with Notes of Reference (1803)
St. George Tucker
Of the Right of Conscience; and of the Freedom of Speech and of the Press
1 Blackstone’s Commentaries, 134.
THE right of personal security in the United States comprehends, likewise, the uninterrupted enjoyment of a person’s conscience in all matters respecting religion; and of his opinions in all matters of a civil nature.
The right of personal opinion is one of those absolute rights which man has received from the immediate gift of his Creator, but which the policy of all governments, from the first institution of society to the foundation of the American republics, has endeavored to restrain, in some mode or other. The mind being created free by the author of our nature, in vain have the arts of man endeavored to shackle it: it may indeed be imprisoned a while by ignorance, or restrained from a due exertion of it’s powers by tyranny and oppression; but let the rays of science, or the dawn of freedom, penetrate the dungeon, its faculties are instantly rarified and burst their prison. This right of personal opinion, comprehends first, liberty of conscience in all matters relative to religion; and, secondly, liberty of speech and of discussion in all speculative matters, whether religious, philosophical, or political.
1. Liberty of conscience in matters of religion consists in the absolute and unrestrained exercise of our religious opinions, and duties, in that mode which our own reason and conviction dictate, without the control or intervention of any human power or authority whatsoever. This liberty though made a part of our constitution, and interwoven in the nature of man by his Creator, so far as the arts of fraud and terrors of violence have been capable of abridging it, has been the subject of coercion by human laws in all ages and in all countries as far as the annals of mankind extend. The infallibility of the rulers of nations, in matters of religion, has been a doctrine practically enforced from the earliest periods of history to the present moment among jews, pagans, mahometans, and Christians, alike. The altars of Moloch and of Jehovah have been equally stained with the blood of victims, whose conscience did not receive conviction from the polluted doctrines of blood thirsty priests and tyrants. Even in countries where the crucifix, the rack, and the flames have ceased to be the engines of proselitism, civil incapacities have been invariably attached to a dissent from the national religion: the ceasing to persecute by more violent means, has in such nations obtained the name of toleration.1 In liberty of conscience says the elegant Dr. Price, I include much more than toleration. Jesus Christ has established a perfect equality among his followers. His
command is, that they shall assume no jurisdiction over one another, and acknowledge no master besides himself. It is, therefore, presumption in any of them to claim a right to any superiority or pre-eminence over their bretheren. Such a claim is implied, whenever any of them pretend to tolerate the rest. Not only all Christians, but all men of all religions, ought to be considered by a state as equally entitled to it’s protection, as far as they demean themselves honestly and peaceably. Toleration can take place only where there is a civil establishment of a particular mode of religion; that is, where a predominant sect enjoys exclusive advantages, and makes the encouragement of it’s own mode of faith and worship a part of the constitution of the state; but at the same time thinks fit to
suffer the exercise of other modes of faith and worship. Thanks be to God, the new American states are at present strangers to such establishments. In this respect, as well as many others, they have shown in framing their constitutions, a degree of wisdom and liberality which is above all praise.
Civil establishments of formularies of faith and worship, are inconsistent with the rights of private judgment. They engender strife …. they turn religion into a trade …. they shore up error …. they produce hypocrisy and prevarication …. they lay an undue bias on the human mind in its inquiries, and obstruct the progress of truth …. genuine religion is a concern that lies entirely between God and our own souls. It is incapable of receiving any aid from human laws. It is contaminated as soon as worldly motives and sanctions mix their influence with it. Statesmen should countenance it only by exhibiting, in their own example, a conscientious regard to it in those forms which are most agreeable to their own judgments, and by encouraging their fellow citizens in doing the same. They cannot, as public men, give it any other assistance. All, besides, that has been called a public leading in religion, has done it an essential injury, and produced some of the worst consequences.
If also we view this matter in a temporal sense, we shall see the ill effects it has had on the prosperity of nations. The union of church and state has impoverished Spain. The revoking the edict of Nantz drove the silk manufacture from France into England; and church and state are now driving the cotton manufacture from England to America and France. It was by observing the ill effects of it in England, that America has been warned against it; and it is by experiencing them in France, that the national assembly have abolished it; and, like America, have established universal right of conscience, and universal right of citizenship.
The church establishment in England is one of the mildest sort. But even there what a snare has it been to integrity? And what a check to free inquiry? What dispositions favorable to despotism has it fostered? What a turn to pride and narrowness and domination has it given the clerical character? What struggles has it produced in its members to accommodate their opinions to the subscriptions and tests which it imposes? What a perversion of learning has it occasioned to defend obsolete creeds and absurdities? What a burden is it on the consciences of some of its best clergy, who, in consequence of being bound down to a system they do not approve, and having no support except that which they derive from conforming to it, find themselves under the hard necessity of either prevaricating or starving? No one doubts but that the English clergy in general could with more truth declare that they do not, than that they do give their unfeigned assent to all and every thing contained in the thirty-nine articles, and the book of common prayer: and, yet, with a solemn declaration to this purpose, are they obliged to enter upon an office which above all offices requires those who exercise it to be examples of simplicity and sincerity …. Who can help execrating the cause of such an evil?
