Have you anything to say in excuse or extenuation for said publication ?
To which the Editor replied as follows:
Mr. President:—Unpracticed in legal forms and dubious in this case—but willing to do everything that is consistent with propriety … I conceive it prudent to advise with men conversant in legal forms … My personal considerations in this case are nothing, but the rights of my country and fellow citizens are everything. I cannot surrender or betray them. I am willing to answer through my counsel …
The Editor was then directed to retire … After debating till four o’clock, the senate resolved … That William Duane … be allowed the assistance of counsel … who may be heard in denial of any facts charged against said Duane or in excuse and extenuation of his offence.
The Senate has allowed me to have counsel but tied my counsel’s hands. It won’t allow my lawyers to use the truth of my publications as a defense (as would be the case under the Sedition Act), and it won’t allow them to challenge the Senate’s claim of judicial authority over an ordinary citizen.
Tonight, in the Gazette of the United States:
D[uane], ‘tis said, your honor, means to leave you
Sure D[uane] could not wish so much to grieve you …
WEDNESDAY, MARCH 26, 1800
GENERAL * AURORA * ADVERTISER
The exterminating Senator asks—“Has the senate infringed the legal and constitutional rights of the Editor of the Aurora,” and he goes on to intimate that the Senate had a right to confine at their discretion in the cells or to levy a fine—To this question, we shall answer that the Senate have no power by the constitution or the law to deprive any man of his liberty or property …
A Federalist on coming out of the Senate on Monday was very solicitous to learn if Duane was committed—“No” replied a wag, “but the Senate are committed.”
The matter at issue in the Senate of the United States concerning the Editor of this paper will be agitated in the Senate this day at 12 o’clock. The Editor, having taken advice of counsel in this case will this morning present that advice to the Senate and govern his conduct rigidly thereby. The opinions of counsel will appear in The Aurora to-morrow.
This morning, I deliver the following letter to the Senate of the United States:
To the President of the Senate.
SIR, … [H]aving received an authenticated copy of [the senate’s] resolutions on Monday last in my case … I transmitted [them] to Messrs. Dallas and Cooper, my intended counsel, soliciting their professional aid … Their answers I have also the pleasure to inclose …
I find myself in consequence of these answers deprived of all professional assistance … I therefore … decline any further voluntary attendance upon that body and leave them to pursue such measures in this case as in their wisdom they may deem meet [suitable] …
WILLIAM DUANE1922
This afternoon, in the Senate of the United States, the Annals of Congress report:
The VICE PRESIDENT communicated a letter signed William Duane … enclosing certain papers said to be a correspondence between him and his intended counsel …
On motion that the papers referred to in the letter be read, it passed in the negative …
The order of the day was called for.
Ordered, That the Sergeant-at-Arms, at the bar of the House, do call William Duane. And the said William Duane did not appear. Whereupon,
Resolved, That as William Duane has not appeared … and has addressed a letter to the President of the Senate … his letter be referred to the Committee of Privileges to consider and report upon.1923
THURSDAY, MARCH 27, 1800
GENERAL * AURORA * ADVERTISER
A meeting was some time ago held in this city of persons principally belonging to this city and State, wherein an opinion was given that the destruction of “the Aurora” or removal of its editor was necessary for the success of the federal party at the presidential election.
This opinion was adopted, and it was determined to employ every means to break down the paper and dismay or ruin the editor. Every step taken hitherto has only tended to thwart the views of that party. But it may not be improper to apprize the public that, among other means, suits at law have been instituted which now amount to no less than NINE! some of them upon facts which the Editor is willing to perish if he does not prove.
Some of those who devised the Sedition Bill looked forward to the present period. It was hoped by that measure the danger of enquiry into the merits of public characters would be so great as to deter any man from discussion. Suits have been instituted in various parts of the union to terrify printers into silence or servility. Juries have been packed to condemn individuals where the truth was not allowed to be proved. But men are still found who dare speak the truth.
The first pretext for this persecution was the publication of a bill which had passed the senate two readings, involving the elective rights of this State. It was soon found that this was not tenable ground. Advantage was then taken of an error which the editor himself discovered and voluntarily rectified. The exposition of certain secret meetings of a party (which was the most important ground because it was provable by the evidence of several members of congress) was next seized upon.
The rest is before the public. We have now but to add the correspondence of the editor with two gentlemen of the bar, to whom he has been compelled to resort for advice.
(copy)
TO A. J. DALLAS, Esq.
SIR, I enclose you a copy of the resolution of the senate passed yesterday, and must request you would favor me by appearing with Mr. [Thomas] Cooper as my counsel to-morrow at twelve o’clock …
WILLIAM DUANE
(Mr. Dallas’s Answer)
SIR, … The Senate, having I understand charged you … proceeded without hearing you or notifying you of the charge … Before, however, any punishment shall be inflicted or any sentence pronounced, the Senate has been pleased to … allow you the assistance of counsel who may be heard in denial of any facts charged against you …
I cannot consent to act as counsel under so limited an authority. For you will at once perceive that it excludes any enquiry into the jurisdiction of the Senate … as well as any justification of the obnoxious publication by proving the truth of the facts which it contains. As to the rest, I cannot suppose that either you or your counsel would find it practicable to deny the existence of any fact which the Senate has already … examined and established.A. J. DALLAS
(Mr. Cooper’s Answer.)
