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Full text of "A notable libel case; the criminal prosecution of Theodore Lyman, jr. by Daniel Webster in the Supreme judicial court of Massachusetts, November term, 1828"

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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. Adams, 'possessed unequivo- 
cal evidence of that most solemn design.'" The ar- 
ticle twice specifically named Daniel Webster, ask- 
ing, why for three years he (President Adams) has 
" held to his bosom, as a political counsellor, Daniel 
" Webster, a man whom he called in his midnight 
" denunciation, a traitor in 1808 ;" also why President 
Adams has "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." 

* William Prescott was born in Pepperell, August 19, 1762, was graduated 
from Harvard, 1783, was a member of the House, 1798, -99, -1800, -1 and 
1802, also in 1811, 1821 and 1823. He was a member of the State Senate in 
1804, a member of the Governor's Council in 1809, 1812 and 1813, a mem- 
ber of the Hartford Convention in 1814, a judge of the Court of Common 
Pleas for Suffolk County in 1818, 1819, and a member of the Constitutional 
Convention in 1820. In 1828 he retired from practice, when he was said by 
Mr. Webster to have been " unquestionably the most eminent man at the 
Bar in Massachusetts." He died in Boston, December 8, 1844. 

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. 



( 28 ) 
"right of providing for the security of their own 
"Hberties."* 

No word here of the power of the Federal Judi- 
ciary to decide this question — only an open and un- 
qualified appeal to the doctrine of States' rights and 
a practical declaration of the right of the States to 
nullify the Acts of Congress. No wonder that such 
words were followed within one month by the decla- 
ration of the Hartford Convention that " In case of 
" infractions of the Constitution affecting the sover- 
*' eignty of a State and the liberty of its people, it is 
" not only the right but the duty of such a State to 
" interpose its authority for their protection in the 
" manner best calculated to secure that end. ... In 
" such emergencies States which have no common 
" umpire must be their own judges and execute their 
" own decisions.'' 

Webster voted constantly with Pickering, who was 
then in the House, and acted at all times with the ul- 
tra-Federalists, who had, as Mr. Adams charged, un- 
doubtedly proposed in 1804, and again in 1808 and 
in 1814, to break up the Union and form a separate 
Confederacy of the New England and other Eastern 
States, t Even after the British Army had entered 

•The Letters of Daniel Webster, p. 67. C. H. Van Tyne. 
tSee Letters of Pickering to Theodore Lyman, February 11, 1804, and 
November 14, 1804; to Stephen Higginson, December 24, 1803; toRufus 
King, March 4, 1804 ; and other correspondence on the subject of a North- 



( 29 ) 
Washington and burned the White House and the 
Capitol, Mr. Webster voted against taxes to carry on 
the war, and also spoke and voted against an act to 
enlist soldiers and raise men by draft to defend the 
Country, taking the ground that the General Gov- 
ernment under its powers " to raise armies " could 
only obtain troops by contracts of erdistment, or by 
calling on the States to furnish militia. 

He also spoke and voted against the establishment 
of a United States Bank, with power to issue notes 
in such a way as to aid the Government in carrying 
on the war. In short, he constantly opposed the Gov- 
ernment, by voice and vote, in the war against Eng- 
land, — " our second war of independence." 

A man is known by the company he keeps ; and 
it is not strange that JNIr. Lyman, writing in 1828, 
should have named Webster with the men with 
whom he had thus constantly acted. 

^Ir. Webster, however, with whom love of the 
Union had then become an absorbing passion, and 
who had long ceased to have any sympathy with the 
ultra-Federalists with whom he had acted, and who 
had contemplated disunion, was naturally highly in- 
censed by Mr. Lyman's article in the Jackson Re- 
publican. He at once employed Charles P. Curtis,* 

em Confederacy, printed in Henry Cabot Lodge's Life and Letters of 

George Cabot. 

* Charles Pelham Curtis was born in Boston, June 25, 1792, was graduated 



( 30 ) 
then the City Sohcitor of Boston, and Richard 
Fletcher,* one of the most eminent members of the 
Bar, to ascertain who wrote the article, and upon 
application to the pubhshers of the paper, they were 
informed on November 1 that the article was written 
by Theodore Lyman, Jr. 

Webster and Lyman were former political associ- 
ates, and had been personal friends and neighbors from 
the time Mr. Webster came to Boston. They were on 
intimate social terms, met usually several times a 
week, and had for years belonged to a dinner club 
that met every Saturday. It would have been a very 
simple matter for Mr. Webster to have asked :Mr. 
Lyman for an explanation as to whether he intended 
to charge him with having been engaged in a plot to 
break up the Union in 1808. If this had been done, 
a satisfactory disclaimer would doubtless have been 
made, as subsequent events well show. 

Boston was at that time a small place. It had no gas 
in its streets, no railroads or street railways, and no 
telegraph, and its only water supply was a line of log 
pipes from Jamaica Pond. The Post-Office had but 
eight clerks, and the town had only four notaries, 

from Harvard, 1811, attained distinction at the Bar, was a member of the 
Legislature in 1838 and in 1842, and died in Boston, October 4, 1864. 
* Richard Fletcher was born in Cavendish, Vermont, January 8, 1788, was 
graduated from Dartmouth, 1806, studied law with Daniel Webster, was 
member of Congress, 1837-1839, and an Associate Justice of the Supreme 
Judicial Court, 1848-1853. He died in Boston, June 21, 1869. 



( 31 ) 
three assessors, and one savings bank. It still elected 
many of the old town officers. It had two pound- 
keepers, four fence-viewers, and three hog-reeves, and 
its directory had a separate list of "people of color." 
Its residences still had gardens and yards with shrubs 
and trees. Its residential and business quarters were 
so hmited that all persons in Mr. Webster's and Mr. 
Lyman's station in life were practically near neigh- 
bors, and necessarily met frequently. They all lived 
near one another. Webster first lived on IMount Ver- 
non Street, and then on Somerset Street, not far 
from INIr. Lyman, who lived on Bowdoin Street, and 
Judge Orne, who lived on Hancock Street. Josiah 
Quincy, the INIayor, hved in Hamilton Place, while 
his son, Josiah Quincy, Jr., lived at 4 Park Street, 
and had his office at 16 Court Street. Benjamin Rus- 
sell, editor of the Centinel, lived on Pearl Street, and 
Isaac Pray, foreman of the Grand Jury, who found 
the indictment against Lyman, lived on Purchase 
Street. Samuel Hubbard lived in Bumstead Place, 
from which there was then a view of the Brookline 
hills, and had his office in Barristers Hall, next the 
Court House on School Street ; while James T. Aus- 
tin lived in Fayette Place, or Colonnade Row, on the 
east side of the Common, and had his office in the 
Court House ; and the SoHcitor- General, Daniel Da- 
vis, Hved on Somerset Street. Harrison Gray Otis 



( 32 ) 
lived at 20 Beacon Street; William Prescott lived 
in Bedford Street, and had his office in Court Street; 
while John Davis,* United States District Judge, 
lived in Federal Street, near Mr. Webster. Warren 
Dutton lived in Fayette Place, and had his office in 
Barristers Hall. Richard Fletcher lived at the "Ex- 
change" in Congress Square, and had his office at 
26 State Street; and Franklin Dexter, then a repre- 
sentative in the General Court, lived at 3 Chauncey 
Place, near Summer Street. John Welles, John 
Lowell, t Jonathan Callender, Clerk of the Supreme 
Court, Charles P. Curtis, Chief Justice Parker, Is- 
rael Thorndike, and Daniel Webster all hved on 
Summer Street; and doors were cut between the 

* John Davis was born in Plymouth, January 25, 1761, was graduated from 
Harvard in 1781, was a member of the Conventions of 1788 and 1820, 
was a member of the House in 1792, -93, -94, and a State Senator in 1795. 
In 1801 President Adams appointed him District Judge of Massachusetts, 
an office which he held for forty years. He died in Boston, January 14, 1847. 
He decided in the Embargo cases that the Embargo Law was constitu- 
tional, and when Samuel Dexter persisted in arguing the question of con- 
stitutionality to the jury, he threatened to commit him for contempt. Mr. 
Dexter then asked postponement until the next morning, to which Judge 
Davis assented. In the morning Mr. Dexter stated to the Court that he 
had arrived at a clear conviction that it was his duty to argue the consti- 
tutionality of the Embargo Law to the jury, and should do so regardless 
of the consequences to himself; and he did so without any further inter- 
ference by the Court. 

t John Lowell was a son of John Lowell who was born in Newbury, June 
17, 1743, was graduated from Harvard, 1760, was a member of the House. 
1780, -81, -82, and a member of the Convention which framed the State 
Constitution in 1779-1780. He was a member of the Continental Congress. 
1782-1783, and a State Senator in 1784-1785. He was United States Dis- 
trict Judge, 1789-1801, and Chief Justice of the United States Circuit 
Court for Maine, Massachusetts, New Hampshire and Rhode Island, 1801- 
1802, when the Court was abolished. He died in Roxbury, May 6, 1802. 



( 33 ) 
houses of Webster and Thorndike, so that they were 
used together for receptions and other large social 
gatherings.* The only Catholic church, the Church 
of the Holy Cross, was in Franklin Street. The First 
Church was in Chauncey Place, and the New South 
Church and Trinity Church were in Summer Street. 
The Boston Athenaeum was in Pearl Street, and the 
principal theatre was in Federal Street. 

The actors in this matter were all members of a 
small social circle, and on excellent social terms ; and 
if only personal considerations had been involved, it 
is impossible to believe that any prosecution would 
have been instituted by Mr. Webster against Mr. 
Lyman. 

But Webster and his political friends were bitter 
against Lyman because he had left them and was 
supporting Andrew Jackson for President, whom 
they regarded as the representative of everything that 
was bad and dangerous in politics. The opportunity 
to punish Lyman, put him in the criminal dock, and 
probably to convict him of a crime was too tempt- 

* Webster came to Boston from Portsmouth, New Hampshire, August 14, 
1816, and for a short time boarded with Mrs. Delano. He then rented a 
house of Mr. Mason on Mount Vernon Street, where he Uved until De- 
cember, 1819. His daughter Julia was born and his daughter Grace died 
in this house. He then moved to Somerset Street, where he lived until 
1822, when he took lodgings in Pearl Street, living a part of the time 
in Dorchester, which was then a country suburb. In November, 1824, he 
moved into the Thorndike house at the corner of Summer and High streets. 
This spot is now covered by a large mercantile building bearing a tablet, 
"The Home of Daniel Webster." 



( 34 ) 
ing to be lost. No explanation of the article was asked 
of Mr. Lyman, and naturally none could be given by 
him unasked. Twelve days after the article was pub- 
lished, Mr. Webster through his counsel presented 
the article as a criminal libel to the Grand Jury in the 
Supreme Judicial Court, and they at once returned 
an indictment against Mr. Lyman for criminal Ubel 
against Mr. Webster in his office as a Senator of the 
United States from Massachusetts. 

The character of this prosecution was itself unjust 
to JNIr. Lyman. Mr. Webster could have brought a 
civil action against him for damages, and the facts 
could have been brought out in that as well as in a 
criminal prosecution, except that, as the law then was, 
neither Webster nor Lyman, being parties, could 
have testified. In a criminal prosecution Webster 
could testify, while Lyman could not, so that by the 
form of the prosecution Webster closed Lyman's 
mouth, while he himself retained the right to testify, 
and did testify. 

The fact that the prosecution was instituted in the 
Supreme Judicial Court, the highest Court in the 
Commonwealth, instead of in the INIunicipal Court, 
which then had jury trials and had as a judge the best 
criminal law lawyer in the Commonwealth,* and 

• Peter Oxenbridge Thacher, Judsre of "The Municipal Court in the Town 
of Boston " from 1823 to 1843. This Court had jurisdiction of all criminal 
cases not capital. 



( 35 ) 
where prosecutions for libel were usually brought, is 
also significant of the motive of the prosecution. A 
trial in the JNlunicipal Court would not be so effec- 
tive upon the public mind at large as one in the high- 
est Court, and therefore the usual course was not 
taken. 

The character of the indictment was also most un- 
usual and, I believe, unprecedented in JNlassachusetts. 
It was framed upon a precedent under the law of 
scandalum magnatum, or slander of great men, an 
offence adopted into the EngHsh law in the Star 
Chamber prosecutions, but never adopted as a part of 
the common law of the United States. It was mani- 
festly calculated by its harsh and unnecessarily vitu- 
perative terms to put the utmost indignity upon Mr. 
Lyman. It is wholly in the handwriting of Daniel 
Davis,* the Solicitor-General, and is as follows : 

" Commonwealth of Massachusetts. Suffolk, ss. 

" At the Supreme Judicial Court, begun and holden 
" at the City of Boston, within the said County of 

• Daniel Davis was born in Barnstable, May 8, 1762. He was appointed 
United States District Attorney by Washington in 1796, was a member of 
the House in 1789, -90, 1792, -93, -94 and 1795, State Senator in 1796, 
-97, -98, -99 and 1800, a member of the Constitutional Convention of 1820, 
and Solicitor-General from 1807 to 1832, when the office was aboHshed. He 
died in Cambridge, October 27, 1835. 

His son, Charles H. Davis, became a Rear-Admiral in the United States 
Navy, and was the father of the wife of Henry Cabot Lodge, United States 
Senator from Massachusetts. His daughter, Louisa, married William Minot, 
an eminent trust lawyer of Boston. 



