1. In 1791 a direct tax was levied by Act of Congress on all lands and houses; excise officers were to ascertain their value. The "Alien and Sedition Laws" were also passed the same year. The execution of the law relative to the direct tax was resisted in Northampton county, Penn., and some prisoners rescued from an officer of the United States. The President, Mr. Adams, issued his proclamation. In 1799 John Fries was arrested on the charge of treason. The overt act alleged was resistance to that one special law of Congress. Judge Iredell charged the Grand-Jury, "You have heard the government as grossly abused as if it had been guilty of the vilest tyranny." Had he read the private correspondence of the Cabinet, he might have found other specimens of "abuse." He defended both the Alien and Sedition Laws.—They were "constitutional" and "proper."[154]
Mr. Fries was indicted for treason. The Judiciary Act of Congress of 1789 provides that "in cases punishable with death the trial shall be had in the county where the offence was committed; or when that cannot be done without great inconvenience, twelve petit jurors at least shall be summoned from thence." The offence was committed in Northampton county, and he was indicted and brought to trial in Philadelphia county, nor could the court be induced to comply with the statute!
The government laid down the law and constructed treason with the usual ingenuity of officials working by the job. Judge Kelyng's loose opinion that an attack on a brothel was high treason, was cited by Mr. Rawle, the District Attorney, as good law.[155] What "in England is called constructive levying of war, in this country must be called direct levying of war." Judge Peters charged that though force was necessary to constitute the crime of treason, yet "the quantum of force is immaterial," of course it may be wielding a wheat straw, or a word, I suppose. "The doctrine of constructive treason has produced much real mischief in another country" [England]. "The greater part of the objections to it are irrelevant here."
Fries was found guilty. His counsel moved for a new trial, on the ground that before the trial one of the jurors had declared, "Fries ought to be hung;" "I myself shall be in danger unless we hang them all;" that the jurors were irregularly drawn, and the trial was not held in the county where the offence was committed. Judge Iredell ruled that it was "a high contempt at this time to call for a renewal of an argument whereon a solemn, decisive opinion was delivered." Judge Peters declared the juror had "said no more than all friends to the laws and the government were warranted in thinking and saying." Yet a new trial was granted.
The new trial was held before Judge Chase, who had, as Mr. Wharton says, a "singular instinct for tumults which scents it at a distance ... and irresistibly impels a participation in it," "moving perpetually with a mob at his heels." Yet "apart from his criminal jurisdiction he was reckoned a wise and impartial judge, a master of the Common Law, and a thorough and indefatigable administrator of public functions." "It was this despotic ardor of temperament ... which made him, when a young man, employ with resolute audacity the engine of popular revolt, and which led him when older, and when in possession of that power against which he had so steadily warred, to wield with the same vigor the sword of constituted authority."[156] Gentlemen, he was like many that this Honorable Court perhaps have known, who were privateering Democrats in 1812, and Kidnapping Whigs in 1850. To him we are indebted for the invaluable decision that the United States courts have no Common Law jurisdiction.
At this new trial he treated the defendants' counsel in such a manner that they abandoned the case, and left the Prisoner without defence. The District Attorney, taking his law from Kelyng and similar servants of British despots, laid it down that treason "may consist in assembling together in numbers, and by actual force, or by terror, opposing any particular law;" "Force need not be used to manifest this spirit of rebellion." "Even if the matter made a grievance of was illegal, the demolition of it in this way was, nevertheless, treason," "a rising with intent by force to prevent the execution of a law ... preventing the marshal executing his warrants, and preventing the other officers ... amounted to levying war." "In short an opposition to the acts of Congress in whole or in part [that is to any one law] ... either by collecting numbers, or by a display of force ... which should operate ... either throughout the United States, or in any part thereof to procure a repeal or a suspension of the law ... this offence be considered to be strictly treason."
Judge Chase laid it down as law not to be questioned in his court, "that any ... rising of any body of the people ... to attain by force ... any object of a great public nature ... is a levying of war:" "any such ... rising to resist ... the execution of any statutes of United States ... or for any other object of a general nature or national concern, under any pretence as that the statute was unjust ... or unconstitutional is a levying war;" "any force ... will constitute the crime of levying war."
If that be law, then an old negro woman who, with a dishcloth, frightens officer Butman away from kidnapping her granddaughter in Southac street, does thereby levy war against the United States and commits the crime of treason.
The jury, overborne by the assumptions of the judge, or ignorant of their duties and their rights, allowed this tyrannical court to have its way, surrendered the necks of the people, and brought in a verdict of guilty. Judge Chase made an insolent address to the prisoner and sentenced him to death. But Mr. Adams, with a remarkable degree of justice, gave him a full pardon, and drew down upon himself thereby the wrath of his cabinet.[157]
2. In 1788 Mathew Lyon, a native of Ireland, a Revolutionary soldier, a member of congress, and editor of a newspaper in Vermont, was brought to trial under the Sedition Law, for a false, malicious, and seditious libel. He had published in his newspaper a somewhat severe attack on the Federalists then in power. The article, alleged to be "seditious," was a letter written and mailed at the seat of government seven days before, and published nine days after, the passage of the Sedition Law itself. It was as much a political trial, Gentlemen, as this—purely political. Judge Patterson—United States Circuit Judge of Vermont—charged that the jury had nothing whatever to do with the constitutionality of the Sedition Law. "Congress has said that the author and publisher of seditious libels is to be punished." "The only question you are to determine is ... Did Mr. Lyon publish the writing?... Did he do so seditiously, with the intent of making odious or contemptible the President and government, and bringing them both into disrepute?"