IN THE HOUSE OF DELEGATES,
Wednesday, December 19, 1798,
The House resolved itself into a committee of the whole House, on the state of the commonwealth, Mr. Breckenridge in the chair, when Mr. John Taylor's resolutions being still under consideration,
Mr. POPE arose and said, that he was not accustomed to make apologies; but that he looked upon it as necessary, after what he had said before on the subject. He could assure the committee, that what he had said at first, was not intended as a speech; and he had no doubt but that it was so understood by others. The observations were of a ludicrous turn, and intended only as an answer, of that kind, to the gentleman from Prince George's introducing the French into the debate. This he thought not proper; and the object of his former remarks therefore, was to treat it in a ludicrous manner. But on the present occasion, he said, he considered himself as called upon by his colleague. He would speak, therefore, while the thing was fresh. And in order that he might not be mistaken in it, he had noted the substance. He meant not, he said, to go into the subject before them. There had been enough, he thought, in the harvest-field already. He himself would only glean a little. His colleague had said, that he was not instructed: but that if his constituents were so degenerate, or debased, he (Mr. Pope) was not positive which of these terms he had used, but it was no matter which, it was the same thing, as to instruct him to vote for such resolutions as those which had been offered to them by the gentleman from Caroline, he would go into mourning; that in case the resolutions were adopted, it would be, in his opinion, nothing more than the tocsin of rebellion; and in such a case, he would go to some other country to seek an asylum. Mr. Pope then observed, that he would pause to give an opportunity for correction, if he had misstated anything. But as he was not corrected, he said he would proceed to reason from those observations of his colleague. He considered them as applying to himself, being one of those in favour of the resolutions; but still he did not believe the gentleman had intended them as such. He knew him better. However, he said, both that gentleman and the gentleman from Frederic, whose coolness and moderation must be admitted, had sounded the alarm: they had called the resolutions the tocsin of rebellion: they would be drawing the sword as it were, and that we might date the destruction of the liberty of the people from the day on which they passed. He then proceeded to read the resolutions offered by the other side (meaning those offered by Mr. George K. Taylor), and to comment on the language of them. The gentlemen who were in favour of these, he said, displayed boldness. Could they be afraid, then, of the resolutions offered by the gentleman from Caroline. There was something in that he did not understand. He said he must make a deduction from it. The gentlemen surely must be hypochondriac. He compared their case to the conceit of Don Quixote about the windmills; otherwise they could not be alarmed about our having an army of Frenchmen at our doors. His colleague, he said, had observed that we were more equally represented in Congress than in this Assembly. In answer to which, he asked, if the people of New-Hampshire could more equally represent us than the Legislature of this State. He then stated what was the usual language of the eastern people in Congress respecting the Virginians. They were called by them disorganizers, jacobins, &c. He then proceeded to show which of our members in Congress had voted in favour of those laws, and concluded that Mr. Evans was the only one, General Morgan and Mr. Machir, as well as he could recollect, at the time of the passage of the laws, being either at home, or on their way home. So much then, he said, in answer to the observations of his colleague. He then proceeded to answer the observations of the gentleman from Frederic, in regard to the gentleman from Prince George's introducing the French into the debate. The gentleman from Frederic, he said, seemed to disapprove it. He (Mr. Pope) did so too. He could not imagine how the gentleman from Prince George, himself, could think it proper. And how happened it, that this gentleman could not, in the course of his reflections think of Ireland too. But British enormities, he supposed, would not suit his purpose. He then proceeded to enumerate them; and afterwards adverted to the quotations made from Publius, by the gentleman from Frederic, respecting a resort to be made to the people in such a case as the present one. He (Mr. Pope) thought that the Legislatures ought to take up the matter first; and the people only in the last resort. He stated the nature of the bargain made, at the time of adopting the Constitution, which was, that of the people giving up certain rights, and reserving the rest to themselves. This, he said, was proved by the twelfth amendment, which he read. He then observed that the greater part of the Constitution extended to the prohibiting of powers to the States. This amendatory clause, therefore, reserved to them what was not prohibited. He then read the resolution offered by Mr. Brooke, and observed, that the gentleman from Frederic had also acknowledged the people's right to assemble. But how did that right stand? The article securing it, he said, was invaded. He stated an instance of his receiving a wound in his left breast; in such case he would be less able to protect himself from receiving a wound in the right breast, or elsewhere. This he compared to the case of the clause above referred to, and declared that our most important rights, secured by that clause, were destroyed. Of what account then would be the right of petitioning? If they were to lose the resolutions offered by the gentleman from Caroline, he said, he would pronounce our liberty to be gone. But whenever that was mentioned, he observed, that many of the members on the other side would frown and spurn at it. He then made several contemplative observations upon the consequences of our rights being destroyed, and afterwards observed, that he would recur to that part of the speech of the gentleman from Prince George, in which he had introduced the goddess of liberty; upon which Mr. Pope concluded his observations in the following words: "Methinks I heard that gentleman say to this fair goddess, by your name we aroused the American people to oppose the tyranny of Great Britain! By your name we brought into the field large armies! By your name we drove from our country the mercenary troops of George III. and established our independence! We have now no further use for you: we only meant to change men, not measures."
Mr. DANIEL said, that he stood up to express that opinion, which his feelings and his judgment compelled him to render on this occasion. He said, he did not natter himself, that he should be able to afford any considerable aid to the discussion, or to give very material information to the committee. But the importance of the question, and the solemnity of the appeal, which had been made by the people to the Assembly, in his opinion, required a liberal discussion to be had; that the subject, being contemplated in various points of view, might be the belter understood. He should therefore beg the indulgence of the committee, while he took a short view of the subject. In doing this, he said he should follow the track which had been led by the gentlemen opposed to the resolutions before the committee, beginning with the "alien-act" so called; and first, with an examination of the arguments of the gentlemen from Prince George and Frederic. He said, it must have been observed, that in the progress of their observations, these gentlemen had assumed three principles, which could not be yielded to them, to wit: that the government of the United States was a consolidated government, that the doctrine of implication supplied it with all necessary powers, and that the necessity and expediency of any measure authorized its adoption. These principles, he said, were assumed in aid and maintenance of their arguments, although they were not stated in express terms. But it would be easy to show, that the government was not a consolidated government in principle, however it might be in practice; that the doctrine of implication could not extend the powers of government beyond the specific grant of the Constitution; and that no necessity or expediency ought to authorize a violation of the Constitution.
The Constitution of the United States, he said, was a deputation of power from the several States, for the purposes of a Federal Government; wherein the several states were sovereign and independent as to powers not granted, and the Federal Government sovereign and independent as to those powers which were granted. The doctrine of implication could not increase the powers of the Federal Government, but could only go, as it was expressed by the Constitution, to authorize it to make such laws as might be necessary to carry the powers granted into effect. Having premised these things, he proceeded to examine the arguments which had been urged in favour of the " alien-act."