( 36 ) 
* Suffolk, and for the Counties of Suifolk and Nan- 
' tucket, on the second Tuesday of November, in the 
' year of our Lord one thousand eight hundred and 
' twenty-eight 

' The Jurors for said Commonwealth of Massachu- 
' setts upon their oath present, that Theodore Ly- 
' man, Jr. of Boston, in the said County of Suffolk, 
' Esquire, being a person of malicious temper and 
' disposition, and regardless of the integrity, patriot- 
' ism, and purity of character, which the citizens of 
' this Commonwealth, and of the United States, when 
' elected to, and intrusted with offices of honor, trust 
' and responsibility, in the administration of the gov- 
' ernments of this Commonwealth, and of the United 
' States, ought to possess and sustain; and unlaw- 
' fully, maliciously and deliberately, devising, con- 
' triving and intending to traduce, vilify and bring 
' into contempt and detestation, one Daniel Web- 
' ster, of said Boston, Esquire, who was on the day 
' hereafter mentioned, and still is one of the Sena- 
' tors in the Congress of the United States of Amer- 
' ica, for the State of Massachusetts, duly, and con- 
' stitutionally, elected and appointed to the office, 
'and also, maliciously intending to insinuate, and 
' cause it to be believed, that the said Daniel Web- 
' ster, and divers other good and patriotic citizens, of 
' this Commonwealth, had been engaged in an atro- 



( 37 ) 
*' cious, and treasonable plot to dissolve the Union 
" of the said United States, then, and still constitut- 
'* ing the Government of the said United States, un- 
" der the present Constitution thereof; and further, 
" maliciously intending to insinuate, and cause it to 
" be believed, that John Quincy Adams, the present 
" President of the United States, had denounced the 
" said Daniel Webster, as a traito?^ to his Country; on 
" the twenty-ninth day of October, now last past, at 
*' Boston aforesaid, in the County of Suffolk afore- 
" said, unlawfully, maliciously and deliberately, did 
*' compose, print and publish, and did cause and pro- 
" cure, to be composed, printed and published, in a 
" certain newspaper called the Jackson Republican, 
" of and concerning him, the said Daniel Webster, 
" an unlawful, malicious, and infamous libel, accord- 
" ing to the purport and effect, and in substance, as 
"follows, that is to say, *We, (meaning the said 
" Theodore Lyman, Junior,) publish this morning a 
" letter of December, 1825, of IMr. Jefferson, to Mr. 
"Giles, and Mr. Adams's (meaning John Quincy 
" Adams, the present President of the United States,) 
" own statement, published last week in the National 
" Intelligencer, at Washington, concerning disclo- 
" sures said many months ago, to have been made 
"by Mr. Adams, (meaning the said John Quincy 
" Adams,) to Mr. Jefferson, (meaning Thomas Jef- 



( 38 ) 
" ferson, late of the State of Virginia,) in regard to 
" the conduct of the leader of the Federal party, in 
" New England, during the whole course of the com- 
"mercial restrictive system. Mr. Adams (meaning 
" the said John Quincy Adams) confirms in his state- 
" ment, in a positive and authentic form and shape, 
" the very important fact, that, in the years 1807 and 
" 1808 he, (meaning the said John Quincy Adams,) 
" did make such disclosures. The reader will observe, 
" that JNIr. Adams, (meaning the said John Quincy 
*' Adams,) distinctly asserts, that Harrison Gray Otis, 
" Samuel Dexter, William Prescott, Daniel Web- 
" ster, (meaning the aforesaid 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 

* Captain Israel Thorndike was born in Beverly, April 30, 1755, was appren- 
ticed as a cooper, became a privateer during the Revolution, and as a suc- 
cessful merchant captain and owner of ships attained wealth after the war. 
He was a member of the Massachusetts Legislature in 1788, and a member 
of the Constitutional Convention of 1788, which ratified the Federal Con- 
stitution. He was a member of the House in 1802, -3, -4, -5, -6, 1808 and 
1815, and a member of the State Senate in 1807 and 1809, -10, -12, -13 and 
1814. Hewas a Presidential Elector in 1812 and in 1816, and a member of the 
Constitutional Convention in 1820. He removed to Boston from Beverly 
about 1800, and by judicious investments in manufactures and real estate 
became the richest man in the city. He was active in business and politics 
until his death. May 10, 1832, when he left an estate appraised at $1,133,- 
401.52, the largest fortune which up to that time had been left in New 
England. He was a firm friend and patron of Webster, who lived next door 
to him on Summer Street for many years. 

His son, Israel Thorndike, Jr., built, at the corner of Beacon and Joy 
streets, one of the finest houses in the city, which he afterwards sold to 
Robert G. Shaw, whose son, G. Howland Shaw, married the youngest 
daughter of Theodore Lyman . This house was afterwards the home of Fred- 
eric Tudor and its site is now occupied by the Hotel Tudor. 



( 39 ) 
" engaged in a plot to dissolve the Union, (mean- 
" ing the Government of the said United States,) and 
"to re-annex New England to Great Britain; and 
" that he (Mr. Adams,) (meaning the aforesaid John 
" Quincy Adams) possessed unequivocal evidence, of 
" that most solemn design. The reader will, also, ob- 
" serve, that in the statement just published, of Mr. 
" Adams, (meaning the said John Quincy Adams,) 
"there is no intimation whatever, that he, (mean- 
"ing the said John Quincy Adams,) does not still 
" believe, what he, (meaning the said John Quincy 
" Adams,) revealed to Mr. Jefferson, (meaning the 
" aforesaid Thomas Jefferson,) and3Ir. Giles, twenty 
"years ago. All the gentlemen we (meaning the 
"said Theodore Lyman, Junior,) have mentioned 
" above, are, with one exception, still living and, with 
" two exceptions, are active and ar dent i^oliticalfriends 
" of Mr. Adams, (meaning the said John Quincy 
" Adams.) We (meaning the said Theodore Lyman, 
" Junior,) here beg to ask, why Mr. Adams's (meaning 
" the said John Quincy Adams,) statement, has been 
"withheld from the pubUc eye more than a year? 
" why it has been published only one fortnight be- 
" fore the election for President all over the coun- 
" try? why for three years he (meaning the said John 
" Quincy Adams,) has held to his (meaning the said 
" John Quincy Adams) bosom, as a political counsel- 



( 40 ) 
" lor, Daniel Webster, (meaning the aforesaid Daniel 
" Webster,) a man whom he (meaning the said John 
"Quincy Adams,) called in his (meaning the said 
"John Quincy Adams,) midnight denunciation, a 
"traitor in 1808? (meaning the said John Quincy 
" Adams, had called and denounced the said Daniel 
" Webster, as a traitor to the government of the 
" United States, in the year 1808?) Why in 1826, he 
" (meaning the said John Quincy Adams,) paid a 
" public compliment to Josiah Quincy, in Faneuil 
" Hall, when he (meaning the said John Quincy 
"Adams,) who called a traitor, (meaning traitor) 
" the same year? and as the last question, why, dur- 
" ing the visits he (meaning the said John Quincy 
" Adams,) has made to Boston, he (meaning the said 
"John Quincy Adams,) always met on friendly and 
"intimate and social terms all the gentlemen, (mean- 
" inec gentlemen, and the said Daniel Webster as one 
" of them,) whose names a few years before, he (mean- 
" ing the said John Quincy Adams,) placed upon a 
" secret record in the archives of our Government as 
" traitors to their Country ? (meaning that the said 
" John Quincy Adams had placed the name of the 
"said Daniel Webster, with others, upon a secret 
" record in the archives of the Government of the 
" United States, as a traitor to his Country,) why did 
"he (meaning the said John Quincy Adams,) eat 



( 41 ) 
" their salt, break their bread, and drink their wine?' 
" To the great injury, scandal, and disgrace of the 
" said Daniel Webster, and against the peace and 
" dignity of the Commonwealth aforesaid. 
" And the jurors aforesaid, upon their oath aforesaid, 
" do further present that the said Theodore Lyman, 
"junior, being a person of a malicious temper and 
" disposition, and regardless of the integrity, patri- 
" otism, and purity of character, which the citizens 
" of this Commonwealth and of the United States, 
" when elected to, and entrusted with offices of honor, 
"trust, and responsibility in the administration of 
" the government of this Commonwealth and of the 
"United States ought to possess and sustain; and 
" unlawfully, maUciously, and deliberately devising, 
" and intending to traduce, vilify, and to bring into 
" contempt and detestation, one Daniel Webster, of 
" said Boston, Esquire, who was, on the day herein- 
" after mentioned, and still is, one of the Senators in 
" the Congress of the United States of America, for 
" the State of Massachusetts, duly and constitution- 
" ally elected and appointed to that office; and also 
" maliciously intending to insinuate and cause it to 
"be beheved, that the said Daniel Webster, and 
" divers other good and patriotic citizens of the Com- 
" monwealth, had been engaged in an atrocious and 
" treasonable plot to dissolve the union of the United 



( 42 ) 
" States, then and still constituting the Government 
" of the United States under the present Constitu- 
" tion thereof ; and further intending maliciously to 
"insinuate and cause it to be believed that John 
" Quincy Adams, the present President of the United 
" States, had denounced the said Daniel Webster as 
" a traitor to his Country; on the twenty-ninth day 
" of October now last passed, at Boston aforesaid, in 
" the County of Suffolk aforesaid, unlawfully, mali- 
" ciously, and deliberately did compose, print, and 
" publish, and did cause and procure to be composed, 
" printed, and published, in a certain newspaper called 
"the Jackson Republican, of and concerning him 
" the said Daniel Webster, an unlawful, maUcious, 
" and infamous libel, according to the purport and 
"effect, and in substance as follows, to wit, 'We' 
" (meaning the editors and publishers of the said 
"newspaper, called the Jackson RepubUcan) *pub- 
"lish this morning a letter of December, 1825, of 
" Mr. Jefferson to Mr. Giles, and Mr. Adams's ' (mean- 
" ing John Quincy Adams, the present President of 
"the United States,) 'own statement pubhshed last 
" week in the National Intelligencer, at Washington, 
" concerning disclosures said, many months ago, to 
" have been made by INIr. Adams' (meaning the said 
" John Quincy Adams) 'to Mr. Jefferson,' (meaning 
" Thomas Jefferson, late of the State of Virginia,) 



( 43 ) 
" 'in regard to the conduct of the leaders of the 
" Federal party, in New England, during the whole 
" course of the commercial restrictive system. Mr. 
*' Adams' (meaning the said John Quincy Adams) 
*' 'confirms in his statement, in a positive and authen- 
" tic form and shape, the very important fact that, 
"in the years 1807 and 1808, he' (meaning the said 
"John Quincy Adams) 'did make such disclosures. 
" The reader will observe, that JNIr. Adams' (mean- 
"ing the said John Quincy Adams) 'distinctly as- 
"serts, that Harrison Gray Otis, Samuel Dexter, 
" William Prescott, Daniel Webster,' (meaning the 
" aforesaid 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,' (meaning the Government of the said 
"United States) 'and to re-annex New England to 
" Great Britain; and that he Mr. Adams' (meaning 
" the said John Quincy Adams) 'possessed " unequiv- 
" ocal evidence" of that most solemn design. The reader 
" will also observe, that in the statement just pub- 
"lished of Mr. Adams,' (meaning the said John 

•Elijah Hunt Mills was born in Chesterfield, December 1, 1778, was 
graduated from Williams, 1797, practised law at Northampton, was one of 
the Hampshire Convention Committee which issued an address against 
the Embargo, March 2, 1809, was a member of the House in 1810, -11, -12, 
-13 and 1814, a member of Congress in 1815, -16, -17 and 1818, a member 
of the House in 1819, -20 and Speaker in 18-20, and was United States 
Senator, 1820-1827. He died in Northampton, May 5, 1829. 



( 44 ) 
" Quincy Adams) 'there is no intimation whatever, 
"^ that he' (meaning the said John Quincy Adams) 
" 'does not still believe what he' (meaning the said 
"John Quincy Adams) ^revealed to Mr. Jefferson 
" and Mr. Giles twentij years ago. All the gentlemen 
" we ' (meaning the editors and publishers of the said 
" newspaper, called the Jackson Republican) ' have 
" mentioned above, are, with one exception, still liv- 
" ing, and, with two exceptions, are active and ardent 
" pohtical friends of JMr. Adams,' (meaning the said 
"John Quincy Adams). 'We' (meaning the said 
" editors and publishers of the said newspaper, called 
" the Jackson Republican) 'here beg to ask, why Mr. 
" Adams's' (meaning the said John Quincy Adams) 
" 'statement has been withheld 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' (mean- 
" ing the said John Quincy Adams) 'has held to his 
" bosom, as a political counsellor, Daniel Webster,' 
" (meaning the aforesaid Daniel Webster), 'a man 
" whom he called in his midnight denunciation, a 
" traitor, in 1808,' (meaning that the said John Quincy 
" Adams had called and denounced the said Daniel 
" Webster as a traitor to the Government in the year 
" 1808.) 'Why, in 1826, he' (meaning the said John 
" Quincy Adams) 'paid a public compliment to Jo- 



( 45 ) 
" siah Quincy, in Faneuil Hall, when he' (meaning 
" the said John Quincy Adams) 'who called a traitor' 
"(meaning a traitor), 'the same year? And as the 
"last question, why, during the visits he' (meaning 
" the said John Quincy Adams) 'has made to Boston, 
"he' (meaning the said John Quincy Adams) 'al- 
" ways met on friendly and intimate and social terms 
" all the gentlemen' (meaning the said Daniel Web- 
" ster as one of them) 'whose names, a few years be- 
"fore, he' (meaning the said John Quincy Adams) 
" 'placed upon a secret record in the archives of our 
" Government, as traitors to their Country? ' (mean- 
" ing that the said John Quincy Adams had placed 
" the name of the said Daniel Webster, with others, 
" upon a secret record in the archives of the Govern- 
" ment of the United States.) 'Why did he' (mean- 
" ing the said John Quincy Adams) 'eat their salt, 
"break their bread, and drink their wine?' 
" To the great injury and disgrace of him, the said 
" Daniel Webster, and against the peace and dignity 
" of the Commonwealth aforesaid. 

" Danl. Davis, Solicitor General. 
"A true bill, Isaac C. Pray, Foreman. 



A true Copy, attested, Jno. Callender, Clerk." 



( 46 ) 

On November 17, Mr. Lyman appeared with 
his counsel, Samuel Hubbard and Franklin Dexter, 
and was arraigned. The Clerk said, "Theodore Ly- 
man junior, hearken to an indictment found against 
you by the Grand Inquest for the body of this 
County." The indictment was then read to him by 
the Clerk. 

The Clerk then said, "What say you, are you 
guilty, or not guilty?" to which Mr. Lyman said, 
" Not guilty." 

The quaint record by the Clerk on the back of 
the indictment is 



" Suffolk, ss. Nov. 17, 1828 

" Arraigned ^ has this indictment 

" read to him ^ being asJced thereof 

" he saith thereof he is not guilty 

"Jno. Callender 

"Clerk." 



Mr. Lyman then recognized for his appearance for 
trial. The record on the indictment is: 

^^ Deft, recognizes Jbr his appearance from day to day during 
the session of this Court in the sum of $1000. himself alone.'''' 



Lyman's counsel then moved for a continuance to 
the INIarch term, 1829, and in support of the motion 
filed the following affidavit drawn by Mr. Dexter: 



( 47 ) 
"Suffolk, ss. Supreme Judicial Court, 
" November Term, 1828. 

