The alien bill passed, after a warm but a short debate, by a vote of 46 to 40, and on the 5th July, ten days before the session closed, the sedition bill came down from the Senate. As the bill then stood, it contained a clause enacting that “if any person shall, by writing, printing, or speaking, threaten” an officer of the government “with any damage to his character, person, or estate,” he shall be deemed guilty of a high misdemeanor and be punished by fine and imprisonment.
Edward Livingston immediately moved that the bill be rejected. In opposition to this motion, and in order to prove the necessity of such extravagant legislation, Mr. Allen, of Connecticut, made an elaborate speech, which is still entertaining and instructive reading. He arraigned the newspapers, and asserted that they showed the existence of a dangerous combination to overturn the government; to this combination Mr. Edward Livingston was a party, as shown by an extract from his speech on the alien bill; the New York Time-Piece was one of its organs, as shown by a tirade against the President; the Aurora, of Philadelphia, as another organ, “the great engine of all these treasonable combinations.” These quotations now read tamely, and it requires a considerable exercise of the imagination to understand how America could ever have had a society to which such writings should have seemed dangerous. Mr. Harper himself, the author of “The Plot,” was obliged to concede that he did not give much weight to the newspapers; in his eyes Mr. Edward Livingston was the real offender, and speeches made in that House were the real objects which the bill aimed to suppress. Mr. Livingston had in fact announced that the people would oppose and the States would not submit to the alien act, and added, in imitation of Lord Chatham’s famous declaration, “They ought not to acquiesce, and I pray to God they never may.” The debate went on in this style, with criminations and recriminations, until Mr. Gallatin rose. He took the ground—the only ground indeed which he could take in the present stage of the bill—that necessity alone could warrant its passage; that the proof of that necessity must be furnished by its supporters; that the proof thus far furnished was by no means sufficient; that the newspaper paragraphs cited by Mr. Allen were not of a nature to require such a measure of coercion; that the expressions used by members in debate could not be reached by the bill; that the bill itself as it then stood was in part useless, in part dependent on the proof of necessity, and had best be rejected.
The House, by a vote of 47 to 36, refused to reject the bill, but when, a few days afterwards, they entered on the discussion of its sections, even Mr. Harper took the lead in advocating considerable amendments. By his assistance and that of Mr. Bayard the bill was remodelled, and especially a clause was inserted allowing evidence of the truth to be given in justification of the matter contained in the libel, and another giving to the jury the right to determine the law and the fact. On the bill as thus amended one day of final debate took place, closed on the part of the opposition by Mr. Gallatin, and by Mr. Harper on behalf of the majority.
Mr. Gallatin’s speech as reported is quite short, and mostly devoted to the constitutionality of the measure. He first answered Mr. Otis, who had argued that Congress had the power to punish libel, because the men who framed the Constitution were familiar with the common law and had given the judiciary a common-law jurisdiction, and that this power was not taken away by the amendment to the Constitution securing the freedom of speech and of the press. The argument indeed answered itself to a great degree, for if the Federal courts had this common law jurisdiction, why enact this measure which had no other object than to confer it on them? But the courts had no such jurisdiction, and Congress had no power to give it, because it was conceded that no such power was specifically given, and yet the Constitution and the laws hitherto made in pursuance thereof had actually specified the offences for which Congress might define the punishment. They must therefore fall back on the “necessary and proper” clause; but, as this was to be used only to carry the specific powers into effect, it could not apply here: “they must show which of those constitutional powers it was which could not be carried into effect unless this law was passed;” and finally the amendment which secured the liberty of speech and of the press had been proposed and adopted precisely to guard against an apprehended perversion of this “necessary and proper” clause. This outline was filled up with concise argument, and comparatively little was said on the merits of the bill, although it was pointed out that the mere expression of an opinion was made punishable by it, and how could the truth of an opinion be proven by evidence? The writing of a paper which might be adjudged a libel was punishable, even though not communicated to any one, and this was the rule under which Sidney suffered. In Pennsylvania the marshal would summon the juries, and the marshal was the President’s creature. To this and the other arguments in opposition Mr. Harper replied, and the bill then passed by a vote of 44 to 41. A week later Congress rose.
So much has already been said of this memorable session that it would utterly exhaust the patience of readers to give any completer sketch of Mr. Gallatin’s activity in legislation on other subjects. His share in measures of finance and in opposition to the abrogation of the French treaties, as well as to the other war measures, may be passed over; but one word must be said on another point.
In March of this year, 1798, a bill for the erection of a government in the Mississippi Territory being before the House, Mr. Thacher, of Massachusetts, moved an amendment that would have excluded slavery forever from all the then existing territory west of Georgia. This amendment was strongly supported by Mr. Gallatin, on the ground that, if it were rejected, Congress really established slavery in that country for all time, but he found only ten members in the House to support Mr. Thacher and himself.
The session of 1798 closed on the 16th July, and Mr. Gallatin returned with his wife to New Geneva. Hard as his position was in public life, it was becoming yet more alarming in his private affairs. The joint-stock company which he had formed, and in which all his available capital was invested, had been obliged to act independently, owing to his long absences, and had been largely controlled by a Genevese named Bourdillon, a man of ability, but more fond of speculation than Mr. Gallatin ever could have been. He had adopted a system of buying and selling on credit, which he carried further than Mr. Gallatin approved, and the company had also entered into the manufacture of glass, an undertaking which promised well, but which required a considerable expenditure of borrowed money at the outset. Meanwhile, the country was still suffering from the collapse of speculation. Robert Morris was quite bankrupt, and Gallatin could recover neither land nor money. Among the Gallatin papers is an autograph which tells its own story in this relation:
Dear Sir,—Asking you to come here is not inviting you as I wish to a pleasant place, but, as I want an opportunity of conversing with you a few minutes, I hope you will give me a call as soon as your convenience will permit.
I am your obedient servant,
Robert Morris.
Monday morning, 10th Dec., 1798.
Hon’ble Albert Gallatin.