A BLOW AT THE FREEDOM OF THE PRESS.
By Editor
THE following is the abridgment of an article under the above title, of twelve pages, in the North American Review for December; the abridgment is from that excellent periodical, the Weekly Review, of Boston, Mass.:— We observe with regret and mortification that the indifference of the newspapers to their own and the people's rights and liberties is so extreme as to lead them to meet by a “conspiracy of silence” the powerful protest and plea of Mr. Hannis Taylor in the North American Review, with regard to censorship of the press established by the recent lottery decision of the Supreme Court of the United States. Whether the significant silence of the newspapers is due to a mistaken sense of duty or to selfish motives, we are not prepared to say, but there can be no question that their policy is reprehensible and mischievous. Mr. Taylor makes out an unanswerable case, and he ought to be earnestly supported by every liberty-loving citizen. Mr. Taylor is amply justified in stating without qualification that under the Constitution of the United States, as construed by the Supreme Court in the lottery decision, Congress possesses the same censorial and despotic power over the intellectual contents of all communications, written or printed, open or under seal, which pass through the mail, that was exercised at the end of the Middle Ages under the systems which denied the right of all literature to circulate, save “such as should be first seen and allowed.” The Court held that the limitation in the First Amendment, which restrains Congress from “abridging the freedom of speech and of the press,” in nowise restrains the autocrat power of that body to look into the contents of all documents passing through the mail, and to exclude all, when the ideas which they seek to disseminate are “condemned by its judgment.” The only restriction which rests upon this newborn despotism is embodied in the proviso that Congress does not possess “the power to prevent the transportation in other ways, as merchandise, of matter which it excludes from the mails.” In other words, the Court holds that the clause of the Constitution which expressly prohibits Congress from passing any law abridging the freedom of speech or of the press, guarantees to the people no right whatever to disseminate their ideas through the only agency which Congress controls, provided that body does not attempt to interfere with their transportation as merchandise over routes which it does not control. The circumstances under which this judge-made proviso came into existence, says Mr. Taylor, constitute one of the most remarkable episodes in our judicial history. The plain and settled meaning of the term “freedom of speech and of the press” was at the time of the adoption of the First Amendment known to all men, even to the judges. It was understood by everybody “that the clause in question was intended to deny to Congress the power to erect in this country that kind of a political censorship which had passed away from the English Crown and Parliament a century before the American Revolution began; that it was intended to deny to the judges the right to establish that kind of a judicial censorship which Mansfield had struggled in vain to uphold; that it was intended to guarantee to every American citizen so far as the federal government was concerned, the right to speak or write what he pleased, subject only to the censorial power which resides in juries alone.” When, in 1798, the Sedition Act was passed, Congress was careful to provide that all accusations which should be made under it must be tried by juries with the power to pass, not simply upon the fact of publication, but upon the vital question involved in the subject matter of the publication itself. At a later day when Congress prohibited the circulation through the mail of immoral literature, the same constitutional guarantee was steadily kept in view. Nobody imagined that Congress might, in the very teeth of the First Amendment, assume censorial powers and withdraw from juries the right to consider the supreme question whether or not the subject matter of publication is moral or immoral, legal or illegal. But if the lottery decision be a sound one, Congress may amend the act against immoral literature by incorporating into it a black list of all the books and papers which have passed under the ban of its censorial judgment. In the lottery cases the contention was made that the power originally vested in Congress to regulate the postal system was afterwards expressly limited by the clause in the First Amendment which forbids the passage of laws abridging the freedom of speech or of the press; that the formula is an historic one, whose settled meaning is that the legislative department of government can never consider or pass upon the morality or legality of anything that may be said or written; and that the character of all utterances presents purely a judicial question belonging to juries alone. It was the first time in the history of the republic that a publisher had ever sought protection at the hands of the Court; and it was certainly to have been expected that an exposition would have been made worthy of the subject and of the occasion. But the Court deemed otherwise. In a brief statement the announcement was made that the Court held the act constitutional, because the question at issue had been adjudicated adversely in a case which arose twelve years before the rights of the press in the mail were ever assailed, a case in which its rights were neither assailed nor represented. Mr. Taylor demonstrates that no adjudication as to the freedom of the press was made, or could have been made, in the Jackson case; that what was there said on the subject was the veriest of all dictums; that in the dictum, which then first saw the light, appeared the judge-made proviso which has practically eliminated the freedom-guaranteeing clause of the Constitution by excluding it from the only field in which it was ever intended to operate; and that the only reason ever given for the proviso rests upon a mistake as to an historical fact. In 1836 President Jackson appealed to Congress to pass a law to exclude from the mail inflammatory addresses exciting slaves to insurrection. The matter was submitted to committee, and Mr. Calhoun, as chairman, reported in emphatic terms that Congress could not exclude any communication from the mail by reason of its contents. He, however, attempted to find this power in the several States, and excited the strenuous opposition of Mr. Webster, who argued that the limiting clause in the First Amendment was intended to be applied to powers which Congress possessed, not to those it did not possess, and that its plain purpose was to guarantee to newspapers the right to circulate through the mails and not outside of the mails. “The liberty of the press,” asserted Mr. Webster, “was the liberty of printing as well as the liberty of publishing, in all the ordinary modes of publication; and was not the circulation of papers through the mails an ordinary mode of publication?” In this opinion Mr. Clay concurred, and, as a result, the Senate refused to tamper with the matter at all. In referring to these opinions and arguments, the Court says: “It is evident that they were founded upon the assumption that it was competent for Congress to prohibit the transportation of newspapers and pamphlets over postal routes in any other way than by mail.” But the fact is that the only man who, in that debate, referred to the power of Congress over other ways of transportation was Mr. Calhoun, and he emphatically declared that Congress could not exercise any control over other ways than the mail. What he said was this, that if it were once conceded that Congress could exclude documents from the mail by reason of their contents, some extremist would claim next that Congress could declare all roads post roads, and then233extend the exclusion of their transportation even in that manner. The Court read an affirmative where a negative was written. The Senate debaters were not befogged by the “assumption” imputed to them. Thus we see how the judge-made proviso came into existence which declares that the First Amendment guarantees to the citizen no right whatever to send his communications through the mail, provided that Congress, after it has excluded them from the only practicable channel of circulation, does not prevent their transportation in other ways, as merchandise. Recalling Sir H. Maine’s observation, that the most irresistible device employed by judges to change the effect of positive laws without changing their form is what is known as a legal fiction, Mr. Taylor says: “The fiction set up in this matter is that the right of a citizen to have his communications transported as merchandise outside of the mail, over impracticable routes which Congress does not control, fully satisfies the terms of the First Amendment. The fact is that the power now recognized in Congress to arbitrarily deprive the citizen, without a legal trial, of the right to send his communications through the mail, the one agency which it does control, takes away the only substantial right which the First Amendment was ever intended to guarantee him.” Mr. Taylor thinks that this heresy will be repudiated by the people as soon as they realize its full significance. We hope he is not too optimistic, but fear that he is. If the price of liberty be eternal vigilance, it is tolerably manifest that the commodity in question is not within our reach; for who is hardy enough to pretend that we have paid the price?