SENATE.

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 manner:*

If Congress had repealed the law as unconstitutional, would they not have restored the money levied under it?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

"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

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

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

"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.

it, being, as it is, on His Majesty's behalf. We are His Majesty's subjects, and therefore require the jus

"Mr. Prynne. I hope your honors will not refuse

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: "Mr. Prynne to be stigmatized in the cheeks with two letters, S and L, for seditious libeller. To which all the Lords agreed."

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 cans 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

SENATE.

diminished by the certainty or uncertainty in the tenure of office; how far by an increase or diminution of salary; how much it has been affected by a fear of loss of office or salary on one side, or the hope of further promotion or increase of salary on the other. But such speculations at 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—

Mr. MORRIL spoke at length against the resolutions.

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

SENATE.

JANUARY, 1821.

JAMES MONROE.

JANUARY 18, 1821. The Message and accompanying documents were read.

NEHEMIAH R. KNIGHT, appointed a Senator by the Legislature of the State of Rhode Island and Providence Plantations, to supply the vacancy occasioned by the death of James Burrill, jr., produced his credentials, was qualified, and took his seat in the Senate.

The credentials of JAMES NOBLE, appointed a Senator by the Legislature of the State of Indiana, for the term of six years, commencing on the fourth day of March next, were read, and laid on file.

Mr. KING, of New York, presented the memorial of Archibald Gracie, and sons, and others, shipowners and merchants of the city of New York, praying an extension of the time allowed by law for unlading ships and vessels arriving in the ports of the United States; and the memorial was read and referred to the Committee on Fi

Lyon.

Mr. WALKER, of Georgia, spoke again to vindicate his opposition to these resolutions.

The question was then taken on the indefinite postponement of the resolutions, and was decided in the affirmative, as follows:

YEAS-Messrs. Chandler, Dana, Eaton, Elliott, Gaillard, Horsey, Hunter, Johnson of Louisiana, King of New York, Lanman, Lloyd, Mills, Morril, Noble, Otis, Palmer, Parrott, Pinkney, Smith, Taylor, Tichenor, Van Dyke, Walker of Georgia, and Williams of Tennessee-24.

NAYS-Messrs. Barbour, Brown, Dickerson, Holmes of Maine, Holmes of Mississippi, Johnson of Ken

Roberts, Ruggles, Sanford, Stokes, Talbot, Thomas, Trimble, Walker of Alabama, and Williams of Mississippi-19.

So the report and resolutions were rejected. Mr. BARBOUR then gave notice that he should on Monday ask leave to bring in a bill for the relief of Matthew Lyon.

PUBLIC LANDS.

Mr. TALBOT communicated the following preamble and resolutions of the Legislature of the State of Kentucky, which were read :

"Whereas many of the citizens of this Commonwealth, allured by the prospect of increasing their wealth, or procuring a more desirable home for themselves or their posterity, which the uninterrupted growth of the Western country presented to activity of the United States, under a well-founded confidence and enterprise, became purchasers of the public lands that the earnings of honest labor, the profits of fair trade, or the sale of their other property, would speedily enable them to fulfil their engagements to the public: Whereas the unexpected depression in the price of labor and of property, the stagnation of trade, and the derangement of the local currency in the Western States, rendering it unfit for the payment of dues at the several land offices, have darkened the fairest prospects, deprived the public debtors of their power to fulfil engagements made in good faith, and thrown upon them and their country an accumulated load of debt and distress, which no foresight could avert and no exertion can remove: Whereas, in addition to all these events, the Congress of the United States have, by the act of April, 1820, reducing the price of public lands, deprived the debtors of their last resource, and rendered them unable to sell any part of their purchases, and thereby raise the means to fulfil their engagements; by which events and act the said purchasers are in danger not only of forfeiting their whole purchases, but of losing the money already paid, and are reduced to the humble necessity of resigning themselves to their fate, or soliciting indulgence for an indefinite period at the hand of their Government, with expense to themselves and injury to their country: And whereas it is not the interest or policy of a free Government to push the citizen beyond his ability, nor rigidly exact a forfeiture of his property when such penalty is neither merited by any wilful delinquency, nor useful in affording a salutary public example, it is, in the opinion of this General Assembly, the duty of the Congress of the United States, as it is lands from this oppressive debt, on terms equitable to within their power, to relieve the purchasers of public them and just to the Government: Wherefore,

"Resolved by the Senate and House of Representatives of the Commonwealth of Kentucky, That our Senators in Congress be instructed, and our Representatives requested, to use their exertions to procure the passage of a law permitting the purchasers of public lands at private sale to apply the instalments already paid to the payment in full for such portion of their purchases as such instalments may be adequate to pay for, at the price of two dollars per acre, and to relinquish the balance of their purchases to the United States.

