JUNE 8, 1836.]

Incendiary Publications.

[SENATE.

other sentiment than that of indignant regret at conduct |
so destructive of the harmony and peace of the country,
and so repugnant to the principles of our national com-
pact, and to the dictates of humanity and religion. Our
happiness and prosperity essentially depend upon peace
within our borders-and peace depends upon the main-
tenance, in good faith, of those compromises of the con-
stitution upon which the Union is founded. It is for-
tunate for the country that the good sense, the generous
feeling, and the deep-rooted attachment of the people
of the non-slaveholding States to the Union, and to their
fellow-citizens of the same blood in the South, have
given so strong and impressive a tone to the sentiments
entertained against the proceedings of the misguided
persons who have engaged in these unconstitutional and
wicked attempts, and especially against the emissaries
from foreign parts who have dared to interfere in this
matter, as to authorize the hope that those attempts
will no longer be persisted in. But if these expressions
of the public will shall not be sufficient to effect so desi-ed, no question of property could then arise.
rable a result, not a doubt can be entertained that the
non-slaveholding States, so far from countenancing the
slightest interference with the constitutional rights of the
South, will be prompt to exercise their authority in sup-
pressing, so far as in them lies, whatever is calculated
to produce this evil.

postmasters were resident citizens of those States. They
were bound to know the State laws under which they
lived; and all that this bill requires is, that they shall
not violate them.

The Senator from Massachusetts has contended that any newspaper which had been sent to an individual by mail, and was deposited in a post office, was his property; and we had, therefore, no right to say it should not be delivered. But this was begging the question. It was taking that for granted which remained to be proved. If Congress, as he (Mr. B.) had contended, possessed the incontestable power of declaring what should and what should not be circulated through the mails, no man could have the right to demand from any post office that which the law had declared should not thus

"In leaving the care of other branches of this interesting subject to the State authorities, to whom they properly belong, it is nevertheless proper for Congress to take such measures as will prevent the Post Office Department, which was designed to foster an amicable intercourse and correspondence between all the members of the confederacy, from being used as an instrument of an opposite character. The General Government, to which the great trust is confided of preserving inviolate the relations created among the States by the constitution, is especially bound to avoid, in its own action, any thing that may disturb them. I would, therefore, call the special attention of Congress to the subject, and respectfully suggest the propriety of passing such a law as will prohibit, under severe penalties, the circulation in the southern States, through the mail, of incendiary publications intended to instigate the slaves to insurrection."

In reply to Mr. WEBSTER, Mr. B. said that he did not think there was any vagueness in that part of the bill on which the gentleman had commented, except what arose from the nature of the subject. It is vague, says the gentleman, because it contains no description of the publications the circulation of which it intends to prohibit, except the words "touching the subject of slavery." On this foundation he had erected a considerable portion of his argument. Mr. B. acknowledged that if the bill contained no other description than this, it would be impossible to carry it into execution. this was not the fact. The subsequent language restricted this vague description; because it confined the operation of the bill to such publications only, "touching the subject of slavery," as were prohibited from circulation by the laws of the respective States.

But

be circulated. If we can, without violating the constitution, say that these inflammatory publications, tending to excite servile war, shall not be distributed by our postmasters among the individuals to whom they are directNo man

can have a property in that which is a violation of law. It then becomes a question, not of property, but of public safety. Admit the gentleman's premises, that we have no right to pass any law upon this subject, and he can establish his position that a property exists in those publications whilst in the post offices. Without this admission his argument entirely fails.

He felt as reluctant as any man could feel, to vote for any law interfering with the circulation through the mails of any publication whatever, no matter what might be its character. But if the slaves within any southern State were in rebellion, or if a palpable and well-founded danger of such a rebellion existed, with his present convictions, should he refuse to prevent the circulation of publications tending to encourage or excite insurrection, he would consider himself an accomplice in their guilt. He entertained no doubt whatever of the power of Congress to pass this bill, or of the propriety of exercising that power. He would not have voted for the bill which had been reported by the Senator from South Carolina, [Mr. CALHOUN,] because he thought it a measure far beyond what was required by the neces sity of the case. This bill, whilst it was sufficiently strong to correct the evil, would be confined in its operations to those States within which the danger existed.