"COMMONWEALTH vs. THEODORE LYMAN, Jr. 
1 HE said Theodore Lyman, Jr., makes oath and 
" says that this indictment was found against him 
" at the present term of this Court, and that he has 
" had only five days notice thereof, and was not able 
" to procure a copy thereof until three days ago. That 
"immediately on obtaining such copy, he advised 
" with his Counsel respecting the answer he should 
" make to the same. That his said Counsel have had 
"the same matter under consideration, and now ad- 
" vise him that the several matters therein charged 
" to have been published by said Lyman are not li- 
" bellous if the same were neither wilfully false nor 
" maliciously contrived and intended to defame the 
" said Daniel Webster, both of which the said Ly- 
" man wholly denies. The said Lyman is further ad- 
" vised that he may lawfully give in evidence on the 
"trial of said indictment, the truth of the several 
" matters contained and alleged in said supposed 
" libel, as a justification thereof, and that he cannot 
" safely proceed to trial on this point of his defence 
" without evidence of a great variety of facts relat- 
" ing to the political history of the United States for 
" more than twenty years last past, and to the part 
" taken therein by the said Daniel Webster, and the 



( 48 ) 
" other persons named in the said supposed hbel. 
" That it will be necessary for him to prove, among 
" other things, that John Quincy Adams, the Presi- 
" dent of the United States, composed and published, 
"or caused to be composed and published, in the 
"newspaper called the National Intelligencer, the 
*' statement said in that paper to be authorized by 
*' him and referred to in said supposed libel, and that 
"the said Thomas Jefferson did write to the said 
" William B. Giles the letter also referred to in said 
" supposed Ubel; and that the said Daniel Webster 
" was one of the description of persons referred to 
" by said Adams as engaged in a course of opposi- 
"tion to the General Government, which, in the 
" opinion of said Adams, tended to produce a forci- 
" ble resistance against said Government and a civil 
" war, in which the persons so spoken of by him would 
" surely call in the aid of Great Britain against the 
" Government of the United States; and also as per- 
" sons whose object was to dissolve the Union of the 
" United States and establish a separate confederacy, 
" by the aid of Great Britain, if necessary. 
" Whereupon the said Lyman further says, that to 
" prove the truth of the matters aforesaid, numerous 
" facts will be important, which took place before he 
" was himself of an age to have personal knowledge 
" of the political affairs of the country or of the in- 



( 49 ) 
" dividuals who had the management of the same, 
" and which it will require much time to investigate; 
" that the said matters involve inquiries of an ancient 
" date, to be made of various aged persons in distant 
" parts of the United States, whose attendance it will 
" not be possible for said Lyman to procure at the pre- 
" sent term. But the facts of which the said Lyman is 
" already informed and which he is advised are mate- 
" rial to this part of his defence, are as follows, viz. : — 
" The said Lyman believes and expects to prove that 
" the said John Quincy Adams did in fact write and 
" publish, or cause to be written and pubhshed in the 
" said National Intelligencer, the said statement re- 
" ferredtoinsaid supposed Libel, and this said Lyman 
" expects to prove either by Gales and Seaton,the ed- 
" itors of said National Intelligencer, or one of them, 
** or by the said John Quincy Adams, all which per- 
" sons are now without this Commonwealth, and can- 
"not be procured to attend the trial at this Term; 
" but the said Lyman further says that he has a rea- 
" sonable expectation that the said John Quincy Ad- 
" ams will return within this Commonwealth in season 
" to attend the trial at the next Term of this court. 
*' And the said Lyman further believes and expects 
" to prove, that the persons so referred to, by said Ad- 
" ams, as aforesaid, were the eminent men of a cer- 
" tain political party in New England, then known as 



( 50 ) 
"the Federal party: and that the said Daniel Web- 
" ster was in and about the year 1808, and for many 
" years after that time, an eminent and conspicuous 
*' member of said Federal party, and being a person 
" of distinguished talents and influence, and enjoy- 
" ing the general confidence of the said Federal party, 
" did participate in, and by means of his said talents 
" and influence greatly urge and promote the mea- 
" sures of opposition to the embargo and restrictive 
" system, then pursued by the General Government, 
" and deemed so injurious and oppressive to this sec- 
" tion of the Union, which facts said Lyman expects 
" to prove by divers persons resident in the State of 
" New Hampshire, but of whose names and residence, 
" said Lyman is not yet informed, but said Lyman's 
" reason for believing that he can prove the same is, 
" that the sameare things commonly reported and be- 
" lieved, but the said Lyman is not yet informed (nor 
" can he during the present term procure such in- 
" formation together with the other evidence neces- 
" sary to his defence) who are the persons who know 
" said facts of their own knowledge. And the said Ly- 
" man further expects to prove and verily believes 
"that said John Quincy Adams did, on or about 
" the year 1808, write to divers persons then high in 
" office in the Government of the United States, and 
" among others to William B. Giles, then a mem- 



( 51 ) 

" ber of Congress from the State of Virginia, sun- 

" dry secret and confidential letters, or make other 

" confidential communications denouncing the said 

" Federal party, or the leaders thereof, as engaged in 

"treasonable projects of resistance to the General 

" Government, and for dissolving the Union. The 

" said Lyman's reasons for believing and expecting 

"to be able to prove that said Adams did so write, 

"or communicate, are deduced from said Adams's 

" said statement, said Lyman expects to prove the 

" same, at the next Term, by the said Adams's own 

" testimony, or that of said William B. Giles, who is 

" an aged and infirm man, and cannot attend the trial 

" at this Term ; and by other persons to whom the said 

" Adams wrote, or communicated as aforesaid, but 

" who are not resident in this Commonwealth, and 

" are at present unknown to said Lyman. 

** And the said Lyman further says that he expects 

" and believes that he shall be able to obtain all the 

" evidence aforesaid in season for a trial at the next 

" term of this court. " Theodore Lyman, Jr. 

"Suffolk, ss. Sworn to in Court Nov. 17, 1828. 

" Jno. Callender, Cleric.'" 

James T. Austin,* who was the Commonwealth's 

* James Trecothic Austin was born in Boston, January 7, 1784, was grad- 
uated from Harvard in 1802, was Town Advocate in Boston in 1809, a mem- 
ber of the Constitutional Convention in 1820, State Senator in 1825, 1826 and 



( 52 ) 
Attorney, or as the office is now termed, District 
Attorney, for Suffolk County, and Richard Fletcher, 
a leading member of the Bar, and intimate friend of 
Webster, appeared for the Commonwealth, and Chief 
Justice Parker postponed the hearing of the motion 
until the next day, when the SoUcitor-General, Dan- 
iel Davis, appeared and filed the following objections 
to the affidavit of Lyman. 

" Suffolk, ss. Supreme Judicial Court. November Term, 1828. 

"COMMONWEALTH vs. THEODORE LYMAN, Jr. 
" Objections to the affidavit of defendant as a ground of the 
" motion Jbr a continuance. 

" 1 HE defendant does not state in the affidavit that 
" the pubhcation originated in mistake, or misappre- 
" hension; nor does he in any manner disavow an in- 
" tention of pubUshing anything derogatory to the 
" character of ISIr. Webster. 

*' Nor does he, in a direct and unequivocal manner, 
" state that he can, or expects to, prove the truth of 
*' the matter alleged to be libellous or any part of it. 
" He does not swear in any part of the affidavit that 
" he himself believes that what he pubUshed is true. 
"The matter charged as libellous is 'that Mr. 
*' Adams distinctly asserts that ]Mr. Webster (with 
"others) were engaged in a plot to dissolve the 

1832, and Attorney-General from 1832 to 1843, when the office was abol- 
ished. He died May 8, 1870. 




DANIEL DAVIS 

From a Painting in the possession of Captain Charles Henry Davis, U. S. N. 



( 53 ) 
" Union, and re-annex New England to Great Brit- 
"ain; and that Mr. Adams possessed unequivocal 
" evidence of that most solemn design.' But the de- 
" fendant does not swear that he expects to be able 
" to prove that JNIr. Adams ever in fact made such 
" an assertion ; nor does he declare that such an as- 
" sertion if made was true. 

" The publication alleges that ' JNIr. Adams has 
" placed the name of Mr. AVebster (with others) upon 
" a secret record in the archives of our Government, 
"as traitors to their Country.' — But the defendant 
" does not state that he expects to prove it. 
" The defendant swears that he is advised that he 
" may give in evidence the truth of the several mat- 
" ters contained in the alleged libel, but he does not 
" swear that he expects to be able to prove the truth 
" of them or any part of them. 
" The affidavit states the necessity of making re- 
" searches into the history of the country, and of 
" consulting aged persons, &c. but the defendant 
" does not swear that he expects that such researches 
" and enquiries will furnish any evidence that Mr. 
" Adams made any such assertion as to JNIr. Webster 
as the libel states, or that Mr. Adams did in fact 
place the name of Mr. Webster on the records and 
" among the archives of our government as a traitor 
' to his country, as the libel alleges. After the sev- 



( 54 ) 
" eral introductory matters contained in the affidavit, 
" the defendant proceeds to state ' that to prove the 
" matters aforesaid, numerous facts will be impor- 
" tant, which took place before the defendant was of 
"an age to have personal knowledge of political af- 
" fairs'; but these matters aforesaid do not relate to 
" the ' matters ' stated in the hbel; but other general 
" and wholly irrelevant matters. 
" As to all these statements in the affidavit, the de- 
" fendant neither swears that he believes the charges 
" in the libel are true, nor that he expects to be able 
"to prove them; nor that he expects to prove that 
" JMr. Adams made the assertions imputed to him. 
" The defendant then swears that he expects to prove 
"the following facts: 

" 1. That JMr. Adams did write and pubhsh the article 
" in the National Intelligencer referred to in the sup- 
" posed libel. The fact will be admitted on the trial. 
" 2. That the persons referred to by JMr. Adams were 
" eminent men in a certain political party in New 
" England — but he does not state the absence of any 
" witness necessary to prove this — and if he should 
" the fact will be admitted. 

" 3. That JMr. Webster was in and about the year 
" 1808, a member of the Federal party, and did use 
" and promote the measures of opposition to the em- 
" bargo and restrictive system, but this, if proved, 



( 55 ) 
' has no relation whatever to the Hbellous matter be- 
'fore stated. But it will be admitted on the trial, 
' that in 1808 Mr. Webster, in the political divisions 

* of those times was a Federalist ; that so far as the 
' open expression of opinions against the embargo, 

* and non-intercourse, constituted opposition to those 
' measures, he did oppose them. And if the defend- 
'ant means that he opposed them by any other 
'means or measures of opposition, they ought to 
' have been stated in the affidavit. 

* 4. The affidavit states that the defendant expects 
' to prove that Mr. Adams, in the year 1808, wrote 

* letters to persons high in office or made other con- 
' fidential communications, denouncing the Federal 
' party or leaders thereof, as engaged in treasonable 
' projects. But defendant does not swear that he ex- 
' pects to prove that said communications, if made, 

* included the name of, or had any reference to Mr. 
' Webster. The ground of belief in this respect, is 

* alleged to be the publication of Mr. Adams before 

* referred to; but that publication affi^rds no ground 
' or pretense for such belief, because it refers wholly 
'to persons in Massachusetts, — nor is it alleged in 
' the affidavit, that defendant expects to prove that 
' Mr. Webster in 1807 and 1808 was one of the 
' leaders of the Federal party in Massachusetts. 

* Lastly, if the defendant will swear, that he him- 



( 56 ) 
" self believes that the matters contained in his pub- 
" lication and charged in the indictment as libellous, 
"are true; or that he expects to be able to prove 
" them to be true, the Solicitor General will agree to 
" a continuance, without the defendant's being obliged 
" at this time, to state particularly by what evidence 
" he expects to prove them. 

"And therefore, the Solicitor-General moves the 
" Court that the following interrogatories may be 
" put to the defendant, and that the said interroga- 
" tories and defendant's answers may be made a part 
" of his affidavit. 

" 1. Interrogatory. Do you expect to be able to prove 
"that Daniel Webster in the years 1807 and 1808, 
" entered into a plot to dissolve the Union, and re- 
" annex New England to Great Britain? 
" 2. Interrogatory. Do you expect to prove that John 
" Quincy Adams ever asserted that Daniel Webster 
" entered into a plot as stated in the preceding inter- 
" rogatory? 

" 3. Interrogatory. Do you expect to prove that 
"Mr. Adams ever denounced JNIr. Webster as a 
" traitor in 1807 and 1808, or that he ever placed his 
" name as a traitor to his Country, upon any record 
"among the archives of the Government of the 
"United States?" 
" 4. General Interrogatory. Do you expect to prove 



( 57 ) 
" that the matter charged as Ubellous in your pubh- 
" cation so far as respects JNlr. Webster, is true?" 

The Sohcitor-General also filed the following 
statement of what he would admit upon the trial. 

"COMMONWEALTH vs. THEODORE LYMAN, Jr. 
'* The Solicitor General will admit at the trial of the 
*' above cause the following facts : 
"1. That Mr. John Quincy Adams did pubhsh the 
*' statement ascribed to him, and printed in the Na- 
*' tional Intelligencer. 

" 2. That the printed letter of Mr. Jefferson to ]Mr. 
" Giles, was written by and to said persons, dated 
" 25 Dec^ 1825. 

" 3. That Mr. Webster in 1808 was an eminent and 
" conspicuous member of the Federal party &;c. &c. 
" in the terms of the affidavit. 

" 4. That INIr. Adams wrote such letters to Mr. Giles 
" and others, as he, INIr. Adams, says in his said state- 
" ment he wrote to Mr. Giles and others. 
" But it is not admitted that Mr. Webster was com- 
" prehended or included in the terms of Mr. Adams's 
" statement." 

Mr. Lyman declined to answer the interrogatories 
of the Solicitor-General, and on November 24, Chief 
Justice Parker denied the motion for a continuance, 
and the case was then by consent of counsel assigned 



( 58 ) 
for trial on December 15, when it was postponed un- 
til December 16. 

The distinguished character of the parties, as well 
as the political considerations attending the case, gave 
dignity and interest to the trial. A prosecution for 
criminal libel in which Daniel Webster was the prose- 
cutor and Theodore Lyman, Jr., the defendant, and 
in which charges made by the President of the United 
States against the most distinguished citizens of Mas- 
sachusetts were involved, necessarily caused intense 
public interest. The prosecution, though in form a 
criminal prosecution by the Commonwealth against 
Lyman, was in reality a personal and political suit 
by Webster against Lyman, and was so treated by 
the public and the press. Washington papers even 
treated it as a private suit by Webster. The National 
Intelligencer of November 22, 1828, said : " Mr. Web- 
" ster has issued a writ against Theodore Lyman, Jr., 
" Esq., editor of the Boston Jackson Republican, for 
" designating him by name, as one of those members 
" of the Federal party of Massachusetts, to whom Mr. 
" Adams has attributed treasonable projects." 

The trial began December 16, at half past nine 
o'clock in the forenoon. IMr. Webster was present 
with his friends, and the court room was crowded 
with leading Federalists and prominent citizens of 
Boston. 



( 59 ) 
Mr. Webster was then forty-six years of age, and 
in the plenitude of his power. He had served four 
years in Congress as a member of the House from 
New Hampshire. He was a Presidential Elector and 
the most prominent member of the INIassachusetts 
Constitutional Convention in 1820, a member of the 
House in 1822, and had served nearly four years as 
a member of Congress from Massachusetts. The pre- 
vious June he had been chosen a Senator in the United 
States Senate from Massachusetts, but had not taken 
his seat. He had argued the Dartmouth College case, 
and other equally important cases in the Supreme 
Court of the United States, and had delivered the 
wonderful orations at the anniversary of the landing 
of the Pilgrims at Plymouth, the laying of the cor- 
ner-stone of Bunker Hill INIonument, and the eulogy 
on Adams and Jefferson. He had also made other 
speeches and arguments and delivered other orations 
which firmly established his reputation, not only as 
the most distinguished citizen of Massachusetts, but 
as one of the ablest lawyers and the most eloquent 
orator of the United States.* His reputation had be- 
come not only national, but international, and he had 

* Webster argued the Dartmouth College case in 1818; McCuUoch vs. 
Maryland in 1819, and delivered the oration on the landing of the Pilgrims 
in 1820. He made his speech on the Greek revolution and argued the case 
of Gibbons vs. Ogden in 1824; he delivered the oration at the laying of the 
corner-stone of the Bunker HUl Monument in 1825, and the eulogy on 
Adams and Jefferson in 1826. 



-A 



( 60 ) 
already taken on that lordly manner best known as 
"Websterian." He had become a personal political 
force in the Commonwealth, and his control of affairs 
was such that the prosecuting officers of the State 
seem to have been mere instruments in his hands in 
the prosecution of Mr. Lyman. 

