major Cu hjng ;nd myfeff, in which, in his opin
for wl.ii -. ; ; conceived it likely that he had used
this '■l'.'ho.i of *: jur.vm V)t ; that Mr. Davis had
ienned J'urr.r«:"jrl at th information, and said that
is never before heard of this quarrel, which, hew
« •' r, ic:ou: ted t< Uira for th« condu& major Cufh
ing had ot>ferved towards him upon the fubjeA of
s U.c, said claim when it w.s beiore the Houf: of
Reprefentir ive.N : that Mr. Davis oddedthat he and
inajor ha:l s it that time, lodged together,
a"... that major Cu.hing had labored to convince
him that my claim was uujult—-that the appoint
ment of me as ai l de camp given to mt
by the commander in chief, not for the good of
the service, but merely to serve and gratify me :
and that such an appointment never wasnectflary
That he (Mr. Strother) had replied, that on my
arrival he fbould certainly inform m« of this cir
cumstance, for which it was probable major Cufh
ing would b<; punished.
Of thi I was on my arrival here, informed, by
Mr. Strother. Of the truth and accuracy of the
information I neither have, rtor ever had the kaft
doubt. a full imprefiion of its truth I a»ft
«d as has already r.pp a red to the court ; and the
question to be determined is, whather, under the
tircumftnr.ee* ot the cafe', my behaviour wasy£<m
dalous, itifamausj and unbecoming au officer and I
\. T« {«m 1
■fitpcflbry. Mjif' the,
j firtrt if Md-we.evi
dence irettg&t to foppkrt tltera do not Vtfignate
aaj pye a hteh«Tfaiir fumtakui,
betomingan 'officfj, mda goßtlrriisf), if. is not in
',j£e newer tgtoSja to make it fi»i *nd the
£&(uyflbr> drjftvn.t Jhhw, in order to bring the
<iiy *«ithih * jirtide nf tte W« ®® ft
jfrafct«ejon with it. *
' bHravioiir ignited to me ii chirgej Hi con
nltjj' •*». ■' •<" •-• ■
i \ !n writing a note to major Cuftiing on the
ttih of July, containing these words, viz- " For
you' villainous interference againtt a just claim
wnictt 1 had before Congress, I am determined to
pwiilH you. Thereby falfely insinuating that ma
jor Cufliing had been g u ilty of "villainous condud,
and in a style as un-gentlcman-like as it is falfe "
sd. " It/"rsfufing to demonflrate that major
Cnfhinj had interfered, as slated, after he had
denied fa-i.and called upon me to prove it."
3d. " In publilhingin the Coffee House of the
City of Philadelphia that major Cufliing was a
poltroon, and no gentleman, or words to that ef
fefl.
The cause of so much of my behaviour, charged
as criminal by this fpcciiication, as is warranted by
the evidence, has been already mentioned, and is,[
trust, iatisfaftorily proved by lieutenant Strother.
