title: A notable libel case; the criminal prosecution of Theodore Lyman, jr. by Daniel Webster in the Supreme judicial court of Massachusetts, November term, 1828
text: 4 v^O' 'OK ^^-^.^^ 4 o !^ 6 ° " ' * *© Si-f o, •• A'' •*-_ '^'^ %.^, "^^W^ .<^' >-^. v3> m <5> r , .^' % .0^ " * " ♦ '^o ^ -^y \j^ .0^ .-J^-' V • V '• o^ -0 ,^^ %'- '.'^ ^. jilil:iliiiiiiiiii.iiiiitiiiiiiiiiiiiiiniiiiiniii NOTABLE LIBEL CASE The Criminal Prosecution of Theodore Lyman J^- by Daniel Webster in the Supreme Judicial Court of Massachusetts November Term 1828 JOSIAH H. BENTON JR- BOSTON Charles E. Goodspeed 1904. Copyright, 1904, by Josiah H. Benton, J**- LIflPOTV ,it CO' Two CoDies !{ecr-v ■ i JUN 27 1904 Cooyrljrht en'i'v CLASS CC XXo. No. ^^s 7 / COPY 8' •B4T D. B. Updike, The Merrymount Press, Boston LIST OF ILLUSTRATIONS FACIKG PAGE DANIEL WEBSTER 2 From a Painting in the Supreme Jldicial Court, Boston THEODORE L Y:\IAX, Ja- 6 From a Bmt in the possession of Mrs. G. Rowland Shaw^ Boston DANIEL DAVIS 52 From a Painting in the possession of Captain Charles Henry Davis, U. S. N. SAMUEL HUBBARD 80 From a Painting in tfte possession of Walter Blck, Andover, ilassach usetts ISAAC PARKER 96 From a Painting in the Supreme Judicial Court, Boston A NOTABLE LIBEL CASE *' T^ID you, Mr. Webster, at that, or any other -L^ period, ever enter into any plot to dissolve the Union?" Strange as it may now seem, the Solicitor-General of Massachusetts deemed it necessary to put this question to Daniel Webster, as a witness for the Gov- ernment upon the trial of a criminal prosecution in the Supreme Judicial Court. Mr. Webster answered, "I did not, sir." The trial was of an indictment of Theodore Ly- man, Jr., for alleged criminal libel upon Daniel Web- ster, as a Senator of the United States, in 1828. The indictment alleged that Lyman had charged Web- ster with having conspired with other leading Fed- eralists in 1807-1808 to break up the Union and re- annex New England to England. This was a notable case, not only on account of the high standing of ^Ir. Lyman, the respondent, and of Mr. Webster, the prosecutor, but also on account of the legal and political questions raised and dis- cussed. The trial embraced in its scope the poUtical history of the country during the tumultuous period ( 2 ) from 1806 to 1816, the Embargo Acts, and the resist- ance to them, the conduct of the Hartford Conven- tion, the construction of the Federal Constitution, the power of the United States "to raise and support armies," and the right of the States to secede from the Union. Chief Justice Parker,* who presided, had, as a member of the Supreme Judicial Court, in 1812, sol- emnly advised the Governor and Council that the President of the United States could constitutionally call out State militia for national defence and war only at the will of the Governor of the State, t The leading counsel for the defence (afterwards a Justice of the Supreme Judicial Court) maintained that the States had a constitutional right to secede, and in argument stated this doctrine in the plainest terms, without correction by the Court, or dissent from Mr. Webster or the Solicitor- General. The trial excited not only local, but national, inter- * Isaac Parker was born in Boston, June 17, 1768, was graduated from Harvard in 1786, was a member of the House, 1791-1795, State Senator in 1796, member of Congress from the District of Maine, 1797-1799, voted and spoke for the AHen and Sedition Acts and failed of a reelection. In 1799 President Adams appointed him United States Marshal for the District of Maine, which office he held until 1803, when he was removed by President Jefferson. He was Associate Justice of the Supreme Judicial Court, 1806- 1814, and Chief Justice, 1814-1830. He was the first Royall professor in Harvard Law School, filling the place from 1816 to 1827. He was a trustee of Bowdoin College for eleven years, and an overseer of Harvard for twenty- two years. He was President of the Constitutional Convention of 1820, and died in the office of Chief Justice at Boston, May 26, 1830. t Massachusetts Acts and Resolves, 1812, p. 78. "Speech of Governor Strong. Opinions of Justices of Supreme Judicial Court, and other docu- ments. Published by order of the General Court 1812." DANIEL WEBSTER From a Painting in the Supreme Judicial Court, Boston ( 3 ) est at the time, and yet the name of the person prose- cuted and the real facts of the trial have been so far suppressed in general history that but few of even the best informed persons are now acquainted with them. Edward Everett and Henry Cabot Lodge do not mention the trial in their biographies of Web- ster. Neither Lanman, Harvey, nor any other bio- grapher of Webster, except Curtis, says anything of it, and it is not mentioned in any published or un- published Webster papers or correspondence, so far as I can ascertain. It is mentioned in the famous diary of John Quincy Adams, where he wrote : " Jan- " uary 16, 1829, Mr. Clay said he had mentioned " to Mr. Webster Lyman's libel and my publication " of 21st October, and that IMr. Webster professed " to