JNIr. Lyman himself was not an unknown man. 
He was not, as Mr. Curtis calls him, simply "a 
gentleman of high social standing," but was also one 
of the most accomplished and eminent citizens of 
the Commonwealth. Born in 1792, he was graduated 
from Harvard College in 1810, and then studied in 
the University of Edinburgh. He had done excellent 
literary work, publishing "The Political State of 
Italy," in 1820, and "The Diplomacy of the United 
States," in 1826. He had been from 1820 to 1823 
on the staff of the Governor of the Commonwealth 
with the rank of General, and from 1823 to 1827, he 
had commanded the "Boston Brigade." He had also 
been a prominent member of the House in 1820, 
1821, 1822, 1823 and 1825, and in 1824 he was a State 
Senator. He wrote a vigorous style inherited perhaps 
from his father,* who in 1795 wrote to Timothy Pick- 
ering of their political opponents in Boston: "They 

• Mr. Lyman's mother was a niece of Timothy Pickering, and his father, 
Theodore Lyman, was a son of Rev. Isaac Lyman, who was graduated 
from Yale in 1747, and was pastor of the church at Old York, Maine. One 
of his sisters married Samuel A. Eliot, and was the mother of Charles W. 
Eliot, President of Harvard College. 



( 61 ) 
yelp and howl and trumpet treason at every corner." * 
His subsequent life showed the kind of man he was. 
In 1834 and 1835 he was Mayor of Boston, and first 
promoted the introduction of pure water into the 
city. While he was Mayor he protected Catholics 
from a brutal Protestant mob, and at great personal 
risk protected abolitionists from a pro-slavery mob 
in 1835. He became President of the Boston Farm 
School, and of the Prison Disciphne Society, and in 
1846 he anonymously gave ten thousand dollars to 
aid in establishing the State Manual Labor School, f 
When he died, in 1849, he gave by his will fifty thou- 
sand dollars to aid this school, making with his other 
gifts to the school seventy-two thousand five hun- 
dred dollars, and also gave ten thousand dollars to 
the Boston Farm School. 

It required courage of a high order for a gentle- 
man of Mr. Lyman's social and pohtical standing to 
advocate the election of Jackson in Massachusetts 
in 1828. Jackson was regarded by most of the edu- 
cated and well-to-do people in Massachusetts as an 
ignorant and dangerous man, the embodiment of all 
that was bad in political life. The great social, finan- 
cial and political influences of the community were 

* Life of Timothy Pickering, vol. iii, p. 178. 

tThis school was opened at Westboro, November 1, 1848, as the "State 
Reform School," but in 1885 its name was changed to the " Lyman School 
for Boys at Westboro." 



( 62 ) 
opposed to him, and all these influences were natu- 
rally arrayed against Mr. Lyman in this trial. The 
very atmosphere of Boston was hostile to him because 
he was for Jackson.* 

But Mr. Lyman, although a refined, sensitive 
man, was a man of high spirit, and he did not flinch 
from the attack of Webster, but went through the 
ordeal of the trial with the steady courage of a 
gentleman. 

The trial was in what was then the "New Court 
House" on School Street, sometimes called "John- 
son Hall," on the site of the present City Hall,t and 
was conducted in that orderly and dignified method 
of judicial procedure which is the distinguishing mark 

* The Jackson electors received only 6016 votes out of a total vote of 
35,892 in Massachusetts. In Boston they received only 846 out of a total of 
4106; Harrison Gray Otis and WilUam Prescott, candidates of "certain 
Federal gentlemen," received 147 votes, and the Adams electors received 
3113. 

t There was then an "Old Court House" on Court Street, which was 
first called Prison Lane, because the first prison was built upon it, where 
the present Old Court House now stands. In 1708 this Lane was called 
Queen Street. Afterwards this prison was taken down, and a new stone 
prison, called "The Gaol," was erected on its site. This was burned Janu- 
ary 30, 1769, and the first Court House of brick, three stories high, with 
a cupola and a bell, was then built on the site. In this building all the 
Courts of law were held until the Court House, sometimes called "John- 
son Hall," was built on School Street, in 1810. The Court House on Queen 
Street, or, as it had then been named. Court Street, was then called "The 
Old Court House." A gaol had then been built in the space between the 
Old Court House on Court Street and the New Court House on School 
Street, on the site of the old " Poor Debtors' Gaol." In 1833 a Court House 
on Court Street was built on the sites of the Old Court House of 1T69 and 
the Gaol. This was completed in 1836, and occupied by all the Courts until 
1891, when the present Court House in Pemberton Square was completed 
and occupied by the Courts, and the Court House on Court Street again 
became "The Old Court House." 



( 63 ) 
of the administration of justice by the English-speak- 
ing race. 

Isaac Parker, Chief Justice of the Supreme Ju- 
dicial Court, presided, Daniel Davis, Solicitor-Gen- 
eral, appeared for the prosecution, Samuel Hubbard* 
and Franklin Dexter (a son of Samuel Dexter of the 
Hartford Convention) appeared for Mr. Lyman. The 
jurors summoned, from whom the jury for the case 
were to be drawn, were present. The Clerk said: 
" Theodore Lyman, Jr., you are now to be tried, and 
" these good men whom I shall call are to pass be- 
" tween the Commonwealth and you upon your trial. 
" If you object to any of them, you must do it as 
" they are called, and before they are sworn." 

The names of the following jurors were then drawn 
by the Clerk, and they answered to their names. No 
objection was made by Mr. Lyman to any of them. 
The names of the jurors, with their occupations and 
residences as shown in the Boston Directory of 1828, 
are as follows : 

William B. Swett, Merchant, Foreman, 16 Custom House 

Street ; 
Francis Hall, Distiller, 560 Washington Street; 
Thomas Hunting, Merchant, 6 Orange Place; 

♦Samuel Hubbard was born in Boston, June 2, 1785, was graduated from 
Yale, 1802, was a member of the House in 1816, -17, 1820 and 1831, a 
member of the Constitutional Convention of 1820, State Senator in 1823, 
1824 and 1838, and an Associate Justice of the Supreme Judicial Court 
from 1842 until his death in Boston, December 24, 1847. 



( 64 ) 

Charles Lane, Merchant, 53 Brattle Street; 

Wyman Harrington, Mason, 8 Warren Street; 

Benjamin Brown, Painter, 6 Hawkins Street; 

John G. Valentine, Upholsterer, 13 Poplar Street; 

Nathaniel H. Whitaker, Auctioneer, 14 Province House 
Court; 

Jonas B. Brown, Merchant, 1 Brattle Square; 

Charles R. Ellis, Merchant, 691 Washington Street; 

Frederick Gould, Clothing store, 172 Ann Street; 

Albert Smith, Saddler, Chambers Street. 
The jurors then took the following oath, the Clerk 
saying : 

"Hold up your right hands: You do each of you 
" solemnly swear that you shall well and truly try 
" the issue between the Commonwealth and the de- 
"fendant according to your evidence, so help you 
"God."* 

The Clerk said: "Gentlemen of the Jury, hearken 
to an indictment found against the Defendant by 
the Grand Inquest for the body of this County." 
And then the long indictment was read to the jury 
by the Clerk. 

Solicitor-General Davis opened the case for the 
prosecution by saying, "The character and standing 
" of the parties, as well as the nature of the allegations 
" against Mr. Webster, give the trial a peculiar inter- 

• Massachusetts Laws, 1807, ch. 140. Commonwealth vs. Anthes, 5 Gray, 

275. 



( 65 ) 
" est. The high character of the defendant m this 
" prosecution is well known to the jury. He has been 
" before the public in offices of honor and trust, and is 
" deservedly esteemed, not only by his own more in- 
" timate acquaintances, but by the whole public, and 
" had this attack been only of an ordinary kind, usual 
" in the common newspapers of the day, no public 
** prosecution would have been instigated. . . . 
" But the accusation is of a high and aggravated na- 
" ture, and through the columns of the Jackson Re- 
" publican has a circulation coextensive with his name 
*' which gives the title to the paper itself. It is against 
" a Senator of the United States, and, indirectly, im- 
" plicates the character of the Nation. Mr. Webster is 
" a member of the Senate of the United States, a re- 
" presentative of the sovereignty of Massachusetts at 
" the national councils. In his character, therefore, the 
" Commonwealth is peculiarly interested. . . . 
" Mr. Webster is accused of one of the highest crimes 
" — there is no degree of depravity deeper than that 
" which exists in the bosom of a traitor. He has chil- 
" dren and friends interested in wiping away the stain 
" created on the escutcheon of his reputation by so 
" foul a charge. The public good requires an exami- 
" nation into it, and the reputation of our State at the 
" seat of government imperiously demandsathorough 
" investigation of its truth or falsehood. The free- 



1 



( 66 ) 
" dom of the press, one of the greatest blessings of a 
" free nation, has been abused full often, and imperi- 
" ously requires to be controlled and repressed, espe- 
" cially when consequences and evils like those in this 
" case press upon the public peace and quiet. Espe- 
" cially where papers are set up, not for the purpose 
" of a diffusion of general knowledge and science, or 
" mere circulation of political information, but for 
" express and personal political objects, and purity 
" of character is invaded and the rights of individuals 
" wantonly outraged it is the duty of the guardians 
" of the public peace to repress such abuse of the 
" freedom of the press. 

" If this is not done the consequences will be the 
" breaking up of the foundations of civil society, vio- 
" lent and deadly contests and one wide scene of con- 
" fusion, disorganization and blood will ensue. The 
"only place of redress against such outrage and 
" wrong is here at the laws and before a jury of the 
" country. The offence of libelling in all ages and in 
"every civihzed country has been punished with 
" marked severity, and in Greece and Rome it was an 
" offence of high magnitude." 

The Solicitor-General then analyzed the indict- 
ment and alleged libel and stated the law applicable 
to the case. 

Upon the close of the opening argument the Solici- 



( 67 ) , 
tor-General put in evidence a certificate from the 
Speaker of the House, of June 7, 1827, and a certifi- 
cate of the Secretary of the Commonwealth, showing 
the election of ^Ir. Webster as Senator in the United 
States by the State Legislature. 

He then called Francis O. Dawes as a witness, 
who said he was a student in the office of Charles 
P. Curtis, and on October 31, at the request of JNIr. 
Curtis, he called at the office of the Jackson Repub- 
lican, and purchased a copy of the Republican, con- 
taining the alleged libel upon Mr. Webster. He pro- 
duced the paper, which was put in evidence and is 
still upon the files of the Court, wrapped in the ori- 
ginal indictment. 

The Solicitor-General then called John Putnam, 
who testified that he was one of the publishers of 
the Jackson Republican, that Mr. Lyman was one 
of the proprietors, and that it had an extensive cir- 
culation, principally in New England, but more or 
less in every State and in the city of Washington. 

The Solicitor-General then said he had introduced 
the libel, proved its publication and its author, and 
therefore for the present he should rest the cause on 
the part of the Government. 

Mr. Franklin Dexter* then made the opening 

* Franklin Dexter was born in Charlestown, November 5, 1793, was grad- 
uated from Harvard in 1812, studied law with Samuel Hubbard, and married 
a daughter of William Prescott. He was a member of the Legislature in 1B24-, 



( 68 ) 
statement for Mr. Lyman, saying that he should be 
extremely brief, as it was the wish of all concerned 
that the case should occupy but one day. He said : 
" We shall endeavour to satisfy the jury that Mr. 
" Lyman never intended to libel Mr. Webster, and 
" that the prosecution originated in a mistake, but 
" still as the prosecution has now met us, we must 
" be prepared to encounter it upon its legal and just 
" merits though on the part of the defendant it is a 
" subject of regret. The question the jury have to 
" decide is of a grave nature, for it concerns the free- 
" dom of the press and the rights which individuals 
" have to discuss questions of political moment. 
" Many of the public whom curiosity has drawn to- 
" gether at this trial may be disappointed. They may 
" expect strange developments relative to former 
" political events, but no such developments will be 
*' given, and I believe little will arise to gratify this 
" curiosity. ... It may have seemed from the affi- 
*' davit filed in this case by Mr. Lyman that he in- 
" tended to justify himself by proving the truth of 
" his allegations, as at the present day the truth may 
" be given in evidence, and by a recent statute of the 
" Commonwealth amount to a complete justifica- 

1825, 1828 and 1840, a State Senator in 1835 and United States District 
Attorney, 1841-1845 and in 1849, He was one of the most eminent law- 
yers and advocates of his time, and was leading counsel for the defence in 
the White murder trial when Webster appeared for the prosecution in 1830. 
He died August 14, 1857, at Beverly. 



( 69 ) 
" tion. Still, notwithstanding that affidavit, it is not 
" intended to attempt to justify on the ground of the 
" truth of the statements set forth in the indictment, 
** and I do not believe that if the continuance for 
" which the affidavit was filed had been granted, the 
" defence would have been the truth of the allegations 
" setforthinthe indictment. The defence in substance 
" is that the matter published by General Lyman 
" was not in itself libellous so far as Lyman was 
" concerned, and that General Lyman had no ma- 
" licious intent. The charge against the defendant is 
" both serious and novel. It is not only, as is usual 
"and perhaps necessary, that he published a 'false 
" and malicious ' libel, but that General Lyman was 
" an evil disposed person, and, intending to defame 
" ^Ir. Webster, published a false, malicious and infa- 
''mous libel. The word 'scandalous' is common, but 
" my brother and myself have searched for a long 
" period among the precedents of the present and 
" past ages, and can only find two cases where the 
"word 'infamous' has ever been used in an indict- 
" ment of this nature. 

" General Lyman did not intend to bring ^Ir. Web- 
" ster into disrepute. All he intended to say was that 
" Mr. Adams charged the prosecutor, Mr. Webster, 
' with having been a traitor, and that he, Adams, 
" had placed upon the records of the archives of the 



( 70 ) 
' Government certain New England Federal leaders 
' as traitors, and that ^Ir. Webster, the prosecutor, 
' was one of them. The only thing which General 
' Lyman has done is to give an interpretation to the 
' assertion, undoubtedly intended on the part of Mr. 
' Adams. He has only given the names of those per- 
' sons intended by Mr. Adams to have been meant, 
' and has merely given a direction to the intended 
' object of the calumny of another. The persons said 
' to have been libelled with Mr. Webster in the arti- 
' cle written by General Lyman are his personal 
' friends. Mr. Lyman in the old divisions of parties 
'was a Federalist, and all those named in the in- 
' dictment as equally libelled with Mr. Webster, al- 
' though JNIr. Webster has been alone selected as 
' libelled, are the personal friends, and were formerly 
' the political friends, of General Lyman. Is it prob- 
' able that Mr. Lyman intended to hold up to pub- 
' lie detestation such men, his friends, who are in 
' daily personal union with him, that he should be 
' on s^ch terms with men whom he was willing thus 
' infamously to libel ? The expressions of Mr. Adams 
' alluded to all the leading FederaUsts of New Eng- 
' land, and would apply as well to New Hampshire, 
' where JNIr. Webster was then a leading Federalist, 
' as to Massachusetts. General Lyman had nothing 
' to do with politics until 1819, and then upon his 



( 71 ) 
" return from Europe he found Mr. Webster an ac- 
" tive and leading Federalist in Boston. It probably 
" escaped his recollection in hastily penning a news- 
" paper paragraph that in 1808 INIr. Webster resided 
" in New Hampshire, but however that may be, Mr. 
" Webster was a leading Federalist in 1808 and op- 
" posed to the Embargo and virtually embraced in 
" the denunciation of JNIr. Adams." 

