THE



                    VIRGINIA REPORT



                          OF



                      1799-1800,



                     TOUCHING THE



               ALIEN AND SEDITION LAWS;



                  TOGETHER WITH THE



                VIRGINIA RESOLUTIONS



                OF DECEMBER 21, 1798,



          THE DEBATE AND PROCEEDINGS THEREON



                       IN THE



            HOUSE OF DELEGATES OF VIRGINIA,



                        AND



               SEVERAL OTHER DOCUMENTS



                   ILLUSTRATIVE OF



            THE REPORT AND RESOLUTIONS.



                      RICHMOND:



           J. W. RANDOLPH, 121 MAIN STREET,



  ALSO FOR SALE BY FRANCK TAYLOR, WASHINGTON; CUSHING AND

  BROTHER, BALTIMORE; AND T. AND J. W. JOHNSON, PHILADELPHIA. 



                        1850.







Entered, awarding to Act of Congress, in the year 1860, BY J. W. RANDOLPH, 

In the Clerk's Office of the District Court in and for the Eastern District 

of Virginia.



                     PHILADELPHIA:



                  C. SHERMAN, PRINTER.



____________



                               PREFACE.



THE design of this pamphlet, an edition of which was printed at Richmond 

some years ago, is to convey to the public the "Virginia Report of 1799," a 

state paper which, having wrought a great effect upon the political parties 

of its day, is still, -- though more praised than read, -- highly esteemed 

as a commentary on the Federal Constitution. The other papers which go along 

with the "Report," are intended, like this preface, only to illustrate it.



After the lapse of so many years, the reader, it is hoped, will not take it 

amiss that his memory is refreshed as to some of the incidents of the period 

that gave birth to this document; a period perhaps the most critical in our 

national annals.



The present Federal Constitution, succeeding to the "Articles of 

Confederation," having been ratified by eleven states, commenced its 

operation, nominally, on the 4th of March, 1789, under the auspices of 

WASHINGTON, as the first President. In his Cabinet, and in the first 

Congress, were organized the parties afterwards known as "Federalists" and 

"Republicans." The former, under the sagacious lead of Alexander Hamilton, 

the Secretary of the Treasury, fearful of a recurrence of that anarchy which 

had overtaken the country under the imbecile government of the 

"Confederation," were inclined to a vigorous exercise of the federal power, 

and consequently adopted a liberal construction of the Federal Constitution. 

The Republicans, on the other side, headed by Mr. Jefferson, were 

apprehensive of a gradual absorption, by the central government, of the 

powers reserved to the states and to the people. Consolidation was their 

great terror, as the absence of all government was the terror of their 

opponents; and consolidation they viewed, justly, as the forerunner not of 

monarchy only, but of despotism.



Mr. Hamilton, being a declared admirer of the English Constitution in the 

abstract, gave occasion to many of the opposite party to impute to him, and 

to his political associates, sentiments unfavourable to the existing 

institutions of the country; in short, a proclivity to monarchy. This 

suspicion, undoubtedly unjust as regards the great mass of the Federalists, 

was fortified by their avowed opinions touching the necessity of what, in 

the phrase of the time, was called a strong government.



The occurrence of the French Revolution affected these parties with 

different emotions. The Republicans looked on in trusting faith that it 

would result in giving to France institutions modelled after our own, 

calculated to insure rational freedom, but affording no encouragement to 

licentiousness. The Federalists were less sanguine. They feared that the 

French people neither appreciated the blessings of liberty founded on law, 

nor were capable of attaining them, and they conceived all their conclusions 

confirmed by the succession of tragic scenes which accompanied the progress 

of the Revolution. Thenceforward sympathy with France constituted a 

prominent point of difference between their adversaries and themselves.



In 1793, upon the execution of Louis XVI., a war broke out between France 

and England, which, as it was characterized by unusual animosity between the 

contending parties, led to an emulous violation by both of the rights of 

neutral commerce. From these outrages no country suffered more than the 

United States, the citizens of which, instead of uniting to require 

indemnity from both belligerents, allowed their partisan feelings to array 

them as the apologists, or the denouncers, of one or the other, as previous 

tendencies disposed them. The Republicans favoured France, influenced as 

well by a natural sympathy for a great people struggling, as they supposed, 

for freedom, as by gratitude for the assistance so recently received in the 

war of our Revolution, and animated by a hostility, not yet extinct, towards 

our former enemy, Great Britain. The Federalists leaned towards England as 

the champion of conservatism, and the bulwark against that pernicious 

license everywhere propagated by French writers and emissaries.



The Republicans identified France with liberty, and cherished its cause with 

proportionate ardour. The Federalists saw in it only irreligion, private 

profligacy, bloody excess, and, in the end, the despotism of the sword, and 

abhorred it as a combination of all that was hateful to their reason, and 

their habits.



On the other hand, England was to the Federalists the embodiment of a 

government at once vigorous and free; not insensible to the opinions of its 

people, but impassive to their prejudices and passions; and the regard due 

to those qualities, was extended to the country. To the Republicans, England 

was a monarchy, and their late oppressor, and now appeared to be a reluctant 

and surly friend, in each and all of which characters, it was alike odious.



The war had not been long in progress, when many Americans, stimulated by 

French agents, and the thirst of gain, and relying upon the prepossessions 

of their countrymen, hastened to fit out armed vessels in several of our 

ports, to cruise under French commissions, against the enemies of France. 

England remonstrated, and there was issued, in consequence, General 

Washington's famous proclamation of neutrality, which, with the instructions 

founded upon it, rigorously interdicted such enterprises for the future. 

This led to a correspondence between Mr. Jefferson, then Secretary of State, 

and Genet, the French minister, resident here, in which the latter, 

confiding in the supposed popular partiality for France, crowned a series of 

impertinences by threatening to appeal from the government to the people of 

America, and was in consequence, by the request of the President, recalled.



Genet's recall, -- his successor being a man of more moderation, -- had the 

effect to restore those cordial feelings for France to which the former's 

indefensible conduct had given a shock. Meanwhile our commerce was suffering 

much from the depredations of both belligerents. In 1794, Mr. Jay, the Chief 

Justice of the United States, having been despatched as a special envoy to 

England, to adjust the numerous differences which had been accumulating with 

that country since the peace of 1783, the jealousy of France blazed fiercely 

out; and when, the next year, the treaty negotiated by Mr. Jay was ratified 

by our government, the indignation of the Directory knew no bounds. 

Spoliations of our commerce were committed with as little reserve as if 

actual war existed, and the conduct of the French government was marked by 

every circumstance of contumely.



Jay's treaty, meanwhile, was received in America with a severity of 

reprehension which bespoke the decided Anti-Anglican dispositions of our 

people. It must be admitted, indeed, to have involved a painful sacrifice of 

the rights of our country, in more than one particular. It had the effect, 

however, to postpone a war with England until we were better able to bear 

it, and, -- our Union preserved, -- we shall probably never again be 

subjected to a like humiliation. The manifestations of popular feeling 

induced, in the French Directory, the conceit that the government of America 

might be separated from its citizens. Acting upon this delusion, they took 

leave of Mr. Monroe, then our representative at Paris, with warm professions 

of regard for the people of America, and of undisguised hostility to the 

administration, and refused, with studied indignity, to receive Mr. 

Pinckney, who had been sent out as Mr. Monroe's successor.



Parties in the United States were thus situated when General Washington, at 

the end of his second term, resigned the reins of power to Mr. Adams, who 

was himself a Federalist, and chose his cabinet from those of kindred 

sentiments. Very soon after his accession, Mr. Adams made an effort to 

compose our misunderstanding with France by sending thither a solemn 

embassy, consisting of Mr. Charles C. Pinckney of South Carolina, Mr. 

Marshall of Virginia, and Mr. Gerry of Massachusetts. The joint appointment 

of gentlemen so distinguished ought to have evinced to France the strong 

desire of our government to conciliate her. They were treated, however, with 

an insolence inconceivable, were not admitted to an audience, and were 

subjected to the mortification of being approached by certain agents of 

Talleyrand, the minister for public affairs, with proposals as degrading as 

they were direct, for a bribe. The proposition was, that £50,000 sterling 

should be distributed amongst certain members of the Directory, as the 

necessary price of entering upon the negotiation. The envoys having 

peremptorily refused to buy, in any way, the privilege of presenting the 

just demands of their country, Messrs. Pinckney and Marshall were dismissed; 

Mr. Gerry, who, as belonging to the Republican party, was insultingly 

supposed to be more pliable, being requested to remain.



The envoys having communicated these transactions to their government, the 

correspondence was laid before Congress, and printed, the names of 

Talleyrand's brokers being veiled under the respective letters X. Y. Z. and 

W. The publication, like an electric shock, awakened all the dormant fires 

of patriotism in America. As one man the people stood forward prepared to 

vindicate the insulted honour and violated rights of their country. The 

President, anticipating the national spirit, in his message of 21st June, 

1798, communicating the return of Mr. Marshall to the United States, 

peremptorily declared that he would "never send another minister to France 

without assurances that he would be received, respected, and honoured, as 

the representative of a great, free, powerful, and independent nation."



So strong was the general irritation under what was called "the X. Y. Z. 

excitement," that party lines were in a degree obliterated, and the 

administration of Mr. Adams was, for a brief period, lifted to a great 

height of popularity, whence, however, it was very soon precipitated into 

irretrievable disgrace.



The Federalists, elated at the spring-tide of favour setting in upon the 

administration, resolved to avail themselves of it to the utmost. With this 

view they proceeded vigorously with preparations for a war with France, and 

determined to take decisive steps to expel from the country all aliens who 

might be supposed hostile or dangerous to its institutions. Thus they hoped 

to keep up the excitement of anger against France, and of jealousy against 

her apologists amongst our own people, whilst they got rid of the French 

propagandists, and unquiet English and Irish agitators, who were employed 

too much in preaching license, under the name of liberty. The Alien Act was 

accordingly passed 25th June, 1798, being especially aimed, it was thought, 

at Volney, Collot, Priestley, and a few others. Then they essayed to curb 

what they called the licentiousness of the press by the Sedition Act, which 

received the assent of the President on the 14th July, 1798.



These two laws, but especially the last, were fatal to the party which 

originated them. The Alien Act alone, as being directed against 

comparatively few persons, and those strangers, might not have been so 

obnoxious, but the Sedition Law, trespassing, as it seemed to do, upon the 

freedom of the press, so cherished by the Anglo-Saxon race, raised a storm, 

before which all the recent popularity of Mr. Adams's administration 

vanished like morning mist.



Suspicions of the darkest ultimate designs were entertained and 

disseminated, "For my own part," says Mr. Jefferson, addressing a friend, "I 

consider those laws as merely an experiment on the American mind, to see how 

it will bear an avowed violation of the Constitution. If this goes down, we 

shall immediately see attempted another act of Congress, declaring that the 

President shall continue in office during life, reserving to another 

occasion the transfer of the succession to his heirs, and the establishment 

of the Senate for life!"



To these suspicions a deeper tinge was imparted by the preparations for the 

impending war with France. These, however indispensable, exposed the 

administration to misconstruction, and to complaints both loud and deep. An 

additional army, first of 10,000 and afterwards of 30,000 men was authorized 

to be raised in the event of a declaration of war, or an actual invasion, or 

imminent danger thereof, and the President was besides authorized to accept 

the services of an indefinite number of volunteers. A navy was also begun on 

a liberal scale. To meet the expense of these measures, besides duties on 

imports, and a loan of $5,000,000, a direct tax of $2,000,000, (whereof the 

quota of Virginia was $345,488.66,) was laid on dwelling-houses, lands, and 

slaves. These burdens predisposing the people to murmur, they hearkened 

readily to the vehement accusations with which the press, the hustings, and 

even conversation teemed.



The Alien and Sedition Laws, the army and navy bills, and the large sums 

placed within reach of the President, were represented as parts of the same 

plan to perpetuate and enlarge his power.



In proportion as ideas like these gained ground, the Alien and Sedition Laws 

became more odious. The zeal of the opposite party rising with the prospect 

of success, and stimulated by a sense of the importance of the principles 

supposed to be invaded, they addressed themselves, with renewed ardour, to 

the task of overthrowing the administration. Nor were its supporters idle or 

indifferent. The New England and the Middle States were generally favourable 

to the party in power; the Southern and Western States were for the most 

part Republican. But minorities imposing in numbers and in character existed 

on either side. Both parties hastened to call into action all the political 

machinery available for them respectively, of which the most efficient 

consisted in the solemn declarations of the several state legislatures 

touching the obnoxious laws.



Important as the crisis really was, it was factitiously exaggerated by the 

partisanship on both sides. The advocates of administration, in order to 

maintain the constitutionality of the Sedition Act, amongst other arguments, 

insisted that the offence denounced by it was an offence at common law, and 

was therefore punishable in the courts of the United States, independently 

of the statute. The statute, it was said, was even more favourable to the 

accused than the common law. The assumption involved in this argument, that 

the common law constituted part of the federal jurisprudence, created more 

alarm than the main topics of complaint, the Alien and Sedition Laws 

themselves. It was regarded as an accumulation, at one stroke, of all 

authority in the hands of the Federal Government, there being no subject, 

legislative, executive, or judicial, which the common law did not embrace; 

and it was anxiously urged that the effect would be an annihilation of state 

sovereignty, and the erection of a government consolidated, and therefore 

despotic. "Other assumptions of ungiven power," said Mr. Jefferson, "have 

been in detail. The bank law, the treaty doctrine, the sedition act, alien 

act, the undertaking to change the state laws of evidence in the state 

courts, by certain parts of the stamp act, &c., &c., have been solitary, 

unconsequential, timid things, in comparison with the audacious, bare-faced, 

and sweeping pretension to a system of law for the United States, without 

the adoption of their legislature, and so infinitely beyond their power to 

adopt."



The legislatures of the several states prepared to bear their parts in the 

drama. That of Virginia, which assembled in December, 1798, was looked to by 

both parties with peculiar interest. The plan of opposition to be pursued 

there was probably arranged by Mr. Jefferson and Mr. Madison, though neither 

was a member. The plan was to resolve that the Alien and Sedition Laws were 

unconstitutional and merely void, (which latter phrase, however, was 

ultimately struck out of the resolutions, as actually adopted,) and to 

address the other states, to obtain similar declarations. It was not 

contemplated to commit the commonwealth to any foreshadowed course of 

action, but to reserve the power to shape future measures by the events 

which should happen. Mr. Jefferson drew the resolutions for Kentucky,1 which 

was ready to act consentaneously with Virginia, (and did, in fact, act 

before her,) and they were proposed in her legislature by Mr. Breckenridge. 

The Virginia resolutions,2 submitted and ably defended by Mr. John Taylor, 

of Caroline, were from the pen of Mr. Madison.



The Virginia resolutions, having been officially communicated to the 

legislatures of all the other states, encountered from some of them a 

disapproval so decided as to make it necessary to sustain the propriety of 

them by argument. Accordingly, during the whole summer of 1799, the state 

was agitated with preparations for the approaching conflict. The Republicans 

possessed a decided majority in the legislature, and amongst the people, but 

the minority, besides being respectable for numbers, comprehended many 

individuals eminent for public and private virtue, for capacity, and for 

services rendered their country, and were sustained also by the august name 

of WASHINGTON.



The General Assembly, which convened in December, 1799, contained an unusual 

weight of ability and experience. Virginia mustered for the occasion her 

strongest men. The author of the resolutions was chosen for the county of 

Orange, and against him was marshalled no less a champion than PATRICK 

HENRY, who was elected from the county of Charlotte, but died before taking 

his seat.



To that General Assembly was submitted from a committee, at the head of 

which was Mr. Madison, that dignified and lucid report vindicatory of the 

resolutions of the previous year, ever since known in Virginia, as 

"Madison's Report," and out of it, as "the Virginia Report of 1799." It 

assisted materially in perfecting the victory already, in effect, achieved 

by the Republican party. In the ensuing autumn, or rather winter, Mr. 

Jefferson was elected President, and the Alien and Sedition Laws having 

expired by their own limitation, no thought was entertained of renewing 

them, and their policy was abandoned, probably for ever.



This pamphlet, as remarked in the beginning, contains, besides the " 

Report," certain other publications calculated to illustrate it. The whole 

is arranged in the following order, viz.:



I. The Alien and Sedition Acts, 17 to 21.



II. Resolutions of Virginia of 21st December, 1798, with the debate

thereon, 22 to 161.



III. Resolutions of Kentucky of 10th November, 1798, 162 to 167.



IV. Counter-resolutions of several states in response to those of

Virginia, 168 to 177.



V. Report of 1799, preceded by an analysis thereof, 178 to 237.



VI. Instructions to Virginia senators of January, 1800, and votes

thereon, 238 to 248.



VII. Appendix: containing



     1. A letter from Mr. Madison to Mr. Everett, touching the

     construction of the first resolution of 1798, 249 to 256.



     2. A letter from the same to Mr. Ingersoll, relative to the

     Bank question, 257.



     3. A letter from the same to the same, on the same

     subject, 258 to 260.



In conclusion, it is proper to observe that this edition is intended 

especially for the use of students, and that the learned reader must expect 

to find in the notes, and in the analysis prefixed to the report, much with 

which he could dispense.







