The next part of the paragraph, viz: "when I shall see every

consideration of the public welfare swallowed up," &c. So far as relates

to the first member of this sentence, he did not see how it could be

proved. He was not of opinion that every consideration of the public

welfare was swallowed up in a continual grasp for power; but he did

believe that there was a constant disposition, not only in the

Executive, but in many gentlemen on this floor, to increase the power of

the Executive.

[The SPEAKER said, neither this remark, nor the observations on the

Navy, were in order.]

Mr. G. said, that he always wished strictly to adhere to order, and in

order to avoid committing any further mistake, he desired to be informed

why it was out of order? Was the argument not in point; or was it the

declaration of his own opinion, as he went along, that was out of order?

He wished to know, as he meant to be guided by the rule adopted by the

Chair.

[The SPEAKER repeated that the gentleman from Pennsylvania had been out

of order.]

Mr. G. proceeded. With respect to that part of the paragraph which says,

"when I shall see men of firmness, &c., discarded on their application

for office," &c. This, said Mr. G., is, in some degree, matter of fact,

and in some degree, matter of opinion. It is a matter of fact, so far as

that men of firmness, experience, &c., have been turned out of office;

and matter of opinion as to what is said of men of meanness being

preferred in their place. I do believe, said Mr. G., that the first

assertion is true; and what is here written is no more than an

illustration of what has been declared upon this floor, that men of

certain political opinions, however capable, experienced, firm, and

virtuous they might be, were unfit to hold offices. This, Mr. G. said,

was the only fact which could be brought under the law, and he thought

it a fact capable of being proved to be true. Mr. G. adduced, as

evidence of the fact, the cases of the late Commissioner of Revenue for

the United States, and of the Commissioner of Loans for the State of New

Hampshire, who, he said, it was evident, were turned out of office on

account of their political opinions. And he read, in support of his

assertion, the publication of the late Commissioner of Loans of New

Hampshire.

Another part of this paragraph speaks of "an unbounded thirst for

ridiculous pomp." This, said Mr. G., is mere matter of opinion. Take the

member from Vermont to the house of the PRESIDENT, and he may call its

furniture and appendages, ridiculous pomp; take a member from a

different part of the country, and he may declare every thing decent

and plain; but take an overgrown nobleman from Great Britain into the

house of the PRESIDENT, and he would set down every thing he saw as mean

and selfish.

But, I insist upon it, said Mr. G., that matter of opinion ought not to

be subject to cognizance by this law. What, said he, is the nature of

the crime now proposed to be punished by the expulsion of the member

from Vermont? We are told that he has published and uttered false,

seditious, and malicious writings; that though these writings may be

only matter of opinion, yet if those opinions are false, they come under

this law; and, also, that such writings have a tendency to stir up

sedition and insurrection.

Mr. G. would not repeat what had been said as to the unconstitutionality

of the law under which the member from Vermont had been convicted; but

this alone would be a sufficient reason for him to vote against the

present motion. But, supposing the law constitutional, is the crime an

infamous one? Certainly not. It is a political crime, and will always be

determined according to the situation of the parties at the time. For,

said he, we may say as much as we please about the purity of our courts

and juries, and of our own purity; decisions upon political questions

will always be influenced by party spirit. It is we, said Mr. G., that

have introduced this spirit into the courts; and having given them

political questions to decide, it need not be expected that courts will

be free from party prejudice any more than others. Therefore, the

falsehood or maliciousness of a publication will be determined by the

political opinion of the jury.

As to the manner in which the trial of the member from Vermont had been

conducted, he knew nothing of it. He wished the gentleman from

Connecticut, (Mr. ALLEN,) who, it seems, was present at the trial, would

inform the House what proof was adduced to the court to show that the

letter of Mr. LYON was published by him after the sedition law passed.

The letter is dated the 20th of June, the law was passed on the 6th of

July, and the letter was published in Vermont on the 30th of July. He

should be glad to know whether any evidence was adduced to show that Mr.

LYON did any thing relative to that publication, after writing the

letter from Philadelphia on the 20th of June? If not, it will appear

strange, indeed, that he should have been punished for an act done prior

to the passage of the law under which he was convicted.

As to the manner in which the jury had been summoned, he supposed it had

been done in the usual way. Without saying, however, that the jury was

packed, which he did not believe, yet, if the towns out of which the

jury was selected, were the towns which had never given Mr. LYON but one

or two votes at his election, it necessarily results that the jury were

his political enemies; and being called upon to try him for a political

offence, they would, of course, convict him.

Mr. G. said, the lateness of the hour would prevent him from detaining

the House longer. He would only observe that, considering that the

member from Vermont had been tried for a political offence, by a jury

opposed to him in opinion, and upon a law passed on political ground at

the last session; that he had been punished by an imprisonment of four

months, and by a fine of one thousand dollars; that he had been deprived

of his seat in the Legislature for three months: he thought it would

have been better not to have proposed this resolution.

If this resolution should be adopted, it would follow, Mr. G. said, that

every member who shall write any thing which is contrary to the opinion

of a majority of this House, whether what he writes be founded in truth

or not, will be liable to be expelled, in order to purify the House. Mr.

