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X * . y ^?iM; '-' "■ -■ x'J-''' ”%, * ' "\4‘ .^^'L^', " 0 s»’ ^\\\^, * xV' . ^ it ^ o V y it ^ ^ ^ - C<' ”• '/xx•; -:V”• ‘;/.^- 0 % -•■x#’ %■/»., x-'^ v> Sx »A > — - % ^ . /■ I V r. ^ v*^ C, y>> .* <(> "• ,V xO < ^ -o’^ c ° -f ^ xx> ^ c^SvvAn'*^ ^ \\ y <* . ^ ^ ^ . 0 o. ■>• ^ A. y .0 ■ 9, % --- . ^ 0 K 0 " \N ' ^ v' X - ^ ^ " aV*^ '’x'V ° W^fw*" -’j’ 9 l's'” ■•^' \''*m^.'‘ - '^d- ^ V ^ ^o' t >• / ;■ - ^ • i ■» \ t- V « * 1 I t I ^ I i ’ll* j ' j f a t . > ff (ff rj f t j « f' . ■ "i; ' t t :-r ?^5 « I *• k jj^ .4 k.''--«i^ 14 Q X A'txT No. 41. IN SENATE, January 31, 1833, STATE OF NEW-YORK, ) In Senate, January 31, 1833. ) Resolved, That there be printed four times the usual number of copies of the Virginia and Kentucky Resolutions of 1798, Mr. Madi¬ son’s report on the Virginia Resolutions in 1799, and also Mr. Ma¬ dison’s Letter to the editor of the North American Review, in Au¬ gust, 1830. By order. JOHN F. BACON, Clerk, MESSAGE From Governor Jay, of the 12th January, 1799, ac¬ companying Resolutions from Virginia and Ken¬ tucky. Gentlemen, Certain Resolutions of the Legislatures of Virginia and Ken¬ tucky having been officially transmitted to me for the purpose of being laid before you, they accompany this message. JOHN JAY. Albany, I2th January, n99. [Senate, No. 41.] 1 > I » * ^ > • r'V. •s»'- -> .5 T' * <' .. . . • - >r;vv . . • - '■ ^ - ■ ^ ‘j > tfft. ■■, 1 •- i’ * W •• . ^ .••'<• ‘A'. ■.r<-.- •>-. •. , , ' / " sj^jT *>. * , -. ,/v •<*• . • ^ < • ■» ,C ■ K f • >» f jl > y i ’ \i. ^' S-"N’ r/'.l' .. -r » • . % - - * V ' r .^•f y 4- ' ■ ; " • ' - .V \it^' ‘xih’ "io ',7id, 'U'Movsvr; ». V ^ V f • # ‘ •- u 'f . - - - ■ W ’ll > /.V. # A . A' A' ✓ -, < ' 1 ■ *• ',' 4^ ■» . fs’ y. "i - i . V r» i* ^4- - - ■^ riV.*;, ^‘5 i;; 'w ' •/-Id nc'-,r>'rr 1 ^' ••ii ‘tl.i. •I • ' 1^'.' -ki^ • -v- f ^ . • - . - "fc*" .r.. • - ^ ^ %P v:'\dii-/ i ^ /■' ; .>V ,,; „ .' '’■* .*111 ’ . ,r.» • ■ , .. .. ^ ^ v'lii I'f 'P,:'. '^,..',;.i ,^. . ‘' vi,r. l;-:-: jr't* w.k 7 • 'I.- r^.'-v:. . - . ' . ,.MV f, • * ' »* • • *»4 r. \ 1 ■ • 4.' * t • :v> »- :- «- * V Vf* ' ♦ ■• * *i • ■ >• V .1 «- ^-- ' ' V'- -w^ . r *> > 11 *^r; ;V'birrVv. s; , vi. * ^ ’ * • - V . _r . .’T ‘ ' ■- A- . * v* '^A- ^VV - >>. k , % */ • •'i' ■ .>■-, V . 7 • . ' ’ ,'i ,«• • '» ;. : « • • • 4 « c ♦ • c « » r ♦ v*:? •,' f*; 1 r ,' /' f : : * * • 1 f ■. jjr* f . <1 »y 1 i., , • ‘ V >4 ■‘’t’ : V v ' ' ''-JC * * - ^ V *■ ■ y " J V. ** /■h mT..K m^4 * ^ f I.VJ . . .• . , '■: Alt :v X-’ ■'•••.' ’: ‘V, • • n • .. * * . U 4 •J* ■*. ;• .'*,■' • > • • 1 %A- ^ \ , -x^v. • V : * ' - ■ ' O ..»• ► ■ J* 1, ■V-r' - .: - . c^'- •N, ♦'•*- •• . ’ t : v':vy'. y/£;;;■ •j< 42 ' ‘ - v'; W 0\A^ t ^ 0 . \e .t Resolutions of the Legislature of Virginia relative to the Alien and Sedition Laws. Virginia to wit. In the House of Delegates, ) Fridayj December 21 st, 1798. \ Resolved, That the General Assembly of Virginia doth unequi¬ vocally express a firm resolution to maintain and defend the Con¬ stitution of the United States, and the Constitution of this State, against every aggression, either foreign or domestic, and that they will support the government of the United States in all measures, warranted by the former. That this Assembly most solemnly declares a warm attachment to the union of the States, to maintain which it pledges its powers; and that for this end it is their duty to watch over and oppose every infraction of those principles which constitute the only basis of that union, because a faithful observance of them can alone se¬ cure its existence, and the public happiness. That this Assembly doth explicitly and peremptorily declare, that it views the powers of the Federal Government as resulting from the compact, to which the stales are parties; as limited by the plain sense and intention of the instrument constituting that compact; as no farther valid than they are authorized by the grants enumerated in that compact, and that in case of a delibe¬ rate, palpable and dangerous exercise of other powers not granted by the said compact, the States who are parties thereto, have the right, and are in duty bound to interpose for arresting the pro¬ gress of the evil, and for maintaining within their respective limits the authorities, rights and liberties appertaining to them. That the General Assembly doth also express its deep regret that a spirit has, in sundry instances, been manifested by the Fe¬ deral Government, to enlarge its powers by forced constructions of the constitutional charter which defines them; and that indica¬ tions have appeared of a design to expound certain general phra¬ ses, (which having been copied from the very limited grant of powers in the former articles of confederation, were the less liable to be misconstrued,) so as to destroy the meaning and effect of the particular enumeration, which necessarily explains and limits the 4 fSlTJSlATr general phrases^ and so as to consolidate the States by degrees into one sovereignty, the obvious tendency and inevitable conse- quence of which -Would be, to transform the present republican; system of the United States into an absolute, or at best, a mixed monarchy. That the General Assembly doth particularly protest against the* palpable and alarming infraction of the Constitution, in the twa late cases of the Alien and Sedition acts,” passed at the last ses-- sion of Congress; the first of which exercises a power no where delegated to the Federal Government; and which, by uniting le¬ gislative and judicial powers to those of the executive, subverts the general principles of free government, as well as the particu¬ lar organization and positive provisions of the federal Constitution r and the other of which acts exercises in like manner a power not delegated by the Constitution, but on the contrary expressly and positively forbidden by one of the amendments thereto;, a power which more than any other ought to produce universal alarm, be¬ cause it is levelled against that right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed the only efiect- ual guardian of every other right. That this State having, by its Convention, which ratified the Federal Constitution, expressly declared, ^Uhat among other essen¬ tial rights, the liberty of conscience and of the press cannot be can¬ celled, abridged, restrained or modified by any authority of the United States,” and from its extreme anxiety to guard these rights from every possible attack of sophistry or ambition, having with other States recommended ^n amendment for that purpose, which amendment was in due time annexed to the Constitution, it would mark a reproachful inconsistency and criminal degeneracy, if an indifference were now shewn to the most palpable violation of one of the rights thus declared and secured, and to the establishment of a precedent which may be fatal to the other. That the good people of this Commonwealth having ever felt and continuing to feel the most sincere affection to their brethren of the other states, the truest anxiety for establishing and perpetu¬ ating the Union of all, and the most scrupulous fidelity to that Constitution which is the pledge of mutual friendship, and the in¬ strument of mutual happiness. The General Assembly doth so- No. 41.] 5 lemnly appeal to the like dispositions of the other States, in con¬ fidence that they will concur with this Commonwealth in declaring, as it does hereby declare, that the acts aforesaid are unconstitu¬ tional, and that the necessary and proper measures will be taken by each, for co-operating with this State in maintaining unimpaired the authorities, rights and liberties, reserved to the States respec¬ tively, or to the people. That the Governor be desired to transmit a copy of the forego¬ ing resolutions to the executive authority of each of the other States, with a request that the same may be communicated to the Legislature thereof. And that a copy be furnished to each of the senators and repre-, sentatives representing this State in the Congress of the United States. Attest, JOHN STEWART, c. h. d. 1798, December the 24th, Agreed to by the Senate. H. BROOKE, c. s. nr "Oh:-,/ r.'; ■ . J' : . c.r ^ ... ', - r.; n'v/- J .• ’■'' '-‘j V'’fv ijn'c.: j i-.' '.■•■ '■• • „'''^’3i:>f:iLi;-7,.i-;i C-. •', > -.7 'f'••, 'V'r,.-: '--f ::>■■■ ).,'■■ n.*- ' : ' ■ 7'‘( 7i. f t"77 oi>,; fi :■ ...; :ii’7;';7 iry . ■■■ ■, ’ 7: ; ■7..rV'177yf^ ,r''7t';7:7t ;7:w 7: .: ■ ' ■ ' ;* / 1 ,7 -i '■' ;./ 1, •i.-f.' ..7\’.r ' /I’y^L 9«1 7' ■cori.' :■ u/h" ;7;i: 7 i7, '^.,7.''.>7 ' - f.;;- 0 .7 ■ 3',';7:' ^'7. ft ■' ‘TilJ .; '■77. 'J{';'.7 ,7' ' 317^7 bilT. ;w'u 77 ,. 77 ;' ;:’.{''>7 i! 7 ^;/'.; JV 7, , ^ bai'blU a'h 77 7 -; .'i- j.. ' 'V; 7 h 7 : 7 b'V 7 . 7 .J ^';. .:x'.h;., 7 ;rb[A''b: A ■ " Vi 70 7 7'‘. ,‘■<1 ■ ‘J Resolutions of the Legislature of Kentucky, rela- tive to the Alien and Sedition Laws. In the House of Representatives, ) J^ovemher \0th^ 1798. ^ l^’he House, according to the standing order of the day, resolved itself into a committee of the whole on the state of the Com¬ monwealth, Mr. Caldwell in the chair; and after some time spent therein the Speaker resumed the chair, and Mr. Caldwell reported, that the committee had, according to order, had under consideration the Governor’s Address, and had come to the fol¬ lowing Resolutions thereupon, which he delivered in at the clerk’s table, where they were twice read and agreed to by the House. I. Resolved, That the several States composing the United States of America, are not united on the principle of unlimited submission to their General Government; but that by compact under the style and title of a Constitution for the United States and of amend¬ ments thereto, they constituted a General Government for special purposes, delegated to that Government certain definite powers, reserving each State to itself, the residuary mass of right to their own self Government; and that whensoever the General Govern¬ ment assumes undelegated powers, its acts are unauthoritative, void, and of no force: That to this compact each State acceded as a State, and is an integral party, its co-States forming as to itself, the other party: That the Government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discre¬ tion, and not the constitution, the measure of its powers; but that as in all other cases of compact among parties having no comrhon judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress. II. Resolved, That the Constitution of the United States having delegated to Congress a power to punish treason, counterfeiting the securities and current coin of the United States, piracies and felonies committed on the high seas, and offences against the laws of nations, and no other crimes whatever, and it being true as a general principle, and one of the amendments to the Constitu- 8 [Senate tion having also declared, that 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,” therefore also the same act of Congress passed on the 14th day of July, 1798, and entitled ‘‘ An act in addition to the act entitled an act for the punishment of certain crimes against the United States;” as also the act passed by them on the 27th day of June, 1798, entitled “ An act to punish frauds committed on the Bank of the United States,” (and all other their acts which assume to cre¬ ate, define, or punish crimes other than those enumerated in the Constitution,) are altogether void and of no force, and that the power to create, define, and punish such other crimes is reserved, and of right appertains solely and exclusively to the respective States, each within its own territory. III. Resolved^ That it is true as a general principle, and is also expressly declared by one of the amendments to the Constitution, that “ the powers not delegated to the United States by the Con¬ stitution, nor prohibited by it to the States, are reserved to the States respectively or to the people;” and that no power over the freedom of religion, freedom of speech, or freedom of the press being delegated to the United States by the Constitution, nor prohi¬ bited by it to the States, all lawful powers respecting the same did of right remain, and were reserved to the States, or to the peo¬ ple: That thus was manifested their determination to retain to themselves the right of judging how far the licentiousness of speech and of the press may be abridged without lessening their useful freedom, and how far those abuses which cannot be separated from their use, should be tolerated rather than the use be destroyed; and thus also they guarded against all abridgement by the United States of the freedom of religious opinions and exercises, and retained to themselves the right of protecting the same, as this State by a law passed on the general demand of its citizens, had already protected them from all human restraint or interference: And that in addi¬ tion to this general principle and express declaration, another and more special provision has been made by one of the amendments to the Constitution which expressly declares, that “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,” thereby guarding in the same sentence, and under the same words, the freedom of religion, of speech, and of the press, insomuch, that whatever violates either, throws down the No. 41.J 9 sanctuary which covers the others, and that libels, falsehoods, and defamation, equally with heresy and false religion, are withheld from the cognizance of federal tribunals. That therefore the act of the Congress of the United States passed on the 14th day of July, 1798, entitled “An act in addition to the act for the punish^ ment of certain crimes against the United States,” which does abridge the freedom of the press, is not law, but is altogethel: void and of no effect. IV. Resolved, That alien friends are under the jurisdiction and protection of the laws of the State wherein they are; that no pow¬ er over them has been delegated to the United States, nor prohi* bited to the individual States distinct from their power over citi¬ zens; and it being true as a general principle, and one of the amendments to the Constitution having also declared, that “the powers not delegated to the United States by the Constitution nor prohibited by it to the States are reserved to the States respec¬ tively or to the people,” the act of the Congress of the United States passed on the 22d day of June, 1798, entitled “An act con¬ cerning aliens,” which assumes power over alien friends not dele¬ gated by the Constitution, is not law, but is altogether void and of no force. V. Resolved, That in addition to the general principle as well as the express declaration, that powers not delegated are reserved, another and more special provision inserted in the Constitution from abundant caution has declared, “ that the migration or im¬ portation 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.” That this Commonwealth does admit the mi¬ gration of alien friends described as the subject of the said act con¬ cerning aliens; that a provision against prohibiting their migration, is a provision against all acts equivalent thereto, or it would be nu¬ gatory; that to remove them when migrated is equivalent to a pro¬ hibition of their migration, and is therefore contrary to the said provision of the Constitution, and void. VI. Resolved, That the imprisonment of a person under the pro¬ tection of the lav7s of this Commonwealth on his failure to obey the simple order of the President to depart out of the United States, as is undertaken by the said act entitled “ An act concern¬ ing Aliens,” is contrary to the Constitution, one amendment to [Senate, No. 41.] 2 10 [Senate: which has provided, that no person shall be deprived of liberty without due process of law,” and that another having provided that in all criminal prosecutions, the accused shall enjoy the right to a public trial by an impartial jury, to 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 favor, and to have the assistance of counsel for his defence,’^ the same act undertaking to authorize the President to remove a person out of the United States who is under the protection of the law, on his own suspicion, without accusation, without jury, with¬ out public trial, without confrontation of the witnesses against him, without having witnesses in his favor, without defence, without counsel, is contrary to these provisions also of the Constitution, is therefoi’e not law, but utterly void and of no force. That transferring the power of judging any person who is under the protection of the law^s, from the Courts to the President of the United States, as is undertaken by the same act concerning aliens, is against the article of the Constitution which provides, that the judicial power of the United States shall be vested in Courts, the Judges of which shall hold their offices during good behavior,’’ and that the said act is void for that reason also; and it is further to be noted, that this transfer of judiciary power is to that magistrate of the General Government who already possesses all the Execu¬ tive, and a qualified negative in all the Legislative powers. VII. Resolved^ That the construction applied by the General Go¬ vernment (as is evinced by sundry of their proceedings) to those parts of the Constitution of the United States which delegate to Congress a power to lay and collect taxes, duties, imposts, and ex¬ cises; to pay the debts, and provide for the common defence, and general welfare of the United States, and to make all laws which shall be necessary and proper for carrying into execution the pow¬ ers vested by the Constitution in the Government of the United States, or any department thereof, goes to the destruction of all the limits prescribed to their power by the Constitution—That words meant by that instrument to be subsiduary only to the exe¬ cution of the limited powers, ought not to be so construed as them¬ selves to give unlimited powers, nor a part so to be taken, as to de¬ stroy the whole residue of the instrument: That the proceedings of the General Government under color of these articles, will be a fit and necessary subject for revisal and correction, at a time of 11 No. 41.] greater tranquillity, while those specified in the preceding resolu¬ tions call for immediate redress. VIIL Resolved, That the preceding resolutions be transmitted to the Senators and Representatives in Congress from this Common¬ wealth, who are hereby enjoined to present the same to their re¬ spective Houses, and to use their best endeavors to procure at the next session of Congress, a repeal of the aforesaid unconstitutional and obnoxious acts: IX. Resolved, lastly. That the Governor of this Commonwealth be, and is hereby authorised and requested to communicate the pre¬ ceding resolutions to the Legislatures of the several States, to as¬ sure them that this Commonwealth considers Union for specified national purposes, and particularly for those specified in their late Federal Compact, to be friendly to the peace, happiness, and pros¬ perity of all the States: that faithful to that compact, according to the plain intent and meaning in which it was understood and ac¬ ceded to by the several parties, it is sincerely anxious for its pre¬ servation: that it does also believe, that to take from the States all the powers of self-government, and transfer them to a general and consolidated government, without regard to the special delega¬ tions and reservations solemnly agreed to in that compact, is not for the peace, happiness, or prosperity of these States: And that therefore, this Commonwealth is determined, as it doubts not its co-States are, tamely to submit to undelegated and consequently unlimited powers in no man or body of men on earth: that if the acts before specified should stand, these conclusions would flow from them; that the General Government may place any act they think proper on the list of crimes and punish it themselves, whether enumerated or not enumerated by the Constitution as cognizable by them: that they may transfer its cognizance to the President or any other person, who may himself be the accuser, counsel, judge, and jury, whose suspicions may be the evidence, his order the sen¬ tence, his officer the executioner, and his breast the sole record of the transaction: that a very numerous and valuable description of the inhabitants of these States, being by this precedent reduced as outlaws to the absolute dominion of one man, and the barrier of the Constitution thus swept away from us all, no rampart now remains against the passions and the power of a majority of Congress, to pro¬ tect from a like exportation or other more grievous punishment the minority of the same body, the Legislatures, Judges, Governors, and 12 [Senate Counsellors of the States, nor their other peaceable inhabitants who may venture to reclaim the constitutional rights and liberties of the States and people, or who for other causes, good or bad, may be obnoxious to the views or marked by the suspicions of the Pre¬ sident, or be thought dangerous to his or their elections or other interests public or personal: that the friendless alien has indeed been selected as the safest subject of a first experiment: but the citizen will soon follow, or rather has already followed; for, al¬ ready has a Sedition act marked him as its prey: that these and successive acts of the same character, unless arrested on the thresh- hold, may tend to drive these States into revolution and blood, and will furnish new calumnies against Republican Governments, and new pretexts for those who wish it to be believed, that man cannot be governed but by a rod of iron: that it would be a dangerous delusion were a confidence in the men of our choice to silence our fears for the safety of our rights: that confidence is every where the parent of despotism: free government is founded in jealousy and not in confidence; it is jealousy and not confidence which pre¬ scribes limited Constitutions to bind down those whom we are obliged to trust with power: that our Constitution has according¬ ly fixed the limits to which and no further our confidence may