Delivered to the GRAND JURY of the UNITED STATES, for the District of Pennsylvania, in the Circuit court of the United States for said dis∣trict, held in the city of Philadelphia, April 11th, 1799, by JAMES IREDELL, one of the Associate Justices of the Supreme Court of the UNITED STATES.
GENTLEMEN OF THE GRAND JURY,
THE important duties you are now called upon to fulfil, naturally in∣crease with the increasing difficulties of our country. But however great those difficulties may be, I am persuaded you will meet them with a firm and intrepid step, resolved, so far as you are concerned, that no dishonour or calamity (if any should await us) shall be ascribable to a weak or im∣partial administration of justice.
If ever any people had reason to be thankful for a long and happy enjoy∣ment of peace, liberty and safety, the people of these states surely have. While every other country almost has been convulsed with foreign or domestic war, and some of the finest countries on the globe have been the scene of every species of vice and disorder, where no life was safe, no property was secure, no innocence had protection, and nothing but the basest crimes gave any chance for momentary preservation; no citizen of the United States could truly say that in his own country any oppression had been permitted with impunity, or that he had any grievance to complain of, but that he was required to obey those laws which his own representatives had made, and under a government which the people themselves had chosen. But in the midst of this envied situation, we have heard the government as grossly abused as if it had been guilty of the vilest tyranny, as if common sense or common virtue had fled from our country, and those pure principles of re∣publicanism, which have so strongly characterized its councils, could only be found in the happy soil of France, where the sacred fire is preserved by five Directors on ordinary occasions, and three on extraordinary ones—who, with the aid of a republican army, secure its purity from violation by the Legislative representatives of the people.—The external conduct of that government is upon a par with its internal.—Liberty, like the religion of Mahomet, is propagated by the sword. Nations are not only compelled to be free, but to be free on the French model, and placed under French guardianship. French arsenals are the repository of their arms, French treasuries of their money, the city of Paris of their curiosities; and they are honoured with the constant support of French enterprizes in any other part of the world. Such is the progress of a power which began by de∣clarations that it abhorred all conquests for itself, and sought no other fe∣licity but to emancipate the world from tyrants, and leave each nation free to chase a government of its own. Those who take no warning by such an awful example, may have deeply to lament the consequences of neglecting it.
The situation in which we now stand with that country is peculiarly c•itical. Conscious of giving no real cause of offence, but irritated with injuries, and full of resentment for insults; desirous of peace, if it can be preserved with honour and safety, but disdaining a security equally fallaci∣ous and ignominious at the expence of either; still holding the rejected Page 2 Olive Branch in one hand, but a sword in the other—we now remain in a sort of middle path between peace and war, where one false step may lead to the most ruinous consequences, and nothing can be safely relied on but unceasing vigilance, and persevering firmness in what we think right, leaving the event to Heaven, which seldom suffers the destruction of nations, without some capital fault of their own.
Among other measures of defence and precaution which the exigency of the crisis, and the magnitude of the danger, suggested to those to whom the people have entrusted all authority in such cases, were certain acts of the legislature of the United States, not only highly important in themselves but deserving of the most particular attention, on account of the great discontent which has been excited against them, and especially as some of the state legislatures have publicly pronounced them to be in violation of the constitution of the United States. I deem it my duty, therefore, on this occasion to state to you the nature of those laws which have been grossly misrepresented, and to deliver my deliberate opinion as a Judge, in regard to the objections arising from the constitution.
The acts to which I refer you will readily suppose to be what are com∣monly called the Alien and Sedition acts. I shall speak of each separate∣ly, so far as no common circumstances belonging to them may make a joint discussion proper.
1. The Alien Laws, there being two.
To these laws, in particular, it has been objected.
1. That an Alien ought not to be removed on suspicion, but on proof of some crime.
2. That an Alien coming into the country, on the faith of an act sti∣pulating that in a certain time, and on certain conditions, he may become a citizen, to remove him in an arbitrary manner before that time, would be a breach of public faith.