But what I wish most to urge is the tendency of religious establishments to impede the improvement of the world. They are boundaries prescribed by human folly to human investigation; and enclosures, which intercept the light, and confine the exertions of reason. Let any one imagine to himself what effects similar establishments would have in philosophy, navigation, metaphisics, medicine, or mathematics. Something like this, took place in logic and philosophy, while the ipse dixit of Aristotle, and the nonsense of the schools, maintained, an authority like that of the creeds of churchmen; and the effect was a longer continuance of the world in the ignorance and barbarity of the dark ages. But civil establishments of religion are more pernicious. So apt are mankind to misrepresent the character of the Deity, and to connect his favor with particular modes of faith, that it must be expected that a religion so settled will be what it has hitherto been …. a gloomy and cruel superstition, bearing the name of religion.
It has been long a subject of dispute, which is worse in it’s effects on society, such a religion or speculative atheism. For my own part, I could almost give the preference to the latter …. Atheism is so repugnant to every principle of common sense, that it is not possible it should ever gain much ground, or become very prevalent. On the contrary, there is a particular proneness in the human mind to superstition, and nothing is more likely to become prevalent …. Atheism leaves us to the full influence of most of our natural feelings and social principles; and these are so strong in their operation, that, in general, they are a sufficient guard to the order of society. But superstition counteracts these principles, by holding forth men to one another as objects of divine hatred; and by putting them on harrassing, silenceing, imprisoning and burning one another, in order to do God service …. Atheism is a sanctuary for vice, by taking away the motives to virtue arising from the will of God, and the fear of future judgment. But superstition is more a sanctuary for vice, by teaching men ways of pleasing God, without moral virtue; and by leading them even to compound for wickedness, by ritual services, by bodily penances and mortifications; by adoring shrines, going pilgrimages, saying many prayers, receiving absolution from the priests, exterminating heretics, etc …. Atheism destroys the sacredness and obligation of an oath. But is there not also a religion (so called) which does this, by teaching, that there is a power which can dispense with the obligation of oaths; that pious frauds are right, and that faith is not to be kept with heretics.
It is Indeed only a rational and liberal religion; a religion founded on just notions of the Deity, as a Being who regards equally every sincere worshipper, and by whom all are alike favored as far as they act up to the light they enjoy: a religion which consists in the imitation of the moral perfections of an Almighty but Benevolent Governor of Nature, who directs for the best, all events, in confidence in the care of his providence, in resignation to his will, and in the faithful discharge of every duty of piety and morality from a regard to his authority, and the apprehension of a future righteous retribution. It is only this religion (the inspiring principle of every thing fair and worthy, and joyful, and which, in truth is nothing but the love of God to man, and virtue warming the heart and directing the conduct). It is only this kind of religion that can bless the world, or be an advantage to society. This is the religion that every enlightened friend to mankind will be zealous to support. But it is a religion that the powers of the world know little of, and which will always be best promoted by being left free and open.2 The following passage from the same author, deserves too much attention to be pretermitted: “Let no such monster be known there, [in the United States] as human authority in matters of religion. Let every honest and peaceable man, whatever is his faith, be protected there; and find an effectual defense against the attacks of bigotry and intolerance. In the United States may religion flourish! They cannot be very great and happy if it does not. But let it be a better religion than most of those which have been hitherto professed in the world. Let it be a religion which enforces moral obligations; not a religion which relaxes and evades them …. A tolerant and catholic religion; not a rage for proselytism …. A religion of peace and charity; not a religion that persecutes curses and damns. In a word, let it be the genuine gospel of peace, lifting above the world, warming the heart with the love of God and his creatures, and sustaining the fortitude of good men, by the assured hope of a future deliverance from death, and an infinite reward in the everlasting kingdom of our Lord and Savior.”3
This inestimable and imprescriptible right is guaranteed to the citizens of the United States, as such, by the constitution of the United States, which declares,4 that no religious test shall ever be required as a qualification to any office or public trust under the United States; and by that amendment to the constitution of the United States,5 which prohibits congress from making any law respecting the establishment of religion, or prohibiting the free exercise thereof; and to the citizens of Virginia by the bill of rights,6 which declares, “that religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence, and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience: and that it is the mutual duty of all to practice Christian forbearance, love, and charity, towards each other.” And further, by the act for establishing religious freedom, by which it is also declared, “that no man shall be compelled to frequent or support any religious worship, place, or ministry, whatsoever, nor shall be enforced, restrained, molested or burdened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument maintain their opinions in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.”7
