Sunday, August 18, 2013

"Here it is manifest that the constitution intended to prohibit Congress from legislating at all on the subject..."

5th Congress.                                 No. 110.                                3d Session.

Repeal of the Alien and Sedition Laws.

Communicated to the House of Representatives, February 21, 1799.

The committee to whom were referred the memorials of sundry inhabitants of the counties of Suffolk and Queen, in the State of New York; of Essex county, in New Jersey; of the counties of Philadelphia, York, Northampton, Mifflin, Dauphin, Washington, and Cumberland, in Pennsylvania; and of the county of Amelia, in Virginia, complaining of the act entitled " An act concerning aliens," and other late acts of Congress, submit the following report:

It is the professed object of these petitions to solicit a repeal of two acts passed during the last session of Congress, the one “An act concerning aliens,” the other “An act in addition to an act for the punishment of certain crimes against the United States,” on the ground of their being unconstitutional, oppressive, and impolitic....

...It is answered, in the first place, that the constitution was made for citizens, not for aliens, who of consequence have no rights under it, but remain in the country, and enjoy the benefit of the laws, not as matter of right, but merely as matter of favor and permission; which favor and permission may be withdrawn, whenever the Government charged with the general welfare shall judge their further continuance dangerous.

It is answered, in the second place, that the provisions in the constitution relative to presentment and trial of offences by juries, do not apply to the revocation of an asylum given to aliens. Those provisions solely respect crimes, and the alien may be removed without having committed any offence, merely from motives of policy or security. The citizen, being a member of society, has a right to remain in the country, of which he cannot be disfranchised, except for offences first ascertained, on presentment and trial by jury.

It is answered, thirdly, that the removal of aliens, though it may be inconvenient to them, cannot be considered as a punishment inflicted for an offence, but, as before remarked, merely the removal from motives of general safety, of an indulgence which there is danger of their abusing, and which we are in no manner bound to grant or continue.

The “ Act in addition to an act entitled an act for the punishment of certain crimes against the United States,” commonly called the “sedition act,” contains provisions of a two-fold nature: first, against seditious acts; and, second, against libellous and seditious writings. The first have never been complained of, nor has any objection been made to its validity. The objection applies solely to the second; and on the ground, in the first place, that Congress have no power by the constitution to pass any act for punishing libels, no such power being expressly given; and all powers not given to Congress being reserved to the States, respectively, or the people thereof.

To‘ this objection it is answered, that a law to punish false, scandalous, and malicious writings against the Government, with intent to stir up sedition, is a law necessary for carrying into effect the power vested by the constitution in the Government of the United States and in the Departments and officers thereof, and, consequently, such a law as Congress may pass; because the direct tendency of such writings is to obstruct the acts of the Government by exciting opposition to them, to endanger its existence, by rendering it odious and contemptible in the eyes of the people, and to produce seditious combinations against the laws, the power to punish which has never been questioned; because it would be manifestly absurd to suppose that a Government might punish sedition, and yet be void of power to prevent it by punishing those acts which plainly and necessarily lead to it; and because, under the general power to make all laws proper and necessary for carrying into effect the powers vested by the constitution in the Government of the United States, Congress has passed many laws for which no express provision can be found in the constitution, and the constitutionality of which has never been questioned; such as the first section of the act now under consideration, for punishing seditious combinations; the act passed during the present session for punishing persons who, without authority from the Government, shall carry on any correspondence relative to foreign affairs with any foreign Government; the act for the punishment of certain crimes against the United States, which defines and punishes misprision of treason; the tenth and twelfth sections, which declare the punishment of accessaries to piracy, and of persons who shall confederate to become pirates themselves, or to induce others to become so; the fifteenth section, which inflicts a penalty on those who steal or falsify the record of any court of the United States; the eighteenth and twenty-first sections, which provide for the punishment of persons committing perjury in any court of the United States, or attempting to bribe any of their judges; the twenty-second section, which punishes those who obstruct or resist the process of any court of the United States; and the twenty-third, against rescuing offenders who have been convicted of any capital offence before those courts; provisions, none of which are expressly authorized, but which have been considered as constitutional, because they are necessary and proper for carrying into effect certain powers expressly given to Congress.

It is objected to this act, in the second place, that it is expressly contrary to that part of the constitution which declares that “ Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the liberty of the press.” The act in question is said to be an abridgment of the liberty of the press, and therefore unconstitutional.