The gentleman from Prince George, he said, prefaced his observations on this subject, by saying that this was an act of the Congress of the United States, in which were combined the wisdom and deliberation of all America; that the determination of this combined wisdom and deliberation, was the strongest evidence of the constitutionality of the act, and that it was therefore dangerous for us to interfere on this subject. Mr. Daniel hoped this mode of reasoning would make no impression on the committee. He said, it was an argument that would equally apply to every possible measure of the Federal Government; and by this rule, any act of the government, however palpably violating the Constitution, and prostrating the rights and liberties of the people, might be maintained. It might be said of every act, that the combined wisdom and deliberation of Congress had sanctioned it.
The objections which that gentleman made to the mode of remonstrance adopted by the resolutions, he said, had already been so handsomely and conclusively answered by a worthy member, (Mr. Mercer,) who preceded him in this discussion, that there was no necessity for him to give them any attention.
The same gentleman, he said, in maintaining the constitutionality of the "alien-act," had observed, that aliens had those rights only in the United States, which they have in other countries by the law of nations; and produced Vattel to show, that the sovereign of any nation had a right to prohibit the entrance of strangers into its territory; to prescribe the condition upon which they may enter; to command their departure when necessary; in short, that it was matter of grace, and not of right, that strangers were suffered to enter the territories of any nation.
If this doctrine, said Mr. Daniel, be admitted true in the extent in which the worthy member quoted it, it was easily seen and could not be overlooked, that the authority applied to a consolidated government, where there was but one sovereign of the nation; but it could not apply to the United States, where there exist the several sovereignties of the state governments, and the sovereignty of the Federal Government: of the state governments, as to powers not granted: of the Federal Government, as to powers which are granted in the Federal Constitution.
But, said Mr. Daniel, this power over strangers, resulting from the right of domain to every nation, and which every independent nation will exercise, does rest somewhere among the American people. It remained, then, to be inquired, where this power was lodged in the distribution of powers among the several sovereignties which existed in the United States, in the manner which he had before stated? The Constitution, he said, gave the answer. By section ninth, article first, it was declared, that "the migration or importation of such persons as any of the states now existing, shall think proper to admit, shall not be prohibited by the Congress, prior to the year 1808." Thus the power of admitting aliens into its territory, was left to the several states, respectively. It followed then, that each state had the right to prescribe the terms and conditions upon which aliens should be admitted, and was the judge when those terms and conditions were violated. Aliens, said he, are admitted into the territory of a nation or state, upon certain conditions. They could not therefore, be sent off, or commanded to depart, without injustice, so long as they observed the conditions upon which they were admitted. That power, which was the sovereign judge of the propriety of admitting aliens into its territory, must be the sovereign judge of the necessity and justice of sending them away. This necessity and justice could not exist, so long as the conditions, upon which they were admitted, remained unbroken. Each state had this power over its respective territory, by the clause of the Constitution which he had just recited. Each state, said he, was therefore, the sovereign judge of the propriety and justice of commanding aliens and strangers to depart from the limits of its respective territory.
But, said he, the gentlemen contend, that this article of the Constitution cannot apply; and here they differ in their construction; the gentleman from Frederic maintaining, that this clause related only to the importation of slaves; the gentleman from Prince George insisting, that this clause does only secure to the states the right of admitting aliens, but does not declare that Congress shall not have power to send them away. He said he would examine the objections as they stood in order. With respect to the opinion of the member from Frederic, (Mr. Magill,) the words of the clause, "migration or importation," were, from their very terms, a sufficient refutation: and he believed, if they were to seek the reason why this clause was inserted in the Constitution, they should find, that the Southern States insisted upon it, not only to secure their right of continuing the abominable slave-trade, but that they might also have it in their power to encourage and effect the settlement of their back lands. The gentleman, he said, had urged no reason of his own, in support of the opinion which he gave, but read to the committee parts of the speeches of Mr. Mason and Mr. Madison, delivered in the Virginia convention, when the Constitution was under discussion. But, said Mr. Daniel, when this document was examined, it would be found that those gentlemen, in the parts of their speeches to which the worthy member referred, did simply state, that the right of continuing the slave-trade was secured by this clause to the Southern States, and that they did not advance any sentiment or idea, which could, in the remotest degree, maintain the opinion, that this clause related to the "importation of slaves only, and did not relate to the migration" of aliens into the several states.
With respect to the objection of the member from Prince George, (Mr. G. K. Taylor,) that although this clause secured the right of admitting aliens to the several states, yet it did not deny the right of Congress to send them away, it might be observed, that the objection itself admits the sovereign power of the states to permit strangers to enter their respective territories. He said he had before endeavoured to prove that this power involved, necessarily, the rights of prescribing the conditions upon which aliens might enter, and of controlling them after they had entered the territory of any particular state. But to meet the objection more pointedly, he would take a view of the powers of any particular state, unconnected with and separated from the other states. Virginia, for instance, independent of her federation and union with the other states, would be completely sovereign, and have all possible power and right on this subject to admit aliens into her territory, and to control and send them away at pleasure, regarding only the rules prescribed by the law of nations. He would now ask what power and right Virginia had given up on this subject, in her connexion with the other states, by the Federal Constitution? It was yielded by the gentleman that she had power and right to admit aliens into her territory. He again demanded, had she granted the power and right of sending them away, to the general government? But, said he, it is declared by the twelfth amendment to the Constitution, that "the powers not delegated to the states by the Constitution, nor prohibited by it to the United States, are reserved to the states respectively, or to the people;" therefore, he insisted, this power of sending away aliens from the territories of the particular states, not being delegated to the United State's by the Constitution, remained with Virginia, as it respected the limits of her own particular territory. But, said the gentleman from Prince George, Mr. Daniel continued, this article of the amendments must be understood that whatever is not expressly reserved to the states is given up to the Federal Government, if necessary. Besides the perversion of the plain meaning of this article, by this construction, said Mr. Daniel, the gentleman should have remembered that he stated in his argument that a construction which leads to absurdity was not true. This construction would make this article of the amendments answer no purpose; it was, therefore, he joined with the gentleman, absurd and untrue.
The powers of the federal government being expressly defined, " it was true as a general principle," that powers not granted were retained by the states, said Mr. Daniel; but so jealous were they of their rights, and so fearful of the greedy doctrine of implication, that this amendment was recommended and annexed to the Constitution, for the purposes of security and safety.