2. Liberty of speech and of discussion in all speculative matters, consists in the absolute and uncontrollable right of speaking, writing, and publishing, our opinions concerning any subject, whether religious, philosophical, or political; and of inquiring into and, examining the nature of truth, whether moral or metaphysical; the expediency or inexpediency of all public measures, with their tendency and probable effect; the conduct of public men, and generally every other subject, without restraint, except as to the injury of any other individual, in his person, property, or good name. Thought and speech are equally the immediate gifts of the Creator, the one being intended as the vehicle of the other: they ought, therefore, to have been wholly exempt from the coersion of human laws in all speculative and doctrinal points whatsoever: liberty of speech in political matters, has been equally proscribed in almost all the governments of the world, as liberty of conscience in those of religion. A complete tyranny over the human mind could never have been exercised whilst the organ by which our sentiments are conveyed to others, was free: when the introduction of letters among men afforded a new mode of disclosing, and that of the press, a more expeditious method of diffusing their sentiments, writing and printing also became subjects of legal coersion;8 even the expression of sentiments by pictures and hieroglyphics9 attracted the attention of the Argus-government, so far as to render such expressions punishable by law. The common place arguments in support of these restraints are, that they tend to preserve peace and good order in government; that there are some doctrines both in religion and politics, so sacred, and others of so bad a tendency, that no public discussion of them ought to be suffered. To these the elegant writer before referred to, gives this answer: “were this a right opinion, all the persecution that has ever been practiced, would be justified. For if it is a part of the duty of civil magistrates, to prevent the discussion of such doctrines, they must, in doing this, act on their own judgments of the nature and
tendency of doctrines; and consequently, they must have a right to prevent the discussion of all doctrines which they think to be too sacred for discussion, or too dangerous in their tendency; and this right they must exercise in the only way in which civil power is capable of exercising it, by inflicting penalties on all who oppose sacred doctrines, or who maintain pernicious opinions.”10
In England during the existence of the court of star chamber, and after it’s abolition, from the time of the long parliament to the year 1694, the liberty of the press, and the right of vending books, was restrained to very narrow limits, by various ordinances and acts of parliament; all books printed were previously licensed by some of the great offices of state, or the two universities, and all foreign books were exposed to a similar scrutiny before they were vended. No shopkeeper could buy a book to sell again, or sell any book, unless he were a licensed bookseller. By these and other restrictions the communication of knowledge was utterly subjected to the control of those whose interest led them rather to promote ignorance than the knowledge of truth. In 1694, the parliament refused to continue these prohibitions any longer, and thereby, according to De Lolme,11 established the freedom of the press in England.
But although this negative establishment may satisfy the subjects of England, the people of America have not thought proper to suffer the freedom of speech, and of the press to rest upon such an uncertain foundation, as the will and pleasure of the government. Accordingly, when it was discovered that the constitution of the United States had not provided any barrier against the possible encroachments of the government thereby to be established, great complaints were made of the omission, and most of the states instructed their representatives to obtain an amendment in that respect; and so sensible was the first congress of the general prevalence of this sentiment throughout America, that in their first session they proposed an amendment since adopted by all the states and made a part of the constitution; “that congress shall make no law abridging the freedom
of speech, or of the press.”12 And our state bill of rights declares, “that the freedom of the press is one of the great bulwarks of liberty, and cannot be restrained, but by despotic governments.”13 And so tenacious of this right, was the convention of Virginia, by which the constitution of the United States was ratified, that they further declared, as an article of the bill of rights then agreed to, “that the people have a right to the freedom of speech, and of writing and publishing their sentiments; that the freedom of the press is one of the greatest bulwarks of liberty, and ought not to be violated.”14 Nay, so reasonably jealous were they of the possibility of this declaration being disregarded, as not forming a part of the constitution, at that time, that the following declaration is inserted in, and forms a part of, the instrument of ratification, viz. “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 where power is given by the constitution for those purposes: 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.”15
As this latter declaration forms a part of the instrument by which the constitution of the United States became obligatory upon the state, and citizens of Virginia; and as the act of ratification has been accepted in that form; no principle is more clear, than that the state of Virginia is no otherwise bound thereby, than according to the very tenor of the instrument, by which she has bound herself. For as no free state can be bound to another, or to a number of others, but by it’s own voluntary consent and act, so not only the evidence of that consent, but the nature and terms of it, can be ascertained only by recurrence to the very instrument, by which it was first given. And as the foregoing declaration not only constitutes a part of that instrument, but contains a preliminary protest against any extension of the enumerated powers thereby granted to the federal government, it could scarcely have been imagined, that any violation of a principle so strenuously asserted, and made, as it were, the sole ground of the pragmatic sanction, would ever have been attempted by the federal government.
But however reasonable such an expectation might have been, a very few years evinced a determination on the part of those who then ruled the public councils of the United States, to set at nought all such restraints. An act accordingly was passed by the congress,16 on the fourteenth of July 1798, whereby it was enacted, that “if any person shall write, print, utter or publish any false and malicious writing against the government of the United States, or either house of congress, or the president, with intent to defame them, or either of them, or to bring them or either of them into contempt, or disrepute; or to excite against them or either of them, the hatred of the good people of the United States, 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.” The act was limited in it’s duration to the third day of March, 1801, the very day on which the period for which the then president was elected, was to expire; and, previous to which the event of the next presidential election must be known.
