Mr. N. was surprised at this second prosecution, because, if gentlemen will speak candidly according to the opinions which they formerly delivered in justification of the law, they will acknowledge that the whole of the charges brought against the member from Vermont ought not to have been inquired into under the sedition law; since two of the counts contained in the indictment are mere matters of opinion, not containing the least suggestion of fact; and the third rests so much on matter of opinion, that it is impossible, according to a sound construction of the law, for any guilt to be incurred by the act.
Mr. N. wished the House to attend to the nature of the charges exhibited against the member from Vermont, and to say whether they were not of such a nature as to render it difficult to say whether they are well founded, and, if they are well founded, then they are innocent. In the record from which he had copied the charges, there are three counts; two of them are founded on extracts taken from a letter, called "Barlow's Letter;" the third is for sentiments contained in a letter of the member's own writing. The two first turn on mere matters of opinion. Mr. N. read the counts as follows:
"The misunderstanding between the two Governments has become extremely alarming, confidence is completely destroyed, mistrusts, jealousy, and a disposition to a wrong attribution of motives, are so apparent as to require the utmost caution in every word and action that are to come before your Executive—I mean if your object is to avoid hostilities. Had this truth been understood with you before the recall of Monroe, before the coming and second coming of Pinckney; had it guided the pens that wrote the bullying Speech of your President, and stupid answer of your Senate, at the opening of Congress in November last, I should probably have had no occasion to address you this letter. But we found him borrowing the language of Great Britain, and telling the world that, although he should succeed in treating with the French, there was no dependence to be placed on any of their engagements; that their religion and morality were at an end; that they had turned pirates and plunderers; and it would be necessary to be perpetually armed against them, though they are at peace. We wondered that the answer of both Houses had not been an order to send him to a mad-house. Instead of this, the Senate had echoed the Speech with more servility than ever George III. experienced from either House of Parliament.
"As to the Executive, when I shall see the efforts of that power bent on the promotion of the comfort, the happiness, and accommodation of the people, that Executive shall have my zealous and uniform support. But, when I see every consideration of the public welfare swallowed up in a continual grasp for power, in an unbounded thirst for ridiculous pomp, foolish adulation, or selfish avarice; when I shall behold men of real merit daily turned out of office for no other cause but independence of sentiment; when I shall see men of firmness, merit, years, abilities, and experience, discarded on their application for office, for fear they possess that independence; and men of meanness preferred for the ease with which they take up and advocate opinions, the consequence of which they know but little of; when I shall see the sacred name of religion employed as a State engine to make mankind hate and persecute one another, I shall not be their humble advocate."
The two first counts contain the opinions of the writer on public and notorious acts. No act is charged upon the President and Senate which is not notorious. It is not an attempt to impose upon the world a belief of facts which do not exist. He called upon gentlemen of the law and others to say whether this law was ever intended to extend to matters of opinion. He was astonished that a record of this kind should ever come from a court of the United States. The law declares that the publications which it proposes to punish, shall be false and scandalous. Do gentlemen say opinions can be false which do not contain matter of fact? Another part of the law gives to the party accused the privilege of giving the truth of the fact charged in evidence; but it is impossible that this can be done, where the matter charged consists of mere opinion; and juries could not possibly say whether an opinion be true or false. They can only determine whether or not it is their own opinion.
If a man is to be subject to a prosecution for his opinions, what will be the consequence? We are, said Mr. N., sent here to form an opinion, and, when we return home, we are expected to deliver that opinion to our constituents: but, if the propriety of our opinions are not to be judged of by ourselves, but by others, what will become of us? No man will be safe; for, though he may have formed his opinion as correctly as possible, if twelve men are to sit upon it, and, if it should not happen to be their opinion, or if they should not believe it to be his upon whom it is charged, he will be liable to a severe fine and imprisonment. Is it proper, Mr. N. asked, for legislators to be placed on this ground? Or, will gentlemen say it was their intention to place themselves in this situation? They certainly will not; for who would consent to sit here, or of what use would it be, under such conditions?
The third count is somewhat of a different nature. Mr. N. said, in speaking on this subject, he was not giving his own opinion. If he were to give it, he should say he had no foundation for the fact here stated. There is no mode, however, of ascertaining whether or not it was the opinion of the member from Vermont, and if it were his opinion, there being no mode of determining whether the opinion is correct or otherwise, it was impossible to act upon it.
With respect to the first part of the third count, which speaks of "every consideration of the public welfare being swallowed up in a continual grasp of power, &c.," he supposed it would be agreed that it was an expression of the affection of the mind—an opinion upon the disposition discovered by actions. That part of it which relates to "men of real merit being turned out of office for no other cause but independence of sentiment, &c.," suggests a fact, but if this was his opinion, it is a matter so much connected with opinion, as to be scarcely distinguishable from it. And shall we be told, said Mr. N., that a member ought to be banished from his seat for uttering a sentiment of this kind, after having been told by the gentleman from Delaware, and others, that it was a complete disqualification for office for a man to hold a different political opinion from that of the Executive? He trusted gentlemen could not seriously think so. For, since if the fact were true, and the member from Vermont had adduced (as he believed he might have done) two or three instances of men being turned out of office merely on account of their political opinions, still the jury might have asked, "how do you know that the men displaced possessed superior talents to those who succeeded them?" This, though true, could not be proved, therefore the member from Vermont could not have availed himself of the advantage held out by the law. Gentlemen may say this is not necessary, as this law goes to many offences not capable of this proof; they may say that the British law on this subject goes to many others. But our law is not the same with the British law; there, though the libel be true, it is not less a libel, which is not the case under our law, which is an important distinction.
It was clear, Mr. N. said, that such parts of the counts as went to insinuate fact, were so connected with opinion, that it was impossible to separate them. It could not be said that the jury were competent to decide upon the truth of the case. The decision of twelve honest men on a point of fact, is, perhaps, the best security that can be devised for the security of justice; but if a man is to be convicted because his opinions and those of a jury are at variance, there is an end to all security. Men's opinions are as various as their faces, and the truth or falsehood of those opinions are not fit subjects for the decision of a jury.
Upon what ground does the member from Vermont stand? He is a representative of the people; and gentlemen could not shut their eyes against a notorious fact, viz: that the constituents of this member, with a full knowledge of this prosecution, have re-elected him; and if the people of Vermont choose to have a person possessing these opinions to represent them, who have a right to say they shall not? Indeed, if they are to be represented at all, they must be represented by the man whom they choose to elect.