1. See them, post, p. 163. The authorship of these resolutions has lately 

been claimed for the distinguished gentleman who offered them.



2. Post, p. 22.



____________



                  THE VIRGINIA REPORT,



                       ETC. ETC.



           I. THE ALIEN AND SEDITION ACTS.



____________



                 AN ACT CONCERNING ALIENS.

                 [Approved June 25, 1798.]



                        ABSTRACT.



SECTION I. Confers power on the President to order aliens to

depart. 

     1. What aliens.

          Such as the President shall judge dangerous to the peace

          and safety of the United States, or shall have reasonable

          grounds to suspect of treasonable or secret machinations

          against the government. 

     2. How proceeded against.

          By the President's order to depart, served by the marshal

          or other person. But the President may grant a license to

          remain on proof by the alien, that he is not dangerous;

          and may require bond and security of such person. 

     3. Consequences of disobedience.

          Imprisonment, on conviction, not exceeding three years,

          and perpetual disability to become a citizen. 

SECTION II. Confers on the President power to remove aliens. 

     1. What aliens.

          Such as are above described, who are

               1. In prison, in pursuance of this Act. 

               2. Dangerous, and proper to be speedily removed. 

     2. Consequences of returning without President's permission.

          Imprisonment, on conviction, as long as the President

          thinks the public safety requires it. 

SECTION III. Requires masters of ships to report to officers of

customs, all aliens on board. 

SECTION IV. Gives the District and Circuit Courts of the United

States cognizance of all offences against this Act; and requires marshals,

and other officers of the United States to execute the President's orders

under it. 

SECTION V. Allows alien to remove his effects. 

SECTION VI. Continues act in force for two years. 







SECTION 1. Be it enacted by the Senate and House of Representatives of the 

United States of America, in Congress assembled, That it shall be lawful for 

the President of the United States, at any time during the continuance of 

this act, to order all such aliens as he. shall judge dangerous to the peace 

and safety of the United States, or shall have reasonable grounds to suspect 

are concerned in any treasonable or secret machinations against the 

government thereof, to depart out of the territory of the United States 

within such time as shall be expressed in such order; which order shall be 

served on such alien, by delivering him a copy thereof, or leaving the same 

at his usual abode, and returned to the office of the Secretary of State, by 

the marshal, or other person, to whom the same shall be directed. And in 

case any alien, so ordered to depart, shall be found at large within the 

United States after the time limited in such order for his departure, and 

not having obtained a license from the President to reside therein, or 

having obtained such license, shall not have conformed thereto, every such 

alien shall, on conviction thereof, be imprisoned for a term not exceeding 

three years, and shall never after be admitted to become a citizen of the 

United States: Provided always, and be it further enacted, That if any alien 

so ordered to depart shall prove, to the satisfaction of the President, by 

evidence, to be taken before such person or persons as the President shall 

direct, who are for that purpose hereby authorized to administer oaths, that 

no injury or danger to the United States will arise from suffering such 

alien to reside therein, the President may grant a license to such alien to 

remain within the United States for such time as he shall judge proper, and 

at such place as he may designate. And the President may also require of 

such alien to enter into a bond to the United States, in such penal sum as 

he may direct, with one or more sufficient sureties, to the satisfaction of 

the person authorized by the President to take the same, conditioned for the 

good behaviour of such alien during his residence in the United States, and 

not violating his license, which license the President may revoke whenever 

he shall think proper.



SECT. 2. And be it further enacted, That it shall be lawful for the 

President of the United States, whenever he may deem it necessary for the 

public safety, to order to be removed out of the territory thereof any alien 

who may or shall be in prison in pursuance of this act; and to cause to be 

arrested and sent out of the United States such of those aliens as shall 

have been ordered to depart therefrom, and shall not have obtained a license 

as aforesaid, in all cases where, in the opinion of the President, the 

public safety requires a speedy removal. And if any alien so removed or sent 

out of the United States by the President shall voluntarily return thereto, 

unless by permission of the President of the United States, such alien, on 

conviction thereof, shall be imprisoned so long as, in the opinion of the 

President, the public safety may require.



SECT. 3. And be it further enacted, That every master or commander of any 

ship or vessel which shall come into any port of the United States after the 

first day of July next shall, immediately on his arrival, make report in 

writing to the collector or other chief officer of the customs of such port, 

of all aliens, if any on board his vessel, specifying their names, age, the 

place of nativity, the country from which they shall have come, the nation 

to which they belong and owe allegiance, their occupation, and a description 

of their persons, as far as he shall be informed thereof, and on failure, 

every such master and commander shall forfeit and pay three hundred dollars, 

for the payment whereof, on default of such master or commander, such vessel 

shall also be holden, and may by such collector or other officer of the 

customs be detained. And it shall be the duty of such collector or other 

officer of the customs, forthwith to transmit to the office of the 

Department of State true copies of all such returns.



SECT. 4. And be it further enacted, That the Circuit and District Courts of 

the United States shall respectively have cognizance of all crimes and 

offences against this act. And all marshals and other officers of the United 

States are required to execute all precepts and orders of the President of 

the United States, issued in pursuance or by virtue of this act. 



SECT. 5. And be it further enacted, That it shall be lawful for any alien 

who may be ordered to be removed from the United States, by virtue of this 

act, to take with him such part of his goods, chattels, or other property, 

as he may find convenient; and all property left in the United States, by 

any alien who may be removed as aforesaid, shall be and remain subject to 

his order and disposal, in the same manner as if this act had not been 

passed.



SECT. 6. And be it further enacted, That this act shall continue and be in 

force for and during the term of two years from the passing thereof.



____________



                         SEDITION ACT.



 An act in addition to the act intituled, "An act for the punishment

         of certain crimes against the United States." 



                  [Approved July 14, 1798.]







                          ABSTRACT.



SECTION I. Punishes combinations against United States government. 

     1. Definition of offence:

          Unlawfully to combine or conspire together to oppose any

          measure of the government of the United States, &c. This

          section was not complained of. 

     2. Grade of offence:

          A high misdemeanour. 

     3. Punishment:

          Fine not exceeding $5000, and imprisonment six months

          to five years. 

SECTION II. Punishes seditious writings. 

     1. Definition of offence:

          To write, print, utter or publish, or cause it to be done, or

          assist in it, any false, scandalous, and malicious writing

          against the government of the United States, or either

          House of Congress, or the President, with intent to

          defame, or bring either into contempt or disrepute, or to

          excite against either the hatred of the people of the United

          States, or to stir up sedition, or to excite unlawful

          combinations against the government, or to resist it, or to

          aid or encourage hostile designs of foreign nations. 

     2. Grade of offence:

          A misdemeanour. 

     3. Punishment:

          Fine not exceeding $2000, and imprisonment not

          exceeding two years. 

SECTION III. Allows accused to give in evidence the truth of the

matter charged as libellous. 

SECTION IV. Continues the Act to 3d March, 1801. 







SECTION 1. Be it enacted by the Senate and House of Representatives of the 

United States of America, in Congress assembled. That if any persons shall 

unlawfully combine or conspire together, with intent to oppose any measure 

or measures of the government of the United States, which are or shall be 

directed by proper authority, or to impede the operation of any law of the 

United States, or to intimidate or prevent any person holding a place or 

office in or under the government of the United States, from undertaking, 

performing, or executing his trust or duty: and if any person or persons, 

with intent as aforesaid, shall counsel, advise, or attempt to procure any 

insurrection, riot, unlawful assembly, or combination, whether such 

conspiracy, threatening, counsel, advice, or attempt shall have the proposed 

effect or not, he or they shall be deemed guilty of a high misdemeanour, and 

on conviction before any court of the United States having jurisdiction 

thereof, shall be punished by a fine not exceeding five thousand dollars, 

and by imprisonment during a term of not less than six months, nor exceeding 

five years; and further, at the discretion of the court, may be holden to 

find sureties for his good behaviour, in such sum, and for such time, as the 

said court may direct.



SECT. 2. 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 intent to defame the said government, or either 

House of the said Congress, or the said President, or to bring them, or 

either of them, into contempt or disrepute; or to excite against them, or 

either or any of them, the hatred of the good people of the United States, 

or to stir up sedition within the United States; or to excite any unlawful 

combinations therein, for opposing or resisting any law of the United 

States, or any act of the President of the United States, done in pursuance 

of any such law, or of the powers in him vested by the Constitution of the 

United States; or to resist, oppose, or defeat any such law or act; or to 

aid, encourage or abet any hostile designs of any foreign nation against the 

United States, their people or government, 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. 



SECT. 3. And be it further enacted and declared, That if any person shall be 

prosecuted under this act for the writing or publishing any libel aforesaid, 

it shall be lawful for the defendant, upon the trial of the cause, to give 

in evidence in his defence, the truth of the matter contained in the 

publication charged as a libel. And the jury who shall try the cause shall 

have a right to determine the law and the fact, under the direction of the 

court, as in other cases.



SECT. 4. And be it further enacted, That this act shall continue and be in 

force until the third day of March, one thousand eight hundred and one, and 

no longer: Provided, That the expiration of the act shall not prevent or 

defeat a prosecution and punishment of any offence against the law, during 

the time it shall be in force.



____________



             II. RESOLUTIONS OF VIRGINIA



      OF DECEMBER 21, 1798, AND DEBATE AND VOTE

                      THEREON.





=> The original resolutions offered by Mr. John Taylor to the House of 

Delegates may be seen, post, p. 148.



            RESOLUTIONS AS ADOPTED BY BOTH HOUSES OF

                           ASSEMBLY.



1. 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, and that it will support the government of the 

United States in all measures warranted by the former.



2. That this Assembly most solemnly declares a warm attachment to the union 

of the States, to maintain which, it pledges all its powers; and that for 

this end it is its duty to watch over and oppose every infraction of those 

principles, which constitute the only basis of that union, because a 

faithful observance of them can alone secure its existence, and the public 

happiness. 



3. 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 the 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.



4. 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 constructions of the constitutional charter 

which defines them; 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.



5. 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 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 juslly deemed the only effectual 

guardian of every other right.



6. 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 or 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.



7. That the good people of this commonwealth having ever felt, and 

continuing to feel the most sincere affection to their brethren of the other 

States, the truest anxiety for establishing and 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 solemnly appeal to the like dispositions of the other 

States, 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 measure 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.



8. 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.



____________



          DEBATE IN THE HOUSE OF DELEGATES ON THE

                  FOREGOING RESOLUTIONS.



               Thursday, December 13, 1798.



The House resolved itself into a committee of the whole House, on the state 

of the commonwealth, Mr. Brackenridge in the chair; when the resolutions 

presented to the House by Mr. John Taylor, and referred to the committee, 

being taken up for its consideration --



Mr. JOHN TAYLOR began, by expressing great regret at the occasion which 

brought him forward. He conceived it to be an awful one. That liberty was in 

danger, and as that rested on the foundation of responsibility, every effort 

should be made to repel attempts to subvert it. He could assure them, that 

his feeble efforts should be used for that purpose. He said that two 

subjects were contemplated by the resolutions before them, to which he 

should chiefly confine his observations. He should consider the 

constitutionality of the laws referred to in the resolutions, and their 

correspondence with human rights, natural and civil. He compared the 

executive of Great Britain with the Congress of the United States. The 

prerogatives of the first were limited and defined by the constitution of 

England, as were the powers of the latter by the Constitution of the United 

States; and if the king at any time overleaped his boundaries, it was always 

certainly opposed, and met with correction. He stated the case of ship-money 

imposed by Charles I. What was the consequence of that measure? It was 

opposed. He applied that case to the Congress of the United States. The 

powers of Congress, by the Constitution, were defined, as clearly as were 

those prerogatives. That, in Great Britain, where the prerogatives were 

limited, wherever the executive overleaped their bounds, other organized 

bodies would always control and check it. So, if Congress overleaped their 

bounds, some organized "body should certainly oppose it. Concluding the 

general government to be limited in its powers, he proceeded to inquire if 

Congress, in passing the alien and sedition laws, had overleaped its bounds. 

He mentioned a law, which Congress had passed at the same session, 

respecting alien enemies, as it had been suggested that the one particularly 

called the alien law was justifiable on account of danger to be apprehended 

from foreigners. This alien enemy law passed by Congress, as well as a law 

of Virginia, upon that subject, were made in favour of aliens. They were 

necessary, and found to be the usage of all nations. A contrary usage would 

be cruel and inhuman. Such laws as these were attended with mutual 

advantages to the nations at war. They constituted a mutual assurance that 

the persons and property of its own citizens would be safe in the country of 

the other. This was not the object of the law in contemplation. The other 

laws were sufficient for every purpose. That aliens, when arrested and made 

prisoners, were not dangerous. He said he would ask the question whether 

alien friends possessed any rights. If so, they might be secured by the 

Constitution. Then, if they were infringed, the Constitution was broken. If 

Congress could infringe the rights of those people, they might infringe the 

rights of others. One usurpation begat another. We ourselves might as well 

be the victims as others. He said, that alien friends, by the common law, 

had the rights of life, liberty, and property; and that these common law 

rights were secured by the Constitution; to prove which, he quoted that 

clause of the Constitution by which those rights are secured, which 

Constitution literally reached aliens, by using in all places the term 

"persons," not "natives." He then put the case of our population being 

increased by a considerable emigration of foreigners to this country, who 

might be disposed to retain their foreign citizenship: we should then have 

amongst us a body of men, of whom the President would be the despot: they 

would be entirely in his power. He further observed that, suppose government 

(never an enemy to power) should strengthen its hands by corruption, by 

patronage, by standing armies, by a system of fears, (he would not say that 

our government had done so, but in case a government should do so,) that ill 

such case, this body of emigrants, thus dependent upon government, would be 

a proper instrument in the hands of the executive, to effect its purposes: 

that executive power was the greatest enemy which republican principles had. 

He asked, if any one would then assert that to strengthen executive power in 

this way, wholly unforeseen by those who formed the Constitution, so as to 

extend beyond their intention, could be agreeable to the Constitution: that 

republican principles were the great end of the Constitution. Then, if he 

had proved this law inimical to those principles, he said that he had 

attained the great end at which he aimed. 



He next observed, that the Constitution cautiously attempted to distribute 

its powers. It was nothing more than a deed of trust made by the people to 

the government. The government, then, had no right to outstrip its powers. 

Were they not defined? Had the Constitution given any power to deprive any 

person of trial by jury? That if once we were to permit executive power to 

overleap its limits, where was it to stop7 And. if the executive branch 

exercised powers not bestowed, it overleaped the Constitution. He asked if 

we had arrived to that situation, that the powers which the people possessed 

were to be surrendered. Were we approaching the system of Divine right. He 

proceeded to construe the alien law, and said that the precedent established 

by it was dangerous, both as it affected individuals, and as it affected 

states. That a power inclined to usurpation, to the injury of aliens, would 

be inclined to usurp, in the construction of the Constitution, to the injury 

of states; and that the precedent in the one case, would soon ripen into a 

law, for justifying the other.



He next read the sedition law, and proceeded to comment upon the words of 

it, especially the words counsel or advise. He asked how he could counsel or 

advise another, without speaking to him; consequently these words extended 

to words spoken. He put the case of his counselling his neighbour to 

withstand the two laws of Congress before mentioned. That, by the 

construction of the last-mentioned law, words were reached, and duties 

prevented: so that, if he should advise his neighbour in regard to those 

laws, the latter one enacted a punishment. He then asked, what was the case 

of a representative in State Legislatures. He had taken an oath to oppose 

unconstitutional laws. What was he to do? On one hand was perjury, on the 

other a prison. Suppose a law were to infringe the guarantee made by the 

Constitution, of a republican form of government. What was a representative 

to do? Was he not to withstand it? If such law should tend to destroy that 

guarantee, were we to wait until the enemy's detachments closed us in on 

every side? This sedition law said yes. In the construction of this law we 

were placed in the hands of lawyers. The judge would construe the law. There 

were two kinds of construction, a strict construction, and a liberal 

construction. The judge might put upon it a liberal construction. He stated 

an historical fact. That sedition was forbidden by the common law. That the 

law of England respecting treason, went no farther in describing that 

offence, than our law does in describing sedition. He then cited the case of 

Algernon Sidney. That Algernon Sidney wrote a book in answer to Filmer, to 

prove "that the authority of kings was not of divine original (a thing in 

those days deemed necessary to be proved). He wished a necessity might never 

appear for a new edition of this book. For this he was prosecuted and tried, 

condemned and executed. And this was a liberal construction of the law. He 

thought that this case might well be applied in an argument on the subject 

of this law of ours. However, the law was said to be harmless. That to bring 

themselves within it, men must unlawfully combine, they must conspire, they 

must lie, for that they might still tell truth without danger. But this 

could never satisfy him that it was not dangerous, when he recollected that 

the best patriots had been sacrificed by sedition laws, with the help of 

construction.



He then said that another distinction had been set up, that this law was not 

to restrain the freedom, but the licentiousness of speech. This, he 

observed, was an epithet which might be applied to any attempt to restrain 

usurpation. Men find no difficulty in pronouncing opinions to be both false 

and licentious, which diner from their own. That this same distinction (if 

it was just) would empower Congress to regulate religion, the freedom of 

which is secured by the same article which secures the freedom of speech. 

