Chapter L: TREZEVANT and W. TIMMONS, Esqs (6)

The constitution gives to Congress no power over aliens, except that of naturalization. The power, therefore, remains with the States to give to aliens the rights of denizens. That power has not been exercised by that name; but it has, in fact, been carried into effect. Not only in some States have aliens been enabled to purchase, to hold, to inherit, and to leave by will, real estate--a right which principally constitutes a denizen--but many have actually been admitted in some States, either by special acts of the Legislature, or in conformity to former general laws, to all the rights of citizens of those States, so far as it was in the power of individual States to do it; that is to say, that they have received every right, but such as arise from naturalization--every right of denizens. On the other hand, the laws of the Union have invited emigration, by holding out the prospect of being naturalized at the end of a period which, till nearly the time when the alien law passed, never exceeded five years. Under these laws, emigrants have, by a formal declaration before our courts, given evidence of their intention of becoming citizens and of renouncing their former allegiance--a declaration almost tantamount to an actual renunciation. They have abandoned their native countries for ever; many of them have acquired lands, and married in America; most of them have here the whole of their property, or their only means of subsistence. Under all these circumstances, it may be doubtful whether a great proportion of these aliens are not entitled to the rights of denizens; and if they are not so, by a strict construction of positive laws, at least, it can hardly be denied that the provisions of the law violate, in this respect, the dictates of humanity and justice.

The policy of this measure seems to be defended by the select committee on the same ground which is to be a pretence and a justification for every act of domestic oppression, for every encroachment of power, for every new tax, for every extravagant loan, for every prodigal act of expenditure, for every increase of the navy, for every standing army which may be raised under the various names of permanent army, additional army, provisional army, eventual army, or _well-affected_ volunteers. The alien and sedition acts form, in the opinion of the committee, an essential part of our general system of defence against France. I do not mean to follow them, whilst they use, instead of arguments, the mere cant of the day. They cannot be serious when they tell us of the employment of the active talents of a numerous body of French citizens here as emissaries and spies. And if they are, does that committee mean to impose upon this House, as upon the people of some parts of the Union? Do we not know that, if there be any danger from France, the act respecting alien enemies is applicable to her citizens, and that the law now complained of respects alien friends, and was originally intended to operate, not against subjects of France, but against _Irish_ emigrants and other subjects of Great Britain? Do we not know that, notwithstanding all the clamor of last summer, and notwithstanding the two laws passed on that subject, not a single French citizen has been removed?

Still less can I suppose that the committee were in earnest when they pretended to believe that the United States offered as easy and alluring a conquest to France as Egypt. They seem to have forgotten that Egypt was governed and defended by Mamelukes and inhabited by slaves; that the United States are _as yet_ inhabited and defended by the people themselves. But if the committee thought that the fear of an invasion did justify those laws, when passed, will they pretend to say that the danger, even in their opinion, now exists, and that the same necessity now justifies the continuance of the laws?

It is not only against invasion that those laws are said to be necessary. We are told of a system which convulses the civilized world, and has shaken the fabric of society; of an unprecedented combination to establish new principles of social action, on the subversion of religion, morality, law, and Government. If these are the dangers which threaten us, and if Congress think themselves vested with all the powers which they may think expedient to repel them, I wish to know to what extent they may not legislate, and by what possible limitation they can be restrained, in their assumption of powers? There is not an individual on this floor, there is not a man of common understanding and common information in the nation, who, unless he is under the influence of the illusions of the new anti-republican fanaticism, or blinded by party spirit, does not know that these pretended dangers are, in America, the visionary phantoms of a disordered imagination. And I have taken notice of those sentiments merely to give an additional proof, that under pretence of preventing imaginary evils, an attempt is made to establish the omnipotence of Congress, and substantial despotism, on the ruins of our constitution.

Is that a measure of security and general defence which puts a numerous body of aliens--aliens who are represented as so desperate and dangerous--under the absolute control of one man, which, by holding the rod of terror over their heads, and leaving their fate at his sole disposal, renders them complete slaves of the PRESIDENT, and makes them proper instruments for the execution of every project which ambition may suggest, which faction may dictate? Is that a Government of laws which leaves us no security but in the confidence we have in the moderation and patriotism of one man? And do the abettors of these laws forget that even that is precarious, and that the unlimited power which they think safely lodged in one individual may in a day be vested in another man in whom they do not place the same confidence?

Is that a measure of general defence which has diminished confidence in the Government and produced disunion among the States and among the people?