"Resolved, That our Senators and Representatives in Congress be, and they are hereby, requested to present the foregoing preamble and resolution to the

SENATE.

JANUARY, 1821.

The second proposition is equally necessary to screen the purchaser from loss, and will equally secure the Government against any sacrifice. If a purchaser shall have entered a quarter section, (one hundred and sixty acres,) and shall have paid thereon only eighty dollars, the first instalment, it will not entitle him to a patent for any part of his purchase, as it will not have paid for eighty acres; or, if he shall have entered three-quarter sections, (four hundred and eighty acres,) and paid thereon only one instalment, two hundred and forty dollars, he will be entitled to a patent for eighty acres, amounting to one hundred and sixty dollars; but the remaining eighty dollars must be lost to him, unless relief be extended, by granting him time to complete his payment for an additional quantity of land. But most of these purchasers have paid more than the first instalment. They are generally an industrious, economical class of citizens, who, when they have been fortunate enough to collect small sums in return for their labor, pay them over to the land offices, as partial liquidations of the instalments due, or becoming due, for their lands, cheered by the animating prospect of being able one day to call that little portion of the wilderness on which their industry is creating perpetual smiles, their own. But all payments which either exceed or fall short of equal sums of one hundred and eighty dollars, the amount of purchase money for the smallest legal division of public land, must be forever lost to them and their families, unless the time shall also be extended, by which they may complete their payment for these aliquot parts of a section. One other course, it is true, might secure these over payments, which would be, to grant them certificates for such surpluses, receivable in payment for public lands; but no such provision is contained in the bill, and the relief proposed will be more for the interest of the Government, and quite as accommodating to the generality of those interested.

Let us have some regard to the character of those who need this relief. I mean the great body of this population, which must suffer without it. The question may seem to be local, from the particular interests which it involves; but no subject can, in reality, have a more extensive operation. It embraces the citizens of every section of every State in the Union; and the most useful and virtuous class of citizens, the honest, industrious farmers, by whose labors life and vigor are imparted

to every other, and from whose persevering enterprise our country derives all its treasures. These citizens have left their homes, to subdue the wilderness, and make it subservient to the welfare of man, there to provide a home for themselves and their numerous offspring. With this class of citizens the security of our liberties, and the energies of the Government rest. To them we owe our national safety and prosperity. Virtue and indean asylum with them. They already form an impregnable barrier against territorial invasion; and it is a duty which the Government owes no less to itself than to them, to protect them from injustice, from injury, from ruin. Withhold the relief which their peculiar necessities now demand, and you give a deadly blow to the brightest hopes of the nation. It will be like refusing the kind offices of paternal care to a perishing child, who, if nourished, is destined to be your support and comfort in declining age.

There may be some exceptions to this description of character, but the proportion is very small; and a good man will not leave all his children to starve, lest the sons of strangers eat their crumbs. All have paid their money, all are citizens, and we can make no discrimination. None will receive relief beyond what justice warrants; the Government will lose nothing by any, and the measure, even in relation to the least meritorious, is founded in reason and equity. If any difficulty shall seem to exist in correctly designating the part to be relinquished, it is easily surmounted by the proposition which I have the honor to make; that when actual settlements are made, the part retained shall include the improvements, or such part of them as shall be contained within a regular legal division of the section; and when no improvements are made the division to be decided by lot. This will remove every difficulty which might arise from submitting the decision to either of the parties.

Those citizens have a claim to the consideration of the Government founded in equity. The amount due to the Government for sales of public lands is something less than twenty-four millions of dollars. For lands on which that amount is due, there cannot have been paid less than eight millions of dollars-one-fourth part of the purchasemoney. And if one-half has been paid, then the money actually received is equal to the whole amount due. It is most probable that at least twelve millions have been paid; and if the relief shall be denied, this amount-the fruit of honest industry, drawn from the most virtuous and useful class of the community, the laboring husbandmen, into the public Treasury-must be forfeited and lost forever. Now, sir, let me inquire who among us is so lost to justice-so hardened against the cries of suffering innocence-that he would give his voice thus to fill the cup of misery, by replenishing the national coffers with twelve millions of dollars from this meritorious class of citizens, and then deprive them of the very lands which were designed to be purchased by that money? Let us bring this to a case betwixt individuals. Suppose one man