1 had been appointed bytke lategallast and patri
otic general Wayne one of his aids de camp, in a
toilsome and hazardous war, and I had reason to
believe, that during hard laarJtes, and severe
campaigns, I had discharged my duty in a manner
that was fatisfaSory to the general and to all ftij
fellow ioletiers, whofc good opinions I was ambi
tious o! obtaining. I had .onceived I had a just
claim against the United States for services which
Temnmad anrequitt-d, and had exhibited that claim
to Congress for its adjaftment ; I had seen it sanc
tioned i y a vote »f a large majority of one branch
of the legrflatnre, and, when I least expected it, I
had seen it reje«ed by the other branch I had no
doubt btti that the members of that branch, as
well as the ether had atfted impartially, and, in
their opinions, justly. Such was, however, the
nature of my claim as to leave no doubt, on my
mind, fut that tltey had been abused and deceived;
and that I had been grossly injuredjby some lurking
«-iemv, -who had fought revenge in the manly way
of t'-jc' Uiting and secret misrepresentations. I
knewthr. tViffentionl had been induftrionfly and
i'lS-'.ioufly fomented in the army, and I had seen
the ccmmmdtr in chief abused ano vilified in the
jnibirc ropers; I ltnew there had existed in it a
parry ajpiinft him, and I also knew that a well in
tcnf.j.iid, and VfeH merited attachment to him
had rendered many deserving officers as well as
roylelf, obnoxious to the malcontents. ]I caf: my
eyes among, them in search of the author of the
injury done me, and my suspicions immediately
fell on major Cuftiing. ! knew him to be in town
I knew that I had,on a former occasion, disgraced
him, and 1 knew him too well to fcppofe that he
would either forgive me, or fcek for fatisfa&ion
in an open, manly way. With this knowledge,
and under these imprrffi®ns 1 remained fi'ent until
I received from Mr. Strother the information ai
readymentioned. I could not entertain a moment's
doubt of the veracity either of him, or the honor
able Mr, Davis. The former has verified his
statement under the folcmn faniftion ot an oath,
administered before you, and that of the former I
certainly ftould procure if I deemed it at all necel
fary. Judge thy>, I beseech you, what mujl
my feelings hav<- been when 1 saw the memory of
a ganeral, defer vedly dear to every meritorious of
ficer and fcJ.dier who had ever fought under him,
attempted to be tarnished by a charge of " having
appointed me aid de camp merely fir tie purpafe cf ferv
*>§, and "without mny regard It tbe good of tbeferviee.'
aft yosrfclves what my feelings must have been at
feeing malic*, notw«cping likcCaefar at the death
of Pompey, over the grave of its objf<ft,but fliar
p< nihg its edge to mangle all that remained of the
officer's andfoldiers friend. Hirw frnfikiy alive Blttft
my feelings, as a soldier, have been at my feeing
my appointment represented by an enemy, whom
1 had difgraccd, as a mere sinecure! as an office
given me merely f«r the purpsle of serving me
and without any regard to the good of tht service !
and dill more so, at finding the fame enemy secret
ly and constantly laboring with a member of Con
gress before whom my claim had been depending,
to convince him that it was unjufl , and ought not
to have been paid Yet even all this, it is possible
1 might have raffed over,had it affe&ed me aloHe;
but whan I found myfelf secretly and insidiously
charged with living on the public bounty through
the corruption of my general—eating its bread
•without earning it, and toconfummatethe whole,
with exhibiting a claim against the public, which,
from the flatement, I must know to be altogether
unfounded ; and when further I cenfidered that
the memory of the general who had appointed me
■was no less involved than myfelf in this complicat
ed charge of fraud and corruption upon the public,
i must confefs that I had not fufficient command
over my own feelings to suppress them, and I fer
vently pray that that momeni, should it ever arrive
when I.can, may be my last ! —I therefore, on the
*Bth of July sent, by my friend captain Taylor, a
letter to major Csfhing, containing tbe expreffiont
mentioned in *he firft article of the fpecifications.
The honorable Mr. Davis had, as appears in evi
dence left Congress and returned to Kentucky be
fore 1 received his flatement frem Mr Strother,
or it is probable I fliotild have applied to him on the
fubjeS before taking notice of major Cuftiing.
Lieutenant Strother did, it is true, desire me, if I
had any doubts refpefling thetruth of his account
to apply toMeflrs, Clopton aedNew, members
of Congress from Virginia, who were then in Phi
ladelphia, and who were present at the conven
tion between him and Mr. Davis.
But as 1 bad no such doubts, and as they could
c ive me no further information than Lieut. Strother
had done, I deemi-d the application unnecessary
From one of these I have received a certificate, cer
tiorating Mr. Strrtker's flatement, to the truth of
wi' ich, he, Lieut Strother, has fwee sworn.
