However much Mr. Adams might have been hurt at the asperity of the language applied to him, I am confident he never intimated a wish in favor of a prosecution. Most probably this took place in consequence of the advice of those who advised that Robbins should be given up. About this time Mr. Adams thought proper to repress the zeal of his political friends by pardoning Fries, who had been guilty of a misdemeanor, but was convicted of treason, and by other acts evincing a disposition to pursue a more moderate system than that which had prevailed for two preceding years. It will also be remembered, that, not long after this period, he dismissed some of his advisers, in whom he had probably placed too much confidence.

At the present time of good feelings it seems incredible, that what Mr. Cooper said of the expenses of a permanent navy-of the standing army-the eight per cent. loan, and the projected embassies to Prussia, Russia, and the Sublime Porte, should have been considered as the subject of indictment. What was said as to the case of Jonathan Robbins, otherwise called Thomas Nash, was of a more serious character, and should have been answered, if it could have been answered, by a true history of that transaction-not by punishing Mr. Cooper; for, if this interference on the part of the President, was without precedent against law and against mercy, fining and imprisoning Mr. Cooper could not make it otherwise.

It has never been pretended that there was any precedent for delivering up Robbins. He had been charged with piracy and murder on board the British sloop Hermione, and demanded by the British minister. His case was depending before Judge Bee, of South Carolina. He alleged that he was a native citizen of the United States, and that he had been forcibly impressed on board the Hermione. If his story had been true, it will not be pretended by those who recollect the history connected with that transaction that he ought to have been given up. But, as he averred it to be true, and produced his passport under the authority of the United States, in support of his assertion, the proof that he stated a falsehood should have been so complete as to leave no loop to hang a doubt upon, before he should ever have been given up to certain death. The proof, if it deserves the name, was of a very doubtful character as to this point. While the case was thus before the Judge, Mr. Pickering, then Secretary of State, wrote a letter to the Judge, containing, among others, this expression:

JANUARY, 1821.

was not a native of this country; I hope to Heaven he was not.

But, if it had been otherwise; if it had turned out upon this posthumous trial, that his story was true, it would have been a source of lasting regret to Mr. Adams; and, had he known precisely how the case stood before Judge Bee, sure I am he would not have interfered in the manner he did. He was governed, no doubt, by a rigid sense of justice, and a regard for the conditions of our treaty with Great Britain. But I have ever thought, and still think, the act was precipitate, and peculiarly unfortunate. Mr. Cooper, without doubt, thought this interference was without precedent, because no such case had happened before. He thought it against law, because the facts alleged by Robbins, as to his birth and impressment, should have been ascertained with certainty before he was delivered up. He thought it against mercy, because the man was delivered up to certain death. Such were the opinions of Mr. Cooper; opinions which, under our free system of Government, he ought to have been allowed to express and publish, without being dragged before a criminal court, or sentenced to a loathsome prison. Yet for this he was sentenced to pay a fine of four hundred dollars, to be imprisoned for the term of six months, and to enter into recognizance for his good behavior after that period, himself in one thousand dollars, with two sureties in five hundred dollars each. And was this no abridgment of the liberty of the press? The press is more free under the monarchy of Great Britain.

A further examination of this trial will show that the difficulty of proving facts and opinions of common notoriety, under this law, was such as to leave no chance of escape to any one indicted under it; and, accordingly, I believe none did escape. Judge Chase, in his charge to the jury, observed, that:

"The traverser, in his defence, must prove every charge he has made to be true. He must prove it to the marrow. If he asserts three things, and proves but one, he fails; if he proves two, he fails in his defence, for he must prove the whole of his assertions to be true. If he were to prove that the President paragraph of the publication; though he should prove had done every thing charged against him in the first to your satisfaction, that the President had interfered to influence the decisions of a court of justice; that he had delivered up Jonathan Robbins without precedent, against law and against mercy, this would not be sufficient unless he proved, at the same time, that Jonathan Robbins was a native American, and had been forcibly impressed and compelled to serve on board a British ship of war."

Whether Robbins, or, as he is called in this letter, Nash, was or was not a native citizen, will probably never be known with certainty. After he was hung in chains, a strong disposition was discovered to try his case, and great pains were taken to prove that he was not a native of the town in which he said he was born. Probably he

law which allows the truth to be given in evidence. Indeed, that part of the act appears a mere mockery, when we read this trial, and see the difficulty of proving facts and opinions of common notoriety, by the technical nicety of the common law.

If the Government in 1798 had been sufficiently strong, as, thank Heaven! they were not, to give permanency to such a law, and such an adminis

tration of the law, there would have been an end to our boasted liberty of the press. The silence of despotism would have pervaded the Union, communicating a palsy to every part of our Constitution, which was intended to retard the march of aristocracy, or to defend the just rights of the great body of the people.

