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examine their influence upon the public happiness, without being subject to the imputation of an undue attachment to a foreign power. He rejoiced in knowing, that as long as the charge had existed, and as often as it had been repeated, not a single instance had been produced throughout Ame. rica, by which it could be supported. It was used as the apology for a system of measures which could not have been adopted, without receiving the universal disapprobation of all who have a knowledge of the principles of the federal Constitution, and of the clear limitation of power contained in that instrument. For his part, he did not see how a view of the insults offered to America by France, could decide the merit of the resolutions. He hoped the committee were ready to repel the former, as well as to consider the latter. To preserve the Constitution, was to preserve the union; and to maintain that, upon the prirciples upon which it was origi. nally formed, was to bid defiance to every foreign power, whose conduct might be hostile to the independence and rights of our country.
The gentleman from Prince George had told the committee that the resolutions introduced by the gentleman from Caroline were calculated to rouse the people to resistance, to excite the people of Virginia against the could result from their adoption. They contained nothing more than the federal government. Mr. Mercer did not see how such consequences sentiments which the people in many parts of the state had expressed, and which had been conveyed to the legislature in their memorials and resolutions then lying upon the table. He would venture to say, that an attention to the resolutions before the committee would prove that the qualities attempted to be attached to them by the gentleman could not be found. He begged leave to read ihe first and second clause, in which it is declared, “thai the General Assembly doth unequivocally express a firm resolution to maintain and defend the Constilution of the United States, and the constitution of this siale; and that they will support the govern. ment of the United States in all measures warranted by the former," and to maintain the union, “it pledges all its powers.” Language less calculated to rouse resentment could not be used: nor were the resolutions addressed to the people, and if they were, Mr. Mercer said they would not have been objecíed to by him on that ground. If the people were not to be confided in, we were wretched indeed. In whom were we to confide, if not in the people? In their virtue and patriotism were all his hopes placed. The history of government had been the history of crime and usurpation. In the purity of administracion he could not solely confide. The people were the best, and ihe only defenders of their liberties; when they became ignorant of the proceedings of their own governments; when public virtue should cease to be their ruling principle, iheir liberties would experience the same fate, which ihose of other naiions had undergone: power would stand in the place of the Constitution. He hoped no arguments derived from the probable consequences upon the people of adopting the resolutions, would prevent the judgment of the commitiee from being calmly exercised upon them,
The right of the state government to interfere in the manner pro. posed by the resolutions, Mr. Mercer contended, was clear to his mind. He asked, what were the rights belonging to the state governments prior
to the existence of the federal Constitution?. They were those which belong to all sovereign and independent states. They were perfect and complete. The federal Constitution derived its powers from the people and the states, and could give none but what had been previously in the possession of the states or the people, and by them delegated to the general government. It would not be said, that all power was delegated to the general government; though it had indeed been improperly said, as he should attempt to show before he took his seat, that the powers.of the federal government were general. He should attempt to show they were special, and that none but what were specially delegated could be exercised. It appeared to him, that, from the operation of the two separate governments in the same community, there resulted three species of rights to be exercised. There were rights which the “federal government could exclusively exercise, without any interference on the part of the state governinent; there were rights which could be exercised by each government at the same time, and there were rights which belonged exclusively to the state government. The latter embraced all which had not been delegated in the federal Constitution to the general government, or prohibited to the states by that instrument. That portion of power which had been delegated to the federal government, did not affect the sovereignty of the states" over the reserved rights; that sovereignty continued entire ; and remained as to the reserved rights, what it had been with respect to all the rights, before the federal Constitution. If the remaining rights are sovereign, the states whose sovereignty is invaded by any act of the general government have it as fully in their power to defend and protect these, as they would have had to defend any of their rights is attacked by a foreign power, before the general government had a being. The state believed some of its rights had been invaded by the late acts of the general government, and proposed a remedy whereby to obtain a repeal of them. The plan contained in the resolutions appeared to Mr. Mercer the most advisable. Force was not thought of by any