They might in the end be induced to regulate the mode of petitioning, that 

it might be performed orderly, and not licentiously, as it is in some 

countries, by crawling on the belly towards a throne, and licking the dust. 

He then observed, that a power to restrain treason, was more necessary in a 

government, than to regulate sedition: that our Constitution had yet limited 

the power over treason to a few cases, which he stated. However, Congress 

might still regulate the punishment in case of treason; and it was possible, 

that they might establish in such case a punishment short of death; a 

punishment even inferior to that for sedition. What then would result? 

Treason was the genus; sedition a species. If the first were limited, and 

the second not, what security had we? He then read the third article of the 

amendments to the Constitution, concerning freedom of speech, &c., and asked 

in what sense this clause was understood at the time of adoption? Could it 

then have been contemplated by any one, that such a law as this would ever 

have been passed? The adoption of the Constitution by this state was 

accompanied by a condition containing a reservation of these very rights: so 

that they must have been understood in a very different sense then, than 

when these laws of Congress passed. He read the ratification of the 

Constitution by the convention of this state, and said that the same ought 

to be looked upon as a contemporaneous exposition of the part of the 

Constitution referred to. He then asked, if the sedition law did in no 

respect cancel, restrain, or infringe the liberty of the press! And 

concluded his observations upon the first of the two subjects, to which he 

had before mentioned he should confine them, by saying that, if he had 

proved the laws spoken of to be unconstitutional, the objection to them on 

that ground was strong; and by asking further, could they then be justified 

upon the ground of necessity, or that they were harmless?



He began his observations upon the second subject, by asking if those laws 

were correspondent with human rights? Those rights, he said, were, freedom 

of speech, freedom of person, a right to justice, and to a fair trial. If an 

alien possessed those rights, he asked, could he avail himself of them under 

the present law? Could a citizen, under the sedition law, exercise the 

freedom of speech, or of religion, which last, a few days before, he had 

heard called a social right? It was not so. It was either a natural duty, or 

a natural right. Was it possible that at this day, religious worship could 

be restrained by law? The right of opinion, he said, should be held sacred. 

It ought never to be given up in any one instance. Religion was only a 

branch of opinion. With what propriety could that range of thought, bestowed 

by the Creator upon the human mind, be controlled by law. He deemed it a 

sacrilege for government to undertake to regulate the mind of man. It was a 

subject by no means within its powers. What would be the consequence of such 

a measure? Universal ignorance amongst the people. He then asked, if 

ignorance was a desirable thing? And were the free exercise of the faculties 

of the human mind, to be once restrained and shut up, he would ask them, 

then, what was man? He was therefore opposed to those laws, as being 

destructive of the most essential human rights. He again asked, if such laws 

were ever contemplated at the time of the adoption of the Constitution, and 

what would be the consequence of the destruction of those essential human 

rights, of which he had spoken? What would be the probable effects of those 

laws? They would establish executive influence, and executive influence 

would produce a revolution. There was great danger in throwing too great 

weight in any one scale. He then proceeded to inquire whether those laws 

would increase executive influence, and concluded that they would. That they 

would by begetting fear. If public opinion were to be directed by 

government, by means of fines, penalties and punishments, on the one hand, 

and patronage on the other, public opinion itself would be made the stepping 

stone for usurpation. If Congress should undertake to regulate public 

opinion, they would be sure to regulate it so as to detach the people from 

the state governments, and attach them to the general government. But, he 

said, the most dangerous effect of those laws would be, the abolition of the 

right to examine public servants. He again referred to Sidney's case, and 

recited the doctrine of Filmer, to illustrate this subject. To bring about 

such a measure as this, he said, it would be necessary for Congress, in the 

first place, to establish the point, that they were the masters, and not the 

servants, of the people. He said, government might do wrong. Could a 

criminal be ever brought to justice, who had a power to regulate the mode of 

his own examination? And is it not criminal in a government to oppress a 

people? If its acts were wrong, they would produce discontent: discontent 

was the only road to redress. But redress could never be obtained, because 

the sedition law prohibited the only mode of obtaining it, by punishing that 

very matter of exciting discontent. He asked what was despotism ? He defined 

it to be, a concentration of powers in one man, or in a body of men. The 

manner of concentrating them was unimportant: the end was the same. 

Individuals and states were equally affected by such concentration of power. 

The concentration of it in an individual, would enslave other individuals; a 

concentration of it in Congress, would operate to the destruction of the 

state governments; and that, if the balance of power which the state 

governments ought to hold against Congress, were once lost, we must be 

precipitated into a revolution. He adverted to the vast power concentrated 

in the Senate of the United States. This had been seriously viewed at the 

time of the adoption of the Constitution, and since. That, at the time of 

framing the Constitution, mutual concessions were made between the states, 

which he believed to be the sole reason for admitting the small states to an 

equal share of power in that body, with the large, the real counterbalance 

of which concession, was the existence of state governments. Thence he 

concluded, that being thus situated, if the balance which the states ought 

to hold, should happen to be lost, the small Senate of the United States, 

might govern America. He further said, that although he had read in 

pamphlets and newspapers, and also had heard it reported, that such 

principles as he held, led to commotion, still he would assert that it was 

more likely to happen that a majority of small states might adopt measures 

which would oppress the rest, although they should contain the greatest 

number of citizens: and that the result of this would be a civil war. The 

many would not submit to the few, and all history would show, that a 

majority armed with power, would never yield it without a struggle. He said 

that oppression was the road to civil war. To prove which, he asked what 

produced the war between Britain and America? Oppression. What produced the 

revolution of France? Oppression. What produced the revolt of the United 

Provinces from Spain? Oppression. He said, the way to keep a nation quiet, 

was to make it happy: that oppression goaded it on to civil war. In 

justification of which opinion, he stated that the people of the United 

States were at this time under the pressure of certain grievances. The way 

then to stop civil war, would be to stop oppression. But, said gentlemen, we 

must not disunite. To this he would answer, remove oppression, and union 

would take place. He had observed it asserted in a pamphlet circulated at 

this place, that these late measures of the government might be justified on 

the ground of self-defence. Under such a pretence as that, he said, Congress 

might pass any law whatever. This never could have been the object of the 

Constitution. He said, that the old instrument of confederation contained 

the same language, but no such power as that contended for was ever claimed. 

Had it ever possessed it, its want of energy would not have suggested the 

present Constitution. (He then read the preamble of the articles of 

confederation, reciting that the same was entered into for the public good, 

&c.)



By adopting a different construction from that made by himself, he said the 

propriety of no law which Congress should ever pass could be denied. He then 

concluded by saying, that our rights were the offspring of pangs and peril. 

Let them never then be wrested from us. It was the custom in some countries, 

for the prince to send for the first born child of every subject, to have 

him trained as a soldier for his army. In that case, could the distressed 

parent be assured that by surrendering his first-born, he would secure the 

rest ? The first-born of American rights, was the free examination of public 

servants. Were we to surrender that, could we be certain that the rest would 

be secured? That these rights were the fruit of victory, and recompense of 

blood. We had defended them against the arms of Britain. Never then let us 

surrender them to the arts of sophistry and ambition.



Mr. George K. Taylor moved that the committee might rise, in order to give 

time to himself and the other members to consider well the subject before 

them. He said, it was an important one, as the object of inquiry seemed to 

be, to impeach with unconstitutionality, two laws passed by both Houses of 

Congress, and by them declared to be constitutional.



Mr. Foushee made a few remarks in opposition to those of Mr. George K. 

Taylor in regard to the probable constitutionality of the laws, by reason of 

their having passed both Houses of Congress.



Mr. Nicholas hoped that the gentleman from Prince George did not intend, by 

moving to rise, to preclude from speaking any person then disposed to speak.



Mr. George K. Taylor said that he did not; but (after waiting some time and 

no member rising to speak) he renewed his motion for the committee's rising.



The committee rose accordingly, reported progress, and had leave to sit 

again.







____________



                IN THE HOUSE OF DELEGATES,



                Friday, December 14, 1798.



The House resolved itself into a committee of the whole House, on the state 

of the Commonwealth, Mr. Brackenridge in the chair, when, Mr. John Taylor's 

resolutions being still under consideration, Mr. Magill said, if he were in 

order, he would move that the resolutions should be read. 



The chairman declared the same to be in order, and the resolutions were read 

accordingly by the clerk. Whereupon,



Mr. GEORGE K. TAYLOR arose, and said that he never felt himself impressed 

with more awe than on that occasion. The subject was of itself sufficiently 

momentous; but the resolutions before them rendered it still more so. They 

contained a declaration, not of opinion, but of fact. They declared the acts 

of Congress, called the alien and sedition laws, to be unconstitutional, and 

not law. These laws, he said, had been passed by both houses of Congress. 

One of those houses was formed of the immediate representatives of the whole 

American people, the other of members chosen by the state legislatures. 

These two houses thus formed, and thus representing the whole people, and the 

respective state sovereignties, had passed those laws after solemn 

deliberation and discussion, and declared them to be constitutional. In such 

case, he conceived, the Legislature of Virginia, the representative of a 

part only of the American people, ought to deliberate seriously before they 

undertook to give an opinion upon them; and if their opinion should be such 

as the resolutions stated, they should still endeavour to couch that opinion 

in different language; for, by those resolutions, as they then stood, the 

people were encouraged most openly to make resistance. He compared the two 

legislative bodies, Congress and the Assembly of Virginia, together. He 

presumed the former to be as wise, as watchful of the public interests, as 

the latter. He then called the attention of the committee to what had been 

the determination of the legislatures of the other states. All which had 

taken these laws under their consideration, had given them their decided 

approbation, either by way of resolution, or address to the President. It 

could not be denied but that they had some wisdom, and that it was not 

exclusively confined to the Legislature of Virginia. As the legislatures 

then, of so many states, had concurred in the approbation of them, he 

thought it necessary for the Legislature of this state to hesitate in 

expressing its opinion of their unconstitutionality, especially when they 

reflected on the consequence attending it. For if these laws were 

unconstitutional, the resolutions made it the duty of the people to defend 

themselves against them. He said he would then proceed to show to the 

committee, that those laws were not unconstitutional. In that attempt he was 

not certain whether or not he should succeed. He possibly might bring them 

to doubt, and should he do that, he should feel in some measure satisfied. 

On the other hand, they might be assured that the consequences of pursuing 

the advice of the resolutions, would be insurrection, confusion, and 

anarchy. The business upon which they were acting, he said, was of an 

extensive nature. The gentleman from Caroline had spoken upon both laws. He 

should confine himself to the alien law only. He conceived that would be as 

much as he could perform. For in doing that, he should fatigue himself, and 

he expected the committee also.



He proceeded then to examine the situation of aliens coming into this 

country. He said, they had no more rights here, than they had elsewhere. He 

asked upon what footing aliens came into any country? By right, or by 

permission? Still it was said, that their rights were to be affected by this 

law of Congress. He then cited and read Vattel, page 157, section 94, to 

show that a nation may prohibit foreigners from entering its territory; and 

from that authority concluded, that their admission into a country was by no 

means a matter of right, but of favour. He said, the alien did not come 

within the scope of the general laws of the country into which he came. 

During his stay therein, he was to be protected indeed by those laws; but 

was not the object of them. He cited and read Vattel again, page 100, 

section 231, and Blackstone's Commentaries, vol. 1, page 259, to show that 

by the law of nations, it is left in the power of all states to take such 

measures about the admission of strangers as they think convenient: that so 

long as their nation continued at peace with that in which they resided, and 

they behaved themselves peaceably, they were under the protection of the 

government of that nation, though liable to be sent or ordered away, 

whenever that government saw occasion, or its safety required it. If there 

were nothing then, he said, in the Constitution of the United States, 

respecting the migration of persons, the doctrine of the law of nations 

which he had read, was sound, and the general government might by that 

lawfully restrain or regulate the entry of aliens, and order them away if 

necessary. But the Constitution had a clause in it upon that subject, being 

the first clause of the ninth section of the first article, which he read, 

in these words: "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; but a tax or duty may be imposed on 

such importation, not exceeding ten dollars for each person." This clause 

then, he said contained a recognition of the right of Congress to prohibit 

migration or importation after the year 1809. In his opinion too, the 

prohibition of the right of Congress by that clause, extended only to such 

states as were existing at the time of framing the Constitution; which 

showed that Congress of course might regulate the migration of persons to 

such states as wore established after that time; and that was exemplified by 

the prohibition by Congress of the admission of slaves into the new states. 

The clause read, then, took away from Congress the right of prohibiting 

migration within a limited time. But though the entry was prevented, the 

question then recurred, was their removal when dangerous prevented also? The 

question was of great importance. When these states, he said, declared 

themselves independent, they entered into articles of confederation. That 

was a system composed of one body: there was no executive, no judiciary. By 

that system, that single body could enact nothing binding on the people. It 

was consequently dependent on the several states for the execution of all 

its measures. The old Congress wished to establish a duty of five per centum 

only on goods imported, but it could not be carried into effect by reason of 

the opposition of the states. To obviate that mischief the Federal 

Convention was appointed, which assembled and framed the present 

Constitution. That took from the several states all matters of a general 

nature; all matters relating to foreign nations. It established legislative, 

executive, and judiciary branches, which acted upon the several matters 

coming within their respective spheres; and it certainly intended that all 

matters of general national concern should be confided exclusively to the 

general government. There was a general consent of the people that such 

matters should be vested in the general government, and taken from the 

states. He then read the list of powers vested by the Constitution in the 

general government. By the general law of nations, he said, the admission of 

aliens into a country was altogether a matter of grace. They might therefore 

be removed by the government of the country, whenever it was deemed 

necessary. If the general government, then, possessed not the power of 

removal, one great mischief of a general nature, which it was intended to 

remedy, would remain as before. The union would be dependent upon sixteen 

sovereign and jealous states, for carrying into effect such a measure. Some 

of these states, too, might be on the verge of insurrection. An alien 

banished from one might be admitted into another, which would protect him, 

and thereby the general welfare in that instance defeated, and Congress laid 

at the mercy of the particular states. He asked what was the situation of 

America and France at that time? It was true there was no declaration of war 

between them, but they were not at peace. He enumerated their various acts 

of hostility towards us, and then asked if there was no danger to be 

apprehended from aliens of that country. He himself thought there was. He 

related also the numerous designs and machinations which they had been 

contriving against us. He deemed it therefore highly necessary that the 

general government, established for general benefit and common protection, 

should possess the power of removing them. But, if the law of Congress were 

to be construed unconstitutional, the general government could not remove 

them. He read the observations of Mr. Jefferson respecting the necessity of 

a government having the powers of defence and protection; also Mr. Madison's 

speech in the Convention of Virginia to the same effect; and applied them to 

the case in question. It was true, he said, that the Constitution prohibited 

the general government from preventing the migration of foreigners prior to 

the year 1808: but at the same time, the principles of protection must 

induce a belief that the Constitution did not intend or enact, that when 

here, they should riot be removed, however dangerous to the general weal. 

Still, however, it was objected, that by the twelfth amendment to the 

Constitution it was declared, that the powers not granted to Congress, were 

retained by the people, or the states respectively. It was clear, he said, 

that even without that amendment, no power could have been exercised by 

Congress, which was not expressly given to it, or did not follow by 

necessary implication. The case, he said, was still the same. In regard to 

an express grant, there could be no dispute; and the doctrine of necessary 

implication was proved by the Constitution, when in the last clause of the 

8th section, it grants to Congress the power "to make all laws which shall 

be necessary and proper for carrying into execution the foregoing powers, 

and all other powers vested by that Constitution in the government of the 

United States, or in any department or officer thereof." From that clause, 

then, he said, the power of Congress to pass the law in question, was 

clearly sanctioned by necessary implication. All cases arising under the 

Constitution could not be foreseen and enumerated: therefore, that clause 

was inserted for the purpose of enabling Congress to carry into effect the 

powers expressly given it by the Constitution. Whatever then necessarily 

flowed from these express powers, were within the scope of Congress. He then 

asked if there were anything in the Constitution, from which the law in 

question could necessarily and properly proceed? To discover that, he first 

proceeded to examine the preamble. That, he said, declared the Constitution 

to be formed in order to form a more perfect union, establish justice, 

insure domestic tranquillity, provide for the common defence, promote the 

general welfare, and secure the blessings of liberty to ourselves and our 

posterity. The passage of an alien law then, he said, was justifiable for 

the purpose of answering the four great ends last mentioned in the preamble, 

which showed the object and intention of the Constitution. But he said, 

there was something in it more positive. He called their attention to that 

clause in the enumeration of the powers of Congress "to define and punish 

piracies and felonies committed on the high seas, and against the law of 

nations;" and said, that aliens came within it, since for an alien to 

conspire against the peace of the nation, which permitted him a residence 

therein, was an offence against the law of nations. He further read the 

clause declaring that the United States would guarantee to the several 

states a republican form of government, and protect each of them against 

invasion. He relied much upon the term protect used in that clause. 

