IN THE HOUSE OF DELEGATES,

Tuesday, December 18, 1798.

The House resolved itself into a committee of the whole House, on the state of the commonwealth, Mr. Breckenridge in the chair, when Mr. John Taylor's resolutions being still still under consideration,

Mr. MAGILL said, that he arose with sensations never before experienced by him; that he conceived the peace of the United States to be involved in the decision which the committee were about to make; for the question appeared to him to be whether the states should remain united under the federal Constitution, or that instrument which they were bound to support, be declared of no force or effect; that in delivering his sentiments to the committee, he would address himself to the reason of the members, and avoid an appeal to their passions; for if the opinion he advocated could not be supported upon this ground, he would not resort to any other. That he had attended to the arguments of the gentleman from Orange, and those of the gentlemen who preceded him on the same side: with their eloquence he was pleased, and their talents he admired, but the judgment he had formed upon the laws, after the most serious reflection, so far from being shaken, had received additional force by the manner in which the debate had been conducted. When gentlemen of first-rate talents amuse the fancy with eloquent harangues, instead of attempting to inform the understanding, to him it was evident that they thought their positions untenable. He said we are to decide upon the constitutionality of the "alien and sedition laws," as they are generally called, and in so doing are we not erecting ourselves into a court of justice, particularly so as the resolutions declare those laws null and void; for where is the department of the government, except the judiciary, that can exercise this power? He said that the present Assembly was chosen by the people for the ordinary purposes of legislation, and he begged to know the source from whence their judicial powers, even over a law passed by themselves, in a case where their jurisdiction was complete, could be derived. If, said he, it be admitted that we cannot judicially act upon a law passed by this or any other Assembly of this commonwealth, and that our courts alone can do so, where is that law, point out that feature in the federal Constitution, that gives to this body the power now about to be exercised? He said that the public papers had teemed with invectives against Congress for passing these laws. Could gentlemen say this was a criterion to judge them by? He said, that in all the publications he had seen, and the arguments he had heard used, the authors had taken for granted what remained to be proved. Admit the premises, and the conclusion may fairly be drawn. The gentleman from Orange, Mr. Magill said, had observed that the President of the United States was a friend to monarchy, or in favour of a monarchical govern. ment. Admitting this, for argument's sake, to be correct, what relation, said he, can it have to the subject now under consideration? Will it enlighten the mind of a man when he is called upon to form an opinion upon an important point, to have his judgment drawn from that object, by

suggesting one foreign and entirely unconnected with it? He said, that for his own part, Mr. Adams possessed his highest confidence; that he viewed him as the tried and true friend of his country; that the happiness of his fellow-citizens was his first object; that he looked up to the virtues and talents of Mr. Adams with veneration, and would only add, that his administration had in his opinion been pure and uncorrupt. These sentiments, though unpopular here, I ever have and will avow, said Mr. Magill so long as the measures heretofore pursued, be continued. He then contended, that the statement of the gentleman from Prince George, respecting the rights of aliens, was correct, and the contrary one of the gentleman from Orange not so, and gave his reasons for this opinion. He observed, that he meant to be concise in his replies to the arguments against the alienlaw, as the gentleman from Prince George had opened that part of the debate, and would, in concluding it, notice all such as he should omit. He said that he adopted this mode, supposing that the opening of the sedition act, which had been assigned to him, would take up as much time as the House could on that day allow him. He then defined as necessary to a perfect knowledge of the subject, the powers of the general and state governments. He observed, that the only true and natural foundations of society are the wants of individuals. He said this rule applied to the states, considered as such, at the time this Constitution of the United States was formed. The insufficiency of the old confederation, said he, evinced their wants, and to prevent again experiencing these wants, this Constitution was formed. He observed, that to him the Constitution of the United States should be thus explained, as giving to the Federal government a control over the national affairs; to the state governments, the care of state or local concerns. Upon this definition, and the Constitution taken together, he proceeded to inquire if the alien-law had violated the Constitution in any respect; and he agreed with the gentleman from Prince George in his statement respecting aliens, that Vattel's doctrine was solid, and to be relied upon. He insisted, that the safety of a nation could not be secured, without such a power as this law gave being deposited some. where. He agreed with the gentleman from Spottsylvania, that the dispute with France, if it could be avoided, ought not to be introduced; but how, said he, can this be done? The unjust and infamous conduct of France, should make our government careful how its citizens introduce themselves amongst us, with their diplomatic skill; and to guard against attempts of that nation and its citizens, this law perhaps was passed. He then adverted to Volney and Talleyrand, of whom the gentleman from Prince George had spoken, and said, that that gentleman had not been correctly understood by the gentleman from Prince William, and others, when they alluded to his remarks upon Talleyrand and Volney. The gentleman from Spottsylvania had mentioned the independence of the state governments at the time of the adoption of the Constitution. He admitted that to be true, but said the argument was of no weight, unless it could be proved that they were-independent now, as their situation at that period was the subject. He then made some remarks in answer to the gentleman from Brunswick, upon the first clause of the ninth section of the Constitution, restraining Congress from prohibiting migration; and he

