_Resolved_, That the Committee of Privileges be, and they
are hereby, directed to inquire who is the editor of the
newspaper printed in the city of Philadelphia, called the
General Advertiser, or Aurora, and by what means the editor
became possessed of the copy of a bill prescribing the mode
of deciding disputed elections of President and Vice
President of the United States, which was printed in the
aforesaid newspaper, published Wednesday morning, the 19th
instant, February, and by what authority he published the
same; and by what authority the editor published in the
same paper that the honorable Mr. Pinckney, a Senator from
South Carolina, and a member of the committee who brought
before the Senate the bill aforesaid, had never been
consulted on the subject. And generally to inquire the
origin of sundry assertions in the same paper, respecting
the Senate of the United States, and the members thereof,
in their official capacity, and why the same were
published; and make report to the Senate. And that the said
committee have power to send for persons, papers, and
records, relating to the subject committed to them.
_Ordered_, That this motion lie for consideration.
The Senate resumed the second reading of the bill prescribing the mode
of deciding disputed elections of the President and Vice President of
the United States; and after progress, adjourned.
WEDNESDAY, March 5.
_Breach of Privilege._
The Senate took into consideration the motion made on the 26th of
February last, that an inquiry be had relative to a publication in a
newspaper called the "Aurora," on the 19th of the said month; and agreed
to insert after these words: "and by what authority he published the
same," line 7th, the words "as having passed the Senate."
Mr. COCKE said, he would not suffer a measure of this kind to pass
through the Senate, while he had the honor of a seat in that body,
without manifesting the most determined opposition. What did the
gentleman mean by avoiding the general principle? did he mean to get the
consent of the Senate, acting in the character of an inquest, to an
acknowledgment that the editor of the Aurora had been guilty of a crime,
without any inquiry whether the publication in itself was criminal, or
whether if it was criminal, the Senate, as an independent and a single
branch of the Legislature, had of itself the power to define the crime
and inflict the punishment? He could not consent to an admission of this
kind; the constitution gave them no such authority; the privileges of
the House and of the members did not extend beyond the walls of the
Chamber in which they were sitting, in cases of comment upon their
official proceedings. He had held these opinions from the time the
motion was first laid before the House, and thought that the
consequences which would result from pursuing the subject, would be more
dangerous to the honor and dignity of the Senate, which it was meant to
defend, than all the attacks which all the public newspapers could make
during their existence, inasmuch as an actual assumption of power was
far more detrimental to their character than any unfounded charge of
tyranny could be. He believed that the more the subject was agitated the
more would be the clamor against the Senate, and in the end they would
be forced to abandon the measure for want of ability to carry it
through; he therefore concluded it would be best to give it up in the
first instance, and save both their own time and the public money. He
would move to postpone the consideration of the motion till the first
Monday in December next.
Mr. TRACY did not wish to hurry on the decision, but as the resolution
had been several days upon the table, he believed the House might now
decide on the propriety of referring the business to the Committee of
Privileges, as this procedure would not be final; or, if the House was
not ready to vote immediately, the discussion might proceed and time
would be given for coming to the conclusion.
Mr. C. PINCKNEY.--This subject involves the important questions, What
are the privileges of Congress, and how far are they defined by the
constitution; and what is the liberty of the press, as it respects those
privileges? These are subjects of great consequence, and such as I
suppose the House will touch with much caution. My name having been
mentioned in the body of the original motion, I feel myself particularly
called upon to deliver my sentiments fully, as well with respect to the
manner in which it is mentioned, as to the limitations of the
constitution, and what ought, in my judgment, to be the conduct of the
Senate, on this very interesting occasion.
In considering, first, what are the privileges of Congress, and how far
they are defined by the constitution, I am naturally led into a
repetition of arguments I have found myself too frequently obliged to
use on this floor; that is, to entreat the House to recollect the nature
of our federal system; that all powers not expressly and specifically
delegated to Congress, are reserved to the States and people: and
particularly to remember, that where any powers are so expressly defined
as the privileges of Congress are, that it is our duty very carefully to
consider the consequences, before we take a step that may, by subsequent
or cool reflection, be found to exceed them; that the privileges of
Congress, as limited by the constitution, have been very deliberately
considered by men whose opinions were not swayed by party, and whose
impartial situation gave the best opportunity of judging; that having
before them the example of the unlimited privileges of the British
Parliament, and colonial assemblies, or councils, assuming to themselves
the right of such privileges; that knowing the consequences of undefined
powers, and being well aware what privileges were necessary to prevent
an interruption of the undisturbed situation a member should enjoy,
during the time he is engaged on public affairs, after much thought they
had defined them in the manner fixed by the constitution. No man, who is
a friend to order, will justify what properly deserves to be termed the
licentiousness of the press. When, instead of candidly reviewing the
arguments or public conduct of a member of the Legislature, or officer
of the Government, it meanly descends to private scandal, instead of
being defended, it should be met with contempt and disdain. Abuse is the
price that public men, and frequently those of the most ability, are
obliged to pay; and it is seldom, in countries where the press is free,
and strong political parties are known to exist, that it is much
noticed. Men of elevated minds, who feel themselves strong in the powers
of reasoning, will always yield to their feeble opponents the miserable
resort of abuse; it is the surest test of imbecility, and the public,
who generally think right, seldom hesitate to suppose it equally the
proof of weakness and of malice.
