The Arkansas banner., 1845-12-03


 lar power, the first question is, whether the power be expressed in the constitution If Il be, the question Is decided. If it be not expressed, the next inquiry must be, whether i IS properly an incident to all express DOW CT, and necessary to it's execution. Ii 1t be, it may be exercised by congress. Fit be not, Congress cannot exercise 1t.
 Let tue question be asked, then whether the power over the press, exercised in the 'Sedition act" be found among the powers expressly vested in the Congress? This is not pretendod.
 Is there any express power, for executing which, 1t is necessary and proper power.
 The power which has been selected, at least lemote, in answer to ihis question, is that s'ol suppressing inaunectious;o which is said to imply a power to prevent ihsurfec- lions, by panishing whatever may lead or tend 10 them. Bnt it surely cannot, with the least plausibility, be said, that the regulation of the press. and a punishment of libels, are exercises of a power to suppress insurrec- lions. The most that could be said, would be, that the punishment of libels, fit had the tendency ascrlbed to it, might prevent the occasion of passing or executing laws neces- rary and proper for the suppression of insur- rections.
 Has the Federal Government no power then, to prevent as well as 10 punish resist ance 10 the laws?
 They have the power which the constitu- ton deemed the most proper n their hands for the purpose The Congress has power, before il happens, to pass laws for puaishing ii and the executive and judiciary have power to enforce those laws when 1t does happen.
 Il must be reeolleetad by many, and could be shewn to the satisfaction of all, that the construction here put on the terms "necessa- " and propcr," is precisely the construction which prevailed during the discussions and notifications of the constitution. It may be added, and cannot too often be repeated, that il is construction absolutely necessary to maintain their consistency with the peculiar character of ihe government, as possessed of particular and definite powers only; not of the general and indefinite powers vested in ordinary governments. For if the power to suppre&s iaSarrectioas, includes the power to paijSh Hbe{s; or fl the power to punish, in- cludes a power 10 preeem, by all the means that may have that tendency, such is the re- lation and influence among the most remote subjects of legislation, that a power over a very few, would carry with 1t power ever all. And il must be wholly immatera, whether unlimited powers be exercised under the name of unlimited powers, or be eXercis- ed under the name of unlimited means of carrying into execution limited powers.
 This branch of the subject will be closed with reflection that must have weight with all but more especially with those who place peculiar reliance CT. the judicial expo sition of the constitution as the bulwark pro- vided against aH rnes,e cXtCusion of the legts- lative power If 1t be understood that the powers implied in the specific powers, have an immediate and appropriate relation to them as means necessary and proper for carrying them into execution, questions, on the con- stitutionality of laws passed for this purpose will be of a nature sufficiently precise and deteFminate for judicial cognzance and con- trol. If, on the other hand, Congress is mol limited in the choice of means by any such appropriate relation of them 10 the specified powers; but may employ all sach means they may deem fitted 10 weccM as well as to pul- iSh crimes subjected to their authority; such as may have Tendency only to promote an object for which they are authorized to pro. vide every one must perceive that questions relating To means of this sort, must be ques- tions of mere policy and cXpedlency on which legislative discretion alone can decide aud from which the judicial interpretation and control are completely excluded.
 II. The next point which the resolution requires to be proved is, that the power ove the press exercised by the Sedition act, i positively forbidden by one of the amend ments to the constitution
 The amendment stands in these words sCongress shall make no law respecting al establishment of religion, or prohibiting thC free exercise thereof, or abridging Me free dom of specch or of the press, or the righ of the people peaceably to assemble, and to petition the government for a redress 0 grievances.o
 In the attempts ;o vndicate the '.Sedilior act,o it has been contended, l. That tho freedom of the press is To be determined by the meaning of these terms in the common law. ,. That the article supposes the power over the press to be in Congress, and prohi bits them only from abridgtng the freedom allowed to it by the common law.
 Although it will be shewn, on examining the second of these positions, that the amend ment is a denial to Congress of all powe over the press, it may not be useless to mak' the following observations on the first o them.
 IL is deemed to be sound opinion, tha the Sedition act in it's definition of some o the crimes created, is an abridgement of tn freedom of publication, recognized by prin ciples of the common law in England
 The freedom of the press under the com mon law, is in the defences of the Sedtiol act, made to exist in an exemption from al precious restraint or printed publications, D, persons authorized to inspect or pfohibi them. It appears to the committee, that thl idea of the freedom of the press, can neye be admitted to be the American idea of 1t since law indicting penalties on printer I publications, would have similar effect witt alaw authorizing a previons restraint on them 1t would seem mockery 10 say, that nolaw should be passed, preventing publication from being made, but that laws might b passed for punishing them in case they migil be made.
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