Mr. DAVIS stated at length his objections to the passage of the bill. Senators assumed that there were no difficulties in the way, because the post office power gave to Congress the right to decide what should be carried in the mails. On a former occasion, he had said all that was proper in regard to this matter. He then drew the attention of the Senate to the constitutional question involved, and demonstrated, as he thought, that there was no authority in the constitution to pass this bill, or any thing like it. The language of the constitution was very simple: it only said that Congress should have the power to establish post offices and post roads. Now, what was a post office, in the meaning of the constitution? To understand this, it would be necessary to ascertain what was the meaning held at the time We have (said Mr. B.) wisely and properly referred, the constitution was adopted. You had a post office at for the description of the offence, to the laws of the dif- the time the constitution was made, and a press also; ferent States which will be embraced by the bill. It and the provision in the constitution was made in referwas just, it was politic, it was treating those States ence to both these known things. The object in estabwith a proper degree of respect, to make our law con- lishing the post office, then, was to send abroad intelliform with their laws, and thus to take care that no con- gence throughout the country; and it was intended for flict should arise between our deputy postmasters and the transmission of newspapers, pamphlets, judicial and their State authorities. Could the gentleman from Mas- legislative proceedings, and all matters emanating from sachusetts himself make the bill more explicit? He the press, relating to politics, literature, and science, could not do it, consistently with the principles upon and for the transmission of private letters. It would be, which it was founded, without incorporating into its therefore, in his opinion, in conflict with the provision provisions all the laws of all the States who had thought of the constitution giving Congress the power to estabproper to pass laws upon this subject. Our deputylish the post office, as well as an abridgment of the

Incendiary Publications.

freedom of the press, to carry into effect the provisions
of the bill.

The Senator from Pennsylvania reiterated the argu-
ment used the other day by his friend from Georgia,
that you have no right to diffuse publications through
the ageney of the post office, for the purpose of exci-
ting a servile war.
(said Mr. D.) that this is an old argument against the
Now, let me tell the gentleman
liberty of the press, and that it has been used whenever
it was thought necessary to establish a censorship over
it. The public morals were said to be in danger; it was
necessary to prevent licentiousness, tumult, and sedition;
and the public good required that the licentiousness of
the press should be restrained.
plausible pretences under which the freedom of the
All these were the
press had been violated in all ages. Now, they knew
that the press was at all times corrupt; but when they
came to decide the question whether the tares should be
rooted up, and the wheat along with it, those who had
decided in favor of liberty had always decided that it
was better to put up with a lesser evil than to draw
down upon themselves one of such fearful magnitude as
must result from the destruction of the press. Mr. D.
contended that the power to be given to the deputy
postmasters to decide what should and what should not
be distributed from the post office, gave them a danger-
ous discretion over a very delicate matter, and that the
power was one highly susceptible of abuse, and always
liable to misconstruction.

ever.

As

Mr. GRUNDY observed that this bill was intended simply to prevent any officer of the Government, who should violate the laws of the States in which he resided, from sheltering himself under the post office law. the bill now stood, the objections with regard to abridging the freedom of the press had no application whatThere was no provision in the bill interfering with the printing or publishing any matter whatever, nor was it even pretended that Congress possessed the power of doing so. It was not even said that certain publications, no matter how incendiary in their character, should not be deposited in the post office and transmitted through the mails. Therefore, all the objections that he had heard to the bill fell to the ground. In this bill the Government simply said to the individual in its employ, "We will not help you to do an act in violation of the laws of the State in which you live." That was the ground on which the bill was framed, and it could not be pretended that this was an abridgment of the liberty of the press. clining to assist an individual in the violation of the law, It was only the Government deand that was the whole bill. The Government under

the constitution had an entire control of the Post Office Department. It had the power to regulate what matters should be carried through the mails, and what should

not.

We say to every body that to these slaveholding States you may transmit through the mails what you please; but if you transmit to one of our officers what is prohibited by the laws of the State in which he resides, we shall say to that officer, you shall not put on the mantle of the Government to assist you in the violation of that law; you shall be subject to the penalties of the State laws, besides removal from office. In fact, there was not the slightest pretext for saying that this bill violated in the remost degree the freedom of the press. Nothing should be carried in the mails but what was proper for transmission through them; but if there was any thing sent through them tending to excite insurrection and bloodshed, how could there be an objection to the passage of a law, saying that it should not be delivered out from the post office.

The gentleman from Massachusetts objected to the vagueness of the bill in saying what shall not be distributed from the post offices. How could the matter, he

[JUNE 8, 1836.

asked, be made more specific? When the publication arrived at the post office where it was prohibited, and consulted, and, by it, it would be decided whether it was was about to be handed out, the State law would be in violation of the State law or not, and it could thus be determined whether it was proper for delivery. He should not say any thing as to the report; he did not concur corrected in the mildest way that it could be done. This in it farther than that this was a great evil, and should be bill did not affect any individual but those of the post hibiting publications and pictorial representations, calculaoffices of the States where laws have been passed proted to excite insurrection among the slaves. He was opposed to the original bill, because it interfered with what publications should be deposited in, as well as dedelivery office where this bill would operate, and the livered from, the post offices. But it was only at the postmaster at such office would be operated on by the laws of the State in which it is situated. If this bill was would be made (for there were persons wicked enough not passed, nothing could be done, and the post office to do it) the medium through which to send firebrands throughout the country.

