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an act, in time past, would not have repressed that information and communication among the people, which is indispensable to the just exercise of their electoral rights? And whether such an act, if made perpetual, and enforced with rigour, would not, in time to come, either destroy our free system of government, or prepare a convulsion that might prove equally fatal to it?
In answer to such questions, it has been pleaded that the writings and publications forbidden by the act, are those only which are false and malicious, and intended to defame; and merit is claimed for the privilege allowed to authors to justify, by proving the truth of their publications, and for the limitations to which the sentence of fine and imprisonment is subjected.
To those who concurred in the act, under the extraordinary belief that the option lay between the passing of such an act, and leaving in force the common law of libels, which punishes truth equally with falsehood, and submits the fine and imprisonment to the indefinite discretion of the court, the merit of good intentions ought surely not to be refused. A like merit may perhaps be due for the discontinuance of the corporal punishment, which the common law also leaves to the discretion of the court. This merit of intention, however, would have been greater, if the several mitigations had not been limited to so short a period ; and the apparent inconsistency would have been avoided, between justifying the act at one time, by contrasting it with the rigors of the common law, otherwise in force, and at another time by appealing to the nature of the crisis, as re.. quiring the temporary rigour exerted by the act.
But, whatever may have been the meritorious intentions of all or any who contributed to the sedition-act, a very few reflections will prove, that its baneful tendency is little diminished by the privilege of giving in evidence the truth of the matter contained in political writings.
In the first place, where simple and naked facts alone are in question, there is sufficient difficulty in some cases, and sufficient trouble and vexa. tion in all, of meeting a prosecution from the government, with the full and formal proof necessary in a court of law.
But in the next place, it must be obvious to the plainest minds, that opinions, and inferences, and conjectural observations, are not only in many cases inseparable from the facts, but may often be more the objects of the prosecution thån the facts themselves ; or may even be altogether abstracted from particular facts; and that opinions and inferences, and conjectural observations, cannot be subjects of that kind of proof which appertains to facts, before a court of law.
Again : It is no less obvious, that the intent to defame or bring into contempt or disrepute, or hatred, which is made a condition of the offence created by the act, cannot prevent its pernicious influence on the freedom of the press. For, omitting the inquiry, how far the malice of the intent is an inference of the law from the mere publication, it is manifestly impossible to punish the intent to bring those who administer the government into disrepute or contempt, without striking at the right of freely discussing public characters and measures: because those who engage in such discussions, must expect and intend to excite these unfavourable sentiments,
so far as they may be thought to be deserved. To prohibit, therefore, the intent to excite those unfavourable sentiments against those who administer the government, is equivalent to a prohibition of the actual excitement of them; and to prohibit the actual excitement of them, is equivalent to a probibition of discussions having that tendency and effect; which, again, is equivalent to a protection of those who administer the government, if they should at any time deserve the contempt or hatred of the people, against being exposed to it, by free animadversions on their characters and conduct. Nor can there be a doubt, if those in public trust be shielded by penal laws from such strictures of the press, as may expose them to contempt or disrepule, or hatred, where they may deserve it, in exact proportion as they may deserve to be exposed, will be the certainty and criminality of the intent to expose them, and the vigilance of prosecuting and punishing it; nor a doubt, that a government thus intrenched in penal statutes, against the just and natural effects of a culpable administration, will easily
evade the responsibility, which is essential to a faithful discharge of its duty.
Let it be recollected, lastly, that the right of electing the members of the government, constitutes more particularly the essence of a free and responsible government. The value and efficacy of this right, depends on the knowledge of the comparative merits and demerits of the candidates for public trust; and on the equal freedom, consequently, of examining and discussing these merits and demerits of the candidates respectively. It has been seen, that a number of important elections will take place whilst the act is in force, although it should not be continued beyond the term to which it is limited. Should there happen, then, as is extremely probable in relation to some or other of the branches of the government, to be competitions between those who are, and those who are not, members of the government, what will be the situations of the competitors ?