3. That it is inconsistent with the following clause in the constitution, (Art. I. sect. 9.)
"The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year one thousand eight hundred and eight? but a tax or duty may be imposed on such importation, not exceeding ten dol∣lars for each person." With regard to the first objection, viz. "That an alien ought not to be removed on suspicion, but on proof of some crime." It is believed that it never was suggested in any other country, that aliens had a right to go into a foreign country, and stay at their will and plea∣sure without any leave from the government. The law of nations, un∣doubtely is, that when an alien goes into a foreign country, he goes under either an express or implied safe conduct. In most countries in Europe, I believe, an express passport is necessary for strangers. Where greater liberality is observed, yet it is always understood that the government may order away any alien whose stay is deemed incompatible with the safety of the country. Nothing is more common than to order away, on the eve of a war, all aliens or subjects of the nation with whom the war is to take place. Why is that done, but that it is deemed unsafe to re∣tain in the country, men whole prepossessions are naturally so strong in favour of the enemy, that it may be apprehended they will either join in arms, or do mischief by intrigue, in his favour? How many such instances Page 3 took place it the beginning of the war with Great Britain, no body then objecting to the authority of the measure, and the expediency of it being alone in contemplation! In cases like this, it is ridiculous to talk of a crime, because perhaps the only crime, that a man can then be charged with, is his being born in another country, and having a strong attachment to it. He is not punished for a crime that he has committed, but depriv∣ed of the power of committing one hereafter to which even a sense of pa∣triotism may tempt a warm and misguided mind. Nobody who has ever heard of Major And•e, that possesses any liberality of mind, but must be∣lieve that he did what he thought right at the time, though in ray opini∣on it was a conduct in no manner justifiable. Yet how fatal might his success have proved! If men, therefore, of good characters, and held in uni∣versal estimation for integrity, can be tempted when a great object is in view, to violate the strict duties of morality, what may be expected from others who have neither character nor virtue, but stand ready to yield to temptations of any kind? The opportunities during a war of making use of men of such a description are so numerous and so dangerous, that no prudent nation would ever trust to the possible good behaviour of many of them. Indeed most of those who oppose this law seem to admit that as to alien enemies the interposition may be proper but they contend it is improper before a war actually takes place to exercise such an authority, and that as to neutral aliens it is totally inadmissible. To be sure the two latter instances are not quite to plain, the objection I am considering be∣longs equally to them all; for if an alien cannot be removed but on con∣viction of a crime, then an alien enemy ought not to be removed but on conviction of treason, or some other crime shewing the necessity of it. If, however, we are not blind to what is evident to all the rest of the world, equal danger may be apprehended from the citizens of a hostile power, be∣fore war is actually declared as after, perhaps more, because less suspicion is entertained; and some citizens of a neutral power are equally dangerous with the others. What has given France possession of the Netherlands, Geneva, Switzerland and almost all Italy, and enables her to domineer over so many other countries, lately powerful and completely independent, but that her arts have preceded her arms, the smooth words of amity, peace, an universal love, by seducing weak minds, have led to an unbound∣ed confidence, which has ended in their destruction, and they have now to deplore the infatuation which led them to court a fraternal embrace from a bosom in which a dagger was concealed.
In how many countries, alien friends as to us, dependent upon them, are there warm partisans not nominally French citizens but compleatly illumina∣ted with French principles, electrified with French enthusiasm, and ready for any sort of revolutionary mischief! Are we to be guarded against the former and exposed to the latter? No, gentlemen, If with such examples before their eyes, congress had either confined their precaution to a war in form, or to citi∣zens of France only, losing all sense of danger to their country in a regard to no∣minal distinctions, they would probably justly have deserved the charge of neglecting their country's safety in one of its most essential points, and hereafter the very men who are now clamorous against them for exercising a judicious foresight, might too late have had reason to charge them, (as many former infatuated governments in Europe may now fairly be charged by their miserable deluded fellow citizens) as the authors of their country's Page 4 ruin. But those who object to this law seem to pay little regard to con∣siderations of this kind, and to entertain no other fear but that the Presi∣dent may exercise this authority for the mere purpose of abusing it. There is no end to arguments or suspicions of this kind. If this power is proper it must be exercised by somebody. If from the nature of it is could be exercised by so numerous a body as Congress, yet as Congress are not constantly sitting, it ought not to be exercised by them alone. If they are not to exercise it, who so sit as the President? What interest can he have in abusing such an authority? But on this occasion, as on others of the like kind, gentlemen think it sufficient to shew, not that a power is likely to be abused (which is all that can be prudently guarded against), but that it possibly may, and therefore to guard against the possibility of an abuse of power, the power is not at all to be exercised.
