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 DISSERtA'TlON 
 
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 CONSTITUTIONAL FREEDOM 
 
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 PRESS 
 
 IN THt 
 
 XJNITED STATES OF AMERICA* 
 
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 BOSTON: 
 riinTBD BY DjiriD CJtUtitMt 
 
 For JOSEPH NANCREDE, No. 49, Mm^i^omvou STRtftr* 
 
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 ADVERTISEMENT BY THE AUTHOR!. 
 
 The freedom oftheprefs is of vaji tmpor-' 
 iance to the United States ; it depends, for its conJiitutioH' 
 til definition, upon natural, Jimple principles ; there is no ah" 
 /irufe learning onthefuhje£l. It ought to be fettled y and un- 
 derjiood by the body of freemen, ivhofe votes in elc^iions, and 
 ivhofe verdids ds jurymen, dre to mairitdin it, according 
 to its con flitutional principles. "" 
 
 This rffay is thefirjl attempt of the kind in Amenca, 
 Whoever reads the production, will find, that it is not %ir it- 
 ten under the influence of any party. Some of each party will 
 be difp leafed with it. But as it is compofed with a fine ere 
 defirc to enlighten, and inform the whole bbdy of the people y 
 in a matter of great confequencc to their liberty andfafety, 
 the author is by no means anxious in regard to the opinions 
 of men, who have forfaken principle, and devoted themfehes' 
 to party. He will, indeed, cohftder himfetfas unfortunate 
 in this produdion, unlefs itfhall be abnfed, mutilated, mif- 
 underflood, and mifapplied, as is ufualinfuch cafes. Shoidd 
 he be charged with being ambitious to be Prefident, Govern- 
 or^- fudge. Senator, or any thing elfi, he allows the charge ; 
 — '•only read ^the book, and' attend to the truths jt contains^ 
 and his wijhes are accomplifhed* 
 
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 A PREFACE BT THE AUTHOR. 
 
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 HERE (hall the true art of exerclfing pow- 
 ;Cr without tyranny, or authority without pufiUanimity 
 be found ? The idea of power is noble, and fublime j 
 we tremble at it, when we conceive it to be uncon- 
 trolable and irrefiftible. We Hand in awful dif- 
 fidence before it ; becaufe our firft conceptions of 
 its form admit of no modifications or reftraint. But 
 the moment it has become familiar to our fenfes, and 
 we have conceived the idea of rendering it fubfervient 
 to our will, the apprehenfion of terror vanifhes, and 
 we foon treat it with indifference and contempt. 
 Strength is the firft indication of power, but when the 
 horfe is broken to the bit, or the ox fubdued to the 
 yoke, the fublime an'' terrible, which had before af- 
 fociated themfelves with the dread of ftrength, are done 
 away. The tyger and the wolf excite emotions of 
 terror, but the maftiff and the fpaniel recline on our 
 bofoms. 
 
 The ancient nations were well acquainted with all 
 the feelings of the human heart. Homer carried his 
 hero, under the contefted proteftion of a multitude of 
 gods, through dangers and diftreffes, through voy- 
 ages and fhipwrecks, through victories and defeats, to 
 lay the foundation of the Grecian empire. The 
 Greeks brought their civil inftitutions from Egypt, 
 where, as it was then believed, the gods had promul- 
 gated laws for mankind. This was done, that the laws 
 
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 fhould be refpe«n:ed by the people. The Romans 
 founded an empire, by the man who had been nurfed 
 by a wolf ; and their poet, in inutation of Homer, to 
 render their origin refpedable, and their religious 
 and civil inflitutions facred, detailed the perils, the 
 wars, and the interpofitipn of the gods, which carried 
 the firfl: of their race to the fpot, which was admu'e4 
 by earth, and protefled by heaven. 
 
 Before the chriftian religion was refpefked in Eu? 
 rope, fabulous deities were called in, to take a part in 
 the inauguration of kings ; and the laws were fram* 
 cd by the Druids, who lived fequeftered from the 
 world, and were conftdered as having an intercourfe 
 with heaven. As foon as chriflianity was eilabliihed, 
 the divine right of kings was proclaimed, as fron\ 
 beaven ; and miraculous figns, and terrible wonders, 
 were obferved at the birth of princes, and the coro* 
 pation of monarchs. 
 
 The EngUfh nation have had fo many changes in 
 the dynafty of their throne, that they are compelled, 
 by a fenfe of decency, to abandon the divine right of 
 earthly fovereigns, and the peculiar efficacy of the roy- 
 al blood, A facred regard to a conftitution, muci? 
 talked of, no where on paper, and highly refpe£ted, 
 becaufe it has never been feen, forms the main bon4 
 of that vigorous and efficient government. 
 
 But where (hall we, placed in the going down of 
 the fun ; we, who have been familiar with our own 
 origin, and have created ourfelves j we, who are but 
 of yefterday, find a fubftitute equal to the exigency of 
 our fituation ? Compcfed of millions, who widely dif- 
 fer in their educations, habits, mj^nners, purfuits au4 
 
C 5 1 
 
 dedgns, what fliall hold us together as a nation ? Our 
 conftitution of national government is in our owa 
 bands, like the fchool books ; we know t!ie men who 
 formed it. They have not, like Sulon, banifhed thenar 
 fclves firom the; country, nor like the Druids, fequef- 
 tered tbemfelves from the world. They remaiii among 
 US, as men of like paffions, fubjeded to the fame (er- 
 rors, follies and weaknefs, as other men. So far arc 
 they frQm boafting of an infpiratian in this work, that 
 neither two of them can agree to uuderiland th^ in{lra« 
 jnent in the fame fenfe. ^ — 
 
 We not only have this thing in our own hands, 
 familiar to our fienfes, but it iiiforms us, that it is in 
 our own power, fubject to any alterations we may 
 chpofe to make in it. How then ihall we drefs it in 
 the fublime and noble ? How ihall we decorate it in 
 the venerable habiliments of a myfterious and fuper- 
 natural origin ? How ihall we raife and maintain a 
 permanent awe and reverence for it ? Shall we change 
 it for a more inconteiiible power, by adopting an 
 hereditary e^fecutive, in the room of an eledive chief 
 magiihatc ? Behold the divine right of kings is done 
 away ! their perfons are no longer facrcd ! but the 
 throne is the rallying point of facHon, and the fup- 
 porter of the ftandard of civil war. Round this the 
 partizans colled their forces, under various pretexts, 
 but to gain the fame objeft, the proftratlon of power, 
 and the plunder of the people. 
 
 Shall we reflore the days of ignorance, and fanati- 
 ciftn, and return to the dark ages, when rulers fliall 
 be coiifidered as gods, though we fee them die as 
 wen ? Alas ! the days of religious cnthufiafm, found- 
 
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 ed in the ignorance of mankind, are the days of ty- 
 ranny and calamity. 
 
 Shall we rely on our boafted diflemination of knowl- 
 edge and learning, and fly to our churches, colleges, 
 academies and fchools, as the ancients did, in their 
 diftrefs, to the temples of their gods ? Here we find 
 that learning is but the fpy of forrow, and that a 
 great part of it is expended in defcribing troubles 
 which can never happen, or in attempts to overturn 
 the civil flate, that contending parties may gain a lu- 
 crative and powerful (landing. <4{v: 
 
 Since then the real happinefs of our country has 
 no kind of connexion with thofe boifterous flruggles 5 
 fmce every violent contention ferves to diflrafb the 
 people, and weaken the ibcial compad, fince the de- 
 ftruftion of our conftitution will annihilate our exifl:- 
 ence as a nation, and render us wretched as citizens, 
 and miferable as men, we will attach ourfelves to 
 that glorious fyftem ; we will hold in contempt the 
 few, who fill the atmofphere with feditious libels, 
 bafe calumnies, and falfe reafonings, and, rallying 
 round the conftitution, we will, in the charafter of 
 brethren, live and die like freemen, honorably aflb- 
 ciatcd for civil happinefs, and the promotion of our 
 country's honour and intereft. 
 
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DISSERTATION. 
 
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 WHEN the conftitution of the United States was 
 formed, there was no provifion in regard to the 
 freedom of the prefs ; the general convention left it to 
 the common underflanding, and eflabliihed opinion of 
 the people. But the conventions, which were called in 
 the feveral ftates, to ratify the inftrument, exhibited 
 propofals for an explicit recognition of the privilege, as 
 it had been ufed and approved in the country. Upon 
 this, the firft Congrefs, by way of amendment to the 
 Conftitution, refolved, that " Congrefs fhall make no 
 law refpefting an eftabKlhment of religion, or prohib- 
 iting the free exercife thereof, or abridging the free- 
 dom of fpcech, or of the prc/s, or of the r^ht of the 
 people, peaceably to anemble, and to petition the 
 government for a redrefs of grievances." 
 Previoufly to this, tliTere had been exprefe provifion 
 made, in feveral of the ftates, to prevent an ■abridgment 
 of the liberty of the prefs;. . In New Hampfliire, it was 
 declared, that " the liberty of the prefs is elfential to the 
 " fecurity of the freedorii of a ftate : it ought therefore 
 ** to be inviolably preferved." 
 
 In Maffachufetts it is thus eiprefled in the declaration 
 of rights prefixed to the conftitution ; " ITie liberty of 
 " the prefs is eflentral to the fecurity of freedom in a 
 " ftate : it ought not, therefore, to be reftrained in this 
 ** commonwealth." 
 
 As new conftitutions were not formed in the ftates of 
 Rhode Ifland, and Connefticut, there was not, in either 
 of thofe ftates, any declaration upon the fubjeft. The 
 freedom gf the prefs was well underftood in thofe ftates > 
 
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 and tlie comnioTi, publir opinion of (he citizens In ihcni< 
 was cllablidieil in unil'uu with the declarations made by 
 the others. 
 
 The convention which formed the conftitution of the 
 flate of New York, an4 the people whofe authority rati- 
 fied it, contented themfelves with declaring, ordaining, 
 and determining, " that fuch parts of the common law 
 
 of England, with the ftatutes adopted, and the afts of 
 
 their own legiflature, as together did form the law of 
 *' tlie colony in the year 1775 fliall continue, fubjeft to 
 ** the alterations of tne legiflature." "^^^Y ^^^^ '^^^^ 
 fidercd the freedom of the prefs as eflablifned by tha 
 common law ; and were under no ^prehenfions, that a 
 legiflature, frequently eled:ed by the people, would ever 
 be induced to lay an undue redraint upon a privilege fb 
 important) as that of a free communication of fentiment 
 on public meafures. ...,,/ . •' ; f.,..f ni 
 
 The ftate of Pennfylvania, is more explicit in its con>. 
 ftitution on this fubjeft. The provifion there is, " that 
 
 the printing prefles fliall be free to every one who un^ 
 
 dertakes to examine the proceedings of the legiflature, 
 *' or any branch of government i and no law mall ever 
 " be made to reftrain the right thereof. The free com- 
 " munication of thoughts and opinions, is one of the in« 
 *' valuable rights of main ; and every citizen may free« 
 *' ly write a^,d print, on any fuWea, being refponfible 
 *' fox the abufe of that liberty. In the profecutions for, 
 ** publications of papersj inveiligating the official con* 
 " du£t of officers, or men of public capacity, or where 
 " the matter publiflied is proper for public mforma/tiony 
 " the truth thereof may be given in evidence. And,. in 
 " all indiftnMints for ltt)els, the jury fliall have a right to 
 *' determine the law and the fads, under the diredioii. 
 " of the court, as in other cafes." 
 
 The ftate of Maryland faid no more than " that the 
 " liberty of the prefs ought to be inviolably preferved." 
 
 The ftate of Virginia I'eems to reft the guardianfliip of 
 this important privilege on the common underftanding, 
 and the enlightened prudence of the people. , < ■ 
 
 III Noriii Caroliiia it was declared, " that the free- 
 
 
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 ; free- 
 
 ** dom of the prefa, is one of the great bulwarks of m^i 
 " crty, and therefore ought never to be reftraincd." 
 
 South Carolina committed the privilege to the 
 keeping of the common law, as underftood by the peo- 
 ple. 
 
 In Georgia it was declared, that " freedom of the 
 ** prefs, and trial by jury, fhould remain inviolate." 
 
 In Vermont it was declared, " that the people have 
 " a riglit of freedom of fpeech, and of writing and pub- 
 " lifliing their fentiments, concerning the tranfaftions of 
 " government j and therefore the freedom of the prefs 
 " ought not to be reftrained." 
 
 In the States of Tenneflee and Kentucky^ the declara- 
 tions on the freedom of the prefs are the fame. " 1 hat 
 ** the printing prefles (hall be free to every peribii 
 ** who undertakes to examine the proceedings of the 
 ** legiflature, or any branch or officer of governmrnt : 
 ** and no law (hall ever be made to redrain the right 
 " thereof. The free communication of thoughts and 
 ** opinions, is one of tHe invaluabh rights of man ; and 
 " every citizen may freely fpeak, write, and print on 
 " tmy fubjedlj being refponfible for the abufe of that 
 *' liberty. But in profecutions for the publication of 
 •* papers invelligating the official conduft of officers, or* 
 " men in public capacity, the truth thereof may be giv- 
 " en in evidence ; and in all indidments for libels, the 
 " jury (hall have a right to determine the law, and the 
 '^ tacls, under the diredion of the court, uj in other 
 " cafes." 
 
 This fubjed is treated as a matter of great importance 
 by the Congrefs of the general gofvemmcnt, as well as 
 by the conventions of the greater part, and by all the 
 people of the United States. Their wifhes fcem to be 
 concentrated in a principle, which ihcy conceive to be 
 highly interefUng to the whole nation, and of great ac- 
 count in the eftabliflmieiit, and prt-ltTvation of free gov. 
 ernments. The fyilems they wcyl farming, were to be 
 rcflcd, for fupport, on the ojMiiions of the people at large ^ 
 and it would therefore have btca a great degree of re- 
 ciifncfs in their procedure, to Invve left ;iny ilung in the 
 
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 t!pay of a free, open, arid univerfal communication oflen-' 
 timents upon public men, and public meafures, where 
 the ihme fhould be neceffary to maintain the principles 
 of the conftitutions they were forming. 
 