The consequences of this act, as might have been fourseen, were a general astonishment, and dissatisfaction, among all those who considered the government of the United States, as a limited system of government; in it’s nature altogether federal, and essentially different from all others which might lay claim to unlimited powers; or even to national, instead of federal authority. The constitutionality of the act was accordingly very generally denied, or questioned, by them. They alleged, that it is to, the freedom of the press, and of speech, that the American nation is indebted for its liberty, it’s happiness, it’s enlightened state, nay more, for it’s existence. That in these states the people are the only sovereign: that the government established by themselves, is for their benefit; that those who administer the government, whether it be that of the state, or of the federal union, are the agents and servants of the people, not their rulers or tyrants …. That these agents must be, and are, from the nature and principles of our governments, responsible to the people, for their conduct. That to enforce this responsibility, it is indispensibly necessary that the people should inquire into the conduct of their agents; that in this inquiry, they must, or ought to scrutinize their motives, sift their intentions, and penetrate their designs; and that it was therefore, an unimpeachable right in them to censure as well as to applaud; to condemn or to acquit; and to reject, or to employ them again, as the most severe scrutiny might advise. That as no man can be forced into the service of the people against his own will and consent; so if any man employed by them in any office, should find the tenure of it too severe, because responsibility is inseparably annexed to it, he might retire: if he can not bear scrutiny, he might resign: if his motives, or designs, will not bear sifting; or if censure be too galling to his feelings, he might avoid it in the shades of domestic privacy.
That if flattery be the only music to his ear, or the only balm to his heart; if he sickened when it is withheld, or turned pale when denied him; or if power, like the dagger of Macbeth, should invite his willing imagination to grasp it, the indignation of the people ought immediately to mark him; and hurl him from their councils, and their confidence forever. That if this absolute freedom of inquiry may be, in any manner, abridged, or impaired by those who administer the government, the nature of it will be instantly changed from a federal union of representative democracies, in which the people of the several states are the sovereign, and the administrators of the government their agents, to a consolidated oligarchy, aristocracy, or monarchy, according to the prevailing caprice of the constituted authorities, or of those who may usurp them. That where absolute freedom of discussion is prohibited, or restrained, responsibility vanishes. That any attempt to prohibit, or restrain that freedom, may well be construed to proceed from conscious guilt. That the people of America have always manifested a most jealous sensibility, on the subject of this inestimable right, and have ever regarded it as a fundamental principle in their government, and carefully engrafted in the constitution. That this sentiment was generated in the American mind, by an abhorrence of the maxims and principles of that government which they had shaken off, and a detestation of the abominable persecutions, and extrajudicial dogmas, of the still odious court of star-chamber; whose tyrannical proceedings and persecutions, among other motives of the like nature, prompted and impelled our ancestors to fly from the pestilential government of their native country, to seek an assylum here; where they might enjoy, and their posterity establish, and transmit to all future generations, freedom, unshackled, unlimited, undefined. That in our time we have vindicated, fought for, and established that freedom by our arms, and made it the solid, and immovable basis and foundation both of the state, and federal government. That nothing could more clearly evince the inestimable value that the American people have set upon the liberty of the press, than their uniting it in the same sentence, and even in the same member of a
sentence, with the rights of conscience, and the freedom of speech.
And since congress are equally prohibited from making any law abridging the freedom of speech, or of the press, they boldly challenged their adversaries to point out the constitutional distinction, between those two modes of discussion, or inquiry. If the unrestrained freedom of the press, said they, be not guaranteed, by the constitution, neither is that of speech. If on the contrary the unrestrained freedom of speech is guaranteed, so also, is that of the press. If then the genius of our federal constitution has vested the people of the United States, not only with a censorial power, but even with the sovereignty itself; if magistrates are, indeed, their agents: if they are responsible for their acts of agency; if the people may not only censure whom they disapprove, but reject whom they may find unworthy; if approbation or censure, election or rejection, ought to be the result of inquiry, scrutiny, and mature deliberation; why, said they, is the exercise of this censorial power, this sovereign right, this necessary inquiry, and scrutiny to be confined to the freedom of speech? Is it because this mode of discussion better answers the purposes of the censorial power? Surely not. The best speech can not be heard, by any great number of persons. The best speech may be misunderstood, misrepresented, and imperfectly remembered by those who are present. To all the rest of mankind, it is, as if it had never been. The best speech must also be short for the investigation of any subject of an intricate nature, or even a plain one, if it be of more than ordinary length. The best speech then must be altogether inadequate to the due exercise of the censorial power, by the people. The only adequate supplementary aid for these defects, is the absolute freedom of the press. A freedom unlimited as the human mind; viewing all things, penetrating the recesses of the human heart, unfolding the motives of human actions, and estimating all things by one invaluable standard, truth; applauding those who deserve well; censuring the undeserving; and condemning the unworthy, according to the measure of their demerits.
In vindication of the act, the promoters and supporters of it, said,17 that a law to punish false, scandalous, and malicious writings against the government, with intent to stir up sedition, is a law necessary for carrying into effect the power vested by the constitution in the government of the United States, and consequently such a law as congress may pass. To which it was answered, that even were the premises true, it would not authorize congress to pass an act to punish writings calculated to bring congress, or the president into contempt or disrepute. Inasmuch as such contempt or disrepute may be entertained for them, or either of them, without incurring the guilt of sedition, against the government, and without the most remote design of opposing, or resisting any law, or any act of the president done in pursuance of any law: one or the other of which would seem necessary to constitute the offense, which this argument defends the right of congress to punish, or prevent.
