78; also 162.]
Mr. Fries was indicted for treason. The Judiciary Act of Congress of
1789 provides that "in cases punishable with death the trial shall be
had in the county where the offence was committed; or when that cannot
be done without great inconvenience, twelve petit jurors at least
shall be summoned from thence." The offence was committed in
Northampton county, and he was indicted and brought to trial in
Philadelphia county, nor could the court be induced to comply with the
statute!
The government laid down the law and constructed treason with the
usual ingenuity of officials working by the job. Judge Kelyng's loose
opinion that an attack on a brothel was high treason, was cited by Mr.
Rawle, the District Attorney, as good law.[155] What "in England is
called constructive levying of war, in this country must be called
direct levying of war." Judge Peters charged that though force was
necessary to constitute the crime of treason, yet "the quantum of
force is immaterial," of course it may be wielding a wheat straw, or a
word, I suppose. "The doctrine of constructive treason has produced
much real mischief in another country" [England]. "The _greater part
of the objections to it are irrelevant here_."
[Footnote 155: Wharton, 539; Kelyng, R. 70, 75.]
Fries was found guilty. His counsel moved for a new trial, on the
ground that before the trial one of the jurors had declared, "Fries
ought to be hung;" "I myself shall be in danger unless we hang them
all;" that the jurors were irregularly drawn, and the trial was not
held in the county where the offence was committed. Judge Iredell
ruled that it was "_a high contempt_ at this time _to call for a
renewal of an argument whereon a solemn, decisive opinion was
delivered_." Judge Peters declared the juror had "said no more than
all friends to the laws and the government were warranted in thinking
and saying." Yet a new trial was granted.
The new trial was held before Judge Chase, who had, as Mr. Wharton
says, a "singular instinct for tumults which scents it at a distance
... and irresistibly impels a participation in it," "moving
perpetually with a mob at his heels." Yet "apart from his criminal
jurisdiction he was reckoned a wise and impartial judge, a master of
the Common Law, and a thorough and indefatigable administrator of
public functions." "It was this despotic ardor of temperament ...
which made him, when a young man, employ with resolute audacity the
engine of popular revolt, and which led him when older, and when in
possession of that power against which he had so steadily warred, to
wield with the same vigor the sword of constituted authority."[156]
Gentlemen, he was like many that this Honorable Court perhaps have
known, who were privateering Democrats in 1812, and Kidnapping Whigs
in 1850. To him we are indebted for the invaluable decision that the
United States courts have no Common Law jurisdiction.
[Footnote 156: 4 Hildreth, 571; 1 Gibbs, 300; 2 Gibbs, 419.]
At this new trial he treated the defendants' counsel in such a manner
that they abandoned the case, and left the Prisoner without defence.
The District Attorney, taking his law from Kelyng and similar servants
of British despots, laid it down that treason "may consist in
_assembling together in numbers_, and by actual force, or by terror,
_opposing any particular law_;" "_Force need not be used_ to manifest
this spirit of rebellion." "Even _if the matter made a grievance of
was illegal, the demolition of it_ in this way _was_, nevertheless,
_treason_," "a rising with intent by force to prevent the execution of
a law ... preventing the marshal executing his warrants, and
preventing the other officers ... amounted to levying war." "In short
an opposition to the acts of Congress in whole or in part [that is to
_any one law_] ... either by collecting numbers, or by a display of
force ... which should operate ... either throughout the United
States, or in _any part thereof to procure a repeal or a suspension_
of the law ... this offence be considered to be _strictly_ treason."
Judge Chase laid it down as law not to be questioned in his court,
"that any ... rising of any body of the people ... to attain by force
... any object of a great public nature ... is a levying of war:"
"any such ... rising to resist ... the execution of any statutes of
United States ... or for any other object of a general nature or
national concern, under any pretence as that the statute was unjust
... or unconstitutional is a levying war;" "_any force ... will
constitute the crime_ of levying war."
