already been the prophet of events, and the cries of future victims have
already reached us. The Western inhabitants are not a silent and
uncomplaining sacrifice. The voice of humanity issues from the shade of
their wilderness. It exclaims that, while one hand is held up to reject
this treaty, the other grasps a tomahawk. It summons our imagination to
the scenes that will open. It is no great effort of the imagination to
conceive that events so near are already begun. I can fancy that I
listen to the yells of savage vengeance, and the shrieks of torture.
Already they seem to sigh in the west wind-already they mingle with
every echo from the mountains.
It is not the part of prudence to be inattentive to the tendencies of
measures. Where there is any ground to fear that these will prove
pernicious, wisdom and duty forbid that we should underrate them. If we
reject the treaty, will our peace be as safe as if we executed it with
good faith? I do honor to the intrepid spirits of those who say it will.
It was formerly understood to constitute the excellence of a man's faith
to believe without evidence and against it.
But, as opinions on this article are changed, and we are called to act
for our country, it becomes us to explore the dangers that will attend
its peace, and to avoid them if we can.
Is there any thing in the prospect of the interior state of the country
to encourage us to aggravate the dangers of a war? Would not the shock
of that evil produce another, and shake down the feeble and then
unbraced structure of our government? Is this a chimera? Is it going off
the ground of matter of fact to say, the rejection of the appropriation
proceeds upon the doctrine of a civil war of the departments? Two
branches have ratified a treaty, and we are going to set it aside. How
is this disorder in the machine to be rectified? While it exists its
movements must stop, and when we talk of a remedy, is that any other
than the formidable one of a revolutionary one of the people? And is
this, in the judgment even of my opposers, to execute, to preserve the
constitution and the public order? Is this the state of hazard, if not
of convulsion, which they can have the courage to contemplate and to
brave, or beyond which their penetration can reach and see the issue?
They seem to believe, and they act as if they believed, that our union,
our peace, our liberty, are invulnerable and immortal--as if our happy
state was not to be disturbed by our dissentions, and that we are not
capable of falling from it by our unworthiness. Some of them have, no
doubt, better nerves and better discernment than mine. They can see the
bright aspects and the happy consequences of all this array of horrors.
They can see intestine discords, our government disorganized, our wrongs
aggravated, multiplied, and unredressed, peace with dishonor, or war
without justice, union, or resources, in "the calm lights of mild
philosophy."
But whatever they may anticipate as the next measure of prudence and
safety, they have explained nothing to the house. After rejecting the
treaty, what is to be the next step? They must have foreseen what ought
to be done; they have doubtless resolved what to propose. Why then are
they silent? Dare they not avow their plan of conduct, or do they wait
till our progress toward confusion shall guide them in forming it?
Let me cheer the mind, weary, no doubt, and ready to despond on this
prospect, by presenting another, which it is yet in our power to
realize. Is it possible for a real American to look at the prosperity of
this country without some desire for its continuance--without some
respect for the measures which, many will say, produced, and all will
confess, have preserved, it? Will he not feel some dread that a change
of system will reverse the scene? The well-grounded fears of our
citizens in 1794 were removed by the treaty, but are not forgotten. Then
they deemed war nearly inevitable, and would not this adjustment have
been considered, at that day, as a happy escape from the calamity? The
great interest and the general desire of our people, was to enjoy the
advantages of neutrality. This instrument, however misrepresented,
affords America that inestimable security. The causes of our disputes
are either cut up by the roots, or referred to a new negotiation after
the end of the European war. This was gaining everything, because it
confirmed our neutrality, by which our citizens are gaining everything.
This alone would justify the engagements of the government. For, when
the fiery vapors of the war lowered in the skirts of our horizon, all
our wishes were concentred in this one, that we might escape the
desolation of the storm. This treaty, like a rainbow on the edge of the
cloud, marked to our eyes the space where it was raging, and afforded,
at the same time, the sure prognostic of fair weather. If we reject it,
the vivid colors will grow pale,--it will be a baleful meteor portending
tempest and war.
Let us not hesitate, then, to agree to the appropriation to carry it
into faithful execution.
Thus we shall save the faith of our nation, secure its peace, and
diffuse the spirit of confidence and enterprise that will augment its
prosperity. The progress of wealth and improvement is wonderful, and,
some will think, too rapid. The field for exertion is fruitful and vast,
and if peace and good government should be preserved, the acquisitions
of our citizens are not so pleasing as the proofs of their industry--as
the instruments of their future success. The rewards of exertion go to
augment its power. Profit is every hour becoming capital. The vast crop
of our neutrality is all seed-wheat, and is sown again to swell, almost
beyond calculation, the future harvest of prosperity. And in this
progress, what seems to be fiction is found to fall short of experience.
I rose to speak under impressions that I would have resisted if I could.
Those who see me will believe that the reduced state of my health has
unfitted me, almost equally for much exertion of body or mind.
Unprepared for debate, by careful reflection in my retirement, or by
long attention here, I thought the resolution I had taken to sit silent,
was imposed by necesity, and would cost me no effort to maintain. With a
mind thus vacant of ideas, and sinking, as I really am, under a sense of
weakness, I imagined the very desire of speaking was extinguished by the
persuasion that I had nothing to say. Yet, when I come to the moment of
deciding the vote, I start back with dread from the edge of the pit into
which we are plunging. In my view, even the minutes I have spent in
expostulation have their value, because they protract the crisis, and
the short period in which alone we may resolve to escape it.
I have thus been led, by my feelings, to speak more at length than I
intended. Yet I have, perhaps, as little personal interest in the event
as any one here. There is, I believe, no member who will not think his
chance to be a witness of the consequences greater than mine. If,
however, the vote shall pass to reject, and a spirit should rise, as it
will, with the public disorders, to make confusion worse confounded,
even I, slender and almost broken as my hold upon life is, may outlive
the government and constitution of my country.
JOHN NICHOLAS
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.
THE RISE OF DEMOCRACY.
The inaugural address of President Jefferson has been given the first
place under this period, notwithstanding the fact that it was not at all
an oration. The inaugural addresses of presidents Washington and Adams
were really orations, although written, depending for much of their
effect on the personal presence of him who delivered the address; that
of Jefferson was altogether a business document, sent to be read by the
two houses of Congress for their information, and without any of the
adjuncts of the orator.