It was further urged in vindication of the act, that the liberty of the press consists not in a license for every man to publish what he pleases, without being liable to punishment for any abuse of that license; but in a permission to publish without previous restraint; and, therefore, that a law to restrain the licentiousness of the press, cannot be considered as an abridgment of its liberty.18 To which it was answered that this exposition of the liberty of the press, was only to be found in the theoretical writings of the commentators on the English government, where the liberty of the press rests upon no other ground, than that there is now no law which imposes any actual previous restraint upon the press, as was formerly the case: which is very different from the footing upon which it stands in the United States, where it is made a fundamental article of the constitutions, both of the federal and state governments, that no such restraint shall be imposed by the authority of either …. That if the sense of the state governments be wanting on the occasion, nothing can be more explicit than the meaning and intention of the state of Virginia, at the moment of adopting the constitution of the United States; by which it will clearly appear that it never was the intention of that state (and probably of no other in the union) to permit congress to distinguish between the liberty and licentiousness of the press; or, in any manner to “cancel, abridge, restrain, or modify” that inestimable right.
Thirdly it was alleged, that the act could not be unconstitutional because it made nothing penal, which was not penal before, being merely declaratory of the common law,19 viz. of England.
To this it was, among other arguments, answered. That the United States as a federal government have no common law. That although the common law of England, is, under different modifications, admitted to be the common law of the states respectively, yet the whole of the common law of England has been no where introduced: that there is a great and essential difference, in this respect, in the several states, not only in the subjects to which it is applied, but in the extent of its application. That the common law of one state, therefore, is not the common law of another. That the constitution of the United States has neither created it, nor conferred it upon the federal government. And, therefore, that government has no power or authority to assume the right of punishing any action, merely because it is punishable in England, or may be punishable in any, or all the states, by the common law.
The essential difference between the British government and the American constitutions was moreover insisted on, as placing this subject in the clearest light. In the former, the danger of encroachments on the rights of the people, was 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 it’s 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 mere legislative precautions against executive usurpations. Under such a government as that, an exemption of the press from previous restraints, by licensers from the king, is all the freedom that can be secured to it, there: but, that 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 …. A further difference between the two governments was also insisted on. In Great-Britain, it is a maxim, that the king, an hereditary, not a responsible magistrate, tan do no wrong; and that the legislature, which in two thirds of it’s 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. That the latter may well be supposed to require a greater degree of freedom of animadversion than might be tolerated by the genius of the former. That even in England, notwithstanding the general doctrine of the common law, the ministry, who are responsible to impeachment, are at all times animadverted on, by the press, with peculiar freedom. That the practice in America must be entitled to much more respect: being in most instances founded upon the express declarations contained in the respective constitutions, or bill of rights of the confederated states.20 That even in those states where no such guarantee could be found, the press had always exerted a freedom in canvassing the merits, and measures of public men of every description, not confined to the limits of the common law. That on this footing the press has stood even in those states, at least, from the period of the revolution.
The advocates and supporters of the act alleged, fourthly; That had the constitution intended to prohibit congress from legislating at all, on the subject of the press, it would have used the same expressions as in that part of the clause, which relates to religion, and religious tests; whereas, said they, there is a manifest difference; it being evident that the constitution intended to prohibit congress from legislating at all, on the subject of religious establishments, and the prohibition is made in the most express terms. Had the same intention prevailed respecting the press, the same expression would have been used, viz. “Congress shall make no law respecting the press.” They are not, however, prohibited, added they, from legislating at all, on the subject, but merely from abridging the liberty of the press. It is evident, therefore, said they, that congress may legislate respecting the press: may pass laws for it’s regulation, and to punish those who pervert it into an engine of mischief, provided those laws do not abridge it’s liberty. A law to impose previous restraints upon the press, and not one to inflict punishment on wicked and malicious publications, would be a law to abridge the liberty of the press.21
To this it was answered, that laws to regulate, must, according to the true interpretation of that word, impose rules, or regulations, not before imposed; that to impose rules is to restrain; that to restrain must necessarily imply an abridgment of some former existing rights, or power: consequently, when the constitution prohibits congress from making any law abridging the freedom of speech, or of the press, it forbids them to make any law respecting either of these subjects. That this conclusion was an inevitable consequence of the injunction contained in the amendment, unless it could be shown, that the existing restraints upon the freedom of the press in the United States, were such as to require a remedy, by a law regulating (but not abridging) the manner in which it might be exercised with greater freedom and security. A supposition, which it was believed no person would maintain. That the necessary consequence of these things is, that the amendment was meant as a positive denial to congress, of any power whatever, on the subject.
As an evidence on this subject, which must be deemed absolutely conclusive, it was observed, That the proposition of amendments made by congress, is introduced in the following terms: “The conventions of a number of states, having, at the time of their adopting the constitution, expressed a desire, in order to prevent misconstruction, 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 it’s institution:” which affords 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 states, and as extending the ground of public confidence in the government. That 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; that 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.
