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An essay on the liberty of the Press
Published : July 09th, 2009
1740 words - Reading time : 4 - 6 minutes
( 0 vote, 0/5 ) Print article
 
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I have recently come to possess a hard copy of this book, but also discovered it scanned on Google. I thought Hays' arguments for the Constitution and its limits on Congress and the federal government are particularly applicable today. If nothing else it certainly stands Lincoln's argument on its head by clarifying that the states and their constitutions came before  the US Constitution. Lincoln put the cart before the horse. Be advised that writing in the 18th century the "s" often appeared as an "f". These are not typos.

 

Contempt for Abigail Adams' crafted Alien & Sedition Act was raging at the time. You'll come to realize how sacrosanct the people of the time regarded their press. The "General welfare" clause is another phrase clarified. You'll need to know these things to argue effectively for preserving our liberties under tyrannical leaders of this period.

 

Our task is ever more difficult as I find it highly unlikely any of our federally elected representatives would even know what you were talking about in a philosophical discussion on these matters of liberty. Never you mind them swearing an oath to uphold the Constitution! First, the people must come to understand the liberties guaranteed them; once grasped, then elected representatives from their respective communities will also share the understanding of this Compact. And you wondered how some areas of our country became more conservative than others!


 

Virginia, January, 1799. HORTENSIUS.

TO THE PEOPLE OF THE UNITED STATES.

IT is the object of the following addrefs to demonstrate* that fo much of the late act of Congrefs commonly called th< Sedition bill, as relates to libels, is not warranted by the Con ttitution of the United States, and that fo much thereof as re lates to printed libels, is expref sly forbidden by it. To thefe tw< points, my observations will be excluftvely confined.

The following principles, it is prefumed, will be conceded If the reader denies or doubts their truth, he need not pro teed. The whole argument is founded on a fuppofition tha they are true.

I. That all power originally belongs to the people.

II. That the powers of government are powers granted bi the people.

III. That the individuals felected from the mafs of the peo pje, to adminifter the government, poflefs no powers, genera or fpecial, but thofe which are either, exprefsly, delegated, 01 are neceffary to carry a power exprefsly delegated into effecT:.

IV. That it has frequently happened in the courfe of humar affairs, and may again happen, that the individuals thus fe leered may abufe the power entrufted to them, and may ufurj more power, than was meant to be entrufted to them.

V. That one abufe does not juftify another, and that th< ufurpations of Congrefs cannot be vindicated by the encroach ments of the ftate Legiflatures.

VI. That the decifion of a conflitutional queftion, ough not, in any manner, to be affected by the conduct of France or the opinions of Mr, Jefferfon, or any other man, or men \. the world, but mould reft on the immutable principles bf eafon and of truth.

It is on the ground of this laft poflulate, that no anfwer is iven to the arguments, founded on opinions and writings afcrib- d to .Mr. jefferfon and to others ; arid on the fame ground, fte aid which might be obtained from the writings and fpeeches f Publius and other diftinguifhed federalifts, in fupport of the ofition now meant to be eflablifhed, is totally rejected. It is tc purpofe of the prefent addrefs, not to afcertain what parti- tlar individuals have thought, but what all men ought to thinkj oncefning the powers of government, and the freedom of tc prefs.

t; If air power originally belongs to the people, thofe who xerclfe" any portion of power, mufl: derive their authority from le people^ and can pofTefs no power, that is not given, ex- refsly, or by fair and neceflary implication. To afcertain the rccife portion of power, which they have granted, we mufl jfort to the inftruments, or writings, by which their intention > grant power, is exprefled. Thefe inflruments are the Confti- itions of the feveral States, formed at a time when they were (dependent fovereignties, and the Federal Conftitution which nites all the States.

The State Confutations preceded by feveral years, the for. tation of the Federal Compact. By thefe ConftitutionSj gotfi nments were organized, and the Legiflatures were intrufted ith a general power, to do what they might think the public 3od required. This power had been exercifed, in all the States, vd the regulations, which it was thought the public good re^ jiired, had been adopted. The rights of perfons and things^ jblic and private wrongs, which furnifh all the materials for cal and municipal law, had been accurately defined and were ell underftood. Adequate proitijion 'was made to fecure reputatiort \ well as liberty and life. Still, however, a Federal Govern- ent was deemed effential, to the peace and happinefs of the 'ople of America ; not becaufe the State ihftitutions were defective, and required amendment ; not becaufe liberty was in danger, or becaufe character was not fuffictently guarded from jfarnation, but becaufe there were many important fubjects t which the State Legiflatures could not act with effeft. They mid noi make effe&uar proviftoa for paying the public debt* ftor regulate Commerce, nor borrow money en the credit of the United States, nor eftabliftt a fyftem of general defence. Thef were the great objects which could not be attained, but b] means of a Federal Government, and for the attainment of thefi objects a Federal Government was inftituted. The power therefore, delegated to this government, were fpecial and limr; ed, and from the ftate of things could not have been otheruifo