The gentlemen, he said, finding it impossible to maintain their ground by the aid of any clause of the Constitution, wherein power was expressly delegated, had sought the assistance of several general phrases and expressions, such as, "to provide for the general welfare," " to repel invasions," "to make laws necessary to carry the foregoing powers into effect," by which they endeavoured to maintain that the general government has other powers than those expressly given by, and enumerated in the Constitution, and unlimited power as to all subjects of a general nature. If this be true, said he, if these general expressions and clauses give general and unlimited power, the special enumeration of power in the Constitution was absurd and useless. Those sage and patriotic politicians who formed the federal plan of government, puzzled themselves to no purpose in defining, enumerating, and limiting power: they had nothing to do but to organize the government; say there should be an executive, judicial, and legislative body; prescribe the mode in which the members of the several departments should be brought into office; and declare that "they should have power to provide for the general welfare." This would be precisely such a Constitution as gentlemen contended was our Federal Constitution, in which the powers of the several branches of the government were so specially enumerated, limited, and defined. And it was, Mr. Daniel said, a wilful and studied design that misapplied these general terms and clauses of the Constitution, for they are necessarily explained by the special grants of power: they must be understood, that "Congress shall provide for the general welfare," according to the Constitution of the United States, and the powers therein granted. "Congress may repel invasions," according to the Constitution, and the powers therein granted. "Congress shall have power to make all laws which shall be necessary and proper for carrying into execution the foregoing enumerated powers:" not to increase and extend their authority, but to carry into effect those powers which are enumerated in the Constitution.
He said, he presumed enough had been said in answer to the gentleman's arguments in favour of the rightful power of Congress to legislate on this subject: he would now proceed to examine the arguments which had been urged with an intent to maintain the opinion that the "trial by jury" was not violated by the "alien-act." The gentleman from Prince George had said, that aliens were not entitled to a trial by jury, because they were not parties to the Constitution, were under no obligations to the government, and that no duties could be demanded of them. That citizens alone had a right to a trial by jury, because they were parties to the Constitution, which secured that right, and on account of their obligations and duties to the government.
Mr. Daniel said, if the worthy member had been as attentive to the authority of Vattel on this point, as he was when he hoped to draw something from it to support him, he would have found the reverse of almost everything he stated relative to aliens, to be true; he would have found that they had rights to be protected, and duties and obligations to discharge; that they were bound to obey the general laws of the land, and that they a right to be tried according to the general laws of the land. He would have found that, "in countries where a stranger may freely enter, (as in this,) the sovereign is supposed to allow him access only upon this condition, that he be subject to the laws, I mean the general laws made to maintain good order, and which have no relation to the title of citizen or subject of the slate. The public safety, the rights of the nation, and of the prince, necessarily require this condition; and the stranger tacitly submits to it as soon as he enters the country, as he cannot presume upon having access upon any other footing. The empire has the right of command in the whole country, and the laws are not confined to regulating the citizens among themselves, but they determine what ought to be observed by all orders of people throughout the whole extent of the state. In virtue of this submission, the strangers who commit a fault, ought to be punished according to the laws of the country." Vattel, book 2d, chap. viii. p. 267, sect. 101 and 103. And again, page 268, section 104, he would have found that, "the sovereign ought not to grant an entrance into his state to make strangers fall into a snare: as soon as he receives them he engages to protect them as his own subjects, and to make them enjoy, as much as depends on him, an entire security," according to the general laws of the land. He trusted that the committee were sufficiently satisfied that aliens have rights which are under the protection of the laws of that state wherein they reside; that they have duties and obligations to discharge to that state, and that if they commit a fault, they have a right to be tried and punished according to the general laws of that state. The worthy member from Prince George, as if he foresaw his defeat on this ground, took refuge under that clause of the "alien-act," which provides that "an alien may prove the falsity of the charge." Mere mockery of justice, said he, to prove the falsity of suspicion! Prove the falsity of being suspected of what he did not know, of what he was not informed! There was no rule established, by observing which he could avoid suspicion: there was no rule directing what shall be done, and what shall be avoided by the alien: he could only know that it was dangerous for him to become suspected by the President of what he did not know, and that he might, if he could, prove the falsity of a suspicion to which some conduct of his, but what particular conduct he could not tell, may have given birth. He then observed, that the same gentleman, quitting all constitutional principles, appealed to the doctrine of necessity, and insisted that it was absolutely necessary to compel dangerous aliens to depart from our country, and that the President of the United States ought to be authorized to enforce their departure. But, Mr. Daniel said, he would insist that some rule should be established, instead of the bare suspicion, to decide who were, and who were not, dangerous aliens.
He should require proof, that the Constitution authorized Congress to invest the President with such a power; this had not been shown, it could not be shown. He contended, therefore, that this power was lodged in the several states respectively, and wisely lodged. For, in case of emergency, each state had it in its power to act immediately, before the President could be informed of the danger. The authority of each state was always at band; could be immediately applied to, and would be readily inclined to take efficient measures for the safety of its citizens. The member from Prince George, he said, had observed, that such a provision as the one marked by the alien-act was necessary to guard against the French and their intrigues. If so, he said, the states were competent to make the provision. He believed they were as much disposed as any other body would be, to adopt all necessary and constitutional measures. He hoped, that Virginia had virtue and patriotism sufficient to view with indignation, and to suppress with vigour, any intrigues of a dangerous nature, whether meditated by France or any other nation. But, in adopting such a measure, he wished to observe the laws of nations. He could not consent, under the pretence of guarding against aliens, who were citizens of France, to violate the rights of other aliens among us, who might be citizens of any other nation. He contended, that the alien-act was general, and equally applied to all aliens, whether citizens of France, or subjects of another power. He stated a case from the law of nations, to prove that such a regulation, if made at all, should be particularly directed against the citizens or subjects of that nation from whom danger is apprehended.