go; and let the honest advocate of confidence read the Alien and Se¬ dition acts, and say if the Constitution has not been wise in fixing limits to the Government it created, and whether we should be wise in destroying those limits'? Let him say what the Government is if it be not a tyranny, which the men of our choice have con¬ ferred on the President, and the President of our choice has as¬ sented to and accepted over the friendly strangers, to whom the mild spirit of our country and its laws had pledged hospitality and protection: that the men of our choice have more respected the bare suspicions of the President than the solid rights of innocence, the claims of justification, the sacred force of truth, and the forms and substance of law and justice. In questions of power then let no more be heard of confidence in man, but bind him down from mischief by the chain of the Constitution. That this Common¬ wealth does therefore call on its co-States for an expression of their sentiments on the acts concerning aliens, and for the punish¬ ment of certain crimes herein before specified, plainly declaring whether these acts are or are not authorised by the Federal Com¬ pact 'I And it doubts not that their sense will be so announced as to prove their attachment unaltered to limited government, whether 13 No. 41.] general or particular, and that the rights and liberties of their co- States will be exposed to no dangers by remaining embarked on a common bottom with their own: That they will concur with this Commonwealth in considering the said acts as so palpably against the Constitution as to amount to an undisguised declaration, that the compact is not meant to be the measure of the powers of the General Government, but that it will proceed in the exercise over these States of all powers whatsoever: That they will view this as seizing the rights of the States and consolidating them in the hands of the General Government with a power assumed to bind the States (not merely in cases made federal) but in all cases what¬ soever, by laws made, not with their consent, but by others against their consent: That this would be to surrender the form of govern¬ ment we have chosen, and to live under one deriving its powers from its own will, and not from our authority; and that the co- States recurring to their natural right in cases not made federal, will concur in declaring these acts void and of no force, and will each unite with this commonwealth in requesting their repeal at the next session of Congress. EDMUND BULLOCK, S. H. R. JOHN CAMPBELL, S. S. P. T. Passed the House of Representatives, Nov. 10th, 1798. Attest, THOMAS TODD, C. H. R. IN SENATE, November 13th, 1798, unanimously concurred in. Attest, B. THRUSTON, Clk. Sen. Approved, November 16th, 1798. JAMES GARRARD, G. K. BY THE GOVERNOR, HARRY TOULMIN, V Secretary of State. VIRGINIA. HOUSE OF DELEGATES. REPORT Of the committee to whom were referred the com¬ munications of various States, relative to the Re¬ solutions of the last General Assembly of this State, concerning the Alien and Sedition Laws. Whatever room might be found in the proceedings of some of the States, who have disapproved of the resolutions of the General Assembly of this Commonwealth, passed on the 21st day of De¬ cember, 1798, for painful remarks on the spirit and manner of those proceedings, it appears to the committee most consistent with the duty as well as dignity of the General Assembly, to hasten an oblivion of every circumstance which might be construed into a di¬ minution of mutual respect, confidence and affection, among the members of the Union. The committee have deemed it a more useful task to revise, wfith a critical eye, the resolutions which have met with this dis¬ approbation; to examine fully the several objections and arguments which have appeared against them; and to inquire whether there be any errors of fact, of principle, or of reasoning, which the can¬ dor of the General Assembly ought to acknowledge and correct. The first of the Resolutions is in the words following: Resolved, That the General Assembly of Virginia doth unequivo¬ cally express a firm resolution to maintain and defend the Constitu¬ tion of the United States, and the Constitution of this State, against every aggression, either foreign or domestic, and that they will sup¬ port the Government of the United States in all measures warranted by the former. No unfavorable comment can have been made on the sentiments here expressed. To maintain and defend the Constitution of the 16 [SenatU United States, and of their own State, against every aggression, both foreign and domestic, and to support the Government of the United States in all measures warranted by their Constitution, are duties which the General Assembly ought always to feel, and to which, on such an occasion, it was evidently proper to express their sincere and firm adherence. In their next resolution— The General Assembly most solemnly declares a warm attachment to the union of the States^ to maintain which it pledges all its powers ; and thaty for this end, it is their their duty to watch over and oppose every infraction of those princi- ples, which constitute the only basis of that Union, because a faithful observance of them can alone secure its existence and the public hap¬ piness. The observation just made is equally applicable to this solemn declaration, of warm attachment to the Union, and this solemn pledge to maintain it; nor can any question arise among enlight¬ ened friends of the Union, as to the duty of watching over and op¬ posing every infraction of those principles which constitute its ba¬ sis, and a faithful observance of which can alone secure its exist¬ ence, and the public happiness thereon depending. The third resolution is in the words following: That this Assembly doth explicitly and peremptorily declare, that it views the powers of the Federal Government, as resulting from the Compact, to which the States are parties, as limited by the plain sense and intention of the Instrument constituting that Compact; as no farther valid than they are authorised by the grants enumera¬ ted in that Compact; and that, in case of a deliberate, palpable and dangerous exercise of other powers, not granted by the said Compact, the States who are parties thereto, have the right, and are in duty hound, to interpose, for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them. On this resolution the committee have bestowed all the atten¬ tion which its importance merits: they have scanned it, not mere¬ ly with a strict, but with a severe eye; and they feel confidence in pronouncing, that, in its just and fair construction, it is unexcep- tionably true in its several positions, as well as constitutional and conclusive in its inferences. 17 No. 41. J The resolution declares, first, that it views the powers of the Federal Government as resulting from the compact to which the States are parties;^’ in other words, that the federal powers are derived from the Constitution, and that the Constitution is a com* pact to which the States are parties. Clear as the position must seem, that the Federal powers are derived from the Constitution, and from that alone, the committee are not unapprised of a late doctrine, which opens another source of Federal powers, not less extensive and important than it is neW and unexpected. The examination of this doctrine will be most conveniently connected with a review of a succeeding resolution4 The committee satisfy themselves here with briefly remarking^ that in all the cotemporary discussions and comments which the Constitution underwent, it was constantly justified and recom¬ mended, on the ground that the powers not given to the govern¬ ment were withheld from it; and that if any doubt could have ex¬ isted on this subject, under the original text of the Constitution, it is removed, as far as words could remove it, by the 12th amend¬ ment, now a part of the Constitution, which expressly declares, that the powers not delegated to the United States by the Con¬ stitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The other position involved in this branch of the resolution, namely, ‘‘ that the States are parties to the Constitution or com¬ pact,” is, in the judgment of the committee, equally free from ob¬ jection. It is indeed true, that the term “ States” is sometimes used in a vague sense, and sometimes in different senses, accord¬ ing to the subject to which it is applied. Thus, it sometimes means the separate sections of territory occupied by the political societies within each; sometimes the particular governments es¬ tablished by those societies; sometimes those societies as organ¬ ized into those particular governments; and, lastly, it means the people composing those political societies, in their highest sove¬ reign capacity. Although it might be wished that the perfection of language admitted less diversity in the signification of the s^me words, yet little inconveniency is produced by it, where the true sense can be collected with certainty from the different applica¬ tions. In the present instance, whatever different constructions of the term “ States,” in the resolution, may have been entertain¬ ed, all will at least coneur in that last mentioned; because, in that [Senate No. 41.] 3 18 [Senate sense, the Constitution was submitted to the States:” in that sense the “ States” ratified it: and, in that sense of the term States,” they are consequently parties to the compact, from which the powers of the Federal Government result. The next position is, that the General Assembly views the pow¬ ers of the Federal Government, as limited by the plain sense and intention of the instrument constituting that compact,” and as no farther valid than they are authorized by the grants therein enumerated.” It does not seem possible that any just objection can lie against either of these clauses. The first amounts merely to a declaration that the compact ought to have the interpretation plainly intended by the parties to it; the other to a declaration that it ought to have the execution and effect intended by them. If the powers granted, be valid, it is solely because they are granted: and, if the granted powers are valid, because granted, all other pow¬ ers not granted, must not be valid. The resolution, having taken this view of the Federal compact, proceeds to infer, “that, in case of a deliberate, palpable and dan¬ gerous exercise of other powers, not granted by the said compact, the States, who are parties thereto, have the right, and are in du¬ ty bound to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights arid liberties appertaining to them.” It appears to your committee to be a plain principle, founded in common sense, illustrated by common practice, and essential to the nature of compacts, that where resort can be had to no tribunal, superior to the authority of the parties, the parties themselves must be the rightful judges in the last resort, whether the bargain made has been pursued or violated. The Constitution of the United States was formed by the sanction of the States, given by each in its sovereign capacity. It adds to the stability and dignity, as well as to the authority of the Constitution, that it rests on this le¬ gitimate and solid foundation. The States, then, being the parties to the Constitutional compact, and in their sovereign capacity, it follows of necessity, that there can be no tribunal above their au¬ thority, to decide in the last resort, whether the compact made by them be violated; and, consequently, that, as the parties to it, they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition. No. 41.] 19 It does not follow, however, that because the States, as sove¬ reign parties to their Constitutional compact, must ultimately de¬ cide whether it has been violated, that such a decision ought to be interposed, either in a hasty manner, or on doubtful and inferior oc¬ casions. Even in the case of ordinary conventions between diffe¬ rent nations, where, by the strict rule of interpretation, a breach of a part may he deemed a breach of the whole; every part being deemed a condition of every other part, and of the whole, it is al¬ ways laid down that the breach must be both wilful and material to justify an application of the rule. But in the case of an intimate and Constitutional Union like that of the United States, it is evi¬ dent that the interposition of the parties, in their sovereign capa¬ city, can be called for by occasions only, deeply and essentially affecting the vital principles of their political system. The resolution has accordingly guarded against any misappre¬ hension of its object, by expressly requiring for such an interposi¬ tion, the case of a deliberate, palpable and dangerous breach of the Constitution, by the exercise of powers not granted by it.” It must be a case, not of a light and transient nature, but of a nature dangerous to the great purposes for which the Constitution was es¬ tablished. It must be a case, moreover, not obscure or doubtful in its construction, but plain and palpable. Lastly, it must be a case not resulting from a partial consideration, or hasty determi¬ nation; but a case stampt with a final consideration and deliberate adherence. It is not necessary, because the resolution does not re¬ quire that the question should be discussed, how far the exercise of any particular power, ungranted by the Constitution, would jus¬ tify the interposition of the parties to it. As cases might easi¬ ly be stated, which none would contend ought to fall within that description; cases, on the other hand, might, with equal ease, be stated, so flagrant and so fatal, as to unite every opinion in placing them within the description. But the resolution has done more than guard against miscon¬ struction, by expressly referring to cases of a deliberate, palpa¬ ble and dangerous nature. It specifies the object of the interposi¬ tion which it contemplates, to be solely that of arresting the pro¬ gress of the evil of usurpation, and of maintaining the authorities, rights and liberties appertaining to the States, as parties to the onstitution. 20 [Senate From this view of the resolution, it would seem inconceivable that it can incur any just disapprobation from those, who laying aside all momentary impressions, and recollecting the genuine source and object of the Federal Constitution, shall candidly and accurately interpret the meaning of the General Assembly. If the deliberate exercise of dangerous powers, palpably withheld by the Constitution, could not justify the parties to it, in interposing even so far as to arrest the progress of the evil, and thereby to preserve the Constitution itself, as well as to provide for the safety of the parties to it; there would be an end to all relief from usurped pow¬ er, and a direct subversion of the rights specified or recognized un¬ der all the State Constitutions, as well as a plain denial of the funda¬ mental principle on which our independence itself was declared. But it is objected, that the judical authority is to be regarded as the sole expositor of the Constitution, in the last resort; and it may be asked for what reason, the decalration by the General Assembly, supposing it to be theoretically true, could be required at the pre¬ sent day and in so solemn a manner. On this objection it might be observed^7'si : that there may be instances of usurped power, which the forms of the Constitution would never draw within the control o.f the judicial department: secondly^ that if the decision of the judiciary be raised above the authority of the sovereign parties to the Constitution, the decisions of the other departments, not carried by the forms of the Constitu¬ tion before the judiciary, must be equally authoritative and final with theMecisions of that department. But the proper answer to the objection is, that the resolution of the General Assembly re¬ lates to those great and extraordinary cases, in which all the forms of the Constitution may prove ineffectual against infractions dan¬ gerous to the essential rights of the parties to it. The resolution supposes that dangerous powers, not delegated, may not only be usurped and executed by the other departments, but that the judi¬ cial department also may exercise or sanction dangerous powers beyond the grant of the Constitution; and consequently, that the ultimate right of the parties to the Constitution, to judge whether the compact has been dangerously violated, must extend to viola¬ tions by one delegated authority, as well as by another; by the ju¬ diciary, as well as by the executive, or the Legislature. 21 No. 41 .] However true, therefore, it may be that the judicial department is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this 1-esort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties to the constitutional compact, from which the judicial as well as the other departments hold their delegated trusts. On any other hypothesis, the delegation of judicial power would annul the authority delega¬ ting it; and the concurrence of this department with the others in usurped powers, might subvert forever, and beyond the possible reach of any rightful remedy, the very Constitution, which all were instituted to preserve. The truth delared in the resolution being established, the ex¬ pediency of making the declaration at the present day, may safely be left to the temperate consideration and candid judgment of the American public. It will be remembered, that a frequent recur¬ rence to fundamental principles, is solemnly enjoined by most of the State Constitutions, and particularly by our own, as a necessary safeguard against the danger of degeneracy to which republics are liable, as well as other governments, though in a less degree than others. And a fair comparison of the political doctrines not unfre¬ quent at the present day, with those which characterized the epoch of our revolution, and which form the basis of our republican Con¬ stitutions, will best determine whether the declaratory recurrence here made to those principles, ought to be viewed as unseasonable and improper, or as a vigilant discharge of an important duty. The authority of the Constitutions over governments, and of the sove¬ reignty of the people over Constitutions, are truths which are at ail times necessary to be kept in mind; and at no time perhaps more necessary than at the present. fourth resolution stands as follows: That the General Assembly doth also express its deep regret, that a spirit has in sundry instances, been manifested by the Federal Go¬ vernment, to enlarge its powers by forced constructions of the Con¬ stitutional charter, which defines them; and that indications have appeared of a design to expound certain general phrases, {which, ha¬ ving been copied from the very limited grant of powers in the former articles of confederation, were less liable to be misconstrued,) so as to destroy the meaning and effect of the particular enumeration 22 [Senate which necessarily explains^ and limits the general phrases; and so as to consolidate the States hy degrees, into one sovereignty, the ob¬ vious tendency and inevitable resuU of which would be, to transform the present republican system of the United States, into an absolute, or at best, a mixed monarchy. first question here to be considered, is, whether a spirit has in sundry instances been manifested by the Federal Government to enlarge its powers by forced constructions of the constitutional charter. The General Assembly having declared their opinion merely by regretting in general terms that forced constructions for enlarging the federal powers have taken place, it does not appear to the com¬ mittee necessary to go into a specification of every instance to which the resolution may allude. The Alien and Sedition Acts being particularly named in a succeeding resolution, are of course to be understoood as included in the allusion. Omitting others which have less occupied public attention, or been less extensively regarded as unconstitutional, the resolution may be presumed to refer particularly to the bank law, which from the circumstances of its passage, as well as the latitude of construction on which it is founded, strikes the attention with singular force; and the carriage tax, distinguished also by circumstances in its history having a si¬ milar tendency. Those instances alone, if resulting from forced construction and calculated to enlarge the powers of the Federal Government, as the committee cannot but Conceive to be the case, sufficiently warrant this part of the resolution. The committee have not thought it incumbent on them to extend their attention to laws which have been objected to, rather as varying the constitu¬ tional distribution of powers in the Federal Government, than as an absolute enlargement of them; because instances of this sort, however important in their principles and tendencies, do not ap¬ pear to fall strictly within the text under review. The other questions presenting themselves, are—1. Whether in¬ dications have appeared of a design to expound certain general phrases copied from the “ Articles of Confederation,” so as to de¬ stroy the effect of the particular enumeration explaining and limi¬ ting their meaning. 2. Whether this exposition would by degrees consolidate the States into one sovereignty. 3. Whether the ten- No. 41. j ■' 23 dency and result of this consolidation would be to transform the re¬ publican system of the United States into a monarchy. 