Front Page Titles (by Subject) : Alexander Addison 1759-1807: Analysis of the Report of the Committee of the Virginia Assembly - American Political Writing During the Founding Era: 1760-1805, vol. 2
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: Alexander Addison 1759-1807: Analysis of the Report of the Committee of the Virginia Assembly - Charles S. Hyneman, American Political Writing During the Founding Era: 1760-1805, vol. 2 
American Political Writing During the Founding Era: 1760-1805, ed. Charles S. Hyneman and Donald Lutz (Indianapolis: Liberty Fund, 1983). 2 vols. Volume 2.
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Alexander Addison 1759-1807
Analysis of the Report of the Committee of the Virginia Assembly
Addison, a judge in the Pennsylvania courts for more than a decade, is best remembered today for his compilations of judicial decisions and opinions issued from the Pennsylvania courts over a considerable period of years. As a judge he spoke out vigorously for enforcement of the federal sedition act of 1798. His charges to the grand juries sitting in his circuit are remarkable for their clarity of exposition of the law as it prevailed in America prior to the new act, and for explaining how the act of 1798 affected earlier law. The comprehensive list of writings recommended for further reading at the close of this collection contains one of these jury charges as well as another jury charge on the same topic made eight years before the sedition act was passed. In the essay now to be read, Addison responds to a state legislative attack on the alien and sedition laws, cited as 508 in Selected List of Writings. A report by a majority of the Virginia legislature exalted freedom of speech and press and justified the right of state interposition to protect speech and press from action by the national government that would inhibit it. Taking on this Virginia document almost line by line, Addison defends Congress, tries to define limits to freedom of the press, and attacks the compact theory underlying the doctrine of interposition. Structurally, these theoretical arguments are similar to those to take place in the 1850s on other issues.
ANALYSIS OF THE REPORT OF THE COMMITTEE OF THE VIRGINIA ASSEMBLY
The Legislature of Virginia, having, on the 21st. December 1798, ordered certain resolutions, censuring the administration of the Federal Government, to be transmitted for the concurrence of the Legislatures of the several states, and receiving in its last session, proceedings of some of the states on those resolutions unfavourable to their views, referred those proceedings to a committee, and received a report, revising, examining, and justifying the resolutions, and solemnly adhering to them, as true, constitutional, and salutary.
The resolutions, embracing a variety of topics, if not intended, were well calculated, as a declaration of war by the state of Virginia against the government of the United States; and the transmission of them to the several states was well calculated to combine every state, under the plausible pretext of preserving the constitution, in a system of hostility against the Union. They have no doubt answered part of the purpose they were intended to effect, in the elections of the several states; and the report now brings them forward, in their best shape, to influence the Union in the election of a President. The report, evidently the work of one man, is drawn up with great art and ingenuity. With some it may be doubtful whether it be the work of a candid mind ingenuously endeavouring to impress on others its own convictions; or the work of an ingenious mind uncandidly endeavouring to persuade others to believe what it believes not itself. Of the end which it prosecutes such is my opinion, that it cannot be prosecuted without a great sacrifice either of principle or of understanding. In this opinion I may perhaps have to claim, and ought therefore to give, much charitable allowance for the steps by which an upright mind may be led to its own deception: but the report will hardly claim apology from defect of understanding. In answers or refutations, a greater diffusion of style is often requisite, than in the propositions which give rise to them. Much of the original subject must be repeated, to make the remarks on it intelligible. And some things, which yet may be doubted, cannot be more shortly expressed. If in the analysis which I am about to undertake of the reasoning in the principal points in this report, I can attain to any considerable degree of its classical brevity of expression, it is more than I expect, and all that I desire.
The 1st. and 2d. resolutions vindicated by the report profess a maintenance of the Constitution, and an attachment to the Union of the United States. This is well if it be sincere: but professions of this kind, put in, by way of protestation, that things in themselves evil, may be construed as favourable as possible, are frequently a preface to matter of very different tendency, and may perhaps be more justly considered as ground of suspicion, than means of justification, of the principal matter.
The 3d. resolution declares “the powers of the Federal Government as resulting from the compact to which the states are parties, no farther valid, than they are authorized bythe grants enumerated in that compact; and that, in case of a deliberate, palpable, and dangerous exercise of other powers, the states, who are parties thereto, are bound to interpose, for maintaining within their respective limits, the authorities, rights, and liberties, appertaining to them.”
Without controverting the ground on which this resolution is supported, or remarking on the vague terms in which it is couched, I shall discuss its main purport, that the states are bound to restrain within their limits the authority of the Federal Government.
Among a variety of senses, of which the word states is susceptible, the report adopts the following, as the sense in which it is to be understood in this resolution; viz. the people in their highest sovereign capacity. This sense of the word states, the report justly maintains, “because, in this sense the constitution was submitted to the states; in this sense the states ratified it; and in this sense the states are parties to the compact from which the powers of the Federal Government result.” In this sense, therefore, the word states is equivalent to the people of each state, who are parties to the compact of the Union expressed in the constitution of the United States.
This sense of the word states may be farther illustrated and supported by comparing the constitution with the confederation of the United States. The confederation was an act, not of the people of each state, but of the legislature of each state. The delegates who framed it were chosen not by the people, but by the Legislature of each state; it was ratified not by the people, but by the Legislature of each state; and the members of Congress who acted under it were chosen not by the people, but by the Legislature of each state: it was an Union of the Governments, rather than of the people, of the several states; and the governments, not the people of the several states, were the parties to this compact. The delegates who framed the constitution were, indeed, also chosen by the Legislatures of the several states, because they were chosen under the confederation; but they framed the constitution, not in the name of the Legislatures, but of the people of the several states; and they submitted it to the ratification, not of the Legislatures, but of the people of the several states. The people, not the Legislatures, of the several states did ratify it, and made it their act. And the people, not the Legislatures, of the several states, thus became parties to this compact, and choose members of Congress to act under it.
It appearing then, that the people of the several states are the parties to the compact in the constitution, it will not follow that, because the parties to a compact must be the judges whether it has been violated, the Legislatures of each state are the judges whether the constitution has been violated. Yet this is the position maintained by the resolution; and, unless this position be maintained, the resolution fails. It seems clear, that the reasoning in the resolution does not support it: and I know no reasoning that can support it. To give the reasoning in the report its full force, it amounts to this, and to this only. The people of the several states in their sovereign capacity are parties to the compact in the constitution; every party to a compact may judge of its violation: the people of Virginia, in their sovereign capacity, are a party to this compact; therefore the people of Virginia, in their sovereign capacity, may judge of its violation. It is manifest that this reasoning will not support the resolution; for it claims a right of the Legislature of Virginia to judge of the violation of the compact. To support the resolution, the reasoning ought to be thus. The Legislature of Virginia is a party to the compact; every party to a compact has a right to judge of its violation; therefore the Legislature of Virginia has a right to judge of its violation. The premises are false, the conclusion is not true, and the resolution fails.
The people never act, in their sovereign capacity, but either in framing or dissolving a constitution. While the constitution is in force, the people are either subjects or agents of the constitution. The powers of sovereignty are divided by the constitution among several agents; the legislative, the judicial, the executive, and the elective agents. One or more of these powers may be exercised by the people; but not as sovereigns, but as agents of the constitution. Each of these powers may be considered as a part of the sovereignty, and the agents may be called the sovereign for that part, and for that part only. For whenever they act on subjects not commited to them, they are usurpers, not sovereigns. And the Legislature, acting on a judicial subject, is no more sovereign, than the Judiciary acting on a legislative subject. It is usurpation in either. The people of the United States have, for general purposes, united all the states into one state, territory, or empire; and have given general legislative, judicial, executive, and elective power to agents for this empire. The people of each state have given legislative, judicial, executive, and elective powers, within their several limits, to agents for those limits. By authority derived from the people of each state, subordinate powers are given to agents for inferior districts of each state. Within their powers, those subordinate agents are as much sovereigns as the Legislature of the state. And the Legislature of Virginia has no more right to arraign the exercise of the powers of the Legislature of the United States, than county Commissioners of Pennsylvania, to arraign the exercise of the powers of the Legislature of Pennsylvania. The right of judging of the exercise of the powers of the Legislature of the United States is vested in the Judiciary, or (to use the words of the report) in “the people in their highest sovereign capacity.” The members of the Virginia Assembly were chosen by the people of that state to make laws for Virginia, not to judge of the laws of the United States. When they undertake to judge of the laws of the United States, they act not in a corporate or sovereign capacity, but give their opinion as individuals, and without any public authority.
The exercise of this judicial power, over the acts of the Federal Government, by the state Legislatures, is as dangerous as it is illegal; and, with such exercise of power, it may be averred, that the Union cannot subsist. The Legislature of Virginia consists of more members than the Congress of the United States; and the Legislatures of the other states are numerous. I shall not make any invidious distinction between the capacity and information of the members of the several state Legislatures, and of the Federal Legislature; but I may fairly state that influence is not in proportion to capacity and information, nor these in proportion to number; and I may fairly presume, from the importance of the subject, and the opportunity of discussion, that the capacity and information of the Federal Legislature is superior. Their integrity may be presumed equal: for all are equally bound by the laws; and equally influenced by a contest for power. And the chance, that the Federal Legislature is in the right, may be better, from the habit, under the confederation, of exercise by the state Legislatures of powers vested by the constitution in the Federal Legislature. Extinguished claims do not readily yield to new rights. Supposing therefore the authority of the Federal Legislature to be legal and proper, what chance would there be for its preservation (with a people not always possessing the best means of information, and not seldom corrupted by false information) in a contest between it and the Legislatures of all the states, each claiming to act by authority? In such a contest, the preservation of the Federal Government would seem to be a matter rather of miraculous, than of just, calculation; no reasonable man would calculate upon it; and the dissolution of the Union would be a consequence almost necessary.