But, the part of the constitution which seems to have been most recurred to, and even relied on, in defense of the act of congress, is the last clause of the eighth section of the first article, 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 the constitution in the government of the United States, or in any department or officer thereof.”22
To this it was answered, that the plain import of that 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. That 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 incidental 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 …. That, if the sedition law be brought to this kind of test, it is not even pretended by the framers of that act, that the power over the press, which is exercised thereby, can be found among the powers expressly vested in congress. That if it be asked, whether there is any express power, for executing which, that act is a necessary and a proper power: the answer is, that the express power which has been selected, as least remote from that exercised by the act, is the power 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 the punishment of libels, are exercises of a power to suppress insurrections. That if it be asked, whether the federal government has no power to prevent, as well as punish, resistance to the laws; the proper answer is, that they have the power, which the constitution deemed most proper in their hands for the purpose. That congress has power, before it happens, to pass laws for punishing such resistance; and the executive and judiciary have a power to enforce those laws, whenever it does actually happen. That it must be recollected by many, and could be shown to the satisfaction of all, that this construction of the terms “necessary and proper,” is precisely the
construction which prevailed during the discussions and ratifications of the constitution: and 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. That if this construction be rejected, 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.
To those who asked, if the federal government be 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 reply given was, that the constitution alone can answer the question: that no such power being expressly given; and such a power not being both necessary and proper to carry into execution any express power; but, above all, such a power being expressly forbidden by a declaratory amendment to the constitution, the answer must be, that the federal government is destitute of all such authority.23
This very imperfect sketch may be sufficient to afford the student some idea of the magnitude and importance of a question, which agitated every part of the United Slates, almost to a degree of convulsion: the controversy not being confined to the closets of speculative politicians, or to the ordinary channels of discussion through the medium of the press; but engrossing the attention, and calling forth the talents and exertions of the legislatures of several of the states in the union, on the one hand, and of the federal government, and all its branches, legislative, executive, and judiciary, on the other. For no sooner had the act passed, than prosecutions were commenced against individuals in several of the states: they were conducted, in some cases, with a rigor, which seemed to betray a determination to convert into a scourge that, which it had been pretended was meant only to serve as a shield.
The state of Kentucky was the first which took the act under consideration, and by a resolution passed with two dissenting voices only, declared the act of congress not law, but altogether void, and of no force. The state of Virginia, though posterior to her younger sister in point of time, was not behind her in energy. The general assembly at their first session after the passage of the act, did “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 further valid than they are authorized by the grants contained 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.” ….
“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 to expound certain general phrases (copied from the very limited grant of powers in the former articles of confederation, and therefore 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; so as to consolidate the states, by degrees, into one sovereignty.” That the “general assembly does, particularly protest against the palpable and alarming infractions of the constitution, in the two cases of the alien and sedition acts, passed at the last session of congress; the first of which exercises a power no where delegated to the federal government; and the other 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 levelled 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.”
“That this state having by its convention, which ratified the federal constitution, expressly declared, 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,” and from its extreme anxiety to guard these rights from every possible attack of sophistry, or ambition, having, with other states, recommended an amendment for that purpose, which amendment was, in due time, annexed to the constitution; it would mark a reproachful inconsistency and criminal degeneracy, if an indifference were now shown, to the most palpable violation of the rights, thus declared and secured; and to the establishment of a precedent, which may be fatal to the other.”
“That feeling the most sincere affection for their sister states; the truest anxiety for establishing and perpetuating the union; and the most scrupulous fidelity to the constitution which is the pledge of mutual friendship; and solemnly appealing “to the like dispositions of the other states, in confidence that they will concur with this commonwealth in declaring, (as it does hereby declare,) that the acts aforesaid are unconstitutional; and that the necessary and proper measures will be taken by each, for co-operating with this stale, in maintaining the authorities, rights and liberties, reserved to the states respectively, or to the people.”24
Answers were received from the legislatures of seven states, disapproving of the resolutions of Virginia and Kentucky, which had also been transmitted with a similar proposition. The general assembly of Massachoosetts, alone, condescended to reason with her sister states; the others scarcely paid them the common respect that is held to be due from individuals, to each other. The assembly of Virginia at their next session, entered into a critical review and examination of their former resolutions, and supported them by a train of arguments, and of powerful, convincing, and unsophistic reasoning, to which, probably, the equal cannot be produced in any public document, in any country.25 They concluded this examination and review (which occupied more than eighty pages) with resolving, “That having carefully and respectfully attended to the proceedings of a number of the states, in answer to their former resolutions, and having accurately and fully re-examined and re-considered the latter, they found it to be their indispensible 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.”
Mean time, petitions had been presented to congress for the repeal of those obnoxious acts: on the 25th of February 1799, congress agreed to the report of a committee advising them, that it would be inexpedient to repeal them. A majority of four members, only, prevailed on this occasion. During the session which succeeded, strenuous exertions were made for the continuance of the act commonly called the sedition act, (the other concerning aliens, having expired: After a severe struggle, the attempt failed, and the act was permitted to expire, at the same moment that put a period to the political importance of those, for whose benefit, alone, it seems to have been intended.
