Supplemental Speeches. contempt for such unrelenting tyrants. But, he hoped, for the honor of the public officers, as well as for the honor of the citizens of the State of Vermont, and for the honor of humanity itself, that the charge was, unfounded. It was substantiated by no testimony, or document of any description whatever, except the petition; and that coming from the person immediately concerned, uncorroborated by any one circumstance whatsoever, was a ground too slender to gain our credence, and he would discard it from his mind. But, if true to the full extent, as represented by the petitioner himself, it could only excite our pity and indignation, but could arm us with no power to decide, in our legislative capacity, upon the Constitutionality of a law which had been extinct for twenty years. The gentleman from Virginia had asserted that the sedition law was unconstitutional, and that we had the power to declare it so by a law, even now. He has gone so far as to say that no other competent power exists by which a law can be declared unconstitutional. Mr. S. observed, that what he was about to say on this question, should not be said as an advocate for the sedition law; on the contrary, he wished it to be explicitly understood that he should not speak a single word to prove it Constitutional. He would not even go into the inquiry. If a proposition was now before the Senate to re-enact that law, it would then be his duty to do so, and he would fulfil that duty. And if it would in the least degree gratify his friends, he had no hesitation in saying that he held the sedition law in as utter contempt as any man in this nation could do. Nor had he the least possible doubt but that the Federal party, which then held the reins of Government, had no other object in view when they passed this law, than that of securing their power and putting down the Republican party. However, he denied what gentlemen had said, who advocated the resolutions, that the sedition law had such an effect upon the public sentiment as to produce a revolution in the political parties, by which the Republican party got possession of the Government. The Republican party stood in need of no such aid. It was founded on correct principles, and such as could stand the test of experience and trial; and had obtained such a strong hold on the public mind, that Federalism was giving way to it, and the sedition law was passed with a hope of bolstering up the Federal cause. But, what has all this to do with the question now under consideration? The motives for passing the law, and the effect upon the public mind, could neither give to, nor take from you, the power of declaring that law unconstitutional. If you have the power, it exists independent of any such circumstances; if you have it not, no circumstances whatever can give it to you. You must derive your power from the Constitution itself; if that does not give it to you, nothing foreign can give it to you. Mr. S. observed, that Congress had the power to pass laws, but had no power to declare such laws unconstitutional after they had passed. That function belonged exclusively to the judges. Congress could repeal any law, whilst it was in operation, but that was the only control it had over a law. As soon as a law becomes extinct, the powers of Congress to exercise a control over it become extinct also. It has been asked, if one Congress should pass an unconstitutional law, and should refuse to repeal it, as in the case of the sedition law, and the judges should pronounce it Conștitutional, what course were the people to pursue to redress such a grievance? The answer is a plain one; the people have the power to hurl from their seats such perverse members who should pass an unconstitutional law, and refuse afterwards to repeal it. They have this control, and this only, over their members. Over the judges they had the power of impeachment, but no other Constitutional control. If these two departments should continue to abuse the powers in them vested, and pervert the Constitution, and bring on such oppression as could not be borne, the sovereign people would resort to first principles, and new model their Government. No human institutions were free from imperfections; no human actions exempt from error; and if one abuse had crept into your Government, and had nearly passed into oblivion, and not likely to be repeated, it was better to let it rest than to attempt to remedy it by a violent infraction of the Constitution, by assuming to yourselves the powers of reviewing the decisions of your courts of justice. The Constitution of the United States is not the production of Congress-it is not the property of Congress. It is the production of the people, and the property of the people. It is their shield against the abuse of powers, as well as against the usurpation of powers both by Congress and the judges. Your powers are limited. All legislative powers are granted to Congress, and all judicial powers are granted to the judges. You have, therefore, the power to enact laws, but no power to sit in judgment upon those laws. It is expressly and exclusively given to the judges to construe the laws, and to decide upon their constitutionality. The judges are an independent and co-ordinate branch of the Government; deriving their authority from the Constitution, and not from Congress. They are accountable to the sovereign people; and if guilty of malpractice in administering the laws, they can, and ought to be impeached; and you are the tribunal before which they are to answer; but there your powers cease. You have powers to punish judges for