1. The general phrases here meant must be those of providing for the common defence and general welfare.” In the ‘‘Articles of Confederation,” the phrases are used as fol¬ lows, in art. VIII. “ All charges of war, and all other expenses that shall be incurred/or the common defence and general welfare, and allowed by the United States in Congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several States, in proportion to the value of all land within each State, granted to, or surveyed for any person, as such land and the buildings and improvements thereon shall be estimated, according to such mode as the United States in Congress assembled, shall from time to time direct and appoint,” In the existing Constitution, they make the following part of Sec. 8. “ The Congress shall have power, to lay and collect taxes, du¬ ties, imposts and excises, to pay the debts, and provide for the common defence and general welfare of the United States.” This similarity in the use of these phrases in the two great fede¬ ral charters might well be considered as rendering their meaning less liable to be misconstrued in the latter; because it will scarcely be said, that in the former they were ever understood to be either a general grant of power, or to authorise the requisition or appli¬ cation of money by the old Congress to the common defence and general welfare, except in the cases afterwards enumerated, which explained and limited their meaning; and if such was the limited meaning attached to these phrases in the very instrument revised and re-modelled by the present Constitution, it can never be sup¬ posed that when copied into this Constitution, a different meaning ought to be attached to them. That, notwithstanding this remarkable security against miscon¬ struction, a design has been indicated to expound these phrases in the Constitution, so as to destroy the effect of the particular enu¬ meration of powers by which it explains and limits them, must have fallen under the observation of those who have attended to the course of public transactions. Not to multiply proofs on this sub¬ ject, it will suffice to refer to the Debates of the Federal Legisla- 24 fSENAT*: ture, in which arguments have on different occasions been drawn, with apparent effect, from these phrases, in their indefinite meaning. To these indications might be added, without looking farther, the official report on manufactures, by the late Secretary of the Treasury, made on the 5th of December, 1791; and the report of a committee of Congress, in January, 1797, on the promotion of Agriculture. In the first of these it is expressly contended to be¬ long ‘‘to the discretion of the National Legislature to pronounce “ upon the objects which concern the general welfare, and for which, under that description, an appropriation of money is re- “ quisite and proper. And there seems to be no room for a doubt. “ that whatever concerns the general interests of learning, of ag- “ RicuLTURE, of MANUFACTURES, and of COMMERCE, are within the “ sphere of the National Councils, as far as regards an application of moneijy The latter report assumes the same latitude of pow¬ er in the National Councils, and applies it to the encouragement of Agriculture, by means of a society to be established at the seat of government. Although neither of these reports may have receiv¬ ed the sanction of a law carrying it into effect; yet, on the other hand, the extraordinary doctrine contained in both, has passed with¬ out the slightest positive mark of disapprobation from the authority to which it was addressed. Now, whether the phrases in question be construed to authorise every measure relating to the common defence and general wel¬ fare, as contended by some; or every measure only in which there might be an application of money, as suggested by the caution of others; the effect must substantially be the same, in destroying the import and force of the particular enumeration of powers which fol¬ low these general phrases in the Constitution. For, it is evident, that there is not a single power whatever, which may not have some reference to the common defence, or the general welfare; nor a power of any magnitude, which, in its exercise, does not in¬ volve or admit an application of money. The Government, there¬ fore, which possesses power in either one or other of these ex¬ tents, is a Government without the limitations formed by a particu¬ lar enumeration of powers; and consequently, the meaning and ef¬ fect of this particular enumeration is destroyed by the exposition given to these general phrases. No. 41.] 135 This conclusion will not be affected by an attempt to qualify the power over the “ general welfare,” by referring it to cases where the general welfare is beyond the reach of separate provisions by the individual States; and leaving to these their jurisdictions in cases to which their separate provisions may be competent. For, as the authority of the individual States must in all cases be incom¬ petent to general regulations operating through the whole, the au¬ thority of the United States would be extended to every object re¬ lating to the general welfare, which might, by any possibility, be provided for by the general authority. This qualifying construc¬ tion, therefore, would have little, if any tendency, to circumscribe the power claimed under the latitude of the terms general wel¬ fare.” The true and fair construction of this expression, both in the ori¬ ginal and existing Federal compacts, appears to the committee too obvious to be mistaken. In both, the Congress is authorised to provide money for the common defence and general welfare. In both, is subjoined to this authority, an enumeration of the cases to which their powers shall extend. Money cannot be applied to the general welfare, otherwise than by an application of it to some par¬ ticular measure, conducive to the general welfare. Whenever, therefore, money has been raised by the general authority, and is to be applied to a particular measure, a question arises, whether the particular measure be within the enumerated authorities vest¬ ed in Congress. If it be, the money requisite for it may be applied to it; if it be not, no such application can be made. This fair and obvious interpretation coincides with, and is enforced by, the clause in the Constitution, which declares, that “no money shall be drawn from the Treasury, but in consequence of appropriations by law.” An appropriation of money to the general welfare would be deem¬ ed rather a mockery than an observance of this Constitutional in¬ junction. 2. Whether the exposition of the general phrases here combat¬ ted would not, by degrees, consolidate the States into one sove¬ reignty, is a question, concerning which the committee can per¬ ceive little room for difference of opinion. To consolidate the States into one sovereignty, nothing more can be wanted, than to supersede their respective sovereignties in the cases reserved to them, by extending the sovereignty of the United States to all ca¬ ses of the “general welfare,” that is to say, to all cases whatever. Senate, No. 41.] 4 26 [Senate- 3. That the obvious tendency and inevitable result of a consoli' dation of the States into one sovereignty, would be to transform the republican system of the United States into a monarchy, is a point which seems to have been sufficiently decided by the general sen¬ timent of America. In almost every instance of discussion, relat¬ ing to the consolidation in question, its certain tendency to pave the way to monarchy seems not to have been contested. The prospect of such a consolidation has formed the only topic of con¬ troversy. It would be unnecessary, therefore, for the committee to dwell long on the reasons which support the position of the General Assembly. It may not be improper, however, to remark two consequences, evidently flowing from an extension of the Federal powers to every subject falling within the idea of the “general welfare.” One consequence must be, to enlarge the sphere of discretion al¬ lotted to the Executive Magistrate. Even within the Legislative limits, properly defined by the Constitution, the difficulty of ac¬ commodating legal regulations to a country so great in extent and so various in its circumstances, has been much felt; and has led to occasional investments of power in the Executive, which involve perhaps as large a portion of discretion as can be deemed consis¬ tent with the nature of the Executive trust. In proportion as the objects of Legislative care might be multiplied, would the time al¬ lowed for each be diminished, and the difficulty of providing uni¬ form and particular regulations for all be increased. From these sources would necessarily ensue a greater latitude to the agency of that department which is always in existence, and which could best mould regulations of a general nature, so as to suit them to the diversity of particular situations. And it is in this latitude, as a supplement to the deficiency of the laws, "that the degree of Ex¬ ecutive prerogative materially consists. The other consequence would be, that of an excessive augmen¬ tation of the offices, honors and emoluments depending on the Ex¬ ecutive will. Add to the present legitimate stock, all those of eve¬ ry description which a consolidation of the States would take from them, and turn over to the Federal Government, and the patronage of the Executive would necessarily be as much swelled in this case as its prerogative would be in the other. 27 Ko. 41.] This disproportionate increase of prerogative and patronage, must, evidently, either enable the Chief Magistrate of the Union by quiet means to secure his re-election from time to time, and finally, to regulate the succession as he might please; or, by giving so transcendant an importance to the office, would render the elec¬ tions to it so violent and corrupt, that the public voice itself might call for an hereditary in place of an elective succession. Which¬ ever of these events might follow the transformation of the repub¬ lican system of the United States into a monarchy, anticipated by the General Assembly from a consolidation of the States into one sovereignty, would be equally accomplished; and whether it would be into a mixed or an absolute monarchy, might depend on too many contingencies to admit of any certain foresight. The resolution next in order is contained in the following terms: That the General Assembly doth particularly protest against the palpable and alarming infractions of the Constitution, in the two late cases of the ^^Alien and Sedition Actsf passed at the last ses¬ sion of Congress ; the first of which exercises a power no where de¬ legated to the Federal Government, and which, by uniting Legisla¬ tive and Judicial powers to those of Executive, subverts the general principles of a free government, as well as the particular organiza¬ tion and positive provisions of the Federal Constitution ; and the other of which acts exercises, in like manner, a power not delegated by the Constitution; but, on the contraiy, expressly and positively forbidden by one of the amendments thereto: a power which, more than any other, ought to produce universal alarm, because it is le¬ velled against that right of freely examining public characters and measures, and of free communication among the people thereon, tvhich has ever been justly deemed the only effectual guardian of every other right. The subject of this resolution having, it is presumed, more par¬ ticularly led the General Assembly into the proceedings which they communicated to the other States, and being in itself of pe¬ culiar importance, it deserves the most critical and faithful inves¬ tigation, for the length of which no other apology will be neces¬ sary. The subject divides itself into, first, “ The Alien Act; second¬ ly, “ The Sedition Act.” 28 [SfiNATK Of the Alien Act/^ it is affirmed by the resolution, 1st. That it exercises a power no where delegated to the Federal Govern¬ ment. 2d. That it unites Legislative and Judicial powers to those of the Executive. 3d. That this union of power subverts the ge¬ neral principles of free government. 4th. That it subverts the particular organization and positive provisions of the Federal Con¬ stitution. In order to clear the way for a correct view of the first position, several observations will be premised. In the first place; it is to be borne in mind, that it being a cha¬ racteristic feature of the Federal Constitution, as it was originally ratified, and an amendment thereto having precisely declared, “ That the powers not delegated to the United States by the Con¬ stitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people;” it is incumbent in this, as in every other exercise of power by the Federal Government, to prove from the Constitution, that it grants the particular power exercised. The next observation to be made, is, that much confusion and fallacy, have been thrown into the question, by blending the two cases of aliens, members of a hostile nation ; and aliens, members of friendly nations. These two cases are so obviously, and so essen¬ tially distinct, that it occasions no little surprise that the distinction should have been disregarded: and the surprise is so much the greater, as it appears that the two cases are actually distinguished by two separate acts of Congress, passed at the same session, and comprised in the same publication; the one providing for the case of “alien enemies;” the other “ concerning aliens” indiscriminate¬ ly; and consequently extending to aliens of every nation in peace and amity with the United States. With respect to alien enemies, no doubt has been intimated as to the Federal authority over them; the Constitution having expressly delegated to Congress the power to declare war against any nation, and of course to treat it and all its members as enemies. With respect to aliens, who are not ene¬ mies, but members of nations in peace and amity with the United States, the power assumed by the act of Congress, is denied to be Constitutional; and it is accordingly against this act, that the pro¬ test of the General Assembly is expressly and exclusively directed. 29 No. 41.] A third observation is, that were it admitted, is contended, that the “ act concerning Aliens,” has for its object, not a peMal, but a preventive justice; it would still remain to be proved that it comes within the Constitutional power of the Federal Legislature: and if within its power, that the Legislature has exercised it in a Constitutional manner. In the administration of preventive justice, the following princi¬ ples have been held sacred; that some probable ground of suspi¬ cion be exhibited before some Judicial authority; that it be sup¬ ported by oath or affirmation; that the party may avoid being thrown into confinement, by finding pledges or sureties for his le¬ gal conduct sufficient in the judgment of some Judicial authority; that he may have the benefit of a writ of habeas corpus, and thus obtain his release, if wrongfully confined; and that he may at any time be discharged from his recognizance, or his confinement, and restored to his former liberty and rights, on the order of the pro¬ per Judicial authority, if it shall see sufficient cause. All these principles of the only preventive justice known to Ame¬ rican jurisprudence, are violated by the Alien act. The ground of suspicion is to be judged of, not by any Judicial authority, but by the Executive Magistrate alone: no oath or affirmation is requir¬ ed; if the suspicion be held reasonable by the President, he may order the suspected Alien to depart the territory of the United States, without the opportunity of avoiding the sentence, by find¬ ing pledges for his future good conduct; as the President may limit the time of departure as he pleases, the benefit of the writ of habeas corpus, may be suspended with respect to the party, although the Constitution ordains, that it shall not be suspended, unless when the public safety may require it in case of rebellion or invasion, neither of which existed at the passage of the act; and the party being, under the sentence of the President, either removed from the United States, or being punished by imprisonment, or disquali¬ fication ever to become a citizen on conviction of not obeying the order of removal, he cannot be discharged from the proceedings against him, and restored to the benefits of his former situation, al¬ though the highest Judicial authority should see the most sufficient cause for it. But, in the last place, it can never be admitted, that the removal of Aliens, authorised by the act, is to be considered, not as punish- 30 [Senate merit for an offence; but as a measure of precaution and prevention. If the banishment of an alien from a country into which he has been invited, as the asylum most auspicious to his happiness; a country, where he may have formed the most tender connections, where he may have vested his entire property, and acquired property of the real and permanent, as well as the moveable and temporary kind; where he enjoys under the laws, a greater share of the blessings of personal security and personal liberty, than he can elsewhere hope for, and where he may have nearly completed his probationary title to citizenship; if, moreover, in the execution of the sentence against him, he is to be exposed, not only to the ordinary dangers of the sea, but to the peculiar casualties incident to a crisis of war, and of unusual licentiousness on that element, and possibly to vindictive purposes which his emigration itself may have provoked; if a ban¬ ishment of this sort be not a punishment, and among the severest of punishments, it will be difficult to imagine a doom to which the name can be applied. And if it be a punishment, it will remain to be inquired, whether it can be constitutionally inflicted, on mere suspicion, by the single will of the Executive Magistrate, on per¬ sons convicted of no personal offence against the laws of the land, nor involved in any offence against the law of nations, charged on the foreign state of which they are members. One argument offered in justification of this power exercised over Aliens, is, that the admission of them into the country being of fa¬ vor, not of right, the favor is at all times revocable. To this argument it might be answered, that allowing the truth of the inference, it would be no proof of what is required. A ques* tion would still occur, w^hether the Constitution had vested the dis¬ cretionary power of admitting Aliens, ia the Federal Government or in the State Governments. But it cannot be a true inference, that because the admission of an Alien is a favor, the favor may be revoked at pleasure. A grant of land to an individual, may be of favor, not of right; but the mo¬ ment the grant is made, the favor becomes a right, and must be forfeited before it can be taken away. To pardon a malefactor may be a favor, but the pardon is not, on that account, the less ir¬ revocable. To admit an Alien to naturalization, is as much a fa¬ vor, as to admit him to reside in the country; yet it cannot be pre- 81 No. 41.^] tended, that a person naturalized can be deprived of the benefit, any more than a native citizen can be disfranchised. Again, it is said, that Aliens not being parties to the Constitu¬ tion, the rights and privileges v^^hich it secures, cannot be at all claimed by them. To this reasoning also, it might be answered, that although Aliens are not parties to the Constitution, it does not follow that the Con¬ stitution has vested in Congress an absolute power over them. The parties to the Constitution may have granted, or retained, or mo¬ dified the power over Aliens, without regard to that particular consideration. But a more direct reply is, that it does not follow, because Aliens are not parties to the Constitution, as citizens are parties to it, that whilst they actually conform to it, they have no right to its protec¬ tion. Aliens are not more parties to the laws, than they are par¬ ties to the Constitution; yet, it will not be disputed, that as they owe on one hand, a temporary obedience, they are entitled in re¬ turn to their protection and advantage. If Aliens had no rights under the Constitution, they might not only be banished, but even capitally punished, without a jury or the Qther incidents to a fair trial. But so far has a contrary prin¬ ciple been carried, in every part of the United States, that except on charges of treason, an Alien has, besides all the common privi¬ leges, the special one of being tried by a jury, of which one-half may be also Aliens. It is said, further, that by the law and practice of nations. Aliens may be removed at discretion, for offences against the law of na¬ tions; that Congress are authorised to define and punish such of¬ fences; and that to be dangerous to the peace of society is, in Aliens, one of those offences. The distinction between Alien enemies and Alien friends, is a clear and conclusive answer to this argument. Alien enemies are under the law of nations, and liable to be punished for offences against it. Alien friends, except in the single case of public minis¬ ters, are under the municipal law, and must be tried and punished according to that law only. 82 [Senate This argument also, by referring the Alien act, to the power of Congress to define and punish offences against the law of nations, yields the point that the act is of a penal, not merely of a preven¬ tive operation. It must, in truth, be so considered. And if it be a penal act, the punishment it inflicts, must be justified by some of¬ fence that deserves it. Offences for which Aliens, within the jurisdiction of a country, are punishable, are first, offences committed by the nation of which they make a part, and in whose offences they are involved: Se¬ condly, offences committed by themselves alone, without any charge against the nation to which they belong. The first is the case of Alien enemies; the second, the case of Alien friends. In the first case, the offending nation can no otherwise be punished than by war, one of the laws which authorises the expulsion of such of its members, as may be found within the country, against which the offence has been committed. In the second case, the offence be¬ ing committed by the individual, not by his nation, and against the municipal law, not against the law of nations; the individual only, and not the nation, is punishable; and the punishment must be con¬ ducted according to the municipal law, not according to the law of nations. Under this view of the subject, the act of Congress, for the removal of Alien enemies, being conformable to the law of na¬ tions, is justified by the Constitution: and the “ act,’^ for the re¬ moval of Alien friends, being repugnant to the Constitutional prin¬ ciples of municipal law, is unjustifiable. Nor is the act of Congress, for the removal of Alien friends, more agreeable to the general practice of nations, than it is within the purview of the law of nations. The general practice of nations, distinguishes between Alien friends and alien enemies. The latter it has proceeded against, according to the law^ of nations, by ex¬ pelling them as enemies. The former it has considered as under a local and temporary allegiance, and entitled to a correspondent protection. If contrary instances are to be found in barbarous coun¬ tries, under undefined prerogatives, or amid revolutionary dangers; they will not be deemed fit precedents for the government of the United States, even, if not beyond its Constitutional authority. It is said, that Congress may grant letters of marque and repri¬ sal; that reprisals may be made on persons, as well as property; and that the removal of Aliens may be considered as the exercise in an inferior degree, of the general power of reprisal on persons. 