Supplemental Speeches. contempt for such unrelenting tyrants. But, he function belonged exclusively to the judges. Conhoped, for the honor of the public officers, as well gress could repeal any law, whilst it was in operas for the honor of the citizens of the State of Veration, but that was the only control it had over a mont, and for the honor of humanity itself, that law. As soon as a law becomes extinct, the powthe charge was, unfounded. It was substantiated ers of Congress to exercise a control over it become by no testimony, or document of any description extinct also. It has been asked, if one Congress whatever, except the petition; and that coming should pass an unconstitutional law, and should from the person immediately concerned, uncorrob- refuse to repeal it, as in the case of the sedition orated by any one circumstance whatsoever, was law, and the judges should pronounce it Conştia ground too slender to gain our credence, and he tutional, what course were the people to pursue to would discard it from his mind. But, if true lo redress such a grievance? The answer is a plain the full extent, as represented by the petitioner one; the people have the power to hurl from their himself, it could only excite our pity and indigna- seats such perverse members who should pass an tion, but could arm us with no power to decide, unconstitutional law, and refuse afterwards to rein our legislative capacity, upon the Constitution- peal it. They have this control, and this only, ality of a law which had been extinct for twenty over their members. Over the judges they had the years.

power of impeachment, but no other Constitutional The gentleman from Virginia had asserted that control. If these two departments should continue the sedition law was unconstitutional, and that we to abuse the powers in them vested, and pervert had the power to declare it so by a law, even now. the Constitution, and bring on such'oppression as He has gone so far as to say that no other compe- could not be borne, the sovereign people would tent power exists by which a law can be declared resort to first principles, and new model their Govunconstitutional.

ernment. No human institutions were free from Mr. S. observed, that what he was about to say imperfections; no human actions exempt from eron this question, should not be said as an advocate ror; and if one abuse had crept into your Governfor the sedition law; on the contrary, he wished ment, and had nearly passed into oblivion, and not it to be explicitly understood that he should not likely to be repeated, it was better to let it rest than speak a single word to prove it Constitutional. to attempt to remedy it by a violent infraction of He would not even go into the inquiry. If a the Constitution, by' assuming to yourselves the proposition was now before the Senate to re-enact powers of reviewing the decisions of your courts that law, it would then be his duty to do so, and of justice. he would fulfil that duty. And if it would in the The Constitution of the United States is not the least degree gratify his friends, he had no hesita- production of Congress—it is not the property of tion in saying that he held the sedition law in as Congress. It is the production of the people, and utter contempt as any man in this nation could the property of the people. It is their shield against do. Nor had he the least possible doubt but that the abuse of powers, as well as against the usurpathe Federal party, which then held the reins of tion of powers both by Congress and the judges. Government, had no other object in view when Your powers are limited. All legislative powers they passed this law, than that of securing their are granted to Congress, and all judicial powers power and putting down the Republican party. are granted to the judges. You have, therefore, However, he denied what gentlemen had said, the power to enact laws, but no power to sit in who advocated the resolutions, that the sedition judgment upon those laws. It is expressly and law had such an effect upon the public sentiment exclusively given to the judges to construe the as to produce a revolution in the political parties, laws, and to decide upon their constitutionality. by which the Republican party got possession of The judges are an independent and co-ordinate the Government. The Republican party stood in branch of the Government; deriving their authorneed of no such aid. It was founded on correct ity from the Constitution, and not from Congress. principles, and such as could stand the test of ex- They are accountable to the sovereign people; and perience and trial; and had obtained such a strong if guilty of malpractice in administering the laws, hold on the public mind, that Federalism was they can, and ought to be impeached; and you are giving way to it, and the sedition law was passed the tribunal before which they are to answer; but with a hope of bolstering up the Federal cause. I there your powers cease. You have powers to But, what has all this to do with the question now punish judges for corruption, but none to revise under consideration? The motives for passing and correct their decisions. the law, and the effect upon the public mind, could Mr. S. said, of the whole number of the Senaneither give to, nor take from you, the power of tors which he then had the honor to address, he declaring that law unconstitutional. If you have was happy to know that three-fourths of them the power, it exists independent of any such cir- were, or had been practising lawyers, and the cumstances; if you have it not, no circumstances greater part of them statesmen of much experiwhatever can give it to you. You must derive ence; and, as he had once done when this question your power from the Constitution itself; if that was before the Senate at a former session, he would does not give it to you, nothing foreign can give call on gentlemen to point out that part of the

