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then asked what would be the consequence if responsibility was taken from public servants ? The style of the resolutions too had been complained of. But whether the laws were said by the committee to be null and void, or not, was a matter, he thought, of little consequence. For if they were unconstitutional, they, of course, were null and void. He justified the mode of communication which the resolutions proposed. The people might petition if they thought proper. But the state, when addressing its own servants, ought to act as the resolutions proposed. It had a right to instruct its senators, and the people their representatives. However, Mr. Johnston said, as the subject was exhausted, he would be satisfied with the remarks he had made.
Mr. CURETON arose next, and proceeded to deliver his opinion in respect to the powers of the general government and the state governments. How were their powers derived ? From the people. The convention that framed the Constitution was called by the states. The Constitution when framed was submitted to the people, who, by convention, ratified it. He asked what would be the consequence of an opinion that the states had the balance of power alone? What was it? One-sixteenth part only. He considered that the people had powers; and contended that they had the only right to act upon the sedition law. And if Congress had usurped a power, which should appear to be an innovation on their rights, they would have the power in March next to make an example of those who had trampled on those rights; and this mode of proceeding was consistent with the Constitution. He then asked why did the resolu. tions embrace both laws ? He also made several observations respecting the power of passing such a law as the alien-law. He agreed with the gentleman from Lunenburg, that the power properly belonged to Congress; and asked how could aliens dangerous to the country be sent out of it, if the power was not vested in the President.
Mr. Cureton then proceeded to answer the objections of gentlemen in respect to the corruption of the officers of the general government; and hoped that they should be confined to the constitutionality of the laws : but he still contended that the people had the only right to act upon the sedition-law. The states never had the power alone; therefore it could not be reserved. It belonged to Congress, who were under the correction of the people only. As far as the resolutions related to the alien-law, he had no objection, he said, to do what was proper : for instance, if it should appear that the law was an infringement on the state government, to recommend it to our senators in Congress to endeavour to have the same repealed ; for that was sanctioned by precedent. But the plan of the resolutions, Mr. Cureton said, was a new one. He looked upon it as an innovation on the rights of the people, and stabbing fundamental principles. He concluded by hoping, therefore, that the resolutions would not be agreed to.
Mr. John TAYLOR arose next, and observed that though it was late, and the debates had been protracted to great length, he hoped the importance of the subject would be considered as a justification for his replying to the extraordinary and dangerous arguments which had been urged in opposition to the resolutions he had introduced,
A member of Lunenberg had even asserted them to be an act of per. fidiousness to the people; because, by undertaking to declare one law of Congress unconstitutional, the legislature would assume a power of declaring all their laws unconstitutional. Let the proposition then be reversed, to discover if there be perfidiousness in the case, the side to which it attached. Would it be said, that the Legislature could not declare this law of Congress unconstitutional, because it could declare no law of Congress unconstitutional ? Admitting such a position, did not these consequences evidently follow, that the check meditated against Congress in the existence of the state governments, was demolished ; that Congress might at its pleasure violate the constitutional rights of these governments; that they must instantly become dependent, and be finally annihilated. Could it be perfidious to preserve the freedom of religion, of speech, of the press, and even the right of petitioning for a redress of grievances ? Gentlemen, in defining the laws of Congress, had taken their stand upon this broad principle, namely, “ That every government inherently possesses the powers necessary for its own preservation.” Apply this principle to the state governments : for, if it be a sound one, they are equally entitled to the benefit of it, with the general government. Under this principle then, to which his adversary had resorted, and which he therefore could not deny, it followed that the state governments have a right to withstand such unconstitutional laws of Congress, as may tend to their destruction, because such“ a power is necessary for their preservation.” To illustrate this, suppose Congress should be of opinion, that an arrangement of men into different ranks would tend to the order of society, and should, as preparatory to this end, intermeddle with inheritances, and re-establish primogeniture. It could be only urged against such a law, that it was un. constitutional ; but if the state could not declare any law of Congress unconstitutional and void, even such an one as this must be submitted to, and of course all powers whatsoever would gradually be absorbed by, and consolidated in, the general government.
