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james madison The Report of 1800 - Lance Banning, Liberty and Order: The First American Party Struggle 
Liberty and Order: The First American Party Struggle, ed. and with a Preface by Lance Banning (Indianapolis: Liberty Fund, 2004).
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james madison The Report of 1800
Although he had retired from national office in 1797, Madison stood for reelection to the Virginia House of Delegates in 1799 in order to defend the resolutions of 1798 against the criticisms of the other states. His Report of 1800, dated 7 January, is lengthy, but it is also one of the most important documents of the 1790s. It not only refined the doctrines of 1798, it would also prove a classic defense of First Amendment freedoms.
Whatever room might be found in the proceedings of some of the states who have disapproved of the resolutions of the General Assembly of this commonwealth, passed on the 21st day of December, 1798, for painful remarks on the spirit and manner of those proceedings, it appears to the committee most consistent with the duty as well as dignity of the General Assembly to hasten an oblivion of every circumstance which might be construed into a diminution of mutual respect, confidence, and affection among the members of the union.
The committee have deemed it a more useful task to revise with a critical eye the resolutions which have met with this disapprobation; to examine fully the several objections and arguments which have appeared against them; and to inquire, whether there be any errors of fact, of principle, or of reasoning which the candor of the General Assembly ought to acknowledge and correct… .
The third resolution is in the words following:
That this Assembly doth explicitly and peremptorily declare that it views the powers of the Federal Government as resulting from the compact to which the states are parties, as limited by the plain sense and intention of the instrument constituting that compact; as no farther valid than they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto have the right, and are in duty bound, to interpose for arresting the progress of the evil and for maintaining within their respective limits the authorities, rights and liberties appertaining to them.
On this resolution, the committee have bestowed all the attention which its importance merits: They have scanned it not merely with a strict, but with a severe eye; and they feel confidence in pronouncing that in its just and fair construction, it is unexceptionably true in its several positions, as well as constitutional and conclusive in its inferences.
The resolution declares, first, that “it views the powers of the Federal Government as resulting from the compact to which the states are parties,” in other words, that the federal powers are derived from the Constitution, and that the Constitution is a compact to which the states are parties… .
… The committee satisfy themselves here with briefly remarking that in all the co-temporary discussions and comments which the Constitution underwent, it was constantly justified and recommended on the ground that the powers not given to the government were withheld from it; and that if any doubt could have existed on this subject, under the original text of the Constitution, it is removed as far as words could remove it by the [tenth] amendment, now a part of the Constitution, which expressly declares “that the powers not delegated to the United States, by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”
The other position involved in this branch of the resolution, namely, “that the states are parties to the Constitution or compact,” is in the judgment of the committee equally free from objection. It is indeed true that the term “States” is sometimes used in a vague sense, and sometimes in different senses, according to the subject to which it is applied. Thus it sometimes means the separate sections of territory occupied by the political societies within each; sometimes the particular governments established by those societies; sometimes those societies as organized into those particular governments; and lastly, it means the people composing those political societies in their highest sovereign capacity. Although it might be wished that the perfection of language admitted less diversity in the signification of the same words, yet little inconveniency is produced by it where the true sense can be collected with certainty from the different applications. In the present instance, whatever different constructions of the term “States” in the resolution may have been entertained, all will at least concur in that last mentioned; because in that sense the Constitution was submitted to the “States”: In that sense the “States” ratified it; and in that sense of the term “States,” they are consequently parties to the pact from which the powers of the Federal Government result.
The next position is that the General Assembly views the powers of the Federal Government “as limited by the plain sense and intention of the instrument constituting that compact,” and “as no farther valid than they are authorized by the grants therein enumerated.” It does not seem possible that any just objection can lie against either of these clauses. The first amounts merely to a declaration that the compact ought to have the interpretation plainly intended by the parties to it; the other, to a declaration that it ought to have the execution and effect intended by them. If the powers granted be valid, it is solely because they are granted; and if the granted powers are valid because granted, all other powers not granted must not be valid.
The resolution, having taken this view of the federal compact, proceeds to infer “that in case of a deliberate, palpable, and dangerous exercise of other powers not granted by the said compact, the states who are parties thereto have the right, and are in duty bound, to interpose for arresting the progress of the evil and for maintaining within their respective limits the authorities, rights and liberties appertaining to them.”
It appears to your committee to be a plain principle, founded in common sense, illustrated by common practice, and essential to the nature of compacts, that where resort can be had to no tribunal superior to the authority of the parties, the parties themselves must be the rightful judges in the last resort whether the bargain made has been pursued or violated. The Constitution of the United States was formed by the sanction of the states, given by each in its sovereign capacity. It adds to the stability and dignity as well as to the authority of the Constitution that it rests on this legitimate and solid foundation. The states then being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity that there can be no tribunal above their authority to decide in the last resort whether the compact made by them be violated; and consequently that as the parties to it, they must themselves decide in the last resort such questions as may be of sufficient magnitude to require their interposition.
It does not follow, however, that because the states as sovereign parties to their constitutional compact must ultimately decide whether it has been violated, that such a decision ought to be interposed either in a hasty manner or on doubtful and inferior occasions. Even in the case of ordinary conventions between different nations, where, by the strict rule of interpretation, a breach of a part may be deemed a breach of the whole, every part being deemed a condition of every other part and of the whole, it is always laid down that the breach must be both wilful and material to justify an application of the rule. But in the case of an intimate and constitutional union, like that of the United States, it is evident that the interposition of the parties in their sovereign capacity can be called for by occasions only deeply and essentially affecting the vital principles of their political system.
The resolution has accordingly guarded against any misapprehension of its object by expressly requiring for such as interposition “the case of a deliberate,palpable and dangerous breach of the Constitution, by the exercise of powers not granted by it.” It must be a case, not of a light and transient nature, but of a nature dangerous to the great purposes for which the Constitution was established. It must be a case, moreover, not obscure or doubtful in its construction, but plain and palpable. Lastly, it must be a case not resulting from a partial consideration or hasty determination, but a case stamped with a final consideration and deliberate adherence. It is not necessary, because the resolution does not require, that the question should be discussed how far the exercise of any particular power ungranted by the Constitution would justify the interposition of the parties to it. As cases might easily be stated which none would contend ought to fall within that description, cases, on the other hand, might, with equal ease, be stated, so flagrant and so fatal as to unite every opinion in placing them within the description.
But the resolution has done more than guard against misconstruction by expressly referring to cases of a deliberate,palpable, and dangerous nature. It specifies the object of the interposition which it contemplates to be solely that of arresting the progress of the evil of usurpation and of maintaining the authorities, rights and liberties appertaining to the states, as parties to the Constitution.
From this view of the resolution, it would seem inconceivable that it can incur any just disapprobation from those who, laying aside all momentary impressions and recollecting the genuine source and object of the federal constitution, shall candidly and accurately interpret the meaning of the General Assembly. If the deliberate exercise of dangerous powers, palpably withheld by the Constitution, could not justify the parties to it in interposing even so far as to arrest the progress of the evil, and thereby to preserve the Constitution itself as well as to provide for the safety of the parties to it, there would be an end to all relief from usurped power, and a direct subversion of the rights specified or recognized under all the state constitutions, as well as a plain denial of the fundamental principle on which our independence itself was declared.
But it is objected that the judicial authority is to be regarded as the sole expositor of the Constitution in the last resort; and it may be asked for what reason the declaration by the General Assembly, supposing it to be theoretically true, could be required at the present day and in so solemn a manner.