The member from Prince George, he said, had read a clause from the Virginia laws, which he assimilated to the alien-act passed by Congress, and from which he argued the right of Congress to pass the law in question. He requested that the law might again be read. (It was accordingly read by the clerk in the following words: "It shall and may be lawful for the Governor, with the advice of the Council of State, to apprehend and secure, or cause to be apprehended and secured, or compelled to depart this commonwealth, all suspicious persons, being the subjects of any foreign power or state, who shall have made a declaration of war against the said states, or from whom the President of the United States shall apprehend hostile designs against the said states, provided information thereof shall have been previously received by the executive from him.") Mr. Daniel then said, that the law which had been read, pursued the law of nations; and clearly recognised the distinction which he had before laid down, that it did not authorize the Governor to apprehend and send away all aliens whom he might suspect; but such suspicious aliens only whose nation was at war with these states, or from whose nation, hostilities were apprehended. That this law was not general, but particularly directed against those aliens, whose nation was at war with this country, or from whose nation there were reasons to expect war. That this law, instead of furnishing an argument in favour of the right of Congress to pass the law in question, was a strong proof that the legislature of Virginia, at the time of its passage, entertained the opinion, that the power to regulate this subject belonged to the state. He said, it was remarkable that the gentleman from Prince George, on this occasion, following the example of the present administration, had indulged himself in declamation against the intrigues of the French nation; had inveighed with the utmost bitterness, against their policy and injustice; had threatened us with the horrors of another St. Domingo, that our slaves would be let loose upon us; that our wives, our daughters, our sisters, would be forced into the rude embraces of the ruthless negro, who would butcher them before our eyes, immediately after having satisfied his lustful appetite. Mr. Daniel said, this language was addressed to the feelings and passions, and not to the understanding of the committee. For his part, he should consider the subject upon principle. To the intrigues of France he opposed the virtue and patriotism of our citizens in general; the vigilance and activity of our officers and magistrates; and the wisdom of the state legislature to observe all necessary measures, an evidence of which was seen in the law which had been read. That invectives against France could not prove the constitutionality of the law in question. That if they were intended to excite the indignation of the committee against that republic, the gentleman had spent his time in vain; for that the injustice and rapacity of that nation, without the aid. of the gentleman's elocution, had already inflamed the mind of every member into bitterness and resentment. But, amid this universal glow of indignant feelings, he wished to see our glorious Constitutions saved inviolate. Secure me in this point, said Mr. Daniel; save the Constitutions of my country from innovation and violence, and I will join hands with the gentleman, and swear eternal enmity to France, and all other nations of the earth, who shall be hostile to the liberty and independence of the United States. But, said he, it would seem as if the injustice of France to other nations; her base attack upon our neutral rights, and undefended, unoffending commerce, had so affrighted gentlemen, that they were ready to abandon those principles which were once so dear to all America. Inglorious sons, however, were they, who for distant and feeble alarms would forsake those principles and those rights which our forefathers sought at every hazard, and maintained amidst the threatening ruin of war and bloodshed. In vain, said he, are we told that the French government is a military despotism, which proscribes the liberty of the press, and carries its measures by force of the bayonet! It cannot reconcile us to like measures in the United States. It cannot reconcile us to a sedition-law and to a standing army, which will probably produce the same miserable effects here, as they have done in France. It cannot prove to us the constitutionality of the acts in question.
He said, before he took leave of this part of the subject, he would take notice of a charge which had been made by the gentleman from Frederic, against those who advocated the resolutions, that they addressed arguments to the humanity of the committee. He would reply, that the opposers of the resolutions addressed arguments to the fears of the committee; that admitting the charge to be true, (which was by no means the case,) it was much more honourable, both for those who make the address, and those who are addressed, that application be made to the feelings of humanity, rather than to those which are excited by fear and alarm. That the gentleman, himself, had threatened us with confusion and darkness, and foreboded the hasty setting of the sun of American glory, if we adopted the resolutions; and his coadjutor from Prince George had invaded our country with a French army, and slaughtered our best and dearest friends before our eyes. This mode of argument, however unfair, was by no means novel. When our gallant forefathers conceived the mighty design of declaring the American world independent and free, the same doctrine of terror and alarm, of dangers from abroad, and mischiefs and ruin incalculable within, was pressed and repeated. But, resting firm on principle, they steadily pursued truth, and achieved ihe glorious deed of American independence. As then, so now, he hoped, this doctrine of terrorism would make no impression; but that the committee would consider the subject upon principle, and determine upon its merits.
Mr. Daniel observed, that in the course of the observations which he had made, to obviate exceptions which gentlemen had taken to the resolutions proposed, it was to be discovered, that his principal objections to the " alien-act" were, that it violated the sovereignty of the state governments; that it blended legislative, executive, and judicial powers; that it violated the right of trial by jury, contrary to the Constitution.
With respect to the first objection, he had shown by the foregoing arguments, that the state governments were sovereign as to those powers not granted to Congress, and this subject, not only not being granted, but prohibited Congress by the ninth section, first article of the Constitution, it followed, that as to this subject, the states were severally sovereign; and that any attempt by Congress to legislate on this subject, within the limits of any particular state, was an attack upon the sovereignty thereof.
As to the second objection, that the alien-act blended legislative, judicial, and executive powers, it might be observed, that legislative power is the authority to prescribe a rule of conduct: this rule is the act of the legislative power, declaring what shall be done, and what shall be avoided. The "alien-act," said Mr. Daniel, does not declare what the alien shall do, and what he shall avoid: it docs not declare a rule of conduct, which he can know and observe: the President has the power to prescribe this rule of conduct for the alien, by bringing him to the bar of suspicion, if he does not observe a line of conduct, which, not being designated by the "alien-act," is only known and subject to the President's will. But to declare this rule of conduct is a legislative act; the President, by this law, has effectually the right to prescribe this rule: therefore, he contended, that the President was invested with effectual legislative power. He certainly had the power to judge when the alien came within the rule prescribed by his suspicion: and in this, as in all other cases, he was invested with executive power. Thus in one person, contrary to the Constitution, was to be seen the lawgiver, judge, and executioner.
With regard to the third objection, that the "alien-act" infringed the right of trial by jury, he referred the committee to the seventh article of the amendments to the Constitution, where it is found, that "no person shall be deprived of his life, liberty, or property, without due process of law." He contended, that an alien was a person, who had rights of life, liberty, and property, and was therefore within the provision of this part of the Constitution. He had before shown, that by the law of nations, an alien had the right of being tried according to the general laws of the land. It was here evident, that an alien was a person who could not be deprived of his "liberty" without due process of law. It remained then to be inquired what was this "due process of law?" This "due process of law," he said, was to be found in the seventh and eighth articles of the amendments to the Constitution, that "no person shall be held to answer an accusation, unless on a presentment or indictment by a grand jury;" that "the accused shall enjoy the right to a speedy and public trial by an impartial jury, of the state and district wherein the crime shall have been committed; to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favour; and to have the assistance of counsel for his defence." This mode of trial pointed out by the Constitution, this "due process of law," was disregarded, and entirely abolished by the "alien-act." Having taken this short view of the alien-act, he said he would proceed to consider the "sedition-law," as it was commonly termed. He could have wished that gentlemen had given their opinions freely on this subject. The gentleman from Prince George, he said, had given some apology why he declined the discussion:
he had committed himself a day or two past, by declaring that the sedition-law was already sufficiently odious. It was, therefore, Mr. Daniel said, he supposed the gentlemen thought it best not to meddle with it. He would receive the gentleman's apology, and proceed to examine the law, according to his own ideas on the subject, in which he would occasionally take notice of what the gentleman from Frederic had urged.