He observed, that the right of the state to contest the constitutionality of a law of Congress could, however, be defended upon better ground, than by the reaction of the doctrines of gentlemen on themselves. That a principle literally constitutional, theoretically sound, and practically useful, could be advanced, on which to rest it. It was this: the people and the states could only have intended to invest Congress with a power to legis. late constitutionally, and the Constitution expressly retains to the people and the states, every power not surrendered. If therefore Congress should, as was certainly possible, legislate unconstitutionally, it was evi. dent that in theory they have done wrong, and it only remained to consider whether the Constitution is so defective as to have established limita. tions and reservations, without the means of enforcing them in a mode, by which they could be made practically useful. Suppose a clashing of opinion should exist between Congress and the states, respecting the true limits of their constitutional territories, it was easy to see, that if the right of decision had been vested in either party, that party, deciding in the spirit and interest of party, would inevitably have swallowed up the other. The Constitution must not only have foreseen the possibility of such a
clashing, but also the consequence of a preference on either side as to its construction. And out of this foresight must have arisen the fifth article, by which two-thirds of Congress may call upon the states for an explanation of any such controversy as the present, by way of amendment to the Constitution; and thus correct an erroneous construction of its own'acts, by a minority of the states ; whilst two-thirds of the states are also allowed to compel Congress to call a Convention, in case so many should think an amendment necessary for the purpose of checking the unconstitutional acts of that body. Thus, so far as Congress may have the power, it might exert it to check the usurpations of a state, and so far as the states may possess it, an union of two-thirds in one opinion might effectually check the usurpations of Congress. And, under this article of the Con . stitution, the incontrovertible principle before stated, might become practically useful; otherwise no remedy did exist for the only case which could possibly destroy the Constitution, namely, an encroachment by Congress, or the states, upon the rights of the other. The case was even strongest in favour of a check in the hands of the states upon Congress : for although Congress could never alter or amend the Constitution, without the concurrence of three-fourths of the states; yet such a concurrence would be able so to alter or amend it, as to check the encroachments of Congress, although the whole of that body should disagree thereto. The reason for this will exhibit the unconstitutionality of the argument, which supposes, that the states hold their constitutional rights by the courtesy of Congress. It was this : Congress is the creature of the states and of the people; but neither the states nor the people are the creatures of Congress. It would be evidently absurd, that the creature should exclusively construe the instrument of its own existence; and therefore this construction was reserved indiscriminately to one or the other of those powers, of which Congress was the joint work; namely, to the people, whenever a convention was resorted to, or to the states, whenever the operation should be carried on by three-fourths.
Mr. Taylor then proceeded to apply these observations to the threats of war, and the apprehension of civil commotion, towards which the resolutions were said to have a tendency. Are the republicans, said he, possessed of fleets and armies? If not, to what could they appeal for defence and support? To nothing, except public opinion. If that should be against them, they must yield; if for them, did gentlemen mean to say, that public will should be assailed by force? If so, should a minority, by the help of the powers of government, resort to force for its defence against public opinion; and against a state which was pursuing the only possible and ordinary mode of ascertaining the opinion of two-thirds of the states, by declaring its own, and asking theirs ? How could the fifth article of the Constitution be brought into practical use, even upon the most fagrant usurpations? War or insurrection, therefore, could not happen, except Congress should attempt to control public opinion by force; and this it could not be supposed they would ever do, not only because the will of the people is the sovereign in all republics; but also, because both that will and the will of the states, were made the constitutional referee in the case under consideration. Hence a movement towards this referee could
never be admitted as leading to war or commotion, except in those coun. tries where an armed and corrupt minority had usurped the government, and would of course behold with abhorrence an arbitrament of a majority. Such, however, he hoped would be the respect to public opinion, that he doubted not but that the two reprobated laws would be sacrificed, to quiet the apprehensions even of a single state, without the necessity of a convention, or a mandate from three-fourths of the states, whenever it shall be admitted, that the quiet and happiness of the people is the true end and design of government.
