and read Vattel again, page 100, section 231, and Blackstone's Commen. taries, vol. 1, page 259, to show that by the law of nations, it is left in the power of all states to take such measures about the admission of strangers as they think convenient: that so long as their nation continued at peace with that in which they resided, and they behaved themselves peaceably, they were under the protection of the government of that nation, though liable to be sent or ordered away, whenever that government saw occasion, or its safety required it. If there were nothing then, he said, in the Constitution of the United States, respecting the migration of persons, the doctrine of the law of nations which he had read, was sound, and the general government might by that lawfully restrain or regulate the entry of aliens, and order them away if necessary. But the Constitution had a clause in it upon that subject, being the first clause of the ninth section of the first article, which he read, in these words: "The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year 1808; but a tax or duty may be imposed on such im. portation, not exceeding ten dollars for each person." This clause then, he said contained a recognition of the right of Congress to prohibit migration or importation after the year 1809. In his opinion too, the prohibition of the right of Congress by that clause, extended only to such states as were existing at the time of framing the Constitution; which showed that Congress of course might regulate the migration of persons to such states as were established after that time; and that was exemplified by the prohibition by Congress of the admission of slaves into the new states. The clause read, then, took away from Congress the right of prohibiting migration within a limited time. But though the entry was prevented, the question then recurred, was their removal when dangerous prevented also? The question was of great importance. When these states, he said, declared themselves independent, they entered into articles of confederation. That was a system composed of one body: there was no executive, no judiciary. By that system, that single body could enact nothing binding on the people. It was consequently dependent on the several states for the execution of all its measures. The old Congress wished to establish a duty of five per centum only on goods imported, but it could not be carried into effect by reason of the opposition of the states. To obviate that mischief the Federal Convention was appointed, which assembled and framed the present Constitution. That took from the several states all matters of a general nature; all matters relating to foreign nations. It established legislative, executive, and judiciary branches, which acted upon the several matters coming within their respective spheres; and it certainly intended that all matters of general national concern should be confided exclusively to the general government. There was a general consent of the people that such matters should be vested in the general government, and taken from the states. He then read the list of powers vested by the Constitution in the general government. By the general law of nations, he said, the admission of aliens into a country was altogether a matter of grace. They might therefore be removed by the government of the country, whenever it was

deemed necessary. If the general government, then, possessed not the power of removal, one great mischief of a general nature, which it was intended to remedy, would remain as before. The union would be dependent upon sixteen sovereign and jealous states, for carrying into effect such a measure. Some of these states, too, might be on the verge of insurrection. An alien banished from one might be admitted into another, which would protect him, and thereby the general welfare in that instance defeated, and Congress laid at the mercy of the particular states. He asked what was the situation of America and France at that time? It was true there was no declaration of war between them, but they were not at peace. He enumerated their various acts of hostility towards us, and then asked if there was no danger to be apprehended from aliens of that country. He himself thought there was. He related also the numerous designs and machinations which they had been contriving against us. He deemed it therefore highly necessary that the general government, established for general benefit and common protection, should possess the power of removing them. But, if the law of Congress were to be construed unconstitutional, the general government could not remove them. He read the observations of Mr. Jefferson respecting the necessity of a government having the powers of defence and protection; also Mr. Madison's speech in the Convention of Virginia to the same effect; and applied them to the case in question. It was true, he said, that the Constitution prohibited the general government from preventing the migration of foreigners prior to the year 1808 but at the same time, the principles of protection must induce a belief that the Constitution did not intend or enact, that when here, they should not be removed, however dangerous to the general weal. Still, however, it was objected, that by the twelfth amendment to the Constitution it was declared, that the powers not granted to Congress, were retained by the people, or the states respectively. It was clear, he said, that even without that amendment, no power could have been exercised by Congress, which was not expressly given to it, or did not follow by necessary impli cation. The case, he said, was still the same. In regard to an express grant, there could be no dispute; and the doctrine of necessary implication' was proved by the Constitution, when in the last clause of the 8th section, it grants to Congress the power "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by that Constitution in the government of the United States, or in any department or officer thereof." From that clause, then, he said, the power of Congress to pass the law in question, was clearly sanctioned by necessary implication. All cases arising under the Constitution could not be foreseen and enumerated: therefore, that clause was inserted for the purpose of enabling Congress to carry into effect the powers expressly given it by the Constitution. Whatever then necessarily flowed from these express powers, were within the scope of Congress. He then asked if there were anything in the Constitution, from which the law in question could necessarily and properly proceed? To discover that, he first proceeded to examine the preamble. That, he said, declared the Constitution to be formed in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the