If each of the state Legislatures has authority to judge of the acts of the General Legislature, what chance would there be for uniformity of decision? Endless diversities of opinion would exist; the passions of the people would be embarked and distracted; and the Union would be dissolved.
The people of each state, the parties to the compact, have not vested their several Legislatures with this judicial power. They have given it to other agents, the Judiciary departments, rising in various grades, from a Justice of the peace to the Supreme Court of the United States, and all being the agents of the people. By suffering this power to remain where the people have placed it, uniformity of construction can be regularly and happily attained. If corruption is to be presumed, will the Legislature, a numerous body, with little profit or duration attached to their authority, have greater respect for their character, than the Judiciary will have? If there be a paramount judicial authority, its exercise results not to the Legislature, which is but another agent of the people, for another purpose, but to the people of each state, the parties to the compact, who can correct the evil in their elective or sovereign capacity.
The 4th. resolution “expresses deep regret, that a spirit has been manifested by the Federal Government, to enlarge its powers by forced construction of the Constitution, and a design to expound certain general phrases so as to destroy the effect of the particular enumeration, which necessarily limits them, and so as to consolidate the states into one sovereignty, the tendency and results of which would be to transform the republican system of the United States into an absolute or mixed monarchy.”
As instances of “a spirit in the Federal Government, to enlarge its powers by forced construction,” the report enumerates “The Alien and Sedition acts, the Bank-law, and the Carriage-tax.” The two first are the subjects of very severe censure in a subsequent resolution. I shall on this point only observe, that the judiciary of the United States, the agents of the people for this purpose, have determined, that the Sedition act and the Carriage-tax are within the constitutional power of Congress, by a just and not forced construction; and it lies not in the mouth of the Virginia legislature, to controvert this. And, with respect to the Bank law, it will be recollected, that the Congress under the confederation did deliberately, solemnly, and almost unanimously, incorporate and establish the Bank of North America,* which remained in existence at the formation and adoption of the constitution of the United States. So notorious an exercise of this power, by a Congress of far less authority than that which established the Bank of the United States, unrestrained and unnoticed by the constitution, seems a strong argument, that the power to establish Banks existed in Congress under the confederation, and exists under the Constitution. This argument is strengthened by this circumstance, that Mr. Madison, one of the four members of Congress who voted against the establishment of the Bank of North America, and a member of the committee who made the report to the Virginia Legislature, was a member of the general convention, which framed, and of the Virginia convention which adopted, the constitution. Strength is also given to this argument by the general acquiescence in the establishment of the Bank of the United States. So that the censure of the report looks rather like a pettish adherence to an obstinate prejudice than a sound opinion of a constitutional point.
“The design to expound certain general phrases in the Constitution, so as to destroy the effect of the particular enumeration which necessarily limits them,” has, it seems never manifested itself in any act of the Federal government; and the report justifies the resolution, from a vague reference to “debates in the Federal Legislature,” from “a report of the late Secretary of the Treasury on manufactures,” and from “a report of a committee of Congress on the promotion of agriculture.” Admitting the censorial power exercised by the Virginia Assembly, their vigilant exercise of it is highly meritorious, since it is not merely corrective but preventive, and, like the laws of Heaven, extends not merely to the conduct but to the heart, not merely to acts but to designs, not merely to any branch of the administration, but to every member and agent of any branch.
The resolution mentions no general phrase, which a design appears so to expound, as to destroy the effect of the particular enumeration necessarily limiting them. This defect is supplied by the report, which states, that “the general phrases here meant must be those of providing for the common defence and general welfare.”
The proofs of a design to pervert the construction of these phrases are debates in Congress, a report of the late Secretary of the Treasury, and a report of a committee of Congress. No debate in Congress is specified as a proof of this. If any were, it would be proof only of a design or mistake of the individual member. It is stated “that in the Secretary’s report, it is expressly contended to belong to the discretion of the National Legislature, to pronounce upon the objects which concern the general welfare, and for which, under that description, an appropriation of money is requisite and proper. And there seems to be no room for a doubt, that whatever concerns the general interests of Learning, of Agriculture, of Manufactures, and of Commerce, are within the sphere of the National Councils as far as regards an application of money.” “The reports of the committee on agriculture” (it is stated) “assumes the same latitude of power in the National Councils, and applies it to the encouragement of agriculture.” It was not thought prudent to mention, that these principles had been sanctioned by the judgment of the late President of the United States. The venerable name of Washington, whom even envy and malice, the constant attendants of living virtue, now cease to disturb in his grave, might have covered these principles with such a shield of integrity and wisdom, that the assaults of the Virginia Assembly would have been harmless. But, without sheltering them in the shade of an Illustrious name, let us examine the reasoning with which they are opposed.
The report of the Virginia committee states, that the power given to Congress by the constitution, “to provide for the common defence and general welfare of the United States,” is limited by the subsequent enumeration of particular cases, and extends not beyond them. This position it supports, by the similarity of expression in the 8th. article of the confederation, and in the 8th. section of the 1st. article of the constitution of the United States; and by a conclusion, that if the general phrases were so limited in the confederation, they must be so limited in the constitution. The conclusion might have appeared just, if the constitution had manifested no design to enlarge the powers of Congress; if our union under the constitution had been, as under the confederation, an union of governments, and not, as to general purposes, an union of people; and if Congress were not now, what it was not formerly, a representation of the people in each state, as the Assembly of each state is a representation of each county of that state. In such a great change of circumstances, the conclusion, that the powers remain the same, is hardly logical, and surely not necessary.
The Virginia report contends, that, though Congress has power to raise money and apply it to provide for the general welfare of the United States, it has no power to apply money to any case not specially enumerated in the constitution. Whenever money is to be applied to a particular measure, a question arises whether the particular measure be within the enumerated authorities vested in Congress. If it be, money may be applied, if it be not, no such application can be made. This interpretation is enforced by the clause in the constitution, which declares that no money shall be drawn from the Treasury, but in consequence of appropriations made by law. An appropriation of money to the general welfare, would be deemed rather a mockery, than an observance, of this constitutional injunction.
The Great Father of his country, the committee of Congress, and the late Secretary of the Treasury, may be fairly believed as competent to give a just interpretation of the constitution as the Virginia committee, and their interpretation will not be weakened by the interpretation of the Virginia committee, but so far as this is supported by reasoning. The late Secretary of the Treasury says, and he is supported by the late President, and by the committee of Congress, that it belongs “to the discretion of the National Legislature, to pronounce upon the objects which concern the general welfare, and for which, under the description, and appropriation of money is requisite.” The necessity of an appropriation before money can be drawn, and the mockery, if there were any, of an appropriation to the general welfare, will not operate against this interpretation. Congress will first pronounce, that a certain measure is necessary or conducive to the general welfare of the United States, and direct the manner of its establishment, and then appropriate money to that particular measure.
There is nothing therefore in the Virginia reasoning to invalidate the interpretation of the late President, the committee of Congress, and the late Secretary; and it will not be pretended, that, on mere authority, the interpretation of the Virginia committee or Assembly deserves a preference.
The Virginia report argues not fairly. On the presumption that Congress has no powers but those specified in the constitution, it concludes, that the power by the first clause of the 8th. section of the 1st. article of the constitution granted to Congress “to raise money to provide for the general welfare,” is explained and limited by the subsequent clauses, which specify the instances, and the only instances, in which Congress has power to provide for the general welfare of the United States. On this ground, all the other clauses of this section, are but an explanation of the first clause, and Congress has no power but one, to raise money, or, in the words of the constitution, “to lay and collect taxes, duties, imposts and excises;” and all that follows of this section is only descriptive of the objects, to which this money is to be applied; the first clause describing the object in general phrases, and the other clauses detailing the particular measures comprehended within those general phrases. This section will then amount to this: Congress shall have power to raise money, in order to borrow money, in order to regulate commerce, in order to establish an uniform rule of naturalization and uniform laws of bankruptcy, in order to regulate the value of money and fix the standard of weights and measures, in order to provide for the punishment of counterfeiting, in order to secure to authors and inventors the exclusive right to their writings and discoveries, in order to constitute tribunals, in order to define piracies, in order, &c. &c. and for no other purpose whatewer. This interpretation of the constitution will seem absurd, but it is clearly supported by the reasoning of the Virginia committee. If their interpretation can be supported, mine may be also, and if mine fails, so must theirs. For if the phrase “general welfare,” do not imply a distinct power, (or duty which involves a power) but be limited by the subsequent phrases, all the subsequent phrases taken together can mean no more than it.
Admitting that Congress has no powers but those specified in the constitution, and that the 8th. section of the 1st. article is a specification of their powers, it seems clear, that (instead of the first clause being general phrases explained and limited by the subsequent clauses) every clause gives a distinct power, and every power is coupled with a duty, the discharge of which is submitted to the discretion of Congress. Thus the first clause imposes on Congress a duty “to provide for the common defence and general welfare” of the United States; and submitting to the discretion of Congress what objects or measures are necessary or conducive to these ends, for their accomplishment gives to Congress a power “to lay and collect taxes, duties, imposts, and excises.” The second clause gives another power to the exercise of which a duty is necessarily imposed, whenever Congress, in its discretion, shall think its exercise necessary. And so of every other clause of this section.