said, the gentleman from Caroline had not relied upon that clause, but the gentleman from Orange had. He said, that he thought the clause last mentioned, related only to slaves, and his reason for thinking so, was founded upon the language used in the latter part of the clause, and the whole Constitution taken together. He then quoted the opinion of Mr. George Nicholas, delivered at the time of the adoption of the Constitution, in effect the same as his own. He here read the opinion delivered by Mr. George Mason, in the debates of the convention in Virginia, in regard to the clause referred to, respecting migration and importation extending to slaves only. He took this to be the opinion of Mr. Mason, inasmuch as his observations, as well as those of others, were confined to that description of persons alone. He then mentioned the alien-law of Virginia, not, he said, with a wish that if it were erroneous, it should be a precedent, but to show what was the opinion of the legislature of this state at that time. They had been told, that the Legislature of Virginia had a right to pass such a law, and that Congress had not. He contended on the contrary, from the Constitution, that the state had a power to pass such a law, only until Congress should interfere, by passing one upon the subject. He assimilated this to the case of citizenship, upon which laws had been passed by the state, that were set aside when Congress passed a general law, by the force of that law. He then said, that the clauses in the Constitution of the United States, and in the bill of rights of Virginia, securing the trial by jury, were couched in general terms, and neither were ever supposed to be infringed until the passage of the alien-law by Congress. The people of this state had passed such a law for the same reason, as had induced Congress to pass one, to wit, to insure domestic tranquillity. Let me ask, said he, if here we ought not to pause, and not hastily condemn a former legislature of our own state. He then proceeded to show, that by the suspension of the writ of habeas corpus, (which the Constitution warranted in a particular case,) the trial by jury was taken away even from a citizen. Would not then, he said, the true meaning and spirit of the same instrument allow it to be taken away from an alien, a person entitled to no absolute rights, and who was no party to the compact, in a similar case. He then stated at large, the proceedings which took place in the case of the suspension of the writ of habeas corpus; and observed, that a person then charged, must remain in prison without a hearing, until the emergency had ceased. That case then, he said, was in principle the same as the alien-law. The cause for the suspension of the writ of habeas corpus was temporary, and when the cause had no longer an existence, the effect would also cease. He then contended, that when the alien-law had passed, there was good cause to apprehend danger from without, and from aliens within our territory: to guard against their attempts was proper. He said, the gentleman from James City had urged the necessity of aliens being informed of the rule of conduct which should govern them upon their arrival in America. In reply to this, he, Mr. Magill, would observe, that aliens must know that rule from the law of nations, which is a part of the law of every country, and is simply this, "interfere not in the governmental affairs of a foreign country, and confine your attention to your individual concerns whilst in that country." He thought this power

given by the law, of removing aliens, properly vested in the President. He stated his responsibility, and the eminent services rendered by the present President, together with his known attachment to his country, as a pledge that he would not act cruelly or unjustly.