33 No. 41.] Without entering minutely into a question that does not seem to require it, it may be remarked, that reprisal is a seizure of foreign persons or property, with a view to obtain that justice for injuries done by one State or its members, to another State or its mem^ bers; for which, a refusal of the aggressor requires such a resort to force under the law of nations. It must be considered as an abuse of words to call the removal of persons from a country, a seizure or reprisal on them; nor is the distinction to be overlooked between reprisals on persons within the country and under the faith of its laws, and on persons out of the country. But laying aside these considerations; it is evidently impossible to bring the Alien act within the power of granting reprisals; since it does not allege or imply any injury received from any particular nationj for which this proceeding against its members was intended as a reparation. The proceeding is authorized against Aliens of ever^ nation; of nations charged neither with any similar proceeding against American citizens, nor with any injuries for which justice might be sought, in the mode prescribed by the act. Were it true, therefore, that good causes existed for reprisals against one or more foreign nations, and that neither the persons nor property of its* members, under the faith of our laws, could plead an exemp¬ tion; the operation of the act ought to have been limited to the Aliens among us, belonging to such nations. To license reprisals against all nations, for aggressions charged on one only^ would be a measure as contrary to every principle of justice and public law, as to a wise policy and the universal practice of nations. It is said, that the right of removing Aliens is an incident to the power of war, vested in Congress by the Constitution. This is a former argument in a new shape only; and is answered by repeating, that the removal of Alien enemies is an incident to the power of war; that the removal of Alien friends is not an in¬ cident to the power of war. It is said, that Congress are by the Constitution to protect each Slate against invasion; and that the means of preventing invasion are included in the power of protection against it. The power of war in general, having been before granted by the Constitution; this clause must either be a mere specification for greater caution and certainty, of which there are other examples [Senate, No. 41.] 5 34 [Seinate in the instrument; or be tfic injunction of a duty superadded to a grant of the power, Under either explanation, it cannot enlarge the powers ot Congress on the subject. The power and the duty to protect each State against an invading enemy, would be the same under the general power, if this regard to greater caution had been omitted. Invasion is an operation of war. To protect gainst invasion is an exercise of the power of war. A power, therefore, not inci¬ dent to war, cannot be incident to a particular modification of war. And as the removal of Alien friends has appeared to be no incident to a general state of war, it cannot be incident to a partial state, or a particular modification of war. Nor can it ever be granted, that a power to act on a case when it actually occurs, includes a power over all the means that may tend to prevent the occurrence of the case. Such a latitude of construction would render unavailing every practicable definition of particular and limited powers. Under the idea of preventing war in general, as well as invasion in particular, not only an in¬ discriminate removal of all aliens might be enforced, but a,thou¬ sand other things still more remote from the operations and pre¬ cautions appurtenant to war, might take place. A bigotted or ty¬ rannical nation might threaten us with war, unless certain religious or political regulations were adopted by us; yet it never could be inferred, if the regulations which would prevent war, were such as Congress had otherwise no power to make, that the power to make them would grow out of the purpose they were, to answer. Congress have power to suppress insurrections, yet it would not be allowed to follow, that they might employ all the means tend¬ ing to prevent them; of which a system of moral instruction for the ignorant, and of provident support for the poor, might be re¬ garded as among the most efficacious. One argument for the power of the General Government to re¬ move aliens, would have been passed in silence, if it had appeared under any authority inferior to that of a report, made during the last session of Congress to the House of Representatives, by a committee, and approved by the House. The doctrine on which this argument is founded, is of so new and so extraordinary a cha¬ racter, and strikes so radically at the political system of America, that it is proper to state it in the very words of the report. No, 41.] 35 The act [concerning aliens.) is said to be unconstitutional, be- ** cause to remove aliens is a direct breach of the Constitution, which provides, by the 9th section of the 1st article, that the migration ** or importation of such persons as any of the States shall think ‘^proper to admit, shall not be prohibited by the Congress, prior to ** the year 1808. Among the answers given to this objection to the constitution^ ality of the act, the following very remarkable onfe is extracted. “ Thirdly, That as the Constitution has given to the States^ no “power to remove aliens, during the period of the limitation under “consideration, in the mean time, on the construction assumed, “there would be no authority in the country empowered to send “away dangerous aliens, which cannot be admitted.” The reasoning here used would not, in any view, be conclusive; because there are powers exercised by most other governments, which in the United States are withheld by the people, both from the General Government and from the State Governments. Of this sort are many of the powers prohibited by the declarations of right prefixed to the Constitutions, or by the clauses in the Consti¬ tutions, in the nature of such declarations. Nay, so far is the po¬ litical system of the United States distinguishable from that of other countries, by the caution with which powers are delegated and defined; that in one very important case, even of commercial regulation and revenue, the power is absolutely locked up against the hands of both Governments. A tax on exports can be laid by no constitutional authority whatever. Under a system thus pecu¬ liarly guarded, there could surely be no absurdity in supposing, that alien friends, who if guilty of treasonable machinations may be punished, or if suspected on probable grounds, may be secured by pledges or imprisonment, in like manner with permanent citi¬ zens, were never meant to be subjected to banishment by any ar¬ bitrary and unusual process, either under the one Government or the other. But it is not the inconclusiveness of the general reasoning in this passage, which chiefly calls the attention to it. It is the principle assumed by it, that the powers held by the States, are given to them by the Constitution of the United States; and the inference from this principle, that the powers supposed to be ne- 3f> [Senate cessary which are not so given to the State Governments, must re¬ side in the Government of the United States. The respect which is felt for every portion of the constituted authorities, forbids some of the reflections which this singular pa¬ ragraph might excite, and they are the more readily suppressed, as it may presumed, with justice perhaps, as well as candor, that inadvertence may have had its share in the error. It would be an unjustifiable delicacy, nevertheless, to pass by so portentous a claim, proceeding from so high an authority, without a monitory notice of the fatal tendencies with which it would be pregnant. Lastly, it is said, that a law on the same subject with the Alien act, passed by this State originally in 1785, and re-enacted in 1792, is a proof that a summary removal of suspected aliens, was not heretofore regarded by the Virginia Legislature, as liable to the objections now urged against such a measure. This charge against Virginia vanishes before the simple remark, that the law of Virginia relates to “ suspicious persons being the “subjects of any foreign power or state, who shall have made a “ declaration of war, or actually commenced hostilities, or from “whom the President shall apprehend hostile designsf whereas the act of Congress relates to Aliens, being the subjects of foreign powers and states, who have neither declared war, nor commenced hostilities, nor from whom hostile designs are apj^rehended, II. It is next affirmed of the Alien act, that it unites Legislative, Judicial, and Executive powers in the hands of the President. However difficult it may be to mark, in every case, with clear¬ ness and certainty, the line which divides legislative power, from the other departments of power; all will agree, that the powers referred to these departments may be so general and undefined, as to be of a Legislative, not of an Executive or Judicial nature; and may for that reason be unconstitutional. Details, to a certain de¬ gree, are essential to the nature and character of a law; and on criminal subjects, it is proper that details should leave as little as possible to the discretion of those who are to apply and to execute the law. If nothing more were required, in exercising a Legisla¬ tive trust, than a general conveyance of authority, without laying down any precise rules, by which the authority conveyed should be carried into effect; it would follow that the whole power of le- 37 No. 41.] gislation might be transferred by the Legislature from itself, and proclamations might become substitutes for laws. A delegation of power in this latitude, would not be denied to be a union of the different powers. To determine, then, whether the appropriate powers of the dis¬ tinct departments are united by the act authorizing the Executive to remove Aliens, it must be inquired whether it contains such de¬ tails, definitions and rules, as appertain to the true character of a law; especially a law by which personal liberty is invaded, pro¬ perty deprived of its value to the owner, and life itself indirectly exposed to danger. The Alien Act declares “ that it shall be lawful for the Presi¬ dent to order all such aliens as he shall judge dangerous to the peace and safety of the United States, or shall have reasonable ground to suspect^ are concerned in any treasonable or secret ma¬ chinations, against the government thereof, to depart,” &c. Could a power be well given in terms less definite, less particu¬ lar, and less precise 1 To be dangerous to the public safety ; to be suspected of secret machinations against the government: these can never be mistaken for legal rules or certain definitions. They leave every thing to the President. His will is the law. But, it is not a legislative power only that is given to the Presi¬ dent. He is to stand in the place of the Judiciary also. His suspi¬ cion is the only evidence which is to convict: his order, the only judgment which is to be executed. Thus, it is, the President whose will is to designate the offensive conduct; it is his will that is to ascertain the individuals on whom it is charged; and it is his will, that is to cause the sentence to be executed. It is rightly affirmed, therefore, that the act unites Le¬ gislative and Judicial powers to those of the Executive. III. It is affirmed, that this union of power subverts the general principles of free government. It has become an axiom in the science of government, that a se¬ paration of the Legislative, Executive, and Judicial departments, is necessary to the preservation of public liberty. No where has this 38 [Senate axiom been better understood in theory, or more carefully pursued in practice, than in the United States. IV. It is affirmed that such a union of powers subverts the par¬ ticular organization and positive provisions of the Federal Consti¬ tution. According to the particular organization of the Constitution, its Legislative powers are vested in the Congress, its Executive pow¬ ers in the President, and its Judicial powers in a supreme and infe¬ rior tribunals. The union of any two of these powers, and still more of all three, in any one of these departments, as has been shewn to be done by the Alien Act, must consequently subvert the constitutional organization of them. That positive provisions, in the Constitution, securing to indivi¬ duals the benefits of fair trial, are also violated by the union of powers in the Alien Act, necessarily results from the two facts, that the act relates to alien friends, and that Alien friends being under the municipal law only, are entitled to its protection. The second object against which the resolution protests, is the Sedition Act. Of this act it is affirmed, 1. That it exercises in like manner a power not delegated by the Constitution. 2. That the power, on the contrary, is expressly and positively forbidden by one of the amendments to the Constitution. 3. That this is a power, which more than any other ought to produce universal alarm; because it is levelled against that right of freely examining public characters and measures, and of free communication thereon, which has ever been justly deemed the only effectual guardian of every other right. 1. That it exercises a power not delegated by the Constitution. Here again, it will be proper to recollect, that the Federal Go¬ vernment being composed of powers specifically granted with a re¬ servation of all others to the States or to the people, the . positive authority under which the Sedition Act could be passed must be produced by those who assert its constitutionality. In what part of the Constitution, then, is this authority to be found 1 No. 41.] 30 Several attempts have been made to ans-wer this question, which will be examined in their order. The committee will begin with one, which has filled them with equal astonishment and apprehen¬ sion; and which, they cannot but persuade themselves, must have the same effect on all, who will consider it with coolness and im¬ partiality, and with a reverence for our Constitution, in the true character in which it issued from the sovereign authority of the people. The committee refer to the doctrine lately advanced as a sanction to the Sedition Act; “that the common or unwritten law,” a law of vast extent and complexity, and embracing almost every possible subject of legislation, both civil and criminal, makes a part of the law of these States, in their united and national ca¬ pacity. The novelty, and in the judgment of the committee, the extra¬ vagance of this pretension, would have consigned it to the silence^ in which they have passed by other arguments, which an extraor¬ dinary zeal for the act has drawn into the discussion: But the auspi¬ ces under which this innovation presents itself, have constrained the committee to bestow on it an attention, which other considera¬ tions might have forbidden. In executing the task, it may be of use to look back to the colo¬ nial state of this country, prior to the revolution; to trace the ef¬ fect of the revolution which converted the colonies into indepen¬ dent States; to inquire into the import of the articles of confedera¬ tion, the first instrument by which the union of the States was re¬ gularly established; and finally, to consult the Constitution of 1788^ which is the oracle that must decide the important question. In the state prior to the revolution, it is certain that the com¬ mon law under different limitations, made a part of the colonial codes. But whether* it be understood that the original colonists brought the law with them, or made it their law by adoption; it is equally certain, that it was the separate law of each colony with¬ in its respective limits, and was unknown to them, as a law perva¬ ding and operating through the whole as one society. It could not possibly be otherwise. The common law was not the same in any two of the colonies; in some, the modifications were materially and extensively different. There was no com¬ mon Legislature, by which a common will could be expressed in 40 [Sbnatj; the form of a law; nor any common magistracy, by which such a law could be carried into practice. The will of each colony, alone and^separately, had its organs for these purposes. This stage of our political history, furnishes no foothold for the patrons of this new doctrine. Did then the principle or operation of the great event which made the colonies independent States, imply or introduce the com¬ mon law, as a law of the Union'? The fundamental principle of the revolution was, that the colo¬ nies were co-ordinate members with each other, and with Great Britain; of an empire, united by a common Executive sovereign, but not united by any common Legislative sovereign The Legisla¬ tive power was maintained to be as complete in each American Parliament, as in the British Parliament. And the royal preroga¬ tive was in force in each colony, by virtue of ics acknowledging the King for its Executive magistrate, as it was in Great Britain, by virtue of a like acknowledgment there. A denial of these prin¬ ciples by Great Britain, and the assertion of them by America, produced the revolution. There was a time indeed, when an exception to the I^egislative separation of the several component and co-equal parts of the em¬ pire, obtained a degree of acquiescence. The British Parliament was allowed to regulate the trade with foreign nations, and be¬ tween the different parts of the empire. This was, however, mere practice without right, and contrary to the true theory of the Con¬ stitution. The conveniency of some regulations, in both those ca¬ ses, was apparent; and as there was no Legislature with power over the whole, nor any constitutional pre-eminence among the Legislatures of the several parts, it was natural for the Legislature of that particular part which was the eldest and the largest, to as¬ sume this function, and for the others to acquiesce in it. This ta¬ cit arrangement was the less criticised, as the regulations esta¬ blished by the British Parliament operated in favor of that part of the empire which seemed to bear the principal share of the public burdens, and were regarded as an indemnification of its advances for the other parts. As long as this regulating power was confined to the two objects of conveniency and equity, it was not complained of, nor much inquired into. But, no sooner was it perverted to the 41 N o. 41.] selfish views of the party assuming it, than the injured parties be*^ gan to feel and to reflect; and the moment the claim to a direct and indefinite power was ingrafted on the precedent of the regula¬ ting power, the whole charm was dissolved, and every eye opened to the usurpation. The assertion by G. B. of a power to make laws for the other members of the empire in all cases whatsoever, ended in the discovery, that she had a right to make laws for them in no cases whatsoever. Such being the ground of our revolution, no support nor color can be drawn from it, for the doctrine that the common law is binding on these States as one society. The doctrine, on the contrary, is evidently repugnant to the fundamental principle of the revolution. The articles of confederation are the next source of information on this subject. In the interval between the commencement of the revolution and the final ratification of these articles, the nature and extent of the Union was determined by the circumstances of the crisis, rather than by any accurate delineation of the general authority. It will not be alleged, that the common law” could have had any legiti¬ mate birth as a law of the United States during that state of things. If it came as such into existence at all, the charter of confederation must have been its parent. Here again, however, its pretensions are absolutely destitute of foundation. This instrument does not contain a sentence or syl¬ lable that can be tortured into a countenance of the idea, that the parties to it were, with respect to the objects of the common law, to form one community. No such law is named or implied, or al¬ luded to, as being in force, or as brought into force by that com¬ pact. No provision is made by which such a law could be carried into operation; whilst, on the other hand, every such inference or pretext is absolutely precluded by article 2d, which declares “ that each State retains its sovereignty, freedom and independence, and every power, jurisdiction and right, which is not by this confede¬ ration expressly delegated to the United States, in Congress as¬ sembled.” Thus far it appears, that not a vestige of this extraordinary doc¬ trine can be found in the origin or progress of American institu- [Senate, No. 41.] 