University of Virginia Library

7761. SEDITION LAW, Executive vs. Judiciary.—

You seem to think it devolved

on the judges to decide on the validity of the
Sedition law. But nothing in the Constitution
has given them a right to decide for the Executive,
more than the Executive to decide for
them. Both magistrates are equally independent
in the sphere of action assigned to them.
The judges, believing the law constitutional,
had a right to pass a sentence of fine and imprisonment;
because the power was placed in
their hands by the Constitution. But the Executive,
believing the law to be unconstitutional,
were bound to remit the execution of it;
because that power has been confided to them
by the Constitution. That instrument meant
that its coordinate branches should be checks
on each other. But the opinion which gives
to the judges the right to decide what laws are
constitutional, and what not, not only for themselves
in their own sphere of action, but for the
Legislature and Executive also, in their
spheres, would make the judiciary a despotic
branch. Nor does the opinion of the unconstitutionality,
and consequent nullity of that
law, remove all restraint from the overwhelming
torrent of slander, which is confounding all
vice and virtue, all truth and falsehood, in the
United States. The power to do that is fully
possessed by the several State Legislatures. It
was reserved to them, and was denied to the
General Government, by the Constitution, according
to our construction of it. While we
deny that Congress have a right to control the
freedom of the press, we have ever asserted
the right of the States, and their exclusive
right, to do so.—
To Mrs. John Adams. Washington ed. iv, 561. Ford ed., viii, 311.
(M. Sep. 1804)