The Mirror — Concord, N.H., 1799-02-11 00:00:00, page 2

common law. At this time, it was pecu
liarly proper to moke such an ad, as a
solemn admonition to wicked or unthink
ing men, to abstain from pradices, which
spread flinders and falsehood# foment di
visions and (editions among the citizens,
weaken the energy of the Government,
and thus rendering, the nation defence
lefs, encourage France, by a profpea of
impunity and success, te measures of ag
gression and hostility.
z. A doubt has been suggested wheth
er the courts of the United States had
Cognizance of any offences not expreffiy
declared by the Conftitution,or force law
or treaty of the United States.—l do nos
think this doubt weM founded. The ju
dicial power of the United States extends
to all cases arising under the conftr utioh,
the laws, and the treaties of the United
States. Hence results a jurifdiaion to
try and punish, as misdemeanors, all ads
tending to violate or weaken the authori
ty of the Constitution, or of any a& or
measure ofthe Government of the Unit
ed States. For it cannit be supposed,
that such misdemeanors should pass un
punished, or that the Government of the
United States should be obliged to beg
proteaion from the individual States.
The doubt however existing, it might be
thought proper to remove it.
3. It might be thought proper to pass
this law, in order to limit the extent of
punishment which might be inAided on
the offender ; and to give him the advan
tage of proving the truth of the libel in
his defence.
Whatever may have been the motive
of making this law, it was opposed on
two. grounds: 1, as unconstitutional,
and 2, as inexpedient.
I It was said to be unconstitutional,
because the constitution declares, that
"the powers not delegated to the United
$ States by the Constitution, nor prohibit
ed by it to the Spates, are reserved to the
States refpeaivelv, or to the people,"
and more exprcflly, that " Congress
Shall make no law abridging the freedom
of speech or of the press."
The Constitution, like every other in
strument, must be construed by taking
the whole together. Among the powers
which the constitution delegates to Con
gress is a power " to make all laws,
which shall be necessary and proper for
carrying into execution all powers vested
bv this constitution in the Government
of the United States, or any department
or office thereof." It is evident, that
the attempts and writings declared pun
ilhable by this law, have a dire& tenden
cy, differing only in degree from force, to
prevent or obftrua the execution of the
powers vested by the constitution in the
Government of the U. States. There
fore, a law declaring that such attempts
and writings are punishable; is constitu
tional as necessary and proper for the ex
ecution of the powers of Government.
If the clause of the constitution which
prohibits Congress from making any law
abridging the freedom of speech or of
the press, is to be construed as prohibit
ing Congress from making any law de
claring libels against the Government,
a&s, or measures of the United States, to
be punilhable ; then by the fame con,
ftruaion of the constitution of Pennsylva
nia, which declares, that no law fball ev
er be made to refrain this right, the
meft falfe and malicious libels might be
published against the Government, ads,
or measures of this State (and of course
ofthe United States) and the assembly
would have no power to make any law,
declaring such libels punishable; and
thus absolute impunity for them would
be eftablilhed. This is a conftrudion too
absurd to be received as true. Nor will it
juftify such conftruaion of the conftitu
lion of the United States to fay, that it
was intended by that constitution, that
the authority of passing laws against li
bels should be left to the individual
States : for this would be supposing that
the Goeernment of the United States
inuft.unlefs the individual States choose
toafford ir, be without defence against
the mort dangerous enemy that can at
tack it, Hander ; against which, if unre
strained, no Government can fopport it
felf—This, therefore, would only re
move one absurdity by another, and
some other conftruaion of this clause of
the Constitution must be fought for.