On this objection it might be observed, first, that there may be instances of usurped power which the forms of the Constitution would never draw within the control of the judicial department; secondly, that if the decision of the judiciary be raised above the authority of the sovereign parties to the Constitution, the decisions of the other departments, not carried by the forms of the Constitution before the judiciary, must be equally authoritative and final with the decisions of that department. But the proper answer to the objection is, that the resolution of the General Assembly relates to those great and extraordinary cases in which all the forms of the Constitution may prove ineffectual against infractions dangerous to the essential rights of the parties to it. The resolution supposes that dangerous powers not delegated may not only be usurped and executed by the other departments, but that the judicial department also may exercise or sanction dangerous powers beyond the grant of the Constitution; and consequently that the ultimate right of the parties to the Constitution to judge whether the compact has been dangerously violated must extend to violations by one delegated authority as well as by another, by the judiciary as well as by the executive or the legislature.
However true therefore it may be that the judicial department is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties to the constitutional compact, from which the judicial as well as the other departments hold their delegated trusts. On any other hypothesis, the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers might subvert forever, and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve.
The truth declared in the resolution being established, the expediency of making the declaration at the present day may safely be left to the temperate consideration and candid judgment of the American public. It will be remembered that a frequent recurrence to fundamental principles is solemnly enjoined by most of the state constitutions, and particularly by our own, as a necessary safeguard against the danger of degeneracy to which republics are liable, as well as other governments, though in a less degree than others. And a fair comparison of the political doctrines not unfrequent at the present day with those which characterized the epoch of our Revolution, and which form the basis of our republican constitutions, will best determine whether the declaratory recurrence here made to those principles ought to be viewed as unseasonable and improper or as a vigilant discharge of an important duty. The authority of constitutions over governments, and of the sovereignty of the people over constitutions, are truths which are at all times necessary to be kept in mind; and at no time perhaps more necessary than at the present.
The fourth resolution stands as follows:—
That the General Assembly doth also express its deep regret that a spirit has in sundry instances been manifested by the Federal Government to enlarge its powers by forced constructions of the constitutional charter which defines them; and that indications have appeared of a design to expound certain general phrases (which, having been copied from the very limited grant of powers in the former Articles of Confederation were the less liable to be misconstrued) so as to destroy the meaning and effect of the particular enumeration which necessarily explains and limits the general phrases; and so as to consolidate the states by degrees into one sovereignty, the obvious tendency and inevitable result of which would be to transform the present republican system of the United States into an absolute, or at best a mixed monarchy.
The first question to be considered is whether a spirit has in sundry instances been manifested by the Federal Government to enlarge its powers by forced constructions of the constitutional charter.
The General Assembly having declared their opinion merely by regreting in general terms that forced constructions for enlarging the federal powers have taken place, it does not appear to the committee necessary to go into a specification of every instance to which the resolution may allude. The Alien and Sedition Acts being particularly named in a succeeding resolution are of course to be understood as included in the allusion. Omitting others which have less occupied public attention, or been less extensively regarded as unconstitutional, the resolution may be presumed to refer particularly to the bank law, which from the circumstances of its passage as well as the latitude of construction on which it is founded, strikes the attention with singular force; and the carriage tax, distinguished also by circumstances in its history having a similar tendency. Those instances alone, if resulting from forced construction and calculated to enlarge the powers of the Federal Government, as the committee cannot but conceive to be the case, sufficiently warrant this part of the resolution. The committee have not thought it incumbent on them to extend their attention to laws which have been objected to rather as varying the constitutional distribution of powers in the Federal Government than as an absolute enlargement of them; because instances of this sort, however important in their principles and tendencies, do not appear to fall strictly within the text under review.
The other questions presenting themselves are— 1. Whether indications have appeared of a design to expound certain general phrases copied from the “Articles of Confederation” so as to destroy the effect of the particular enumeration explaining and limiting their meaning. 2. Whether this exposition would by degrees consolidate the states into one sovereignty. 3. Whether the tendency and result of this consolidation would be to transform the republican system of the United States into a monarchy.
1. The general phrases here meant must be those “of providing for the common defense and general welfare.”
In the “Articles of Confederation,” the phrases are used as follows, in article VIII. “All charges of war, and all other expenses that shall be incurred for the common defense and general welfare, and allowed by the United States in Congress assembled, shall be defrayed out of a common treasury.”…
In the existing Constitution, they make the following part of section 8. “The Congress shall have power, to lay and collect taxes, duties, imposts and excises to pay the debts, and provide for the common defense and general welfare of the United States.”
This similarity in the use of these phrases in the two great federal charters might well be considered as rendering their meaning less liable to be misconstrued in the latter; because it will scarcely be said that in the former they were ever understood to be either a general grant of power or to authorize the requisition or application of money by the old Congress to the common defense and general welfare except in the cases afterwards enumerated which explained and limited their meaning; and if such was the limited meaning attached to these phrases in the very instrument revised and remodelled by the present Constitution, it can never be supposed that when copied into this Constitution, a different meaning ought to be attached to them.
That notwithstanding this remarkable security against misconstruction, a design has been indicated to expound these phrases in the Constitution so as to destroy the effect of the particular enumeration of powers by which it explains and limits them, must have fallen under the observation of those who have attended to the course of public transactions. Not to multiply proofs on this subject, it will suffice to refer to the debates of the federal legislature in which arguments have on different occasions been drawn with apparent effect from these phrases in their indefinite meaning.
To these indications might be added, without looking farther, the official report on manufactures by the late Secretary of the Treasury, made on the 5th of December, 1791; and the report of a committee of Congress in January 1797 on the promotion of agriculture. In the first of these 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 latter report assumes the same latitude of power in the national councils and applies it to the encouragement of agriculture, by means of a society to be established at the seat of government. Although neither of these reports may have received the sanction of a law carrying it into effect, yet, on the other hand, the extraordinary doctrine contained in both has passed without the slightest positive mark of disapprobation from the authority to which it was addressed.
Now, whether the phrases in question be construed to authorize every measure relating to the common defense and general welfare, as contended by some, or every measure only in which there might be an application of money, as suggested by the caution of others, the effect must substantially be the same, in destroying the import and force of the particular enumeration of powers which follow these general phrases in the Constitution. For it is evident that there is not a single power whatever which may not have some reference to the common defense or the general welfare, nor a power of any magnitude which in its exercise does not involve or admit an application of money. The government therefore which possesses power in either one or other of these extents is a government without the limitations formed by a particular enumeration of powers; and consequently the meaning and effect of this particular enumeration is destroyed by the exposition given to these general phrases.
This conclusion will not be affected by an attempt to qualify the power over the “general welfare” by referring it to cases where the general welfare is beyond the reach of separate provisions by the individual states; and leaving to these their jurisdictions in cases to which their separate provisions may be competent. For as the authority of the individual states must in all cases be incompetent to general regulations operating through the whole, the authority of the United States would be extended to every object relating to the general welfare which might by any possibility be provided for by the general authority. This qualifying construction therefore would have little, if any, tendency to circumscribe the power claimed under the latitude of the terms “general welfare.”
The true and fair construction of this expression, both in the original and existing federal compacts, appears to the committee too obvious to be mistaken. In both, the Congress is authorized to provide money for the common defense and general welfare. In both is subjoined to this authority an enumeration of the cases to which their powers shall extend. Money cannot be applied to the general welfare otherwise than by an application of it to some particular measure conducive to the general welfare. Whenever, therefore, money has been raised by the general authority, and 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, the money requisite for it may be applied to it; if it be not, no such application can be made. This fair and obvious interpretation coincides with, and is enforced by, the clause in the Constitution which declares that “no money shall be drawn from the treasury, but in consequence of appropriations by law.” An appropriation of money to the general welfare would be deemed rather a mockery than an observance of this constitutional injunction.