The gentleman from Caroline had argued upon the condition upon which the Constitution was adopted in Virginia, and upon that point he had understood him to say, that the condition being broken, we were no longer bound by the ratification. This, Mr. Magill said, was an alarming doctrine. He then recapitulated his several arguments, in order, he said, to impress upon them what he attempted to prove, and said, that he would then consider the sedition-law: and here he requested the attention of the committee, this law being in its nature particularly important, citizens being affected by it. The freedom of the press, correctly understood, and as it was considered by the framers of the Constitution, he contended was not abridged by the law. He then read the sedition-act, and said the passage of this law was opposed in Congress by those gentlemen who had opposed the defensive measures adopted against a foreign nation, and in Virginia it was reprobated on the ground of its being unwarranted by the Constitution. He asked, is there by this law an addition to our penal code, and said, that in his judgment no new offence was created by it, everything it forbids being before an offence at common law. He said, here it will be proper to inquire, whether the doctrines of the common law apply, or form the basis of our laws: that they do so, he took to be clear and evident; such was the opinion entertained in the Virginia Convention. He said, that what the doctrines of the common law were prior to, and at the establishment of the Constitution of the United States, must then be the rule, and the term liberty of the press, as then understood, an important consideration. He then read the history of the liberty of the press, as laid down by Blackstone, in the fourth volume of his Commentaries, and said, this then is the history of the term freedom of the press. It was an exemption from all power over publications, unless previously approved by licensers. To show that it did not extend to an exemption from legal punishment, according to the principles of the common law, he said, let us again return to the same author: "Libels are malicious defamations of any person, and especially a magistrate, made public, by either printing, writing, signs or pictures, in order to provoke him to wrath." He proceeded to read Blackstone's definition, with the mode of proceeding against persons charged with libellous publications. The liberty of the press, as he had stated it, he said was essential to a free state, and drew the distinction between the liberty and licentiousness of the press. He said, with this definition of the freedom of the press, as it was before them, with Blackstone's rational observations in their view, can we for a moment suppose that Congress, when they concurred in recommending the third article of the amendments, and the assemblies of the different states, when they ratified and approved that article, intended to procure an exemption for writings false, scandalous, and malicious, from punishment, according to the principles of the common law. Doth not the judicial power of the United States expressly extend to controversies, to which the United States shall be a party? Can there be a case, in which the United States shall

be called a party, if not to those which are offences against the United States, their people and government? Was it intended that the government should be destitute of the means of defending itself or its members? Have not Congress power, "to make all laws necessary and proper for carrying into execution the powers vested by the Constitution in any department of the government of the United States?" He said, let us now see what construction hath been put upon the twelfth clause of the bill of rights in Virginia, by the Assembly of that state, for a law by that body is an express declaration of the opinion it entertains. The twelfth clause is, "That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments." The Constitution of the United States says, in the third article of the amendments, "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press, &c." In substance the language is the same. Amongst the laws passed in 1792, is one to be seen in page 219 of the Revised Code, entitled, "An act against divulgers of false news;" which law enacts, "That whereas," &c. He then read the law. The legislature was then of opinion, that divulgers of false news, whether printers or others, were not protected by this clause in the bill of rights. Are we, he asked, wiser than a former Assembly? This law in our code, upon being compared with the law of Congress, will be found much more severe than the latter. By the law of Congress, the accused may give in evidence in his defence, the truth of the matter contained in the publication charged against him, &c. But, said he, is it known to the people that in a prosecution for a libel in Virginia, under the state laws, you can neither plead nor give in evidence the truth of the matter contained in the libel. He said, in a civil action, the truth could be pleaded in bar of the suit, and upon proving the plea, a verdict would be found for the defendant. He here pointed out the mode of proceeding by indictment against a person accused and tried under the state law for a libel; and said here is a material distinction between the two laws. He contended, that the freedom of the press was not abridged, no new offence being created. He asked, how can the officers of government carry the laws of the union into effect, without possessing the confidence of the people? He said, what is this law designed to prevent, is it the circulation of false and malicious slanders? And if so, can any man wish to exercise such a right, even admitting him to possess it, the bare use of which would cover him with infamy? He said a law passed by us is right, but a similar law passed by Congress, having equal power upon the subject-matter, is wrong. He repeated his several arguments in order, and said that the committee had been so indulgent, that he would now pass on to the resolutions offered: And here, he said, it appeared to him that the wisdom of man could not devise a more certain mode of preventing a repeal of the laws complained of, than that which the resolutions pointed out. Are gentlemen serious, he said, in wishing a repeal? He said, the moment that the paper under consideration was adopted, he should consider as giving birth to a serious and alarming contest. He said, are we sincere in our professions of friendship to the government of the United States? If so, why snatch with avidity