When the press was abused by being
made a vehicle of slander, governments
laid a restraint on it. Books were to be
printed only in certain places, only of a
certain nature, and only by license of
/ certain persons. In England, these re
ftriaions were imposed firft by the au
thority of the King, part of whose pre
rogative the regulation of printing was
considered ; then by the Star Chamber,
an organ bf the executive authority ; and
in the time of the commonwealth, and
after the Reftbration, and after the Re
volution, by the Parliament. The law
restraining the liberty of the press ex
piring in 1694, was oot renewed, and the
I press became tree. For freedom of the
press consists in this, that any man may,
without the content of any other, print
any book or writing whatever : being, in
this, as in al! other freedom of action,
Hable to punishment, if he injure an in
dividual or the public.
For thus underlining the liberty of
the press, I shall quote the refpeciable
authority of Sir William Blackstone.—
" Where blasphemous, immoral, trea
sonable, fehifmatieal, (editions or fezn
dalous libels are punished, the liberty of
the press, properly understood, is by no
means infringed or violated. The lib
erty of the press is indeed essential to the
nature of a free state: but this consists
in laying no previous restraints upon pub
lications, and not in freedom from cen
sure for criminal matter when published.
Every free man has an undoubted right
to lay what sentiments he pleases before
the public : to forbid this is to destroy
the freedom of the press : but if he pub
lifhes what is improper, mifehievous or
illegal, he must take the conference of
his own temerity. To fubjed the press
to the reftriaive power of a licenser, as
was formerly done, is to fubjed all free
dom of sentiment to the prejudices of one
man, and make him the arbitrary and in
fallible judge of all controverted points
in learning, religion and government.—
But to punish any dangerous or effenfive
writing which, when published, shall on
a fair and impartial trial, be adjudged of
a pernicious tendency, is necessary for the
preservation of peace and good order, of
government and religion the only solid
foundation of civil liberty. Thus the
will of individuals is still left free ; the
abuse only of that free will is the fubjed
of legal punishment —Neither is any re
straint hereby laid upon the freedom of
thought or inquiry ; liberty of private
sentiment is still left; the disseminating
or making public bad sentiments, def
trudive es the ends of society, is the
crime which society corrects. A man
may be allowed to 'keep poisons in his
closet, but not publicly to vend them as
cordials. —And the only plausible argu
ment heretofore used for the restraining
of the freedom of the press, that it was
nteffir, t° „ru'*t tbe daily abuse of it, will
entirely lose its force, when it is shewn
(by a seasonable exertion of the laws)
that the press cannot be abused to any
bad purpose, without incurring a suita
ble punishment. So true will it be found,
that to centare,the licentiousness is to
maintain the liberty of the press.
Such is the liberty of the pref, which
the people of the states of America, for
its greater security, have made part of
their fundamental law. In their state
Conftituiions, they provided, that their
legislatures should not make any law re
straining the liberty of the press, that is,
-should lay no previous restraint, on the
press, or as the Pennsylvania Constitu
tion expresses it, that " every citizen may
freely speak, write and print, on any
fubjea, being responsible for the abuse
of that liberty." The fame principle
was afterwards adopted into the Federal
Constitution ; and the fedion establish
ing it there is to be construed in the fame
manner. So that the liberty of the press
is precisely as stated by Sir Wm. Black
stone, its being free from all previous re-'
ftraints, but as all other rights and liber
ties are, fubjea to correaion for abuse.—
On this liberty of the press in England,
Parliament may, at any time impose
previous restraint, ; but here a constitu
tional provision puts it out of the power
of any legislature to do so.
This law then is no abridgement of
the freedom of speech, or of the press,
and is therefore no infringement of the
Constitution. So far from this, that; as
it makes no new offence, iris no altera
tion ofthe criminal code, only as it en
larges the bounds of defence, limits the
punishment, and (if this be an alteration)
gives express jurifdiaion to the federal
courts. It is not injurious either to the
Constitution, or to the liberty of the
press, but it is intended and adapted for
the support of both ; for it cannot be too
often repeated, that ^ to censure the li
centioufnefs is to maintain the liberty of
the press."
To reftrai^ the abuse of my right, or
such an exercise of it as shall encroach on
a right of another, is no restraint or a
bridgment of my right; fori can have
no right to lessen the right of anothet.