G. thought persecution had followed the member from Vermont long enough.

Every candid man must acknowledge that, if he has committed an offence,

he has already been sufficiently punished by fine and imprisonment; to

expel him from his seat, would carry with it an idea of persecution to

the public, and to his constituents, that they would not be permitted to

have a representative on this floor. He knew the circumstance of the

member from Vermont's having been re-elected could not be introduced as

an argument in his favor, but it might serve to show that what he had

suffered for was no offence in the eyes of his constituents.

The question was put; when there appeared 49 yeas and 45 nays, as

follows:

YEAS.--John Allen, Bailey Bartlett, James A. Bayard,

Jonathan Brace, David Brooks, Christopher G. Champlin, John

Chapman, James Cochran, William Craik, Samuel W. Dana, John

Dennis, William Edmond, Thomas Evans, Abiel Foster, Dwight

Foster, Jonathan Freeman, Henry Glenn, Chauncey Goodrich,

William Gordon, Roger Griswold, William B. Grove, Robert

Goodloe Harper, Thomas Hartley, William Hindman, Hezekiah

L. Hosmer, James H. Imlay, John Wilkes Kittera, Samuel

Lyman, James Machir, William Matthews, Lewis R. Morris,

Harrison G. Otis, Isaac Parker, Josiah Parker, Thomas

Pinckney, John Rutledge, jr., James Schureman, Samuel

Sewall, William Shepard, Thomas Sinnickson, Nathaniel

Smith, Peleg Sprague, George Thatcher, Richard Thomas, Mark

Thompson, Thomas Tillinghast, John E. Van Allen, Robert

Waln, and John Williams.

NAYS.--George Baer, jr., Abraham Baldwin, David Bard,

Robert Brown, Samuel J. Cabell, Thomas Claiborne, William

Charles Cole Claiborne, Matthew Clay, John Clopton, Thomas

T. Davis, John Dawson, George Dent, Joseph Eggleston, Lucas

Elmendorph, William Findlay, John Fowler, Nathaniel

Freeman, jr., Albert Gallatin, James Gillespie, Andrew

Gregg, John A. Hanna, Carter B. Harrison, Jonathan N.

Havens, Joseph Heister, David Holmes, Walter Jones, Edward

Livingston, Matthew Locke, Nathaniel Macon, Blair

McClenachan, Joseph McDowell, Anthony New, John Nicholas,

Thompson J. Skinner, Samuel Smith, William Smith, Richard

Sprigg, Richard Stanford, Thomas Sumter, Abram Trigg, John

Trigg, Philip Van Cortlandt, Joseph B. Varnum, Abraham

Venable, and Robert Williams.

The SPEAKER, declaring the state of the vote, said, the constitution

requiring two-thirds of the members present to expel a member, the

resolution is not carried.

SATURDAY, February 23.

Mr. J. PARKER, from the Navy Committee, reported a bill authorizing the

augmentation of the Marine Corps; which was committed.

MONDAY, February 25.

Mr. GREGG presented two petitions praying for a repeal of the alien and

sedition laws; the one from Cumberland County, signed by 270 persons;

the other from Mifflin County, in Pennsylvania, signed by 314 persons.

Mr. GALLATIN presented another petition of the same kind from Chester

County, signed by 692 persons.

Mr. LIVINGSTON, one of a similar nature, signed by 2,500 citizens of New

York.

Mr. HEISTER, one of the same kind, from 1,400 inhabitants of Berks

County.

Mr. BAYARD, one from the inhabitants of Newcastle County, State of

Delaware, signed by between 700 and 800 persons.

Mr. BAYARD and Mr. BROWN each of them presented petitions to the same

effect, signed by a small number of persons.

The whole were referred as usual.

On motion of Mr. LIVINGSTON, the petition presented some days ago from a

number of alien Irishmen against the alien bill, was also referred--44

to 35.

_Alien and Sedition Laws._

On motion of Mr. GOODRICH, the House went into a Committee of the Whole

on the report of a select committee, on the petitions praying for a

repeal of the alien and sedition laws; which was read by the Chairman,

as follows:

The committee to whom was referred the memorials of sundry

inhabitants of the counties of Suffolk and Queen, in the

State of New York; of Essex County, in New Jersey; of the

counties of Philadelphia, York, Northampton, Mifflin,

Dauphin, Washington, and Cumberland, in Pennsylvania; and

of the county of Amelia, in Virginia; complaining of the

act, entitled "An act concerning aliens," and other late

acts of Congress, submit the following report:

[The report was a condensation of the arguments used in

support of the two bills by the members who supported them,

and was accompanied by three resolutions, offered for the

adoption of the House.]

Impressed with these sentiments, the committee beg leave to

report the following resolutions:

_Resolved_, That it is inexpedient to repeal the act passed

the last session, entitled "An act concerning aliens"

_Resolved_, That it is inexpedient to repeal the act passed

the last session, entitled "An act in addition to the act,

entitled 'An act for the punishment of certain crimes

against the United States.'"

_Resolved_, That it is inexpedient to repeal any of the

laws respecting the Navy, Military Establishment, or

revenue of the United States.