have no unfriendly feeling to me, but that he " seemed to regret his having prosecuted Lyman." And again on March 21, 1829, after Mr. Adams had ceased to be President, he wrote in his diary: " Mr. Webster called also to take his leave. I told " him that in the publication in the National Intelli- " gencer of 21st October last I had not the most dis- " tant reference to him, and he said that he had no " feeling of dissatisfaction from it regarding me." But Mr. Adams says Webster spoke with great bitterness of Harrison Gray Otis* and other Federal- * Harrison Gray Otis was born in Boston, October 8, 1765, was graduated n ( 4 ) ists, and regretted the publication of Mr. Adams, because he thought it would tend to cause the Hart- ford Conventionists and the Jackson people to unite. Even Mr. Curtis, in his extended biography of Webster, while he speaks of the case, carefully sup- presses the name of the person indicted, refemng to him only as "a gentleman of high social standing. ' He says : " In the Autumn of 1828, Mr. Webster pro- secuted a gentleman of high social standing in Bos- ton by indictment for a libel." He then gives two pages to a statement of the case from the Webster side, and concludes by saying that, while the jury did not agree, ten were for conviction, and adds in a note that "a clearer case of hbel could not well exist." Mr. Curtis even suppresses Mr. Lyman's name in print- ing a letter from Henry Clay to Webster, of No- vember 30, 1828, in which Clay says: "You have all my wishes for success in the prosecution against Ly- man." Curtis quotes it "in the prosecution against ."* This suppression of Mr. Lyman's name, from Harvard, 1783, appointed United States District Attorney, 1796, was a member of the House, 1796, member of Congress, 1797-1799 and 1799-1801, member of the House, 1802, -3, -4 and 1813, and was Speaker in 1803 and 1804. He was State Senator in 1805, -6, -7, -8, -9, -10, -11, -19, -14, -15 and 1816, and was President of the Senate in 1805, 1808, 1809 and 1810. He was Presidential Elector in 1812, and United States Senator, 1817-1822. He was a member of the Hartford Convention in 1814, and one of the three Commissioners sent by Massachusetts, January 31, 1815, to negotiate with the National Government as to the conduct of the war. He was Mayor of Boston in 1829, 1830 and 1831, and died in Boston, October 28, 1848. • Curtis's Life of Webster, vol. i, pp. 331, 336. ( 5 ) while perhaps intended to avoid injury to the feehngs of his family and friends, recently provoked inquiry from a prominent gentleman in a Southern State as to the name of the " gentleman of high social standing" prosecuted by Webster. This inquiry led me to in- vestigate the trial, its causes and circumstances, and also to examine other matters connected with it. An examination of the Court records shows that the person prosecuted was Theodore Lyman, Jr. A pamphlet, now rare, by John W. Whitman, reporting the trial, and the Boston Daily Advertiser of Decem- ber 22, 1828, give what are apparently fairly accurate accounts. The prosecution was really only an echo of the Napoleonic wars. If there had been no struggle of Napoleon against England and the other European powers, there would have been no Berlin and ]\Ii- lan Decrees by Napoleon, no Orders in Council by George III, and no Embargo Acts under Thomas Jefferson ; there would have been no combination in New England against the Embargo Acts, and Dan- iel Webster would not have been charged with com- bining with other leading Federalists to break up the Union on account of the Embargo Acts. Lyman was said by Webster to have made this charge against him, and it was for this that Webster caused Lyman to be indicted and tried. ( 6 ) The circumstances of the pubhcation of the alleged libel and of the prosecution were these : In 1828, John Quincy Adams was the Federalist, and Andrew Jackson the Democratic (or, as it was then called. Republican) candidate for President. Adams, who was chosen to the United States Senate, in 1803, as a Federalist, had voted for the Embargo Acts of 1807 and 1808, and thereby provoked the bitter hostility of the INIassachusetts Federalists. In 1828, Webster and most Federalists in Massachu- setts supported Adams for the Presidency as against Jackson, but other Federalists, who had not forgiven Adams for his support of the Embargo Acts, sup- ported Jackson, and established a semi-weekly paper in Boston called the "Jackson Republican," for the purpose of opposing Adams and supporting Jackson.* Theodore Lyman was one of the proprietors of this paper. October 29, 1828, there was published in the Jackson Republican the following article: " We publish this morning a letter of December, " 1825, of Mr. Jefferson to Mr. Giles, and Mr. Adams's " own statement, published last week in the National * January 21, 1829, after the election of Jackson, this paper was called "The Evening Bulletin and United States Republican." April 29, 1830, the paper was transferred to the New England Palladium, which had been established as the Massachusetts Mercury in 1793, and was in 1830 merged in the Columbian Centinel. In 1840 the Centinel was merged in the Boston Advertiser, which was established under that name March 3, 1813, and was the successor of several Boston papers bearing the Advertiser name, commencing with the Independent Advertiser, established January 4, 1748. THEODORE LYMAN, .!