He stated that the acts enumerated in the first section of the sedition-law, as offences to be punished with heavy fines and long imprisonment, were " to combine or conspire together with intent to oppose any measure, or to impede the operation of any law of the United States," or to intimidate any officer under the government of the same, from undertaking, performing, or executing his trust or duty; or to counsel, advise, or attempt to procure any insurrection, riot, unlawful assembly, or combination, whether such counsel or advice had effect or not. The offences enumerated in the second section of said law, he said, were, "to write, print, utter, or publish, or to cause the same to be done, or to aid in writing, printing, uttering, or publishing, any false writings against the government, the President, or either house of the Congress of the United States, with intent to defame the government, either house of Congress, or the President, or to bring them, or either of them, into disrepute; or to excite against them, or either of them, the hatred of the people; or to excite any unlawful combination, for opposing any law, or act of the President of the United States, or to defeat any such law or act." These were the provisions of the act. The provisions of the Constitution were, "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 of the right of the people peaceably to assemble, and to petition the government for a redress of grievances." Third article of amendments to the Constitution. He requested gentlemen to read the one and the other; to compare them, and to reconcile them if possible. He was one of those who believed, that the first clause of the law would, in its operation, effectually destroy the liberty of speech; and the second clause did most completely annihilate the freedom of the press. "To combine, conspire, counsel, and advise together" was a natural right of self-defence, belonging to the people; it could only be exercised by the use of speech; it was a right of self-defence against the tyranny and oppression of government; it ought to be exercised with great caution; and never, but upon occasions of extreme necessity. Of this necessity, the people are the only judges. For if government could control this right; if government were the judge, when the necessity of exercising this right has arrived, the right never will be used; for government never will judge that the people ought to oppose its measures, however unjust, however tyrannical and despotically oppressive. This right, although subject to abuse, like many other invaluable rights, was nevertheless essential to, and inseparable from the liberties of the people. The warmest friend of any government would not contend that it was infallible. The best of governments may possibly change into tyranny and despotism. Measures may be adopted violating the Constitution, and prostrating the rights and principles of the people. He hoped never to see the time; but, if it should so happen, no man would deny but that such measures ought to be opposed. But, he would ask, how they could be effectually opposed, without the people should "combine, conspire, counsel, and advise" together? One man could do nothing. This right of adopting the only efficient plan of opposition to unconstitutional, oppressive, and tyrannical measures, whenever they should occur, he hoped never would be given up. This right had been well exercised on a former occasion against England; and it would probably be well used again, if our liberties were sufficiently endangered, to call forth its exertion. But fur the spirited and energetic exercise of this right; but for the "combining, conspiring, counselling, and advising" together of the American people, these United States, now independent and free, would have remained under the tyrannical and despotic domination of the British king. It had been said, that this doctrine leads to anarchy and confusion; but, said Mr. Daniel, this doctrine gave birth and success to our revolution; secured our present liberty, and the privileges consequent thereupon. The contrary doctrine, said Mr. Daniel, leads to passive obedience and non-resistance, to tyranny and oppression, more certain and more dangerous. If a measure was unpopular, and should give discontent, it would be discussed: if it should thereupon be found to be tolerable, it would be acquiesced in. If, on the contrary, measures should be adopted of such dangerous and destructive tendency, that they ought to be opposed, he would ask, how this could be done but by the means which are forbidden in the first section of the law in question? These were the only means by which liberty, once trampled down by tyrants and despots, could be reinstated: and if the general government continued its rapid progress of violating the Constitution, and infringing the liberties of the people, the time he feared was hastening on, when the people would find it necessary again, to exercise this natural right of defence.
Mr. Daniel said he would now turn his attention to that part of the law which affects the freedom of the press, in which the Constitution was most palpably, and most dangerously infringed. On this subject, he said, the gentleman from Frederic had contended, that the Constitution was not violated; that the common law was a part of the Constitution; and that the offences enumerated in the act, were always punishable at common law. If this be the fact, said Mr. Daniel, the law in question is nugatory; and the clause of the Constitution on this subject, which had been read, was of no effect. By the gentleman's common law, which he had read, offences against the king and his government, were precisely such as were enumerated as offences in this law, against the President and government of the United States; substituting the word "President," in the latter case, for the word "king," in the former. These offences might be "by speaking, or writing against them; or wishing him (the king in England, and the President in America,) ill, giving out scandalous stories concerning them (the King and his government in England, and the President and his government in America,) or doing anything that may tend to lessen him (the King, or President, as the case may be) in the esteem of his subjects; weaken the government, or raise jealousies among the people." (4 Blackstone's Commentaries, page 123.) When our "sedition law" was so like the law of England, he did not wonder that the gentleman had supposed that the law of England was in force here; one being the copy of the other, with the necessary change of names, and some other trivial circumstances ; nor did he wonder that the gentleman should say, in conformity to that authority, that "the liberty of the press, properly understood, is by no means infringed or violated" by such regulations, "but consists in laying no previous restraints upon publications;" and is otherwise "licentiousness," (4 Blackstone, p. 151;) that a printer may publish what he pleases, but roust answer the consequence, if a certain set of men shall adjudge his writings to contain "dangerous and licentious sentiments." If this be true, he said, he would be glad to be informed for what purpose was it declared by the Constitution, that "the freedom of the press should not be restrained;" and how we were more free in the United States, than the people of any other nation whatsoever? The most oppressed of Europe; the slaves and subjects of the most despotic power on the earth, he said, had the right to speak, write, and print whatever they pleased, but were liable to be punished afterwards, if they spoke, wrote, or printed anything that was offensive to the government: that there was very little difference as to the liberty of the press, whether the restraints imposed were "previous" or subsequent to publications. If the press was subjected to a political licenser, the discretion of the printer would be taken away, and with it his responsibility; and nothing would be printed but what was agreeable to the political opinions of a certain set of men; whereas subsequent restraints have the same operation, by saying, if you do " write, print, utter, or publish," anything contrary to the political opinions, reputation or principles of certain men, you shall be fined and imprisoned. In vain, he said, were we told that the accused may prove the truth of his writings or printing, and that we are only forbidden to write or print false facts. The truth was that it was not the facts, but the deductions and conclusions drawn from certain facts, which would constitute the offence. If a man was to write and publish that the Congress of the United States had passed the "alien and sedition acts," that the provisions of the said acts were in these words, reciting the laws as they are; that the Constitution was in these words, reciting the provisions of the Constitution truly; and conclude that the said acts violated the Constitution; that the Congress and the President, in enacting the same, had assumed powers not granted to them, and had encroached upon the liberties of the people, who ought to take measures " to defeat" these laws, and this "act of the President." Here the facts stated, that the laws had been passed, and that the Constitution was in terms stated, could be proved, and would not constitute the offence, but the inference from these facts, that the Congress, in enacting the said laws, had violated the Constitution, assumed powers not delegated to them, and usurped the rights and liberties of the people, in which usurpation the President had joined, would certainly have a tendency "to defame the government, the Congress, and the President, and to bring them into disrepute and hatred among the people," and would therefore constitute the offence. The inference or conclusion from certain facts might be true or not, and was mere matter of opinion. It was opinion then, political opinion, which was the real object of punishment. The deduction made from the facts just stated, he said, was in his opinion true; the consequence of which was, that the Congress and President of the United States had not his confidence; with him they were in "disrepute." But he could not prove that the opinion was true, as a fact; he could offer those reasons which convinced his mind of its truth, but they might not be satisfactory to a jury summoned with a special regard to their political opinions, or to a judge of the United States, most of whom Bad already pronounced their opinion on the subject, either in pamphlets, or political instead of legal charges to the grand juries of the several circuits of the United States; thus prejudging a constitutional question, which they knew would be made, if ever the law was attempted to be carried into effect.