The argument would be just as good against his acknowledged powers, as any others, that the legislature may occasionally confide to him. Sup∣pose he should refuse to nominate to any office? or to command the army or navy? or should assign frivolous reasons against every law, so that no law could be passed but with the concurrence of two thirds of both houses! Suppose Congress should raise an army without necessity, lay taxes where there was no occasion for money, declare war from mere caprice, lay wanton and oppressive restraints on commerce, or in a time of imminent danger trifle with the safety of their country, to gain a momentary breath of populari∣ty at the hazard of their country's ruin! All this they may do. Does a∣ny man of candour, who does not believe every thing they do wrong, ap∣prehend that any of these things will be done? They have the power to do them because the authority to pass very important and necessary acts of legislation on all those subjects, and in regard to which discretion must be lest, unavoidably implies that as it may be exercised in a right manner, it may, if no principle prevent it, be exercised in a wrong one. If the state legislatures should combine to choose no more senators, they may abolish the constitution without the danger of committing reason. If to prevent a House of Representatives being in existence, they should keep no law in being for a similar branch of their own, deeming the abolition of the government of the United States cheaply purchased by such a sacrifice, they may do this. They have the same power over the election of a President and vice President. What is the security against abuse in any of these cases? None, but the precautions taken to procure a proper choice, which, if well exercised, will at least secure the public against a wanton abuse of power, though nothing can secure them absolutely against the common frailty of men, or the possibility of bad men, if accidentally inverted with power, carrying it into a dangerous extreme. We must trust some persons, and as well as we can submit to any collateral evil which may arise from a provision for a great and indispensable good that can only be obtained through the medium of human imperfection. At the same time it may be observed, that in the case of the President or any executive or judicial officer wantonly abusing his trust, he is liable to impeachment, and there are frequent opportunities of changing the members of the legislature, if their conduct is not acceptable to their constituents.
The clause in the constitution, declaring that the trial of all crimes, ex∣cept by impeachment, shall be by jury, can never in reason be extended to amount to a permission of perpetual residence of all sorts of foreigners, Page 5 unless convicted of some crime, but is evidently calculated for the security of any citizen, a party to the instrument or even of a foreigner if resident in the country, who when charged with the commission of a crime against the municipal laws for which he if liable to punishment, can be tried for it in no other manner.
The second objection it, "That an alien coming into the country, on the faith of an act stipulating that in a certain time and on certain con∣ditions he nay become a citizen, to remove him in an arbitrary manner before that time would be a breach of public faith."