The question being upon agreeing to the first resolution declaring it to

be inexpedient to repeal the alien law,

Mr. GALLATIN rose and spoke as follows:

Mr. Chairman: This subject was so fully discussed during the last

session, that I would not have addressed the committee on this occasion,

did I not entertain some hope that the change of circumstances which has

taken place since the laws were enacted, and above all, the sense which

so many of our fellow-citizens have expressed on their propriety and

constitutionality, may induce the House to reconsider their decision of

last year.

Petitions, signed by near 18,000 freemen of this State alone, collected

in a few counties and within a few weeks, have been laid on your table,

earnestly requesting Congress to repeal laws, at best of a doubtful

nature, and passed under an impression of danger which does not now seem

to exist, of general alarm, which has nearly subsided.

Sixteen hundred of my immediate constituents have joined in these

petitions, and their opinion on this subject being the same which I have

uniformly entertained, I feel it forcibly to be my duty to examine the

reasoning used by the select committee who have reported against the

repeal of the obnoxious laws.

The act concerning aliens comes first under consideration. Two laws were

passed during the last session of Congress on that subject, the one

concerning aliens generally, and the other respecting alien enemies. No

petition has been presented against the last, and it would remain in

force even if the first should, agreeably to the request of the

petitioners, be repealed. The petitions apply solely to those provisions

of the first act which are not included in the last. The provision,

therefore, complained of, and which is the subject-matter of the

reference to the committee, is that which authorizes the President to

remove out of the territory of the United States, "all such aliens,

(being natives, citizens, denizens, or subjects of a nation which is

_not_ at war with the United States, and which has _not_ perpetrated,

attempted, or threatened any invasion or predatory incursion against the

territory of the United States,) as he shall judge dangerous to the

peace and safety of the United States, or shall have reasonable grounds

to _suspect_ are concerned in any treasonable or secret machinations

against the Government thereof."

This authorization is considered by the petitioners as

unconstitutional--1st, because such power being neither among the

specific powers granted by the constitution of the General Government,

nor necessary to carry into effect any of those specific powers, is,

both by incontestable deduction, and by the 12th amendment, reserved to

the individual States; 2d, because, even supposing such power to be by

implication comprehended among those granted to the General Government,

its exercise is, for the present, expressly prohibited to that

Government by the section which provides that the migration or

importation of such persons as any of the States shall think proper to

admit shall not be prohibited by Congress prior to the year 1808; and

3dly, because aliens are supposed to come under the general description

of persons to whom, by the constitution, the right of a trial of all

crimes by jury is secured.

In answer to the first objection, it is not contended that the power of

removing such aliens is specifically granted by the constitution. But it

is insisted, first, that every nation has a power at will to admit, or

to remove aliens; second, that this power is necessary and proper in

order to carry into effect the specific powers vested in Congress to

declare war and to protect each State from invasion.

To admit the first position in its full extent does not destroy the

force of the objection; for that objection rests not on a supposition

that the power of removing aliens does not exist in the nation; but on

the principle that it is not one of those granted by the nation to the

General Government; that it is one of those intrusted by the nation to

the Governments of the individual States respectively. The second

position is predicated on a construction of the clause of the

constitution and an application of that construction to the act, which

to me appear inadmissible. The expressions used in that clause are

"necessary and proper." The idea conveyed by the word "proper" is

implied in that of the word "necessary," for whatever is necessary must

be proper. The addition of the word "proper" was therefore useless,

unless designed more precisely to ascertain the meaning of the word

"necessary," the better to prevent a construction "that by necessity

nothing more was meant than propriety," and to establish, beyond

contradiction, that whatever might by Congress be thought proper, was

not on that account to be judged necessary. Hence the meaning of the

word "necessary" is confined in that clause to its strict sense, to wit:

the power of passing laws without which some of the powers delegated to

Congress could not be carried into effect.

In the present case it cannot be said that a power generally to remove

aliens, not belonging to a nation from which a war or invasion is

apprehended, is necessary or even proper in order to protect the States

against such a war or invasion. Aliens individually may commit acts

tending to assist the enemy, and, in such case, it would become

necessary to punish them. Should a body of armed aliens (the supposed

case of the select committee) land with views evidently hostile, to

whatever nation they might belong, the act itself would be an invasion,

and the necessity of repelling, or if another expression is selected, of

removing them, would be self-evident and immediately flowing from the

specific power delegated to Congress to protect the States against

invasions. But it is preposterous to say that the necessity of a general

removal of alien friends flows from the apprehension of an invasion. The

law concerning aliens, however, does not designate the acts which shall

establish the necessity of their removal individually. Although they may

not have been concerned in any machinations against Government; although

the machinations in which they may have been concerned shall not have

tended to promote or assist an invasion; and although their machinations

might be sufficiently prevented and punished in the common course of

law; although, therefore, their removal may not be necessary to protect

the States against an invasion; yet, by the present law, they are liable

to be removed, if they shall be suspected of being concerned in those

machinations. Their having actually and individually committed certain

acts is requisite to constitute that necessity which alone can justify

the exercise of the power delegated by this law. And yet that removal,

which, in order to be constitutional, should rest on its necessity,

depends, by the provisions of this law, on the bare suspicion of a

necessity. But necessity implies proof, and cannot rest on suspicion.

The law cannot be supported by the constitution unless that instrument

had declared that Congress shall have power to pass laws which they may

suspect to be proper or necessary in order to carry into effect certain

specific powers delegated to them.