6 42 [Senate lions. The evidence against it has, on the contrary, grown strong¬ er at every step, till it has amounted to a formal and positive ex¬ clusion, by written articles of compact among the parties con¬ cerned. Is this exclusion revoked, and the common law introduced as a national law, by the present Constitution of the United States T This is the final question to be examined. It is readily admitted, that particular parts of the common law may have a sanction from the Constitution, so far as they are ne¬ cessarily comprehended in the technichal phrases which express the powers delegated to the government; and so far also, as such other parts may be adopted by Congress as necessary and proper for carrying into execution the powers expressly delegated. But, the question does not relate to either of these portions of the com¬ mon law. It relates to the common law beyond these limitations. The only part of the Constitution which seems to have been re¬ lied on m this case, is the 2d sect, of art. III. “ The Judicial pow¬ er shall extend to all cases, in law and equity^ arising under this Constitution, the laws of the United States, and Treaties made, or which shall be made under their authority.”' It has been asked what cases, distinct from those arising under the laws and treaties of the United States, can arise under the Con¬ stitution, other than those arising under the common law; and it is inferred, that the common law is accordingly adopted or recog¬ nized by the Constitution. Never, perhaps, was so broad a construction applied to a text so clearly unsusceptible of it. If any color for the inference could be found, it must be in the impossibility of finding any other cases in law and equity, within the provision of the Constitution, to satisfy the expression; and rather than resort to a construction affecting so essentially the whole character of the government, it would perhaps be more rational to consider the expression as a mere ple¬ onasm or inadvertence. But, it is not necessary to decide on such a dilemma. The expression is fully satisfied, and its accuracy jus¬ tified, by two descriptions of cases, to which the Judicial authority is extended, and neither of which implies that the common law is the law of the United States. One of these descriptions compre- 43 No. 41.] hends the cases growing out of the restrictions on the Legislative power of the States. For example, it is provided that “ no State shall emit bills of credit,"” or make any thing but gold and silver coin a tender in payment of debts.” Should this prohibition be violated, and a suit between citizens of the same State be the conse¬ quence, this would be a case arising under the Constitution before the Judicial power of the United States. A second description comprehends suits between citizens and foreigners, or citizens of different States, to be decided according to the State or foreign laws; but submitted by the Constitution to the Judicial power of the United States; the Judicial power being, in several instances, extended beyond the Legislative power of the United States. To this explanation of the text, the following observations may be added: The expression, cases in law and equity,” is manifestly confi¬ ned to cases of a civil nature; and would exclude cases of crimi¬ nal jurisdiction. Criminal cases in law and equity would be a lan¬ guage unknown to the law^ The succeeding paragraph of the same section is in harmony with this construction. It is in these words: “In all cases affect¬ ing Ambassadors, other public Ministers, and Consuls, and those in which a State shall be a party, the Supreme Court shall have ori¬ ginal jurisdiction. In all the other cases [including cases in law and equity arising under the Constitution] the Supreme Court shall have appellate jurisdiction both as to law and/ac^; with such ex¬ ceptions, and under such regulations, as Congress shall make.” This paragraph, by expressly giving an appellate jurisdiction, in eases of law and equity arising under the Constitution, to face, as well as to law, clearly excludes criminal cases, where the trial by jury is secured; because the fact, in such cases, is noi a subject of appeal. And, although the appeal is liable to such exceptions and regulations as Congress may adopt, yet it is not to be supposed that an exception of all criminal cases could be contemplated; as well because a discretion in Congress to make or omit the excep¬ tion would be improper, as because it would have been unnecessary. The exception could as easily have been made by the Constitution itself, as referred to the Congress. 44 [Senate Once more; the amendment last added to the Constitution, de¬ serves attention, as throwing light on this subject. The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States, by citizens of another State, or by citizens or sub¬ jects of any foreign power.’^ As it will not be pretended that any criminal proceeding could take place against a State; the terms law or equity, must be understood as appropriate to civil, in exclu¬ sion of criminal cases. From these considerations, it is evident, that this part of the Constitution, even if it could be applied at all, to the purpose for which it has been cited, would not include any cases whatever of a criminal nature; and consequently, would not authorise the in¬ ference from it, that the Judicial authority extends to offences against the common law, as offences arising under the Constitution. It is further to be considered, that even if this part of the Con¬ stitution could be strained into an application to every common law case, criminal as well as civil, it could have no effect in justifying the Sedition Act: which is an exercise of Legislative, and not of Judicial power: and it is the Judicial power only, of which the ex¬ tent is defined in this part of the Constitution. There are two passages in the Constitution, in which a descrip¬ tion of the law of the United States, is found. The first is con¬ tained in art. iii. sec. 2, in the words following: ‘‘This Constitu¬ tion, the laws of the United States, and treaties made, or which shall be made under their authority.” The second is contained in the 2d paragraph of art. vi. as follows: “This Constitution and the laws of the United States, which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land.” The first of these descriptions was meant as a guide to the Judges of the United States; the second as a guide to the Judges in the several States. Both of them consist of an enumeration, which was evidently meant to be precise and complete. If the common law had been understood to be a law of the United States, it is not possible to assign a satisfactory reason why it was not ex¬ pressed in the enumeration. In aid of these objections, the difficulties and confusion insepa¬ rable fiom a constructive introduction of the common law, would afford powerful reasons against it. 45 No. 41.] Is it to be" the common law with, or without the British statutes'? If without the statutory amendments, the vices of thb code would be insupportable ! If with these amendments, what period is to be fixed for limit¬ ing the British authority over our laws'? Is it to be the date of the eldest or the youngest of the Colo¬ nies '? Or are the dates to be thrown together, and a medium deduced! Or is our independence to be taken for the date ! Is, again, regard to be had to the various changes in the com¬ mon law made by the local codes of America ? Is regard to be had to such changes, subsequent, as well as pri¬ or, to the establishment of the Constitution! Is regard to be had to future, as well as past changes T Is the law to be different in every State, as differently modified by its code; or are the modifications of any particular State, to be applied to alH And on the latter supposition, which among the State codes would form’the standard 1 Questions of this sort might be multiplied with as much ease, as there would be difficulty in answering them. The consequences flowing from the proposed construction, fur- nish other objections equally conclusive; unless the text were pe¬ remptory in its meaning, and consistent with other parts of the in¬ strument. These consequences may be in relation to the Legislative author rity of the United States; to the Executive authority; to the JudL cial authority; and to the Governments of the several States. If it be understood, that the common law is established by the Constitution, it follows that no part of the law can be altered by the Legislature; such of the statutes, already passed, as may be repugnant thereto, would be nullified; particularly the “Sedition Act” itself, which boasts of being a melioration of the common law; and the whole code, with all its incongruities, barbarisms, and bloody maxims, would be inviolably saddled on the good peo¬ ple of the United States. 46 [Senate Should this consequence be rejected, and the common law be held, like other laws, liable to revision and alteration, by the au¬ thority of Congress; it then follows, that the authority of Congress is co-extensive with the objects of common law; that is to say, with every object of Legislation: For, to every such object, does some branch or other of the common law extend. The authority of Congress would, therefore, be no longer under the limitations, marked out in the Constitution. They would be authorised to le¬ gislate in all cases whatsoever. In the next place, as the President possesses the executive pow¬ ers of the Constitution, and is to see that the laws be faithfully executed, his authority also must be co-extensive with every branch of the common law. The additions which this would make to his power, though not readily to be estimated, claim the most serious attention. This is not all; it will merit the most profound consideration, how far an indefinite admission of the common law, with a latitude in construing it, equal to the construction by which it is deduced from the Constitution, might draw after it the various prerogatives making part of the unwritten law of England. The English Con¬ stitution itself is nothing more than a composition of unwritten laws and maxims. In the third place, whether the common law be admitted as of legal or of Constitutional obligation, it would confer on the Judicial department a discretion little short of a Legislative power. On the supposition of its having a constitutional obligation, this power in the Judges would be permanent and irremediable by the Legislature. On the other supposition, the power would not ex¬ pire until the Legislature should have introduced a full system of statutory provisions. Let it be observed, too, that besides all the uncertainties above enumerated, and which present an immense field for judicial discretion, it would remain with the same depart¬ ment to decide what parts of the common law would, and what would not, be properly applicable to the circumstances of the UnL ted States. A discretion of this sort has always been lamented as incongru¬ ous and dangerous, even in the Colonial and State courts; although so much narrowed by positive provisions in the local codes on all No. 41.] 47 the principal subjects embraced by the common law. Under the United States, where so few laws exist on those subjects, and where so great a lapse of time must happen before the vast chasm could be supplied, it is manifest that the power of the Judges over the law, would, in fact, erect them into Legislators; and, that for a long time, it would be impossible for the citizens to conjec¬ ture, either what was, or would be law. In the last place, the consequence of admitting the common law as the law of the United States, on the authority of the individual States, is as obvious as it would be fatal. As this law relates to every subject of Legislation, and would be paramount to the Con¬ stitutions and laws of the States; the admission of it would over¬ whelm the residuary sovereignty of the States, and by one con¬ structive operation, new-model the whole political fabric of the country. From the review thus taken of the situation of the American co¬ lonies prior to their Independence; of the effect of this event on their situation; of the the nature and import of the articles of con¬ federation; of the true meaning of the passage in the existing Con¬ stitution from which the common law has been deduced; of the difficulties and uncertainties incident to the doctrince; and of its vast consequences in extending the powers of the Federal Govern- ment, and in superseding the authorities of the State Governments; the committee feel the utmost confidence in concluding, that the common law never was, nor by any fair construction, ever can be, deemed a law for the American people as one community; and they indulge the strongest expectation that the same conclusion will finally be drawn, by all candid and accurate inquirers into the subject. It is indeed distressing to reflect, that it ever should have been made a question, whether the Constitution, on the whole face of which is seen so much labor to enumerate and define the seve¬ ral objects of Federal power, could intend to introduce in the lump, in an indirect manner, and by a forced construction of a few phra¬ ses, the vast and multifarious jurisdiction involved in the common law; a law filling so many ample volumes; a law overspreading the entire field of Legislation; and a law that would sap the foun- dation of the Const! tuion as a system of limited and specified powers. A severer reproach could not, in the opinion of the committee, be thrown on the Constitution, on those who framed, or on those who established it, than such a supposition would throw on them. 48 [Senate The argument, then^ drawn from the common law, on the ground of its being adopted or recognised by the Constitution, being inap¬ plicable to the Sedition Act, the committee will proceed to exa¬ mine the other arguments which have been founded on the Consti¬ tution. They will waste but little time on the attempt to cover the act by the preamble to the Constitution; it being contrary to every ac¬ knowledged rule of construction, to set up this part of an instru¬ ment, in opposition to the plain meaning, expressed in the body of the instrument. A preamble usually contains the general motives or reasons, for the particular regulations or measures which follow it; and is always understood to be explained and limited by them. In the present instance, a contrary interpretation would have the inadmissible effect, of rendering nugatory or improper, every part of the Constitution which succeeds the preamble. The paragraph in Art. 1, Sec. 8, which contains the power to lay and collect taxes, duties, imposts and excises; to pay the debts, and provide for the common defence and general welfare, having been already examined, will also require no particular attention in this place. It will have been seen that in its fair and consistent meaning, it cannot enlarge the enumerated powers vested in Con¬ gress. The part of the Constitution which seems most to be recurred to, in defence of the “ Sedition Act,” is the last clause of the above section, empowering Congress ‘‘ to make all laws which shall be. necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Go¬ vernment of the United States, or in any department or officer thereof.” The plain import of this clause is, that Congress shall have all the incidental or instrumental powers necessary and proper for car¬ rying into execution all the express powers; whether they be vest¬ ed in the Government of the United States, more collectively, or in the several departments, or officers thereof. It is not a grant of new powers to Congress, but merely a declaration for the removal of all uncertainty, that the means of carrying into execution, those otherwise granted, are included in the grant. Whenever, therefore, a question arises concerning the cottsfiti> tionality of a particular poAver, the first question is, whether the power be expressed in the Constitution. If it be, the question is decided. If it be not expressed, the next inquiry must be, whether it is properly an incident to an express power, and necessary to its execution. If it be, it may exercised by Congress. If it be not, Congress cannot exercise it. Let the question be asked, then, whether the power over the press exercised in the Sedition Act,” be found among the pow¬ ers expressly vested in the Congress'? This is not pretended. Is there any express power, for executing which it is a necessa* ry and proper power '? The power which has been selected, as least remote, in answer ^ " to this question, is that of “ suppressing insurrections;” which is said to imply a power to prevent insurrections, by punishing what* ^ ever may lend or tend to them. But, it surely cannot, with the ^ least plausibility, be said, that a regulation of the press, and a pun* ishment of libels, are exercises of a power to suppress insurrections. The most that could be said, would be, that the punishment of li* bels, if it had the tendency ascribed to it, might prevent the occa* sion of passing or executing laws necessary and proper for the sup* pression of insurrections. Has the Federal Government no power, then, to prevent as well as to punish resistance of the laws '? They have the power, which the Constitution deemed most pro* per, in their hands for the purpose. The Congress has power, be* fore it happens, to pass laws for punishing it; and the Executive and Judiciary have power to enforce those laws when it does hap* pen. It must be recollected by many, and could be shown to the satis* faction of all, that the construction here put on the terms ‘-neces* sary and proper,” is precisely the construction which prevailed du¬ ring the discussions and ratifications of the Constitution. It may be added, and cannot too often be repeated, that it is a construc¬ tion absolutely necessary to maintain their consistency with the peculiar character of the government, as possessed of particular and defined powers, only; not of the general and indefinite powers [Senate, No. 41.] 7 5a [Senatf: vested in ordinary governments. For, if the power to suppress insurrections includes a power io punish libels ; or if by the power to punish^ includes a power io prevent, by all the means that may have that tendency; such is the relation and influence among the most remote subjects of legislations, that a power over a very few, would carry with it a power over all. And it must be wholly immateri¬ al, whether unlimited powers be exercised under the name of un¬ limited powers, or be exercised under the name of unlimited means of carrying into execution, limited powers. This branch of the subject will be closed with a reflection which must have weight with all; but more especially with those who place peculiar reliance on the judicial exposition of the Constitution, as the bulwark provided against undue extensions of the legislative power. ,If it be understood that the powers implied in the specified ^powers, have an immediate and appropriate relation to them, as means, necessary and proper for carrying them into execution, questions on the constitutionality of laws passed for this purpose, will be of a nature sufficiently precise and determinate for judicial cognizance and control 1 If, on the other hand, Congress are not li¬ mited in the choice of means by any such appropriate relation of them to be specified powers; but may employ all such means as they may deem fitted io prevent, as well as io punish, crimes subject¬ ed to their authority: such as may have a tendency only to promote an object for which they are authorised to provide; every one must perceive, that questions relating to means of this sort, must be questions of mere policy and expediency; on which, legislative dis¬ cretion alone can decide, and from which the judicial interposition and control are completely excluded. 