A motion was made, by Mr. TRACY, that it be

_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.

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