But the law does not even confine its operation to cases when a war or

invasion should be apprehended. Supposing the alarms on that subject to

be completely at an end, still the power remains with the PRESIDENT to

remove aliens suspected by him to be concerned in secret machinations

against Government. The power delegated by this law is not applicable

exclusively to cases where it may be thought necessary in order to carry

into effect the power to protect States against an invasion. It is to

apply generally and under color of its necessity for executing certain

specific powers, it may be exercised in a case where that specific

power, on which alone it rests, has itself, nothing on which to operate.

Although it may happen that there shall be no necessity to protect

States against invasion, it will even then, according to this

constructive doctrine, still be lawful to do an act which cannot be

constitutional, except on account of its being necessary to protect

States against invasion.

In order, therefore, to support the constitutionality of the law, the

select committee must suppose, in the first place, that Congress may

pass laws, without a certainty of their being necessary for carrying

into execution some of the specific powers granted to them; that is to

say, that Congress have a right to pass laws which may be unnecessary

for that purpose. In the next place, that if a certain law is necessary

only for executing a constitutional measure of a temporary nature, that

law may constitutionally be executed, although the temporary measure

itself should not be executed at all; that is to say, that the

incidental power may be exercised for a purpose different than that of

executing the original power on which it rests.

The application of that constructive doctrine to the sedition and alien

laws justifies a conclusion that, if adopted, it will substitute in that

clause of the constitution a supposed usefulness or propriety to the

necessity expressed and contemplated by the instrument, and will, in

fact, destroy every limitation of the powers of Congress. It will follow

that instead of being bound by any positive rule laid down by their

charter, the discretion of Congress, a discretion to be governed by

suspicions, alarms, popular clamor, private ambition, and by the views

of fluctuating factions, will justify any measure they may please to

adopt; that, instead of being bound by a constitution, they may claim

the omnipotence of a British Parliament; that all the reserved powers of

the people or of the States will be swallowed up at their pleasure by

that undefined discretion; in a word, that the constitution itself, so

far as respects a limitation of powers, is by that doctrine completely

annihilated. Even the positive checks, which, in a few instances,

prohibit the exercise of certain powers, will not prove a sufficient

guard against an inordinate appetite to legislate on some favorite

subject.

Thus, in the case of the sedition law, the prohibitory clause,

respecting an abridgment of the liberty of the press, is attempted to be

construed away by star-chamber definitions, by exotic doctrines, which,

if suffered to flourish, will overshadow and smother every plant of

American growth; doctrines incompatible with the principles of a

Government elective in all its Executive and Legislative branches; of a

Government which the people, the sole fountain of power, cannot properly

carry into execution, if the sources of information are shut up from

them; if a free and full discussion of every public measure is at the

will of those who enjoy only a delegated authority, checked and

embarrassed by prosecutions for libels, grounded solely on the British

system of hereditary prerogative.

And thus, in the case of the alien law, it is said that the temporary

prohibition enjoined on Congress, to forbid the importation of persons,

must be understood as applying only to slaves; and that a power to

remove emigrants may be constitutionally exercised, though that of

prohibiting their migration should be unconstitutional.

The evidence of members of the Convention which framed the constitution,

has sometimes been offered to prove that that body by _persons_, meant

_slaves_. But the evidence of those members cannot prove any thing

beyond their own individual intention, or, at most, their belief of what

might have been the intention of some other members. Nor is, on any

possible supposition, the intention of the Convention itself of any

importance to decide the true meaning of the constitution. For they

were not the legislators who passed and ratified the act, but only the

framers who drew the instrument and offered it for consideration. As

well might the Judges of the Supreme Court be induced in their decision

on a point of law, to abandon the clear construction pointed out by the

precise meaning of the words of the statute, on account of the supposed

opinion of some one of the members of the committee of this House that

had drafted the law, as we be guided by what was, at the time, the

meaning of some of the gentlemen who drew the constitution. After a

lapse of ten years, it is preposterous to receive parole evidence

against a sacred record. Are the people of America to be told, after a

lapse of ten years, that the delegation of powers, which they sanctioned

under the impression of what on its face appeared to be its meaning, is

to receive a contrary construction, bottomed on private meaning, on the

unknown opinion of the members of a body whose deliberations were

secret? And if, even through mistake, those individuals adopted

expressions which conveyed a different meaning from what they intended,

is that supposed intention to prevail over the explicit sense of those

expressions?

But we are told by the select committee, that "there could not have been

the least reason" for confining the restriction to the then existing

States, and to a period of twenty years, had the restriction "been

intended" to apply to all emigrants in general. Here again, a supposed

intention is brought as an argument against the general acceptation of

the word "persons." The question is not, whether we are at a loss to

find the reasons which dictated a modification of the restriction. Yet,

if we were to recur to suppositions, we might as well suppose that the

then existing States, which alone formed the constitution, felt

interested only for themselves, and not for future non-existing States;

and that those States, who were interested in promoting the migration of

free persons, were satisfied with the same regulation which satisfied

those States who were apprehensive of an interference in the importation

of slaves. But the only question is, whether modification is

contradictory with the common acceptation of the word "persons," which,

it will not be denied, in its natural sense, will apply to free as well

as to the other description of individuals? Whether there is any thing

absurd or repugnant to common sense, in saying that Congress shall not,

for twenty years, prohibit the migration of free persons in the existing

States? If there be nothing inconsistent in that provision, the

modification of the restriction cannot modify and alter the meaning of

the word "persons."