2. Whether the exposition of the general phrases here combated would not, by degrees, consolidate the states into one sovereignty, is a question concerning which the committee can perceive little room for difference of opinion. To consolidate the states into one sovereignty, nothing more can be wanted than to supercede their respective sovereignties in the cases reserved to them by extending the sovereignty of the United States to all cases of the “general welfare,” that is to say, to all cases whatever.
3. That the obvious tendency and inevitable result of a consolidation of the states into one sovereignty would be to transform the republican system of the United States into a monarchy is a point which seems to have been sufficiently decided by the general sentiment of America. In almost every instance of discussion relating to the consolidation in question, its certain tendency to pave the way to monarchy seems not to have been contested. The prospect of such a consolidation has formed the only topic of controversy. It would be unnecessary, therefore, for the committee to dwell long on the reasons which support the position of the General Assembly. It may not be improper however to remark two consequences evidently flowing from an extension of the federal powers to every subject falling within the idea of the “general welfare.”
One consequence must be to enlarge the sphere of discretion allotted to the executive magistrate. Even within the legislative limits properly defined by the Constitution, the difficulty of accommodating legal regulations to a country so great in extent, and so various in its circumstances, has been much felt; and has led to occasional investments of power in the executive which involve perhaps as large a portion of discretion as can be deemed consistent with the nature of the executive trust. In proportion as the objects of legislative care might be multiplied, would the time allowed for each be diminished, and the difficulty of providing uniform and particular regulations for all be increased. From these sources would necessarily ensue a greater latitude to the agency of that department which is always in existence, and which could best mold regulations of a general nature so as to suit them to the diversity of particular situations. And it is in this latitude, as a supplement to the deficiency of the laws, that the degree of executive prerogative materially consists.
The other consequence would be that of an excessive augmentation of the offices, honors, and emoluments depending on the executive will. Add to the present legitimate stock all those of every description which a consolidation of the states would take from them and turn over to the Federal Government, and the patronage of the executive would necessarily be as much swelled in this case as its prerogative would be in the other.
This disproportionate increase of prerogative and patronage must, evidently, either enable the chief magistrate of the union, by quiet means, to secure his reelection from time to time, and finally to regulate the succession as he might please; or, by giving so transcendent an importance to the office, would render the elections to it so violent and corrupt that the public voice itself might call for an hereditary in place of an elective succession. Whichever of these events might follow, the transformation of the republican system of the United States into a monarchy, anticipated by the General Assembly from a consolidation of the states into one sovereignty, would be equally accomplished; and whether it would be into a mixed or an absolute monarchy might depend on too many contingencies to admit of any certain foresight.
The resolution next in order is contained in the following terms:
That the General Assembly doth particularly protest against the palpable and alarming infractions of the Constitution in the two late cases of the “Alien and Sedition Acts,” passed at the last session of Congress; the first of which exercises a power nowhere delegated to the Federal Government, and which by uniting legislative and judicial powers to those of executive, subverts the general principles of a free government, as well as the particular organization and positive provisions of the federal constitution; and the other of which acts exercises in like manner a power not delegated by the Constitution, but on the contrary, expressly and positively forbidden by one of the amendments thereto; a power which, more than any other, ought to produce universal alarm, because it is leveled against that right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed the only effectual guardian of every other right… .
All [the] principles of the only preventive justice known to American jurisprudence are violated by the Alien Act. The ground of suspicion is to be judged of, not by any judicial authority, but by the executive magistrate alone; no oath or affirmation is required; if the suspicion be held reasonable by the President, he may order the suspected alien to depart the territory of the United States without the opportunity of avoiding the sentence by finding pledges for his future good conduct; as the President may limit the time of departure as he pleases, the benefit of the writ of habeas corpus may be suspended with respect to the party, although the Constitution ordains that it shall not be suspended unless when the public safety may require it in case of rebellion or invasion, neither of which existed at the passage of the act: And the party being, under the sentence of the President, either removed from the United States, or being punished by imprisonment or disqualification ever to become a citizen on conviction of not obeying the order of removal, he cannot be discharged from the proceedings against him and restored to the benefits of his former situation, although the highest judicial authority should see the most sufficient cause for it… .
One argument offered in justification of this power exercised over aliens is that the admission of them into the country being of favor not of right, the favor is at all times revocable… .
But it cannot be a true inference that because the admission of an alien is a favor, the favor may be revoked at pleasure. A grant of land to an individual may be of favor not of right; but the moment the grant is made, the favor becomes a right, and must be forfeited before it can be taken away. To pardon a malefactor may be a favor, but the pardon is not, on that account, the less irrevocable. To admit an alien to naturalization is as much a favor as to admit him to reside in the country, yet it cannot be pretended that a person naturalized can be deprived of the benefit, any more than a native citizen can be disfranchised.
Again it is said that aliens not being parties to the Constitution, the rights and privileges which it secures cannot be at all claimed by them.
To this reasoning also, it might be answered that, although aliens are not parties to the Constitution, it does not follow that the Constitution has vested in Congress an absolute power over them. The parties to the Constitution may have granted, or retained, or modified the power over aliens without regard to that particular consideration.
But a more direct reply is that it does not follow, because aliens are not parties to the Constitution as citizens are parties to it, that whilst they actually conform to it, they have no right to its protection. Aliens are not more parties to the laws than they are parties to the Constitution; yet it will not be disputed that, as they owe on one hand a temporary obedience, they are entitled in return to their protection and advantage… .
The second object against which the resolution protests is the Sedition Act.
Of this act it is affirmed: 1. That it exercises in like manner a power not delegated by the Constitution. 2d. That the power, on the contrary, is expressly and positively forbidden by one of the amendments to the Constitution. 3d. That this is a power which more than any other ought to produce universal alarm because it is leveled against that right of freely examining public characters and measures, and of free communication thereon, which has ever been justly deemed the only effectual guardian of every other right.
I. That it exercises a power not delegated by the Constitution.
Here, again, it will be proper to recollect that the Federal Government being composed of powers specifically granted, with a reservation of all others to the states or to the people, the positive authority under which the Sedition Act could be passed must be produced by those who assert its constitutionality. In what part of the Constitution then is this authority to be found?
Several attempts have been made to answer this question, which will be examined in their order. The committee will begin with one which has filled them with equal astonishment and apprehension; and which, they cannot but persuade themselves, must have the same effect on all who will consider it with coolness and impartiality, and with a reverence for our Constitution in the true character in which it issued from the sovereign authority of the people. The committee refer to the doctrine lately advanced as a sanction to the Sedition Act: “that the common or unwritten law,” a law of vast extent and complexity, and embracing almost every possible subject of legislation, both civil and criminal, “makes a part of the law of these states, in their united and national capacity.” …
Prior to the Revolution, it is certain that the common law under different limitations made a part of the colonial codes. But whether it be understood that the original colonists brought the law with them or made it their law by adoption, it is equally certain that it was the separate law of each colony within its respective limits, and was unknown to them as a law pervading and operating through the whole, as one society.
It could not possibly be otherwise. The common law was not the same in any two of the colonies; in some, the modifications were materially and extensively different. There was no common legislature by which a common will could be expressed in the form of a law; nor any common magistracy by which such a law could be carried into practice. The will of each colony alone and separately had its organs for these purposes.
This stage of our political history furnishes no foothold for the patrons of this new doctrine.
Did, then, the principle or operation of the great event which made the colonies independent states imply or introduce the common law as a law of the union?
The fundamental principle of the revolution was that the colonies were co-ordinate members with each other, and with Great-Britain, of an Empire united by a common Executive Sovereign, but not united by any common Legislative Sovereign. The legislative power was maintained to be as complete in each American Parliament as in the British Parliament. And the royal prerogative was in force in each colony by virtue of its acknowledging the King for its executive magistrate, as it was in Great-Britain by virtue of a like acknowledgment there. A denial of these principles by Great-Britain, and the assertion of them by America, produced the revolution… .