 The conventions of the flates, and the Congrefs of the 
 United States, ufe the word prefs as defcriptive of the 
 free communication of ideas and fentiments, by the art of 
 printing. This kind of figure, in fpeech, where the con- 
 tinent is ufed for the contents ; the appellation of the 
 caufe as a defcription of the effeft y or the power which 
 produces, for the produdl: obtained, is very common in 
 all languages. By the freedom of the prefs they un- 
 doubtedly intended an unfcjlrained vfe^ and free impro*ue' 
 ment cf the prh'ilegc of '■jjrit'mg, and pr'nrting^ in the com- 
 jnuniration of fenihnents and opinions^ on matters of public 
 concernment, governmental meafures^ and political proce- 
 dures. Not a licentious r.nd deftrudive abufe of the 
 privilege, in fuch a manner, as that wicked and malicious 
 men fhould gratify their refentment, malevolence, and 
 revenge, to the overthrow of family reputation, and the 
 ruin of their neighbor's chara^er. 
 
 In order to def-ne the meaning of the liberty of the 
 prefs, as eflablifhed in the country, I fhall, 
 
 Firfl, Endeavor to fhew how far it may be confidered" 
 as free, in regard to the rights of individual members of' 
 the community, in their private capacities. 
 
 Secondly, How far it may be reftrained, confiflently 
 with the principles of the conftitutions of our govern- 
 ments, in regard to men, m their public official charac- 
 ter and condudt. 
 
 Thirdly, How far it may be reftrained in regard to 
 the meafures of government, and in queflions of elec- 
 tions. 
 
 Fourthly, Shall make fome obfervations, on a late a6t 
 of Congrefs, which has farnifhed fo much fuel for the 
 fire of party zeal. 
 
 It feems to be an agreed principle, that government 
 is inftituted for the public good ; and to preferve, in 
 fafuty, the lives, the happinef's, the interefts, the charac- 
 ters, and the eftates of all tlwfe, who are combined to- 
 
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 ;maintaln it ; and who have confented to become the 
 fubjeds of it. In the focial compacls, which we de- 
 nominate conflitutions, no more is furreudered or given 
 up, than what is fuppofed to be necefliiry to the fafety, 
 and well being of the whole. So much is coniequently 
 retained, as camiot, in the nature of the government, be 
 defended and protefted by the powers of the aflbciation. 
 The right of confcience, as. to the forms arid principles 
 •of devotion, cannot be ceded, and given up, becaufe this 
 is a matter between a man and God, the high and holy 
 creator and preferver of all things, and man can have 
 no control over it. Reputation, and charader, are of 
 great confequence to the happinefe and enjoyment of 
 .human hfe, and therefore, thefe are never Sacrificed to 
 government, but are jewels of ineftimable value, depofit- 
 €d carefully, to the fafe keeping of the conftitution, and 
 the proteftion of the laws. The whole fociety has an 
 intereft in the reputation of each individual member, as 
 in a part of the wealth and happinefs of the community, 
 There is an invaluable right, which the fociety has in 
 the good charader of each individual of which it is com- 
 pofed. In order to demondrate this, nothing more is 
 neceflary,than to conceive of the diflrefs and mifery of a 
 community, compofed of men, who have no moral prin- 
 ciple, and who are totally regardlefs of character, integ- 
 rity, and truth. It has been laid, and perhaps was never 
 difputed,' that the founders of Rome were a banditti, 
 a collection of robbers ; but this camiot be underftood, 
 -as meaning any thing more, than that they were regard- 
 lefs of the natural rights of other tribes, and did not at- 
 tend to the law of nations, which in later times has 
 governed, in fome meafure, the conduct oi independeni 
 nations towards each othei-. The hordes, duns, or 
 tribes of all that part of the world were then hoftiie to 
 each other ; and the Romans, no doubt, made an ac- 
 .ceflion of ftrcngth by receiving fugitives from jullice into 
 their fociety ; there muft have been, neverthelefs, a 
 great degree of public and private virtue, to lay the 
 foundation, and to raife fo powerful an afTociation, as that 
 .of the Roman empire. Tiie Romans not only bo^iuj 
 
 I. 
 
 
 
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 1 
 
 > ly 
 
 •I J 
 
 1/ !■ 
 
 [ 12 ] • 
 
 yery early, to inculcate the principles of morality a^d 
 virtue, but they made a g(V5d charafter the qualification 
 to office, and the preliminary condition of public con* 
 fidence. 
 
 The laws of all civilized nations provide for the pro- 
 tef'ion of charafter, by the punifhment of (lander, as a 
 crime agairjft the public, and by giving a remedy in 
 damages at the fiiit of the party injured, In our laws, 
 the words which are confldcred as flander, are very well 
 defined, and are clafled, as thofe which have a tendency 
 to expofe the perfon of whom they are uttered to a prof- 
 ecution for an offence a;jainft the public, and thofe 
 which injure him, or have a tendency to injure him in 
 his profpeOs, buHnefs, or profeflion. A diftindlion is 
 alfo made between thofe words above defcribed, and 
 Vv'ords which prpceed from fudden heat and paffion ; 
 fuch as calling one a rafcal, liar, villain, &c. Thefe are 
 highly provoking, and frequently produce very fatal 
 confequences between the parties, and which might, per- 
 haps, be avoided by the proyifion of a legal remedy. 
 
 The diftinftion between words proceeding from mal- 
 ice, and thofe which are only from fudden heat and 
 paflion, is loft, when they are committed to paper ; be- 
 caufe that every aft of writing is deliberate, and the 
 party has time to refleft, and is therefore deprived of the 
 excufe of a fudden gufl of paffion or refentment. This 
 diftinftion is founded in the nature of man, and is there- 
 fore a conftituent part of the laws of every fociety. 
 
 But there is yet fomething more in the nature of this 
 diftinftion. Words vanifli in ajr, unlefs the injury real- 
 ly done by fpeaking them has, from peculiar circumftanc- 
 es, an abiding effcft on the character againft whom they 
 are fpoken ; but words written, or figns made to imprel's 
 the fenfes, may do Ji lafting injury. Hence it has been 
 always holden, that ercfting a gallows at a man's door, 
 is punifliable, and fo is the making of any other fign, or 
 pifture, as expreffivc of his dcferving an infamous pun- 
 ifhment, or the drawing figns, or pidures, expreffive 
 of his having committed crimes, or of his being a fcan- 
 ^hlous, abandoned, or wicked man. Thcfe have not 
 
t '3 ] 
 
 per- 
 
 only a tendency ♦ ijure him perfonally, but they hav6 
 glfo a ftrong tenc . 'y to injure his family, and connex- 
 ions, who may have good charaders, even if his is not 
 good. 
 
 This kind of abiifc has no tendency to corred the 
 morals of the man againft whom it is uttered, but may 
 (limulate him to revenue ; and thereby endanger the 
 peace of the fociety. If the man is proveably guilty of 
 crimes, let him be expofed t<i*punifliment, according to 
 the laws ; if there is no proof, he ought not to have a 
 flanderous accufation exhibited without proof, in a man- 
 ner which will not admit of a defence ; and which might, 
 by creating a prejudice againft him, deprive him of a de- 
 fence on a future trial. If the charge by way of libel is 
 only for foibles, or wcaknefs of character, it is a crime 
 againft the community to publifli it ; becaufe no one is 
 without his failings, and if you have a right to expofe 
 thofe of one man, you have a right to expofe thofe of 
 all, and that refpeft yielded from one member of the 
 community to the charafter of another, and wliich 
 forms a ftrong band in focial life, would be fubvertcd ; 
 thebandsof fociety eflentially weakened, examples to virtue 
 and goodnefs, would appear to be generally becl<^uded 
 by the infirmities naturally incident to human kind,ro as 
 to form excufes for licentioufnefs, and apologies for vol- 
 untary errors. It is therefore prudent, on principles of 
 focial economy, to let thofe inftances, which mark the 
 imperfeftion of human nature, remain without com- 
 ment, or public expofure. This is not a new idea, ei- 
 ther in theory or pradbice. We all know the force of 
 example, and the overbearing power of fafliion. We 
 all know the reftraint refultincj from the difapprobation 
 of men whom we ronfider, as having attained to a high 
 degree of perfection in morals and propriety of condud:. 
 We all venerate the eye of prudence, and ftand reproved 
 by the countenance of matured difcretion. Why then 
 fhould an unprofitable and malignant licentioufnefs be 
 allowed to fubvert a moft urgent ftimulus to virtue, 
 and to weaken, or dertroy, one of the moft powerful rc- 
 ft^aiuts upon vice ? . 
 
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 f '4 3 
 
 • All men will fay, that this ought not to be, in a free 
 .^nd equal government j and that every government 
 will, for its own fake, and for the fake of juftice, defend 
 the charafters of all its members and fubjefts, from 
 that kind of flander, which, from mere circumflances of 
 human weaknefs, will expofe a man, and his poiberity^ 
 to contempt and ridicule ; and much more, from that 
 flander, which, when rendered permanent by ink and 
 paper, or by figns and pii^fires, will wrap a charader 
 jln infamy, fpread it abroad in difgiace, and hand it 
 down to pofterity in the habiliments of guilt. Yet it 
 may be, that fome honed advocate for the freedom of 
 the prefs will fay^ that though flander committed tp 
 paper with the pen, ought to be punifhed, yet there is a 
 i'acred refped due to the prefs, and -that the flandei; 
 which iflues from the type is a different thing. 
 
 If that ihnder, ,which comes. from the prefs, is lefs in- 
 jurious than that which comes imme4iately from the 
 quill, it muft be, becaufe that which is printed is not 
 fo worthy of credit, as that is, which is feen in manu- 
 script only. This idea is not only oppofed to the firee- 
 ■dom, but to the ufefulneis of the prefs ; for if it is a^ 
 greed, that what iffues from the prefs does not deferve 
 •credit, merely becaufe it is produced under that form^ 
 then there is a want of confidence in this manner of 
 communication, and confequently the prefs has lofl: aU 
 its valuable ufefulnefs. But a produdion from the type, 
 if the prefs has equal credit with a manufcript commu- 
 nication, as the circle of communication is, in that way, 
 increafed in its diameter, fo the injury is increafed in 
 its magnitude ; and therefore the flander from the pref? 
 is the moft injurious, and moft to be dreaded. 
 
 But flill there may be a queilion, whether a refliraint 
 can be laid on the prefs, fo as to proted the individuals 
 of fociety, in their private capacity, from libels and 
 flander, and yet preferve the freedom of printing, fo as 
 fully to anfwer the intentions of the people, in their at- 
 tempts to preferve the freedom of the prefs, as efl'ential 
 i6 the lupport of a free government. 
 
 The aflirmativc of this argument would reft on the 
 
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C '5 1 
 
 ramt 
 
 duals 
 
 and 
 
 fo as 
 
 at- 
 ntial 
 
 r 
 
 advocate for an unreftrained liberty of the prefs. He 
 would have to prove, that fuch a reftraint,as would protect 
 individual characters from printed flanders,i8 incompatible 
 with that freedom of printing, which is neceffary to the 
 thaintenance of a free form of government. All I can 
 fay, is, that I do not difcover the leaft degree of incom- 
 patibility in the queftion. How can the privilege of 
 ilandering our neighbours with impunity, be of neceffity 
 fo the maintenance of a free government ? To the fup- 
 i>ort of a tyranny, it may be neceffary, becaufe, that every 
 tiling which derogates from the refpedability of the 
 people, increafes the power of the defpot, and ferves to 
 evince the neceffity of a defpotifm. 
 
 Even though the libel is true, yet being unjuflifiably 
 pubiifhed, becaufe it is not done in fupport of a claim of 
 right, or in a legal profecution, the truth of it cannot be 
 given in evidence, as a juflification ; becaufe there is no 
 neceffity for the publication of it. This has always been; 
 the principle in the European governments, from the 
 time of the Romans* to the prefent day. In England 
 we find the principle facredly maintained, from the earli- 
 eft times. In the 5th of Coke's Reports it was decidedV 
 that a libel is a malicious defamation, expreffed either in 
 printing or writing, page 121 ; the fame Report alfo de- 
 termines that to be a libel, which is in figns, or piftures,. 
 if it is defamatory. Skinner's Reports, 1 23, maintain 
 the fame principle. Hobart, 253, has the fame dodlrine ; 
 and Hawkins, 93, and all the later writers and decifions,. 
 give us the lame as law. 
 
 The firft fettlers in this country,- confidered themfelves 
 as fubjedls of the Englifli government, and declared, 
 that they came here as free born fubjefts of the king- 
 dom of Great Britain ; endowed with all the privi- 
 leges belonging to fuch."t And further declared, 
 that no perfon Ihould fuffer in his life, limb, or liber- 
 
 n 
 
 GC 
 
 I( 
 
 • " Vclfi quU ad infamiam alicajus Ubellum aut carmen, aut hiftoriam fcrii)ferif, 
 "■ compofuerit," &c. 
 
 •« By the Roman law, the author or publiflier of an infamous libel might be pun- 
 " ilhed with death if it brought another man's life into danger j but if it did not he 
 ^ was deprived of cajnicity of giving teftimony." 
 
 t Old Coloi:; Laws. 
 
 
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 ty, ^oof/, tia^ne or eftate, under color ot" law, but by 
 ibme exprels law of the general court of this colony, 
 or tbc ^ood and equitable laws of ottrnation, fuitable foi' 
 us, in matters which are of a civil nature, as by th« 
 court here hath been accuftomed, wherein we have 
 " had no particular law of our own/* 
 
 This declaration proves, that the firft fettlers of the 
 country, claimed tlie principles of the Englilh common 
 law, fo far as thefe were fuitable to the fituation of the 
 country, as their privilege ; and they trufted in the wif- 
 dom and pmdcnce of their courts of juftice, to determine 
 what part of thofe principles was fuited to their circum- 
 Ifances. No law wis ever made before the revolution, 
 to give an action for flander, whether the fame was ut- 
 tered in words, in writing, in print, or otherwife ; yet 
 fuch adions have been maintained on the principles of 
 common law, ever fince the firil fetllement of the coun- 
 try. This muft have been done on the idoa of the effi- 
 ciency of the common law, which had been adopted and 
 praftifed upon here. The common law, is a fyftem of 
 commonly received opinions,.efl;abliflied by the common 
 confent of the people, without afts of the legiflature, and 
 defined by practice in the courts of law. The idea of 
 having a government, which does not give a remedy in 
 fuch cafes, muft be the refult of an opinion, either, that 
 charader is of no value, or that each fubjeft is left as in 
 a Hate of nature, by the force of his own arm, to proteft 
 that which is mofl dear to him, to his family, and to his 
 poflerity. Where this is the flate of focicty, there ought 
 to be no law againfl duels^ or ajfajfi nations' ; for thofe 
 who have ftrength and Ikill to do it, ought to be allowed 
 to defend their reputation by open combat ; while thofe 
 of lefs courage, or weaker bodies, ought to be indulged 
 in private aflafUnations, by way of revenge, on the prin* 
 ciple of the lex taitonis. 
 