Mr. CLAY said that he considered this bill totally unthis he differed with the Senator from Pennsylvania, necessary and uncalled-for by public sentiment; and in [Mr. BUCHANAN;] for he believed that the President's message on the subject had met with general disapprobation; that it was unconstitutional; and, if not so, that ing character. it contained a principle of a most dangerous and alarmWhen he saw that the exercise of the most extraordinary and dangerous power had been assumed by the head of the Post Office, and that it had been sustained by this message, he turned his attention that the General Government should, under any cirto the subject, and inquired whether it was necessary possessed it; and, after much reflection, he had come cumstances, exercise such a power, and whether he interfering with the subject in any shape or form whatto the conclusion that they could not pass any law

ever.

having a certain tendency. The papers, unless circulated, did no harm, and while in the post office or in the mail The evil complained of was the circulation of papers they were not circulated-it was a circulation solely which mail, and the use that was to be made of them, that consticonstituted the evil. It was the taking them out of the tuted the mischief. Then it was perfectly competent to the State authorities to apply the remedy. The instant that compel him either to surrender them or burn them. a prohibited paper was handed out, whether to a citizen or sojourner, he was subject to the laws which might law of a dangerous, if not a doubtful, authority. He considered the bill not only unnecessary, but as a

character; and how is that objection got over? The bill provided that it shall not be lawful for any deputy postIt was objected that it was vague and indefinite in its master, in any State, Territory, or District of the United States, knowingly to deliver to any person whatever, any pamphlet, newspaper, handbill, or other printed paper or pictorial representation, touching the subject of slavery, where, by the laws of the said State, Territory, or District, their circulation is prohibited. Now, scription? Now, could it be decided, by this description, what could be more vague and indefinite than this dewhat publications should be withheld from distribution? The gentleman from Pennsylvania said that the laws of the States would supply the omission. cing the law. Senator was premature in saying that there would be He thought the precision in State laws, before he showed it by produ He had seen no such law, and he did not know whether the description in the bill was applicable or not. There was another objection to this part of the

bill; it applied not only to the present laws of the States, but to any future laws that might pass.

[SENATE.

to which it is transmitted. He thought that this was the view that would be taken of it by the courts. The object of this bill was to make it the duty of the postmasters in the States to conform to the laws of such States, and not to deliver out papers in violation of their laws. The simple question was, had this Government the power to say to its officers, you shall not violate the laws of the States in which you reside? Could it go further, and make it their duty to co-operate with the States in carrying their laws into effect? This was the simple question. Now could any man doubt that Congress possessed the power to pass both measures, so that their officers might not come into conflict with the State laws? Indeed, he look

Mr. C. denied that the bill applied to the slaveholding States only; and went on to argue that it could be applied to all the States, and to any publication touching the subject of slavery whatever, whether for or against it, if such publication was only prohibited by the laws of such State. Thus, for instance, a non-slaveholding State might prohibit publications in defence of the institution of slavery, and this bill would apply to it as well as to the laws of the slaveholding States; but the law would be inoperative: it declared that the deputy postmaster should not be amenable, unless he knowingly shall deliver, &c. Why, the postmaster might pleaded upon measures of this kind to prevent conflicts beignorance, and of course the law would be inoperative. But he wanted to know whence Congress derived the power to pass this law. It was said that it was to carry into effect the laws of the States. Where did they get such authority? He thought that their only authority to pass laws was in pursuance of the constitution; but to pass laws to carry into effect the laws of the States, was a most prolific authority, and there was no knowing where it was to stop: it would make the legislation of Congress dependent upon the legislation of twenty-four different sovereignties. He thought the bill was of a most dangerous tendency. The Senator from Pennsylvania asked if the post office power did not give them the right to regulate what should be carried in the mails. Why, there was no such power as that claimed in the bill; and if they passed such a law, it would be exercising a most dangerous power. Why, if such doctrine prevailed, the Government might designate the persons, or parties, or classes, who should have the benefit of the mails, excluding all others.

