An essay on the liberty of the press; respectfully inscribed to the republican printers throughout the United States. / By Hortensius.

AN ESSAY ON THE LIBERTY OF THE PRESS.

PART I. TO THE PEOPLE OF THE UNITED STATES.

IT is the object of the following address to demonstrate, that so much of the late act of Congress, commonly called the Se∣dition Bill, as relates to libels, is not warranted by the Constitution of the Uni∣ted States; and that so much thereof as relates to printed libels, is expressly for∣bidden by it. To these two points, my observations will be exclusively confined.

The following principles, it is presumed, will be conceded. If the reader denies or doubts their truth, he need not proceed.

The whole argument is founded on a sup∣position that they are true.

I. That all power originally belongs to the people.

II. That the powers of government are powers granted by the people.

III. That the individuals selected from the mass of the people, to administer the government, possess no powers, general or special, but those which are either ex∣pressly delegated or are necessary to carry a power expressly delegated into effect.

IV. That it has frequently happened in the course of human affairs, and may again happen, that the individuals thus selected may abuse the power entrusted to them, and may usurp more power than was meant to be entrusted to them.

V. That one abuse does not justify a∣nother, and that the usurpations of Con∣gress cannot be vindicated by the en∣croachments of the State Legislatures.

VI. That the decision of a constitu∣tional question, ought not, in any man∣ner, to be affected by the conduct of France, or the opinions of Mr. Jefferson, or any other man, or men, in the world, but should rest on the immutable princi∣ples of reason and of truth.

It is on the ground of this last postu∣late, that no answer is given to the argu∣ments,

founded on opinions and writings ascribed to Mr. Jefferson, and to others; and on the same ground, the aid which might be obtained from the writings and speeches of Publius and other distinguish∣ed federalists, in support of the position now meant to be established, is totally rejected. It is the purpose of the present address, not to ascertain what particular individuals have thought, but what all men ought to think, concerning the pow∣ers of the government, and the freedom of the press.

1. If all power originally belongs to the people, those who exercise any por∣tion of power, must derive their authori∣ty from the people, and can possess no power, that is not given, expressly, or by fair and necessary implication. To ascertain the precise portion of power, which they have granted, we must resort to the instruments or writings by which their intention to grant power is express∣ed. These instruments are the Constitu∣tions of the several States, formed at a time when they were independent sove∣reignties, and the Federal Constitution, which unites all the States.

The State Constitutions preceded by several years, the formation of the Fede∣ral Compact. By these Constitutions go∣vernments

were organized, and the Le∣gislatures were intrusted with a general power to do what they might think the public good required. This power had been exercised in all the States, and the regulations, which it was thought the public good required, had been adopted. The rights of persons and things, public and private wrongs, which furnish all the materials for local and municipal law, had been accurately defined, and were well understood. Adequate provision mas made to secure reputation as well as liberty and life. Still, however, a Federal Govern∣ment was deemed essential, to the peace and happiness of the people of America; not because the State institutions were defective and required amendment, not because liberty was in danger, or because character was not sufficiently guarded from defamation, but because there were many important subjects on which the State Legislatures could not act with ef∣fect. They could not make effectual pro∣vision for paying the public debt, nor re∣gulate Commerce, nor borrow money on the credit of the United States, nor esta∣blish a system of general defence. These were the great objects which could not be attained, but by means of a Federal Government, and for the attainment of

these objects a Federal Government was instituted. The powers therefore delega∣ted to this government were special and limited, and from the state of things could not have been otherwise.

Nothing can be more obvious, and no∣thing has been more generally admitted, than the distinction, between the princi∣ple which is the basis of the State go∣vernments, and that which forms the basis of the Federal Constitution. To the State governments, general powers of le∣gislation are granted, and they may legis∣late on all subjects, except those on which they are expressly forbidden to act. To the Federal Government, specific powers only are given, and Congress can legis∣late on those subjects only on which they are expressly authorised to act. The State governments possess all powers, be∣longing to the people, except those ex∣pressly withheld: the general govern∣ment possesses those powers only which are expressly granted, or are necessary to carry a power expressly granted into ef∣fect. When therefore a doubt arises con∣cerning the constitutionality of a Con∣gressional law, the first question ought re∣gularly to be, is the power to pass this law expressly granted to Congress? If it be not expressly granted in plain words

for that purpose, the next question must be—Is this law necessary to carry any power expressly granted into effect? If it be not necessary, there is an end of all doubt or difficulty on the subject, and the law is absolutely void.

