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nations, and thence extract as much power as they pleased. On the con. trary, the Constitution of the Union does in its face plainly erect a government of powers expressed and limited, and not left to be new-modelled at random, or by ambition, by a reference to obsolete or little known codes of law, which had never been taken into contemplation during its discussion in any state convention.
Having now gotten rid of objections rather collateral, Mr. Taylor said that he would come to those which more immediately referred to the objectionable laws. It had been said that aliens had no rights: that if they had, such rights were only held by the law of nations, which allows them to be removed whenever their residence is thought dangerous by the sovereignty; and assuming it as granted that the sovereignty of America is in Congress, it was therefore concluded that the law was constitutional,
In reply to this argument, he observed, that Congress only possessed a special and limited sovereignty, to be exercised in a special and limited manner, so as not to conflict with that portion of sovereignty retained to the several states, and so as not to violate those constitutional principles prescribed for the preservation of liberty. That aliens, under the law of nations, were entitled and subjected to the sanctions of municipal law; and however their rights as foreigners may be unimportant to us as natives, yet it was of vast importance that the fundamental principles of our munici. pal law should not be destroyed, because an alien only was the present victim, since it established precedents, and produced consequences, which would wound citizens through the sides of aliens. To apply this general remark, he said, the Constitution was a sacred portion of municipal law. It had empowered Congress “ to define and punish offences against the law of nations," and it had declared, “that the judicial power shall extend to all cases in law and equity arising under this Constitution, or the laws of the United States; and that the trial of all crimes shall be by jury." The law of nations was therefore in contemplation whilst defining the judiciary power. If an alien has done wrong, must it not be a case in law or equity, or a crime? At any rate, must it not be a case arising under the Constitution, or the laws of the Union? If so, his punishment, supposing the act criminal, is to be inflicted by a jury: if not criminal, it is yet referred to the judiciary, by the comprehensive terms "all cases. Might not precedents then, violating these essential principles of our municipal law, be dangerous to citizens, when it was recollected that no difference is contemplated by the law of nations, or that municipal law, between aliens and citizens touching these rights, during the residence of the former. Again: were not the checks contemplated by the Constitution weakened by making a President in fact a king of the aliens? Our towns will abound with men whose every interest depends upon executive pleasure. Might they not be used to influence elections ? And what would prohibit their being forced into the volunteer corps, then to be armed and officered by the executive? Here then, except for the virtues of a tem. porary chief magistrate, was a mode struck out, by which a large force might be embodied and armed, possessing no rights, and completely dependent on the will of one man. Was this to adjust the balances? Or
did it comport with the principles of republicanism? If not, in this mode also might citizens be wounded through the sides of aliens.
A gentleman from Prince George, he said, had urged, that except for this law, the state of Virginia might admit a French army with Bonaparte at their head. Of this, he said, there would certainly be as little danger, as that under it a President should admit an English army. Because, although it was obvious no nation would call in a foreign force to destroy itself, yet history was not deficient in cases wherein individuals have resorted to a foreign force to enslave the nation. That he meant not to insinuate anything to the injury of the present President; but by retorting the argument, to show its weakness, by exhibiting the difference between suffering the residence of foreigners to depend upon the national legislatures, and surrendering it as a great prerogative, to one man.
It had been argued too, that the power given to Congress to protect each state against invasion, comprised a power of expelling dangerous incendiary aliens; for that Congress ought to be enabled to nip dangerous designs in the bud.