general welfare, and secure the blessings of liberty to ourselves and our posterity. The passage of an alien law then, he said, was justifiable for the purpose of answering the four great ends last mentioned in the preamble, which showed the object and intention of the Constitution. But he said, there was something in it more positive. He called their attention to that clause in the enumeration of the powers of Congress "to define and punish piracies and felonies committed on the high seas, and against the law of nations," and said, that aliens came within it, since for an alien to conspire against the peace of the nation, which permitted him a residence therein, was an offence against the law of nations. He further read the clause declaring that the United States would guarantee to the several states a republican form of government, and protect each of them against invasion. He relied much upon the term protect used in that clause. Protection, he said, was a preventing, a guarding against. He would compare it to a shield, which an individual cast before him to protect himself against the javelin before it reached him; for it would be no protection, if he waited till the wound was inflicted. He observed, that whatever flowed from a grant, followed the grant itself. Congress, therefore, in protecting the states, might enact cautionary laws for the purpose. A law sending away dangerous aliens was a cautionary law, tending to protect the states. Every society had as much right to prevent the mischief which aliens might do, as to punish them for it after it was done. Aliens might be punished for crimes as well as citizens. So, laws might be passed for preventing the commission of crimes by them, as well as for preventing the commission of them by citizens. But such a law must always be temporary. It could not be permanent. It would continue only so long as danger existed. It would affect only dangerous persons. Aliens could only be dangerous in time of war, or in times verging towards war. In times of safety, such a law would be unnecessary and improper. He agreed, therefore, that a permanent law of that kind including all aliens, passed before 1808, would be unconstitutional; since it might absolutely defeat the 9th section. But that a temporary law passed only for the purpose of ordering away dangerous aliens, was a law of protection to the states. It was a necessary power for every government to possess. A government would be worth nothing without it, since it could not protect the people. He then proceeded to take the Constitution altogether, recapitulated the several clauses before cited, and said it was a rule of construction of all instruments, that all the parts should be taken and considered together, that they might stand together, and be reconciled with one another if possible. He called their attention to two clauses of the Constitution, the ninth section of the first article reserving to the states the right of permitting migration, &c., and the fourth section of the fourth article, which declares that the United States shall protect each state against invasion. When one part, then, of the Constitution, he said, reserved to the states the right of permitting migration, and another granted to Congress the power and duty of passing all such laws as would protect the states from invasion or violence, would not the same operate as a proviso qualifying the former general expression, and allow Congress from principles of protection, to expel dangerous aliens? He thought at