He said he would state one more case to exemplify his opinion. If at the time of British oppressions, when the parliament of England boldly implied the right to make laws for, and to tax the American people, without representation, any man had by writing maintained that representation and taxation were inseparable, and that it was an usurpation and assumption of power by parliament to impose taxes on the American colonies, who were not represented in parliament, the fact here stated would not offend, because true; but the conclusion, the charge of usurpation, made upon the British government, would certainly have a tendency to bring it into "disrepute and hatred" among the people, as it did most effectually in America, and would have constituted the offence. This opinion, though now clearly admitted to be true, was then new, and could not be proven true to an English judge and jury, for they were so impressed with its falsity, that the nation undertook and carried on a bloody and expensive war, to correct its error. He concluded that the provisions of this act abridged and infringed the liberty of the press, which at the time of the adoption of the Constitution had no other restraint than the responsibility of the author to the individual who might be injured by his writing or printing; that they destroyed all inquiry into political motives, silenced scrutiny, weakened the responsibility of public servants, and established political and executive infallibility; that the solicitude discovered by the government to defend itself against the attacks of its own citizens, was an evidence that its acts would not deserve their confidence and esteem; that the solicitude thus expressed by threats of fine and imprisonment, to keep the President for the time being, from coming "into disrepute," was evidence of a fear that a comparison of motives and views would prove favourable to his competitor, and was calculated to keep the real merits of competition out of view, inasmuch as the merits of one of the proposed candidates could not be insisted on to advantage, without exposing the demerits of the other, which would tend to bring him "into disrepute." And if the one to whom the want of merit should be ascribed, should be President for the time being, thus to bring him into "disrepute," would be to bring the person discussing the subject into the pains of fine and imprisonment.
It had been contended, said Mr. Daniel, by the gentleman from Frederic, that the adoption of the resolutions would be an infringement of the right of the people to petition. He, Mr. Daniel, would state, that this right might be exercised by an individual, by an assemblage of individuals, or by the representatives of the people; which last mode was preferable, when the sovereignty of the state, as well as the appropriate rights of the people were attacked, as in the present case. He conceived, however, that the law in question had very much abridged the right of the people to petition and remonstrate. The necessity and propriety of petitions and remonstrances could not bo seen but by discussion: the right itself could not be effectually used, without "counselling and advising together." Three or more persons would constitute an "unlawful assembly;" for it would be easily said, that they were unlawfully assembled, when they intended, by discussing certain acts of the President, or laws of the government, "to defeat" the same, by inducing the people to petition and remonstrate; or if the same were not defeated, by virtue of such petition and remonstrance, to bring the government and President into " disrepute," for continuing such acts and laws in operation, against which the people had petitioned and remonstrated. But those things being offences, and so enumerated in one clause of the law, an assembly of three or more persons, contemplating the objects just described, would be " unlawful," within the purview of the act, and subject to fine and imprisonment. Again, he said, the dangerous and ruinous tendency of certain measures, might not be observed by the people of any particular district. A few, however, might wish a petition to be made, to remove the grievance of the measures; in order to which, they would individually address the district by writing, in which they would expose and censure the evil tendency of the said measures, to excite the people to petition and remonstrate, "to defeat" the same, or necessarily to bring the friends of the continuance thereof into " disrepute." This would be an offence within the purview of the second clause of the law. Thus, said he, by one act we have seen, that that clause of the Constitution, which secures the right of speech, of the press, of petition, of the free exercise of religious opinion to the people, is prostrated in every respect, except as it relates to religion. And this last and most invaluable right, he had no doubt would soon be invaded, inasmuch as he had been informed, that the friends of the present measures had already begun to insinuate, that an "established church was one of the strongest props to government;" and inasmuch, that the same reasons might be urged in its favour, as in favour of the abridgment of the liberty of the press. But it was said, that the press was still left free to print truth: "its licentiousness and abuse" are only forbid. So it might be said of religion: true religion only ought to be tolerated: the abuse of religion ought to be forbidden: the "licentiousness" of particular sectaries ought to be restrained.
He said, he was fearful that he had already trespassed upon the patience of the committee, and he would hasten to a conclusion, with a few remarks on the particular shape and address of the resolutions. It had been objected by gentlemen, that it was going too far to declare the acts in question, to be " no law, null, void, and of no effect:" that it was sufficient to say they were unconstitutional. He said, if they were unconstitutional, it followed necessarily that they were" not law, but null, void, and of no effect." But, if those particular words were offensive to gentlemen he had no objection to any modification, so the principle were retained. As to the objection, that they were improperly addressed to the other states, Mr. Daniel said, he supposed that this mode was extremely eligible. If the other states think with this, that the laws are unconstitutional, the laws will be repealed, and the constitutional question will be settled by this declaration of a majority of the states: thereby destroying the force of this precedent, and precluding from any future Congress, who might be disposed to carry the principle to a more pernicious and ruinous extent, the force of any argument which might be derived from these laws. If, on the contrary, a sufficient majority of the states should declare their opinion, that the Constitution gave Congress authority to pass these laws, the constitutional question would still be settled; but an attempt might be made so to amend the Constitution, as to take from Congress this authority, which in our opinion was so pernicious and dangerous.