It seems strange indeed, that expressions in the confederation, which gave no internal legislative powers to Congress, should, by the Virginia committee, be aplied to limit expressions in the constitution avowedly made to give to Congress internal legislative powers. Under the Confederation, it was the duty of Congress “to manage the general interests,”* to provide for the common defence and general welfare of the United States; but for this purpose, they had no power to raise money. The constitution has, to this duty, united this power; and Congress has, under the constitution all the superintending and provident duty which Congress had under the confederation, together with all the legislative power, for the discharge of this duty, which the confederation had left with the several states. The 8th. article of the confederation was not a limitation of the powers of Congress, but a direction how the money, for the exercise of those powers, should be raised by the states. The necessity of an auxiliary state power, to enable the Federal Government to discharge its duties, and the impossibility of efficaciously obtaining this aid, was the great defect of the confederation. This is supplied by the constitution, which gives to Congress all legislative power, for the execution of their duties; and makes the government of the United States a compleat government with all powers within itself for general purposes. In judging of the power of Congress under the constitution, we must not limit it by the power of Congress under the confederation: for it has now all the power which the former Congress had to prescribe and require, and the power which the state legislatures had to execute or provide means for executing the prescriptions and requisitions of Congress. The proper comparison between the powers would therefore be, that in cases where the former Congress could officially, and for the general welfare, require the state legislatures to pass laws; the present Congress can pass those laws itself. Thus if the former Congress had declared to the several state legislatures, that the United States were in danger from the residence of aliens, and the prevalence of Seditious Libels; and that the general welfare required that each state should pass Alien and Sedition laws; would any one doubt that it was the duty of each state to obey this requisition? And if it was the duty of each state legislature to do so then; is it not the duty of Congress to do so now when legislative powers have been given to enable Congress itself to discharge all its duties?
As the Constitution thus enlarged the powers of Congress, it enlarged also the control of the people over the exercise of those powers, by giving to the people of the United States the immediate election of Representatives in Congress, without whose consent no act of Congress can be made. So that now the General Legislature having power over all general concerns and care of the general welfare, ought to be deemed as immediately the representatives, and as justly intitled to the confidence of the people of the United States, as the state legislatures are the representatives, and intitled to the confidence of the people of their respective states. The welfare of the several states is intrusted to the care of their several legislatures; and the general welfare to the General Legislature, with competent powers to each for the discharge of the duties imposed.
As the Constitution plainly gives to Congress power over the means to provide for the general welfare, the propriety of exercising this power by the Representatives of the people of the United States can hardly be questioned. The regulations of no state can extend beyond its own limits; and the concurrence of all the states, in every measure necessary for the general welfare, is not to be expected, or must be tardy and incumbered. If Congress, therefore, do not apply their power over the means to every case of general welfare, some cases will be unprovided for; and Congress by neglecting to apply its power, will neglect its duty, and betray the interests of its constituents, the people of the United States.
The condition in which the Virginia report would place the nation of the United States is singularly absurd; a nation without authority to provide for its own welfare. the individual states cannot provide for it: for their authority is limited within their several boundaries. Congress, as the report says, cannot provide for it: for its authority extends only to some cases of the general welfare. The constitution is not so absurd. It gives to Congress power over the means, and imposes the duty of providing for the general welfare in all cases whatever, to which in its discretion the means ought to be applied. And this power and discretion is to be controlled, like the power and discretion of the state legislatures, by the judiciary, or by the people in their elective or their sovereign capacity.
If such then be the just construction of the constitution, the objection stated in the report, that it tends to consolidate the states into one sovereignty, has no force; for the constitution is the work of the people of the United States; and an objection to a just construction of the constitution is an objection to the constitution itself, which is an objection to the act of the people of the United States, and will not lie in the mouth of the Legislature of Virginia, who are but agents, for a particular purpose, of a part of the people of the United States.
Ever since the “United States assumed a separate and equal station among the powers of the earth,” they have been, as every nation must be, consolidated, as to general purposes into one sovereignty. The confederation vested the powers of this sovereignty in Congress; and the constitution enlarged the powers of this sovereignty, enlarging also the control of the people over the exercise of those powers. The enlargement of the general authority of the United States, become indispensable, was effected by a diminution of the individual authority of the several states. What was taken from one set of agents of the people, was given to another set of agents of the people; and the control of the people over their agents was still preserved. The authority of the people was not diminished, the power only of their agents was altered. That there should be a sovereignty, or power co-extensive with the territory, and adequate to the general wants and welfare, is not an objection, but a praise, to the system of government adopted by the people. If it can be urged as an objection, it will lie only against the extent of territory, not the extent of power, and will conclude, not to a diminution of power, but to a diminution of territory—to a dissolution of the Union—a separation of the states. Is it to this conclusion that the report would lead?
That a power to raise money in order to provide for the general welfare, or a power to provide for the general welfare, should, by any possible construction be so extended as to amount to a power to legislate in all cases whatever, and so to consolidate the states into one sovereignty, seems a supposition so extravagant, that I cannot persuade myself, it will ever be honestly and seriously urged. But admitting it possible (probable it is not) is it a greater evil, that the general welfare of the United States should be provided for by one body of representatives of the people, instead of several; or should be left altogether unprovided for?
This dreaded consolidation of the states, and its portended result, the transformation of our republican system into a monarchy, I cannot consider as the work of honest rational conviction, but as either the fiction of fancy, or the delusion of party on the passions, prejudices, or inexperience of the people. If it have a rational foundation, it must be this, that a general authority of a republican form cannot be exercised over so extensive a territory as that of the United States. From this position the conclusion will be, either that there must be a diminution of territory, in other words, a separation of the Union; or our republican government must be changed to a monarchy; or the welfare of the United States must be unprovided for, which, in other words, is, that the powers shall be incompetent to the purposes of government. Can any fears of a change of government justify the withholding from government the means of providing for the welfare of the people?
The report contends, that the result of consolidation will be monarchy, “because the legislature will increase the prerogative of the executive, by delegating to it legislative powers; because the consolidation will increase the patronage of the executive; and because this increase of prerogative and patronage will either enable the Chief Magistrate, quietly and repeatedly, to secure his election, and finally to regulate the succession; or will render the elections of Chief Magistrate so violent and corrupt, that the public voice itself might call for an hereditary in place of an elective succession.”
I shall not spend time in discussing conjectures like these; but will just observe that any prerogative, given by the legislature to the executive, may be restrained, or reclaimed by the power which gave it, and the legislature will always be under the control of the people; that the people will always control the election of President in spite of all patronage, while they remain uncorrupted, and fit for the exercise of their rights; that if corruption in the people admit hopes of monarchy, such hopes, with the present or without any patronage, will excite violence sufficient to produce the effect dreaded from it; and that, if the public voice ever call for an hereditary succession, no constitutional provisions can prevent it.
But I am not convinced that a republican form, with a proper distribution of authority and power, is incompetent for the government of an extensive territory. If there be a well organized general and subordinate government; if there be, in the general government, a power to provide for the general welfare; and, in the subordinate governments, a power to provide for the particular welfare; and if there be, in each of these authorities, a force to secure the execution of them, and make the power and benefit of government be every where felt; a republican government may promote and serve the happiness of the people of an extensive territory.
The 5th. resolution “protests against the palpable and alarming infractions of the constitution in the cases of the Alien and Sedition acts; the first of which exercises a power not delegated to the Federal Government, and by uniting legislative and judicial powers to executive, subverts the principles of free government, and the provisions of the Federal Constitution; and the other of which also exercises a power not delegated, but expressly forbidden by the constitution, a power which, more than any other, ought to produce universal alarm, because leveled against that right of freely examining public characters and measures, and of free communication among the people, which has ever been justly deemed the only effectual guardian of every other right.”
The report, viewing this as the great leading resolution, enters into an ample investigation of it. As the Alien and Sedition acts have been elsewhere so clearly justified, I shall endeavour to confine my observations on this part of the report (interesting as it professes to be) to such points as have been less notoriously and fully discussed.
To shew that the Alien act is an exercise of power not delegated to the Federal Government, the report makes some preliminary observations, and answers arguments urged in justification of this power.
The first observation is, “that the powers not delegated to the United States, by the constitution, nor prohibited by it to the states, being reserved to the states respectively or to the people,”*it is incumbent to prove, that the constitution grants every power exercised by the Federal Government.
It is sufficiently understood, that their amendment of the constitution here relied on, like other amendments, made little, if any, alteration of the constitution. Borrowed from the confederation, it proceeded from a false jealousy, rising from a false principle, and applying to a compact made by the people, of power to be exercised by representatives of the people, restrictions in a compact made by the governments, of power exercised by representatives of governments. However this may be, it will not be pretended, that this amendment deprives the government of the United States of any power given it by the constitution; nor that Congress, under the constitution, has less power than Congress had before; nor that any nation would be so absurd, as to form a government without power to manage its general interests, and provide for its common defense and general welfare. Nor will it be denied, that the government of the United States has power to carry on intercourse with foreign nations, make war or peace, or form treaties of alliance and commerce; and that no individual state has any authority to interfere in any foreign affairs; nor that the government of the United States is intrusted with the management of its general interests, with providing for the common defense and general welfare, with the protection of each state against invasion, and domestic violence, with the preservation of the peace and safety of the United States, and with power to make all laws necessary and proper for executing its powers and duties. Nor will it be denied, that aliens may be dangerous to the peace and safety of the United States; nor that the government of every other nation has power to remove aliens, when and how it chooses, on all reasonable occasions, in any reasonable manner, without any respect to the rules by which it is governed in the punishment or restraint of its own subjects. The declaration of Independence, which raised the United States to the rank of a nation, gave to any government, which the people of the United States should establish with the charge of common defence and foreign intercourse, all the rights which the law of nations gives to every sovereign government. The people have established the government of the United States with this sovereign charge, and the law of nations gives it all sovereign rights with respect to other nations. The restrictions of the constitution are not restrictions of external and national right, but of internal and municipal right. And power over aliens is to be measured, not by internal and municipal law, but by external and national law. It affects not the people of the United States, parties and subjects to the constitution; but foreign governments, whose subjects the aliens are. Foreign governments, parties to the code of [inter]national law, may call the government of the United States to account for the abuse of its right under this law; but the constitution of the United States restrains it not. The government of the United States being exclusively vested with the power of peace and war and foreign intercourse, must be exclusively vested with the means (and the admission or expulsion of aliens may be one of the means) of producing or affecting either. And being charged with the common defence and protection against invasion and domestic violence, the government of the United States, with a discretion to judge of the proper means, must be vested with all means conducive to these ends, and confident, according to their respective objects, with the municipal law, and the law of nations. The constitution could never intend to make the government of the United States, as the report would make it, a government of duties without powers: for it was framed expressly to add powers to duties. The constitution was established by the people of the United States, “to form a more perfect union, insure domestic tranquility, provide for the common defence, and promote the general welfare.” Any construction of this constitution, not unavoidable, which would deprive the government of any proper means to promote those ends will be rejected. Whatever is fairly involved in any power granted by the constitution, is a power granted by the constitution, and cannot be restrained by the provision that the powers not delegated are reserved. And all powers of peace and war, and foreign intercourse, and therefore the means of producing or affecting either, are delegated to the United States by the constitution, and prohibited by it to the individual states.
