American Eloquence, Volume I. (of 4) by Various

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But enough has been said to show the necessity of adhering to the common
meaning of the word "necessary" in the clause under consideration, which
is, that the power to be assumed must be one without which some one of
the enumerated powers cannot exist or be maintained. It cannot escape
notice, however, that the doctrine contended for, that the
Administration must be protected against writings which are likely to
bring it into contempt, as tending to opposition, will apply with more
force to truth than falsehood. It cannot be denied that the discovery of
maladministration will bring more lasting discredit on the government of
a country than the same charges would if untrue. This is not an alarm
founded merely on construction, for the governments which have exercised
control over the press have carried it the whole length. This is
notoriously the law of England, whence this system has been drawn; for
there truth and falsehood are alike subject to punishment, if the
publication brings contempt on the officers of government.

The law has been current by the fair pretence of punishing nothing but
falsehood, and by holding out to the accused the liberty of proving the
truth of the writing; but it was from the first apprehended, and it
seems now to be adjudged (the doctrine has certainly been asserted on
this floor), that matters of opinion, arising on notorious facts, come
under the law. If this is the case, where is the advantage of the law
requiring that the writing should be false before a man shall be liable
to punishment, or of his having the liberty of proving the truth of his
writing? Of the truth of facts there is an almost certain test; the
belief of honest men is certain enough to entitle it to great
confidence; but their opinions have no certainty at all. The trial of
the truth of opinions, in the best state of society, would be altogether
precarious; and perhaps a jury of twelve men could never be found to
agree in any one opinion. At the present moment, when, unfortunately,
opinion is almost entirely governed by prejudice and passion, it may be
more decided, but nobody will say it is more respectable. Chance must
determine whether political opinions are true or false, and it will not
unfrequently happen that a man will be punished for publishing opinions
which are sincerely his, and which are of a nature to be extremely
interesting to the public, merely because accident or design has
collected a jury of different sentiments.

Is the power claimed proper for Congress to possess? It is believed not,
and this will readily be admitted if it can be proved, as I think it
can, that the persons who administer the government have an interest in
the power to be confided opposed to that of the community. It must be
agreed that the nature of our government makes a diffusion of knowledge
of public affairs necessary and proper, and that the people have no mode
of obtaining it but through the press. The necessity for their having
this information results from its being their duty to elect all the
parts of the Government, and, in this way, to sit in judgment over the
conduct of those who have been heretofore employed. The most important
and necessary information for the people to receive is that of the
misconduct of the Government, because their good deeds, although they
will produce affection and gratitude to public officers, will only
confirm the existing confidence, and will, therefore, make no change in
the conduct of the people. The question, then, whether the Government
ought to have control over the persons who alone can give information
throughout a country is nothing more than this, whether men, interested
in suppressing information necessary for the people to have, ought to be
entrusted with the power, or whether they ought to have a power which
their personal interest leads to the abuse of. I am sure no candid man
will hesitate about the answer; and it may also safely be left with
ingenuous men to say whether the misconduct which we sometimes see in
the press had not better be borne with, than to run the risk of
confiding the power of correction to men who will be constantly urged by
their own feelings to destroy its usefulness. How long can it be
desirable to have periodical elections for the purpose of judging of the
conduct of our rulers, when the channels of information may be choked at
their will?

But, sir, I have ever believed this question as settled by an amendment
to the Constitution, proposed with others for declaring and restricting
its powers, as the preamble declares, at the request of several of the
States, made at the adoption of the Constitution, in order to prevent
their misconstruction and abuse. This amendment is in the following
words: "Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof, or abridging the
freedom of speech or of the press, or the right of the people peaceably
to assemble and petition the Government for a redress of grievances."
There can be no doubt about the effect of this amendment, unless the
"freedom of the press" means something very different from what it
seems; or unless there was some actual restraint upon it, under the
Constitution of the United States, at the time of the adoption of this
amendment, commensurate with that imposed by this law. Both are
asserted, viz., that the "freedom of the press" has a defined, limited
meaning, and that the restraints of the common law were in force under
the United States, and are greater than those of the act of Congress,
and that, therefore, either way the "freedom of the press" is not
abridged.

It is asserted by the select committee, and by everybody who has gone
before them in this discussion, that the "freedom of the press,"
according to the universally received acceptation of the expression,
means only an exemption from all previous restraints on publication, but
not an exemption from any punishment Government pleases to inflict for
what is published. This definition does not at all distinguish between
publications of different sorts, but leaves all to the regulation of the
law, only forbidding Government to interfere until the publication is
really made. The definition, if true, so reduces the effect of the
amendment that the power of Congress is left unlimited over the
productions of the press, and they are merely deprived of one mode of
restraint.

