The writings of James Madison, comprising his public papers and his private correspondence, including numerous letters and documents now for the first time printed. |
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REPORT ON THE RESOLUTIONS.
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 | The writings of James Madison, |  |
REPORT ON THE RESOLUTIONS.[134]
Report of the Committee to whom were referred the Communications
of various States, relative to the Resolutions 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 December, 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
confidence, and affection among the members of the Union.
The committee have deemed it a more useful task to revise,
with a critical eye, the resolutions which have met with this
disapprobation; 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 candor 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
unequivocally express a firm resolution to maintain and defend
the Constitution of the United States and the Constitution of
this State against every aggression, either foreign or domestic,
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 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
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 secure its existence, and the
public happiness."
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
enlightened friends of the Union, as to the duty of watching
over and opposing every infraction of those principles which
constitute its basis, and a faithful observance of which can
alone secure its existence, 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 further valid than they are
authorized by the grants enumerated 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 bound
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
attention which its importance merits. They have scanned
it not merely with a strict, but with a severe eye; and they
feel confidence in pronouncing that, in its just and fair construction,
it is unexceptionably true in its several positions, as
well as constitutional and conclusive in its inferences.
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 compact 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 unapprized of a late doctrine which opens
another source of Federal powers not less extensive and important
this doctrine will be most conveniently connected with a review
of a succeeding resolution. The committee satisfy themselves
here with briefly remarking, that in all the contemporary
discussions and comments which the Constitution underwent,
it was constantly justified and recommended on the ground
that the powers not given to the Government were withheld
from it; and that if any doubt could have existed on this
subject, under the original text of the Constitution, it is removed,
as far as words could remove it, by the 12th amendment,
now a part of the Constitution, which expressly declares
"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."
The other position involved in this branch of the resolution,
namely, "that the States are parties to the Constitution" or
compact, is, in the judgment of the committee, equally free
from objection. It is indeed true that the term "States" is
sometimes used in a vague sense, and sometimes in different
senses, according 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 established by those societies; sometimes those
societies as organized into those particular governments; and,
lastly, it means the people composing those political societies,
in their highest sovereign capacity. Although it might be
wished that the perfection of language admitted less diversity
in the signification of the same words, yet little inconvenience
is produced by it where the true sense can be collected with
certainty from the different applications. In the present
instance, whatever different construction of the term "States,"
in the resolution, may have been entertained, all will at least
concur in that last mentioned; because in that 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
powers 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 causes.
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
powers 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 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 progress
of the evil, and for maintaining within their respective
limits the authorities, rights, and 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 legitimate 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 authority
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.
It does not follow, however, because the States, as sovereign
parties to their constitutional compact, must ultimately decide
whether it has been violated, that such a decision ought to
be interposed either in a hasty manner or on doubtful and
inferior occasions. Even in the case of ordinary conventions
between different nations, where, by the strict rule of interpretation,
a breach of a part may be deemed a breach of the
whole—every part being deemed a condition of every other
part, and of the whole—it is always laid down that the breach
must be both wilful and material, to justify an application of
union, like that of the United States, it is evident that the
interposition of the parties, in their sovereign capacity, can
be called for by occasions only deeply essentially affecting the
vital principles of their political system.
The resolution has, accordingly, guarded against any misapprehension
of its object, by expressly requiring for such an
interposition "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 established. 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 determination, but a case
stamped with a final consideration and deliberate adherence.
It is not necessary, because the resolution does not require,
that the question should be discussed, how far the exercise
of any particular power, ungranted by the Constitution,
would justify the interposition of the parties to it. As cases
might easily 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 misconstruction,
by expressly referring to cases of a deliberate,
palpable, and dangerous nature. It specifies the object of the
interposition which it contemplates to be solely that of arresting
the progress of the evil of usurpation, and of maintaining
the authorities, rights, and liberties appertaining to the
States as parties to the Constitution.
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
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 power, and a direct
subversion of the rights specified or recognized under all the
State constitutions, as well as a plain denial of the fundamental
principle on which our independence itself was declared.
But it is objected that the judicial 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 declaration
by the General Assembly, supposing it to be theoretically true,
could be required at the present day, and in so solemn a manner.
On this objection it might be observed, first, that there
may be instances of usurped power, which the forms of the
Constitution would never draw within the control of 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 Constitution before the judiciary,
must be equally authoritative and final with the decisions of
that department. But the proper answer to the objection, is
that the resolution of the General Assembly relates to those
great and extraordinary cases in which all the forms of the
Constitution may prove ineffectual against infractions dangerous
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 judicial 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 violations by one delegated
authority as well as by another; by the judiciary as well as by
the executive or the legislature.
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 resort 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 delegating 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 declared in the resolution being established, the
expediency 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 recurrence 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 unfrequent at the
present day with those which characterized the epoch of our
Revolution, and which form the basis of our republican constitutions,
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 constitutions over governments,
and of the sovereignty of the people over constitutions,
are truths which are at all times necessary to be kept in mind,
and at no time, perhaps, more necessary than at present.
The 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 Government to enlarge its powers by forced
and that indications have appeared of a design to expound
certain general phrases, (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 general phrases, and
so as to consolidate the States by degrees into one sovereignty,
the obvious tendency and inevitable result of which would
be to transform the present republican system of the United
States into an absolute, or at best a mixed, monarchy."
The 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 committee 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 understood as included
n 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 similar 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 constitutional
absolute enlargement of them; because instances of this sort,
however important in their principles and tendencies, do not
appear to fall strictly within the text under review.