Yet I am happy to find that even this law has produced such general dissatisfaction. I was the more alarmed on account of this law, because, attacking only aliens, for whom no immediate concern could be felt, it might the more easily become the vehicle to introduce doctrines and innovations which would hereafter serve as a precedent to attack the liberties of the citizens themselves. A pretence of general defence may justify oppressive measures against citizens as well as against aliens. Although some nice distinctions may now be made in order to discriminate one class from the other, yet it must be remembered that the only security of citizens against unconstitutional measures consists in a strict adherence to the constitution; that their liberties are only protected by a _parchment_--by _words_--and that they may be destroyed whenever it shall be admitted that the strict and common sense of words may be construed away under the plea of some supposed necessity; whenever the constitution shall be understood and exercised as an instrument unlimited where it grants power, and nugatory where it limits power.

We may feel alarmed when we see a committee of this House asserting that the powers not given to the States (and it may be added, by the same rule of construction, the powers not given to the people by the constitution) belong to the General Government. We may feel alarmed when that committee insist that, although it is true that the trial of all crimes must be by jury, yet, to inflict a punishment when no offence--no crime--has been committed, is not a violation of the constitution; when the only distinction they apply to citizens consists in the difference of punishment, but not in a difference of the principle. We may feel alarmed when we find that Congress have already acted on those principles towards citizens; that they have already passed another law--the sedition law--grounded on the same principles, on the same doctrine, or rather on the same abandonment of the explicit and evident sense of the constitution, which alone could justify the alien law. I hope--I trust--that the spirit which dictated both laws has subsided, even within these walls, and that the same Congress who, under the impressions of a momentary alarm, which prevented a cool investigation, hastily adopted those two measures, will have courage enough to revise their own conduct, to acknowledge their own errors, and, by a repeal of the obnoxious acts, restore general confidence, union, and harmony, amongst the States and the people.

When Mr. GALLATIN had concluded, the question was taken and carried--yeas 52, nays 48.

The 2d resolution being next in order, viz:

_Resolved_, That it is inexpedient to repeal the act passed
the last session, entitled "An act in addition to the act,
entitled An act for the punishment of certain crimes
against the United States:"

Mr. NICHOLAS rose and spoke as follows:

Mr. Chairman--I am sorry to be obliged to rise at this late hour of the day, indisposed also as I find myself, to speak on this important question; but, since gentlemen are determined now to decide upon it, I must be indulged in making some observations upon it, previous to the question being taken.

The select committee had very truly stated, that only the second and third sections of the act, in addition to the act for the punishment of certain crimes against the United States, are complained of--that the part of the law which punishes seditious acts is acquiesced in, and that the part that goes to restrain what are called seditious writings, is alone the object of the petitions.

This part of the law is complained of as being unwarranted by the constitution, and destructive of the first principles of Republican Government. It is always justifiable, in examining the principle of a law, to inquire what other laws can be passed with equal reason, and to impute to it all the mischiefs for which it may be used as a precedent. In this case, little inquiry is left for us to make, the arguments in favor of the law carrying us immediately, and by inevitable consequence, to absolute power over the press. The case chosen for our first legislation, that of "false, scandalous, and malicious writings," is specious, and as likely as any can be to establish an interest in its favor; but when it is fairly examined, it will be found to operate on cases, which could not, at first view, be expected to come under it; to be the instrument of most unjust oppression, and to restrain that free communication of honest opinion which is the soul of the Government. But when you come to inquire further, and learn, from the advocates of the law, the authority which they claim for passing it, you will find that the power claimed does not stop even with this law, mischievous as it may be, but that it extends to absolute and unlimited control.

It is not pretended that the constitution has given any _express_ authority which they claim for passing this law, and it is claimed only as implied in that clause of the constitution which says, "Congress shall have power to make all laws which shall be _necessary and proper_ for carrying into execution the foregoing powers, and all other powers vested by this constitution in the Government of the United States, or in any department or office thereof." It is, therefore, necessary to fix a just construction of this clause.

That the powers of the Federal Government were intended to be limited, is universally admitted, in the abstract; is proved by every clause of the constitution, and is positively declared by the 12th amendment in these words: "The powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

The just construction of the constitution, if the clause respecting necessary and proper powers had been omitted, would have been the same that it ought to be with the addition; for there can be no doubt, that a grant of specified powers would have contained a grant of such power as is necessary to carry the specified power into effect, and therefore the declaration ought to make no difference, according to a well-known maxim. This was the understanding of all the friends of the constitution at its adoption, and the constitution ought now to be construed as if the clause had been omitted. But it is proper to examine the meaning of it, as expressed.

It is clear, that this clause was intended to be merely an auxiliary to the powers specially enumerated in the constitution; and it must, therefore, be so construed as to aid them, and at the same time to leave the boundaries between the General Government and the State Governments untouched. The argument by which the select committee have endeavored to establish the authority of Congress over the press, is the following: "Congress have power to punish seditious combinations to resist the laws, and therefore Congress must have the power to punish false, scandalous and malicious writings; because such writings render the Administration odious and contemptible among the people, and, by doing so, have a tendency to produce opposition to the laws."

