This is one object of complaint; the other is against newspaper publications. The gentleman from South Carolina has said, that provided the law is clear and well defined, and the trial by jury is preserved, he knew of no law which could infringe the liberty of the press. If this be true, Congress might restrict all printing at once. We have, said he, nothing to do but to make the law precise, and then we may forbid a newspaper to be printed, and make it death for any man to attempt it!
If this be the extent to which this bill goes, it is not only an abridgment of the liberty of the press, which the constitution has said shall not be abridged; but it is a total annihilation of the press. Were he then to withdraw his motion, he should consider himself guilty of treason; by his consent, so unconstitutional a measure should not progress an inch. However unsuccessful he might be, he would oppose it in every stage.
Mr. Otis supposed the opposition to this bill arose chiefly from prejudice, as gentlemen could not be so well acquainted with the bill from hearing it once read, as to say there are no parts of it which ought to become law. He had not nicely examined the merits of this bill, but he heard that it contained several important provisions, and he should certainly be opposed to a rejection of it without a perusal. To vote for such a motion, would be to say, we will not examine the bill; and yet he believed there was nothing in it contrary to the common law of the several States of the Union.
Mr. Macon had no doubt on his mind that this bill was in direct opposition to the constitution; and that if a law like this was passed, to abridge the liberty of the press, Congress would have the same right to pass a law making an establishment of religion, or to prohibit its free exercise, as all are contained in the same clause of the constitution; and, if it be violated in one respect, it may as well be violated in others. Several laws had been passed which he thought violated the spirit, but none before this which directly violated the letter of the constitution; and, if this bill was passed, he should hardly think it worth while in future to allege against any measure that it is in direct contradiction to the constitution.
Laws of restraint, like this, Mr. M. said, always operate in a contrary direction from that which they were intended to take. The people suspect something is not right, when free discussion is feared by government. They know that truth is not afraid of investigation.
If, said Mr. M., the people are so dissatisfied with Government as some gentlemen would have it believed, but which he did not credit, by passing a law like the present you will force them to combine together; they will establish corresponding societies throughout the Union, and communications will be made in secret, instead of publicly, as had been the case in other countries. He believed the people might be as safely trusted with free discussion, as they whom they have chosen to do their business.
It was a most extraordinary thing, Mr. M. said, that at a time like this, when some gentlemen say we are at war, and when all believe we must have war, that Congress are about to pass a law which will produce more uneasiness, more irritation, than any act which ever passed the Legislature of the Union.
No gentleman, in support of the bill, has gone into the constitutional question; no one has shown what part of the constitution will authorize the passage of a law like this. He believed none such could be adduced.
The gentleman from Massachusetts (Mr. Otis) has said, this bill is conformable to the common law. He knew persons might be prosecuted for a libel under the State Governments; but if this power exists in full force at present, what necessity can there be for this bill?
Mr. McDowell was in hopes that when the third article of the amendments to the constitution had been read, that the unconstitutionality of this bill would have been so evident, that it would have been rejected without debate.