Protection, he said, was a preventing, a guarding against. He would compare 

it to a shield, which an individual cast before him to protect himself 

against the javelin before it reached him; for it would be no protection, if 

he waited till the wound was inflicted. He observed, that whatever flowed 

from a grant, followed the grant itself. Congress, therefore, in protecting 

the states, might enact cautionary laws for the purpose. A law sending away 

dangerous aliens was a cautionary law, tending to protect the states. Every 

society had as much right to prevent the mischief which aliens might do, as 

to punish them for it after it was done. Aliens might be punished for crimes 

as well as citizens. So, laws might be passed for preventing the commission 

of crimes by them, as well as for preventing the commission of them by 

citizens. But such a law must always be temporary. It could not be 

permanent. It would continue only so long as danger existed. It would affect 

only dangerous persons. Aliens could only be dangerous in time of war, or in 

times verging towards war. In times of safety, such a law would be 

unnecessary and improper. He agreed, therefore, that a permanent law of that 

kind including all aliens, passed before 1808, would be unconstitutional; 

since it might absolutely defeat the 9th section. But that a temporary law 

passed only for the purpose of ordering away dangerous aliens, was a law of 

protection to the states. It was a necessary power for every government to 

possess. A government would be worth nothing without it, since it could not 

protect the people. He then proceeded to take the Constitution altogether, 

recapitulated the several clauses before cited, and said it was a rule of 

construction of all instruments, that all the parts should be taken and 

considered together, that they might stand together, and be reconciled with 

one another if possible. He called their attention to two clauses of the 

Constitution, the ninth section of the first article reserving to the states 

the right of permitting migration, &c., and the fourth section of the fourth 

article, which declares that the United States shall protect each state 

against invasion. When one part, then, of the Constitution, he said, 

reserved to the states the right of permitting migration, and another 

granted to Congress the power and duty of passing all such laws as would 

protect the states from invasion or violence, would not the same operate as 

a proviso qualifying the former general expression, and allow Congress from 

principles of protection, to expel dangerous aliens? He thought at any rate 

the power in that case contended for, a necessary one, even were it not in 

the Constitution. And in such a case, the legislature ought to recommend an 

amendment to the Constitution for the purpose. Since the adoption of the 

Constitution, he said, Congress had passed laws for erecting forts in 

different parts of the United States. He asked what part of the Constitution 

gave them that power? They must derive it from the fourth section of the 

fourth article only, the same being for the purpose of protection. There was 

a necessity for exercising this power at that time. We had amongst us a 

number of dangerous Frenchmen. The chief author however of the plots had 

sneaked off, as well as his associates. He said he was happy to be clear of 

them. Since they were gone, that law was no Longer necessary: Congress might 

then properly repeal it. Yes, he said, the incendiaries were gone. He 

congratulated America upon it. He hoped they never might return. But an 

objection had been made that the alien law had taken away from the poor 

alien the trial by jury. He said that aliens were not a party to the 

compact, but citizens only. The Constitution secured rights to citizens, and 

declared that they should not be deprived of them, but by trial by jury. 

But, aliens not being a party to the compact, were not bound by it to the 

performance of any particular duty, nor did it confer upon them any rights. 

He referred to Vattel again, to show that by the law of nations, the 

admission of aliens into a country was not a matter of right, but of favour; 

and observed that ordering away an alien, was not divesting him of any 

right, but withdrawing from him a favour; and that it was new doctrine that 

a favour could not be withdrawn, but by trial by jury. He then observed that 

the alien law did not touch life, liberty, or properly; but only directed 

the alien to be removed. If he would not remove himself, however, when 

ordered away, but remained obstinate, he might then be imprisoned. He read, 

and relied upon the favourableness of that clause of the law which extended 

to the suspected alien the right of proving to the President that he was 

harmless. He still asserted that the law of nations gave a power to the 

government to remove aliens when dangerous; and that, by the law in 

question, neither life, liberty, or property was touched, except in cases of 

contumely. He then stated the case authorized by our municipal laws, 

respecting surety of the peace; and asked, how did the trial by jury stand 

in that case? The citizen, he said, was deprived of it, and that too in a 

free country. The case of the alien then, was not harder. The trial by jury 

was dispensed with in the case of the peace-breaker; therefore, the same 

might be done in the case of an alien. He said, that the terms upon which 

aliens were admitted, were, their not intermeddling with the concerns of the 

nation. Should they do so, and, upon being required to withdraw, continued 

obstinate, they must be committed in the same manner as citizens who refused 

to give surety of the peace.



Another objection had been made, that if they were sent out without trial by 

jury, they might next be deprived of life and property without it. This, he 

said, could not be done. An alien was entitled to them as natural rights; 

and therefore, as they were rights, could not be deprived of them without a 

trial by jury. The case was quite different in regard to his removal, as his 

admission into the country was not matter of right, but was merely a matter 

of favour. It had been also objected, that the three powers of government 

were all blended in the President by the alien law. He said that they were 

not. But, if such a power in regard to aliens were necessary, it must be 

entrusted somewhere. It could not be with a private individual. It could not 

be with the judiciary. It could not be with the legislature; but might most 

properly be with the executive. He, by the Constitution, was bound to 

execute the laws: therefore, it was most properly entrusted with him, being 

the executive officer, with whom all persons and bodies whatever were 

accustomed to communicate. It could least of all be entrusted with a court 

which transacted its business publicly. For these matters must be in 

confidence. That was often necessary for nipping things in the bud. Secrecy 

then being absolutely necessary, and a court of law being publicly held, and 

at stated periods, the proceedings might be divulged, or the explosion take 

place, before they could obtain information, or try the fact. And all that 

too, not for the sake of a matter of right, but mere courtesy. It could not 

be entrusted to the legislature, unless its sittings were permanent: it 

could, then, only be entrusted with the president. To prove the justice and 

fairness of this regulation, he again introduced the case of a man brought 

before a magistrate to give surety of the peace. On the complaint of A., he 

said, the magistrate might arrest and imprison B., until he gave security to 

be of good behaviour. In that case, a map was deprived of liberty without a 

trial by jury; but that was right, because society was bound to protect as 

well as vindicate its citizens; and before a trial of the fact could be had, 

the person apprehending danger might be murdered. He again cited Mr. 

Jefferson's piece to prove, that no cases under the law of nations were ever 

submitted to a jury to be tried. He cited also part of a speech of Mr. 

Madison, in the Convention of Virginia, nearly to the same effect; and 

thereupon observed, that the trial by jury was only used in municipal 

regulations, where citizens and others were concerned under the particular 

laws of the state, and not in cases between the government and aliens, which 

arise under the law of nations. That even in matters of right, the right of 

the individual ought to yield to the good of the community. He then read 

that clause in the Constitution concerning the suspension of the writ of 

habeas corpus, and said, that the suspension of that writ might take place 

during the existence of rebellion or invasion. In that case, a citizen 

might, at the will of the President, be committed and confined until the 

existing danger was over. And if a citizen, invested with all civil rights, 

might thus be confined in a time of danger, so ought an alien, who had no 

positive political right whatever, when the good of the community required 

it. He said, he might produce many other instances, to prove the propriety 

of necessary implication. He then mentioned the subject of foreign 

intercourse, and asked whence was that power derived? He knew no part of the 

Constitution which particularly authorized it. It could be derived only from 

that clause of the Constitution, which prohibited to the states the power of 

making any treaties, or entering into any agreements. It had been observed 

by the gentleman from Caroline, that Congress had passed a law to send away 

alien enemies, and that was a good law. Where was that power to be found? 

Nowhere, except it were derived from that protective power, which was to be 

gathered from the Constitution by means of implication only, or by 

implication from the power given to declare war. He further asked, at what 

time those laws were passed, and what was the cause? And then observed, that 

whatever construction led to an absurdity, was erroneous. He then supposed 

the case of the states having the power of admitting aliens, and the General 

Government not having the power of removing them. The Assembly of Virginia 

might think a whole army of aliens admissible. Suppose, he said, that 

Bonaparte and his army (if they could ever get out from the Nile again) were 

to arrive within the state, and they should think them too, admissible; by 

the construction of the resolutions before them, Congress in such case ought 

not to remove them. The right of protection, he said, was a natural right, 

appertaining to each individual, and that a number of individuals had as 

much right to protect themselves as one individual. Did the Constitution 

prohibit such a right? He then observed, that both the Constitution of the 

United States, and of this state, directed that the trial by jury should be 

held sacred. He said, he would then proceed to examine if that right had 

never been pretermitted by any law of the state; and requested that the law 

of Virginia, for removal of aliens, passed in 1792, should be first read. 

(It was read accordingly by the clerk.) He then observed, that although the 

Constitution of the state directed that the trial by jury should be held 

sacred, yet that law "authorized the Governor to apprehend, and secure, and 

compel to depart out of the commonwealth, all suspicious persons, &c., from 

whom the President of the United States should apprehend hostile designs 

against the said states." In that instance, then, a previous legislature had 

acknowledged as a matter indisputable, what this legislature disputed, that 

a suspicious alien might be sent away at the instance of the President. 

Their law even authorized the sending away the alien without a trial, and in 

the mean time his being imprisoned. Yet that legislature, in passing that 

law, did not suppose it had violated the Constitution. He then read the act 

of Congress under consideration. He compared both acts together, and said 

that he looked upon them to be nearly the same. If there were any difference 

between them, he said it was, that the law of the state was more severe than 

the law of Congress, inasmuch as the former subjected the alien to 

imprisonment at all events: the latter only in case of his refusal to remove 

himself. It was remarkable, too, he said, that the same law of the state, 

although passed in 1793, was re-enacted from one passed in 1785, thirteen 

years ago, and so many years nearer than the present time to the Revolution, 

when it is to be supposed the principles of that Revolution were much purer 

than they were at the present time. He then contended that there" was the 

same reservation to the people of all powers not granted to the state 

government, as was to the states of all powers not granted to the General 

Government. Consequently, the trial by jury being declared sacred by the 

bill of rights, the legislature of the state could have no more power by the 

Constitution to pass such a law, than Congress had by the Constitution of 

the United States. Yet no complaint against such a law had ever been heard 

until the law of Congress was passed. All the clamour had been reserved for 

that alone. He again observed, that no other state legislature had passed any 

such resolution as the one before them. They must be presumed to be equally 

watchful: they must be presumed to have wisdom too, and that it was not 

exclusively confined to this legislature. They should hesitate, therefore, 

in making such a declaration as was then contemplated. He then called for 

the reading of the law of the state, which authorized the delivering up a 

citizen committing a crime in a foreign country, at the instance he said of 

the United States, without trial by jury, on mere suspicion and on demand. 

(The clerk read the law.) Mr. Taylor then called the attention of the 

committee to the last clause of the law, from which it appeared that the 

offender might be tried by a jury for the offence in this state, but was 

deprived of such a trial by the fourth section, where he was delivered up to 

a foreign nation on requisition. He ascribed the reason for dispensing with 

the trial by jury, in the latter case, to be, because it was a case within 

the law of nations, which admits no trial by jury, and still that law was 

thought not incompatible with the Constitution. He observed that the 

gentleman from Caroline had dilated much upon the probable effects of the 

law of Congress in question. He would indulge himself in the same manner.



What, said he, would be the situation of this country, were it once known 

that Congress had no such power as that of removing aliens? He begged them 

to recollect what horrid scenes of devastation and carnage had been 

exhibited by Frenchmen in their own island of Saint Domingo. If France would 

abandon her people there, and desolate the fairest colony in the world, 

could it be supposed, that they would love us more than themselves: that 

they would spare their foes. He begged them to recollect too, the doubtful 

state of affairs between our country and France. It was true that the two 

nations were not at war, since no declaration of war had been on either 

side, but they were not at peace, since each party was seizing the vessels 

of the other. War then might ensue, and at the time the alien law was 

passed, it was a thing extremely probable. Every nation, before it struck, 

prepared as deadly a blow as possible. He then asked if the French could 

wound us in any respect so vitally, as by arming the slave against his 

master. Attempts, he said, had been already made, by French emigrants, to 

excite our slaves to insurrection. Suppose then, they were to attempt the 

thing again, and an insurrection should accordingly take place, what would be 

the consequence? In that common calamity, he said, the ranks of society 

would be confounded; the ties of nature would be cut asunder; the inexorable 

and blood-thirsty negro would be careless of the father's groans, the tears 

of the mother, and the lamentations of the children. The loudest in their 

wailings would be their wives and daughters torn from their arms, with naked 

bosoms, outstretched hands, and dishevelled hair, to gratify the brutal 

passion of a ruthless negro, who would the next moment murder the object of 

his lust. He then asked how all that was to be prevented? By vesting the 

general government with that power to remove such aliens, which it had 

already so generously exercised for the purpose, in the law then under 

consideration: a law particularly calculated for the protection of the 

southern states. He then mentioned what success the French had had, in other 

countries into which their emigrants had been admitted. What intrigues they 

had carried on in Venice, Switzerland, Holland, &c., all which countries had 

been expunged from the list of republics, and added to the already overgrown 

dominions of France. These events, he said, had been brought about chiefly 

by stirring up the people to discontent, by alien incendiaries. It was 

necessary then, that the United States should adopt proper measures to 

prevent such mischiefs. To that end, said he, let us cherish the law passed 

for the purpose. He then proceeded to relate the late conduct of the French 

towards us, and what description of persons had migrated from that country 

to the United States, -- the most noted characters of whom were Volney and 

Talleyrand. He made several remarks upon the conduct of both of them while 

in this country, but gave a particular account of the peregrination of the 

latter from Europe to America, thence back again to Europe: how he was 

denounced and proscribed by his countrymen, restored to favour again, and in 

the end preferred to the ministerial office which he then held. It behoved 

the people of this country, therefore, to be on their guard against him and 

all the rest. He wished, he said, to conclude; for he was conscious that he 

had fatigued himself, and he supposed the committee also. He should be glad, 

however, to be permitted at some other time to deliver his sentiments in 

regard to the sedition law. He thought indeed, that the best way thereafter 

would be to discuss one law at a time. He further observed, that the members 

of that Congress which had passed those laws, had been, as far as he could 

understand, since generally re-elected : therefore, he thought the people of 

the United States had decided in favour of their constitutionality, and that 

such an attempt as they were then making to induce Congress to repeal the 

laws, would be utterly nugatory.



Mr. RUFFIN arose next, and said that he was convinced his abilities would 

not enable him to place the subject in such a light as it would be placed 

before it was finished. However, as it was a matter of much importance, he 

was induced to assign his reasons for the vote which he was about to give. 

He should confine himself, he said, to two points: the constitutionality of 

the laws, and the consequences. The alien law, he said, was unconstitutional 

in two points: and, after observing that, although an alien did not enjoy 

all the rights of a citizen, yet he enjoyed some, he proceeded to show in 

what points that law was unconstitutional. He thought it so for two reasons: 

1st. Because it blended several powers in one person; and 2dly. Because it 

contained powers not granted to Congress by the Constitution. He then 

proceeded to state how the alien was to be deprived of the trial by jury, 

and to be banished for particular acts, at the time of their commission, 

innocent, but which might, by a retrospective operation of the said act, 

(the President being thereby armed with legislative and judicial, as well as 

executive power,) be made criminal. The gentleman from Prince George, he 

said, had admitted that if Congress were to pass a law to exclude all aliens 

for ever, prior to the year 1808, it would be unconstitutional. Mr, Ruffin, 

then begged leave to inquire as to the difference of the effect which such a 

law would have from the present alien act of Congress, should Congress 

annually think proper to re-enact the law as it now stood, until 1808. The 

principle and effect, he said, were the same. The only rational conclusion, 

then, to be drawn from the concession of the gentleman was, that if Congress 

be incompetent to the passage of a permanent law, (except, indeed, where the 

Constitution interposes,) they must be incompetent to the passage of a 

temporary one. But the gentleman, he said, had attempted to prove the 

constitutionality of that act, by saying that Congress had passed, or might 

pass, laws respecting alien enemies. The cases, however, Mr. Ruffin, said, 

were extremely different. Congress alone could determine upon war or peace: 

consequently, alien enemies were proper subjects for congressional 

legislation: but that alien friends were exclusively subject to the 

sovereignty of the several individual states; as the twelfth article of the 

amendments to the Federal Constitution 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." And as at the same time, he said, the only power given by that 

compact to the general government, over alien friends, was in the ninth 

section of the first article, it must follow that this was one of the 

rights reserved to the states. The gentleman last up, he said, had contended 

however, that this power was rightfully exercised by Congress, and had taken 

the broad ground of construction and implication, upon which to erect his 

fabric. Construction and implication, Mr. Ruffin said, was a doctrine which 

he had hoped was banished from the councils of America. It was a doctrine 

which the people of America had unanimously and uniformly protested against. 