As to the suggestion that Mr. Lyman might have 
explained that he did not intend to libel Mr. Web- 
ster, Mr. Dexter said that a prosecution was openly 
threatened on the part of INIr. Webster, and was a 
subject of common conversation before even the 
name of the author of the article was asked, and un- 
der such circumstances he appealed to the jury to say 
whether it would not have been degrading to Gen- 
eral Lyman to offer any apology rather than to do 
as he had done — "submit his cause and motives to a 
jury of his Country." 

Mr. Dexter then introduced evidence for the de- 
fence. He first produced a certain pamphlet which 
he said was written by Mr. Webster, called "Con- 
siderations on the Embargo Laws," and offered it, or 
extracts from it, in evidence. The Solicitor-General 
said he was ignorant of its contents, and should ob- 
ject to its being put in evidence without its being 
read entire. 



( 72 ) 

Mr. Dexter then called Daniel Webster for the 
defence and asked him whether he wrote the pam- 
phlet which was shown to him. He said he had writ- 
ten a pamphlet with that title, and from this and its 
size he presumed it was the same. It was probably 
written in the summer of 1808. 

Mr. Dexter then asked him concerning his author- 
ship of the Rockingham Memorial. Mr. Webster said 
that question related to the year 1812, and he was 
not bound to acknowledge every passage he had ever 
written, whether anonymous or not. That Memorial, 
however, he said was written by a Committee of 
which he was chairman ; how far the writing or sen- 
timents were written by himself, or how much they 
were modified by various members of the Committee, 
he could not then tell. At all events, he said, he as- 
sented to all contained in that Memorial at that time, 
and to the proceedings of the meeting. 

Some discussion ensued as to the reading of the 
whole pamphlet, whereupon Chief Justice Parker 
observed that the time to be embraced in reading it 
was material; that he had no doubt but that INIr. 
Webster wrote as strongly against the embargo as 
any one could. To this Mr. Webster, speaking from 
his seat, said, "I meant to." The Chief Justice then 
continued, that for himself he thought the Embargo 
Act unconstitutional, and asked counsel for IVIr. Ly- 



( 73 ) 
man if the pamphlet tended to show that Mr. Web- 
ster was one of the individuals intended by the ob- 
servations of ^Ir. Adams. Mr. Hubbard replied that 
it was alleged by Mr. Adams that an intention ex- 
isted on the part of the leading Federalists in New 
England from the year 1808 down to the close of the 
war, to sever the Union and re-annex themselves, or 
the New England States to Great Britain. Mr. Web- 
ster was then one of the leading Federalists of New 
England, and consequently one of those charged by 
Mr. Adams. The Embargo pamphlet, and the Rock- 
ingham Memorial acknowledged by Mr. Webster to 
have been written principally by himself, went to 
show this fact. If this was apparent, then there was 
no malice on the part of General Lyman in classing 
Mr. Webster with other distinguished Federalists in 
New England. 

The SoHcitor-General asked if they intended to 
prove the truth of the allegations by producing the 
pamphlet, and that Mr. Webster was engaged in a 
treasonable plot to dissolve the Union. If so, they 
had better read it ; if not, it was better, in Scottish 
parlance, "to keep their breath to blow their broth." 

The Chief Justice said that if the constitutional- 
ity of the Embargo were on trial, he should be glad 
to hear the pamphlet read. 

Mr. Dexter then offered the Rockingham Me- 



( 74 ) 
morial in evidence, which the Court ruled was in- 
admissible as inapplicable to the issue. 

Mr. Dexter then put in evidence the previous 
numbers of the Jackson RepubUcan, to show that 
Mr. Webster had never been named in any article 
therein written by Mr. Lyman. 

Judge Henry Orne,* one of the publishers of the 
Jackson Republican, then testified that Mr. Lyman 
had written a number of articles in the Republican 
which did not mention Mr. Webster; that the article 
embraced in the indictment was written by Mr. Ly- 
man; that the object of the RepubUcan was to op- 
pose the reelection of John Quincy Adams; that it 
circulated more or less in most of the States ; that 
about one thousand copies were printed, but not all 
distributed ; that he communicated the fact that Mr. 
Webster claimed that the article was libellous to 
Mr. Lyman on the thirty-first of October, when he 
received a letter from Fletcher and Curtis asking who 
wrote it. 

Benjamin Russell t was then called for the defence, 

* One of the judges of the Boston Police Court. 

t Benjamin Russell was born in Boston, September 13, 1761, and learned the 
trade of printer in the office of Isaiah Thomas. He was a private in the Revo- 
lutionary Army, and in 1784 estabUshed the Columbian Centinel of which 
he was editor for more than forty years. He was a member of the House 
in 1805, -6, -7, -8, -9, -10, -11, -12, -13, -14, -15, -16, -17, -18, -19, 
-20 and 1821, State Senator in 1822 and 1825, a member of the Legis- 
lature in 1824, 1828, -29, -30, -31, -32, -33 and in 1835, a longer legis- 
lative service than that of any other person in Massachusetts. He was a 
member of the Governor's Council in 1836 and 1837 and of the Constitu- 



( 75 ) 
and testified that he had heard Mr. Webster say he 
intended to prosecute soon after the publication of 
October 29 in the Repubhcan ; that he then asked 
Mr. Webster if the article did not contain a libel, 
and Mr. Webster replied that he should try to make 
it so, or ascertain the fact, or words to that effect. 
Russell said that he felt proud to be in such company 
as he was ranked amongst in that libel. 

Henry Williams then testified for the defence, say- 
ing he told Mr. Lyman he had heard that Mr. Web- 
ster was about to institute a suit against him on the 
twenty-ninth or thirtieth of October, and that it 
was the general report at JMerchants' Hall Reading 
Room.* 

James T. Austin was called for the defence, and 
testified that on the first of November, as prosecu- 
ting officer for the Government, he received a letter 
which he was requested to lay before the Grand Jury 
as a complaint against Mr. Lyman, for a libel on the 
Hon. Daniel Webster ; that the letter was brought 



tional Convention of 1890. He was for eight years a member of the Board 
of Aldermen of Boston, Commander of the Ancient and Honorable Ar- 
tillery, and held many other important municipal oflBces and positions in 
charitable and military organizations, and was the author of the terms 
' ' Gerrymander " and ' ' Era of good feeUng, " He died in Boston, January 4, 
1845. 

* Merchants' Hall was a brick four-story building at the corner of Congress 
and Water streets, having on the first floor the Post-Office and a subscrip- 
tion reading-room furnished with the principal United States and foreign 
newspapers, books for daily news, announcements of arrival and sailing 
of vessels, maps, prices current, "and a good clock." Bowen's Boston, p. 34. 



( 76 ) 
to him by Mr. Curtis, and after he had read it he 
advised Mr. Curtis to go with it directly to the Su- 
preme rather than to the Municipal Court. Mr. Curtis 
said he was not aware that the Supreme Court had 
jurisdiction, but after he had satisfied him on the fact 
that it had, Mr. Curtis took the letter away and after- 
wards followed the course he had pointed out. 

Mr. Dexter then introduced other articles pub- 
lished in the Republican, one being an article headed 
"Political," and signed "A Pennsylvanian," which 
were furnished by Mr. Lyman, and related to Mr. 
Adams's assertions and to the subject matter com- 
mented on by Mr. Lyman in his article which was 
said to be libellous. 

Judge Orne was again called to the stand and stated 
that at the first establishment of the Republican a 
number of pamphlets and papers were sent " from 
the Southward " to the paper, and that Mr. Lyman 
had taken or made such selections as he deemed fit 
from them ; that he had no conference with Mr. Ly- 
man previous to the writing of the article, but he had 
seen it previous to its publication. 

Mr. Dexter then stated as admitted by the Gov- 
ernment that Mr. Lyman was graduated at Harvard 
College in 1810, being then eighteen years of age; 
that he went to Europe in 1812 and returned in 1814 ; 
that he went to Europe again in 1817 on account of 



( 77 ) 
his health and returned in 1819, and took no part in 
poHtics until the winter of 1819 and 1820. 

Warren Dutton* then testified for the defence that 
he saw the publication on Wednesday after it was 
published ; that on Friday in the Mall t he met Gen- 
eral Lyman and from him understood that Mr. Web- 
ster complained of the publication. He understood 
Mr. Lyman to say that he did not intend to libel any 
one; ^Ir. Webster, General Lyman and himself were 
on friendly terms, and frequently were together in 
a friendly association, and he never knew any diffi- 
culty between Mr. Lyman and Mr. Webster. He 
said INIr. Lyman was a Federalist in the old divisions, 
and on good terms with ^Ir. Otis, Mr. Thorndike, 
etc., named in the article, and was a connection of 
Mr. Otis. 



* Warren Dutton was born in East Haddam, Connecticut, in 1774, was grad- 
uated from Yale, 1793, was tutor in Yale and in Williams, and studied law 
with John Lowell, whose daughter he married in 1806. He was editor of 
the Palladium, 1801-3, admitted to the Bar in 1803, and delivered the ora- 
tion before the Town Authorities, July 4, 1805. He was a member of the 
House in 1809, -10, 1820, and a State Senator in 1821, -22. In 1820 he 
was a member of the Constitutional Convention, and in February, 1821, 
was one of the managers on the part of the House, in the impeachment 
of James Prescott, Judge of Probate for Middlesex, and made the closing 
argument against Webster who was counsel for Prescott. He was an ac- 
complished man, an eminent lawyer and an intimate personal friend of 
Theodore Lyman. He died in Brighton, March 3, 1857. 
t In 1780 the Mall was on the eastern side of the Common, in length 1410 
feet and divided into two walks parallel to each other, separated by a row of 
trees. On the outside of each walk was also a row of trees which agreeably 
shaded it. In 1807 it was a public walk 600 yards in length. Now (1904) it 
is that part of the Common next to Tremont Street, under which is the 
Subway. 



( 78 ) 

This closed the testimony for the defence. 

The SoUcitor-General then called Mr. Webster 
for the prosecution, who testified that in 1807 he 
was a resident in New Hampshire, and came to Bos- 
ton, August, 1816; that in the years 1808 and 1809 
he had no personal or political acquaintance with the 
persons named in the alleged Ubel, though while a 
student at law in Boston he knew Messrs. Otis and 
Prescott by sight and reputation, and not otherwise. 
The Solicitor-General then asked Mr. Webster this 
question : " Did you at that, or any other period, ever 
enter into any plot to dissolve the Union?" To 
which Mr. Webster answered: "No, sir." Mr. Web- 
ster then apparently without being questioned pro- 
ceeded to say that he would "state the transactions 
relative to the alleged libel as they transpired." He 
said: "On the day of the pubUcation, or the next, I 
" was in the Suffolk Insurance office and my atten- 
" tion from the conversation there was drawn toward 
" the article. It was also thus in other offices, and in 
" conversation with gentlemen on the street. From 
" this conversation and from the connection of Gen- 
" eral Lyman with the Republican I had some reason 
" to believe that he might possibly be the author. I 
" distinctly stated at about this period that I should 
" not prosecute the publishers of the paper for this, 
" what I should call, atrocious libel, for I had ob- 



( 79 ) 
" served that the paper was printed for the proprie- 
" tors, but that when I should find out who the pro- 
" prietors were, I should give them an opportunity 
" to prove the truth of the assertions. I then called 
" upon JNIessrs. Curtis and Fletcher as my counsel, 
" to inquire of the publishers of the Republican to 
" know the author of the piece in question. I then 
" directed my attorneys to inquire as to the jurisdic- 
" tion of the Municipal or Supreme Judicial Court 
" of the offence. This was two or three days previ- 
" ous to the sitting of the INIunicipal Court and ten 
" or twelve days previous to the session of the Su- 
" preme Judicial Court. Nothing was then done or 
" said by me until I was satisfied that General Ly- 
" man knew I intended to have a legal investigation. 
" No explanation was given by General Lyman, al- 
" though in my opinion Mr. Lyman was satisfied that 
" I felt injured by the publication of the libel. I 
" heard nothing on the subject from General Lyman. 
" For myself I sought no explanation, and none on 
" the other hand was given. Twelve days after I pre- 
" sented my case to the Grand Jury." 

Charles P. Curtis then testified for the prosecution, 
stating substantially the same facts as Mr. Webster 
had stated with regard to the action of Mr. Webster 
before the matter was presented to the Grand Jury, 
and said that it was the expectation of INIr. Webster 



( 80 ) 
that some explanation would be made by General 
Lyman which should supersede the necessity of a 
public prosecution. At this point Chief Justice Parker 
observed that it was evident there was throughout 
the whole some "unfortunate misapprehension be- 
tween the parties." 

The Sohcitor-General then read to the jury the 
affidavit which had been signed and sworn to by Mr. 
Lyman, November 17. 

This closed the evidence in the case, and at three 
o'clock in the afternoon Mr. Hubbard began the clos- 
ing argument for Mr. Lyman. It was upon the lines 
indicated by Mr. Dexter in the opening. He said to 
a common-sense view the question was whether the 
circumstances of the case showed beyond a reason- 
able doubt that General Lyman intended to libel Mr. 
Webster, and that the jury were to judge of the mo- 
tives of Lyman, which if they were innocent and 
without malice did not make him, in the words of 
the indictment, an "infamous libeller." 

He said: "It is a well-known fact that the object 
" for which the Jackson Republican was estabhshed 
" was to oppose the reelection of Mr. Adams as Presi- 
" dent. Mr. Lyman at the close of a hot political con- 
" test publishes a certain letter of INIr. Adams bearing 
" strongly upon the motives and conduct of certain 
" leaders of the Federal party to show that he was 




SAMUEL HUBBARD 

From a Painting in the possession of Walter Buck, Andover, Massachusetts 



( 81 ) 
" unworthy of their support. There was in this no 
" maUce against Mr. Webster on the part of Mr. Ly- 
*' man, but merely an attempt to hold up Mr. Adams 
" to public ridicule. He had a right to do this. The 
" Federal party was once a dominant one in the 
" United States. It was an honour to any man to 
" have belonged to it. Washington was at its head. 
" For myself I feel it no disgrace to have been in its 
" ranks. John Quincy Adams was at one time one of 
" its leaders, associated with those very men whom 
" he has pubUcly denounced. He afterwards disowned 
" them and apostatized from them, and has also pub- 
" licly called them traitors to their Country in oppos- 
" ing the Embargo Law and the War. Mr. Lyman 
*' in his commentary only said that Mr. Adams on 
" account of this strange charge was unworthy of the 
*' support of these persons, that they of all others 
" had the least reason to support him. This was per- 
" fectly justifiable for a pohtical writer to say in order 
" to promote the election of his own candidate, Gen- 
" eral Jackson. When a person is to be chosen to the 
" high office of Chief Magistrate of the United States, 
" it must be expected that a full canvass of the merits 
" of each candidate will be made, and a commentary 
" on such merits or demerits is not to be inferred as 
" malicious, either towards the candidates themselves, 
*' or their supporters." 



( 82 ) 

In order to show that Mr. Webster was one of the 
leading Federalists of New England at the period 
referred to by Mr. Adams, Mr. Hubbard said that 
he would refer to a pamphlet acknowledged by Mr. 
Webster to have been written by him on the Em- 
bargo Laws. The Solicitor- General objected to the 
reading of the pamphlet, or reference to a part of it, 
unless the whole was read. Mr. Hubbard said the pam- 
phlet was in the case. He had a right to refer to it, 
but he did not wish to read the whole of it on account 
of the waste of time. The Sohcitor-General still ob- 
jected to reference to parts of the pamphlet, and the 
Chief Justice requested Mr. Dexter to read the whole 
pamphlet, which he did. 