It is expressly admitted by the committee, that the power to punish seditious combinations to resist the laws, is only derived, by construction, from the clause giving all necessary and proper powers before recited; and that there is no express power in the constitution to that effect. There is no dispute about this construction being just; but I contend that the inference from this implied power cannot be supported, viz: That Congress have a power to punish seditious writings.

The constitution says: "Congress shall have power over all acts which hinder the execution," &c.; but, to make it support the construction of the committee, it should say that, "Congress shall have power over all acts which are likely to produce acts which hinder the execution," &c. Our construction confines the power of Congress to such acts as immediately interfere with the execution of the enumerated powers of Congress; because the power can only be necessary as well as proper, when the acts really would hinder the execution. The construction of the committee extends the power of Congress to all acts which have a relation, ever so many degrees removed, to the enumerated powers, or rather to the acts which would hinder their execution. By our construction, the constitution remains defined and limited, according to the plain intent and meaning of the framers; by the construction of the committee, all limitation is lost, and it may be extended over the different actions of life as speculative politicians may think fit.

The suggestion on which the authority over the press is founded, is, that seditious writings have a tendency to produce opposition to Government. What has a greater tendency to fit men for insurrection and resistance to Government, than dissolute, immoral habits, at once destroying love of order, and dissipating the fortune which gives an interest in society?

The doctrine that Congress can punish any act which has a tendency to hinder the execution of the laws, as well as acts which do hinder it, will, therefore, clearly entitle them to assume a general guardianship over the morals of the people of the United States.

Again: nothing can have a greater tendency to ensure obedience to law, and nothing can be more likely to check every propensity to resistance to Government, than virtuous and wise education; therefore Congress must have power to subject all the youth of the United States to a certain system of education. It would be very easy to connect every sort of authority used by any government with the well-being of the General Government, and with as much reason as the committee had for their opinion to assign the power to Congress, although the consequence must be the prostration of the State Governments.

But enough has been said to show the necessity of adhering to the common meaning of the word "necessary," in the clause under consideration, which is, that the power to be assumed must be one without which some one of the enumerated powers cannot exist or be maintained. It cannot escape notice, however, that the doctrine contended for, that the Administration must be protected against writings which are likely to bring it into contempt, as tending to opposition, will apply with more force to truth than falsehood. It cannot be denied that the discovery of maladministration will bring more lasting discredit on the government of a country, than the same charges would if untrue.

This is not an alarm founded merely on construction; for the governments which have exercised control over the press, have carried it the whole length. This is notoriously the law of England, from whence this system has been drawn; for there, truth and falsehood are alike subject to punishment, if the publication brings contempt on the officers of government.

I have shown, as I promised, that the authority on which this act is supported, gives unlimited power over the press, as to its investigation of public affairs, which is its most important function; and I will now endeavor to show, that the effect of the present law is very little short of the complete restraint of all useful discussion on public men and measures.

The law has been current by the fair pretence of punishing nothing but falsehood, and by holding out to the accused the liberty of proving the truth of the writing; but, it was from the first apprehended, and it seems now to have been adjudged, (the doctrine has certainly been asserted on this floor,) that matters of opinion, arising on notorious facts, come under the law. If this is the case, where is the advantage of the law requiring that the writing should be false, before a man shall be liable to punishment, or of his having the liberty of proving the truth of his writing? Of the truth of facts there is an almost certain test; the belief of honest men is certain enough to entitle it to great confidence; but their opinions have no certainty at all. The trial of the truth of opinions, in the best state of society, would be altogether precarious; and, perhaps, a jury of twelve men could never be found to agree in any one opinion. At the present moment, when, unfortunately, opinion is almost entirely governed by prejudice and passion, it may be more decided, but nobody will say it is more respectable; chance must determine whether political opinions are true or false, and it will not unfrequently happen, that a man will be punished for publishing opinions which are sincerely his, and which are of a nature to be extremely interesting to the public, merely because accident, or design, has collected a jury of different sentiments.

If the effect of the present law is to restrain the free communication of opinion, and its principle will justify any control Government chooses to exercise over the press, an inquiry may safely be entered on, whether Congress ought to possess the power, even if the clause giving necessary and proper power would extend to such remote cases? It is the more necessary to inquire into the usefulness of this power in the hands of Congress, since the opinion is becoming current, that that alone will give Congress a right to assume it, upon the principle that Government must have a right to do every thing proper for its safety. This doctrine may be very fallacious, if not taken in the restricted sense to be found in the clause giving necessary powers. No government can assume a power not delegated, on pretence of its being necessary; for none have a right to judge of what is necessary but the makers of the constitution, otherwise all governments would be competent to make every alteration in a constitution they might think proper, and the constitution would rank with the laws, and not above them. For the execution of powers expressly given, there must have been some latitude allowed to those who were to execute them, the same in fact which is expressed in the clause respecting necessary powers.