With regard to this, it may be observed, that undoubtedly the faith of government ought under all circumstances, and in all possible situations, to be preserved sacred. If therefore, in virtue of this law, all aliens from any part of the world had a right to come here, stay the probationary time, and become citizens, the act in question could not be justified, unless it could be shewn that a real (not a pretended) over-ruling public necessity to which all inchoate acts of legislation must forever be subject, occasion∣ed a partial repeal of it. But there are certain conditions, without which no alien can ever be admitted, if he stay ever so long; and one is, that during a limited time (two years in the case of aliens then resident; five in the case of aliens arriving after) he has behaved at a man of a good moral character, attached to the principles of the constitution of the United States, and well disposed to the good order and happiness of the same. If his conduct be different, he is no object of the naturalization law at all, and consequently no implied compact was made with him. If his conduct be conformable to that description, he is no object of the alien law to which the objection is applied, because he is not a person whom the President is empowered to remove, for such a person could not be deemed dangerous to the peace and safety of the United States, nor could there be reasonable grounds to suspect such a man of being concerned in any treasonable or secret machinations against the government, in which cases alone the removal of any alien friend is authorised. Besides any alien coming to this country must, or ought to know, that this being an Independent nation, it has all the rights concerning the removal of aliens which belong by the law of nations to any other; that while he remains in the country in the character of an alien, he can claim no other privi∣lege than such as an alien is entitled to; and consequently, whatever risque he may incur in that capacity, is incurred voluntarily, with the hope that in due time by his unexceptionable conduct, he may become a citizen of the United States. At there is no end to the inge∣nuity of man, it has bees suggested that such a person, if not a citizen, is a denizen, and therefore cannot be removed as an alien. A denizen in those laws from which we derive our own, means a person who has receiv∣ed letters of denization from the king, and under the royal government such a power might undoubtedly have been exercised. This power of de∣nization is a kind of partial naturalization, giving some, but not all the privileges of a natural born subject. He may take lands by purchase or devise, but cannot inherit.
The issue of a denizen born before denization cannot inherit; but if born after may, the ancestor having been able to communicate to him in∣heritable blood. But this power of the crown was thought so formidable that it is expressly provided by act of parliament, that no denizen can be Page 6 a member of the Privy Council, or of either House of Parliament, or have any office of trust civil or military, or be capable of any grant of lands from the crown. Upon the dissolution of the royal government, the whole authority of naturalization, either whole or partial, belonged to the several states, and this power the people of the states have since devolved on the Congress of the United States. Denization therefore (in the sense here used) is a term unknown in our law, since the right was not derived from any general legislative authority, but from a special prerogative of the crown, to which parliamentary restrictions afterwards were applied. So much so, that if an act of Parliament had passed, giving certain rights to an alien with restriction; exactly similar to those of a denizen. I imagine he would not have been called a denizen; because the royal authority was not the source from which his rights were derived. As to acts of natu∣ralization themselves, they are liable in England, by an express law to certain limitations, one of which is, that the person naturalized is incapa∣ble of being a member of the privy council, or either house of parliament, or of holding offices or grants from the crown. Yet I never heard, nor do I believe that such a person was ever called a denizen; for which, as there is no foundation in precedent, or in the constitution of the United States, I presume it is a distinction without solidity. Fixed principles of law cannot be grounded on the airy imagination of man.
The third objection is, "That it is inconsistent with the following clause in the constitution, viz.
"The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the con∣gress prior to the year one thousand eight hundred and eight, but a tax or duty may be imposed on said importation not exceeding ten dollars for etch person."
I am not satisfied, as to this objection, that it is sufficient to over-rule it, to say the words do not express the real meaning, either of those who formed the constitution, or those who established it, although I do verily believe in my own mind, that the article was intended only for slaves, and the clause was expressed in its present manner to accommodate different gentlemen, some of whom could not bare the name slaves, and others had objections to it. But though this probably is the real truth, yet, if in attempting to compromise, they have unguardedly used expressions that go beyond their meaning, and there is nothing but private history to elu∣cidate it, I shall deem it absolutely necessary to confine myself to the written instrument. Other reasons may make the point doubtful, but at present I am inclined to think it must be admitted; that congress prior to the year 1808, cannot prohibit the migration of free persons to a particu∣lar state, existing at the time of the constitution, which such state shall, by law, agree to receive. The states then existing, therefore, till 1808 may (we will say) admit the migration of persons to their own states, without any prohibitory act of congress.