to have been no mean poet, and the same was said of Lord Somers. Pope compliments Lord Mansfield on his poetical abilities, and Lord Hardwicke's addition to Lord Lyttleton's Poem on Virtue and Fame, we are told, had much merit. All these, however, and others that might be mentioned, were, we apprehend, but mere versifyers, and Sir William Blackstone among the rest, though in his "Lawyer's Farewell to his Muse," there are some pleasing lines.

ART. IX.-Resolutions submitted in the House of Representatives of the Congress of the United States, declaratory of the unconstitutionality of the Act, passed on the 14th of July, 1798, commonly called the Sedition Law, and providing for a restoration of the fines which may have been paid to the respective Marshals of the District Courts, by the parties who were convicted under that Act. Reports of the House of Representatives, 20th Congress, 2d Session.

WE purpose selecting both the title and matter of the Resolutions which we have prefixed to this article, to say something on a topic vitally connected with the successful progress and permanent security of civil liberty, philosophy and letters. A free press is the fountain of all light, and so vastly has its power been increased in modern times, that it is no paradox to say, it stands in many respects, very effectively in the place of government itself, by organizing, concentrating, and diffusing that public opinion, by which rulers, even in arbitrary governments, are themselves ruled, and subjected to restraints, altogether unprovided by the political constitution of their country, or what is technically called, the law of the land.

The object which we propose to ourselves, is not to discuss the doctrine of private libels, because we are not aware that the law in this particular requires amendment; for under the decisions of our courts, the security of character and freedom of discussion seem sufficiently guarded. But we have always considered that adequate atonement was not made for the violation of the Constitution of the United States, perpetrated by the passing of the memorable act of 1798, commonly called the Sedition Law, in the mere fact of its being permitted to expire by

its own limitation; and that effective securities ought to be obtained against any effort, in future, to make what are generally called political libels, punishable by the authority of the United States, and consequently, cognizable in the Federal Courts. With these views, we have looked with no little interest to the ultimate adoption of the Resolutions which we now intend very briefly to discuss-an interest which, we confess, has been greatly enhanced by the augmented necessity which the experience of each day unfolds, of limiting the implied powers of this vast confederate government, and the objects which they are intended to accomplish.

The power delegated to the government of the United States, to define and punish certain crimes and misdemeanors, is conveyed in words of the utmost precision in the Constitution itself, and it is certainly one of the most remarkable facts disclosed in the early history of our government, that upon mere loose implication, and seemingly against an express prohibition, Congress should have declared certain acts criminal and punishable by severe penalties. But remarkable as it is, we are not disposed to deal too rigorously with the authors of those odious enactments. The Government had but just gone into operation, and the lessons of experience-at all times important-were absolutely indispensable to ascertain the principles on which it should be conducted in practice. The statesmen who exercised the powers of the Constitution, had not been bred and disciplined, so to speak, in its nurture and admonition. They had no sure means of estimating the precise momentum of the machine which they had constructed, the pressure it could sustain, or the exact extent of its powers-in a word, the degree of government which the people themselves would bear. Besides, we are not so ignorant of the history of our own country, or of the still more melancholy history of human nature, as not to know, that in periods of great moral excitement, very honest, but very pernicious mistakes may be committed in legislation. The Sedition Law was passed at a moment when the volcano of the French revolution seemed, in the estimation of many good men, to threaten with its burning lava the uttermost verge of the civilized world. They believed, that much of this convulsion was to be attributed, even in France, to the extreme licentiousness of popular discussion, and they further believed, that a similar cause was then nourishing into existence, on this side of the ocean, a spirit, in portentous sympathy with some of the worst characteristics of this signal and sanguinary drama. That these individuals greatly overrated the evils of the times, and essentially mistook their remedy, we believe is universally ad

mitted now, without impeaching the purity or sincerity of the motives under which they acted.

Without farther introduction, we shall now, in the smallest compass into which we may be able to condense what we have to say in proof of this position, proceed to present our views; and, as the most appropriate division of this discussion, we shall take, in the order in which they occur, the two propositions embraced in the Resolutions themselves.

First, that the law of the 14th of July, 1798, commonly called the Sedition Law, was a violation of the Constitution of the United States, by abridging the freedom of the press.

In taking up this position, we feel all the embarrassment which one must encounter, who undertakes to prove what is self-evident or universally admitted. Although the act of 1798, never came under the cognizance of the Supreme Court of the United States, and, consequently, that Court never had an opportunity of pronouncing an opinion on its constitutionality; yet, nevertheless, at a period not at all remote from its passage, public opinion pronounced a judgment on this subject, which may well be taken as the ascertained sense of nearly a whole community, which spoke a language so clear and emphatical, as would have prevented the re-enactment of this law, if ever any disposition had been felt to revive it. The language was, that those who had passed this law, had done what the Constitution had not authorized.