Was there any possibility of doubt on the sense of that word, it might

be explained by other parts of the constitution and by other expressions

in the clause itself.

The 2d section of the 1st article of the constitution, speaking of the

mode of ascertaining the respective numbers of the several States,

declares that they shall be determined by adding to "the whole number of

free persons" (including those bound to service for a term of years, and

excluding Indians not taxed) "three-fifths of all other persons." A

sentence in which the word _persons_ is expressly applied first to

freemen, and secondly to slaves.

The prohibitory clause itself declares that the migration or importation

of such persons as any of the States, &c., shall not be prohibited. The

word "migration," as contradistinguished from "importation," clearly

implies the free will of the person, and applies exclusively to free

persons.

The select committee have also informed us that the power to send off

emigrants, who abuse the indulgence granted them to remain, is a very

different thing from the power of preventing emigration; meaning, I

suppose, that although Congress might be forbidden by the constitution

to prohibit migration, they may constitutionally send off such

emigrants. Was the power claimed by this law, that of punishing by

transportation aliens convicted of certain offences, defined by the law,

although the constitutional necessity of the mode of punishment would

still remain to be proven, yet the argument of the committee would

deserve some consideration. But it is denied that there is the least

difference between a power of prohibiting emigration and that of sending

off any alien at the will of the PRESIDENT, merely because he is

suspected by that Magistrate. The transportation of the emigrant does

not rest on any act committed by him, but on the degree of suspicion

entertained by the PRESIDENT. The removal, therefore, contemplated by

the law, is not the special removal of certain emigrants, but a general

power to remove all the emigrants, on suspicion, if the PRESIDENT shall

please. I must confess that, to my understanding, that power to remove

all emigrants would, if exercised, (and the law authorizes its general

exercise,) amount precisely to the same thing with a general prohibition

of emigration.

So far is it true that the clause of the constitution admits of a

construction which would defeat its object; that, at the end of it, we

find a provision permitting Congress to lay a duty of ten dollars, not

on migration, but on the importation of persons. Had it not been for

that provision, Congress could not even have checked that importation by

any duty. As the clause now stands, they cannot check the migration by

any duty whatever, nor the importation by a duty higher than ten

dollars. And yet it is contended that notwithstanding so much caution,

Congress may, by a general power of sending off emigrants, evade the

restriction laid upon them, and altogether prevent the effect of

migration.

Finally, if there be any difference between the power of prohibiting

migration and that of sending off emigrants, it consists in this, that

it might have been apprehended that, under color of the general power

over commerce given to Congress, they might, by duties or other

commercial regulations, have prevented or checked migration; but that

there does not exist any power granted to the General Government by the

constitution which can rationally serve as a pretence to claim an

authority to remove emigrants generally. And the only deduction to be

thence inferred is, that the clause now under consideration, although it

might be proper for preventing the exercise of the first power, was

unnecessary for the last purpose--a conclusion to which I agree in its

full extent, and which it seems to me I have already fully established

in the first part of my arguments.

The select committee (driven thereto, perhaps, by the weakness of the

ground they were compelled to defend) have recurred to a last argument,

the most extraordinary, perhaps, of any they have advanced. Having said,

in the former part of their report, that every nation had a right to

send off aliens at will, they afterwards assert that, "as the

constitution has given to the States no power to remove aliens," it is

necessary to conclude that the power devolves to the General Government.

It is, I believe, the first time it has been suggested that the powers

of the individual States were derived from the Constitution of the

United States. That constitution has heretofore been considered as a

delegation of powers to the General Government, and not to the several

States. But the assertion of the committee may be shortly answered by

reading the twelfth amendment to the constitution, viz: "The powers _not

delegated_ to the United States by the constitution, _nor prohibited_ by

it to the States, are _reserved_ to the States, respectively, or to the

people." In order to prove that the powers are not reserved to the

States, it is necessary to prove that they are delegated to Congress;

and the committee, with that kind of logic which pervades the whole of

their report, in order to prove that powers are delegated to Congress,

assume the position that they do not belong to the States. The

constitution declares that the powers not prohibited to the States are

reserved to them, and the committee asserts that the powers not given to

the States, are not reserved to them. It would seem, as the committee

had been desirous of justifying, by their own arguments, what I have

advanced, that the doctrine necessary to support the constitutionality

of this law would infallibly swallow up all the powers of the several

States.

That the States had a right to legislate on this subject never was

denied. It is a fact, that some of them have legislated upon it.

Virginia has passed an alien law, which has been quoted by the

supporters of the law of Congress. It was strange enough, that on a

constitutional question, whether the United States or the several States

had a right to pass such laws, the advocates for the right of Congress

should quote a law of one of the States, which proved the very reverse

of their doctrine. But their object was to puzzle and confound, and not

to enlighten the understanding; and if they meant to rescue the law of

Congress from the charge of impropriety and injustice, by the instance

of that of Virginia, they have been guilty of a gross misrepresentation;

for the act of that State, so far from being similar to that complained

of, is not a law concerning alien friends, but a law respecting alien

enemies, perfectly similar to that of Congress, of which no one

complains, and which passed without opposition.

