Abridgment of the Debates of Congress, from 1789 to 1856, Vol. 2 (of 16)

by United States. Congress

It is asserted by the select committee, and by every body who has gone before them in this discussion, that the "freedom of the press," according to the universally received acceptation of the expression, means only an exemption from all previous restraints on publication, but not to an exemption from any punishment Government pleases to inflict for what is published. This definition does not at all distinguish between publications of different sorts, but leaves all to the regulation of the law, only forbidding Government to interfere until the publication is really made. The definition, if true, so reduces the effect of the amendment, that the power of Congress is left unlimited over the productions of the press, and they are merely deprived of one mode of restraint.

The amendment was certainly intended to produce some limitation to legislative discretion, and it must be construed so as to produce such an effect, if it is possible. This is required in the construction of all solemn acts, but must be more particularly due to this on account of the various examinations it underwent, previous to its adoption. It was first recommended by the conventions of several States, was adopted by two-thirds of both Houses of Congress, and finally ratified by three-fourths of the State Legislatures. To give it such a construction as will bring it to a mere nullity, would violate the strongest injunctions of common sense and decorum; and yet that appears to me to be the effect of the construction adopted by the committee. If subsequent punishments are sufficient to deter printers from publishing any thing which is prohibited, there is no stint to the power of Congress; and yet, it appears to me that a limitation was clearly intended. I cannot doubt the power of Government to bend printers to their will by subsequent punishments, when all other offences are restrained only in this way. Government does not punish men for keeping instruments with which they can commit murder, but contents itself with punishing murder when committed. The effect of the amendment, says the committee, is to prevent Government taking the press from its owner; but how is their power lessened by this, when they may take the printer from his press and imprison him for any length of time, for publishing what they choose to prohibit, although it may be ever so proper for public information? The result is, that Government may forbid any species of writing, true as well as false, to be published; may inflict the heaviest punishments they can devise for disobedience; and yet we are very gravely assured that this is "the freedom of the press."

But it is worth while to trace this definition to the place from whence it is taken, and inquire into the circumstances in which it is used. Blackstone, in his Commentaries on the Laws of England, after stating the law respecting libels, which is, that every thing which brings a magistrate into contempt is punishable, whether true or false, goes on to say, that this law is not inconsistent with the liberty of the press; and then gives a definition of the liberty of the press in the manner it is used by the committee. The meaning of all Blackstone has said is this, that the press has the proper degree of liberty in England, and that libels, whether true or false, ought to be punished there. Let us apply what he has called a definition, in the way he used it, to the legislation of the United States. Suppose the present question was, whether we should punish truth, as well as falsehood, in libels, would gentlemen venture to tell us that it was consistent with the freedom of the press, or that the degree of freedom proper for the United States would remain? I venture to say they would not. Ought they, then, to support the doctrine which hereafter may be practised on to the full extent? Is there not reason to believe gentlemen hope to conceal the full extent of their principles, by bringing them into operation only by degrees? But, sir, it is a manifest abuse of Blackstone's authority to apply it as it has been here applied. He had advanced into the fourth volume of a panegyric on the laws of England, and after stating the law on this subject, makes a theory to justify the actual state of the law. It must be remarked, in his justification, that the nature of their government justifies more rigor than is consistent with ours, and that the existing law, of which he was writing the praise, had been greatly softened in practice, by public opinion. In this case, there was no danger of impairing the security to liberty, intended by the constitution; for England has no constitution but what may be altered by the Parliament, and therefore no great precision was necessary with respect to general principles. Indeed, his observations on this subject ought to be called a theory, and a theory adapted merely to his own country, and not a definition. Very different are the circumstances in which his doctrine has been applied here. A restrictive clause of the Constitution of the United States, by its application, is made to mean nothing, and when it is clearly the intention of the constitution to put, at least, some acts of the press out of the control of Congress, by the authority of this writer, all are subjected to their power.