corruption, but none to revise and correct their decisions. Mr. S. said, of the whole number of the Senators which he then had the honor to address, he was happy to know that three-fourths of them were, or had been practising lawyers, and the greater part of them statesmen of much experience; and, as he had once done when this question was before the Senate at a former session, he would call on gentlemen to point out that part of the Constitution which gives to Congress the power to declare a law unconstitutional, and to revoke a solemn judicial decision, made by judges constitutionally authorized, and competent to decide Supplemental Speeches. twenty years after the decision had had its complete operation, and twenty years after the law itself had expired by its own limitation. No gentleman would attempt it. Such a power nowhere exists such a decision was unheard of in the annals of legislation. There was not a deliberative body in the whole civilized world that had ever claimed this right. public sentiment. Some of the United States judges, and likewise some of the State judges, about the time this sedition law passed, and during its continuance, were in the habit of preaching political sermons in the courts of justice, in the shape of what they called a charge to the grand jury. In these charges they availed themselves of their official stations to disseminate their own political creeds. They preached much against French politics, and the danger of French influence, and against the growing democracy in our own country. He had in his library one of those political sermons, which was delivered to the grand juries by one of the associate judges of South Carolina. He kept it as a memento of the times. Mr. S. observed, there was a story in circulation, but whether a true story he could not tell, that one of your judges had descended from his high station during the last session of Congress, and mingled in the strife; and endeavored, with no little zeal, to influence, by his arguments, both within and without the Congress, the decision of a political question to a result that would shake this Union to its centre; and, not content with this, he had likewise taken up the trade of political preaching to grand juries, upon the same subject. Although he acknowledged that a judge, who should forget that it was his duty to administer the laws, but not to make laws, and should, by his vanity or his ambition, thrust himself into this House, to whisper his political tenets into your ears, was intermeddling beyond his Constitutional sphere, and would justly incur the execrations of every independent man, yet he had still to learn, however profligate the judges might be, that Congress could assume powers not delegated by the Constitution. Mr. S. observed, that the gentleman from Virginia (Mr. BARBOUR) had indulged in many observations upon the judges, and the conduct of the judges. In doing so he had said "Kings can do no wrong; but your judges have not that attribute -they are fallible, like other men." The gentleman then observed, that "those who had been judges themselves, would, no doubt, take part 'with those who had decided upon the constitu'tionality of the sedition law to maintain the fraternity." And, whilst the gentleman thus addressed the Senate, he, in the most significant manner, Mr. S. said, had pointed at himself, so as to leave no doubt but he was the subject of this animadversion, as he had once had the honor to hold the appointment of an associate judge in the State in which he resided. To relieve himself from the imputation, he would beg leave to compare his own course, since he had held a seat in the Senate, with that of the gentleman himself, as respected partiality for the judges. When one of the judges, from South Carolina, too, at a former session, asked to be paid a sum of money for extra services, he had himself objected to that claim, because he was of opinion it was wrong. The gentleman from Virginia voted for that claim. Three years ago the gentleman originated a bill to increase the salary of the heads of departments, and, 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 unconstitutional, and, unless Conservices; the gentleman maintained it. Finallygress will do so, the Government is in danger, the bill passed, and the associate judges are now on a salary of $4,500, by his exertions. Why give to the judges this increase of salary, if they are not to be confided in ? And he would ask, on whose side the strongest partiality had been evinced? and it is the only means by which your Constitution can be brought back to its original purity." Amongst many other grounds to impress a belief that the law is unconstitutional, and that you 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. said, 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 Supplemental Speeches. Justice Marshall, although he believed them to rank with the greatest statesmen living, nevertheless, as they were offered as authority, they, like other authorities, were subject to be examined on both sides; and, so far as regards bringing the Constitution back to its original purity, their opinions on another occasion would leave some doubt. Within three years after the adoption of the Federal Constitution, Mr. President Madison, in debate upon a proposition to incorporate the former Bank of the United States, opposed it on the ground of its being unconstitutional-he said: "In making these remarks on the merits of the bill, he had reserved to himself the right to deny the authority of Congress to pass it. He had entertained this opinion from the date of the Constitution. His