The pamphlet was entitled, "Are the Embargo 
Laws Constitutional?" It discussed at length the 
power of Congress to pass an embargo act, claiming 
that it had no constitutional power to create an em- 
bargo unlimited in time. It stated the disastrous ef- 
fects of the embargo upon the United States, and 
showed how little injury it did to either England or 
France or their colonies. In this pamphlet ^Ir. Web- 
ster charged that the Embargo Acts originated in 
Jefferson's wish to favor France against Great Brit- 
ain, saying, " The administration party are perpetually 
" singing the praises of the French Emperor. They 
" rejoice in his successes, and justify and applaud his 



( 83 ) 
"most enormous acts of injustice and oppression . . . 
*' and burst forth in exclamations of rapturous and 
" unhallowed joy at the progress of successful guilt 
" and violence. They even blasphemed Heaven, and 
"mocked it with diabolical gratitude, when they 
" thanked God that the world was blessed with this 
" detestable tyrant." 

In one part of the pamphlet Mr. Webster, refer- 
ring to a statement made in Congress that trade with 
Canada was prohibited in order that "the sufferings 
"of our citizens might be equal," said, "This is as 
" if your physician should draw one of your teeth, 
" because it ached, and should then propose to draw 
" another, from the other side of your face, which did 
" not ache, in order to make the 'suffering equal.'" 

There was much laughter in Court at the reading 
of some passages of the pamphlet, and the simile of 
drawing a tooth which did not ache because one 
which did ache had been drawn from the opposite 
jaw received particular applause.* 

After the reading of this pamphlet ^Ir. Hubbard 
continued his argument; saying that he wished he 
could entertain the jury as well by his argument as 
they had been entertained by the pamphlet they had 
just heard read ; that the pamphlet itself showed that 
the author was a distinguished writer and leader 

* Report in Advertiser, December 22, 1828. 



( 84 ) 
among the Federalists of New England. He said: 
"It is claimed by Mr. Adams that the people were 
" openly instigated to violate the law of the Em- 
" bargo. How violate a law if it was unconstitutional? 
" And jury after jury has decided that it was so. No 
"unconstitutional law can be violated, for such a 
" law is itself a violation of the Constitution. 
" It is apparent from the pamphlet, known to have 
" been written by Mr. Webster, that he was within 
" the legitimate meaning of the statement of Mr. 
"Adams, — he was one of the leaders of the New 
" England Federal party in 1808, — and if talents, 
" personal influence and an opposition to the restric- 
" tive system of that period constitute a leader, Mr. 
" Webster was not only a leader, but a powerful one. 
" He was of the same class as Messrs. Otis, Parsons, 
" Cabot, Dexter, Ames and others ; he was engaged 
" in the same cause and had the same principles. If 
" the names of the Federal leaders of that period were 
" to be called who would think of omitting the name 
"of Webster? There can be no question that Mr. 
" Adams did mean IVIr. Webster as much as any of 
" the others I have named." 

Mr. Hubbard then discussed at some length the 
language of Mr. Adams, saying that the words "sub- 
sequent events" used by him doubtless referred to the 
Hartford Convention, and saying, "I do not stand 



( 85 ) 
"here to vindicate the Hartford Convention. The 
" members of that body, or most of them, are now 
*' hving and can vindicate themselves and their mo- 
"tives, if they need vindication. Neither do I wish 
" to attack JNIr. Adams. Each individual has a right 
" to his opinions, and when he comes before the pub- 
" lie with them, each individual has equally a right 
"to comment on them. It was the whole Federal 
" party, of which Mr. Webster was a part, which ]\Ir. 
" Adams aspersed, and General Lyman had a right 
" to make the application. If in doing it he used the 
" name of Daniel Webster when Mr. Adams meant 
" to confine his charges of treasonable plots to Fed- 
" eraUsts in Massachusetts alone, then Lyman's men- 
" tion of Daniel Webster was a mistake, but not a 
" malicious and infamous libel. It is especially cor- 
" rect that these accusations of INIr. Adams should 
" be noticed here — the very spot at which some of 
" the principal actors live, and where an effect was 
" to be produced. JNIr. Adams has made broad asser- 
"tions and must have calculated that their conse- 
" quences would be followed out by others. In pur- 
" suing these consequences Mr. Webster's name has 
" been used, but all Mr. Lyman's remarks meant was 
"that Mr. Adams had disregarded the rights and 
" opinions of a certain portion of the public in order 
" to further his own interests, on which account he 



( 86 ) 
' was unfit for reelection, or that if he beheved his 
' own statements, then in consequence of having re- 
' ceived traitors, as he called them, to his councils, 
' he was unworthy of support. 
' My client is well known, and it is equally known 
' that previous to the election of Mr. Adams to the 
' office of President he was opposed to his election 
' and in favour of Mr. Crawford, and after the elec- 
' tion of Mr. Adams, and when the Federalists sup- 
' ported Adams, he seceded from their party and be- 
' came the advocate of the cause of General Jack- 
' son. The Federalists generally were in favor of Mr. 
'Adams. General Lyman saw fit to advocate the 
' cause of Jackson. Whether he was wise or not re- 
' mains to be proved. It is of no consequence in this 
'trial. But the gentlemen named in the supposed 
' libel were formerly Mr. Lyman's political friends ; 
' they were at the time when the alleged libel was 
' published his personal friends, belonged to the same 
' club, met week after week together. Is it possible 
' to conceive that he intended to libel his former po- 
' litical and present personal friends ? The idea is a 
' monstrous one. The article bears a compliment on 
' its very face. No one with a fair mind can doubt 
* General Lyman's intention in classing Mr. Webster 
' with those eminent gentlemen with whom he was 
'thus associated. All these other gentlemen are 



( 87 ) 
" equally libelled if Mr. Webster was libelled. If it 
" was a libel upon Mr. Webster it was also a libel 
" upon Otis, Dexter, Prescott, Russell, Mills and all 
"the others who were included, — but who among 
" them was thus hbelled by the publication? Do they 
" deny the fact that they were opposed to the Em- 
" bargo, that they were influential men, or do they 
" avow it and justify their motives ? In political con- 
" tests the parties must frequently resort to the publi- 
" cation of names. It is a thing to be expected by those 
" who take part in the contests of the day. It is every- 
" day practice. If General Lyman had not a malicious 
" intent to libel all these gentlemen, then he did not 
" intend to libel INIr. Webster, for they are all equally 
" included in the article. I have as high an opinion 
" of the character of Mr. Webster as has the Sohcitor, 
" but it is not for me at this time to sound Mr. Web- 
" ster's praise. I shall leave that to the Solicitor, who 
" has said that this was emphatically the prosecution 
*' of the Commonwealth, whose duty it is to protect 
" the character of its citizens." 

Turning to the Solicitor-General, he said: "I will 
" ask of him, — Where was the kind care of Govern- 
" ment when her best citizens, her mighty living and 
" mighty dead, were traduced and vilified by Mr. 
"Adams? When such men as Otis, Ames, Dexter 
" and a long list of hving and departed patriots were 



( 88 ) 
" branded with the name of traitors ? Did the Soli- 
" citor think General Lyman intended the paragraph 
" on which this prosecution is founded as a mahcious 
" libel on these men when he first read it? If it is so 
" apparently a malicious and infamous Hbel, how can 
" my friend, Mr. Dexter, associated with me in this 
" defence, sit here to protect Mr. Lyman, who has 
" thus infamously hbelled his deceased, lamented and 
" respected father and his honoured father-in-law ? * 
" No one in his senses can say that it would be pos- 
" sible for him to do it. Does INIr. Otis, or any other 
" of these gentlemen, complain of this charge of Mr. 
" Adams, or feel aggrieved at the comments of Gen- 
"eral Lyman? Certainly not. 

" Mr. Lyman only called the attention of the reader 
" to those persons who were intended by Mr. Adams 
" in his absurd and ridiculous charge. If Mr. Adams 
" said that the leading Federahsts of New England 
" were traitors, has not any member of the commu- 
"nity a right to say who were leaders or traitors? 
" When the most eminent men and greatest char- 
" acters are thus traduced, have not the community 
" a right to know the fact, and also to be informed 
" who these men are? Has not an individual a right 
" to ask of the community, whether the public will 

• Franklin Dexter was the son of Samuel Dexter, and married a daughter 
of William Prescott. 



( 89 ) 
" support this traducer for the first office in the gift 
"of the people? 

" Mr. Adams meant somebody. It has been said that 
" corporations have no souls. Perhaps the Federal 
" party as such, or as a body, are in the same pre- 
" dicament. Yet its leaders have souls, among whom 
"is to be included Mr. Webster. If he was no 
" leader at the period spoken of, then General Ly- 
" man was guilty of a mistake, not of malice, in in- 
" eluding him with the others mentioned. But any 
" man who could write, and did write, such a pam- 
" phlet as that in this case must have been a leader. 
" The fact of the pamphlet itself, its intrinsic energy 
" and merit, show him to have been a leader, — one 
" who under any and all circumstances would have 
"been a leader. 

" The pointing out of the individuals alluded to by 
" Mr. Adams was only descriptive of the meaning 
" of Mr. Adams, done without any malicious intent 
" towards Mr. Webster and the others. 
" The prosecution originated in a mistake, — an un- 
" doubted mistake. No explanation was made by 
" General Lyman, or called for by Mr. Webster, and 
"no opportunity was given to explain.* 

* In 1882, Mr, Lyman's son transmitted to the Massachusetts Historical 
Society a letter in Mr. Lyman's handwriting, stating how he came to write 
the alleged libellous article, his relations with Mr. Webster, and his views 
of the trial, and also stating how the former relations between himself and 



( 90 ) 
" But even IVIr. Adams's charge was not that of 
" treason. It is not treasonable to oppose an uneon- 
" stitutional law. Mr. Adams in saying that the Fed- 
" eral leaders were traitors in opposing the Embargo 
*' Law did not say anything Ubellous or call anybody 
" a traitor. An intention to commit treason is not a 
*' commission of treason, and is not punishable by law. 
" Therefore it was not libellous to accuse one of such 
" an intention. A confederation of the New England 
" States to confer with each other on the subject of 
" dissolving the Union was no treason. The several 
" States are independent and not dependent. Every 
" State has a right to secede from the Union without 
" comrnitting treason. 

" Here it is stated that certain gentlemen were trai- 
"tors for threatening to dissolve the Union. The 
" time will undoubtedly arrive when this subject of 
" a dissolution of the Union will be openly discussed 
" in all parts of the United States. . . . 
" It seems that the feelings of INIr. Webster were 
" hurt, and there was a question of etiquette, as to 
" who should make the first advance. One waited 
"for an explanation to be asked, and the other for 
" a reparation to be made. On the part of INIr. Web- 
" ster, he was surprised that General Lyman should 

Mr. Webster were afterwards restored. See Massachusetts Historical So- 
ciety Proceedings, vol. xix, p. 323. 



( 91 ) 
" have written the alleged libel, and expected an ex- 
" planation, which not being offered, he became an- 
"gry — even the greatest men are not always free 
" from this passion. No explanation, however, could 
" be expected from General Lyman under the threat 
" of prosecution, much less after an indictment, 
*' for then no honorable man could consent to make 
"the explanation required. Mr. Lyman could not 
" then honorably seek out and explain. He preferred 
" to meet the charge at the hands of a jury of his 
" Country." 

When Mr. Hubbard closed his argument, the 
Court, which opened at nine o'clock in the morning, 
had been in session, with only an hour's intermission 
at noon, until seven o'clock in the evening, and the 
Solicitor- General said that owing to fatigue he should 
not be able to do justice to the Government by mak- 
ing his closing argument that evening. The counsel 
for Mr. Lyman, however, deprecated an adjourn- 
ment and objected. But the Chief Justice said that 
though it was an unfortunate point to break off the 
cause, still the counsel for the defence could recapit- 
ulate the chief points in their case the next morning 
if they desired, and he adjourned the Court until 
nine o'clock the next morning. 

The defence then desired to make no further ar- 
gument, and the Solicitor- General, wrapped in his 



( 92 ) 
cloak in a heated atmosphere in a crowded court- 
room, argued the case of the Government for nearly 
three hours. 

He said the case was a perfectly plain one; that 
the accusation against INIr. Webster was of the com- 
mission of one of the highest crimes known to the 
law, and that the answer was no more nor less than 
the admission of the fact of such accusation. He said 
he had a high respect for both parties in both their 
public and private situations, but the article was 
libellous and was malicious. As to the suggestion 
that the word "infamous" should not have been used 
in the indictment, he said that was the language of 
the law, and the indictment was framed from one 
in a case where Lord ^lansfield was libelled; that 
if in describing this libel he could have legally called 
it by a softer name he would have said that "the 
" observations of INIr. Lyman relative to ^Ir. Webster 
" were unfair, unfriendly, unhappy, un-Christian, and 
" he might have also said ungentlemanly, but the 
" law designated the terms to be used." 

Continuing, he said that the remarks of Mr. Adams 
in no sense applied to JNIr. Webster, that they could 
have had no reference to him, and that there was as 
much difference between charging the leading Fed- 
eralists of ^Massachusetts in 1808 with treason, and 
charging Daniel Webster with treason, as there was 



( 93 ) 
between black and white. INIr. Adams, in speaking of 
the opposition to the embargo measures, spoke of 
the leading FederaUsts of the State in which he lived, 
in which jury after jury had said that the embargo 
was unconstitutional. 

Proceeding, he said : " It is also asserted in the cal- 
" umny of Mr. Adams that the Judiciary of Massa- 
" chusetts were in league with the opposition to the 
" Embargo, and in this treasonable plot. The whole 
" related to the Legislature, the Judiciary, and to 
" the leading Federalists of Massachusetts, and not 
" to that of any other State. 

" As to the suggestion of the defendant's counsel 
" that the statement of Mr. Adams contained nothing 
" very important, it was a charge that the Legisla- 
" ture and the Judiciary and the leading Federahsts 
" of Massachusetts were preparing to produce a civil 
" war, and yet it is said that a charge of this nature 
" possesses but little of atrocity. But I say that when 
" such charges are made it exhibits every abandon- 
" ment of principle — of unutterable depravity. It is 
" an infamous falsehood. The highest and most ven- 
" erated characters are traduced. The most high- 
" minded of this or any other Country are vilified. 
" The counsellors and bosom friends of the immor- 
" tal Washington are foully calumniated ; those whom 
" he trusted and loved are thus disgraced. They are 



( 94 ) 
" charged with the greatest act of human depravity 
" of which any man can be accused, and this charge 
" is made, not only against the Uving, but against 
" those who have gone to their long account, against 
" the good and the patriotic and the pious, — against 
" such men as Ames, Cabot and Dexter. 
" The character of the State is implicated in the at- 
" tack thus made, and if any men ever existed whose 
'* characters are above reproach they are those accused 
"by Mr. Adams, and afterwards by General Ly- 
" man, in the libel complained of. General Lyman in 
" his communication most explicitly states that Mr. 
" Webster was recorded on the archives of the Gov- 
" ernment as a traitor, and no construction which has 
" been given by the defendant's counsel has changed 
" that allegation, or its nature. . . . 
" As to the suggestion of the defendants that Mr. 
" Lyman's article was ' scratched in a hurry,' it can- 
" not be the law of the land that such an excuse can 
" j ustify him, — that he can ' scatter firebrands, arrows, 
" and death,' and then say, 'Am I not in sport?' Such 
" a defence argues a most criminal inattention to 
" consequences, which is of itself a strong evidence 
" of malice. It seems to be not only legal, but moral 
" turpitude. 