The other questions presenting themselves are—1. Whether
indications have appeared of a design to expound certain general
phrases copied from the "Articles of Confederation," so as
to destroy the effect of the particular enumeration explaining
and limiting their meaning. 2. Whether this exposition
would by degrees consolidate the States into one sovereignty.
3. Whether the tendency and result of this consolidation would
be to transform the republican 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
follows, in Article VIII: "All charges of war, and all other
expenses that shall be incurred for the common defence and
general welfare, and allowed by the United States in Congress
assembled, shall be defrayed out of the 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 Section 8: "The Congress shall have power to lay and
collect taxes, duties, 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
Federal 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 authorize the
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-modeled
by the present Constitution, it can never be supposed that,
when copied into this Constitution, a different meaning ought
to be attached to them.
That, notwithstanding this remarkable security against
misconstruction, a design has been indicated to expound
these phrases in the Constitution so as to destroy the effect of
the particular enumeration 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 subject, it will suffice to refer
to the Debates of the Federal Legislature, 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 further,
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 belong "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 requisite and proper. And there
seems to be no room for a doubt that whatever concerns the
general interests of Learning, of Agriculture, of Manufactures,
and of Commerce, are within the sphere of the National
Councils, as far as regards an application of money." The
latter Report assumes the same latitude of power 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
received the sanction of a law carrying it into effect, yet, on
has passed without the slightest positive mark of disapprobation
from the authority to which it was addressed.
Now, whether the phrases in question be construed to
authorize every measure relating to the common defence
and general welfare, 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 follow 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 involve
or admit an application of money. The government, therefore,
which possesses power in either one or other of these
extents, is a government without the limitations formed by
a particular enumeration of powers; and, consequently, the
meaning and effect of this particular enumeration is destroyed
by the exposition given to these general phrases.
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 incompetent to general regulations operating
through the whole, the authority of the United States
would be extended to every object relating to the general
welfare which might, by any possibility, be provided for by
the general authority. This qualifying construction, therefore,
would have little, if any, tendency to circumscribe the
power claimed under the latitude of the terms "general
welfare."
The true and fair construction of this expression, both in the
original and existing Federal compacts, appears to the committee
authorized 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 particular 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 vested 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 deemed rather a mockery than an
observance of this constitutional injunction.
2. Whether the exposition of the general phrases here combatted
would not by degrees consolidate the States into one
sovereignty, is a question concerning which the committee
can perceive 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 cases of the "general welfare"—that is to
say, to all cases whatever.
3. That the obvious tendency and inevitable result of a
consolidation 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 sentiment of America. In almost
every instance of discussion relating 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 controversy. It
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
allotted to the Executive Magistrate. Even within the legislative
limits properly defined by the Constitution, the difficulty
of accommodating legal regulations to a country so great
in extent and so various in its circumstances has been much
felt, and has lead to occasional investments of power in the
Executive, which involve perhaps as large a portion of discretion
as can be deemed consistent with the nature of the
Executive trust. In proportion as the objects of legislative
care might be multiplied, would the time allowed for each be
diminished, and the difficulty of providing uniform 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 Executive prerogative materially
consists.
The other consequence would be, that of an excessive augmentation
of the offices, honors, and emoluments, depending
on the Executive will. Add to the present legitimate stock
all those of every 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.
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,
by giving so transcendent an importance to the office, would
render the elections to it so violent and corrupt, that the public
voice itself might call for an hereditary in place of an elective
succession. Whichever of these events might follow, the
transformation of the republican 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 Acts,'
passed at the last session of Congress; the first of which exercises
a power nowhere delegated to the Federal Government,
and which, by uniting legislative and judicial powers to those
of executive, subverts the general principles of a free Government,
as well as the particular organization 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 contrary, 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
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 effectual
guardian of every other right."
The subject of this resolution having, it is presumed, more
particularly led the General Assembly into the proceedings
which they communicated to the other States, and being
in itself of peculiar importance, it deserves the most critical
and faithful investigation, for the length of which no other
apology will be necessary.
The subject divides itself into—first, "The Alien Act";
secondly, "The Sedition Act."
Of the "Alien Act," it is affirmed by the resolution—1st.
That it exercises a power nowhere delegated to the Federal
Government, 2d. That it unites legislative and judicial powers
to those of the Executive, 3d. That this union of power subverts
the general principles of free government. 4th. That it
subverts the particular organization and positive provisions
of the Federal Constitution.
In order to clear the way for a correct view of the first position
several observations will be premised.
1. In the first place, it is to be borne in mind that it being a
characteristic 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 Constitution, 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 essentially 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" indiscriminately, 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,
aliens who are not enemies, 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 protest of the General Assembly
is expressly and exclusively directed.
A third observation is, that were it admitted, as is contended,
that the "act concerning aliens" has for its object, not a penal,
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
principles have been held sacred: that some probable ground
of suspicion be exhibited before some judicial authority; that
it be supported by oath or affirmation; that the party may
avoid being thrown into confinement by finding pledges or
sureties for his legal 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
recognisance, or his confinement, and restored to his former
liberty and rights on the order of the proper judicial authority,
if it shall see sufficient cause.
All these principles of the only preventive justice known, to
American 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 required. 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 finding 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
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 disqualification
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, although 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, authorized by the act, is to be considered,
not as punishment 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 connexions; where he may have invested
his entire property, and acquired property of the real
and permanent, as well as the movable 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 banishment 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
persons 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
being of favor, 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 question would still occur, whether the Constitution had
vested the discretionary power of admitting aliens in 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 moment 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 irrevocable. To admit an alien to naturalization,
is as much a favor as to admit him to reside in the country;
yet it cannot be pretended that a person naturalized can be
deprived of the benefits any more than a native citizen can
be disfranchised.