—This they may do upon prin∣ciples of general policy, and in consistence with all their other duties. The states are expressly prohibited from entering into an engagement or contract with another state, or engaging in war, unless actually invaded, or in such imminent danger, as will not admit of delay. The avenues to foreign connection being thus carefully closed, it will scarcely be con∣tended, that in case of war, a state could, either directly or indirectly, Page 7 permit the migration of enemies. If they did, the United States could certainly without any impeachment of the general right of allowing mi∣gration, in virtue of their authority to repel invasion, prevent the arrival of such. And as such invasion may be attempted without a formal war, and Congress have an express right to protect against invasion, as well as to repel it, I presume Congress would also have authority to prevent the arrival of any enemies, coming in the disguise of friends, to invade their country. But, admitting the right to permit migration in its full force, the persons migrating on their authority must be subject to the laws of the country, which consist not only of those of the particular state, but of the United States. While aliens, therefore, they must remain in the cha∣racter of aliens; and, of course, upon the principles I have mentioned, be subject to a power of removal, in certain cases recognized in the law of nations; nor can they cease to be in this situation, until they become citizens of the United States; in which case they must obey the laws of the union as well as of the particular state they reside in. But, gentle∣men argue as if because the states had a right to permit migration the migrants were under a sort of special protection of the state admitting it, left the United States, merely to disappoint the purpose of migration, should exercise an arbitrary authority of removal without any cause at all. It would be just as consistent to say, that if such migrant was charged with a murder on the high seas, or in any fort or arsenal of the United States, he should not be tried for it in a court of the United States, left the court and juries, out of ill will to the state; should combine to procure his conviction and punishment, in all events, to defeat the state law. The two powers may undoubtedly be made compatible, if the legislatures of the particular states, and the government of the United States do their duty; without which presumption, not an authority given by the constitution can exist. They surely are more compatible than the collateral powers of taxation, which, under each government, go to an unlimited extent, but the very nature of which forbids any other limitation than a sense of mo∣ral right and justice. If we scepticize in the manner of some gentlemen on this subject, suppose each legislature should tax to the amount of 19• in the pound; each has the power; but is such an exercise of it more apprehended than we apprehend an earthquake to swallow us all up at this very moment? All systems of government, suppose they are to be admi∣nistered by men of common sense and common honesty. In our Country, as all ultimately depends on the voice of the people, they have it in their power, and it is to be presumed they generally will chuse men of this des∣cription: but if they will not, the case to be sure is without remedy. If they chuse fools, they will have foolish laws. If they chuse knaves they will have knavish ones. But this can never be the case until they are generally fools or knaves themselves, which, thank God, is not likely ever to become the character of the American people.
Having said what I thought material as to the alien laws, upon the particular objections to them, I now proceed to discuss the objections which have been made to what is called the sedition act, one of which equally applies to the alien laws as well as to this. But I think it proper previously to read the law itself.
The objections (so far as I have heard them) to this act are as follow:
Page 8 1. (And this applies to the alien law also) That there is no specific power given to pass an act of this description, though in the particular specific powers given there is authority conveyed as to other offences spe∣cially named.
2. That this law is not warranted by a clause in the constitution, con∣veying legislative authority, which after designating particular objects, adds:
"And to make all laws which shall be necessary and proper for carry∣ing into execution the foregoing powers, and all other power vested by this constitution in the government of the United States, or in any de∣partment or officer thereof."—Because it is not necessary and proper to pass any such law in order to carry into execution any of those powers.
3. That admitting the former positions are not maintainable, yet the exercise of this authority is compatible with the following amendment to the constitution, viz.
"Congress shall make no law respe•ting an establishment of religion, or prohibiting the full exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."
With regard to the first objection, I readily acknowledge, that soon after the constitution was proposed, and when I had taken a much more superficial view of it than I was sensible of at the time, I did think Congress could not provide for the punishment of any crimes but such as are specifically designated in the particular powers enumerated. I deli∣vered that opinion in the convention at North-Carolina, in the year 1788, with a perfect conviction, at the time, that it was well founded. But I have since been convinced it was an erroneous opinion, and my reasons for changing it I shall state to you as clearly is I am able.