If that be law, then an old negro woman who, with a dishcloth,
frightens officer Butman away from kidnapping her granddaughter in
Southac street, does thereby levy war against the United States and
commits the crime of treason.
The jury, overborne by the assumptions of the judge, or ignorant of
their duties and their rights, allowed this tyrannical court to have
its way, surrendered the necks of the people, and brought in a verdict
of guilty. Judge Chase made an insolent address to the prisoner and
sentenced him to death. But Mr. Adams, with a remarkable degree of
justice, gave him a full pardon, and drew down upon himself thereby
the wrath of his cabinet.[157]
[Footnote 157: Wheaton, 458; 9 Adams's Works, 57; 2 Gibbs, 360; 5
Hildreth, 366; Chase's Trial, 18.]
2. In 1788 Mathew Lyon, a native of Ireland, a Revolutionary soldier,
a member of congress, and editor of a newspaper in Vermont, was
brought to trial under the Sedition Law, for a false, malicious, and
seditious libel. He had published in his newspaper a somewhat severe
attack on the Federalists then in power. The article, alleged to be
"seditious," was a letter written and mailed at the seat of government
seven days before, and published nine days after, the passage of the
Sedition Law itself. It was as much a political trial, Gentlemen, as
this--purely political. Judge Patterson--United States Circuit Judge
of Vermont--charged that the jury had nothing whatever to do with the
constitutionality of the Sedition Law. "Congress has said that the
author and publisher of seditious libels is to be punished." "The only
question you are to determine is ... Did Mr. Lyon publish the
writing?... Did he do so seditiously, with the intent of making odious
or contemptible the President and government, and bringing them both
into disrepute?"
Mr. Lyon was found guilty, and punished by a fine of $1,000 and
imprisonment for four months. The "Seditious Libel" would now be
thought a quite moderate Editorial or "Letter from our Correspondent."
His imprisonment was enforced with such rigor that his constituents
threatened to tear down the jail, which he prevented.[158]
[Footnote 158: Wharton, 333; 4 Jefferson's Works (1853), 262.]
3. In 1799 Thomas Cooper, a native of England, residing at
Northumberland, Pennsylvania, published a handbill reflecting severely
on the conduct of President Adams. He was prosecuted by an
Information _ex officio_, in the Circuit Court for Pennsylvania, and
brought to trial before Judge Chase, already referred to, charged with
a "false, scandalous, and malicious attack" on the President. Mr.
Chase charged the jury, "A Republican government can only be destroyed
in two ways: the introduction of luxury, or the licentiousness of the
press. This latter is the more slow, but most sure and certain means
of bringing about the destruction of the government." He made a fierce
and violent harangue, arguing the case against the defendant with the
spirit which has since become so notorious in the United States courts
in that State. The pliant jury found Mr. Cooper guilty, and he was
fined $400 and sent to jail for six months. He subsequently became a
judge in Pennsylvania, as conspicuous for judicial tyranny as Mr.
Chase himself, and was removed by Address of the Legislature from his
seat, but afterwards went to South Carolina where he became Professor
at her college, and a famous nullifier in 1830.[159]
[Footnote 159: Wharton, 659.]
4. In 1799, or 1800, Mr. Callender, a native of England, then residing
at Richmond, in Virginia--a base and mean fellow, as his whole history
proved, depraved in morals and malignant in temper--published a
pamphlet called "The Prospect before us," full of the common abuse of
Mr. Adams and his administration. He was indicted for a false,
malicious, and seditious libel, and brought to trial before Judge
Chase who pressed the Sedition Law with inquisitorial energy and
executed it with intolerant rigor.[160] As he started for Richmond to
hold the trial, he declared "he would teach the lawyers in Virginia
the difference between the liberty and the licentiousness of the
press." He told the marshal "not to put any of those creatures called
Democrats on the jury,"--it does not appear that he had his own
Brother-in-Law on it however;--"he likened himself to a schoolmaster
who was to turn the unruly boys of the Virginia courts over his knee
and give them a little wholesome chastisement."