I shall consider this subject from its importance, and the peculiar
manner in which it has been introduced, as open to such animadversions
as are within the rules of order and are consistent with decorum. I
shall probably advance doctrines that will be termed as extraordinary
here, but it shall be done with the good manners I have ever considered
as the criterion of good breeding, and which self-respect will forbid my
violating. It is the first question respecting the privileges of the
Senate that I have ever been present at, and, as it involves the liberty
of the press, it is only necessary for me to mention these subjects, to
show the House the propriety of our well-examining every line of the
resolution on your table, before we adopt it.
I feel myself particularly called upon to give my opinion fully on this
subject, because my name is inserted in the body of the resolution, and,
to those unacquainted with the circumstances, it might have the
appearance of being done at my request; whereas it was not only done
without my knowledge, but is contrary to my wish, and opinion of the
power of the House, and of the mode in which such inquiries should be
conducted; that even if the House had the power, the remarks and
information contained in the paper are not sufficiently important to
attract its notice, particularly as they had been completely silent on
the abuse of the Senate in the Gazette of the United States, respecting
the stopping of the enlistments for the army; that the inquiry might
lead to steps not within the defined privileges of the Senate, and that,
as these may involve the liberty of the press, and the right of a
citizen to publish the debates and public acts of this House, those who
were opposed to what they might consider unconstitutional restrictions,
ought to meet the question at the threshold, and contest it in every
stage. I shall therefore feel it peculiarly my duty to do so, and, after
having stated to you my objections to any interference at all on this
subject, to move the postponement of the resolution, or to amend it in
some way that shall place on the journals my opinions of the extent of
your privileges, and reasons for objecting to the mode of inquiry
proposed by the gentleman from Connecticut.
In examining the constitution we find, that to prevent any attempt being
made on the part of either branch of Congress to define their own
privileges, and exercise the same, as occasion or circumstances may, in
their opinions, require, and to remove all doubt as to the extent and
exercise of the privileges they are to enjoy, the constitution has
positively and expressly limited and defined the same, by declaring--
"That each House shall be the judge of the elections,
returns, and qualifications of its own members; that they
may compel the attendance of absent members, in such
manner, and under such penalties, as each House may
provide; that they may determine the rules of their
proceedings, punish the members for disorderly behavior,
and, with the concurrence of two-thirds, expel a member.
That the members of both Houses shall, in all cases, except
treason, felony, or breach of the peace, be privileged from
arrest during the attendance at their respective Houses,
and in going to and returning from the same, and, for any
debate or speech in either House, shall not be questioned
in any other place."
This is all that is said on the subject of privilege; and surely no
words can be more explicit, nor any subject more clearly defined. The
powers they are to exercise, and the persons and cases they are to
operate upon, are all distinctly marked and named; nor is there a word
or a sentence in the whole that can by any possible construction be made
to mean that for any libels or printed attack on the public conduct or
opinions of either House of Congress, or of any of its members, that
their privilege shall extend to ordering the persons charged with the
offence before them, and imprisoning them at their will. The
constitution wisely determined, that they should possess all the powers
necessary to their formation, and the undisturbed order of their
proceedings, and the safety of their members from arrest, during their
attendance, and going to, and returning from Congress; but it at the
same time recollected, that it is the nature of our Government to invite
examinations of public measures, that it is the duty of our citizens to
make these inquiries, to watch over the proceedings of our public
bodies, and if they find them departing from the constitution, or
exceeding their authority, instantly to announce it. That our
constitution supposes no man, or body of men, to be infallible, but
considers them all as mere men, and subject to all the passions, and
frailties, and crimes, that men generally are, and accordingly provides
for the trial of such as ought to be tried, and leaves the members of
the Legislature, for their proceedings, to be amenable to their
constituents and to public opinion; it however particularly guards the
right of the citizens to investigate their measures; and in case of a
false or libellous attack, it intends, if the power of collecting juries
is fairly exercised, to provide a just and impartial tribunal to decide
between them, to act upon oath, and who ought not to be the particular
