore require the jus

tice of the court. against Lord Russell were reversed. The attainder against Alderman Cornish was

Lord Keeper. But this is not the business of the

day. reversed, as also that against Lady Lisle, and many others. In these cases, it is true, the Parlia- motion, which I humbly pray your honors to grant,

Mr. Prynne. Why then, my Lords, I have a second ment only reversed their own proceedings. But which is, that your Lordships will please to dismiss they sometimes reversed the proceedings of other the prelates, here now sitting, from having any voice courts, as in the case of Bastwick, Burton, and in the censure of this cause, being generally known Prynne, who were tried in the court of Star to be adversaries, as being no way agreeable with Chamber, for libels, and sentenced to lose their equity or reason, that they who are our adversaries ears, to pay a fine of five thousand pounds each, should be our judges; therefore I humbly crave they and to be imprisoned for life. This is a very may be expunged out of the court. strong case, and in point; for the Parliament not " Lord Keeper. In good faith it is a sweet motion ; only reversed the sentence, but remitted the fine, is it not? Herein you are become libellous; and if and ordered satisfaction for damages to the par- you should thus libel all the Lords and reverend ties injured.

judges as you do the reverend prelates, by this your I must ask the indulgence of the Senate while plea, you would have none to pass sentence upon you I read a few passages from the proceedings in this for your libelling, because they are parties.” extraordinary case. I shall read them for the edi- The whole trial is very interesting. I proceed fication of those who are, who have been, or who to the sentence. hereafter may be, in favor of a sedition act.

“Thus the prisoners, desiring to speak a little more Dr. Bastwick, Mr. Burton, and Mr. Prynne, had for themselves, were commanded to silence. And so written some religious books, in which were con- | the Lords proceed to censure. tained some reflections on the Bishops, which “ The Lord Cettington's censure :-) condemn were deemed libellous. Mr. Prynne, three years these three men to lose their ears, in the palace-yard before this time, had written a book in which he censured stage plays, music, and dancing, for * Harleian Miscellany, vol. 4, p. 220.

JANUARY, 1821.



at Westminster, to be fined five thousand pounds a diminished by the certainty or uncertainty in the man to His Majesty, and to perpetual imprisonment, tenure of office; how far by an increase or dimiin three remote places in the kingdom, namely, the nution of salary; how much it has been affected castles of Caernarvon, Cornwall, and Lancaster. by a fear of loss of office or salary on one side, · The Lord Finch addeth to this censure:

or the hope of further promotion or increase of “ Mr. Prynne to be stigmatized in the cheeks with salary on the other. But such speculations at two letters, S and L, for seditious libeller. To which all the Lords agreed."

present are unnecessary.

An observation or two more, and I will trespass I omit what is said of the punishment of Dr. no longer upon the patience of the Senate. Bastwick and Mr. Burton, which was inflicted I hope the motion for indefinite postponement with great cruelty, but that of Mr. Prynne deserves will not prevail. I hope that we shall pass the a particular notice:

resolution; that we shall restore to Matthew Lyon "Now the executioner being come to sear him and the money that has been extorted from him; and, cut off his ears, Mr. Prynne said these words to him: more especially, I hope we shall, as far as in us Come, friend, come burn me, cut me; I fear not; I lies, repair the breach made in our Constitution by have learned to fear the fire of hell, and not what the sedition act. But the honorable gentleman man can do unto me. Come, sear me, sear me; I from Georgia sees no such breach, but thinks we shall bear in my body the marks of the Lord Jesus; shall make one by adopting the present resolution; which the bloody executioner performed with extraor- and he now implores us not to disturb this sacred dinary cruelty, heating his iron twice to burn one instrument of our Union, which he considers as cheek, and cut one of his ears so close that he cut off the sun of our political firmament. We gaze upon a piece of his cheek. At which exquisite torture he the meridian sun till we are dazzled with bis never moved with his body, or as much as changed splendors, and can see none of his imperfections. his countenance, but still looked up as well as he But, if we view him through a misty atmosphere, could towards Heaven, with a smiling countenance,

or, in imitation of children, through a smoked even to the astonishment of all the beholders, and uttering, as soon as the executioner had done, this beava glass, we have a less splendid, but more distinct