The next observation is, that there is a distinction, by the law of nations, between alien enemies, and alien friends. To be sure there is: Alien friends have by the law of nations certain hospitable rights subject to the reasonable discretion of the government under which they live; and alien enemies have no rights. But the question is, whether every government may not, when it judges it proper for its own safety, order and compell “aliens, members of a friendly nation,” to depart out of its territory. Every government has, by the law of nations, authority to do this. The right of a nation to the exclusive enjoyment of its own territory is, like the right of an individual to the exclusive enjoyment of his own house, a perfect right, subject only to the right of hospitality, an imperfect right, at the discretion of the owner. This is a doctrine too well established by the law of nations, to need any authorities to support it: a very slight inspection of any book of this law will justify it. And, on this principle, it was thought necessary, to stipulate in the confederation,* that “the people of each state shall have free ingress and regress to and from any other state, and enjoy therein all the privileges of trade and commerce.”
A third observation is, that “admitting the object of the alien act to be preventive, not penal justice, and within the power of the Federal Legislature; this power has not been exercised in a constitutional manner.”
I hope, it has already appeared, that this power is given to the government of the United States: and, as its object is not municipal justice, either penal or preventive, but public national defence, and as it affects no party to the constitution, but a party to the law of nations; its exercise is to be regulated, not by the constitution or municipal law, but by the general law of nations. Has the constitution prescribed, that aliens, like “the citizens of each states, shall be entitled to all privileges and immunities of citizens in every state?” Was the denial or retraction of an imperfect right, a favour or indulgence, ever called a punishment? Or has the law of nations ever called the removal of aliens a banishment: It were well if the Virginia Assembly would allow to Congress as much preventive vigilance, with respect to dangerous aliens, as they have themselves exercised in their assumed authority on the design to expound general phrases; and would as readily suppose that aliens may be dangerous, as that the government of the United States may be corrupt.
Having made these observations, the report proceeds to answer the arguments by which the alien act has been justified.
The first answer suggests a doubt, whether the discretionary power of admitting aliens be vested in the Federal Government, or in the state governments; that is, whether, though Congress has power to establish an uniform rule of naturalization, every state has not a power to naturalize, without any regard to the uniform rule of Congress. Can the Virginia committee discover in the Federal Government a design so grossly to pervert the constitution, as is manifested in this doubt? This committee, and the Secretary of the commonwealth of Pennsylvania, in a note to one of the laws of that state, are the only patrons of this doubt that I know.
”But it cannot be a true inference, that, because the admission of an alien is a favour, the favour may be revoked. A grant of land or a pardon may be a favour, but irrevocable. Admission of an alien to naturalization is as much a favour, as admission to residence.”
If the favour be complete in one act, as a grant of land, or a pardon, to be sure, it cannot be revoked. But if the enjoyment of the benefit depend on the continuance of the benevolence, the favor may be revoked. If I convey my house gratuitously, and thereby part with all my right in it; I cannot devest the right I have conveyed. But if I give a stranger a lodging in it for a night, I may turn him out the next day. Admission of an alien to residence is not admission to naturalization: the first is revocable, like a permission; the other absolute, like a grant. The author of the report, who had ingenuity to devise the illustration, did not want judgment to discern the fallacy of the reasoning. Admission of aliens to residence is not a grant of naturalization: this, until the grant be absolutely made, must depend on the continuance of the benevolence of the government towards them.
I pass by the four following answers to justifications of this act, either because the justifications have been sufficiently and publickly established before, or because I think them not necessary.
The next is an answer to the justification, “that the means of preventing invasions are included in the power of protecting against them.”
One would have thought it would not be denied, for it is evident, that a power to protect against invasion did include a power to use all proper means to prevent it, or defeat its success; and what means more proper to protect against invasion can there be, than the means given by the alien act: a power to remove “aliens dangerous to the peace and safety of the United States, or concerned in any treasonable or secret machinations against the government thereof.” As aliens are not entitled to the privileges of citizens, any farther than the constitution and laws direct, and as the constitution says nothing of them, the legislature has a right to prescribe in what manner they shall be dealt with. As the legislature has referred to the discretion of the President, to determine who of them shall be deemed dangerous, or concerned in any treasonable or secret machinations against the government, and as such removed; and as their removal is consistent with the law of nations, by which only it can be judged, and is a proper means of preventing or defeating an invasion, which is clearly the same as protecting against an invasion; their removal in this manner seems clearly within the power and duty of Congress to protect against invasions by a just and natural construction of the constitution. To adopt an illustration used by the report, a municipal power to punish involves a municipal power to prevent: for the judge who can try a breach of the peace, can bind over to keep the peace. What a municipal judge can do in the manner prescribed by the municipal law, the legislature can do or direct to be done, with respect to an alien, in any manner consistent with the law of nations. Will the report deny that a power to protect against an evil includes a power over the means proper to prevent it? What would the committee think of a physician engaged for a yearly sum, who should tell his employer, when seized with a fever, I saw this fever coming on you, and could have prevented it; but I am engaged only to cure, and not to prevent diseases?
The committee seem aware of such absurd reasoning, and only refuse to grant, “that a power to act on a case when it occurs, includes a power over all the means that may tend to prevent its occurrence.” Is not this confounding power with discretion, a reasonable with a wanton discretion, and inferring a want of power from a possibility of its abuse? On such reasoning what power might not be denied?
To lessen the force of the clause in the constitution enjoining the government of the United States to protect against invasion, the report considers it as “either a specification of the power of war in general, before granted, or as a duty superadded to a power;” and reasons thus, “Invasion is an operation of war. To protect against invasion is an exercise of the power of war. A power, therefore, not incident to war, cannot be incident to a particular modification of war. And as the removal of alien friends has appeared to be no incident to a general state of war, it cannot be incident to a particular modification of war.” If this reasoning means any thing it must be this: a power not incident to war is not incident to war; or a power not incident to all war, is incident to no war, or is not incident to invasion. The first proves nothing: for the proof and the position are the same. The second proves too much, and is therefore false: for there may be powers incident to some wars, or to invasion, which are not incident to all war. One of the steps of the syllogism is false, and therefore the conclusion cannot be considered as true. For it is not true, according to the law of nations, that the removal of alien members of a friendly nation, if they are supposed dangerous, is not incident to a state of war, or to every state of reasonably apprehended danger. The report says, that, “without this clause of the constitution, the power to protect against invasion is included in the power to declare war.” This on the principle so much relied on by the report, that general phrases are limited by the particular specifications and every power not specified is refused, is saying, that to declare war is to protect against invasion. Presumptions it would seem are admissable to lessen, but not to enlarge, the powers of Congress.
Without assenting to the reasoning by which the next answer is supported (for I think it exceptionable) I shall not discuss it; because it seems not material to the main point. Can it be supposed that the constitution meant to deny the government of the United States the important right of using, towards other nations, all means, consistent with the law of nations, for the common defence of the states, and their protection against invasion. Nothing appears from the constitution, that can shew, that the people of the United States meant to deny their own government any right, which, by the law of nations, any other sovereignty enjoys with respect to foreign nations: and the alien law affects only foreign nations. The limits of power of any government, towards its own subjects, were never meant to be applied as limits of power of that government towards the subjects of other governments. And the question, whether a government conducts itself well towards a subject of another government, is not a question of municipal, but of national law: it cannot arise between the subject of another government and the government of which he complains, but between this and his own government. How then can the constitution of any one government be made a rule to decide this question?
If the candor and “respect,” which the report professes, has been justly “felt,” the captious censure on an expression in the report of a committee of Congress would have found no place in it. The constitution is the act of the people of the United States, and is the supreme law of the land; and no individual state ever had power of the common defence, or of foreign intercourse, war, or peace.
Not having access, at present, to the alien law of Virginia, from which a justification of the alien law of the United States has been drawn, I cannot satisfactorily discuss the answer to this justification. From the misapplication of the pronoun who, in the statement of that law in the report, it is difficult to say, whether it be the alien or his government, that is the object of suspicion of hostile designs. If it be the alien, the Virginia law is the same as the law of Congress. If it be the state, an apprehension of hostility is not hostility; there is no war, and the alien is an alien friend, who, from the reasoning in the report, ought to be treated as a citizen, and not punished, but for an offence actually committed. And the cruelty so much deplored in the report, would be the same under both acts, if a harmless alien were removed, whether his government were hostile or friendly.
What remains of the report respecting the alien act, as to its union of legislative and judicial with executive powers, and the influence of this union, having been sufficiently and publicly discussed elsewhere; I shall content myself with observing, that this union can only be dangerous, when it is constitutionally and permanently established; not when it is only occasionally permitted by the legislature, for a convenient and practicable execution of legislative power, and always under the control of the legislature, which is under the control of the people.
On this resolution, as it respects the Sedition act, the report states, “that it affirms; 1st. that this act exercises a power not delegated by the constitution: 2nd. that this power is expressly prohibited by one of the amendments to the constitution; and 3rd. that this power ought, more than any other, to produce universal alarm; because levelled against that right of free examination of public characters and measures, and free communication thereon, which has ever been justly deemed the only effectual guardian of every other right.”
