dleton was again pressed to the same undertaking, and CHAPTER furnished with additional suggestions toward it.

Meanwhile, this indefatigable prompter addressed a 1799. letter to Madison, urging him also into the field. "The Feb. 5. public sentiment being now on the careen, and many heavy circumstances about to fall into the Republican scale, we are sensible that this summer is the season for systematic exertions and sacrifices. The engine is the press. Every man must lay his purse and his pen under contribution. As to the former, it is possible I may be obliged to assume something for you. As to the latter, let me pray and beseech you to set apart a certain portion of every post-day to write what may be proper for the public. Send it to me while here, and when I go away I will let you know to whom you may send, so that your name shall be sacredly secret. You can render such incalculable services in this way as to lessen the effect of our loss of your services here." The discord in the ranks of the Federalists, occasioned by the nomination of a new embassy to France, became at once perceptible to Jefferson's watchful eye, and nothing could exceed the delight with which he communicated to his political friends this new omen of victory.

In the midst of the excitement which this nomination occasioned, Lyon, having served out the term of his imprisonment and paid his fine, appeared in the House and Feb. 20. took his seat.

Harper immediately offered a resolution for his expulsion, alleging for cause "that he had been convicted of being a malicious and seditious person, of a depraved mind and wicked and diabolical disposition, guilty of publishing libels against the president, with design to bring the government of the United States into contempt." Nicholas warmly objected to the introduction into the

CHAPTER resolution of what he insisted to be the mere formal and

XIII. technical language of the indictment; to which Bayard 1799. replied that the resolution stated nothing but what a jury had found to be true. The resolution was carried Feb. 22. forty-nine to forty-five; but as it required two thirds to expel, Lyon still kept his seat. But when the session closed, he did not venture to return to Vermont, where not only more indictments, but pecuniary difficulties also, hung over his head. Since he had ventured into politics, his affairs had fallen into confusion, and he was now insolvent. Instead of returning home, he took refuge with his friend Senator Mason, of Virginia, Callender's late host, and, in a letter to the governor of Kentucky, proclaimed his intention to emigrate to that state at the head of a thousand families from Vermont.

It does not appear that either the senators or the representatives of Kentucky had ventured to lay before their respective houses the nullifying resolutions of that state, notwithstanding the injunction contained in them to that effect; nor had the resolutions either of Kentucky or Virginia found any favor with the state Legislatures. Those of Maryland, Delaware, Pennsylvania, New Jersey, New York, Connecticut, Rhode Island, Massachusetts, New Hampshire, and Vermont already had, or did soon after, expressly disavow the pretense set up of a right in the state Legislatures to decide on the validity of acts of Congress. The elaborate and argumentative reply of Massachusetts maintained also, in addition, the constitutionality of the Alien and Sedition Laws; the Alien Law being justified under the express power given to Congress to provide for the common defense against external enemies, the Sedition Law under the power necessarily implied to sustain the officers of the government in the discharge of their duty against combinations

XIII.

and misrepresentations tending to interrupt the execu- CHAPTER tion of the laws, if not, indeed, to the overthrow of the government.

But, though the resolutions of Kentucky and Virginia met with no countenance from the sister states, and seem not even to have been laid before Congress, many petitions from private individuals had been presented in the course of the session, praying for a repeal of the Alien and Sedition Laws, and, indeed, of all the late acts for augmenting the army, navy, and revenue. These peti

tions had been referred to a special committee, Goodrich being chairman, by whom a very elaborate report had been made, maintaining both the constitutionality and the expediency of the laws in question.

1799.

When this report came up for discussion, the Feder- Feb. 25. alists, satisfied with the argument of their committee, were for taking the question at once, especially as the session was so near its close, and so many important matters remained to be disposed of. "They held a caucus," so Jefferson wrote, "and determined that not a word should be spoken on their side in answer to any thing which should be said on the other. Gallatin took up the Alien, and Nicholas the Sedition Law, but after a little while of common silence they began to enter into loud conversations, laugh, cough, &c., so that for the last hour of these gentlemen's speaking, they must have had the lungs of a vendue-master to have been heard. Livingston, however, attempted to speak, but after a few sentences the speaker called him to order, and told him that what he was saying was not to the question. It was impossible to proceed. The question was taken, and carried in favor of the report, fifty-two to forty-eight. The real strength of the two parties is fifty-six to fifty, but two of the latter have not attended during this session."

CHAPTER

Though the opponents of the Sedition Law talked a XII. 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 government 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

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