Let the Sedition bill be brought to the test of an examination on these principles, and the result will be, that those clauses in it, which punish insurrection or actual op∣position to the authorised measures of go∣vernment, will be found warranted by the terms and meaning of the federal compact; because the best laws would be of no avail, unless Congress possessed a power to pu∣nish those who opposed their execution. The power of punishing acts of opposition to the laws, therefore, being necessary, to carry the laws themselves into due opera∣tion, is readily conceded to belong to Congress. But the inquiry pursued far∣ther, on the same principles, will terminate in a conviction, that so much of the Se∣dition Bill as relates to libels on the go∣vernment, or the individuals belonging to it, is not within the words or meaning of the Constitution. It will not be said that the power of punishing libels is expressly given. Several offences are enumerated which may be defined and punished by the general government; but libels are not in∣cluded.

If then the power of punishing li∣bels is not expressly given, it cannot be ex∣ercised, unless it can be shewn to be neces∣sary to carry some given powers into effect. What is the power expressly given, which is carried into effect, or is in any shape aided in its operation, by the power of punishing libels. Plain as this question is, it never has been answered. In fact it can∣not be answered. Gallatin propounded it at the last session to the advocates of the Sedition Bill, with his usual perspicuity; but neither the eloquence of Otis, nor the ingenuity of Harper could be brought to encounter it!

One case more will completely illustrate the doctrine here inculcated. In 1792 Congress passed a law punishing with death persons concerned in robbing the mail, or stealing letters from the post of∣fice. If the enumerated powers of the government be examined, it will be found that the power to pass such a law is not expressly granted—still however it is war∣ranted by the Constitution, because it is necessary to carry into effect the general power expressly granted to Congress, to establish post offices and post roads.

The position, that Congress can exer∣cise no power that is not given expressly, or by necessary implication, tho' manifest∣ly

resulting from the nature of a federal compact, and supported by every fair and rational construction of the constitution, has, from excess of caution, been express∣ly recognized by the 12th article of the Amendments, which declares,

that powers not delegated to the United States by the Constitution, nor prohi∣bited by it to the States, are reserved to the States respectively or to the peo∣ple.

Solid as the foregoing principle is, and solemn as its recognition has been by the people of America, it has been boldly de∣nied by some, and artfully evaded by others. It has been strenuously contend∣ed, that Congress had power to adopt all measures which they might think condu∣cive to the general welfare. Mr. S. from South-Carolina was the first who openly proclaimed it as his opinion, that constituti∣onality and expediency were convertible terms.

Those who advocate this doctrine, en∣deavour to vindicate their conduct by re∣sorting to the preamble, and to the 8th Section of the first Article of the Consti∣tution of the United States.

But before the arguments drawn from these sources are noticed, it is proper to observe, that all reasoning on any proposi∣tion,

may be reduced into the form of a syllogism; and if the first and second terms be true, and the conclusion correct∣ly stated, the demonstration sought for is obtained; and according to all the rules of logic, and the plain dictates of common sense, principles from which a different conclusion is deduced, cannot be true.

The proposition here maintained is, that so much of the Sedition Bill as pre∣scribes a punishment for libels is not war∣ranted by the Federal Constitution.

To demonstrate this proposition to be true. I have recourse to the following syllogism.

1. Congress possesses no power unless it be expressly given, or necessary to carry a given power into effect. See the 1st, 2d, and 3d postulates.

2. The power of prescribing a punish∣ment for libels is not expressly given, nor necessary to carry a given power into effect.

3. Conclusion. Therefore so much of the Sedition Bill as prescribes a punish∣ment for libels, is not warranted by the Federal Constitution.

Upon principles of fair and logical rea∣soning, those who advocate the constituti∣onality of the Sedition Bill, must admit the conclusion here stated, unless they controvert the truth of the first or second terms of the foregoing syllogism.

The truth of the first term is controver∣ted by some on the ground of the pream∣ble to the Constitution—the words are,

We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tran∣quillity, provide for the common de∣fence, promote the general welfare, and secure the blessings of Liberty to our∣selves and our posterity, do ordain and establish this Constitution, for the Uni∣ted States of America.

From the language of this preamble, it has been contended, that Congress have a power, expressly granted, to pass any laws which in their opinion may tend to pro∣vide for the common defence, or promote the general welfare.

