Now, sir, I shall say a few words concerning the Virginia and Kentucky resolutions of 1798; although the Senator from Virginia may consider it sacrilege in me to discuss this subject. I have at all times, ever since I read and understood these resolutions, held to the political doctrines which they inculcate; and I can assure the Senator I have studied them with care. I will read a few extracts from the Virginia resolutions:
The General Assembly, in the third resolution, “doth explicitly and peremptorily declare, that it views the powers of the Federal Government, as resulting from the compact, to which the States are parties, as limited by the plain sense and intention of the instrument constituting that compact—and as no further valid than they are authorized by the grants enumerated in that compact;” and in the fourth resolution, they express their deep regret, “that a spirit has, in sundry instances, been manifested by the Federal Government, to enlarge its powers by forced constructions of the constitutional charter which defines them.” In regard to the sedition law, they declare that its passage was the exercise of “a power not delegated by the Constitution; but, on the contrary, expressly and positively forbidden by one of the amendments thereto; a power, which, more than any other, ought to produce universal alarm; because it is levelled against that right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed the only effectual guardian of every other right.”
Now, sir, what is the essence, what is the root of all these resolutions? It consists of one plain, clear, fundamental principle, from which all others proceed as branches. It is this, that patriotism—that the permanence of our institutions—that all the principles of correct construction require, that the Federal Government shall be limited to the express powers granted to it by the States, and that no implied powers shall ever be exercised, except such as are evidently and plainly necessary to carry the express powers into effect. This is the foundation, the corner stone, the vital principle of all the Virginia and Kentucky resolutions. It was because the sedition law violated this principle, that the Republican statesmen of Virginia and Kentucky opposed it with such a determined spirit. It was, as Mr. Madison says in his report, because such a loose construction of the Constitution as would bring this law within its pale, would lay the foundation from which the friends of a strong central government might proceed to rob the States and the people of their liberties, and establish a consolidated government. It was the first stride towards a limited monarchy.
The Federalists of that day honestly believed that the Government should be strengthened at the centre, and that the pulsations of the heart were not powerful enough to extend a wholesome circulation to the extremities. They, therefore, used every effort to enlarge the powers of the Federal Government by construction. This was the touchstone which then divided parties, and which will continue to divide them until, which God forbid, the Government shall cease to exist.
Now, sir, if I have correctly stated the principle which runs through all the Virginia and Kentucky resolutions, I would ask whether the bill now before the Senate is not a more palpable violation of this principle than the sedition law. I shall now proceed to establish this position.
In the first place, then, the sedition law did not interfere with the freedom of speech. The citizen might speak what he thought and say what he pleased without subjecting himself to its penalties. Under the despotisms of Europe there is a strict censorship over the press. Everything written for publication must undergo the supervision and correction of a Government censor before it can be published. In the most despotic countries, however, some indulgence is granted to the liberty of speech on political questions. The bill establishes more than a universal censorship over the freedom of speech. It compels the officer to be silent altogether on political questions. He dare not utter a word without incurring its penalties. In this country, every public question connects itself with our elections. If there be two candidates for any State Legislature, and the election should turn upon internal improvements, or the division of a county, the officer is as much exposed to the universal sweep of this bill, in case he utters a word in favor of the one or against the other, as though it were the Presidential election. He is equally doomed to silence in the one case as in the other. Such tyranny is unknown to the sedition law.
Whilst I was abroad some years ago, I heard an anecdote highly creditable to the King of Prussia, who, although a despot, is, by his subjects, called a Democratic King. The revolutionary war of Poland against Russia was then raging, and the Polish subjects of the Prussian king were highly excited in favor of their brethren under the dominion of Russia. They talked very freely in favor of taking part in the contest; of casting off the Prussian yoke, and uniting with their brethren in re-establishing the independence of Poland. The counsellors of the king advised him to prohibit and to punish this freedom of speech. He answered that he would do no such thing; that he would suffer them to express their opinions, and that there was less danger that they would rise against his government than if they remained silent. This was the remark of a liberal and a wise man, who had been instructed in the school of adversity.
But, in this favored land of liberty, in the nineteenth century, we are about to deny to our citizens the privilege of speaking their thoughts. This is the first attempt which I have ever known or read of, either in England or in this country, to punish the expression of opinions relative to candidates for office as a crime. If ever this was done in England, even in the reigns of the Tudors or the Stuarts, it must have been a Star Chamber offence. In the more enlightened despotisms of Europe, they will learn, with astonishment, that a bill has been introduced into the Senate of the United States, proposing to punish a postmaster for expressing his opinion in favor of a candidate for office, as if this were an enormous crime, with a fine of five hundred dollars, and a perpetual disability to hold any other office under the Government. Even under the common law of England, oral slander is not punishable as a crime. The party injured by it is left to his private remedy.
In the second place, the sedition law, although it did abridge, did not, like this bill, totally destroy the freedom of the press. The sedition law deprived no man of the right or the power, in the first instance, to write and publish to the world any strictures upon the Government which he might think proper. To be sure, if in exercising this privilege he violated the truth, he was made responsible to its penalties. This bill reaches the very fountains of thought. Its object is to prevent its victims from speaking or writing at all. No matter how innocent, or praiseworthy, or true, may be the conversation or the publication, still if it can be construed into an endeavor to persuade any elector to give his vote for a particular candidate, he is doomed to a fine of five hundred dollars, and a perpetual disability to hold office.
Again: under the sedition law, the accused was permitted to protect himself against its penalties, by giving the truth of his charge in evidence. Any individual who had accused the President of the United States of being a bad and dangerous man, who was aiming a blow at the liberties of his country, and desired to usurp the powers of the Government by a latitudinarian construction of the Constitution, was protected by this law from all responsibility, provided he could prove the truth of these allegations to the satisfaction of a court and jury of his countrymen. Not so the present bill. If a postmaster, or a land officer, or a weigher, or a gauger, should endeavor to dissuade any elector from voting for a particular candidate, and should say that this candidate has been guilty of a crime, and therefore his election would be dangerous to the country, and is brought before a court and jury for trial under this bill, he must be convicted, although he may be able to prove the truth of his charge by evidence as clear as a sunbeam. The old English maxim, “the greater the truth the greater the libel,” is again revived, with some show of reason; because the language of truth would be more powerful in persuading or dissuading an elector than that of falsehood. Although every member of the court and the jury might personally know that what the accused had uttered was the truth, yet, under the provisions of this bill, they would be bound to convict and sentence him to suffer its penalties.