Permit me now to a(k, was it under these eircum
ftanccs of the cafe, behaving in afcanda.'ow and
infamous manner, such as is unbecoming an officer and
a vutleman to write, and lend the letter by Captain
Taylor? I confidently trull it was not ; though these
epithets might been justly applied to »e, had I
no' either written at all, ur enpielfed myfelf >n terms
more mild. Admitting, for the fake of argument,
that 1 had mistaken, «tr misapplied the faQ slated in
my note, or that it had turned out that Lie-1. Stro
'her's information was unfeanded ; ft til my behavi
oar would have fallen far fliort of the terihs bestowed
on it. Is it JcutJdons or infamous, or behaving in
| such a manner a* is unbecoming en oflicfi and a gen
tleman to refcni an injury, which you have every rea
son to fuppofc you have received by the improper
eonduft of another ? Is it fctndalous or infamous to
threaten to punish wrongs, and to express yourfcH in
terms commensurate to the insult which you have
such reason to believe you have received I If not,
and surely no soldier will contend for it, this charge
must be groundless.
It is the intention with which an act is done that
renders it criminal in a greater or lefferdegree, or en
tirely innocent. He who beats another upon appa
rently well founded information, and under an idea
of having been reviled by him, was never yet deemed
scandalous and infamous on that account, even though
it should afterwards appear that he was mistaken.
It is, however stated that, by that note I "J*/*?
inftfuitrtcd, that major Cubing had been guilty of w
lainotts conduct " To this I answer, that it must ap
pear I had fufficient reason for believing his conduft to
be such as I mentioned ; and I am so far from believ
ing the insinuation to be faife, as to have no doubt on
my mind of its being ftri&ly true.
Major Cufhing, it is true, denies having ever inter
fered with any member of Congress, refpefting my
claim. But this evidence ought, in my opinion, to be
received with many grains of allowaoce, when the va
rious chara&ers in which he appears in this business
as mentioned in the early stage of these remarks, are
taken into confederation.
But further, major Cufhing admits that he was seve
ral times i« company with members of Congress when
the fubjeft of my claim was mentioned, at which
times, it was possible, he might have made such ob
servations as he supposed werepropei upon the occasi
on ; but ho denies that he ever gave a dircß opinion
that the claim wat improper ; and adds, th3t he never
introduced the fubjeft to any Senator or Representative.
What idea the major meant to convey, with what he
may deem a f'afe confidence, when ha fays that he ne
ver interfered with my claim, is pretty evident from
hia faying that he never introduced the fubjeft to any
Senator or Representative, since he admits that he was
feversl times in company with members of Congrcfs,
when the fubjeft of mv claim was mentioned, and
dots not deny having, on those occafsons, made use of
such observations as he thought proper. Does the
major then mean to convey the idea, that he never in
trrfered with mv claim, because he never introduced
the fubjeft, although in several conversations with
members of Congress tefpe&ingj it, he made use of
fueh observations as he supposed weie proper on the
occasion ? Is not the interference the fame in either
cafe; and can it make anv miterial difference whe
ther the fubjeft was introduced by him, or caught hold
of and purlued by him whenever it happened to be
mentioned by others ? But again, the major, if he is
to be believed, does not remember what anyofthefe
observations were; therefore, the court cannot, from
his evidence, form any udgment of these amounting
to au improper interference, or nor, and of course, a
correft opinion can only be formed by considering
Mr. Davis's statement, as sworn to by lieut. Strother.
But there are two parts of the major's evidence in
which he seems not to have been fufficicntly guarded,
and which, if alluded to, will (hew how much weight
is due to the other paru of his evidence. In one of
them he fays, 14 He never gave a dirtEl opinion that my
claim was improper Surely this is a full admlfli
on that he gave an indircQ opinion of its being so ; o
therwise he wonld have denied the one as well a* the
If I am right in this, J am warranted in faying his
conduit was not the less calculated to have its intend
ed effeft of doiiigi me an injury, than if it had beso
conveyed in dirbß terms, which might have created
suspicion, and defeated his objcO. Every body
knows, even without Stern's celebrated sermon on
Backbiting, that indireS hints infidjoudy iutendrd to
convey doubts, under an apparent concern, left there
may be too much found -lion for them, generally do
more injury than direct charges
Again, major Cufhn-g beingafVed if be did not at '
anytime, when my claim was before Congress, tell
Mr. Davis, a member from Kentucky "that the ap
pointment given me by General Wayne was for the
purpose ot serving m-, and not, in his opinion for the
good of the service ?" arifwered, that he hadnorecol-
Icflion of having fatd so to him, but it is foffiiU he may
have made such «* tbjtnatim," but not with a view of
injuring me.