But it is said, that the States have all adopted the same construction which is given to freedom of the press by the committee, for that all the State constitutions provide for it, and yet the law of libels remains part of their codes. If this is fact, about which however I am uninformed, it is easily to be accounted for. At the Revolution, the State laws were either the law of England, or were built on it, and, of course, they would contain the monarchical doctrine respecting libels. When the State constitutions were formed, the old law was continued in force indiscriminately, and only a general exception made of what should be found inconsistent with the State constitutions. Now, to prove that the States have considered the law of libels consistent with the freedom of the press, gentlemen should show that this law has been practised on since the Revolution, and that the attention of the States had been called to it by its execution, and that it still remains in force. I believe this cannot be done. So far as I know, it has been a dead letter. I mean the law of libels against magistrates, and if so, the argument is reversed, and is wholly on my side. The terms of this law furnish one of the best proofs of the truth of my opinion; for the framers of it, wound up as they have been, in their notions about Government, since the adoption of the State Governments, endeavored to take a middle course between real liberty and the State law, which is supposed to continue in force, and have studiously endeavored to conceal that their doctrine leads to the same thing by constantly pretending that their law is to punish only falsehood. This is a plain admission, that even now, public opinion would not support what they pretend is the law of each State. But from the argument before urged, I think it must be admitted, that if the States had so understood it, the construction could not be extended to this amendment. No solemn instrument can be construed so as to destroy it. I have seen somewhere, and I beg leave here to remark on it, the authority of the Convention who formed the constitution of Virginia, quoted to justify this construction. That Convention is said to have passed a law similar to the law of Congress, after having provided for the liberty of the press in their bill of rights. Let us examine that law. The first section is to punish those who shall "by any word, open deed, or act, advisedly and willingly maintain or defend the authority, jurisdiction, or power of the King, or Parliament of Great Britain, heretofore claimed over this Colony, or shall attribute any such authority," &c. This section, passed at the beginning of the most awful contest in which ever man was engaged, a contest for the right of self-government against one of the most powerful nations in the world, was to establish what? Not the inviolability of the Governor of the State, nor of the majority of either House of the Legislature, but to punish men who should promote resistance to the right of the people to govern themselves, to the principle of the constitution, to the republican principle. So different is this from the object of the law of Congress, that it would have been impossible to believe that they should have been compared, if we had not seen it done. All argument must be thrown away on gentlemen who do not feel the difference between the respect due to the constitution, to the right of self-government in the people, and that which is due to the organs of administration, who cannot only deserve contempt, but who are to be removed with disgrace, according to the constitution itself, when they misbehave. By the second section of this law, those were to be punished "who should maliciously and advisedly endeavor to excite the people to resist the Government of the colony, or persuade them to return to a dependence on the Crown of Great Britain, or maliciously and advisedly to excite or raise tumults and disorders in the State, or maliciously and advisedly terrify and discourage the people from enlisting in the service of the Commonwealth, or dispose them to favor the enemy." The design of this section is apparently the same with the former. Every act of ill-will to the existing Government, is immediately followed by one tending to submission to Great Britain. These acts are, however, out of the question, for they belong to the class enumerated in the first section of the sedition law, which nobody wishes to repeal, as the committee declare. But if the law had any analogy to the law of Congress, it would be improper to quote it; for it is well known that our Revolution made a resort to expedients necessary in a variety of instances, which could not be justified by principle, and that for a time personal rights were compelled to bend before public necessity.

A distinction is very frequently relied on, between the freedom and the licentiousness of the press, which it is proper to examine. This seems to me to refute every other argument which is used on this subject; it amounts to an admission that there are some acts of the press which Congress ought not to have power to restrain, and that by the amendment they are prohibited to restrain these acts. Now, to justify any act of Congress, they ought to show the boundary between what is prohibited and what is permitted, and that the act is not within the prohibited class. The constitution has fixed no such boundary, therefore they can pretend to no power over the press, without claiming the right of defining what is freedom, and what is licentiousness, and that would be to claim a right which would defeat the constitution; for every Congress would have the same right, and the freedom of the press would fluctuate according to the will of the Legislature. This is, therefore, only a new mode of claiming absolute power over the press.

But it is said, that the phraseology of the amendment proves that the framers of it considered the freedom of the press as limited, otherwise they would have used the same words in speaking of the freedom of the press which they use in speaking of religious establishments. This argument is certainly fanciful; but it shall be considered, as it is my design to leave no argument, which I recollect to have seen, unanswered. It is plain the writer of the amendment intended to indulge his copiousness of expression, or that he had been accustomed to use certain words in a particular connection. The amendment says, in speaking of religion, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The change of expression, according to the argument, ought to have some new object; and yet there can be no doubt that if the word prohibiting was dropped, the provision would be the same. But the argument will lose all force when the amendment is read to the end, and it seems to have arisen merely from the committee having stopped in the middle of it, and lost sight of the latter part. It says, "or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and petition the Government for a redress of grievances." The argument is that the word abridging, as it is distinguished from respecting, implies that the freedom of the press was before limited; but, if this is true, it must also be the case with the right of peaceably assembling and petitioning, &c. Is this pretended, and may we hereafter expect to have a definition of the right of petitioning, which will put it also under the control of Congress?

