The gentlemen have a precedent for their bill. Yes, sir, they have a precedent in the sedition law; but it does not go far enough for their purpose. That law, which is the only true precedent on which this bill can be founded, and on which alone it can be sustained, permitted every man to write and to publish what he pleased concerning public men and public measures, and only held him responsible in case his charges should prove to be false. But this bill is a gag law. It goes to the fountain at once, and prohibits the officer not only from writing, but from speaking anything good, bad, or indifferent, whether true or false, on any subject whatever which may affect any pending election from that of a President down to a constable. It has a much broader sweep than the sedition law, which did not interfere with the liberty of speech, however much it may have abridged the freedom of the press. Indeed, among the more enlightened despotisms of Europe, I know not one which prohibits the freedom of speech on all public subjects; it is only in free and enlightened America that we propose actually to insert the gag. The sedition law was bad enough, God knows; but it extended only to the use of the pen, not to that of the tongue. There is, therefore, no parallel between the two cases.
Had it not been for the existence of the sedition law, I should have supposed it to be impossible that there could have been two opinions in regard to the utter unconstitutionality of this bill. The Constitution, in language so plain as to leave no room for misconstruction, declares that “Congress shall make no law abridging the freedom of speech or of the press.” The rule is universal. There is no exception. This bill proposes not only to abridge, but utterly to destroy the freedom of speech, and of the press; to interdict their use altogether to the enumerated officers, on all questions touching the election of any officer of the Federal or State Government. A plain man would naturally suppose that, barely to state the contradiction between the Constitution and this bill was to decide the question. Not so. An ingenious and astute lawyer, in favor of a liberal construction of that instrument, can, by inference and ingenuity, confer powers upon Congress in direct violation both of its letter and its spirit, and of which its framers never once dreamed. Such was the power to pass the sedition law. That law engrafted one limitation upon the freedom of the press. It, in effect, changed the meaning of the general terms “Congress shall make no law abridging the freedom of speech or of the press,” and excepted from their operation any law which might be passed to punish libels against the President, the Government, or either House of Congress. The present bill, in principle at least, proceeds much further. It excepts from the general prohibition of the Constitution the power of punishing all persons holding offices under the Government of the United States who shall dare either to speak or to write at all on questions which may affect the result of any election. This interpolation must be inserted, before gentlemen can show any power to pass the present bill. They cannot advance one step in their argument without it. This Constitution can never be construed according to the meaning of its framers but by men of plain, well-informed, and practical judgment. Common sense is its best expounder. Ingenious men, disposed to raise one implication upon another in favor of Federal power, and to make each previous precedent the foundation on which to proceed another step in the march toward consolidation, may soon make it mean anything or nothing. The liberties of this country can only be preserved by a strict construction of the enumerated powers granted by the States to Congress.
Before I proceed further in my argument against the constitutionality of this bill, it will be proper that I should develop some of its latent beauties. I desire to delineate a little more precisely its character—to present some of its striking features, and to show what it is in principle, and what it will prove to be in practice.
There are twenty-six sovereign States in this Confederacy, united by a Federal compact, called the Constitution of the United States. Each individual elector in this country sustains two distinct characters. He is a citizen of some one of the States, and he is also a citizen of the United States. Now, what does this bill propose? In the older States of this Confederacy, all the Federal officers which we have in the interior are postmasters. It is true that at our ports of entry there are custom-house officers; but in Pennsylvania, for example, from the Schuylkill to the Ohio and to Lake Erie, our people scarcely feel their connection with the General Government except through the medium of the Post Office Department. These postmasters are very numerous. They are planted in every village and at every cross road. They are agents for disseminating information throughout the country. I might probably say that in nine instances out of ten the office is scarcely worth holding on account of its pecuniary emoluments. In most cases, the postmaster accepts it for the accommodation of his neighbors.
Now this postmaster is generally a man of property and of character, having a deep stake in the community and in the faithful administration and execution of the laws. Two candidates are presented to the people for office; say that of a justice of the peace. If one of these village postmasters should, in the exercise of his unquestionable rights as a citizen of Pennsylvania, advise his neighbor to vote for one of these candidates, and against the other, this bill dooms him to a fine of five hundred dollars, and to a perpetual disqualification from ever holding any office under the Government of the United States. No matter whether the merits which he may have ascribed to one of the candidates be true as holy writ, and the delinquencies which he may have charged against the other may be susceptible of the clearest proof, this will not arrest the vengeance of the bill. He is doomed to remain mute, although his dearest interests may be involved, or incur its penalties. A gag is to be put into his mouth, and he is to be punished if he dare to express a preference for one candidate over the other. And let me tell the gentleman, these postmasters hold all sorts of political opinions. In my own State a considerable proportion of their number are Whigs and Antimasons, opposed to the present Administration. I might cite other examples to depict the enormity of this bill, but I consider it wholly unnecessary. I might ascend from the justice of the peace or the constable, through all the gradations of elective office, State and Federal, to the President of the United States, and show, that at each ascending grade, the violation of the rights of the citizen becomes more and more outrageous. I might enumerate the weighers and the gaugers, and the other proscribed classes of inferior office holders, and paint the mad and wanton injustice which this bill would inflict upon them. But enough.