It is in vain to make any law unless some sanction be annexed to it, to prevent or punish its violation. A law without it might be equivalent to a good moral sermon, but bad members of society would be as little in∣fluenced by one as the other. It is, therefore, necessary and proper, for instance, under the constitution of the United States, to secure the effect of all laws which impose a duty on some particular persons, by providing some penalty or punishment if they disobey. The authority to provide such is conveyed by the following general words in the constitution, at the end of the objects of legislation particularly specified: "To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof." A penalty alone would not in every case be sufficient, for the offender might be rich and disregard it, or poor, though a wilful offender, and unable to pay it. A fine, therefore, will not always answer the purpose, but imprisonment must be in many cases added, though a wise and humane legislature will always dispense with this, where the importance of the case does not require it. But if it does, from the very nature of the pu∣nishment, it becomes a criminal, and not a civil offence; the grand jury must indict, before the offender can be convicted.
This general position may be illustrated by a variety of instances under the penal code of the United States, which have, I believe, never been objected to as unconstitutional, though there have never been wanting Page 9 penetrating and discerning members who were ready enough to take ex∣ceptions where they found any plausible ground for them. I shall enume∣rate a few.
In the act entitled, an act for the punishment of certain crimes against the United States (•ol.1 Swift's edition, p. 100) among other crimes specified, are the following.
Murder or larceny in a fort belonging to the United States. Misprisi∣on of felony committed in any place und• the sole and exclusive jurisdic∣tion of the United States. Stealing or falsifying a record of any court of the United States. Perjury in any court of the United States. Bribing a judge of the United States. Obstructing the execution of any kind of process issuing from a court of the United States.
In the collection act, 1 vol. p. 237, it is provided, that in all cases where an oath is by that act required from a master or other person having command of a ship or vessel, or from an owner o• assignee of goods, wares, and merchandize, his or her factor or agent, if the person so swearing shall swear falsely, such person shall, on indictment and conviction there∣of, be punished by fine or imprisonment, or both, in the discretion of the court, before whom such conviction shall be had, so as the fine shall not exceed one thousand dollars, and the term of imprisonment shall not ex∣ceed twelve months.
In the act laying duties on distilled spirits, (vol. i. p. 324) in the 39th section it is provided as follows:
"If any supervisor, or other officer of inspection, in any criminal pro∣secution against them, shall be convicted of oppression or extortion in the execution of his office, he shall be fined not exceeding five hundred dollars, or i••risoned not exceeding six months, or both, at the discretion of the court; and shall also forfeit his office."
These instances deserve great consideration; because I believe no can∣did man will deny that these provisions were constitutional exercises of authority, within the scope of the general authority conveyed, though not specially named as objects which it should be competent for Congress to provide for. And they certainly derive weight from the consideration, that the principle of them (which I believe was the case) was never ob∣jected to, thou•• the expediency of some of the provisions may have been.
In further illustration of this subject, I shall state a case which was determined in this court—The United States against Worrell, published in M.. Dallas's reports, p. 384. Where there was an indictment against the defendant for attempting to bribe Mr. Coxe, the Commissioner of the Revenue. The defendant was found guilty, and afterwards a motion was made in arresting judgment, assigning, together with some technical ob∣jections, this general one, that the Court had no cognizance of the offence, because no act of Congress had passed creating the offence and prescrib∣ing the punishment, but it was solely on the foot of the common law. The very able and ingenious gentleman who is the reporter of that case, and was the defendant's Council in it, in the course of his argument, makes the following observations, part of which are remarkably striking and pertinent to my present subject:
I conclude, therefore, that the first objection is not maintainable.
With regard to the second objection, which is, that this law is not war∣ranted by that clause in the constitution authorising Congress to pass all laws which shall be necessary and proper, for carrying into execution, the powers specially enumerated, and all other powers vested, by the constitu∣tion, in the government of the United States, or in any department or officer thereof: because, it is not necessary and proper to pass any such law, in order to carry into execution any of those powers—it is to be ob∣served, that, from the very nature of the power, it is, and must be, discre∣tionary.—What is necessary and proper, in regard to any particular sub∣ject, cannot, before an occasion arises, be logically defined; but must de∣pend upon various extensive views of a case, which no human foresight can reach. What is necessary and proper in a time of confusion and ge∣neral disorder, would not, perhaps, be necessary and proper in a time of tranquillity and order. These are consderations of policy, not questions of law, and upon which the legislature is bound to decide according to its real opinion of the necessity and propriety of any act particularly in con∣templation. It is, however, alledged, that the necessity and propriety of passing collateral laws for the support of others, is confined to cases where the powers are delegated, and does not extend to cases which have a reference to general danger only. The words are general,
I have only to add, under this head, that in order to obviate any proba∣ble ill use of this large and discretionary power, the constitution and cer∣tain amendments to it, have prohibited in express words the exercise of some particular authorities which otherwise might be supposed to be com∣prehended within them. Of this nature is th• pro•ibitory clause relating to the present obje••t which I am to consider under the next objection.
