The American Eloquence - Various Author

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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.

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      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,

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