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exercised by Congress, in the law so generally obnoxious, had been, or in his opinion, could be shown to exist in that body, the law itself must be considered repugnant to the Constitution, and as invading the rights of the states.
Many of the remarks of the gentleman from Prince George, were in. tended to show the expediency of the law, and the inconveniences that might arise from the want of the power in Congress to pass it. Mr. Mercer considered these remarks entirely foreign from the inquiry before the committee. The only question ought to be, whether it was constitu. tional or not: if it was not, in his opinion, a violation of the Constitution, which ought to be held sacred, he declared that he would not at this time thus publicly deny its expediency. But there would be no period so criti. cal, as to justify silence upon a departure from the Constitution. It might be believed, that temporary advantages would result; but permanent evil would be the certain consequence : for, if there was a maxim in American politics, it must be, that no law could be expedient, which was unconstitutional. If it was found inconvenient that Congress had not this power, the remedy was plain : perhaps it was the best feature in the instrument that pointed out the manner in which itself could be amended. It did not consider the present provisions in it as the unalterable effort of the best reason, but left them to the operation of time and experience, by which their defects might be unfolded : when these appeared, the remedy was in amending the Constitution, and not in usurping powers by constructions, so highly forced, as to leave its meaning entirely uncertain ; and to lay the foundation for administering the government upon principles unacknowledged by the Constitution, and unknown to the states and the people at the time of its adoption. But the gentleman had supposed, that under the aid of necessary implication, Congress possessed the power of passing the alien friend law; and made his appeal to the last clause in the eighth section, which said, that Congress should have the power “to make all laws which shall be necessary and proper to carry into execution the fore. going powers, and all other powers vested by this Constitution in the go. vernment of the United States, or in any department or officer thereof." Mr. Mercer said, this clause had been called in the Convention of Virginia, by the opponents of the Constitution, the sweeping clause. But it was evident, it referred only to the powers expressly " vested" in Congress by the Constitution. It could give no new power. It would be absurd to suppose, that after a special enumeration of powers, limited by the terms of the grant, that any general expressions could so operate, as to produce an increase of authority. It had not been shown to his satisfaction how the law complained of, was “ to carry into execution" any power vested by the Constitutions in the government of the United States, or in any department or officer thereof." Under the construction that had been given to it, it involved new powers, nowhere to be found delegated in that instrument: for the true exposition of this clause, he would now refer to the opinion of the other gentleman in the Convention, to whom he had alluded. Mr. Madison, speaking of this clause, said, “ It is only superfluity. If that latitude of construction, which he (Mr. Henry) contends for, were to take place, with respect to the sweeping clause, there would be room for those
horrors. But it gives no supplementary power. It enables them to execute the delegated powers. It is at most explanatory; for when any power is given, its delegation necessarily involves authority to make laws to execute it."
“ With respect to the supposed operation of what was denominated the sweeping clause, the gentleman, he said, was mistaken ; for, it only extended to the enumerated powers. Should Congress attempt to extend it to any power not enumerated, it would not be warranted by the clause.” This opinion must be considered as the just one. It had been maintained by the writer which he had cited, the Federalist. The Constitution itself warranted the truth of it; but, there ought to be no doubt after reading the amendment, which had already been stated. If the power exercised in the law, was not enumerated, neither this, nor any other general clause, could give it to Congress.