Again, it is said, that aliens not being parties to the Constitution,
the rights and privileges which 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 Constitution has vested in Congress an absolute power
over them. The parties to the Constitution may have granted,
or retained, or modified, 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 protection. Aliens are not more parties to the
laws than they are parties to the Constitution; yet it will not
be disputed that, as they owe, on one hand, a temporary
obedience, they are entitled, in return, to their protection
and advantage.
If aliens had no rights under the Constitution, they might
jury or the other incidents to a fair trial. But so far has a
contrary principle been carried, in every part of the United
States, that, except on charges of treason, an alien has, besides
all the common privileges, 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 nations; that Congress are authorized to define and
punish such offences; 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 ministers, are under the municipal law, and must
be tried and punished according to that law only.
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 preventive operation. It must, in truth, be so considered.
And if it be a penal act, the punishment it inflicts must be
justified by some offence 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; secondly, 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 of which
authorizes 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 being committed
by the individual, not by his nation, and against the municipal
law, not against the law of nations—the individual only, and
conducted 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 nations, is justified by the Constitution and
the "act" for the removal of alien friends, being repugnant to
the constitutional principles 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 expelling 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 countries, 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
reprisal; 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.
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 members, for which a refusal of the aggressors
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
any injury received from any particular nation for which, this
proceeding against its members was intended as a reparation.
The proceeding is authorized against aliens of every nation;
of nations charged neither with any similar proceedings 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 exemption, 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 incident to the power of war.
It is said that Congress are, by the Constitution, to protect
each State 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 in the instrument, or be the injunction of a duty
superadded to a grant of the power. Under either explanation
it cannot enlarge the powers of 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 against invasion
is an exercise of the power of war. A power, therefore,
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 practical
definition of particular and limited powers. Under the
idea of preventing war in general, as well as invasion in particular,
not only an indiscriminate removal of all aliens might
be enforced, but a thousand other things still more remote
from the operations and precautions appurtenant to war might
take place. A bigoted or tyrannical 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 tending
to prevent them, of which a system of moral instruction for
the ignorant, and of provident support for the poor, might
be regarded as among the most efficacious.
One argument for the power of the General Government
to remove 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 character, and strikes so radically at the
political system of America, that it is proper to state it in the
very words of the report:
"The act [concerning aliens] is said to be unconstitutional,
because to remove aliens is a direct breach of the Constitution,
which provides, by the 9th section of the 1st article, that the
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 constitutionality
of the act, the following very remarkable one 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 constitutions in the nature of such declarations. Nay,
so far is the political 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 peculiarly
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
citizens, were never meant to be subjected to banishment
by any arbitrary 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
and the inference from this principle, that the powers supposed
to be necessary which are not so given to the State governments,
must reside 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
paragraph might excite; and they are the more readily suppressed,
as it may be 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 reenacted
in 1792, is a proof that a summary removal of suspected
aliens was not theretofore 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 designs;"
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 apprehended.
2. It is next affirmed by 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
clearness 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
Details, to a certain degree, are essential to the nature and
character of 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 execute the law. If nothing more
were required, in exercising a legislative 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 legislation
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
distinct departments are united by the act authorizing the
Executive to remove aliens, it must be inquired whether it
contains such details, definitions, and rules, as appertain to
the true character of a law; especially a law by which personal
liberty is invaded, property 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
President 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 machinations against the Government thereof, to
depart," &c.
Could a power be given in terms less definite, less particular,
and less precise? 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 everything to the President. His will is the law.
But it is not a legislative power only that is given to the
President. He is to stand in the place of the judiciary also.
His suspicion 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
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 legislative and judicial powers to those of the
executive.
3. 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 separation of the legislative, executive, and judicial
departments is necessary to the preservation of public liberty.
Nowhere has this axiom been better understood in theory, or
more carefully pursued in practice, than in the United States.
4. It is affirmed that such a union of power subverts the
particular organization and positive provisions of the Federal
Constitution.
According to the particular organization of the Constitution,
its legislative powers are vested in the Congress, its executive
powers in the President, and its judicial powers in a supreme
and inferior tribunals. The union of any two of these powers,
and still more of all three, in any one of these departments,
as has been shown to be done by the Alien Act, must, consequently,
subvert the constitutional organization of them.
That positive provisions in the Constitution, securing to
individuals 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
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
Government being composed of powers specifically granted,
with a reservation 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?
Several attempts have been made to answer this question,
Which will be examined in their order. The committee will
begin with one which has filled them with equal astonishment
and apprehension, and which, they cannot but persuade
themselves, must have the same effect on all who will consider
it with coolness and impartiality, 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 capacity.
The novelty, and, in the judgment of the committee, the
extravagance of this pretension, would have consigned it to
the silence in which they have passed by other arguments
which an extraordinary zeal for the Act has drawn into the
discussion; but the auspices under which this innovation
presents itself have constrained the committee to bestow on
it an attention which other considerations might have
forbidden.
In executing the task, it may be of use to look back to the
colonial state of this country, prior to the Revolution; to trace
the effect of the Revolution which converted the Colonies into
of Confederation, the first instrument by which the Union of
the States was regularly established; and, finally, to consult the
Constitution of 1787, which is the oracle that must decide the
important question.
In the state prior to the Revolution, it is certain that the
common 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 within its respective limits, and was unknown to
them as a law pervading 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
common legislature by which a common will could be expressed
in 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
common law as a law of the Union?