 It is a faft, that among the advocates for an unreflrain- 
 ed licenlc of the prefs, we find fomc of the moll ref'ent- 
 ful perfous, when they are themfelves, attacked in that 
 mode of flander. It would, indeed, be a flr::nge, unrea- 
 fonublc couclulion, C'at though a man \^'as to have a 
 
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 remedy, in all cafes, againft -written flander, yet that the 
 type (hould render the evil fo lacred, that when the fame 
 libe) (hall be iifued from the prefs, the virtue of that 
 form ihall render the publication of it a juftifiable a£t. 
 
 It may be 'well to examine, whether any of the dec- 
 tlarations, made by the people on this fubjeft, can have 
 a conftrudion tendin? to maintain fo unreafonab!^ and 
 dangerous a hypothensi , 
 
 The conftitution of the United States provid&s, that 
 Congrefs ihall " make no law abridging the freedom of 
 ** fpeech or of the prefs." It would be as reafonable 
 to conclude, that, as Congrefs can make no law to 
 abridge the freedom of fpeech, every one is at liberty td 
 utter, in words fpoken, what flander he pleafes, with im- 
 punity, as to conclude, that becaufe Congrefs can make 
 no law to abridge the freedom of the prefs; every one 
 may be allowed to print and publifti, of his neighbor, 
 what flanders he pleafes to publifh. Biit take thisj dec- 
 laration upon the fame principles of conftruftion, as oth- 
 er declarations, afits and produdions are taken ; that Is 
 according to the fubjeft matter of it, and it can have no 
 other meaning than this, that the meafures of the gov- 
 ernmieht of the United States (hall, at all times, and on 
 all occafions, be open to a public examination in the prefs. 
 How fuch an es^amination is to be conduced, according 
 to the proyifions of the conftitution, is to be the fub- 
 jeft of another feftion^ 
 
 The conftitution of MaflTachufefts, declares, that " the 
 ** liberty of the prefs is eflfential to the fecurity of free- 
 ** dom in a ftate.** But this can never have a ^onftruc- 
 tion, to render ptinted flander againft thofe whom the 
 conftitution has agreed to defend, as juftifi'able ; whert 
 the fame conftitution declares, " that the end of govern- 
 " ment is to furni/h the individuals who compofe it, 
 " with the power of enjoying, in fafety, and tranquillity 
 " their natural rights, and the blefllings of life." To 
 . believe, that men, under the preflure of calumny, and 
 overborne with flander, can enjoy the bleflTings of life in 
 tranquillity, is to fuppofe, that thev have loft all fenfe of 
 
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 [ 18 ] 
 
 honor and reputation, and are no more than favage bar- 
 barians. 
 
 I'hc fame declaration in New Hampfliire, will have 
 the fume conftrudion. Tlie ftate of Penufylvania, pro- 
 viJts for the freedom of writing and printing, but, alfo 
 provides, that he who prints, or writes, fhall be refponfi- 
 ble for fhe abufe of the liberty he has exercifed. \. 
 
 The other flates make the fame declaration, that the 
 liberty of the prefs is eflential to a free government, anu 
 that it ought therefore to be inviolably prefcrved. But 
 none of them intimate an idea, that fuch a due, and prop- 
 er reflraint, as fliall be adequate to the prefervation of 
 the charafters of individuals from flahder, would be an 
 undue reflraint, or by any means amount to fuch a re- 
 jflraint, as would endanger the frcedoth of the govern- 
 ment, or be fubverfive of the principles of civil liberty. 
 
 Since the hiilory of the human .ace exhibits full evi- 
 dence, that in every age of the workU a good narhe has 
 been efleemcd as precious ointment, and as of the high- 
 eft vi^Kie, it would be a very ftrange, and unfortunate 
 circumllance, if in this enlightened day, and in this free 
 ;uid highly civilized country, we could not maintain our 
 governments, without a eonftitutional licenfe to calunmy 
 and detradion. 
 
 The freedom of the prefs, in regard to men in public 
 ftations, is of, at leaft, as much conftquence, as it is in 
 regard to private individuals. The idea, that a man's 
 being in office, renders him a fit mark for the nialignaiit 
 arrows of flander, is no lefs injurious to the rights of in- 
 dividual citizens, than it is to the government at large. 
 It cannot be confidered as of no importance to a man, 
 V'hether he fiiall have an opportunity to improve his tal- 
 ents in his country's fervice ; whether he fliall ihare in 
 the honors of his government, or enjoy the confidence 
 of his nation. Every one has a right, by fair and 
 honcft means, to poffefs himfclf of a place in the admin- 
 ytration of government, and to obtain an office, which, 
 while it renders him ufeful to the public, will promote 
 the honor and happinefs of his family. But if, as foon 
 as he iiJ in office his enemies, and others y have a right 
 
C 19 ] 
 
 IS in 
 man's 
 
 large, 
 man. 
 
 to defame his chara^ei , and to charge him with corrup- 
 tion and wickednefs in liis public condud, or even to 
 reprefent him, through the prefs, as a weak, unfuitable 
 perfon for the office, the befl part of the community, 
 the men, who hold a good character, as of high value, 
 will not run the hazard of holding an office or place ; 
 and of coutfe, the word and moft unfuitable men will 
 be called forward to take the care of the government : 
 and thus by the power of their own (lander?^ gain an 
 opportunity to plunder the people. 7 ;; ; j : 
 
 There can be no man of rtny confideratlon, who will 
 facrifice his own reputation, by advancing it as a princi- 
 ple/ that the prefs (hall be free to abufe and flandpr a 
 man, merely becaufe he holds a public office ; but there 
 are fome who believe, that a libel againlt a mngiftrate, 
 or public officer, may be juftified, by proving the charge 
 in the libel to be truie. There are dec.arati^ns in the 
 conftitutions of Pennfylvania, and the Tenneflee dates, 
 which maintain the idea, that, ** in profecutions for 
 ** publications of papers^ inveftigating the official con- 
 " dudl of officers, and men of public capacity, or where 
 " the matter publiHied is proper for public information, 
 ^* the truth thereof may be given in evidence,'* 
 
 Thefe dates having made this provifion, there can be 
 no do\ibt but that men may puMifli what they diall 
 pleafe within them, on the official conduft of men in of- 
 fice, provided they have their proof ready at hand to 
 maintain the charg6. But even this is a redraint upon 
 the prefs ; for if any thmg is publilhed which cannot be 
 proved, the author and publifher, are liable to profecu- 
 tions and fevere punifhment, I do not know what the 
 law, in this refpeft, ha4 before been in Pennfylvania ; 
 the other date did not exid previoufly to its prelent con- 
 ditution which formed it ; but iji the other dates, fuch 
 a provifion if taken in a Hteral fenfe, un?onnefted with 
 the fubjeft matter, would have been an exprels altera- 
 tion of the common law, as before ufed and praftifcd in* 
 them. 
 
 In the other dates, there may be quedion, whether 
 the liberty of the prefs, guarded in their conditutions. 
 
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 &s an impottant privilege, h^s or has not the famQ 
 meaning as h expreffed in the conftitution of Pennfylva-^ 
 nla. New Hai-ipfhire fays the liberty of the prefs ought 
 to be inviolably preferved. Maffachufetts fays it ought 
 not to be rejirained. Maryland fays the liberty of the; 
 prefs ought to be inviolably preferred. North Carolinji 
 and Georgia fay the prefs ought not to be rejirained. 
 The dates not mentioned, leave it to the public opinionl 
 according to the principles of the common la>y, as ufea 
 and pradifed upon in them, 
 
 As by the conimon law of England, adopted and 
 pradifed upon in the feveral Rates before the revolu- 
 tion, the truth of ^ libel, or written or prpted flander^ 
 could not be given in evidence to juftify th^ publication, 
 the quedion is, whether fuch an alteration is made, by the . 
 declarations recited, or by the nature of the govern- ^ 
 ments in the nation, and in the feveral dates, as (hal| 
 place this principle on a fopting fimilar to what it is, i4 \ 
 the dates of Pennfylvania, Kentucky and Tenneffee. 
 The redraint guarded againd, i^. not defined m any o^ 
 thofe dates, and it is faid, that the liberty of t^ prefs 
 fhall be inviolably prefer ve4, there is do definition of 
 what that liberty of the prefs is. But the main objed is . 
 apparent ; that there ftiall be no fuch redraint upon the 
 printing, and publidiing fentime];its, and opinions upon 
 public men and meafures, as ftiall prevent a free and nec- 
 e0ary commun::^Mon of ideas, for the prefervation of lib- 
 erty and the fup port of the principles of the conftitution. 
 I therefore conclude, that thefe conftitutions have not . 
 changed the common law principle adopted and uniform- 
 ly acknowledged in the country j nor do they differ effen-^ 
 tially from thofe of the other dates. 
 
 When we come to confider the evils, ajid injuries, 
 which would refult from a judification of a written or. 
 printed libel, or defamation againd a public pl&cer, and 
 fee that no public advantage can poflibly arifefrom itj^ 
 every reafonable man" will be contented with the old fet- 
 tled form of principle. V , >^}».. : 
 
 1 here mean to make a didindion between a charge, 
 made in a publication againd an officer, for his havin^^ 
 
 m 
 
21 
 
 % 
 
 potruptly taikefi bribes, qi bay)pga£ted wrong an^ ^n^ 
 juftly from corrupt motives, ^nd the adb which, iT>ay have 
 proceeded either from fuch motives or from others ii)dil'- 
 f:nniinately. Jn the next fe^on, under the liberty of-^he 
 pirefs,ini;egar4 to'^c meafures of government, I mean, 
 tq maintain! that |t cannot be criminal to publifli what 
 the government in fa£ik does, and that therefore the truth 
 of the publication may be . given |n evidence j as a judifi- . 
 cation under the prpncjution. But \ ain npw fpcaking - 
 of ^ cl^arge of corruption, for which a Qiagidrate, or 
 jl^ubUc p^per, ^ay be removed from his ofTice, or puu- 
 ifhed <:r/W«^fV<r, , for the fraud or cpr^uption ; or be 
 difplaced for ^^st^k^j^f^ incapa^ityji pr it^ipropricty of 
 fonduft in his o0;ual capacity. i,\Ti:r:r. 
 
 r^h^re wa^ b^ a queibon, what good a pubUcation, 
 cliarging a public ofpc^i; with ^orri^t^on, can do ? It )ic 
 leels himlelf guilty,; h^ will nev<^r. procure 2^, profecuaoai 
 tor tt^e libel. If ijfie publiiher of thv charjo^u has the ev- 
 idence to I)(lainta^^ it, he may lay it before a legal aiiU 
 propisr tribvup^l, with much lefs trojifbit: thaa h^ (;an go : 
 to the prel^, Unlefs the charge is ^tog^ther grpundki's, 
 and he knows it to be fo, he runs, no hazard by a profecu- 
 tipn before a gnn^ ' jury and a competent court. Even 
 though he ihaU fail, unlefs his attempt is groundic^f;,' and 
 malicious, he is npt liable to damage^. What advan- 
 tage, (:an then refult from printing a charge, which, if, 
 true, can be in(^ed into; by a court of juilice, wh^re*- 
 the man charged ^wiil have a fair chance to defend hinv- 
 ielf, if he is innocent, and the pu^ic ,,t^e,-.a4yantage of, 
 puniihjng him, if he is guilty ? j . .,. , . •;,.'- n -^ 
 . ' If s^ ptlzen has a privilege of confequ^ce enough to 
 contei^d far, it i^ that of a fair, impartial, and candid tri- 
 al >^hen he becomes the fubjei^t of a criminal profecutjon. 
 But if he can be, before, charged in a gazette,^ with the 
 fam&criime, the public opinion will be foreflalled, and 
 ^ therftc^bei^qcertainty of obtaining a fair trial by a jury. 
 The publicatipif of the cprruption, or vveaknefs of an of- 
 ficer's- condu^ <paij bono foundation for his removal ^ 
 for the ga,zejt4eisrao evidence in itfelf, n,or can any court 
 take cognizance of a qharg^ made in (hat manner. It- 
 
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 may be faid, tliat an unrcftrained liccnfe to pubFifh on 
 ihccondudl of public men, would operate a,s a rcftraint 
 upon them, and thus promote the public good ; but this 
 is not true ; an unredrained licenfe to publifh flander a* 
 gainft public officers, would very foon be imprpvedj by 
 men who wifh their removal, and by others who refent 
 the uprightnefs of their conduft, ov who ' have private 
 quarrels with them on other pccafions, in fuch a man- 
 ner that the flandcrs uttered from the preft, though ren- 
 dered of lefs cohfequence, and receivetl as matters of 
 courfe, would, while they wound the fceKngs of him to 
 whom they fhall be pointed, pafs unnoticed as to pu^lic^ 
 profecutions, and anfwer no poiRble' valuable purppfir 
 to the community. ' 
 
 If the officers of government are guiky of comiptioix 
 or fraud, there are tribunals to punim them '; the grahd 
 jury may indict, and the houfe of repnefentatives, on the 
 fapported complaint of an individual, may impeach be- 
 fore the fenate ; and, in nearly all the ftates, thtre rriiiy 
 be a removal from office for weaknefs ind* ini^apacity ; 
 but, where there is no power of removal, the publication 
 of the officer's incapacity can do no good ; and, where 
 there is fuch power, the publication can furnilh no„ 
 grounds for a removal. , . . apSi^ 
 
 Yet it may be aflced, why the truth, in regard to the 
 officer's corruption and fraud, (hall hot be pu"blifhed ? 
 The anfwer is, that if it could be rendered certain^ that 
 nothing but the truth would, under fuch Kcenfe, be 
 publifhed, there might be lefs objeftion to it. For then;- 
 1 he mere publication wouldamount to proof 'of his, guilti,'^ 
 v.hd he might be removed," or otberwife piiniflied with- 
 out a trial. But this idea is againft the tenor of all our 
 conflitutions. No man is to be condemned until/ his, 
 crime has been fully and plainly defcribcd ifo him,' nor; 
 until he has had an opportunity to be heard in M's'own' 
 defence. Should a charge be made in the gazette a-: 
 g;unft a public officer, he would be, if he w^s innocenti 
 under feme neceffity to commence, or tP procure to be 
 commenced, a profecution againft the printer orauthor, 
 oi' againd both, more efpecially if they could give the 
 
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 truth of the charge in evidence to defend themfelves ; 
 othcrvvife he might be fuppofed r() be afraid to bring his 
 cor luft into legal difquifition. This would give a firft, 
 01 principal, magiflrate bufuiefs enougii • > do, vrithout 
 attending to matters of (late. £very tranlaction muifc 
 be opened and explained beiuic a jury, and the fecrets 
 of the flate, in many inflances at lead, be expofed, in or- 
 der to maintain profecutions againft men of no confer 
 quence, but who would hope to rife, even from a con- 
 vidion and punifhment. 
 