Constitution which gives to Congress the power Mr. S. observed, that Congress had the power to declare a law unconstitutional, and to revoke a to pass laws, but had no power to declare such solemn judicial decision, made by judges constilaws unconstitutional after they had passed. That | tutionally authorized, and competent to decide

Supplemental Speeches.

twenty years after the decision had had its com- public sentiment. Some of the United States plete operation, and twenty years after the law judges, and likewise some of the State judges, itself had expired by its own limitation. No gen- about the time this sedition law passed, and durtleman would attempt it. Such a power nowhere ing its continuance, were in the habit of preach

a exists—such a decision was unheard of in the an- ing political sermons in the courts of justice, in the nals of legislation. There was not a deliberative shape of what they called a charge to the grand body in the whole civilized world that had ever jury. In these charges they availed themselves of claimed this right.

their official stations to disseminate their own poMr. S. observed, that the gentleman from Vir- litical creeds. They preached much against French ginia (Mr. BARBOUR) had indulged in many ob- politics, and the danger of French influence, and servations upon the judges, and the conduct of the against the growing democracy in our own counjudges. In doing so he had said “Kings can do try. He had in his library one of those political no wrong; but your judges have not that attribute sermons, which was delivered to the grand juries -they are fallible, like other men.” The gentle by one of the associate judges of South Carolina. man then observed, that “those who had been He kept it as a memento of the times.

judges themselves, would, no doubt, take part Mr. S. observed, there was a story in circulation, with those who had decided upon the constitu- but whether a true story he could not tell, that one tionality of the sedition law to maintain the fra- of your judges had descended from his high station ternity." And, whilst the gentleman thus ad- during the last session of Congress, and mingled dressed the Senate, he, in the most significant in the strife; and endeavored, with no little zeal, manner, Mr. S. said, had pointed at himself, so as to influence, by his arguments, both within and to leave no doubt but he was the subject of this without the Congress, the decision of a political aniinadversion, as he had once had the honor to question to a result that would shake this Union hold the appointment of an associate judge in the to its centre; and, not content with this, he had State in which he resided. To relieve himself likewise taken up the trade of political preaching from the imputation, he would beg leave to com- to grand juries, upon the same subject. Although pare his own course, since he had held a seat in he acknowledged that a judge, who should forget the Senate, with that of the gentleman himself, as that it was his duty to administer the laws, but not respected partiality for the judges. When one of to make laws, and should, by his vanity or his amthe judges, from South Carolina, too, at a former bition, thrust himself into this House, to whisper session, asked to be paid a sum of money for extra his political tenets into your ears, was intermedservices, he had himself objected to that claim, aling beyond his Constitutional sphere, and would because he was of opinion it was wrong. The gen- justly incur the execrations of every independent tleman from Virginia voted for that claim. Three man, yet he had still to learn, however profligate years ago the gentleman originated a bill to in the judges might be, that Congress could assume crease the salary of the heads of departments, and, powers not delegated by the Constitution. along with them, to raise the salary of the circuit His friend from Virginia (Mr. BARBOUR) had judges from $3,500 to $4,500. He opposed it him- said, that “the judges had refused to declare this self, believing the then salary was adequate to the sedition law unconstitu al, and, unless Conservices; the gentleman maintained it. Finally 'gress will do so, the Government is in danger, the bill passed, and the associate judges are now and it is the only means by which your Constion a salary of $4,500, by his exertions. Why give tution can be brought back to its original purity.” to the judges this increase of salary, if they are not Amongst many other grounds to impress a beto be confided in ? And he would ask, on whose lief that the law is unconstitutional, and that you side the strongest partiality had been evinced? ought to declare it so, he gives us the opinions of