I think, I am disposed to treat all public authority, not perverted to improper purposes, with respect, and to examine the report with candour. But so extravagant seem the positions, and so dangerous their consequences, in many parts of this report, that I cannot reconcile them with the ingenuity shewn in it, and, at the same time with sincerity.
First, On the first point, the report begins with observing, “that the Federal Government being composed of powers specifically granted, with a reservation of all others to the states; the positive authority, under which the Sedition act could be passed, must be produced.” I have already mentioned, that this principle was introduced into the constitution, which is a government made by the people, from a false imitation of the confederation, a government made by the legislatures of the states. From this it seems to be contended, that the Federal Government has no power, but such as the constitution expressly gives. There is nothing in the constitution to justify this; and the report afterward admits, “that particular parts of the common law may have a sanction from the constitution, so far as they are necesssarily comprehended in the technical phrases, which express the powers delegated to the government; so far as such other parts may be adopted as necessary and proper for carrying into execution the powers expressly delegated.”
In justifying the Sedition law, it has been urged, that it created no new offence; for every thing punishable under it was punishable at common law. Referring to this argument, the report censures, as “novel and extravagant, the doctrine lately advanced, that the common or unwritten law makes a part of the law of these states in their united and national capacity.” And, to justify this, it reviews the colonial state of this country, and the effects of the declaration of independence, the confederation, and the constitution of the United States.
The report admits, “that, prior to the revolution, the common law was the separate law of each colony, but not operating through the whole as one society; because there was no common legislature or judiciary for the colonies.” This confounds the term common with the term general, and argues, from the circumstance of the unwritten law being called the common law, that there could be no common law, because there was no general legislature or judiciary over all the colonies. This is an abuse of words. It also confounds principles: for it might as well be contended, that there can be no religion where there is no revelation; and no obligation, where there is no power to enforce it.
What are now the United States were separate colonies, settled under the authority of England, and, as part of its territory, subject to its laws: for it is of the nature of colonies, to take with them the laws, rights, and duties of the mother country. The mother country may give its colonies power, more or less, to make laws for their separate internal government, or may combine two or more of them in a confederacy, with power to make laws for the confederacy. But the government of the mother country remains the controlling head, and sovereign power, in a legislative and judicial capacity; unless it devest itself of this authority; or until the colony, as in our case, grow to such strength, as to be able to support itself, and deny the right and oppose the force of the mother country. As a colony of England, therefore, each state was subject to the law of England, the general and controlling law of all; except so far as each had authority from England to alter this general law, according as their several circumstances required.
The law of England is of two kinds written and unwritten. The written is called the statute law, because composed of statutes or acts of parliament. The unwritten is called the common law, because founded on an implied common consent, from long acquiescence in its authority and use. The authority of both is thus equally the will of the community. The common law is founded on the law of nature and the revelation of God, to which all men are subject; on the law of nations, to which every nation is, as a nation, and the individuals composing it, subject towards every other; and on certain maxims or usages, which have long prevailed, and been sanctioned by judicial authority, as naturally rising out of the circumstances by which the subjects of that government were connected with each other, and therefore imposing duties on the individuals of that nation towards each other. Of these maxims or usages some are general, and prevail in every part of England; and some, from the separate authorities formerly existing there, or from other circumstances, are particular, and prevail only in certain parts. Parliament may adopt some part of this common law, and, by putting it in an act of Parliament, make it statute law; or may alter or annul it by act of parliament. Any part of the common law may also cease, or become obsolete, by the circumstances ceasing to exist, which manifestly were the reasons of its establishment: and this will be considered as a repeal by the same authority which enacted. The colonies, therefore, severally carried with them all the common law of England, which was applicable to their circumstances, with power, so far as given by the mother country to alter this law, by the acts of their several legislatures. Thus, the circumstances of each colony more or less differing, and each having a distinct legislature; the common law throughout the colonies would be, in part, general maxims or usages prevailing in all the colonies; and, in part, maxims or usages prevailing only in one or several of the colonies. The government of the mother country was the general superintending government.
The declaration of Independance, though it annulled the power of Britain over the colonies, established no superintending government in its room; and each colony became a free and independant state. But this could not alter any of the law of the several states, except what necessarily resulted from the change of situation. There was a common law in each state before the declaration of Independence, and it remained after this declaration.
From every organisation of individuals, of domestic or commercial connections, of societies, and of governments, certain powers and duties arise; a sort of common law for the good of all concerned in the organisation. Men can neither live without law, nor put every law in express words. Incidental powers, without being expressed, result from every civil organisation: for it is the will of those concerned that it should be effectual for its purposes. Thus, before the confederation, which gave the power, Congress formed treaties; by a sort of common law, which gave to Congress, as the only general organ, the authority usually annexed to such a government. The same idea seems to be expressed in the reports “In the interval between the commencement of the revolution, and the final ratification of the articles of confederation, the nature and extent of the union was determined by the circumstances of the crisis.” It would not indeed be “alledged, that the common law could have birth during that state of things.” It was born long before; “in a time whereof the memory of man runneth not to the contrary.” The colonists brought it with them from their native land, with their other possessions, for their common protection against murderers, against thieves, and against libellers; for the recovery of their debts, the execution of their contracts, and the redress of their wrongs. The people of every state modify it according to their several circumstances; and, so modified, it has been constantly preserved, and will be forever preserved as a rule of right, and standard of action. There never was a time in any society or government, in which a common law did not exist: it is incidental to the constitution of every regular state, and inseparable from its existence. However the condition of men, societies, or governments may be modified; whatever shape or station they assume, certain rights, powers, and duties, forming a common law, is attached to each.
The confederation was not intended to give any legislative or judicial authority to the Federal government, except in a very few instances. But proving that there existed no one general authority over the whole, does not prove, “that the common or unwritten law makes not a part of the law of these states in their united and national capacity.” The confederation altered not the rules or nature of offences, trespasses, or duties: the common law remained as it was, except such alteration as resulted from the change in the government.
The last question made by the report in this review of our state is, “whether the common law, be introduced as anational law by the present constitution of the United States.” Its introduction is admitted, so far as necessarily comprehended in technical phrases, or necessary and proper for the execution of given powers; but beyond this its admission is denied by the report.
It states, that from the provision of the constitution, “that the judicial power shall extend to all cases in law and equity, arising under this constitution, the laws of the United States, and treaties made under their authority;”* it has been inferred, that, besides cases arising under the laws and treaties of the United States, other cases are presumed to arise, by a common law, thus established by the constitution. This inference appears just, and little, if at all, different from the admission made by the report. Every organisation of authority must have the means of protection and execution of the powers vested in it. This is a common law in all countries, and in all cases; and no supposition of other possible or probable constructions can lessen the force of this reasoning.
From the expression “cases in law and equity,” and a subsequent expression “that the appellate jurisdiction of the Supreme Court is of law and fact,” the report would exclude criminal cases from federal jurisdiction; for criminal cases in equity would be a language unknown to the law; and the fact in criminal cases is not a subject of appeal.
There is something in a guilty mind and a bad cause, which will now and then betray itself. In the manner of Samson with the Philistines, we might ask the reporter how he came by the exposition of this riddle. “Criminal cases in equity is a language unknown to the law.” To what law? To the common law surely. The fact in criminal cases is not a subject of appeal. On what authority is this asserted? Not on the authority of the constitution; for it gives appellate jurisdiction in all cases, with exceptions which the report says “do not mean criminal cases.” It is asserted on the authority of the common law only; and yet the report says “the common law has no authority under the constitution of the United States.”
The report having thus palpably admitted the common law as part of the law under the constitution, and having admitted, that particular parts of the common law comprehended under technical phrases are sanctioned by the constitution; the phrase, all cases in law and equity being a common law technical phrase, and adopted in the constitution; we may fairly conclude that under this phrase the common law jurisdiction of the Federal courts is sanctioned.
But on the authority of the common law, which directs that, in criminal cases there is no appeal from the finding of fact by a jury, to conclude, because the appelative jurisdiction of the Supreme Court is both as to law and fact, that criminal cases are not within the jurisdiction of the Federal Courts, is not fair: for it amounts to this, that no words in a description shall extend beyond the meaning of one word. This appellate jurisdiction may be as to fact in civil cases, and as to law in criminal cases: for it will not be denied, that on a judgment on a conviction in a criminal case in an inferior court, a writ to Error will lie in the Supreme Court. And, though, in case of an acquittal in a criminal case, by the common law, a new trial cannot be granted; yet, in case of a conviction, a new trial may be granted by the common law; and if the inferior court refuse a new trial, the Supreme Court may have appellate jurisdiction as to fact to grant it, where the conviction is contradicted or not supported by evidence.
The constitution provides that “all civil officers of the United States shall be removed from office on impeachment for, and conviction of treason, bribery, or other high crimes and misdemeanors.”* But the party convicted shall nevertheless be liable to indictment, trial, judgment, and punishment according to law.† And the trial of all crimes, except in cases of impeachment, shall be by jury, and in the state were the crimes shall have been committed; or when not committed within any state, at such place as the Congress may by law have directed.”‡ Can it be supposed, that the general expressions here used are to be limited to the particular offences enumerated in the constitution; treason, piracy and felony at sea, counterfeiting and bribery: Is not the phrase high crimes and misdemeanors a technical phrase at common law? Is not a libel a misdemeanor at common law? And may we not, from the expressions used in the clauses of the constitution just cited, fairly conclude, that all offences, which are subjects of impeachment, or, when committed at sea, of indictment in the Admiralty courts, are when committed at land, and against the authority of the United States, subjects of indictment in the common law courts of the United States? This opinion is fortified by the amendments to the constitution proposed by the conventions of some of the states, which speak in such general terms of the trial of crimes, of offences, of all suits at common law, of criminal proceedings by states; and of making laws touching religion, as seem to suppose general legislative authority in Congress, and general common law jurisdiction in the courts of the United States.