2. The next point which the resolution requires to be proved, is, that the power over the press exercised by the Sedition Act, is positively forbidden by one of the amendments to the Constitution. The amendment stands in these words—“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; or the right of the people peaceably to assemble, and to pe¬ tition the government for a redress of grievances.” In the attempts to vindicate the “ Sedition Act,” it has been contended, 1. That the “freedom of the press” is to be determined by the meaning of these terms in the common law. 2. That the 51 No. 41.] article supposes the power over the press to be in Congress, and prohibits them only from abridging the freedom allow^ed to it by the common law. * Although it will be shewn, in examining the second of these po¬ sitions, that the amendment is a denial to Congress of all power over the press, it may not be useless to make the following obser¬ vations on the first of them. It is deemed to be a sound opinion, that the Sedition Act, in its definition of some of the crimes created, is an abridgment of the freedom of publication, recognized by principles of the common law in England. The freedom of the press under the common law, is, in the de¬ fences of the Sedition Act, made to consist in an exemption from all previous restraint on printed publications, by persons author¬ ized to inspect and prohibit them. It appears to the committee, that this idea of the freedom of the press, can never be admitted to be the American idea of it; since a law inflicting penalties on printed publications would have a similar effect with a law author¬ izing a previous restraint on them. It would seem a mockery to say, that no law should be passed, preventing publications from being made, but that laws might be passed for punishing them in case they should be made. The essential difference between the British Government and and the American Constitutions, will place this subject in the clear¬ est light. In the British Government, the danger of encroachments on the rights of the people, is understood to be confined to the Executive Magistrate. The representatives of the people in the Legislature, are not only exempt themselves from distrust, but are considered as sufficient guardians of the rights of their constituents against the danger from the Executive. Hence it is a principle, that the Parliament is unlimited in its power; or, in their own language, is omnipotent. Hence too, all the ramparts for protecting the rights of the people, such as their Magna Charta, their Bill of Rights, &c. are not reared against the Parliament, but against the royal prerogative. They are mere Legislative precautions against Exe¬ cutive usurpations. Under such a Government as this, an exemp¬ tion of the press from previous restraint by licensers appointed by the King, is all the freedom that can be secured to it. 52 [Senatjk In the United States, the case is altogether different. The People, not the Government, possess the absolute sovereignty- The Legislature, no less than the Executive, is under limitations of po^ver. Encroachments are regarded as possible from the one^ as well as from the other. Hence in the United States, the great and essential rights of the People are secured against Legislative^ as well as against Executive ambition. They are secured, not by laws paramount to prerogative; but by Constitutions paramount to laws. This security of the freedom of the press requires, that it should be exempt^ not only from previous restraint by the Execu¬ tive, as in Great Britain; but from Legislative restraint also; and this exemption, to be effectual, must be an exemption, not only from the previous inspection of licensers, but from the subsequent penalty of laws. The state of the press, therefore, under the common law, cannot in this point of view, be the standard of its freedom in the United States. But there is another view, under which it may be necessary to consider this subject. It may be alleged, that although the securi- rity for the freedom of the press be different in Great Britain and in this country; being a legal security only in the former, and a constitutional security in the latter; and although there may be a further difference, in an extension of the freedom of the press, here, beyond an exemption from previous restraint, to -an exemption from subsequent penalties also; yet that the actual legal freedom of the press, under the common law, must determine the degree of freedom, which is meant by the terms, and which is constitutional¬ ly secured against both previous and subsequent restraints. The committee are not unaware of the difficulty of all general questions, which may turn on the proper boundary between the liberty and licentiousness of the press. They will leave it there¬ fore for consideration only, how far the difference between the na¬ ture of the British Government, and the nature of the American Goyernments, and the practice under the latter, may shew the de¬ gree of rigor in the former, to be inapplicable to, and not obliga¬ tory in the latter. The nature of Governments elective, limited and responsible, in all their branches, may well be supposed to require a greater freedom of animadversion, than might be tolerated by the genius 53 No. 41.] of such a Government as that of Great Britain. In the latter it in a maxim, that the King, an hereditary, not a responsible magis¬ trate, can do no wrong; and that the Legislature, which in two- thirds of its composition, is also hereditary, not responsible, can do what it pleases. In the United States, the Executive magistrates are not held to be infallible, nor the Legislatures to be omnipo¬ tent; and both being elective, are both responsible. Is it not natu¬ ral and necessary, under such different circumstances, that a diffe¬ rent degree of freedom, in the use of the press, should be contem¬ plated I Is not such an inference favored by what is observable in Great Britain itself I Notwithstanding the general doctrine of the common law, on the subject of the press, and the occasional punishment of those who use it with a freedom offensive to the Government; it is well known, that with respect to the responsible members of the Government, where the reasons operating here, become applicable there, the freedom exercised by the press, and protected by the public opinion, far exceeds the limits prescribed by the ordinary rules of law. The ministry, who are responsible to impeachment, are at all times animadverted on by the press, with peculiar free¬ dom; and during the elections for the House of Commons, the other responsible part of the Government, the press is employed with as little reserve towards the candidates. The practice in America must be entitled to much more respect. In every State, probably, in the Union, the press has exerted a freedom in canvassing the merits and measures of public men, of every description, which has not been confined to the strict limits of the common law. On this footing, the freedom of the press has stood; on this footing it yet stands. And it will not be a breach, either of truth or of candor, to say, that no persons or presses are in the habit of more unrestrained animadversion^ on the proceedings and functionaries of the State Governments, than the persons and presses most zealous in vindicating the act of Congress for pun¬ ishing similar animadversions on the Government of the United States. The last remark will not be understood as claiming for the State Governments an immunity greater than they have heretofore en¬ joyed. Some degree of abuse is inseparable from the proper use of every thing; and in no instance is this more true, than in that 54 [Sknate of the press. It has accordingly been decided by the practice of the States, that it is better to leave a few of its noxious branches to their luxuriant growth, than by pruning them away, to injure the vigor of those yielding the proper fruits. And can the wisdom of this policy be doubted by any who reflect, that to the press alone, chequered as it is with abuses, the world is indebted for all the triumphs which have been gained by reason and humanity, over error and oppression; who reflect, that to the same beneficent source the United States owe much of the lights which conducted them to the rank of a free and independent nation; and which have improved their political system into a shape so auspicious to their happiness. Had ‘‘ Sedition Acts,” forbidding every publication that might bring the constituted agents into contempt or disrepute, or that might excite the hatred of the people against the authors of unjust or pernicious measures, been uniformly enforced against the press; might not the United States have been languishing at this day, under the infirmities of a sickly confederation? Might they not possibly be miserable colonies, groaning under a foreign yoke ? To these observations one fact will be added, which demon¬ strates that the common law cannot be admitted as the universal expositor of American terms, which may be the same with those contained in that law. The freedom of conscience and of religion, are found in the same instruments which assert the freedom of the press. It will never be admitted that the meaning of the former in the common law of England, is to limit their meaning in the United States. Whatever weight may be allowed to these considerations, the committee do not, however, by any means intend to rest the ques¬ tion on them. They contend that the article of amendment, in¬ stead of supposing Jn Congress a power that might be exercised over the press, provided its freedom was not abridged, was meant as a positive denial to Congress, of any power whatever on the subject. To demonstrate that this was not the true object of the article, it will be sufficient to recal the circumstances which led to it, and to refer to the explanation accompanying the article. When the Constitution was under the discussions which preced¬ ed its ratification, it is well known that great apprehensions were No. 41.] 55 expressed by many, lest the omission of some positive exception from the powers delegated of certain rights, and of the freedom of the press particularly, might expose them to the danger of being drawn by construction within some of the powers vested in Con¬ gress; more especially of the power to make all laws necessary and proper for carrying their other powers into execution. In re¬ ply to this objection, it was invariably urged to be a fundamental and characteristic principle of the Constitution, that all powers not given by it, were reserved; that no powers were given beyond those enumerated in the Constitution, and such as were fairly in¬ cident to them; that the power over the rights in question, and particularly over the press, was neither among the enumerated powers, nor incident to any of them; and consequently that an exercise of any such power would be a manifest usurpation. It is painful to remark how much the arguments now employed in be¬ half of the Sedition Act, are at variance with the reasoning which then justified the Constitution, and invited its ratification. From this posture of the subject, resulted the interesting ques¬ tion in so many of the Conventions, whether the doubts and dan¬ gers ascribed to the Constitution, should be removed by any amendments previous to the ratification, or be postponed, in confi¬ dence that as far as they might be proper, they would be introdu¬ ced in the form provided by the Constitution. The latter course was adopted; and in njost of the States, the ratifications were fol¬ lowed by propositions and instructions for rendering the Constitu¬ tion more explicit, and more safe to the rights, not meant to be de¬ legated by it. Among those rights, the freedom of the press, in most instances, is particularly and emphatically mentioned. The firm and very pointed manner, in which it is asserted in the pro¬ ceedings of the Convention of this State, will be hereafter seen. In pursuance of the wishes thus expressed, the first Congress that assembled under the Constitution, proposed certain amend¬ ments, which have since, by the necessary ratifications, been made a part of it; among which amendments, is the article containing^ among other prohibitions on the Congress, an express declaration that they should make no law abridging the freedom of the press. Without tracing farther the evidence on this subject, it would seem scarcely possible to doubt, that no power whatever over the press, was supposed to be delegated by the Constitution, as it ori¬ ginally stood; and that the amendment was intended as a positive and absolute reservation of it. 56 [Sej^ate But the evidence is still stronger. The proposition of amend ments made by Congress, is introduced in the following terms. The Conventions of a number of the States having at the time of their adopting the Constitution^ expressed a desire, in order to pre¬ vent misconstructions or abuse of its powers, that further declarato ry and restrictive clauses should be added; and as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institutions Here is the most satisfactory and authentic proof, that the seve¬ ral amendments proposed, were to be considered as either declara¬ tory or restrictive; and whether the one or the other, as corre¬ sponding with the desire expressed by a number of the States, and as extending the ground of public confidence in the Government. Under any other construction of the amendment relating to the press, than that it declared the press to be wholly exempt from the power of Congress, the amendment could neither be said to cor¬ respond with the desire expressed by a number of the States, nor be calculated to extend the ground of public confidence in the Go¬ vernment. Nay more; the construction employed to justify the Sedition Act,” would exhibit a phenomenon, without a parallel in the poli¬ tical world. It would exhibit a number of respectable States, as denying first that any power over the press was delegated by the Constitution; as proposing next, that an amendment to it, should explicitly declare that no such power was delegated; and finally, as concurring in an amendment actually recognizing or delegating such a power. Is then the Federal Government, it will be asked, destitute of every authority for restraining the licentiousness of the press, and for shielding itself against the libellous attacks which may be made on those who administer it 1 The Constitution alone can answer this question. If no such power be expressly delegated, and it be not both necessary and proper to carry into execution an express power; above all, if it be expressly forbidden by a declaratory amendment to the Consti¬ tution, the answer must be, that the Federal Government is desti¬ tute of all such authority. No. 41.] 5Y And might it not be asked in turn, whether it is not more proba¬ ble, under all the circumstances which have been reviewed, that the authority should be withheld by the Constitution, than that it should be left to a vague and violent construction; whilst so much pains were bestowed in enumerating other powers, and so many less important powers are included in the enumeration ? Might it not be likewise asked, whether the anxious circumspec¬ tion which dictated so peculiar limitations on the general au¬ thority, would be unlikely to exempt the press altogether from that authority 1 The peculiar magnitude of some of the powers neces¬ sarily committed to the Federal Government; the peculiar dura¬ tion required for the functions of some of its departments; the pe¬ culiar distance of the seat of its proceedings from the great body of its constituents; and the peculiar difficulty of circulating an adequate knowledge of them through any other channel; will not these considerations, some or other of which produced other ex¬ ceptions from the powers of ordinary Governments, all together, account for the policy of binding the hand of the Federal Govern¬ ment, from touching the channel which alone can give efficacy to its responsibility to its constituents; and of leaving those who ad¬ minister it, to a remedy for their injured reputations, under the same laws, and in the same tribunals, which protect their lives, their liberties, and their properties'? But the question does not turn either on the wisdom of the Con¬ stitution, or on the policy which gave rise to its particular organi¬ zation. It turns on the actual meaning of the instrument; by which it has appeared, that a power over the press is clearly ex¬ cluded, from the number of powers delegated to the Federal Go¬ vernment. 3. And in the opinion of the Committee, well may it be said, as the resolution concludes with saying, that the unconstitutional power exercised over the press by the Sedition Act,” ought “more than any other, to produce universal alarm; because it is “ levelled against that right of freely examining public characters “and measures, and of free communication among the people there- “on, which has ever been justly deemed the only effectual guar- “ dian of every other right.” [Senate, No. 41.] 8 f 58 [Senate Without scrutinizing minutely into all the provisions of the “ Sedition Act,” it will be sufficient to cite so much of section 2, as follows: And be it further enacted, that if any person shall “ write, print, utter or publish, or shall cause or procure to be written, printed, uttered or published, or shall knowingly and “ willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against “the Government of the United States, or either House of the “Congress of the United States, or the President of the United “ States, with an intent to defame the said Government, or either “ House of the said Congress, or- the President, or to bring them, or either of them, into contempt or disrepute; or to excite against “ them, or either, or any of them, the hatred of the good people of the United States, 8^c. Then such person being thereof convicted “ before any Court of the United States, having jurisdiction thereof, “ shall be punished by a fine not exceeding two thousand doilars, and “ by imprisonment not exceeding two yearsf* On this part of the act, the following observations present them¬ selves: 1. The Constitution supposes that the President, the Congress, and each of its Houses, may not discharge their trusts, either from defect of judgment, or other causes. Hence, they are all made responsible to their constituents, at the returning periods of elec¬ tion; and the President, who is singly entrusted with very great powers, is, as a further guard, subjected to an intermediate im¬ peachment. 2. Should it happen, as the Constitution supposes it may happen, that either of these branches of the Government may not have duly discharged its trust; it is natural and proper, that according to the cause and degree of their faults, they should be brought into contempt or disrepute, and incur the hatred of the people. 3. Whether it has, in any case, happened that the proceedings of either, or all of those branches, evinces such a violation of duty as to justify a contempt, a disrepute or hatred among the people, can only be determined by a free examination thereof, and a free communication among the people thereon. 4. Whenever it may have actually happened, that proceedings of this sort are chargeable on all or either of the branches of the 9 No. 41.] 59 Government, it is the duty as well as right of intelligent and faith¬ ful citizens, to discuss and promulge them freely, as well to con¬ trol them by the censorship of the public opinion, as to promote a remedy according to the rules of the Constitution. And it cannot be avoided, that those who are to apply the remedy must feel, in some degree, a contempt or hatred against the transgressing party. 5. As the act was passed on July 14, 1798, and is to be in force until March 3, 1801, it was of course, that during its continuance, two elections of the entire House of Representatives, an election of a part of the Senate, and an election of a President, were to take place. 6. That consequently, during all these elections, intended by the Constitution to preserve the purity, or to purge the faults of the administration, the great remedial rights of the people were to be exercised, and the responsibility of their public agents to be skreen- ed, under the penalties of this act. May it not be asked of every intelligent friend to the liberties of his country, whether the power exercised in such an act as this, ought not to produce great and universal alarm'? Whether a rigid execution of such an act, in time past, would not have repressed that information and communication among the people, which is indispensable to the just exercise of their electoral rights ? And whether such an act, if made perpetual, and enforced with rigor, would not, in time to come, either destroy our free system of Go¬ vernment, or prepare a convulsion that might prove equally fatal to it ? In answer to such questions, it has been pleaded that the wri¬ tings and publications forbidden by the act, are those only which are false and malicious, and intended to defame; and merit is claimed for the privilege allowed to authors to justify, by proving the truth of their publications, and for the limitations to which the sentence of fine and imprisonment is subjected. To those who concurred in the act, under the extraordinary be¬ lief, that the option lay between the passing of such an act, and leaving in force the common law of libels, which punishes truth equally with falsehood; and submits the fine and imprisonment to the indefinite discretion of the court, the merit of good intentions ought surely not to be refused. A like merit may perhaps be due 60 [Senate for the discontinuance of the corporeal punuhment which the com¬ mon law also leaves to the discretion of the court. This merit of in¬ tention, however, would have been greater, if the several mitigations had not been limited to so short a period; and the apparent incon¬ sistency would have been avoided, between justifying the act at one time, by contrasting it with the rigors of the common law, oth¬ erwise in force; and at another time by appealing to the nature of the crisis, as requiring the temporary rigor exerted by the act. But, whatever may have been the meritorious intentions of all or any who contributed to the Sedition Act; a very few reflections will prove, that its baneful tendency is little diminished by the pri¬ vilege of giving in evidence the truth of the matter contained in po¬ litical writings. In the first place, where simple and naked facts alone are in question, there is sufficient difficulty in some cases, and sufficient trouble and vexation in all, of meeting a prosecution from the go¬ vernment, with the full and formal proof, necessary in a Court of law. • But, in the next place, it must be obvious to the plainest minds, that opinions, and inferences, and conjectural observations, are not only in many cases inseparable from the facts, but may often be more the objects of the prosecution than the facts themselves; or may even be altogether abstracted from particular facts; and that opinions and inferences, and conjectural observations, cannot be subjects of that kind of proof which appertains to facts, before a Court of law. Again: It is no less obvious, that the intent to defame or bring into contempt or disrepute or hatred, which is made a condition of the offence created by the act, cannot prevent its pernicious influ¬ ence, on the freedom of the press. For, omitting the inquiry, how far the malice of the intent is an inference of the law from the mere publication; it is manifestly impossible to punish the intent to bring those who administer the government into disrepute or contempt, without striking at the right of freely discussing public characters and measures: because those who engage in such discussions, must expect and intend to excite these unfavorable sentiments, so far as they may be thought to be deserved. To prohibit, therefore, the intent to excite those unfavorable sentiments against those who ad- 61 No. 41.] minister the government, is equivalent to a prohibition of the aC" tual excitement of them; and to prohibit the actual excitement of them, is equivalent to a prohibition of discussions having that ten> dency and effect; which, again, is equivalent to a protection of those who administer