&jc Ms P H 1L A D E L P HIA , MONDAY EVENING, MAY to. CHARGE, DELIVERED f6 THE feRAND JURY of the UNITED STATES, For the district of Pennsylvania, In the Circuit Court of the United States for said diflrift, held in the City of Philadelphia, April nth, 1799. Br JAMES IREDELL, One of the Associate jtiftices of the Supreme Coert bf the United' Stiten. COXCLUDEn.' in fur her illustration of ihis fubjeft, I Jhall state a cafe which was determined in this Court —The United States against IVor 'rell, pubh'lhed in Mr. Dallas' 3 Reports, p. 384. Wiiere there was an indiftment a gainst tiie defcndast for attempting to bribe Mr. Coxe, the Commiflioner of the Revenue. The defendant was fonnd guilty, and after wards a motion was made in arrest of judg ment, assigning together with some technical objection?, this general one, that the Court, had no cognizance of the off«ncc, because no aft of cei grtfs had passed creating the offence and prescribing the punilhment, btit it was solely on the foot of the common law. The very able and ingenious Gentleman who is the reporter of that cafe, and was the de fendant's Counfol in it, in the course of his argument, makes the following oof-rvations, part of which are remarkably striking and pertinent to my prefent.fubjeft: " In rela tion to ctimes and punifhmenta, the objefts of the delegated power of the United States are enumeiated and fixed. Congress may provide for the punishment of counterfeiting the securities and current coin of the Uni ted States ; and may define and punish pira cies and felonies committed on the high seas, and offences against the law of naions. Art. i- feft. 8. And so Jikewife, Congress may mail all laws which Jball be necessary and pro per for carrying into execution the powers of the General Government. But here is no re ference to the common law authority: Eve ry power is matter or definate and positive grant ; and the very powen that ate granted cannot take effect until they are exercised through the medium of a law. Congress had undoubtedly a power to make a law, which ihould render it criminal to offer a bribe to the Covnmiffioner of the Revenue ; but not having made the law, the crime is ;H3t recognized by the Federal code, Confti tutiounl or Legislative ; and conlcquently, . it is nut a fubjeft on which the Judicial au thority of the Uniort can operate." So far the ci'fei vationi of the defendant's council, judge Chase, who on that occasion differed from Judge./it?,as to the common law jurii'di&ion of the Court, held, that under the Bth feftion of the firft article, which I am now' conlklering Although bribery is not among the crimes aud offences specially men tioned, it is certainly included in that gener al provision ; and Congress might have pas sed a law/on the fubjift, which would have given the Court cognizance of the offence. Judge Peters was of opinion, that the de fendant was punifiiable at common law ; but that it was competent for Congress to pass a Legiflatvve aft on the fubjeft. I conclude, therefore, that the firfl objec tion is not maintainable. With regard to the second objection, which'is, That this law is not warranted by that flaufe in the Cdnftitution authoring Congress to pass till laws which {hall be ne c.fftry and proper for carrying into execu tion the powers specially enumerated, and all other powers vetted by the Constitution in the Government of the United States, or in any d-partment or officer thereof; because it is not necessary and proper to pass any such law 111 order to carry into execution any of tlv fs powers, it is to be observed, that from the very nature of the power it is and must be difcrctionury. What is necessary and proper in regard to any particular fubjeft, cartno: before an occasion arises, be logic ally defined, but mud depend upon various extenMe views of a cafe which no human forelight can reach. What is necessary and preper in a time of confufion and general dis order, would not perhaps be necessary and proper in a time of tranquility and order. Theft! are considerations of policy, not qtief tions of law, and upon which the. legislature is bound to decide according to its real opin ion of the neceffir.y and propriety of any act particularly in contemplation. It is, however, alkdged, that the neceflity and propriety of palling collateral laws for the support of others is confined to cases where the powers art delegated, and does not ex tend to cases which have a- reference to ge neral danger only. The words are general, for carrying into execution the special powers previously enumerated, and all other powers veiled by the Coriftitution in the Go vernment of the United States, or,any de partment or officer thereof." If therefore there be any tiling neceflary and proper for carrying into execution any or all of those powers, I preftlme that may be co'nflitution ally enacted. Two objetts are aimed at by every rational Government, more especially by free ones. i. 