Thoughts on the First Amendment: C. Chauncey Burr, 1864

To those not well-read in the Civil War era, it may come as a surprise that the Lincoln administration shut down over 300 newspapers and jailed numerous people for speaking against the war or criticizing the Administration in some form or another, and a sitting congressman was even exiled during war. Consequently, Copperhead, C. Chauncey Burr, wrote a book (referenced at the end) about the Constitution. This selection comes from his thoughts on the First Amendment.

Italics are in the original.

August Glen-James, editor

The freedom of speech and of the press guaranteed in this Article is a right so sacred that none but the most desperate or reckless of tyrants has dared to destroy it. To deny a man this freedom, is to attempt the subjugation of his mental life. None but a demoralized and debased people ever submitted to an abridgment of this right.

The amendments to the Constitution may be regarded as partaking of the character of a Bill of Rights. The extreme jealousy of the people, who had just come out of a prolonged and bloody struggle for the establishment of their independence and freedom, made them hesitate to adopt the Constitution until they had every guarantee that it could never be construed to impart powers to the general government which might one day be turned against the States. When the Convention of Massachusetts ratified the Constitution, they suggested nine amendments to it, for the following reason:

“And it is the opinion of this convention, that certain amendments and alterations in the Constitution, would remove the fears, and quiet the apprehensions of many of the good people of this commonwealth, and more effectually guard against any undue administration of the federal government, the convention do therefore recommend, that the following alterations and provisions be introduced into the said Constitution.”

It was to guard against the undue administration of the federal government that the amendments were recommended. Among these recommendations was the one embraced in Article tenth of these amendments. All the States evinced the same solicitude in relation to the danger of the federal government attempting to exercise powers not granted in the Constitution.

The perfect right of self-government, or of State Government was a great and absorbing object with those who framed and with those who accepted the federal Constitution.

The first sentence, however, in the Article First of these amendments, forbidding Congress to make any law respecting religion, gave much offense to a very great number of the clergy. They declared that this Article “voted God out of the Constitution.”

The freedom of speech and of the press guaranteed in this Article is a right so sacred that none but the most desperate or reckless of tyrants has dared to destroy it. To deny a man this freedom, is to attempt the subjugation of his mental life. None but a demoralized and debased people ever submitted to an abridgment of this right. In the old republics of Greece, thought and speech were always free. Words, were revenged only by words. It is for this reason that the literature of Greece is so full of force, nobility, and genius. And Greece gave these great lessons of freedom to the Roman Republic. The laws of Rome only restrained deeds. Writing and speaking were free, even for a long time after the Republic fell. Cæsar permitted the largest liberty of speaking and writing. Even his own soldiers sung the most revolting scandals about him up and down the lines of the army without punishment. His successor, Augustus, was equally tolerant of the utmost liberty of speaking and writing. Said he, “Let us not punish words but deeds. Let all men’s words be free.” Even Tiberius declared: “in a free State, speech and thought, word and feeling must be free.” Such was the character of the Roman people at that time, that their rulers were forced to yield gracefully this boon of free speech. None but a depraved people will long consent to the loss of this freedom.

The freedom of the press in England has been in one way and another guaranteed since the reign of William III. But it has often had to struggle hard against the arbitrary power of corrupt rulers.

Since the election of Mr. Lincoln, the freedom of speech and of the press in this country has depended entirely upon the caprice of the President, or the whim or malice of his Secretaries, Provost Marshals, and Generals. There has been a total disregard and contempt fo this Article of the Constitution. The excuses that have been made for the violation of the organic law of the land are precisely such as are always made by usurpers and tyrants for similar deeds. How unaccountably have the people submitted! It looks as though some foul fiend had bewitched the public. When the President threw away his oath of office, the people seem also to have thrown away their manhood. Congress has passed several acts designed to destroy the virtue of the Article. But as all acts of Congress done in violation of the Constitution are null and void; these acts are not laws. The Constitution is the supreme law. To that let the people hold fast, and by that let them judge of the character and desserts of those in office. Men have been seized even in New York for having had a respectful petition to Congress found in their possession. Public assemblies of peaceable and law abiding citizens have been dispersed in almost every State by the bayonets of soldiers, acting by the order of provost marshals, who receive the inspiration of their lawless deeds from the fountain head at Washington.

Burr, C. Chauncey. Notes on the Constitution of the United States, With Expositions of the Most Eminent Statesmen and Jurists. J. F. Feeks, New York, 1864. PP. 77-80.