[Footnote 160: Wharton, 45, 688; Chase's Trial, 33; 4 Jefferson, 445,
447.]
Some of the ablest lawyers in Virginia were engaged for the defence.
But they could not secure any decent regard to the common forms of
law, or to the claims of justice. He would not grant the delay always
usual in such cases, and indispensable to the defence. He refused to
allow the defendants' counsel to examine their most important witness,
and allowed them to put none but written questions approved of by him!
The defendant was not allowed to prove the truth of any statements,
alleged to be libellous, by establishing the truth of one part through
one witness and of another through a different one. He would not allow
him to argue to the jury that the law was unconstitutional. "We all
know that juries have the right to decide the law as well as the fact,
and the Constitution is the Supreme law of the land." "Then," said
Mr. Wirt, "since the jury have a right to consider the law, and since
the Constitution is law, it is certainly syllogistic that the jury
have a right to consider the Constitution;" and the judge exclaimed,
"a _non sequitur_, Sir!" "Sit down, Sir!" Mr. Wirt sat down. The judge
declared "a right is given to the jury to determine what the law is in
the case before them, and not to decide whether a statute is a law or
not, or whether it is void, under an opinion that it is
unconstitutional." "It appears to me the right now claimed has a
direct tendency to dissolve the Union." "No citizen of knowledge and
information ... will believe, without very strong and indubitable
proof, that Congress will, intentionally, make any law in violation of
the Federal Constitution." "If such a case should happen, the mode of
redress is pointed out in the Constitution." It was obvious that
Congress had made laws in violation of the Constitution, and he
insisted that the jury should enforce those laws against their own
conscience. After all his violent injustice he of course declared "the
decisions of courts of justice will not be influenced by political and
_local_ principles and prejudices." The packed jury found the prisoner
guilty. He was fined $200 and sent to jail for nine months.
But Virginia was too high-spirited to bear this. Nay, Gentlemen of the
Jury, the whole Nation then was too fond of justice and liberty to
allow such wickedness to proceed in the name of law. "Virginia was in
a flame;" the lawyers "throughout the country were stung to the
quick." They had not been so long under the slave-power then as now.
At this day, Gentlemen, such conduct, such insolence, yet more
oppressive, rouses no general indignation in the lawyers. But then the
Alien and Sedition Laws ruined the Administration, and sent Mr.
Adams--who yet never favored them--from his seat; his successor, Mr.
Jefferson, says, "_I discharged every person under punishment_, or
prosecution, _under the Sedition Law, because I considered and now
consider, that law to be a nullity as absolute and as palpable as if
Congress had ordered us to fall down and worship a golden
image_."[161] Judge Chase was impeached by the House of
Representatives, tried by the Senate, and only escaped condemnation by
the prejudice of the political partisans. As it was, a majority were
in favor of his condemnation. But the Constitution, properly, requires
two thirds. Judge Chase escaped by this provision. But his influence
was gone.
[Footnote 161: 4 Jefferson, Correspondence in Wharton, 721.]
The Alien and Sedition Laws, which sought to gag the People, and make
a Speech a "misdemeanor," soon went to their own place; and on the 4th
of July, 1840, Congress passed a law to pay Mr. Lyon and others the
full amount of the fine and costs levied upon them, with interest to
the date of payment: a Committee of the House had made a report on
Lyon's case, stating that "the law was unconstitutional, null, and
void, passed under a mistaken exercise of undelegated power, and that
the mistake ought to be remedied by returning the fine so obtained,
with interest thereon."[162] Just now, Gentlemen, Judge Chase and the
principles of the Sedition Law appear to be in high favor with the
Federal Courts: but one day the fugitive slave bill will follow the
Alien and Sedition Bill, and Congress will refund all the money it has
wrenched unjustly from victims of the Court. There is a To-morrow
after to-day, and a Higher Law which crushes all fugitive slave bills
into their kindred dust.