'l'hat the people may un derflow! the laws, and voluntarily obey them. 2. That if thisbe notdone by any individu al, he fiiall be compelled to obey them, or punished for disobedience. The firft objeft is undoubtedly the mod momentous, for as the legitimate objefk of every Government is the happitiefs cf the people committed to its care, nothing can lend more to promote this than tbat by a voluntary obedience to the laws of the count y, they Ihould ren der punishments umuceffiry. This can never be the fafe in any country but a coun try of (laves, where gross misrepresentation prey.'.iis, and any large body of'the people ' i can be induced to btlieve that laws are made either without authority or tor the pur pole of oppreflion. Alk the great body of the people who were deluded into an ir.turrec tion in the western parts oi Ptunfylvania, what gave rife to it ? l'h-T will not hesitate to fay, that the Government had been vilely misrepresented, and made to appear to them in a charafterdireftly the reverie of whst they deserved. In consequence of such mil reprefentativns, a civil war had nearly deio lated> our country, and a certain expence ot near two millions of dollars was actually in curred, which might be deemed the price ot libels, and among other causes made necefla ry a judicious and moderate land tax, which no man denies to be constitutional, but is now made the pretext ot another insurrec tion. The liberty of the press is indeed val uable. Long may it preserve its lustre ! It | hr.s converted barbarous nations into civiliz ed ontfs, taught Science to rear its head, en- , lagged the capacity, increased tire comforts of private life, and, leading the banners ot freedoln, has extended her sway where her | very name was unknown. But as every human blefling is attended with imperfeftion as tvhat produces by a right life the greatest good, is produftive of the greatest evil in its abuse, so this, one of the greatest blessings everbeftowed by Providence on his creatures, is capable of producing the greatest good or the greatest mifchief. A pen- in the hands, of an able and virtuous man, may enlighten a whole nation, and by observations ot real wifdoHi, grounded on pure morality, may lead it to the path of honor and happiness. The fame pen in the hands of a man equally able, but with vices as great ai the other's virtues, may, by arts of sophistry easily at tainable, and inflaming the paflions of weak minds, delude many into opinions the most .dangerous, and conduft them to aftions the most criminal. Men who are at a distance from the Usurer of in formation must rely almost altogether on the accounts they receive from others. If their accounts are founded in truth, their heads or hearts must be to blame if they think or aft wrongly. But if their accouuts are falfe, the best head and the best heart cannot be proof against their influence ; nor is it peilible to calcu late "the combined effeft of innumerable ar tifices, either by direst falfehood, or invi dious insinuations, told day by day, upon minds both able and virtuous.' Such being unquestionably the cafe, can it be tolerated in any civilized society that any fhou'.d be permitted with impunity to tell falfehoods to the people, with an express intention to deceive them, and lead them into discontent, if not into infurreftion, which is so apt to follow ? It is believed no government in the world ever was without such a power. It is unquestionably poffefled by all the state governments, and probably has been ex ercised in all of them : sure I am-it has in some. If necessary and proper for them, why not equally fo,at least, for the govern ment of the United States, naturally an ob jeft of more jealousy and alarm, because it has greater concerns to provide for ? Com binations to defeat a particular law are ad mitted to be punifhlble. 4 Falsehoods in or der to produce such combinations, I Ihould presume, would come within the fame prin ciple, as being the iirft step to the mifchief intended to be prevented ; and if such falfe hoods with regard to one particular law are dangerous, and therefore ought not to be permitted without punilhment, why ifhould such which are intended to destroy confidence in government altogether, and thus induce disobedience to every part of it ? It is said, libel"; may be rightly punifiiable in Monarchies, but there is not the fame ne cessity in a Republic. The necefllty in the latter cafe, I conceive greater, because in a Republic more is dependent on the good opinion of the people for its support, as they are direftly or indireftly the origin of all au thority, 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 difcretionarv power, the conllitu tion and certain amendments to ft, have prohibited in express words the exercise of some particular authorities which otherwise might be supposed to be comprehended with in them. Of this nature is the prohibitory clause relating to the present objeft which I am to conlider under the next objeftion. 