As his honorable friend from North Carolina President Madison and Chief Justice Marshall ; (Mr. Macon) would probably give his opinion to and, the better to enforce it, tells you to look into the the Senate on this subject, Mr. S. would antici- Journals of the Federal Convention, lately pubpate what he would say concerning judges. He lished for your use, and you will find that Mr. would say that, appointing a man a judge, would Madison furnished more of the materials for that by no means change his principles. if he had set- Constitution than any other member of that Contled his political opinion, the appointment could vention. Mr. S. saíd, he did not wish to take not change him; if he was corrupt, he would con- from that venerable patriot, nor from Virginia, tinue corrupt.. That judges were always on the any of their just honors, of which they were really side of the Administration, and dependent upon entitled to so great a portion ; nor was he willing those who gave them their places, and, upon a to ask for any for the citizens of his own State, question where the Government was concerned, where they had no claim; but, from the Journals they always went with the Government; and of that Convention, it must be acknowledged that withal, that judges were no more to be trusted than Mr. Charles Pinckney of South Carolina, had other men. Mr. S. said he was willing to admit submitted propositions upon which almost all the all this. He was by no means an advocate for the important provisions of the Constitution were rights of judges beyond those of other men. In- based. This, however, had but little to do with deed he would allow more than that; judges not the subject under consideration, nor would he only had their prejudices when grand political have mentioned it but to correct what he considquestions agitated the public mind, but sometimes ered a mistake in his friend from Virginia. As became partisans, and endeavored to influence the to the opinions of President Madison and Chief

6

Supplemental Speeches.

a

Justice Marshall, although he believed them to had sprung up in the era of good feeling too; and rank with the greatest statesmen living, neverthe- was now convulsing the Union. It was a brand less, as they were offered as authority, they, like of discord between the States and the General other authorities, were subject to be examined on Government. In 1817 the road and canal mania both sides; and, so far as regards bringing the Con- raged. The gentleman was one of its zealous adstitution back to its original purity, their opin- vocates, and voted for it. He had since found he ions on another occasion would leave some doubt. was wrong, and that it was unconstitutional. The Within three years after the adoption of the Fed- gentleman, in speaking of the sedition law springeral Constitution, Mr. President Madison, in de- ing from the 8th section, takes occasion to say, the bate upon a proposition to incorporate the former alien law was a twin from the same mother. He Bank of the United States, opposed it on the could tell the gentleman that his road and canal ground of its being unconstitutional-he said: law had descended from the 8th section also, but

“In making these remarks on the merits of the bill, its mother could not be ascertained. One gentlehe had reserved to himself the right to deny the au- man derived the power to Congress to make roads thority of Congress to pass it. He had entertained and canals from that clause of this 8th section this opinion from the date of the Constitu on. His which gives Congress power,

to pay the debts impression might perhaps be stronger, because he well and provide for the common defence and general recollected that a power to grant charters to incor- welfare of the United States." Another could porations had been proposed in the General Conven- see it in the clause which gives Congress the tion, and rejected."

power to regulate commerce with foreign naBut, wien a bill to incorporate the present Bank tions. Another, in that clause which authorizes of the United States was submitted for his ap- Congress 6 to establish post offices and post roads;" proval, and when he could have put it down for another in that clause which authorizes Congress ever, he found means to get over all his Consti- “ to raise and support armies ;” and another class tutional scruples, and approved the act. This could perceive it in the wisdom of the Convention. afforded him proper occasion to restore the Con- They could not believe that so wise an assemblage stitution. There was no overwhelming majority of men could have intended to forget making proin Congress in its favor, and but a few sessions vision for improvements so desirable, although before it had been negatived by a majority of Con- they had actually forgotten it. We could, from gress, upon the express ground of iis unconstitu- this diversity of opinions, perceive that the mother tionality. There was no war to impose any thing of this road and canal law could not be accurately like necessity for establishing such a bank. But traced. Nor was the father of it known, and it the era of good feelings had began to dawn. We was of course an illegitimate. had never heard that the Chief Justice Marshall If gentlemen wished to restore the Constitution had said the bank was unconstitutional, but, to to its original purity, and preserve it inviolate, it prove the converse, upon the question of right was not to be done by retrospective operations upon in the States to tax that bank, the opinion he gave expired laws, and long past legal decisions. If you must be admitted to be a very labored one, des- wish to preserve your Constitution pure, you must, titute of authority, and only maintained upon the when questions of policy of a doubtful character ground of implication and experience.