4. That objection is, •at the act is in violation of this amendment of the constitution. (•d vol. Swift's Edition, p, 455. Article 3d.)
The question then is,
Whether this law has abridged the freedom of the press?
Here is a remarkable difference in expressions as to the different ob∣jects in the same clause. They are to make no law respecting an esta∣blishment of religion, or prohibiting the free exercise thereof: or abridg∣ing the freedom of speech, or of the press. When as to one object they entirely prohibit any act whatever, and as to another object only limit the exercise of the power, they must in reason be supposed to mean diffe∣rent things. I presume, therefore, that Congress may make a law re∣specting the press, provided the law be such as not to abridge its freedom. What might be deemed the freedom of the press, if it had been a new subject, and never before in discussion, might indeed admit of some con∣troversy.—But so far as precedent habit, laws and practices are concerned, there can scarcely be a more definite meaning than that which all these have affixed to the term in question.
We derive our principles of law originally from England. There the press, I believe, is as free as in any country of the world, and so it has been for near a century. The definition of it is, in my opinion, no where more happily or justly expressed than by the great Author of the Com∣mentaries on the Laws of England, which book deserves more particular regard on this occasion, because for near 30 years it has been the ma•al of almost every student of law in the United States, and its uncommon excellence has also introduced it into the libraries, and often to the favour∣ite reading of private gentlemen; so that his views of the subject could scarcely be unknown to those who framed the Amendments to the consti∣tution, and if they were not, unless his explanation had been satisfactory, I presume the Amendment would have been more particularly worded, to guard against any possible mistake. His explanation is as follows:
It is believed, that iv every state in the union the common law princi∣ples concerning libels apply; and in some of the states words similar to the words of the amendment are used in the constitution itself, or a contem∣porary bill of rights of equal authority, without ever being supposed to exclude any law being passed on the subject. So that there is the strong∣est proof that can be of a universal concurrence in America on this point that the freedom of the press does not require that libellers shall be pro∣tected from punishment.
But in some respects the act of congress is much more restrictive than the principles of the common law, or than perhaps the principles of any state in the union. For under the law of the United States the truth of the matter may be given in evidence, which at common law in criminal prosecutions was held not to be admissible; and the punishment of fine and imprisonment, which at common law was discretionary, is limited in point of severity, though not of ••nity. It is to be observed too, that by the express words of the act both malice and falshood must combine in the publication, with the seditions intent particularly described. So that if the writing be false, yet not malicious, or malicious and not false, no conviction can take place. This therefore fully provides for any pub∣lication arising from inadvertency, mistake, false confidence, or any thing Page 14 short of a wilful and atrocious falshood. And none surely will contend that the publication of such a falshood is among the indefeasible rights of men, for that would be to make the freedom of liars greater than that of men of truth and integrity.
I have now said all I thought material on these important subjects. There is another upon which it is painful to speak, but the notoriety as well as the official certainty of the fact, and the importance of the dan∣ger make it indispensable. Such incessant calumnies have been poured against the government for supposed breaches of the constitution, that an insurrection has lately began for a cause where no breach of the constitu∣tion is or can be pretended. The grievance is the land tax act, an act which the public exigencies rendered unavoidable, and is framed with par∣ticular anxiety to avoid its falling oppressively on the poor, and in effect the greatest part of it must fall on rich people only. Yet arms have been taken to oppose its execution: officers have been insul•ed: the authority of the law resisted: and the government of the United States treated with the utmost defiance and contempt. Not being thoroughly informed of all particulars, I cannot now say within what class of offences these crimes are comprehended. But as some of the offenders are committed for treason, and many certainly have been guilty of combinations to resist the law of the United States, I think it proper to point your attention particularly to those subjects. The provisions in regard to the former, so far as they may at present be deemed material or instructive, are as follow:
(Here the passages referred to were read.)