The same inference has been drawn from the 8th Section of the 1st article of the Constitution, which declares,

that Congress shall have power to lay and coHect taxes, duties, excises, and im∣posts to pay the debts and provide for the common defence and general wel∣fare of the United States.†

Arguments are sometimes brought for∣ward in discussion, the refutation of which requires more patience than skill—of this description is the argument now stated.

As to the Preamble. The special reply to this argument is, that the preamble to a statute or constitution, which is the supreme statute, is no part of it. This is not mentioned as a principle of common law, but as a principle of common sense; a preamble states the general objects of the law of the constitution, and the arti∣cles which follow prescribe the means by which, and by which only, the attainment of these objects is to be pursued; the preamble can neither enlarge nor restrain the body of the act; it is in fact, nothing more than a declaration of objects; the constitution or law, is a specification of means. The preamble to the Constitution therefore says, in substance,

We the people of the United States in order to promote the general welfare, do ordain this Constitution:

—that is,

we do ordain this Constitution, in order to promote the general welfare.

Lan∣guage cannot be more plain. The Con∣stitution is unequivocally announced as the instrument or mean by which the ge∣neral welfare is to be promoted.

As to the 8th Section of the 1st article. The special reply to the argument founded on this section is, that the plain, gram∣matical meaning of the sentence, even ta∣ken by itself, and without any reference

to the uniform tenor of the Constitution, forbids the inference before mentioned. The Constitution by the words of this Section, meant to give not a general pow∣er to provide for the general good of the union, but the special power of laying and collecting taxes and duties, for the pur∣pose of paying the debts and providing for the general welfare. According to this construction, a special power is given for a general purpose, in other words for the general good, which is in truth the pur∣pose for which all power is granted; but according to the construction contended for by the advocates of the Sedition Bill, the same sentence which gives a special power, also gives a general power, which renders the special delegation of power useless. Which of these two construc∣tions is the most rational, is a question that is not supposed to be in the smallest degree doubtful.

It seems clear then that a fair construc∣tion of the preamble, and of the 8th sec∣tion of that article, considered in them∣selves, does not warrant the doctrine maintained by the friends of the Sedition Bill, that Congress possesses a general power to provide for the welfare of the Union. This doctrine appears not only not warranted by the particular clauses

relied on, but absurd, when these clauses are taken into view with all the other clauses of the Constitution.

It has been already stated, that in each of the several states, the local and muni∣cipal regulations which were thought ex∣pedient had been adopted. With these the people were satisfied. When, there∣fore, a federal government was deemed necessary by the people, it would not be their intention or wish that the federal government should make laws on any sub∣ject, on which satisfactory laws were al∣ready made, or might be made, at the dis∣cretion of their representatives. A federal constitution could not be necessary for any purpose completely within the reach of state legislation: and, therefore, general powers could not be intended to be gi∣ven.

It is a sound principle, that all parts of a law or writing are to be taken together, and that such a construction ought to be adopted, if possible, as will allow every part some meaning and operation. Now, if the preamble, or the 8th sec. of the 1st article, confers on Congress a general power to do what they may think right; those parts of the constitution which dele∣gate special powers are unmeaning and without operation. On the other hand, if

the preamble be regarded in its true light; as a declaration of objects; and if the 8th Section of the 1st article be considered as only giving a special power for a general purpose, every other clause and sentence of the constitution, will have a meaning and effect. This latter construction, there∣fore, must be adopted.

Again, if Congress possesses a general power to promote the general welfare, if constitutionality and expediency be con∣vertible terms, what meaning is to be given to the 12th amendment, which de∣clares, that "powers not delegated to the United States, nor prohibited to the states, shall remain with the states respectively, or with the people." This language is so irrational and absurd, unless there are some powers which are not delegated, that it assords conclusive evidence, of an uni∣versal conviction, throughout the states, and in Congress, that this general power did not exist.

Further, if it was really meant that a general power should be given to Con∣gress, why were specific powers enume∣rated and granted? This enumeration is made with a degree of accuracy and pre∣cision, absolutely ridiculous, if a general power was meant to be given. Surely, if such had been the object, plain words,

which men of the plainest capacity might comprehend, and about which there could be no doubt, might have been, and would have been selected for the purpose. Sure∣ly, if such had been the object, men of common honesty, and common understand∣ing, after expressing in plain words what their object was, would not have employ∣ed themselves in so idle and useless a talk as the enumeration of special powers, but would have proceeded directly to mark out the different departments of go∣vernment, and to decide among these de∣partments the general powers meant to be bestowed.