any rate the power in that case contended for, a necessary one, even were it not in the Constitution. And in such a case, the legislature ought to recommend an amendment to the Constitution for the purpose. Since the adoption of the Constitution, he said, Congress had passed laws for erecting forts in different parts of the United States. He asked what part of the Constitution gave them that power? They must derive it from the fourth section of the fourth article only, the same being for the purpose of protection. There was a necessity for exercising this power at that time. We had amongst us a number of dangerous Frenchmen. The chief author however of the plots had sneaked off, as well as his associates. He said he was happy to be clear of them. Since they were gone, that law was no longer necessary: Congress might then properly repeal it. Yes, he said, the incendiaries were gone. He congratulated America upon it. He hoped they never might return. But an objection had been made that the alien law had taken away from the poor alien the trial by jury. He said that aliens were not a party to the compact, but citizens only. The Constitution secured rights to citizens, and declared that they should not be deprived of them, but by trial by jury. But, aliens not being a party to the compact, were not bound by it to the performance of any particular duty, nor did it confer upon them any rights. He referred to Vattel again, to show that by the law of nations, the admission of aliens into a country was not a matter of right, but of favour; and observed that ordering away an alien, was not divesting him of any right, but withdrawing from him a favour; and that it was new doctrine that a favour could not be withdrawn, but by trial by jury. He then observed that the alien law did not touch life, liberty, or property; but only directed the alien to be removed. If he would not remove himself, however, when ordered away, but remained obstinate, he might then be imprisoned. He read, and relied upon the favourableness of that clause of the law which extended to the suspected alien the right of proving to the President that he was harmless. He still asserted that the law of nations gave a power to the government to remove aliens when dangerous; and that, by the law in question, neither life, liberty, or property was touched, except in cases of contumely. He then stated the case authorized by our municipal laws, respecting surety of the peace; and asked, how did the trial by jury stand in that case? The citizen, he said, was deprived of it, and that too in a free country. The case of the alien then, was not harder. The trial by jury was dispensed with in the case of the peace-breaker; therefore, the same might be done in the case of an alien. He said, that the terms upon which aliens were admitted, were, their not intermeddling with the concerns of the nation. Should they do so, and, upon being required to withdraw, continued obstinate, they must be committed in the same manner as citizens who refused to give surety of the peace.

Another objection had been made, that if they were sent out without trial by jury, they might next be deprived of life and property without it. This, he said, could not be done. An alien was entitled to them as natural rights; and therefore, as they were rights, could not be deprived of them without a trial by jury. The case was quite different in regard to his removal, as his admission into the country was not matter of right, but

was merely a matter of favour. It had been also objected, that the three powers of government were all blended in the President by the alien law. He said that they were not. But, if such a power in regard to aliens were necessary, it must be entrusted somewhere. It could not be with a private individual. It could not be with the judiciary. It could not be with the legislature; but might most properly be with the executive. He, by the Constitution, was bound to execute the laws: therefore, it was most properly entrusted with him, being the executive officer, with whom all persons and bodies whatever were accustomed to communicate. It could least of all be entrusted with a court which transacted its business publicly. For these matters must be in confidence. That was often necessary for nipping things in the bud. Secrecy then being absolutely necessary, and a court of law being publicly held, and at stated periods, the proceedings might be divulged, or the explosion take place, before they could obtain information, or try the fact. And all that too, not for the sake of a matter of right, but mere courtesy. It could not be entrusted to the legislature, unless its sittings were permanent: it could, then, only be entrusted with the president. To prove the justice and fairness of this regulation, he again introduced the case of a man brought before a magistrate to give surety of the peace. On the complaint of A., he said, the magistrate might arrest and imprison B., until he gave security to be of good behaviour. In that case, a man was deprived of liberty without a trial by jury; but that was right, because society was bound to protect as well as vindicate its citizens; and before a trial of the fact could be had, the person apprehending danger might be murdered. He again cited Mr. Jefferson's piece to prove, that no cases under the law of nations were ever submitted to a jury to be tried. He cited also part of a speech of Mr. Madison, in the Convention of Virginia, nearly to the same effect; and thereupon observed, that the trial by jury was only used in municipal regulations, where citizens and others were concerned under the particular laws of the state, and not in cases between the government and aliens, which arise under the law of nations. That even in matters of right, the right of the individual ought to yield to the good of the community. He then read that clause in the Constitution concerning the suspension of the writ of habeas corpus, and said, that the suspension of that writ might take place during the existence of rebellion or invasion. In that case, a citizen might, at the will of the President, be committed and confined until the existing danger was over. And if a citizen, invested with all civil rights, might thus be confined in a time of danger, so ought an alien, who had no positive political right whatever, when the good of the community required it. He said, he might produce many other instances, to prove the propriety of necessary implication. He then mentioned the subject of foreign intercourse, and asked whence was that power derived? He knew no part of the Constitution which particularly authorized it. It could be derived only from that clause of the Constitution, which prohibited to the states the power of making any treaties, or entering into any agreements. It had been observed by the gentleman from Caroline, that Congress had passed a law to send away alien enemies, and that was a good law. Where was that power to be found? Nowhere, except it