fuch an admiflton, how can major Cufliing
fay he never interfered with my claim f—and what
credit can be due to such evidence; aa to his views,
and they can only be judged by hisa&ions. *
I have now done with this charge, and am only a.
fraid that 1 have taken up more time in refuting it
than it merited.
The next charge is for behaving in a femdahus and
infamous manner, &c. io refufing to dcmonjlrate that
major Cufhing had interfered as Hated, after he had
denied the faft, and called on me to prove it.
What kind of demonstration the major required I
will not pretend to fav : but it is realonable 10 sup
pose it to be nothing short of mathematical, fincetbisis
the only kiodsof demonftratim I have any knowledge
of I can, heaever, allure him that little short would
be necessary to convince me of his innocence.
But be this as it may, I had, on a for mer occasion,
been made too well acquainted with the major's mode
of explanation, after doing*ninjury,andbeingcalled
to an account (or it, to consent to meet him for any
such pUrpnfe. There is but one kind of personal ai
re real inn that I can ever agree to have with him, and I
know him too well to believe that be will ever agree
to that kind *f personal altercation with me,—So that
our disputes ate, probably, drawing toaclofe.
In addition to this he knew, andJhntw, that Mr.
Davis had returned to Kentucky, and would not be
heVe for some time Delays, procraOioation, preva
rication, and fubtelties I knew to be his usual wea
pons of defence—they were not mine. The wound
infliSed on tbe memory of General Wayne, and on
my honor could not remain for months without a
probe. I therefore determined on a Ipeedy remedy
in a cafe that would not admit of delay.
In this determination I was certainly j'jflifird by the
verbal message brought me by captain Taylor from
major Culbing, "That if I persisted in thii thing, he,
major CulHing, would disgrace me, and that thit wu
the anfwerhe was to bring me."
I will not intuit the spirit and fetlinga ofmy judges
by a (king them whether there it any one ot them,
who, after receiving fuchia meflage, would con»ey an
answer through any other medium than the Coffee
houfe books, or a newfpaper; or, if he could
bring himfelf to expreft in any other language than
that made use of by
Signed.
The court assembled pursuant to adjourn
ment. Captain Lewis made bis defence, and
the court Jind that the prisoner is not guilty
of tbe charge on which be has been tried, and
therefore do acquit him.
(Signed)
MAHLON FORD,
Capt. Artillerist & Engineers,
and President.
(Signed)
Charles Willisc Hare,
Judge advocate pro hac.
The President of the United States having
fully considered the proceedings of a General
Court Martial, which was convened at the
city of Trenton, in the state of New-Jersey*,
by virtue of a warrant issued from the War-
Office, and sat from the zctb to the 30th,
inclusive, October 1798, for the trial of capt.
Thomas Lewis on the charge nnd specifica
tions thereof, Exhibited in a paper of which
the following is a copy, viz.
Philadelphia, 20th July, 1798.
Captain Thomas Lewis, of tbe army of the
United States, is hereby ordered in arrest, on
tbe following viz. For behaving in
a scandaLus and infamous manner, such as
is unbecoming an officer-, and a gentleman :
ist. Ia writing me a note, on the 18th
instant, July .1798, containing tibese words,
viz " For your villainous interference a
gainst a just claim kubicb I bad before Con
gress,! am determined to punish you," there
by falsely iusinuating that I had been guilty
of villainous conduct, and in a style as ungen
tlemanlike as it is false.