Is the power claimed proper for Congress to possess? It is believed not, and will readily be admitted, if it can be proved, as I think it can, that the persons who administer the Government have an interest in the power to be confided, opposed to that of the community. It must be agreed that the nature of our Government makes a diffusion of knowledge of public affairs necessary and proper, and that the people have no mode of obtaining it but through the press. The necessity for their having this information, results from its being their duty to elect all the parts of the Government, and, in this way, to sit in judgment over the conduct of those who have been heretofore employed. The most important and necessary information for the people to receive is, of the misconduct of the Government; because their good deeds, although they will produce affection and gratitude to public officers, will only confirm the existing confidence, and will, therefore, make no change in the conduct of the people. The question, then, whether the Government ought to have control over the persons who alone can give information throughout a country, is nothing more than this, whether men interested in suppressing information necessary for the people to have, ought to be intrusted with the power, or whether they ought to have a power which their personal interest leads to the abuse of? I am sure no candid man will hesitate about the answer; and it may also safely be left with ingenuous men to say whether the misconduct which we sometimes see in the press, had not better be borne with, than to run the risk of confiding the power of correction to men who will be constantly urged by their own feelings to destroy its usefulness.

The mode of thinking which countenances this law, and the doctrines on which it is built, are derived from a country whose government is so different from ours, that the situation of public officers ought to be very different. In Great Britain, the King is hereditary, and, according to the theory of their government, can do no wrong. Public officers are his representatives, and derive some portion of his inviolability from theory, but more from the practice of the government, which has, for the most part, been very arbitrary. It was, therefore, of course, that they should receive a different sort of respect from that which is proper in our Government, where the officers of government are the servants of the people, are amenable to them, and liable to be turned out of office at periodical elections. In Great Britain, writings are seditious, though they are true, if they tend to bring a public officer into contempt.

In this country, it is seen that the same principle is contended for, and that in practice, with respect to matters of opinion, we have gone the whole length of the principle. How long can we expect to maintain the other distinctive qualities of the magistracy of the two countries, when this sameness is established? How long can it be desirable to have periodical elections, for the purpose of judging of the conduct of our rulers, when the channels of information may be choked at their will?

But, sir, I have ever believed this question as settled by an amendment to the constitution, proposed with others, for declaring and restricting its powers, as the preamble declares, at the request of several of the States, made at the adoption of the constitution, in order to prevent their misconstruction and abuse. This amendment is in the following words: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press, or the right of the people peaceably to assemble and petition the Government for a redress of grievances." There can be no doubt about the effect of this amendment, unless the "freedom of the press" means something very different from what it seems; or unless there was some actual restraint upon it, under the Constitution of the United States, at the time of the adoption of this amendment, commensurate with that imposed by this law. Both are asserted, viz: that the "freedom of the press" has a defined, limited meaning, and that the restraints of the common law were in force under the United States, and are greater than those of the act of Congress; and that, therefore, either way the "freedom of the press" is not abridged.

It is asserted by the select committee, and by every body who has gone before them in this discussion, that the "freedom of the press," according to the universally received acceptation of the expression, means only an exemption from all previous restraints on publication, but not to an exemption from any punishment Government pleases to inflict for what is published. This definition does not at all distinguish between publications of different sorts, but leaves all to the regulation of the law, only forbidding Government to interfere until the publication is really made. The definition, if true, so reduces the effect of the amendment, that the power of Congress is left unlimited over the productions of the press, and they are merely deprived of one mode of restraint.

The amendment was certainly intended to produce some limitation to legislative discretion, and it must be construed so as to produce such an effect, if it is possible. This is required in the construction of all solemn acts, but must be more particularly due to this on account of the various examinations it underwent, previous to its adoption. It was first recommended by the conventions of several States, was adopted by two-thirds of both Houses of Congress, and finally ratified by three-fourths of the State Legislatures. To give it such a construction as will bring it to a mere nullity, would violate the strongest injunctions of common sense and decorum; and yet that appears to me to be the effect of the construction adopted by the committee. If subsequent punishments are sufficient to deter printers from publishing any thing which is prohibited, there is no stint to the power of Congress; and yet, it appears to me that a limitation was clearly intended. I cannot doubt the power of Government to bend printers to their will by subsequent punishments, when all other offences are restrained only in this way. Government does not punish men for keeping instruments with which they can commit murder, but contents itself with punishing murder when committed. The effect of the amendment, says the committee, is to prevent Government taking the press from its owner; but how is their power lessened by this, when they may take the printer from his press and imprison him for any length of time, for publishing what they choose to prohibit, although it may be ever so proper for public information? The result is, that Government may forbid any species of writing, true as well as false, to be published; may inflict the heaviest punishments they can devise for disobedience; and yet we are very gravely assured that this is "the freedom of the press."