arise, first examine for your Constitutional powers The gentleman from Virginia had said, " that to act upon them. If the power is not delegated, the defenders of the sedition law had found the it is reserved to the States or to the people, and authority for Congress to pass such a law, in you can go no further. But, instead of resorting that part of the eighth section of the first article to an inquiry of this sort, the usual mode is, when of the Constitution, which provides for calling a gentleman of the Senate wishes to carry a favor'forth the militia to execute the laws of the Union, ite point, he tells you what you have done hereto

suppress insurrection, and repel invasions.” Mr. fore; he gives you a precedent. These precedents Smith said, he had adverted to this remark of the are produced very often, because, gentlemen say, gentleman, not with a view of defending the sedi- the object is of little importance, or their friends tion law, but to show that the gentleman had are concerned, and they do not like to oppose it. drawn om the same fruitful source himself on And he had en told, on a very important occaseveral occasions, and to caution the gentleman, sion, when he, Mr. S., was urging the propriety of if he wishes to bring the Constitution back to its adhering to the Constitution, that, “if the measoriginal purity, and maintain it in that purity, to ure was unconstitutional, it was, nevertheless, touch that 8th section with a sparing hand." In safe, whilst we had it in our own hands; that we 1816 the gentleman had stood foremost with the would take care not to abuse it.” So your own friends of the bank. The bank sprung from the precedents, which you are daily accumulating, to same fountain, the 8th section. The gentleman suit the convenience of one to-day, and of another now acknowledged he had erred in that vote, but to-morrow, and your own infallibility, now seem says it was a time of imperious necessity. He to form the measure of your Constitutional powers. says, “the house was on fire, and no alternative The gentleman from Virginia has not contented but to extinguish it in this way.” If he meant by himself with this, but bas gone to the Parliament the house being on fire, the pressure of the war, of Great Britain for precedents, and gives you some he was mistaken. The bank charter was not cases of attainder. "The cases referred to were granted till 1816, and peace had been proclaimed cases of attainder by the Parliament itself, and in 1815, more that a year before. This institution not the decisions of a court of justice. There

a

Supplemental Speeches.

6

6

was no parallel between the Parliament of Great which have noticed the subject at all, have proBritain and the Congress of the United States. tected the liberty of the press. Virginia bad been The Parliament of Great Britain was omnipotent. silent on that important privilege in her constituBy its fundamental principles that Parliament is a tion. Maryland had adopted the common law, court of judicature to hear cases in the last resort; and punished and prosecuted according to its rules. they can do any thing which the wisdom of its The State of North Carolina had formed for members may deem right. It can depose a king, herself, immediately after the declaration of inor raise one to the throne;

or it can change the dependence, perhaps the best constitution of any royal descent at pleasure. The will of Parliament State in the Union. In that constitution the libis the Constitution alone by which its powers are erty of the press was better protected than in any limited. It is not so in our Government. Your other State. Its language is stronger and more powers are prescribed, and you cannot act beyond explicit. It is in these words: “That the freedom that limit

. Can Congress remove a Chief Magis- of the press is one of the great bulwarks of libtrate at its mere will and pleasure, and place erty, and, therefore, ought never to be restrained." another in the chair ? You have not thought so Notwithstanding this, the common law of libels is yet, perhaps, but if you are to take the Parliament in full force in that State. And it would appear of Great Britain, with all its gigantic and omnip- as if it was universally approved ; and, as his auotent powers for your guide, and conceive your thority for believing so, he read from the Richmond powers to be equally gigantic and omnipotent, you Enquirer the following passage : “ The House of may do so whenever you think a fit occasion pre-Commons of North Carolina has unanimously senis itself. Whilst the whole civilized world is directed that prosecution be commenced against gazing upon our political course, and admiring the John Wright, (formerly of this town,) printer simplicity of our Government, not more on ac- " and proprietor of the Halifax Compiler, for a count of the powers retained by the people and by libellous publication contained in a late number the States, than for the well defined and precise of that paper against the Legislature of North limits that are prescribed to the powers given to • Carolina." This appears to have been at the last each branch of the Government, we are looking session of that Legislature. From this course of for foreign precedents to authorize us to go beyond proceeding, by that respectable body, it would our limits, and lay hold on powers not delegated seem, whatever protection the constitution of that by the Constitution.

