not penal justice, and if the former were within the power of Congress, (which is denied,) yet such preventive justice has not been exercised in a constititutional manner. Because the principles of the only preventive justice known to American jurisprudence, require,

1. That some probable ground of suspicion be exhibited to some judicial authority; the act refers it to the President.

2. That it be supported by oath or affirmation; the act requires

none.

3. That the party may avoid imprisonment by pledges of legal conduct, sufficient in the judgment of some judicial authority; the act denies this privilege, or refers it to the discretion of the President.

4. The party may have a writ of habeas corpus if wrongfully confined; the act allows the President to send an alien off before he can obtain such writ, thus unconstitutionally sus pending the privilege of the writ.

5. The party may be discharged from confinement, by order of the proper judicial authority, for good cause; the act confers the power on the President alone.

4. But the act contemplates penal justice; involving,

1. Banishment from the country of the alien's choice; and perhaps of his tenderest relations.

2. Loss of employment and property.

3. A sea-voyage; dangerous in itself, and also from the casualties incident to time of war.

4. Possible vindictiveness of the country whence he emigrated. 2. Answers to arguments to prove the act constitutional.

1. The admission of aliens being a favour, it is not therefore revocable by the Federal Government; because,

1. If revocable at all, it does not follow that the Constitution has given to that government the power to revoke it.

2. Favours are not always revocable, as grants of land, pardon to a malefactor, naturalization, &c.

2. Aliens not being parties to the Constitution, it does not follow that Congress may invade, as to them, the rights and privileges it secures; because,

1. Such absolute authority may have been left to the states, or at least may not have been conferred on Congress.

2. But aliens, though not parties to the Constitution, are entitled, whilst they conform to it, to its protection, as to the protection of the laws, to which also they are not parties.

3. Upon similar reasoning aliens might not be banished only, but capitally punished by the President, without a trial. 3. That aliens, by the law and practice of nations may be removed at pleasure for offences against the law of nations, and that Congress is authorized to define and punish such offences, does not justify the indiscriminate expulsion of all aliens; because,

1. Alien-enemies alone, are thus subject to the law of nations, alien-friends (except public ministers), being subject to the municipal law.

2. The act being admitted to be penal, must be justified by some offence deserving punishment.

3. Offences for which aliens within the jurisdiction of a country, are punishable, are,

1. Those committed by their states; which is the case of alien-enemies, admitted to be subject to the laws of nations, and so within the control of Congress.

2. Those committed by aliens personally; which is the case of alien-friends, who, like citizens, are subject to the municipal law, and so not amenable to Congress.

4. The laws of nations distinguish between alien-friends, and alien-enemies, allowing the removal of the latter at discretion, but holding the former to be under a temporary allegiance, and entitled to a corresponding protection.

4. That Congress may grant letters of marque and reprisal, and that reprisals may be made on persons as well as property, does not justify the act; because,

1. Reprisals are a mode of obtaining justice by seizure of persons or property for injuries done by a state, or its members, to another state, or its members, when the aggressor refuses redress.

2. No injury is alleged or implied from any particular nation, for which this proceeding may afford reparation. It is directed against aliens of all nations.

5. That Congress has power to make war does not justify the act, which is applicable to alien-friends.

6. That Congress may protect each state against invasion, and provide for repelling invasion, does not justify it; because,

1. These powers do not add to the general power of war. 2. Invasion is only one operation of war; and what is not incident to the power of war generally, cannot be so to any of its operations.

3. A power to act when a case occurs, does not include a power over all means which tend to prevent the occurrence; which would frustrate every practicable definition of limited powers. Thus it would involve,

1. A power over religion, lest a bigoted and tyrannical state should invade us on account of our belief.

2. A power over popular instruction, and over the provision for the poor, as tending to prevent insurrections, &c. 7. That the Constitution has given to the states no power to remove aliens, and that there would be, else, no power in the country to send away such as are dangerous, does not justify the Alien-act; because,

1. Several powers are withheld from both the federal and state governments, as to tax exports; so that the non-possession of

a power by the state governments, does not imply its possession by the federal government.

2. The powers of the state governments are not the gift of the Federal Constitution, but the residuum remaining in the states, after the delegation of certain specific powers to the Union. 8. The Alien-Act is not vindicated by the example of the Virginia law of 1785, re-enacted in 1792, which referred to alienenemies.

2. The Alien-Act unites legislative, executive, and judicial power in the hands of the President.

1. Legislative: Because details, especially as to crimes, are essential to the idea of a law; and here every circumstance of danger, suspicion, and secret machination is to be defined by the will of the President.

2. Judicial: Because the President is to judge whether the circumstances exist, which he, as a legislator, has resolved shall be suspicious, &c.

3. Executive: Because he is to execute his own decrees, by removal of the party suspected.

3. This union of powers subverts the general principles of free government, which require the three great functions to be kept in distinct hands.