[Footnote 162: 2 Sess. 26th, Cong. Doc. 86, Ho. Rep.; Wharton, 344,
679. See also Virginia Resolutions (1850), and the remarks in the
Debates. Then Virginia was faithful to State Rights, and did a service
to the cause of Liberty which no subsequent misconduct should make us
forget.]
* * * * *
Gentlemen, allow me to vary this narrative of British and American
despotism by an example from a different nation. I will refresh you
with a case more nearly resembling that before you; it is an instance
of German tyranny. In 1853, Dr. Gervinus, Professor of History in the
University of Heidelberg in Germany, published this little volume of
about 200 pages,[163] "An Introduction to the History of the 19th
Century." Mr. Gervinus is one of the most enlightened men in the
world, a man of great genius for the philosophical investigation of
human history, and enriched with such culture and learning as is not
common even in that home of learned men. His book, designed only for
scholars, and hardly intelligible to the majority of readers even in
America, sets forth this great fact,--The democratic tendency of
mankind shown in all history.
[Footnote 163: 2 Einleitung in die Geschichte des neunzehnten
Jahrhunderts; Leipzig, 1853. 8vo. pp. 181.]
Gervinus was seized and brought to trial on the 24th of February,
1853, at Mannheim, charged with publishing a work against
constitutional monarchy, intending thereby to depose the lawful head
of the State, the Grand Duke Charles Leopold, and with changing and
endangering the constitution, "disturbing the public tranquillity and
order, and incurring the guilt of High Treason." In short he was
charged with "obstructing an officer" and attempting to "dissolve the
Union," with "levying war." For his trial the judge purposely selected
a small room, though four times larger than what now circumscribes the
dignity of this Honorable Court; he did not wish the people to hear
Gervinus's defence. But I will read you some extracts from the preface
to the English translation of his book:--
"I offer nothing purely theoretical or speculative, and as
few opinions and conclusions as can possibly be given in a
historical narrative. The work finally reaches a period
when the Present and the Future become its subject, and when
therefore it can no longer relate any events of history
which have been completed; and is confined to the simple
statement of _the Fact_ that opposite opinions exist, and
may yet be advanced, concerning the problem of the Future.
These opinions are themselves weighed against one another,
but their value is not determined by dogmas, or phrases, or
declamations, but simply by facts. If the balance incline
towards a more liberal form of government, towards
democratic institutions, and therefore towards
self-government, and the participation of the many rather
than of the few in the affairs of the State, I am not to
blame, nor is it my ordinance, but that of History and of
Providence. My work is only (what all historical narrative
should be) a vindication of the decrees of Providence; and
to revolt against them appears to me neither pious in a
moral point of view, nor wise in a political. That which is
proved by the most remarkable facts of History, will not be
altered in the smallest degree by the suppression of my
work, or by my condemnation. The charge on this head is an
absurdity, since no rational end can be attained by it. It
aims at the suppression of a truth which, should _I_ not
tell it, will be ever louder and louder proclaimed by the
_Facts of History_.
"To believe such a thing possible is a proof how limited an
idea exists of the eager inquiry going on after
knowledge--and truth, the source and origin of all
knowledge. There will always be so eager a demand for a
history of the Present time, that, even should _I_ be
prevented, ten others would arise, only to proclaim the
louder, and to repeat the oftener, the truth which is here
suppressed. To believe that the philosophy of History can be
silenced by persecution, argues an entire ignorance even of
the external mechanism of philosophy. A political pamphlet,
intended to serve a particular purpose at a particular
period, may be suppressed. The author of such a pamphlet,
bent on agitation, can easily console himself for its
suppression. It has cost him little time and trouble; it is
only a means to an end, one means out of many means, any of
which, when this is lost, will serve the author as well. But
it is not thus with philosophical works, it is not thus with
the work before me. This book is deeply rooted in the
vocation of my whole life, and is the end of my
philosophical research; I have prepared myself for it by the
labor of years, and the labor of years will be necessary for
its completion. I have reached a time of life when I can
neither change my vocation, nor even cease to labor in this
vocation. I am also so imbued with my philosophy, that even
if I could change I would not. I may be hindered in the
prosecution of this work for four months, but in the fifth I
shall return to it. For a judicial sentence cannot arrest
(like a mere pamphlet) the philosophical scheme interwoven
into a whole existence."