Such being the ground of our revolution, no support nor color can be drawn from it for the doctrine that the common law is binding on these states as one society. The doctrine, on the contrary, is evidently repugnant to the fundamental principle of the revolution.
The Articles of Confederation are the next source of information on this subject.
In the interval between the commencement of the revolution and the final ratification of these Articles, the nature and extent of the union was determined by the circumstances of the crisis rather than by any accurate delineation of the general authority. It will not be alledged that the “common law” could have had any legitimate birth as a law of the United States during that state of things. If it came as such into existence at all, the charter of confederation must have been its parent.
Here again, however, its pretensions are absolutely destitute of foundation. This instrument does not contain a sentence or syllable that can be tortured into a countenance of the idea that the parties to it were with respect to the objects of the common law to form one community. No such law is named or implied, or alluded to, as being in force, or as brought into force by that compact. No provision is made by which such a law could be carried into operation; whilst on the other hand, every such inference or pretext is absolutely precluded by article 2d, which declares “that each state retains its sovereignty, freedom and independence, and every power, jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.” …
Is this exclusion revoked, and the common law introduced as a national law, by the present Constitution of the United States? This is the final question to be examined.
It is readily admitted that particular parts of the common law may have a sanction from the Constitution, so far as they are necessarily comprehended in the technical phrases which express the powers delegated to the government; and so far, also, as such other parts may be adopted as necessary and proper for carrying into execution the powers expressly delegated. But the question does not relate to either of these portions of the common law. It relates to the common law beyond these limitations.
The only part of the Constitution which seems to have been relied on in this case is the 2d sect. of art. III. “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 or which shall be made under their authority.”
It has been asked what cases distinct from those arising under the laws and treaties of the United States can arise under the Constitution other than those arising under the common law; and it is inferred that the common law is accordingly adopted or recognized by the Constitution.
Never perhaps was so broad a construction applied to a text so clearly unsusceptible of it. … Rather than resort to a construction affecting so essentially the whole character of the government, it would perhaps be more rational to consider the expression as a mere pleonasm or inadvertence. But it is not necessary to decide on such a dilemma. The expression is fully satisfied, and its accuracy justified, by two descriptions of cases to which the judicial authority is extended, and neither of which implies that the common law is the law of the United States. One of these descriptions comprehends the cases growing out of the restrictions on the legislative power of the states. For example, it is provided that “no state shall emit bills of credit,” or “make any thing but gold and silver coin a tender in payment of debts.” Should this prohibition be violated, and a suit between citizens of the same state be the consequence, this would be a case arising under the Constitution before the judicial power of the United States. A second description comprehends suits between citizens and foreigners, or citizens of different states, to be decided according to the state or foreign laws; but submitted by the Constitution to the judicial power of the United States; the judicial power being, in several instances, extended beyond the legislative power of the United States… .
To this explanation of the text, the following observations may be added.
The expression, cases in law and equity, is manifestly confined to cases of a civil nature; and would exclude cases of criminal jurisdiction. Criminal cases in law and equity would be a language unknown to the law… .
It is further to be considered, that even if this part of the Constitution could be strained into an application to every common law case, criminal as well as civil, it could have no effect in justifying the Sedition Act; which is an exercise of legislative, and not of judicial power: and it is the judicial power only of which the extent is defined in this part of the Constitution… .
In aid of these objections, the difficulties and confusion inseparable from a constructive introduction of the common law would afford powerful reasons against it.
Is it to be the common law with or without the British statutes?
If without the statutory amendments, the vices of the code would be insupportable.
If with these amendments, what period is to be fixed for limiting the British authority over our laws?
Is it to be the date of the eldest or the youngest of the colonies?
Or are the dates to be thrown together and a medium deduced?
Or is our independence to be taken for the date?
Is, again, regard to be had to the various changes in the common law made by the local codes of America?
Is regard to be had to such changes, subsequent, as well as prior, to the establishment of the Constitution?
Is regard to be had to future as well as past changes?
Is law to be different in every state, as differently modified by its code; or are the modifications of any particular state to be applied to all?
And on the latter supposition, which among the state codes would form the standard?
Questions of this sort might be multiplied with as much ease as there would be difficulty in answering them.
The consequences flowing from the proposed construction furnish other objections equally conclusive… .
If it be understood that the common law is established by the Constitution, it follows that no part of the law can be altered by the legislature; such of the statutes already passed as may be repugnant thereto would be nullified, particularly the “Sedition Act” itself which boasts of being a melioration of the common law; and the whole code with all its incongruities, barbarisms, and bloody maxims would be inviolably saddled on the good people of the United States.
Should this consequence be rejected, and the common law be held, like other laws, liable to revision and alteration by the authority of Congress, it then follows that the authority of Congress is co-extensive with the objects of common law; that is to say, with every object of legislation: For to every such object does some branch or other of the common law extend. The authority of Congress would therefore be no longer under the limitations marked out in the Constitution. They would be authorized to legislate in all cases whatsoever… .
The consequence of admitting the common law as the law of the United States on the authority of the individual states is as obvious as it would be fatal. As this law relates to every subject of legislation, and would be paramount to the constitutions and laws of the states, the admission of it would overwhelm the residuary sovereignty of the states and by one constructive operation new model the whole political fabric of the country.
From the review thus taken of the situation of the American colonies prior to their independence; of the effect of this event on their situation; of the nature and import of the Articles of Confederation; of the true meaning of the passage in the existing Constitution from which the common law has been deduced; of the difficulties and uncertainties incident to the doctrine; and of its vast consequences in extending the powers of the Federal Government and in superceding the authorities of the state governments; the committee feel the utmost confidence in concluding that the common law never was, nor by any fair construction, ever can be, deemed a law for the American people as one community; and they indulge the strongest expectation that the same conclusion will finally be drawn by all candid and accurate inquirers into the subject. It is indeed distressing to reflect that it ever should have been made a question whether the Constitution, on the whole face of which is seen so much labor to enumerate and define the several objects of federal power, could intend to introduce in the lump, in an indirect manner, and by a forced construction of a few phrases, the vast and multifarious jurisdiction involved in the common law; a law filling so many ample volumes; a law overspreading the entire field of legislation; and a law that would sap the foundation of the Constitution as a system of limited and specified powers. A severer reproach could not in the opinion of the committee be thrown on the Constitution, on those who framed, or on those who established it, than such a supposition would throw on them.
The argument then drawn from the common law, on the ground of its being adopted or recognized by the Constitution, being inapplicable to the Sedition Act, the committee will proceed to examine the other arguments which have been founded on the Constitution.
They will waste but little time on the attempt to cover the act by the preamble to the Constitution; it being contrary to every acknowledged rule of construction to set up this part of an instrument in opposition to the plain meaning expressed in the body of the instrument. A preamble usually contains the general motives or reasons for the particular regulations or measures which follow it; and is always understood to be explained and limited by them. In the present instance, a contrary interpretation would have the inadmissible effect of rendering nugatory or improper every part of the Constitution which succeeds the preamble.
The paragraph in art. I, sect. 8, which contains the power to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare, having been already examined, will also require no particular attention in this place. It will have been seen that in its fair and consistent meaning, it cannot enlarge the enumerated powers vested in Congress.
The part of the Constitution which seems most to be recurred to in defense of the “Sedition Act,” is the last clause of the above section, empowering Congress “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.”
