Friday, May 24, 2013

"They answered, that they were freemen, and might go where they pleased with their arms"




"PHILADELPHIA, 1799-1800

"A charge delivered to the Grand Jury of the United States, for the District of Pennsylvania, in the Circuit Court of the United States for said district, held in the city of Philadelphia, April 11th, 1799, by James Iredell, one of the Associate Justices of the Supreme Court of the United States, on the trial of the Northampton Insurgents...."

"...All systems of government suppose they are to be administered by men of common sense and common honesty. In our country, as all ultimately depends on the voice of the people, they have it in their power, and it is to be presumed they generally will choose men of this description; but if they will not, the case, to be sure. is without remedy. If they choose fools, they will have foolish laws. If they choose knaves, they will have knavish ones. But this can never be the case until they are generally fools or knaves themselves, which, thank God, is not likely ever to become the character of the American people...."

"...Falsehoods, in order to produce such combinations, I should presume, would come within the same principle, as being the first step to the mischief intended to be prevented; and if such falsehoods, with regard to one particular law, are dangerous, and therefore ought not to be permitted without punishment--why should such which are intended to destroy confidence in government altogether, and thus induce disobedience to every act of it? It is said, libels may be rightly punishable in monarchies, but there is not the same necessity in a republic. The necessity, in the latter case, I conceive greater, because in a republic more is dependent on the good opinion of the people for its support, as they are, directly or indirectly, the origin of all authority, which of course must receive its bias from them. Take away from a republic the confidence of the people, and the whole fabric crumbles into dust.
   "I have only to add, under this head, that, in order to obviate any probable ill use of this large and discretionary power, the Constitution, and certain amendments to it, have prohibited, in express words, the exercise of some particular authorities, which otherwise might be supposed to be comprehended within them. Of this nature is the prohibitory clause relating to the present object, which I am to consider under the next objection.
   "4. That objection is, that the act is in violation of this amendment of the Constitution. (3d vol. Swift's Edition, p. 455, Article 3d.)
   "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."
   "The question then is, whether this law has abridged the freedom the press?
   "Here is a remarkable difference in expressions as to the different objects in the same clause. They are to make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press. When, as to one object, they entirely prohibit any act whatever, and, as to another object, only limit the exercise of the power, they must, in reason, be supposed to mean different things. I presume, therefore, that Congress may make a law respecting the press, provided the law be such as not to abridge its freedom, What might be deemed the freedom of the press, if it had been a new subject, and never before in discussion, might indeed admit of some controversy. But, so far as precedent, habit, laws, and practices are concerned, there can scarcely be a more definite meaning than that which all these have affixed to the term in question.
   "We derive our principles of law originally from England. There, the press, I believe, is as free as in any country of the world, and so it has been for near a century. The definition of it is, in my opinion, no where more happily or justly expressed than by the great author of the commentaries on the laws of England, which book deserves more particular regard on this occasion, because for near thirty years it has been the manual of almost every student of law in the United States, and its uncommon excellence has also introduced
it into the libraries, and often to the favourite reading of private gentlemen; so that his views of the subject could scarcely be unknown to those who framed the Amendments to the Constitution: and if they were not, unless his explanation had been satisfactory I presume the amendment would have been more particularly worded, to guard against any possible mistake. His explanation is as follows:

   "The liberty of the press is indeed essential to the nature of a free state. And this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity. To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the Revolution, is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controversial points in learning, religion, and government. But to punish (as the law does at present) any dangerous or offensive writings, which, when published, shall, on a fair and impartial trial, be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty. Thus the will of individuals is still left free; the abuse only of that free will is the object of legal punishment. Neither is any restraint hereby laid upon freedom of thought or inquiry: liberty of private sentiment is still left; the disseminating, or making public, of bad sentiments, destructive of ends of society, is the crime which society corrects. A man (says fine writer on this subject) may be allowed to keep poisons in his closet, but not publicly to vend them as cordials. And to this we may add, that the only plausible argument heretofore used for the restraining the just freedom of the press, 'that it was necessary to prevent the daily abuse of it,' will entirely lose its force when it is shown (by a reasonable exercise of the laws) that the press cannot be abused to any bad purpose, without incurring a suitable punishment: whereas, it never can be used to any good one when under the control of an inspector. So true will it be found, that to censure the licentiousness is to maintain the liberty of the press."-- 4 Black. Com. 151...."