The only species of treason likely to come before you is that of levy∣ing war against the United States. There have been various opinions, and different determinations on the import of those words. But I think I am warranted in saying, that if in the case of the insurgents who may come under your consideration the intention was to prevent by so force of arms the execution of any a••, of the Congress of the United States al∣together (as for instance the land tax act, the object of their opposition) any forcible opposition calculated to carry that intention into effect was a levying of war against the United States, and of course an act of treason. But if the intention was, merely to defeat its operation in a particular in∣stance, or through the agency of a particular officer, from some private or personal motive, though a higher offence may have been committed, it did not amount to the crime of treason. The particular motive must however be the sole ingredient in the case, for if combined with a general view to obstruct the execution of the act, the offence must be deemed treason.
With regard to the number of witnesses in treason, I am of opinion that two are necessary on the indictment as well as upon the trial in court.
The provision in the constitution, that the two witness must be to the same overt-act, (or actual deed constituting the treasonable offence) was in consequence of a const••• which had prevailed in England, that though two witnesses were required to prove an act of treason, yet if one witness proved one act, and another witness another act of the same species of treason, (as for instance that of levying war) it was sufficient; a decision which has always appeared to me contrary to the true intention of the law which made two witnesses necessary—this provision being, as I con∣ceived, intended to guard against fictitious charges of treason, which an un∣principled Page 15 government might be •ed to support and encourage, even at the expence of perjury, a thing much more difficult to be effected by two witnesses than one.
An act of Congress which I have already read to you (that commonly called the sedition act) has specially provided in the manner you have heard, against combinations to defeat the execution of the laws. The combinations punishable under this act must be distinguished from such as in themselves amount to treason, which is unalterably fixed by the con∣stitution itself. Any combinations, therefore, which be•e the passing of this act, would have amounted to treason, still constitute the same crime. To give the act in question a different construction, would do away alto∣gether the crime of treason as committed by levying war, because no war can be levied without a combination for some of the purposes stated in the act, which must necessarily constitute a part though not the whole of the offence.
Long, gentlemen, as I have detained you, for which the great importance of the occasion, I trust, is a just apology, it will be useful to recollect, that ever since the first formation of the present government, every act which any extraordinary difficulty has occasioned, has been uniformly opposed before its adoption, and every art practised to make the people discontent∣ed after it: without any allowance for the necessity which dictated them some seem to have taken it for granted that credit could be obtained without justice, money without taxes, and the honour and safety of the United States only preserved by a disgraceful foreign dependence. But, notwithstanding all the efforts made to ••llify and undermine the govern∣ment, it has uniformily rose in the esteem and confidence of the people. Time has disproved arrogant predictions; a true knowledge of the princi∣ples and conduct of the government has rectified many gross misrepresen∣tations; credit has risen from its ashes; the country has been sound full of resources, which have been drawn without oppression, and faithfully ap∣plied to the purposes to which they were appropriated; justice is imparti∣ally administered; and the only crime which is fairly imputable is, that the minority have not been suffered to govern the majority, to which they had as little pretension upon the ground of superiority of talents, patriotism, or general probity, as upon the principles of republicanism, the perpetual theme of their declamation. If you suffer this government to be destroy∣ed, what chance have you for any other? A scene of the most dreadful confusion must ensue. Anarchy will ride triumphant, and all lovers of or∣der, decency, truth and justice be trampled under foot. May that God whose peculiar providence seems often to have interposed to save these United States from destruction, preserve us from this worst of all evils! And may the inhabitants of this happy country deserve his care and pro∣tection by a conduct best calculated to obtain them.