We see the dark spots enly sentence : “ The more I am beaten down, the view of this luminary. more I am lift up.”

which deform his disk. So the honorable gentleWhat protection was afforded to these wretched, cal firmament, through an attenuated atmosphere,

man, taking a lofty view of the sun of our politimen by the common law, the law in which they is dazzled with its splendor-sees nothing but lived, and moved, and had their being ?

light and perfection. But, if he would condeThe honorable gentleman from Georgia admon- scend to view it through a more obscure and dense ishes us not to destroy the independence of the medium, he would see in this luminary certain judiciary, the bulwark of the liberties of the peo- dark spots, indicative of decay. He would perple. We shall not, in the measure now proposed, ceive, sir, that its first amendment, once its most in the slightest degree, interfere with the indepen- resplendent limb, is now obscured in dim eclipse, dence of the judiciary. It must be a matter of shorn of its beams, shedding around “disastrous indifference to them what we do with the sedi- twilight.” tion act; it cannot affect their emoluments. I When Mr. D. had concluded have understood that the independency of the judiciary was regulated by the greater or less perma- tions.

Mr. MORRIL spoke at length against the resolunency in the tenure of their office, and the greater

Mr. ROBERTS spoke in favor of the resolutions. or less certainty in the payment of their fixed

Mr. Dana replied to Mr. R. and others; and salaries.

the Senate adjourned. But I must beg leave to differ from the honorable gentleman when he informs us that our independent judiciary is the bulwark of the liberties

SATURDAY, January 20. of the people. By which he must mean, defenders of the people against the oppressions of the

The PRESIDENT communicated a letter from the Government. From what I witnessed in the Secretary of the Navy, transmitting, for the use years 1798, 1799, and 1800, I never shall, I never of the members of the Senate, sixty copies of the can, consider our judiciary' as the bulwark of the Naval Register for the year 1821 ; and the letter liberties of the people. The people must look out was read. for other bulwarks for their liberties. I have the The following Message was received from the most profound respect for the learning, talents, PRESIDENT OF THE UNITED States: and integrity, of the honorable judges who fill our To the Senate of the United States : Federal bench. But, if those who carried into

In compliance with a resolution of the Senate of effect the sedition act are to be called the people's

the 4th instant, “ requesting the President of the Unidefenders, it must be for nearly the same reason

ted States to communicate to the Senate any informathat the Fates were called Parca-quia non parce- tion he may have, as to the power or authority which bant. It would be a subject of curious investiga- belonged to Don John Bonaventure Morales and to tion, how far the judiciary, from the earliest times the Baron Carondelet, to grant and dispose of the to the present, have been the defenders of the peo- lands of Spain in Louisiana, previously to the year ple's liberties against the oppressions of Govern- 180.3”—I transmit a report from the Secretary of the ment; how much their zeal has been increased or | Treasury, submitting a letter of the Commissioner of


Matthew Lyon Public Lands.

JANUARY, 1821.

the General Land Office, with the document to which tucky, King of Alabama, Lowrie, Macon, Pleasants, it refers.

Roberts, Ruggles, Sanford, Stokes, Talbot, Thomas,

JAMES MONROE. Trimble, Walker of Alabama, and Williams of MisJANUARY 18, 1821.

sissippi-19. The Message and accompanying documents So the report and resolutions were rejected. were read.

Mr. Barbour then gave notice that he should NEHEMIAH R. Knight, appointed a Senator by on Monday ask leave to bring in a bill for the the Legislature of the State of Rhode Island and relief of Matthew Lyon. Providence Plantations, to supply the vacancy oc

PUBLIC LANDS. casioned by the death of James Burrill, jr., pro

Mr. Talbot communicated the following preduced his credentials, was qualified, and took his seat in the Senate.

amble and resolutions of the Legislature of the The credentials of James Noble, appointed a

State of Kentucky, which were read: Senator by the Legislature of the State of Indi- “ Whereas many of the citizens of this commonana, for the term of six years, commencing on the wealth, allured by the prospect of increasing their fourth day of March next, were read, and laid on wealth, or procuring a more desirable home for them. file.

