XII. CHAPTER saw any other newspaper; and its falsehoods and calumnies produced all the effect natural to an uncontradicted 1798. statement of fact. At present the mischief that can be done by falsehood and misrepresentation is comparatively limited, detection and exposure following too close. There is another circumstance, also, which must be taken into consideration before deciding too peremptorily upon the policy of the Sedition Law. That act was not supposed, by those who enacted it, to create any new offenses, or to impose any new punishments. Though the point had not yet come before the full bench of the Supreme Court, and though at a subsequent period, and after a complete change of judges, it was decided the other way, the opinion had been expressed on circuit, and was understood to be held by all the judges, Chase only excepted, that, independently of any authority expressly conferred by statute, the Federal courts possessed a common law jurisdiction over offenses against the United States, corresponding to the common law jurisdiction exercised by the state courts. The criminal jurisdiction of the state courts embraced two distinct classes of crimesstatute offenses, the nature and punishment of which were expressly defined by some statute, and common law offenses, as to which no statute provision existed, but which the courts, notwithstanding, had been accustomed to punish from time immemorial by fine and imprisonment. Now among these common law offenses, punishable as such in all the states, were libel and sedition; and what the common law as to libel was will be found stated in M Kean's charge above referred to. The same common law jurisdiction had been claimed for the Federal courts, and upon this claim had been founded the late attempt to indict Cobbett for a libel on the Spanish minister; and under the same supposed authority proceed XII. ings had been lately commenced against Bacho himself. CHAPTER Had this doctrine been well founded-nor was any express decision made to the contrary till fourteen years 1798. afterward-the Sedition Law was remedial and alleviative of the rigor of the existing law, since it not only limited the amount of fine and imprisonment, which by the common law were discretionary with the court, but in the case of seditious libels allowed also the advantage of giving the truth in evidence-a thing not permitted by the common law, and hitherto introduced only in the states of Pennsylvania, Delaware, and Vermont, and that by a special constitutional provision. Even in that very objectionable shape in which the bill came down from the Senate, it did but clothe with the form of law what had been the universal practice of the committees of safety at the commencement of the Revolution. There had been no hesitation at that moment in suppressing, by means as prompt as severe, any opposition, either by writing or speaking, to the new revolutionary governments; proceedings continued under laws for that purpose among the earliest enactments of the new states a species of legislation in which Virginia had taken the lead; one of her enactments of 1776 having served in part as a model for the Sedition Law. If these state acts were to be excused on the ground of necessity, and the impossibility of allowing free discussion at a moment when the existence of the nation was itself at stake an excuse very promptly allowed by the most ultra of the opposition for the severe measures of the French Directory in the suppression of anti-Republican journals the friends and supporters of the Federal administration, by whose votes the Sedition Law was passed, might claim the benefit of a similar apology. Party spirit was very fast rising to the pitch of civil war. Το CHAPTER the excited minds of the Federalists the conduct of the XII. opposition began to appear even more reprehensible than 1798. that of the Tories at the commencement of the Revolu tion. The Tory opposition of that time did but seek to maintain a colonial dependence which had long existed; and the exactions to which they urged submission had at least some color of constitutional right. The French Tories, for so the opposition began now to be designated, seemed bent upon reducing the United States into a dependence on France as new as it was degrading; and in their apparent willingness to submit to unrestrained depredations and to forced loans, they seemed ready to surrender in substance that very point of exterior taxation which had caused the revolt from British rule. What had been the old restrictions of Great Britain on the commerce of the colonies compared with the piratical depredations now made under French authority? What was a tax on tea, glass, and paints, compared with requisitions at the pleasure of the Directory? It seemed lamentable indeed to the Federalists that the terrible struggle of the Revolution should terminate at last, not in actual independence, but in the mere substitution of France as the mother country in place of Great Britain. The opposition, on the other hand, not less excited, vehemently retorted the charge of Toryism by accusing the government of an intention to restore the country to a state of at least semi-colonial dependence on Great Britain. The extent to which the opposition leaders were disposed to push matters may be judged of by a letter written by John Taylor, of Caroline, late one of the Virginia senators, and since his resignation of that post the leader of the dominant majority in the Virginia House of Delegates. It was time, so Taylor thought, "to estimate XII. the separate mass of Virginia and North Carolina with CHAPTER a view to their separate existence." Jefferson, to whom this letter had been shown, suggested to Taylor some 1798. reasons why this idea should not be pushed. "It is June 1. true," so he wrote, "that we are completely under the saddle of Massachusetts and Connecticut, and that they ride us very hard, cruelly insulting our feelings as well as exhausting our strength and subsistence. Their natural friends, the three other Eastern states, join them from a sort of family pride, and they have the art to divide certain other parts of the Union, so as to make use of them to govern the whole. This is not new; it is the old practice of despots to use a part of the people to keep the rest in order; and those who have once got an ascendency, and possessed themselves of all the resources of the nation, their revenues and offices, have immense means for retaining their advantage. But our present situation is not a natural one. The Republicans through every part of the Union say that it was the irresistible influence and popularity of General Washington, played off by the cunning of Hamilton, which turned the gov ernment over to anti-Republican hands, or turned the Republicans chosen by the people into anti-Republicans. He delivered it over to his successor in this state, and very untoward events since, improved with great artifice, have produced on the public mind the impressions But still, I repeat, this is not the natural state. Time alone would bring round an order more correspondent to the sentiments of our constituents. But are there no events impending which will do it within a few months the crisis with England, the public and authentic avowal of sentiments hostile to the leading principles of our Constitution, the prospect of a war in which we shall stand alone, land tax, stamp tax, increase of we see. CHAPTER public debt, &c.? Be this as it may, in every free and XII. deliberating society there must, from the nature of man, 1798. be opposite parties, and violent dissensions and discords, and one of these, for the most part, must prevail over the other for a longer or shorter time. Perhaps this party division is necessary to induce the one party to watch and to delate to the people the proceedings of the other. But if, on a temporary superiority of the one party, the other is to resort to a scission of the Union, no Federal government can ever exist. If to rid ourselves of the present rule of Massachusetts and Connecticut we break the Union, will the evil stop there? Suppose the New England States cut off, will our natures be changed? Are we not men still to the south of that, and with all the passions of men? Immediately we shall see a Pennsylvania and a Virginia party arise in the residuary confederacy, and the public mind will be distracted with the same party spirit. What a game, too, will the one party have in their hands by eternally threatening the other that unless they do so and so they will join their Northern neighbors? If we reduce our Union to Virginia and North Carolina, immediately the conflict will be established between the representatives of these two states, and they will end by breaking into their simple units. Seeing, therefore, that an association of men who will not quarrel with each other is a thing which never yet existed, from the greatest confederacy of nations down to a town meeting or a vestry-seeing that we must have somebody to quarrel with, I had rather keep our New England associates for that purpose than to see our bickerings transferred to each other. They are circumscribed within such narrow limits, and their population is so full, that their numbers will ever be the minority, and they are marked, like the Jews, with such a perver |