The amendment was certainly intended to produce some limitation to
legislative discretion, and it must be construed so as to produce such
an effect, if it is possible. To give it such a construction as will
bring it to a mere nullity would violate the strongest injunctions of
common-sense and decorum, and yet that appears to me to be the effect of
the construction adopted by the committee. The effect of the amendment,
say the committee, is to prevent Government taking the press from its
owner; but how is their power lessened by this, when they may take the
printer from his press and imprison him for any length of time, for
publishing what they choose to prohibit, although it maybe ever so
proper for public information? The result is that Government may forbid
any species of writing, true as well as false, to be published; may
inflict the heaviest punishments they can devise for disobedience, and
yet we are very gravely assured that this is the "freedom of the press."

A distinction is very frequently relied on between the freedom and the
licentiousness of the press, which it is proper to examine. This seems
to me to refute every other argument which is used on this subject; it
amounts to an admission that there are some acts of the press which
Congress ought not to have power to restrain, and that by the amendment
they are prohibited to restrain these acts. Nov, to justify any act of
Congress, they ought to show the boundary between what is prohibited and
what is permitted, and that the act is not within the prohibited class.
The Constitution has fixed no such boundary, therefore they can pretend
to no power over the press, without claiming the right of defining what
is freedom and what is licentiousness, and that would be to claim a
right which would defeat the Constitution; for every Congress would have
the same right, and the freedom of the press would fluctuate according
to the will of the legislature. This is, therefore, only a new mode of
claiming absolute power over the press.

It is said there is a common law which makes part of the law of the
United States, which restrained the press more than the act of Congress
has done, and that therefore there is no abridgment of its freedom. What
this common law is I cannot conceive, nor have I seen anybody who could
explain himself when he was talking of it. It certainly is not a common
law of the United States, acquired, as that of England was, by
immemorial usage. The standing of the Government makes this impossible.
It cannot be a code of laws adopted because they were universally in use
in the States, for the States had no uniform code; and, if they had, it
could hardly become, by implication, part of the code of a Government of
limited powers, from which every thing is expressly retained which is
not given. Is it the law of England, at any particular period, which is
adopted? But the nature of the law of England makes it impossible that
it should have been adopted in the lump into such a Government as this
is, because it was a complete system for the management of all the
affairs of a country. It regulated estates, punished all crimes, and, in
short, went to all things for which laws were necessary. But how was
this law adopted? Was it by the Constitution? If so, it is immutable and
incapable of amendment. In what part of the Constitution is it declared
to be adopted? Was it adopted by the courts? From whom do they derive
their authority? The Constitution, in the clause first cited, relies on
Congress to pass all laws necessary to enable the courts to carry their
powers into execution; it cannot, therefore, have been intended to give
them a power not necessary to their declared powers. There does not seem
to me the smallest pretext for so monstrous an assumption; on the
contrary, while the Constitution is silent about it, every fair
inference is against it.

Upon the whole, therefore, I am fully satisfied that no power is given
by the Constitution to control the press, and that such laws are
expressly prohibited by the amendment. I think it inconsistent with the
nature of our Government that its administration should have power to
restrain animadversions on public measures, and for protection from
private injury from defamation the States are fully competent. It is to
them that our officers must look for protection of persons, estates, and
every other personal right; and, therefore, I see no reason why it is
not proper to rely upon it for defence against private libels.

THE RISE OF DEMOCRACY.

The inaugural address of President Jefferson has been given the first
place under this period, notwithstanding the fact that it was not at all
an oration. The inaugural addresses of presidents Washington and Adams
were really orations, although written, depending for much of their
effect on the personal presence of him who delivered the address; that
of Jefferson was altogether a business document, sent to be read by the
two houses of Congress for their information, and without any of the
adjuncts of the orator.

It is impossible, nevertheless, to spare the inaugural address of the
first Democratic President, for it is pervaded by a personality which,
if quieter in its operation, was more potent in results than the most
burning eloquence could have been. The spirit of modern democracy, which
has become, for good or evil, the common characteristic of all American
parties and leaders, was here first put into living words. Triumphant in
national politics, this spirit now had but one field of struggle, the
politics of the States, and here its efforts were for years bent to the
abolition of every remnant of limitation on individual liberty. Outside
of New England, the change was accomplished as rapidly as the forms of
law could be put into the necessary direction; remnants of
ecclesiastical government, ecclesiastical taxes of even the mildest
description, restrictions on manhood suffrage, State electoral systems,
were the immediate victims of the new spirit, and the first term of Mr.
Jefferson saw most of the States under democratic governments. Inside of
New England, the change was stubbornly resisted, and, for a time, with
success. For about twenty years, the general rule was that New England
and Delaware were federalist, and the rest of the country was
democratic. But even in New England, a strong democratic minority was
growing up, and about 1820 the last barriers of federalism gave way;
Connecticut, the federalist "land of steady habits," accepted a new and
democratic constitution; Massachusetts modified hers; and the new and
reliably democratic State of Maine was brought into existence. The "era
of good feeling" signalized the extinction of the federal party and the
universal reign of democracy. The length of this period of contest is
the strongest testimony to the stubbornness of the New England fibre.
Estimated by States, the success of democracy was about as complete in
1803 as in 1817; but it required fifteen years of persistent struggle to
convince the smallest section of the Union that it was hopelessly
defeated.