 There is therefore, no doubt, but that the declaration, 
 on this fubje^, in Pennfylvania, has a redrained mean- 
 ing, and is not intended to be taken altogether in its lit.* 
 era! fenfe. Whatever a government, or officer of ftatc 
 does in his civil capacity, mud be open, and public 
 a£ts. The prefident's appointments, his embalTies and 
 treaties, the laws, refolves, and orders of the legiflature, 
 the judgments and decifions of the judges and magil- 
 trates, are all public a£ts ; they not only may be, but 
 they ought to be made public through the prefs. If 
 they are wrong, the people ought to know it, if they are 
 right, they ought to be given to the public. But thele 
 ought to be accurately and truly, publifhed ; and there 
 ought not to be a publication, or aflertion of public adts 
 or proceedings, which had never been made or done. 
 When a publication of this kind is made, it is fit and 
 reafonable that the truth fhould be a judification. If the 
 idis done or pafTed are wrong, yet as errors may happen 
 without corruption, the exidence of the adt can be no 
 judification of a charge of bribery or corruption, or of 
 an intent, or combination to overthrow the government, 
 or to fubvert the liberties of the people ; and therefore 
 the proof of the aft can be no judification of a charge of 
 treafon or corruption in them, or hina ,who elFefted il. 
 There can therefore be no reafon to believe that Penn- 
 fylvania ever intended any thing more, than a mere 11- 
 cenfe to publilh what had been in facl done by the gov- 
 ernment, or by its officers, in an official capacity, inde- 
 pendent of any charge for grofs immoralities, corrup- 
 tions or frauds', by them pcrfonally comuiilicd. . 
 
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 ¥0 expfjiin this idea iriote fidly, it may be obfcrv^tf; 
 t^af a kaguc bt combinatidh ih a prefident, governor, 
 or other magiflratei fo fubvfert or change the form or 
 nature of the- government bjr force, and without the con* 
 fcnt of the jiicbple, grvtn in the form vtrhich is provided by 
 <he conftituHori, is treafon of itfelf, treaibn, even thotign 
 there fliould never, in h6i, be an opeii attempt, or aii 
 ftvert aft in purfuance of it. There could, be no necefr 
 fity for j^zetf e piiblicatibns dn this poiilt, beCatlfe & pab- 
 lic profecution for a crjme of the firft magnitude Ought 
 to be immediately commenced. But Ihould there be 
 fiich publication made, on full proof, the "ftature of th6 
 Ciife, and public jeopardy, i«rould julfify it. T^e l«igue,| 
 or combination being fairly dated, the public wouM ht 
 left to deterniine, how far the danger had been extend- 
 ed, and the tribunals of juftice, how hf it amounted 
 to treafon, and whether the nature of the tombination 
 tt-uly ^/tv« through the prefs is not a juft'fiable a£fc: 
 
 When a jiidge, magiilrate, or any officer, civil of ex^ 
 ecutive, fliall take a bribe in his office, to induce him to 
 do wrong, or (hall, by ektortion, take that, which he hag 
 no right to take, in order to induce him to do that,* 
 which it was his duty to do wirfiout, whether any thing 
 IS done in cohfequence of it, or not, it is a crime in it- 
 feif, and is- riot the fubjeft of a gazette elfay, but a mat- 
 ter for aii indiftment, or impeachment, and ought to 
 be taken utr in that way. The aft done in confequenca 
 of fuch bribe, or the cortupt refufal, when it is the of^ 
 ficer*s duty to aft, ar6 diftmft fafts firom the crimes of 
 bribeiy or extortiori. They may be criminal, or they 
 may be only-an error of judgment ;' and as they may", 
 or may not proceed from con uption, fo they are, or are 
 not punifhable as crimes, as they are, or are not conneft- 
 cd with corru|:/t motives. But bribery and extortion, 
 are crimes in themfelres, limply confidered, without a 
 connexion with any Cohfequent aft or denial. What- 
 ever an officer, therefore, does, or whatever he denies 
 to do, may be puhlffhed, without the danger of being 
 tharged wiih a liSd, unlefs the faft publifhed is felfe. 
 But pubHfhing, that he had. received a bribe, is charg- 
 
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 lenies 
 
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 felfe. 
 
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 ing him with a crime in an open and public manner^ 
 where no proof can be o&red againft him, where he 
 can by no means make a defence, and where there is no 
 exifting tribunal to l*ender judgment. 
 
 Should it be faid, that the perfon who is made the fub- 
 jeft of the libel, n\ay have his aftion, or profecution a- 
 gainfl the printer, and that the truth of the libel may, on 
 th'it be inveftigated, the anfwer is, that this would be un« 
 reafonable and unjuft, becaufe it would involve all pub- 
 lic fervants of the people in iitigatious fuits to difcharge 
 themfelves from accufations, which would never be pro- 
 duced againft them by a grand jury, or by a judicial in- 
 queft. Befides this, if there could be one libel, there 
 could be a hundred for the fame thing ; and if thefe 
 publications, had any weight in the public opinion, they 
 would create a prejudice, which would deprive the party 
 injured of a fair and impartial trial. This is in its na- 
 ture, an oppofition to the principle expreffed in the con- 
 ftitution of Maffachufetts, and maintained by the tenor 
 of all the otherS) that no man (hall be held to anfwer to 
 a charge for a crime, imtil the fame (hall be fairly and 
 folly dcfcribed to him. 
 
 The fimple faft of an officer's having done, or refufed 
 to have done, any thing in his office, is not a charge o( 
 eriraihality againft him, yet if it is falfe and malicious, 
 and he fliall be injured, or receive any fpecial damage by 
 fuch publication, he may hatve his remedy by an aftion 
 for the libel, and be recompenfed in fuch fum of money 
 sis a jury fhall adjudge to be adequate. 
 
 The tranfaflions of government, may, in fome inftanc- 
 es be wrong, and even unconftitutional, and yet the au- 
 thors, and agents have no corrupt intentions. Thefe 
 may all be publifhed, and their Confcquences be detailed, 
 and dilated upon, without charging the men who effeft 
 the meafure with crimes. When the earl of Chatham 
 in his nervous language faid, that the earl of Bute had 
 brought the king and kingdom of Great Britain to the 
 brink of ruin, he did not charge him with a crime, be- 
 caufe, as the carl of Bute had been prime minifter, this 
 might all have been done by him, from error and weak- 
 
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 hefs ; and without any corrupt intention. But h^A 
 Chatham charged Bute with having done this, with a 
 traitorous intention to overthrow the government, or de-. 
 throne the king, he would have charged him with a 
 crime : or had he charged hini with a con/piracy againft 
 his fbvercign, or of having corruptly received a Jiipend from 
 another, fovereign, there muft have been an inquiry into 
 the fa£t. Should it fo happen, that when the meafures 
 of any department of the government, (hall be pubiiflied, 
 the people fhall be alarmed, and ^ark jealoufies fhall a- 
 rife ; fhould there be falfe confequences drawn, aiid er- 
 roneous reafonings be exhibited on the tendency and 
 confequences of thofe meafures^ there can be no poiTible 
 way to cure fuch an evil, but by giving to patience,- and 
 experience their perfect work. ; 
 
 There are other cafes, where the exercife of the ;liber- 
 ty of the prefs may injure individual citizens, and yet, 
 the truth of what is publilhed, or the caufes and circum- 
 ilances of the publication, muft: excufe the author and 
 printer from punifhment. K mail allows Iris friends to 
 propofe him to an office under the fuffragjES of the peo- 
 ple ; and others undertake to examine his charadery 
 and to fhew that he is. unfit for the ofhce. In this cafe, 
 there are no deciiions, or legally eflablifhed opinions, to^ 
 guide our inquiries, and we can therefore only rqafpn on 
 tiie queilion, according to what is conceived to be tt^e 
 principles of reafon and judice *, and we may gain un- 
 derftanding from the praftice of nations on the fubjedb. 
 On the one hand^, it will not do to fay, that when a man 
 is propofed as a fuitable character to till an office to be 
 given by the fuffrages of the people, that his incapacity, 
 incompetency, or inability to fuftain it, fhall not be af- 
 ferted with as much publicity as the propofal of his elec- 
 tion is. This would be, to allow any one, however un- 
 fuitable he may be, to palm himfelf upon the people, to, 
 the great injury of the nation. We therefore, have a 
 right, through the medium of the prefs, to communicate 
 our opinions, in regard to the character of every candi- 
 tlate, and to aflign our reafons for thofe opinions. I'lic 
 {ncfd is as free for him and his friends, to combat our 
 
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 iry into 
 leafures 
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 pofiible 
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 ie;iiber- 
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 the peo- 
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 his cafe, 
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 have a 
 nunicatc 
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 ibat our 
 
 opinions, and to fliew that our reafons are not fupported 
 bh good foundations, or to vindicate his charafter from 
 felfe afperfions, tending to fhew him to be no proper can- 
 didate, as it is for us to call his eligibility or competen- 
 cy into queftion. On the other hand, it will not do, to 
 allow men, merely becaufe one is nominated to office, to 
 charge him falfely, and malicioufly, with crimes, and 
 fcandalous conduft, for which he ought by law to be 
 puniflied, or which would, if he is guilty, amount to a 
 difqualification to office. Yet if he is thus guilty, he 
 who proclaims this to thp public, and thus prevents a 
 villain from obtaining the public confidence, to which he 
 has no juft pretenfions, does his coumtry an elTential fer- 
 vice. 
 
 In this cafe the party who may be charged with a li- 
 bel againft another, is taken out of the reach of the 
 principle, that he who publifhes a libel againft another, 
 cannot be allowied to juftify the publication by the truth 
 of the fads. This queftion would be decided on the 
 fame principles, as that where a fuit or profecution is 
 brought before a proper tribunal authorifed to difcufs, 
 and decide on the queftion. The candidate opens his 
 claim to the public, every member of the community 
 has an intereft in the event, the whole people are to de- 
 cide on the queftion, he conftitutes them his judges, 
 and there is no other way to bring the queftion be- 
 fore the public, than by the prefs ; and therefore every 
 one in the community, has a right, in the fame way, to 
 lay his objedions before the people, in order to prevent 
 the election. 
 
 In all cafes of criminal profecutipns, each citi:i!:en has 
 a right to exhibit his complaint againft another, and no 
 adion or profecution lies againft him for it, unlefs it is 
 done malicioufly, and groundlefsly. Whether it was 
 done malicioufly, or not, will appear, generally, from 
 thofe circumftahces which fhew, whether it were ground- 
 lefs or not. So in the cafe of an eleftion, the publlQier 
 of any thing againft the candidate, which in itfelf, is de- 
 famatory and fcandalous, ought to be refponfible ; and 
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 he can juftify himfelf on the truth of the publication,. 
 But if he publifhes the truth only, he ought to be aX% 
 lowed to jufl,ify his conduf); upon the proof of the h&a y 
 ^nd in fuch cafe the plaintiff by his acrioA, will only exu. 
 pofe his own folly and weaknefs, in attempting to gain 
 an office, to which his mifcondud and vices have xeiv» 
 dered him inconipetent. 
 
 .. In thefe obfervations, two leffons are contained. One 
 is, that he, who allows himfelf tq be prc^pofed as a can- 
 didate on an ele£tion, ought to confider whether his 
 charader can bear the teil of public fcrutiny. The 
 other is, that when an ele£Uon i^ in queftion, every one 
 who writes, or publifhes, againit the candidate, ought to 
 have his pfoof ready at hand to meet him before a tri«. 
 bunal of civil jufUce, if he charges him \ntb a crime, or 
 with fcandalous, or infamous condud ; or even, if he 
 charges him with weaknefs, incs^acitv, or a want of ia* 
 tegrity, and thereby de&ats his ele^iqn, it would be 
 reafonable to fuppofe, if this was prov^ to have been 
 done malicioufly, fal&ly, without any £aundation, that 
 an adion would be maintained, and proper damages be 
 given by a jury. 
 
 The liberty of the prefs, as it refpe^s the government 
 and meafures of adnuniflration in a flate, is not fo eafy 
 to be adjufled ; yet, perhaps, a little careful attention 
 will place it on reafonable grounds, and exhibit it on 
 conflitutional principles. 
 
