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MR. OTIS’S SPEECH 

/» Congress , on Me Sedition Law, m’M 
Remarks by the “ Examiner” on Mis 
important subject . 

MR. OTIS 

Observed, that nothing could have been more unexpected by 
him, than a debate upon the present occasion, until the honorable 
gentleman from Kentucky, had given notice of his dissent from 
the report of the committee, and so convinced was he that any 
commentaries from him upon a subject so long since exhausted 
would be entirely unprofitable, that he should have rested satisfied 
without interfering in the discussion, had not the remarks of the 
last hon. gentleman, (Mr. Barbour) rendered it incumbent upon 
him to detain the Senate by a few observations. He trusted to 
their patience in hearing him, from a consideration of his peculiar 
situation. I am sir, said he, (though not yet passed the purlieus 
of old age) the only individual now in either house of Congress 
who voted in favor of the sedition act. One honorable, and by 
me always respected member of this house, (Mr. Macon) and two 
or three others in the House of Representatives, are the only 
remnants, at present in Congress, of both political parties, who 
at that period of anxiety and agitation of the public mind were 
daily summoned to stem with hearts of controversy conflicting 
opinions, and divide upon all questions. I pause not to moralize 
upon this fact—to calculate how many have gone to render an 
account of their motives and conduct to a higher tribunal, nor to 
consider the destines and vicissitudes which may have befallen 
those who remain. Many of them are yet living, and while they 
cannot wish or expect that I should promote discussions, which 
bring to mind the unpleasant recollections of past times, yet when 
the occasion arises and subjects are presented which render allu¬ 
sions to them unavoidable, they ought to expect I will shew to the 
world, that 1 am not ashamed of my old associates, and that I find 
no reason to blush for the part which 1 sustained in support of 
their measures. Let it not, sir, be inferred, from this suggestion, 
that I am at this time and under present circumstances, an advocate 



t_ 32-7 
- 0 *& 


for the sedition act, or that I would favor its revival. On the 
contrary, upon a proposition to renew it, the honorable gentleman 
from Kentucky would find me on his side, and influenced, though 
not to their extent, by some of his reasons. Twenty years have 
elapsed since the passage of that act. While on a review of my 
humble agency in political affairs during that period, I find no 
cause for repentance, and but little for a change of speculative 
opinions; yet am I free to avow, that this is a measure which I 
would not repeat, and for the simple reason, that it would do 
violence to a well ascertained and settled pu lie opinion, adverse 
to the necessity and expediency of such a law. To persevere in 
measures which, by experience, are found to be prolific only 
of public discontent and general agitation, would be not less 
reprehensible, than to shrink from an experiment in the first 
instance, which is dictated by judgment and conscience, through 
a timid calculation of popular effect. I do not indulge a self- 
complacency, which in the retrospect of twenty years, perceives 
no practical errors in which it would not persist. It is the part 
of an independent mind, in all questions of the first impression, to 
search for truth, to decide agreeably to its own convictions and 
endeavor to impart to public opinion, the direction which it thinks 
to be correct. Failing in this, a representative has discharged his 
duty to his country and to himself; and when he cannot mould the 
sentiment and measures of the nation, according to his own views, 
it is no departure from consistency, but on the other hand, a duty, 
whatever may be his own theory, to conform to that public 
opinion which he cannot lead. With this explanation of his 
sentiments, Mr. O. said, he wished the few remarks that he should 
offer to be understood. He did not stand forth as a champion for 
the sedition act, but as a sponser for the purity of the motives and 
a believer in the correctness of the constitutional doctrines of the 
party with whom he acted and voted on the passage of that law r . 

With respect to the constitutional question, it would hardly be 
endured, that he should, at this time of day, attempt to pursue it 
through all its windings and bearings. This would be no difficult, 
though a most unedifving task. The arguments, on both sides, were 
familiar to his recollection, for no question had ever undergone an 
investigation more elaborate and profound: But gentlemen seemed 
to think, that the arguments were all on one side. The reports 
of the Legislature of Virginia, of which the honorable gentleman 
was a member, and the speeches and writings of his friends, had 
absorbed the recollection of all other speeches and w ritings. But 
was there nothing on the other side entitled to attention? Were 
there no reports of Committees justifying the principles on which 
the act was established? Were there no speeches, no essays, no 
names and characters, in favor of this obnoxious law, worthy of 
remembrance or reply ? These were indeed so numerous, as to 
leave it altogether doubtful whether the public feeling, which it 
is agreed exists in opposition to the system, arose from any 