The fundamental principle of the Revolution was, that the
Colonies 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 legislative power was maintained to be as complete in
each American Parliament, as in the British Parliament.
And the royal prerogative was in force in each Colony by virtue
of its acknowledging the King for its executive magistrate,
as it was in Great Britain by virtue of a like acknowledgment
there. A denial of these principles by Great Britain, and the
assertion of them by America, produced the Revolution.
There was a time, indeed, when an exception to the legislative
separation of the several component and co-equal parts
of the empire obtained a degree of acquiescence. The British
Parliament was allowed to regulate the trade with foreign
nations, and between the different parts of the empire. This
was, however, mere practice without right, and contrary to
the true theory of the Constitution, The convenience of
some regulations, in both cases, 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 assume this function, and
for the others to acquiesce, in it. This tacit arrangement was
the less criticised, as the regulations established by the British
Parliament operated in favor of that part of the empire which
seemed to bear the principle 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 selfish views of the party assuming it, than the
injured parties began to feel and to reflect; and the moment
the claim to a direct and indefinite power was ingrafted on
the precedent of the regulating power, the whole charm was
dissolved, and every eye opened to the usurpation. The
assertion by Great Britain 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
colour 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 legitimate 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 a syllable 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 alluded to, as being in force, or as brought
into force by that compact. 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 II, which declares "that each State retains its
sovereignty, freedom, and independence, and every power,
jurisdiction, and right which is not by this Confederation
expressly delegated to the United States in Congress
assembled."
Thus far it appears that not a vestige of this extraordinary
doctrine can be found in the origin or progress of American
institutions. The evidence against it has, on the contrary,
grown stronger at every step, till it has amounted to a formal
and positive exclusion, by written articles of compact among
the parties concerned.
Is this exclusion revoked, and the common law introduced
as national law by the present Constitution of the United
States? 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 necessarily comprehended in the technical phrases which
the powers delegated to the Government; and so far also as
and proper for carrying into execution the powers expressly
delegated. But the question does not relate to either of these
portions of the common law. It relates to the common law
beyond these limitations.
The only part of the Constitution which seems to have been
relied on in this case is the 2d section of Article III: "The
judicial power 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 Constitution, other than those arising under the
common law? and it is inferred that the common law is
accordingly adopted or recognized by the Constitution.
Never, perhaps, was so broad a construction applied to a
text so clearly unsusceptible of it. If any colour for the
inference could be found, it must be in the impossibility of
finding any other cases in law and equity, within the provisions
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 pleonasm or
inadvertence. But it is not necessary to decide on such a
dilemma. The expression is fully satisfied and its accuracy
justified 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 comprehends the case 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 consequence, this would
be a case arising under the Constitution before the judicial
power of the United States. A second description comprehends
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
confined to cases of a civil nature, and would exclude cases of
criminal jurisdiction. Criminal cases in law and equity would
be a language 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
affecting ambassadors, or other public ministers, and consuls,
and those in which a State shall be a party, the Supreme Court
shall have original jurisdiction. In all the other cases (including
cases of law and equity arising under the Constitution)
the Supreme Court shall have appellate jurisdiction both as
to law and fact; with such exceptions and under such regulations
as Congress shall make."
This paragraph, by expressly giving an appellate jurisdiction
in cases of law and equity arising under the Constitution, to
fact as well as to law, clearly excludes criminal cases where the
trial by jury is secured, because the fact in such cases is not
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 exception 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.
Once more: the amendment last added to the Constitution
deserves attention as throwing light on this subject. "The
judicial power of the United States shall not be construed to
against one of the United States by citizens of another State,
or by citizens or subjects 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 exclusion 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 authorize
the inference 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
Constitution 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 extent is defined in this part of the
Constitution.
There are two passages in the Constitution in which a
description of the law of the United States is found. The first
is contained in Article III, Section 2, in the words following:
"This Constitution, the laws of the United States, and treaties
made or which shall be made under their authority." The
second is contained in the second paragraph of Article 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 of 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
In aid of these objections the difficulties and confusion
inseparable from a constructive introduction of the common
law would afford powerful reasons against it.
Is it to be the common law with or without the British
statutes?
If without the statutory amendments, the vices of the
code would be insupportable.
If with these amendments, what period is to be fixed for
limiting the British authority over our laws?
Is it to be the date of the eldest or the youngest of the Colonies?
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
common law made by the local codes of America?
Is regard to be had to such changes, subsequent as well as
prior to the establishment of the Constitution?
Is regard to be had to future as well as to past changes?
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 all?
And, on the latter supposition, which, among the State codes
would form the standard?
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
furnish other objections equally conclusive, unless the text
were peremptory in its meaning and consistent with other
parts of the instrument.
These consequences may be in relation to the legislative
authority of the United States; to the executive authority; to
the judicial 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
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 people of the United States,
Should this consequence be rejected and the common law
be held, like other laws, liable to revision and alteration by the
authority 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 authorized to legislate in all cases whatsoever.
In the next place, as the President possesses the executive
powers 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 Constitution 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 expire until the Legislature should have introduced a full
besides all the uncertainties above enumerated, and which
present an immense field for judicial discretion, it would remain
with the same department to decide what parts of the common
law would, and what would not, be properly applicable to the
circumstances of the United States.
A discretion of this sort has always been lamented as incongruous
and dangerous, even in the Colonial and State courts,
although so much narrowed by positive provisions in the local
codes on all 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 conjecture, 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 Constitutions and laws of the States, the
admission of it would overwhelm the residuary sovereignty
of the States, and by one constructive operation new model
the whole political fabric of the country.