The plain import of this clause is that Congress shall have all the incidental or instrumental powers necessary and proper for carrying into execution all the express powers; whether they be vested in the government of the United States more collectively or in the several departments or officers thereof. It is not a grant of new powers to Congress, but merely a declaration, for the removal of all uncertainty, that the means of carrying into execution those otherwise granted are included in the grant.
Whenever, therefore, a question arises concerning the constitutionality of a particular power, the first question is whether the power be expressed in the Constitution. If it be, the question is decided. If it be not expressed, the next inquiry must be whether it is properly an incident to an express power, and necessary to its execution. If it be, it may be exercised by Congress. If it be not, Congress cannot exercise it.
Let the question be asked, then, whether the power over the press exercised in the “Sedition Act” be found among the powers expressly vested in the Congress? This is not pretended.
Is there any express power for executing which it is a necessary and proper power?
The power which has been selected, as least remote, in answer to this question, is that of “suppressing insurrections”; which is said to imply a power to prevent insurrections, by punishing whatever may lead or tend to them. But it surely cannot, with the least plausibility, be said that a regulation of the press and a punishment of libels are exercises of a power to suppress insurrections. The most that could be said would be that the punishment of libels, if it had the tendency ascribed to it, might prevent the occasion of passing or executing laws necessary and proper for the suppression of insurrections.
Has the Federal Government no power, then, to prevent as well as to punish resistance to the laws?
They have the power which the Constitution deemed most proper in their hands for the purpose. The Congress has power, before it happens, to pass laws for punishing it; and the Executive and Judiciary have power to enforce those laws when it does happen.
It must be recollected by many, and could be shown to the satisfaction of all, that the construction here put on the terms “necessary and proper” is precisely the construction which prevailed during the discussions and ratifications of the Constitution. It may be added, and cannot too often be repeated, that it is a construction absolutely necessary to maintain their consistency with the peculiar character of the government, as possessed of particular and defined powers only; not of the general and indefinite powers vested in ordinary governments. For if the power to suppress insurrections includes a power to punish libels; or if the power to punish includes a power to prevent, by all means that may have that tendency; such is the relation and influence among the most remote subjects of legislation that a power over a very few would carry with it a power over all. And it must be wholly immaterial whether unlimited powers be exercised under the name of unlimited powers or be exercised under the name of unlimited means of carrying into execution limited powers.
This branch of the subject will be closed with a reflection which must have weight with all; but more especially with those who place peculiar reliance on the judicial exposition of the Constitution as the bulwark provided against undue extensions of the legislative power. If it be understood that the powers implied in the specified powers have an immediate and appropriate relation to them, as means necessary and proper for carrying them into execution, questions on the constitutionality of laws passed for this purpose will be of a nature sufficiently precise and determinate for judicial cognizance and control. If, on the other hand, Congress are not limited in the choice of means by any such appropriate relation of them to the specified powers; but may employ all such means as they may deem fitted to prevent as well as to punish crimes subjected to their authority; such as may have a tendency only to promote an object for which they are authorized to provide; every one must perceive that questions relating to means of this sort must be questions of mere policy and expediency; on which legislative discretion alone can decide, and from which the judicial interposition and control are completely excluded.
II. The next point which the resolution requires to be proved is that the power over the press exercised by the Sedition Act is positively forbidden by one of the amendments to the Constitution.
The amendment stands in these words—“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
In the attempts to vindicate the “Sedition Act” it has been contended, 1. That the “freedom of the press” is to be determined by the meaning of these terms in the common law. 2. 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.
Although it will be shown, in examining the second of these positions, that the amendment is a denial to Congress of all power over the press; it may not be useless to make the following observations on the first of them… .
The freedom of the press under the common law is, in the defenses of the Sedition Act, made to consist in an exemption from all previous restraint on printed publications, by persons authorized to inspect and prohibit them. It appears to the committee that this idea of the freedom of the press can never be admitted to be the American idea of it: since a law inflicting penalties on printed publications would have a similar effect with a law authorizing a previous restraint on them. It would seem a mockery to say that no law should be passed preventing publications from being made, but that laws might be passed for punishing them in case they should be made.
The essential difference between the British government and the American constitutions will place this subject in the clearest light.
In the British government, the danger of encroachments on the rights of the people is understood to be confined to the executive magistrate. The representatives of the people in the legislature are not only exempt themselves from distrust, but are considered as sufficient guardians of the rights of their constituents against the danger from the executive. Hence it is a principle that the parliament is unlimited in its power; or in their own language, is omnipotent. Hence, too, all the ramparts for protecting the rights of the people, such as their magna charta, their bill of rights, etc. are not reared against the parliament, but against the royal prerogative. They are merely legislative precautions against executive usurpations. Under such a government as this, an exemption of the press from previous restraint by licensers appointed by the king is all the freedom that can be secured to it.
In the United States, the case is altogether different. The people, not the government, possess the absolute sovereignty. The legislature, no less than the executive, is under limitations of power. Encroachments are regarded as possible from the one as well as from the other. Hence in the United States, the great and essential rights of the people are secured against legislative as well as against executive ambition. They are secured, not by laws paramount to prerogative; but by constitutions paramount to laws. This security of the freedom of the press requires that it should be exempt, not only from previous restraint by the executive, as in Great Britain; but from legislative restraint also; and this exemption, to be effectual, must be an exemption, not only from the previous inspection of licensers, but from the subsequent penalty of laws.
The state of the press, therefore, under the common law, cannot in this point of view, be the standard of its freedom in the United States.
But there is another view under which it may be necessary to consider this subject. It may be alledged that although the security for the freedom of the press be different in Great Britain and in this country; being a legal security only in the former, and a constitutional security in the latter; and although there may be a further difference in an extension of the freedom of the press, here, beyond an exemption from previous restraint to an exemption from subsequent penalties also; yet that the actual legal freedom of the press, under the common law, must determine the degree of freedom which is meant by the terms and which is constitutionally secured against both previous and subsequent restraints.
The committee are not unaware of the difficulty of all general questions which may turn on the proper boundary between the liberty and licentiousness of the press. They will leave it therefore for consideration only how far the difference between the nature of the British government and the nature of the American governments, and the practice under the latter, may show the degree of rigor in the former to be inapplicable to, and not obligatory in, the latter.
The nature of governments elective, limited, and responsible in all their branches may well be supposed to require a greater freedom of animadversion than might be tolerated by the genius of such a government as that of Great Britain. In the latter, it is a maxim that the king, a hereditary, not a responsible magistrate, can do no wrong; and that the legislature, which in two-thirds of its composition is also hereditary, not responsible, can do what it pleases. In the United States, the executive magistrates are not held to be infallible, nor the legislatures to be omnipotent; and both being elective, are both responsible. Is it not natural and necessary under such different circumstances that a different degree of freedom in the use of the press should be contemplated?
Is not such an inference favored by what is observable in Great Britain itself? Notwithstanding the general doctrine of the common law on the subject of the press, and the occasional punishment of those who use it with a freedom offensive to the government; it is well known that with respect to the responsible members of the government, where the reasons operating here become applicable there; the freedom exercised by the press, and protected by the public opinion, far exceeds the limits prescribed by the ordinary rules of law. The ministry, who are responsible to impeachment, are at all times animadverted on by the press, with peculiar freedom; and during the elections for the House of Commons, the other responsible part of the government, the press is employed with as little reserve towards the candidates.
The practice in America must be entitled to much more respect. In every state, probably, in the union, the press has exerted a freedom in canvassing the merits and measures of public men, of every description, which has not been confined to the strict limits of the common law. On this footing, the freedom of the press has stood; on this footing it yet stands. And it will not be a breach either of truth or of candor to say that no persons or presses are in the habit of more unrestrained animadversions on the proceedings and functionaries of the state governments than the persons and presses most zealous in vindicating the act of Congress for punishing similar animadversions on the government of the United States.