s 


conviction in a majority of the nation of the want of constitutional 
power in Congress to pass the act, or merely from an aversion to 
its provisions and a dread of its abuses. As it was not therefore 
necessary to his purpose, to examine in detail the constitutional 
question, he was content to declare that his mind had always 
reposed upon a single consideration, detached from all others, as 
sufficient to uphold the act. All governments must possess an inherant 
right to punish all acts , which being morally wrong , tend directly to 
endanger their existence or safety. This power would be implied 
in the constitution, even though no express words had conveyed 
the authority to make all laws u necessary and proper ,” to give 
effect to the instrument. Without such a right, no government is 
competent to the great duty of self protection. Whether the 
sedition act was then, in fact, indispensable to the safety and 
existence of the national government, is not the principal enquiry. 
But did those who framed it, in the sincerity of their hearts, 
believe it to be so ? And having, at that time, reasonable grounds 
for such an apprehension, were they justifiable in passing the 
act? To judge conclusively and candidly on this subject, sir, you 
must be pleased to recur to the state of public affairs in those 
times. It was a period of great alarm and great danger: Defensive 
measures were the order of that day. You were, in fact, at war 
with France, whose revolutionary fires were lighted up in every 
part of Europe, threatening the destruction of all governments, 
whether free or despotic. You had organized an army, augmented 
your naval establishment, and authorised letters of marque : Your 
ambassadors had been spurned from the footstool of the directory : 
Tribute was demanded as the price of justice : All countries were 
filled with spies and agitators, employed by France to sow discontent 
and sedition, and separate governments and people, and to this end 
the press had been always a principal engine. Under these 
circumstances, the sedition act w r as adopted as one of a series of 
measures of defence. 

It might be said, as it was said at that period, that the dangers 
were illusory, and the fears deceitful pretexts, for high-toned and 
arbitrary measures. But who approved of the system adopted by 
that administration, and held himself in readiness to execute its 
measures ? The man, in memory of whose patriotic virtues, a bill 
on your table proposes to erect a monument. But he persuaded 
himself that the candor of gentlemen, in the temperature of their 
present feelings, would not permit them to place confidence in 
such arguments or suggestions. For if the terrors of French 
agency and espoinage , in that day, should be reprobated as artificial, 
in what higher estimation should be held the suspicions of British 
influence and intrigue, which, at a subsequent period, gathered 
over the heads of men, who were pledged to the love and defence 
of their country, by all the securities which result from services, 
character, property, family connexions, and indissoluble interests S 
There would, indeed, be no end to the catalogue of accusations 


4 


and recriminations—to the impeachment of views and motives, 
and the imputation of foreign predilections. They were never 
creditable to either party in the eye of the world, and the day has 
past in which it can be deemed useful to revive them, by men of 
enlarged and liberal minds. He would, however, desist from 
pursuing this view of the question further, than to remark that he 
had never surmounted the astonishment he had always felt, 
at perceiving how strongly was contrasted the abhorrence of 
gentlemen for the second section of the sedition act against libels, 
with their toleration of the first section of the same act, which had 
never been objected to. Yet under that section, sedicious advice, 
in writing or by word, without any overt act, w r as made an 
indictable offence. [Here Mr. O. read a section of the act.] 
To counsel, said he, an unlawful assembly, with intent to oppose 
the laws, was made a crime, whether the purpose were executed or 
not. Here, then, is a restraint upon the freedom of the press, 
agreeably to the construction of gentlemen, equally unsupported 
by the letter of the constitution, with that imposed in the subsequent 
clause. He had lately seen essays in that chamber, which need 
go but little further to fall within the description of offences, 
described in the first section in which the President of the United 
States is called a highway-man, with his hand in the public purse : 
and an usurper of power, in which Congress participate. For 
deliverance from this evil, it is said there is no resource, but in 
the exercise of the revolutionary spirit, and much other inflamma¬ 
tory matter. All this might now be despised and regarded as the 
idle wind. Yet there might be a time in which the public 
sentiment would revolt against the toleration of such writings, 
and call for the punishment of the authors; and though he did 
not believe the present moment required such an interference, 
he could not consent to declare, by an act of legislation, that the 
people by their representatives, had no right, on any occasion, to 
interpose. To leave the question of constitutionality, and to say 
nothing of the common law and laws of the several States, he 
objected to the amendment proposed, on the ground that Congress 
has no constitutional power , to declare a law, framed by its predecessors, 
to be unconstitutional , in any other mode than by repealing it. He 
called upon gentlemen, who insist upon a literal adherence to the 
phraseology of the constitution, to lay their finger on any clause 
comprising this power; they would search in vain: it is in its 
nature a judicial power. When a law has been executed by 4 the 
adjudication of a court,’ the judgment can be vacated only by a 
legal tribunal in the ordinary forms. No writ of error lies to 
Congress, especially when a law has expired and is functus officio ; 
and no judgment can be reversed by the great inquest of the 
people, (to use the language of the honorable gentleman) even 
were it possible to take their verdict. The honorable gentleman 
is not a trustee of the people, (to use his word again) for any such 
purpose. No precedent is on record to support such a motion* 