 The United States in all their conftitutlons clearly in- 
 tended to preferve a free communication of ^^ntiments, 
 and opinions, in every flate, as to matters of government- 
 al concernment. The public opinion, in the mpfk ar- 
 bitrary government, has its irrefiflible uifluence and ac- 
 knowledged efFe£t. The great art of government, in a 
 defpotifm, is to gain the public opinion in favour of ty- 
 ranny. This is done by promotions, by bribery, by cor- 
 ruption, and by terror. We have many examples in 
 ancient, and modern hiftory, where the change of public 
 opinion has efFeded a revolution, has totally altered the 
 dynafty of nations, dethroned one family and fet up 
 anoiher ', taken away the father and enthroned the fon> 
 
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 and even changed and rcschanged the form of the gov- 
 ernment. The princes and defpots of the world are 
 afraid to acknowledge the force of public opinion, and 
 yet all their movements are predicated upon a convtdion 
 of its force. In America, we have made the public 
 opinion the guide, and fafety of our fyftems of civil gov- 
 ernment ; but to avoid the errors, and wildnefs, with, 
 which the public opinion has been generally conduded 
 in other countries, we have marked the place of its cur- 
 rent is our civil con^litutions ; that fo it may move on, 
 in the form of frequent elections, curing, by filent votes, 
 the mifchiefs, which in Europe demand the remedy of a 
 civil commotion. There can be, then, no danger in ap- 
 pealing to the public, on the tranfadions of a govern- 
 ment, where the manner and meafure of the public will 
 are thus regulated. The idea that the body of the peo- 
 ple are incapable of judging in the public concerns of 
 flate, is in itfelf an oppofition to the principles of the 
 governments in America ^ becaufe they are all founded 
 in the fentiment, that the people at large, will maintain 
 them on the coniiderations of intereft. It cannot there- 
 fore be wrong to fpread the concerns of the ftate before 
 the people, that their opinions may be formed on the 
 meafures of the adminiftration. And I ihould conceive 
 it to be very dear, and a well eftabliihed truth, that this 
 was all that was intended by the flate of Pennfylvania, 
 when that ftate provided for a juftification, in profecu- 
 tions for libels, from the truth of the fad, as to public 
 men, and public meafures. It is hard to be believed, that 
 it is intended there, that a tale of bribery and corruption 
 of a public oflScer, may be made the fubjeft of a gazette 
 publication, and then be juftiiied, upon proof of the fads 
 charged, when there fliould be a profecution. Th?s would 
 be, to compel every man in public oflice, to engage in a 
 lawfuit with every evil minded printer, or malicious writ- 
 er, on the peril of lofmg his reputation, and compel 
 him to try thofe fads, on an adion for flander, which 
 ought to be tried only on impeachment. 
 
 The prefs ought, by the tenor of all the conftitutions, 
 U) be free in the publication of all the meafures oi the 
 
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 government. The redraints laid upon the prefs in all tho 
 governments on the continent of Europe, was the flimu« 
 lus which produced an exprefs declaration in fo many of 
 the governments in North America. If the meafures 
 exhibited are right, the people will ultimately fupport- 
 them, if the meafures are wrong, they 'vill have their in- 
 fluence in the then next eleftion. 
 
 To explain this principle more fully, we begin with 
 the loweft magiltrate. Whatever, he in faft does, or 
 whatever decifion he /nay make, he does it as a fer- 
 vant of the public, and the people at large ought to be 
 poiTefTed of it. To publilh what he has officia^lly done, 
 IS one thing, and to charge him with having received a 
 bribe to do either right or wrong, is another. The for- 
 mer mav be from error or miftake, but the latter is in 
 itfelf a crime in him, in his private capacity, becaufe it 
 is received by him as a man, to corrupt him as an offi- 
 cer, and thereby to contaminate the ftream of public ju- 
 riiprudence. If the opinion of a judge is publiflied, and 
 a profecution commenced for the publication as a libel, 
 the truth may be given in evidence, becaufe we are all 
 interefted in the opinion and judgment of the judges, 
 and though the opinion or judgment may be wrong and 
 erroneous, yet it is an opinion in which the public have 
 a concern, and therefore there is no impropriety in the 
 publication of it. 
 
 Whatever fhali be done by tlic legiflature, is a proper 
 fubjeck for public communication through the medium 
 of the prefs. The legiflature ought to paSs no aft, which 
 will not bear the public fcrutiny . If their afts are wrong, 
 they ought to be repealed ; if they are unconftitutional, 
 the judges ought to declare them to be fo, and refufe to 
 carry them into execution. Therefore, as the meafures 
 of government are proper for communications through 
 the medium of the prefs, and the publication of them, if 
 truly and impartially made, is for the ule, advantage, 
 and fafety of the ftate, the truth of them ought to be a 
 juftification to the author and printer. 
 
 The publication of what is done by the judiciary, or 
 legiflative power, muft in itfelf be a juitifiable and prop- 
 
C 3' 3 
 
 tr thing. But (hould the printer, at the fame time fugi 
 geft or publifli, that what was done, was done from cor-i 
 rupt motives, or from a traitorous defign to overthrow 
 the conftitution, he ought to be puniflied, imieis he can 
 prove the fa^ of corruption, or the confpiracy or com- 
 bination to deftroy the government. If the writer or 
 printer aiTerts, that the meafiire is unconftitutional and 
 wrong, even though he is miftaken, or wilfully errs, he 
 cannot be puniflied ; becaufe he has a right to have and 
 give an opinion, and he fubmits it to the public, who are 
 a proper tribunal to decide upon it ; and the z& done 
 may be wrong and unconftitutional, and yet not be the 
 €fFe£fc of corruption or treafon^ t«ujw I- >ur.' • • n: " 
 
 , It does not foll(>w that all publications on the meaf- 
 ures of government, which are not true, are liable to 
 profecution and puniihment. The indictment muft 
 let forth that the publication was falj^, and that it wasr 
 falfely and maliciotijly made by the party charged. The 
 malice or evil intention of him, who made, the publican 
 tion is a material part of the charge ; for if it was done 
 by involuntary error or miftake, there is no criminality 
 in it ; and of this the jury are tojudge^ as they do of the 
 charge of fraud in other cafes, or the charge of malice 
 on a fuit for defamation, or a malicious profecution, or 
 the charge of malice aforethought, as a conilituent part 
 of the crime of murder. But if the falfe publication 
 proceed from malice to the government, or its officers^ 
 or from a feditious tefnper againft the powers of -jhe 
 ftate,and the fad publiihed be in itfelf falfe, there can be 
 no reafon why the author and publiiher ihould not re- 
 ceive adequate and condign puniihment. 
 
 The late a6t of Congrefs was intended to have been 
 paffed on proper principles, and the Congrefs had an 
 undoubted right to pcJs an ad againft feditious libeh ; 
 but it will not follow from thence, that the ad was 
 drawn on the rules of prudence, or executed with that 
 dil'cretion which might procure the confidence, and 
 merit the fupport of the people. 
 
 . Some of the men who contended againft it, refted 
 their oppofuion too much qu pri^iciples quite incompatif 
 
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 ibie with every fpedes of a free govemmeot; and 
 though the a€l was finally differed to expire,^ yet thit 
 chrcumilance can furniih no argument againft a conftitu* 
 tioaal reftraint on the prefs. 
 
 The ad of Cong, .fs v is made in June 1 798. It wsi 
 to continue in force until the third of March, 1 801. Tht 
 lecond fe^tion enaded, '' That if any peribn (hall writer 
 ** print, utter or publiih, or (hall caufe or procure to be 
 ^ written, printed, uttered or published, or ftnH know* 
 ingly and willingly afTift or aid in writing, printing, 
 uttering or publifhing any faUe, fcandalous and mall* 
 cious writing or writingti againft the gov mnient of 
 the United States, cr either ho\^ of Corigrefs of the 
 ^Jnited States, or the prefident of the United States, 
 with intent to defame the faid government, or either 
 houfe of the iaid Congrefse, or the faid prefident, or 
 **■ to bring either of them into contempt or difrepute ;- 
 ■^ or to excite againft them or either or any of them^ 
 <* the hatred oi the good people of the United States,- 
 ** &c. fuch perfon b^ng thereof eonvided, (hall be pun-* 
 ** ifhed by fine, not exceeding two thoufand dollars, or 
 ^ by imprifonment, not exceeding two years." 
 
 There is a fe£tion providing that it (hall be law&I for 
 a defendant, when under profecution for writing or pob^ 
 lifhing any libel, to give in evidence in his defeflce the 
 truth of the matter contained hi the publication charged 
 as a libel. 
 
 . By this aft, the crime is publifhing zny fal/e,/camfa>' 
 hus and maliciout writing. Tins claufe, taken m its litefat^ 
 fenfe, excludes the neceflity of a provifion for giving the- 
 truth in evidence in the defence, becaufe the writing' 
 muft be in itfelf yiii^, in order to make the publication a 
 crune ; and therefore it would be natural to juftify the 
 fact by the truth. But though the fads alferted might 
 be true, yet the conclufions drawn from them might not 
 be fo, of this the jury were made the judges, under the' 
 diredion of the court. The crime did not feem to be 
 ctnnpleted, unlefs the publication was made to defame 
 the Congrefs, or one branch of it, or to d'?fanie the pref- 
 ident, or to bring him or the fenate ©r houfe into con-- 
 
 
 I 
 
[ 33 !1 
 
 teirtpt or dlfrq)Ute{, or to excite agairift: him, or them* 
 the hatred of the people. Thus the adl provided for 
 the prefident and Congrefs, leaving all the other officers, 
 and departments of government, without protedion 
 from (landers and libels, unlefs they could have found 
 prote^ion in the common law. The common law 
 ivould have afforded equal proteQion to the prefident 
 and Congrefs, as it did to the others. 
 
 This ad feemed to have its origin in ah ipprehenfionj 
 that the prefident and Congrefs, or a major.'ty of the lat^ 
 ter, were in danger from their fellow*citize:is, or fome 
 of them, and was received, however it might have been 
 intended, as a meafure adopted to maintain a party in- 
 fluence long enough to gain fome point, contemplated 
 its of great political importance. 
 
 The writing and publifhing falfely, arid malicioufly, 
 againfl any one officer in the national government, a li* 
 bel, with an intent to fvlbvert the government of the 
 United States, to bring it into hatred or contempt, or in 
 that way, wilfully, and wickedly, uttering, and publifh- 
 ing any falfehood, in faft. With an intent to alarm the 
 people, or to caufe them to withdraw their love and fup- 
 porl from the governtnent, ftiufl hi itfelf be a crime a- 
 gainfl the government, and ought to be punifhed. But 
 the libel againfl a prefident or Congrefs, or officer of the 
 government, mufl be in regard to fomcthing faid to have 
 been done by him, or them, officially, or otherwife, the 
 government cannot be injured by it, and it remains as an 
 offence againfl him, or them in their private capacities, 
 and they are, as to a remedy, on the fame foot of priv- 
 ilege, and point of protection, as other citizens. Where 
 the private reputation of an officer of the general govern- 
 ment is injured, or his property trefpalTed upon, he has 
 his remedy as a private citizen. But where his official 
 condud is libelled, malicioufly and falfely, laith a view 
 to injure the general government, or where he is oppofed 
 in the exercife of legal, official authority, derived from 
 that government, th'ere the injury is to the government 
 itfelf, and it ought to be confidered as pofTefjling powers 
 for its own defence and fupport. ' 
 
 I 
 
fl 
 
 ! >. 
 
 U- ., 
 
 V;: 
 
 ■V 1 I 
 
 r 34 :i 
 
 Nothins; could have been neceflary, nor is there any* 
 thing more neceflary at this time, than to pafs an ad^ 
 that if any perlbn fhall, by writing, printing, or in any 
 other manner, utter and publifli, any falfe, malicious,' and 
 fcandalous libel of and concerning the legiflature of the 
 United States, or of and concerning the conduft of any 
 member of the fame in his legiflative bufmefs, or of and 
 concerning the prefident, vice prefident, or any oflicer 
 or fervant of the government, in regard to his official 
 conduct, ivitb an iuteni to fubveri, or iveakcn the govern-* 
 7ncnt he fluill be puniihed by fine or imprifonment, not 
 exceeding, Sec. 
 
 There is yet one point attended with more difficulty.- 
 The truth aay be published in regard to the meafures 
 of the admiiiiilration of Hates, and yet fuch falfe con- 
 llrutlions may be given to them in the publication^ as 
 will alarm the people, raife a jealoufly agiund the flate, 
 breed I'editlon, and tend to bring on an infurretUon. 
 The quefUon is, as this is an evil, how it can be prevent- 
 ed by the governnient. * ■y.'.k 
 
 Every man has a privileg(? to reafon on the meafures of 
 government. Some reafon in one way, and fome in an- 
 other ; one party may be right and the other may be 
 wrong ; but if he who happened to be wrong in his rea- 
 rming, coultl be puniihed for his error, there would be an 
 end of all free inquiry on the meafures of aJuiiniftration, 
 Some men may fornx wrong conclufions with very hon- 
 ed hearts, while others form the fame from wrong heads 
 and feditious minds ; but there can> be no way, in which 
 a juft, and exa£t fcrutiny can be made, and therefore, 
 there can be no punifliment in fuch cafes, without a dan- 
 gerous infringment on the right of private judgment, in 
 public concerns. 
 
 The evils attending thefe errors, whether involuntary 
 or corrupt, are not fo dangerous as they may be at firfl 
 conceived to be. The writer, or the publiflier lays the 
 fad of the meafure, fairly and fully before the public, 
 and then ofTcrs his opinion, as to its eiteds and conle- 
 f[uenccs. If he believes the ad, declfion or meafure, to 
 be unconditutional, he lays fo, and exhibits his reafous :: 
 
 
 
[ 35 ] 
 
 the body of the people have the conftltutlon In their 
 hands, they hear the renlbns of others on the fiibject \ 
 and they can ultimately form an opinion for themreives, 
 and they generally decide with ability and ]5ropricty ; 
 becaufe they have no corrupt motive, no finillcr end in 
 view, nor any wrong bias from interell on their minds. 
 If he fays that the meafure, though conftitutional, has a 
 tendency to injure the public weal, yet if he alligns no 
 reafons for his opinion, the public will not regard him ; 
 and if he does, others will canvafs his reafons, and ihci 
 people will finally be able to form a correal and proper- 
 judgment on the cafe. 
 
 It will fometimes happen, that mflammatory pieces, 
 with little or no foundation, will have a warm efted on 
 the public mind. Eleftions are fometimes procured and 
 fometimes prevented in this way ; and good men are 
 frequently grieved at the efFefts of a mifunderflanding in 
 the public opinion ; but fuch is our (late of imperfec- 
 tion here, that we can have no good, which is not tinc- 
 tured with evil. This is necelFarily incidental to the 
 freedom of the prefs, as eftabliflied and contemplated by 
 all the conftitutions in our nation ; and being an evil iu 
 itfelf of Icfs magnitude, than what would refult from a 
 reftraint on the freedom of the prefs in fuqh qafcs, it 
 muft be endured. 
 