SIR, … I heard sufficient of the debate yesterday (before I saw your letter) that the intent and meaning of the resolution is to preclude all argument on the jurisdiction and all the proof that might be offered in justification …
[T]o appear before a tribunal which, in a new and most important case, has prejudged you … would certainly tend to disgrace your cause and my character.
I cannot think you will be able to procure any professional assistance on such strange and unusual terms …
Where rights are undefined, and power is unlimited—where the freedom of the press is actually attacked, under whatever intention of curbing its licentiousness, the melancholy period cannot be far distant when the citizen will be converted into a SUBJECT. THOMAS COOPER
Today, in the Senate of the United States, the Annals of Congress report:
MR. [JONATHAN] DAYTON [Federalist, New Jersey], from the Committee of Privileges … made report as follows:
Resolved, That William Duane, editor of the General Advertiser, or Aurora, having neglected and refused to appear at the bar of this House at 12 o’clock on the 26th day of March instant … is guilty of contempt of said order and of this House, and that, for said contempt, he, the said William Duane, be taken into custody of the Sergeant-at-Arms attending this House, to be kept subject to the further orders of the Senate.
On Motion to agree to this first resolution reported, it passed in the affirmative—yeas 16, nays 12 …
The Sena
te resumed the third reading of the bill prescribing the mode of deciding disputed elections of President and Vice President … And after debate, the further consideration of this bill was postponed.1924
Tonight, in the Gazette of the United States:
A foreigner by education, if not by birth, acknowledging himself to have remained in the service of a foreign power until expelled from its dominions, attached to our country neither by the ties of patriotism, connection, nor interest, with a character known only by the infamy with which it is blackened, has long been suffered to calumniate the measures of our government, to traduce the individuals of whom it is composed, and to be one of the great engines … to surrender our independence to France. When at last a feeble attempt is made to curb and punish him, he boldly bids defiance to the highest court of judicature in the country … [T]he advice to resist the authority of the Senate is as plainly to be perceived as it is cautiously expressed; the resistance actually takes place, and that body, as though awed by the boldness of such a reptile as Duane, finds it necessary to take time to collect their scattered senses, to reanimate their drooping courage, before they can resolve to enforce their constitutional right.
FRIDAY, MARCH 28, 1800
GENERAL * AURORA * ADVERTISER
Mr. Dayton from the committee of privileges yesterday reported that the Editor should be taken into the custody of the Sergeant at Arms on a warrant to be signed by the President of the Senate; this report was agreed to …
The warrant for his apprehension stated that, for the Editor’s contempt in not obeying the order of the house which required his attendance at the bar last Wednesday, he be taken into custody of the Sergeant at Arms, and then proceeded, “These are therefore to require you James Mathers, Sergeant at Arms to the Senate of the United States, forthwith to take into your custody the body of Wm. Duane and him safely keep until further orders of the Senate; and all MARSHALS, Deputy Marshals, and all other civil officers of the United States, and every other person, are hereby required to be aiding and assisting to you in the execution thereof …”
The great question of the Constitutionality and on the passage of the bill on the Election of the President of the United States comes on THIS DAY IN SENATE.
THE EDITOR requests his friends who may wish to communicate with him to commit to writing what they wish to say under seal, and deliver at the office as usual, and they will be sure to reach him in less than 48 hours.
Today—hard as it may be to believe—I, William Duane, publisher of America’s largest newspaper, am in hiding from the Senate of the United States!
Today, in the United States Senate, the Annals of Congress report:
DISPUTED PRESIDENTIAL ELECTIONS
The Senate resumed consideration of the bill prescribing the mode of deciding disputed elections of President and Vice President of the United States …
Mr. [C.] PINCKNEY [Republican, South Carolina] addressed the chair … When Mr. P. had concluded, the question was taken on the passage of the bill, and it was determined in the affirmative—yeas 16, nays 12 …1925
Tonight, in the Gazette of the United States:
IN THE SENATE … Mr. Mason moved to strike out the latter part of the resolution which commands all Marshals, Constables, &c. to be aiding and assisting the said sergeant at arms in the execution of his duty [to take into custody William Duane].
The question upon this motion was taken by ayes and nays, and negatived—ayes 10—noes 19.