Whenever a government was established for the United States, with judicial organisation for the trial of offences, there resulted a common law jurisdiction in the Federal Courts, over all offences against the authority of this government. Government, the sovereignty, is as it were the person of civil society. And, like individuals in a state of nature, governments in the civil state will not submit their wrongs to the determination of any other, but to themselves alone. Every offence is an offence against the sovereign. The sovereign alone examines, tries, judges, punishes, or pardons it, according to its own organisation. The state courts cannot try an offence against the Federal government only: there is no law empowering them. Prosecutions there are in the name of the respective states, and punished or pardoned by them. The courts of the United States cannot try an offence only against any of the individual states. Thus the rights and honour of the several governments are respectively reserved to themselves, and full judicial authority vested in each for their several protection.
It is not necessary for me to controvert the position, “that section a of article III. of the constitution is a compleat enumeration of the powers of the Federal courts”: for it is fairly proved from the report itself, that this enumeration includes the common law. But the report is evidently wrong in saying that the second paragraph of the 6th. article is an enumeration of those powers.
If the common law be not a law of the United States, and a guide to the Judges of the United States, and if the description of the law of the United States in the constitution be a precise and compleat enumeration, excluding the rules of the common law, helpless indeed would be the suitors in the Federal courts, outlawed, as it were, from the protection of natural rights, the rules of common justice, of debts, contracts, and property, and of the redress of wrongs. Are not the Federal courts, in trying claims or injuries arising in any state, bound to apply to them the law of the state where they originate, and is not the common law part of the law of each state? May not an action for a libel be brought in a Federal court, by a citizen of one state, against a citizen of another state? Is it not an action at common law, to be decided by the rules of the common law? If this libel be for describing the plaintiff as an impious atheist, a blasphemer of God, will the common law, the principles of religion, be no guide to the Federal judges? Have “the rights of man” no authority in the federal courts, because they are not enumerated in the Federal constitution? Or had they no authority, by a common law, till they were recorded in some constitution? By what law is a promise, contract, or grant valid? What law defines impeachable misdemeanors? By what law do legislative and judicial bodies punish contempts? Is it not by the common law? Have the legislative and judicial organs of the government of the United States no such power? Are they destitute of all such means of protecting their own dignity and authority? And if they have such means, from what law are they derived? From the common law surely.
Confusion has been introduced into the reasoning of the report by an ambiguous application of the phrase common law, using it sometimes as a limit of jurisdiction, and sometimes as a rule of judgment.
Considering the common law as a limit of jurisdiction, the Legislature of the United States, as of every nation, has authority to make all laws necessary or proper for the defence of its own authority, but no other common law jurisdiction; and the courts of the United States have authority to determine all cases arising under any law of the United States, and all cases of misdemeanor, or offence against the authority of the United States. This plainly results from the nature of government, and is fairly deducible from the constitution. But the constitution expressly gives to the courts of the United States a further jurisdiction, either, on the principles of common law, for the protection of the peace, dignity and authority of the government, as in cases of certain crimes, and in the case of foreign ministers, and in cases of maritime law; or for impartiality, as in disputes between citizens of different states, or for titles derived from different states.
As a rule of judgment, the common law, in all cases where it is applicable, is an universal guide to the Judges of the Federal courts. It is no objection to the application of this rule, that it may differ in different states. The common law of England, so far as it rests on general and local customs, differs in different portions of that territory. The Judges apply it, as it exists, as a rule to the case before them. The statute law of each state may differ; the Federal Judges will apply it, as the courts of the state having jurisdiction over the case would apply it. So the common law of each state will be applied by the Judges of the Federal court, as the judges of the state, having jurisdiction over the case would apply it.
It is no objection to the common law being considered by the constitution as a guide to the Federal courts, that this would give it a constitutional establishment, make it part of the constitution, irrevocable by the legislature. The constitution considers the law of each state, both common and statute law, a guide to Federal courts; but leaves all law to be modified by legislative authority, saving always the paramount authority of the United States. The Federal courts, like the state courts, must take the statute law of each state, as it stands in the existing statutes; and the common law of each state, as it stands in established usages and decisions. Whatever parts of the common law are altered by the change of circumstances of the United States, by the constitution or laws of the United States within their constitutional limits, will no longer remain law over cases affected by the alteration.
The picture drawn of the common law, and the difficulties and consequences stated in the report, from the introduction of this law into the Federal code, seem so merely the work of a busy imagination, that any farther discussion of them would be useless.
Its preamble declares, that the people of the United States ordained their constitution, “in order to form a more perfect union, establish justice, ensure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty;” and from this, an argument was drawn for the power of Congress to pass the Sedition-act. The report says, “a preamble usually contains the general motives for the particular measures, and is always understood to be explained and limited by them.” I will say, that, wherever the body of an instrument admits of two constructions, one of which will better than the other promote the intentions expressed in the preamble, that construction which will best promote the intentions is the just construction of the instrument. And it is a less evil, that the restrictions be not adhered to, in the most rigid sense, than that the only government established by the people with general powers should, where a reasonable construction will prevent this, be deprived of a power necessary or proper to promote the general welfare.
The constitution enables Congress “to make all laws, which shall be necessary and proper for carrying into execution all powers vested by it in the government of the United States, or in any department or office thereof:” and requires that the President of the United States “shall take care that the laws be faithfully executed,” and that “the United States, shall protect each state against invasion and domestic violence.” Hence it has been inferred, that, to enable the President to take care that the laws are duly executed, and to suppress insurrections, Congress has power to make laws to suppress the means, by which insurrections and obstructions to the execution of laws are usually excited; and, as seditious libels are the most usual and efficacious means, that Congress may make laws to suppress them. All this seems natural and logical enough. But the report says, that a power for faithful execution does not imply a power to provide that no opposition be promoted; and that a power to protect against insurrection, does not imply a power to prevent it. There is no doubt that libels on the government will excite insurrections; but government shall not suppress libels; for it may suppress the insurrections. Let the libels go on till they have excited an insurrection, and then the government can take all necessary and proper measures for its suppression. If then the combination be such that the government has not force to suppress it, the government is not to blame; it has used constitutional means, and the constitution is overturned in due form.
The report, admitting that the grant of a power involves the means of rendering it effectual, limits those means to such as are strictly necessary for its execution. It, therefore admits that the grant of the crop growing in a field includes a power to cut down, carry off, and secure the grain; but not to repair the fences, nor keep off the cattle from destroying it before it is ripe.
Though Congress has power to make all laws necessary and proper for carrying into execution the powers vested in the Federal Government, yet the report will not admit that this implies a power to make all laws which may have a tendency, whether proper or not, for the execution of such powers. I shall not dispute this point.
Though Congress has power to make all laws necessary and proper for carrying their powers into execution; yet the report contends, that Congress shall make no laws but such as are necessary for this purpose. And, if the law which they make or means which they prescribe be not necessary, but only proper; they have no authority for the law or the means, and they are invalid; for the judiciary alone can determine the propriety of the law or the means!
The report has admitted, that a power to punish implies a power to prevent the mischief. The judiciary will execute their preventive authority, by all the means prescribed by law, whether common or statute law. The legislature will execute their preventive power by statutes. The discretion of the choice of means, necessary or proper, for executing their powers lies with the legislature. If the legislature choose means palpably unnecessary and improper, the judiciary can then only exercise their judgment, by the authority of construction of all laws vested in this branch of government. But the legislature of Virginia ought not, in the exercise of usurped power of judging of the means used by the Congress, or courts of the United States, for the execution of their powers, presume themselves wiser than the constituted authorities. A power over the end implies a power over the means; and a power to make laws, for carrying any power into execution, implies a power to make laws for preventing or removing obstructions to the execution: and it is indifferent, whether those obstructions be acts of violence or acts naturally leading to violence. The experience of other goverments, and of our own, has shewn us, that libels on the powers of government are obstructions to the execution of those powers, and naturally lead to insurrections. Denying the Federal government the power of supressing libels is, therefore, denying it proper means, and may be denying it all means, of executing its powers. For, if the libels proceed, the obstruction of the powers of government may be too strong for removal. This is vesting in the people “the holy right of insurrection,” while the government is vested with the right of suppressing it; and leaving with the people the best means of exercising their right, while the government is stript of the best means of exercising the right vested in it. With such a disposition of powers, we should soon see a very unequal contest, with very fatal effects; and the most summary exercise of the people’s sovereign power over their servants, that the most modern professor of liberty could desire. It would indeed bind the government, hand and foot, from all resistance, till, in this condition, the knife was at its throat. This is the end to which the clamours against the Sedition act and a standing army naturally tend. If the people would preserve their government free they have their choice of the alternative; indictments to suppress sedition, or a standing army to suppress insurrection. A government, possessing force, independent of public opinion, may more safely suffer public opinion to be tampered with. Samson, while he retained his strength, might slumber in the lap of Delilah, amidst the ambush of the Philistines, or be incircled with the walls of Gaza. Let every government watch where its strength lies, and guard it from corruption. If the strength of a government, as of ours, lies in the opinion of the people, the corruption of public opinion will ruin the government. No injury to public opinion is too slight to be overlooked; for every injury to it is a wound in a mortal part. “Lilliputian ties” intwined in Gulliver’s hair made him surrender at discretion, though spears and arrows did him no material hurt.
Second, On the resolution, as it respects the Sedition act the report next states, that the power exercised by this act is expressly prohibited by one of the amendments of the constitution.
The amendment or additional article of the constitution here referred to is the third, which provides, “that Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press.”
The report observes, that, “to vindicate the Sedition act it has been contended; 1st. That the freedom of the press is to be determined by the meaning of this expression in the common law; and 2d. that the article supposes the power over the press to be in Congress, and prohibits them only from abridging the freedom allowed to it by the common law.”