" The charge of Mr. Adams was left without appli- 
" cation. It was a blow in the dark, and General Ly- 



( 95 ) 
" man was the avowed author by giving a name and 
" circulation to the poison. Instead of pronouncing 
" the assertions of Mr. Adams to be false and ca- 
"lumnious, he adds to their venom and effect. In 
" the face of the whole Country and all Europe — 
" for Mr. Webster is as well known there as he is 
" here, the defendant has stigmatized him as a trai- 
" tor, and asserted that he has been so stigmatized 
" by the President of the United States. How can 
" Mr. Webster take his seat in the Senate under this 
" imputation? May they not say to him: 'With what 
" face can you come here ? How dare you show your- 
" self among gentlemen?' 

" But if only one-millionth part of the injury which 
" has been done and suffered had been caused by this 
" article, what was the proper course ? To make a 
'* frank and fair avowal of the mistake, if it was one, 
" and a confession of the injury. This was the course 
" which a just man and a gentleman should pursue 
" in a moral and religious community. If this offence 
" had been given in a different section of the coun- 
" try, it would not have been an hour before one or 
" the other would have been a dead man. If in this 
" libel the name of McDuffie* had been inserted in- 
" stead of Webster, the gallant gentleman would 



* George McDuffie was then a member of Congress from South Carolina, 
and a noted duellist. 



( 96 ) 

" soon have had occasion to exclaim Hke Macbeth, 

"Laz/ on, Macdiiff, 
And damnd be Mm thatjirst cries, ''Hold, enough!'''''' 

" It cannot be required of him who is Ubelled to go 
*' cap in hand to the hbeller, to ask for explanation. 
" The defendant had time enough to make an ac- 
" knowledgment, and he knew that it was expected. 
" Mr. Webster waited twelve days, in which time 
" no offer of reparation had been made, from which 
" it was to be inferred that no explanation was ever 
" intended on the part of Mr. Lyman. The affidavit 
" of Mr. Lyman made it manifest that he never in- 
" tended to make satisfaction except upon a verdict 
"of the jury and judgment of the Court. I offered 
" to enter a nol. pros, if Mr. Lyman would make a 
" frank acknowledgment, which he declined to do, 
" and this is inconsistent with his declarations of in- 
*' nocent intentions with relation to Mr. Webster." 
This closed the argument and the Chief Justice 
then charged the jury. He began by saying, "It is 
" unfortunate there ever was occasion for this prose- 
" cution, unfortunate that there has not been some 
"amicable disposition of it upon explanations not 
" derogatory to the honor of the accused, and yet 
" satisfactory to the feelings of the party aggrieved. 
" It is apparent but that for some point of etiquette, 
" to which importance has been attached, such dis- 




ISAAC PARKER 

From a Painting in the Supreme Judicial Court, Boston 



" position of the case would have taken place. But 
" the honor of the gentlemen is in their own hands, 
" and if that is thought to create an insuperable 
" barrier between them, we can only regret that the 
"controversy must be determined by the ultima 
'^ ratio of peaceable citizens — a verdict of the jury 
" of their Country. In other parts of the country this 
" ultima ratio might have been of a different kind." 

Speaking of the parties, he said : " The accused and 
" the accuser stand before you, gentlemen, with high 
" claims upon your consideration and respect. Thefor- 
" mer has brought much reputation and dignity to this 
" his adopted State by his eminent talents in every 
" department where he has been called to act. His 
" name has pervaded every part of the Union, and 
" the fame of his talents has gone far beyond its lim- 
" its. The latter is a native of your own city, has been 
" deservedly a favorite of the citizens, and has been 
" highly useful to the Commonwealth in civil and 
" miUtary departments, and in support of those in- 
" stitutions which are the pride and ornament of the 
" city." 

The Chief Justice then discussed the question of 
the liberty of the press, saying, " No Country without 
" a free press and an educated people can long re- 
" main free ; a free press 'is the sustaining, vital prin- 
" ciple of freedom — it proclaims the vices and abuses 



( 98 ) 
" of the Government — the rights of the citizen — 
" the merits and demerits of rulers — and these are 
*'its proper and legitimate offices. He who would 
" restrain it in the exercise of these functions com- 
" mits treason against the fundamental principles of 
"civil liberty.'" 

"But," he said, "the press is not invested with the 
" power of invading private character, or of circulat- 
" ing falsehood against public or private men. Power- 
" ful as the press is, it has a master. That master is 
" the Law, which when it transgresses its legitimate 
" bounds will punish the transgression. It is the law 
" — I believe it always was the law — that a jury in 
" a criminal case can determine both the law and the 
"fact.* With this popular guard over the rights of 
" the press and the rights of the citizen, the system 
" of a free press is safe from everything but occa- 
" sional errors." t 

He then said to the jury: "The decision of this 
cause rests entirely with you," and proceeded to 
state the leading principles of the law which should 
guide their deliberations. 

He first discussed the alleged libellous article, say- 



* The Supreme Court, in an opinion by Chief Justice Shaw, held otherwise 
in Commonwealth vs. Anthes, 5 Gray, 185, in 1855. 

t And yet, in 1798, Isaac Parker voted and spoke in Congress against an 
amendment allowing jurors to be judges of the law in prosecutions under 
the Sedition Act. 



( 99 ) 
ing, "The defendant had a right to pubhsh a fair 
" commentary upon a communication made by the 
"President. If that high officer will commit his 
"thoughts and opinions, or what he considers facts, 
" to a public newspaper, they become pubhc property, 
" and any citizen has a lawful right to criticise or 
" speculate upon the opinions, and to deny the facts 
" or comment upon them, but he has not the right 
" to misrepresent them, or to draw unreasonable in- 
" ferences from them to the prejudice of the reputa- 
" tion of other persons. If he does this wilfully, in such 
" manner as to expose a third party to public indig- 
" nation, hatred or contempt, he cannot shelter him- 
" self under cover of the communication upon which 
" he made his commentary. . . . 
" I am of the opinion that if you should be satisfied 
" that the gentlemen named in Mr. Lyman's article 
"were the persons whom IVIr. Adams intended to 
" designate as the leaders of the Federal party at that 
" time — that the insertion of those names would not 
" be an unfair or unjustifiable commentary upon the 
" communication — it would be only filling up a pic- 
" ture, the figures of which were as distinct and dis- 
" cernible to the mind, before as after filling up. And 
" though this might be a libel by JVIr. Adams, yet if 
"the commentary introduced no new matter, and 
" was only a fair exposition of the communication. 



l.-cT 0. 



( 100 ) 
" it would not be a libel. If, however, the insertion 
" of Mr. Webster's name was not justified by the 
" communication of Mr. Adams, and was done wil- 
*' fully, and the effect is to expose Mr. Webster to 
" scorn or hatred, it is libellous. But if it was done 
" by mere inadvertence or mistake, it is not libel- 
" lous." 

As to the words of the article, saying that Mr. 
Adams had placed the names of the gentlemen men- 
tioned upon a secret record in the archives of the 
Government as traitors to their Country, he said that 
" if this was a mere rhetorical flourish, if the jury are 
"satisfied that by 'records' and 'archives' is meant 
" nothing more than letters of Mr. Adams, the re- 
" mark is not libellous ; but if they believe Mr. Ly- 
" man intended by this to assert that this charge of 
*' Mr. Webster's being a traitor was absolutely re- 
" corded, it is certainly the most serious part of the 
"subject." 

He then said, "If, from the political purpose with 
"which the Jackson Republican was set up, — that 
" is, of advocating the election of General Jackson, 
" and the defeat of INIr. Adams, — and from the tenor 
" of the article and the circumstances connected with 
" its publication, the jury believe that the names of 
" Mr. Webster and others were inserted only as illus- 
" trating the extreme injustice of INIr. Adams's accu- 



( 101 ) 
*' sation against the leaders of the Federal party, then 
"the article is not libellous." 

"But," he said, "this is a matter about which you 
" will exercise your best discretion. You will not strain 
" the words to give them this meaning. You will form 
" your opinion cautiously and deliberately on the real 
" tendency and effect of the publication. 
" As to malice, if the publication was unjustifiable, 
"and its natural tendency was to create hostile feel- 
" ings, aversion and hatred to Mr. Webster, malice 
" is inferred by law. This inference, however, may be 
" rebutted by direct proof of an honest purpose and 
" an innocent design. Of this you are the judges." 

As to the indictment he said : "With regard to the 
" form of the indictment, in which it is supposed there 
" is an unnecessary accumulation of harsh epithets, 
" I suppose it is in the usual form. The prefatory 
" words of general accusation are wholly immaterial. 
" If the defendant is convicted, it is only of this libel; 
" his character in other respects will stand as fair as 
" before. This is the antiquated dress of indictments, 
"which might usefully be exchanged for a more 
" modern costume." 

After the charge the jury retired, and the Court 
waited some time for their return, and then adjourned 
until three o'clock. The jury were then called in, and 
were asked if they had agreed, to which the foreman 



( 102 ) 
replied that they had not. The Chief Justice asked 
them if there was any question "concerning the na- 
ture of the law," or whether their disagreement was 
wholly upon the facts. The foreman answered: "// 
is entirely upon the facts. We do not disagree upon 
the law." 

The Chief Justice then asked: "Is there any pro- 
spect of an agreement?" To which the foreman re- 
plied: "In my opinion there is none." The jury were 
then discharged.* 

The case was continued until the March Term, 
1829, and INIr. Lyman recognized in the sum of 
$1000, without sureties, for his appearance at that 
time. In March, 1829, the case was again continued 
upon the same recognizance until the November 
Term of the same year, when the Solicitor-General 
entered a nolle prosequi in the following words, writ- 

* The trial was concisely and fairly reported in the Boston Daily Adver- 
tiser, December 18, The New England Palladium and American Traveller, 
December 19, the Jackson Republican, and The Independent Chronicle 
and Boston Patriot, December 20, but none of the Boston papers made 
any editorial comment on the case. The Advertiser of December 22 gave 
the following as the action of the jury after they had retired for consulta- 
tion. 

"We publish the results of several ballotings of the traverse jury in the 
case. The following is authentic. 
"Ist ballot for conviction 9 

for acquittal S 

"2nd ballot for conviction 10 

for acquittal 2 

"3d ballot for conviction 10 

for acquittal 2 

This is the only information now to be had as to how the jury really 
stood and is probably not very reliable. 



( 103 ) 
ten by him upon the back of the indictment now 
on file in Court. 

" November Term, 1829. 
" This indictment was committed to a Jury, at the 
" NoV^ Term of this Court 1828. This Jury, after 
" a full and deliberate hearing of the evidence, ar- 
" guments of Counsel, and a learned and impartial 
" charge from the Chief Justice, were not able to 
*' agree upon a Verdict. From this fact and from the 
" peculiar circumstances of this case, I am of opinion 
" that public justice does not require that it shall be 
" tried a second time. I will therefore no further prose- 
" cute this Indictment; for which I also have the con- 

" sent of the prosecutor. 

"Dan'I Davis Sol. GenI." 

And thus this famous prosecution failed of its pur- 
pose and came to nothing. Mr. Webster had insisted 
that Mr. Lyman had charged him with a treasonable 
plot to break up the Union, and demanded a vindica- 
tion from that charge by the verdict of a jury in the 
County where he and Mr. Lyman lived. He had 
prosecuted the case as a personal matter with all the 
resources at his command, and with the controlling 
influences of the community on his side, and yet he 
failed to obtain a verdict of vindication from the 
charge, obviously because the jury were not con- 
vinced that the charge was ever really made. 



( 104 ) 

A careful examination of all the facts and cir- 
cumstances of the case must convince any impartial 
mind that Mr. Lyman never intended to charge Daniel 
Webster with having been at any time engaged in 
any treasonable plot to break up the Union. What 
he intended was to charge John Quincy Adams as 
President with a libel upon the leading Federalists 
of Massachusetts, because Adams had said that they 
had engaged in 1808 in a plot to break up the Union. 
This charge against Mr. Adams necessarily implied 
that the leading Federalists were not engaged in the 
plot in which Mr. Adams said they were engaged. Ly- 
man inadvertently, and perhaps erroneously, named 
Webster as one of the persons to whom the charge 
of Adams applied. He did not thereby in any fair 
sense make the charge of Adams his own, and it was 
only by an unfair and forced construction of his lan- 
guage that it could be claimed he had applied the 
charges of Adams to Webster and the others named 
in his article, or that he had himself charged that 
these eminent citizens had ever engaged in a plot to 
break up the Union. 

Mr. Webster required no vindication from such a 
charge if it had been made by Mr. Lyman. The claim 
of the Solicitor-General that Webster could not re- 
turn to Washington unless vindicated by the verdict 
of a jury was absurd, and his statement that Mr. 



( 105 ) 
Webster's "children and friends were interested in 
wiping away the stain created on the escutcheon of 
his reputation by so foul a charge" was nonsense. It 
is difficult to believe that ]Mr. Webster himself 
thought it necessary for his personal or official vindi- 
cation to institute this extraordinary prosecution. He 
was doubtless induced to do it only as a part of the 
bitter political contest then being waged between the 
friends of Adams and of Jackson. The subsequent 
conduct of Mr. Lyman towards Mr. Webster shows 
that he considered the case as really political and not 
personal on the part of Mr. Webster. Of course, the 
trial for the time interrupted the previous intimate 
social relations between Webster and Lyman, but in 
a year or two they became reconciled and remained 
warm personal friends through life. The reconcilia- 
tion came about in this way: In December, 1829, 
Mr. Webster married as his second wife Miss Caro- 
line Leroy of New York, a former schoolmate of 
JNIrs. Lyman, who was a Miss Henderson of New 
York, and Mr. and ^Irs. Lyman were informed that 
if Mrs. Lyman thought proper to call on ^Irs. Web- 
ster on her arrival in Boston the visit would be re- 
ceived with pleasure and returned. This was done, 
and after that the families were on intimate social 
terms. 

Mr. Lyman admired Mr. Webster, and took his 



( 106 ) 
youngest daughter, who is now Hving in Boston, to 
hear him speak ; and when she visited Washington, 
while Mr. Webster was in the Senate, she also be- 
came an admirer of Webster, and tells of his per- 
sonal charm in society, of his impressive appearance, 
of how she used to go to the Senate only "to look 
at him," and of how the Senate always filled at once 
when word was passed that "Webster is up." When 
Mr. Webster's favorite daughter, Julia Appleton, 
died in 1848, and Mr. Webster was in great grief, 
Mr. Ljnman went to see him, and they had a very af- 
fecting interview, recalling the old times when they 
were both young men. 