The last remark will not be understood as claiming for the state governments an immunity greater than they have heretofore enjoyed. Some degree of abuse is inseparable from the proper use of every thing; and in no instance is this more true than in that of the press. It has accordingly been decided by the practice of the states that it is better to leave a few of its noxious branches to their luxuriant growth than, by pruning them away, to injure the vigor of those yielding the proper fruits. And can the wisdom of this policy be doubted by any who reflect that to the press alone, checkered as it is with abuses, the world is indebted for all the triumphs which have been gained by reason and humanity over error and oppression; who reflect that to the same beneficent source, the United States owe much of the lights which conducted them to the rank of a free and independent nation; and which have improved their political system into a shape so auspicious to their happiness. Had “Sedition Acts,” forbidding every publication that might bring the constituted agents into contempt or disrepute, or that might excite the hatred of the people against the authors of unjust or pernicious measures, been uniformly enforced against the press; might not the United States have been languishing at this day under the infirmities of a sick confederation? Might they not possibly be miserable colonies, groaning under a foreign yoke?
To these observations one fact will be added which demonstrates that the common law cannot be admitted as the universal expositor of American terms which may be the same with those contained in that law. The freedom of conscience and of religion are found in the same instruments which assert the freedom of the press. It will never be admitted that the meaning of the former, in the common law of England, is to limit their meaning in the United States.
Whatever weight may be allowed to these considerations, the committee do not, however, by any means, intend to rest the question on them. They contend that the article of amendment, instead of supposing in Congress a power that might be exercised over the press, provided its freedom be not abridged, was meant as a positive denial to Congress of any power whatever on the subject.
To demonstrate that this was the true object of the article, it will be sufficient to recall the circumstances which led to it, and to refer to the explanation accompanying the article.
When the Constitution was under the discussions which preceded its ratification, it is well known that great apprehensions were expressed by many lest the omission of some positive exception from the powers delegated of certain rights, and of the freedom of the press particularly, might expose them to the danger of being drawn by construction within some of the powers vested in Congress; more especially of the power to make all laws necessary and proper for carrying their other powers into execution. In reply to this objection, it was invariably urged to be a fundamental and characteristic principle of the Constitution; that all powers not given by it were reserved; that no powers were given beyond those enumerated in the Constitution and such as were fairly incident to them; that the power over the rights in question, and particularly over the press, was neither among the enumerated powers nor incident to any of them; and consequently that an exercise of any such power would be a manifest usurpation. It is painful to remark how much the arguments now employed in behalf of the Sedition Act are at variance with the reasoning which then justified the Constitution, and invited its ratification.
From this posture of the subject resulted the interesting question in so many of the conventions whether the doubts and dangers ascribed to the Constitution should be removed by any amendments previous to the ratification, or be postponed, in confidence that as far as they might be proper, they would be introduced in the form provided by the Constitution. The latter course was adopted; and in most of the states, the ratifications were followed by propositions and instructions for rendering the Constitution more explicit and more safe to the rights not meant to be delegated by it. Among those rights, the freedom of the press, in most instances, is particularly and emphatically mentioned. The firm and very pointed manner in which it is asserted in the proceedings of the convention of this state will be hereafter seen.
In pursuance of the wishes thus expressed, the first Congress that assembled under the Constitution proposed certain amendments which have since, by the necessary ratifications, been made a part of it; among which amendments is the article containing, among other prohibitions on the Congress, an express declaration that they should make no law abridging the freedom of the press.
Without tracing farther the evidence on this subject, it would seem scarcely possible to doubt that no power whatever over the press was supposed to be delegated by the Constitution as it originally stood; and that the amendment was intended as a positive and absolute reservation of it.
But the evidence is still stronger. The proposition of amendments made by Congress is introduced in the following terms: “The Conventions of a number of the states having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstructions or abuse of its powers, that further declaratory and restrictive clauses should be added; and as extending the ground of public confidence in the government, will best ensure the beneficent ends of its institution.”
Here is the most satisfactory and authentic proof that the several amendments proposed were to be considered as either declaratory or restrictive; and whether the one or the other, as corresponding with the desire expressed by a number of the states, and as extending the ground of public confidence in the government.
Under any other construction of the amendment relating to the press than that it declared the press to be wholly exempt from the power of Congress, the amendment could neither be said to correspond with the desire expressed by a number of the states, nor be calculated to extend the ground of public confidence in the government.
Nay more; the construction employed to justify the “Sedition Act” would exhibit a phenomenon without a parallel in the political world. It would exhibit a number of respectable states as denying first that any power over the press was delegated by the Constitution; as proposing next, that an amendment to it should explicitly declare that no such power was delegated; and finally, as concurring in an amendment actually recognizing or delegating such a power.
Is then the Federal Government, it will be asked, destitute of every authority for restraining the licentiousness of the press, and for shielding itself against the libellous attacks which may be made on those who administer it?
The Constitution alone can answer this question. If no such power be expressly delegated, and it be not both necessary and proper to carry into execution an express power; above all, if it be expressly forbidden by a declaratory amendment to the Constitution, the answer must be that the Federal Government is destitute of all such authority.
And might it not be asked in turn, whether it is not more probable, under all the circumstances which have been reviewed, that the authority should be withheld by the Constitution than that it should be left to a vague and violent construction: whilst so much pains were bestowed in enumerating other powers, and so many less important powers are included in the enumeration.
Might it not be likewise asked, whether the anxious circumspection which dictated so many peculiar limitations on the general authority would be unlikely to exempt the press altogether from that authority? The peculiar magnitude of some of the powers necessarily committed to the Federal Government; the peculiar duration required for the functions of some of its departments; the peculiar distance of the seat of its proceedings from the great body of its constituents; and the peculiar difficulty of circulating an adequate knowledge of them through any other channel; will not these considerations, some or other of which produced other exceptions from the powers of ordinary governments, all together, account for the policy of binding the hand of the Federal Government from touching the channel which alone can give efficacy to its responsibility to its constituents; and of leaving those who administer it to a remedy for injured reputations under the same laws and in the same tribunals which protect their lives, their liberties, and their properties.
But the question does not turn either on the wisdom of the Constitution or on the policy which gave rise to its particular organization. It turns on the actual meaning of the instrument; by which it has appeared that a power over the press is clearly excluded from the number of powers delegated to the Federal Government.
III. And in the opinion of the committee well may it be said, as the resolution concludes with saying, that the unconstitutional power exercised over the press by the “Sedition Act” ought “more than any other, to produce universal alarm; because it is leveled against that right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed the only effectual guardian of every other right.”
Without scrutinizing minutely into all the provisions of the “Sedition Act” it will be sufficient to cite so much of section 2. as follows: “And be it further enacted, that if any person shall write, print, utter or publish, or shall cause or procure to be written, printed, uttered or published, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous, and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with an intent to defame the said government, or either house of the said Congress, or the President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either, or any of them, the hatred of the good people of the United States, etc. then such person being thereof convicted before any court of the United States, having jurisdiction thereof, shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.”
On this part of the act the following observations present themselves.
1. The Constitution supposes that the President, the Congress, and each of its houses, may not discharge their trusts, either from defect of judgment or other causes. Hence, they are all made responsible to their constituents at the returning periods of election; and the President, who is singly entrusted with very great powers, is, as a further guard, subjected to an intermediate impeachment.
2. Should it happen, as the Constitution supposes it may happen, that either of these branches of the government may not have duly discharged its trust; it is natural and proper that, according to the cause and degree of their faults, they should be brought into contempt or disrepute, and incur the hatred of the people.
