Amendment I (Speech and Press)
[Volume 5, Page 136]
Henry Lee, Report of the Minority on the Virginia Resolutions22 Jan. 1799J. House of Delegates (Va.) 6:93--95 1798--99
The act intitled "An act in addition to the act instituted as an act for the punishment of certain crimes against the United States," and which is commonly called the sedition law, subjects to a fine not exceeding two thousand dollars, and to imprisonment not exceeding two years, any person who shall write, print, utter, or publish, or cause or procure to be written, printed, uttered or published, any false, scandalous, malicious writing or writings against the government of the United States, with intent to defame the said government of the United States, or either house of Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of Congress, or the said 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, or to stir up any sedition within the United States, or to excite any unlawful combination therein for opposing or resisting any law of the United States, or any act of the President of the United States, done in pursuance of such law, or of the powers in him vested by the constitution of the United States, or to resist, oppress, or defeat any such law or act, or to aid, encourage, or abet hostile designs of any foreign nation, against the United States, their people, or government; the person accused is to be tried by jury, and may give in evidence the truth of the matter contained in the libel.
To constitute the crime, the writing must be false, scandalous, and malicious, and the intent must be to effect some of the ill purposes described in the act.
To contend that there does not exist a power to punish writings coming within the description of this law, would be to assert the inability of our nation to preserve its own peace, and to protect themselves from the attempts of wicked citizens, who, incapable of quiet themselves, are incessantly [Volume 5, Page 137] employed in devising means to disturb the public repose.
Government is instituted and preserved for the general happiness and safety--the people therefore are interested in its preservation, and have a right to adopt measures for its security, as well against secret plots as open hostility. But government cannot be thus secured, if by falsehood and malicious slander, it is to be deprived of the confidence and affection of the people. It is vain to urge that truth will prevail, and that slander, when detected, recoils on the calumniator. The experience of the world, and our own experience, prove that a continued course of defamation will at length sully the fairest reputation, and will throw suspicion on the purest conduct. Although the calumnies of the factious and discontented may not poison the minds of the majority of the citizens, yet they will infect a very considerable number, and prompt them to deeds destructive of the public peace and dangerous to the general safety.
This, the people have a right to prevent: and therefore, in all the nations of the earth, where presses are known, some corrective of their licentiousness has been deemed indispensable. But it is contended that though this may be theoretically true, such is the peculiar structure of our government, that this power has either never been confided to, or has been withdrawn from the legislature of this union.--We will examine these positions. The power of making all laws which shall be necessary and proper for carrying into execution all powers vested by the constitution in the government of the United States, or in any department or officer thereof, is by the concluding clause of the eighth section of the first article, expressly delegated to congress. This clause is admitted to authorize congress to pass any act for the punishment of those who would resist the execution of the laws, because such an act would be incontestably necessary and proper for carrying into execution the powers vested in the government. If it authorizes the punishment of actual resistance, does it not also authorize the punishment of those acts, which are criminal in themselves, and which obviously lead to and prepare resistance? Would it not be strange, if, for the purpose of executing the legitimate powers of the government, a clause like that which has been cited should be so construed as to permit the passage of laws punishing open resistance, and yet to forbid the passage of laws punishing acts which constitute the germ from which resistance springs? That the government must look on, and see preparations for resistance which it shall be unable to control, until they shall break out in open force? This would be an unreasonable and improvident construction of the article under consideration. That continued calumnies against the government have this tendency, is demonstrated by uninterrupted experience. They will, if unrestrained, produce in any society convulsions, which if not totally destructive of, will yet be very injurious to, its prosperity and welfare. It is not to be believed that the people of the western parts of Pennsylvania could have been deluded into that unprovoked and wanton insurrection, which called forth the militia of the neighbouring states, if they had not been at the same time irritated and seduced by calumnies with which certain presses incessantly teemed into the opinion that the people of America, instead of supporting their government and their laws, would join in their subversion. Those calumnies then, tended to prevent the execution of the laws of the union, and such seems to be their obvious and necessary tendency.
To punish all malicious calumnies against an individual with an intent to defame him, is a wrong on the part of the calumniator, and an injury to the individual, for which the laws afford redress. To write or print these calumnies is such an aggravation of the crime, as to constitute an offence against the government, and the author of the libel is subject to the additional punishment which may be inflicted under an indictment. To publish malicious calumnies against government itself, is a wrong on the part of the calumniator, and an injury to all those who have an interest in the government. Those who have this interest and have sustained the injury, have the natural right to an adequate remedy. The people of the United States have a common interest in their govenment, and sustain in common the injury which affects that government. The people of the United States therefore have a right to the remedy for that injury, and are substantially the party seeking redress. By the 2d section of the 3d article of the constitution, the judicial power of the United States is extended to controversies to which the United States shall be a party; and by the same article it is extended to all cases in law and equity arising under the constitution, the laws of the United States, and treaties made or which shall be made under their authority. What are cases arising under the constitution, as contradistinguished from those which arise under the laws made in pursuance thereof? They must be cases triable by a rule which exists independent of any act of the legislature of the union. That rule is the common or unwritten law which pervades all America, and which declaring libels against government to be a punishable offence, applies itself to and protects any government which the will of the people may establish. The judicial power of the United States, then, being extended to the punishment of libels against the government, as a common law offence, arising under the constitution which create the government, the general clause gives to the legislature of the union the right to make such laws as shall give that power effect.
That such was the contemporaneous construction of the constitution, is obvious from one of the amendments which have been made to it. The 3d amendment which declares, that Congress shall make no law abridging the liberty of the press, is a general construction made by all America on the original instrument admitting its application to the subject. It would have been certainly unnecessary thus to have modified the legislative powers of Congress concerning the press, if the power itself does not exist.