And to claim such an unlimited use of
my right, as to encroach on the right of
another is to claim, not liberty, but ty
ranny ; not right, but oppression. " I
may freely speak, write, and print, on
any fubje& but, "I am responsible
for the abuse of this liberty." —Unless I
j may speak, write and print, my right
will not be fuffiriently secured ; and un
lels L be responsible for the abuse of this
liberty, the rights of ethers would not be
(efficiently secured — Therefore to secure
all, and efhblifh true liberty, I must be
free to speak, write and print, but be also
responsible for the abuse of that liberty.
This is a found principle, and applies to
all rights whatever. It applies to our
right of adion, as well as to our right of
exprefog our sentiments in every way.
I may ride a herfe, but I must not ride
over a man. 1 may walk where I please,
but not on my neighbor's garden. I may
use my cane, but not to strike any man I
meet. Such is the liberty of speech or of
the press., A law that any printing press
should be locked up, and the key kept
by a certain officer, or that no book
should jx printed without permission
from a certain officer, would be a law
abridging the liberty of the press.—A
law, that a man should not speak with
out permission, should speak only on cer
tain fubje&s, or should have a gag put
in his mouth, not to be taken ou; but by
a certain < fficer, would be an abridge
ment of the freedom of speech, would be
indeed a gagging-law, but because the
Constitution denies the legilbture any
power to make a law like this, or to make
any law laying a previous restraint 00
speech or the press, to claim therefore a
right, from the Constitution, to speak,
write, or print sedition, impiety, blas
phemy, or any falfhood, however gross,
indecent, and dangerous, is claiming not
liberty but licentiousness. Will any one
fay, that my right of freedom of speech
entitles me to propagate with impunity
any Zander I please upon all my neigh
bours ? What charader would be fafe,
and what life would be free from misery,
were this liberty of speech to be indulg
ed ? There is no such liberty. A liberty
to destroy reputation would be as unjust,
as a liberty to destroy life. Every man
is free to speak, but he (peaks at his peril,
and is answerable for all he fays, if it tend
to the injury of another. It is not his
opinion of its being proper or true, that
will juftify him. When he utters it, he
is answerable for its truth and propriety ;
and the opinion of a court or jury, not
his opinion, must decide on its truth and
propriety. Every repeater of thetale is,
in like manner, answerable as the author.
So of libels, or written or printed slander,
with this difference, that, as the provo
cation by them is more dangerous, they
are less indulged ; and, except in the
case of matters proper for public infor
mation, the proceedings of government,
and the official condud of officers, or
men in public capacity, truth is no jufti
fication. Even in cases where truth is
a juftification, the truth must be mace
out to the fatisfaaion of a jury.—That
the libeller may have thought it true,
though it may extenuate, will not juftify
the cffence : for no man is to be judge in
his own caute, and my opinion will not
juftify me in doing an injury to my
neighbour, in his reputation, any more
than in his person or property. Every
man, therefore, writes and prints, as he
(peaks, at his peril; and the publisher of
a libel is answerable, in like manner as
theauthor. And both are answerable,
as in any other offence. To the judg
ment of a court and jury, by whose opin
' ion, and not of the offender, must thd
guilt or the innocence of the a&ion be
determined. And such reftriaion, if I
may so call it, or correaion, of the abuse,
of freedom of speech and of the press, is
not only perfe&ly confident with the
principles of civil liberty in general, and
with the rules of our constitution ; but
is necessary for maintaining the genuine
liberty of speech and the prefs.^ For, of
all enemies to liberty, licentiousness is
the greatest. ,
2. I think the expediency of this law
can be as clearly shewn, as its constitu
tionality : and, if fo,' there will be not
only duty, but pleafare in the obedience
we yield to it.<
Speech, writing, and printing are the
great directors of public opinion, and
the public opinion is the great director
of human adion. Os such force is pub
lic opinion, that, with it on its fide, the
worst government will , support itfelf ;
and, with it, against it, the best govern
ment will fall— All governments are sup.