We may now, I trust, say with our former envoys to the republic of France: “The genius of the constitution can not be overruled by those who administer the government. Among those principles deemed sacred in America; among those sacred rights, considered as forming the bulwark of their liberty, which the government should contemplate with awful reverence, and approach only with the most cautious circumspection, there is none of which the importance is more deeply impressed on the public mind, than the liberty of the press.”26
It may be asked, perhaps: is there no remedy in the United States for injuries done to the good fame and reputation of a man; injuries, which to a man of sensibility, and of conscious integrity, are the most grievous that can be inflicted; injuries, which when offered through the medium of the press, may be diffused throughout the globe, and transmitted to latest posterity; may render him odious, and detestable in the eyes of the world, his country, his neighbors, his friends, and even his own family; may seclude him from society as a monster of depravity, and iniquity; and even may deprive him of sustenance, by destroying all confidence in him, and discouraging that commerce, or intercourse with him, which may be necessary to obtain the means?
Heaven forbid, that in a country which boasts of rational freedom, and of affording perfect security to the citizen for the complete enjoyment of all his rights, the most valuable of all should be exposed without remedy, or redress, to the vile arts of detraction and slander! Every individual, certainly, has a right to speak, or publish, his sentiments on the measures of government: to do this without restraint, control, or fear of punishment for so doing, is that which constitutes the genuine freedom of the press. The danger justly apprehended by those states which insisted that the federal government should possess no power, directly or indirectly, over the subject, was, that those who were entrusted with the administration might be forward in considering every thing as a crime against the government, which might operate to their own personal disadvantage; it was therefore made a fundamental ankle of the federal compact, that no such power should be exercised, or claimed by the federal government; leaving it to the state governments to exercise such jurisdiction and control over the subject, as their several constitutions and laws permit. In contending therefore for the absolute freedom of the press, and its total exemption from all restraint, control, or jurisdiction of the federal government, the writer of these sheets most explicitly disavows the most distant approbation of its licentiousness. A free press, conducted with ability, firmness, decorum, and impartiality, may be regarded as the chaste nurse of genuine liberty; but a press stained with falsehood, imposture, detraction, and personal slander, resembles a contaminated prostitute, whose touch is pollution, and whose offspring bears the foul marks of the parent’s ignominy.
Whoever makes use of the press as the vehicle of his sentiments on any subject, ought to do it in such language as to show he has a deference for the sentiments of others; that while he asserts the right of expressing and vindicating his own judgment, he acknowledges the obligation to submit to the judgment of those whose authority he cannot legally, or constitutionally dispute. In his statement of facts he is bound to adhere strictly to the truth; for any deviation from the truth is both an imposition upon the public, and an injury to the individual whom it may respect. In his restrictures on the conduct of men, in public stations, he is bound to do justice to their characters, and not to criminate them without substantial reason. The right of character is a sacred and invaluable right, and is not forfeited by accepting a public employment. Whoever knowingly departs from any of these maxims is guilty of a crime against the community, as well as against the person injured; and though both the letter and the spirit of our federal constitution wisely prohibit the congress of the United States from making any law, by which the freedom of speech, or of the press, may be exposed to restraint or persecution under the authority of the federal government, yet for injuries done the reputation of any person, as an individual, the state-courts are always open, and may afford ample, and competent redress, as the records of the courts of this commonwealth abundantly testify.
1. There is something so truly original in the following observations of the celebrated author of Common Sense, on the subject of toleration, that I shall give it at full length ….
|“Toleration is not the opposite of intolerance, but is the counterfeit of it. Both are despotisms. The one assumes to itself the right of withholding liberty of conscience, and the other of granting it. The one is the pope armed with fire and faggot, and the other is the pope selling, or granting indulgences. The former is church and state; and the latter is church and traffic. But toleration may be viewed in a much stronger light. Man worships not himself, but his Maker; and the liberty of conscience which he claims, is not for the service of himself, but of his God. In this case, therefore, we must necessarily have the associated idea of two beings; the mortal who renders the worship, and the immortal being who is worshipped …. Toleration, therefore, places itself, not between man and man, nor between church and church, nor between one denomination of religion and another, but between God and man; between the being who worships, and the being who is worshipped; and by the same act of assumed authority by which it tolerates man to pay his worship, it presumptuously and blasphemously sets itself up to tolerate the Almighty to receive it.|
“Were a bill brought into any parliament, entitled, “An act to tolerate or grant liberty to the Almighty to receive the worship of a Jew or a Turk,” or “to prohibit the Almighty from receiving it:” all men would startle, and call it blasphemy. There would be an uproar. The presumption of toleration in religious matters would then present itself unmasked: but the presumption is not the less because the name of “man” only appears to those laws, for the associated idea of the worshipper and worshipped cannot be separated. Who, then, art thou, vain dust and ashes! by whatever name thou art called, whether a king, a bishop, a church or a state, a parliament or any thing else, that obtrudest thine insignificance between the soul of man and it’s Maker? Mind thine own concerns. If he believes not as thou believest, it is a proof that thou believest not as he believeth, and there is no earthly power can determine between you.