It was the exercise of this kind of right by the British parliament which 

involved us in a war with that government. It was to guard against the 

exercise of such a power, that the state constitutions were formed: and it 

was that abhorrence in America to constructive and implied rights, that 

induced the specific delineation of congressional powers. Let them admit, he 

said, the position of the worthy member, and then mark the extent to which 

it would carry them. In the preamble to the Constitution, the ends designed 

to be produced by that compact, are enumerated. Amongst them the following: 

"to provide for the common defence, promote the general welfare:" and in the 

eighteenth clause of the eighth section of the first article, " to make all 

laws which shall be necessary and proper for carrying into execution the 

foregoing powers, &c.," were the parts of the Constitution, by which it was 

contended, that those constructive and implied rights are given:



Suppose, said Mr. Ruffin, the general government should be of opinion that 

those objects would be produced in a higher degree by continuing the present 

members in office for ten years, or for life? Was there any person who then 

heard him, who would think such an exercise of power legitimate? Certainly 

not. Yet he contended that such a power was as impliedly given by the 

Constitution, as that which Congress had taken upon itself to exercise over 

alien friends. Mr. Ruffin then concluded by observing, that as it was then 

late, and the committee appeared to be fatigued, he should reserve the rest 

of his observations for another opportunity.



The committee then rose, reported progress, asked and bad leave to sit 

again.







____________



                IN THE HOUSE OF DELEGATES,



               Saturday, December 15, 1798.



The House resolved itself into a committee of the whole House, on the state 

of the commonwealth, Mr. Brackenridge in the chair, when Mr. John Taylor's 

resolutions being still under consideration,



Mr. MERCER arose and said, that he felt great difficulty in prevailing upon 

himself to fake a part in the very interesting discussion which had arisen, 

and would probably be continued, upon the resolutions submitted to the 

committee. This difficulty was produced, not by any want of confidence in 

the rectitude of the opinion which he entertained, or in the purity of the 

motives that would ultimately direct his vote. On the one hand, he was 

deeply impressed with the importance of the subject; on the other, he felt 

and acknowledged his own inability to do justice to its merits; but, in 

proportion to the magnitude of the question, was his solicitude to explain 

the principles upon which his opinion was formed. The manner in which the 

laws complained of had been defended here, and elsewhere, was to his mind 

more alarming than the laws themselves. It showed that gentlemen were ready 

to defend, not only existing violations of the federal Constitution, but any 

infractions which might hereafter be committed upon it. For, if the opinions 

which the gentleman from Prince George submitted to the committee yesterday, 

be correct, the nature of that Constitution was changed. It was not what the 

people and states understood it to be at the time of its ratification. Its 

powers were enlarged to a dangerous extent. It could no longer be considered 

as producing a confederation, but certainly established a consolidated 

government. 



Every question, Mr. Mercer said, which related to the respective powers of 

the state and general government, was, in itself, of magnitude sufficient to 

engage the whole attention of gentlemen who were desirous of preserving to 

each its proper powers, and to maintain that entire independence which 

belongs to each, and which each had a right to enjoy. He was, therefore, 

surprised, when he heard the member from Prince George, yesterday, calling 

the attention of the committee to subjects, which, however interesting in 

themselves, could not be supposed to have the most remote connexion with the 

resolutions upon the table. Those, said Mr. Mercer, embrace several 

constitutional questions, which ought to be considered by themselves; they 

point out a plan by which the friends of the paper believe. a repeal of the 

supposed unconstitutional acts would be most readily obtained. It was a 

solemn appeal to the understanding of the committee; yet, the injuries of 

France to America, her excesses in Europe, always magnified and 

misrepresented by the enemies of freedom in every quarter of the world, and 

the misfortunes of St. Domingo, had been pressed with considerable force by 

that same gentleman. This effort, Mr. Mercer said, had been practised with 

great effect in the community. It was scarcely possible to consider the 

measures of our own government, and candidly to examine their influence upon 

the public happiness, without being subject to the imputation of an undue 

attachment to a foreign power. He rejoiced in knowing, that as long as the 

charge had existed, and as often as it had been repeated, not a single 

instance had been produced throughout America, by which it could be 

supported. It was used as the apology for a system of measures which could 

not have been adopted, without receiving the universal disapprobation of all 

who have a knowledge of the principles of the federal Constitution, and of 

the clear limitation of power contained in that instrument. For his part, he 

did not see how a view of the insults offered to America by France, could 

decide the merit of the resolutions. He hoped the committee were ready to 

repel the former, as well as to consider the latter. To preserve the 

Constitution, was to preserve the union; and to maintain that, upon the 

principles upon which it was originally formed, was to bid defiance to every 

foreign power, whose conduct might be hostile to the independence and rights 

of our country.



The gentleman from Prince George had told the committee that the resolutions 

introduced by the gentleman from Caroline were calculated to rouse the 

people to resistance, to excite the people of Virginia against the could 

result from their adoption. They contained nothing more than the federal 

government. Mr. Mercer did not see how such consequences sentiments which 

the people in many parts of the state had expressed, and which had been 

conveyed to the legislature in their memorials and resolutions then lying 

upon the table. He would venture to say, that an attention to the 

resolutions before the committee would prove that the qualities attempted to 

be attached to them by the gentleman could not be found. He begged leave to 

read the first and second clause, in which it is declared, "that the General 

Assembly doth unequivocally express a firm resolution to maintain and defend 

the Constitution of the United States, and the constitution of this state; 

and that they will support the government of the United States in all 

measures warranted by the former," and to maintain the union, "it pledges 

all its powers." Language less calculated to rouse resentment could not be 

used: nor were the resolutions addressed to the people, and if they were, 

Mr. Mercer said they would not have been objected to by him on that ground. 

If the people were not to be confided in, we were wretched indeed. In whom 

were we to confide, if not in the people? In their virtue and patriotism 

were all his hopes placed. The history of government had been the history of 

crime and usurpation. In the purity of administration he could not solely 

confide. The people were the best, and the only defenders of their 

liberties; when they became ignorant of the proceedings of their own 

governments; when public virtue should cease to be their ruling principle, 

their liberties would experience the same fate, which those of other nations 

had undergone: power would stand in the place of the Constitution. He hoped 

no arguments derived from the probable consequences upon the people of 

adopting the resolutions, would prevent the judgment of the committee from 

being calmly exercised upon them.



The right of the state government to interfere in the manner proposed by the 

resolutions, Mr. Mercer contended, was clear to his mind. He asked, what 

were the rights belonging to the state governments prior to the existence of 

the federal Constitution? They were those which belong to all sovereign and 

independent states. They were perfect and complete. The federal Constitution 

derived its powers from the people and the states, and could give none but 

what had been previously in the possession of the states or the people, and 

by them delegated to the general government. It would not be said, that all 

power was delegated to the general government; though it had indeed been 

improperly said, as he should attempt to show before he took his seat, that 

the powers of the federal government were general. He should attempt to show 

they were special, and that none but what were specially delegated could be 

exercised. It appeared to him, that, from the operation of the two separate 

governments in the same community, there resulted three species of rights to 

be exercised. There were rights which the " federal government could 

exclusively exercise, without any interference on the part of the state 

government; there were rights which could be exercised by each government at 

the same rime, and there were rights which belonged exclusively to the state 

government. The latter embraced all which had not been delegated in the 

federal Constitution to the general government, or prohibited to the states 

by that instrument. That portion of power which had been delegated to the 

federal government, did not affect the sovereignty of the states" over the 

reserved rights; that sovereignty continued entire; and remained as to the 

reserved rights, what it had been with respect to all the rights, before the 

federal Constitution. If the remaining rights are sovereign, the states 

whose sovereignty is invaded by any act of the general government have it as 

fully in their power to defend and protect these, as they would have had to 

defend any of their rights if attacked by a foreign power, before the 

general government had a being. The state believed some of its rights had 

been invaded by the late acts of the general government, and proposed a 

remedy whereby to obtain a repeal of them. The plan contained in the 

resolutions appeared to Mr. Mercer the most advisable. Force was not thought 

of by any one. The preservation of the federal Constitution, the cement of 

the Union with its original powers, was the object of the resolutions. The 

states were equally concerned, as their rights had been equally invaded; and 

nothing seemed more likely to produce a temper in Congress for a repeal, 

than a declaration similar to the one before the committee, made by a 

majority of states, or by several of them. The states had the power of 

communicating together in producing amendments to the federal Constitution. 

A proposition for this purpose had been presented to the legislature, during 

the present session, from the state of Massachusetts, and would be acted 

upon before their adjournment. It appeared strange that the states might 

communicate together to amend the Constitution, and were not permitted to do 

so, in order to protect the same when amended; that they might communicate 

together when they chose to give away their rights, but could not do it when 

their reserved rights were invaded. The reverse of this Mr. Mercer was happy 

in believing was true. The opinion contained in the resolutions was coeval 

with the Constitution itself, and had been maintained by the most 

enlightened commentary which had been produced in America upon that 

instrument (he alluded to a collection of papers written under the signature 

of Publius, in the state of New York), when the Constitution was under 

consideration, and generally known by the name of the Federalist. The union 

of talents exercised in the production of this work had justly entitled it 

to the attention of every American who is anxious to know the true meaning of 

the federal Constitution, and the real intent of its powers; and though some 

of its opinions may be erroneous, it was still the best authority that could 

be produced. The time of its being written was extremely favourable to the 

impartiality of its sentiments, as that vindictive party spirit which had 

now so unhappily extended its baneful influence to almost every individual 

in the community, could not have affected its supposed authors, one of whose 

merits had so justly been resounded a few days ago from every side of this 

house. This authority, when speaking of the checks which the state 

governments would always have upon the general government, and of the little 

probability of the latter engrossing powers unobserved, uses the following 

strong and decided language: "If the majority (in the general government) 

should be really disposed to exceed the proper limits, the community will be 

warned of the danger, and will have an opportunity of taking measures to 

guard against it. Independent of parties in the national legislature itself, 

as often as the period of discussion arrived, the state legislatures, who 

will always be not only vigilant, but suspicious and jealous guardians of 

the rights of the citizens against encroachments from the federal 

government, will constantly have their attention awake to the conduct of the 

national rulers, and will be ready enough, if anything improper appears, to 

sound the alarm to the people, and not only to be the voice, but, if 

necessary, the arm of their discontent:" vol. 1st, page 166. Their 

sentiments embraced the plan proposed in the resolutions. They spoke a 

language much stronger than any which these would be found to contain. We do 

not wish, said Mr. Mercer, to be the arm of the people's discontent, but to 

use their voice. The same authority has maintained the right of the states 

to interfere in the manner expressed in the resolutions submitted to the 

committee, in terms still more applicable. "It may safely be received as an 

axiom in our political system, that the state governments will, in all 

possible contingencies afford complete security against invasion of the 

public liberty by the national authority. Projects of usurpation cannot be 

masked under pretences so likely to escape the penetration of select bodies 

of men, as of the people at large. The legislatures will have better means 

of information. They can discover the danger at a distance; and possessing 

all the organs of civil power, and confidence of the people, they can at 

once adopt a regular plan of opposition, in which they can combine all the 

resources of the community. They can readily communicate with each other in 

the different states; and unite their common forces for the protection of 

their common liberty:" vol. 1st, page 176. Here, said Mr. Mercer, we see the 

opinion of the resolutions so clearly admitted, as to be considered a 

"political axiom in our system." The right of two different states "to 

communicate with each other," is here supported by the best defence which 

the federal Constitution ever received; not only this right is defended, but 

were the states to "adopt a regular plan of opposition, in which they should 

combine all their resources," this authority, addressed to the people at the 

time the Constitution was under consideration, would justify the measure. 

But no such wish was entertained by the friends of the resolutions. Their 

object in addressing the states is to obtain a similar declaration of 

opinion with respect to several late acts of the general government, which 

seem to violate some of the most invaluable rights secured by the charter of 

their own existence; and thereby to obtain a repeal of measures 

unconstitutional in their nature, and hateful in their tendency; measures so 

justly obnoxious to the people, that they would have found few advocates, 

but for the vain pretence of their being necessary to defend us against the 

attempts of France; measures that have divided the community at a moment 

when union of sentiment is ardently to be wished for by every friend to the 

interest of his country.



The gentleman from Prince George had introduced the opinions of a learned 

writer upon the law of nations, to prove which were the rights of aliens. 

Though, Mr. Mercer did not believe this class of men stood, in a foreign 

country, upon the narrow ground in which it was attempted to place them, 

yet, he deemed it entirely unnecessary to inquire what was the nature and 

extent of their rights; he should contend that the federal government 

possessed no power over aliens in time of peace; and, therefore, whatever 

power a sovereign state could exercise with respect to them, under the 

general law of nations, that power belonged to the state, and not to the 

general government; the rights of sovereignty did not attach to the federal 

government in all their extent: it was sovereign only with respect to the 

rights which it could exercise exclusively: it was limited in its operation, 

and the boundaries of its authority clearly ascertained; unless, therefore, 

this power over aliens should be found vested in the general government by 

the terms of the Constitution, he could not admit it to be derived from 

implication, or from any general clause in that instrument. Implication 

would lead us into an endless discussion. The plain sense and meaning of the 

Constitution should be our guide. In some part of the gentleman's argument 

he admitted the limited powers of the Constitution; in others he certainly 

advanced opinions destructive of that limitation. To show that the powers 

under the Constitution were limited and special, Mr. Mercer, begged leave to 

refer to the Constitution itself. In the eighth section and first article, 

there was found a special enumeration of powers; most of the great powers of 

Congress were here particularly denned. Those which they had a right to 

exercise, and which were not in this section, were as clearly ascertained in 

other parts of the instrument: why was this cautious enumeration of powers 

necessary, except to keep Congress within the strict and literal meaning of 

the Constitution, and to prevent the assumption of power under any genera] 

clause? It was intended to prevent them from exercising any power, but what 

was given. If opinions cotemporaneous with the original discussion of the 

Constitution in Virginia, can serve us in ascertaining its true meaning, 

(and they certainly ought,) he would refer gentlemen to the debates in the 

Convention of this state. The opponents of the Constitution were 

apprehensive, that by implication, or some general phrases, Congress might 

assume powers not intended to be conveyed. The advocates of that paper 

declared, in every day's debate, that these apprehensions were without 

foundation: that the language was so clear and its powers so well defined, 

that none could be exercised under it by implication, or that was not found 

upon its face. Though the evidence of every member who wished the 

Constitution ratified, might be produced upon this subject, he would mention 

the opinions of only two gentlemen belonging to that body. "Mr. John 

Marshall asked if gentlemen were serious when they asserted that if the 

state governments had power to interfere with the militia, it was by 

implication. If they were, he asked the committee whether the least 

attention would not show they were mistaken: each government was to act 

according to the powers given it. Would any gentleman deny this? He demanded 

if powers not given were retained by implication? Could any man say so? 

Could any man say, that this power was not retained by the states, as they 

had not given it away? For, does not a power remain till it is given away? 

The state legislatures had power to command and govern their militia before, 

and have it still, undeniably, unless there be something in this 

Constitution that takes it away." Though the limited powers of the 

Constitution were in this opinion insisted on, there was still higher 

authority. It was the instrument of ratification adopted in the Convention 

of Virginia, which had been mentioned by the gentleman from Caroline. It 

contained the opinion of the Convention, and declares, "that every power not 

granted, remains with the people and at their will: that, therefore, no 

right of any denomination, can be cancelled, abridged, restrained, or 

modified, by the Congress, by the Senate, or House of Representatives, 

acting in any capacity, by the President or any department or officer of the 

United States, except in those instances in which power is given by the 

Constitution for those purposes; and that, among other essential rights, the 

liberty of conscience and of the press, cannot be cancelled, abridged, 

restrained or modified, by any authority of the United States." We see what 

was the opinion of the State of Virginia, with respect to the powers of the 

Constitution, when she was called upon to ratify or reject it. But, to 

remove all doubts, immediately upon its going into operation, certain 

amendments were made, among which is the following: " The powers not 

delegated to the United States by the Constitution, nor prohibited by it to 

the states, are reserved to the states, respectively, or to the people." 

This amendment, now a part of the Constitution, ought to fix the real extent 

of the powers of Congress. But, the gentleman was not satisfied with it, 

because the word expressly, was not to be found there. Mr. Mercer hoped the 

committee would not believe this single term essential to ascertain the 

limitation of power under which Congress were bound to act. The words of the 

amendment were general, and conveyed a certain meaning. It was that which 

the face of the Constitution, in its original form, would warrant, which 

cotemporaneous opinions had maintained, and which the Convention of Virginia 

had declared to be true. It was impossible for language to be so explicit as 

to produce a clause that might not be subject to similar objections; for, if 

this term had been used in the amendment, gentlemen might have thought it 

still defective, as others equally strong might have been left out. He 

therefore supposed, as these evidences ascertained the power of the Federal 

Constitution to be special, and as no power over aliens, such as has been 

exercised by Congress, in the law so generally obnoxious, had been, or in 

his opinion, could be shown to exist in that body, the law itself must be 

considered repugnant to the Constitution, and as invading the rights of the 

states.