4. It also subverts the particular organization of the Federal Constitution, which provides for the separation of those powers.

II. THE SEDITION-ACT:-Of which it is said that,

1. It exercises a power not delegated by the Constitution, wherein of 1. The argument that the common law is part of the law of the United States in their national capacity: therein consider,

1. That before the Revolution, the common law, however it may have existed, with more or less modification in all the colonies, did not pervade the whole as one society; because,

1. It was not the same in any two colonies: the modifications being materially different in many.

2. There was no common legislature to enact, nor common magistracy to enforce it.

2. That the Revolution did not imply, nor introduce it as a law of the Union; because,

1. The fundamental principle of the Revolution was, that the colonies were united by a common executive, but not by a common legislative sovereign.

2. Parliamentary regulation of trade [mere practice without right], was acquiesced in without inquiry, but the assumption of a power to legislate in all cases, resulted in the conclusion that Parliament could not legislate in any case.

3. The interval between the beginning of the Revolution and the final ratification of the Articles of Confederation, did not introduce it; the nature and extent of the Union being, in that interval, determined by the crisis only.

4. The Articles of Confederation did not adopt it; because,

1. Nothing in the instrument countenances such an idea.

2. Every power, jurisdiction, and right, not expressly delegated, is retained.

5. The present Constitution did not introduce it; wherein consider,

1. That particular parts of the common law may have a sanction from the Constitution; being,

1. So much as is comprehended in the technical phrases thereof.

2. Such other parts as Congress may adopt as means necessary and proper to carry into effect the powers delegated. 2. The clause supposed to justify the conclusion that the common law, generally, is the law of the Union, viz. :

That which extends the judicial power to all cases in law and equity, arising under the Constitution, laws, &c., of the United States; wherein consider,

1. That cases may arise under the Constitution, distinct from such as arise out of laws and treaties, without supposing the common law part of the Constitution, viz. :

1. Cases involving restrictions on states; as to emit bills of credit, &c.

2. Cases between citizens of different states, &c.

2. That the phrase, “cases in law and equity," refers only to civil cases: whereas the common law includes criminal cases also; because,

1. Criminal cases in law and equity, would be a language unknown to the law.

2. Appellate jurisdiction, in such cases of "law and equity," is given (with one or two exceptions) to the Supreme Court, both as to law and fact, which excludes criminal cases.

3. The judicial power is not (by Amendment XI. of Constitution) to be construed to extend to any suit in law or equity, of an individual against a state; which also excludes the idea of criminal cases.

3. That the phrase, "cases in law and equity," referring at any rate only to civil cases, could not justify the SeditionAct, which is a criminal statute.

4. That the clause in question, though it involved the common law, both in civil and criminal cases, defines the extent of the judicial, and not of the legislative power. 3. That the descriptions in the Constitution of the law of the United States, do not embrace the common law, viz. :

1. That which is meant as a guide to United States judges, "The Constitution, and laws and treaties in pursuance thereof." Article III., section 1.

2. That which is meant as a guide to state judges, "The Constitution, and laws and treaties in pursuance thereof, shall be the supreme law of the land." Article VI.

4. The difficulties and consequences of a constructive introduction of the common law, viz.:

1. The difficulties:

1. Is it with or without the British statutes?

2. If with them, to what period; the oldest or youngest colony, or a mean?

3. Is regard to be had to colonial modifications? If so, which? how? &c.

2. The consequences flowing from such construction.

1. As to the several departments of the Federal Government and therein as to,

1. The legislative authority of the Union:

1. If the common law be established by the Constitution,

1. No part of it could be altered. Statutes miti gating its barbarous severities, including the sedition-law itself, would be void.

2. The whole code, with all its incongruities, &c.,
would be inviolably saddled on the people.
2. If the common law be supposed not fixed by the
Constitution, but liable to alteration by Congress,
It extends the authority of Congress to every sub-
ject of legislation, (for the common law embraces
all,) and emancipates it from all limitations.
2. The executive authority:

1. The President's authority to execute, will be co-
extensive with the legislative power to enact.
2. The President's authority might be extended to the
prerogatives which the common law confers on the

crown.

3. The judicial authority:

1. If the common law has a constitutional obligation, The judges would possess a discretion little short of legislative power, which would be permanent and uncontrollable.

2. If it be of only legal obligation, subject to Congress : 1. The dangerous discretion would exist, of determining what parts of the common law are adapted to the circumstances of the country.

2. This discretion must continue until Congress could enact a full system of laws.

2. As to the authority of the states:

Their residuary sovereignty would be overwhelmed by this one construction.

2. Other arguments founded on various parts of the Constitution, viz. : 1. On the preamble to the Constitution; wherein consider,

That this part of an instrument is never allowed to be set up in opposition to the plain meaning of the body thereof.