friends or enemies of either. On this subject I shall hereafter more
fully remark, and at present take some little notice of an observation
that has been made, and which, with the subject of privileges, should be
considered as preliminary to those that are necessary on the liberty of
the press. It is, that if Congress possessed the power contemplated by
this resolution, it was their duty to pass some legislative act
respecting it, declaring the manner in which it should be executed, and
designating the officer or officers who were to do so; that the people
would then know the manner in which offenders were to be summoned or
apprehended, or brought before them; but this should have been done when
no particular case had occurred, and was before them, and that no
proceeding of privileges in any case like the present, ought to be had
until such act was passed, and the mode of proceedings clearly
ascertained; that if the power was given by the constitution, until
Congress had legislated upon it, in the manner above mentioned, it was
extremely improper for either branch to attempt to exercise it; that a
judiciary department was erected by the constitution, but that Congress
was obliged to legislate upon it, and detail its duties, and provide for
the appointment of officers to execute them, before the powers of that
department could be properly exercised: and that if Congress possessed
the power some gentlemen contend for on this point, they must previously
legislate on it in the same manner. On this subject there can be no
doubt of the propriety of this objection, if Congress possessed the
power; and their never having passed such a law is a strong proof, that
whatever opinions either branches may have entertained, that both did
not suppose they possessed this power, or certainly they would have
legislated upon it. If they did not doubt, or were not sure they did not
possess this authority, why did they not legislate on it at the time
they did on all such other parts of their privileges and powers as they
conceived they had authority to act on. They (that is, Congress) passed
an act on the subject of the election of members of the House of
Representatives, of which that House are the sole judges; each House
detailed, in a particular manner, their rules and modes of
proceeding--this was all that was necessary to be detailed. The
remainder of the clause respecting privileges is so express on the
subjects of privilege from arrest, government of members, and
expulsion, that every civil officer in the United States, and every man
who has the least knowledge, cannot misunderstand them. I assert, that
it was the design of the constitution, and that not only its spirit, but
letter, warrant me in the assertion, that it never was intended to give
Congress, or either branch, any but specified, and those very limited,
privileges indeed. They well knew how oppressively the power of
undefined privileges had been exercised in Great Britain, and were
determined no such authority should ever be exercised here. They knew
that in free countries very few privileges were necessary to the
undisturbed exercise of legislative duties, and those few only they
determined that Congress should possess; they never meant that the body
who ought to be the purest, and the least in want of shelter from the
operation of laws equally affecting all their fellow-citizens, should be
able to avoid them; they therefore not only intended, but did confine
their privileges within the narrow limits mentioned in the constitution.
And here, sir, let me ask, are not these privileges all that are
necessary? They have complete authority to keep order and decorum within
their own chamber, to clear the galleries if an audience are unruly, and
to punish their own members, to take care that no arrests, except for
treason, felony, or breach of the peace, shall keep their members from
their duty, and for all libellous attacks or misrepresentations the laws
are open to them; and if unjustly attacked, no doubt the juries of their
countrymen, who are interested to preserve the dignity and independence
of their Legislature, will give them the most ample satisfaction. But it
is said, "each branch must possess this power to punish for breach of
privileges, which they must judge of as circumstances may arise and
require; that every legislative body, or branch of one, possesses an
inherent right to protect itself, which must be exercised as their
discretion directs, because it may frequently be necessary to exercise
it immediately, when the public safety would make it impossible to wait
for reference to other bodies, or tribunals," and, "that if a man was
approaching to knock you down, it would be absurd, instead of defending
yourself, to deliberate whether you were authorized to do so; that you
must act instantly, as the occasion demands; and that as each individual
in society possesses this inherent right to protect himself, so does
each branch of the Legislature." This, as far I have been able to
collect, is the sum of the reasoning on this subject; and it is said to
be strengthened by the practice and proceedings of the British
Parliament, and the Colonial Legislatures, before the Revolution, and
most of the State Legislatures since, and is now universally received as
the true doctrine on this subject.