«• From a Bust in the possession of Mrs. G. Homeland Shaiv, Boston ( 7 ) " Intelligencer at Washington, concerning disclosures " said, many months ago, to have been made by Mr. " Adams to Mr. Jefferson, in regard to the conduct of " the leaders of the Federal party in New-England, " during the whole course of the commercial restrictive " system. JMr. Adams confirms in his statement, in a " positive and authentic form and shape, the very im- " portant fact, that in the years 1807 and 1808, A^ did " make such disclosures. The reader will observe, that " Mr. Adams distinctly asserts, that Harrison Gray *' Otis, Samuel Dexter,* William Prescott, Daniel " Webster, Elijah H. Mills, Israel Thorndike, Josiah " Quincy, Benjamin Russell, John Welles, and others " of the Federal party of their age and standing were " engaged in a plot to dissolve the Union and to re- " annex New England to Great Britain; and that he " (INIr. Adams) possessed '^unequivocal evidence' of " that mostsolemn design. The readerwill also observe, " that in the statement, just published, of Mr. Adams, " there is no intimation whatever, that he does not still * Samuel Dexter was born in Boston, May 14, 1761, was graduated from Harvard, 1781, was State Senator, 1793, member of Congress, 1793-1795, United States Senator, 1799 to June, 1800, when he resigned and became Secretary of War, which office he held until December, 1 800, when he became Secretary of the Treasury, holding that office until March, 1801. He was a member of the Governor's Council in 1804 and 1805. He was one of the most eminent lawyers and advocates of his time. Mr. Webster said of him after his death : ' ' The earnestness of his convictions wrought conviction in others. One was convinced and believed and assented because it was gratifying and delightful to think and believe in unison with an intellect of such evident superiority." He died in Athens, New York, May 4, 1816. ( 8 ) " believe what he revealed to Mr. Jefferson and Mr. " Giles twenty years ago. All the gentlemen we have " mentioned above, are, with one exception,* still liv- " ing, and, with two exceptions, are active and ardent " political friends of JNIr. Adams. We here beg leave " to ask, why INIr. Adams's statement has been with- " held from the public eye more than a year? Why it " has been published only one fortnight before the " election for President all over the country ? Why for " three years he has held to his bosom, as a political " counsellor, Daniel Webster, a man whom he called, "in his midnight denunciation, a traitor in 1808? " Why in 1826 he paid a public compliment to Josiah " Quincy,t in Faneuil Hall, whom he called a traitor " the same year? And as the last question, why dur- " ing the visits he has made to Boston, he always met "in friendly and intimate and social terms all the " gentlemen, whose names a few years before, he " placed upon a secret record in the archives of our " Government as traitors to their Country ? Why did " he eat their salt, break their bread and drink their wine ?" * Samuel Dexter. t Josiah Quincy was born in Boston, February 4, 1772, was graduated from Harvard, 1790, was State Senator, 1804, and member of Congress, 1805- 1813, State Senator, 1813, -14, -15,-16,-17,-18 and 1819. He was a mem- ber of the House in 18-20 and 1821, and was Speaker in 1821. He was a member of the Constitutional Convention of 1820, a judge of the Municipal Court of the city of Boston, 1822, Mayor of Boston, 1823-1828 and Presi- dent of Harvard, 1829-1845. He died in Quincy, July 1, 1864. ( 9 ) The letter of Mr. Jefferson referred to in this arti- cle, and published in the same issue of the Jackson Re- publican, stated that during the time of the Embargo Acts Mr. Adams called on Mr. Jefferson and stated " That he had information of the most unquestionable " certainty that certain citizens of the Eastern States, " (I think he named Massachusetts particularly) were " in negotiation with the agents of the British Gov- " ernment, the object of which was an agreement " that the New England States should take no further " part in the war then going on; that, without for- "mally declaring their separation from the Union of " the States, they should withdraw from all aid and " obedience to them ; that their navigation and com- " merce should be free from restraint or interruption " by the British; that they should be considered and " treated by them as neutrals, and as such might con- " duct themselves towards both parties ; and at the " close of the war be at hberty to rejoin this Confed- " eracy." It will be observed, however, that neither this let- ter of Mr. Jefferson, nor the statement of Mr. Adams referred to in this article as published in the National Intelhgencer, and reprinted in the Jackson Repub- lican, named