Again, we have seen that the state go∣vernments possess general powers of legis∣lation. They may do every thing which tends to promote the welfare of the re∣spective states, unless expressly prohibited by the state or federal constitutions. Now, if Congress possesses general powers of legislation also, over the people of the United States, it is manifest that we have a government within a government, one of which must inevitably perish. Argu∣ments leading to a conclusion so monstrous must be erroneous.

This last observation may be complete∣ly illustrated by the law in question. The state governments have yet a right to pre∣scribe

a punishment for slander, which ef∣fects the reputation of individuals, whe∣ther this slander be by speech, writing, or printing. Before the federal government was formed they possessed this power, and must yet retain it, unless it has been sur∣rendered. No man, however, has yet said nor can it be said, that this power may not be legally and constitutionally exer∣cised by the states. Suppose then that the legislature of Pennsylvania should pass a law, prescribing a fine of fifty dollars only, without any imprisonment, for defaming any individual by means of the press. The officers of the general government are no∣thing more or less than individuals, and are bound by the general expression of a law as well as other people. By what law would a libeller of the President be tried? By the state law, by the congressional law, or by both? This question, difficult as it is, must be answered by those who advo∣cate the general power of the govern∣ment of the United States, without con∣troverting the general powers of the state legislatures. This, however, never hav∣ing yet been done, it is presumed will not be done.

Finally, no position can be true from which error or absurdity can be fairly de∣duced. If Congress possesses a general

power to promote the welfare of the union, there is no limitation to this power, but their own discretion. They may exer∣cise, like the state governments, every pow∣er except those which they are expressly forbidden to exercise. They are forbid∣den to grant titles of nobility, but they are not forbidden to pass laws by which a powerful aristocracy might be created. They might pass a law establishing in A∣merica the system of intails, by which the aristocracy of Britain, in spite of ostenta∣tion, luxury, and profusion, has been main∣tained for so many ages. But bold as the spirit of usurpation may be, this doctrine has never yet been explicitly avowed. It is believed to be too absurd, ever to be explicitly avowed; and yet it must be avowed, or at least admitted, by those who advocate the general power of the govern∣ment of the United States.

But others more artful, though not more formidable, contend, that it is a principle of obvious policy and common sense, that every government should have within it∣self the means of self preservation; that the power of punishing libels on the go∣vernment: and its officers is essential to the preservation of the government, and that therefore the general government possesses the power of punishing libels.

This argument is exhibited in its best form, but when examined, it cannot mis∣lead. The first branch of the proposition is neither admitted, nor denied to be true. It is contended to be immaterial and un∣connected with the subject in debate. The question is not, what powers ought a go∣vernment to possess, but what powers does the government now existing possess? The first question was determined by the Convention in 1788, and the Congress in 1789, the last is to be determined by the people now. The first question arises, when a constitution is about to be form∣ed, the latter, after it is formed. This part of the proposition, therefore, being immaterial, the reasoning founded on it cannot be conclusive. What, in truth, can be more repugnant to all the rules of logic, than the attempt to prove that a power has been granted, by arguments to shew that it ought to have been granted.

When the first term of any regular ar∣gument is proved to be untrue, or shewn to be immaterial, it is neither necessary nor proper to controvert the second, be∣cause, whether right or wrong, the con∣clusion if correctly deduced, must be un∣true or immaterial. I will not, therefore, deviate at this time, from the plan of strict discussion, which is announced in the

first paragraph, to prove, that the power of punishing libels, however important to the men of government, is of no conse∣quence to the government itself.

There remains only one more argu∣ment in favor of the sedition bill. This is noticed here, not because it is worthy of notice, but because it affords a complete specimen of the acute and logical reasoning, by which this odious measure has been vin∣dicated. It is conceded, says Mr. Otis, that government has a right to punish sedition or insurrection: it therefore has a right to punish every thing which may lead to sedition or insurrection.

The force of this argument may be de∣stroyed by exhibiting it in a regular form, and applying it to the subject on which it was urged.