To the argument against the law, drawn from that part of the

constitution which secures the trial of all crimes by jury, the most

satisfactory answer given by the committee is, that aliens not being

parties to the constitution, have no rights under it. Without entering

into an examination of the constitutional question arising on that

point, I will only remark, that the construction is harsh; and that, to

transport emigrants, "merely from motives of policy," and "without their

having committed any offence," is often unjust--always oppressive and

cruel. The manner in which aliens have been invited to this country, and

the peculiar situation in which they stand, justify the assertion.

The constitution gives to Congress no power over aliens, except that of

naturalization. The power, therefore, remains with the States to give to

aliens the rights of denizens. That power has not been exercised by that

name; but it has, in fact, been carried into effect. Not only in some

States have aliens been enabled to purchase, to hold, to inherit, and to

leave by will, real estate--a right which principally constitutes a

denizen--but many have actually been admitted in some States, either by

special acts of the Legislature, or in conformity to former general

laws, to all the rights of citizens of those States, so far as it was in

the power of individual States to do it; that is to say, that they have

received every right, but such as arise from naturalization--every right

of denizens. On the other hand, the laws of the Union have invited

emigration, by holding out the prospect of being naturalized at the end

of a period which, till nearly the time when the alien law passed, never

exceeded five years. Under these laws, emigrants have, by a formal

declaration before our courts, given evidence of their intention of

becoming citizens and of renouncing their former allegiance--a

declaration almost tantamount to an actual renunciation. They have

abandoned their native countries for ever; many of them have acquired

lands, and married in America; most of them have here the whole of their

property, or their only means of subsistence. Under all these

circumstances, it may be doubtful whether a great proportion of these

aliens are not entitled to the rights of denizens; and if they are not

so, by a strict construction of positive laws, at least, it can hardly

be denied that the provisions of the law violate, in this respect, the

dictates of humanity and justice.

The policy of this measure seems to be defended by the select committee

on the same ground which is to be a pretence and a justification for

every act of domestic oppression, for every encroachment of power, for

every new tax, for every extravagant loan, for every prodigal act of

expenditure, for every increase of the navy, for every standing army

which may be raised under the various names of permanent army,

additional army, provisional army, eventual army, or _well-affected_

volunteers. The alien and sedition acts form, in the opinion of the

committee, an essential part of our general system of defence against

France. I do not mean to follow them, whilst they use, instead of

arguments, the mere cant of the day. They cannot be serious when they

tell us of the employment of the active talents of a numerous body of

French citizens here as emissaries and spies. And if they are, does that

committee mean to impose upon this House, as upon the people of some

parts of the Union? Do we not know that, if there be any danger from

France, the act respecting alien enemies is applicable to her citizens,

and that the law now complained of respects alien friends, and was

originally intended to operate, not against subjects of France, but

against _Irish_ emigrants and other subjects of Great Britain? Do we not

know that, notwithstanding all the clamor of last summer, and

notwithstanding the two laws passed on that subject, not a single French

citizen has been removed?

Still less can I suppose that the committee were in earnest when they

pretended to believe that the United States offered as easy and alluring

a conquest to France as Egypt. They seem to have forgotten that Egypt

was governed and defended by Mamelukes and inhabited by slaves; that the

United States are _as yet_ inhabited and defended by the people

themselves. But if the committee thought that the fear of an invasion

did justify those laws, when passed, will they pretend to say that the

danger, even in their opinion, now exists, and that the same necessity

now justifies the continuance of the laws?

It is not only against invasion that those laws are said to be

necessary. We are told of a system which convulses the civilized world,

and has shaken the fabric of society; of an unprecedented combination to

establish new principles of social action, on the subversion of

religion, morality, law, and Government. If these are the dangers which

threaten us, and if Congress think themselves vested with all the powers

which they may think expedient to repel them, I wish to know to what

extent they may not legislate, and by what possible limitation they can

be restrained, in their assumption of powers? There is not an individual

on this floor, there is not a man of common understanding and common

information in the nation, who, unless he is under the influence of the

illusions of the new anti-republican fanaticism, or blinded by party

spirit, does not know that these pretended dangers are, in America, the

visionary phantoms of a disordered imagination. And I have taken notice

of those sentiments merely to give an additional proof, that under

pretence of preventing imaginary evils, an attempt is made to establish

the omnipotence of Congress, and substantial despotism, on the ruins of

our constitution.

Is that a measure of security and general defence which puts a numerous

body of aliens--aliens who are represented as so desperate and

dangerous--under the absolute control of one man, which, by holding the

rod of terror over their heads, and leaving their fate at his sole

disposal, renders them complete slaves of the PRESIDENT, and makes them

proper instruments for the execution of every project which ambition may

suggest, which faction may dictate? Is that a Government of laws which

leaves us no security but in the confidence we have in the moderation

and patriotism of one man? And do the abettors of these laws forget that

even that is precarious, and that the unlimited power which they think

safely lodged in one individual may in a day be vested in another man in

whom they do not place the same confidence?

Is that a measure of general defence which has diminished confidence in

the Government and produced disunion among the States and among the

people?