That it is the doctrine and practice of the British Parliament, I will
allow; but it was because the doctrines there held are utterly
inadmissible in a free Government; and to prevent any influence from
them, and their precedents, and the improper practice of the Colonial
and State Legislatures, that this limitation of the privileges of
Congress was here purposely introduced. Will any man undertake to say,
that the privilege of the Parliament of Great Britain ought to be that
of the Congress of this country? Do you suppose that all their members,
and their property, and even their servants, should be protected from
arrests during the whole time they are elected for, many of them for
twenty years together, or during their lives? Would it be thought safe
in this country that a small majority of a small body, or single branch
of a Legislature, should claim and exercise the authority, whenever they
please, to send and seize any man in your community, however important,
and confine him in a loathsome dungeon, for six months together, merely
because he has differed with them in politics, and criticised, as he had
a right to do, on their legislative acts? Is it a pleasant sight to our
citizens, to see sergeants-at-arms, with their rods, inquisitorially
seizing freemen, and dragging them to your bar, and there exhibiting
them as criminals, or spectacles to crowded audiences, merely because
they thought they had a right to attack, by argument, proceedings which
appeared to them unconstitutional? Can you have the most distant idea,
that your constitution could have intended thus for ever to shut the
door of inquiry, and make it so penal and dangerous to your citizens
that none of them will dare to venture it? Is it possible for any man to
read the constitution with attention, and then suppose that such could
have been its design? So far from being so, I do assert that great pains
were taken specially to guard against the exercise of any such power,
and I have no doubt that the Congress of 1798 must have been of this
opinion, or else why did they pass the 2d section of the sedition law?
Why did they (improperly in my opinion, because it ought to belong to
the State judicials)--why did they make the crime of writing, uttering,
publishing, or printing any libel against the President, or either
branch of Congress, triable, and punishable, in the federal courts, if
either branch possessed this power themselves? If they have the right to
punish libels, or false, or malicious attacks, why include them in this
act? Their power extends over the whole of the Union, and can reach any
inhabitant, in any State. Is it not therefore clear, that by giving this
authority to the federal judges, to try and punish for written or
printed attacks on either branch of Congress, that the Congress of 1798
did not suppose, for attacks of this kind, made in the papers, there was
any other mode of punishment than by a trial, where the person charged
would have the benefit of trial by jury? Surely this must have been
their opinion, or they would not have had two different modes of trial
and punishment for the same offence. They never would have erected a new
jurisdiction to include a crime, when one sufficiently strong and
energetic existed already; but to prove this still more clearly, let us
inquire, why the constitution should have been so attentive to each
branch of Congress, so jealous of their privileges, and have shown so
little to the President of the United States in this respect. Why should
the individual members of either branch, or either branch itself, have
more privileges than him? He is himself, as far as his qualified
negative goes, a branch of the Legislature; he is, besides, your
Executive, he is the sword of the law, and does he possess any
privileges like these? If a man meets him walking alone in the streets
and insults him, or if one of ruffian manners should enter his house,
and even abuse him there, has your President any privileges like these?
Can he commit and imprison without a trial? No, sir, he must resort to
the laws for satisfaction, where the person charged with the outrage
will be heard, and where each party will have justice done them, by men
who ought to be so impartially summoned as that no undue bias will be
found, when they come to decide. No privilege of this kind was intended
for your Executive, nor any except that which I have mentioned for your
Legislature. The Convention which formed the constitution well knew that
this was an important point, and no subject had been more abused than
privilege. They therefore determined to set the example, in merely
limiting privilege to what was necessary, and no more. Look into the
constitutions of all the States which have been formed since the federal
constitution, and see if they have not done the same. The Constitution
of South Carolina is remarkably explicit and limited on this subject: It
says, "that each House may punish by imprisonment, during its sitting,
any person not a member, who shall be guilty of disrespect to the House,
by any disorderly or contemptuous behavior in its presence, or who,
during the time of its sitting, shall threaten harm to the body or
estate of any member, for any thing said in either House; or who shall
assault any of them therefor; or who shall assault or arrest any witness
or other person, ordered to attend the House, in his going to or
returning therefrom; or who shall rescue any person arrested by order of
the House." These are all privileges, except privilege from arrest or
seizure of estate, mentioned in that constitution; and the slightest
inspection at once shows, that except for disrespect or contemptuous
conduct, in its presence, or threatening or assaulting a member for his
conduct in the House, that no other authority is given to punish--not a
word is said about libels, or attacks by writing or printing, on their
conduct. It is well known that our constitution intended the press to be
free; to be the means of communicating the acts of the Government, and
of commenting on them where necessary; that it supposes that majorities
will sometimes exist, who may wish to overstep the boundaries they ought
not to pass; and, therefore, it provides for them, in the hands of the
people, this wholesome correction of the press, which those who resort
to must use at their peril. If they use it properly, animadvert with
propriety, and really point out defects or usurpations in the
Government, the people will applaud their zeal, and the laws will
support them in their exertions; but if they falsely or maliciously
misrepresent, the law will become the avenger of the Government, and
unprejudiced juries be the means of punishing calumniators. This is the
true footing upon which legislative privilege should be put in every
Government, and it is the one on which it is now placed in the United
States. By this you give sufficient power to punish, for any improper
thing done in their presence, which may disturb the order of either
House, or violate the decorum of their proceedings; and for any supposed
slanderous attack, the tenderness with which you ought to touch the
constitutional right of the public to inquire into public affairs, and
the delicate subject of trial by jury, will always necessarily oblige
you to recur to the latter for redress and satisfaction.