The man who would accept office upon such terms, must forfeit all self-respect, and would become at once a fit tool for corruption and for despotism. He must be degraded in his own eyes, and degraded in the eyes of his fellow-citizens below the rank of a freeman. If you desire to depreciate the Government itself under which we live, you cannot do it more effectually than by placing such a stigma on its officers.
Why, sir, you could not, by any possibility, carry such a law into execution. If it should pass to-morrow, it would fall a dead letter upon your statute book. I would not advocate a forcible resistance to any law, and do not believe that such was the intention of my friend from New Jersey (Mr. Wall), when he spoke of resistance; but does not the Senator from Virginia know that laws may be passed of a character so odious, that nobody could be found to carry them into execution? Such are all laws which are entirely opposed to the spirit of the age, and the united and overwhelming current of public opinion. I firmly believe this to be the character of the present bill.
But suppose me to be mistaken in this opinion, and that the law could be carried into execution, what would be the consequences? The doomed officer, the postmaster, the weigher or the gauger, is placed in the midst of a thinking, acting, busy population. Everything around him is proceeding with the impetuosity of steam. Public opinion is marching onward with giant strides. The officer is talked at and talked to, daily and hourly, by the surrounding multitude, whilst the law compels him to close his lips in silence. Under such circumstances, it would be impossible for human nature long to refrain. What then? If he utters a syllable on any of the exciting political topics of the day, and these are all involved in the perpetual canvass which is proceeding for offices, high and low, he is at once seized upon by some harpy of an informer. This bill offers a most tempting bribe to such eavesdroppers. It would soon call into existence such a race, to dog and surround each officer, and to catch up every incautious word which might be construed into an endeavor to persuade or to dissuade an elector. Each individual in society is stimulated by this bill to become a common informer, by the tempting offer of a bribe of two hundred and fifty dollars in each particular case. The proscribed officer thus becomes his prey, and, in most cases, will be glad to compromise with him for the payment of a great part, or the whole, of the penalty of five hundred dollars, in order to avoid the stigma of perpetual disability to hold any office under this Government.
There is another remark which I desire to make on this branch of the subject. Whenever you attempt to violate the plain letter and spirit of the Constitution, a thousand evils, of which you have never dreamed, present themselves in the perspective. This law can alone be executed by the courts of the United States. Where are they situated? In the large States, such as Pennsylvania or Virginia, they are held at great distances from each other. A postmaster in either of these States, the income of whose office does not exceed fifty dollars per annum, may be dragged from home, a distance of one hundred and fifty or two hundred miles, to stand his trial under this bill before a federal court. The expense would be enormous, whilst he is obliged to appear before a tribunal far from the place where his character, and that of his prosecutor, are known and appreciated. Under such circumstances, he would almost be certain to become the victim of the common informer, under this most unjust and unconstitutional law. He would either be convicted, or compelled to buy his peace at almost any price.
In conferring the powers enumerated in the Constitution on the Federal Government, the States expressly reserved to themselves respectively, or to their people, all the powers not delegated by it to the United States, or prohibited by it to the States. Now, I would ask the Senator from Kentucky when, or where, or how has the State of Pennsylvania surrendered to Congress the right of depriving any of her citizens, who may accept office under the General Government, of the freedom of speech or of the press? Where is it declared by the Constitution, either in express terms, or from what clause can it fairly be inferred, that Congress may make a forfeiture of the dearest of all political rights, an indispensable condition of office? Each one of the people of Pennsylvania, under her constitution and laws, is secured in the inalienable right of speaking his thoughts. The State, as well as each individual citizen, has the deepest interest in the preservation of this right. I ask the gentleman to lay his finger on the clause of the Constitution by which it has been surrendered. Where is it declared, or from what can it be inferred, that because the States have yielded to the Federal Government their citizens to execute public trusts under the General Government, that, therefore, they have yielded the rights of those citizens to express their opinions freely concerning public men and public measures? The proposition appears to me to be full of absurdity. In regard to the qualifications of electors, the States have granted no power whatever to the United States. This subject they have expressly reserved from federal control. The legislatures of the States, and they alone, under the Constitution, possess the power of prescribing the qualifications of the electors of members of the House of Representatives in Congress. They have reserved the same power to themselves in regard to voters for the choice of electors of President and Vice President. What, then, does this bill attempt? To separate two things which reason and the Almighty himself have united beyond all power of separation. You might as well attempt, by arbitrary laws, to separate human life from the power of breathing the vital air, as to detach the elective franchise from freedom of thought, of speech, and of the press. In this atmosphere alone can it live, and move, and have its being. To speak his thoughts is every free elector’s inalienable right. Freedom of speech and of the press are both the sword and shield of our Republican institutions. To declare that when the citizens of a State accept office from the General Government, they thereby forfeit this right to express an opinion in relation to the public concerns of their own State and of the nation, is palpable tyranny. In the language referred to in the report, “it puts bridles into their mouths and saddles upon their backs,” and degrades them from the rank of a reasoning animal. The English precedent of the Senator was wiser, much wiser, in depriving these officers of the right of suffrage altogether. It does not attempt to separate by the power of man two things which Heaven itself has indissolubly united.