seems; or unless there was some actual restraint upon it, under the
Constitution of the United States, at the time of the adoption of this
amendment, commensurate with that imposed by this law. Both are
asserted, viz., that the "freedom of the press" has a defined, limited
meaning, and that the restraints of the common law were in force under
the United States, and are greater than those of the act of Congress,
and that, therefore, either way the "freedom of the press" is not
abridged.

It is asserted by the select committee, and by everybody who has gone
before them in this discussion, that the "freedom of the press,"
according to the universally received acceptation of the expression,
means only an exemption from all previous restraints on publication, but
not an exemption from any punishment Government pleases to inflict for
what is published. This definition does not at all distinguish between
publications of different sorts, but leaves all to the regulation of the
law, only forbidding Government to interfere until the publication is
really made. The definition, if true, so reduces the effect of the
amendment that the power of Congress is left unlimited over the
productions of the press, and they are merely deprived of one mode of
restraint.

The amendment was certainly intended to produce some limitation to
legislative discretion, and it must be construed so as to produce such
an effect, if it is possible. To give it such a construction as will
bring it to a mere nullity would violate the strongest injunctions of
common-sense and decorum, and yet that appears to me to be the effect of
the construction adopted by the committee. The effect of the amendment,
say the committee, is to prevent Government taking the press from its
owner; but how is their power lessened by this, when they may take the