2d. In refusing to demonstrate that I bad
interfereas stated in the above note, after
I bad denied the fact, and called on him to
prove it.
3d. In publishing in the coffee bouse of this
city, on this day, (the iotb July 1798) that
major (lushing is a paltroon and no gentle
man, or words to that effect, all which, toge
ther with other specif cations as may be given
in full trial, will be fully proven by
T. 11. GUSHING, Major\st Heft
of Infantry in the service of the
U.S.
Together with the defence of capt. Lewis,
and the sentence of the court, viz.—" That
the prisoner is not guilty of the charge on
wbicb be has been tried, and therefore do ac
quit him." ~ r '
lam commanded to make known, that the
President approves of the aforesaid sentence,
from a conviction that the court could not
have done otherwise, than acquit captain
Lewis of behaviour that was scandalous and
infamous ; but is of opinion, that captain
Lewis t in the style of his frst note to major
Cusbing, neglected the urbanity and decorum
becoming an officer, and in this particular is
therefore reprehensible for bis error.
Given at the War-Office of the United
States, in Philadelphia, this 14tb day
of January, 1799, and in the 33d
year of the Independence of said States.
(SignedJ' JAMES M'HRNRT,
Secretary of War.
THE fiirtfdog rtfolution 6f I general Court Mar
tiki, which w»c<MM«B«d'M of Trtnton, To
the state of New- by mr m of a wmnt. iffu
edfrojnihe \V»r Office, iod lu tram the«oth to the
80th iacluliitc, Ofiobcr 1799, far the trial ofcjptiio
Th'otaU Lewi*, aud Mi« fcmence of the court, together
with tlve ddfeoce narde by captain Lewii, m 4 the ap
prove of the afarefrid (eoreftcr by comp>ynrf of thft
FreUdent, »re truecopievfroni the original*, on file,
to the War Once as (hf United Statft,
* ? JOHN OALDWm,
,' XV CIV. Dpaat.
War Office, 6tb ..
December 28, 1798.
WHEN (tit claim of major Thomas Lewis
at extra aid de camp to general Wayne was before
Congrrfs the second tirnr, I aflccd major Thomas
Cufhing his opinioftof the claim. He ft id it was
not founded oft law, aRd he believed th« appoint
ment of extra aid wis ufeltfs arid gi*en to I.ewii
as a matter of convenience, to afford him an oppor
tunity of fettling his privite bufinffs, "and that
major Lewis had told him so, or words to that im
port. Other convention did pass, but the parti
cular words I ra<nct tcmcmber; however, it
amoun'ed fully t« t'.iis, viz. that the claim of Tho
mas JLcwii was uuiliQ, and ought not to' he granted.
THOMAS DAVIS.
Major Thomas Lewis.
[Cipt. Lewis declares that so far from having
made use ol any «/th> erpreflion* tc Major Ci'.fti
<ng, contained ii» rt? ccrt fUate of Mr. Davis, that
he never had a converfatioc with him at any time
on the fubje<s of his appointment at Aid-de-Cai»p
to General Wayne.]
Of the COMMITTEE
To whom were referred, on tlie 12th inft.
certain MEMORIALSand PETITIONS
complaining of the aft, intitled, " an aft
" Conceniing Aliens,"
And OTHER LATE ACTS of the Con
gress of the United States.
[Made the order for this day, Feb. 35.]
The Gomm^ ttEE, to whom were referred
the Memorials of sundry inhabitants of tbe
counties of Suffolk and §>ueen, in tie state
of New-Tork ; if Essex county in New-
Jersey ; of tbe counties of Philadelphia,
York, Northampton, Mifflin, Dauphin,
Washington, and Cumberland, in Pennsyl
vania ; and of the county of Amelia, in
Virginia, complaining of the act, entitulcd
" an act concerning aliensand other late
ads of Congress, submit tbe following
IT is the profcflfed objeft of these peti
tions to folitit a repeiil of the two afts pafled
during the last feflion of congress, the one
" an aft concerning aliens," the other " an
aft, in addition to an aft for the punishment
of certain crimes againll the United States,"
on the ground of their being unconftitution
a!, oppressive and impolitic.