But it is worth while to trace this definition to the place from whence it is taken, and inquire into the circumstances in which it is used. Blackstone, in his Commentaries on the Laws of England, after stating the law respecting libels, which is, that every thing which brings a magistrate into contempt is punishable, whether true or false, goes on to say, that this law is not inconsistent with the liberty of the press; and then gives a definition of the liberty of the press in the manner it is used by the committee. The meaning of all Blackstone has said is this, that the press has the proper degree of liberty in England, and that libels, whether true or false, ought to be punished there. Let us apply what he has called a definition, in the way he used it, to the legislation of the United States. Suppose the present question was, whether we should punish truth, as well as falsehood, in libels, would gentlemen venture to tell us that it was consistent with the freedom of the press, or that the degree of freedom proper for the United States would remain? I venture to say they would not. Ought they, then, to support the doctrine which hereafter may be practised on to the full extent? Is there not reason to believe gentlemen hope to conceal the full extent of their principles, by bringing them into operation only by degrees? But, sir, it is a manifest abuse of Blackstone's authority to apply it as it has been here applied. He had advanced into the fourth volume of a panegyric on the laws of England, and after stating the law on this subject, makes a theory to justify the actual state of the law. It must be remarked, in his justification, that the nature of their government justifies more rigor than is consistent with ours, and that the existing law, of which he was writing the praise, had been greatly softened in practice, by public opinion. In this case, there was no danger of impairing the security to liberty, intended by the constitution; for England has no constitution but what may be altered by the Parliament, and therefore no great precision was necessary with respect to general principles. Indeed, his observations on this subject ought to be called a theory, and a theory adapted merely to his own country, and not a definition. Very different are the circumstances in which his doctrine has been applied here. A restrictive clause of the Constitution of the United States, by its application, is made to mean nothing, and when it is clearly the intention of the constitution to put, at least, some acts of the press out of the control of Congress, by the authority of this writer, all are subjected to their power.

But it is said, that the States have all adopted the same construction which is given to freedom of the press by the committee, for that all the State constitutions provide for it, and yet the law of libels remains part of their codes. If this is fact, about which however I am uninformed, it is easily to be accounted for. At the Revolution, the State laws were either the law of England, or were built on it, and, of course, they would contain the monarchical doctrine respecting libels. When the State constitutions were formed, the old law was continued in force indiscriminately, and only a general exception made of what should be found inconsistent with the State constitutions. Now, to prove that the States have considered the law of libels consistent with the freedom of the press, gentlemen should show that this law has been practised on since the Revolution, and that the attention of the States had been called to it by its execution, and that it still remains in force. I believe this cannot be done. So far as I know, it has been a dead letter. I mean the law of libels against magistrates, and if so, the argument is reversed, and is wholly on my side. The terms of this law furnish one of the best proofs of the truth of my opinion; for the framers of it, wound up as they have been, in their notions about Government, since the adoption of the State Governments, endeavored to take a middle course between real liberty and the State law, which is supposed to continue in force, and have studiously endeavored to conceal that their doctrine leads to the same thing by constantly pretending that their law is to punish only falsehood. This is a plain admission, that even now, public opinion would not support what they pretend is the law of each State. But from the argument before urged, I think it must be admitted, that if the States had so understood it, the construction could not be extended to this amendment. No solemn instrument can be construed so as to destroy it. I have seen somewhere, and I beg leave here to remark on it, the authority of the Convention who formed the constitution of Virginia, quoted to justify this construction. That Convention is said to have passed a law similar to the law of Congress, after having provided for the liberty of the press in their bill of rights. Let us examine that law. The first section is to punish those who shall "by any word, open deed, or act, advisedly and willingly maintain or defend the authority, jurisdiction, or power of the King, or Parliament of Great Britain, heretofore claimed over this Colony, or shall attribute any such authority," &c. This section, passed at the beginning of the most awful contest in which ever man was engaged, a contest for the right of self-government against one of the most powerful nations in the world, was to establish what? Not the inviolability of the Governor of the State, nor of the majority of either House of the Legislature, but to punish men who should promote resistance to the right of the people to govern themselves, to the principle of the constitution, to the republican principle. So different is this from the object of the law of Congress, that it would have been impossible to believe that they should have been compared, if we had not seen it done. All argument must be thrown away on gentlemen who do not feel the difference between the respect due to the constitution, to the right of self-government in the people, and that which is due to the organs of administration, who cannot only deserve contempt, but who are to be removed with disgrace, according to the constitution itself, when they misbehave. By the second section of this law, those were to be punished "who should maliciously and advisedly endeavor to excite the people to resist the Government of the colony, or persuade them to return to a dependence on the Crown of Great Britain, or maliciously and advisedly to excite or raise tumults and disorders in the State, or maliciously and advisedly terrify and discourage the people from enlisting in the service of the Commonwealth, or dispose them to favor the enemy." The design of this section is apparently the same with the former. Every act of ill-will to the existing Government, is immediately followed by one tending to submission to Great Britain. These acts are, however, out of the question, for they belong to the class enumerated in the first section of the sedition law, which nobody wishes to repeal, as the committee declare. But if the law had any analogy to the law of Congress, it would be improper to quote it; for it is well known that our Revolution made a resort to expedients necessary in a variety of instances, which could not be justified by principle, and that for a time personal rights were compelled to bend before public necessity.