3. That objeftion is, That the aft is in violation of this amendment to the consti tution. (3d vol. Swift's Edition, p. 455. Article 3d.) " Congress {hall make no law refpeAirig 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 redrels of grievances. The question then is, Whether this law has abridged the free dom of the Press. Here is a remarkable difference in expres sions as to the different obje&s in the fame clause. They are to make no law respect ing an eftablifliment of religion, or prohibit ing the free exercise thereof ; or qbridgmg the freedom of speech, or cf the press. When as to one objeft they entirely prohib it any aft whatever, and as to another 00- ject only limit the exercise of the power, they must in realon be supposed to mean dif ferent things. I presume, therefore, that Congress may make a law respecting the' press, provided the law be not such as to a- bridge its freedom. j etl the Freedom of the Press, if it had been ! a new fubjeft, and never before in difcuf j fion, might indeed admit of some controver- I fy. But so far as precedent, habit, laws and practices are concerned, there can scarcely be a more definite nieaninp than that which all these have affixed to the term in que- II ion. We derive our principles of law origin jl ly 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. Tin definition of it i . in my opinion, no wht-rt more happily or jultly exprclVed than by the great Author ot the Commentaries on the Laws of England, which , book deserves more particular regard on this occafiou, be cause for near thirty years it has been the manual of almost every (Indent of law in the United States, and its' uncommon excellence has also introduced it into the libraries and often into the favourite reading ot private gentlemen ;fo that his views of thefubject could scarcely be unknown to those who fra med the Amendment to the Constitution, and if they were not, unlets his explanation had been fatisfaftory, Ipiefume the amend ment would have been more particularly, worded, to guard against any possible mis take. Nis explanatian is as follows : " The Liberty of the Press is indeed es sential -to the - nature ot a free (late : And this confiOs in laying no previous reflraints ' upon publications, and not in freedom from ! censure for criminal matter when published. i Every freeman has an undoubted right to lay what sentiments he pleases before the public ; ' to forbid this, is to destroy the liberty ot the I freedom of the press : but if he publishes | what is improper, mischievous, or illegal, he must take the eonfequence of hisown teme rity. To fubjea the press to the reftriftive power of a licenser, as was formerly dope, both before and since the revolution, is to' fubjea. all freedom of sentiment to the pre judices of one man, aifd make him the arbi trary and infalliable judge of all controver lial points in learning, religion and govern ment. But to punilh (as the law doe> at present) any dangerous oroffenlive writings, which, when published, fhall-on a fair ahd impartial trial be adjudged of a pernicious tendency, is neceffa'ry for the pr«iervation of peace and good order, of government and re ligion, the only solid foundations of civil li berty. Thus the will of individuals is still left free ; the abuse only of that free will is the object of legal punilhment. Neither is any reftrainc hereby laid upon' freedom of thought or enquiry : liberty of private sen timent js still left ; the disseminating or mak- . ing public, of bad sentiments, deftrudtive ot the ends of society, is the crime which so ciety correas. A man (fays a fine wiiter on this fubjea) may be allowad to keep poisons jn his closet, but not publicly to vend them as cordials. And to this we may add, that the only plaiifible argument heretofore used for the reft raining the just freedom of the press, " that it was neceflary to prevent the daily abuse of it," will entirely lose its force when it is (hewn (by a reasonable exercise ef the laws) that the plrefs cannot be abused to any bad purpose, without incurring a suitable punilhment : whereas it never can be used to any good one,when under thecontroul of an infpeaor. So true wiM it be found, that to censure the liceritiotifnefs, is to maintain the liberty of theprtfo." 