And on what grounds did public opinion declare the Sedition Law unconstitutional? It was because it affirmed a power not delegated by the Constitution; on the contrary, one, the exercise of which, was expressly denied to Congress, by an amendment to that instrument. It is only necessary to weigh the import of the tenth amendment, by which, as the power of regulating the press had not been delegated, "it was reserved to the states or the people," and then to read the amendment that stands at the very head of the twelve supplemental articles, that were added, out of an abundant caution on the part of the people, to the Constitution, (which declares that "Congress shall make no law abridging the freedom of speech, or the liberty of the press"); and then to turn to the enactment of the sedition law, to be satisfied of this truth.

In the very face, then, of a non-delegation, and a positive prohibition of the power, Congress passed the following clause in this memorable law, which, inter alia, enacted :—

"That if any person shall write, print, utter or publish, or shall cause or procure to be written, printed, uttered or published, or shall know

ingly or willingly assist or aid in writing, printing, uttering, or publishing any false, scandalous and malicious writing or writings against the Government of the United States, or the President of the United States, with an intent to defame the said Government, or either House of the said Congress, or the said President, or to bring them or either of them into contempt or disrepute, or to excite against them or either of them, the hatred of the good people of these United States, or to stir up sedition within the United States, or to excite any unlawful combinations therein for opposing or resisting any law of the United States, or any act of the President of the United States, done in pursuance of any such law, or of the powers in him vested by the Constitution of the United States, or to resist, oppose or defeat any such law or act, or to aid, encourage or abet any hostile designs of any foreign nation, against the United States, their people or Government; then, such person thereof convicted before any Court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years."

The next and last clause in the act provided, "that the persons prosecuted under it, shall be permitted to give the truth in evidence, that the jury trying such prosecutions shall, by their finding, determine the law and fact, and, that the duration of the act, itself, shall be limited to the 3d day of March, 1801."

If no law of libel was sanctioned by the Constitution of the United States, and none could exist in reference to its federal relations to the people of the United States, (which we contend is the correct doctrine on this point) then this clause, which attempts to regulate a power, left free and undisturbed, to the people, is ipso facto, an abridgment of that power, whatever may be the plausible provisos by which the general law of libel, as existing in another country, may be mitigated.

So apparent was this on the face of the law, that in the celebrated report of 1799, made in the House of Representatives by the supporters of the Sedition Act, they were compelled to put into requisition all the resources which the most latitudinarian construction of the implied or incidental powers could furnish.

In the first place, it was contended, (and it will scarcely be credited at this day) that the second section of the third article, which provides, "that the judicial power of the United States shall extend to all cases in law or equity, arising under this constitution," made of force, in our federal system, the Common Law of England, and as the Law of Libel was a part of that law, the Sedition Act, which permitted the truth to be given in evidence, so far from abridging the freedom of the press, was an emphatic enlargement of its liberty.

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In the second place, it was contended that under the eighteenth article of the eighth section of the first article of the Constitution, the act was constitutional, as that section gives to Congress the power "to make all laws, which shall be necessary and proper, for carrying into execution the foregoing powers," " that one of the foregoing powers was, "to provide for the common defence and general welfare," that the Sedition Law was a means of providing for the common defence, and that punishing seditious writers was "suppressing insurrections within the meaning of the Constitution."

All the other parts of the instrument were probably written on adamant. This clause seems to have been inscribed on Indian rubber, which contracts and stretches just as the hand of a political magician may touch it; and flexible as it is, it is the only part of the sacred charter, in the construction of which, Congress "cannot be palsied by the will of their constituents." We cannot treat this once attempted justification of the Sedition Law with any sort of gravity. There is something too facetious for argument in the discovery, that the Sedition Law belonged to the military power of the Government; that one of the means of national defence was indictment, and that a district attorney, whether casemated, or mounted on the folds of his indictment, was no contemptible cannoneer.

This branch of the inquiry involves the question of what the framers of the Constitution intended by the "freedom of the press," which Congress was prohibited from abridging. Did they mean the English freedom of the press, the French freedom of the press, the Austrian freedom of the press, or the Russian freedom of the press? Could they have meant the English freedom of the press? Let us show what it is at Common Law, not by a reference to the odious star-chamber doctrine, but to authorities recent, authentic, and of the highest intelligence. In Holt's Reports, p. 424, Lord Holt said,—" To say that corrupt officers are appointed to administer affairs, is certainly a reflection on the government. If men should not be called to account for possessing the people with an ill opinion of the government, no government could subsist." Lord Raymond said, in State Trials, vol. x. "a magistrate, minister of state, or other public person's character, is not to be stained directly or indirectly. The law reckons it a great offence when the libel is pointed at persons in a public capacity, as it is a reproach to the government to have corrupt magistrates," &c. Even the enlightened Sir Philip Yorke, afterwards Lord Hardwicke, said, in the same volume, "he, (the printer) is not to publish any thing reflecting on the character and reputation and administration of his Ma