But altho' the original constitution may be supposed to have enabled the government to defend itself against false and malicious libels, endangering the peace, and threatening the tranquility of the American people, yet it is contended that the 3d amendment to that instrument, has deprived it of this power.[Volume 5, Page 138]
The amendment is 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."
In a solemn instrument, as is a constitution, words are well weighed and considered before they are adopted. A remarkable diversity of expression is not used, unless it be designed to manifest a difference of intention. Congress is prohibited from making any law RESPECTIONG a religious establishment, but not from making any law RESPECTING the press. When the power of Congress relative to the press is to be limited, the word RESPECTING is dropt, and Congress is only restrained from the passing any law ABRIDGING its liberty. This difference of expression with respect to religion and the press, manifests a difference of intention with respect to the power of the national legislature over those subjects, both in the person who drew, and in those who adopted this amendment.
All ABRIDGMENT of the freedom of the press is forbidden, but it is only an ABRIDGEMENT of that freedom which is forbidden. It becomes then necessary in order to determine whether the act in question be unconstitutional or not, to inquire whether it does in fact ABRIDGE the freedom of the press.
The act is believed not to have that operation, for two reasons.
1st. A punishment of the licentiousness is not considered as a restriction of the freedom of the press,
2d. The act complained of does not punish any writing not before punishable, nor does it inflict a more severe penalty than that to which the same writing was before liable.
1st. If by freedom of the press is meant a perfect exemption from all punishment for whatever may be published, that freedom never has, and most probably never will exist. It is known to all, that the person who writes or publishes a libel, may be both sued and indicted, and must bear the penalty which the judgment of his country inflicts upon him. It is also known to all that the person who shall libel the government of the state, is for that offence, punishable in the like manner. Yet this liability to punishment for slanderous and malicious publications has never been considered as detracting from the liberty of the press. In fact the liberty of the press is a term which has a definite and appropriate signification, completely understood. It signifies a liberty to publish, free from previous restraint, any thing and every thing at the discretion of the printer only, but not the liberty of spreading with impunity false and scandalous slanders which may destroy the peace and mangle the reputation of an individual or of a community.
If this definition of the term be correct, and it is presumed that its correctness is not to be questioned, then a law punishing the authors and publishers of false, malicious and scandalous libels can be no attack on the liberty of the press.
But the act complained of is no abridgment of the liberty of the press, for another reason.
2d. It does not punish any writing not before punishable, nor does it inflict a heavier penalty than the same writing was before liable to.
No man will deny, that at common law, the author and publisher of a false, scandalous and malicious libel against the government or an individual, were subject to fine and imprisonment, at the discretion of the judge. Nor will it be denied, that previous to our revolution, the common law was the law of the land throughout the now United States.
We believe it to be a principle incontestibly true, that a change of government does not dissolve obligations previously created, does not annihilate existing laws, and dissolve the bonds of society; but that a People passing from one form of government to another, retain in full force all their municipal institutions not necessarily changed by the change of government. If this be true, then the common law continued to be the law of the land after the revolution, and was of complete obligation even before the act of our Assembly for its adoption. Whether similar acts have been passed by the legislature of other states or not, it is certain that in every state the common law is admitted to be in full force, except as it may have been altered by the statute law. The only question is, whether the doctrines of the common law are applicable to libels against the government of the United States, as well as to libels against the governments of particular states. For such a distinction there seems to be no sufficient reason. It is not to a magistrate of this or that description that the rules of the common law apply. That he is a magistrate, that he is cloathed with the authority of the laws, that he is invested with power by the people, is a sufficient title to the protection of the common law. The government of the United States is for certain purposes as entirely the government of each state, chosen by the people thereof, and cloathed with their authority, as the government of each particular state is the government of every subdivision of that state; and no satisfactory reason has been heretofore assigned why a general rule common to all, and punishing generally the malicious calumniators of magistrates, should not be as applicable to magistrates chosen for the whole, as to those chosen for its different parts.
If then it were even true that the punishment of the printer of malicious falsehoods affected the liberty of the press, yet the act does not abridge that liberty, since it does not substitute a harsher or severer rule of punishment than that which before existed.
On points so extremely interesting, a difference of opinion will be entertained. On such occasions all parties must be expected to maintain their real opinions, but to maintain them with moderation and with decency. The will of the majority must prevail, or the republican principle is abandoned and the nation is destroyed. If upon every constitutional question which presents itself, or on every question we choose to term constitutional, the construction of the majority shall be forcibly opposed, and hostility to the government excited throughout the nation, there is an end of our domestic peace, and we may ever bid adieu to our representative government.
The legislature of Virginia has itself passed more than one unconstitutional law, but they have not been passed with an intention to violate the constitution. On being decided to be unconstitutional by the legitimate authority, they have been permitted to fall. Had the judges deemed [Volume 5, Page 139] them constitutional, they should have been maintained. The same check, nor is it a less efficient one, exists in the government of the union. The judges of the United States are as independent as the judges of the state of Virginia, nor is there any reason to believe them less wise and less virtuous. It is their province, and their duty to construe the constitution and the laws, and it cannot be doubted, but that they will perform this duty faithfully and truly. They will perform it unwarmed by political debate, uninfluenced by party zeal. Let us in the mean time seek a repeal of any acts we may disapprove, by means authorized by our happy constitution, but let us not endeavor to disseminate among our fellow citizens the most deadly hate against the government of their own creation, against the government, on the preservation of which we firmly believe the peace and liberty of America to depend, because in some respects its judgment has differed from our own.
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