one. The preservation of the federal Constitution, the cement of the Union with its original powers, was the object of the resolutions. The states were equally concerned, as their rights had been equally invaded; and nothing seemed more likely to produce a temper in Congress for a repeal, than a declaration similar to the one before the committee, made by a majority of stateş, or by several of them. The states had the power of communicating together in producing amendments to the federal Constitution. A proposition for this purpose had been presented to the legislature, during the present session, from the state of Massachusetts, and would be acted upon before their adjournment. It appeared strange that the states might communicate together to amend the Constitution, and were not permitted to do so, in order to protect the same when amended; that they might communicate together when they chose to give away their rights, but could not do it when their reserved rights were invaded. The reverse of this Mr. Mercer was happy in believing was true. The opinion contained in the resolutions was coeval with the Constitution itself, and had been maintained by the most enlightened commentary which had been produced in America upon that instrument (he alluded to a collection of papers written under
the signature of Publius, in the state of New York), when the Constitution was under consideration, and generally known by the name of the Federalist. The union of talents exercised in the production of this work had justly entitled it to the attention of every American who is anxious to know the true meaning of the federal Constitution, and the real intent of its powers; and though some of its opinions may be erroneous, it was still the best authority that could be produced. The time of its being written was extremely favourable to the impartiality of its sentiments, as that vindictive party spirit which had now so unhappily extended its baneful inAuence to almost every individual in the community, could not have affected its supposed authors, one of whose merits had so justly been resounded a few days ago from every side of this house. This authority, when speaking of the checks which the state governments would always have upon the general government, and of the little probability of the latter engrossing powers unobserved, uses the following strong and decided language: “If the majority in the general governmeni) should be really disposed to exceed the proper limits, the community will be warped of the danger, and will have an opportunity of taking measures to guard against it. Independent of parties in the national legislature itself, as often as the period of discussion arrived, the state legislatures, who will always be not only vigilant, but suspicious and jealous guardians of the rights of the citizens against encroachments from the federal government, will constantly have their attention awake to the conduct of the national rulers, and will be ready enough, if anything improper appears, to sound the alarm to the people, and not only to be the voice, but, if necessary, the arm of their discontent:" vol. 1st, page 166. Their sentiments embraced the plan proposed in the resolutions. They spoke a language much stronger than any which these would be found to contain. We do not wish, said Mr. Mercer, to be the arm of the people's discontent, but to use their voice. The same authority has maintained the right of the states to interfere in the manner expressed in the resolutions submitted to the committee, in terms still more applicable. " It may safely be received as an axiom in our political system, that the state governments will, in all possible con. tingencies, afford complete security against invasion of the public liberty by the national authority. Projects of usurpation cannot be masked under pretences so likely to escape the penetration of select bodies of men, as of the people at large. The legislatures will have better means of information. They can discover the danger at a distance; and possessing all - the
organs of civil power, and confidence of the people, they can at once adopt a regular plan of opposition, in which they can combine all the resources of the community. They can readily communicate with each other in the different states ; and unite their common forces for the protection of their common liberty :" vol. 1st, page 176. Here, said Mr. Mercer, we see the opinion of the resolutions so clearly admitted, as to be considered a "political axiom in our system.” The right of two different states" to communicate with each other," is here supported by the best defence which the federal Constitution ever received; not only ihis right is defended, but were the states to "adopt a regular plan of opposition, in which they should combine all their resources,” this authority, addressed
to the people at the time the Constitution was under consideration, would justify the measure. But no such wish was entertained by the friends of the resolutions. Their object in addressing the states is to obtain a similar declaration of opinion with respect to several late acts of the general government, which seem to violate same of the most invaluable rights secured by the charter of their own existence; and thereby to obtain a repeal of measures unconstitutional in their nature, and hateful in their tendency; measures so justly obnoxious to the people, that they would have found few advocates, but for the vain pretence of their being necessary to defend us against the attempts of France; measures that have divided the community at a moment when union of sentiment is ardeníly to be wished for by very friend to the interest of bis country.