Staté had given to the liberty of the press, it was The gentleman from Virginia (Mr. BARBOUR) not intended to give protection to the publication had declared, “it was against the theory of our of libels, or this prosecution could not have been institutions to control the liberty of the press by ordered. tolerating a prosecution for a libel, even in a State." The State of South Carolina has said, in the And then, the gentleman avows, “it is a business 6th section of the 9th article of her constitution, between individuals only."

“ the trial by jury, &c., and the liberty of the press, Mr. S. observed, although the people of the shall be forever inviolably preserved." Yet, in that United States, for wise purposes, may have denied State, the common law is in full force, with all its this power to the General Government, and prob- absurdities, that the truth cannot be given in eviably it was wise to do so, yet the gentleman had dence, “the greater the truth, the greater the libel,” most egregiously mistaken the powers as well as &c.; and, not only in force, but in constant practhe practice of the States to carry on prosecutions tice; and, what is more, it is likely to remain in for libels. The English common law of libels force. Two years ago, a bill was brought before was said to have originated in the Star Chamber, the Legislature of that State to relax the common in the times of high-handed political oppression. law, so far as to authorize the defendant to give But it became a part of the common law, and truth in evidence on the trial ; and this bill was was transferred to this country, and adopted by all supported by unrivalled eloquence, and yet it was the old States, some of which still retain it, and negatived by a large majority; others have ameliorated by it, their constitutions or The State of Connecticut has said, in the 5th by statute. There was not a State in the Union, section of the 1st article of her declaration of rights, either old or new, where a prosecution for libels “every citizen may freely speak, write, and pubwas not authorized, either by the common law, by lish, his sentiments on all subjects, being responsible statute, or by the State constitution. In the States for the abuse of that liberty." of New Hampshire, Massachusetts, Rhode Island, The States of Pennsylvania and Delaware both New Jersey, Vermont, Georgia, and New York, declare in their constitutions, that the press shall the common law had been relaxed by statute so be free to every citizen to write and print what he far as to allow the defendant to give the truth in pleases, being responsible for the abuse of that libevidence. But these States still retain the com-erty; but do not authorize the truth to be given mon law punishment of fine, imprisonment, pil- in evidence, except in cases for prosecutions for lory, and whipping, at the discretion of the judge publications of papers investigating the official who shall pass the sentence upon conviction. conduct of public officers.

Virginia itself retained the common law, but by The States of Kentucky, Tennessee, Louisiana, a forced construction suffered the truth to be given Ohio, Indiana, Mississippi, Illinois, Alabama, and in evidence, and punished by the common law Maine, have all declared by their constitutions that rule of fine, imprisonment, pillory, and whipping, the presses shall be free, and every citizen may if the judge should so order. All these States freely write, speak, and print, on any subject, be

Supplemental Speeches.

ing responsible for the abuse of that liberty. Some had given to the world, and by which the mind of those States have authorized the defendant to of man had been enlightened and expanded. It give the truth in evidence in a prosecution for the was this which had paved the way to civil liberty ; publication of papers examining the proceedings it was this which had subverted the despotisms of the Legislature, or the official conduct of pub- that prevailed in the dark ages of antiquity; and lic officers; but others do not go so far. And all it was this alone which had given freedom to the the constitutions of those States of Kentucky, civilized world. In this great work, it was not Tennessee, Ohio, Louisiana, Indiana, Mississippi