4 Black. Cotn. 151. It is believed, th&tin<fVeryftnteintheunion the common law principles concerning libels apply ; and in some of the states words (inrilar, to the words of the amendment are used in the conftitutiQn itfelf, -or a con-temporary bill of rights of equal authority, without ever being supposed to exclude any law being pafled on the fubjea. So that there is the strongest proof thatcan.be of- a universal concurrence in .America on this point, that the freedom of the press does not require that libellers (kail be proteaed from punilhment. What might be deem- But in some refpefts the aft of congress is much more reffiriftive than the principles of the common law, or than perhaps the principles of-any state in the union. For under the law of the United States the truth of the matter may be given in evidence, which at common law in criminal prosecu tions was held not to be admifiible ; and the punishment of fine and imprisonment, which at common law was discretionary, is limited in point of severity, though not cf lenity. It is to be observed too, that by the express words of the aft both malice and falthood n-.'uft combine in the publication, with the se ditious intent particularly described, So that if the writing tje fftlfe, yet not malicious, or malicious and n»t falfe, no conviftton can take place. This fherefore £uHf provides for any publication arising from mistake, falfe confidence, or any thing fliort of a wilful falfehoqd. And none surely will contend that. the publication of such a falfe hood is among theindefeafible rights of men, for that would be to make the freedom of liars greater than that of men of truth and I integrity. I have now faidall I thought material 011 these important fubjefts. There is another upon which it is painful to fpealt, but the no toriety as well as the official cert inty of the faft, and the importance of the danger make it indispensable. Such incessant calumnies have been poured again ft the government for supposed breaches of the constitution, that an infurreftion has lately began for a cause where no breach of the constitution is or can be pretended. The grievance is the land tax aft, an aft which the pablie exigencies ren dered unavoidable, and is framed with par ticular anxiety to avoid its falling Cppreffive lyon the poor, and in effeft the greatellpart ot it must fall on rich people only. Yet arms have been taken to oppose itsexecution: officers have been Insulted ; the authority of the law refilled : and she government of the United States treated with the utmost defi ance and contempt. Not being thoroughly informed of all particulars, I cannot now fay within what class of offences these crimes are comprehended. But as some of the of fenders are committed for treason, and many | certainly have been guilty of combinations to refill the laws of the United States, I think it proper to point your attention par ticularly to those fubjefts. The provisions in regard to the former, so far as they may at present be deemejl material or inftruftivc are as follow: (Here the passages referred to ivere read.) . . The only species of treason likely to before you is that of levying war United' States. There have b»;n opinions, and different determiiiatiors o; the import of thofc words. Eu> I think I am warranted in faying, that it in the cafj ot' the insurgents who may carne under your confide ration the intention was to prevent by force of arms the execution of any a& of the congress of theUnitedStatesaltOgether (as for niftaiice the land tax at\, the object of. their opposition) any forcible oppoiition calculated to carry that intention into effeft was a levy- war again ft the United-States, and (A course an adl of treason. But it the inten tion was merely to defeat its operation in a particular instance, or through the agency of a particular officer, from some private or personal motive, though a high offence may have been committed, it did not amount to the crime of treason. The particular mo tive mult however be the sole- ingredient in the cafe, for if combined with a general view to obftrutt the execution of the aft, the -of fence mud be deemed treason. With regard to the number ot witnefles in treason, I am of opinion that two are ne cifiary on the indictment as well as upon the -triaJ in court. The provisions in the conlti tiitioil, that the two witnefles mud be to the fame overt-iic\ (or aftual deed constituting the treasonable offence) was in confeqnenee of a confirmation which had prevailed in Eng land that though two witnefles were requi red to prove an aft of treason, yet, if one .witnel's proved one adt, and another witness another ait of the fame species of treason, (as for instance that of levying war) it was fuf ficient ; a decision which has always appeared to me contrary to the true indention of the law which made two witnefles, neceflary— this provision being, as I conceived, inten ded to guard agaihft fictitious charges of trea son, which an unprincipled government might be tempted to support and encourage, even at the expence of perjury, a thing much more difficult to be effected by two than one. An