any persons who had "engaged in a plot to dissolve the Union," and yet the article said that " Mr. Adams distinctly asserts, that Harrison Gray ( 10 ) " Otis, Samuel Dexter, William Prescott,* Daniel *' Webster, Elijah H. Mills, Israel Thorndike, Josiah "Quincy, Benjamin Russell, John Welles,t and " others of the Federal party, of their age, and stand- " ing, were engaged 'in a plot to dissolve the Union,'" etc., and "that he, Mr. t John Welles was born in Boston, October 14, 1764, was graduated from Harvard, 1782, and became a merchant and largely interested in foreign trade. He was a member of the House in 1804, -5, -6, -7 and 1808, and in 1823 and 1830, State Senator in 1809, -10, -11, -12, -13, 1817 and 1820- 1821, a member of the Governor's Council in 1815 and 1816, and a member of the Constitutional Convention of 1820. He was a member of the first Common Council of Boston in 1822 and President of the Council in 1823. He died in Boston, September 25, 1855, in the ninety-first year of his age. "( 11 ) The gist of Mr, Webster's charge against Mr. Ly- man was, that whereas Mr. Adams had only charged that leading Federalists of Massachusetts had in 1808 been guilty of treasonable designs to break up the Union, naming no one in particular, but libelling them all, Mr. Lyman had named Daniel Webster as a per- son to whom the libel of Mr. Adams applied, and thus made Adams's libel of all the leading Federal- ists of Massachusetts Lyman's own libel of Daniel Webster. The defence of Mr. Lyman was in the first place that the article was not libellous, because, while Mr. Adams did not name any person specifically, he did charge «// the leading Federalists with treasonable de- signs in 1808, and while he spoke particularly of those of Massachusetts, he really referred to all leading Fed- eralists in New England, of whom, as Lyman said, Daniel Webster was then one. In the second place, Mr. Lyman claimed that the article was not directed against Mr. Webster, but only against Mr. Adams ; that he wrote the article hastily, forgetting that in 1808 Webster did not live in JVIas- sachusetts, and with no real intention of charging Mr. Webster with any treasonable plot, and that if he had done so in effect it was a mere inadvertence and mistake. Fully to understand this case and the trial, it is ( 12 ) necessary to consider the condition of affairs in 1808, the conduct of the Federahsts at that time and until the close of the War of 1812, the course pursued by Mr. Webster as to the Embargo Acts in 1808, and his subsequent course in opposition to the war with England. The trial, as I have said, was an echo of the Na- poleonic wars, of the victory of Nelson at Trafalgar, and of Napoleon at Austerlitz. Nelson destroyed the French and Spanish fleet at Trafalgar on October 21, 1805, and on December 1, 1805, Napoleon crushed the armies of the allies at Austerlitz. He then con- ceived the impossible scheme of shutting all English ports to the commerce of the world, and on November 21, 1806, issued the famous Berlin Decree, which pro- hibited all trade of neutral nations with England, or with any of her Colonies. The principal neutral trade of England then was in American ships. A treaty was pending between England and the United States, and England at once demanded that the United States should resist the Berlin Decree. To do this would have been, in fact, to join England in its war with France, and the United States Government dechned to comply with this demand. The English Govern- ment at once broke off the treaty negotiations, and on January 7, 1807, issued an Order in Council pro- hibiting all neutral trade between the ports of France ( 13 ) or of any of her allies. November 14, 1807, a second English Order in Council was made, prohibiting all commerce between a country at peace and a country at war with England, except through some English port, under an English licence, and on payment of a duty to England. Napoleon met this on December 15, 1807, by issuing another decree, known as the Milan Decree. This decree declared that any ship that permitted an English officer to search it, made a voyage to England, or paid a tax to England, was lawful prize of war, and that any ship that went to or came from any port on its way to and from any port in the British possessions, or entered or left any place occupied by British troops, should be seized as prize of war wherever it might be found. The United States was then, practically, only a sea- board nation, with infant manufacturing industries, which, under the protective tariff acts of the different States before 1787* (when Congress was first given power to impose a tariff upon foreign commerce) and the national protective tariff acts of 1789, had slowly struggled into existence ; and its commerce by sea was *See "An Act for laying additional duties on certain enumerated articles for encouraging the manufactory thereof within this State." Rhode Island Laws, 1785, General Session, p. 181. An Act to encourage and protect manufactures of this State by laying additional duties on certain manufactures which