I think I have answered every construction of the amendment which can prevent its being completely prohibitory of all legislation by Congress on the subject of the press, unless there was some existing restraint under the Constitution of the United States, at the time of adopting the amendment. To this inquiry I now proceed.

It is said, there is a common law which makes part of the law of the United States, which restrained the press more than the act of Congress has done, and that therefore there is no abridgment of its freedom. What this common law is I cannot conceive, nor have I seen any body who could explain himself when he was talking of it. It certainly is not a common law of the United States, acquired as that of England was, by immemorial usage. The standing of the Government makes this impossible. It cannot be a code of laws adopted because they were universally in use in the States, for the States had no uniform code; and if they had, it could hardly become, by implication, part of the code of a Government of limited powers, from which every thing is expressly retained, which is not given. There never was a uniform code of laws at any time among the States. Their settlement took place at different times, and the law of England was adopted up to the respective settlements, in the whole or by selection. Virginia recognized the common law, properly so called, and the statutes to the 4th James I.; Maryland, the common law, and statutes up to the time of her settlement; and South Carolina, I am told, never acknowledged any of the English statutes to be in force, except what were specially adopted by law. With this dissimilarity at the commencement, there can be no doubt that the decisions of courts, and the statutes which were constantly passing, must have made the codes of the several States altogether unlike at the time of adopting the Federal Government. Is it the law of England, at any particular period, which is adopted? It cannot be believed that this was a universal favorite; for it had been greatly altered in every State, to adapt it to their situation, and it cannot be believed that after altering it under the instruction of experience, it was intended to bring it again into force. But the nature of the law of England makes it impossible that it should have been adopted in the lump into such a Government as this is; because it was a complete system for the management of all the affairs of a country. It regulated estate, punished all crimes, and, in short, went to all things for which laws are necessary. It might be more properly considered as the measure of the powers left with the States. But how was this law adopted? Was it by the constitution? If so, it is immutable and incapable of amendment. In what part of the constitution is it declared to be adopted? Was it adopted by the courts? From whence do they derive their authority? The constitution, in the clause first cited, relies on Congress to pass all laws necessary to enable the courts to carry their powers into execution; it cannot, therefore, have been intended to give them a power not necessary to their declared powers. There does not seem to me the smallest pretext for so monstrous an assumption; on the contrary, while the constitution is silent about it, every fair inference is against it. It was thought necessary to adopt expressly many of the ancient and most valuable principles of the law of England, such as trial by jury, and the writ of habeas corpus; and wherever the constitution gives cognizance of crimes, which were known in the law, it requires Congress to define them, and direct the punishment, except in the case of treason, which it defines itself. Perhaps it may be said, that the law of England with respect to libel was in force in all the States, and that therefore it is to be considered as adopted. When we recollect what that law is, that it punishes truth as well as falsehood, and that the Congress of 1798 did not think proper to enact its provisions in the full extent, it may be fairly denied that it could have accorded with the jealous republican temper of the Convention who adopted the constitution. If the common law was adopted on this subject, it was adopted entire as it then existed, and must remain for ever unchangeable as part of the constitution. The power of juries must be the same that it was then, and no more, and the improvement which was immediately afterwards produced by public opinion in that respect, in England, will be denied to us, and we may even have to regret the want of some of the provisions of the present odious law; but there is too little reason for the suggestion of there being a common law in the United States, to need a refutation. If there was a uniformity in the law respecting libels, it is one of the strongest evidences of what was before said, that this whole doctrine of libels was obsolete; for nobody can doubt, after hearing what it is, that it must have undergone considerable changes, if it had ever been practised on.

The committee seem to suppose, for I confess it is very difficult to comprehend this part of their argument, that the law of libels is adopted by that part of the constitution which extends the judicial power to cases of law and equity arising under the constitution; for this is the expression of the part referred to by them, and not "offences arising under the constitution," as they have quoted it. How this can be inferred, I cannot conceive. If the expression was "offences," as they assert, still it would mean offences on which Congress was directed by the constitution to legislate; but, as the expression really is, the cases are innumerable which come within it. See "The Federalist," vol. II., for an explanation of this part of the constitution. It is there said: "It has been asked, what is meant by cases arising under the constitution, in contradistinction from those arising under the laws of the United States? All the restrictions on the authority of the State Legislature furnish examples of it," &c. For the opinion of the same writer, as to the force of the common law in the United States, see same volume, page 345, and the two following pages, in which he answers the objection to an omission of its provisions, and admits that it is not adopted by the constitution.