If power could be gotten by inferences as loose as these, all attempts to limit it might be relinquished. Dangerous designs ought to be nipt in the bud. Was it the danger to which the power attached, and not the alienage? If so, dangerous incendiary citizens might also be nipt in the bud without trial, and exported at executive will. The protection of a state against invasion, is imposed upon Congress as a duty, secondary only to the guarantee of a republican form of government, and not bestowed upon them as an enlargement of power; and the reason of it is, that the states are prohibited from keeping troops or ships of war in time of peace, which prohibition does not extend to the Union. Greatly as this argument had been relied on, the propriety of this construction was evinced by two observations; one, that the states might as far as they could protect themselves against invasion, and even raise troops in time of war, proving that this was a duty imposed upon Congress, and not an executive power. The other, that it is also made the duty of Congress to protect the states against domestic violence, but only on application of the state legislature or executive. The jealousy evidently exhibited here against the interposition of Congress, even in cases of actual domestic violence, by no means warrants the supposition, that they might interpose where apprehensions of danger only existed. Further, if Congress obtained the power constructively from that of repelling invasions, there was nothing to limit its exercise to aliens. Again, and again, the committee were told of the common law and the sovereignty of Congress. An attempt to excite an insurrection had been called an offence at common law; and a power to regulate all cases arising under the law of nations, it was said, follows sovereignty. Thus every power was bestowed arising from these copious sources. He asked, by what part of the Constitution Congress were empowered to punish all common law offences, and whether that barbarous, feudal, gothic and bloody criminal code was to be let loose upon us by inference and implication? Domestic violence, said he, is insurrection. Why was Cop . gress specially directed how to act in this common law offence, if they had
an unlimited power to punish all common law offences? Is to these rights of sovereignty, it was fair reasoning to urge, that a particular donation of a part excluded the idea of a donation of the whole by way of inference. If this splendid thing called sovereignty had invested Congress with all the powers arising from the law of nations, why was it necessary particularly to invest Congress with the power of punishing offences against the law of nations? And if Congress, under this sovereignty, derived to themselves an unlimited power over aliens, how could it have been necessary to bestow upon Congress the special power of naturalizing these very aliens? This doctrine of the rights of sovereignty was as dangerous as false. Dangerous, because its extent could be never foreseen : false, as violating the idea of limiting a government by constitutional rules. From this unlimited source, the British Parliament derives its claim of unlimited power. King, lords and commons, because sovereign, may do everything. If it was admitted here, being in fact a common law doctrine, it not only would absorb the common law powers, and those arising from the laws of nations, but also the royal prerogatives, and whatever else it bestows upon the British Parliament. Such a sovereignty would speedily swallow up the state govern. ments, consolidate the Union, and terminate in monarchy.
Mr. Taylor said, that the laws objected to had been largely defended within and without doors, upon the ground of laws with similar provisions having been passed in this state.
Without stopping, he said, to point out the strong distinguishing features between the state laws and those of Congress, it would suffice to show the inefficacy of the argument upon other grounds. The powers surrendered to Congress and reserved to the states, are by the Constitution evidently designed to be defined, and whether successfully or not, it was yet impossible to deny the intention of that instrument to concede certain powers to the one, and to reserve certain other powers to the other. If then it was a sound argument to assert, that Congress may legislate upon a subject because a state has already done so; that is, that the exercise of the reservation by a state shall enlarge the concession in favour of Congress, it followed that the reservation so soon as it was used was lost, and that even the limitations upon congressional power ought to be understood as only designed to extend it. Further, perhaps no state constitution in America exhibits that clear and explicit restraint upon a legislative interposition respecting the freedom of religion, the press, and petitioning, which was to be found among the amendments of the general Constitution. Was it defensible then to assert that Congress, though opposed by this positive constitutional barrier, were yet empowered to legislate co-extensively upon these subjects with a particular state having no such obstruction to sur. mount.
He said that this extravagant and unjustifiable mode of construing the Constitution had even been carried so far as to quote Blackstone, and a private letter of Mr. Jefferson ; so that if this instrument was to be expounded, not by itself, but by the law of nations, the common law of England, the laws of the several states, the opinions of English judges, and the private letters of individuals, it had only launched us upon the ocean of uncertainty, instead of having conducted us into a safe and quiet
harbour. That Blackstone's definition of the liberty of the press, con. sidered as accurate by the gentleman on the other side, amounted to this: “the right of publishing anything not prohibited by law without the necessity of obtaining a previous license.” He wholly quibbles away the liberty of the press, in the whim of considering the necessity of a license as the only mode of destroying it, whilst he also admits that government may prohibit it from printing whatever it pleases. Was it not obvious that the end meditated by the liberty of the press, can as effectually be defeated in one mode as the other, and that if a government can by law garble, suppress and advance political opinion, public information, this great end, upon which public liberty depends, will be completely destroyed. Accord. ing to this construction, the Constitution of America has only declared that Congress shall not intercept writings by a previous examination, and allowance or rejection ; but that they may make whatever writings they please illegal and penal in any extent. Read, said he, the Constitution, and consider if this was all it meant to secure.