The committee cannot, however, forbear
to notice, that the principal measures hither
to adopted for repelling the aggreflions and
insults of France have not el'caped animad
version.
T. LEWIS,
October 20th.
Complaints are particularly direfted against
the laws providing a navy—for augmenting
the army—authorising <l provisional army,
and corps of volunteers—for laying a duty
on Ramped vellum, parchment, and paper
aflefiing and collefting direct taxes —and au
thorising loans for the public service.
With these topics of complaint, in fonie
of the petitions, are intermingled inve&ives
against the policy of the government from an
early period, and insinuations derogatory to
the character of the lagiflature, and of the
adniiniftration.
While the committee regret that the pub
liccouncils fliouldeverbe invited to listen to
other than expreflions of refpeft, they trust
that they have impartially considered the
questions referred to their examination,
and formed their opinions on a just apprecia
tion of their merits, with a due regard to
the authority of government, ar.d thedifpaf
fionate judgment of the American people.
The aft concerning aliens, and the ad in
addition to the aft, intitutled an a£t for the
punishment of certain cilinies, (hall' be firft
considered.
Their constitutionality is impeached. It is
contended, th«t congreft have no power to
pass a law for removing aliens.
To this it is answered, that the asylum gi
u '-*jU
■* <§ ■"—
RFPORT
REPORT
ven by a nation to foreigners is men mat
ter of favor, refumable at the public will. On
this point, abundant authorities might be
adduced, but the common practice of nations
attests the principle.
The right of removing aliens, as an inci
dent to the power of war and peace accord
ing *o the theory of the constitution, belongs
to the government of the United States. By
the 4th fefton of the 4th article of the consti
tution, congress is required to protfft each
state from invasion, and is vested by the Bth
ifeftiori of the jth article, with power to
make,all laws, which shall be proper to carry
in to Weft all powers veiled by the cor.ftit'J
tion in the government of the United States,
or in any department, or officer thereof ;
and to remove from the country, in times of
holiility, dangerous aliens, who may be em
ployed in preparing the way for invasion, is
a mealure neceflary for the purpoie of pre
venting invasion, and of course, A measure
that congress is empowered to adopt.
J he aft is laid to be unconstitutional, bc
caule to remove aliens, is a dire£t breach of
the conllitution, which provides, "by the
9th feftion of the ift article, that the mi
gration, or importation of such persons as
any of the states shall think propfr to admit,
lhall not be prohibited by the Congress, pri
or to the year 1808."
I o this, it is answered, firft that this sec
tion in the constitution was enafted solely
in to prevent congress from prohibiting, un
til after a fit period, the importation of
slavks, which appears from two conlider
ations. First, that the reftriftion is confin
ed to the states which were in existence at
the time of establishing the constitution ;
and secondly, that it is to continue only
twenty years, for neither of which modifi
cations could there have been the least reason
had the reftriftion been intended to apply,
not to Haves particularly, but to all emi
grants in general.
Secojtdly. It is aofwered, to prevent
emigration in general, is r very different
thing from fending pff, Sifter their arrival,
such emigrants as' might abuse tb© irnht!-
gence, by rendering themselves dangerous
to-the peace or fafety of the country, and
that ,if the cpnftittition, in tjjis particular
fliould be Jo construed r it would 1 prevent
cotigrtfs from driving it body of ara?ed ir*en
from the country, who might land with
views Evidently hoftiie.