impression might perhaps be stronger, because he well recollected that a power to grant charters to incorporations had been proposed in the General Convention, and rejected." had sprung up in the era of good feeling too; and was now convulsing the Union. It was a brand of discord between the States and the General Government. In 1817 the road and canal mania raged. The gentleman was one of its zealous advocates, and voted for it. He had since found he was wrong, and that it was unconstitutional. The gentleman, in speaking of the sedition law springing from the 8th section, takes occasion to say, the alien law was a twin from the same mother. He could tell the gentleman that his road and canal law had descended from the 8th section also, but its mother could not be ascertained. One gentleman derived the power to Congress to make roads and canals from that clause of this 8th section which gives Congress power "to pay the debts and provide for the common defence and general welfare of the United States." Another could see it in the clause which gives Congress the power "to regulate commerce with foreign nations." Another, in that clause which authorizes Congress "to establish post offices and post roads;" another in that clause which authorizes Congress could perceive it in the wisdom of the Convention. They could not believe that so wise an assemblage of men could have intended to forget making provision for improvements so desirable, although they had actually forgotten it. We could, from this diversity of opinions, perceive that the mother of this road and canal law could not be accurately traced. Nor was the father of it known, and it was of course an illegitimate. But, when a bill to incorporate the present Bank of the United States was submitted for his approval, and when he could have put it down forever, he found means to get over all his Consti-"to raise and support armies ;" and another class tutional scruples, and approved the act. This afforded him proper occasion to restore the Constitution. There was no overwhelming majority in Congress in its favor, and but a few sessions before it had been negatived by a majority of Congress, upon the express ground of its unconstitutionality. There was no war to impose any thing like necessity for establishing such a bank. But the era of good feelings had began to dawn. We had never heard that the Chief Justice Marshall had said the bank was unconstitutional, but, to prove the converse, upon the question of right in the States to tax that bank, the opinion he gave must be admitted to be a very labored one, destitute of authority, and only maintained upon the ground of implication and experience. 6 The gentleman from Virginia had said, "that 'the defenders of the sedition law had found the ' authority for Congress to pass such a law, in 'that part of the eighth section of the first article ' of the Constitution, which provides for calling 'forth the militia to execute the laws of the Union, suppress insurrection, and repel invasions." Mr. SMITH said, he had adverted to this remark of the gentleman, not with a view of defending the sedition law, but to show that the gentleman had drawn from the same fruitful source himself on several occasions, and to caution the gentleman, if he wishes to bring the Constitution back to its original purity, and maintain it in that purity, to touch that 8th section with a sparing hand. In 1816 the gentleman had stood foremost with the friends of the bank. The bank sprung from the same fountain, the 8th section. The gentleman now acknowledged he had erred in that vote, but says it was a time of imperious necessity. He says, "the house was on fire, and no alternative but to extinguish it in this way." If he meant by the house being on fire, the pressure of the war, he was mistaken. The bank charter was not granted till 1816, and peace had been proclaimed in 1815, more that a year before. This institution If gentlemen wished to restore the Constitution to its original purity, and preserve it inviolate, it was not to be done by retrospective operations upon expired laws, and long past legal decisions. If you wish to preserve your Constitution pure, you must, when questions of policy of a doubtful character arise, first examine for your Constitutional powers to act upon them. If the power is not delegated, it is reserved to the States or to the people, and you can go no further. But, instead of resorting to an inquiry of this sort, the usual mode is, when a gentleman of the Senate wishes to carry a favorite point, he tells you what you have done heretofore; he gives you a precedent. These precedents are produced very often, because, gentlemen say, the object is of little importance, or their friends are concerned, and they do not like to oppose it. And he had been told, on a very important occasion, when he, Mr. S., was urging the propriety of adhering to the Constitution, that, "if the measure was unconstitutional, it was, nevertheless, safe, whilst we had it in our own hands; that we would take care not to abuse it." So your own precedents, which you are daily accumulating, to suit the convenience of one to-day, and of another to-morrow, and your own infallibility, now seem to form the measure of your Constitutional powers. The gentleman from Virginia has not contented himself with this, but has gone to the Parliament of Great Britain for precedents, and gives you some cases of attainder. The cases referred to were cases of attainder by the Parliament itself, and not the decisions of a court of justice. There Supplemental Speeches. was no parallel between the