SATURDAY, MARCH 29, 1800
GENERAL * AURORA * ADVERTISER
[T]he period approaches when the people will have to chuse between the destruction of their liberties as a nation and the rejection of all those from public stations who have been aiding or abetting in those measures which have brought the nation and constitution into their present jeopardy …
Let the people compare the conduct of Mr. Adams … [L]et them examine the … addresses and answers during the season of terror in 1798 … These are serious considerations … [T]he people must act upon them at the approaching election or prepare themselves for the calm of despotism …
My countrymen! if you have not virtue enough to stem the torrent, determine to be slaves at once … Let not the persecution of an individual dismay you—better the Editor of the Aurora should perish than this tyranny should be established—William Duane will never desert the liberties of his country—Let the people all declare they will stand by the constitution or perish with it, “and the osiers will tremble at the breath of their creator !”
Tonight, in the Gazette of the United States:
It was an error fatal to themselves … when the French, in their revolution, determined to imitate the republic of Rome rather than the British constitution … If they had followed Montesquieu [with his checks and balances] rather than Tom Paine, how glorious, instead of disreputable, would have been the result! … How did this country improve its condition and its fame, when under the auspices of George Washington and other leading men, the people formed a constitution similar to that of England … If the federal constitution had not been adopted, the Sabbath might have been abolished, and the guillotine erected in all its horrors.
It is disgraceful to mankind that such a man as Tom Paine, an ignoramus, a drunkard, and a blasphemer, should have had so much influence among them … The restoration of the white cockade in France, the emblem of lawful authority, would still the waves of anarchy … The restoration of the king, with limited powers, in France might be highly beneficial to the United States of America as well as to other countries.
[M]en will wonder that Paine’s pamphlets were ever read, and that the pitiful proverbs of Franklin were ever popular.
The Letters of Messrs. Cooper and Dallas [concerning Duane] … were not … read in Senate; being too indecent, it was voted that they should not be read.
SUNDAY, MARCH 30, 1800
Today, Virginia Congressman John Dawson writes James Madison:
You have seen the proceedings in the case of Duane & altho you & all persons in the U.S. (including no doubt, army & navy) are called on to assist in apprehending him, he is not yet taken …1926
TUESDAY, APRIL 1, 1800
GENERAL * AURORA * ADVERTISER
Many citizens appear surprised that Mr. Jefferson should affix his name to the extraordinary warrant issued by the majority of the Senate against the Editor of this paper. But these people do not recollect that the Constitution declares the [Senate] President shall have no vote in any case unless the Senate is equally divided. The famous Committee of Privileges reported that he ought to sign it, and a majority decided in favour of the report. The Vice President could therefore have no choice left but to sign their act, leaving upon its authors the responsibility and the odium of the act for which Mr. Jefferson is no more accountable than for the Sedition Law, or Mr. Ross’s law for regulating elections &c., a measure expressly designed to prevent Mr. Jefferson being elected President …
Tonight, in the Gazette of the United States:
HOUSE OF REPRESENTATIVES. Monday, March 31. The bill sent from the Senate this morning, prescribing the mode of deciding disputed elections of President and Vice President was read a first time, and upon the question shall the bill have a second reading, it was carried, ayes 53 …
WEDNESDAY, APRIL 2, 1800
GENERAL * AURORA * ADVERTISER
By oppressive acts towards the Editor of this paper, the authors and supporters of certain measures obtain one end at least—they defeat that activity and industry with which he personally watched over daring and dangerous measures. It was of some importance to those folks that no report could be given of several of their recent debates …
The Bill for deciding disputed elections of President, which passed the Senate on Friday, 16 to 12, demands public regard; it … goes to create a new branch in the government which can put whom they please at the head of our government. By our absence from the Senate Gallery, we are not able to report the debates …
Today, Virginia’s Senator Stevens Thomson Mason writes James Madison:
You will have seen the high handed proceedings of the Senate ag[ains]t Duane. He is not yet taken & I believe those who ordered him to be arrested wish he may not …1927
THURSDAY, APRIL 3, 1800
GENERAL * AURORA * ADVERTISER
To URIAH TRACEY, Senator in Congress for the State of Connecticut, SIR, I have read with singular satisfaction your speech of the 5th [of March] … on the free presses of free America … [I]t would seem that, according to the Connecticut scale of morality, falsehood and abuse issuing from the English press of [Porcupine,] an Englishman in Philadelphia, is meritorious, whilst truth from the American press established by the Grand Children of Dr. Franklin and continued by a native American is detestable.REPUBLICAN
FRIDAY, APRIL 4, 1800
GENERAL * AURORA * ADVERTISER
The new electoral council or college of Mr. Ross’s invention, by being left at liberty to act without rule and in secret, may be very fitly compared with the secret council of Ten at Venice of old.
Today, from Philadelphia, Thomas Jefferson writes James Madison:
The Senate … have this day rejected a bill … for removing military troops from the place of election on the day of an election. You will have seen their warrant to commit Duane. They have not yet taken him …1928
Today, the United States Circuit Court for New York finds that William Durell of the upstate New York Mount Pleasant Register published a “false, scandalous, malicious and defamatory Libel of and concerning John Adams.” The court will sentence Durell to serve four months in jail, to pay a $50 fine, and, upon release, to post a $2,000 security. The Mount Pleasant Register has ceased operation.1929
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