5 


Should it succeed, it would be nugatory ; it would not contain any 
exposition of constitutional law that would be intelligible. Or if it 
did explicitly state the sedition act to be unconstitutional, it may 
be repealed at any time, and its doctrine exploded. There would 
be no end to this conflict of constitutional opinions and legislative 
pandects. But the tendency of this mode of legislation is sufficiently 
discouraging, if gentlemen look only to the consequences. It is 
not wonderful that we incline to bring all questions of this nature 
to the standard of our local prejudices and predominant impressions. 
In this process we overlook the prejudices and impressions of other 
persons, and the analogy of other cases. 

But is the sedition act the solitary infraction of the Constitution, 
which has been charged upon Congress? He would hardly 
venture to adduee a parallel case, from the part of the country in 
which he resided, distrustful as he should be of the weight to be 
attached to it, if not supported by authority which gentlemen 
would respect. He could remind them, that in that section of the 
country, a very general opinion had prevailed adverse to the 
constitutional power of Congress to institute an embargo by a 
perpetual statute. 

This opinion was entertained in the Eastern region of the 
country, by a class of proselytes, not less numerous, in all proba¬ 
bility, than that which, in another part of the country, had regarded 
the sedition act as passed in contempt of the Constitution. To 
this construction, however erroneous, (and he, Mr. O had never 
subscribed to it) a professional gentleman of high standing, (Mr. 
Dexter) and who soon after enjoyed the confidence of the repub¬ 
lican party in Massachusetts, and was said also to have possessed 
that of the general government, had lent the sanction of his 
eminent name and talents. What guarantee can then be given, 
if this motion prevails, against claims for all the fines and penalties 
incurred and levied under this act? Who will ensure us that 
twenty years hence, some individual, graced with the endowments 
of intellect and eloquence which distinguish the gentleman from 
Virginia, will not avail himself of some predominent party in the 
legislature, to stigmatize that system of embargo, and reclaim the 
penalties for the innocent sufferers, and their heirs and assigns ? 
He certainly should not think it a desperate case, if that honorable 
gentleman, (who, he hoped, might even then be in that Senate) 
or some other on whom the mantle of eloquence and influence 
might fall, should undertake to array in support of this doctrine, 
the feelings and prejudices of a party which might incline to 
adopt it. And, was this an extreme case ? Was it an hypothesis 
more eccentric than the possibilities suggested by the honorable 
gentleman himself ? Of bills of attainder, and palpable violation 
of the constitutional restrictions ? But could no other instances be 
adduced of sincere and ardent controversies upon constitutional 
questions, in which the opinions of those who represent the Grand 
Inquest of the people, and (consequently it may be supposed of their 


6 


constituents) have undergone a total revolution ? What shall we 
say of the Bank of the United States? Who has forgotten with 
what zeal and solemnity, the authority in Congress to erect that 
institution, was contested by those who assumed to speak the 
language of the great majority of the people.—Yet now a Bank 
was found to be, as he had always believed it to be, not only a 
constitutional establishment, but regarded by its former adversaries 
as essential to the arrangements of the Treasury, and to the 
support of public credit. Hereafter, however, the opinion of a 
majority in Congress might revolve once more, and the Bank 
again be denounced as an unconstitutional engine. Then under 
this precedent, all the penalties incurred for counterfeiting its 
bills should be remitted, and no legal process sustained for the 
recovery of its debts. It would be easy to multiply instances of 
these controverted powers of the Constitution. Upon the very 
prominent subject of roads and canals, the President and Congress 
were, at this hour, at variance. Suppose the resolution affirming 
the right to be in Congress had passed, and appropriations had 
been made and applied to the object, would it have become 
expedient twenty years hence, for any party in power to have 
declared the law unconstitutional, and to have doomed the roads 
and canals to decay and ruin, and to have justified those who 
should have been punished for breaking down the gates and 
dykes, by refunding their penalties? Sir, there is no foresight 
that can reach to the confusion consequent upon these doctrines. 
Nor is there occasion for recourse to such efforts at reformation. 
The honorable gentleman has supposed extreme cases, from 
which fair inferences can never be drawn. But for such cases, 
should they happen, he has pointed to the corrective, not merely 
in the public opinion but the popular force. Still, complete 
justice cannot be effected, it is said, by the mere process of public 
opinion, without retribution is made to the sufferer. But, a 
perfect distribution of rewards and punishments, according to our 
poor notions, is not awarded in this world, under the dispensations 
of heaven. It is not the attribute of any human system. Equal 
and exact justice cannot always be done to those who suffer in the 
cause of their country, and great principles must not be prostrated 
for minor and equivocal advantages, and in cases, of which the 
merit is a subject of dispute. 

