Tuesday, July 10.
Punishment of Crimes.
The bill, in addition to the act for punishing crimes against the United States, and for other purposes, was read the third time; when
Mr. Sitgreaves wished the bill to be recommitted. It had been suggested to him that great inconvenience arises in the Federal Courts, from its having been conceived that they have not the power to bind to good behavior, and he was desirous of removing this defect, by adding a section to this bill for the purpose.
Mr. Bayard thought the gentleman from Pennsylvania had better bring this subject forward by itself, than have this bill recommitted, as it was no way connected with it.
Mr. Sitgreaves consented.
The question was now on the passing of the bill.
Mr. McDowell called for the yeas and nays upon it.
Mr. Nicholas rose, he said, to ask an explanation of the principles upon which this bill is founded. He confessed it was strongly impressed upon his mind, that it was not within the powers of the House to act upon this subject. He looked in vain amongst the enumerated powers given to Congress in the constitution, for an authority to pass a law like the present; but he found what he considered as an express prohibition against passing it. He found that, in order to quiet the alarms of the people of the United States with respect to the silence of the constitution as to the liberty of the press, not being perfectly satisfied that the powers not vested in Congress remained with the people, that one of the first acts of this Government was to propose certain amendments to the constitution, to put this matter beyond doubt, which amendments are now become a part of the constitution. It is now expressly declared by that instrument, "that 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;" and, also, "that Congress shall make no law abridging the freedom of speech, or of the press."
Mr. N. asked whether this bill did not go to the abridgment of the freedom of speech and of the press? If it did not, he would be glad if gentlemen would define wherein the freedom of speech and of the press consists.
Mr. N. wished gentlemen, before they give a final vote on this bill, to consider its effects; and, if they do this, he thought they would consent to stop here. He desired them to reflect on the nature of our Government; that all its officers are elective, and that the people have no other means of examining their conduct but by means of the press, and an unrestrained investigation through them of the conduct of the Government. Indeed, the heart and life of a free Government, is a free press; take away this, and you take away its main support. You might as well say to the people, we, your Representatives, are faithful servants, you need not look into our conduct; we will keep our seats for a little longer time than that for which you have given them to us. To restrict the press, would be to destroy the elective principle, by taking away the information necessary to election, and there would be no difference between it and a total denial of the right of election, but in the degree of usurpation.
Mr. Otis said, the professions of attachment to the constitution, made by the gentleman from Virginia, are certainly honorable to him; and he could not believe that an attachment so deeply engrafted, as he states his to be, would be shaken by this bill. The gentleman had caught an alarm on the first suggestion of a sedition bill, which had not yet subsided; and though the present bill is perfectly harmless, and contains no provision which is not practised upon under the laws of the several States in which gentlemen had been educated, and from which they had drawn most of their ideas of jurisprudence, yet the gentleman continues to be dissatisfied with it.
The objections of the gentleman from Virginia, he believed, might be reduced to two inquiries. In the first place, had the constitution given Congress cognizance over the offences described in this bill prior to the adoption of the amendments to the constitution? and, if Congress had that cognizance before that time, have those amendments taken it away? With respect to the first question, it must be allowed that every independent Government has a right to preserve and defend itself against injuries and outrages which endanger its existence; for, unless it has this power, it is unworthy the name of a free Government, and must either fall or be subordinate to some other protection. Now some of the offences delineated in this bill are of this description. Unlawful combinations to oppose the measures of Government, to intimidate its officers, and to excite insurrections, are acts which tend directly to the destruction of the constitution, and there could be no doubt that the guardians of that constitution are bound to provide against them. And if gentlemen would agree that these were acts of a criminal nature, it follows that all means calculated to produce these effects, whether by speaking, writing, or printing, were also criminal. From the nature of things, therefore, the National Government is invested with a power to protect itself against outrages of this kind, or it must be indebted to and dependent on an individual State for its protection, which is absurd. This essential right resulting from the spirit of the constitution, was still more evident in the language of that instrument. The people of the individual States brought with them as a birthright into this country the common law of England, upon which all of them have founded their statute law. If it were not for this common law, many crimes which are committed in the United States would go unpunished. No State has enacted statutes for the punishment of all crimes which may be committed; yet in every State he presumed there was a Superior Court which claimed cognizance of all offences against good morals, and which restrained misdemeanors and opposition to the constituted authorities, under the sanction