Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1840-11-27

ed most proper, i'll their hands tor the purpose.
G ,ngrtss has power, before il happens, to pass
10 furnishing il; and the Executive anu '"u'1'"'!
ha .e power to enforce those laws "neh " u'es nap
II must be recoeced by many, and could lie shewn
IN ,he satisfaction that tie construction here put
on the terms "necessary and proper Us prec@ey me
constructon which prevailed during the discussions
and ra6caions ofthc Constitution. 1t may be acded,
and cannot too often be repeated that is construc
,on absolutely necessary maintain their consistency
with the peculiar character Of the government MS pos
sesscd of particular and defined powers ony not OF he
general and indefinite powers vested IN ordinary GO
yernmen,s For the power To suppress tnsurFeetoas
includes power to punish libes; or IT the power 10
panish includes power to Prerfnt, by all ,ie means
that may have that tendency such is The reatioh ana
influence among the most remote suo)ec,s Oh pg's'
ton, that a power over a very few would carry with
il power over ALL And it must be wholly niina'ef'ai'
whether unlimited powers be exercised under inc name
of unlimited powers, be exercised under the name
of unlimited means of carrying INTO execution ni''eu
powers.
This branch of the subject win be closed with re
Election which must have weight with all but more
especially with those who place peculiar reliance on
the judicial exposition of the Constitution, as the oni
walk provided against undue extensions OF the Legs
latiye power fit be understood that the powers i'm.
piled in the specified powers, have an immediate and
appropriate relation to them means, necessary and
proper for carrying them into execution, questions
on the consltu,ionalty Of laws passed for this pur-
terminate for judicial cognizance and controul =
IT, on the other hand, Congress are not limited IN
the choice of means by any such appropriate relation
nf them the specified powers; but may employ all
such means they may deem fitted to preren as well
us to punish subjected TO their authority; such
as may have tendency only to promote an object Tor
which they authorised to provides every one must
perceve that questions relating to means OF thus sort
must be questions of mere policy and exprdency; on
which, legislative discretion alone decide, and from
which the judicial interposton and control are COM
pletely excluded.
The next point which the resolution requires TO be
proved is that the power over the press exercised ny
the Sedion Act, is positively forbidden BY one OF the
amendments TO The Constitution.
The amendment stands in these words" Congress
shall make no law respecting an establishment OF re-
gon, prohibiting the free exercse thereof on a0ra
iay The freedom of speech Of the press; or the right oil
The people peaccaby assemble and to petition The
Government for a redress of grievances
In the attempts TO vndicate the "Sedhon Act, II
has been COMMENDED, L. That the "reedom OF the press
ia TO he determined BY the meaning Of these terms in
The common law 9 That the article supposes the
power over the press to be in Congress, and prohibits
them only from a6ridgng the freedom allowed to 1t by
tho common law
Although il will be shewn, in examining the second
of these positions, that the amendment is denial TO
Congress of all power over the press il may not be
useless make the following observations on the first
fthem.
II is deemed to be sound opinion that the Sedition
an abridsment Of the freedom of publication, recog
nizad by principles Of the common law in England
The freedom of the press under the common law,
is, in the deences Of the Sedton Act, made to con-
sist exemption from all precious restraint on PRINT
ed publications, by persons authorised 10 inspect and
prohibit them. Ii appears TO the Committee, That TINS
idea of the freedom OF the press, can never be admit
ted to be the American idea Of II: since law inttct
ing penalties printed publications, would have 81
Inilar effect with aw authorsng previous restraint
them II would seem a mncSery to say, that no
law should be passed. preventing publications from be-
ing made, but that laws might be passed for Furnishing
them in they should be made
The essential difference between the British Govern
ment and the American Constitutions, will place this
subject in the cparest light.
In the British Government the danger Of encroach-
the rights of the People, is understood TO Of
confined TO the Executive Magistrate The represen-
tatives of the People the Legislature not only
exempt themselves from d,s,rus but considered
sufficient guardians of the rights of their constituents
against the danger from the Executive. Hence il is
principle that the Parliament unlimited IN rs power
or, in their language, is omnipoent. Hence too,
all the ramparts for projecting the rights Of the People,
such their Magma CIsrta their Bill of Rights, &c,
are not reared against the Parliament, but against the
royal prerogatve. They are merely Legislative pre-
cautions, against Executive usurpations. Under such
a Government this, exemption Of the press from
previous restraint by ccnscrs appointed by the King
is all the freedom that can be secured TO Il.
In the U. s., the case is altogether different The
people not the Government possess the absolute sore
reipnty The Legislature, less than the Executive
is under limitations Of power. Encroachments are re-
gaYded possible from the one well as from the other
Hence in the U. s., the great and essential rights OF
the people secured against Legislative as well as
against Executive ambition They are secured not by
laws paramount to prerogative, but by Constitutions
paramount TO laws. This security of the freedom of
the press requires, that it should be exempt not only
from previous restraint BY the Executive, as in Great
Britain; but from Legislative restraint also and this
exemption, to be efiectual must be an exemption, not
only from the previous inspection OF licensers but,
from the subsequent penalty OF the laws.
The state Of the press, therefore, under the COM
law, cannot in this point Of view, be the standard
Of its freedom in the u S.
But there is another view, under which il may he
cessary to consider this subject 1t may be alleged,
that although the security for the freedom of the press,
be different in Great Britain and in this country; being
legal security only in the former, and constitutional
security in the latter and although there may be further
difference, in extension Of the freedom of the press
here beyond exemption from previous restraint, to
exemption from subsequent penalties also; yet that
the actual legal freedom of the press under the com
law, must determine the degree of freedom which
meant BY the terms, and which is constltutionally
secured against both previous and subsequent re-
stranls
The Committee not unaware Of the difficulty Of
all general questions, which may turn the proper
boundary between the liberty and RIGHTEOUSNESS of the
press They will leave IT therefore for consideration
only how far the difference between the nature Of the
British Government, and the nature Of the American
Governments and the practice under the latter, may
shew the degree Of rgor in the former, TO be nappca
bic to, and not obligatory in the latter.
The nature of Governments elective, limited and
responsible in all their branches, may well be supposed
TO require greater freedom of nnmadversion. than
might be tolerated by the genius Of such Go, eminent
that Of Great Britain In the latter, il maxim,
that the King hereditary, not responsible magis-
trate. do wrong; and that the Legislature which
in ,wot thirds of its compositions also hereditary, not
responsible, can do what pleases. In the T. s, the
Executive magistrates are not held to be infable
the Legislatures TO be omnpotent and both being cleo
tive, both responsible. Is it mt natural and
sary, under such different circumstances, that differ
ent degree ofreedom, in the ohe press, should be
contemplated,
Is not such inference favored by what's observa-
BILE in Great Britain itself? Notwithstanding the gene
raj doctrine Of the law, the subject Of the
rsess and the occasional punishment Of those who