The gentleman had called upon the committee, to show in what part of the Constitution the powers of Congress, with respect to foreign nations, were stated. Mr. Mercer hoped he did not mistake his remark, for it was a very important one. If it was true that these great powers, certainly exercised by Congress, were not vested in that body by express terms, but were derived to them by construction or implication, the deduction that would naturally flow from such a truth, would be fatal to the Constitution. It was, if powers so great could be used, without being specially delegated, it showed the extent of implication; and under its operation other powers equally important, and among them, that which Congress had exercised over aliens, might be assumed, but such a position is destructive to the Constitution. Mr. Mercer rejoiced in believing it could not be supported by any argument drawn from the powers of Congress over foreign relations; for none were more expressly delegated than these; he begged leave again to refer to that instrument, which should be our constant guide. In the 10th section of first article, it is declared that “no state shall enter into any treaty, alliance, or confederation.” And that “ state shall, without the consent of Congress, enter into any agreement or compact with another state, or with a foreign power, or engage in war, &c." This proved that all power with respect to foreign connexions was taken from the states. It was not among their reserved rights ; nor could they exercise it conjointly with Congress, because they were deprived of it by negative words in the Constitution. It belonged exclusively to the general government. To show this, he read the following clauses in the Constitution : “ The Congress shall have power to regulate commerce with foreign nations.” “ To establish an uniform rule of naturalization." “ To declare war and grant letters of marque and reprisal.” When speaking of the powers of the President, it says, “ He shall have power, by and with the advice and consent of the Senate, to make treaties,” &c. " And shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls." “ He shall receive ambassadors and other public ministers.” These clauses embrace all the great objects of a foreign intercourse; they make it clear, that the powers of the general government upon this subject, are expressly delegated, and depend not upon nice constructions or implication.
In these remarks, Mr. Mercer said, he had attempted to show that the federal Constitution was a limited grant of power:»that the power which Congress had exercised in the case of the alien law, had been nowhere delegated to them by that instrument, and ought not to be considered within their reach, from implication. That if Congress did not constitutionally possess the power over aliens, which they had exercised, the exer. cising it was an invasion of the sovereignty of the states ; and whenever this took place, the states had a right to communicate with each other, in the manner contemplated by the resolutions now before the committee. But if he had been convinced that this power was vested in Congress, the manner in which they had used it, was equally repugnant to the Constitution, and subversive of some of the most valuable provisions contained in it. It was as necessary they should preserve the distribution of powers actually delegated, according io the mode prescribed in the Constitution, as it was for them not to assume powers which had never been delegated. It was as necessary that one department of the government should not be permitted to use authority, to the constitutional exercise of which only the three branches were competent, as that the whole should assume powers which neither had a right to exercise. The objections to this act had been so often urged, and the public attention so much excited, that it would be useless to dwell upon them at this time: he would briefly mention the objections which he feli to the act, even if Congress had the power over aliens which they had exercised. His first was, that it placed in the hands of the President an union of authority, which by the principles of free government, should always be kept separate and distinct. It gave him the right to exercise legislative, judicial, and executive powers, which were intended to be kept apart by the Constitution, and never could be united in the same individual, or in the same department of government, without producing a real despotism. To prove that legislative power was vested in the President by this law, he asked what was the distinguishing characteristic of that power, or the highest act that could be performed by it? It was to prescribe a rule of conduct, commanding what was right, and prohibiting what was wrong. What was the rule of conduct prescribed to the alien by this law? What was he commanded to do, and what to avoid ? There was no rule of conduct laid down in the law. There was no crime defined. Even the President was not required to say what the alien's duty should be. Everything was confined within his own breast. The class of men intended to be involved under this law, could not know they had sinned, until the punishment was upon them. If he then prescribed the rule of conduct for aliens, he also had the right under the law to judge when that rule was violated : he was the executive department of the government constitutionally, and the duties of legislating and judging were annexed to his new office by this law. The second objection was, that it destroyed the trial by jury, which he considered was extended to all persons by the Constitution. The terms were as general, and as comprehensive, as language could make them. He begged leave to refer to them. “The trial of all crimes, except in cases of impeachment, shall be by jury.” “No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment by a grand jury, &c.”