tween the General and State Governments, which were likely to ensue, as essentially necessary; for it was evident that when such conflicts took place, the State must have the ascendancy. Mr. C. then briefly recapitulated the principles on which this bill was founded, and contended that it was in aid of laws passed by the States as far as Congress had the power constitutionally to go, and assumeed no power to prohibit or interfere with the publication or circulation of any paper whatever; it only declared that the officers of the Government should not make their official stations a shield for violating the State laws. Was there any one there who would say, that the States had not the power to pass laws prohibiting and making penal, the circulation of papers, calculated to incite insurrection among their slaves? It being admit. ted that they could, could not Congress order its officers to abstain from the violation of these laws? We do not (said Mr. C.) pass a law to abridge the freedom of the press, or to prohibit the publication and circulation of any paper whatever-this has been done by the States already. The inhibition of the constitution was on Congress, and not on the States, who possessed full power to pass any laws they thought proper. They knew that there were several precedents to sanction this bill. Congress had passed laws to abstain from the violation of the health laws of the States. Could any one say that the constitution gave to Congress the power to pass quarantine laws? He had not adverted to the message of the President on this subject, because he believed that the President acted from the best motives, and that that part of the message was drawn up without sufficient

He denied, however, that this message was in conformity with the constitution. It would be directly abridging the liberty of the press for Congress to pass such laws as the President recommended. part of the message he would refer to, which was in these words:

It was too often in the condemnation of a particular evil that they were urged on to measures of a dangerous tendency. All must agree as to the dangerous consequences of persons residing out of certain States transmitting to them incendiary publications, calculated to promote civil war and bloodshed. All must see the evil, and a great evil it was, and he hoped that a stop would be put to it; but Congress had no power to pass beyond the constitution for the purpose of correcting it. The States alone had the power, and their power was ample for the purpose. He hoped never to see the time when the General Government should under-reflection. take to correct the evil by such measures as the one before them. If (said Mr. C.) you can pass this law to prohibit the delivery through the post office of publications touching the subject of slavery, might they not also pass laws to prohibit any citizen of New York or Massachusetts from publishing and transmitting through the mail any thing touching that subject? If you may touch the subject of slavery at all, why not go to the root of the evil? Suppose one of the southern States were to pass a law of this kind; would you not be called upon by all the arguments now used in favor of this bill, to carry such law into effect? Mr. C. concluded by saying that the bill was calculated to destroy all the landmarks of the constitution, establish a precedent for dangerous legislation, and to lead to incalculable mischief. There was no necessity for so dangerous an assumption of authority, the State laws being perfectly competent to correct the evil complained of. He must say that, from the first to the last, he was opposed to the measure.

Mr. CALHOUN could not concur with the views taken by the Senators from Massachusetts and Kentucky, that this bill would comprehend in its provisions all publications touching the subject of slavery. In order to bring any publication within the provisions of the bill, two qualifications were necessary. The first was, that it must relate to the subject of slavery; and the next was, that it must be prohibited by the laws of the State VOL. XII.-109

One

"I would, therefore, call the special attention of Congress to the subject, and respectfully suggest the propriety of passing such a law as will prohibit, under scvere penalties, the circulation in the southern States, through the mail, of incendiary publications, intended to instigate the slaves to insurrection."

This was clearly unconstitutional; for it not only recommended the prohibition of publications and circulation of incendiary papers, (abridging the freedom of the press,) but it recommended also the infliction of severe penalties, which powers were expressly prohibited by the constitution. On no other principle could this ever be defended, than that it was simply abstaining from a violation of the laws of the States.

The Senator from Kentucky contended that this bill was useless; and he (Mr. C.) agreed that it was so in one sense, and that was, with or without this bill, the southern States would execute their own laws against the circulation of such papers. It was a case of life and death with them; and did any body suppose that they would permit so many magazines in their bosom to blow them to destruction, as these post offices must be, if

[JUNE 6, 1836.

W. said, must look into the newspaper mail to see if there were any publications in it touching the subject of slavery, calculated to excite insurrections among the slaves.