The whole period was a succession of great events. The acquisition of
Louisiana, stretching from the Mississippi to the Rocky Mountains, laid,
in 1803, the foundations of that imperial domain which the steamboat and
railroad were to convert to use in after-years. The continental empire
of Napoleon and the island empire of Great Britain drifted into a
struggle for life or death which hardly knew a breathing space until the
last charge at Waterloo, and from the beginning it was conducted by both
combatants with a reckless disregard of international public opinion and
neutral rights which is hardly credible but for the official records.
Every injury inflicted on neutral commerce by one belligerent was
promptly imitated or exceeded by the other, and the two were perfectly
in accord in insisting on the convenient doctrine of international law,
that, unless neutral rights were enforced by the neutral against one
belligerent, the injury became open to the imitation of the other. In
the process of imitation, each belligerent took care to pass at least a
little beyond the precedent; and thus, beginning with a paper blockade
of the northern coast of the continent by the British Government, the
process advanced, by alternate "retaliations," to a British proclamation
specifying the ports of the world to which American vessels were to be
allowed to trade, stopping in England or its dependencies to pay taxes
en route. These two almost contemporary events, the acquisition of
Louisiana and the insolent pretensions of the European belligerents,
were the central points of two distinct influences which bore strongly
on the development of the United States.

The dominant party, the republicans, had a horror of a national debt
which almost amounted to a mania. The associations of the term, derived
from their reading of English history, all pointed to a condition of
affairs in which the rise of a strong aristocracy was inevitable; and,
to avoid the latter, they were determined to pay off the former. The
payment for Louisiana precluded, in their opinion, the support of a
respectable navy; and the remnants of colonialism in their party
predisposed them to adopt an ostrich policy instead. The Embargo act was
passed in 1807, forbidding all foreign commerce. The evident failure of
this act to influence the belligerents brought about its repeal in 1809,
and the substitution of the Non-intercourse act. This prohibited
commercial intercourse with England and France until either should
revoke its injurious edicts. Napoleon, by an empty and spurious
revocation in 1810, induced Congress to withdraw the act in respect to
France, keeping it alive in respect to England. England refused to admit
the sincerity of the French revocation, to withdraw her Orders in
Council, or to cease impressing American seamen. The choice left to the
United States was between war and submission.

The federalist leaders saw that, while their party strength was confined
to a continually decreasing territory, the opposing democracy not only
had gained the mass of the original United States, but was swarming
toward and beyond the Mississippi. They dropped to the level of a mere
party of opposition; they went further until the only article of their
political creed was State sovereignty; some of them went one step
further, and dabbled in hopeless projects for secession and the formation
of a New England republic of five States. It is difficult to perceive
any advantage to public affairs in the closing years of the federal
party, except that, by impelling the democratic leaders to really
national acts and sympathies, it unwittingly aided in the development of
nationality from democracy.

If the essential characteristic of colonialism is the sense of
dependence and the desire to imitate, democracy, at least in its earlier
phases, begets the opposite qualities. The Congressional elections of
1810-11 showed that the people had gone further in democracy than their
leaders. "Submission men" were generally defeated in the election; new
leaders, like Clay, Calhoun, and Crawford, made the dominant party a war
party, and forced the President into their policy; and the war of 1812
was begun. Its early defeats on land, its startling successes at sea,
its financial straits, the desperation of the contest after the fall of
Napoleon, and the brilliant victory which crowned its close, all
combined to raise the national feeling to the highest pitch; and the
federalists, whose stock object of denunciation was "Mr. Madison's war,"
though Mr. Madison was about the most unwilling participant in it, came
out of it under the ban of every national sympathy.

The speech of Mr. Quincy, in many points one of the most eloquent of our
political history, will show the brightest phase of federalism at its
lowest ebb. One can hardly compare it with that of Mr. Clay, which
follows it, without noticing the national character of the latter, as
contrasted with the lack of nationality of the former. It seems, also,
that Mr. Clay's speech carries, in its internal characteristics,
sufficient evidence of the natural forces which tended to make democracy
a national power, and not a mere adjunct of State sovereignty, wherever
the oblique influence of slavery was absent. For this reason, it has
been taken as a convenient introduction to the topic which follows, the
Rise of Nationality.

THOMAS JEFFERSON,

OF VIRGINIA, (BORN 1743, DIED 1826.)