A distinction is very frequently relied on, between the freedom and the licentiousness of the press, which it is proper to examine. This seems to me to refute every other argument which is used on this subject; it amounts to an admission that there are some acts of the press which Congress ought not to have power to restrain, and that by the amendment they are prohibited to restrain these acts. Now, to justify any act of Congress, they ought to show the boundary between what is prohibited and what is permitted, and that the act is not within the prohibited class. The constitution has fixed no such boundary, therefore they can pretend to no power over the press, without claiming the right of defining what is freedom, and what is licentiousness, and that would be to claim a right which would defeat the constitution; for every Congress would have the same right, and the freedom of the press would fluctuate according to the will of the Legislature. This is, therefore, only a new mode of claiming absolute power over the press.

But it is said, that the phraseology of the amendment proves that the framers of it considered the freedom of the press as limited, otherwise they would have used the same words in speaking of the freedom of the press which they use in speaking of religious establishments. This argument is certainly fanciful; but it shall be considered, as it is my design to leave no argument, which I recollect to have seen, unanswered. It is plain the writer of the amendment intended to indulge his copiousness of expression, or that he had been accustomed to use certain words in a particular connection. The amendment says, in speaking of religion, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The change of expression, according to the argument, ought to have some new object; and yet there can be no doubt that if the word _prohibiting_ was dropped, the provision would be the same. But the argument will lose all force when the amendment is read to the end, and it seems to have arisen merely from the committee having stopped in the middle of it, and lost sight of the latter part. It says, "or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and petition the Government for a redress of grievances." The argument is that the word _abridging_, as it is distinguished from _respecting_, implies that the freedom of the press was before limited; but, if this is true, it must also be the case with the right of peaceably assembling and petitioning, &c. Is this pretended, and may we hereafter expect to have a definition of the right of petitioning, which will put it also under the control of Congress?

I think I have answered every construction of the amendment which can prevent its being completely prohibitory of all legislation by Congress on the subject of the press, unless there was some existing restraint under the Constitution of the United States, at the time of adopting the amendment. To this inquiry I now proceed.

It is said, there is a common law which makes part of the law of the United States, which restrained the press more than the act of Congress has done, and that therefore there is no _abridgment_ of its freedom. What this common law is I cannot conceive, nor have I seen any body who could explain himself when he was talking of it. It certainly is not a common law of the United States, acquired as that of England was, by immemorial usage. The standing of the Government makes this impossible. It cannot be a code of laws adopted because they were universally in use in the States, for the States had no uniform code; and if they had, it could hardly become, by implication, part of the code of a Government of limited powers, from which every thing is expressly retained, which is not given. There never was a uniform code of laws at any time among the States. Their settlement took place at different times, and the law of England was adopted up to the respective settlements, in the whole or by selection. Virginia recognized the common law, properly so called, and the statutes to the 4th James I.; Maryland, the common law, and statutes up to the time of her settlement; and South Carolina, I am told, never acknowledged any of the English statutes to be in force, except what were specially adopted by law. With this dissimilarity at the commencement, there can be no doubt that the decisions of courts, and the statutes which were constantly passing, must have made the codes of the several States altogether unlike at the time of adopting the Federal Government. Is it the law of England, at any particular period, which is adopted? It cannot be believed that this was a universal favorite; for it had been greatly altered in every State, to adapt it to their situation, and it cannot be believed that after altering it under the instruction of experience, it was intended to bring it again into force. But the nature of the law of England makes it impossible that it should have been adopted in the lump into such a Government as this is; because it was a complete system for the management of all the affairs of a country. It regulated estate, punished all crimes, and, in short, went to all things for which laws are necessary. It might be more properly considered as the measure of the powers left with the States. But how was this law adopted? Was it by the constitution? If so, it is immutable and incapable of amendment. In what part of the constitution is it declared to be adopted? Was it adopted by the courts? From whence do they derive their authority? The constitution, in the clause first cited, relies on Congress to pass all laws necessary to enable the courts to carry their powers into execution; it cannot, therefore, have been intended to give them a power not necessary to their declared powers. There does not seem to me the smallest pretext for so monstrous an assumption; on the contrary, while the constitution is silent about it, every fair inference is against it. It was thought necessary to adopt expressly many of the ancient and most valuable principles of the law of England, such as trial by jury, and the writ of _habeas corpus_; and wherever the constitution gives cognizance of crimes, which were known in the law, it requires Congress to define them, and direct the punishment, except in the case of treason, which it defines itself. Perhaps it may be said, that the law of England with respect to libel was in force in all the States, and that therefore it is to be considered as adopted. When we recollect what that law is, that it punishes truth as well as falsehood, and that the Congress of 1798 did not think proper to enact its provisions in the full extent, it may be fairly denied that it could have accorded with the jealous republican temper of the Convention who adopted the constitution. If the common law was adopted on this subject, it was adopted entire as it then existed, and must remain for ever unchangeable as part of the constitution. The power of juries must be the same that it was then, and no more, and the improvement which was immediately afterwards produced by public opinion in that respect, in England, will be denied to us, and we may even have to regret the want of some of the provisions of the present odious law; but there is too little reason for the suggestion of there being a common law in the United States, to need a refutation. If there was a uniformity in the law respecting libels, it is one of the strongest evidences of what was before said, that this whole doctrine of libels was obsolete; for nobody can doubt, after hearing what it is, that it must have undergone considerable changes, if it had ever been practised on.