From the review thus taken of the situation of the American
colonies prior to their independence; of the effect of this event
on their situation; of the nature and import of the Articles
of Confederation; of the true meaning of the passage in the
existing Constitution from which the common law has been
deduced; of the difficulties and uncertainties incident to the
doctrine; and of its vast consequences in extending the powers
of the Federal Government, and in supers eding 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
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
several objects of Federal power, could intend to introduce
in the lump, in an indirect manner, and by a forced construction
of a few phrases, 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 foundation of the Constitution 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.
The argument, then, drawn from the common law, on the
ground of its being adopted or recognised by the Constitution,
being inapplicable to the Sedition Act, the committee will
proceed to examine the other arguments which have been
founded on the Constitution.
They will waste but little time on the attempt to cover the
act by the preamble to the Constitution, it being contrary to
every acknowledged rule of construction to set up this part of
an instrument 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 Article I, Section 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
enlarge the enumerated powers vested in Congress.
The part of the Constitution which seems most to be recurred
to, in the 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 Government 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 carrying into execution all the express powers, whether
they be vested 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 constitutionality
of a particular power, 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
be 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
powers expressly vested in the Congress. This is not pretended.
Is there any express power, for executing which it is a
-necessary 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 whatever may lead or tend to them. But it surely
of the press, and a punishment of libels, are exercises of a
power to suppress insurrections. The most that could be said
would be that the punishment of libels, if it had the tendency
ascribed to it, might prevent the occasion of passing or
executing laws necessary and proper for the suppression of
insurrections.
Has the Federal Government no power, then, to prevent
as well as to punish resistance to the laws?
They have the power, which the Constitution deemed most
proper, in their hands for the purpose. The Congress has
power, before it happens, to pass laws for punishing it; and
the executive and judiciary have power to enforce those laws
when it does happen.
It must be recollected by many, and could be shown to the
satisfaction of all, that the construction here put on the terms
"necessary and proper" is precisely the construction which
prevailed during the discussions and ratifications of the Constitution.
It may be added, and cannot too often be repeated,
that it is a construction absolutely necessary to maintain
their consistency with the peculiar character of the Government,
as possessed of particular and definite powers only, not
of the general and indefinite powers vested in ordinary Governments;
for if the power to suppress insurrections includes
a power to punish libels, or if the power to punish includes a
power to prevent, by all the means that may have that
tendency, such is the relation and influence among the most
remote subjects of legislation, that a power over a very few
Would carry with it a power over all. And it must be wholly
immaterial whether unlimited powers be exercised under the
name of unlimited 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
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. If, on the other hand, Congress are not
limited in the choice of means by any such appropriate relation
of them to the specified powers; but may employ all such
means as they may deem fitted to prevent as well as to punish
crimes subjected to their authority; such as may have a
tendency only to promote an object for which they are authorized
to provide; every one must perceive that questions relating
to means of this sort must be questions for mere policy and
expediency, on which legislative discretion 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 petition 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 article supposes the power over the press to be
in Congress, and prohibits them only from abridging the freedom
allowed to it by the common law.
Although it will be shown, on examining the second of these
positions, that the amendment is a denial to Congress of all
power over the press, it may not be useless to make the following
observations 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, recognised by principles of the
common law in England.
The freedom of the press under the common law is, in the
defences of the Sedition Act, made to consist in an exemption
from all previous restraint on printed publications by persons
authorized 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 authorizing a previous restraint on them. It
would seem a mockery to say that no laws 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 the American Constitutions will place this subject in the
clearest 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 merely legislative precautions against executive
usurpations. Under such a government as this, an exemption
of the press from previous restraint, by licensers appointed by
the King, is all the freedom that can be secured to it.
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
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 Executive, 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 security 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 constitutionally 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,
therefore, for consideration only how far the difference between
the nature of the British Government and the nature of the
American Governments, and the practice under the latter
may show the degree of rigor in the former to be inapplicable
to and not obligatory in the latter.
The nature of governments elective, limited, and responsible
freedom of animadversion than might be tolerated by the
genius of such a government as that of Great Britain. In the
latter it is a maxim that the King, an hereditary, not a responsible
magistrate, 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 omnipotent; and both being elective, are
both responsible. Is it not natural and necessary, under
such different circumstances, that a different degree of freedom
in the use of the press should be contemplated?
Is not such an inference favoured by what is observable
in Great Britain itself? 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 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 freedom, 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 candour to say,
that no persons or presses are in the habit of more unrestrained
animadversions on the proceedings and functionaries of the
State governments than the persons and presses most zealous
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
enjoyed. Some degree of abuse is inseparable from the
proper use of every thing, and in no instance is this more true
than in that 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 vigour 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 ranks 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 demonstrates
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
amendment, instead of supposing in 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 the true object of the article,
it will be sufficient to recall the circumstances which led to it,
and to refer to the explanation accompanying the article.
When the Constitution was under the discussions which
preceded its ratification, it is well known that great apprehensions
were 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 Congress, more especially
of the power to make all laws necessary and proper for carrying
their other powers into execution. In reply 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 incident 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 manifest usurpation. It is painful
to remark how much the arguments now employed in behalf
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
question, in so many of the Conventions, whether the doubts
and dangers ascribed to the Constitution should be removed
by any amendments previous to the ratification, or be postponed
in confidence that, as far as they might be proper, they
would be introduced in the form provided by the Constitution.
The latter course was adopted; and in most of the States,
ratifications were followed by propositions and instructions
to the rights not meant to be delegated 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 proceedings 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
amendments, 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 originally stood, and that the amendment was
intended as a positive and absolute reservation of it.