Many of the remarks of the gentleman from Prince George, were intended to 

show the expediency of the taw, and the inconveniences that might arise from 

the want of the power in Congress to pass it. Mr. Mercer considered these 

remarks entirely foreign from the inquiry before the committee. The only 

question ought to be, whether it was constitutional or not: if it was not, 

in his opinion, a violation of the Constitution, which ought to be held 

sacred, he declared that he would not at this time thus publicly deny its 

expediency. But there would be no period so critical, as to justify silence 

upon a departure from the Constitution. It might be believed, that temporary 

advantages would result; but permanent evil would be the certain 

consequence: for, if there was a maxim in American politics, it must be, 

that no law could bo expedient, which was unconstitutional. If it was found 

inconvenient that Congress had not this power, the remedy was plain: perhaps 

it was the best feature in the instrument that pointed out the manner in 

which itself could be amended. It did not consider the present provisions in 

it as the unalterable effort of the best reason, but left them to the 

operation of time and experience, by which their defects might be unfolded: 

when these appeared, the remedy was in amending the Constitution, and not in 

usurping powers by constructions, so highly forced, as to leave its meaning 

entirely uncertain; and to lay the foundation for administering the 

government upon principles unacknowledged by the Constitution, and unknown 

to the states and the people at the time of its adoption. But the gentleman 

had supposed, that under the aid of necessary implication, Congress possessed 

the power of passing the alien friend law; and made his appeal to the last 

clause in the eighth section, which said, that Congress should have the 

power "to make all laws which shall be necessary and proper to carry 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." Mr. Mercer said, this clause had been called in the 

Convention of Virginia, by the opponents of the Constitution, the sweeping 

clause. But it was evident, it referred only to the powers expressly 

"vested" in Congress by the Constitution. It could give no new power. It 

would be absurd to suppose, that after a special enumeration of powers, 

limited by the terms of the grant, that any general expressions could so 

operate, as to produce an increase of authority. It had not been shown to 

his satisfaction how the law complained of, was "to carry into execution" any 

power vested by the Constitution "in the government of the United States, or 

in any department or officer thereof." Under the construction that had been 

given to it, it involved new powers, nowhere to be found delegated in that 

instrument : for the true exposition of this clause, he would now refer to 

the opinion of the other gentleman in the Convention, to whom he had 

alluded. Mr. Madison, speaking of this clause, said, "It is only 

superfluity. If that latitude of construction, which he (Mr. Henry) contends 

for, were to take place, with respect to the sweeping clause, there would be 

room for those horrors. But it gives no supplementary power. It enables them 

to execute the delegated powers. It is at most explanatory; for when any 

power is given, its delegation necessarily involves authority to make laws 

to execute it."



"With respect to the supposed operation of what was denominated the sweeping 

clause, the gentleman, he said, was mistaken; for, it only extended to the 

enumerated powers. Should Congress attempt to extend it to any power not 

enumerated, it would not be warranted by the clause." This opinion must be 

considered as the just one. It had been maintained by the writer which he 

had cited, the Federalist. The Constitution itself warranted the truth of 

it; but, there ought to be no doubt after reading the amendment, which had 

already been stated. If the power exercised in the law, was not enumerated, 

neither this, nor any other general clause, could give it to Congress.



The gentleman had called upon the committee, to show in what part of the 

Constitution the powers of Congress, with respect to foreign nations, were 

stated. Mr. Mercer hoped he did not mistake his remark, for it was a very 

important one. If it was true that these great powers, certainly exercised 

by Congress, were not vested in that body by express terms, but were derived 

to them by construction or implication, the deduction that would naturally 

flow from such a truth, would be fatal to the Constitution. It was, if 

powers so great could be used, without being specially delegated, it showed 

the extent of implication; and under its operation other powers equally 

important, and among them, that which Congress had exercised over aliens, 

might be assumed, but such a position is destructive to the Constitution. 

Mr. Mercer rejoiced in believing it could not be supported by any argument 

drawn from the powers of Congress over foreign relations; for none were more 

expressly delegated than these; he begged leave again to refer to that 

instrument, which should be our constant guide. In the 10th section of first 

article, it is declared that "no state shall enter into any treaty, 

alliance, or confederation." And that "no state shall, without the consent 

of Congress, enter into any agreement or compact with another state, or with 

a foreign power, or engage in war, &c." This proved that all power with 

respect to foreign connexions was taken from the states. It was not among 

their reserved rights; nor could they exercise it conjointly with Congress, 

because they were deprived of it by negative words in the Constitution. It 

belonged exclusively to the general government. To show this, he read the 

following clauses in the Constitution: "The Congress shall have power to 

regulate commerce with foreign nations." "To establish an uniform rule of 

naturalization." "To declare war and grant letters of marque and reprisal." 

When speaking of the powers of the President, it says, " He shall have 

power, by and with the advice and consent of the Senate, to make treaties," 

&c. "And shall nominate, and by and with the advice and consent of the 

Senate, shall appoint ambassadors, other public ministers and consuls." "He 

shall receive ambassadors and other public ministers." These clauses embrace 

all the great objects of a foreign intercourse; they make it clear, that the 

powers of the general government upon this subject, are expressly delegated, 

and depend not upon nice constructions or implication.



In these remarks, Mr. Mercer said, he had attempted to show that the federal 

Constitution was a limited grant of power: that the power which Congress had 

exercised in the case of the alien law, had been nowhere delegated to them 

by that instrument, and ought not to be considered within their reach, from 

implication. That if Congress did not constitutionally possess the power 

over aliens, which they had exercised, the exercising it was an invasion of 

the sovereignty of the states; and whenever this took place, the states had 

a right to communicate with each other, in the manner contemplated by the 

resolutions now before the committee. But if he had been convinced that this 

power was vested in Congress, the manner in which they had used it, was 

equally repugnant to the Constitution, and subversive of some of the most 

valuable provisions contained in it. It was as necessary they should 

preserve the distribution of powers actually delegated, according to the 

mode prescribed in the Constitution, as it was for them not to assume powers 

which had never been delegated. It was as necessary that one department of 

the government should not be permitted to use authority, to the 

constitutional exercise of which only the three branches were competent, as 

that the whole should assume powers which neither had a right to exercise. 

The objections to this act had been so often urged, and the public attention 

so much excited, that it would be useless to dwell upon them at this time: 

he would briefly mention the objections which he felt to the act, even if 

Congress had the power over aliens which they had exercised. His first was, 

that it placed in the hands of the President an union of authority, which by 

the principles of free government, should always bo kept separate and 

distinct. It gave him the right to exercise legislative, judicial, and 

executive powers, which were intended to be kept apart by the Constitution, 

and never could be united in the same individual, or in the same department 

of government, without producing a real despotism. To prove that legislative 

power was vested in the President by this law, he asked what was the 

distinguishing characteristic of that power, or the highest act that could 

be performed by it? It was to prescribe a rule of conduct, commanding what 

was right, and prohibiting what was wrong. What was the rule of conduct 

prescribed to the alien by this law? What was he commanded to do, and what 

to avoid? There was no rule of conduct laid down in the law. There was no 

crime denned. Even the President was not required to say what the alien's 

duty should be. Everything was confined within his own breast. The class of 

men intended to be involved under this law, could not know they had sinned, 

until the punishment was upon them. If he then prescribed the rule of 

conduct for aliens, he also had the right under the law to judge when that 

rule was violated: he was the executive department of the government 

constitutionally, and the duties of legislating and judging were annexed to 

his new office by this law. The second objection was, that it destroyed the 

trial by jury, which he considered was extended to all persons by the 

Constitution. The terms were as general, and as comprehensive, as language 

could make them. He begged leave to refer to them. "The trial of all crimes, 

except in cases of impeachment, shall be by jury." "No person shall be held 

to answer for a capital or otherwise infamous crime, unless on a presentment 

or indictment by a grand jury, &c."



"Nor be deprived of life, liberty, or property, without due process of law." 

"In all criminal prosecutions, the accused shall enjoy the right to a speedy 

and public trial, by an impartial jury, &c.," "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." These just, humane, and most 

invaluable of all privileges, were taken from the alien: his "liberty" was 

to be suspended without any "crime" being defined, which he ought to avoid; 

without any "trial by jury," of which "no person" is to be deprived under 

the Constitution; there was no "information of the nature and cause of the 

accusation" to be communicated to him; he was "to be confronted with no 

witnesses; counsel could not be heard in his favour;" his liberty depended 

upon the mercy and justice of an individual. The third objection was, that 

it virtually destroyed the right of the states, under the ninth section of 

the first article of the Constitution; for though the states might admit the 

"migration or importation" of such persons as they might think proper prior 

to a certain period, it was to little purpose, if the President, influenced 

by his own suspicions, could send them away. The argument of the gentleman 

from Prince George, seemed to relinquish the point. He observed, that the 

law would have been unconstitutional, if it had been a permanent one, passed 

prior to the year 1808, since it would then defeat this section. Mr. Mercer 

said, he could not see how its being temporary, would prevent the same 

effect from being produced: for, if the power of Congress could pass such a 

law for two years, it might ex. tend to the year 1808. If they possessed the 

right to originate the law, and keep it in force for any term, however 

short, they could certainly defeat the ninth section altogether; because, as 

often as the period arrived when this temporary law was to expire, they had 

only to pass it again for a limited time; and by thus keeping it temporary, 

bring about the year 1808; after which the gentleman supposed the right 

would be in Congress. The law being only a temporary one, therefore, could 

not possibly prove it to be constitutional.



Much had been said, by the member from Prince George, respecting the conduct 

of aliens, and the dangers that were to be apprehended from them. Mr. Mercer 

did not suppose that the friends of the resolutions felt it their duty to 

defend, or to blame that conduct, whatever it might have been, without 

having ever understood any acts to have been performed by that class of men 

by which American rights had suffered. The statement of the gentleman might 

be true, and still it did not affect the question before the committee. The 

object of the resolutions was not to defend aliens, but to protect the 

Constitution, which had been violated in the case of these men. If, under 

the intention of removing dangerous aliens, the principles of that 

instrument would be openly violated, and some of its wisest provisions set 

aside, the same- might take place with respect to native citizens. If it was 

infringed upon in one instance, the same might happen in any other.



With respect to the sedition law, as it was generally called, Mr. Mercer 

said he would not take up the time of the committee in making any 

observations upon it. He was willing to let the proof of its 

unconstitutional quality rest upon the argument of the gentleman from 

Caroline. He would only say, it was odious in his sight. It was certainly 

unnecessary, unless the general government had reason to doubt the virtue 

and patriotism of the people. If that government would pursue measures 

compatible with the Constitution, and calculated to preserve the country in 

a state of peace, and not hasten that unhappy crisis with which we were 

threatened, when war should be found unavoidable, every citizen would be 

ready to defend his country's rights against the attempts of any nation upon 

earth. Mr. Mercer believed, if it had not been for the unfortunate 

difference between America and France, there would have been few voices 

ready to approve of several of the late acts of the general government. That 

difference had been made the pretext for exercising power in a manner which, 

two years past, would have been universally condemned. He hoped the 

committee would distinguish between the aggressions of France, and the 

operations of our own government. The alarm of foreign invasion, created by 

government, was not a modern thing. When power wished to encroach, the same 

had been excited in every age and country. At this time, two instances 

occurred to him. When Charles the Seventh of France wished to establish a 

standing army in that country, he told the people it was necessary to be 

ready against invasions from England. But when all danger was removed, the 

army was kept up, and afflicted the nation for centuries. Charles was the 

first king of France who levied a tax without the consent of the 

states-general. When Cardinal Ximenes introduced a standing army into Spain, 

the people were informed it was necessary to protect them against the 

invasion of the Moors from Africa; but when these were expelled the country 

and their power destroyed, the army was continued. History afforded many 

similar instances. It proved, that the moment for power to enlarge its 

privileges was that of public agitation and alarm; he would make no 

inferences with a view of applying them to the general government. Every 

gentleman in the committee might make his own deductions. Mr. Mercer 

concluded by observing, that he should vote for the resolutions, unless 

arguments could be offered to prove to his satisfaction, that the acts 

complained of were constitutional.



Mr. POPE arose next, and made several general observations in answer to 

those which had fallen" from Mr. George K. Taylor, respecting the necessity 

of deliberation before decision in favour of the alien law, and concerning 

Volney and Talleyrand. He then proceeded to observe, that as to Talleyrand, 

the gentleman from Prince George was not correct as to what he had related 

of him; but besides, that he had not related the whole story. He had 

represented him to be a great rascal indeed, and a very great rascal he 

himself would acknowledge he was. But that he would still give them a 

further account of that Mr. Talleyrand, as true as that which the gentleman 

from Prince George had related. He then proceeded to mention that, in the 

course of Talleyrand's stay in America, he had been for some time much 

countenanced by some of the conspicuous characters in New York, of whom he 

particularly mentioned the gentleman who never broke a command, who never 

disturbed the quiet or repose of any family; that gentleman who inviolably 

kept the. sacred vow he made



to his bride on the day of marriage. But as soon as these gentlemen 

discovered his political opinions to be different from what they supposed 

them to be when they admitted him into their society, they instantly broke 

off all communication with him, and ever afterwards reviled and persecuted 

him. He made some observations respecting Volney; and then asked how the 

gentleman from Prince George had found out the story which he had related of 

Volney, when Porcupine or Goodloe Harper never could? Perhaps he had learnt 

it from Billy Wilcox; and who was he? A mere automaton. He could say this -- 

he could say that -- anything or nothing. He was directed altogether by the 

breaker of the matrimonial vow. The gentleman from Prince George had spoken 

of Frenchmen sneaking away. But sneaking as they were, he said, he believed 

all Europe sneaked before them. However, he said, he was no champion for the 

French, any more than for the British. He thought we had no business with 

either of them. He then spoke of British aggressions upon our commerce. But 

these, he said, were not felt by the executive of the United States, as well 

as many of its citizens. He then complimented Mr. George K. Taylor upon his 

talent in moving the passions. He had exercised that talent so effectually a 

session or two before, as to draw tears from the members of that house, 

(alluding to the speech delivered in favour of the new criminal law,) and he 

himself must confess, indeed, that the gentleman had, on the subject then 

before them, dealt more in pathos than in argument. He then asked why the 

gentleman, when reviling Genet, did not say something of Liston too? He 

believed that he (Liston) had done us as much harm as ever Genet did. As a 

proof, he instanced the Spanish transaction. But when that was stated to 

that great man, Mr. Pickering, he said that we were to pay no kind of credit 

to it, for he was satisfied that our good allies, the British, did not 

intend to injure us. The gentleman from Prince George, he said, had 

introduced a damsel, and that was the damsel of liberty. When he had done 

so, he, (Mr. Pope,) cold as his blood was, confessed that he was seized with 

an ecstacy. But when, at the same time, the gentleman would not permit that 

damsel to remain within these walls, he acknowledged that his feelings were 

very much wounded indeed. For he (Mr. Pope), was fond of all damsels, but 

particularly so of the damsel of liberty. And if he were so, cold as his 

blood was, what might they not expect from that young, athletic gentleman, 

whose warmth of blood was so plainly visible. The same gentleman, he said, 

had also dwelt upon the Saint Domingo horrors. The alien law, he (Mr. Pope) 

said, had not removed them. He believed all the emigrants from that place 

were aristocrats: but they had not been removed. The gentleman had also 

mentioned the determinations of the other states. As well as he could 

recollect, he said, he conceived that such determinations extended only to 

an approbation of the measures of the Executive in regard to the negotiation 

with France. But, be they what they would, we were not bound to follow their 

example. Kentucky had differed from them. He asked who had knocked at the 

doors of the aristocratic Senate of the United States but Virginia? She had 

been the chief means of opening them. In that instance, then, she had 

weight. He wished, therefore, that on this occasion they should do what they 

thought right. That, too, might probably have weight. If it should not, they 

would at least discharge their duty. At any rate, he thought the 

determination, according to the resolutions which they were about to make, 

would not lead to war, as was apprehended; and therefore they might safely 

agree to pass them. However, he said, he did not feel himself so rigidly 

attached to the resolutions, but that he would be willing to agree to any 

modification of them to accommodate gentlemen, provided the substance of 

them should be so retained as to go to declare the laws of Congress under 

their consideration, unconstitutional.



Mr. JOHN ALLEN arose next, and said he was not accustomed to make apologies 

for anything he wished to say in this house, nor should he do so in the 

present case; the subject was of too much importance to require any. And, 

notwithstanding his ill state of health, he rose to give his feeble aid in 

favour of the wounded daughter of liberty. In deciding on a constitutional 

question, he did not expect that the understanding was to be banished, and 

the passions only left to be their guide. But, he found that the gentleman 

from Prince George, through the whole of his lengthy harangue, relied solely 

on the force and effect of the latter. That gentleman informed them that he 

should confine his observations to the alien law, and attempt to prove it 

constitutional. How did he do this? By describing, in the most terrific 

colours, the conduct of the French towards us, and other nations; and then 

asserting, that the alien law was made to protect us from the French. But, 

before the gentleman indulged himself in his description of the cruelties 

and aggressions committed by the French, he should have proved that this law 

related only to that nation. But it clearly was not so. It extends to all 

nations alike, and without discrimination. The law need only be read to 

prove the truth of this assertion.



