[302] Calhoun had for some time been interested in the problem, his attitude being indicated in September, when he wrote to the editor of the Washington Telegraph: “The indications are that the south will be unanimous in their resistance and that their resistance will be of the most determined character, even to the extent of disunion; if that should be necessary to arrest the evil. I trust, however, it may be arrested far short of such extremity.” Niles’ Register, vol. xlix, 49.
[303] 12 Debates of Congress, 383; Calhoun’s Works, vol. v, p. 191.
[304] 1 Stat. L. 596.
[305] Italics are mine.
[306] The subject has been given very adequate treatment by Mr. Henry Wolfe Bilké in his paper on “The Jurisdiction of the United States over Seditious Libel,” 50 American Law Register, 1. Mr. Bilké says: “The power to punish, for seditious libel, it is submitted, results to the United States, first from its inherent right to adopt such measures as are necessary for its self-preservation, and second, from its right to adopt such measures as are necessary to secure its officers in the due administration of their duties.” While it is the better view that Congress has no powers inherent in sovereignty (see 1 Willoughby on the Constitution, 66), the Supreme Court apparently rested its decisions in the Chinese Exclusion Cases [sub. nom. Chae Chan Ping v. U. S., 130 U. S. 581 (1888), and especially Fong Yue Ting v. U. S., 149 U. S. 698 (1892)] on a contrary theory. These cases furnish the authority for the first conclusion just quoted, while the case of In Re Neagle, 135 U. S. 1 (1889), is made the basis for the second reason why it is within the power of the United States to punish sedition. At the time of the passage of the act, it had not yet been decided that the federal courts possessed no common law criminal jurisdiction. U. S. v. Hudson & Goodwin, 7 Cranch 32 (1812). The Federalists maintained that such jurisdiction did exist, and that since sedition was a common law offence, Congress could make it statutory and thus aid the courts in its punishment.
[307] Patterson, Liberty of the Press, etc., p. 61. Professor Schofield is of the opinion (Freedom of the Press in the United States, p. 87) that “Liberty of the Press as declared in the First Amendment and the English common-law crime of sedition cannot co-exist”; but certain it is, that without impairing the freedom of the press, Congress may punish seditious utterances counseling the use of force or unlawful means, and falsely defaming public officials.
[308] The weight of authority upholds this view. See Bilké, op. cit.; 2 Willoughby on the Constitution, 845; Von Holst (Constitutional History, vol. i, 142) considers the law “unquestionably unconstitutional” and this opinion is supported by 2 Tucker on the Constitution, 669. Story (Commentaries, vol. iii, 744) declines to commit himself, but intimates that the law was valid. The chief objection, as I have said, was to the very broad terms of the act.
[309] 12 Debates of Congress, 383. Postmasters were further enjoined “to coöperate, as far as may be, to prevent the circulation of any pamphlet” where it was forbidden by local laws.
[310] Ex parte Jackson and Lewis Publishing Co. v. Morgan.
[311] 12 Debates of Congress, 1721.