the government, if they should at any time deserve the contempt or hatred of the people, against being expo¬ sed to it, by free animadversions on their characters and conduct. Nor can there be a doubt, if those in public trust be shielded by pe¬ nal laws from such strictures of the press, as may expose them to contempt or disrepute, or hatred, where they may deserve it, that in exact proportion as they may deserve to be exposed, will be the certainty and criminality of the intent to expose them and the vigilance of prosecuting and punishing it; nor a doubt, that a go¬ vernment thus intrenched in penal statutes, against the just and natural effects of a culpable administration, will easily evade the responsibility, which is essential to a faithful discharge of its duty. Let it be recollected, lastly, that the right of electing the mem¬ bers of the government, constitutes more particularly the essence of a free and responsible government. The value and efficacy of this right, depends on the knowledge of the comparative merits and demerits of the candidates for public trust; and on the equal free¬ dom, consequently, of examining and discussing these merits and demerits of the candidates respectively. It has been seen, that a number of important elections will take place whilst the act is in force; although it should not be continued beyond the term to which it is limited. Should there happen, then, as is extremely probable in relation to some or other of the branches of the go¬ vernment, to be competitions between those who are, and those who are not, members of the government; what will be the situa¬ tions of the competitors? Not equal; because the characters of the former will be covered by the Sedition Act” from animadversions exposing them to disrepute among the people; whilst the latter may be exposed to the contempt and hatred of the people, without a violation of the act. What will be the situation of the people ? Not free; because they will be compelled to make their election be¬ tween competitors, whose pretensions they are not permitted by the act, equally to examine, to discuss, and to ascertain. And from both these situations, will not those in power derive an undue ad¬ vantage for continuing themselves in it; which by impairing the right of election, endangers the blessings of the government founded on it? 62 [Senate It is with justice, therefore, that the General Assembly have af¬ firmed in the resolution, as well that the right of freely examining public characters and measures, and of free communication there¬ on, is the only effectual guardian of every other right; as that this particular right is levelled at, by the power exercised in the “ Se¬ dition Act.” The resolution next in order is as follows: That this State having hy its Convention, which ratified the Fede^ ral Constitution, expressly declared, that among other essential rights, *^the liberty of conscience and of the press cannot he cancelled, abridged, restrained or modified by any authority of the United States,and from its extreme anxiety to guard these rights from eve¬ ry possible attack of sophistry and ambition, having with other States, recommended an amendment for that purpose, which amendment was, in due time, annexed to the Constitution ; it would mark a reproach¬ ful inconsistency, and criminal degeneracy, if an indifference were now shewn, to the most palpable violation of one of the rights thus de¬ clared and secured; and to the establishment of a precedent, which may be fatal to the other. To place this resolution in its just light, it will be necessary to recur to the act of ratification by Virginia, which stands in the en¬ suing form: We, the delegates of the people of Virginia, duly elected in pursu¬ ance of a recommendation from the General Assembly, and now met in Convention, having fully and freely investigated and discussed the proceedings of the Federal Convention, and being prepared as well as the most mature deliberation hath enabled us, to decide thereon ; DO, in the name and in behalf of the people of Virginia, declare and make known, that the powers granted under the Constitution, being deri¬ ved from the people of the United States, may be resumed by them, whensoever the same shall be perverted to their injury or oppression, and that every power not granted thereby, remains with them, and at their will. That therefore, no right of any denomination can be can¬ celled, abridged, restrained or modified, by the Congress, by the Se¬ nate or House of Representatives acting in any capacity, by the Pre¬ sident, or any department or officer of the United Stntes, except in those instances in which power is given by the Constitution for those purposes ,* and, that among other essential rights, the liberty of con- No. 41.] 63 science and of the pressy cannot be cancelledy abridged^ restrained or modified by any authority of the United States. Here is an express and solemn declaration by the Convention of the State, that they ratified the Constitution in the sense, that no right of any denomination can be cancelled, abridged, restrained or modified by the government of the United States or any part of it; except in those instances in which power is given by the Con¬ stitution; and in the sense particularly, “ that among other essen¬ tial rights, the liberty of conscience and freedom of the press can¬ not be cancelled, abridged, restrained or modified by any authority of the United States.” Words could not well express, in a fuller or more forcible man¬ ner, the understanding of the Convention, that the liberty of con¬ science and the freedom of the press, were eqaully and completely exempted from all authority whatever of the United States. Under an anxiety to guard more effectually these rights against every possible danger, the Convention, after ratifying the Consti¬ tution, proceeded to prefix to certain amendments proposed by them, a declaration of rights, in which are two articles providing, the one for the liberty of conscience, the other for the freedom of speech and of the press. Similar recommendations having proceeded from a number of other States; and Congress, as has been seen, having in conse¬ quence thereof, and with a view to extend the ground of public con¬ fidence, proposed, among other declaratory and restrictive clauses, a clause expressly securing the liberty of conscience and of the press; and Virginia having concurred in the ratifications which made them a part of the Constitution; it will remain with a candid public to decide, whether it would not mark an inconsistency and degeneracy, if an indifference were now shewn to a palpable violation of one of those rights, the freedom of the press; and to a ^ precedent therein, which may be fatal to the other, the free exer¬ cise of religion. That the precedent established by the violation of the former of these rights, may, as is affirmed by the resolution, be fatal to the latter, appears to be demonstrable, by a comparison of the grounds on which they respectively rest; and from the scope of reasoning by which the power over the former has been vindicated. 64 [Senate: First. Both of these rights, the liberty of conscience and of the press, rest equally on the original ground of not being delegated by the Constitution, and consequently withheld from the govern¬ ment. Any construction, therefore, that would attack this origi¬ nal security for the one, must have the like effect' on the other. Secondly. They are both equally secured by the supplement to the Constitution; being both included in the same amendment, made at the same time, and by the same authority. Any construc¬ tion or argument, then, which would turn the amendment into a grant or acknowledgment of power with respect to the press, might be equally applied to the freedom of religion. Thirdly. If it be admitted that the extent of the freedom of the press, secured by the amendment, is to be measured by the com¬ mon law on this subject, the same authority may be resorted to, for the standard which is to fix the extent of the “ free exercise of religion.” It cannot be necessary to say what this standard would be; whether the common law be tak,en solely as the unwritten, or as varied by the written law of England. Fourthly. If the Words and phrases in the amendment, are to be considered as chosen with a studied discrimination, which yields an argument for a power over the press, under the limitation that its freedom be not abridged: the same argument results from the same consideration, for a power over the exercise of religion, un¬ der the limitation that its freedom be not prohibited. For, if Congress may regulate the freedom of the press provi¬ ded they do not abridge it, because it is said only, “ they shall not abridge it,” and is not said, “ they shall make no law respecting it:” the analogy of reasoning is conclusive, that Congress may re¬ gulate and even abridge the free exercise of religion; provided they do not prohibit it;” because it is said only “ they shall not prohibit it;” and is not said, “ they shall make no law respecting, or no law abridging it.” The General Assembly were governed by the clearest reason, then, in considering the “Sedition Act,” which legislates on the freedom of the press, as establishing a precedent that may be fatal to the liberty of conscience; and it will be the duty of all, in pro¬ portion as they value the security of the latter, to take the alarm at every encroachment on the former. 65 No. 41.] The two concluding resolutions only remain to be examined. They are in the words following: That the good people of this Commonwealth, having ever felt and continuing to feel, the most sincere affection for their brethren of other States; the truest anxiety for establishing and perpetuating the union of all; and the most scrupulous fidelity to that Constitu¬ tion which is the pledge of mutual friendship, and the instrument of mutual happiness; the General Assembly doth solemnly appeal to the like dispositions in the other States, in confidence that they will con¬ cur with this CommonweaWi in declaring, as it does hereby declare, that the acts aforesaid are unconstitutional; and, that the necessary and proper measures will be taken by each, for co-operating with this State in maintaining unimpaired, the authorities, rights, and liber¬ ties reserved in the States respectively, or to the people '^ That the Governor be desired to transmit a copy of the foregoing resolutions to the Executive authority of each of the other States, with a request that the same may be communicated to the Legisla¬ ture thereof; and that a copy be furnished to each of the Senators and Representatives, representing this State in the Congress of the United States. The fairness and regularity of the course of proceeding, here pursued, have not protected it against objections even from sources too respectable to be disregarded. It has been said, that it belongs to the Judiciary of the United States, and not the State Legislatures, to declare the meaning of the Federal Constitution. But a declaration, that proceedings of the Federal Government are not warranted by the Constitution, is a novelty neither among the citizens; nor among the Legislatures of the States; nor are the citizens or the Legislature of Virginia, singular in the example of it. Nor can the declarations of either, whether affirming or deny¬ ing the Constitutionality of measures of the Federal Government; or whether made before or after judicial decisions thereon, be deemed in any point of view, an assumption of the office of the judge. The declarations, in such cases, are expressions of opinion, unaccompanied with any other effect than what they may produce [Senate, No. 41.] 9 66 [Senate on opinion, by exciting reliection. The expositions of the judicia¬ ry, on the other hand, are carried into immediate effect by force. The former may lead to a change in the legislative expression of the general will; possibly to a change in the opinion of the judi¬ ciary; the latter enforces the general will, whilst that will and that opinion continue unchanged. And if there be no impropriety in declaring the unconstitutiona¬ lity of proceedings in the Federal Government, where can be the impropriety of communicating the declaration to other States, and inviting their concurrence in a like declaration ? What is allowa- able for one must be allowable for all; and a free communication among the States, where the Constitution imposes no restraint, is as allowable among the State Governments as among other public bodies or private citizens. This consideration derives a weight,, that cannot be denied to it, from the relation of the State Legisla¬ tures to the Federal Legislature, as the immediate constituents of one of its branches. The Legislatures of the States have a right also to originate amendments to the Constitution, by a concurrence of two-thirds of the whole number, in applications to Congress for the purpose.. When new States are to be formed by a junction of two or more States or parts of States, the Legislatures of the States concerned are, as well as Congress, to concur in the measure. The States have a right also to enter into agreements or compacts, with the consent of Congress. In ail such cases a communication among them results from the object which is common to them. It is lastly to be seen, whether the^ confidence expressed by the resolution, that the necessary and proper measures would be taken by the other States for co-operating with Virginia in maintaining the rights reserved to the States, or to the people, be in any de¬ gree liable to the objections which have been raised against it. If it be liable to objection, it must be because either the object or the means are objectionable. The object being to maintain what the Constitution has ordained, is in itself a laudable object. The means are expressed in the terms, “the necessary and pro¬ per measures.” A proper object was to be pursued, by means both necessary and proper. 67 No. 41.] To find an objection, then, it must be shown that some meaning was annexed to these general terms, which was not proper; and, for this purpose, either that the means used by the General Assem¬ bly were an example of improper means, or that there were no proper means to which the terms cogld refer. In the example given by the State, of declaring the Alien and Sedition Acts to be unconstitutional, and of communicating the declaration to the other States, no trace of improper means has appeared. And if the other States had concurred in making a like declaration, supported too by the numerous applications flowing Immediately from the people, it can scarcely be doubted, that these simple means would have been as sufficient, as they are unexcep¬ tionable. It is no less certain that other means might have been employed, which are strictly within the limits of the Constitution. The Le¬ gislatures of the States might have made a direct representation to Congress, with a view to obtain a rescinding of the two offen¬ sive acts; or, they might have represented to their respective Se¬ nators in Congress, their wish, that two-thirds thereof would pro¬ pose an explanatory amendment to the Constitution; or two-thirds of themselves, if such had been their option, might, by an applica¬ tion to Congress, have obtained a Convention for the same object. These several means, though not equally eligible in themselves, nor probably, to the States, were all constitutionally open for con¬ sideration. And if the General Assembly, after declaring the two acts to be unconstitutional, the first and most obvious proceeding on the subject, did not undertake to point out to the other States, a choice among the farther measures that might become necessary and proper, the reserve will not be misconstrued by liberal minds into any culpable imputation. These observations appear to form a satisfactory reply to every objection which is not founded on a misconception of the terms employed in the resolutions. There is one other, however, which may be of too much importance not to be added. It cannot be forgotten, that among the arguments addressed to those who ap¬ prehended danger to liberty from the establishment of the General Government over so great a country, the appeal was emphatically made to the intermediate existence of the State Governments, be¬ tween the people and that Government, to the vigilance with which they would descry the first symptoms of usurpation, and to the 68 [SENATJEi promptitude With which they would sound the alarm to the public^ This argument was probably not without its effect; and if it was a proper one then, to recommend the establishment of the Consti^ tution, it must be a proper one now, to assist in its interpretation. The only part of the two concluding resolutions that remains to be noticed, is the repetition in the first, of that warm affection to the Union and its members, and of that scrupulous fidelity to the Constitution, which have been invariably felt by the people of this Slate, As the proceedings were introduced with these sentiments, they could not be more properly closed than in the same manner. Should there be any so far misled as to call in question the since¬ rity of these professions, whatever regret may be excited by the error, the General Assembly cannot descend into a discussion of it. Those, who have listened to the suggestion, can only be left to their own recollection of the part which this State has borne in the establishment of our National Independence, in the establish¬ ment of our National Constitution, and in maintaining under it the authority and laws of the Union, without a single exception of in¬ ternal resistance or commotion. By recurring to these facts, they will be able to convince themselves, that the representatives of the people of Virginia, must be above the necessity of opposing any other shield to attacks on their national patriotism, than their own consciousness, and the justice of an enlightened public; who will perceive in the resolutions themselves, the strongest evidence of attachment both to the Constitution and to the Union, since it is only by maintaining the different governments and departments Within their respective limits, that the blessings of either can be perpetuated. The extensive view of the subject thus taken by the committee, has led them to report to the House, as the result of the whole, the following resolution: Resolved, That the General Assembly, having carefully and re¬ spectfully attended to the proceedings of a number of the States, in answer to their resolutions of December 21, 1798, and having accurately and fully re-examined and re-considered the latter, find it to be their indispensable duty to adhere to the same, as founded in truth, as consonant with the Constitution, and as conducive to its preservation; and more especially to be their duty to renew, as they do hereby renew, their protest against the Alien and Sedi¬ tion Acts,” as palpable and alarming infractions of the Constitution. MR. MADISON’S LETl’ER. To the Editor of the North American Review. Montpelier^ August^ 1830 . Bear Sir, I have duly received your letter, in which you refer to the nullifying doctrine,” advocated as a constitutional right, by some of our distinguished fellow-citizens; and to the proceedings of the Virginia Legislature in ’ 98 , ’ 99 , as appealed to in behalf of that doctrine; and you express a wish for my ideas on those subjects. I am aware of the delicacy of the task in some respects, and the difficulty in every respect, of doing full justice to it. But having, in more than one instance, complied with a like request from other friendly quarters, I do not decline a sketch of the views which I have been led to take of the doctrine in question, as well of some others connected with them; and of the grounds from which it ap¬ pears, that the proceedings of Virginia have been misconceived by those who have appealed to them. In order to understand the true character of the Constitution of the United States, the error, not uncommon, must be avoided, of viewing it through the medium, either of a consolidated government, or of a confederated govern¬ ment, whilst it is neither the one nor the other; but a mixture of both. And having, in no model, the similitudes and analogies ap¬ plicable to other systems of government, it must, more than any other, be its own interpreter, according to its text and the facts of the case. From these it will be seen that the characteristic peculiarities of the Constitution are: 1. The mode of its formation. 2. The division of the supreme powers of government between the States in their united capacity, and the States in their individual capa¬ cities. 1. It was formed, not by the governments of the component States, as the federal government for which it was substituted was formed. Nor was it formed by a majority of the people of the United States, as a single community in the manner of a consoli¬ dated government. 