To this it is answered, in the first place, that the liberty of the press consists, not in a license for every man to publish what he pleases, without being liable to punishment if he should abuse this license to the injury of others, but in a permission to publish, without previous restraint, whatever he may think proper, being answerable to the public and individuals for any abuse of this permission to their prejudice; in like manner as the liberty of speech does not authorize a man to speak malicious slanders against his neighbor, nor the liberty of action justify him in going by violence into another man’s house, or in assaulting any person whom he may meet in the streets. In the several States the liberty of the press has always been understood in this manner, and no other; and the constitution of every State, which has been framed and adopted since the declaration of independence, asserts “ the liberty of the press;" while in several, if not all, their laws provide for the punishment of libellous publications, which would be a manifest absurdity and contradiction, if the liberty of the press meant to publish any and every thing, without being amenable to the laws for the abuse of this license. According to this just, legal, and universally admitted definition of “ the liberty of the press,” a law to restrain its licentiousness, in publishing false, scandalous, and malicious libels against the Government, cannot be considered as an “ abridgment ” of its “liberty.”

It is answered, in the second place, that the liberty of the press did never extend, according to the laws of any State, or of the United States, or of England, from whence our laws are derived, to the publication of false, scandalous, and malicious writings against the Government, written or published with intent to do mischief, such publications being unlawful and punishable in every State; from whence it follows, undeniably, that a law to punish seditious and malicious publications is not an abridgment of the “liberty of the press;” for it would be a manifest absurdity to say that a man’s liberty was abridged by punishing him for doing that which he never had a liberty to do.

It is answered, thirdly, that the act in question cannot be unconstitutional, because it makes nothing penal that was not penal before, and gives no new powers to the court, but is merely declaratory of the common law, and useful for rendering that law more generally known and more easily understood. This cannot be denied, if it be admitted, as it must be, that false, scandalous, and malicious libels against the Government of the country, published with intent to do mischief, are punishable by the common law; for, by the second section of the third article of the constitution, the judicial power of the United States is expressly extended to all offences arising under the constitution. By the constitution, the Government of the United States is established, for many important objects, as the Government of the country; and libels against that Government, therefore, are offences arising under the constitution, and consequently are punishable at common law by the courts of the United States. The act, indeed, is so far from having extended the law, and the power of the court, that it has abridged both, and has enlarged instead of abridging the “liberty of the press:” for, at common law, libels against the Government might be punished with fine and imprisonment at the discretion of the court, whereas the act limits the fine to two thousand dollars, and the imprisonment to two years; and it also allows the party accused to give the truth in evidence for his justification, which, by the common law, was expressly forbidden.
And lastly, it is answered, that had the constitution intended to prohibit Congress from legislating at all on the subject of the press, which is the construction whereon the objections to this law are founded, it would have used the same expressions as in that part of the clause which relates to religion and religious tests; whereas the words are wholly different: “Congress,” says the constitution, amendment 8rd, “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof or abridging the freedom of speech, or the press." Here it is manifest that the constitution intended to prohibit Congress from legislating at all on the subject of religious establishments, and the prohibition is made in the most express terms. Had the same intention prevailed respecting the press, the same expressions would have been used, and Congress would have been “ prohibited from passing any law respecting the press.” They are not, however, “ prohibited” from legislating at all on the subject, but merely from abridging the liberty of the press. It is evident they may legislate respecting the press, may pass laws for its regulation, and to punish those who pervert it into an engine of mischief, provided those laws do not “ abridge” its “ liberty.” Its liberty, according to the well-known and universally admitted definition, consists in permission to publish, without previous restraint upon the press, but subject to punishment afterwards for improper publications. A law, therefore, to impose previous restraint upon the press, and not one to inflict punishment on wicked and malicious publications, would be a law to abridge the liberty of the press, and, as such, unconstitutional....

[American State Papers. Class X. Miscellaneous. Volume I. Documents, Legislative and Executive, of the Congress of the United States. FROM THE FIRST SESSION OF THE FIRST TO THE SECOND SESSION OF THE TENTH CONGRESS, INCLUSIVE: COMMENCING MARCH 3, 1789 AND ENDING MARCH 3, 1809. SELECTED AND EDITED UNDER THE AUTHORITY OF CONGRESS BY WALTER LOWRIE, Secretary of the Senate, AND WALTER S. FRANKLIN, Clerk of the House of Representatives. WASHINGTON: PUBLISHED BY GALES AND SEATON. 1834. Pgs. 181-183]
   Well now, that was interesting, wasn't it? And this from a congress in session merely 8 years from the date that the “Bill of Rights” had been ratified. Now, let us apply the same formula as that illustrated above to the 2nd Amendment, shall we?
    The “restrictive” clause in the second amendment to the United States Constitution reads as follows:

"The Right of the People to Keep and Bear Arms shall NOT be infringed."

