“I would, therefore, call the special attention of Congress to the subject, and respectfully suggest the propriety of passing such a law as will prohibit, under severe penalties, the circulation in the Southern States, through the mail, of incendiary publications, intended to instigate the slaves to insurrection.” This was clearly unconstitutional, for it not only recommended the prohibition of publications and circulation of incendiary papers (abridging the freedom of the press), but it recommended also the infliction of severe penalties, which powers were expressly prohibited by the Constitution. On no other principle could this ever be defended, than that it was simply abstaining from a violation of the laws of the States.
The Senator from Kentucky contended that this bill was useless, and he (Mr. C.) agreed that it was so in one sense, and that was, with or without this bill, the Southern States would execute their own laws against the circulation of such papers. It was a case of life and death with them; and did anybody suppose that they would permit so many magazines in their bosoms, to blow them to destruction, as these post-offices must be, if these incendiary publications continued to be circulated through them? While the Southern States contained so many postmasters opposed to their institutions, as it was in his own State, where almost every postmaster was opposed to it, it was absolutely necessary for them to take effectual measures for their own security. It was the assertion of the principle, that the States had a right to protect themselves, which made the bill valuable in his eye; it prevented the conflict which would be likely to take place between the General and State Governments, unless some measure of the kind should be adopted. The States had a right to go to the extent of this bill, and they would be wanting to themselves and to posterity, if they omitted to do it. It was on the doctrine of State rights and State intervention, that he supported this bill, and on no other grounds.
The Senator from Massachusetts objected to the returning of these papers, whose delivery was prohibited. He regretted this as much as the Senator did, but his objection was, that it did not go far enough; he thought that these papers should be delivered to the prosecuting officers of the States, to enable them to ferret out the designs of the incendiaries.
Mr. Webster remarked, that in general, it might be safely said, that when different gentlemen supported a measure admitted to be of a novel character, and placed their defence of it on different and inconsistent grounds, a very simple person might believe, in such case, that there were no very strong grounds for adopting the measure. The Senator from Pennsylvania and the Senator from South Carolina not only placed their defence of their bill on opposite grounds, but each opposed the principles on which the other founded his support of it. Where the object to be gained was apparently good, and the case urgent, as it was represented to be, how could limitations of power stand against powerful opponents, which have always been urging to despotism? Now, against the objects of this bill, he had not a word to say; but with constitutional lawyers, there was a great difference between the object and the means to carry it into effect. It was not the object to be gained, but the means to attain it, which they should look to, for though the object might be good, the means might not be so. His objections went to the means and not to the object; and he did not yield the argument because the object was a good one, and the case was urgent. It was better to limit the power, and run the risk of injury from the want of it, than to give a power which might be exercised in a dangerous manner.
The Senator from Pennsylvania said that this bill was calling on Congress to do nothing but to abstain from violating the laws of the States. It was one thing, said the Senator, for Congress to abstain from giving these incendiary papers circulation, and another to pass laws saying that they shall not be published. But if Congress had no mail through which these papers could be transmitted, what did the gentleman mean by Congress abstaining from giving them circulation? It meant that Congress should interfere and should create an especial exception as to what should be transmitted by their ordinary channel of intelligence, and that that exception should be caused by the character of the writing or publication. He contended that Congress had not the power, drawn from the character of the paper, to decide whether it should be carried in the mail or not, for such decision would be a direct abridgment of the freedom of the press. He confessed that he was shocked at the doctrine. He looked back to the alien and sedition laws which were so universally condemned throughout the country, and what was their object? Certainly to prohibit publications of a dangerous tendency. Mr. W. here quoted the sedition law, to show the objects it intended to effect. But the deputy postmasters (Mr. W. said) must look into the newspaper mail to see if there were any publications in it touching the subject of slavery calculated to excite insurrections among the slaves.