If it was proper, on subjects like this, to refer to British precedents,
I could mention a recent one, which is exactly in point; and shows, that
even in the English House of Commons, the doctrine I contend for
prevails; it is, that in all cases of libels against either House, the
remedy must be by prosecution by the Attorney General, and trial by
jury. In Stockdale's case, Doctor Logan published charges against the
House of Commons, in which he stated, in a variety of ways, that they
had been guilty of great cruelty to Mr. Hastings, Mr. Pitt and Mr. Fox,
and all sides of the House agreed that it was a libel; but, instead of
ordering him before the House, they entered into resolutions directing
the Attorney General to prosecute. It appears to me so clear, that for
all libels or attacks on either branch of the Legislature, in writing or
in print, the mode must be by prosecution, that I do not know it is
necessary to trouble you at this time with any further reasoning on that
head; I will therefore only mention one more, and then conclude this
part of my subject: it is, that from the nature of our Government, where
our PRESIDENT is elective, and obliged to attend to public opinion, even
if he wishes to do so, he will never venture on those bold measures,
which hereditary Executives sometimes attempt. If, then, there should be
some men, whose political talents he is afraid of, or whose inquiries
into his administration give him uneasiness, an Executive, instead of
venturing on any such measure himself, if he can obtain a majority in
either branch, will easily discover some mode of having this man's
political iniquities construed into breaches of privilege; and, under
cover of his friends' influence, immure and silence, during a whole
session, and for half a year, a man, whose arguments were perhaps
unanswerable, and whose system may be the one which your councils may
the next year adopt. I am far from supposing that we are yet so much
advanced in the arts and intrigues of older Governments as to make this
probable at present; it is not however impossible, and must be guarded
against.
The next question is, that of the liberty of the press, as applying to
these defined privileges; and as it is the first time this sacred
subject has been before either House on a question of privilege, I shall
expect your indulgence in making some remarks on it. I shall be very
short; for however fruitful the subject is, yet so much has been said of
it elsewhere, and you must be so well acquainted with it, that it will
be necessary for me barely to state some general principles, as they
apply to the question before you. I feel a pride in saying that in no
country has the press ever been as free as in United America; however
clouded or interrupted this freedom has, in my opinion, lately been, I
entertain a hope that in a few months all its shackles will be removed,
and that the emotions they have occasioned in the public mind will for
ever forbid its being thus fettered again. To no subject have I ever
more carefully applied, than what ought in a well regulated Government
to be the freedom of the press. I well know that where the press is not
free, liberty is but a name, and Government a mockery. I have therefore
endeavored to form, in my own mind, what ought to be the true standard
of the freedom of the press with us; and I have no doubt that it
consists in this: That the printing press shall be free to every person
who undertakes to examine the proceedings of the Legislature, or any
branch of the Government, and no law shall ever be made to restrain the
right thereof; that the free communication of thoughts and opinions is
one of the most invaluable rights of man; and every citizen may freely
speak, write, and print, on any subject, being responsible for the abuse
of that liberty; that in prosecutions for the publication of papers
investigating the official conduct of officers, or men in a public
capacity, or where the matter published is proper for public
information, the truth thereof may be given in evidence; and in all
indictments for libels the _Jury_ shall have a right to determine the
law, and the fact, under the direction of the court, as in other cases.