Thirdly, That a* the Cor.ftitution has
given to the dates do power, to remove ali
ens, daring the period of the limitation un
der consideration, in the mean time on the
condruftipn afTuuted, there would be no au
thority in the country, empowered to feud
away dangerous aliens, which cannot be ad
mitted ; and that on a supposition the afore
faid redtiftive clause included every descrip
tion of em grants, the different feftions
mud recieve such a condraftion at shall re
conc le them wivh each other ; and accord
ing to a fair interpretation of the different
parts of the Coriflitution, the fcftion can
not be confid<*rfd as redriftive on the pow
e» of Congress 19 fend aarey dangerous for-1
cigners in times of threatened or aftual ho
dility. And though the United States at
'.he time of pafling this aft, were not in a
date of declared war, they were in a date of
partial hodility, and had the power, by law,
to provide, ae by this aft they have done,
tor removing dangerous aliens.
This law is said to violate that part of
the Condi: ution which provides that the tri
al ef all crimes, except in cases of irapeach
meut shall be by jury ; whereas this aft in
veds the President with power to fend away
aliens on his own fufpicioD, and thut t» in
ftift puriifhment without trial by jury.
It is answered in the fiift place, that the
Conditution was made for citizens, not
for aliens, who of confequencr have no
Rights under it, but remain in the coun
try, and enjoy the benefits of the laws, not
as matter of right, but merely as matter of
favour and permiflion, which favour and per
mission may be withdrawn, whenever ihe
government charged with the general wel
fare shall judge their further continuance
dangerous.
It is answered in the second place, that
the provisions in theConftitution relative to
prelentment and trial of offence* by juries,
do not apply t* the revocation of an asylum
given to aiiens. Those provifionj toJely
refpeft crimes, and the alien may be remo
ved without having committed any offence,
merely from motives of policy or fecurily.
The eitizen, being a member ef focicty,
has a light to remain in the country, of
which he cannot be disfranchifed, exc pt
for offences firft ascertained, on presentment
and by jury.
It is answered thirdly, that the removal
of aliens, though it may be convenient to
them, cannot be considered as a punilhment
infli&ed for an offence, but, as before re.
marked, merely the removal f r «m motives
of general fafety, of an Indulgence which
.here is danger of their abnfing, and whfch
ve are in no manner bound to grant or
continue
i rhe ' Aft in addition to an a£t, iutiiuled
an aCt „ f( \ r punishment of certain crime»
agamft the United States" commonly cal
led the sedition »a, contains provisions of
twofold nature ; firft, against feditiousafts
and, second, against libellous and seditious
wnttmgi- Tn« firft have never been com
plained of, nor has any objeaon been made
to us validity : The objeaion applies (ole
ly to the second ; and on the ground, in tht
fi'ft place, that Congress have no power by
the Court itution to pass any a a for punish
ing libels, no f lic h power being expressly
given, and all powers not given to Congress,
being reserved to the states refpeaively, or
the people thereof. 3
To this objeftion it is anlwered, that a
law, to punilh falfe, scandalous and mali
cious writings against the government with
intent to stir upfedmon, is a law necessary,
for carrying into effed the power vested by
tt • j" o tUtlon 10 llle 8 0¥ernrn ent of the
V' 3 r d ,he
dad officers thereof, and coafequently futh
a law,as CongreU may pass : feecaufe ;h f
direiSt tendency of such writings is to r,b
ftruft the afts «f the government by excit.
iing opposition to them, to endanger its ex.
ftente by rendering it odious and contemn,
tiblc in the eyes ot the people, and to pro.
duce seditious combinations against the laws
the povTer to punilh which has never beer
quefh'oned : bccaufeit would be manifeftlj
absurd to suppose that a government might
punilh sedition, and yet be void of power to
prevent it by punilhiug those a£h, which
cause under the general power to make all
laws proper and neccffary for carrying into
effeA the powers vested by the Conftitutior.
in the government of the United States
Congrtfs has parted many laws for which no
express provision can be found in the Con.