selves or their posterity, which the uninterrupted Mr. King, of New York, presented the memo- growth of the Western country presented to activity rial of Archibald Gracie, and sons, and others, of the United States, under a well-founded confidence

and enterprise, became purchasers of the public lands shipowners and merchants of the city of New that the earnings of honest labor, the profits of fair York, praying an extension of the time allowed trade, or the sale of their other property, would speeby law for unlading ships and vessels arriving in dily enable them to fulfil their engagements to the the ports of the United States; and the memorial public: Whereas the unexpected depression in the was read and referred to the Committee on Fi- price of labor and of property, the stagnation of trade, nance.

and the derangement of the local currency in the The bill, reported yesterday by Mr. HORSEY, Western States, rendering it unfit for the payment of from the Committee on the District of Columbia, dues at the several land offices, have darkened the authorizing the sale of certain lots on the public fairest prospects, deprived the public debtors of their reservation numbered 10, in the city of Washing- power to fulfil engagements made in good faith, and ton, (the lots on C and on 44 streets,) was read a thrown upon them and their country an accumulated second time.

load of debt and distress, which no foresight could

avert and no exertion can remove: Whereas, in ad. SEDITION LAW-MATTHEW LYON. dition to all these events, the Congress of the United The Senate then resumed the consideration of States have, by the act of April

, 1820, reducing the the resolutions declaring the late sedition law un- price of public lands, deprived the debtors of their last constitutional, and to indemnify those who suffered their purchases, and thereby raise the means to fulfi!

resource, and rendered them unable to sell any part of damages under it—the motion of Mr. Walker, of their engagements ; by which events and act the said Georgia, made some days ago, to postpone the re- purchasers are in danger not only of forfeiting their solutions indefinitely, being still under consider-whole purchases, but of losing the money already paid, ation.

and are reduced to the humble necessity of resigning Mr. BARBOUR again addressed the Senate in themselves to their fate, or soliciting indulgence for an support of the resolutions, and in reply to their indefinite period at the hand of their Government, opponents.

with expense to themselves and injury to their counMr. Smith also again spoke in reply to Mr. try : And whereas it is not the interest or policy of a BARBOUR and others who advocated the resolu- free Government to push the citizen beyond his abili. tions.

ty, nor rigidly exact a forfeiture of his property when Mr. Macon likewise spoke again in support of such penalty is neither merited by any wilful delinthe resolutions, and in defence of the opinions he quency, nor useful in affording a salutary public exhad previously advanced.

ample, it is, in the opinion of this General Assembly, postponing the resolutions, though he preferred lands from this oppressive debt, on terms equitable to

Mr. Holmes, of Maine, spoke at length against the duty of the Congress of the United States, as it is legislating for the particular case of Matthew them and just to the Government: Wherefore, Lyon.

Resolved by the Senate and House of Representa. Mr. WALKER, of Georgia, spoke again to vindi- tives of the Commonwealth of Kentucky, That our cate his opposition to these resolutions.

Senators in Congress be instructed, and our RepreThe question was then taken on the indefinite sentatives requested, to use their exertions to procure postponement of the resolutions, and was decided the passage of a law permitting the purchasers of pubin the affirmative, as follows:

lic lands at private sale to apply the instalments alYeas-Messrs. Chandler, Dana, Eaton, Elliott, ready paid to the payment in full for such portion of Gaillard, Horsey, Hunter, Johnson of Louisiana, King their purchases as such instalments may be adequate of New York, Lanman, Lloyd, Mills, Morril, Noble, to pay for, at the price of two dollars per acre, and to Otis, Palmer, Parrott, Pinkney, Smith, Taylor, Tich- relinquish the balance of their purchases to the United enor, Van Dyke, Walker of Georgia, and Williams of States. Tennessee-24.

Resolved, That our Senators and Representatives Nars-Messrs. Barbour, Brown, Dickerson, Holmes in Congress be, and they are hereby, requested to of Maine, Holmes of Mississippi, Johnson of Ken- present the foregoing preamble and resolution to the

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