Parliament of Great Britain and the Congress of the United States. The Parliament of Great Britain was omnipotent. By its fundamental principles that Parliament is a court of judicature to hear cases in the last resort; they can do any thing which the wisdom of its members may deem right. It can depose a king, or raise one to the throne; or it can change the royal descent at pleasure. The will of Parliament is the Constitution alone by which its powers are limited. It is not so in our Government. Your powers are prescribed, and you cannot act beyond that limit. Can Congress remove a Chief Magistrate at its mere will and pleasure, and place another in the chair? You have not thought so yet, perhaps, but if you are to take the Parliament of Great Britain, with all its gigantic and omnipotent powers for your guide, and conceive your powers to be equally gigantic and omnipotent, you may do so whenever you think a fit occasion presents itself. Whilst the whole civilized world is gazing upon our political course, and admiring the simplicity of our Government, not more on account of the powers retained by the people and by the States, than for the well defined and precise limits that are prescribed to the powers given to each branch of the Government, we are looking for foreign precedents to authorize us to go beyond our limits, and lay hold on powers not delegated by the Constitution. The gentleman from Virginia (Mr. BARBOUR) had declared, "it was against the theory of our institutions to control the liberty of the press by tolerating a prosecution for a libel, even in a State." And then, the gentleman avows, "it is a business between individuals only." which have noticed the subject at all, have protected the liberty of the press. Virginia had been silent on that important privilege in her constitution. Maryland had adopted the common law, and punished and prosecuted according to its rules. The State of North Carolina had formed for herself, immediately after the declaration of independence, perhaps the best constitution of any State in the Union. In that constitution the lib erty of the press was better protected than in any other State. Its language is stronger and more explicit. It is in these words: "That the freedom of the press is one of the great bulwarks of liberty, and, therefore, ought never to be restrained." Notwithstanding this, the common law of libels is in full force in that State. And it would appear as if it was universally approved; and, as his authority for believing so, he read from the Richmond Enquirer the following passage: "The House of Commons of North Carolina has unanimously directed that prosecution be commenced against John Wright, (formerly of this town,) printer and proprietor of the Halifax Compiler, for a libellous publication contained in a late number of that paper against the Legislature of North 'Carolina." This appears to have been at the last session of that Legislature. From this course of proceeding, by that respectable body, it would seem, whatever protection the constitution of that State had given to the liberty of the press, it was not intended to give protection to the publication of libels, or this prosecution could not have been ordered. The State of South Carolina has said, in the 6th section of the 9th article of her constitution, "the trial by jury, &c., and the liberty of the press, shall be forever inviolably preserved." Yet, in that State, the common law is in full force, with all its absurdities, that the truth cannot be given in evidence, "the greater the truth, the greater the libel," &c.; and, not only in force, but in constant practice; and, what is more, it is likely to remain in force. Two years ago, a bill was brought before the Legislature of that State to relax the common law, so far as to authorize the defendant to give truth in evidence on the trial; and this bill was supported by unrivalled eloquence, and yet it was negatived by a large majority, Mr. S. observed, although the people of the United States, for wise purposes, may have denied this power to the General Government, and probably it was wise to do so, yet the gentleman had most egregiously mistaken the powers as well as the practice of the States to carry on prosecutions for libels. The English common law of libels was said to have originated in the Star Chamber, in the times of high-handed political oppression. But it became a part of the common law, and was transferred to this country, and adopted by all the old States, some of which still retain it, and 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, bylish, his sentiments on all subjects, being responsible statute, or by the State constitution. In the States of New Hampshire, Massachusetts, Rhode Island, New Jersey, Vermont, Georgia, and New York, the common law had been relaxed by statute so far as to allow the defendant to give the truth in evidence. But these States still retain the common law punishment of fine, imprisonment, pillory, and whipping, at the discretion of the judge who shall pass the sentence upon conviction. Virginia itself retained the common law, but by a forced construction suffered the truth to be given in evidence, and punished by the common law rule of fine, imprisonment, pillory, and whipping, if the judge should so order. All these States for the abuse of that liberty." The States of Pennsylvania and Delaware both declare in their constitutions, that the press shall be free to every citizen to write and print what he pleases, being responsible for the abuse of that liberty; but do not authorize the truth to be given in evidence, except in cases