Letter I
Footnote #01
May 31, 1821.---People of England is it not high time that you too should know it? Well, then, so you shall, in so far as it is in my power to make you know it. Here follows an extract from a pamphlet, printed, and, within a narrow sphere, for a particular purpose, some little time ago circulated, but not yet published: in a short time it is intended to follow the present one.
``Oh, but what is this you would have us do? Would you have us destroy the government?---would you leave the government of the country without protection? Its reputation, upon which its power is so perfectly dependent,---would you leave that most valuable of its treasure without protection?---would you leave it in the power of every miscreant to destroy it? In such a state of helplessness, is it in the nature of things that government should subsist anywhere?"
Subsist? Oh yes, everywhere; and be all the better for it. Look to the United States. There you see government, do you not? Well: there you see government, and no libel law is there: the existence of the supposed deficiency you shall see; and where libel law its the article, you will see how much better deficiency is than supply.
In answer to a letter of inquiry written by me not long since---the exact time is not material, here follow all that relates to this subject, of a letter written by a person, whose competence to give the most authentic, and in every respect trustworthy information on this subject, is not to be exceeded.
``Prior to what was commonly called the sedition act, there never as any such thing known under the federal government of the United States (in some of the individual States they have sometimes, I believe, taken place,) a criminal prosecution for a political libel. The sedition act was passed by Congress in July 1798. It expired by its own limitation in March 1801. There were a few prosecutions under it whilst it was in force. It was, as you have intimated, an unpopular law. The party that passed it went out of power by a vote of the nation in March 1801. There have been no prosecutions for a political libel, under the authority of the government of the United States, since that period. No law known to the United States would authorize such a prosecution. During the last war, the measures of the government were assailed, by the party in opposition, with the most unbounded and furious license. No prosecution for libel ever followed. The government trusted to public opinion, and to the spontaneous, counteracting publications, from among the people themselves, for the refutation of libels. The general opinion was, that the public arm grew stronger, in the end, by this course.
``I send you a volume of the law of the United States containing the sedition act in question. It will be found at p. 97 ch. 91. You will observe a departure from the common law, in that it allowed a defendant to avail himself of the truth of the charges contained in the publication.''
Thus much for my authority: whose name I cannot at this instant take upon me to make public.
Chap. 91. [XCI.] An Act in addition to the act entitled, ``An Act for the punishment of certain crimes against the United States.''
§1. Be it enacted by the Senate and House of representatives of the United States of America in Congress assembled, That if any Person shall unlawfully combine or conspire together with intent to Oppose any measure or measures of the government of the United States, which are or shall be directed by proper authority, or to impede the operation of any law of the United States, or to intimidate or prevent any person holding a place or office in or under the government of the United States, from undertaking, performing, or executing his trust or duty; and if any person or persons, with intent as aforesaid, shall counsel, advise or attempt to procure, an insurrection, riot, unlawful assembly or combination, whether such conspiracy, threatening, counsel, advice, or attempt, shall have the proposed effect or not, he or they shall be deemed guilty of a high misdemeanour, and on conviction before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding five thousand dollars, and by imprisonment, during a term not less than six months, nor exceeding five years; and further, at the discretion of the court, may be holden to find sureties for his good behaviour in such sum, and, or such time, as the said court may direct.
§2. And be it further enacted, That if any person shall write print, utter, or publish, or shall cause or procure to be written, printed, uttered, or published, or malicious writing, shall knowingly and willingly assist or aid in writing, printing, uttering, or publishing any false, scandalous, and malicious writing against the Government of he United States or either House of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either House of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States, or to stir up sedition within the United States; or to excite any unlawful combination therein, for opposing or resisting any law of the United States, or any act of the President of the United States, done in pursuance of any such law, or of the powers in him vested by the Constitution of the United States, or to resist, oppose, or defeat any such law or act; or to aid, encourage, or abet, any hostile designs of any foreign nation against the United States, their people or government, then such person, being thereof convicted before any court of the Unite States having jurisdiction thereof, shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.
§3. And be it further enacted and declared, That if any person shall be prosecuted under this act, for the writing or publishing any libel aforesaid, it shall be lawful for the defendant, upon the trial of the cause, to give in evidence, in his defense, the truth of the matter contained in the publication charged as a libel. And the jury who shall try the cause, shall have a right to determine the law and the fact, under the direction of the court, as in other cases.
§4. And be it further enacted, That this act shall continue and be in force until the third day of March, one thousand eight hundred, and one, and no longer: provided that the expiration of the act shall not prevent or defeat a prosecution and punishment of any offense against the law, during the time it shall be in force. [Approved, July 14, 1798.]
In the above letter, in speaking of the execution given to the liberticide law that has just been seen, the word prosecutions (it may have been observed) stand in the plural number. On the other hand, while writing this letter of mine to the people of Spain, supposition was---that there had not been any more than one. The conception had been derived from a conversation with another United States' functionary of the highest distinction; on the occasion of which conversation, one prosecution had---possibly in his eyes, certainly in mine---eclipsed the other, or the few others. The case was that of a prosecution instituted by the Marquess of Casa Yrujo, in his quality of Minister from the court of Madrid to the republic of the United Sates, against some individual (name not recollected) for a libel on the Spanish government. The defendant was acquitted.