Unless, then, it appeared that we were threatened with, or had danger to 

apprehend from, all the nations on earth, that law could not be justified, 

even by the gentleman's own arguments. The gentlemen had further observed, 

that if this law had been permanent, it would be unconstitutional; but, if 

temporary, it would not. Mr. Allen said, in his opinion, there was no 

difference between the cases. He could not discover how a clause in a law 

declaring that it should expire at a particular period, could make the law 

constitutional. But, the gentleman did not appear to rely much on that 

argument; only that it gave him an opportunity of returning again to his 

favourite theme, a description of French cruelties. But, said the gentleman, 

the admission of aliens in a country was a matter of favour, and not of 

right. But, Mr. Allen averred, that the admission of alien friends into a 

country was not a matter of favour; and even if it were, when they were in a 

country they were entitled to certain rights, which he enumerated, and 

which, he said, were derived to them from the laws of nature, nations, and 

humanity. The gentleman admitted that an alien could not be deprived of life 

or property without a trial, and that by jury. If so, surely they should not 

be deprived of their liberty without trial, and that too by jury. But, 

perhaps, in these modern days, life and property only are to be held sacred, 

while liberty is to be exposed to the whim or caprice of a single man. If, 

indeed, this be the case, and liberty is considered of less value than 

property, then the argument of the gentleman should have some weight. But, 

we are taught by the Constitution to rank liberty next to life. If, 

therefore, an alien cannot be deprived of his property without trial by 

jury, he certainly should not be deprived of his liberty without the same 

kind of trial. On that account, then, he said, the law was apparently 

unconstitutional. But suppose, he said, it was absolutely necessary to 

provide by law for sending aliens out of this country, who had the power to 

do so? Congress, or the states? He declared that the states had. He read the 

first clause of the ninth section respecting the migration of persons prior 

to the year 1808, as proof of the assertion. But, even if Congress had such 

a power, they had no right to vest it in the President, for reasons that had 

already been given, and that were too apparent not to be understood. He then 

proceeded to point out the danger of placing too much power in the hands of 

the Executive. He stated instances of the unhappy effects proceeding from it 

in Britain; and was afraid we had much danger to apprehend from a desire in 

Congress to increase executive power. This law, vesting in the President 

such enormous powers, the gentleman from Prince George observed, was made 

for the purpose of getting rid of two individuals, and as they had sneaked 

out of the country, there was no farther necessity for the law. To what 

extremity, said Mr. Allen, must the United States have been reduced. How 

must they be degraded, when we are informed that it was necessary to make the 

President absolute tyrant over perhaps a million of people, to get rid of 

two men.



But it was urged as an objection to the adoption of the resolutions under 

consideration, that (he people were the proper tribunal to decide upon the 

constitutionality of the laws, and that they would shortly decide the 

question at the next election. Mr. Allen contended, that was not a proper 

mode for the decision of such a question, for that the people often voted 

from personal or local attachments; and that they were not always apprised 

of the opinions of the different candidates; and he instanced his own 

district as proof of the latter assertion. But, he said, if this was a 

proper mode of deciding this question, he believed there was no doubt how 

the people would determine. And this house, by the re-election of a senator 

of the United States the other day, had already decided the question. Mr. 

Allen then concluded by making some general observations on the dangerous 

consequences of deriving powers from implication; and said, that he at that 

moment experienced too much bodily pain to be able to proceed further.



On motion of Mr. Magill, the committee then rose, the chairman reported 

progress, asked, and had leave to sit again.







____________



               IN THE HOUSE OF DELEGATES,



               Monday, December 17, 1798.



The House resolved itself into a committee of the whole house, on the state 

of the commonwealth, Mr. Brackenridge in the chair, when Mr. John Taylor's 

resolutions being still under consideration,



Mr. BARBOUR arose, and observed, that being a young man, he did not intend 

to have troubled the committee with any remarks upon the subject under 

discussion, but the solicitude he experienced had impelled him forward. He 

observed, that the moment on which he arose, might be called the first of 

his political existence, and yet in that moment he was called upon to decide 

a question, in which, not only his own fate as a politician, but the welfare 

of his country was materially involved. Mr. Barbour asked, what must be the 

sensations of a young man the first instant he stepped on the theatre of 

public life, to be called on to act a part, in which such important 

consequences are implicated? He observed, he experienced those sensations to 

an eminent degree. But having formed a rule, by which he meant to be governed 

in his political career, which was, to pursue the line of conduct his 

judgment dictated as the most proper, he would announce to the committee, 

and through the committee to the world, the motives which actuated him to 

give the vote he was about to pronounce, which would be in favour of the 

adoption of the resolutions. He observed, it had been remarked by every 

gentleman, whether pro or con, that the event of the present discussion was 

important. He begged leave to add his testimony likewise to the importance 

of the subject. And he believed he should not use language too strong, was 

he to assert, that in the proceedings of this Legislature might be read the 

destinies of America: for issue was joined between monarchical principles on 

the one hand, and republican on the other; and they were the grand inquest 

who were to determine the controversy. For should so important a state as 

Virginia sanction the measures complained of in the resolutions, (which she 

would do if the resolutions should be rejected,) it would become a 

step-stone to farther usurpation, until those great rights, which are 

guaranteed by nature and the Constitution, will be destroyed one by one, and 

a monarchy erected upon the ruins thereof. But on the contrary, if she 

discountenanced those measures, (as she would do by the adoption of the 

resolutions,) and could obtain the co-operation of the sister states, it 

might overawe tyranny, for tyranny in embryo was timid. He asked, could it 

be necessary, to conjure the members of the committee to be tremulously alive 

to the importance of the subject, and viewing it free from prepossessions, 

should give that opinion, which would redound most to their own fame and 

eventuate in the welfare of their country. He then read the resolutions, and 

observed, the gentleman from Prince George had remarked, that those 

resolutions invited the people to insurrection and to arms. But Mr. Barbour 

said, if he could conceive that the consequence foretold would grow out of 

the measure, he would become its bitterest enemy, for he deprecated 

intestine commotion, civil war, and bloodshed, as the most direful evils 

which could befall a country, except slavery. A resort to arms was the last 

appeal of an oppressed and injured nation, and was never made but when 

public servants converted themselves, by usurpation, into masters, and 

destroyed rights once participated; and then, it was justifiable. But he 

observed, the idea of that same gentleman was in concert, as would appear by 

reference to a leading feature in the resolutions, which was, their being 

addressed not to the people, but to the sister states; praying, in a pacific 

way, their co-operation in arresting the tendency and effect of 

unconstitutional laws. He observed, it had been said by some gentlemen that 

they admitted the unconstitutionality of the laws, and yet they would vote 

against the resolutions, for that the subject exclusively belonged to the 

people, and if their servants had violated their trust, they ought to 

substitute others. In answer to this, Mr. Barbour observed, that doctrine 

like this was pregnant with every mischief. For once admit, said he, that 

the states have no check, no constitutional barrier against the encroachment 

of the general government, we should thereby lessen that weight to which the 

state governments are entitled in the political machine, which, in America, 

is a complex one. We should thereby destroy those checks and balances, which 

are the sine qua non of their mutual existence and welfare. And the 

consequence then would be, that instead of harmony and symmetry which has 

hitherto prevailed, chaos, confusion, and all the evils incident to that 

situation, would be the inevitable result. In theory this doctrine is 

alarming, but fortunately for the liberties of America, when it comes to be 

tried by the rules of reason and sound argument, it is found monstrous and 

absurd, and therefore its advocates must be few. He observed, that he would 

undertake to demonstrate that, although the people possessed the right of 

excluding those who advocated the obnoxious measures, and he hoped would 

exercise the right, yet the state legislatures not only had a concurrent 

right, but were equally bound to exercise that right. He asked, who were the 

parties that formed the compact? Were they not the people and the states? If 

it had been formed exclusively by the people, he supposed a majority of the 

people would have been sufficient to have confirmed the compact. But what 

was the fact? Did not the Constitution require, that the consent of nine of 

the states shall be an indispensable preliminary to its adoption? Again, did 

it not permit three-fourths of the legislatures to alter the Constitution, 

without the intervention of the people? And cannot the states admit new 

parties to the compact, to wit, by the erection of new states? Again, are 

not the state legislatures to the Senate, what the people are to the 

Representatives? And if the latter possess the power of censure and 

discharge (which as yet no gentleman would deny), must it not follow by a 

parity of reasoning, that the former possess the same power relative to the 

body elected by themselves? Again, the President is elected by electors, who 

represent the states as well as the people; for the number of electors is 

not in proportion to the number of the people alone, but the states as well 

as the people: for example, the state of Delaware has three electors, when 

it is entitled to but one representative; whereas Virginia has only 

twenty-one electors when she is entitled to nineteen representatives. It 

must follow, then, as an incontrovertible deduction, that the states are 

parties to the compact, and being parties, if the compact was violated (as 

it was violated) the states have the right, and ought to exercise it1, to 

declare that those proceedings, which are an infringement upon the 

Constitution, are not binding. The state legislatures being the immediate 

representatives of the people, and consequently the immediate guardians of 

their rights, should sound the tocsin of alarm at the approach of danger, 

and should be the arm of the people to repel every invasion. If, said he, 

the alien and sedition laws are unconstitutional, they are not law, and of 

course of no force. For what are the necessary ingredients to the 

Constitution and the force of a law? It was not only essential they should 

receive the sanction of the constituted authorities, but the act itself must 

be in unison with the Constitution; for, if an agent should transcend his 

limited authorities, he would be guilty of usurpation; and all usurpation 

being founded in wrong, whatever has that only for its support, must be 

void. This being the case, the legislature would be guilty of misprision of 

treason against the liberties of their constituents if they did not denounce 

the violations offered to the Constitution through the medium of the alien 

and sedition laws. He observed, it remained for him to show, that the laws 

alluded to, were unconstitutional.



The worthy gentleman from Caroline having proven, in a clear and perspicuous 

manner, the unconstitutionality of the sedition law, and delineated, in 

masterly and eloquent language, the consequences of that act, which is 

entitled to the infamous pre-eminence in the scale of guilt, and as no 

gentleman had undertaken its defence, Mr. Barbour said, that his remarks 

would be confined to the alien law alone. And, in order to ascertain whether 

this law was constitutional or not, reference must be had to the nature of 

the Constitution. The government must be either limited or unlimited. If the 

latter, it was omnipotent, like the Parliament of Great Britain, and was 

adequate to the purpose of passing any law, however impolitic, absurd or 

dangerous it might be to the liberties of the people. But, if it were 

limited, (which was a principle he supposed so clear, that to consume the 

time of the committee in proving it, would be a supererogation,) it would 

remain then to be inquired, whether in the limited power granted, a power be 

given to pass a law like the one now under discussion, or not. He observed, 

that to comprehend the nature of the Constitution of the general government, 

it might not be unimportant to recur to the political situation of America, 

prior to the adoption of the federal government. In 1776, the thirteen 

United States, then the colonies of America, after having been lacerated to 

the midriff, by the vulture fangs of British persecution, threw off their 

colonial subjugation, and took a stand among the nations of the earth. At 

this time, there were thirteen independent sovereignties tied together by 

the feeble bands of the articles of confederation. So long as the pressure 

of external danger was felt, so long the bond of union was found 

sufficiently strong. So long as all jealousies and rivalships were 

sacrificed on the altar of public good, the defects of that system were, in 

some measure, concealed. But, so soon as the pressure of foreign invasion 

was removed, so soon it was discovered that the system of union created by 

the confederation, was inadequate to the sublime purposes for which it was 

intended. The people of America saw and deplored the situation with which 

they were menaced; and the Virginia Legislature, sensible of the jeopardy to 

which their well earned liberties were exposed, were the first to recommend 

a reformation in the compact by which the states were connected, 

notwithstanding the senseless yell and malicious calumnies with which 

certain hireling papers to the east teem, of a disposition in this state to 

shake off the union. Influenced by this spirit, the convention met in the 

year 1786, in Annapolis, but broke up without doing any thing effectual. In 

the year 1787, the convention which met in Philadelphia, gave birth to the 

Federal Constitution. The object of the general government ex vi termini, 

must be for general purposes; and the powers necessary to carry those 

purposes into effect, were expressly defined; and it was the sense of the 

American people, cotemporaneous with the adoption of the general government, 

when the attributes and qualities of that government were best understood, 

that all powers not granted were retained. As an evidence of which, let 

reference be had, he said, to the twelfth amendment of the Federal 

Constitution, which expressly declares, that all powers not granted to the 

general government, were retained to the states, or the people, 

respectively. It was then urged, (with propriety too, as the sequel has 

evinced,) that the Federal Constitution was defective, in consequence of its 

wanting a bill of rights. It was answered by the advocates of the 

Constitution, (amongst whom was Mr. Lee of Westmoreland, who now displayed 

great zeal in support of administration, and consequently, amongst the 

friends of administration, should have some weight,) that the Constitution 

was belter without, than with a bill of lights; for, if there had been, (Mr. 

Lee observed,) an enumeration of particular rights, with the friends to 

forced construction there would have been a claim, as residuary legatee, to 

all rights not expressly retained; but in the present government, there were 

only particular powers granted, and consequently, all powers not granted, 

are retained to the states, or the people, respectively: a doctrine which he 

(Mr. Barbour,) observed before, had been recognised in the twelfth amendment 

to the Constitution. Mr. Barbour then observed, that he having shown that the 

government could exercise no power but what was specifically enumerated, it 

behooved the authors or supporters of the law to show that the power of 

making a law like the one which was now the subject of discussion, was 

designated in the list of specific powers. If they could not show it, it 

must follow, it was an usurpation of power not warranted by the 

Constitution. To ascertain the truth upon this subject, which in argument 

was desirable, let reference be had, he said, to the section which 

enumerates the powers that Congress can legally exercise, (being the eighth 

section of the first article.) Any power which Congress should exercise, not 

warranted by that charter, would be an usurpation upon the rights of the 

states, or the people; and in proportion to the extent of the usurpation, 

should be the execration of every friend to republican government and the 

liberties of the people. It would be discovered, when reference was had to 

the section of the Constitution alluded to above, that no power to make an 

alien law is granted. When gentlemen are called upon to justify the 

assumption of power, they desert the ground of the law being justifiable 

agreeable to the letter of the Constitution, and take refuge behind the 

sanctuary of implication. Mr. Barbour then described the danger of implied 

power, in a warm and animated manner. He begged the committee to be alive to 

the mischief with which this doctrine was teeming. If, said he, we once 

abandon the high road which the wisdom of our ancestors has established, and 

in which the constituted authorities were directed to walk; if we once 

abandon that palladium of civil liberty, our rights will be immediately 

gone. No, said he, let us, if our servants turn either to the right or to 

the left, smite them as of old was Balaam's ass, so that they turn not away 

from the path to which, if we mean to keep our liberties, they should adhere 

with undeviating regularily. Promulge it once, said he, to the world, or 

rather to Congress, that they have a right to exercise powers by 

implication, and it requires not the aid of prophecy to foretell, if we may 

judge of the future by the past, that those great and inestimable rights 

which flow from nature, and arc the gift of nature's God, will be 

assassinated by the rude and unfeeling hand of ferocious despotism. That 

body will not only pass alien and sedition laws, which they have had the 

audacity to pass in the tenth year of the Constitution, but will go on to 

increase the already black catalogue of crimes, new fangled, and existing 

only in the brain of suspicion and political villainy, till some of the best 

patriots arc sacrificed, and the purest blood of which America boasts, 

streams. The friends of liberty will be sacrificed, as so many obstacles to 

their ambitious designs, and despotism, covered with the gore of patriots, 

will stalk with impunity amongst us. Rut, Mr. Barbour said, he had 

determined to pursue the gentleman from Prince George through all the 

meanders and twistings of his argument, and expose its fallacy and danger; 

that there should be no ground upon which the supporters of this law should 

find rest: like the dove of old, they should be compelled to take refuge in 

the ark, which, by the resolutions, was prepared for their reception. For 

this reason, for the sake of argument, but for that only, (God forbid it 

should be for anything else,) he would admit the principle that Congress 

might legislate by implication, yet it could have no power of the kind which 

appears to have been exercised in making the alien law. But before he went 

into "that subject, it was necessary he should take notice of some 

miscellaneous remarks which had fallen from the gentleman from Prince 

George. That gentleman had observed that Congress had passed the law, and 

that we should hesitate before we declared it unconstitutional; for if it 

was unconstitutional, the people ought to resort to arms. In answer to this, 

Mr. Barbour observed, that the circumstance of Congress having passed it, if 

it was intrinsically unconstitutional, did not render the law less so; and 

although he had a high respect for some of the members of Congress in both 

houses, on account of their talents and integrity, yet some of the warmest 

advocates of this law and executive measures, were suspicious characters 

from their situation in life, which was so desperate as not to be 

endangered, but on the contrary they might try to be bettered by revolution 

and convulsion. Political profligacy in a republican government sooner or 

later will meet its fate, the execration of an injured people; but by a 

change, the Judases of American liberty will aspire to the acme of opulence 

in the sunshine of monarchy, the most genial climate for the growth of 

everything which is abhorrent to republican simplicity and virtue. But, he 

said, if he had the highest estimation both for their virtue and wisdom, he 

should exercise his own judgment, with which he had been blessed by the God 

of nature, and if that condemned it, he should not hesitate to declare in 

strong terms his disapprobation. He trusted, he said, that the American 

people were not prepared for unconditional submission and non-resistance. A 

doctrine like this would have disgraced the last century, and was fit only 

for the miserable regions of the East, where ignorance, superstition and 

despotism their sad dominion keep. He trusted that the American people did 

not intend to attach to servants the attribute of infallibility: if not, the 

adoption of the law under discussion, by Congress, would have no weight upon 

the mind of the committee. The gentleman urged that we should hesitate, 

before a declaration was made that the law was unconstitutional. Mr. Barbour 

asked, what had been the conduct of the committee? Had they rushed 

precipitately into a determination? On the contrary, had not the subject 

been discussed for several days; and would it not continue to be discussed 

for several days more? Had not every gentleman an opportunity of delivering 

his ideas upon the subject? And had not a depth of judgment and a brilliancy 

of talent been displayed in the discussion, which would do honour to any 

deliberative body? In short, had not the subject been treated in a manner 

suited to its importance? What more, then, could be asked? The gentleman 

from Prince George was for the people's rising en masse, if the law was 

unconstitutional. For his part, Mr. Barbour said, he was for using no 

violence. It was the peculiar blessing of the American people to have 

redress within their reach, by constitutional and peaceful means. He was for 

giving Congress an opportunity of repealing those obnoxious laws complained 

of in the resolutions; and thereby effacing from the American character a 

stain, which, if not soon wiped off, would become indelible. The gentleman 

from Prince George had further said, that all the other states in the union 

had met and adjourned, and tacitly acquiesced in the measures which had been 

pursued by the general government. The gentleman was incorrect in point of 

fact.