interfere with them. Pennsylvania Laws, 1785, pp. 6, 69. See also Report of the Committee for Encouragement of Manufactures. Massachusetts Laws, 1786, p. 411. ( 14 ) of the utmost importance to its prosperity, especially in New England. This commerce was by these De- crees and Orders in Council ground between the up- per and nether millstones of England and France. To meet this situation President Jefferson con- ceived a scheme, which proved even more hurtful to American commerce than the Napoleonic Decrees and the English Orders. It was nothing less than to prohibit all foreign commerce, and to make foreign trade by the United States a crime. He acted with unseemly haste, sending a special message of less than ten printed lines* to Congress, recommending an Embargo Act, December 18, 1807. Gallatin, by far the ablest member of the Cabinet, remonstrated in writing, but Jefferson would heed nothing. He was then the supreme power in the Government. Whatever he commanded. Congress hastened to do. When his message was received in the Senate all other business was at once suspended. The message was referred to a committee of five, of whom John Quincy Adams was one, and in a few minutes the Committee reported an Embargo Act. Adams said, " I would not deliberate. I would act" And they did not deliberate. The rules were at once suspended, and in four hours from the reception of the message, a bill laying an unhmited embargo on all the ships * Messages of the Presidents, vol. i, p. 433. ( 15 ) of the United States passed the Senate and was sent to the House of Representatives. There all amend- ments hmiting the duration or effect of the Act were rejected, and three days later, on December 22, 1807, the bill was signed by the President,* and an un- limited prohibition placed upon all the foreign com- merce of the United States. No more foolish or injurious legislation was ever enacted by Congress. The effect upon commerce and business was immediate and disastrous, especially in New England, where six towns are said to have had more than one third of the total tonnage of the United States. The Embargo Act at once made this property nearly valueless. Sailors and all persons employed in shipping were thrown out of employment; products for exportation fell more than one half in value ; far- mers soon had no market for their products and no means of paying their debts. Of course, the law was evaded in many ways, and January 9, 1808, a further Act was passed, which put the coasting trade and the New England fisheries under onerous and almost pro- hibitory conditions, t This Act was also evaded, and March 12, 1808, another Act was passed, affecting foreign trade not only by sea, but by land.t This was also evaded, particularly along the Canadian border, * United States Statutes at Large (1845), vol. ii, p. 451. t United States Statutes at Large (1845), vol. ii, p. 453. 5: United States Statutes at Large (1845), vol. ii, p. 473. ( 16 ) and April 19, 1808, Jefferson issued a proclamation declaring the country adjacent to Lake Champlain to be the seat of a combination against the laws of the United States, and calling the people "insurgents."* April 25, 1808, another Act was passed still more stringent than the previous Acts, t Under this Act no ship could sail unless loaded in the presence of a reve- nue officer, nor without special permission from the President, and no boat, however small, (ferry-boats alone excepted,) could navigate any bay or river, sound or lake, without a clearance from the collector of some port. The effect was that a farmer could not even take his own wheat to market in his own boat and bring back the flour for his own use without a clear- ance and a bond to the collector. The transportation of provisions from port to port on the coast was prac- tically prohibited. The whole New England coast was patrolled by armed vessels, the importation of flour into Boston was stopped, and preparations were made to put down any insurrection there by force. When the people of Nantucket asked for leave to bring in food, the President refused it, saying they must have smuggled away what they ought to have kept. He practically made himself commissary to the people, and decided what and how much they should eat. He * Messages of the Presidents, vol. i, p. 450. + United States Statutes at Large (1845), vol. ii, p. 499. ( 17 ) even declared that the character of a place must be considered, and if it were found to be tainted with the general spirit of disobedience, the individual who de- sired leave to transport merchandise must give posi- tive proof that he had never said or done anything himself to countenance that spirit. We can hardly realize now the pressure of these laws upon the people. Thousands failed, and the jails could hardly contain the poor debtors. In 1809, more than twelve hundred persons, ruined by the Embargo, are said to have been imprisoned as poor debtors in the city of New York alone. Places of business were closed, ships dismantled, and grass grew upon the wharves which before had been busy with profitable commerce. INIore