“ Nor be deprived of life, liberty, or property, without due process of law." “ In al criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury, &c.," " be informed of the nature and cause of the accusation: to be confronted with the witnesses against him: to have compulsory process for obtaining witnesses in his favour; and to have the assistance of counsel for his defence.” These just, humane, and most invaluable of all privileges, were taken from the alien :' his "liberty" was to be suspended without any "crime" being defined, which he ought to avoid ; without any “trial by jury,” of which “no person” is to be deprived under the Constitution; there was no “ information of the nature and cause of the accusation” to be communicated to him; he was “ to be confronted with no witnesses ; counsel could not be heard in his favour;" his liberty depended upon the mercy and justice of an individual. The third objection was, that it virtually destroyed the right of the states, under the ninth section of the first article of the Constitution ; for though the states might admit the “migration or importation" of such persons as they might think proper prior to a certain period, it was to little purpose, if the President, influenced by his own suspicions, could send them away. The argument of the gentleman from Prince George, seemed to relinquish the point. He observed, that the law would have been unconstitutional, if it had been a permanent one, passed prior to the year 1808, since it would then defeat this section. Mr. Mercer said, he could not see how its being temporary, would prevent the same effect from being produced : for, if the power of Congress could pass such a law for two years, it might ex. tend to the year 1808. If they possessed the right to originate the law, and keep it in force for any term, however short, they could certainly defeat the ninth section altogether; because, as often as the period arrived when this temporary law was to expire, they had only to pass it again for a limited time; and by thus keeping it temporary, bring about the year 1808; after which the gentleman supposed the right would be in Congress. The law being only a temporary one, therefore, could not possibly prove it to be constitutional.
Much had been said, by the member from Prince George, respecting the conduct of aliens, and the dangers that were to be apprehended from them. Mr. Mercer did not suppose that the friends of the resolutions felt it their duty to defend, or to blame that conduct, whatever it might have been, without having ever understood any acts to have been performed by that class of men by which American rights had suffered. The statement of the gentleman might be true, and still it did not affect the question before the committee. The object of the resolutions was not to defend aliens, but to protect the Constitution, which had been violated in the case of these men. If, under the intention of removing dangerous aliens, the principles of that instrument would be openly violated, and some of its wisest provisions set aside, the same might take place with respect to na. tive citizens. If it was infringed upon in one instance, the same might happen in any other.
With respect to the sedition law, as it was generally called, Mr. Mercer said he would not take up the time of the committee in making any observations upon it. He was willing to let the proof of its unconstitutional
quality rest upon the argument of the gentleman from Caroline. He would only say, it was odious in his sight. It was certainly unnecessary, unless the general government had reason to doubt the virtue and patriotism of the people. If that government would pursue measures compatible with the Constitution, and calculated to preserve the country in a state of peace, and not hasten that unhappy crisis with which we were threatened, when war should be found unavoidable, every citizen would be ready to defend his country's rights against the attempts of any nation upon earth. Mr. Mercer believed, if it had not been for the unfortunate difference between America and France, there would have been few voices ready to approve of several of the late acts of the general government. That difference had been made the pretext for exercising power in a manner which, two years past, would have been universally condemned. He hoped the committee would distinguish between the aggressions of France, and the operations of our own government. The alarm of foreign invasion, created by government, was not a modern thing. When power wished to encroach, the same had been excited in every age and country. At this time, two instances occurred to him. When Charles the Seventh of France wished to establish a standing army in that country,
he told the people it was necessary to be ready against invasions from England. But when all danger was removed, the army was kept up, and afflicted the nation for centuries. Charles was the first king of France who levied a tax without the consent of the states-general. When Cardinal Ximenes introduced a standing army into Spain, the people were informed it was necessary to protect them against the invasion of the Moors from Africa ; but when these were expelled the country and their power destroyed, the army was continued. History afforded many similar instances. It proved, that the moment for power to enlarge its privileges was that of public agitation and alarm; he would make no inferences with a view of applying them to the general government. Every gentleman in the committee might make his own deductions. Mr. Mercer concluded by observing, that he should vote for the resolutions, unless arguments could be offered to prove to his satisfaction, that the acts complained of were constitutional.
Mr. Pope arose next, and made several general observations in answer to those which had fallen from Mr. George K. Taylor, respecting the necessity of deliberation before decision in favour of the alien law, and concerning Volney and Talleyrand. He then proceeded to observe, that as to Talleyrand, the gentleman from Prince George was not correct as to what he had related of him ; but besides, that he had not related the whole story. He had represented him to be a great rascal indeed, and a very great rascal he himself would acknowledge he was. But that he would still give them a further account of that Mr. Talleyrand, as true as that which the gentleman from Prince George had related. He then proceeded to mention that, in the course of Talleyrand's stay in America, he had been for some time much countenanced by some of the conspicuous characters in New York, of whom he particularly mentioned the gentleman who never broke a command, who never disturbed the quiet or repose of any family; that gentleman who inviolably kept the sacred vow he made