INAUGURAL ADDRESS OF THOMAS JEFFERSON, AS PRESIDENT OF THE UNITED
STATES,

MARCH 4, 1801

FRIENDS AND FELLOW-CITIZENS:

Called upon to undertake the duties of the first executive office of our
country, I avail myself of the presence of that portion of my
fellow-citizens which is here assembled, to express my grateful thanks
for the favor with which they have been pleased to look toward me, to
declare a sincere consciousness, that the task is above my talents, and
that I approach it with those anxious and awful presentiments, which the
greatness of the charge, and the weakness of my powers, so justly
inspire. A rising nation, spread over a wide and fruitful land,
traversing all the seas with the rich productions of their industry,
engaged in commerce with nations who feel power and forget right,
advancing rapidly to destinies beyond the reach of mortal eye; when I
contemplate these transcendent objects, and see the honor, the
happiness, and the hopes of this beloved country committed to the issue
and the auspices of this day, I shrink from the contemplation, and
humble myself before the magnitude of the undertaking. Utterly, indeed,
should I despair, did not the presence of many, whom I see here, remind
me, that, in the other high authorities provided by our Constitution, I
shall find resources of wisdom, of virtue, and of zeal, on which to rely
under all difficulties. To you, then, gentlemen, who are charged with
the sovereign functions of legislation, and to those associated with
you, I look with encouragement for that guidance and support which may
enable us to steer with safety the vessel in which we are all embarked,
amidst the conflicting elements of a troubled world.

During the contest of opinion through which we have passed, the
animation of discussions and of exertions has sometimes worn an aspect
which might impose on strangers unused to think freely, and to speak and
to write what they think; but this being now decided by the voice of the
nation, announced according to the rules of the Constitution, all will
of course arrange themselves under the will of the law, and unite in
common efforts for the common good. All too will bear in mind this
sacred principle, that though the will of the majority is in all cases
to prevail, that will, to be rightful, must be reasonable; that the
minority possess their equal rights, which equal laws must protect, and
to violate which would be oppression. Let us then, fellow-citizens,
unite with one heart and one mind, let us restore to social intercourse
that harmony and affection without which liberty and even life itself
are but dreary things. And let us reflect, that having banished from our
land that religious intolerance under which mankind so long bled and
suffered, we have yet gained little, if we countenance a political
intolerance, as despotic, as wicked, and as capable of as bitter and
bloody persecutions. During the throes and convulsions of the ancient
world, during the agonizing spasms of infuriated man, seeking through
blood and slaughter his long-lost liberty, it was not wonderful that the
agitation of the billows should reach even this distant and peaceful
shore; that this should be more felt and feared by some, and less by
others, and should divide opinions as to measures of safety; but every
difference of opinion is not a difference of principle. We have called
by different names brethren of the same principle. We are all
Republicans; we are all Federalists. If there be any among us who wish
to dissolve this Union, or to change its republican form, let them stand
undisturbed as monuments of the safety with which error of opinion may
be tolerated, where reason is left free to combat it. I know, indeed,
that some honest men fear that a republican government cannot be strong;
that this government is not strong enough. But would the honest patriot,
in the full tide of successful experiment, abandon a government which
has so far kept us free and firm, on the theoretic and visionary fear,
that this government, the world's best hope, may, by possibility, want
energy to preserve itself? I trust not. I believe this, on the contrary,
the strongest government on earth. I believe it the only one where every
man, at the call of the law, would fly to the standard of the law, and
would meet invasions of the public order as his own personal concern.
Sometimes it is said, that man cannot be trusted with the government of
himself. Can he then be trusted with the government of others? Or, have
we found angels in the form of kings, to govern him? Let history answer
this question.

Let us then, with courage and confidence, pursue our own federal and
republican principles; our attachment to union and representative
government. Kindly separated by nature and a wide ocean from the
exterminating havoc of one quarter of the globe; too high-minded to
endure the degradation of the others, possessing a chosen country, with
room enough for our descendants to the thousandth and thousandth
generation, entertaining a due sense of our equal right to the use of
our own faculties, to the acquisition of our own industry, to honor and
confidence from our fellow-citizens, resulting not from birth, but from
our actions and their sense of them, enlightened by a benign religion,
professed indeed and practised in various forms, yet all of them
inculcating honesty, truth, temperance, gratitude, and the love of man,
acknowledging and adoring an overruling Providence, which, by all its
dispensations, proves that it delights in the happiness of man here, and
his greater happiness hereafter; with all these blessings, what more is
necessary to make us a happy and prosperous people? Still one thing
more, fellow-citizens, a wise and frugal government, which shall
restrain men from injuring one another, shall leave them otherwise free
to regulate their own pursuits of industry and improvement, and shall
not take from the mouth of labor the bread it has earned. This is the
sum of good government; and this is necessary to close the circle of our
felicities.

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