The committee seem to suppose, for I confess it is very difficult to comprehend this part of their argument, that the law of libels is adopted by that part of the constitution which extends the judicial power to cases of law and equity arising under the constitution; for this is the expression of the part referred to by them, and not "offences arising under the constitution," as they have quoted it. How this can be inferred, I cannot conceive. If the expression was "offences," as they assert, still it would mean offences on which Congress was directed by the constitution to legislate; but, as the expression really is, the cases are innumerable which come within it. See "The Federalist," vol. II., for an explanation of this part of the constitution. It is there said: "It has been asked, what is meant by cases arising under the constitution, in contradistinction from those arising under the laws of the United States? All the restrictions on the authority of the State Legislature furnish examples of it," &c. For the opinion of the same writer, as to the force of the common law in the United States, see same volume, page 345, and the two following pages, in which he answers the objection to an omission of its provisions, and admits that it is not adopted by the constitution.

Upon the whole, therefore, I am fully satisfied, that no power is given by the constitution to control the press, and that such laws are expressly prohibited by the amendment. I think it inconsistent with the nature of our Government, that its administration should have power to restrain animadversions on public measures; and for protection from private injury from defamation, the States are fully competent. It is to them that our officers must look for protection of persons, estates, and every other personal right; and, therefore, I see no reason why it is not proper to rely upon it, for defence against private libels.

The call for the question being loud,

Mr. MCDOWELL rose, and hoped the question would not now be taken, but that the committee would rise, it being now a late hour of the day, and he doubted not other gentlemen would wish to deliver their sentiments upon this important question; and he thought an hour or two of to-morrow might be well employed in the discussion of this subject--a subject which had been brought before the House by the people, and ought, therefore, to receive a full discussion. He moved the committee to rise.

The question on rising, was put and negatived--55 to 42.

The question was then taken on the resolution, and carried, 52 votes being in favor of it.

The question was then taken upon the third resolution, which was carried without a division.

The committee then rose, and the question being upon concurring in the agreement of the committee for the first resolution,

Mr. LIVINGSTON entered upon a defence of the sentiments which he delivered when the passage of this law was under consideration, which, he said, had been much misrepresented; but, after making some progress in his observations, the Speaker declaring them unconnected with the question before the House, he sat down, and the first resolution was decided by yeas and nays, and stood--52 to 48, as follows:

YEAS.--John Allen, George Baer, jr., Bailey Bartlett, James
A. Bayard, Jonathan Brace, David Brooks, Stephen Bullock,
Christopher G. Champlin, John Chapman, James Cochran,
William Craik, Samuel W. Dana, John Dennis, William Edmond,
Thomas Evans, Abiel Foster, Dwight Foster, Jonathan
Freeman, Henry Glenn, Chauncey Goodrich, William Gordon,
Roger Griswold, William Barry Grove, Robert Goodloe Harper,
Thomas Hartley, William Hindman, Hezekiah L. Hosmer, James
H. Imlay, Samuel Lyman, James Machir, William Matthews,
Daniel Morgan, Lewis R. Morris, Harrison G. Otis, Isaac
Parker, Thomas Pinckney, John Read, John Rutledge, jr.,
James Schureman, Samuel Sewall, William Shepard, Thomas
Sinnickson, Nathaniel Smith, Peleg Sprague, George
Thatcher, Richard Thomas, Mark Thompson, Thomas
Tillinghast, John E. Van Allen, Peleg Wadsworth, Robert
Waln, and John Williams.