merely of the common law. When the people of the United States convened for the purpose of framing a federal compact, they were all habituated to this common law, to its usages, its maxims, and its definitions. It had been more or less explicitly recognized in the constitution of every State, and in that of Maryland it was declared to be the law of the land. If, then, we find in an instrument digested by men who were all familiarized to the common law, not only that the distribution of power, and the great objects to be provided for are congenial to that law, but that the terms and definitions by which those powers are described, have an evident allusion to it, and must otherwise be quite inexplicable, or at best of a very uncertain meaning, it will be natural to conclude that, in forming the constitution, they kept in view the model of the common law, and that a safe recourse may be had to it in all cases that would otherwise be doubtful. Thus we shall find that one great end of this compact, as appears in the preamble, is the establishment of justice, and for this purpose a Judicial department is erected, whose powers are declared "to extend to all cases in law and equity, arising under the constitution, the laws of the United States," &c. Justice, if the common law ideas of it are rejected, is susceptible of various constructions, but agreeably to the principles of that law, it affords redress for every injury, and provides a punishment for every crime that threatens to disturb the lawful operations of Government. Again, what is intended by "cases at law and equity arising under the constitution," as distinguished from cases "arising under the laws of the United States?" What other law can be contemplated but common law; what sort of equity but that legal discretion which has been exercised in England from time immemorial, and is to be learnt from the books and reports of that country? If it be answered that these words comprise civil controversies only, though no reason appears for this distinction, yet what is to be done with other terms, with trial, jury, impeachment, &c., for an explanation of all which, the common law alone can furnish a standard? It has been said by the gentleman that the constitution has specified the only crimes that are cognizable under it; but other crimes had been made penal at an early period of the Government, by express statute, to which no exception had been taken. For example, stealing public records, perjury, obstructing the officers of justice, bribery in a Judge, and even a contract to give a bribe, (which last was a restraint upon the liberty of writing and speaking,) were all punishable, and why? Not because they are described in the constitution, but because they are crimes against the United States—because laws against them are necessary to carry other laws into effect; because they tend to subvert the constitution. The same reasons applied to the offences mentioned in the bill.
Mr. Macon said, the same section of the constitution which forbids any interference with the freedom of speech and of the press, extends also to religious establishments, and says, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." This bill ought to be considered, therefore, as the commencement of a system which might as well be extended to the establishment of a national religion, as to a "restraint of speech, and of the press." He acknowledged the bill was less exceptionable than when it came from the Senate; but it yet contained the principle which he considered as violating the constitution.
Mr. M. said, he had attended to all that had been said in support of this bill; but could find nothing like argument in it. When the words of the constitution were so express, it seems impossible they could be understood as the gentleman from Massachusetts had represented them. Several authorities, Mr. M. said, had been read to show that this bill will form a constitutional law. He believed, however, far more might be adduced to show the reverse. He believed the best way of coming at the truth of the construction of any part of the constitution, was, by examining the opinions that were held respecting it when it was under discussion in the different States.
Mr. M. then proceeded to quote the opinions of the leading members in several of the State conventions, in order to show, from the opinions of the friends of the constitution, that it was never understood that prosecutions for libels could take place under the General Government; but that they must be carried on in the State courts, as the constitution gave no power to Congress to pass laws on this subject. Not a single member in any of the conventions gave an opinion to the contrary. The following are the words of Judge Iredell, of North Carolina, on the occasion. Judge Wilson, of this State, and several others, were equally strong; but we have them not at hand, and if we had, to give extracts from the whole would occupy too much room. In the Convention of North Carolina, in reply to a member who had said that the General Government might make it treason to write against the most arbitrary proceedings, but who, it appears, afterwards corrected himself, and said he meant only misprision of treason, and only that it might be done within the ten miles square, where they were to have exclusive legislation, Judge Iredell, thus spoke:
"Where is the power given them to do this? They (Congress) have power to define and punish piracies and felonies committed on the high seas, and offences against the law of nations; but they have no power to define any other crime whatever. This shows how apt gentlemen are to commit mistakes. The powers of the Government are particularly enumerated and defined. They can claim no others but such as are so enumerated. In my opinion, they are excluded as much from the exercise of any other authority, as they could be by the strongest negative clause that could be framed."