3. Whether it has, in any case, happened that the proceedings of either or all of those branches evinces such a violation of duty as to justify a contempt, a disrepute or hatred among the people, can only be determined by a free examination thereof, and a free communication among the people thereon.
4. Whenever it may have actually happened that proceedings of this sort are chargeable on all or either of the branches of the government, it is the duty as well as right of intelligent and faithful citizens to discuss and promulge them freely, as well to control them by the censorship of the public opinion as to promote a remedy according to the rules of the Constitution. And it cannot be avoided that those who are to apply the remedy must feel, in some degree, a contempt or hatred against the transgressing party.
5. As the act was passed on July 14, 1798, and is to be in force until March 3, 1801, it was of course that during its continuance, two elections of the entire House of Representatives, an election of a part of the Senate, and an election of a President were to take place.
6. That consequently, during all these elections, intended by the Constitution to preserve the purity or to purge the faults of the administration, the great remedial rights of the people were to be exercised, and the responsibility of their public agents to be screened, under the penalties of this act.
May it not be asked of every intelligent friend to the liberties of his country whether, the power exercised in such an act as this ought not to produce great and universal alarm? Whether a rigid execution of such an act, in time past, would not have repressed that information and communication among the people which is indispensable to the just exercise of their electoral rights? And whether such an act, if made perpetual and enforced with rigor, would not, in time to come, either destroy our free system of government or prepare a convulsion that might prove equally fatal to it.
In answer to such questions, it has been pleaded that the writings and publications forbidden by the act are those only which are false and malicious, and intended to defame; and merit is claimed for the privilege allowed to authors to justify, by proving the truth of their publications, and for the limitations to which the sentence of fine and imprisonment is subjected.
To those who concurred in the act under the extraordinary belief that the option lay between the passing of such an act and leaving in force the common law of libels, which punishes truth equally with falsehood, and submits the fine and imprisonment to the indefinite discretion of the court, the merit of good intentions ought surely not to be refused. A like merit may perhaps be due for the discontinuance of the corporal punishment which the common law also leaves to the discretion of the court. This merit of intention, however, would have been greater, if the several mitigations had not been limited to so short a period; and the apparent inconsistency would have been avoided between justifying the act at one time by contrasting it with the rigors of the common law otherwise in force; and at another time by appealing to the nature of the crisis as requiring the temporary rigor exerted by the act.
But whatever may have been the meritorious intentions of all or any who contributed to the Sedition Act; a very few reflections will prove that its baneful tendency is little diminished by the privilege of giving in evidence the truth of the matter contained in political writings.
In the first place, where simple and naked facts alone are in question, there is sufficient difficulty in some cases, and sufficient trouble and vexation in all, of meeting a prosecution from the government with the full and formal proof necessary in a court of law.
But in the next place, it must be obvious to the plainest minds that opinions, and inferences, and conjectural observations are not only in many cases inseparable from the facts, but may often be more the objects of the prosecution than the facts themselves; or may even be altogether abstracted from particular facts; and that opinions and inferences and conjectural observations cannot be subjects of that kind of proof which appertains to facts before a court of law.
Again, it is no less obvious that the intent to defame or bring into contempt or disrepute or hatred, which is made a condition of the offense created by the act, cannot prevent its pernicious influence on the freedom of the press. For omitting the inquiry how far the malice of the intent is an inference of the law from the mere publication, it is manifestly impossible to punish the intent to bring those who administer the government into disrepute or contempt without striking at the right of freely discussing public characters and measures: because those who engage in such discussions must expect and intend to excite these unfavorable sentiments so far as they may be thought to be deserved. To prohibit therefore the intent to excite those unfavorable sentiments against those who administer the government, is equivalent to a prohibition of the actual excitement of them; and to prohibit the actual excitement of them, is equivalent to a prohibition of discussions having that tendency and effect; which, again, is equivalent to a protection of those who administer the government if they should at any time deserve the contempt or hatred of the people against being exposed to it by free animadversions on their characters and conduct. Nor can there be a doubt, if those in public trust be shielded by penal laws from such strictures of the press as may expose them to contempt or disrepute or hatred, where they may deserve it, that in exact proportion as they may deserve to be exposed will be the certainty and criminality of the intent to expose them, and the vigilance of prosecuting and punishing it; nor a doubt that a government thus entrenched in penal statutes against the just and natural effects of a culpable administration will easily evade the responsibility which is essential to a faithful discharge of its duty.
Let it be recollected, lastly, that the right of electing the members of the government constitutes more particularly the essence of a free and responsible government. The value and efficacy of this right depends on the knowledge of the comparative merits and demerits of the candidates for public trust; and on the equal freedom, consequently, of examining and discussing these merits and demerits of the candidates respectively. It has been seen that a number of important elections will take place whilst the act is in force; although it should not be continued beyond the term to which it is limited. Should there happen, then, as is extremely probable in relation to some or other of the branches of the government, to be competitions between those who are and those who are not members of the government; what will be the situations of the competitors? Not equal; because the characters of the former will be covered by the “Sedition Act” from animadversions exposing them to disrepute among the people; whilst the latter may be exposed to the contempt and hatred of the people without a violation of the act. What will be the situation of the people? Not free; because they will be compelled to make their election between competitors whose pretensions they are not permitted by the act equally to examine, to discuss, and to ascertain. And from both these situations, will not those in power derive an undue advantage for continuing themselves in it; which by impairing the right of election, endangers the blessings of the government founded on it.
It is with justice, therefore, that the General Assembly hath affirmed in the resolution as well that the right of freely examining public characters and measures, and of free communication thereon, is the only effectual guardian of every other right; as that this particular right is leveled at by the power exercised in the “Sedition Act.”…
The act of ratification by Virginia … stands in the ensuing form.
We, the Delegates of the people of Virginia, duly elected in pursuance of a recommendation from the General Assembly, and now met in Convention, having fully and freely investigated and discussed the proceedings of the federal convention, and being prepared as well as the most mature deliberation hath enabled us, to decide thereon; DO, in the name and in behalf of the people of Virginia, declare and make known, that the powers granted under the Constitution, being derived from the people of the United States, may be resumed by them whensoever the same shall be perverted to their injury or oppression; and that every power not granted thereby remains with them and at their will. That therefore, no right of any denomination can be cancelled, abridged, restrained or modified, by the Congress, by the Senate or House of Representatives acting in any capacity, by the President, or any department or officer of the United States, except in those instances in which power is given by the Constitution for those purposes; and, that among other essential rights, the liberty of conscience and of the press, cannot be cancelled, abridged, restrained or modified by any authority of the United States.
Here is an express and solemn declaration by the convention of the state that they ratified the Constitution in the sense that no right of any denomination can be cancelled, abridged, restrained or modified by the government of the United States or any part of it, except in those instances in which power is given by the Constitution; and in the sense particularly, “that among other essential rights, the liberty of conscience and freedom of the press cannot be cancelled, abridged, restrained or modified, by any authority of the United States.”
Words could not well express in a fuller or more forcible manner the understanding of the convention that the liberty of conscience and the freedom of the press were equally and completely exempted from all authority whatever of the United States.
Under an anxiety to guard more effectually these rights against every possible danger, the convention, after ratifying the Constitution, proceeded to prefix to certain amendments proposed by them a declaration of rights, in which are two articles providing, the one for the liberty of conscience, the other for the freedom of speech and of the press.
Similar recommendations having proceeded from a number of other states, and Congress, as has been seen, having in consequence thereof, and with a view to extend the ground of public confidence, proposed among other declaratory and restrictive clauses, a clause expressly securing the liberty of conscience and of the press; and Virginia having concurred in the ratifications which made them a part of the Constitution; it will remain with a candid public to decide whether it would not mark an inconsistency and degeneracy if an indifference were now shown to a palpable violation of one of those rights, the freedom of the press; and to a precedent therein, which may be fatal to the other, the free exercise of religion… .
