« PoprzedniaDalej »
the necessary ingredients to the Constitution and the force of a law? It was not only essential they should receive the sanction of the constituted authorities, but the act itself must be in unison with the Constitution ; for, if an agent should transcend his limited authorities, he would be guilty of usurpation; and all usurpation being founded in wrong, whatever has that only for its support, must be void. This being the case, the legislature would be guilty of misprision of treason against the liberties of their con. stituents if they did not denounce the violations offered to the Constitution through the medium of the alien and sedition laws. He observed, it remained for him to show, that the laws alluded to, were unconstitutional.
The worthy gentleman from Caroline having proven, in a clear and perspicuous manner, the unconstitutionality of the sedition law, and delineated, in masterly and eloquent language, the consequences of that act, which is entitled to the infamous pre-eminence in the scale of guilt, and as no gentleman had undertaken its defence, Mr. Barbour said, that his remarks would be confined to the alien law alone. And, in order to ascertain whether this law was constitutional or not, reference must be had to the nature of the Constitution. The government must be either limited or unlimited. If the latter, it was omnipotent, like the Parliament of Great Britain, and was adequate to the purpose of passing any law, however impolitic, absurd or dangerous it might be to the liberties of the people. But, if it were limited, (which was a principle he supposed so clear, that to consume the time of the committee in proving it, would be a supererogation,) it would remain then to be inquired, whether in the limited power granted, a power be given to pass a law like the one now under discussion, or not, He observed, that to comprehend the nature of the Constitution of the general government, it might not be unimportant to recur to the political situation of America, prior to the adoption of the federal government.
In 1776, the thirteen United States, then the colonies of America, after having been lacerated to the midriff, by the vulture fangs of British persecution, threw off their colonial subjugation, and took a stand among the nations of the earth. At this time, there were thirteen independent sovereignties tied together by the feeble bands of the articles of confederation. So long as the pressure of external danger was felt, so long the bond of union was found sufficiently strong. So long as all jealousies and rivalships were sacrificed on the altar of public good, the defects of that system were, in some measure, concealed. But, so soon as the pressure of foreign invasion was removed, so soon it was discovered that the system of union created by the confederation, was inadequate to the sublime purposes for which it was intended. The people of America saw and deplored the situation with which they were menaced; and the Virginia Legislature, sensible of the jeopardy to which their well earned liber. ties were exposed, were the first to recommend a reformation in the compact by which the states were connected, notwithstanding the senseless yell and malicious calumnies with which certain hireling papers to the east teem, of a disposition in this state to shake off the union. Influenced by this spirit, the convention met in the year 1786, in Annapolis, but broke up without doing any thing effectual. In the year 1787, the convention which met in Philadelphia, gave birth to the Federal Constitution. The
object of the general government ex vi termini, must be for general purposes ; and the powers necessary to carry those purposes into effect, were expressly defined ; and it was the sense of the American people, cotempora. neous with the adoption of the general government, when the attributes and qualities of that government were best understood, that all powers not granted were retained. As an evidence of which, let reference be had, he said, to the twelfth amendment of the Federal Constitution, which expressly declares, that all powers not granted to the general government, were retained to the states, or the people, respectively. It was then urged, (with propriety too, as the sequel has evinced,) that the Federal Constitution was defective, in consequence of its wanting a bill of rights. It was answered by the advocates of the Constitution, (amongst whom was Mr. Lee of Westmoreland, who now displayed great zeal in support of administration, and consequently, amongst the friends of administration, should have some weight,) that the Constitution was better without, than with a bill of rights; for, if there had been, (Mr. Lee observed,) an enumeration of particular rights, with the friends to forced construction there would have been a claim, as residuary legatee, to all rights not expressly retained; but in the present government, there were only particular powers granted, and consequently, all powers not granted, are retained to the states, or the people, respectively: a doctrine which he (Mr. Barbour,) observed before, had been recognised in the twelfth amendment to the Constitution. · Mr. Barbour then observed, that he having shown that the government could exercise no power but what was specifically enumerated, it behooved the authors or supporters of the law to show that the power of making a law like the one which was now the subject of discussion, was designated in the list of specific powers. If they could not show it, it must follow, it was an usurpation of power not warranted by the Constitution.