The friends of the sedition act say that Congress were authorized to pass it, as a law necessary and proper for carrying into effect the powers vested by the Constitution in the Government, under the 8th section of the 1st article of the Constitution.

This part of the Constitution is very elastic, and some gentleman discovered that under it Congress may do what they please, by simply making the word necessary mean convenient. But I cannot imagine what power vested by the Constitution in the Government it was necessary to carry into effect by the sedition act. That no such necessity as is alleged did exist is evident from this circumstance, that the Government went on very well before that act passed, and quite as well since it has expired. However convenient, therefore, the law might have been, it certainly was not necessary. If it was necessary in the meaning of the Constitution, it was indispensably necessary-not partly necessary. If necessary then, it must be necessary now, and Congress must of course be neglecting their duty in not reviving that law. But the most extraordinary reason offered for passing that law is, that it was part of a system of national defence. If so, it must be required by that part of our Constitution which imposes it as a duty upon Congress to provide for the common defence. Whether this bill was recommended by the Secretary of War, or reported by the Committee on Military Affairs, I have not inquired; but, if it was intended as a part of our system of national defence, it should have been incorporated into the bill for establishing a navy, or for raising a standing army, or for arming the whole body of the militia of the United States. If national defence was the object of the bill, it should have appeared in some of its sections, or in its preamble, or in its title; its duration should have been limited to the period of the just and necessary war which it was then intended if posssible to get up against France; instead of which it was limited, with an aspect somewhat ominous, to the third of March, 1801-the very day on which the Administration which it was meant to support ceased to exist. From all which it has been suspected that this act was no part of a system of defence for the nation, but for a party-a defence of the ins against the outs a defence of a falling administration against the people who had determined to change their public servants.

We are now in effect to declare this act to have been Constitutional or unconstitutional. If we do the latter, we correct not the errors of the court, but of Congress. If the law was not Constitutional when passed, the decisions of the court could not make it so. Probably the court did not think that a question for them to decide. The act was a legislative construction of the Constitution expressly.

SENATE.

It was opposed and supported on Constitutional grounds, and is a declaration of the three branches of the Legislature of the meaning of the Constitution in this particular. And it is not yet ascertained that, in construing the Constitution, Congress is subordinate to the Judiciary. Probably the first decisive experiment upon this subject will prove the contrary.

The honorable gentleman from Georgia (Mr. WALKER) informed us that, as long as the act was in force, Constitutional or unconstitutional, it was the law of the land, and we were bound to obey its dictates. If it was the law of the land, it was the duty of the judges to see it enforced. The act, though not declaratory of the common law, was declaratory of the Constitution, or meant to be so. And the Judiciary considered that they were bound to carry it into effect, leaving those by which it was enacted to be responsible for its consequences.

If Congress infringe the Constitution, can they not heal the breach? If not, this is the most unfortunate instrument ever devised by man as a system of Government-subject indeed to the laws of decay and dissolution, without the possibility of redemption. If such be the case, our delightful anticipations of transmitting this instrument unimpaired to the latest posterity are idle dreams-the baseless fabric of a vision. But I trust, sir, there is a redeeming spirit, by which this sacred charter of our liberties, when violently and insidiously invaded, may be restored to its pristine purity.

If the last Congress had passed an act limited to the duration of the Congress, levying a duty on articles exported from the United States, with proper and penal clauses to enforce obedience; and if some individual with the spirit of Hampden had refused obedience to the law, and had been fined by the court for such disobedience one thousand dollars, and that fine had gone into our Treasury; can any one doubt that the present Congress would restore the money, and by that act virtually declare the former to have been unconstitutional?

We do not assume an appellate jurisdiction over the courts, but declare the law under which they acted null and void-the proceedings under it to have been coram non judice-the fines to have been levied in direct violation of our Constitution, and consequently no part of the lawful revenue of the country. We restore the money to those from whom it was extorted, agreeably to the dictates of common honesty.

The honorable gentleman from Georgia wishes to know in what part of the Constitution we are authorized to make donations. I leave that to be discovered by those who so frequently vote for donations. At present, no donation is contemplated. If we restore the money to Matthew Lyon, it will · be an act of justice, not of favor.

But, the honorable gentleman makes himself somewhat merry with what he calls the modesty of Matthew Lyon. This petitioner, he says, very modestly asks, not only for the thousand dollars, but for interest, costs, and damages, and his pay as a member of Congress; and he apprehends the petitioner has a design to drain our Treasury. Most of those, sir, who make applications to Congress,

take especial care never to lose any thing by not asking for enough. But I can see nothing so unreasonable in the petition of Matthew Lyon; for, if we should grant all he asks, it would fall far short of an indemnity for all his losses. But we are bound to restore what we have taken from him, with interest. Perhaps he will consider the eulogiums he has received as a sort of set-off against the residue of his claim; if not, he seems to be without remedy.

If Congress had repealed the law as unconstitutional, would they not have restored the money levied under it? Those who consider that the act should never have passed, as being unconstitutional, must be of opinion that our Treasury should not be replenished by such means; and, if so, can we conscientiously consider the money thus acquired as ours, unless indeed long possession has made it so, and we are to profit by our own neglect to do justice?

I do not think it necessary to search for precedents to justify us in the measure now proposed. If we have no precedent let us make one that may be a memento to dominant parties not to abuse their power. But if precedents were necessary, we may find enough in the history of England, not in that of our own country; for, fortunately for us, our history affords but a few instances of the abuse of power. For such precedents we need not go back to the heavy time of York and Lancaster, when the triumphant party constantly reversed all that had been done by the party subdued. We may look into a later period, when the Stuarts and their immediate successors were upon the throne, when the principles of liberty were much better understood than practised.

The attainder of the Earl of Strafford, who had been treacherously given up by a cowardly King to the indignation of Parliament, was reversed. The attainders against Algernon Sidney and against Lord Russell were reversed.

The attainder against Alderman Cornish was reversed, as also that against Lady Lisle, and many others. In these cases, it is true, the Parliament only reversed their own proceedings. But they sometimes reversed the proceedings of other courts, as in the case of Bastwick, Burton, and Prynne, who were tried in the court of Star Chamber, for libels, and sentenced to lose their ears, to pay a fine of five thousand pounds each, and to be imprisoned for life. This is a very strong case, and in point; for the Parliament not only reversed the sentence, but remitted the fine, and ordered satisfaction for damages to the parties injured.

I must ask the indulgence of the Senate while I read a few passages from the proceedings in this extraordinary case. I shall read them for the edification of those who are, who have been, or who hereafter may be, in favor of a sedition act.

Dr. Bastwick, Mr. Burton, and Mr. Prynne, had written some religious books, in which were contained some reflections on the Bishops, which were deemed libellous. Mr. Prynne, three years before this time, had written a book in which he censured stage plays, music, and dancing, for

6

JANUARY, 1821.

which he was punished by the loss of his ears. "Between eight and nine o'clock in the morning, the fourteenth of June, [1637,] the Lords being set in their places, in the said court of Star Chamber, and casting their eyes at the prisoners, then at the bar, Sir John Finch, Chief Justice of the Common Pleas, began to speak after this manner:*

"I had thought Mr. Prynne had no ears, but methinks he hath ears; which caused many of the Lords to take a stricter view of him; and, for their better satisfaction, the usher of the court was commanded to turn up his hair and show his ears; upon the sight whereof, the Lords were displeased that they had been formerly no more cut off, and cast out some disgraceful words of him.

To which Mr. Prynne replied, My Lords, there is never a one of your honors but would be sorry to have your ears as mine are.

"The Lord Keeper replied again, In good faith, he is somewhat saucy.

offended; I pray God to give you ears to hear.

"I hope, said Mr. Prynne, your honors will not be

"The business of the day, said the Lord Keeper, is to proceed on the prisoner at the bar.

"Mr. Prynne then humbly desired the court to give him leave to make a motion or two; which being granted, he moves :

66

First, that their honors would be pleased to accept of a cross bill against the prelates, signed with their own hands, being that which stands with the justice of the court, which he humbly craved, and so tendered it.

"Lord Keeper. As for your cross bill, it is not the business of the day; hereafter, if the court should see just cause, and that it savors not of libelling, we may accept of it; for my part, I have not seen it, but have heard somewhat of it.

We are

"Mr. Prynne. I hope your honors will not refuse it, being, as it is, on His Majesty's behalf. His Majesty's subjects, and therefore require the jus

tice of the court.

"Lord Keeper. But this is not the business of the day.

"Mr. Prynne. Why then, my Lords, I have a second motion, which I humbly pray your honors to grant, which is, that your Lordships will please to dismiss the prelates, here now sitting, from having any voice in the censure of this cause, being generally known to be adversaries, as being no way agreeable with equity or reason, that they who are our adversaries should be our judges; therefore I humbly crave they may be expunged out of the court.

"Lord Keeper. In good faith it is a sweet motion; is it not? Herein you are become libellous; and if you should thus libel all the Lords and reverend judges as you do the reverend prelates, by this your plea, you would have none to pass sentence upon you for your libelling, because they are parties."

The whole trial is very interesting. I proceed to the sentence.

