The Senator from Pennsylvania reïterated the argument used the other day by his friend from Georgia, that you have no right to diffuse publications through the agency of the post-office, for the purpose of exciting a servile war. Now let me tell the gentleman, (said Mr. D.) that this is an old argument against the liberty of the press, and that it has been used whenever it was thought necessary to establish a censorship over it. The public morals were said to be in danger; it was necessary to prevent licentiousness, tumult, and sedition; and the public good required that the licentiousness of the press should be restrained. All these were the plausible pretences under which the freedom of the press had been violated in all ages. Now they knew that the press was at all times corrupt; but when they came to decide the question whether the tares should be rooted up, and the wheat along with it, those who had decided in favor of liberty, had always decided that it was better to put up with a lesser evil than to draw down upon themselves one of such fearful magnitude, as must result from the destruction of the press. Mr. D. contended that the power to be given to the deputy postmasters to decide what should, and what should not be distributed from the post-office, gave them a dangerous discretion over a very delicate matter, and that the power was one highly susceptible of abuse, and always liable to misconstruction.
Mr. Grundy (of Tennessee) observed that this bill was intended simply to prevent any officer of the Government, who should violate the laws of the States in which he resided, from sheltering himself under the post-office law. As the bill now stood, the objections with regard to abridging the freedom of the press had no application whatever. There was no provision in the bill interfering with the printing or publishing of any matter whatever, nor was it even pretended that Congress possessed the power of doing so. It was not even said that certain publications, no matter how incendiary in their character, should not be deposited in the post-office, and transmitted through[through] the mails. Therefore all the objections that he had heard to the bill fell to the ground. In this bill, the Government simply said to the individuals in its employ, “We will not help you to do an act in violation of the laws of the State in which you live.” That was the ground on which the bill was framed, and it could not be pretended that this was an abridgment of the liberty of the press. It was only the Government declining to assist an individual in the violation of the law, and that was the whole bill. The Government, under the Constitution, had an entire control of the Post-Office Department. It had the power to regulate what matters should be carried through[through] the mails, and what should not. We say to everybody that to these slaveholding States you may transmit through the mails what you please, but if you transmit to one of our officers what is prohibited by the laws of the State in which he resides, we shall say to that officer, you shall not put on the mantle of the Government to assist you in the violation of that law; you shall be subject to the penalties of the State laws, besides removal from office. In fact there was not the slightest pretext for saying that this bill violates in the remotest degree the freedom of the press. Nothing should be carried in the mails but what was proper for transmission through them; but if there was anything sent through them tending to excite insurrection and bloodshed, how could there be an objection to the passage of a law, saying that it should not be delivered out of the post-office?
The gentleman from Massachusetts objected to the vagueness of the bill in saying what shall not be distributed from the post-offices. How could the matter, he asked, be made more specific? When the publication arrived at the post-office where it was prohibited, and was about to be handed out, the State law would be consulted, and by it, it would be decided whether it was in violation of the State law or not, and it could thus be determined whether it was proper for delivery. He should not say anything as to the report—he did not concur in it farther than that this was a great evil, and should be corrected in the mildest way that it could be done. This bill did not affect any individual but those of the post-offices of the States where laws have been passed prohibiting publications and pictorial representations, calculated to excite insurrection among the slaves. He was opposed to the original bill, because it interfered with what publications should be deposited in, as well as delivered from, the post-offices. But it was only at the delivery office where this bill would operate, and the postmaster at such office would be operated on by the laws of the State in which it is situated. If this bill was not passed, nothing could be done, and the post-office would be made (for there were persons wicked enough to do it) the medium through which to send fire-brands throughout the country.
Mr. Clay said that he considered this bill totally unnecessary and uncalled for by public sentiment; and in this he differed with the Senator from Pennsylvania (Mr. Buchanan); for he believed that the President’s message on the subject had met with general disapprobation; that it was unconstitutional; and if not so, that it contained a principle of a most dangerous and alarming character. When he saw that the exercise of the most extraordinary and dangerous power had been assumed by the head of the post-office, and that it had been sustained by this message, he turned his attention to the subject and inquired whether it was necessary that the General Government should, under any circumstances, exercise such a power, and whether it possessed it; and after much reflection, he had come to the conclusion, that they could not pass any law interfering with the subject in any shape or form whatever.
The evil complained of was the circulation of papers having a certain tendency. The papers, unless circulated, did no harm, and while in the post-office or in the mail—it was a circulation solely which constituted the evil. It was the taking them out of the mail, and the use that was to be made of them, that constituted the mischief.—Then it was perfectly competent to the State authorities to apply the remedy. The instant that a prohibited paper was handed out, whether to a citizen or sojourner, he was subject to the laws which might compel him either to surrender them or burn them. He considered the bill not only unnecessary, but as a law of a dangerous, if not a doubtful authority.
It was objected that it was vague and indefinite in its character; and how is that objection got over? The bill provided that it shall 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 paper or pictorial representation, touching the subject of slavery, where, by the laws of said State, Territory, or District, their circulation is prohibited. Now, what could be more vague and indefinite than this description? Now, could it be decided by this description, what publications should be withheld from distribution? The gentleman from Pennsylvania said that the laws of the States would supply the omission. He thought the Senator was premature in saying that there would be a precision in State laws, before he showed it by producing the law. He had seen no such law, and he did not know whether the description in the bill was applicable or not. There was another objection to this part of the bill: it applied not only to the present laws of the States, but to any future laws they might pass.