than a hundred thousand men were thrown into idleness, and poverty and crime rapidly increased. The expenses of the Government increased, and its revenue from commerce fell in a single year from sixteen million dollars to only a few thousand dollars. State laws to stay the collection of debts were passed in direct violation of the national Constitution. The prosperity of the people was changed to ruin, their happiness to misery, and their hope to despair. The result was not only evasion of the law, but forcible resistance at many points in New England. The people assembled, protected those whom the officers attempted to arrest, and drove off the officers ( 18 ) themselves. Juries refused to convict persons pros- ecuted under the Embargo Laws. Still Jefferson did not yield to the distress and resistance of the people, and at his command, January 9, 1809, Congresspassed what was known as the " Force Act," * with heavy pen- alties, one half to the informer. This made it a crime to carry or attempt to carry merchandise out of the United States in any way whatever, and made it un- lawful to load any water-craft without leave of a United States collector, and under the direction of a United States inspector, and without giving a bond of six times the value of ship and cargo not to sail without permission. It also fixed the bond for leave to conduct commerce on any of the rivers, lakes, sounds and harbors at three hundred dollars a ton, and pro- vided that all collectors who should find any goods of home manufacture or growth on any water-craft, or should find them in a wagon or vehicle going to- ward the seaboard or the boundary line of another country, should seize and hold them until bonds were given not to take them out of the United States. And finally the President was authorized to use so much of the army as he saw fit for enforcing the Act on the land, and to hire, arm and equip vessels to enforce it on the water. A full and fair analysis of this Act and a state- * United States Statutes at Large (1845), vol. ii, p. 506. ( 19 ) ment of its effect in Massachusetts will be found in the report of the joint committee of the Legislature made February 1, 1809, upon the petitions of towns including "an immense majority of the people of the Commonwealth" asking for relief from its effect, and in the "Address of the Legislature to the People of the Commonwealth of Massachusetts," issued at the same session. More than one hundred and thirty of these petitions are still preserved in the Archives of the Commonwealth and show how harshly this op- pressive law was enforced by the President. As to its effect the committee say: '* The merchant on the sea coast has abandoned his " enterprizes, and the trader in the country has lost " his customers, his debts and his credits. The ship " owner beholds the silent and certain ruin of pro- " perty, sufficient to carry on the principal trade of " the world. The work shop of the mechanick is de- " serted, and the ship builder is without employment. " The produce of the farmer has fallen in value ; while " all the articles for which he depends on foreign na- " tions, have risen to a price which places them be- " yond his reach ; and this misfortune will now be " aggravated by an unprecedented addition of duties. " The creditor from necessity presses on his debtor, " and the debtor beholds his property sacrificed at " half its value." ( 20 ) This address plainly threatened disunion and forci- ble resistance to the Embargo Acts if they were not repealed.* No such arbitrary and oppressive act as the Force Act had been passed by Congress since the Alien and Sedition Acts of 1798, which wrecked the ad- ministration of John Adams ; and the people rose against it, especially in New England, almost as one man. The voters assembled in town meetings, began to correspond with each other, and to provide for the appointment of committees of safety, and for con- ventions to consider whether it was not necessary to break up the Union to be reUeved. The Legislature of Massachusetts at once passed a bill providing that any person making the searches provided for in the Force Act should upon conviction be punished with fine and imprisonment, but the Governor vetoed the bill.f They then passed resolutions declaring the Force Act to be "unjust, oppressive and unconsti- tutional," and declaring that Massachusetts was ready to cooperate with other States in legal measures for procuring such amendments to the Constitution as were " necessary to afford permanent security as well as present relief." • " The Patriotic Proceedings of the Legislature of Massachusetts During their Session from January 26 to March 4, 1809." Printed by Joshua Gush- ing, 79 State Street, Boston, 1809, pp. 40, 114, 129. t A copy of this bill from the State Archives is an Appendix hereto. ( 21 ) In Connecticut Governor Trumbull refused to appoint officers of the militia on whom the United States collectors could call for help, saying there was no authority for such appointments. He then called the Legislature together and declared to them that Congress