 There can be no ftandard, befides that of the public o- 
 pinion, ellablifhed to decide on the reafonings and con- 
 cliifions, which nien and parties will draw, in adverfe or 
 diverging lines from the fame premifes. Therefore to 
 punifh a man for rcafoning wrong, would be to deny 
 him the privilege of reafoning at all : and to deprive 
 him of this privilege, in a matter, wherein he has an in- 
 tereft in common with the relt of his fellow ciiizens, 
 would be to deprive him of one of the molt valuable 
 rights fecured by the form of al.l our governments. It 
 would be like the cliiim of that authority whigh burned 
 one philofopher for fuggefting principles, the belief of 
 which ultimately crowned another with laurels : or that 
 . which effeded the execution of another philofopher, for 
 fiiggciwing, that the earth was not a.phnc but a ^Iol;j. _] 
 
 »n 
 
, f 
 
 1/ ^?' 
 
 n^' 
 
 n 
 
 C 3<5 ] 
 
 « 
 
 Whc^rever one man, or one body of m^n c4n txtdt 
 and maintain a coercive tribunal in favor of their own o* 
 pinions, and in oppofition to that of thofe Who differ from 
 them, there is an end of all free inquiry : and the right of 
 private judgment no longer exids. The world has feen, 
 does now fee, and will forever fee, melancholy inilances 
 of this truth, The wife man fays, that which hath been 
 will be again ; and there is nothing new under the fun. 
 A furvey of the whole Muflulman empire rifes tip in tef» 
 limony of this fadt. Wherever the Roman catholic re-^ 
 ligion has had a full perception of its confequences, the 
 cfTecl has been the fame as that of Mahomet in Turkey. 
 Thus we fee Italy, the garden of Europe, has become 
 the imbecile fport of neighboring powers, from a >^ant 
 of mental energy ; and by reafon of that torpid weak- 
 nefs of nerves, which never fails to be the confequcnce 
 of indolence of mind. We behold in Spain, the afs 
 crouching between two burdens ; the churcli and the 
 throne. The former has a fervile dependence . |>on the 
 latter ; and in due form of law, lays the people, bound 
 hand and foot, on the altar of fuperftitjon, that the fac- 
 rifice may be divided between the church and the Hate. 
 7'his fame kind of tyfariny was maintained, ina ^'»:at de^ 
 •gree, under the late French monarchy ; but as i^ \cul- 
 cated a fuperflitious regard to the monarch, as to the 
 Lord^s annintedjit was neceflary to overthrow the church, 
 in order to overturn the throne. .: r^ , -v-m < 
 
 The holy reli^^jion, which was by thefe pbwers vlldly 
 corrupted, and profanely debafed, contains no authority 
 for fuch tyranny. 1 he whole tenor and fpirit, as well as 
 all the precepts and examples of it, are hi favor of the 
 rights of confcience. We are there taught, to call no 
 man mafter in matters of confcience, for one is our 
 mafler even our Father who is in heaven. The whole 
 hofl of martyrs, are now bearing teftime ny in favor of 
 this right. The flates of America have done themfelves 
 infinite honor in recognizing this facred principle, gi^-en 
 to the human race on their creation, and more fully ex- 
 plained in that divine fyftera which hath brought lii'c 
 «unj immortality to light. -u"! r-:, 
 
 Vt 
 
\l 
 
 vildly 
 
 ithoTity 
 
 well as 
 
 of the 
 
 call no 
 
 is our 
 
 whole 
 
 "avor of 
 
 nifelves 
 
 given 
 
 lly ex- 
 
 Iht lU'c 
 
 '9 
 
 C 57 ] 
 
 . There never has been an inftance, of tlie freedom 
 of en<iuiry in matters of religion, being reftraiixed, 
 where the civil liberty of the people furvived it. Nor 
 has there ever been an indance, of the people being 
 denied the right of enquiry on the principles, and, 
 adminidration, of civil government, where the rights of 
 confcience have bo a preferved. Neither of thefe can 
 Aibfilt without the other. I do not mean, that, becaufe 
 a man has a right to think for himfelf, he has a, 
 tight to vex and dillurb others in the exercife of the 
 lame privilege. The whole of my argument tends to 
 prove the reverfe. The idea of each man's having a 
 tight to think for himfelf, fuggefts in the ftrongeft man- 
 ner, that in this refped, all are equal, and that it will be 
 unjuft in one, to fubvert the right of another. 
 
 The laws made againft blafphemy, and profanity, 
 when fully underftood, and properly, and cautioully ex» 
 ecuted, are quite compatible with theie ideas. The laws 
 againft blafphemy, at leall any one which I have feen, al- 
 low every one to have his own opinion in regard to the 
 incomprehenfible author and creator of the univerfe. If 
 any one has a belief that there is a Being, who has created 
 all things, and on whom he himfelf is dependant for his 
 exiftence, he cannot think of him but with awe and 
 reverence. If all the community are in this belief, they 
 can htive no right to grieve and vex each other, by con- 
 tumelious reproaches of him. If the greater part of the 
 Community have this belicl, nd the reproach and ridicule 
 of it, are not elTential to the happiiicfs. and comfort of the 
 •minority, they ought to be reftrained from riie exercife 
 of fuch contumely anii reproach, as will afHi^, or dif. 
 •turb the majority. '1 iiis can be no injury to them, be- 
 caufe they are left to have, and enjoy their ovvq opinions 
 in peace and in quietnefs ; they are left to the exercife 
 of the right of defending them in argument, by neceflary 
 means, only avoiding that mode of converfation, which 
 is unneceflary to them, injurious to others, and vexa- 
 tious to men of decency and good manners, who are not 
 careful about any religion. 
 
 The laws which are made to prevent blafphemy, againft 
 
■ » 
 
 m 
 
 1 33 1 
 
 what chriftians denominate revealed religion, are on tht 
 fame principles. The contumelioujly reproaching of God, 
 Jefus Chrifl, or the Trinity, or the books of the old op 
 new teftament, is a crime. But the opinion which any 
 one may have, on tliefe fubjefts, or any arguments he 
 may offer in fupport of his opinion can be no crime a- 
 gaihfl the laws. Yet there can be no reafon, why one 
 man fhall be allowed to treat the opinion of a majority 
 of a community, on thofe original ideas of religion, with 
 contempt and ridicule. It can by no means be proof of 
 the truth of his own opinion, of the gravity of his ow" 
 mind, or the ferioufnefs of his own inquiries to treat the 
 religious opinions of his neighbors with contumely and 
 reproach. ' ■■ ,.i' ...i.'.' "* . :... ^'.i!-; '-.;:." m j; J).>*'^c 
 
 A fociety of men may believe with well grounded rea- 
 fon, that the apprehenfion of punifhment in another ftate 
 of exiftence after this is terminated, will lay a powerful 
 reftraint upon the actions of men here, that it will have 
 a tendency *to prevent fecret crimes, or the crimes open- 
 ly done, under the hope of proteftion from fecrecy, and 
 that it may have a tendency to eftablifh truth, by the 
 prevention of falfehood and perjury. This idea is as 
 old as the world itfelf, and all nations have adopted it. 
 The United States have univerfally adopted the fame o- 
 pinion, and it has been by the people here, counted up- 
 on as a main pillar of their teveral governments. There 
 may be phibfophers in the prefcnt day, who ridicule thfe 
 idea, and afiert that death is an eternal fleep. It is weli 
 for the world, in my opinion, that there are fuch men ; 
 for when the levity of their characters, and the atrocity 
 of their anions are feen, we are convin<:ed that the world 
 would be a mod miferablc place of exiftence, if all men 
 were to adopt their fentiments. Though thefe men, like 
 other evils, may be ufeful in attaching mankind more 
 facredly to what is right and good in itfelf, yet Hke oth- 
 er evils their opinion may, and ought to be reftraincd 
 within fuch bounds as may not injure, or overthrow the 
 focial compaft. If they pleafe themfclves with the idea 
 of a termination of their exiftence in the article of death, 
 yet if thry commit no crime againft the laws of civil fu- 
 
 ,s ■, 
 
I ai 
 
 
 C 39 ] 
 
 dety, no body can punifli them. If their mode of belief 
 takes off their reftraint on thf^ir atlions, fo far as to in- 
 volve them in guilt, they mud fulFcr like other men* 
 The promulgation of their opinion can be of no confc- 
 quence to them, becaufe if the end of this life is the end 
 of our exiftence, there can be no neceflity for our urg- 
 ing each other to receive opinions in which we can have 
 no poflible concern, and confequently, in which, as men, 
 on their own hypothefis we, or they, can have no intcr- 
 eft. The conclufion is therefore reafonable, that when 
 the majority (hall conceive a reftraint upon contumelious 
 treatment of a generally received religion to be necefla- 
 ry, which reftraint can do no injury to one individual, 
 but may advance the intereft and fecurity, and promote 
 the happinefs of the whole, his own included, they have 
 a right to lay it. -f-^-ffi, . t p-^ -^r^ -. . . ■. 
 
 The conclufion by me made from thefe arguments, is 
 fnnply this, that in all matters of religion, and civil au- 
 thority we have the freedom of the prefs facredly affur- 
 ed to us by the conftitutions of governments which we 
 have formed ; or, in other words, that while we have 
 yielded to the community, the power of reftraining us, 
 10 far, as is for the promotion of our own fecurity and 
 happinefs, with that of all enrolled in the fame focial 
 compadt, we have referved the privilege of exercifmg 
 fuch rights, as will have a tendency to preferve from 
 corruption, that fyftcm, by which that power is ceded, 
 and by which thefe rights arc fecured. 
 
 Produ«^ions addreffed to the underftanding of man- 
 kind, on the fubjeft of civil government have never been 
 deemed to be feditious ; but eflays made on falfe fads 
 to influence the minds of the people, to create unnecef- 
 fary jealoufies, and to dilaffcdt the people to the govern- 
 ment, always have been, and no doubt always will be, 
 held as highly criminal. 
 
 Reafoning with decency on the being and attributes 
 c>i God, on the divinity of J el'us Clhriit, or the etiicacy 
 of the Holy Ghoft, or the evidence of the bible, have 
 never been confidered as ciiminul,, but ccntun-.clioufiy 
 reproaching the Deity, reviling the fcripturcs, kc. have 
 
 V 
 
 
t 40 ] 
 
 it 
 
 I 
 
 ■ I 
 
 u 
 
 1/ ^ r 
 
 been, and no doubt will always be confidered as cnhil-* 
 nal in thefe governments ; becaufe fuch conduct tends 
 to diflblve the bands of civil fociety, and of courfe, to 
 fl4)vert that feeurity to the people, which their govern- 
 ments were formed to eftablifli. 
 
 Ft may, nevcrthdefs happen, under the beft form of 
 government, that the means provided in the con- 
 ftitution for its own fupport, may be pi-oftitutedj 
 either in a£ls of legiflation, o in judicial proce- 
 dures, to bafe and Unworthy purp^ fes. There can be 
 fio neceflity for a civil government, when the imperfec- 
 tion of human nature is done away ; and while men 
 govern men, there will of courfe, be imperfedions and 
 errors in the adminiftration of government* When 
 parties tun high, the ruling majority, ever right in theif 
 own opinion, can never conceive that the rod in thei# 
 hand is too heavy for the flioulders of thofe who oppofe 
 them. They wiU not refleft, that thdr feverity has a 
 dire€l tendracy to change the public opinion, on which 
 they ftand ; and that thofe, whom they now fcourge, 
 tnay have an opportunity to lay the lafti on the'r fhould- 
 crs in turn. 
 
 The late 2c€t of Congrefs a^ainft feditioft was the off* 
 fpring of a warm party ffwirit. The execution of it feem- 
 ed to be tinctured with the fame baneful drug. Whil« 
 fome were punifhed for abuTmg the prefident, there was 
 no provifion againft abufing the vice prefident ; but this 
 was done in the moft licentious manner. The way to 
 make intereft, and to gain an influence with fome of the 
 men who promoted the fedition law, was to violate its 
 principles, by arbufing fome of the principal officers of the 
 government. While fome were puniflied for abufing 
 the fcnate, as a body, others were attempting to make 
 their way into office, by viUifying, ridiculing, and libel- 
 ling the members of that body, who were in the minor- 
 
 The n£t, was in itfelf, pointed, and particular, which 
 no doubt produced thofe effefts in its execution, that 
 put an end to its exirtence. No aft was neceflary for 
 any other purjx)fc than that of providinc the mode and 
 
t 41 ] 
 
 minor- 
 
 which 
 n, that 
 ary for 
 
 <^ukntum of puni{hment. One of the judges obferved^ 
 in oner of the trials for a libel, that there was no criminal 
 <iommon law in the United States. He could not mean 
 by this, that a nation had formed a government, without 
 (he powers of protecting itfelf. If he intended, that the 
 government had powers to proteft itfelf, but that thefei 
 powers muft be firft defined by the legiflature, before the 
 judiciary authority could condern themfelves with them, 
 he involves hinifelf ill this difficulty, that there is no where j 
 in the catalogue of powers given toCongrefs,any one in re- 
 gard to fedltion. If he fays, that the reftraint of fedition is 
 hcceflary to the prefervation of the government, and that 
 therefore the pbwer is given by implication, the anfwer 
 is, that whatever has a tendency to overthrow the con- 
 ftitution and civil authority, is a crime agairift the gov- 
 ernment, and may be puniined by a reafonable reftraint j 
 and that fines, imprifonment, and fureties for good be- 
 hivior are reafonable reftraints, and may be adminif- 
 tered without any act of Congrcfs for the purpofe; If 
 thefe are not adequate, the legiflatilre of the nation may 
 iificreafe the puniftiment. 
 
 *• There never was a necefHty for Congrefs to do any 
 ihirig rtiore than to provide for the punifhment of fedi- 
 tion, without an attempt to define it by ftatiite.. This 
 crime, in thi^ refpeft, is like treafon, murder and other 
 piFences, which are defined by precedents, and by the 
 nature of things, and can never fubmit to a legiflative 
 defcriptioni'f Congrefs ought therefore to have fimply 
 provided a punifhment for fedition, and feditious libels, 
 without faying .-rtore on the fubjeft. If they had thought 
 it neceffary to make provifion, as was done in that 
 aft, that in all cafes for a libel againft the goverrtrtient, 
 or any officer of it, for mifcoriduft in his official capacity, 
 With an intent to injure or to oppofe the government, the 
 party charged fhould be ailciwed to produce evidence of 
 the fafts contained in the libel, in his juflification, they 
 might have done it. But this ought to be reftrained to 
 luch fafts only, as the officers of government fhould coiu^ 
 mit in their public capacity, and not to fuch matters as 
 would be difgraceful, and iiumoral in them, as private 
 
 F 
 
<i' ., 
 
 [ 42 n 
 
 «icn, To allow every one to produce evidence tfiar at 
 judge or magiftrate had given a wrong judgment, and 
 to ufe thaty as proof that he had received a bribe, would 
 be inadminible. To prove that a prefident had made a> 
 v-Tong appointment, or that a member of the legiilature 
 had givcQ a wrong vote, and to c£'er this as evidence o£ 
 corruption, would be unreafonable and unjud. 
 