But the evidence is still stronger. The proposition of
amendments 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 prevent misconstructions or abuse of its powers, that
further declaratory and restrictive clauses should be added; and
as extending the ground of public confidence in the Government
will best insure the beneficent ends of its institution."
Here is the most satisfactory and authentic proof that the
several amendments proposed were to be considered as either
declaratory or restrictive, and, whether the one or the other
as corresponding 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
of the States, nor be calculated to extend the ground of public
confidence in the Government.
Nay, more; the construction employed to justify the Sedition
Act would exhibit a phenomenon without a parallel in the
political 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 recognising 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?
The Constitution alone can answer this question. If no
such power be expressly delegated, and if 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 Constitution—the answer must be, that
the Federal Government is destitute of all such authority.
And might it not be asked, in turn, whether it is not more
probable, 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 circumspection
which dictated so many peculiar limitations on the
general authority would be unlikely to exempt the press altogether
from that authority? The peculiar magnitude of some
of the powers necessarily committed to the Federal Government;
the peculiar duration required for the functions of some
of its departments; the peculiar distance of the seat of its proceedings
from the great body of its constituents; and the
them through any other channel; will not these considerations,
some or other of which produced other exceptions from the
powers of ordinary governments, all together, account for the
policy of binding the hand of the Federal Government from
touching the channel which alone can give efficacy to its
responsibility to its constituents, and of leaving those who
administer 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
Constitution or on the policy which gave rise to its particular
organization. It turns on the actual meaning of the instrument,
by which it has appeared that a power over the press is
clearly excluded from the number of powers delegated to the
Federal Government.
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 thereon, which has ever been justly deemed
the only effectual guardian of every other right."
Without scrutinizing minutely into all the provisions of the
Sedition Act, it will be sufficient to cite so much of section 2d
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
the hatred of the good people of the United States, &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 dollars, and by imprisonment
not exceeding two years."
On this part of the act, the following observations present
themselves:
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 election; and the President, who is singly intrusted
with very great powers, is, as a further guard, subjected to an
intermediate impeachment.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.Whether it has, in any case, happened that the proceedings
of either or all of those branches evince 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.Whenever it may have actually happened that proceedings
of this sort are chargeable on all or either of the branches of
the Government, it is the duty, as well as right, of intelligent
and faithful citizens to discuss and promulge them freely, as
well to control 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.As the act was passed on July 14, 1798, and is to be in
395force 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.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 screened, under the penalties of this act.
1.
2.
3.
4.
5.
6.
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 government, or prepare
a convulsion that might prove equally fatal to it?
In answer to such questions, it has been pleaded that the
writings 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
belief 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 for the discontinuance of the corporal
punishment, which the common law also leaves to the discretion
of the court. This merit of intention, however, would
have been greater, if the several mitigations had not
inconsistency would have been avoided, between justifying
the act, at one time, by contrasting it with the rigors of the
common law otherwise 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 baleful tendency is little diminished
by the privilege of giving in evidence the truth of the
matter contained in political 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 Government 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 influence 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
who administer the Government, is equivalent to a prohibition
of the actual excitement of them; and to prohibit the actual
excitement of them is equivalent to a prohibition of discussions
having that tendency 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 exposed to it by free animadversions on
their characters and conduct. Nor can there be a doubt, if
those in public trust be shielded by penal 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 government 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
members 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 freedom, 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 while 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 Government, to be
competitions between those who are and those who are not
members of the Government, what will be the situations 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
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 between 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 advantage
for continuing themselves in it, which, by impairing the right
of election, endangers the blessings of the Government
founded on it?
It is with justice, therefore, that the General Assembly have
affirmed, in the resolution, as well that the right of freely
examining public characters and measures, and of free communication
thereon, is the only effectual guardian of every
other right, as that this particular right is levelled at by the
power exercised in the Sedition Act.
The Resolution next in order is as follows:
"That this State having, by its Convention, which ratified
the Federal Constitution, expressly declared that, among
other essential rights, 'the liberty of conscience and of the
press cannot be cancelled, abridged, restrained, or modified,
by any authority of the United States;' and, from its extreme
anxiety to guard these rights from every 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 reproachful inconsistency, and criminal degeneracy, if an
indifference were now shown 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."
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 ensuing form:
"We, the delegates of the people of Virginia, duly elected
in pursuance of a recommendation from the General Assembly
and now met in Convention, having fully and freely investigated
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 derived
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 cancelled, abridged, restrained,
or modified, by the Congress, by the Senate or
House of Representatives, acting in any capacity, by the
President, or any department or officer of the United States,
except in those instances in which power is given by the
Constitution for those purposes; and that, among other
essential rights, the liberty of conscience and of the press
cannot be cancelled, abridged, restrained, or modified, by
any authority of the United States."
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 Constitution; and in the sense,
particularly, "that among other essential rights, the liberty of
conscience and freedom of the press cannot be cancelled,
abridged, restrained, or modified, by any authority of the
United States."
Words could not well express in a fuller or more forcible
manner the understanding of the Convention, that the liberty
of conscience and the freedom of the press were equally 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 Constitution, proceeded to prefix to certain amendments
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
consequence thereof, and with a view to extend the ground
of public confidence, 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 shown 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 exercise 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.
- 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 Government. Any construction, therefore, that
would attack this original security for the one must have the
like effect on the other. - 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 construction 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. - If it be admitted that the extent of the freedom
of the press secured by the amendment is to be measured by
401the common 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 taken solely as the unwritten, or as varied by the written
law of England. 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, under the limitation that its freedom be not
prohibited.