There was, however, (said Mr. O.) another foundation on 
which gentlemen were disposed to support the motion, which w r as 
equally unsubstantial. They assumed it as a palpable and in¬ 
disputable fact, that u the fiat” of the public opinion had been 
pronounced upon the constitutionality of this law—that the power 
of the nation had been taken from the hands of its framers, and 
their downfall was to be ascribed to the public disapprobation and 
resentment, displayed peculiarly against this measure. He be¬ 
lieved, however, it would baffle the ingenuity of any man to de¬ 
monstrate that the revolution of parties in this country, was aU 


7 


tributable, solely, or principally, to the sedition act. There was 
no imaginable test or criterion, whereby to ascertain that the peo¬ 
ple had ever passed judgment against the constitutionality of that 
act. That the act had become unpopular, and a theme of great 
reprobation in many parts of the country, is undeniable; and for 
this reason, he had admitted, he would not disturb its ashes. It 
is admitted, also, that the public disfavour towards it has not di¬ 
minished. But, that a majority of the people, at the time of its 
passing, considered the act as a violation of the constitution, or 
that they are now in that persuasion, or have ever examined the 
constitutional question and qualified themselves to decide upon it, 
could not be made manifest by any proof. The change of ad¬ 
ministration, and of parties in power, did not turn upon the sedi¬ 
tion act alone. All the principal features of the old administration 
had been rendered obnoxious to the people. They were com¬ 
pelled to originate every thing, in the infancy of a new govern¬ 
ment. Their measures were, of necessity, experimental; and 
their experiments were made in difficult times and under great 
disadvantages. The people were led to consider them as super¬ 
fluous, oppressive, and expensive. It was not merely the act in 
question, but the army, the navy, the taxes, the bank and the 
whole series of measures against which the public disaffection 
prevailed. But, sir, when their triumphant successors came into 
power, with all their solicitude for reform, they have found them¬ 
selves, under similar circumstances, impelled to adopt many of 
the measures which they before, probably, with great sincerity 
condemned.—He did not make this intimation in any spirit of up¬ 
braiding or censure ; on the contrary, he was willing to do justice 
to the magnanimity which would renounce prejudices for the sake 
of the public welfare, and be reconciled to measures when con¬ 
vinced by experience of their necessity, which might formerly 
have been obnoxious to their censure. Such was now the state 
of affairs. Those who were now in power, finding themselves 
responsible for the conduct of our national concerns, had consent¬ 
ed, (and he said it with sincere approbation) to discharge that re¬ 
sponsibility, by the means pointed out by their unfortunate prede¬ 
cessors—by the only practicable means. It would indeed, sir,be a 
curious and not unedifying experiment, if two disciples, one of the 
old school and the other of the new, should commune together, 
in a disposition to ascertain, not the points of animosity and colli¬ 
sion, but the subjects of mutual assent, existing between them. If, 
sir, with this desire, and in an amicable frame, anxious to settle 
some practical principles, and to concur in measures adapted to 
promote the common interest of their country, they should re¬ 
view past transactions, what might be imagined to be the sub¬ 
stance of their dialogue? You, says the republican, in your time, 
expecting a war with France which did not happen, organized a 
provisional army at an enormous expence—and you, says the re- 
spondant, after you became involved in war with Great Britain; 