Now, said Mr. W., the country would have been rent into atoms if the sedition law, instead of saying that papers should not be published in such and such a way, had declared that the deputy postmasters should have the power to search the mails to see if they contained any publications calculated to “bring the Government into disrepute, promote insurrection, and lead to foreign war,” the evils the sedition law intended to guard against. All the papers described in the law of ’99 were unlawful by the laws of any of the States, and yet that law which had created so much excitement and met with such general reprobation, contained nothing like the power claimed by this bill. Any law distinguishing what shall or shall not go into the mails, founded on the sentiments of the paper, and making the deputy postmaster the judge, he should say, was expressly unconstitutional, if not recommended by gentlemen of such high authority. This bill (said Mr. W.) went beyond the recommendation of the President, for his recommendation was, that the person who circulated the papers described by him should be punished by severe penalties. Now, this was the old law of liberty—there was not a word of previous restraint in it as imposed by this bill. Mr. W. then went into an argument to show the vagueness of the bill in describing the paper, the delivery of which was prohibited. Under it, it was impossible to determine what publications should be prohibited; abolition pamphlets were to be stopped at the South, and anti-abolition papers were to be stopped at the North. In reply to Mr. Buchanan, he said that he did not assume that these prohibited publications either were or were not property. All he said was, that they ought not to make the deputy postmasters the judge, and take away the property without the authority of law. What he had to say was, that it was a question of property or no property, and that they could not make the deputy postmaster the judge of the fact, as he could not be a judge of property known to the Constitution and the law.
Mr. Buchanan said he had not anticipated, when he first addressed the Senate upon this subject, that he should have occasion to make any further remarks, but the Senator from Massachusetts had replied to his argument, in such a special manner, that he felt himself constrained to reply to some of his remarks. Now, permit me to say (continued Mr. B.) that he has not at all met the point of my argument. He has invested this subject with an air of greater importance and responsibility than it deserves: he has played around it with all his powers, but without touching the real question involved in the discussion.
Congress has no power (says the gentleman) to pass any law abridging the freedom of speech or of the press. Granted. He most freely admitted that Congress had no power to touch the press at all. We can pass no law whatever either to prevent or to punish any publication, under any circumstances whatever. The sedition law violated this principle. It punished libels against the Federal Government and its officers; and having met with general reprobation, it was repealed, or permitted to expire by its own limitation, he did not recollect which.
Mr. B. said he admitted these premises of the gentleman in their broadest extent; but did they justify his conclusions? In order to maintain his argument, he must prove that the Constitution, in declaring that Congress shall not pass any law abridging the freedom of the press, has thereby, and from the force of these terms alone, commanded us to circulate and distribute, through our post-offices, everything which the press may publish, no matter whether it shall promote insurrection and civil war or not. This is the proposition which he must establish. All the gentleman’s remarks in favor of the liberty of the press met his cordial approbation; but they did not apply to the constitutional question then under discussion. He had argued this question precisely as if, in addition to the words already in the Constitution, that “Congress shall make no law abridging the freedom of speech or of the press,” there had been inserted, “or to prevent the circulation of any production of the press through the post-offices.” But these words were not in the instrument; and the only question was, whether the one prohibition could be inferred from the other. Mr. B. said he was in favor of a plain and literal construction of the Constitution. He took it for his guide; and he could never consent to interpolate what its framers never intended should be there. They have conferred upon Congress, in express terms, a general discretion in regard to the Post Office Department; and the question then was, shall we exercise it in the manner proposed by this bill, for the purpose of preventing servile war, bloodshed and disunion?
How had the gentleman from Massachusetts met his argument? He says that the principles upon which the Senator from South Carolina (Mr. Calhoun) and himself had sustained this bill, were at variance with each other; and that this of itself was sufficient to cast doubt over the measure. But was it the first time the gentleman had known correct conclusions to be drawn from varying or even unfounded premises? The bill itself ought not to be condemned for the arguments of its friends. He would remind the gentleman of the advice given by a distinguished English judge, to a young friend about to occupy a judicial station in the West Indies, which was, never to give reasons for his judgments, where it could be avoided; because his natural sense and perception of justice would almost always enable him to decide correctly, though he might, and probably often would, assign insufficient reasons for his decisions. This bill ought to be judged by its own provisions, and ought not to be condemned for the reasons in support of it which had been advanced either by the Senator from South Carolina or himself.