"Thus the prisoners, desiring to speak a little more for themselves, were commanded to silence. And so the Lords proceed to censure.

"The Lord Cettington's censure:-I condemn these three men to lose their ears, in the palace-yard

* Harleian Miscellany, vol. 4, p. 220.

at Westminster, to be fined five thousand pounds a man to His Majesty, and to perpetual imprisonment, in three remote places in the kingdom, namely, the castles of Caernarvon, Cornwall, and Lancaster. "The Lord Finch addeth to this censure:

SENATE.

I omit what is said of the punishment of Dr. Bastwick and Mr. Burton, which was inflicted with great cruelty, but that of Mr. Prynne deserves a particular notice:

"Now the executioner being come to sear him and cut off his ears, Mr. Prynne said these words to him: Come, friend, come burn me, cut me; I fear not; I have learned to fear the fire of hell, and not what man can do unto me. Come, sear me, sear me; I shall bear in my body the marks of the Lord Jesus; which the bloody executioner performed with extraordinary cruelty, heating his iron twice to burn one cheek, and cut one of his ears so close that he cut off a piece of his cheek. At which exquisite torture he never moved with his body, or as much as changed his countenance, but still looked up as well as he could towards Heaven, with a smiling countenance, even to the astonishment of all the beholders, and uttering, as soon as the executioner had done, this heavenly sentence: “The more I am beaten down, the more I am lift up."

What protection was afforded to these wretched men by the common law, the law in which they lived, and moved, and had their being?

The honorable gentleman from Georgia admonishes us not to destroy the independence of the judiciary, the bulwark of the liberties of the people. We shall not, in the measure now proposed, in the slightest degree, interfere with the independence of the judiciary. It must be a matter of indifference to them what we do with the sedition act; it cannot affect their emoluments. I have understood that the independency of the judiciary was regulated by the greater or less permanency in the tenure of their office, and the greater or less certainty in the payment of their fixed salaries.

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 of the people. By which he must mean, defenders of the people against the oppressions of the Government. From what I witnessed in the years 1798, 1799, and 1800, I never shall, I never can, consider our judiciary as the bulwark of the liberties of the people. The people must look out for other bulwarks for their liberties. I have the most profound respect for the learning, talents, and integrity, of the honorable judges who fill our Federal bench. But, if those who carried into effect the sedition act are to be called the people's defenders, it must be for nearly the same reason that the Fates were called Parca-quia non parcebant. It would be a subject of curious investigation, how far the judiciary, from the earliest times to the present, have been the defenders of the people's liberties against the oppressions of Government; how much their zeal has been increased or

present are unnecessary.

An observation or two more, and I will trespass no longer upon the patience of the Senate.

I hope the motion for indefinite postponement will not prevail. I hope that we shall pass the resolution; that we shall restore to Matthew Lyon the money that has been extorted from him; and, more especially, I hope we shall, as far as in us lies, repair the breach made in our Constitution by the sedition act. But the honorable gentleman from Georgia sees no such breach, but thinks we shall make one by adopting the present resolution; and he now implores us not to disturb this sacred instrument of our Union, which he considers as the sun of our political firmament. We gaze upon the meridian sun till we are dazzled with his splendors, and can see none of his imperfections. But, if we view him through a misty atmosphere, or, in imitation of children, through a smoked glass, we have a less splendid, but more distinct view of this luminary. We see the dark spots which deform his disk. So the honorable gentleman, taking a lofty view of the sun of our political firmament, through an attenuated atmosphere, is dazzled with its splendor-sees nothing but light and perfection. But, if he would condescend to view it through a more obscure and dense medium, he would see in this luminary certain dark spots, indicative of decay. He would perceive, sir, that its first amendment, once its most resplendent limb, is now obscured in dim eclipse, shorn of its beams, shedding around "disastrous twilight."

When Mr. D. had concluded

tions. Mr. MORRIL spoke at length against the resolu

Mr. ROBERTS spoke in favor of the resolutions. Mr. DANA replied to Mr. R. and others; and the Senate adjourned.

SATURDAY, January 20.

The PRESIDENT communicated a letter from the Secretary of the Navy, transmitting, for the use of the members of the Senate, sixty copies of the Naval Register for the year 1821; and the letter was read.

The following Message was received from the PRESIDENT OF THE UNITED STATES: To the Senate of the United States:

In compliance with a resolution of the Senate of the 4th instant, "requesting the President of the United States to communicate to the Senate any information he may have, as to the power or authority which belonged to Don John Bonaventure Morales and to the Baron Carondelet, to grant and dispose of the lands of Spain in Louisiana, previously to the year 1803"-I transmit a report from the Secretary of the Treasury, submitting a letter of the Commissioner of