70 [Senate It was formed by the States, that is, by the people in each of the States, acting in their highest sovereign capacity; and formed con¬ sequently by the same authority which formed the State Constitu¬ tions. Being thus derived from the same source as the Constitutions of the States, it has, within each State, the same authority as the Constitution of the State; and is as much a Constitution, in the strict sense of the term, within its prescribed sphere, as the Con¬ stitutions of the States are, within their respective spheres; but with this obvious and essential difference, that being a compact among the States in their highest sovereign capacity, and consti¬ tuting the people thereof one people for certain purposes, it can¬ not be altered or annulled at the will of the States individually, as the Constitution of a State may be at its individual will. 2. And that it divides the supreme powers of government, be¬ tween the government of the United States and the governments of the individual States, is stamped on the face of the instrument: the powers of war and of taxation, of commerce and of treaties, and other enumerated powers vested in the government of the United States, being of as high and sovereign a character, as any of the powers reserved to the State governments. Nor is the government of the United States created by the Con. stitution, less a government in the strict sense of the term, within the sphere of its powers, than the governments created by the Constitutions of the States are, within their several spheres. It is, like them, organized into legislative, executive and judiciary departments. It operates, like them, directly on persons and things. And, like them it has at command a physical force for ex¬ ecuting the powers committed to it. The concurrent operation in certain cases, is one of the features marking the peculiarity of the system. Between these different constitutional governments, the one ope¬ rating in all the States, the others operating separately in each, with the aggregate powers of government divided between them, it could not escape attention, that controversies would arise con¬ cerning the boundaries of jurisdiction; and that some provision ought to be made for such occurrences. A political system that does not provide for a peaceable and authoritative termination of occurring controversies, would not be more than the shadow of a 71 No. 41.] government, the object and end of a real government being the substitution of law and order for uncertainty, confusion and vio-^ lence. That to have left a final decision, in such cases, to each of the States, then thirteen, and already twenty-four, could not fail to make the Constitution and laws of the United States different in different States, was obvious, and not less obvious, that this diversity of in¬ dependent decisions, must altogether distract the government of the Union, and speedily put an end to the Union itself. A uniform authority of the laws, is in itself a vital principle. Some of the most important laws could not be partially executed. They must be executed in all the States, or they could be duly executed in none. An impost, of an excise for example, if not in force in some States, would be defeated in others. It is well known that this was among the lessons of experience, which had a primary influ¬ ence in bringing about the existing Constitution. A loss of its ge¬ neral authority would moreover revive the exasperating questions between the States holding ports for foreign commerce, and the adjoining States without them; to which are now added all the in¬ land States, necessarily carrying on their foreign commerce through other States. To have made the decisions under the authority of the individual States, co-ordinate, in all cases, with decisions under the authority ot the United States, would unavoidably produce collisions incom¬ patible with the peace of society, and with that regular and effi¬ cient administration which is of the essence of free governments. Scenes could not be avoided, in which a ministerial officer of the United States, and the correspondent officer of an individual State,, would have recontres in executing conflicting decrees; the result of which would depend on the comparative force of the local pos¬ ses attending them; and that a casualty depending on the political opinions and party feelings in different States, To have referred every clashing decision, under the two autho¬ rities, for a final decision, to the States as parties to the Constitu¬ tion, would be attended with delays, with inconveniences, and with expenses, amounting to a prohibition of the expedient; not to mention its tendency to impair the salutary veneration for a sys¬ tem requiring such frequent interpositions, nor the delicate ques- 72 [Senate tioiis which might present themselves as to the form of stating the appeal) and as to the quorum for deciding it. To have trusted to negotiation for adjusting disputes between the government of the United States and the State governments, as between independent and separate sovereignties, would have lost sight altogether of a Constitution and government for the Union, and opened a direct road from a failure of that resort, to the ultimate ratio between nations wholly independent of and alien to each other. If the idea had its origin the process of ad¬ justment between separate branches of the same government, the analogy entirely fails. In the case of disputes between indepen¬ dent parts of the same government, neither party being able to consummate its will, nor the government to proceed without a concurrence of the parts, necessity brings about an accommoda¬ tion. In disputes between a State government, and the govern¬ ment ol the United States, the case is practically as well as theo¬ retically different; each party possessing all the departments of an organized government, legislative, executive and judiciary; and having each a physical force to support its pretensions. Although the issue of negotiation might sometimes avoid this extremity, how often would it happen among so many States, that an unaccommo¬ dating spirit in some would render that resource unavailing. A contrary supposition would not accord with a knowledge of human nature, or the evidence of our own political history. The Constitution, not relying on any of the preceding modifica¬ tions, for its safe and successful operation, has expressly declared on the one hand, 1. ‘‘ That the Constitution, and the laws made in pursuance thereof, and all treaties made under the authority of the United States, shall be the supreme law of the land: 2. That the judges of every State &hall be bound thereby, any thing in the Con¬ stitution and laws of any State to the contrary notwithstanding 3. That the judicial power of the United States shall extend to all cases in law and equity arising under the Constitution, the laws of the United States, and treaties made under their authority,” &c. On the other hand, as a security of the rights and powers of the States, in their individual capacities, against an undue preponder ranee of the powers granted to the government over them in their united capacity, the Constitution has relied on, 1. The responsibi¬ lity of the Senators and Representatives in the Legislature of the 73 No. 4i.] United States to the Legislatures and people of the States: 2. The responsibility of the President to the people of the United States: and, 3. The liability of the executive and judicial functionaries of the United States to impeachment by the representatives of the people of the States, in one branch of the Legislature of the United States, and trial by the representatives of the States, in the other branch: the State functionaries, legislative, executive and judicial, being, at the same time, in their appointment and responsibility, altogether independent of the agency or authority of the United States, How^ far thft structure of the government of the United States is adequate and safe for its objects, time alone can absolutely de¬ termine. Experience seems to have shewn, that whatever may grow out of future stages of our national career, there is, as yet, a sufficient control in the popular will, over the executive and le¬ gislative departments of the government. When the Alien and Sedition laws were passed in contravention to the opinions and feelings of the community, the first elections that ensued put an end to them. And whatever may have been the character of other acts, in the judgment of many of us, it is but true, that they have generally accorded with the views of a majority of the States, and of the people. At the present day it seems well understood, that the laws which have created most dissatisfaction, have had a like sanction without doors; and that whether continued, varied or re¬ pealed, a like proof will be given of the sympathy and responsibili¬ ty of the representative body to the constituent body. Indeed the great complaint now is against the results of this sympathy and re¬ sponsibility in the legislative policy of the nation. With respect to the judicial power of the United States, and the authority of the Supreme Court in relation to the boundary of ju¬ risdiction between the federal and the State governments, I may be permitted to refer to the thirty-ninth number of the “ Federal¬ ist,’’* for the light in which the subject was regarded by its writer, at the period when the Constitution was depending; and it is be- *No . 33. It is true, that in controrersies relating to the boundary between the two juris¬ dictions, the tribunal which is ultimately to decide, is to be established under the general go¬ vernment. But this does not change the principle of the case. The decision is to be impar¬ tially made, according to the rules of the Constitution; aiid all the usual and most effectual pre¬ cautions are taken to secure this impartiality. Some such tribunal is clearly essential to pre¬ vent an appeal to the sword, and a dissolution of the compact; and that it ought to be estab¬ lished under the genera!, rather than under the local goyernmeiits; or, to speak more properly, that it could be safel}’^ established under the first alone, is a position not likely to be com¬ batted. [Senate, No. 41.] 10 74 [Senate lieved that the same was the prevailing view then taken of it, that thy same view has continued to prevail, and that it does so at this time, notwithstanding the eminent exceptions to it. But it is perfectly consistent with the concession of this power to the Supreme Court, in cases falling within the course of its func¬ tions, to maintain that the power has not always been rightly ex¬ ercised. To say nothing of the period, happily a short one, when judges in their seats did not abstain from intemperate and party harangues, equally at variance with their dignity, there have been occasional decisions from the bench, which have incurred serious and extensive disapprobation. Still it would seem,^hat, with but few exceptions, the course of the judiciary has been hitherto sus¬ tained by the predominant sense of the nation. Those who have denied or doubted the supremacy of the judicial power of the United States, and denounce at the same time nulli¬ fying power in a State, seem not to have sufficiently adverted to the utter inefficiency of a supremacy in a law of the land, without a supremacy in the exposition and execution of the law; nor to the destruction of all equipoise between the Federal government and the State governments, if, whilst the functionaries of the Federal government are directly or indirectly elected by and re¬ sponsible to the States, and the functionaries of the States are in their appointment and responsibility wholly independent of the United States, no constitutional control of any sort belonged to the United States over the States. Under such an organization, it is evident that it would be in the power of the States, individually, to pass unauthorized laws, and to carry them into complete effect, any thing in the Constitution and laws of the United States to the contrary notwithstanding. This would be a nullifying power in its plenary character; and whether it had its final effect, through the legislative, executive, or judiciary organ of the State, would be equally fatal to the constituted relation between the two go¬ vernments. Should the provisions of the Constitution as here reviewed, be found not to secure the government and rights of the States against usurpations and abuses on the part of the United States, the final resort within the purview of the Constitution lies in an amend¬ ment of the Constitution, according to a process applicable by the States. No. 41.] 75 And in the event of the failure of every constitutional resort' and an accumulation of usurpations and abuses, rendering passive obedience and non-resistance a greater evil than resistance and revolution, there can remain but one resort, the last of all—an ap¬ peal from the cancelled obligations of the compact, to original rights and the law of self-preservation. This is the ultima ratio under all governments, whether consolidated, confederated, or a compound of both; and it cannot be doubted, that a single member of the Union, in the extremity supposed, but in that only, would have a right, as an extra and ultra-constitutional right, to make the appeal. This brings us to the expedient lately advanced, which claims for a single State a right to appeal against an exercise of power by the government of the United States, decided by the State to be un¬ constitutional to the parties to the constitutional compact; the de¬ cision of the State to have the effect of nullifying the act of the government of the United States, unless the decision of the State be reversed by three-fourths of the parties. The distinguished names and high authorities which appear to have asserted and given a practical scope to this doctrine, entitle it to a respect which it might be difficult otherwise to feel for it. If the doctrine were to be understood as requiring the three- fourths of the States to sustain, instead of that proportion to re¬ verse the decision of the appealing State, the decision to be with out effect during the appeal, it would be sufficient to remark, that this extra-constitutional course might well give way to that mark¬ ed out by the Constitution, which authorizes two-thirds of the States to institute, aud three-fourths to effectuate an amendment of the Constitution, establishing a permanent rule of the highest au¬ thority, in place of an irregular precedent of construction only. ' But it is understood that the nullifying doctrine imports that the decision of the State is to be presumed valid, and that it overrules the law of the United States, unless overruled by three-fourths of the States. Can more be necessary to demonstrate the inadmissibility of such a doctrine, than that it puts it in the power of the smallest fraction over one-fourth of the United States, that is, of seven States out of twenty-four, to give the law and even the Constitu- 76 [Senate tion of seventeen States, each of the seventeen having, as parties to the Constitution, an equal right of the seven, to expound it, and to insist on the exposition 1 That the seven might, in particular instances, be right, and the seventeen wrong, is more than possi¬ ble. But to establish a positive and permanent rule, giving such a power to such a minority, over such a majority, would overturn the first principle of free government, and in practice necessarily overturn the government itself. It is to be recollected, that the Constitution was proposed to the people of the States as a whole^ and unanimously adopted by the States as a whole, it being a part of the Constitution that not less than three-fourths of the States should be competent to make any alteration in what had been unaimously agreed to. So great is the caution on this point, that in two cases where peculiar interests were at stake, a proportion even of three-fourths is distrusted, and unanimity required to make an alteration. When the Constitution was adopted as a whole, it is certain that there were many parts, which, if separately proposed, would have been promptly rejected. It is far from impossible, that every part of a Constitution might be rejected by a majority, and yet taken together as a whole, be unanimously accepted. Free Constitutions will rarely if ever be formed, without reciprocal concessions; without articles conditioned on and balancing each other. Is there a Constitution of a single State out of the twenty-four that would bear the experiment of having its component parts submitted to the people and separately decided on 1 What the fate of the Constitution of the United Stated would be if a small proportion of the States could expunge parts of it par¬ ticularly valued by a large majority, can have but one answer. The difficulty is not removed by limiting the doctrine to cases of construction. How many cases of that sort, involving cardinal provisions of the Constitution have occurred ] How many now exist ? How many may hereafter spring up ? How many might be ingeniously created, if entitled to the privilege of a decision in the mode proposed] Is it certain that the principle of that mode would not reach fur¬ ther than is contemplated? If a single State can of right require three-fourths of its co-States to overrule its exposition of the Con- 77 No. 41. J stitution, because that proportion is authorized to amend it, would the plea be less plausible that, as the Constitution was unanimous¬ ly established, it ought to be unanimously expounded ? The reply to all such suggestions seems to be unavoidable and irresistible, that the Constitution is a compact, that its text is to be expounded according to the provisions for expounding it—making a part of the compact; and that none of the parties can rightfully renounce the expounding provision more than any other part. When such a right accrues, as may accrue, it must grow out of abuses of the compact releasing the sufterers from their fealty to it. In favor of the nullifying claim for the States, individually, it appears, as you observe, that the proceedings of the Legislature of Virginia, in ’98, and in ’99, against the Alien and Sedition acts, are much dwelt upon. It may often happen, as experience proves, that erroneous con¬ structions not anticipated, may not be sufficiently guarded against, in the language used; and it is due to the distinguished individuals who have misconceived the intention of those proceedings, to sup¬ pose that the meaning of the Legislature,'though well compre¬ hended at the time, may not now be obvious to those unacquainted with the contemporary indications and impressions. But it is believed that by keeping in view the distinctions be¬ tween the governments of the States, and the States in the sense in which they are parties to the Constitution; between the rights of the parties in their concurrent and in their individual capacities; between the several modes and objects of interposition against the abuses of power, and especially between interpositions within the purview of the Constitution, and interpositions appealing from the Constitution to the rights of nature, paramount to all Constitutions, with an attention, always of explanatory use, to the views and ar¬ guments which were combatted, the resolutions of Virginia, as vindicated in the report on them, will be found entitled to an ex¬ position, shewing a consistency in their parts, and an inconsistency of the whole with the doctrine under consideration. That the Legislature could not have intended to sanction such a doctrine, is to be inferred from the debates in the house of dele¬ gates, and from the address of the two houses to their constituents, on the subject of the resolutions. The tenor of the debates, which 78 [Senate were ably conducted, and are understood to have been revised for the press by most, if not all of the speakers, discloses no reference whatever, to a constitutional right of an individual State to arrest by force the*operation of a law of the United States. Concert among the States for redress against the Alien and Sedition laws, as acts of usurped power, was a leading sentiment; and the attain¬ ment of a concert, the immediate object of the course adopted by the Legislature, which was that of inviting the other States “ to concur in declaring the acts to be unconstitutional, and to co-ope^ rate by the necessary and proper measures, in maintaining unim¬ paired the authorities, rights and liberties reserved to the States respectively, and to the people.”* That by the necessary and proper measures to be concurrently and co-operatively taken, were meant measures known to the Constitution, particularly the ordi¬ nary control of the people and Legislatures of the States, over the government of the United States, cannot be doubted; and the in¬ terposition of this control, as the event shewed, was equal to the occasion. It is worthy of remark, and explanatory of the intentions of the Legislature, that the words not law, but utterly null, void and of no force or effect,” which had followed, in one of the resolutions, the word ‘‘unconstitutional,” were struck out by common consent. Though the words were in fact but synonymous with “ unconsti¬ tutional,” yet, to gnard against a misunderstanding of this phrase as more than declaratory of opinion, the word “ unconstitutional” alone was retained, as not liable to that danger. The published address of the Legislature to the people, their constituents, affords another conclusive evidence of its views. The address warns them against the encroaching spirit of the general government, argues the unconstitutionality of the Alien and Sedi¬ tion acts, points to other instances in which the constitutional li¬ mits had been overleaped; dwells upon the dangerous mode of de¬ riving power by implication; and in general presses the necessity of watching over the consolidating tendency of the federal policy. But nothing is said that can be understood to look to means of maintaining the rights of the States beyond the regular ones, with¬ in the forms of the Constitution. Seo the concluding resolution of 1798. 79 No. 41.] If any further lights on the subject could be needed, a very strong one is reflected in the answers to the resolutions, by the States which protested against them. The main objection of these, beyond a few general complaints of the inflammatory tendency of the resolutions, was directed against the assumed authority of a State Legislature to declare a law of the United Ststes unconsti- ^ tutional, which they pronounced an unwarrantable interference with the exclusive jurisdiction of the Supreme Court of the United States. Had the resolutions been regarded as avowing and main¬ taining a right, in an individual State, to arrest, by force, the exe¬ cution of a law of the United States, it must be presumed that it would have been a conspicuous object of their denunciation. With cordial salutations, JAMES MADISON. , * *^OtV' B ' •' ''■'-•^ ' ■'' ' m] ftiL Vf£" It ^ v;...; edi i ■ Biowsus c.'-: ■'. ' - ' vtO ^;^S- ■ ■ '• "'’ - '-rweoisie ^ -i^Tt'),''. '.^ V.-- . 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