"If it is possible that this 'Introduction' can be condemned
in Germany, that it can be prohibited, that by these means
the work should be strangled in its birth, then the
philosophy of history has no longer a place in Germany. The
tribunal of Baden will have given the first blow, in
pronouncing judgment on a matter which is purely
philosophical, and Germany, whose freedom of philosophical
research has been her pride and her boast, of which even the
various administrations of the nation have never been
jealous, will receive a shock such as she never before
sustained."
"My book is on so strictly a philosophical plan, and treats
of such comprehensive historical questions, that, properly,
no judgment of any value could be pronounced upon it but by
the professed historian, of whom there are not two dozen in
all Germany. Among them there has not, to this hour, been
found one competent to give an opinion in a few weeks on a
book which is the fruit of half a life. On the other hand,
there was soon a whole set of fanatical partisans and
obstreperous bunglers in a neighboring press, who in eight
days had condemned this work, in some instances, by calling
it an historical commonplace, and in others, a political
pamphlet with '_destructive tendencies_.' At the same time,
and in a manner easily accounted for, under the influence
of such an expression of public opinion, and almost before
any other could make itself heard, accusations were made
against the book, and it was confiscated. Let no one take it
amiss if, in the urgency of my defence, _I_ for a moment lay
aside modesty, as far as such modesty might prove injurious
to my cause. My work demonstrates a law of historical
development, which I do not claim as my property, or as
originating in me, but which has been demonstrated more than
two thousand years ago by the greatest thinker of all ages,
derived from observations on the history of the Grecian
State. To repeat a law which has been already demonstrated,
ought to appear but a trifling circumstance, and indeed
might merit the term of an historical commonplace; we could
even suppose that it might be mentioned in a popular as well
as in a philosophical book. Nevertheless this law has
scarcely been twice repeated in the course of two thousand
years, and then only by two imitators, who scarcely
understood its whole purport, though they were the most
thinking heads of the most thinking nations--Machiavelli in
Italy, and Hegel in Germany. I solemnly ask of the whole
philosophical world if my words can be gainsaid, and to name
for me the third, by whom the Aristotelian law, of which I
speak, has been repeated and understood. I have ventured to
consider the thought of Aristotle, and to apply it to the
history of modern European States, and I found it confirmed
by a series of developments which have occupied two thousand
years. I also found that the whole series of events
confirmatory of this law (itself deduced from experience)
are not yet entirely fulfilled. Like the astronomer, who,
from a known fraction of the path of a newly discovered
planet, calculates its whole course, I ventured to divine
that which is still wanting, and which may yet take
centuries to complete. I turned silently to those whose
profession was the study of history, to prove the justice of
my calculations; I handed my book over to coming generations
and coming centuries, with the silent demand, when the
required series of events shall be fulfilled, then to
pronounce the final sentence, whether this law, and its
purport as now explained, be just or not. This is the
philosophical character, and these the contents of my
book--no more than was indispensably necessary to make this
calculation. And now comes the charge, and pronounces that
in the character of a pamphleteer, I have endeavored to
excite a revolution in the Grand Duchy of Baden, or in the
German Confederation."
On the 8th of March--it should have been the _fifth_--the thing came
to a close. On account of "his hostility to constitutional monarchy,
and his declaration of its weakness, his denial of its good-will
[towards the people], and his representing that the American Democracy
was a universal necessity and a desirable fact," sentence was
pronounced against him, condemning him to an imprisonment of four
months, and ordering his book to be destroyed. There was no Jury of
the People to try him! Here our own Court has an admirable precedent
for punishing me for a word.[164]
[Footnote 164: See Preface to English Translation of Gervinus (London,
1853); and Allg. Lit. Zeitung fuer 1853, pp. 867, 883, 931, 946, 994,
1131.]