The Senator from Massachusetts had argued as though he (Mr. B.) had said, that as the end proposed by this measure was good, he should vote for it, notwithstanding the means might be unconstitutional.
[Here Mr. Webster explained, and said he had not imputed to Mr. B. such an argument.]
Mr. B. proceeded. The Senator did not mean this imputation; but his argument seemed to imply as much. However necessary he might believe this bill to be, if he did not find a clear warrant for its passage in the Constitution, it should never have his support. He never could believe that this Government, having exclusive control over the Post-Office Department in all its various relations, was yet so impotent to prevent evil, that it must, under the fundamental law which called it into existence, whether it would or not, distribute publications tending directly to promote servile insurrection, and to produce its own destruction.
The Senator from South Carolina (Mr. Calhoun) had misapprehended him in one particular. He (Mr. B.) had disclaimed all authority to pass this bill derived from State laws, or from any other source than the Constitution of the United States. He had not said he would vote for a similar bill in all cases where the State Legislatures might think proper to pass laws to prohibit the circulation of any publication whatever. He considered the passage of such laws merely as evidence of the necessity for legislation by Congress; but he was very far from adopting the principle that it should be conclusive evidence in all cases. Congress must judge for itself under all the circumstances of each particular case.
In reply to the Senator from Massachusetts, Mr. B. said that this bill would not be a penal law. Everything like a penalty had been stricken from its provisions, unless the removal of a deputy postmaster from office by the Postmaster General might be viewed in that light. By it we merely directed our agent not to violate State laws by distributing publications calculated to excite insurrection. He would not have occasion to study all the laws of all the States on the subject of slavery, as the Senator from Massachusetts had alleged. All that would be required of him was to know the laws of the State of which he was a citizen, and to take care not to violate them.
The gentleman had said that he (Mr. B.) had mistaken the recommendation contained in the President’s message. Now he undertook to assert that this bill was in conformity with the recommendation of the President, and carried it out in all essential particulars.
[Here Mr. B. again read the last paragraph of the message which he had read before.]
Now, sir, (said Mr. B.) does not the President expressly assert that Congress has authority to regulate what shall be distributed through the post-offices, and does he not “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?” Except that this bill contained no severe penalties, it was framed both in its spirit and in its letter according to the suggestion of the President. What other bill could we pass of a milder character than the one now before us, to prevent the circulation of these incendiary publications? Let the President’s recommendation be entitled to what weight it might, this bill was in exact accordance with it.
The Senator from Massachusetts had contended that this bill conferred upon deputy postmasters the power of depriving individuals of their property in newspapers and other publications, in violation of that clause in the Constitution, which declares that no person shall be deprived of his property without due process of law. By this bill we had not attempted to shield any postmaster from legal responsibility[responsibility] for his conduct. We could not do so, if we would. We had merely prescribed for him, as we had done for our other agents, the line of his duty. We did not attempt to protect him from the suit of any person who might consider himself aggrieved. If any individual to whom a publication was directed, and who had demanded it from the postmaster and had been refused, should believe our law to be unconstitutional, he might bring this question before the judiciary, and try it, like any other question. All our officers and agents are liable to be sued, and if the law under which they acted should prove to be unconstitutional, it would afford them no protection. On the present occasion we proposed to proceed in the spirit of the common law principle, that any individual may abate a nuisance; though he thereby rendered himself responsible, in case it should appear afterwards that the thing abated was not a nuisance. So here, the postmaster refusing to deliver a newspaper under our law, would be responsible in damages to the party aggrieved, in case it should appear that the law under which he had acted was unconstitutional.
As to the necessity for passing this bill, he should say but a few words. It was very easy for gentlemen to say that necessity was the plea of tyrants. He admitted it had been so, and would be so in all time to come. But after all, if we possessed the power to legislate in this case, from our situation we were compelled to judge whether it was necessary to call it into efficient action or not. This duty devolved upon us. We could not avoid deciding this question. Was it not, then, within our knowledge that the slaveholding States had been attempted to be flooded with pamphlets and pictorial representations calculated to excite servile insurrection? Had we not seen upon this floor many of these pictorial representations, whose direct effect would be to excite the wild and brutal passions of the slaves to cut the throats of their masters? Within the last few months, had there not been blood shed? and had there not been several attempted insurrections in some of the Southern States? These facts were incontestable. Believing and knowing all this to be true, he said the case of necessity, in his judgment, was fully established, and he should vote for the passage of the bill.