In answer to the first of these, the report says, “It is deemed to be a sound opinion, that the sedition act, in its definition of some of the crimes created, is an abridgment of the freedom of publication recognized by principles of the common law in England.” The meaning of this is, that there are offences declared by this act, for which an indictment would not lie at common law. The report prudently declines supporting this opinion; and I may safely assert, that it is not a sound opinion, and that this act does not create any new offence, and that every offence declared by it would have been an offence indictable at common law in the Federal Courts, if this act had never been made, and would be indictable if this act were repealed.
The people of England, and the common law writers there, say, the press is free there; the report says, it is as free there as here; here and there, it is subject to no previous restraint; here and there, the abuse of it is, by the common law subject to penalties. Yet the report will not admit, that the common law idea of the freedom of the press is the American idea! The circumstances being compleatly the same, it will surely be incumbent on the author of the report to point out the difference in the ideas; and to shew why punishment of the abuse would not as effectually check the freedom of the press there as here.
The sagacious contrast between the principles of the American government and the principles of the British government can give no force to the reasoning in the report, unless it be meant to establish, that, because the sovereign American people can change their government when they please; every individual is at liberty, by lies and without any just reason, to incite the people to change their government whenever he pleases. Or unless it be meant to establish, that the American people ought to have less confidence in a President chosen for four years, than in an hereditary King, or in Senators chosen for six years, than in a hereditary House of Lords; or in Representatives chosen for two years, than in members of the House of Commons chosen for seven years; or, in a word, that it is more an offence to abuse the government there, than to mislead the people by abusing their government here. In any shape in which it is possible to put his report, its author will be obliged to maintain, that among the rights of the American people, one is, that every individual has a liberty to use the press to produce mischief, by publishing falsehood or indecency. For it is well known, that, as by the common law of England, so by the common law of America, and by the Sedition act, every individual is at liberty to expose, in the strongest terms, consistent with decency and truth all the errors of any department of the government.
To contend, that where the government is elective, there ought to be a liberty of the press beyond the bounds of decency and truth; is to contend, that, where the people have a right to choose their magistrates, every individual has a right to misrepresent the character and conduct of the magistrates, to pervert the judgment of the people, and render it impossible for them to make a right choice. The degree of the restraint ought to be in proportion to the danger of the offence. To mislead the judgment of the people, where they have all power, must produce the greatest possible mischief.
The “practice, here and in England,” will not change the law, any more than trespasses will give a right to the soil. It is possible, that, both here and there, too much indulgence has been given to libels: but, in either country, when a libel has been tried and found, has the practice prevented a judgment? Not only libels, but thefts, robberies, and murders have been common in both countries; and the trials and punishments have not been so numerous as the offences. It is not from a corrupt practice, but from a settled practice allowed by judicial decisions, that the common law is to be taken.
That the liberty of the press is an excellent engine to destroy a bad government, and the licentiousness of the press to destroy any government, all experience will confirm. But where the government is, like ours, founded on the people, I venture to assert, that a degree of liberty beyond that given to the press by the common law and the Sedition act, will tend only to make the people miserable, to corrupt and destroy the government, and to introduce anarchy, and, in the end, despotism. Some means of destroying a bad may not be the means of preserving a good government. To preserve a good government the confidence of the people is necessary; but falsehood, if it may be propagated with impunity, may be as fatal to a good, as truth to a bad government. To preserve our best blessings in an useful state, we must restrain unlimited indulgence. The care and industry of man must be constantly exerted for a proper enjoyment of the gifts of Providence. To make the fruit of the tree good and abundant, we must prune its natural luxuriance. And to preserve the liberty, we must restrain the licentiousness of the press.
When it is known, that our Sedition act, like the common law, forbids the publication of only “false, scandalous and malicious writings against the government,” and permits the publisher, if he can, “to give in evidence the truth of the matter;” every candid mind will regret the misrepresentation in the following sentence. “Had Sedition acts forbidding every publication been uniformly inforced against the press, might not the United States have been languishing at this day under the infirmities of a sickly confederation; or, possibly, miserable colonies groaning under a foreign yoak?” By this the author must mean, either that our Sedition act forbids every publication against the government; or that there is as much ground of censure of the government now as before the constitution and revolution; or that there would have been no constitution or revolution, if lies had not been published of the confederation and the British government; or that American juries are not to be trusted with the examination of truth.
The last argument in the report on this point is founded on a fallacy. “The freedom of conscience and of religion are the same by the common law of England, and of America. The difference between the actual freedom there and here is made, not by the common law, but by statutes there; and our constitution restrains Congress from making “any” such statute here, “respecting an establishment of religion, or prohibiting the free exercise thereof.” The right of conscience is a natural right of a superior order for the exercise of which we are answerable to God. The right of publication is more within the control of civil authority, and was thought a more proper subject of general law.
There is nothing therefore in the reasoning of the report that can shew, that the meaning of the words “freedom of the press” is not to be ascertained by the common law. It is a common law phrase. The common law of England is the foundation of our law. Their language is ours. We use the terms of the English law in the English sense of those terms. And where we mean to restrain, enlarge, or alter this sense, we do so in express terms. Where this is not done, a law phrase is nearly as well understood to mean the same thing here as in England, as a mathematical phrase is so understood. The freedom of the press is plain language, to be understood in the common acceptance of this term here and in England. There and here absolute freedom of the press did not exist. In every state, Libels were punishable at common law. With this state of freedom of the press, the people were content, and only restrain Congress from abridging this freedom. Forbidding power to abridge, implies a previous general power over the subject, and leaves a power to punish an abuse of this freedom without abridging it. If this were not so why is there so sudden a change in the manner of expression in this amendment? Why as respecting religion, was it not declared that Congress shall make no law respecting the freedom of the press?
This however is denied by the resolution; and, on arguments drawn from discussions of the constitution previous to its adoption, from propositions of amendment made by some of the state conventions at the time of its adoption, and from the proposition of amendment made by Congress after its adoption; the reports asserts “that this amendment is a positive denial to Congress of any power whatever on the subject.”
It is very clear, that the power exercised by Congress is not included by this amendment; and I think it has been shewn, that it is fairly involved in powers actually given, and necessarily results from the organization of the government; and that it gives no new jurisdiction to the Federal courts; for by the common law, the principles of right and wrong, morality, the rules of religion; the criminal courts of every government must have jurisdiction over this offence. A libel is an offence against all those laws, a violation of the rights of man, one of which is reputation, and is punished under every government in the courts of the government offended by it. No evil can arise from the exercise of this power by Congress as a general authority: it depends on local information; the honor and safety of the general government is involved in it; it is proper, that there should be a general law uniformly affecting this case, and that the courts of the general government injured by the offence, should be the organs of its correction. Under all these circumstances, the construction will be favorable to the power, and an useful power will not be taken away but by strong and express words, and such do not exist, in the amendment.
In the discussion of the constitution, some of its opponents may have charged it with powers which it had not, and some of its advocates may have denied or dissembled powers really in it. Each, with perhaps honest views, may have laboured to carry his point, and if he succeeded knew that false arguments would not affect the determination, and might be forgotten. On similar ground, many in the state conventions acceded to the propositions of amendment. Those propositions gave some justification, to their arguments; with, or without them, the ratification was equally valid, and they made it more palatable; they were supposed harmless, or, if mischievous, they had no force then, and could be opposed again after the constitution was established. At any rate a proposition that a thing should be done, will not control the construction of the act as done, any more than a preamble will control an act. A contract is to be taken not from the previous conversations of the parties, but from the words in which it is expressed in the writing. Virginia was but one of the parties, and, admitting that there might have been, in the convention of that state, a desire to give the Federal government no power respecting the press; this might have been contradicted by the other states. Exclusive of Rhode Island, six states ratified the constitution absolutely. Three annexed propositions of amendment, but not including this respecting the press, though one of them, New Hampshire proposed, that “Congress shall make no laws touching religion, or to infringe the rights of conscience.” And only three states proposed the amendment respecting the press. So that the constitution was compleatly ratified without any view to this amendment, and must be understood to give all the powers which this amendment was intended to restrain; and the amendment restrains only the power to abridge. It is not necessary, therefore to shew, as might be done, that the declaration by the Virginia Convention, admitting it sincere, is founded on a principle, which, though true, will not support it. And were it every way supportable, it is susceptible of a construction, which would defeat that contended for by the report. It combines two powers with certain attributes, which, reddendo singula singulis may be taken thus; the liberty of conscience cannot be modified, and the liberty of the press cannot be abridged, by authority of the United States. But in any construction, how can a law, which only abridges the unlimited degree of punishment for abuse of the press, be said to modify the liberty of the press?
The author of the report must have known that the Virginia Convention in endeavouring to establish the liberty of the press, understood this liberty as every one else does to be a liberty from previous restraint and not from subsequent penalties for its abuse; and did not understand it in the sense contended for by him in the report, a freedom from all restraint previous and subsequent and by him said to be the sense of the Virginia Convention. “A law inflicting penalties on printed publications would,” says the report, “have a similar effect with a law authorising a previous restraint.” Now this Virginia Convention, together with the amendment on the freedom of the press, proposes an amendment, “That every freeman ought to find a certain remedy by recourse to the laws for all injuries and wrongs he may receive in his person, property, or character.” If for all injuries to his character, he ought especially to find a remedy for the worst of all a libel. A verdict in an action for damages may be (and we have a late remarkable instance of it) a severer penalty than any that would probably be inflicted by a sentence on an indictment; it may be a severer penalty than can be inflicted by the Sedition Act. Yet this Virginia Convention, which, the report says meant to make the press free from all restraint previous and subsequent, subjects it to this subsequent penalty at common law without limitation. If the opinion of the Virginia Convention were material on this point, it appears, that it never meant to leave the press free from all restraints for abuse. And (since the report will argue from the opinion of Conventions) it appears from this and other amendments proposed, that a general legislative authority was supposed to exist in Congress, and a general common law jurisdiction in the courts of the United States. And it appears that the Virginia Convention believed, that without the proposed amendment which I have cited, Congress might make a law, denying the right of action for a libel, and therefore might make a law respecting the freedom of the press; and that the Federal Courts might deny that an action lies for a libel, and, therefore, that they had common law jurisdiction, by which alone such action could be brought before them.