ftitution, and the conftitutionali'y of which
has never been questioned ; fuc.h as the firft
feftien of the att now under eonfideratioß,
aCt pa fled during the present fefiioa, for
punilhing peifoi s who, without authority
from the government, (hall carry on m
correspondence relative to foreign affairs
with aay foreign government ; —the aft f or
the punilhment of certain crimes againftthg
United States which defines andp;ini/V
misprison of treason ; the lotli and izt
feclions, which declare the puntlhrnent c
fliall confederate to become pirates thein
felves or to induce others to become so,
the 15th feftion which inflifts a penally on
those wlv tteal or falfify the record of any
court of the United States; the 18th aud
31 ft fe&ions, which provide for the punifli.
ment ef persons committing perjury in any
court of the United States, or attempting
to bribe any of their judge* ; the 2id sec
t efill the prscefs of any court of the United
States, and the 23d against rescuing the of.
fenders who have been Evicted of any
capital offence before V&ofe courts ; provU
i.ons none of wh-.y, are CJtprefsly author ;f.
f, .J w ,ir -0 have been considered as con
ihtutionj.,, because they are necessary and
proper for carrying into cff.ft certain po*.
R.i cxprefsly given to Congress.
It is objected to this aft, in the second
place, that it is txprefsly contrary to that
part of the coaftitution which declares that
" Congress {hall make no law refpeaing 3n
eftablirtiment of religion, or prohibiting the
free exereife thereof, or abridging the liber
laid to be an " abridgment of the liberty
of the press, ' and therefore uncondi
tional.
To this it is answered, in the firft place,
that tne liberty of the press coi>fift ß llo t : a
pleases, w.thout being liable to punilhrnent
if he Ihould abuse this licence to the injury
lie and individual*, for any abijfe o{ this
permission to their prejudice; in like man
! juftity him .n going by violence into another
; man's house, or in afTaulting any perfoo
•• the liberty of the pref*," while in fcveral
if not all, their laws provide for the puni/h.
men! of libellous publications, which would
be a manifeft absurdity and contradiftion, if
any and every thing, without being amena.
ble to the laws for the abuse of this licence.
According to this jsft, legal, a ß d universally
admitted definition of " the liberty of the
P rc /*.''' a law to restrain its licentioufrefs, in
piiblifhing falfe, scandalous, and malicious
eonfidered a. « an abridgement" of its
" liberty."
t> >fi t <
It is answered, in the second place, that
the liberty of the press did nerer extend, ac
cording to the laws of any state, or of the
Umt.d States, or of England, from whence
our laws are derived, to the publication of
3 wt and malicious writings a
gamft the government, written or published
with intent to do mifchief, such publications
being unlawful, a „d puniffiable in every
rtate ; from whence it follows, undeniably,
i lat a law, to punish seditious and malicious
publications, is not an abridgement of " thr
liberty of the press," f„ r it would be a man,'-
*■ a^fui 'dity to fay, ihat a man> liberty
was abridged by punching him for doing
that which he never had a liberty to do.
It is answered thirdly, that the aft in
quettion canno.t be uneonflitutional, because
if makes nothing penal that was net penal
before, and gives no new powers to the
court, but it merely declaratory of the com
mon law, and ufeful for rendering that law
more generally ka )wn, and more easi
ly undeiltood. This cannot be denied, and
if it be admitted, as it mull be, that falfe,
fcandalcua, and malicious libels againfl the
government of the country, published with
intent to do mifchief, are punilhaMe by the
cammonlaw; for by the 2d feilion of the
3d article of the constitution, the judical
power of the United States is expressly ex
tended to all offences ariling under the con
stitution. By the constitution, the govern
ment of the United States is ettablifhed, for
many important objefls, as the govern
ment or the country; and libelsagainft
that government, therefore, are offences a
rising under the •onftitution, and conse
quently are puniftiabW at common law by
the courts of the Uni ted States. The a&»
indeed, is so far from having extended tbs
law, and the power of the court, that it
has abridged both, and has enlarged in
fkad of abridging the «• liberty of the
\