". . . WILLIAM RAWLE, Attorney of the United States for the Pennsylvania District *...."

"...Mr. Sitgreaves opened the trial as follows:
    Gentlemen of the Jury: By the indictment...."    

"...These are some of the points we mean to prove before you. I shall, therefore, at present, proceed to introduce our testimony.
   "William Henry testified substantially as follows:
   "I arrived at Bethlehem on the evening of the 6th of March, 1799. We had heard that there was a party of men would collect, for the purpose of rescuing the prisoners who were there in custody of the marshal; in consequence of that, I went to assist the marshal, and, if possible, prevail on the people to desist. I was one of the Judges of the Court of Common Pleas for the County of Northampton. About ten o' clock on the morning of the 7th, two men, with arms, arrived at the tavern where we were; who, when inquired of by the marshal as to their intention in coming armed, appeared to be diffident about answer; after first saying that they came upon a shooting frolic, one of them said they were come in order to see what was best to be done for the country. After that, came in several others, armed and on horseback, two of them in uniform, with swords and pistols. The first men were placed with the marshal in a separate room, in order to await the issue. At this time a considerable number of people had assembled. The marshal first went and spoke to these men as to their intention; I also walked out for the same purpose, requesting them to withdraw, and not appear in arms in order to obstruct the process of the United States laws. They answered, that they were freemen, and might go where they pleased with their arms. I told them that they ran great risk by appearing in arms for such a purpose as I feared they were come. They came in a number, but I don t know how many particularly, as they mixed among the crowd. We requested them to deliver up their arms; but they refused. I also, at the same time, told one of them that it would be best for him to surrender himself, and not oppose the process; the others gave me answer, that they had come to accompany their friend, and to see that no injury was done to him. After this I returned into the lower back room of the house; by this time there were a number more collected round the house, but mostly armed. I don't recollect whether it was before these three men arrived, or not, that the marshal had sent off four men of his posse in order to meet the men with arms who were coming forward; and after we were up stairs three men arrived as a deputation from the armed body, making inquiry as to the intention of the marshal in taking these prisoners; with these three men, the four deputed by the marshal had returned from the armed body that was the other side of the bridge, in order to learn the marshal's object. The marshal assured them of the legality of the process, and reasoned with them as to the consequences of opposition, or threats to him, or preventing him from executing his duty; but I believe he liberated the two men that were first put in confinement, and returned them their guns. During the time that these two men were in confinement, we examined their guns, and found them loaded...."

"Judge Iredell's Charge To The Jury..."

"...With respect to another point of objection stated at the bar, that the marshal, in detaining the two men at Bethlehem, was liable to an action, he said that, under the circumstances of that period, he could not, because, under certain circumstances, he was warranted to call the posse comitatus, i.e. the power of the county, to assist him, if he was likely to be overpowered: it could not be presumed that the circumstance did not empower and warrant him to call them out, and therefore we may conclude that danger was really to be apprehended, and those apprehensions must be heightened by the arrival of those two men in arms. In the opinion of Judge Henry, who was present, the danger was such as to justify the act of detention of those two men. Was it with a view of depriving these men of their liberty? No; but supposing them to have come with intent to assist in the rescue which they acknowledged they had heard was contemplated.
   Gentlemen, in looking to the law on this point, I do not think it is encroaching at all upon the liberty of any man to take him in custody. An officer in such an action must be at his peril, and could only be justified on the exigency of the circumstance: if he did it unnecessarily, a jury would teach him to take care how he sported with the liberties of his fellow citizens; but supposing, from good evidence, that he was in danger of assault, if he waited the united force of the assailants, shall it be contended as unreasonable, that the marshal should take measures of self-defence while it was in his power,? and detain what he might reasonably suppose a part of them? He surely acted the part of a prudent man, and was justifiable in the act...."  

* - "The prohibition is general. No clause in the Constitution could by ANY rule of construction be conceived to give to Congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretense by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both."
- William Rawle, A View of the Constitution, 125-6 (2nd ed. 1829). (Appointed by President George Washington as U.S. District Attorney for Pennsylvania in 1791). 

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