It has been said that it belongs to the judiciary of the United States, and not to the state legislatures, to declare the meaning of the Federal Constitution.
But a declaration that proceedings of the Federal Government are not warranted by the Constitution is a novelty neither among the citizens nor among the legislatures of the states; nor are the citizens or the legislature of Virginia singular in the example of it.
Nor can the declarations of either, whether affirming or denying the constitutionality of measures of the Federal Government; or whether made before or after judicial decisions thereon, be deemed, in any point of view, an assumption of the office of the judge. The declarations in such cases are expressions of opinion, unaccompanied with any other effect than what they may produce on opinion, by exciting reflection. The expositions of the judiciary, on the other hand, are carried into immediate effect by force. The former may lead to a change in the legislative expression of the general will; possibly to a change in the opinion of the judiciary: the latter enforces the general will whilst that will and that opinion continue unchanged.
And if there be no impropriety in declaring the unconstitutionality of proceedings in the Federal Government, where can be the impropriety of communicating the declaration to other states and inviting their concurrence in a like declaration? What is allowable for one must be allowable for all; and a free communication among the states, where the Constitution imposes no restraint, is as allowable among the state governments as among other public bodies or private citizens. This consideration derives a weight that cannot be denied to it from the relation of the state legislatures to the federal legislature, as the immediate constituents of one of its branches.
The legislatures of the states have a right, also, to originate amendments to the Constitution, by a concurrence of two thirds of the whole number, in applications to Congress for the purpose. When new states are to be formed by a junction of two or more states, or parts of states, the legislatures of the states concerned are, as well as Congress, to concur in the measure. The states have a right, also, to enter into agreements or compacts with the consent of Congress. In all such cases, a communication among them results from the object which is common to them.
It is lastly to be seen, whether the confidence expressed by the resolution that the necessary and proper measures would be taken by the other states for cooperating with Virginia in maintaining the rights reserved to the states, or to the people, be in any degree liable to the objections which have been raised against it.
If it be liable to objection, it must be because either the object or the means are objectionable.
The object being to maintain what the Constitution has ordained is in itself a laudable object.
The means are expressed in the terms “the necessary and proper measures.” A proper object was to be pursued, by means both necessary and proper.
To find an objection, then, it must be shown that some meaning was annexed to these general terms which was not proper; and for this purpose, either that the means used by the General Assembly were an example of improper means, or that there were no proper means to which the terms could refer.
In the example given by the state of declaring the Alien and Sedition Acts to be unconstitutional, and of communicating the declaration to the other states, no trace of improper means has appeared. And if the other states had concurred in making a like declaration, supported too by the numerous applications flowing immediately from the people, it can scarcely be doubted that these simple means would have been as sufficient as they are unexceptionable.
It is no less certain that other means might have been employed, which are strictly within the limits of the Constitution. The legislatures of the states might have made a direct representation to Congress, with a view to obtain a rescinding of the two offensive acts; or they might have represented to their respective senators in Congress their wish that two thirds thereof would propose an explanatory amendment to the Constitution; or two thirds of themselves, if such had been their option, might, by an application to Congress, have obtained a convention for the same object.
These several means, though not equally eligible in themselves, nor probably to the states, were all constitutionally open for consideration. And if the General Assembly, after declaring the two acts to be unconstitutional, the first and most obvious proceeding on the subject, did not undertake to point out to the other states a choice among the farther measures that might become necessary and proper, the reserve will not be misconstrued by liberal minds into any culpable imputation.
These observations appear to form a satisfactory reply to every objection which is not founded on a misconception of the terms employed in the resolutions. There is one other, however, which may be of too much importance not to be added. It cannot be forgotten that among the arguments addressed to those who apprehended danger to liberty from the establishment of the general government over so great a country, the appeal was emphatically made to the intermediate existence of the state governments between the people and that government, to the vigilance with which they would descry the first symptoms of usurpation, and to the promptitude with which they would sound the alarm to the public. This argument was probably not without its effect; and if it was a proper one, then, to recommend the establishment of the constitution; it must be a proper one now, to assist in its interpretation.
The only part of the two concluding resolutions that remains to be noticed is the repetition in the first of that warm affection to the union and its members and of that scrupulous fidelity to the Constitution which have been invariably felt by the people of this state. As the proceedings were introduced with these sentiments, they could not be more properly closed than in the same manner. Should there be any so far misled as to call in question the sincerity of these professions, whatever regret may be excited by the error, the General Assembly cannot descend into a discussion of it. Those who have listened to the suggestion can only be left to their own recollection of the part which this state has borne in the establishment of our national independence; in the establishment of our national constitution; and in maintaining under it the authority and laws of the union, without a single exception of internal resistance or commotion. By recurring to these facts, they will be able to convince themselves that the representatives of the people of Virginia must be above the necessity of opposing any other shield to attacks on their national patriotism than their own consciousness and the justice of an enlightened public; who will perceive in the resolutions themselves the strongest evidence of attachment both to the Constitution and to the union, since it is only by maintaining the different governments and departments within their respective limits that the blessings of either can be perpetuated. The extensive view of the subject thus taken by the committee has led them to report to the house, as the result of the whole, the following resolution.
Resolved, That the General Assembly, having carefully and respectfully attended to the proceedings of a number of the states, in answer to their resolutions of December 21, 1798, and having accurately and fully re-examined and reconsidered the latter, find it to be their indispensable duty to adhere to the same, as founded in truth, as consonant with the Constitution, and as conducive to its preservation; and more especially to be their duty, to renew, as they do hereby renew, their protest against “the Alien and Sedition Acts,” as palpable and alarming infractions of the Constitution.
The Jeffersonian Ascendancy: Domestic Policy, 1801–1808
Thomas Jefferson defeated John Adams in the presidential election of 1800, 73 electoral votes to 65. Indeed, in an impressive display of party unity (and an instructive revelation of a notable flaw in the Constitution as originally written), every Republican elector in the country cast one vote for Jefferson and one for the party’s vice-presidential candidate, Aaron Burr, whose triumph over Hamilton in the legislative elections in New York City had carried that state, and the election, for the Jeffersonians. The electoral tie threw the final selection of the president into the lame-duck House of Representatives, where the Federalists controlled enough states to prevent a decision. With some of them hoping that they could get better terms from Burr than from Jefferson, perhaps even that a deadlock would compel a choice of a president in another way, the defeated party stubbornly blocked a decision through 35 ballots. Burr, however, declined to play this game (though he also damaged himself irreparably with the Virginians by doing nothing to rule himself completely out); and on the thirty-sixth ballot, James A. Bayard, the lone representative from Delaware, brought the dangerous impasse to an end.
Adams’s defeat in 1800 was far from overwhelming. The people had about as indirect a voice as they have ever had in a presidential election. In ten of the sixteen states, the legislatures kept the choice of the presidential electors in their own hands. The switch of a few hundred votes in the assembly elections in New York or of fewer than that in the legislature of South Carolina would have reversed the outcome. Adams had broken sharply with the Hamiltonian wing of his party and moved decisively toward peace with France. Although the split within his party probably contributed to his defeat, it may also have strengthened his popular appeal.
But if the president was not, by any means, decisively repudiated at the polls, his party certainly was. The Federalists lost more than twenty seats in the House of Representatives and, for the first time, control of the Senate as well. Having captured a House majority of 65 to 41 for the incoming Seventh Congress, the Republicans were well positioned to insist upon a new national course. And months before the Seventh Congress met, Jefferson established guidelines that his own and Madison’s administrations would adhere to through the coming sixteen years.
The Jeffersonian Program