had violated the Constitution, and that it was the duty of the States to protect the people from its action. In Rhode Island the Custom-House authorities having called on the Governor for aid to enforce the Act, he called out four companies of militia, but they met only to declare they would not serve. Popular indignation was most intense. The Em- bargo was called the "Dambargo," or, reversing its letters, the "O-grab-me," and the permits under it were called "Presidential Bulls and Indulgences." The press denounced it. Pamphlets were pubhshed and countless broadsides, caricatures and squibs were issued against it. Disunion was openly and widely advocated and the pulpit gave expression to the feelings of the people by sermons from the text, "Wherefore come out from among them, and be ye separate, saith the Lord." The Senators and Representatives from the New England States declared in Congress that the peo- ple were not bound to submit and would not sub- ( 22 ) mit to the Embargo Act. Timothy Pickering,* then in the Senate, said that the Revolution began in New England, "and one of the reasons assigned for the Declaration of Independence was the cutting off our trade with all the world." Joseph Story, t then a member of Congress, after- wards Justice of the United States Supreme Court, said that if the embargo continued there was great probability of attempting to separate the Eastern States from the Union. All the New England states- men were apparently of one mind with regard to the effect of the Embargo and Force Acts, and the peo- ple were with them, so that it did come to pass, as Jefferson afterwards said, that "the alternative was the repeal of the Embargo Acts, or Civil War." Finally Jefferson yielded to the storm, and on March 1, 1809, a bill repealing the Embargo Acts * Timothy Pickering was born in Salem, July 17, 1745, and was graduated from Harvard, 1763. He was Colonel in the Continental Array, 1775; Chief Justice, Essex County Court of Common Pleas, 1775; Judge of Maritime Court, Middle District, Massachusetts, 1776, 1777 ; appointed by Washing- ton Adjutant-General, 1777; member of Board of War, 1777, 1778, 1779; Quartermaster-General, 1780; drew the Answer to Washington's Fare- well Address to the Army, 1783; member of Pennsylvania Convention to ratify the United States Constitution, 1 787 ; member of Convention to adopt new Constitution in Pennsylvania, 1789; Postmaster-General, 1791; Sec- retary of War, 1795; Secretary of State, 1796-1800; United States Senator from Massachusetts, 1803 to 1811; member of Congress, 1812-1816 ; member of Governor's Council, 1817, and died in Salem, January 29, 1829. + Joseph Story was born in Marblehead, September 18, 1779, was graduated from Harvard, 1798, was a member of the House 1805, -6, -7, 1810 and 1811. He was Speaker in 1811, and resigned upon his appointment as Associate Justice of the United States Supreme Court, an office which he held until 1845. He was a member of the State Constitutional Conven- tion in 1820, and died in Cambridge, September 10, 1845. ( 23 ) from and after the end of the next session of Con- gress, and providing for non-intercourse with France and England and their colonies, was passed by Con- gress and signed by him.* Three days later he ceased to be President, and retired to Monticello, whence he constantly meddled with public affairs without offi- cial responsibility, but fortunately with constantly decreasing influence. But the repeal of the Embargo Acts did not re- Ueve the people of the United States from the un- just and arbitrary conduct of England. She did not revoke her Orders in Council ; she still continued to search our ships, blockade our ports, and impress our seamen, t until at last an indignant people forced the unwilling hand of President Madison, and June 18, 1812, Congress declared war with England, and we entered upon our second contest for independence. This war necessarily caused extreme hardship to the New England States, and the Federalists there under the leadership of Timothy Pickering, who had failed of a reelection to the Senate in 1811, opposed its prosecution in every possible way.t The plan of a Northern Confederacy, proposed by Pickering, •United States Statutes at Large (1845), vol. ii, p. 533. t See Message of President Madison, June 1, 1812. Messages of the Presi- dents, vol. i, p. 499. t See "Familiar Letters on Public Characters," p. 275, for account of meet- ing in Faneuil Hall, July 15, 1814, against the war, at which Josiah Quincy and Harrison Gray Otis were the principal speakers. ( 24 ) Plumer, Griswold, and Burr in 1804, and threatened in 1808 and 1809, was revived. This resulted in the fa- mous Hartford Convention, held upon invitation of the Legislature of INIassachusetts, which on October 18, 1814, "appointed twelve delegates to meet and " confer with delegates from the other States of New " England, or any of them, upon the subjects of their " public grievances and concerns," etc. Upon this in- vitation Connecticut appointed seven delegates, and Rhode Island four. These twenty-three met at