Not equal; because the characters of the former will be covered by the "sedition-act” from animadversions exposing them to disrepute among the people; whilst the latter may be exposed to the contempt and hatred of the people, without a violation of the act. What will be the situation of the people ? Not free; because they will be compelled to make their election between competitors, whose pretensions they are not permitted, by the act, equally to examine, to discuss, and to ascertain. And from both these situations, will not those in power derive an undue advantage for continuing themselves in it; which by impairing the right of election, endangers the blessings of the government founded on it?
It is with justice, therefore, that the General Assembly have affirmed in the resolution, as well that the right of freely examining public characters and measures, and free communication thereon, is the only effectual guardian of every other right, as that this particular right is levelled at,
power exercised in the "sedition-act." The resolution next in order is as follows:
That this state having by its convention, which ratified the federal Constitution, expressly declared, that among other essential rights, the liberty of conscience and of the press cannot be cancelled, abridged, restrained or modified by any authority of the United States," and from
its extreme anxiety to guard these rights from every possible attack of sophistry and ambition, having, with other states, recommended an amend. ment for that purpose, which amendment was, in due time, annexed to the Constitution, it would mark a reproachful inconsistency, and crimi. nal degeneracy, if an indifference were now shown to the most palpable violation of one of the righis thus declared and secured; and the establishment of a precedent, which may be fatal to the other.
To place this resolution in its just light, it will be necessary to recur to the act of ratification by Virginia, which stands in the ensuing form:
We, the delegates of the people of Virginia, duly elected in pursuance of a recommendation from the General Assembly, and now met in convention, having fully and freely investigated and discussed the proceedings of the federal convention, and being prepared as well as the most mature deliberation hath enabled us to decide thereon, do, in the name and in behalf of the people of Virginia, declare and make known, that the powers granted under the Constitution, being derived from the people of the United States, may be resumed by them, whensoever the same shall be perverted to their injury or oppression ; and that every power not granted thereby, remains with them, and at their will. That, therefore, no right of any denomination can be cancelled, abridged, restrained, or modified, by the Congress, by the Senate, or House of Representatives, acting in any capacity, by the President, or any department or officer of the United States, except in those instances in which power is given by the Constitution for those purposes ; and that, among other essential rights, the liberty of conscience and of the press, cannot be cancelled, abridged, restrained, or modified, by any authority of the United States.
Here is an express and solemn declaration by the convention of the state, that they ratified the Constitution in the sense, that no right of any denomination can be cancelled, abridged, restrained, or modified by the government of the United States or any part of it; except in those instances in which power is given by the Constitution; and in the sense particularly," that among other essential rights, the liberty of conscience and freedom of the press cannot be cancelled, abridged, restrained, or modified, by any authority of the United States."
Words could not well express, in a fuller or more forcible manner, the understanding of the convention, that the liberty of conscience and the freedom of the press, were equally and completely exempted from all authority whatever of the United States.
Under an anxiety to guard more effectually these rights against every possible danger, the convention, after ratifying the Constitution, proceeded to prefix to certain amendments proposed by them, a declaration of rights, in which are two articles providing, the one for the liberty of conscience, the other for the freedom of speech and of the press.
Similar recommendations having proceeded from a number of other states, and Congress, as has been seen, having in consequence thereof, and with a view to extend the ground of public confidence, proposed, among other declaratory and restrictive clauses, a clause expressly securing the liberty of conscience and of the press; and Virginia having concurred in the ratifications which made thein a part of the Constitution,
it will remain with a candid public to decide, whether it would not mark an inconsistency and degeneracy, is an indifference were now shown to a palpable violation of one of those rights, the freedom of the press; and to a precedent therein, which may be fatal to the other, the free exercise of religion.
That the precedent established by the violation of the former of these rights, may, as is affirmed by the resolution, be fatal to the latter, appears to be demonstrable, by a comparison of the grounds on which they respec. tively rest; and from the scope of reasoning, by which the power over the former has been vindicated.
First. Both of these rights, the liberty of conscience and of the press, rest equally on the original ground of not being delegated by the Constitution, and consequently withheld from the government. Any construction, therefore, that would attack this original security for the one, must have the like effect on the other.
Secondly. They are both equally secured by the supplement to the Constitution ; being both included in the same amendment, made at the same time, and by the same authority. Any construction or argument, then, which would turn the amendment into a grant or acknowledgment of power with respect to the press, might be equally applied to the free. dom of religion.