    Other than the clearly prohibitive word “NOT” being employed. We must then examine the word “infringed” in order to ascertain whether or not there was intended to be any room for Congress to legislate on the matter. So, here is the meaning of the word “infringed”, as it was defined at the time:

TO INFRINGE, V. To encroach.


INFRINGE, from frango to break, signifies to break into.
VIOLATE, from the Latin vis force, signifies to use force towards.
TRANSGRESS, from trans and gredior, signifies to go beyond, or farther than we ought.
The civil and moral laws are infringed by those who act in opposition to them: treaties and engagements are violated by those who do not hold them sacred: the bounds which are prescribed by the moral law are transgressed by those who are guilty of any excess. It is the business of government to see that the rights and privileges of individuals or particular bodies be not infringed: policy but too frequently runs counter to equity; where the particular interests of princes are more regarded than the dictates of conscience; treaties and compacts are first violated and then justified: the passions, when not kept under proper control, will ever hurry men on to transgress the limits of right reason.

I hold friendship to be a very holy league, and no less than a piacle to infringe it. Howel.
No violated leagues with sharp remorse Shall sting the conscious victor. Somerville.

Why hast thou, Satan, broke the bounds pre-scrib'd To thy transgressions? Milton.


INFRINGEMENT and INFRACTION, which are both derived from the Latin verb infringo or frango (v. To infringe), are employed according to the different senses of the verb infringe: the former being applied to the rights of individuals, either in their domestic or public capacity; and the latter rather to national transactions. Politeness, which teaches us what is due to every man in the smallest concerns, considers any unasked for interference in the private affairs of another as an infringement. Equity, which enjoins on nations as well as individuals, an attentive consideration to the interests of the whole forbids the infraction of a treaty in any case.

- ENGLISH SYNONYMES EXPLAINED, IN ALPHABETICAL ORDER; WITH COPIOUS ILLUSTRATIONS AND EXAMPLES DRAWN FROM THE BEST WRITERS. BY GEORGE CRABB OF MAGDALEN HALL, OXFORD. SECOND EDITION, GREATLY ENLARGED AND CORRECTED. Sed cum idem frequentissime plura significent, quod ?????????? vooatur, jam sunt aliis alia honestiora, sublimiora, nitidiora, jucundiora, vocaliora. Quintil. Inst. Orat. lib. is. LONDON: PRINTED FOR BALDWIN, CRADOCK, AND JOY, 47, PATERNOSTER-ROW; AND T. BOOSEY, OLD BROAD-STREET. 1818. [Page 600]
    Mr. Webster, in his Dictionary of 1828, which is utilized by the United States Supreme Court to determine the original meaning of words employed in the Constitution. Defines the meaning of the word “infringed” more succinctly:
INFRING'ED, pp. Broken; violated; transgresses.
    Thus, it is made quite clear that the intent of the amendment, was that congress had been expressly forbidden from enacting any 'law' whatsoever concerning arms in the hands of the people at large. The only Constitutionally delegated authority of congress over arms, is when it involves the organized militia. (Which congress unconstitutionally abolished and replaced with the 'national guard').

    The “right” to keep and bear arms is a right that preexisted the Constitution. And the purpose of the “restrictive” clause of the second amendment is quite clear. It was to prevent congress from enacting any law which hindered the right in any way, shape or form. It had been insisted upon because of what had happened in Massachusetts after the Shay's Rebellion. When the Massachusetts legislature had passed a law disarming for three years those that had participated in the Rebellion. Which 'law' almost brought about another revolution. That is, until the legislature of Massachusetts was forced to rescind the law. And all of this having transpired just prior to, and during, the convention which brought about our new and present Constitution.

    The only Constitutional authority the federal government has over arms. Is involving the importation and exportation of arms into or out of the United States. In addition to providing punishments for the criminal abuse or misuse of arms in the hands of the people. Congress is expressly denied the authority of placing any prior restraints on the right - period. All of the 'laws' passed by congress on the subject are unconstitutional and therefore null and void.

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