parted by it ; and, without it, can no
government be supported. What is the
forcein the power of any government
compared te that of the people governed
by it, if the people choose to resist ? and
will they not choose to resist, if their o
pinions be set against the government,
their passions roofed to enthufiafm> and
an opportunity offered for success. And
all this may be done by means of clubs,
societies, and the preft.— Give to any set ,
of men the command of the pre^s, and
you give them the command of the coun
try ; for you give them the command of
public opinion, which commands ever,
thing. Let therefore, clubs, societies,
and the printing presses attack any gov
ernment, however strong, they will in
fallibly destroy it. ,
It will not be pretended that the old'
government of Fiance was good, nor de
nied, that it needed reformation ; but in
so far as it peffefled strength, and as it
was supported by the prejudices of the
people in its favour, it is a proper instance
of what I have stated. The French revo
lution was accomplilhed by a gradual
operation on public opinion. For ma
ny years before the feeds of infurreaic^
had been busily sown in theminds of the
people. Clubs, and societies, under va
rious names and pretexts, were eftabHfh
ed through the kingdom. The print
ing presses were occupied. Pamphlets
and bocks were dispersed. New princi
ples were broached, supported, and ef
tabliffied. Under the fanaien ot philof
opby and reason, all prejudices in favor
of religion & government were gradually
sapped to make way for liberty, equality,
and the rights of man ; fine words which,
as they were little understood, were the
more admired. All were men ; and
priests and princes were no more. All
refoea for office ceased: and an infultto
-a bishop or a king was no more than an
insult to an equal. Religion was but a
state trick, and i^s author and ministers
but importers. Pu lie opinion, the
great pillar of this, as of every other gov
ernment being thus withdrawn, the
mighty fabric ot he monarchy, which,
supported by public opinion, had flood
the blasts of ages, was touched by a
shock, and, in a moment crumbled to
pieces.
What was the consequence ? Not iat
isfied with reformation, public opinion,
dire&ed by clubs and the press, was em
ployed to lead the nation to excess, an
archy, 2nd finery. The desperate suc
cession of tyrants, which hath since ruled
France, was supported by public opinion,
dire&ed by clubs and the press, till it ac
quired an enumercus armed force.
When, disgusted by its cruel and un
principled oppression, public opinion
began to revolt, and the printing presses
to speak against it ; even this tyranny,
with its vast armed force, felt that it
conjd not resist public opinion, and, to
silence it, shut up the presses; and now
extorts, from an unhappy nation, a fulled
and reludant submission, by its armed
force, and an enslaved press.
[ For remainder fee las ? 4 £'J
THE Report of the Secretary
of War. made to The Prefidehc
of the United State#, 24th Dec
and by the latter communicated
to Coogrefa, it one of the belt•
State Paper# we ever recoiled to
have read.—The prefeot fituarion
of the United State# is plainly
portrayed, and the oectffi.y of
their being constantly prepared to
repel aggreffiont, is enforced with
all the energy of truth and patriot
ism. " Paying due refped to the
state of thing! ; regarding the o
verthrow of a large portion of Eu
rope, at not inrirely chimerical, &
(landing a# it were, io the midst
of falling empire#," The Secretary
tbitkt "it will be our prudence to
cultivate a spirit of felf-dependence,
and endeavor, by unremitting vi
gilance and exertion, under the
bluffing, of Providence, to hold
the fcalei ofour destiny in our
own hands."——Such it the
wife maxim of the Secretary at
War—and he recommend# some
amendment# in, the organization
of the army, which are presented
in a coocife view, in the fubfe
queot recapitulation :—
ift. A new modification of the
military, so a# to admit of an in
create of number# to the compa-^
niei and regiments, in case of war ;
an alteration in the denomination
of certain grade# ; and a perfect
uniformity of arrangement! in