To ascertain the truth upon this subject, which in argument was desirable, let reference be had, he said, to the section which enumerates the powers that Congress can legally exercise, (being the eighth section of the first article.) Any power which Congress should exercise, not warranted by that char. ter, would be an usurpation upon the rights of the states, or the people; and in proportion to the extent of the usurpation, should be the execration of every friend to republican government and the liberties of the people. It would be discovered, when reference was had to the section of the Constitution alluded to above, that no power to make an alien law is granted. When gentlemen are called upon to justify the assumption of power, they desert the ground of the law being justifiable agreeable to the letter of the Constitution, and take resuge behind the sanctuary of implication. Mr. Barbour then described the danger of implied power, in a warm and animated manner.
He begged the committee to be alive to the mischief with which this doctrine was teeming. If, said he, we once abandon the high road which the wisdom of our ancestors has established, and in which the constituted authorities were directed to walk; if we once abandon that palladium of civil liberty, our rights will be immediately gone. No, said he, let us, if our servants turn either to the right or to the left, smite them as of old was Balaam's ass, so that they turn not away from the path to which, if we mean to keep our liberties, they should adhere with unde.
viating regularity. Promulge it once, said he, to the world, or rather to Congress, that they have a right to exercise powers by implication, and it requires not the aid of prophecy to foretell, if we may judge of the future by the past, that those great and inestimable rights which flow from nature, and are the gift of nature's God, will be assassinated by the rude and unfeeling hand of ferocious despotism. That body will not only pass alien and sedition laws, which they have had the audacity to pass in the tenth year of the Constitution, but will go on to increase the already black catalogue of crimes, new fangled, and existing only in the brain of suspicion and political villany, till some of the best patriots are sacrificed, and the purest blood of which America boasts, streams. The friends of liberty will be sacrificed, as so many obstacles to their ambitious designs, and des. potism, covered with the gore of patriots, will stalk with impụnity amongst us. But, Mr. Barbour said, he had determined to pursue the gentleman from Prince George through all the meanders and twistings of his argument, and expose its fallacy and danger ; that there should be no ground upon which the supporters of this law should find rest: like the dove of old, they should be compelled to take refuge in the ark, which, by the resolutions, was prepared for their reception. For this reason, for the sake of argument, but for that only, (God forbid it should be for anything else,) he would admit the principle that Congress might legislate by implication, yet it could have no power of the kind which appears to have been exercised in making the alien law. But before he went into that subject, it was necessary he should take notice of some miscellaneous remarks which had fallen from the gentleman from Prince George. That gentleman had observed that Congress had passed the law, and that we should hesitate before we declared it unconstitutional; for if it was unconstitutional, the people ought to resort to arms. In answer to this, Mr. Barbour observed, ihat the circumstance of Congress having passed it, if it was intrinsically unconstitutional, did not render the law less so; and although he had a high respect for some of the members of Congress in both houses, on account of their talents and integrity, yet some of the warmest advocates of this law and executive measures, were suspicious characters from their situation in life, which was so desperate as not to be endangered, but on the contrary they might try to be bettered by revolution and convulsion. Political profligacy in a republican government sooner or later will meet its fate, the execration of an injured people; but by a change, the Judases of American liberty will aspire to the acme of opulence in the sunshine of monarchy, the most genial climate for the growth of everything which is abhorrent to republican simplicity and virtue. But, he said, if he had the highest estimation both for their virtue and wisdom, he should exercise his own judgment, with which he had been blessed by the God of nature, and if that condemned it, he should not hesitate to declare in strong terms his disapprobation. He trusted, he said, that the American people were not prepared for unconditional submission and non-resistance." A doctrine like this would have disgraced the last century, and was fit only for the miserable regions of the East, where ignorance, superstition and despotism their sad dominion keep. He trusted that the American people did not intend to attach to servants the attribute of infallibility: if not, the adoption of the
law under discussion, by Congress, would have no weight upon the mind of the committee. The gentleman urged that we should hesitate, before a declaration was made that the law was unconstitutional. Mr. Barbour asked, what had been the conduct of the committee ? Had they rushed precipitately into a determination? On the contrary, had not the subject been discussed for several days; and would it not continue to be discussed for several days more? Had not every gentleman an opportunity of delivering his ideas upon the subject? And had not a depth of judgment and a brilliancy of talent been displayed in the discussion, which would do honour to any deliberative body? In short, had not the subject been treated in a manner suited to its importance ? What more, then, could be asked? The gentleman from Prince George was for the people's rising en masse, if the law was unconstitutional. For his part, Mr. Barbour said, he was for using no violence. It was the peculiar blessing of the American people to have redress within their reach, by constitutional and peaceful means. He was for giving Congress an opportunity of repealing those obnoxious laws complained of in the resolutions; and thereby effacing from the Amercan character a stain, which, if not soon wiped off, would become indelible. The gentleman from Prince George had further said, that all the other states in the union had met and adjourned, and tacitly acquiesced in the measures which had been pursued by the general government. The gentleman was incorrect in point of fact.