Mr. Jefferson's letter, he said, was written before the amendment to the Constitution which it recommended : but upon which it could not of course be a comment; and therefore this letter, if it had lent any aid to the gentlemen on the other side, would be more than balanced by that sublime and just construction of the Constitution itself, as to the liberty of the press, to be found in the negotiations of the late envoys to France. But this letter, as well as plain legal principles, had been egregiously misunderstood, and both upon examination, would be found to support the argument against the laws. The letter, whilst recommending those securities, for which the amendment to the Constitution was afterwards designed, urges as an argument, that all were legally answerable for false facts published injuring others. This is the letter, and this the legal principle upon which a common action of slander was grounded : and laws reaching this evil, existed before the sedition-act, in every part of the Union. By a small but important deviation both from the letter and the law, a great and dangerous delusion was resorted to by the gentlemen on the other side. Falsehood, said they, is punishable by law, and Mr. Jefferson ad. mits that it ought to be so; and the sedition-law punishing falsehood only, both the laws and Mr. Jefferson have united in its approbation previous to its existence. The great error in this doctrine arose from dropping the word “ fact," and taking that of "falsehood,” which includes "opinion," as well as fact. Fact was capable of proof, opinion was not. To say that such laws as the alien and sedition existed, would be to assert a fact, and if he (Mr. Taylor) was prosecuted for it, it might be proved. But to assert that these laws were unconstitutional and oppressive, and productive of monarchy, would be an opinion, constituting a degree of criminality under the sedition-law, subjecting a man to punishment, and yet it was not a fact capable of being proved. Hence, therefore, the laws of the land, and Mr. Jefferson's letter, unite in confining punishment to the pub. lication of false facts, and hence opinions were only made punishable in tyrannical governments; because there was no standard to determine the truth or falsehood of opinion.
But he said, it had been violently objected that, supposing these laws are
unconstitutional, the state legislature could have nothing to do with the subject; because the people alone are parties to the compact, called the Constitution of the United States.
To this objection he answered, that although the framers of the Consti. tution chose to use the style, "we, the people,” yet it was notorious, that in every step, from its commencement to its termination, the sense of the people respecting it, appeared through the medium of some representative State Assembly, either legislative or constituent. That the Constitution itself, in many parts, recognises the states as parties to the contract, particularly in the great articles of its amendment, and that of admitting new states into the Union without a reference to the people; and that even the government of the Union was kept in motion as to one House of the legislature, by the act of the state sovereignties. That added to these in. contestable arguments to show that the states are parties to the compact, the reservation of powers not given, was to the states as well as to the people, recognising the states as a contracting party, to whom rights were expressly reserved. From all which it followed, though it be not denied that the people are to be considered as parties to the contract, that the states are parties also, and as parties, were justifiable in preserving their rights under the compact against violation ; otherwise their existence was at an end; for, if their legislative proceedings could be regulated by congressional sedition-laws, their independency, and of course their existence, were gone. And although it had been within and without doors often as. serted, that the sedition-act does not extend to words spoken, yet if any gentleman would read the first section, and consider the terms “counsel or advise,” he would find that words are clearly within its letter, and that this part of the law seems particularly adapted for a deliberative assembly. He said he could not but observe, that this doctrine, that the people are to be considered as the only parties to the compact, was incomplete. The idea of a person's contracting with himself was absurd. Where was the other party? He feared, though it was not avowed, that the gentle. men were glancing towards the old doctrine of a compact between government and people; a doctrine which effectually destroyed the supremacy of the people and the independence of government, no less than the monstrous doctrine of allegiance and protection, which falsely supposes, that the people are indebted to the government for safety, whereas it is they who erect, support, and protect the government. That it was also curious to observe, that gentlemen allow the state governments to have been proper organs of the will of the people, whilst binding them by the measures leading to the Constitution, and that they still allow these organs to be capable of expressing their will in the election of senators, and doing any other acts for the execution of the Constitution, whilst they deny that they are any organs of public will, for the sake of opposing an infringement of the same Constitution. Thus, in framing it, and in executing it, in a great variety of ways, the will of the people was allowed to express itself through this medium; but in saving it from violation, it shall be closed up against them; so that there 'shall be as few obstacles as possible against this violation. The people may petition Congress, said gentlemen, against the violation, and this was the only proper remedy. Let us, said Mr. Taylor,