Gentlemen, Mr. M. said, might call this a harmless bill; but however harmless it may be, it is a beginning to act upon forbidden ground, and no one can say to what extent it may hereafter be carried. He thought this subject of the liberty of the press was sacred, and ought to be left where the constitution had left it. The States have complete power on the subject, and when Congress legislates, it ought to have confidence in the States, as the States ought also to have confidence in Congress, or our Government is gone. This Government depends upon the State Legislatures for existence. They have only to refuse to elect Senators to Congress, and all is gone. He believed there was nowhere any complaint of a want of proper laws under the State Governments; and though there may not be remedies found for every grievance in the General Government, what it wants of power will be found in the State Governments, and there can be no doubt but that power will be duly exercised when necessity calls for it.
Mr. Livingston said, that notwithstanding the sarcasms which had been thrown out against those who oppose this measure; notwithstanding that kind of accommodating principle which has been set up and reiterated, that the powers of this constitution extend to every possible case—a principle which goes to the destruction of State authorities, and makes that instrument mean any thing or nothing—notwithstanding this, he should again venture to engage the attention of the House while he endeavored to show that this bill is not only contrary to the spirit, but to the direct letter of the constitution.
The constitution declares that "no law shall be passed to abridge the liberty of speech or of the press." Let us inquire, said Mr. L., what was the liberty enjoyed at the time this declaration was agreed to, and see whether citizens will enjoy the same liberty after this law passes that they then enjoyed. Will gentlemen say that the same liberty of writing and speaking did not exist then that now exists? If they will not say this, must they not allow that the constitution is positive in prohibiting any change in this respect? Gentlemen may call this liberty an evil, if they please; if it be an evil, (which he was far from believing,) it is an evil perpetrated by the constitution.
The constitution seems to have contemplated cases which might arise at a future day. It seems to have foreseen that majorities (far be it from him to believe the present majority is of the number) might be actuated by dispositions hostile to the Government; that it might wish to pass laws to suppress the only means by which its corrupt views might be made known to the people, and therefore says, no law shall be passed to abridge the liberty of speech and of the press. This privilege is connected with another dear and valuable privilege—the liberty of conscience. What is liberty of conscience? Gentlemen may to-morrow establish a national religion agreeably to the opinion of a majority of this House, on the ground of a uniformity of worship being more consistent with public happiness than a diversity of worship. The doing of this is not less forbidden than the act which the House are about to do. But, it is said, will you suffer a printer to abuse his fellow-citizens with impunity, ascribing his conduct to the very worst of motives? Is no punishment to be inflicted on such a person? Yes. There is a remedy for offences of this kind in the laws of every State in the Union. Every man's character is protected by law, and every man who shall publish a libel on any part of the Government, is liable to punishment. Not, said Mr. L., by laws which we ourselves have made, but by laws passed by the several States. And is not this most proper? Suppose a libel were written against the President, where is it most probable that such an offence would receive an impartial trial? In a court, the judges of which are appointed by the President, by a jury selected by an officer holding his office at the will of the President? or in a court independent of any influence whatever? The States are as much interested in the preservation of the General Government as we are. We do wrong when we attempt to set up interests independent of the States. They are all desirous of preserving the constitution as it now stands; and it is, therefore, much more probable that justice will be found in a court in which neither of the parties have influence, than in one which is wholly in the power of the President.
The bill was then passed—yeas 44, nays 41, as follows:
Yeas.—John Allen, George Baer, jr., Bailey Bartlett, James A. Bayard, David Brooks, Christopher G. Champlin, John Chapman, James Cochran, Joshua Coit, Samuel W. Dana, 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, John Wilkes Kittera, Samuel Lyman, Harrison G. Otis, Isaac Parker, John Read, John Rutledge, jun., James Schureman, Samuel Sewall, William Shepard, Thomas Sinnickson, Samuel Sitgreaves, Nathaniel Smith, Peleg Sprague, George Thatcher, Richard Thomas, Mark Thompson, Thomas Tillinghast, John E. Van Allen, and Peleg Wadsworth.
Nays.—Abraham Baldwin, David Bard, Lemuel Benton, Thomas Blount, Richard Brent, Stephen Bullock, Dempsey Burges, Thomas Claiborne, William Charles Cole Claiborne, John Clopton, John Dawson, George Dent, John Fowler, 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, William Matthews, Blair McClenachan, Joseph McDowell, Anthony New, John Nicholas, Samuel Smith, William Smith, Richard Sprigg, jun., Richard Stanford, Thomas Sumter, John Trigg, Philip Van Cortlandt, Joseph B. Varnum, Abraham Venable, and Robert Williams.