The preamble to the proposition of amendment by Congress is no evidence that the amendment declared the press to be wholly exempt from the power of Congress. There are other amendments proposed, which might correspond with the desire of the states, and might extend the ground of public confidence. This amendment was desired only by three states. If it was the intention of Congress to satisfy the desire of those states, by proposing this amendment, it must be presumed that they proposed it in terms corresponding with the desire. None of these states ever desired that the licentiousness or abuse of the press should not be restrained or punished; and Virginia expressly desired the contrary. They desired that the freedom of the press should not be violated or restrained. By the freedom of the press, they must be understood to mean the freedom of the press as it then existed at common law in all the states. The amendment corresponds with this desire, and the Sedition law with this amendment, for it neither violates nor abridges the freedom of the press in the known and established sense of that expression. The intention of those who made the amendment must be collected from the plain meaning of the words used in it. Some may have intended greater restraint, and others less: the question is what is done. Congress must leave the freedom of the press as it was. There shall be no previous restraints on this freedom; but there may be subsequent penalties on the abuse of it.
Third, The last point discussed in this resolution is, “that the power exercised by Congress, in this act, ought, more than any other, to produce universal alarm, because levelled against that right of free examination of public characters and measures, and free communication thereon, which has ever been justly deemed the only effectual guardian of every other right.
On this point, the report, having stated part of the act, makes various observations on it.
“The constitution supposes that the President, the Congress, and each of its Houses may not discharge their trusts. Hence they are made responsible to their constituents, at the returning periods of election. Should it happen, that either of these branches has not discharged its trust, it is proper, that according to the degree of their faults, they should be brought into contempt and hatred of the people. Whether this has happened, can only be determined by a free examination and communication among the people. And whenever it has happened, it is the right and duty of intelligent and faithful citizens, to discuss and promulge it freely, as well, for control, as for remedy; and those who are to apply the remedy must feel a contempt or hatred against the transgressing party. During the continuance of this act, two elections of the entire House of Representatives, an election of two-thirds of the Senate, and an election of a President wereto take place: and, during all these elections, the remedial rights of the people were to be exercised, and the responsibility of their public agents to be skreened under the penalties of their act.”
Who, reading these observations, would not suppose, that the people of the United States were by this alarming sedition-act, restrained from a free and fair discussion of the public conduct of their public agents, with an honest intent of bringing them into disrepute when they deserved it? But does this act forbid this? No: it forbids, as the report itself shews, “a knowingly and willingly publishing a false, scandalous, and malicious writing, with intent to defame the government,” &c. Do the people of the United States wish to retain a right, wilfully, maliciously, and falsely, to publish scandal against their officers? Is this one of the rights of man under a free government? Does the restraint of this right alarm them? Or have they made a constitution to protect it?
It is evident, that the freedom contended for in these observations and the report generally, is a freedom from all restraint; subsequent, as well as previous; from the state governments, as well as from the Federal government: from action, as well as from indictment. For “it is equally a restraint” (says the report) “whether it precede or follow the publication; and so is it equally a penalty, whether assessed by a jury* or by a court, by a state court or by a Federal court.” This freedom is a contradiction to all experience, to common understanding, to natural justice, to the rules of religion, and to the judicial decisions of every state. It is a violation of the rights of man, one of the dearest of which is reputation.
The Sedition act enables the person persecuted for a libel, “to give in evidence the truth of the matter contained in it,” and enables the jury “to determine the law and the fact, under the direction of the court, as in other cases.” But the report says, “its baneful tendency is little diminished by this privilege.” And why is its baneful tendency not diminished? Why is it not entirely removed? Because a restraint from publishing truth would have a baneful tendency; is there any baneful tendency to restrain the publication of falsehood? Because the press ought to be permitted to publish every truth interesting to the public; ought it to be permitted to publish every lie? Because “an intelligent and faithful citizen” has a right, honestly, decently, and freely, to examine the public conduct of every officer, and, by exposing the truth, expose the officer to contempt and hatred; has every impudent or malicious man a right, wilfully, falsely, and scandalously to defame every officer. It is not a free, but a false publication that is prohibited by this act.
But is is objected by the report, that “where simple and naked fact alone are in question, there is sufficient difficulty of meeting a prosecution from government with the proof necessary in a court of law.” This will infer, that in order to save offenders from the trouble of producing the necessary proof in their defence, there should be no prosecutions, but a general impunity for crimes, for murders, rapes, robberies, thefts, misdemeanors in office, &c. Libels of public officers, where the people have a right of election, are offences of great magnitude and dangerous tendency. And it is as safe for a person accused of a libel to have the accusation tried by a jury, as for a person accused of any other offence.
As to “opinions, inferences, and conjectural observations,” they must be drawn from facts. If a man wilfully, maliciously, and with intent to defame, publish an opinion not supported by fact, it is an offence. If there be fact to justify it, he may give it in evidence. If there be none, why should not a wilful, false, and malicious inference be a libel, as well as a wilful, false and malicious assertion. The inference implies the assertion.
As to the intent to defame, the report reasons absurdly, “that in proportion to the guilt of the officer will be the certainty and criminality of the intent to defame him.” Nothing like this can be drawn from the act. The intent to defame is never criminal, where the matter of the accusation is true. All depends on the truth or falsehood of the matter of the publication. If the publication of the officer’s official conduct be true, the intent to defame, however malicious will not make the publication a libel. So that the intent to defame is not criminal unless the publication be false, and is criminal in proportion to the innocence or merit of the officer. There is good reason why the authors of publications against officers should be responsible, that they publish nothing but truth. For if falsehood might be published of officers, and the publishers were liable to no restraint, the whole of an officer’s time might be taken up in examining or refuting slander; or the people concerned in the officer’s character might be misled by false information.
No less absurd, and more pernicious in its application, is the reasoning of the report, from “the right of electing the members of the government.” It proceeds on a confusion of freedom with falsehood; as if a discussion could not be free, without being false, or the restraint of a false were restraint of a free discussion. If “the value and efficacy of the right of election depends on the knowledge of the comparative merits and demerits of the candidate,” the greater ought to be the restraint on falsehood in examining their character. A free discussion will not be pretended to include a false one: it means a full and fair discussion. A full and fair discussion is not forbidden by the Sedition act. It forbids only a false discussion with a malicious intent. It forbids not diffusing information, but diffusing corruption, among the people, misleading their judgment, and seducing them from their duty. It puts not the officer in a state of greater protection than the citizen. Any truth may be published of the officer, which may be published of the citizen; and every truth may be published of the official character of the officer. Would the committee desire more? Because a man is an officer, shall every slander of him be published with impunity? Because Mr. Adams is President of the United States, shall leave be given to mislead the people, by publishing falsehood or slander of him; in order that another candidate, not in such responsible station, may be on equal terms for a chance of election to that office?
A free means not a false discussion, any more than the liberty, means the abuse, of the press. The greatest injury “to the right of election,” and the greatest danger to “the blessings of a government founded on this right,” is slander; which perverts the opinions and choice of the people, and leads them to prefer bad to good men. In proportion to the freedom of the government ought to be restraint on libels. And the sedition-act no farther abridges the liberty of the press, than by declaring that false publications are subject to penalties.
To whom then is the sedition-act alarming? To slanderers, to libellers, to robbers of reputation, to disturbers of the peace, to violators of the rights of man. It is, as law ought to be, “a terror only to evil doers.”
The three following resolutions and the report on them contain only matter less important or already considered. Perhaps Pennsylvania deserves the rebuke which may be implied in the declaration of the patriotism of Virginia, in “maintaining the authority and laws of the Union, without a single exception of internal resistence of commotion.” And while I cheerfully give all due praise to the people of Virginia for this uniform submission, I cannot allow any share of this merit to the authors or promoters of the resolutions or the report. And of the people, for this respect for public authority, we shall find room to praise not only the patriotism but the prudence. There is among them a force, which, if the bands of public authority were relaxed might be fatal indeed.
The resolutions conclude as they commenced, with a profession of affection for the states, and anxiety for the Union. I will not say (for they profess otherwise) that the object of the resolutions is to dissolve the Union; but I may with little hazard of contradiction, say, that they are (especially accompanied with the report) well calculated for this purpose. On the ground that “a wilful and material breach of a part is a breach of the whole compact; having deliberately determined that palpable and alarming infractions of the constitution have been made;” they lay a sufficient foundation for the dissolution of the Union. And I will say also, that, in making this deliberate and solemn determination, the legislature of Virginia is mistaken, and has usurped a power not given to it by the people; but given to the judiciary, or reserved to the people themselves, as parties to the compact, in their highest sovereign capacity. This is a deliberate, palpable, dangerous, and alarming exercise of powers not granted by the constitution: for the powers of the legislature of Virginia are no farther valid, than they are authorized by the constitutions of that state and of the Union. And the people are in duty bound to “interpose, for arresting the progress of the evil, and maintaining within their respective limits the authorities, rights, and liberties appertaining to them.”
When I wrote what is said in page 12 of the opinion of General Washington, on the power of Congress to provide for the general welfare, I alluded to this opinion as officially delivered to Congress. I had not then seen his will giving a donation to A National University, in the hope that Congress would establish such an institution. This is a deliberate declaration of a Wise and Virtuous man, in whom Love of Country was the ruling passion; made in the full strength of this passion, in a solemn moment when he was preparing to part with all earthly things, and to meet his God.
[* ] Journals 26th, May and 29th, December 1781.
[* ] Confederation, Article 5.
[* ] Constitution, Amendment 10.
[* ] Article 4.
[* ] Article III, Section 2.
[* ] Art. II. Sect. 4
[† ] Art. I, Sect. 3.
[‡ ] Art. III. Sect. 2.
[* ] In Virginia Juries assess fines.