This is the situation in which the Constitution of Pennsylvania has
placed the press; and it is the true and safe one, upon which it ought
to be placed in every free Government. Here the right to investigate the
conduct of the Legislature, and of official men, is not only recognized
and established, but the constitution seems to require it as a duty,
from the citizens. It says to them, these are men periodically delegated
by you to manage your public concerns--to you, and you alone, they are
accountable for their conduct; nor can you know whether it is
meritorious, or otherwise, but by having the right to examine into it,
and by freely and frequently exercising that right. And would it not be
the strangest thing in the world, when the constitution not only
establishes the right, but calls upon the citizens to exercise it with
alertness, and by no means to neglect it, that if they should happen to
displease a branch of the Legislature, whose conduct they have censured,
that they should be delivered immediately into the power of this branch,
to be dealt with as they please; that the men they had accused, and whom
they had, by the constitution, a right to accuse, should become their
judges? Would not this be a most extraordinary doctrine? Would it not
involve an inconsistency, that ought not certainly to be chargeable upon
the framers of the constitution? In private cases of slander, or
defamation, would you suffer the person abused, or any near connection
of his, or person interested in the event of the suit, to be on the
jury? Certainly not. How much more glaringly improper then would it be,
in cases of a public nature, where the acts of a legislative branch are
censured, and where the charge has been openly and honorably brought
forward, to commit the person who produced it, at once, to the power of
the body whose acts he has condemned! Let us suppose, that in the
exercise of this invaluable right, some disinterested and independent
man, urged by the most honorable and patriotic motives, should conceive
a branch of the Legislature overstepping the bounds of the constitution,
and going into measures destructive of our rights, or injurious to our
interests; that this man should be an important member of your
community, of known integrity and independence of situation and
character, that he should have no private ends of his own to answer, or
any thing in view but the public good; that he has embarked in the
investigation at the entreaty of a numerous and respectable part of the
community, who wished the public mind to be so fairly and fully
possessed of facts, and reasonings on them, as to be able, at the next
election, to determine with precision and fairness on the conduct of
their Legislature; under these circumstances would it be proper to
deliver this man into the power of a body whom he has charged with
misbehavior, or a departure from constitutional principles? Or would it
not be more fair, would it not wear more the appearance of impartiality
in case an examination was necessary into the nature of his charges, or
the manner in which he has made them, and the expressions he has used,
to have a distinct and unprejudiced body, a jury acting under oath, to
decide between them? As far as I know any thing of the principles of
natural justice, I should suppose there was no question on the subject,
and no other opinion ought to be entertained, and that without it there
can be no such liberty of the press, or freedom of inquiry, as the
constitution intends.
And here, sir, let it be asked, why should a Government that means well,
or is confident in its uprightness and ability, ever fear the press? It
should be to them a source of great pleasure, in reflecting that they
had so excellent a mode of diffusing a knowledge of their acts, well
knowing, if they were unjustly attacked, it gave them the most ample
means of defence; and that if it became immoderate and licentious, the
laws were always sufficiently energetic to punish it. How many
individuals when attacked or slandered, have rejoiced that such a
defence has been afforded them; and how indispensable is its free
investigation to the removal of doubts which sometimes crowd about the
characters of public bodies, or men, and which it is necessary to
remove! Public bodies are public property; and so indeed are public men;
who have in any degree rendered themselves conspicuous by their
exertions: few of these, if ever there was one, can expect to be without
personal enemies; these will be in proportion to the talents of the man
they dislike, and his consequence with the people. Men who engage in
public life, or are members of legislative bodies, must expect to be
exposed to anonymous, and sometimes avowed attacks, on their principles
and opinions. Their best shield will be an upright and able conduct. The
best informed will sometimes err; but when their intentions are pure, an
enlightened nation will easily discover it, and pardon the mistake. With
the shield of conscious rectitude, a Government can never dread the
press. It is only in States where the happiness of the people is not the
end of Government, or where an individual or a few possess the whole
authority, that the press is not agreeable to them. Hence, in
despotisms, it is generally odious to the sovereign, and strictly
limited. We have, however, found, even among them, a latitude which
proves that in the most despotic countries, where the sovereign is
conscious of using his power for the good of the people, he fears not
the slanders of the malicious. It is remarked of Frederic of Prussia,
that few princes were more libelled by their subjects; but that in no
country were libels more disregarded: that few, if any, instances ever
occurred of his endeavoring to discover the authors, or to crush, by
punishment, the spirit of inquiry which literary pursuits had diffused
among his subjects. A more remarkable instance is, that of the Empress
of Russia; in giving her directions respecting libels, she says, "great
care ought to be taken how we extend this crime; representing to
ourselves the danger of debasing the human mind by restraint and
oppression, which can produce nothing but ignorance, and must cramp and
depress the rising efforts of genius." I did not expect to have been
obliged ever to have introduced on this floor, Frederic or the Empress,
as examples on the subject of the press. The love of liberty, or a wish
to countenance the spirit of political inquiry, was not certainly among
the reasons for allowing this latitude; but they at once discovered,
that if they wished to govern an enlightened people, the spirit of
inquiry must be unshackled, and an extensive range given to literary
productions. Among the ancients we find Tiberius, and Trajan, and
Titus, allowing absolute liberty of speech and writing, suppressing the
laws against seditious words and writings, and punishing informers. But
the most remarkable instances we have, that freedom of speech and
writing are essential to the liberty and greatness of a people, are
those of Athens and Rome, when republics: in speaking of them, a
celebrated writer says, "that democracy is the nurse of genius, and the
greatest encourager of sublimity." The fact is evident from these
republics. In Greece, Athens was most democratical, and a state of the
greatest liberty; and hence it was, according to Paterculus, "that
eloquence flourished in greater force and plenty in that city alone than
in all Greece besides; insomuch, (says he,) although the bodies of the
people were dispersed into other cities, yet you would think their souls
and their genius to have been pent up within the precincts of Athens."