The state of Kentucky had, in language as bold as could be used, expressed their execration of some of the leading measures of the general government adopted at their last session; but upon none more particularly than
upon the laws complained of in the resolutions. The state of Tennessee was in such a situation, as to require or authorize the Governor to convene an extra session. About what could it be, if it was not the uneasiness experienced by the people of that state at the usurpation of the general government? In respect to the other states being not adverse, he would not contradict the gentlemen. But what weight would this remark have upon the committee? Was the conduct of the other states to be the criterion whereby to govern this state? He trusted not. He hoped, that so long as this state kept its independence, it would think and act for itself. Virginia had been always forward in repelling usurpation of every kind; and he trusted she never would forfeit the reputation she had acquired; but always would be the champion of the rights and liberties of America. But, he said, having answered the desultory remarks of the gentleman from Prince George, he would return to the doctrine of implication. That gentleman read the preamble to the Federal Constitution, to prove that, as the liberty and general welfare of the whole were the object of the Constitution, Congress hąd a right to do anything which might be necessary, in their opinion, to effect that purpose. The inference, Mr. Barbour observed, which had been deduced, was by no means tenable. To assert that the preamble to the Constitution should alter or subvert the Constitution, or that the preamble gave powers not given in the Constitution, was in theory such a monstrous solecism, and so much opposed to every principle of construction, that he did suppose it would be subscribed to but by few. The preamble, to be sure, explains the end of
the Constitution. It was to secure the liberties and welfare of the Ameri. can people, but upon what terms? Why, upon the terms designated in the Constitution. The people of America and the states, knew that the powers conceded to the general government by the Federal Constitution, were adequate the endcontemplated the to pretend to assert that, although those powers, which the states and people designated as those only, which should be exercised, were not the only powers that were granted, was a calumny against the framers of the Constitution ; for they must have intended to ensnare the people. For what mind could hesitate to pronounce, that the object of enumerating the powers must have been to fix barriers against the exercise of other powers? And Mr. Barbour demanded to know, what was the use of a specific enumeration of powers,
f it was intended to invest the general government with sweeping powers? For what could be more awkward or ridiculous, than to see the wisdom of America defining the particular powers, which its government might legally and constitutionally act upon, and in the conclusion, investing it with general powers, which from the expression, must have included all those specific powers, which had been previously granted. Mr. Barbour then referred to Publius, 2d vol., pages 46, 7, 8, as an author, who had treated this subject very funday The gentleman fromPrince George had said, that the last clause of the 8th section of the 1st article, Ommonly called the sweeping cause, the substance of which,That Congress shall have power to pass all laws which shall be necessary to the carrying into effect the foregoing powers," would justify Congress in making the laws complained of. Mr. Barbour asked, what was the object of that clause? It was not to create new powers, but to complete the other powers before granted. This clause was indispensable; without it, the Constitution would have been a dead letter. For if Congress possessed not the power of making laws to carry into effect the powers specifically enumerated, the powers granted would have been useless;incesse rights which cannot be carried into effect, was just the same as if there were no rights. But no other construction could attach; for that clause speaks only of those powers which before had been granted. And if no power relative to aliens had been granted, this clause could have no possible effect, which he hoped he had sufficiently demonstrated. Mr. Barbour said that the gentleman from Prince George had relied upon the fourth section of the fourth article of the Constitution, by which Congress guarantees to each state a republican form of government, and binds itself to protect each state from invasion, &c., as one out of which the implied power of making alien-laws grew.
For he asked how could the general government protect from invasion, without the power of passing a law like the
and that it was indispensable the general government should possess the power of expelling aliens; for, if they had not the power, the state of Virginia might admit Bonaparte's army, with him at their head, (if he should ever escape from the Nile.) If, said Mr. Barbour, no other reason could be assigned in favour of the alien law, than an idea so wild as the danger of admitting Bonaparte and his army, its supporters must be in pitiful distress. To anticipate danger of this kind, was to attach to this state not only criminality, and that too of the blackest kind, but stupidity