Sec. 3. And be it further enacted by the authority aforesaid, That the deputy postmasters of the offices where the pamphlets, newspapers, handbills, or other printed papers or pictorial representations aforesaid, may arrive for delivery, shall, under the instructions of the Postmaster General, from time to time give notice of the same, so that they may be withdrawn, by the person who deposited them originally to be mailed, and if the same shall not be withdrawn in one month thereafter, shall be burnt or otherwise destroyed.
This bill, on the 2d of June, 1836, was ordered to be engrossed and read a third time, by the casting vote of Mr. Van Buren, the Vice-President. On the 8th of June the following debate and proceedings took place:
Mr. Webster addressed the Senate at length in opposition to the bill, commencing his argument against what he contended was its vagueness and obscurity in not sufficiently defining what were the publications, the circulation of which it intended to prohibit. The bill provided that it should not be lawful for any deputy postmaster, in any State, Territory, or District of the United States, knowingly to deliver to any person whatever, any pamphlet, newspaper, handbill, or other printed matter or pictorial representation, touching the subject of slavery, where by the laws of said State, District, or Territory, their circulation was prohibited. Under this provision Mr. W. contended that it was impossible to say what publications might not be prohibited from circulation. No matter what was the publication, whether for or against slavery—if it touched the subject in any shape or form, it would fall under the prohibition. Even the Constitution of the United States might be prohibited; and the person who was clothed with the power to judge in this delicate matter was one of the deputy postmasters who, notwithstanding the difficulties with which he was encompassed in coming to a correct decision must decide correctly, under pain of being removed from office. It would be necessary, also, he said, for the deputy postmasters referred to in this bill to make themselves acquainted with all the various laws passed by the States, touching this subject of slavery, and to decide them, no matter how variant they might be with each other. Mr. W. also contended that the bill conflicted with that provision in the Constitution which prohibited Congress from passing any law to abridge the freedom of speech or of the press. What was the liberty of the press? he asked. It was the liberty of printing as well as the liberty of publishing, in all the ordinary modes of publication; and was not the circulation of the papers through the mails an ordinary mode of publication? He was afraid that they were in some danger of taking a step in this matter, that they might hereafter have cause to regret, by its being contended that whatever in this bill applies to publications touching slavery, applies to other publications that the States might think proper to prohibit; and Congress might, under this example, be called upon to pass laws to suppress the circulation of political, religious, or any other description of publications, which produced excitement in the States. Was this bill in accordance with the general force and temper of the Constitution and its amendments? It was not in accordance with that provision of the instrument, under which the freedom of speech and of the press was secured. Whatever laws the State Legislatures might pass on the subject, Congress was restrained from legislating in any manner whatever, with regard to the press. It would be admitted, that if a newspaper came directed to him, he had a property in it; and how could any man, then, take that property and burn it without due form of law? and he did not know how this newspaper could be pronounced an unlawful publication and having no property in it, without a legal trial.
Mr. W. argued against the right to examine into the nature of publications sent to the post-office, and said that the right of an individual in his papers, was secured to him in every free country in the world. In England, it was expressly provided that the papers of the subject shall be free from all unreasonable searches and seizures—language, he said, to be found in our Constitution. This principle established in England, so essential to liberty, had been followed out in France, where the right of printing and publishing was secured in the fullest extent; the individual publishing being amenable to the laws for what he published; and every man printed and published what he pleased, at his peril. Mr. W. went on at some length to show that the bill was contrary to that provision of the Constitution, which prohibits Congress to pass any law abridging the freedom of speech or of the press.
Mr. Buchanan said, that as he had voted for the engrossment of this bill, and should vote for its final passage, he felt himself bound to defend and justify his vote against the argument of the Senator from Massachusetts (Mr. Webster). In doing so, he would imitate that Senator, if in no other respect, at least in being brief.
It is indispensable to the clear and distinct understanding of any argument, to know precisely what is the question under discussion. Without this knowledge, we cannot tell whether in any or what degree the argument is applicable to the subject. What, then, is the naked question now under discussion, stripped of all the mist which has been cast around it? This bill embraced but a single principle, though this principle was carried out through three sections. It provides that deputy postmasters, within the limits of such slaveholding States as have found it necessary for their own safety to pass laws making it penal to circulate inflammatory publications and pictorial representations calculated to excite the slaves to insurrection, shall not be protected by the laws of the United States, in violating these State laws. Postmasters within these States who shall knowingly distribute such publications are liable to be removed from office. The bill also provides that the post-office laws of the United States shall not protect postmasters, mail carriers, or other officers or agents of the department who shall knowingly circulate such incendiary publications, from the penalties denounced against this offence under the laws of the States. This is the spirit and principle of the bill. It does no more than to withdraw the protection of the laws of the United States, establishing the Post Office Department, from postmasters and other agents of this Government who shall wilfully transgress State laws deemed absolutely necessary to secure the States, within which they exist, from servile insurrection.
