CHAPTER Though the opponents of the Sedition Law talked a great deal about the liberty of the press, of which they 1799. even paraded themselves as the champions, it would be a great mistake to suppose that they placed their argument against that act upon any such broad and comprehensive ground as true regard for liberty of the press would require. They did not attack the principle of gov. ernment prosecutions for libels, but only the exercise of any such power by the Federal government. The criminal law of libel was good law enough when administered by the states, but in the general government it was an unconstitutional assumption of power. The common, law on the subject of libel, as laid down in M'Kean's charge in the case of Cobbett, and as recognized in all the states, made and still makes a great and remarkable distinction between written and spoken slander; that is, between the license allowed to the tongue and that allowed to the pen. Spoken words are not indictable under any circumstance, nor can they be made the subject even of a private civil suit, unless some special damage can be shown to have resulted from them, or unless they contain the imputation of some crime, or imply professional incapacity on the part of the person implicated-thus assailing his life, his liberty, or his livelihood; and in all cases of spoken words, their truth constitutes a complete defense. With respect to written words the law is vastly more severe. Any written words containing any disreputable imputation of any sort, or though they merely tend to make a person ridiculous, may not only be made the subject of a private suit for damages, but the writer and publisher are also liable to be indicted for a crime against the public. Nor, in case of such criminal prosecutions, could even the truth of the matters charged be given in XIII. evidence, by way of justification, at the time of which CHAPTER we are speaking, except in the states of Pennsylvania, Delaware, and Vermont, which had inserted a provision 1799. to that effect into their recently-adopted Constitutions. The traditional reason for this distinction given by the law-books is, that written libels tend to breaches of the peace. But do not spoken slanders have the same tendency? Do they not, in fact, give rise to frequent breaches of the peace, ending often in homicide? Then, again, as to the evil produced; it is true that written or printed libels, between which the law makes no distinction-though there is practically a much greater distinction between them than between written libels and words spoken-may have a wider circulation and a more permanent endurance, and so may produce a greater injury. But, on the other hand, written and printed libels exist in a definite shape, in which they may be met and refuted; especially if printed in newspapers or pamphlets, they can hardly fail to come to the speedy notice of the party concerned; whereas spoken slanders circulate privately behind a man's back, and may do irretrievable injury before their existence is known; and even when it is known, the fleeting and changing shape of all merely oral declarations may often occasion great difficulty in grasping them for refutation. But, whatever may once have been the propriety of this distinction, as showing greater malice and deliberation, and tending to inflict a more permanent injury, now that newspapers have become a necessary of life—a means, as it were, of carrying on an extended conversation between all the members of the community, the same indulgence and impunity which have been found necessary for the safety and comfort of verbal intercourse ought to be extended to this new method of talking, and the same CHAPTER means, and they only, relied upon for suppressing its abuses. XIII. 1799. With respect, in particular, to political discussions and political newspapers, a freedom as wide as this, however it may often degenerate into license, seems quite indispensable. In all free states it has been found necessary to guarantee to the members of the Legislature perfect impunity for any thing said in their legislative character. This impunity is liable to be greatly abused, and it often is greatly abused by bad and malicious men; but without it, nothing like freedom of discussion, or the detecting and ferreting out of political abuses, could be expected. And why not extend a similar impunity—at least to the extent of freedom from criminal prosecutions-to those by whom politics are discussed before the tribunal of the whole people? Falsehoods thus disseminated may be exceedingly grievous to the parties belied; but those parties always have the privilege of detecting and exposing the falsehood thus made to assume a distinct form. Very seldom, indeed, can it do them any permanent injury (in which case they have their remedy by private suit), while the dread of being publicly denounced acts upon the less honest with tremendous force. The existence of one such fearless paper as the Aurora, however objectionable in many respects that paper might be, operated, beyond all question, as a greater check to misconduct on the part of the Federal officials than all the laws put together. Be But it may be asked, why object to criminal prosecutions when the truth may be given in evidence? cause this is a concession in many cases, such as that of Lyon, for example, much more showy than substantial. Even when the facts charged are of such a nature as to admit of distinct proof, to bring witnesses might often be XIII. There is an- CHAPTER What in polit false allegation, 1799. difficult, and would always be expensive. As all popular governments rest for support, not upon force, but upon opinion, assaults upon them limited to words ought to be repelled by words only. The press is open to the government also. To convict those who assail it of falsehood and malice by a candid exposition of facts, is the most certain means to destroy their influTo appeal to the law will always expose to the charge of being driven by conscious guilt to silence by force in default of reason the complaints and criticisms. of the people, a part of whose right and liberty it is to complain and to criticise a right and liberty of too delicate a nature, and too much intertwined with the first principles of freedom, to be rashly interfered with. ence. Such are some of the arguments by which the wisdom and expediency of that part of the Sedition Law relating to libels, as well as of the whole system of criminal prosecutions for libels in the state courts, might have been plausibly, if not, indeed, convincingly assailed. But nothing of this sort proceeded from the mouths of the opposition. They confined themselves very strictly to the constitutional argument. It was a special restriction of the powers of the general government, not the general liberty of the press, for which they contended. Not a word was uttered against the exercise of that same power by the states, the exercise of which by the Federal government was denounced as fatal to liberty. The op CHAPTER position argued, not like liberal statesmen and wise legisXIII. lators, but only like violent anti-Federal politicians. 1799. While the nomination of envoys to France was still pending, the bills for the increase of the navy had become laws. Two others relating to the same subject were passed shortly after, one embracing a code of rules for the naval service, the other creating a fund for navy hospitals by a reservation out of the monthly wages of seamen employed in the navy, similar to that authorized at the last session in case of merchant seamen. By a third act the marine corps was increased to a regiment of a thousand men. The Senate bill for a conditional increase of the army was also passed, as was another increasing the regiments of the standing force to a thousand men each. The sal The sec The laws relating to intercourse with the Indians, to the post-office, and to the collection of the revenue, were revised and re-enacted, and, in compliance with the recommendation of the president in his opening speech, the officers of the United States were required to assist in the enforcement of the local quarantine laws. aries of several public officers were increased. retaries of state and the treasury were henceforth to receive $5000 each; the other two secretaries, $4500; the attorney general, controller, treasurer, auditor, commissioner of the revenue, and postmaster general, $3000 each; the registrar of the treasury, $2400; the accountants of the war and navy departments, $2000 each; the assistant postmaster general, $1700. The salaries of the clerks in the executive department were also increased, and a new tariff of fees was established for the officers, witnesses, and attorneys in the United States courts. The increase of salaries was most violently opposed, and a great clamor was raised against it out of doors. But |