“With respect to what are called denominations of religion, if every one is left to judge of it’s own religion, there is no such thing as a religion that is wrong; but if they are to judge of each other’s religion, there is no such thing as a religion that is right; and, therefore, all the world is right, or all the world is wrong. But with respect to religion itself, without regard to names, and as directing itself from the universal family of mankind to the divine object of all adoration, it is man bringing to his Maker the fruits of his heart; and though those fruits may differ from each other like the fruits of the earth, the grateful tribute of every one is accepted.
“A bishop of Durham or a bishop of Winchester, or the archbishop who leads the dukes, will not refuse a tythe-sheaf of wheat, because it is not a cock of hay; nor a cock of hay, because it is not a sheaf of wheat; nor a pig because it is neither one nor the other; but these same persons, under the figure of an established church, will not permit their maker to receive the varied tythes of man’s devotion.
“One of the continual chorusses of Mr. Burke’s book is “church and state”: he does not mean some one particular church, or someone particular state, but any church and state; and he uses the term as a general figure, to hold forth the political doctrine of always uniting the church with the state in every country; and he censures the national assembly for not having done this in France. Let us bestow a few thoughts on this subject.
“All religions are in their nature, kind and benign, and united with principles of morality. They could not have made proselytes at first, by professing any thing that was vicious, cruel, persecuting, or immoral. Like every thing else they had their beginning; and they proceeded by persuasion, exhortation, and example. How is it then that they lose their native mildness, and become morose and intolerant? It proceeds from the connection which Mr. Burke recommends. By engendering the church with the state, a sort of mule animal, capable only of destroying, and not of breeding up, is produced, called the church established by law. It is a stranger, even from it’s birth, to any parent mother on which it is begotten, and whom in time it kicks out and destroys.
“The inquisition in Spain does not proceed from the religion originally professed, but from this mule animal, engendered between the church and state. The burnings in Smithfield proceeded from the same heterogeneous production; and it was the regeneration of this strange animal in England afterwards, that renewed the rancour and irreligion among the inhabitants; and that drove the people called quakers and dissenters to America. Persecution is not an original feature in any religion; but it is always the strongly marked feature of all law religions, or religions established by law. Take away the law-establishment, and every religion re-assumes it’s original benignity. In America, a catholic priest is a good citizen, a good character, and a good neighbour; an episcopalian minister is of the same description: and this proceeds independently of the men, from there being no law-establishment in America.
Paine’s Rights of Man, part 1, p. 58, &c. Albany, 1794.
2. Price’s observations on the American revolution. p. 28 to 34.
3. Ibid. p. 39.
4. Art. 6.
5. Art. 3.
6. Art. 16. Revised code. Edi. of 1794, p. 4.
7. Art. 16. Revised code. Edi. of 1794, c. 20.
8. Stat. 13 and 14, Car 2.
9. 4 Blacks. Com. p. 150.
10. Price’s Observations on the American Revolution, p. 19.
11. Page 215.
12. Amendments to C. U. S. Art. 3.
13. State Bill of Rights. Art. 12.
14. Bill of Rights agreed to by the convention of Virginia, by which the C. U. S. was adopted Art. 16.
15. C U. S. as ratified by the convention of Virginia.
16. L. U. S. 5 Cong c. 91.
17. See the report of a committee of congress, respecting the alien and sedition laws, Feb. 25, 1799.
18. See the report of a committee of congress, respecting the alien and sedition laws, February 25, 1799.
19. See the report of a committee of congress, respecting the alien and sedition laws, February 25, 1799.
20. See the Virginia bill of rights. Art. 12. Massachusetts, Art. 16. Pennsylvania, Art, 12. Delaware, Art. 23. Maryland, Art. 38. North-Carolina, Art. 15. South-Carolina, Art. 43. Georgia, Art. 61. The constitution of Pennsylvania, Art. 35, declares, “That the printing presses shall be free to every person who undertakes to examine the proceedings of the legislature or any part of the government.” And the bill of rights of Vermont, Art. 15, is to the same effect.
21. See the report of a committee of congress, respecting the alien and sedition laws, February 25, 1799.
22. See the report of a committee of congress, Feb. 25, 1799; and the answer of the senate and house of representatives of Massachusetts, (Feb. 9th. and 13th, 1799), to the communications from the state of Virginia, on the subject of the alien and sedition laws.
23. In the preceding sketch of the arguments used to demonstrate the unconstitutionality of the act of congress, I have extracted a few of those contained in the report of the committee of the house of delegates of Virginia, agreed to by the house, Jan. 11, 1800, and afterwards concurred in by the senate. This most valuable document is very long, and is incapable of being abridged, without manifest injury.
24. See the sessions acts of 1798, ad finem.
25. See the report of the committee, on this subject, agreed to in the home of delegates, Jan. 11, 1800.
26. See the letters from Messrs Marshall, Pinckney, and Gerry, to Mons. Talleyrand, minister of foreign affairs in France, 1798.