 The conduQ: and tenor of ejcecutive and judicial ap- 
 pointments, ought to be the fubject of fcrutiny. Where 
 the appointments are befliowed upon perfons of a partic- 
 ular way of thinking, or on the leaders of a party, we 
 nave a ju(l right to difcover from this, the drift of the 
 adminidration, and as clear a privilege openly to pro* 
 mulge the truthy as to the fads of appointments, and to 
 give out our Opinion of the tendency of the meafuresr 
 Where there is a diviHon of federalifh and democrats, as 
 the parties are now called, and the prelkient, or the gov- 
 ernor will make ah attachment to the one party or the 
 ¥)ther a> qualification to office, and a condition for a 
 pl^ce, we have a right ta charge him with being of that 
 party^ Nay, further, \\»e have a right to condemn the 
 praftice as being a fpecies of cornlption,^ deftrudive ta 
 the rights of private judgment on public concerns ; and 
 as a mode, which cannot fail to create fadions, and to 
 maintain dangerous and bitter parties, a« long as the 
 government mall exifl. 
 
 The patronage of the prefident, as has Been alTerted 
 by fome politicians, mult be maintained by fome means 
 or other, and there are no other than thofe of filling offi- 
 ces and places ^vith men who are devoted to his opinions. 
 
 When this idea is properly examined, it will appear 
 to be quite unnaturaltoour fyflems of civil government, 
 and derogatory to all the principles, which ha\ been 
 advanced,^ in order to maintain our late glorious revolu* 
 tion. h will appear to be a legitimate offspring of that 
 tyranny which has fo often deluged the world m blood.- 
 It is introduced at no other door, than that, which opena 
 to receive the dangerous charge againfl the people of A- 
 merica, that they are incapable of preferving and enjoy* 
 ing a free goveniinent. 
 
 ti J 
 
/ < 
 
 open* 
 ofA- 
 
 t 43 J 
 
 'The prefident can have no intereft feparate from that 
 of the people. The idea of bribing, by appointments, 
 a part of the people, to defend the interefts of the whole, 
 IS abfurd and unnatural. An honcfl man and a patriot^ 
 will premote and defend the intereft of his country, 
 whether he is in office or not ; .while a man of no prin- 
 ciple, he who afts or engages for the fake of an of- 
 fice, will betray his country, and fubvert the liberties of 
 the people, where it (hall be for his finifter emolument 
 to do it. The conftitution is to be maintained, not be- 
 •caufe it is the fource of honor and emolument, but be- 
 caufe it is eftablifhed by the nation for the public hap- 
 pinefs and fecurity. 
 
 There can be no incompatibility in fheinterefts of the 
 'ftate governments, and that of the United States. Thic 
 latter, as now eftablifhed, fmks of courfe when the ftate 
 gove' aments (hall ceafe to exift. They will become the 
 . defcroying angel of each other, for as foon as that i.* 
 overturned, the preferving balance will be done away, 
 and they rauft firtk to ruin by their wars and depreda- 
 tions on each other. '*' J'* f'^'W ,« ; .r i 
 
 How far the idea of creating an intereft, and main- 
 taining an influence by a prefH.entidl patronage, in the 
 late adminiftration, was adopted, I do not undertake to 
 determine. There are charges openly made on this 
 /core by men in the intereft of the prefent adminiftra- 
 -tion, and the fame is as warmly reciprocated. How far 
 cither charge is true, the public muft judge for them- 
 ielves. 
 
 * It has been faid that the prefident. cannot adminifter 
 the government on his own principles and plans, unlefs 
 his agents and fervants fball coincide with him in opin- 
 ions upon civil and political fubje^s. This ^fTertion, in 
 the latitude it is intended, cannot be true, or be confift- 
 «nt with political propuety. Could this aflertion be 
 maintained, every prefident ought to exhibit his political 
 creed, not that the people might know his fentiments, 
 and correft them, as-by the ftandard of public opinion, 
 -but that they fhould implicitly conform themfelves to it, 
 as to the fixed, unerring and unalterable ftandard of po- 
 
 I 
 

 < I 
 
 ■V . 
 
 .'■-t ! 
 
 I 44 ] 
 
 Ikical truth. We fiiould all be releafed from tht labor 
 of forming opinions for ourfelves, and have only to em- 
 brace the creed of the chief magiftrate. Thofe who ex- 
 pert to live by the preHdent's patronage, finding the of- 
 fices all full, will begin to intrigue for a new prefident, 
 whofe political principles ^re in dired: oppoiition to the 
 one in office. The men who view themfelves as candi:; 
 dates, will of courfe open a controverfy with him, and 
 either explicitly, or implicitly, form contrails to pro- 
 mote the leaders of their party. Thus the conditution 
 will be forfaken, and the plans and machinations of par- 
 ties form the plan of adminillration. 
 
 Mr. Adams in his book, intitled the Defence of the 
 American conliitutjons, obferves very truly, that a 
 majority may be a fadion- Whatever number of men 
 fliall affociate together, for any other purpofe than that 
 of maintaining the government on the principles, ^nd by 
 the forn^s of the conllitution, is a fadtion, What necef- 
 fity can there he for aflbciations, either by exprefs com-. 
 paft, or by implicit intrigue ? We are all united in a 
 form of government, which interefts all alike, and 
 which mull he fi^pported by the will of the whole, 
 Does any one fay, that parties, intrigues, armies and a 
 feparate ordgr of men^ are neceflary, becaufe the peo- 
 ple have not viitue enough to govern themfelves, in an 
 eledive republic ? He who fays this, is an antifederalijiy 
 artd commits trmfon agairji the conjiitution, ? 
 
 The agents and fervants of the government, and the 
 fecretaries of the departments, foreign minifters andcon-^ 
 fuls, the executive and judicial officers, and the men em- 
 ployed in the bufinefs of legiflr tion ; the fecretary of 
 ftate, the fecretaries of war and of the n«ivy, arp proper- 
 ly confidential friends c| the prefident ; and will of 
 courfe, be men whofe opinions are coincident with thofe 
 of him who appoints them, The forpign minifters and 
 ^onfuls are men whq are undei the prefident's confiden- 
 tial orders, and ought to be v ith him in political fenti- 
 ments. The legiflators are fo fi r from being in the rank 
 of agents of the chief magiftrate, that he is by the form, 
 of the conftitution cojifidered as their agent, to carry in, 
 
r 45 ] 
 
 t9 cffe£k the aSs they pifs» The judges and judicial ofl 
 i;cers, the executive Oificers, including in this defcrip* ! 
 tion the ofHcei:^ of the revenue, are not his agents an4 
 fervants, but are the agents and fervants of the nation 
 according to the eftabliflicd form of the government 
 and the laws of the land. This diftinftion is of great - 
 importance under the form of a free government ; be- 
 caufe'the immediate, confidential friends of the prefident 
 are to be guided by his pleafure, as diftated by him a- 
 lone, while the judicial and executive officers are under 
 the diredion of the laws. Thefe are perfonally amena- 
 ble for their own condud, and refponfible for every de- 
 viation from the legal path of their duty : nay, further, 
 the exprefs orders of the prefident himfelf, is no juftifi- 
 cation fqr their negled of duty, or error in proceeding. 
 
 Since the laws alone are to govern the condud of 
 thofe officers, of what moment can it be to the people, 
 whether their opinions coincide with the prefident, ei- 
 tjier in religion or politics. To. the prefident it may 
 be of confequencc in an enfuing eledion, becaufe 
 their being in office may give them an influence in 
 his fupport. It is of confequence to the people that 
 the officers of their government fliould be well inform- 
 ed, and upright men. If they are fo, and the prefident 
 is a good man, and a fuitable perfon for his elevated 
 ftation, they and he cannot differ in fentiment ; but if 
 he thinks, and reafons erroneoufly, it is of confequence 
 that they Ihould not unite with him. It is therefore, 
 a falutary, and jufl; conclufion, that no man ought to 
 be denied an office in the judicial, or executive line^ 
 qr be removed from fuch office, becaufe his opinions 
 and fentiments, are not affimilated to that of the chief 
 magiftrate. ,i, . lOt^^^^fej > 
 
 Men who are oppofed in opinion to the government, 
 as it is eftabliflied, cannot be fafely trufted with its ad- 
 miniftration. Thofe who have no confidence in an c- 
 ledive republic, but believe an hereditary monarchy, 
 and a line of defcending nobility as neceffary, can never 
 adminifter an eledive republic with firmnefs and patience. 
 Thofe men who are oppofed to all fettled rules, and a- 
 
 
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 vafe to all the masdms, which experience an^ ^dom 
 h«ve eAablifhed, can never adminifter any government 
 -well. Yet this is a cafe very v^lde from thofe opinions, 
 which divide the ;body of the people in our country '. 
 the extremes on each fide ought to be rejeded, but 
 vrhether a man is in fayo"- of Adams, Jefferfon) Burr or 
 Pinckney, ought by no means to be confidered as a quaU 
 location, or as a difqualLBcation to ofHce. 
 
 Should the idea obtain, that men are to be appointed 
 to, or fecloded from office, on account of political opin- 
 ions upon the adminiftration of the government, there 
 would be an eternal warfare between the puts and ins^ 
 Contentions would be fharpened, and the hopes and 
 fears of men in office^ or thofe who want offices, would 
 have the fiill effedt of bribery and corruption. The 
 number who are in office, will always be a minority, and 
 thofe who are out, and under difappointment, mufl ul- 
 timately prevail : thefe will have their day of triumph, 
 and an opportunity to Ihare in the coveted emoluments 
 of the treafury. 
 
 It may be fuggefted here, that in a ftruggle of this 
 kind, the reJpeftable and honeft part of the community, 
 will take no part. The men who are partizans, hav^ 
 3i claim to the offices, as they may have gained a victory, 
 and the only men who could be fafely trufted with the 
 government, are placed at a diflance, while thefe cham- 
 pions, for their own emolument, aflume the gown of the 
 patriot, and urge the people to civil difcord ; and per? 
 haps to bloody difTenficms : the men who dare to con- 
 demn, in a Wafhington, that which they would not juf- 
 tify in an Adams ; who will condcnm in a Jefferfon*g 
 adminiftratioii, the meafures which they cenfiired in that 
 ©r his predecefTor, and applaud in the one, what they 
 approved in the other. Thefe men are the true feder- 
 alifls, independent of all parties ; and though neither 
 are friendly to them, yet they will have a tribute of re- 
 fpeft, from the community, of more value, than the eu- 
 logies of defigning partizans ; and will enjoy more fub- 
 ftantial fatisfadion, than can be derived from offices and. 
 Itipends. 
 
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 It IS afTenrted with confidence, that there are men in the 
 United States, who have no faith or confidence in th^ 
 prefent federal conftitution ; and from a variety of pubn 
 iications in feveral parts of the union, there is fome rea* 
 fon to believe the faft. There feems in fome produce 
 tions to be a defign to difaffeO. ...o foikuern with the 
 northern dates. Others feem to be endeavoring to di* 
 vide the New England ftates from the others. What- 
 ever pretenfions fuch men may make, they are by no 
 xaeaitii federalijis. The general conftitution is a league, 
 or covenant, between all the ftates, and he, whoever 1^^ 
 is, th-i*^^ fhall attempt in any manner to difioivc it, is an 
 antifeueraliji. 
 
 The people of the United States are fecure in their 
 perfons and property. And therefore thefe men who de- 
 light in theoretic, fpeculative politics, ought to have n:\odf 
 efty enougli to be quiet, until thofe, who have a confir 
 (dence in our prefent government, ihall have given it a 
 fair trial. • 
 
 By the conftitution of the United States, Congrpfr 
 have a right to exercife, over a territory ten miles fquare^ 
 where the feat of government is, exclufive legiflative ju* 
 tifdidion. What may be done under this claufe for the 
 punifliing of libels, made or publifhed within that ter ri" 
 tory, cannot now be fatisfaf^orily afcertained : but vva 
 muft take up the fubied: as the law now is in the gener- 
 al government, and m the ftate governments. 
 
 The remedies for libek are on a civil procefs, or on 
 indiftment. The former is by an action upon the cafe 
 for damages. In this adiiion, the plaintiff* fues in hi» 
 private capacity, as a private citizen, and can make no 
 ufe of any public ofEcial character he may fuftain, ex- 
 cepting merely in aggravation of damages. The courts 
 where fuch aftions are to be litigated are the fame as 
 thofe where any adion for breach of contra<ft, or other» 
 civil injury may be maintained. 
 
 The remedy, or redrefs on an indidment is on a dif- 
 ferent footing. There, unlefs the national conftitution 
 has changed it, the profecuf'on is to be, not only in thtf 
 ftate, but in the county where the offence is committQd,' 
 
 
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 ' The indk'^iment cannot be for a libel, finiply, agaJnft 
 a public ollicer. The defcription of the offence may bc 
 aggravated by a malicious intention in the party charg-i 
 ed, to deprive the party libelled of ofTices, or nonors : 
 but ftill it is no more an offence againft the government 
 in kind, than it would be if the pcrfon libelled had nev- 
 er poficfl'ed an office, or if the indiftment was for an af- 
 fault and battery on the fahie perfon. Thefe injuries 
 tan ncvei- be confiderfed as offences againft the general 
 government, even though the libels arc againft the ofi 
 fleers of the fame ; but muft remain within the jurifdic- 
 tion of the ftate governments, b'-caufe the party ihjiired, 
 altiiough he is an officer of the t.ceral government, yet 
 femaiiis a fubjeft of^ and under die proteftion of the 
 ftate whel^e he refides. This \cill appear to be conclu- 
 five, on a review of the poWets given to the Congrefs of 
 the United States. ■ ' • ' ■ '"-"^ . ' " 
 
 " The Congrefs (hall have powet, i ft, to lay and col- 
 " left taxes, duties, imports and excifes, to pay debts^ 
 •* and provide for the cftmmon defence and general 
 ** welfare of the United States : but all duties, impoft^ 
 ** and excifes ftiall be uniform throughout the United 
 « States." 
 