NAYS.--Abraham Baldwin, David Bard, Thomas Blount, Richard
Brent, Robert Brown, Samuel J. Cabell, Thomas Claiborne,
William Charles Cole Claiborne, Matthew Clay, John Clopton,
Thos. T. Davis, John Dawson, George Dent, Joseph Eggleston,
Lucas Elmendorph, William Findlay, John Fowler, Nathaniel
Freeman, jr., Albert Gallatin, James Gillespie, Andrew
Gregg, John A. Hanna, Carter B. Harrison, Jonathan N.
Havens, Joseph Heister, David Holmes, Walter Jones, Edward
Livingston, Matthew Locke, Matthew Lyon, Nathaniel Macon,
Blair McClenachan, Joseph McDowell, Anthony New, John
Nicholas, Josiah Parker, Thompson J. Skinner, Samuel Smith,
William Smith, Richard Sprigg, Richard Stanford, Thos.
Sumter, Abram Trigg, John Trigg, Philip Van Cortlandt,
Joseph B. Varnum, Abraham Venable, and Robert Williams.

Mr. MCDOWELL then moved an adjournment; which was negatived--55 to 38.

The question was then taken on the second resolution, upon which the yeas and nays were exactly the same as upon the first.

The question on the third was concurred in, 61 votes being for it.

SATURDAY, March 2.

EVENING SITTING.

_Law of Retaliation._

Mr. OTIS called the order of the day on the bill vesting the power of retaliation, in certain cases, in the PRESIDENT OF THE UNITED STATES; when

Mr. DENT moved to postpone the consideration of this bill until the next session of Congress; which motion was negatived--35 to 32.

The House then went into a Committee of the Whole on this bill, and after some discussion, and an amendment being introduced into the preamble of the bill by Mr. DAYTON, (the Speaker,) to make it apply generally to any acts of severity that may be committed by the French Republic in pursuance of any violent decree, instead of applying particularly to the decree declaring American citizens, found on board vessels of their enemy, pirates, and liable to suffer death, the committee rose, and the amendment was concurred in.

The question being, "Shall this bill pass?"

Mr. LIVINGSTON complained that this bill went to place the power of life and death in the hands of the PRESIDENT, with respect to every Frenchman in this country, in case the French Government should commit any act of violence against one of our citizens. He doubted, indeed, whether he would not have this power, in case of any American citizen being killed in battle on board a British ship. The Legislature, he said, had no right to vest this power, except in case of war; nor did he believe it would ever be exercised, if given. And as the decree complained of had been two years in existence without being carried into effect, he thought there was no need now to create an alarm about it. Indeed, the last decree having been suspended, he considered the first to be so also.

Mr. EDMOND was sorry, at this late hour, to occupy a single moment of the time of the House; but he found himself called upon to say a few words. It was a painful reflection, he said, that any nation in the world should deliberately pass a legislative act for the purpose of authorizing the commission of murder; for the _arrêt_ of the French Republic was nothing less than a law for putting innocent men to death. An instance like it could not be found on record. In time of war retaliation is found necessary to prevent the enormities of an enemy. Indeed, the intention of retaliation is always to prevent cruelty. This decree was said to be suspended; but if it were not intended to give it future operation, it would have been repeated. It might be convenient to suspend the decree for a time; but when a nation is so depraved as to pass a decree of this kind, what security have we that the decree will not be brought into operation in the recess of Congress. If it is not, the present law can have no effect. Mr. E. believed no one but the gentleman from New York could have supposed that this law was meant to retaliate for men killed in battle. If he examines the bill, he will find that the person must have been put to death pursuant to a decree of the French Republic. And whilst we suffer our humanity to be touched with respect to French citizens here, we ought not to forget American citizens, whose blood may be spilt in France under this decree.

Mr. GALLATIN observed, that three arguments had been used in favor of passing this bill. One of them was, that it would afford protection to our seamen; the second, to give sufficient cause of irritation by repelling every hostile measure of the French Government by one of a similar nature; the third, to prevent the people of America having any belief in either the sincerity of France or the probability of a negotiation.

Mr. G. did not believe that this bill would give the protection expected to our seamen; and as to the power of retaliation, well knowing, both from the character of the PRESIDENT and the general character of America, that retaliation would be repugnant to his feelings, and the feelings of the public at large, he did not believe a single case would ever happen in which it would be exercised. What, said Mr. G., would be the degree of proof necessary to carry into effect this law? A man must have been taken on board a British vessel, or some other vessel at war with France, and put to death or ill-treated by the French. It must also be proved to have been done in pursuance of a French decree. In the next place, he must be an American citizen, and have been compelled to go on board such ship; and Mr. G. did not know how all this information was to come to the PRESIDENT.