, your newspaper presses that were useful; tyrants Illinois, Alabama, and Maine, have been within could wield these as well as the friends of liberty. your control, and all but two or three of them have Nor was it the indiscriminate publication of truth actually passed under your revision, and not a and falsehood, for which gentlemen so much consingle objection offered to one of them. Five or tended, that ever aided the cause of freedom. It is six of these very exceptionable constitutions had impossible to admit that the well-earned reputation passed under the inspection of the gentleman from of any citizen, whether he be a President, a memVirginia; and the mildest feature any of them ber of Congress, or a private citizen, should be sufpresented was, that the truth might be given in fered to be assailed by falsehood, and that the evidence on a prosecution for a libel, and yet he spoiler should plead the liberty of the press to cover supposes a prosecution cannot be maintained under his malignity. Should this principle succeed, an the authority of any of the States.

honest reputation would be but a name, and the His very worthy friend from Kentucky (Mr. cut-throat and philanthropist would have equal Johnson) had enumerated many offences commit- claims upon your patronage and protection. ted by the Federal party in the course of the late In these United States, there are about four war, such as impeding the enlistment of soldiers, hundred newspaper presses. There is, perhaps, saying the President of the United States ought amongst them, about one-tenth part that are imto be hanged, or that he ought to be removed to partial, and would do equal justice to both sides of make way for some other who knew the interests any political question, and perhaps to the political of the people, and would administer the Govern- character of public men. The rest are ready for ment for the public good; that it was a war dic- any thing that may promote their own emolument, tated by the Emperor of France, and carried on for and serve themselves and their friends. Some of his aggrandizement, &c. He says all these imped them have been ready for the highest bidder. They iments, and may others, for the purpose of favoring have become the channels through which themthe enemy, were carried on, yet your war suc- selves and friends are to glide into office. An ceeded; and asks what would you do with such per- office-hunter has nothing to do but enclose a fifty sons as those ? And then replies, that he had for- dollar bill to the editor, and he becomes pre-emigiven them; and the country had forgiven them; nently qualified to fill the first office in the State, and it was much better than to punish them. Mr. or the nation, without perhaps a single qualificaS. said he knew the goodness of that gentleman's tion for either, unless it is his talents for inheart would almost overcome public justice itself, trigue, for which there is now so large a demand to embrace an opportunity to indulge his native be- in our country. If an editor cannot obtain suffinignity. But, were he to answer the gentleman's cient supplies of slander from his customers, to question, what would you do with such persons keep the community in an uproar, he will supply as those ?" he would answer, without any impas- the deficiency by his editorial remarks. If a single sioned feelings, or any desire or wish whatever to word is uttered which an editor supposes to be offend, that he would have hanged them; because, aimed at him, however true it may be, he then by doing so, he would have terminated the war at considers himself at liberty to name the rash ofa much earlier period, and have saved the lives of fender, and to make his own press the vehicle many valuable citizens of the United States, and through which he may vent his malignity and prevented the effusion of much blood.

defamation. He considers this the rod of terror, Gentlemen have said much about the liberty of by which he can awe into obedience any who the press; that it was the scourge of tyrants, and should dare to call in question his conduct. Some the bulwark of our civil liberty, as well as of our of them have the vanity to believe they can write holy religion. Mr. S. observed that he had said a man into power, and then write him out again; nothing in opposition to the liberty of the press. some suake it a matter of conscience to go with He was as friendly to the liberty of the press as the party in power ; others take part with the party any gentleman who had favored the resolutions in power as long as they see any hope to share in before the Senate. He hoped the liberty of the the public favors; but, if the prospects darken, press would always be protected, both by the Con- they become the bitter enemies of those they supstitution and by the public sentiment. But, whilst posed they had put into power, and endeavor to he entertained this hope, he could not, for a moment, change the dynasty, in hope of a better fortune for believe that the public sentiment of the American themselves under the new order of things. Some people would protect the propagation of falsehood, cannot subsist without falsehood : it is the food by any means, in any shape, or for any purpose. that nourishes and gives life to their presses. He knew much had been done for the cause of civil During the late war, many of your presses were liberty, and of religion, since the art of printing had kept up for the sole purpose of distracting your been discovered; but it was by the means of works councils, and aiding your enemies; and protracted of religion, of science, and of philosophy, which it your war, and did you more essential injury than