Yet I am happy to find that even this law has produced such general

dissatisfaction. I was the more alarmed on account of this law, because,

attacking only aliens, for whom no immediate concern could be felt, it

might the more easily become the vehicle to introduce doctrines and

innovations which would hereafter serve as a precedent to attack the

liberties of the citizens themselves. A pretence of general defence may

justify oppressive measures against citizens as well as against aliens.

Although some nice distinctions may now be made in order to discriminate

one class from the other, yet it must be remembered that the only

security of citizens against unconstitutional measures consists in a

strict adherence to the constitution; that their liberties are only

protected by a _parchment_--by _words_--and that they may be destroyed

whenever it shall be admitted that the strict and common sense of words

may be construed away under the plea of some supposed necessity;

whenever the constitution shall be understood and exercised as an

instrument unlimited where it grants power, and nugatory where it limits

power.

We may feel alarmed when we see a committee of this House asserting that

the powers not given to the States (and it may be added, by the same

rule of construction, the powers not given to the people by the

constitution) belong to the General Government. We may feel alarmed when

that committee insist that, although it is true that the trial of all

crimes must be by jury, yet, to inflict a punishment when no offence--no

crime--has been committed, is not a violation of the constitution; when

the only distinction they apply to citizens consists in the difference

of punishment, but not in a difference of the principle. We may feel

alarmed when we find that Congress have already acted on those

principles towards citizens; that they have already passed another

law--the sedition law--grounded on the same principles, on the same

doctrine, or rather on the same abandonment of the explicit and evident

sense of the constitution, which alone could justify the alien law. I

hope--I trust--that the spirit which dictated both laws has subsided,

even within these walls, and that the same Congress who, under the

impressions of a momentary alarm, which prevented a cool investigation,

hastily adopted those two measures, will have courage enough to revise

their own conduct, to acknowledge their own errors, and, by a repeal of

the obnoxious acts, restore general confidence, union, and harmony,

amongst the States and the people.

When Mr. GALLATIN had concluded, the question was taken and

carried--yeas 52, nays 48.

The 2d resolution being next in order, viz:

_Resolved_, That it is inexpedient to repeal the act passed

the last session, entitled "An act in addition to the act,

entitled An act for the punishment of certain crimes

against the United States:"

Mr. NICHOLAS rose and spoke as follows:

Mr. Chairman--I am sorry to be obliged to rise at this late hour of the

day, indisposed also as I find myself, to speak on this important

question; but, since gentlemen are determined now to decide upon it, I

must be indulged in making some observations upon it, previous to the

question being taken.

The select committee had very truly stated, that only the second and

third sections of the act, in addition to the act for the punishment of

certain crimes against the United States, are complained of--that the

part of the law which punishes seditious acts is acquiesced in, and that

the part that 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. The case chosen for our first

legislation, that of "false, scandalous, and malicious writings," is

specious, and as likely as any can be to establish an interest in its

favor; but when it is fairly examined, it will be found to operate on

cases, which could not, at first view, be expected to come under it; to

be the instrument of most unjust oppression, and to restrain that free

communication of honest opinion which is the soul of the Government. But

when you come to inquire further, and learn, from the advocates of the

law, the authority which they claim for passing it, you will find that

the power claimed does not stop even with this law, mischievous as it

may be, but that it extends to absolute and unlimited control.

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 office thereof." It is, therefore, necessary to fix

a just construction of this clause.

That the powers of the Federal Government were intended to be limited,

is universally admitted, in the abstract; is proved by every clause of

the constitution, and is positively declared by the 12th amendment in

these words: "The powers not delegated to the United States by the

constitution, nor prohibited by it to the States, are reserved to the

States respectively, or to the people."

The just construction of the constitution, if the clause respecting

necessary and proper powers had been omitted, would have been the same

that it ought to be with the addition; for there can be no doubt, that a

grant of specified powers would have contained a grant of such power as

is necessary to carry the specified power into effect, and therefore the

declaration ought to make no difference, according to a well-known

maxim. This was the understanding of all the friends of the constitution

at its adoption, and the constitution ought now to be construed as if

the clause had been omitted. But it is proper to examine the meaning of

it, as expressed.

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 have 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."

It is expressly admitted by the committee, that the power to punish

seditious combinations to resist the laws, is only derived, by

construction, from the clause giving all necessary and proper powers

before recited; and that there is no express power in the constitution

to that effect. There is no dispute about this construction being just;

but I contend that the inference from this implied power cannot be

supported, viz: That Congress have a power to punish seditious writings.

The constitution says: "Congress shall have power over all acts which

hinder the execution," &c.; but, 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," &c.

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 really would 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 the 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.

The suggestion on which the authority over the press is founded, is,

that seditious writings have a tendency to produce opposition to

Government. 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, from 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.

I have shown, as I promised, that the authority on which this act is

supported, gives unlimited power over the press, as to its investigation

of public affairs, which is its most important function; and I will now

endeavor to show, that the effect of the present law is very little

short of the complete restraint of all useful discussion on public men

and measures.

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 have been 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.

