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ON THE PROPOSED REPEAL OF THE SEDITION LAW—HOUSE OF REPRESENTATIVES, FEB. 25, 1799 MR. CHAIRMAN:

The Select Committee had very truly stated that only the second and third sections of the act are complained of; that the part of the law which punishes seditious acts is acquiesced in, and that the part which goes to restrain what are called seditious writings is alone the object of the petitions. This part of the law is complained of as being unwarranted by the Constitution, and destructive of the first principles of republican government. It is always justifiable, in examining the principle of a law, to inquire what other laws can be passed with equal reason, and to impute to it all the mischiefs for which it may be used as a precedent.

In this case, little inquiry is left for us to make, the arguments in favor of the law carrying us immediately and by inevitable consequence to absolute power over the press.

It is not pretended that the Constitution has given any express authority, which they claim, for passing this law, and it is claimed only as implied in that clause of the Constitution which says: "Congress shall have power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof." It is clear that this clause was intended to be merely an auxiliary to the powers specially enumerated in the Constitution; and it must, therefore, be so construed as to aid them, and at the same time to leave the boundaries between the General Government and the State governments untouched. The argument by which the Select Committee have endeavored to establish the authority of Congress over the press is the following: "Congress has power to punish seditious combinations to resist the laws, and therefore Congress must have the power to punish false, scandalous, and malicious writings; because such writings render the Administration odious and contemptible among the people, and by doing so have a tendency to produce opposition to the laws." To make it support the construction of the committee, it should say that "Congress shall have power over all acts which are likely to produce acts which hinder the execution of," etc. Our construction confines the power of Congress to such acts as immediately interfere with the execution of the enumerated powers of Congress, because the power can only be necessary as well as proper when the acts would really hinder the execution. The construction of the committee extends the power of Congress to all acts which have a relation, ever so many degrees removed, to the enumerated powers, or rather to the acts which would hinder their execution. By our construction, the Constitution remains defined and limited, according to the plain intent and meaning of its framers; by the construction of the committee, all limitation is lost, and it may be extended over the different actions of life as speculative politicians may think fit. What has a greater tendency to fit men for insurrection and resistance to government than dissolute, immoral habits, at once destroying love of order, and dissipating the fortune which gives an interest in society? The doctrine that Congress can punish any act which has a tendency to hinder the execution of the laws, as well as acts which do hinder it, will, therefore, clearly entitle them to assume a general guardianship over the morals of the people of the United States. Again, nothing can have a greater tendency to ensure obedience to law, and nothing can be more likely to check every propensity to resistance to government, than virtuous and wise education; therefore Congress must have power to subject all the youth of the United States to a certain system of education. It would be very easy to connect every sort of authority used by any government with the well-being of the General Government, and with as much reason as the committee had for their opinion, to assign the power to Congress, although the consequence must be the prostration of the State governments.

But enough has been said to show the necessity of adhering to the common meaning of the word "necessary" in the clause under consideration, which is, that the power to be assumed must be one without which some one of the enumerated powers cannot exist or be maintained. It cannot escape notice, however, that the doctrine contended for, that the Administration must be protected against writings which are likely to bring it into contempt, as tending to opposition, will apply with more force to truth than falsehood. It cannot be denied that the discovery of maladministration will bring more lasting discredit on the government of a country than the same charges would if untrue. This is not an alarm founded merely on construction, for the governments which have exercised control over the press have carried it the whole length. This is notoriously the law of England, whence this system has been drawn; for there truth and falsehood are alike subject to punishment, if the publication brings contempt on the officers of government.

The law has been current by the fair pretence of punishing nothing but falsehood, and by holding out to the accused the liberty of proving the truth of the writing; but it was from the first apprehended, and it seems now to be adjudged (the doctrine has certainly been asserted on this floor), that matters of opinion, arising on notorious facts, come under the law. If this is the case, where is the advantage of the law requiring that the writing should be false before a man shall be liable to punishment, or of his having the liberty of proving the truth of his writing? Of the truth of facts there is an almost certain test; the belief of honest men is certain enough to entitle it to great confidence; but their opinions have no certainty at all. The trial of the truth of opinions, in the best state of society, would be altogether precarious; and perhaps a jury of twelve men could never be found to agree in any one opinion. At the present moment, when, unfortunately, opinion is almost entirely governed by prejudice and passion, it may be more decided, but nobody will say it is more respectable. Chance must determine whether political opinions are true or false, and it will not unfrequently happen that a man will be punished for publishing opinions which are sincerely his, and which are of a nature to be extremely interesting to the public, merely because accident or design has collected a jury of different sentiments.

Is the power claimed proper for Congress to possess? It is believed not, and this will readily be admitted if it can be proved, as I think it can, that the persons who administer the government have an interest in the power to be confided opposed to that of the community. It must be agreed that the nature of our government makes a diffusion of knowledge of public affairs necessary and proper, and that the people have no mode of obtaining it but through the press. The necessity for their having this information results from its being their duty to elect all the parts of the Government, and, in this way, to sit in judgment over the conduct of those who have been heretofore employed. The most important and necessary information for the people to receive is that of the misconduct of the Government, because their good deeds, although they will produce affection and gratitude to public officers, will only confirm the existing confidence, and will, therefore, make no change in the conduct of the people. The question, then, whether the Government ought to have control over the persons who alone can give information throughout a country is nothing more than this, whether men, interested in suppressing information necessary for the people to have, ought to be entrusted with the power, or whether they ought to have a power which their personal interest leads to the abuse of. I am sure no candid man will hesitate about the answer; and it may also safely be left with ingenuous men to say whether the misconduct which we sometimes see in the press had not better be borne with, than to run the risk of confiding the power of correction to men who will be constantly urged by their own feelings to destroy its usefulness. How long can it be desirable to have periodical elections for the purpose of judging of the conduct of our rulers, when the channels of information may be choked at their will?

But, sir, I have ever believed this question as settled by an amendment to the Constitution, proposed with others for declaring and restricting its powers, as the preamble declares, at the request of several of the States, made at the adoption of the Constitution, in order to prevent their misconstruction and abuse. This amendment is in the following words: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, 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." There can be no doubt about the effect of this amendment, unless the "freedom of the press" means something very different from what it seems; or unless there was some actual restraint upon it, under the Constitution of the United States, at the time of the adoption of this amendment, commensurate with that imposed by this law. Both are asserted, viz., that the "freedom of the press" has a defined, limited meaning, and that the restraints of the common law were in force under the United States, and are greater than those of the act of Congress, and that, therefore, either way the "freedom of the press" is not abridged.

It is asserted by the select committee, and by everybody 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 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. 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. The effect of the amendment, say 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 maybe 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."

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. Nov, 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.

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 anybody 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. Is it the law of England, at any particular period, which is adopted? 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 estates, punished all crimes, and, in short, went to all things for which laws were necessary. 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 whom 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.

Upon the whole, therefore, I am fully satisfied that no power is given by the Constitution to control the press, and that such laws are expressly prohibited by the amendment. I think it inconsistent with the nature of our Government that its administration should have power to restrain animadversions on public measures, and for protection from private injury from defamation the States are fully competent. It is to them that our officers must look for protection of persons, estates, and every other personal right; and, therefore, I see no reason why it is not proper to rely upon it for defence against private libels.