Closely connected with this trial was the famous 
controversy between John Quincy Adams and cer- 
tain Massachusetts Federalists as to his charges in 
the IntelUgencer of October 21, 1828. On Novem- 
ber 26, 1828, after Mr. Lyman had been indicted and 
before his trial, "Harrison Gray Otis, Israel Thorn- 
" dike, William Prescott,T. H. Perkins, Daniel Sar- 
" gent, John Lowell, William Sullivan, Charles Jack- 
" son, Warren Button, Benjamin Pickman, Henry 
" Cabot (son of the late George Cabot), C. C. Parsons 
" (son of the late Theophilus Parsons), and Franklin 
*' Dexter (son of the late Samuel Dexter)," wrote Mr. 
Adams and asked him to name the leading Federal- 
ists in Massachusetts, who, as he had charged, in- 



( 107 ) 
tended to dissolve the Union in 1808, and to give 
the evidence on which the charge was founded. De- 
cember 30, Mr. Adams wrote a long reply to this let- 
ter reiterating his charge, but refusing to give names 
or to state evidence in support of it. The signers then 
published as a supplement to the Boston Daily Ad- 
vertiser of January 24, 1829, their letter, Mr. Adams's 
reply, and "An appeal to the Citizens of the United 
States," in which they solemnly denied all knowledge 
of any project to break up the Union, or of any plan 
analogous to it in 1808, or at any other time, and 
severely commented upon Mr. Adams's charges and 
conduct. They also printed these papers as a pam- 
phlet, which passed through two editions and was 
circulated throughout the United States. 3Ir. Adams 
was much incensed, and prepared a long and bitter 
reply, in which he concentrated and stated all that 
could be said against the New England Federalists. 
This reply, entitled "Appeal to the Citizens of the 
United States," was not printed until November, 
1877, when it was pubHshed in "Documents Relat- 
ing to New England Federalism," by Henry Adams, 
pp. 63-329. A statement of its charges is given in 
the Life and Letters of Cabot, by Lodge, published 
earlier in 1877, p. 412 et seq. Numerous allusions to 
the preparation of it occur in Mr. Adams's diary in 
1829. 



( 108 ) 

This prosecution of Mr. Lyman was one of the 
last acts in the long reign of the Federal oligarchy who 
ruled Massachusetts for nearly half a century. They 
had wealth, social position and political power, and 
tolerated no opposition to their ascendancy, and pun- 
ished aU pohtical insubordination with relentless se- 
verity. They were the " Federal Gentlemen " in Bos- 
ton, the "Essex Junto" in Essex, and the "River 
Gods" in the Connecticut Valley. They were accom- 
plished, able and patriotic men, who governed the 
Commonwealth wisely and well in its local affairs; 
but they yielded slowly and with extreme reluctance 
to the power of the National Government under 
the Federal Constitution. The Federal Union was to 
them good as long as it worked good to their local 
interests, and when it did not, they deemed it en- 
tirely patriotic to consider the question of its disso- 
lution; hence the Northern Confederacy scheme of 
1804, the violent and almost forcible opposition to 
the Embargo in 1809, and the determined opposition 
to the War of 1812, culminating in the nullification 
proceedings of the Hartford Convention in 1814. 

But time and commerce did their work. The spirit 
of nationality slowly grew among the plain people, 
and finally the rule of the local States' rights states- 
men came to an end. The first successful revolt was 
in Boston, when, in 1831, Harrison Gray Otis was 



( 109 ) 
defeated for Mayor, and in 1833, within four years 
after the Federal oligarchy had placed Theodore 
Lyman in the dock as an indicted criminal, he was 
elected Mayor as the "Jackson Candidate." 



APPENDIX 

Commonwealth of Massachusetts 

AN ACT to secure the People of this Commonwealth against 
Unreasonable^ Arbitrary, and Unconstitutional Searches in their 
Dioelling-Houses 

W HEREAs it is declared and provided in and by the fourteenth 
article of the Declaration of Rights of the inhabitants of the 
Commonwealth of Massachusetts, that " Every subject has a 
right to be secure from all unreasonable searches and seizures 
of his person, his house, his papers and possessions; and that 
all warrants are contrary to this right, if the cause or founda- 
tion of them is not previously supported by oath or affirma- 
tion : 

And whereas it is also provided in and by the sixth article 
of the amendments to the Constitution of the United States, 
that " The rights of the People to be secure in their persons, 
houses, papers and effects, against unreasonable searches and 
seizures, shall not be violated, and no waiTants shall issue but 
upon probable cause, supported by oath or affirmation, and 
particularly describing the place to be searched and the per- 
sons to be seized. And it being the duty of the Legislature to 
protect the Citizens of this State against the infringements of 
their essential rights, and to provide effectually for the pun- 
ishment of those who violate them : Therefore, 
Sec. 1. Be it Enacted by the Senate and House of Representa- 
tives in General Court Assembled, and by the authority of the 
same. That if any person or persons, after the passing of this 



( 112 ) 
act, in contempt and violation of the said provisions in the 
Declaration of Rights and Constitution aforesaid, shall enter 
any dwelling-house of any Citizen of this Commonwealth, sit- 
uate within the same, to search the same house for any specie 
or any articles of domestic growth, produce or manufacture, 
under pretence of any authority whatsoever, without or against 
the consent of the owner of such Dwelling-house, and not hav- 
ing a warrant therefor, supported by oath or affiraiation, and 
issued by a Magistrate having competent authority to issue 
the same, every person so offending shall be adjudged to be 
guilty of a high misdemeanor, and shall, on conviction thereof 
in the Supreme Judicial Court, be sentenced by said Court to 
pay a fine to the use of the Commonwealth, not exceeding the 
sum of five hundred dollars, and to suffer imprisonment in the 
common Gaol of the County in which the conviction may be, 
for a term of time not exceeding six months, or either of said 
punishments, according to the circumstances and aggravation 
of said offence. 

Sec. 2. Be it further Enacted, That if any person or persons, 
after the passing of this Act, in contempt and violation of the 
said provisions in the Declaration of Rights and Constitution, 
aforesaid, shall enter any Dwelling House of any Citizen of 
this Commonwealth, situate within the same, being armed with 
any offensive or deadly weapon, to search the same house for 
any specie, or any articles of domestic growth, produce or manu- 
facture, under pretence of any authority whatsoever, without 
or asainst the consent of the owner of such Dwelling House, 
and not having a warrant therefor, supported by oath or affir- 
mation, and issued by a Magistrate, having competent au- 



( 113 ) 
thority to issue the same, every person so offending, shall be 
adjudged to be guilty of a high misdemeanor, and shall, on 
conviction thereof, in the Supreme Judicial Court, be sentenced 
by said Court, to pay a fine to the use of the Commonwealth, 
not exceeding the sum of One Thousand Dollars, and to suffer 
imprisonment in the common Gaol in the County in which the 
conviction may be, for a term of time not exceeding twelve 
months or either of said punishments, according to the circum- 
stances and aggravation of said offence — Provided, however, 
that nothing in this act shall be construed to affect, or in any 
manner impair, the remedy which any person might have had 
for damages in a civil action if this Act had not been passed. 

In the House of Representatives^ Feb. 25, 1809, this bill hav- 
ing had three several readings passed to be enacted. 

Timothy Bigelow, Speaker 

This hill having had two several readings passed to be en- 
acted. H. G. Otis, President 

A comparison of this bill with the provisions of the Em- 
bargo Act of January 9, 1809, shows that it made the Acts au- 
thorized by the United States Statute crimes under the State 
Statute, and was in effect a State law nullifying the law of 
Congress. 

Lieutenant-Governor Levi Lincoln, who had become acting 
Governor by the death of Governor Sullivan, vetoed this bill, 
and on its return by him to the Senate with his objections, the 
vote upon passing it, notwithstanding his objections, was nine- 
teen to eighteen. 



INDEX 



ACT against unconstitutional 
.£\. Searches of Dwellings, ^20, 111, 

112, 113 
Adams, Henry, 107 
Adams, John, 20 
Adams, John Quincy, 3, 6, 7, 8, 9, 

10, 11, 28, 69, 70, 71, 73, 74, 76, 

80, 81,84., B5, 9^6, 87, 88, 89, 90, 92, 

93, 94., 95, 99, 100, 104, 105, 106, 107 
Advertiser, Boston Daily, 5, note on 

6, note on 102, 106 
Affidavit of Theodore Lyman, Jr., 

47 et seq., 68, 69, 80 
AUen and Sedition Acts, 20 
Ames, Fisher, 84, 87, 94 
Arguments in trial 

Davis, Daniel, 64-66, 92-96 

Dexter, Franklin, 67-71 

Hubbard, Samuel, 80-91 
Athenaeum, Boston, 33 
Austerlitz, 12 
Austin, James Trecothic, 31, 51 and 

note, 75 
BiGELOw, Timothy, 113 
Boston at time of trial, 30, 31, 32, 33 
Boston City Hall, 62 
Boston Common, 77 and note 
Boston Court Houses, 62 and note 
Boston Directory, 31, 63 
Boston Farm School, 61 
Burr, Aaron, 24 
Cabot, George, 24 and note, 84, 94, 

106, 107 
Cabot, Henry, 106 
CaUender, Jonathan, 32, 45, 46 
Centinel, Columbian, note on 6, 31 
Charge to jury by Judge Parker, 

96-101 
Churches in Boston in 1828 

Church of the Holy Cross, 33 

First Church, 33 



New South, 33 
Trinity, 33 

Clay, Henry, Letter to Webster 
from, 4 

Constitution, Federal, 2, 25 

Court Houses in Boston, 62 and 
note 

Crawford, William H., 86 

Curtis, Charles Pelham, 29 and note, 

32, 67, 74, 76, 79 
Curtis, George Ticknor, 3, 4 
Davis, 'Dxs\^i.{Solicitor-General), 1, 

31, 35 and note, 45, 52, 63, 64, 66, 

67, 71, 73, 78, 80, 82, 87, 91, 102, 

103, 104 
Davis, John, 32 and note 
Dawes, Francis O., 67 
Decrees 

Berlin, 5, 12, 27 

Milan, 5, 13, 27 
Dexter, Franklin, 32, 46, 63, 67 and 

note, 68, 71, 76, 88 and note, 106 
Dexter, Samuel, 7 and note, 8 and 

note, 10, note on 32, 63, 84, 87, 

88 and note, 94, 106 

Dutton, Warren, 32, 77 and note, 
106, 

Dwight, Theodore, 24 
Eliot, Charles W., note on 60 
Eliot, Samuel A., note on 60 
Embargo Acts, 2, 5, 6, 9, 12, 14, 15, 

16, 17, 18, 19, 20, 21, 22, 23, 26, 

71, 72, 73, 81, 82, 87, 90, 93, 108, 

113 

Petitions for relief from, 19, 20 
"Era of good feeling," note on 75 
Everett, Edward, 3 
Faneuil Hall, 8 
"Federal Gentlemen," 108 
Fletcher, Richard, 30 and note, 32, 

^■2, 74, 79 



( 116 ) 



Force Act, 18, 19, 20, 22 

France, 12, 23 

Gallatin, Albert, 14 

Gaol, note on 62 

George III, 5 

"Gerrymander," note on 75 

Giles, William B., 6, 8 

Griswold, Roger, 24 

Hartford Convention, 2, 4, note 

on 10, 24, 25, 26, 28, 84, 108 
Harvey, Peter, 3 

Hubbard, Samuel, 31, 46, 63 and 
note, 73, 80, 82, 83, 84, 85, 86, 87, 
88, 89, 90, 91 
Indictment against Theodore Ly- 
man, Jr., 35 et seq. Judge's com- 
ment on, 101 
"Infamous Libel," 42, 69, 85, 88, 

92 
Intelligencer, National, Washing- 
ton, 6, 7, 9, 58 
Interrogatories put to Lyman, 5Q 
Jackson, Andrew, 6, 33, 62 and 

note, 86, 105, 109 
Jackson, Charles, 106 
Jackson Republican, 6 and note, 
9, 29, 58, 65, 67, 74, 75, 76, 78, 79, 
80, 100, note on 102 
Jefferson, Thomas, 5, 6, 7, 8, 9, 14, 

15, 16, 18, 19, 22, 23, 26, 82 
Johnson Hall, 62 
Jurisdiction of Supreme Judicial 

Court in Libel Case, 34, 76, 79 
Jury in Libel Trial, 63 
Lanjian, Charles, 3 
Leroy, Caroline, 105 
Liberty of the press, 65, 66, 97, 98 
Lincoln, Levi, 113 
Lodge, Henry Cabot, 3, note on 35, 

107 
Lowell, John, 32 and note, note on 

77, 106 
Lyman, Isaac, note on 60 
Lyman School, 61 and note 
Lyman, Theodore, Jr., biography, 

60 
Lyman, Theodore, note on 60 



Madison, James, 23, 26 

Mall. See Boston Common 

Mansfield, Lord, 92 

Merchants' Hall, 75 and note 

Mercury, Massachusetts, note on 6 

McDuffie, George, 95 and note 

Mills, Elijah H., 7, 10, 87 

Minot, William, note on 35 

Nantucket, 16 

Napoleon, 5, 12, 13, 82 

Nelson, Lord, 12 

Nolle prosequi, 102 

Objections to affidavit of Lyman, 

52 et seq. 
Opening argument, 64 
Orders in Council, 5, 12, 13, 14, 23 
Orne, Henry, 31, 74 and note, 76 
Otis, Harrison Gray, 3 and note, 
7, 9, 31, note on 62, 77, 78, 84, 87, 
106, 108, 113 
Parker, Isaac, 2 and note, 32, 52, 
57, 63, 72, 73, 80, 91, 96, 97, 98 
and note, 99, 100, 101, 102 
Parsons, C. C, 106 
Parsons, Theophilus, 84, 106 
Perkins, T. H., 106 
Pickering, Timothy, 22 and note, 

23, 26, 28, 60, note on 61 
Pickman, Benjamin, 106 
Plumer, William, 24 
Poor debtors, 17 
Pray, Isaac, 31, 45 
Prescott, William, 7, 10 and note, 

78, 106 
Prison Lane, note on 62 
Putnam, John, 67 
QuiNCY, JosiAH, 7, 8 and note, 10, 

31 
Quincy, Josiah, Jr., 31 
Report of trial in newspapers, note 

on 102 
"River Gods," 109 
Rockingham Memorial, 27, 72, 73 
Russell, Benjamin, 7, 10, 31, 74 and 

note, 75, 87 
Sargent, Daniel, 106 



( 117 ) 



Scandalum magnatum, 35 
Sentinel. See Centinel 
Shaw, G. Howland, note on 38 
Shaw, Mrs. G. H. (Miss Lyman), 

106 
Ships, American, 12 
States' Rights, 2, 20, 21, 22, 24, 27, 

28, 29, 73, 90 
Story, Joseph, 22 and note 
Sullivan, William, 106 
Tariff, 13 and note 
Thacher, Peter Oxenbridge, 34 and 

note 
Testimony at trial 

Austin, James T., 75, 76 

Curtis, Charles P., 79 

Dawes, Francis O., 67 

Button, Warren, 77 

Orne, Henry, 74, 76 



Putnam, John, 67 
Russell, Benjamin, 74, 75 
Webster, Daniel, 72, 78 
Williams, Henry, 75 

Thorndike, Israel, 7, 10, 32, 33, 38 

and note, 77, 106 
Trafalgar, 12 
Trumbull, Jonathan, 21 
Virginia, note on 25 
War of 1812, 23, 27, 29, 108 
Washington, George, 81, 93 
Webster, Caroline, 105 

Webster, Daniel, biography, 59, 
60 

Webster, Julia Appleton, 106 
Welles, John, 7, 10 and note, 32 
Whitman, John W., 5 
Williams, Henry, 75 



(i 



RD-94 



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