First.
Secondly.
Thirdly.
Fourthly.
For if Congress may regulate the freedom of the press,
provided 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 regulate 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 proportion as they value the security of the latter, to take
the alarm at every encroachment on the former.
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 the other States, the
truest anxiety for establishing and perpetuating the Union
of all, and the most scrupulous fidelity to that Constitution
which is the pledge of mutual friendship and the instrument
of mutual happiness, the General Assembly doth
in confidence that they will concur with this Commonwealth
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 liberties reserved to 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 Legislature 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
denying 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 on opinion by exciting reflection.
The expositions of the judiciary, 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 judiciary, the latter
continue unchanged.
And if there be no impropriety in declaring the unconstitutionality
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 allowable 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 Legislatures 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 all 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 degree 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
proper measures." A proper object was to be pursued by
means both necessary and proper.
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 Assembly were an example of improper means,
or that there were no proper means to which the terms
could refer.
In the example given by the State of declaring the Alien
and Sedition Acts to be unconstitutional, and of communicating
the declaration to 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 unexceptionable.
It is no less certain, that other means might have been
employed which are strictly within the limits of the Constitution.
The Legislatures of the States might have made a direct
representation to Congress with a view to obtain a rescinding
of the two offensive acts; or they might have represented to
their respective Senators in Congress their wish that two-thirds
thereof would propose an explanatory amendment to the
Constitution; or two-thirds of themselves, if such had been
their option, might, by an application 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 consideration. 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,
added. It cannot be forgotten, that among the arguments
addressed to those who apprehend 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, between the people
and that Government; to the vigilance with which they would
descry the first symptoms of usurpation; and to the 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
Constitution, 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 State. 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 sincerity 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 establishment of
our National Constitution, and in maintaining under it the
authority and laws of the Union, without a single exception
of internal resistence 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 conscientiousness 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
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 respectfully 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 reconsidered
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 Sedition Acts," as palpable
and alarming infractions of the Constitution.
Under date of Philadelphia, February 7, 1799, Walter Jones,
John Nicholas, Carter H. Harrison, Joseph Eggleston, Abraham B.
Venable, and Richard Brent, Republican members of Congress from
Virginia, wrote Madison:
"While the sentiments we entertain of your Talents, your experience
& your Probity, have made your absence from the public councils,
a subject of our very serious regret, our Confidence in the justness
of your Motives assures us, that you stand completely justified.
"At the same time the Growth & conduct of the executive Party,
since your retirement, have continued more & more to render the
Inaction of republican Principles & Talents deplorable & injurious.
"Our extreme Solicitude to give energy to those virtues, in every
possible direction, has urged us jointly to address you. We hope that
obstacles of your serving in the State legislature, may be less imperious,
than those by which you were withdrawn from that of the
Union—it is quite needless to point out to you, the powerful agency of
wise and firm State measures in preserving the general government
within the just Limits of the Constitution, which from the nature of
things, it must be ever struggling to transcend; but our present
position enables us to discover, perhaps more clearly, the perseverance
& success of those struggles.
"We should be wanting in the Social Duties we profess, if we declined
to invite you with earnestness, to take part in the councils of
your State.
"Pretensions founded as yours are, can scarcely fail of success—
our utmost aid, if it shall be in any way applicable, and our ardent
wishes will attend you in the experiment."—Mad. MSS.
Accordingly he consented to go to the House of Delegates and was
elected in the autumn of 1799. Delaware, Rhode Island, Massachusetts,
New York, Connecticut, New Hampshire, and Vermont having
replied to the resolutions in dissent, Madison wrote the report.
TO THOMAS JEFFERSON.
My promise to write to you before your leaving Albemarle was defeated
by a dysenteric attack, which laid me up for about a week,
and which left me ia a state of debility not yet thoroughly removed.
My recovery has been much retarded by the job of preparing a vindication
of the Resolutions of last Session agst the replies of the other
States, and the sophistries from other quarters. The Committee
made their report a few days ago, which is now in the press and stands
the order of the day for thursday next. A set of Resolutions proposed
by Mr. Giles, instructing the Senators to urge the repeal of the unconstl
acts, the disbanding of the army, and a proper arrangement of the
militia, are also in the press, and stand the order of the same day for
the same Committee. It is supposed that both these papers, the latter
perhaps with some modifications, will go through the H. of Delegates.
The Senate, owing to inattention & casualties, is so composed as to
render the event there not a little uncertain. If an election, to fill the
vacancy of Mr. H. Nelson who lately resigned, should send Mr. Andrews
in preference to his competitor Mr. Saunders, I am told that
the parties will be precisely in equilibrio, excepting only one or two
whom circumstances now & then on particular questions, transfer from
the wrong to the right side. It is hoped that this contingent fund of
votes, will be applicable to the Vindication. On other important
questions, there is much less expectation from it. There is a report
here that the Legislature of N. Carolina now in session, have voted
the Resolutions of Virginia under their table. The report is highly improbable,
and I do not believe it. But it is impossible to calculate the
progress of delusion, especially in a State where it is said to be under
systematic management, and where there is so little either of system or
exertion opposed to it. We had a narrow escape yesterday from an
increase of pay to the members, which would have been particularly
unseasonable & injurious both within & without the State. It was
rejected on the third reading by a small majority; and was so much a
favorite, with the distant members particularly, that I fear it has left
them in rather an ill humour.