So the city of Rome was not only the seat of liberty and empire, but of
true wit and exalted genius. The Roman power outlived, it is true, for a
considerable time, its liberty, but the freedom of speech and writing
was gone, and wit and genius could not long survive them.
How applicable, sir, are these instances, and how incumbent on us is it,
if we mean to keep this country a Republic, to cherish the freedom of
the press, to remember that without it seldom any thing great or noble
can be produced, that to shackle it is to chain the mind, and stifle the
seeds of every thing that is generous and amiable! That, in the words of
a celebrated divine, "reason and freedom are our own, and given to
continue so; we are to use, but cannot resign them, without rebelling
against Him who gave them; that to invade them is to encroach on the
privileges we receive from God, and traverse the designs of Infinite
Goodness." We should remember the danger of precedents, and be careful,
as this is the first discussion we have had on this subject, not to
establish improper ones, or lay a foundation for that debasement of the
mind, which always follows the depression of the press.
It is important here to remind you of the anxiety of the State
Legislatures in insisting upon the doors of the Senate being thrown
open, and their legislative proceedings exposed, like the other branch,
to public view. It was done unquestionably with the intent, that minutes
of your debates should be taken, and all your proceedings subject to the
inspection of such of our citizens as choose to attend; but as, from the
distance, very few of the States could have citizens attending, the
great object certainly must have been to have notes taken of the
debates, and printed in the gazettes; that through that channel
information may be transmitted to every part of the Union, and thus the
States become, in the best manner they are able, judges of the talents,
as well as conduct and opinions of their members. That this is of
infinite importance, in a representative government, no man will deny;
but if a printer is to be seized, and dragged to your bar, and perhaps
imprisoned for a mistake, that a law has passed when it is only its
second reading, or that a member of a committee was not summoned to
attend the meeting of the committee, when he was, and did attend, or for
any mistake of this kind, I ask you what printer or reporter will take
your debates? Who will venture on it; because, where will you draw the
line? Will you require that each reporter shall give every word and
observation with exactness, and that the smallest deviation from what
was said on the orders or proceedings of the House, shall subject him to
the odium, and perhaps expense, of a trial at your bar, which must
accrue if he has counsel? If this is the case, no reporter will
certainly attempt to take your debates, and your doors may just as well
be shut again. But, say gentlemen, it is not only for those assertions
which you have mentioned, but for the preceding and accompanying
observations respecting the views and proceedings of the Senate, and of
the members of that body in their official capacity, for which we think
this examination requisite. I have already said, in the commencement of
my argument, that no man can justify the licentiousness of the press,
and that it is perhaps to be lamented that so much invective is used in
the papers on both sides of the question; but that as most of these
observations are on things that did not happen in the Senate room, and
many of them are stated to have occurred near two years ago, and that as
much more violent abuse against the Senate was published in the Federal
paper styled the Gazette of the United States, on the 13th day of
February, and no notice has been taken of it, that it was best, upon
this occasion, to suffer the present to pass unnoticed likewise: that it
is astonishing the honorable mover from Connecticut, who seems to feel
so much for the dignity and character of the Senate on this occasion,
did not, on that of the abuse which was heaped on it for consenting to
stop the enlistment for the army, have similar feelings; and that as he
consented to suffer those animadversions to pass, it would certainly be
doing no great violence to his feelings to deal with the present in the
same way: that perhaps the best mode to lessen the importance of a paper
was, not to treat its observations with either too much notice or
severity; that in politics, as in religion, persecution seldom made
converts; that if I ever had the inclination to raise the importance of
a press, and bring it into celebrity and notice, I would wish it
persecuted, for I never saw a press in a free Government persecuted but
it rose immediately. Attack a press for its political publications, you
instantly convince the people that it is dreaded, and must be of great
importance, and attract their attention. We can never forget the
memorable cases of _Sacheveral_ and _Wilkes_, or how much the English
nation was agitated by them, and we ought to be convinced, that in every
country having the least semblance of freedom, the same consequences
will always flow from the same measures.