Thirdly. If it be admitted that the extent of the freedom of the press, secured by the amendment, is to be measured by the common law on this subject, the same authority may be resorted to, for the standard which is to fix the extent of the “ free exercise of religion.” It cannot be neces. sary to say what this standard would be ; whether the common law be taken solely as the unwritten, or as varied by the written law of England.
Fourthly. If the words and phrases in the amendment, are to be considered as chosen with a studied discrimination, which yields an argument for a power over the press, under the limitation that its freedom be not abridged, the same argument results from the same consideration, for a power over the exercise of religion, under the limitation that its freedom be not prohibited.
For, if Congress may regulate the freedom of the press, provided they do not abridge it, because it is said only “they shall not abridge it," and is not said, “they shall make no law respecting it," the analogy of reasoning is conclusive, that Congress may regulate and even abridge the free exercise of religion, provided they do not prohibit it, because it is said only “they shall not prohibit it,” and is not said, “ they shall make no law respecting, or no law abridging it.”
The General Assembly were governed by the clearest reason, then, in considering the “ sedition-act," which legislates on the freedom of the press, as establishing a precedent that may be fatal to the liberty of con. science; and it will be the duty of all, in proportion as they value the security of the latter, to take the alarm at every encroachment on the former.
The two concluding resolutions only remain to be examined. They are in the words following:
That the good people of this commonwealth, having ever felt and con
tinuing to feel the most sincere affection for their brethren of the other states ; the truest anxiety for establishing and perpetuating the union of all; and the most scrupulous fidelity to that Constitution, which is the pledge of mutual friendship, and the instrument of mutual happiness ; the General Assembly doth solemnly appeal to the like dispositions in the other states, in confidence that they will concur with this commonwealth in declaring, as it does hereby declare, that the acts aforesaid are uncon. stitutional ; * and, that the necessary and proper measures will be taken by each, for co-operating with this state, in maintaining unimpaired the authorities, rights, and liberties reserved to the states respectively, or to the people.
That the governor be desired to transmit a copy of the foregoing resolutions to the executive authority of each of the other states, with a request that the same may be communicated to the legislature thereof; and that a copy be furnished to each of the senators and representatives representing this state in the Congress of the United States.
The fairness and regularity of the course of proceeding here pursued, have not protected it against objections even from sources too respectable to be disregarded.
It has been said, that it belongs to the judiciary of the United States, and not the state legislatures, to declare the meaning of the Federal Constitution.
But a declaration that proceedings of the Federal Government are not warranted by the Constitution, is a novelty neither among the citizens, nor among the legislatures of the states; nor are the citizens or the legislature of Virginia, singular in the example of it.
Nor can the declarations of either, whether affirming or denying the constitutionality of measures of the Federal Government, or whether made before or after judicial decisions thereon, be deemed, in any point of view, an assumption of the office of the judge. The declarations, in such cases, are expressions of opinion, unaccompanied with any other effect than what they may produce on opinion, by exciting reflection. The expositions of the judiciary, on the other hand, are carried into immediate effect by force. The former may lead to a change in the legislative ex.
* In the original resolutions as submitted by Mr. John Taylor, there followed after the word "unconstitutional,” the words " and not law, but utterly null, void, and of ro force or effect.” In the course of the debate, they were stricken out upon motion of Mr. Taylor himself
. (See ante, p. 150.) Mr. Madison's explanation of this fact, in his letter to Mr. Everett, (see post, Appendix, p. 256,) is, that although these words were, in fact, but synonymous with "unconstitutional,” yet to guard against a misunderstanding of this phrase, as more than declaratory of opinion, the word "uncon. stitutional” was alone retained as not liable to that danger. This explanation is abundantly supported by the circumstances. Mr. John Taylor had contended that the resolution in question, merely expressed the opinion of the legislature, such as it was competent to it to express, as a necessary concomitant of an attempt to procure an amendment to the Constitution from the other states. (Ante, p. 112-13.) Mr. G. K. Taylor, on the other hand, insisted that the words used, imported not merely an opinion, but a fact, which discharged the people from any submission to the laws thus denounced (ante, p. 140); and then Mr. J. Taylor moved to strike out the words above mentioned.