8 


raised an army also, and must have wished you had commenced 
the project at an earlier date.—But you augmented the naval es¬ 
tablishment and aimed to establish a navy, for which the country 
was not ready.— u Agreed that we did so, and we could have suc¬ 
ceeded in convincing the nation of its utility, but you were not 
convinced, and opposed it with the zeal and talents of your great¬ 
est men, at length, however, you have extended your views of a 
naval establishment, beyond those at that time indulged by us; 
and have secured great gl<wy and benefit to our country: I give you 
the homage of my thanks and will aid you in your support of it.” 
u But you made a Bank.”—“ So did you.”— 44 You imposed direct 
and internal taxes.”—“You did the same.”— u You increased the 
public debt and borrowed money at extortionate interest.”— 44 You 
could not proceed without borrowing larger sums at iiigher inte¬ 
rest.”— u You passed an alien act, when not formally at war ”— 
44 But you executed the provisions of an alien act, the moment you 
were actually at war.”— 44 You passed a sedition act ” Admitted, 
but our motives were good, and, finding it obnoxious to the people, 
it was permitted to expire. 

Sir, this comparison might be pursued further, and with ad¬ 
vantage, so long as motives are not arraigned and conciliatory 
temper should preside. The further we proceed, the more evi¬ 
dent it would appear, that those who are now in power had pur¬ 
sued, and had been compelled to pursue, the example of those 
who had preceded them, when called to act in similar emergen¬ 
cies ; and that to every fair description of the old system, by its 
opponents, it would be fair to answer 

u -Mutato nomine de te 

44 Fabula narratur.” 

Enough, however, had been said, to bear him out in his asser¬ 
tion, that the public opinion did not distinguish the sedition act as 
the only unpardonable sin of the former administration, but in¬ 
volved it in a general and indiscriminate condemnation of all its 
principal measures. Most of those measures had surmounted the 
odium which attended their adoption : this still remained the ob¬ 
ject of unrelenting aversion, and he certainly was not anxious to 
see it brought into favour. 

Mr. Otis persisted in disavowing every intention of reproach, 
or even of rebuke, and all emotions of envy or resentment; all 
disposition, in short, to do more than vindicate the patriotism and 
character of his absent friends, which he was most happy to find 
himself, by the candor of gentlemen, permitted to do without any 
occasion to complain of the course of debate. He felt no desire 
to impede the measures of any party or administration, merely 
because they had triumphed and his friends had fallen from 
power.—Let them be content with their power, and exercise it 
with a magnanimous regard to the common interests of the nation, 
(and hitherto he perceived no cause of complaint,) and while he 


9 


remained in that Senate an humble and insignificant member, he 
was ready to contribute his feeble aid, when wanted, to the pro¬ 
motion of any measure, or system, entitled to the approbation of 
his judgment and conscience, without reference to its source. 
He trusted, so far as he was informed, that this was the disposi¬ 
tion of his ancient colleagues and friends, who were more happy 
to behold their country prosper, than ambitious of taking an ac¬ 
tive part in its affairs. Perhaps the time may arrive, in which 
the well disposed of both political parties, may be willing to re¬ 
vert to the consideration of the means by which one has lost, and 
the other acquired, the administration of affairs, and the animosi- 
and invectives of which both have been prodigal, more with a 
view to a just estimation of their own faults and demerits, than 
those of their friends. Such a review would be salutary, at least 
iii preparing all to display more of forbearance and moderation 
towards their adversaries on future occasions, when new subjects, 
or new names, shall, in whatever form, excite the struggle of new 
parties. 

He concluded, by shortly recapitulating the arguments on which 
he rested his opposition to the motion—insisting that the sedition 
act was not unconstitutional—that Congress was not competent so 
to declare it—and that the people, however dissatisfied with it, 
had afforded no criterion, by which the public sentiment on that 
question, could be made certain. 

THE EXAMINER IN REPLY. 

The above speech was delivered by Mr. Otis, on the petition 
of Matthew Lyon, (a member of Congress) who was prosecuted 
under the Sedition law—who suffered imprisonment, and was 
subjected to a heavy fine.—The following remarks on this 
speech, were inserted in the u Independent Chronicle and Pa¬ 
triot ,” and as the doctrine advanced by Mr. Otis tends to 
the annihilation of the constitutional powers of the Legislature , 
and the establishment of the exclusive rights of the Judiciary , 
it is thought proper, that this important question should be 
maturely considered, by republishing the speech and the reply 
together. This mode must be acknowledged as the fairest 
ground , on which this controversy can be placed.—It is a sub¬ 
ject highly interesting, and we recommend the following exam * 
ination to the candid perusal of every impartial citizen.” 

o 


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