for prosecutions for publications of papers investigating the official conduct of public officers. The States of Kentucky, Tennessee, Louisiana, Ohio, Indiana, Mississippi, Illinois, Alabama, and Maine, have all declared by their constitutions that the presses shall be free, and every citizen may freely write, speak, and print, on any subject, be Supplemental Speeches. ing responsible for the abuse of that liberty. Some of those States have authorized the defendant to give the truth in evidence in a prosecution for the publication of papers examining the proceedings of the Legislature, or the official conduct of public officers; but others do not go so far. And all the constitutions of those States of Kentucky, Tennessee, Ohio, Louisiana, Indiana, Mississippi, Illinois, Alabama, and Maine, have been within your control, and all but two or three of them have actually passed under your revision, and not a single objection offered to one of them. Five or six of these very exceptionable constitutions had passed under the inspection of the gentleman from Virginia; and the mildest feature any of them presented was, that the truth might be given in evidence on a prosecution for a libel, and yet he supposes a prosecution cannot be maintained under the authority of any of the States. had given to the world, and by which the mind of man had been enlightened and expanded. It was this which had paved the way to civil liberty; it was this which had subverted the despotisms that prevailed in the dark ages of antiquity; and it was this alone which had given freedom to the civilized world. In this great work, it was not your newspaper presses that were useful; tyrants could wield these as well as the friends of liberty. Nor was it the indiscriminate publication of truth and falsehood, for which gentlemen so much contended, that ever aided the cause of freedom. It is impossible to admit that the well-earned reputation of any citizen, whether he be a President, a member of Congress, or a private citizen, should be suffered to be assailed by falsehood, and that the spoiler should plead the liberty of the press to cover his malignity. Should this principle succeed, an honest reputation would be but a name, and the cut-throat and philanthropist would have equal claims upon your patronage and protection. His very worthy friend from Kentucky (Mr. JOHNSON) had enumerated many offences committed 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 forgiven them; and the country had forgiven them; and it was much better than to punish them. Mr. S. said he knew the goodness of that gentleman's heart would almost overcome public justice itself, to embrace an opportunity to indulge his native benignity. But, were he to answer the gentleman's question, "what would you do with such persons as those?" he would answer, without any impassioned feelings, or any desire or wish whatever to offend, that he would have hanged them; because, by doing so, he would have terminated the war at a much earlier period, and have saved the lives of many valuable citizens of the United States, and prevented the effusion of much blood. Gentlemen have said much about the liberty of the press; that it was the scourge of tyrants, and the bulwark of our civil liberty, as well as of our holy religion. Mr. S. observed, that he had said nothing in opposition to the liberty of the press. He was as friendly to the liberty of the press as any gentleman who had favored the resolutions before the Senate. He hoped the liberty of the press would always be protected, both by the Constitution and by the public sentiment. But, whilst he entertained this hope, he could not, for a moment, believe that the public sentiment of the American people would protect the propagation of falsehood, by any means, in any shape, or for any purpose. He knew much had been done for the cause of civil liberty, and of religion, since the art of printing had been discovered; but it was by the means of works of religion, of science, and of philosophy, which it dollar bill to the editor, and he becomes pre-eminently qualified to fill the first office in the State, or the nation, without perhaps a single qualification for either, unless it is his talents for intrigue, for which there is now so large a demand in our country. If an editor cannot obtain sufficient supplies of slander from his customers, to keep the community in an uproar, he will supply the deficiency by his editorial remarks. If a single word is uttered which an editor supposes to be aimed at him, however true it may be, he then considers himself at liberty to name the rash offender, and to make his own press the vehicle through which he may vent his malignity and defamation. He considers this the rod of terror, by which he can awe into obedience any who should dare to call in question his conduct. Some of them have the vanity to believe they can write a man into power, and then write him out again; some make it a matter of conscience to go with the party in power; others take part with the party in power as long as they see any hope to share in the public favors; but, if the prospects darken, they become the bitter enemies of those they supposed they had put into power, and endeavor to change the dynasty, in hope of a better fortune for themselves under the new order of things. Some cannot subsist without falsehood: it is the food that nourishes and gives life to their presses. During the late war, many of your presses were kept up for the sole purpose of distracting your councils, and aiding your enemies; and protracted your war, and did you more essential injury than |
