Speech in Congress on "Self-Created Societies"

November 27, 1794.

Mr. Madison — said he entirely agreed with those gentlemen who had observed that the house should not have advanced into this discussion, if it could have been avoided — but having proceeded thus far it was indispensably necessary to finish it.

Much delicacy had been thrown into the discussion, in consequence of the chief magistrate; he always regretted the circumstance, when this was the case.

This he observed, was not the first instance of difference in opinion between the President and this house. It may be recollected that the President dissented both from the Senate and this House on a particular law (he referred to that apportioning the representatives) — on that occasion he thought the President right. On the present question, supposing the President really to entertain the opinion ascribed to him, it affords no conclusive reason for the House to sacrifice its own judgment.

It appeared to him, as it did to the gentleman from Georgia, that there was an innovation in the mode of procedure adopted, on this occasion. The house are on different ground from that usually taken — members seem to think that in cases not cognizable by law, there is room for the interposition of the House. He conceived it to be a sound principle that an action innocent in the eye of the law, could not be the object of censure to a legislative body. When the people have formed a constitution, they retain those rights which they have not expressly delegated. It is a question whether what is thus retained can be legislated upon. Opinions are not the objects of legislation. You animadvert on the abuse of reserved rights — how far will this go? It may extend to the liberty of speech and of the press.

It is in vain to say that this indiscriminate censure is no punishment. If it falls on classes or individuals it will be a severe punishment. He wished it to be considered how extremely guarded the constitution was in respect to cases not within its limits. Murder or treason cannot be noticed by the legislature. Is not this proposition, if voted, a vote of attainder? To consider a principle, we must try its nature, and see how far it will go; in the present case he considered the effects of the principle contended for, would be pernicious. If we advert to the nature of republican government, we shall find that the censorial power is in the people over the government, and not in the government over the people.

As he had confidence in the good sense and patriotism of the people, he did not anticipate any lasting evil to result from the publications of these societies; they will stand or fall by the public opinion; no line can be drawn in this case. The law is the only rule of right; what is consistent with that is not punishable; what is not contrary to that, is innocent, or at least not censurable by the legislative body.

With respect to the body of the people, (whether the outrages have proceeded from weakness or wickedness) what has been done, and will be done by the Legislature will have a due effect. If the proceedings of the government should not have an effect, will this declaration produce it? The people at large are possessed of proper sentiments on the subject of the insurrection — the whole continent reprobates the conduct of the insurgents, it is not therefore necessary to take the extra step. The press he believed would not be able to shake the confidence of the people in the government. In a republic, light will prevail over darkness, truth over error — he had undoubted confidence in this principle. If it be admitted that the law cannot animadvert on a particular case, neither can we do it. Governments are administered by men — the same degree of purity does not always exist. Honesty of motives may at present prevail — but this affords no assurance that it will always be the case — at a future period a Legislature may exist of a very different complexion from the present; in this view, we ought not by any vote of ours to give support to measures which now we do not hesitate to reprobate. The gentleman from Georgia had anticipated him in several remarks — no such inference can fairly be drawn as that we abandon the President, should we pass over the whole business. The vote passed this morning for raising a force to compleat the good work of peace order and tranquility begun by the executive, speaks quite a different language from that which has been used to induce an adoption of the principle contended for.

Mr. Madison adverted to precedents — none parallel to the subject before us existed. The inquiry into the failure of the expedition under St. Clair was not in point. In that case the house appointed a Committee of enquiry into the conduct of an individual in the public service — the democratic societies are not. He knew of nothing in the proceedings of the Legislature which warrants the house in saying that institutions, confessedly not illegal, were subjects of legislative censure.