these incendiary publications continued to be circulated through them? While the southern States contained so many postmasters opposed to their institutions, as it was in his own State, where almost every postmaster was opposed to it, it was absolutely necessary for them to Now, said Mr. W., the country would have been rent take effectual measures for their own security. It was into atoms if the sedition law, instead of saying that the assertion of the principle, that the States had a right papers should not be published in such and such a way, to protect themselves, which made the bill valuable in had declared that the deputy postmasters should have his eyes; it prevented the conflict which would be likely the power to search the mails to see if they contained to take place between the General and State Govern- any publications calculated to "bring the Government ments, unless some measure of the kind should be adopt-into disrepute, promote insurrection, and lead to foreign ed. The States had a right to go to the extent of this war," the evils the sedition law intended to guard bill; and they would be wanting to themselves and to against. All the papers described in the law of '99 posterity if they omitted to do it. It was on the doctrine were unlawful by the laws of any of the States; and yet of State rights and State intervention that he supported that law, which had created so much excitement, and this bill, and on no other grounds. met with such general reprobation, contained nothing like the power claimed by this bill. Any law distinguishing what shall or shall not go into the mails, founded on the sentiments of the paper, and making the deputy postmaster the judge, he should say was expressly unconstitutional, if not recommended by gentlemen of such high authority. This bill, said Mr. W., went beyond the recommendation of the President; for his recommendation was, that the person who circulated the papers described by him, should be punished by severe penalties. Now, this was the old law of liberty; there was not a word of previous restraint in it as imposed by this bill. Mr. W. then went into an argument to show the vagueness of the bill in describing the paper the delivery of which was prohibited. Under it it was impossible to determine what publications should be prohibited: abolition pamphlets were to be stopped at the South, and anti-abolition papers were to be stop

The Senator from Massachusetts objected to the returning of these papers whose delivery was prohibited. He regretted this as much as the Senator did; but his objection was, that it did not go far enough: he thought that these papers should be delivered to the prosecuting officers of the States, to enable them to ferret out the designs of the incendiaries.

Mr..WEBSTER remarked, that in general it might be safely said, that when different gentlemen supported a measure admitted to be of a novel character, and placed their defence of it on different and inconsistent grounds, a very simple person might believe, in such case, that there were no very strong grounds for adopting the measure The Senator from Pennsylvania and the Senator from South Carolina, not only placed their defence of the bill on opposite grounds, but each opposed the principles on which the other founded his support of it. Where the object to be gained was ap-ped at the North. In reply to Mr. BUCHANAN, he said parently good, and the case urgent, as it was represented to be, how could limitations of power stand against powerful opponents, which have always been urging to despotism? Now, against the objects of this bill he had not a word to say; but with constitutional lawyers there was a great difference between the object and the means to carry it into effect. It was not the object to be gain ed, but the means to attain it, which they should look to; for though the object might be good, the means might not be so. His objections went to the means, and not to the object; and he did not yield the argument because the object was a good one, and the case was urgent. It was better to limit the power, and run the risk of injury from the want of it, than to give a power which might be exercised in a dangerous manner.

The Senator from Pennsylvania said that this bill was calling on Congress to do nothing but to abstain from violating the laws of the States. It was one thing, said the Senator, for Congress to abstain from giving these incendiary papers circulation, and another to pass laws saying that they shall not be published. But if Congress had no mail through which these papers could be transmitted, what did the gentleman mean by Congress abstaining from giving them circulation? It meant that Congress should interfere, and create an especial exception as to what should be transmitted by their ordi nary channel of intelligence, and that that exception should be caused by the character of the writing or publication. He contended that Congress had not the power, drawn from the character of the paper, to decide whether it should be carried in the inail or not; for such decision would be a direct abridgment of the freedom of the press. He confessed that he was shocked at the doctrine. He looked back to the alien and sedition Jaws, which were so universally condemned throughout the country; and what was their object? Certainly to prohibit publications of a dangerous tendency. [Mr. W. here quoted the sedition law, to show the objects it intended to effect.] But the deputy postmasters, Mr.

that he did not assume that these prohibited publications either were or were not property. All he said was, that they ought not to make the deputy postmasters the judge, and take away the property without the authority of law. What he bad to say was, that it was a question of property or no property; and that they could not make the deputy postmasters the judge of the fact, as he could not be a judge of property known to the constitution and the law.

Mr. BUCHANAN said he had not anticipated, when he first addressed the Senate upon this subject, that he should have occasion to make any further remarks; but the Senator from Massachusetts had replied to his argument in such a special manner, that he felt himself constrained to reply to some of his remarks. Now, permit me to say, (continued Mr. B.,) that he has not at all met the point of my argument. He has invested this subject with an air of greater importance and responsibility than it deserves; he has played around it with all his powers, but without touching the real question involved in the discussion.

Congress has no power (says the gentleman) to pass any law abridging the freedom of speech or of the press. Granted. He most freely admitted that Congress had no power to touch the press at all. We can pass no law whatever either to prevent or to punish any publication, under any circumstances whatever. The sedition law violated this principle. It punished libels against the Federal Government and its officers; and having met with general reprobation, it was repealed, or permitted to expire by its own limitation, he did not recollect which.

Mr. B. said he admitted these premises of the gentleman in their broadest extent; but did they justify his conclusions? In order to maintain his argument, he must prove that the constitution, in declaring that Congress shall not pass any law abridging the freedom of the press, has thereby, and from the force of these terms alone, commanded us to circulate and distribute,