I request of you again to consider the importance of the question, how
far, in the case of libels, or attacks in the papers, for their
political opinions, any single branch ought to possess the power,
perhaps in a moment of passion and resentment, to decide on what is to
affect the personal liberty of a citizen? Whether it is consistent with
the nature of our Government, that a single branch, without check or
control, should become judges in their own case? Whether any citizen
charged with a crime, for which he may be punished by the temporary loss
of liberty, is not entitled, by the constitution, to "a speedy trial by
an impartial jury?" And, whether to deny it, in this instance, would not
be to interfere with that provision of the constitution? For my own
part, I have no doubt of it; and, feeling as I always do, most jealous
for the character of this branch, I am apprehensive, should we proceed
in this measure, it may occasion unpleasant observations. Some of its
enemies may perhaps say, that no power is so arbitrary as that of the
unlimited authority of a single branch, acting in its own cause,
revenging its own affronts, and deciding, perhaps more by its own
passions and feelings, than by the justice of the case: that a power of
this kind is worse than a despotism; because there the despot is in some
measure checked by his individual responsibility; for the act being the
official act of the body, is that sort of protection under which an
individual despot cannot shelter himself from the public odium--should
the measure be oppressive, he must alone meet the general censure,
which, thus concentrated, strikes with force; but when divided among a
number, must in a great measure lose its effect. That, in every view of
the subject, we must be convinced that for libels, or printed attacks,
on either branch, the constitution must have intended to give the person
charged the right of trial by a jury, so collected that a cool and
unprejudiced examination might take place, and justice be done to all
parties; that this I had shown to be the case, in the instance I had
mentioned, in the House of Commons of Great Britain; and we surely would
not wish the press should be more free, or the freedom of inquiry into
legislative conduct, more unshackled in England than with us. Look, sir,
into the abuse that is daily poured by the papers of that country upon
their Parliament and Administration, and upon Mr. Pitt and Mr. Fox, and
all their leading members; and yet we see no proceedings of this kind.
Indeed, if we were to believe Montesquieu, and the writers since him, it
is to the freedom of the press alone England owes the portion of liberty
she enjoys--it is the ladder by which she rose, and that which she will
struggle most to preserve. I devoutly hope she will always keep it, and
that we shall likewise maintain it for ever in its utmost purity.
Mr. P. concluded by adding, that if the Senate went into a
consideration of his motion, instead of that of the gentleman from
Connecticut, (Mr. TRACY,) they would probably avoid that part of the
discussion which would be least agreeable, as the subject would be clear
from that locality and personality which attached to the first, and a
decision would take place without any reference to this or that
particular printer; but if the gentleman would postpone the question,
Mr. P. consented to let his motion lie on the table, with a view to its
being printed for the use of the members, that so both propositions
might be compared and considered with more attention than could be done
in any other way.
Mr. COCKE declared that the object which he had in view was nothing more
nor less than to rid the House of the business altogether. He was not
inclined to appoint any special time for the discussion, as the worthy
gentleman from South Carolina (Mr. PINCKNEY) had requested. He had no
idea that it was supposed he had the saving or exoneration of any
printer in view; he had no such thing; but he wished to save the
reputation of this body, which he thought was placed in jeopardy by the
Connecticut motion. Here it is proposed to inquire and examine of and
into this, that, and the other--to bring one printer here, and generally
all persons and papers, who and whatever, just as your committee may
think fit. Suppose this power is doubted? Suppose the persons deny your
power--how are your committee to enforce their mandates? Suppose your
courts of law claim cognizance as a case of libel, are you to have two
prosecutions and two trials for the same offence? Surely, surely, your
committee will have to retire from the untenable ground, and the defeat
will recoil with disgrace upon those of us who attempt to assume powers
neither constitutional in themselves, nor just, even if they were
constitutional. You can call upon somebody--but who?--to inquire who is
the editor of the Aurora. You are to inquire how he became possessed of
a certain bill which he published; what kind of an inquiry is this? How
he procured the sight of a bill, while it was pending in Senate. Why, is
there any crime in printing a minute of our transactions? Your bills are
printed by your own order, for your use, and for the information of the
other House; two hundred copies or more are circulated without any
injunction of secrecy; they are sent off into every State of the Union;
and are you going to make inquiry how the editor of the Aurora got to
see one of them? Why, are not your gallery doors open, and cannot a bill
which has been read in public be possibly remembered, at least, cannot
it be taken down in short-hand? and will you punish every man who shall
repeat, print, or publish what is made public on this floor? Suppose the
editor of the Aurora declines to inform your committee of the mode
through which he obtains his information; he says it is convenient and
useful to him, but his prior engagements do not permit him to divulge
it to you; will you punish him for contempt? But suppose you possessed
of the physical power necessary to procure the information you require
by an application of the torture; while you are straining his muscles
and dislocating his joints, what becomes of the grand palladium of
American freedom? Where is the liberty of the press, which is secured to
the citizens of the Union against Federal usurpation? The constitution
declares that you shall not infringe upon the liberty of the press; and
a power expressly denied to the whole Government, a single branch may
not assume.