1. Congress has a right to punish sedi∣tion and insurrection. This is conceded to be true.

2. Libels lead to sedition and insurrec∣tion. Now this is not true; nor does Mr. Otis attempt to prove it to be true. But, whether true or not, it is immaterial. The affirmation here ought to be, not li∣bels lead to, but "libels are acts of sedi∣tion, or insurrection" and then the con∣clusion would re-gularly follow.

3. That Congress has a right to punish libels. But neither Mr. Otis nor any other man will say, that any libel is an act of sedition or insurrection, or even a breach of the peace.

It deserves farther to be remarked here, that the power of punishing sedition is not expressly given to Congress: it is ad∣mitted, however, to belong to Congress, because it is necessary to carry the laws themselves passed, in conformity to the constitution, into effect. The power of punishing libels, not being given, can be claimed like the power of punishing sedi∣tion, only on the ground of necessity; This carries us back to the question for∣merly put, what power expressly given to Congress is ever aided by the power of pu∣nishing libels?

According to Mr. Otis if a government has a power to punish one offence, it has of course a right to punish all acts which may lead to that offence. In other words, if it has a power to punish one offence, it has of course a power to punish twenty offences, however different in name and na∣ture. Under this system of reasoning, if the general government was authorised to punish the murder of a man in the service of the United States, it would have of course a right to punish an insult, because

insults lead to quarrels, and quarrels lead to murder. Various other cases might be put which would expose the fallacy of reasoning like this; but it is already suf∣ficiently exposed. The argument which implies the power of punishing libels, from the power of punishing sedition, which is in itself only an implied power, must be condemned as soon as it is understood, even if it could be shewn that libels do lead to sedition. But they do not lead to it. This negative position, it is not ne∣cessary now to prove, the contrary being affirmed by Mr. OTIS ought to be proved by him.

It was before mentioned, that there was an universal conviction in the United States, that general powers of legislation did not belong to Congress. The 12th amendment was offered as conclusive evi∣dence of the truth of this assertion. If then the people of the United States re∣ally supposed that Congress possessed only the powers delegated, expressly, or by fair and necessary construction, and it turns out that Congress possesses a power never meant to be bestowed, in consequence of certain general expressions, the force of which was not accurately estimated, what man, who pretends either to integrity or

republicanism, will dare to say that he will carry such a power into effect?

The principle on which so much of the sedition bill as prescribes a punishment for libels, is declared to be unconstitution∣al, having been it is believed, clearly ex∣plained and established, and the principle on which the advocates of that measure rely, having been shewn to be unsound in itself and absurd in its consequences; the first part of my undertaking ought to be considered as performed. But many ob∣servations have been made concerning the common law of England, and the force which it has in the United States, some notice ought to be taken of them here.

It has been alledged by some, that the common law of England is in force in the United States, and that libels are an of∣tence at common law, and were punish∣able even before the Sedition Bill. Judge Peters it is said committed Mr. Bache, the late Editor of the Aurora, on this ground.

Before this doctrine is examined, there is one remark which deserves attention. A legislative act has been performed: it is ur∣ged, that this act is not warranted by the Constitution of the United States. The friends of the measure say that it is con∣stitutional, and to prove their assertion

they refer you not to the constitution it∣self, by which alone power, general or spe∣cial, can be claimed, but to the common law of England!!

To prove that Congress has a right to pass a law to punish libels, they say that there already exists a law in the country, by which libels may be punished! The system of moderation, which was adopted at the commencement of these papers, and from which there has been as yet no de∣viation, prevents me from speaking of ar∣guments like these in the terms which they deserve.

If the common law of England be in force in the United States, it must be in force because it is declared to be so by the constitution, or by some law of the Uni∣ted States—no municipal system of law can, be of any authority here, unless ex∣pressly adopted in one of these two ways. The constitution is silent on the subject— this silence was wise; because, a system of law adopted by the constitution could not be changed by any act of ordinary le∣gislation; nor is it adopted by any law of the United States; and if it had been so adopted, the question would be precisely the same that is now discussed. For if Congress have no right to pass a law pu∣nishing libels, it follows that they have

no right to adopt a system of laws, one of which, prescribes a punishment for libels.

I repeat that no law can be in force here, unless adopted in one of the two ways just mentioned. Law is a rule of action prescribed by the supreme power of a state. The supreme power of the United States has not declared the com∣mon law of England to be in force here: therefore, it is not in force here. It will be observed, that I speak not here of the law of nations.