 2. " To borrow fflone^ oft the ctedit of the United 
 «« States/' 
 
 3. " To tegtilate commerce with foreign nations, and 
 among tiie feveral ftates." 
 
 4. *' To eftablifli an uniform rule of naturalization, 
 and uniforrii laws on the fubjeft of bankruptcies, 
 throughout the United States." 
 
 5. " To coin money : regulate the value thereof; and 
 of foreign coin j and for the ftandards of iveights and 
 
 ** meafures.'* 
 
 6; " To provide for the punifhment of counterfeiting 
 ** the fecuritiesj and current coin of the United States." 
 
 7. *' To eftablifli poft offices, and poft roads." 
 
 8. " To" promote the progrefs of fcience and the ufeful 
 arts, by feeuring, for a limited time, to authors and 
 inventors, the exclufive right of their refpedtive writ- 
 ings and difcoveries." 
 
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 conclu- 
 ngrefs of 
 
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 imports 
 
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 ruptcies, 
 
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 States." 
 
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 ors and 
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 , 9. " To'conllitute tribunals inferior to the fuprenvj 
 
 " court." :;. , . 
 
 ,. 10. ''.To define and punifh piracies and felonies oil 
 t' the high feas, and ottences agaiiifl the law of na* 
 ".tions." , , ^ . .,•:,,, , . ,. ^,, 
 
 ^ 1 1. " To d?cl?ire war ; grant letters of marque ahcj 
 ** reprifal ; and m^ke rules concerrim ; captures on ths 
 ** land and \vater.** ... 
 
 , 12. *' To raife and fjipport arnues. But no appropri- 
 ^*, ation of money for that ufe fhall be for a longer teriil 
 " than two years." , 
 
 13* ** To provide. 3nd maintain a navy.'* 
 , 14. " I'o make fules.for the government, aridregula- 
 ** tions for the land and nayaf forces." _ 
 
 , 15, "To provide for calling forth the" rnilitia, to exe- 
 •* cme ^he l^ws ,6£ the union, fupprefs infurreftlons, and 
 ** repel invafions." 
 
 . ,:l6. " To provide fpr organizing, arming and difciplin- 
 •* ing the militia, and. for govejrning fjjch part of them 
 ** as may be employed m the feryice pf the Umted 
 ^'f/jStates, ;. referving to the ftates refpedively, the ap- 
 7; go^tppent of officers, and the authority of training the 
 * .mifitia ace ^rding, tg the difcfpllne prefcrlbed by Con- 
 "grels." . , ■_,, .;„„ ......,,,.,.■■ 
 
 47. " To exercife exclufive legiflation in all cafes' what- 
 *** foever over fuch diflrift (i^ot exceeding- ten' mile^ 
 ** fquare) as may, by ceffion of particular ftates, an<I 
 *' the acceptance of Congfefs,: become t"he feat of the 
 ^' .government of the United States j and to exercife like 
 " authority over 4l Peaces purchafed by the confent of 
 
 the legiflature of the ftate in which the fame fhall be, 
 '' for the ere£lion of forts, magazines, arfenals, dock ' 
 ** yards, and other needful buildings." 
 
 1 8. " To make laws which fhall be necefTary and prop- 
 *• er for carrying into execution the aforegoing power.s, 
 " and all other powers .vefled by this conliitution in the 
 
 government of the United States, or in any depart- 
 ** ment or office thereof." 
 
 None of thefe powers feem to include the authority 
 to punifli libels j and therefore, fome very good jneny 
 
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 !iave their doubts whether the general government can 
 make laws on this fubjeft. 
 
 • It is very clear, that confideting a libel as a private 
 injur)', the congrefs can have no authority to enaft a law 
 for its definition, or punifhment. But yet it does by no 
 means follow, that a libel may not be fo conceived, and 
 publilhed, as to be a crime againft the government itfelf, 
 independent of the perfonalinjury dcfne to the particu- 
 lar fubjeft of it ; and when that is the cafe, the govern- 
 ment ought to poffefs the powers of punifliing it on 
 principles of,preferving the conilitution# 
 
 .Any .laws which may be necelTary to the carrying in- 
 fo effe£t the powers vefled in the national government^ 
 may be made by the Congrefs ; but if there is no gov- 
 ernment, or no Congtefs, there can be no laws made. 
 It is therefore neceffarily implied, that all things which 
 ought to be done to preferve, and maintain that govern- 
 ment, which is vefted with thofe authorities, and which 
 may make laws for theit execution, may make laws to 
 preferve its own exiftence. Should it be faid, that the 
 Hate governments will preferve and defend the exiftence 
 of the federal government, this would by no means be 
 accepted as an anf^er ; becaufe a government, de- 
 pending on another . government for its exiftence, is 
 "merely a corporation-*— it can have no fovereignty— ^and 
 can be no band of union' for a nation. 
 
 The late aft of Congrefs was deficient in its princi- 
 ples on thefe eS^tial points. It went beyond what the 
 conftitution would warrant. Some of the libels pointed 
 out by the aft, were fuch, as were written and pubKfhed 
 againft the prefident, to bring him perfonally into difre- 
 pute, or contempt : or to excite againft him perfonally, 
 the hatred of the people. 
 
 The conftitution of the United States has exprefsly 
 provided, that crimes fliall be tried in the ftate where 
 fhey (hail be committed. And that in dvfl aftions> 
 for damages, where one of the parties is a citizen 
 of a ftate, of which the other is not a citizen, the ac- 
 tion may be commenced and profecuted in a court of the 
 Unked States at the eledion of the parties. There is, 
 
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 rnment can 
 
 in tHis provifion, no diflin£tion in perfons or oflTicergp 
 When me general government was formed, the people 
 might, if they had thought it proper, have made provifion 
 for a prefident, vice prefident, and all the gfficers of the 
 general government, to bring their fuits and profecution* 
 in the federal courts ; but no fuch provifiou ^yas made. 
 Perhaps the reafon was, that thfc general government is 
 as much the government of the people, as the others ; 
 and muil derive its fupport from the fame fource. 
 
 The character of the firft magiftrate of the nation U 
 highly to be refpecled j and though it may not be hfe 
 in any keeping, but that of the federal government, yet 
 as the confthution has not placed it there, a queftion, on 
 a legal principle, does not arife on the fubjetJ:. Thofe 
 who are advocates for the late ad of Congrefs agahift li- 
 bels, may fed themfelves hurt at thefe obfervations ; and 
 may endeavor to fupport their meafure by arguments, 
 fuppofed to refult from powers, neceffarily implied in the 
 conftitution. Their arguments will be before the public, 
 and I am without anxiety at the event, be it what it may j 
 for I am ready to receive and abide the public judgmcnf 
 It has been faid, that the power of felf prefervation is an 
 incidental, conftituent part of the government ; becaufe 
 a national government muft be a fovereign government 
 of courfe, and a fovereignty, relying on another fdver- 
 eignty, for civil fupport, is an inadmilfible idea in politics ; 
 buc It will by no means follow, that the right to vindicate 
 the prefident's perfonal charafter againft libels, h necef- 
 farily incident to the couftifution. The want of perfonal 
 charadler in a chief raagiftrate, would be an unfortunate 
 circumftance j but governments have exifled very fre^ 
 quently and very well, under this diijlculty, Should the 
 prefident bring a civil adion for a libel, or other flander, 
 he would ftand on the fame level with other afUons, and 
 have his trial by the fame rules and in the fame courts 
 Ayhere they have their's. Should there be a criminal 
 profecution for a libel, publilhed againfl him perfonally, 
 it tould not be profecuted any where but in the (late 
 courts, and in the county where the offence happens. 
 But if the iibel k pointed at him perfonally, and yet writ- 
 
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 jten, prjnted, or publiflied, with an intent to injaire, tippo/e 
 orfubvert the government of the United States it takes a 
 hew denomination of criminality,' and becomes ptinilha- 
 ble of neceflity in thd jucficiary of that government a- 
 gainfl which the crime is committed." .'' >" 
 
 The argument, thit th6 Congr^fs have a right tb pro- 
 teft the character of the prefident, woul<l with the fame 
 propriety be extend,ed to every officer and fcrvant of the 
 general government.' ' There can be no government" 
 without officers,' 'and there can be no government kithr 
 but fubjefts and property. ' The cafe with us is, whether 
 right or wrong, mufl reniain under the procefs of exper- 
 iment ; that we havb, frorti a number of feparate fovcr- 
 eign ftates', carved out a national general • fovereignty, 
 limited, as to its authority, over the fame perfons and 
 the fame property, as the (late governments haVe in pro- 
 tedlion, and what power is not exprefsiy, or by a necef- 
 fary implication given to that^ is retained to the feveral 
 ftates. Had the Congyeft'^naded, that if any perfon 
 fhould print, write, or publifh, iny Hbel agairift the prefi. 
 denf , or either houfe ' of Cohgrefs, ' ivith' an intint to ob- 
 JSru^f injure^ oppoje^ or'fub'verf^ the government of the U- 
 nited States, or to raifcf edition againji the famCy he fhould 
 be punilhed, &c. it would have defcribcd a new offence, 
 which ought to be puriifhed by that government. But 
 when they enaft, that, when iiny perfon fhail publifh a li- 
 bel, with an intent to' defame the faid prefident, or to excite 
 againfi him the hatred of the good people ofthefeJiates,\\'\\h' 
 rout conneding it with an intent to injure the govern- 
 ment, it will be very difficult to maintain themealbre by 
 the conftitution. ' ' %^.v-,^ *v; * ^^ k 
 
 It may be faid, that the injury done to the prefident 
 rciay be an injury done ^o the United States. That may 
 or may not be true : and it may be faid that libels againfi 
 the judges and other fervants of the public, are injuries to 
 the government. Nay, every immoral and vicious thing 
 is an injury to the nation ; but the creators of the fe^- 
 pral government, are the creators and the fupporters of 
 the others, and are equally intereflcd in all, and did not 
 choofe to invcft the general government with all the au- 
 
f 53 ] 
 
 ihority claimed in the late fedition law, paffcd by the lat0 - 
 
 Congrels. •,,•...• -r •. 
 
 This obfervation will, no doubt, ^e made and be' 
 cihoed and reechoed from one champion to another, ilmt 
 ijf the federal government cannot prijt -61 their prefidentfroM [ 
 libels y but mt0Jind him to thejiate cmrtsfor defence, ive . 
 had better give up the national fy -Hen at once. This ob- ' 
 fervation, when made, will be the refuit of the want of 
 corifideration. " A moment'? reflexion wilt evince, that ' 
 the gehieral government is fupported by the lUme people, 
 who fiipport the others. That thefe will have their in- 
 fluence ; and whenever the general government fhall be 
 gUided by men, who fhall attempt a feparate intereft, tlie 
 public opinion will gradually remove them, until the 
 connefting balance mall be reltoted to its tonflitutionai 
 perfeftion. ' ' 
 
 The fufn of the argument, on the whole, is this, that 
 jthe'conrtitiitional freedom of the prefs does not open 
 tiie flood gates of flander on the members of the civil fo- 
 ciety, and allow each man to calumniate his neighbor 
 with impunity'. ' • • 
 
 ' That a man's reputation ought to be guarded, as of 
 the next confequence to his life. 
 ' That whatever is in fa£k done by a government, or 
 by any officer of it, in his official capacity, or unJer a 
 jJretence of official authority, may be publifhed to the 
 ^orld,without the writer or printer's being chargeable for 
 a libel. 
 
 That the reputation of men in office, is as dear to them, 
 as that of other citizens are to them> and as much under 
 the proteftion of the laws, as the reputat' .1 of men in 
 private life is ; and that, therefore, a charge againft them 
 6f bribery or corruption, ought not to be publiflied, oth- 
 erwife than in a judicial profecution againil them, before 
 a proper tribunal, where they may be removed from of-, 
 f.ce, or otherwife punlfhed according to the demerit of 
 their crime. • ' 
 
 That where a man appears as a candidate for an elec- 
 tive ofiice, he exhibits his charadter for a public fcrutiny, 
 and every one has a nght to publiih any thing againit his 
 
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 elefHon, which is not fklfe in hGt ; but mufl be anfwera* 
 ble for all falfehoods and groundlefs flanders, a& well \xk 
 dvil, as in a criminal profecution* 
 
 That though every one has a right to publifh the pro* 
 ceedings of the government^ in all its departments, yet if 
 the publications are made of meafures, which have never ; 
 happened, the writers and printers are aptenable,, providr 
 ed that any injury is done, or may be done* to the gov- 
 ernment by it. Ine fad of writing or pubUfhing bdng .; 
 proved, die burden of proof refls oil the d«^en^t, to.^. 
 prove the truth of the fads publiflied, which if he can* . 
 not do, he mufl fubmit to pii^iihment ; unlefs he caqr 
 ihew, that it was innocently done from mere error and 4 
 mifts^e. 
 
 That though no one can juftify the ^dCe publication of ^ 
 fads, in regard to the meafures of the government, yet if 
 iad&are druly puolifhed, no one can be puniihed for reaf- 
 oning erroneoufly upon them, or for publ}fliing:hi8 reaf?.. 
 ons, however wrong..he may be in his concluTions. 
 
 That the general government's having the power ot 
 punifhing libels againll the government itfelf, by a nece£> 
 iary inference from the confUtution, does by no mean9 
 give it the power of puniihing thofe which are pu))-. 
 liflied againft its prefident or oth^r officers, who are alfo 
 the fubjeds of the (late governments ; unlefs the Ubel i&r 
 made and publifhed, witn an intent to injure the govern-, 
 ment itfelf. Which intent, mull be averred in the in^ 
 didment, and be found by the traverfe jury, or jury of 
 trials, otherwife he cannot be convided. As this dif* 
 tindion moil plainly refults from the Conftitution, there 
 can be no doubt but that every candid, fober man will 
 be ready to give it a full force in his mind ; becaufe/ 
 were whatever he may wi(h the conflitution, he }nu(( 
 be content to take it as it is. 
 
 And finally, that a reafonable, confUtutional reflraint^ 
 judicioufly exercifed, is the only way, in which the free- 
 dom of the prcfs can be preferved, as an invaluable priv». 
 ilege to the nation.— //A7*. "^ 
 
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