aft of Gongrefs which I have already read to you (that commonly called the Sedi tion aft) has Ipecially provided in the man ner you , have heard, against combina tions to defeat the execution of the liyvs. The combinations punifliable under this rauft be diftinguithcd from such as in them filves amount totreafon, which is unaltera bly fixed by the confutation iti'elf. Any combinations, therefore, which before the palling of this aft, would have amounted to trealon, flill constitute the fame crime. To give the aft in question a different conftruft ion, would do away altogether the crime of treason as committed by levying vrar,beca«fe no war can be levied'without a combination for some of the purposes stated in the aft which mud neceflarily constitute a part though not the whole of the offence. Long, gentlemen, as I have detained you, Tor which the great importance of the occa lion, I trust, is a just apology, it will be ufe ful to recollect, that ever Since the firft for mation of the prcient government, every act which any extraordinary difficulty has occa sioned, has been uniformly opposed before its adoption, and every art practised to make the people.discontented after it; without any al lowance for the necessity which dictated them,' some seem to have taken it for granted that credit could be obtained without justice, mo ney without taxes, and the honor and fafety of the United States only prefcrved by « dis graceful foreign dependence. But, notwith standing all the efforts made to vilify and un dermine the government, it has uniformly rose in the esteem and confidence of people. Tihie has difpfoved arrogant predictions.; a true knowledge of the principles aijdconduft of .the government has reftrfled many gross misrepresentations ; credit has risen from its allies ; the country has been found full of re t'ources, which have been drawn without op preflion, and faithfully applied t« the purpo ses to which they were appropriated ; justice is impartially administered ; and the only crime which is fairly imputable is, that the minority have not been fuffcfed to govern the majority, to which they had as little pre tenfioh upon the greund of superiority of ta lents, patriotism, or general probity, as upon the principles of republicanism, the perpetu al theme of their declamation. If you Suffer this government to be destroyed, what chance have you for any other ? A Scene of the most drea4ful confuSion mult ensue*. Anarchy will ride triumphant, and all lovers of order, decency, truth and justice be trampled under foot. May that God whose peculiar provi dence fee ins often to have interposed to save" these United States from deftruftion, pre serve i\a from this worst of all evils ! And may the inhabitants of this Trappy country deserve his care and proteftion by a conduft best calculated to obtain them ! Philadelphia, May IJth, 1799. SIR, THE Grand Jury of the Circuit court of the .DHlrift of Penfylvatsa, have heard with great fatisfaftion, the Charge delivered to them, op '.lie opening of the Coiirt. At a time like the present, when falfe phi losophy and the moil dangerous and wicked principles are !'preading with rapittity, under the impoiinggarb of Liberty, over the faireft countries of.the Old World—they are con vinced, that the publication of a Charge, fraught with such clear and just observations on the nature and operation of the constitu tion and laws of the United States, will be highly beneficial to. the ci tizens thereof. With these lentiments strongly imprelTed on their minds, they utianimoufly request, that a Copy of the'faid Charge may be deli vered to thenl, for publication ; especially for the information of thofc, who are too eali ly led by the mifrepreCjntations of evil dilpo fed persons-, into the commillion of crimes, ruinous to themfclves, and against the peace and dignity of the United States. ISAAC W HARTON, Foreman, JOHN ROSS, EDWARD PENNINGTON, PHILIP NICKLIN, JOSEPH PARKER NORRIS, BENJ. W. MORRIS, THOMAS M. WILLING, ROBERT RALSTON, JOHN CRAIG, SAMUEL COATEF, DA VID 11. CON YKG u \r JtfH-N P£BOT, JAMES C. FISHER, DANIEL, SMITH, GIDEON HILL WELLS Wm. Montgomery ' W. BUCKLEY. Honorable > Judge'"''! RED ELL. 5 To the Gentlemen of the Grand Jury of the Unit ed States, for the uiflriS of Pennsylvania. Gentlemen, I receive with great fenfibftty the honour cf this addrefa, from gentlemen whom I p- r fonally lei'pect I'o mnch. Believing, as I have long done, that the cotftitution and laws of the United States afford the liighsft decree of rational liberty which the world ever s aw or of which perhaps mankind are capable I have seen with aftonilhment anti regret at tempts made in the pursuit of visionary chi meras, to subvert or undermind so glorious a fabric, eqtfajly contracted for; public and pri vate feci'rity. It cannot but be extremely pleasing to