The gentleman from Prince George had introduced the opinions of a learned writer upon the law of nations, to prove which were the rights of aliens. Though, Mr. Mercer did not believe this class of men stood, in a foreign country, upon the narrow ground in which it was attempted to place them, yet, he deemed it entirely unnecessary to inquire what was the nature and extent of their rights; he should contend ihat the federal government possessed no power over aliens in time of peace; and, there. fore, whatever power a sovereign state could exercise with respect to them, under the general law of nations, that power belonged to the state, and not to the general government; the rights of sovereignty did not altach to the federal government in all their extent: it was sovereign only with respect to the rights which it could exercise exclusively: it was limited in its operation, and the boundaries of its authority clearly ascertained ; unless, therefore, this power over aliens should be found vested in the general goveroment by the terms of the Constitution, he could noi admit it to be derived from implication, or from any general clause in that instrument. Implication would lead us into an endless discussion. The plain sense and meaning of the Constitution should be our guide. In some part of the gentleman's argument he admitied the limited powers of the Constitution ; in others he certainly advanced opinions destructive of that limitation. To show that the powers under the Constitution were limited and special, Mr. Mercei, begged leave to refer to the Constitution itself. In the eighth section and firsi aríicle, there was found a special enumeration of powers ; most of the great powers of Congress were here particularly defined. Those which ihey had a right to exercise, and which were not in this section, were as clearly ascertained in other parts of the instrument: why was this cautious enumeration of powers necessary, except to keep Congress within the strict and literal meaning of the Constitution, and to prevent the assumption of power under any general clause? It was intended to prevent them from exercising any power, but what was given. If opinions cotemporaneous with the original discussion of the Constitution in Virginia, can serve us in ascertaining iis írue meaning, (and they certainly
ought,) he would reser gentlemen to the debates in the Convention of this state. The opponents of the Constitution were apprehensive, that by implication, or some general phrases, Congress might assume powers not intended to be conveyed. The advocates of that paper declared, in every day's debate, that these apprehensions were without
foundation : that the language was so clear, and its powers so well defined, that none could be exercised under it by implication, or that was not found upon its face. Though the evidence of every member who wished the Constitution ratified, might be produced upon this subject, he would mention the opinions of only two gentlemen belonging to that body. “ Mr. John Marsholl asked if gentlemen were serious when they asserted that if the state governments had power to interfere with the militia, it was by implication. If they were, he asked the committee whether the least attention would not show they were mistaken: each government was to act according to the powers given it. Would any gentleman deny this? He demanded if powers not given were retained by implication ? Could any man say so ? Could any man say, that this power was not retained by the states, as they had not given it away? For, does not a power remain till it is given away? The state legislatures had power to command and govern their militia before, and have it still, undeniably, unless there be something in this Constitution that takes it away." Though the limited powers of the Constitution were in this opinion insisted on, there was siill higher authority. It was the instrument of ratification adopted in the Convention of Virginia, which had been mentioned by the gentle. man from Caroline. It contained the opinion of the Convention, and declares, “ that every power not granted, remains with the people and at their will: that, therefore, no right of any denomination, can be cancelled, abridged, restrained, or modified, by the Congress, by the Senate, or House of Representatives, acting in any capacity, by the President or any department or officer of the United States, except in those instances in which power is given by the Constitution for those purposes ; and that, among other essential rights, the liberty of conscience and of the press, cannot be cancelled, abridged, restrained or modified, by any authority of the United States.” We see what was the opinion of the State of Virginia, with respect to the powers of the Constitution, when she was called upon to ratify or reject it. But, to remove all doubts, immediately upon its going into operation, certain amendments were made, among which is the following: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states, respectively, or to the people.” This amendment, now a part of the Constitution, ought to fix the real extent of the powers of Congress. But, the gentleman was not satisfied with it, because the word expressly, was not to be found there. Mr. Mercer hoped the committee would not believe this single term essential to ascertain the limitation of power under which Congress were bound to act. The words of the amendment were general, and conveyed a certain meaning. It was that which the face of the Constitution, in its original form, would warrant, which cotemporaneous opinions had maintained, and which the Convention of Virginia had declared to be true. It was impossible for language to be so explicit as to produce a clause that might not be subject to similar objections; for, if ihis term had been used in the amendment, gentlemen might have thought it still defective, as others equally strong might have been left out. He therefore supposed, as these evidences ascertained the power of the Federal Constitution to be special, and as no power over aliens, such as has been