The late course of foreign events has probably made the same impression
everywhere. If it should not render France less anxious to
meet our advances, its good effects will be felt every way. If our
Executive & their Envoys be sincere in their pacific objects, it will
perhaps supply by their increased anxiety what may be lost on the
other side. But there can be little confidence after what has been
seen, that the negociation would be influenced by this temper of the
Envoys, instead of that which perverted it in the hands of their predecessors.
This possibility of failure in the diplomatic experiment,
will present the most specious obstacle to an immediate discharge of
the army. It would be useful for the Assembly to know how this
matter is viewed where you are. Mr. Dawson will be good eno' to
write me on the subject. I intended to have written to him by this
mail; bat my time has been taken from me till the closing of the mail
is approaching.—Mad. MSS.
TO THOMAS JEFFERSON.
My last covered a copy of the Report on the Resolutions of last
year. I now inclose a copy of certain resolutions moved by Mr. Giles,
to which he means to add an instruction on the subject of the intercourse
law which has been so injurious to the price of Tobo. It is not
improbable that the Resolutions when taken up, may undergo some
mollifications, in the spirit and air of them. The Report has been
under debate for two days. The attacks on it have turned chiefly on
an alleged inconsistency between the comment now made and the
arguments of the last session, and on the right of the Legislature to
interfere in any manner with denunciations of the measures of the
Genl Govt. The first attack has been parried by an amendment admitting
that different constructions may have been entertained
of the term "States" as "parties" &c but that the sense relied
on in the report must be concurred in by all. It is in fact concurred
in by both parties. On examination of the Debates of the last
session, it appears that both were equally inaccurate & inconsistent in
the grounds formerly taken by them. The attack on the right of the
Legislature to interfere by declaration of opinion will form a material
point in the discussion. It is not yet known how far the opposition to
the Report will be carried into detail. The part relating to the Common
law it is said will certainly be combated. You will perceive
from this view of the matter, that it is not possible to guess how long,
we shall be employed on it. There will in the event be a considerable
majority for the Report in the House of Delegates, and a pretty sure
one in the Senate. Can you send me a copy of Priestly's letters last
published.—Mad. MSS.
TO THOMAS JEFFERSON.
Dear Sir,—The question on the Report printed, was decided by 60
for & 40 agst it, the day before yesterday, after a debate of five days.
Yesterday & to-day have been spent on Mr. Giles' propositions, which
with some softenings will probably pass, by nearly the same vote.
The Senate is in rather a better state than was expected. The Debate
turned almost wholly on the right of the Legislature to protest. The
Constitutionality of the Alien & Sedition Acts & of the C. Law was
waived. It was said that the last question would be discussed under
Mr. Giles' propositions; but as yet nothing has been urged in its
favour. It is probable however that the intention has not been laid
aside. I thank you for the pamphlets.—Mad. MSS.
TO THOMAS JEFFERSON.
Dear Sir,—My last informed you of the result of the debates on
the justifying Report of the Select Committee. I am now able to add
that of Mr. Giles's resolutions. The question on the whole was decided
in the affirmative by a little upwards of a hundred against less
than fifty. The vote was rather stronger on some of the particular
resolutions, for example the instruction for disbanding the army.
The alien sedition & Tobacco instructions passed without a count or
a division. That relating to the common law, passed unanimously
with an amendment qualifying it in the words of the paragraph in the
Justifying Report under which certain defined parts of the C. L. are
admitted to be the law of the U. S. This amendment was moved by
the minority on the idea that it covers the doctrine they contend for.
On our side it is considered as a guarded exposition of the powers expressed
in the Constn. and those necessary & proper to carry them
into execution. I am not able to say in what manner they misconstrue
the definition, unless they apply the term "adopt" to the "Court"
which would be equally absurd & unconstitutional. The Judges themselves
will hardly contend that they can adopt a law, that is, make that
law which was before not law. The difference in the majority on the
Report & the resolutions, was occasioned chiefly by the pledge given
agst the former by the members who voted agst the Resolutions of last
year. The resolutions also underwent some improvements, which
reconciled many to them who were not satisfied with their first tone
& form. It is understood that the present assembly is rather stronger
on the republican side than the last one: and that a few favorable
changes have taken place in the course of the session. It is proposed
to introduce to-morrow a bill for a general ticket in chusing the next
Electors. I expect to leave this in a week; so that your subsequent
favors will find me in Orange.
Shew this to Mr. Dawson.—Mad. MSS
TO THOMAS JEFFERSON.
Dear Sir,—Since my last the Senate have agreed to the Report &
the Resolution by 15 to 6. To the latter, they made an amend to the
definition of the portion of C. L. in force in the U. S. by inserting the
words "by Congress" after the word "adopted," in order to repel the
misconstruction which led the minority to concur in that particular
resolution as it passed the H. of D. The amendt was agreed to by 82
to 40. The plan of a Gen1 Ticket was so novel that a great n°. who
wished it shrunk from the vote, and others apprehending that their
Constts would be still more startled at it voted agst it, so that it passed
by a majority of 5 votes only. The event in the Senate is rather
doubtful; tho' it is expected to get thro'. As the avowed object of it
is to give Virga. fair play, I think if passed into a law, it will with proper
explanations become popular. I expect to get away abt the middle
of the week. The Assembly will rise perhaps at the end of it; tho'
possibly not so soon. I forgot to tell you that a renewed effort to
raise the pay of the members to 3 drs. has succeeded; a measure wrong
in principle, and which will be hurtful in its operation. I have desired
Barnes to pay you a balance in his hands, out of which you will
please to pay yourself the balance due to your Nailory.—Mad. MSS.
| The writings of James Madison, | |