Mr. C. denied that the bill applied to the slaveholding States only, and went on to argue that it could be applied to all the States, and to any publication touching the subject of slavery whatever, whether for or against it, if such publication was only prohibited by the laws of such State. Thus, for instance, a non-slaveholding State might prohibit publications in defence of the institution of slavery, and this bill would apply to it as well as to the laws of the slaveholding States; but the law would be inoperative: it declared that the deputy postmaster should not be amenable, unless he knowingly shall deliver, etc. Why, the postmaster might plead ignorance, and of course the law would be inoperative.
But he wanted to know whence Congress derived the power to pass this law. It was said that it was to carry into effect the laws of the States. Where did they get such authority? He thought that their only authority to pass laws was in pursuance of the Constitution; but to pass laws to carry into effect the laws of the States, was a most prolific authority, and there was no knowing where it was to stop: it would make the legislation of Congress dependent upon the legislation of twenty-four different sovereignties. He thought the bill was of a most dangerous tendency. The Senator from Pennsylvania asked if the post-office power did not give them the right to regulate what should be carried in the mails. Why, there was no such power as that claimed in the bill; and if they passed such a law, it would be exercising a most dangerous power. Why, if such doctrine prevailed, the Government might designate the persons, or parties, or classes who should have the benefit of the mails, excluding all others.
It was too often in the condemnation of a particular evil that they were urged on to measures of a dangerous tendency. All must agree as to the dangerous consequences of persons residing out of certain States transmitting to them incendiary publications, calculating to promote civil war and bloodshed. All must see the evil, and a great evil it was, and he hoped that a stop would be put to it; but Congress had no power to pass beyond the Constitution for the purpose of correcting it. The States alone had the power, and their power was ample for the purpose. He hoped never to see the time when the General Government should undertake to correct the evil by such measures as the one before them. If (said Mr. C.) you can pass this law to prohibit the delivery through the post-office of publications touching the subject of slavery, might they not also pass laws to prohibit any citizen of New York or Massachusetts from publishing and transmitting through the mails touching that subject? If you may touch the subject of slavery at all, why not go to the root of the evil? Suppose one of the Southern States were to pass a law of this kind, would you not be called upon by all the arguments now used in favor of this bill, to carry such laws into effect? Mr. C. concluded by saying that the bill was calculated to destroy all the landmarks of the Constitution, establish a precedent for dangerous legislation, and to lead to incalculable mischief. There was no necessity for so dangerous an assumption of authority, the State laws being perfectly competent to correct the evil complained of. He must say, that from the first to the last he was opposed to the measure.
Mr. Calhoun could not concur with the views taken by the Senators from Massachusetts and Kentucky, that this bill would comprehend in its provisions all publications touching the subject of slavery. In order to bring any publications within the provision of the bill, two qualifications were necessary. The first was, that it must relate to the subject of slavery; and the next was, that it must be prohibited by the laws of the States to which it is transmitted. He thought that this was the view that would be taken of it by the courts. The object of this bill was to make it the duty of the postmasters in the States to conform to the laws of such States, and not to deliver out papers in violation of their laws. The simple question was, had this Government the power to say to its officers, you shall not violate the laws of the States in which you reside? Could it go further, and make it their duty to co-operate with the States in carrying their laws into effect? This was the simple question. Now could any man doubt that Congress possessed the power to pass both measures, so that their officers might not come in conflict with the State laws? Indeed, he looked upon measures of this kind to prevent conflicts between the General and State Governments, which were likely to ensue, as essentially necessary, for it was evident that when such conflicts took place, the State must have the ascendancy. Mr. C. then briefly recapitulated the principles on which this bill was founded, and contended that it was in aid of laws passed by the States, as far as Congress had the power constitutionally to go, and assumed no power to prohibit or interfere with the publication or circulation of any paper whatever; it only declared, that the officers of the Government should not make their official stations a shield for violating the State laws. Was there any one there who would say, that the States had not the power to pass laws prohibiting, and making penal, the circulation of papers calculated to excite insurrection among their slaves? It being admitted that they could, could not Congress order its officers to abstain from the violation of these laws? We do not (said Mr. C.) pass a law to abridge the freedom of the press, or to prohibit the publication and circulation of any paper whatever—this has been done by the States already. The inhibition of the Constitution was on Congress, and not on the States, who possessed full power to pass any laws they thought proper. They knew that there were several precedents to sanction this bill. Congress had passed laws to abstain from the violation of the health laws of the States. Could any one say that the Constitution gave to Congress the power to pass quarantine laws? He had not adverted to the message of the President on this subject, because he believed that the President acted from the best motives, and that that part of the message was drawn up without sufficient reflection. He denied, however, that this message was in conformity with the Constitution. It would be directly abridging the liberty of the press for Congress to pass such laws as the President recommended. One part of the message he would refer to, which was in these words: