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excepted that right. Where was it then? It was with the people, who, in order to the distribution of powers therein specified, and for that pur. pose, had resumed their full, their native rights. That, indeed, was a matter of moment. For, could they once ascertain where the right then was vested, they might then find the key to unlock the Constitution, so as to find the power to pass an alien-law. If Congress had not the right, the states must have a paramount right to protect aliens. If Congress had it not, the states could suffer aliens to remain within them, in despite of Con. gress. Could the states then confer a perfect right on aliens? If they could not, they had no power to keep them here. For, if they could keep them here one hour, they might keep them here until 1808. But, Mr. Cowan said, he would attempt to show that the states had no such right. He hoped gentlemen would answer him on that point. A state could confer a perfect right only in two ways : First, by naturalization ; but this subject was conveyed to Congress. Secondly, by treaty with the state from which the alien comes ; but this power, too, was vested in Congress, and prohibited to the states. Could an act of Assembly confer a perfect right? No; because, “a perfect right is that to which is joined the right of constraining those who refuse to fulfil the obligation' resulting from it.” An alien could not oblige a compliance with the terms of it. It had been said that the alien-law violated that part of the Constitution which gives the state a right to exclude aliens, if it thinks proper. But, if the state could not give the right to them to remain, it must be with Congress, and therefore no violation. By the Constitution, a power was given to Congress to repel and to protect against invasion, and to make any
law to carry its measures into effect. What could be the meaning, then, of those clauses? The terms to repel invasion, and protect against invasion, gave different powers. Could it be thought proper, that the general government should have no power to defeat a plan before it was matured ? It must be inferred, then, from such words, that Congress had the power to take such measures as would secure the people. There was no neces. sity, then, of resorting to the last clause of the eighth section of the first article, for the power in question. The general powers of Congress would be sufficient to give it. When bound to accomplish an end, are not, said he, the means included? Or are they withheld? But, if the state had no such power, it was in Congress. For, if it was not there, where was it? Thus much, Mr. Cowan said, for the constitutionality of the alien. law. He proceeded next to discuss its nature. It had been said, that it blended different powers. But, Mr. Cowan said, that the Constitution of the United States, in his opinion, was not such an one as that the powers of government were necessarily kept separate and distinct. It was true, they were so in the state Constitution ; but that they are not so in the former, was proved by the instance of the President's ratifying à treaty. For, as the treaty when made, becomes a law, his ratification has the effect of a legislative act. He must often act with a union of powers. By approving laws, particularly, he legislates; and in cases where no person is pointed out by a law to enforce its execution, the President per. haps is the proper person to do it. This is proved by that clause in the Constitution which directs, that the President shall take care that the laws
be faithfully executed. Therefore, even if the President had not been named to carry the alien-law into effect, by the Constitution, he must have done it so far as was executive. Two powers, then, are united by the Constitution in him.
Mr. Cowan then observed, that if the committee could be convinced that the law was constitutional, they certainly must conceive the wisdom of Congress adequate to the policy of such a law. The alien-enemy laws passed by the Legislature of this state, and also by the Congress of the United States, had been admitted by the gentleman from Caroline to be necessary. He (Mr. Cowan) considered that law of Congress as being very analogous to the law now the subject of debate. For, if such enemy. alien law be necessary in a state of war, the law of Congress now under the consideration of the committee, under defensive operations, was necessary in proportion. It had been urged 100, that aliens, by the law of nations, had the same rights as citizens. But that the alien was so en. titled, he said, was necessary to be shown. There certainly was a distinction between the alien and citizen. An alien is not subject to all the laws of a country, but such only as regulated the affairs of private life. Mr. Cowan then read the seventh amendment to the Constitution, contain. ing the principles and regulations which were to govern in criminal cases. Gentlemen had derived rights to aliens under this clause, and seemed to rely much upon the word persons used in this clause. But he (Mr. Cowan) asserted that aliens were entitled to their privileges from a principle of the law of nations, and not under the Constitution, as a party thereto. For the alien could not be made a soldier, he owing allegiance elsewhere. The expressions, too, used in the seventh amendment, “except in cases arising in the land or naval forces, or in the militia when in actual service, in time of war or public danger," prove that aliens were not the persons contemplated by that clause, but citizens, they only being subject to those kinds of service. Indeed, an Indian or a negro might, by such doctrines as gentlemen held, be as well entitled as an alien. - But none of these were parties to the Constitution. Gentlemen who argued thus, would prove too much for an alien. They would place him in a better situation than our own citizens. It had been said banishment is a punishment. But banishment of a citizen, said Mr. Cowan, exists not under the Constitution. He said, also, that an alien on coming into, admitted the right of sovereignty of the country over him. This was the condition of his admission into every country: to illustrate which, he repeated the observations which he had before made upon that point. He also recapitulated his preceding arguments about perfect right, and then observed that it had been said that this Assembly ought to adopt the resolutions before them, and not use force; but by means of them, produce an effect on the general government. And it was further said that the compact was between states. But, Mr. Cowan said, he could not agree with gentlemen in these points. What effect could the resolutions have? It ought to be supposed that Congress had wisdom : that, if they thought they were right they would not recede. If they thought they were wrong, he believed they would endeavour to do what was right. He thought, too, that the compact contained an union both of the states and people. What, said he, would be the effect of de
claring the laws null and void? The principle would extend to all laws of Congress whatever. What then would be the result? It would shake the foundations of tranquillity. It would shake the faith of the people in their government, as well as the faith of foreign nations in it. It would be setting up powers paramount to the government. Because a few of the people had directed them to act upon the subject, could they think they had the power? Had the people empowered them to declare the laws null and void ? On the contrary, if the people on their return, should hold a different language, how could the members of this House justify themselves to the people? Would it be by telling them that they, their representatives, had all powers? He again stated the consequence of exercising such a power. And if the compact were to be dissolved, he asked, what would be the consequences ? The resolutions would give a pause to the acts under consideration. For they recommended to the people to obey or not obey. And if without power from the people, this Assembly should attempt to exercise their rights to control the general government, he asked what would be the consequences? He enumerated them much at large, and concluded with an earnest request that they would not adopt the mode proposed by the resolutions.
On motion, the committee then rose, the chairman reported progress, asked, and had leave for the committee to sit again.
IN THE HOUSE OF DELEGATES,
Thursday, December 20, 1798.
The House resolved itself into a committee of the whole House, on the state of the commonwealth, Mr. Breckenridge in the chair, when Mr. John Taylor's resolutions being still under consideration,
General Lee arose, and said that he was sorry he had been prevented from attending his duty in the House earlier in the session. He had thereby lost the opportunity of combating the pernicious system in opera. tion at its commencement, as well as that of obtaining the information which previous discussion must have afforded. Disadvantageously, how. ever, as he felt himself situated, he could not refrain from presenting to the committee those reasons which influenced him in opposing the resolutions. There were, he believed, three propositions on the table: the resolutions proffered by the worthy member from Caroline : counter resolutions proposed by his worthy friend from Prince George, and a resolu. tion proposed by a worthy member from Prince William. To the counter. resolutions he gave his cordial assent: to the last proposition he also assented, as it breathed a spirit congenial to true American policy, and afforded an innocent way of disposing of the resolutions from Caroline. But inasmuch as the rejection of the first resolutions would necessarily involve the approbation of those proposed in opposition, he should apply his observations to effect that object only.
General Lee then contended, that the ruling principle in the resolutions was erroneous. They asserted as a fundamental position, that the existing Constitution was a compact of states. He denied this position : declaring the Constitụtion to be a compact among the people. The ancient confederation was a compact among the states ; it was so in style, manner, and power. But the government under which we now live, was precisely the reverse. What is its style ? “We the people.” What is its manner? Executed by functionaries appointed mediately or immediately by the people. What is its power? That of the people; derived from them, and based upon them. How then could it be asserted that the present Constitution is a compact of states? And would the committee sanction by their approbation, a declaration palpably wrong?. It was true, there was to be drawn from the Constitution some faint support for this erroneous construction. The Senate, one branch of the Federal Government, was elected by the states, as states. This deviation from the general system could not be relied on to destroy the system itself. It was the result of our peculiar situation. The smaller states could not be induced to renounce their existing equality entirely. It was necessary to compromise, in order to obtain the happy Constitution we possess.
To this compromise was attributed the federal feature just mentioned. But this partial departure from the general principles of the system, could not be regarded as covering the broad ground taken in the resolutions. All the branches of government ought to be elected by the states, as states, to maintain the position assumed.
This was not the case, and consequently the resolutions were radically erroneous.
General Lee then proceeded to the examination of the alien and sedition laws. He began with the alien law, which he contended was not a breach of the Constitution. If the law was unconstitutional, he admitted the right of interposition on the part of the General Assembly; nay, it was their duty, and every good citizen was bound to uphold them, in fair and friendly exertions, to correct an injury so serious and pernicious. He would himself cordially contribute his humble mite; but even in that case, he should adopt a very different manner from that contained in the resolutions. Friendship should be the ground, friendship the dress, and friendship the end of his measures. The resolutions inspired hostility, and squinted at disunion.
The objections made to the alien-law were : 1st, It transcends the power of Congress. 2d, It violates that article of the Constitution which leaves to the states the right of admission of emigrants. 3d, It deprives an alien-friend of trial by jury. 4th, It unites legislative, executive, and judicial powers. To the two last
, he said, he should particularly attend, as gentlemen preceding him had, he understood, fully noticed the two first. General Lee read some passages from the law, tending to show that the prevention of commission of crime, and not the punishment of a crime committed,' was its only object.
He then proceeded to show that trial by jury could only apply on charge of crime committed. It was ludicrous to attempt to apply it in the alien-law; and it was consequently absurd to stigmatize that law, and
those who framed it, with violation of the Constitution, by denial of trial by jury, where trial by jury could not possibly apply. The law was in its nature preventive, and sprung from the right of duty of government to protect the states from invasion. The exercise of this right belonged to Congress, and they were the sole judges of the expediency. In their decision, all ought to acquiesce. In case of error or vice, the revolving elections presented a proper corrective, which could be applied to without commotion or disturbance; and which, fairly and judiciously applied, could not fail to cleanse the body politic.
During the debate, it had been well observed by the worthy member from Lunenburg, that the injustice of France might be considered as the root of these measures, and that it was not easy to discuss the latter, without reference to the former. This remark was certainly true, and must have been felt by every gentleman engaged in the discussion. In case of an invasion, a measure dependent only on its practicability, of which practicability our venomous and insatiable foe was the sole judge, what keen and operative aid might not be afforded by the numerous aliens, long fostered by American hospitality, and anxious for an opportunity to display their ingratitude, if we might be permitted to form an opinion of their future conduct by the zeal with which they laboured to expel from the breasts of our citizens all respect for religion and government; preparing, as far as was in their power, the American people for the reaction of the French and Saint Domingo tragedies.
Ought not then Congress to have taken measures to rid their country of such eventual misery? It was their first duty so to do; and supineness on their parts would have been criminal.
But it seems that aliens have rights under our Constitution. It was wonderfully kind, he said, in our fathers to devote their time and money to the care of the Turk, Gaul, and Indian, when the proper object was that of their children. This spurious doctrine, however confidently asserted, was not credited by the gentlemen themselves. They might impose on others, but the discernment of their own minds forbade success in imposing on themselves. An alien would claim no right in this country, unless he could show a treaty for it; excepting his participation in the usual rights of citizens, which he held upon courtesy, and which courtesy could be withdrawn at the pleasure of the sovereign power. Be done then, he said, with all these pretences. They were groundless, and seized only to excite more and more the begun ferment.
The sedition-law, General Lee said, was also declared to be a violation of the Constitution. Let us, said he, examine it. Let us refer to the clause in the Constitution securing the freedom of the press, which we are told by the above law is abridged. By the law you must conspire to oppose a measure of government; or utter, write, or publish, with the intention of opposing, or exciting opposition to government. The publication must also be false, malicious, and scandalous,
General Lee then asked, if government was worth preserving? not, let it be annulled. If it was, deny not to it, he said, the means of preserving itself. The Constitution must be very defective, if it held not the power of self-preservation. It was not defective; and a fair construc.