Hart- ford, Connecticut, December 15, 1814, and admitted to the Convention two delegates chosen from local conventions in New Hampshire, and one from a local convention in Vermont. They were all of high per- sonal character, some of them the most eminent men in their States. George Cabot* of Massachusetts was chosen Presi- dent, and Theodore D wight of Connecticut Secretary. The Convention voted that its proceedings should be absolutely secret, and it continued in secret session until January 5, 1815, when it adjourned to meet at the call of the Chairman and one of two other dele- gates named. * George Cabot was born in Salem, December 16, 1751. He was a member of the Convention of 1779-1780, which framed the State Constitution, and of the Convention which ratified the United States Constitution in 1788. He was a State Senator in 1782, a member of the House in 1805, of the Governor's Council in 1808, and was President of the Hartford Conven- tion in 1814. He died in Boston, April 18, 1823. ( 25 ) While the Convention claimed to be acting within the provisions of the Federal Constitution, they prac- tically adopted the doctrine thatthe States had aright to nullify the laws of Congress, and advised separate action by the States in important matters confided by the Constitution to the General Government. They prepared a long report recommending numer- ous amendments to the Constitution, among others amendments providing against the electionof any per- son as President for more than one term, and against the election of a President from the same State for two successive terms,* prohibiting Congress from declar- ing war except by a two-thirds vote of both Senate and House, and prohibiting any naturalized citizen from holding any civil office under the United States, t This report was transmitted to the Governor of Massachusetts, and on January 18, 1815, by him laid before the Legislature, which on January 27 adopted a resolve "highly approving" the proceed- ings of the Convention, and authorizing the Gov- ernor and Council to appoint three commissioners to proceed immediately to the seat of the National Government and make an application for some ar- rangement whereby "the State of Massachusetts sep- * At that time the President had been chosen from Virginia for twenty- four out of the twenty-eight years during which the Federal Government had been established. + Massachusetts Resolves, 1815, pp. 580, 590, 596, ( 26 ) " arately or in concert with neighbouring States may " be enabled to assume the defence of their territories " against the enemy," and also on January 30 passed a resolve for paying the members of the Convention from Massachusetts for their attendance and travel. In all this opposition to the Embargo Acts and to the war with England, Daniel Webster took an ac- tive and leading part. In 1808, he was practising law in Portsmouth, New Hampshire. He was a Federalist by inheritance, by disposition and by surroundings. He was a faithful disciple of Timothy Pickering, who instigated the Hartford Convention and practically guided its action. As soon as Webster was elected to Congress, and before he took his seat, in 1813, he wrote Mr. Pickering assuring him of his respect and placing himself under Pickering's political guidance. * He was absolutely opposed to the policy and purposes of Jefferson and of Madison, and to the War of 1812. In a speech before the " Federal gentlemen" of Con- cord, New Hampshire, in 1806, he attacked the ad- ministration of Jefferson with great ability and force, and in 1808 he published a pamphlet which first brought him into political prominence, entitled, "Are the Embargo Laws Constitutional?"! This was put in evidence in the Lyman trial. * Life of Timothy Pickering, vol. iv, p. 223. t Writings and Speeches of Daniel Webster. Little, Brown & Co. edition, 1903, vol. XV, p. 562. ( 27 ) In July, 1812, he made a speech in opposition to the war with England, and in August of the same year he wrote what was known as the " Rockingham Memorial,"* addressed to the President, in oppo- sition to the war. This memorial distinctly spoke of and practically threatened secession from the Union as the result of the conduct of the adminis- tration. His first act upon taking his seat in Congress as a member from New Hampshire was to harass the Government by the introduction of resolutions call- ing for information as to the repeal of the French de- crees, and by making a vigorous speech in opposition to the war. December 9, 1814, Webster said in Congress that Congress had no power to raise armies by calling out the militia against the will of the States; and he added in words which had but one meaning, that of State resistance to the National Government: " It will be the solemn duty of the State Govern- " ments to protect their own authority over their own " militia and to interpose between their own citizens " and arbitrary power. These are among the objects " for which the State Governments exist. . . . And I " shall exhort them to exercise their unquestionable * Writings and Speeches of Daniel Webster, vol. xv, p. 598. 