This bill did not affect, in the slightest degree, any of the non-slaveholding States. Neither did it apply to any of the slaveholding States, except those within which the danger of insurrection had become so imminent as to compel them to pass laws of the character referred to in the bill.
Of the policy and justice of passing such a bill he could not doubt, provided we possess the power. No person would contend that this Government ought to become the instrument of exciting insurrection within any of the States, unless we were constrained to pursue this course by an overruling constitutional necessity. The question then is, does any such necessity exist? Are we bound by the Constitution of the United States, through our post-offices, to circulate publications among the slaves, the direct tendency of which is to excite their passions and rouse them to insurrection? Have we no power to stay our hand in any case? Even if a portion of this Union were in a state of open rebellion against the United States, must we aid and assist the rebels by communicating to them, through our Post Office Department, such publications and information as may encourage and promote their designs against the very existence of the confederacy itself? If the Constitution of the United States has placed us in this deplorable condition, we must yield to its mandates, no matter what may be the consequences.
Mr. B. did not believe that the Constitution placed us in any such position. Our power over the mails was as broad and general as any words in the English language could confer. The Constitution declares that “Congress shall have power to establish post-offices and post roads.” This is the only provision which it contains touching the subject. After the establishment of these post-offices and post roads, who shall decide upon the purposes for which they shall be used? He answered, Congress, and Congress alone. There was no limitation, no restriction, whatever, upon our discretion contained in the bond. We have the power to decide what shall and what shall not be carried in the mail, and what shall be the rate of postage. He freely admitted that, unless in extreme cases, where the safety of the Republic was involved, we should never exercise this power of discrimination between what papers should and should not be circulated through the mail. The Constitution, however, has conferred upon us this general power, probably for the very purpose of meeting these extreme cases; and it is one which, from its delicate nature, we shall not be likely to abuse.
He differed entirely from the opinion of the Senator from South Carolina (Mr. Calhoun), as to the source whence the power was derived to pass this bill. No action of the State Legislatures could either confer it or take it away. It was perfect and complete in itself under the Federal Constitution, or it had no existence. With that Senator he entirely concurred in opinion, that the sedition law was clearly unconstitutional. Congress have no power to abridge the freedom of the press, or to pass any law to prevent or to punish any publication whatever. He understood the freedom of the press to mean precisely what the Senator from Massachusetts had stated. But does it follow, as the gentleman contends, that because we have no power over the press, that therefore we are bound to carry and distribute anything and everything which may proceed from it, even if it should be calculated to stir up insurrection or to destroy the Government? So far as this Government is concerned, every person may print, and publish, and circulate whatever he pleases; but are we, therefore, compelled to become his agents, and to circulate for him everything he may choose to publish? This is the question. Any gentleman upon this floor may write what he thinks proper against my character; but because he can exercise this liberty, am I therefore bound to carry and to circulate what he has written? So any individual within the broad limits of this Union, without previous restraint and without danger of punishment from the Federal Government, may publish what is calculated to aid and assist the enemies of the country in open war; but does it follow, as a necessary consequence, that this very Government is bound to carry and circulate such publications through its mails? A more perfect non sequitur never had been presented to his mind. It was one thing not to restrain or punish publications; it was another and an entirely different thing to carry and circulate them after they have been published. The one is merely passive; the other is active. It was one thing to leave our citizens entirely free to print and publish and circulate what they pleased; and it was another thing to call upon us to aid in their circulation. From the prohibition to make any law “abridging the freedom of speech or of the press,” it could never be inferred that we must provide by law for the circulation through the post-office of everything which the press might publish. And yet this is the argument both of the Senator from Massachusetts and the Senator from South Carolina. If this argument were well founded, it was very clear to his mind, that no State law could confer upon Congress any power to pass this bill. We derived our powers from the Federal Constitution, and from that alone. If, under its provisions, we have had no authority to pass the bill, we could derive no such authority from the laws of the States.