If the effect of the present law is to restrain the free communication

of opinion, and its principle will justify any control Government

chooses to exercise over the press, an inquiry may safely be entered on,

whether Congress ought to possess the power, even if the clause giving

necessary and proper power would extend to such remote cases? It is the

more necessary to inquire into the usefulness of this power in the hands

of Congress, since the opinion is becoming current, that that alone will

give Congress a right to assume it, upon the principle that Government

must have a right to do every thing proper for its safety. This doctrine

may be very fallacious, if not taken in the restricted sense to be

found in the clause giving necessary powers. No government can assume a

power not delegated, on pretence of its being necessary; for none have a

right to judge of what is necessary but the makers of the constitution,

otherwise all governments would be competent to make every alteration in

a constitution they might think proper, and the constitution would rank

with the laws, and not above them. For the execution of powers expressly

given, there must have been some latitude allowed to those who were to

execute them, the same in fact which is expressed in the clause

respecting necessary powers.

Is the power claimed proper for Congress to possess? It is believed not,

and 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, 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

intrusted 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.

The mode of thinking which countenances this law, and the doctrines on

which it is built, are derived from a country whose government is so

different from ours, that the situation of public officers ought to be

very different. In Great Britain, the King is hereditary, and, according

to the theory of their government, can do no wrong. Public officers are

his representatives, and derive some portion of his inviolability from

theory, but more from the practice of the government, which has, for the

most part, been very arbitrary. It was, therefore, of course, that they

should receive a different sort of respect from that which is proper in

our Government, where the officers of government are the servants of

the people, are amenable to them, and liable to be turned out of office

at periodical elections. In Great Britain, writings are seditious,

though they are true, if they tend to bring a public officer into

contempt.

In this country, it is seen that the same principle is contended for,

and that in practice, with respect to matters of opinion, we have gone

the whole length of the principle. How long can we expect to maintain

the other distinctive qualities of the magistracy of the two countries,

when this sameness is established? 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 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.

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 call for the question being loud,

Mr. MCDOWELL rose, and hoped the question would not now be taken, but

that the committee would rise, it being now a late hour of the day, and

he doubted not other gentlemen would wish to deliver their sentiments

upon this important question; and he thought an hour or two of to-morrow

might be well employed in the discussion of this subject--a subject

which had been brought before the House by the people, and ought,

therefore, to receive a full discussion. He moved the committee to rise.

The question on rising, was put and negatived--55 to 42.

The question was then taken on the resolution, and carried, 52 votes

being in favor of it.

The question was then taken upon the third resolution, which was carried

without a division.

The committee then rose, and the question being upon concurring in the

agreement of the committee for the first resolution,

Mr. LIVINGSTON entered upon a defence of the sentiments which he

delivered when the passage of this law was under consideration, which,

he said, had been much misrepresented; but, after making some progress

in his observations, the Speaker declaring them unconnected with the

question before the House, he sat down, and the first resolution was

decided by yeas and nays, and stood--52 to 48, as follows:

YEAS.--John Allen, George Baer, jr., Bailey Bartlett, James

A. Bayard, Jonathan Brace, David Brooks, Stephen Bullock,

Christopher G. Champlin, John Chapman, James Cochran,

William Craik, Samuel W. Dana, John Dennis, William Edmond,

Thomas Evans, Abiel Foster, Dwight Foster, Jonathan

Freeman, Henry Glenn, Chauncey Goodrich, William Gordon,

Roger Griswold, William Barry Grove, Robert Goodloe Harper,

Thomas Hartley, William Hindman, Hezekiah L. Hosmer, James

H. Imlay, Samuel Lyman, James Machir, William Matthews,

Daniel Morgan, Lewis R. Morris, Harrison G. Otis, Isaac

Parker, Thomas Pinckney, John Read, John Rutledge, jr.,

James Schureman, Samuel Sewall, William Shepard, Thomas

Sinnickson, Nathaniel Smith, Peleg Sprague, George

Thatcher, Richard Thomas, Mark Thompson, Thomas

Tillinghast, John E. Van Allen, Peleg Wadsworth, Robert

Waln, and John Williams.

NAYS.--Abraham Baldwin, David Bard, Thomas Blount, Richard

Brent, Robert Brown, Samuel J. Cabell, Thomas Claiborne,

William Charles Cole Claiborne, Matthew Clay, John Clopton,

Thos. T. Davis, John Dawson, George Dent, Joseph Eggleston,

Lucas Elmendorph, William Findlay, John Fowler, Nathaniel

Freeman, jr., Albert Gallatin, James Gillespie, Andrew

Gregg, John A. Hanna, Carter B. Harrison, Jonathan N.

Havens, Joseph Heister, David Holmes, Walter Jones, Edward

Livingston, Matthew Locke, Matthew Lyon, Nathaniel Macon,

Blair McClenachan, Joseph McDowell, Anthony New, John

Nicholas, Josiah Parker, Thompson J. Skinner, Samuel Smith,

William Smith, Richard Sprigg, Richard Stanford, Thos.

Sumter, Abram Trigg, John Trigg, Philip Van Cortlandt,

Joseph B. Varnum, Abraham Venable, and Robert Williams.

Mr. MCDOWELL then moved an adjournment; which was negatived--55 to 38.

The question was then taken on the second resolution, upon which the

yeas and nays were exactly the same as upon the first.

The question on the third was concurred in, 61 votes being for it.

SATURDAY, March 2.