He then concluded by saying, that something must be done: the people were not satisfied: they expected that this Legislature would adopt some measure on this subject: that the Constitution of the United States was the basis of public tranquillity; the pledge of the sovereignty of the states, and of the liberties of the people. But, said he, this basis of public tranquillity, this pledge of liberty and security is but a name, a mere phantom, unless it be strictly observed. It became our duty to watch attentively, to see that it was not violated; to see that it was equally observed by those who govern, and by those who are destined to obey. To attack the Constitution was an offence against society; and if those guilty of it were invested with authority, they added to the offence a perfidious abuse of the power with which they were intrusted. It was our duly, said he, to suppress this abuse with our utmost vigour and vigilance. It was strange to see a free Constitution openly and boldly attacked by those who were put in power under it. It was generally by silent and slow attacks, that free governments had progressively changed, till very little of their original texture and principles remained: that the doctrine of implication had introduced innovations, under the influence and operation of which, the freest governments had been enslaved. It was our duty to guard against innovations. The people of Virginia had been attentive to this subject. The petitions and remonstrances, which had been read to the committee, proved that the people were seriously alarmed at the innovations of the Federal Government. He said they proved more: they proved that the people thought that their servants, in the administration of the Federal Government, were not even modest enough to wait the increase of their power by progressive change. That their ambition exceeded the resources of the doctrine of implication: that their thirst of power could not be satiated, but by a direct attack upon the Constitution, and a prostration of the great rights of the people. He said, this apprehension of the people, which he thought just, would be satisfied. He thought the mode proposed by the resolutions was most likely to effect this purpose, as well as other important purposes. He said, if they who were the representatives of the people, would not act for them when called upon, the people will speak for themselves; and as the voice of God, they would be heard. He hoped this final and dreadful appeal would never be necessary. He preferred the resolutions, and hoped they would be adopted by the committee.
Mr. CURETON arose next, and said, that he wished to make some few observations. He confessed, that he had before had some doubt about the alien-law; but that the gentleman last up had convinced him of the propriety of it, and was proceeding to show how, but observed, that as the committee appeared to be impatient, he would not trouble them any longer, and therefore moved that the committee should rise, but upon General Lee's rising to speak, he withdrew his motion.
General LEE then proceeded to observe, that as the subject required the fullest deliberation, he hoped that all the papers respecting it would be read that evening, to prevent any interruption in the debate the next day. By this arrangement time would be saved, and perspicuity in argument promoted. It was too late in the evening then, to enter at large upon the subject. This he would defer till the next day, when he should with frankness and candour deliver his sentiments, with a view of showing the pernicious tendency of the resolutions on the table.
He begged to know how many counties in the state had presented petitions to the Assembly on this subject; any one of which petitions, with the alien-law, he must trouble the clerk, he said, to read, as he believed this law particularly, to be much misunderstood. He himself considered it as going only to enable the chief magistrate to remove dangerous aliens, thereby preventing the commission of crime, and not punishing crimes committed.
The sedition-law, he said, so far as he recollected it, was free from the charges contained in the resolutions. If then, on examination, it was found that these laws were constitutional, the resolutions proposed must be rejected. If they were found unconstitutional, it was proper to interfere and restore the Constitution to its original purity. In this salutary wish he would cheerfully join, but he must take steps becoming a portion of the same people to take, full of friendship, full of mutual respect, and tending to perpetuate union and brotherly love, not disunion and hatred.
Mr. NICHOLAS arose next, and said that the gentleman last up wished to save time, by having all the papers read that evening, but he wished to know how that would save time? The gentleman had said too that the alien law extended to prevent only, and not to punish crimes. Mr. Nicholas asked, if banishment was no punishment? He had always understood, he said, that it was; and then observed, that he should have been glad that the gentleman had been present from the commencement of the discussion, that he might perfectly have understood the nature of it.
Mr. John Taylor's resolutions were then read, together with those laid upon the table by other gentlemen, and the memorial from the people of Caroline County.
Mr. BROOKE then arose, and observed, that labouring under all the diffidence that a person unaccustomed to public speaking would naturally feel, in delivering his sentiments upon so momentous an occasion as the present, he was sensible of the disadvantage he must have laboured under, in delivering his sentiments upon the subject the day before; and on this account, he felt more sensibly the attack made upon him by his colleague, and the attempt made by him to distort the observations, which, in the midst of his confusion and embarrassment, Mr. Brooke said, had fallen from him. These observations that gentleman had undertaken to caricature. A more proper person for a task of this kind could not have undertaken it. He would do justice to every subject he ever did undertake. Mr. Brooke then said, that he would proceed to repeat to the committee his observations just as they were expressed, which, notwithstanding the diffidence he felt on the occasion, he perfectly recollected; and he believed that other gentlemen, not disposed to distort his meaning, would agree with him in his statement. He had observed, he said, that he was opposed to the resolutions offered by the gentleman from Caroline, however modified; that he was under no instructions; and that if the people of his county should be so degenerate (to the best of his recollection was the term; but if the term debased, which his colleague had stated as a stronger expression, would suit his purpose better, it might be so) as to instruct him to vote for resolutions having so dangerous and alarming a tendency as those referred to, he should go into mourning; he should bid adieu to legislation, and seek an asylum in some other region of the globe, amongst a race of mortals who had more respect for peace and order, and who set a higher value upon the blessings of good government. Mr. Brooke then concluded by observing, that he had thus recapitulated the observations used by him, no less to gratify his colleague who had called upon him, than that the people of his county might know that these were his sentiments.
Mr. BOOKER then moved that the committee should rise.
Mr. JOHN TAYLOR hoped that the committee would not rise, but that they would proceed. Several days, he said, had already been spent in the discussion of the business before them; and much more time might be spent, unless they should adopt a different mode. They had, until then, been in the habit of receiving only one speech a day; and the only way to dispatch the business he thought, would be to meet early and sit late.
Mr. GEORGE K. TAYLOR said, that he intended to say something further upon the subject, but wished not to hurry the committee.
Mr. COWAN also observed, that he intended to deliver his sentiments to the committee, tending to show that the alien law was constitutional, but wished not to press the matter then.
Mr. NICHOLAS hoped that the committee would not rise. They had as yet proceeded but slowly. He hoped, therefore, that the gentleman last up would proceed: he should be glad to hear him.
The same being also requested by others at the same time,
Mr. COWAN proceeded, by observing that much had been said upon the subject already. It was a question of great importance, and the great attention which had been given by the committee, was a proof of the talents of the speakers. He confessed that he had no such claim, but came forward on another ground. He felt it a duty to his constituents and the whole community, to engage in the discussion. He had noticed, he said, that the observations of the gentleman from Prince George had been objected to on one particular ground, that of their mingling the affairs of France with the subject of the laws under consideration. But he (Mr. Cowan) thought that could not be avoided. The present question, he said, had its root in French transactions. The rights of citizens and aliens, he thought, had been confounded; and in order to have a clear apprehension of them, a standard ought to be fixed upon to try them. That standard he pronounced to be, as to citizens, the Constitution; as to aliens, the law of nations. Every sovereign nation, he said, was possessed of certain rights. Amongst them the right to govern aliens was a perfect right. It vested a power to restrain them. That right, he said, contained two things; the first was that of obliging aliens to depart, the second was to allow them to remain.