me, that the ffcntiments on this subject I delivered in my charge, ftionld mitt with your entire ipprobation ; and as you art pleated to I'uppof- the publication of them may be of some service in correcting errone ous opinions, I readily cor.sent to it, conli dering your fanctien of them as giving th em an additional value, which will increase the hope of their producing a good effect. ' JA. IREDELL. Philadelphia, May 15 tb, 1799. From a London paper of Jan. 26- In a former paper we noticed the death of the gallant captain Morlloci, of the Woolverkie gun vessel, who expired of his wounds at Gofport, on Thursday evening lad, about half past eleven o'clock. He di ed as he had lived, like a Hero. Hi* fplrlj were fn good to the last moment,that he e*. erud himftlf to comfort an afflifted mother and brother,who attended him, bvreprefent. ing his de ith as tlie mere fortune of war. He fpolte much of the a&ionin whichhcre. cei*ed his wound', and of the excellence of the ship he had commanded in—Theutmoit height of his ambition, he f;;id, were he to live, would be to command a frigat« on the fame plan as that (hip. The following particulars, we are happy in being able to add. as they cannot fail to place the name of capt. Mortlock high in the lift of those brave officers who, in the course of the pref*nt war, have raised the charafterof the Br tifh navy to an unprece dented height "of fame; The Woolverine failed from the Downs on the 3d infl. on a cruize or the coast of France. Being off Boulogne, (he difcovcr ed the two luggers, and as it wai then a thick fop, ftie vras of.courfr close to them before they saw one another. Capt Mort* lock immediately made them to be French, and his firft care was how to get them bro't to action, as he knew if they fuppefed his to be a (hip of war, they would mate off. He therefore put the Woolverine's head to wards them, ard hoilled Danifn colours. They immediately bore down and cams within hail—Being hailed by them, capt. Mortlock answered l<e was from Plymouth for Copenhagen, referviug his fire till they should come abreait of him. One of the luggers was close upon the (larboard quar ter, and he caught her bowsprit between the . mizen chains and the fide of the Wolverine, , having his main and mizen topfaili (hivering. He kept her in this situation ready to wear. 1 At this moment the action began wiih muf quetry, the Wolverine hoisting English co- I lours. Captain Mortlock now lathed the i bowsprit of the vessel on board of him to I his mizen chains, as he began to entertain I the hope of being able to take both vrffels. ] The other lugger meanwhile (h >t ahead, and got on the larboard bow of the Wolve rine, "running on board of her. In this po i fition he was boarded by the enemy three different times from both vefiela, but every Frenchmen engaged in those attempts were killed. At one time the crew of the luggef on the larboard bow made so strong an at tempt, that it required the assistance of al most every man in the W«lverine torepulfe them. At the fame moment an equally des perate effort was made by the other lugger on the quarter, and many Frenchmen were I actually on board the Wolverine, but were ' killed by the gallantry 2nd exertions of capt. Mortlock, and his brave officers and men. One Frenchman in particular was seen to cheer his men, and beat them with the flat of his sword. This man himfelf got on the top of the little round house of the Wolverine, and gave three cheers to encou rage the others to follow him. This man was supposed to be the captain of the French veffeß—Captain Mortlock ran up to him to dispute with him the possession of his post. Ihe l' renchman presented pis tol io capt Mortiock's face, which fortun ately raided fire. He again cocked his pis tol, but seemed in a moment struck with a panic, and captain Mortlock plunged hu half pike into his body before he could fire, and he fell overboaid. The Frenchmen now threw some. leaiher bags into the win dows of the Wolverine's cabin, the con tents of which immediately set her on fire, wiih ail txplofion as if the magazine had blown up. The whole crew were obliged to leave the enemy for the purpose of ex linguifhing the flames, and iq the mean time both vefiels got clear of the Wolverine, and .made off with all fail set, and as they out failed her they got away. While they were going off, one of them fired a (hot at the Wolverine, w(iich unfortunately struck capt- Mortlock, and gave him his death wound. He had btfore wounded :h £ different pla ces, but not so badly as to induce him to quit the deck. He was firft wounded in.one of his finder* —a spent ball, which had paff«d throug 1 hammock, hit him on the brealt, and occa lioned hirst a cofiderable degree of pain, and he was again wounded in the hip by a lp'i n *
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