Nothing can be more obvious, and nothing has been mon generally admitted, than the diftinction between the principi which is the bafts of the State Governments, and that whic! forms the bafis of the Federal Conftitution. To the Statt governments, general powers of legiflation are granted, am they may legiflate on all fubjects, except thole on which the] are exprefsly forbidden to act. To the Federal Governmenr fpecific powers only are given, and Congrefs can legiilate or thofe fubjects only on which they are expr^fsly authorifed tc act. The State governments poffefs all powers, belonging tc the people, except thofe exprefsly withheld : the general go vernment poflefles thofe powers only, which are exprefsly grant ed, or are neceffary to carry a power exprefsly granted int< effect. When therefore a doubt arifes concerning the confti tutionality of a congreffional law, the firft queftion ought re gularly to be, is the power to pafs this law exprefsly grantee to Congrefs I If it be not exprefsly granted in plain words fo that purpofe, the next queftion rnuft be....Is this lawnecefiar; to carry any power exprefsly granted into effect ? If it be no neceflaryt there is an end to all doubt or difficulty on the iub ject, and the law is abfolutely void.

Let the Sedition bill be brought to the teft of an examinati en on thefe principles, and the refult will be, that thofe claule in it, which punifh infurrection or aftual oppofttion to the au thorifed mealures of government, will be found warranted b1 the terms and meaning of the federal compact; becaufe tht beft laws would be of no avail, unlefs Congrefs pofiefled a pow er to punifh thofe, who oppofed their execution. The powe: of punifhing acts of oppofttion 10 the laws, therefore, bein^ neceflary, to carry the laws themfelves into due operation, i readily conceded to belong to Congrefs. But the inquiry pur fued farther, on the fame principles, will terminate in a con victjon, that fo much of the fedition bill, as relates to. libels, or the government, or the individuals belonging to it, ts not

within the words or meaning of the Conftitution. It will not be faid that the power of puniitting libels is exprefsly given.

Several offences are enumerated which may be defined by the general government; but libels are not included. If then the power of punifhing libels is not exprefsly given, it cannot be pcercifed, unlefs it can be (hewn to be neceffary to carry fome given powers into effect. What is the power exprefsly given, [which is carried into effect, or is in any fhape aided in its operation, by the power of punifhing libels ? Plain as this queftion is, it never has been anfwered ; in fact it cannot be anfwered.

Galiatin propounded it at the laf t feflion to the advocates of the edition Bill, with his ufual perfpicuity; yet neither the elojquence of Otis, nor the ingenuity of Harper could be brought Jo encounter it

,j One cafe more will completely illuflrate the doctrine here .inculcated. In 1792 Congrefs paffed a law punifhing with death jperfons concerned in robbing the mail, or ftealing letters from ihe poft-office. If the enumerated powers of the government .be examined, it will be found that the power to pals fuch a law is not exprefsly granted ; ftill however it is warranted by the Conftitution, becaufe it is neceffary to carry into efleft the general power exprefsly granted to Congrefs, to eftablifh the poft-officq. The pofition, that Congrefs can exercife no power that ts not jiven exprefsly, or by neceffary implication, tho* manifeftly re- ulting from the nature of a federal compact, and fupported by every fair and rational conftruflion of the Conftitution has, from excefs of caution, been exprefsly recognized by the I2th. article of the Amendments, which declares, '* that powers not delegated to the United States by the Conflitution, nor prp- " hibited by it to the States, are referved to the States refpec* tively, or to the people." Solid as the foregoing principle is, and folemn as its recognition has been by the people of America, it has been boldly denied by fome, and artfully evaded, by others. It has been ftrenuoufly contended, that Congrefs had power to adopt all meafures, which they might think conducive to the general wel-? fare. Mr. S. from South Carolina was the firft who openly pro. claimed it as his opinion, that conftitutionality, and expedience, were convertible terms*...

 

 

 

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