An alien, said Mr. Cowan, entering into a country, as the condition of such entrance, doth agree to submit to the laws of its sovereignty. Submitting to them did imply, that when required, he was bound to retire. Where did the exercise of this power rest? By the Constitution, the power to exclude remains in the states for a limited time. It was true that the powers not particularly granted are reserved. It had been said that the states were sovereign. It was so, but not in the latitude contended for. For, if it were so, the clause in the Constitution respecting the migration and importation of persons, was an argument to the contrary. How did the states derive this right? If they had it before the adoption of the Constitution, the Constitution gave it to no purpose. It was a supererogation. By the adoption of the Constitution, Mr. Oman conceived, the states excepted that right. Where was it then? It was with the people, who, in order to the distribution of powers therein specified, and for that purpose, had resumed their full, their native rights. That, indeed, was a matter of moment. For, could they once ascertain where the right then was vested, they might then find the key to unlock the Constitution, so as to find the power to pass an alien-law. If Congress had not the right, the states must have a paramount right to protect aliens. If Congress had it not, the states could suffer aliens to remain within them, in despite of Congress. Could the states then confer a perfect right on aliens? If they could not, they had no power to keep them here. For, if they could keep them here one hour, they might keep them here until 1808. But, Mr. Cowan said, he would attempt to show that the states had no such right. He hoped gentlemen would answer him on that point. A state could confer a perfect right only in two ways: First, by naturalization; but this subject was conveyed to Congress. Secondly, by treaty with the state from which the alien comes; but this power, too, was vested in Congress, and prohibited to the states. Could an act of Assembly confer a perfect right? No; because, "a perfect right is that to which is joined the right of constraining those who refuse to fulfil the obligation resulting from it." An alien could not oblige a compliance with the terms of it. It had been said that the alien-law violated that part of the Constitution which gives the state a right to exclude aliens, if it thinks proper. But, if the state could not give the right to them to remain, it must be with Congress, and therefore no violation. By the Constitution, a power was given to Congress to repel and to protect against invasion, and to make any law to carry its measures into effect. What could be the meaning, then, of those clauses? The terms to repel invasion, and protect against invasion, gave different powers. Could it be thought proper, that the general government should have no power to defeat a plan before it was matured? It must be inferred, then, from such words, that Congress had the power to take such measures as would secure the people. There was no necessity, then, of resorting to the last clause of the eighth section of the first article, for the power in question. The general powers of Congress would be sufficient to give it. When bound to accomplish an end, are not, said he, the means included? Or are they withheld? But, if the state had no such power, it was in Congress. For, if it was not there, where was it? Thus much, Mr. Cowan said, for the constitutionality of the alien-law. He proceeded next to discuss its nature. It had been said, that it blended different powers. But, Mr. Cowan said, that the Constitution of the United States, in his opinion, was not such an one as that the powers of government were necessarily kept separate and distinct. It was true, they were so in the state Constitution; but that they are not so in the former, was proved by the instance of the President's ratifying a treaty. For, as the treaty when made, becomes a law, his ratification has the effect of a legislative act. He must often act with a union of powers. By approving laws, particularly, he legislates; and in cases where no person is pointed out by a law to enforce its execution, the President perhaps is the proper person to do it. This is proved by that clause in the Constitution which directs, that the President shall take care that the laws be faithfully executed. Therefore, even if the President had not been named to carry the alien-law into effect, by the Constitution, he must have done it so far as was executive. Two powers, then, are united by the Constitution in him.
Mr. Cowan then observed, that if the committee could be convinced that the law was constitutional, they certainly must conceive the wisdom of Congress adequate to the policy of such a law. The alien-enemy laws passed by the Legislature of this state, and also by the Congress of the United States, had been admitted by the gentleman from Caroline to be necessary. He (Mr. Cowan) considered that law of Congress as being very analogous to the law now the subject of debate. For, if such enemy-alien law be necessary in a state of war, the law of Congress now under the consideration of the committee, under defensive operations, was necessary in proportion. It had been urged loo, that aliens, by the law of nations, had the same rights as citizens. But that the alien was so entitled, he said, was necessary to be shown. There certainly was a distinction between the alien and citizen. An alien is not subject to all the laws of a country, but such only as regulated the affairs of private life. Mr. Cowan then read the seventh amendment to the Constitution, containing the principles and regulations which were to govern in criminal cases. Gentlemen had derived rights to aliens under this clause, and seemed to rely much upon the word persons used in this clause. But he (Mr. Cowan) asserted that aliens were entitled to their privileges from a principle of the law of nations, and not under the Constitution, as a party thereto. For the alien could not be made a soldier, he owing allegiance elsewhere. The expressions, too, used in the seventh amendment, "except in cases arising in the land or naval forces, or in the militia when in actual service, in time of war or public danger," prove that aliens were not the persons contemplated by that clause, but citizens, they only being subject to those kinds of service. Indeed, an Indian or a negro might, by such doctrines as gentlemen held, be as well entitled as an alien. But none of these were parties to the Constitution. Gentlemen who argued thus, would prove too much for an alien. They would place him in a better situation than our own citizens. It had been said banishment is a punishment. But banishment of a citizen, said Mr. Cowan, exists not under the Constitution. He said, also, that an alien on coming into, admitted the right of sovereignty of the country over him. This was the condition of his admission into every country: to illustrate which, he repeated the observations which he had before made upon that point. He also recapitulated his preceding arguments about perfect right, and then observed that it had been said that this Assembly ought to adopt the resolutions before them, and not use force; but by means of them, produce an effect on the general government. And it was further said that the compact was between states. But, Mr. Cowan said, he could not agree with gentlemen in these points. What effect could the resolutions have? It ought to be supposed that Congress had wisdom: that, if they thought they were right they would not recede. If they thought they were wrong, he believed they would endeavour to do what was right. He thought, too, that the compact contained an union both of the states and people. What, said he, would be the effect of declaring the laws null and void? The principle would extend to all laws of Congress whatever. What then would be the result? It would shake the foundations of tranquillity. It would shake the faith of the people in their government, as well as the faith of foreign nations in it. It would be setting up powers paramount to the government. Because a few of the people had directed them to act upon the subject, could they think they had the power? Had the people empowered them to declare the laws null and void? On the contrary, if the people on their return, should hold a different language, how could the members of this House justify themselves to the people? Would it be by telling them that they, their representatives, had all powers? He again stated the consequence of exercising such a power. And if the compact were to be dissolved, he asked, what would be the consequences? The resolutions would give a pause to the acts under consideration. For they recommended to the people to obey or not obey. And if without power from the people, this Assembly should attempt to exercise their rights to control the general government, he asked what would be the consequences? He enumerated them much at large, and concluded with an earnest request that they would not adopt the mode proposed by the resolutions.
On motion, the committee then rose, the chairman reported progress, asked, and had leave for the committee to sit again.
Part II | Debate Dec. 18 | Debate Dec. 20 | Randolph Contents | Text Version