With respect, he said, to the remedy proposed in the talents and integrity of the continental judges, without regarding the prejudices which might probably exist in favour of the government, from which an appointment should Now, it might be remarked, that the judges by the Constitution are not made its exclusive guardians. That is continental judges were the proper referees as to the constitutionality of continental laws, state judges were the proper referees as to the constitutionality of state laws; that neither possessed a power over the other, whence a clashing of adjudication might ensue; and that if either had been superior, the same consequences would result as would flow from a superiority of Congress, or of the states over the other, with this additional aggravation, that the people could not by their elections influence a constitutional question, to be decided by the judges, as they could to a certain extent, when it was to be decided by a general or state legislature: an influence, however, insufficient; because it would require six years to change the Senate of the United States, and four that of Virginia, during which an unconstitutional law would have done its mischief, which was yet greatly preferable to no influence at all.
He observed, that the resolutions had been objected to as being couched in language too strong and offensive, whilst it had also been said on the same side, that if the laws were unconstitutional, the people ought to fly to arms, and resist them. To this he replied that he was not surprised to hear the enemies of the resolutions recommending measures which were either feeble or rash. Timidity, it was known, only served to invite a repetition of injury, whilst an unconstitutional resort to arms would not only justly exasperate all good men, but invite those who differed from the friends to the resolutions to the same appeal, and produce a civil war. Hence those who wished to preserve the peace, as well as the Constitution, had rejected both alternatives, and chosen the middle way. They had uttered what they conceived to be truth, in firm yet decent language ; and they had pursued a system which was only an appeal to public opinion, because that appeal was warranted by the Constitution, and by principle ; and because it gave an opportunity to the general government to discover whether they would be faithful to the same principle, and thereby establish a precedent, which would both now and hereafter have a strong tendency against civil war. That this firmness, which was both exhibited and felt, was really necessary as an act of friendship to the general government, if it was true, as some thought, and as the commotion in the public mind plainly indicated, that a farther progress in their system was full of danger to itself, and misery to the people. If, said he, we beheld our friend
already advanced to the brink of a precipice without having discovered it, ought we in friendship slightly to admonish him that the very next step might precipitate him into an abyss below, or strenuously to warn him of his danger ? Again : If a country was to be defended, into which the foe could only enter at a single pass, which was fortified and garrisoned, ought the resistance of this garrison to be feeble and cowardly, and ought they traitorously to surrender this key into their country, from a confidence in the enemy?' Liberty was that country—our Constitution the fortress —and ourselves the garrison. Shall we, he said, desert our post without even a parley with the assailants? If we did, the inevitable consequence must be a consolidation of these states into one great sovereignty, which will, from its vast extent, as inevitably settle with rapidity into a monarchy, and like all other great empires it must resort to those oppressions to support itself, which make the cup of life bitter to man, That such a degree of timidity would be as dishonourable as the violent measures which gentlemen on the other side recommended in cases of constitutional infractions, would be immoral and unconstitutional.
That firmness as well as moderation could only produce a desirable coincidence between the states, an example of which having been already set by Kentucky, it behooved us so to act as to avoid a difference of opinion as to the mode, when we united in the end ; because divisions respecting either would undoubtedly destroy every hope of a successful issue. In opposition to the propriety of soliciting this coincidence, the Constitution, prohibiting the states from entering into a confederation among themselves, had been quoted. In reply to which he would ask, if an application from one state to another to learn its sentiments upon a point relative to the Constitution, was to be considered as unconstitutional, as amounting to a confederation? In what way could two-thirds of the states consult or unite, so as to exercise their right of calling a convention under the fifth article, or in what way could three-fourths ever amend the Constitution ? This observation evinced the incorrectness of such a construction, as had also the practice of the states, in submitting each other's resolutions to mutual consideration, in a variety of instances.
Mr. Taylor then said that the constitutionality of the laws had been defended by the common law. It had been said that the common law attaches the rights arising from the law of nations to a sovereignty wherever it resides : that therefore a power over aliens devolved under the common law upon Congress, and that sedition being also a common law offence, they had a right to punish it. If the common law bestowed powers upon Congress, it was unnecessary to controvert these laws, be. cause there was hardly any species of oppression which it would not justisy. Heresy and witchcraft were common law offences; the former was a complete engine for tyranny. But the Constitution of the Union did nowhere adopt the common law, or refer to it as a rule of construction. That as the state constitutions or laws had done so under different forms, it evinced that the states inust have considered an adoption necessary to give it force, and thinking so, it was impossible that the state conven: tions which assented to the Constitution, could ever have supposed that they were establishing a government which could at pleasure dip their hands into the inexhaustible treasuries of the common law and law of