If there be a passage through which the municipal regulations of one country, can get into another country, and acquire anthority in it, without the express con∣sent of the people, those who have an∣nounced the migration of the common law of England into the United States will inform the public, whether it was ac∣companied in its voyage by the civil law or not. If this singular invasion of our country is not firmly repelled, we may expect depredations on our state institu∣tions from all the codes of the eastern world. The compendious and energetic system by which the Sultaun keeps his slaves in peace, may at this moment be on its way to America, and on its arrival here will be precisely of as much force as the common law of England.

The opinion that the common law of England is in force in the United States has been 〈…〉〈…〉 provided it be 〈…〉〈…〉 action prescribe 〈…〉〈…〉

The opinion 〈◊〉〈◊〉 not 〈…〉〈…〉 in itself, but directly 〈…〉〈…〉 the plain meaning and words of the Constitution, which expressly declares, Art. 6. that,

this Constitution and the Laws of the United States, which shall be made in pursuance thereof, and all treaties made, or which shall be made under the au∣thority of the United States, shall be the Supreme Law of the land.

The common law is totally unnoticed.

Again, if the common law of England be in force in the United States, and is to be the guide by which the federal judges shall conduct themselves, what becomes of the various changes in the common law which have been effected at different times by the several state legislatures? are the improvements on the common law, which have been made in the state of Virginia, for the accommodation and convenience of the people, to be entirely done away without their knowledge or consent? Is the right of primogeniture revived? Or, is it only the criminal law that is in force here? These are two im∣portant

points, among a thousand others, on which information is required from the advocates of the common law.

The Congress of the United States, so far from adopting the common law of England, which, it must be again observ∣ed, they had not a general power to adopt, have expressly enacted that the laws of the several states, except where the constitu∣tion, treaties, or statutes of the United States, shall otherwise require or provide, shall be regarded as rules of decision in trials of common law in the courts of the United States in cases where they apply. See Act passed 24th Sept. 1789.

On this subject, there is one argument, which in itself is absolutely conclusive. The Congress of the United States have a power to pass a law concerning libels or not. If they have this power, and exer∣cise it, by prescribing a punishment for li∣bels, the courts of the United States must be governed by the law of the United States, and cannot exercise any common law jurisdiction on the subject. But if Congress does not possess the right to pass a law concerning libels, then the argu∣ments which shew that the courts of the United States have a jurisdiction over li∣bels, also shew that their jurisdiction ex∣tends to subjects, on which Congress can∣not

legislate. Thus the power of the ju∣diciary will embrace objects beyond the reach of the legislature, and of course the laws by which the judiciary think proper to be governed, must remain forever un∣changed. Surely it will be at once admit∣ted, that every argument whose object is to prove, that the judiciary power is not co-extensive with the legislative power, but more extensive, must be unsound.

This admission will be made without hesitation, by every one who understands either the general principles of govern∣ment, or the plain meaning of our own constitution, which says, Art. 3, Sect. 2. "The judicial power of the United States shall extend to all cases in law and equity arising under this constitution, the laws of the United States, and treaties made, or which shall be made under their autho∣rity." These are the great subjects on which the judicial power of the United States is to be exercised according to the express direction of the Constitution. The other cases to which their authority is declared to extend, are totally uncon∣nected with common law jurisdiction.

But, it is said, the same clause declares, that the judicial power of the United States shall extend to

controversies to which the United States shall be a par∣ty.

From this some have inferred, that the federal judiciary have jurisdiction over every offence against the United States, because the United States consti∣tute the party injured.

It has been already shewn, that the com∣mon law is of no force in the United States; now if the courts claim a juris∣diction over every 〈◊〉〈◊〉, in which they may think that the United States are a party, by what law will they define and punish the offence? If the laws of the United States are silent, there is no law by which the offenders can be tried. But if the laws of the United States are not Blent, if Congress passes a law, by which an offence against the United States is defined and punished, by which the Uni∣ted States are in any case constituted a party, then the question recurs, as in the present instance, whether Congress had a constitutional right to pass such a law or not. The question therefore about the extent of the legislative power of Con∣gress, is the only question, that ought to be discussed.

This question, it is presumed, has been now fairly and fully discussed, and the re∣sult is that so much of the Sedition Bill∣as relates to Libels is not warranted by the Constitution of the United States.

Notes

• See Sewall's Speech on the Sedition Bill.
• †

  See Otis and Bayard's Speeches on the Alien Bill.