The state of Kentucky had, in language as bold as could be used, expressed 

their execration of some of the leading measures of the general government 

adopted at their last session; but upon none more particularly than upon the 

laws complained of in the resolutions. The state of Tennessee was in such a 

situation, as to require or authorize the Governor to convene an extra 

session. About what could it be, if it was not the uneasiness experienced by 

the people of that state at the usurpation of the general government? In 

respect to the other states being not adverse, he would not contradict the 

gentlemen. But what weight would this remark have upon the committee? Was 

the conduct of the other states to be the criterion whereby to govern this 

state? Ho trusted not. He hoped, that so long as this state kept its 

independence, it would think and act for itself. Virginia had been always 

forward in repelling usurpation of every kind; and he trusted she never 

would forfeit the reputation she had acquired; but always would be the 

champion of the rights and liberties of America. But, he said, having 

answered the desultory remarks of the gentleman from Prince George, he would 

return to the doctrine of implication. That gentleman read the preamble to 

the Federal Constitution, to prove that, as the liberty and general welfare 

of the whole were the object of the Constitution, Congress had a right to do 

anything which might be necessary, in their opinion, to effect that purpose. 

The inference, Mr. Barbour observed, which had been deduced, was by no means 

tenable. To assert that the preamble to the Constitution should alter or 

subvert the Constitution, or that the preamble gave powers not given in the 

Constitution, was in theory such a monstrous solecism, and so much opposed 

to every principle of construction, that he did suppose it would be 

subscribed to but by few. The preamble, to be sure, explains the end of the 

Constitution. It was to secure the liberties and welfare of the American 

people, but upon what terms? Why, upon the terms designated in the 

Constitution. The people of America and the states, knew that the powers 

conceded to the general government by the Federal Constitution, were 

adequate to the ends contemplated. Then to pretend to assert that, although 

those powers, which the states and people designated as those only, which 

should be exercised, were not the only powers that were granted, was a 

calumny against the framers of the Constitution; for they must have intended 

to ensnare the people. For what mind could hesitate to pronounce, that the 

object of enumerating the powers must have been to fix barriers against the 

exercise of other powers? And Mr. Barbour demanded to know, what was the use 

of a specific enumeration of powers, if it was intended to invest the 

general government with sweeping powers? For what could be more awkward or 

ridiculous, than to see the wisdom of America defining the particular 

powers, which its government might legally and constitutionally act upon, 

and in the conclusion, investing it with general powers, which from the 

expression, must have included all those specific powers, which had been 

previously granted. Mr. Barbour then referred to Publius, 2d vol., pages 46, 

7, 8, as an author, who had treated this subject very fully and ably. The 

gentleman from Prince George had said, that the last clause of the 8th 

section of the 1st article, commonly called the sweeping clause, the 

substance of which is, "That Congress shall have power to pass all laws 

which shall be necessary to the carrying into effect the foregoing powers," 

would justify Congress in making the laws complained of. Mr. Barbour asked, 

what was the object of that clause? It was not to create new powers, but to 

complete the other powers before granted. This clause was indispensable; 

without it, the Constitution would have been a dead letter. For if Congress 

possessed not the power of making laws to carry into effect the powers 

specifically enumerated, the powers granted would have been useless; since 

to possess rights which cannot be carried into effect, was just the same as 

if there were no rights. But no other construction could attach; for that 

clause speaks only of those powers which before had been granted. And if no 

power relative to aliens had been granted, this clause could have no 

possible effect, which he hoped he had sufficiently demonstrated. Mr. 

Barbour said that the gentleman from Prince George had relied upon the 

fourth section of the fourth article of the Constitution, by which Congress 

guarantees to each state a republican form of government, and binds itself 

to protect each state from invasion, &c., as one out of which the implied 

power of making alien-laws grew. For he asked how could the general 

government protect from invasion, without the power of passing a law like 

the alien; and that it was indispensable the general government should 

possess the power of expelling aliens; for, if they had not the power, the 

state of Virginia might admit Bonaparte's army, with him at their head, (if 

he should ever escape from the Nile.) If, said Mr. Barbour, no other reason 

could be assigned in favour of the alien law, than an idea so wild as the 

danger of admitting Bonaparte and his army, its supporters must be in 

pitiful distress. To anticipate danger of this kind, was to attach to this 

state not only criminality, and that too of the blackest kind, but stupidity 

bordering on idiocy, and to set at defiance the uniform experience of 

mankind. For was it ever yet known that a nation participating the blessings 

of liberty and peace, invited into its bosom a powerful foe, by which those 

invaluable blessings might be rifled. An Idea of this kind was the child of 

a mind labouring to but little purpose to find some justification for the 

opinions it advances. But who could have supposed that the section alluded 

to, which had for its object only imposing an obligation, should by some be 

converted into a source of power? What, Mr. Barbour asked, was the object of 

that section? It was to impose on Congress the duty of defending each state 

from invasion. Congress, in the eighth section, had the power of declaring 

war; yet, without this section, Congress was not bound to exercise this 

power; and but for this section, Congress might have seen a state invaded, 

and yet by the letter of the Constitution, would not have been bound to have 

defended it from invasion, but might have left her to her own resources. To 

guard against this inconvenience was this section inserted; yet out of this, 

the committee were, told new powers are derived to the general government. 

Mr. Barbour observed, it appeared to him a bold and unjustifiable assertion 

to say that the expulsion of alien friends was necessary to prevent 

invasion. For his part, his small intellectual faculties could not perceive 

the connexion. He could readily perceive the necessity of expelling alien 

enemies; a right which Congress possessed, and upon which they had acted; 

but that the expulsion of a friend was necessary to the prevention of 

invasion, created in his mind a confusion of ideas. It was asked by the 

gentleman from Prince George, by what authority did Congress exercise 

control over foreign intercourse, if it was not by implication? Mr. Barbour 

answered, that the power was granted, he thought, by the third clause of the 

eighth section of the first article, the second clause of the second 

section, and the third section of the second article of the Federal 

Constitution. By the first, Congress has power to regulate commerce with 

foreign nations. By the second, the President, by and with the advice and 

consent of the Senate, may make treaties, and shall likewise appoint 

ambassadors and other public ministers and consuls. And by the last, the 

President is vested with the power of receiving ambassadors and other public 

ministers; from which it is apparent, that without the aid of implication, 

the general government possesses the power of regulating foreign 

intercourse.



It was asked, too, by the same gentleman, by what power did Congress erect 

forts, if it was not by implication? Mr. Barbour answered, by the last 

clause but one of the eighth section of the first article there was this 

language: "Congress shall have the power to exercise exclusive legislation 

in all cases whatsoever over such; district, &c.:" "And to exercise like 

authority over all places purchased, by the consent of the legislature of 

the state in which the same shall be, for the erection of forts, magazines, 

&c." Mr. Barbour concluded upon this point, by observing that surely the 

gentleman had not read the Constitution, for if he had he would not have 

propounded the question, when he must have known the answer would recoil 

upon him. It was asked, too, by the gentleman from Prince George, if 

Congress possessed not the power to make the law now under discussion, by 

what authority did they make a law relative to alien enemies. Mr. Barbour 

answered he was happy he was able to instruct the gentleman upon the subject 

of the Constitution, which he (Mr. Taylor) had not read, or if he had, it 

was in a cursory and inattentive manner. He referred the gentleman from 

Prince George to the eleventh clause of the eighth section of article the 

first. By that, Congress had the power of declaring war. So soon, then, as 

war shall be declared, by the law of nations, alien enemies become prisoners 

of war; and being prisoners of war, and Congress having the sole power of 

declaring war, Congress had a right to say what should be done with the 

prisoners, whose destiny Congress alone could decide. Again, the power of 

declaring war was the genus. The prisoners, which shall have been made under 

that declaration, might be called a species. Now, as the genus has been 

granted, the species, which is subordinate to the genus, has been granted 

likewise; it being an axiom in reason, that the less is always included in 

the greater. To deny the truth of this position, would be as absurd as to 

say, when A. has transferred to B. a parcel of land, that the house or the 

wood upon the land are not granted likewise. Or, when a transfer in fee 

simple is made, that the life estate is not given also. But it had been 

said, that Virginia had passed a similar law, and, therefore, Congress must 

have the right. Doctrine like this should be a warning to the Virginia 

Legislature not to deviate from the principles of liberty, or the spirit of 

its Constitution, lest it should become a pretext to justify the worst of 

purposes in the hands of the general government. He observed, that he would 

not say whether Virginia had done right or wrong, in passing the law alluded 

to, because it was unimportant in the present discussion. He observed, the 

doctrine contended for by the gentleman from Prince George, namely, that 

Congress had a right to pass the law, because Virginia had done so, deserved 

the roost serious attention and unreserved disapprobation of the committee. 

For, if it be true, the government of the United States would become an 

absolute consolidated government, and the sovereignty of the States 

annihilated; from which situation, said Mr. Barbour, good Lord deliver us! 

But fortunately for us, he said, the position existed only in the mind of 

its author. The state legislature had a right to regulate the mode of 

descents. Agreeably to the doctrine of the gentleman from Prince George, 

Congress would have a right to pass a similar law. Congress would possess 

the power of reviving the old feudal monarchical principle of primogeniture; 

and he had no doubt that it would be done, because it would be in unison 

with the other acts of the general government. Yet, no sober man, at this 

time, would say that Congress has a right to to say anything relative to the 

rules which shall be observed in the descent of estates. It must be clear 

and obvious to every man, not infatuated with political fallacy, that there 

is a line of demarcation drawn between the powers of the state and general 

governments; and to assert that Congress can do whatever the state can do, 

is as absurd as to say, the state can do whatever Congress can do; a 

position he did suppose the advocates of congressional omnipotence would be 

unwilling to admit. Mr. Barbour asked, in what cases Congress had a right to 

call in the aid of implication, -- admitting, for argument's sake, that, on 

particular occasions, they might resort to that alternative? For allow the 

supporters of the principle the utmost latitude for which they contended, it 

could only be resorted to when the Constitution had given a power that 

cannot be consummated without implication. Wherever the Constitution was 

explicit, implication must be excluded. He said he would illustrate his idea 

by assimilating this case to the doctrine which would prevail in the 

instance of presumptive and positive evidence. Where positive evidence, from 

the nature of the case, cannot be procured, presumptive evidence is 

admissible, but where positive evidence can be procured, presumptive 

evidence is inadmissible. The Constitution, too, in the ninth section of the 

first article, is expressly in point. It is to this effect: "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." This then, explicitly declaring that Congress shall not inhibit 

the migration of aliens, if the state should think proper to admit them, 

must unquestionably exclude the idea of implication, and, consequently, the 

deductions drawn from that source, (the source itself being corrupt), must 

be fallacious. But it might be answered by a quibbler, that the alien-law 

did not prevent the landing of aliens here. But where, Mr. Barbour asked, 

was the difference between their being prevented from landing, and the very 

moment they landed being sent off? He begged leave to state a similar 

instance, which would prove this was a distinction without a difference; 

namely, if a man should suffer another to come into his house, and the 

moment he stepped in, should kick him out, would this not be as bad, nay 

worse than if he had prevented him from coming in at all? The liberal mind 

looked down with pity and disdain upon such subterfuges; and hesitated not 

to declare that the alien-law did, beyond question, violate the Constitution 

of the United States in this part thereof. This part of the Constitution 

being violated should excite universal alarm; because to it was attached 

particular inviolability by the fifth article which declares that in this 

particular the Constitution should not be amended prior to the year 1808. 

Mr. Barbour said, the gentleman from Prince George having exhausted the 

doctrine of implication, had resorted to that of expediency, and contended 

that although Congress had neither express nor implied power to pass the 

law, yet it being expedient, it was correct. He said if that doctrine be 

true, the Constitution, instead of being the main pillar of American 

liberties, was but an institution calculated to ensnare. By the provisions 

in the Constitution, which the American people supposed as so many 

guarantees to their liberties, they had been trepanned into a fatal apathy, 

whilst they indulged themselves in what they supposed a well-grounded 

reflection, that the checks in the Federal Government were inviolate. They 

were now, as it were, awakened from the fatal repose into which they had 

been carried by misplaced confidence; and as the people of Caroline well 

expressed it, this boasted Constitution of their own choice, and the rights 

which it secured, are to evaporate in the crucible of legislative 

expedience. He said he felt himself unusually agitated at the bare 

mentioning of such monstrous doctrine. Go, said Mr. Barbour, and read the 

historic page: it would there be found that expediency has been the 

invariable pretext of tyranny: it has been with that engine that the 

liberties of a free people were eternally assailed. If, said he, the time 

should ever come (which God forbid) when that doctrine should prevail, we 

might date it as the era of the downfall of American freedom. From that 

moment, let the votaries of liberty be shrouded in sackcloth, and with ashes 

upon their heads, deplore the departure of their protecting genius. And, if 

from America the genius of liberty should ever take her flight, like the 

vital spirit, it would return no more to re-animate the body from which it 

had flown. The gentleman too, to support the necessity or expediency of the 

law, resorted to the situation of this country as it related to France. This 

he said was the favourite theme: this was a ground he had anticipated; it 

was not new; it had been successfully adopted by the higher orders of 

government. The conduct of France towards this country had been echoed by 

the friends of administration from every part of America, and under the 

momentary delusion created by the dispatches of the American envoys, it was 

hoped that principles of usurpation might be pushed. The jealous friends of 

the Constitution and the liberties of the people, if they had fortitude to 

oppose the impulse of the moment, and declare that the general government 

was bent upon the subversion of republican principles, were branded with the 

opprobrious epithets of being disorganizers, French partizans, and enemies 

to all order; and the President of the United States, confident of success 

from the supposed wisdom of his operations, has condescended to become the 

head of the party, and has used language which, from its billingsgate style, 

as a man he treated with supercilious contempt; but as an American, he would 

feign shed an obliterating tear, which should efface it for ever. As coming 

from the chief magistrate of the Union, it would inflict an indelible stigma 

upon the American name.



Mr. Barbour said, he would not pretend to justify the conduct of France to 

this country. It was such as met with his disapprobation. It was an event, 

he said, that would be long deplored, and the consequences thereof were 

incalculable; for it had become the pretext of those measures, of which he 

complained. But, he said he felt indignant at the idea, that domestic 

usurpation was to be justified upon the ground of the maltreatment of a 

foreign nation; and that the President of the United States should dare 

brand the guardians of the rights of the people with the offensive name of a 

faction; and, to use his own language, that this faction should be ground 

into dust and ashes. Whom did Mr. Adams mean to call a faction? A majority 

of the yeomanry of America. For it was a fact not susceptible of any doubt, 

that a large majority of real native Americans were opposed to his election, 

and his political opinions; which Mr. Barbour said he would denounce as 

being hostile to republicanism. For, although Mr. Adams was elected by a 

majority of three votes, yet it was well known that the majority was 

produced by artifice and coalition of federal officers, persons deeply 

concerned in funding and banking systems, refugees, foreigners, (whose whole 

life had been but a life of warfare against the principles of free 

government,) bankrupt speculators, and, to complete the group, all those who 

could profit by change and convulsion. Mr. Barbour said he would not be 

understood to pass an indiscriminate censure against all the friends of Mr. 

Adams; because he believed there were as virtuous and as enlightened 

characters friends to his election, as were opposed to it. Neither should he 

have made any remarks upon the nature of parties, had not the gauntlet been 

thrown: from that circumstance, he thought himself justifiable in taking it 

up, and causing it to recoil upon the head of its author. He said he 

supposed he was one of that party, whose fate had been anticipated; but he 

felt an elevating pride when he was classed with the names of Jefferson and 

Madison; names which to the latest time, so long as worth and real 

patriotism should be respected, would cast a shade upon the author of such 

sentiments. Mr. Barbour said, for his part he could not perceive the 

connexion between the conduct of France, and the conduct of our own 

government; and although the friends of administration had been able by 

their dexterity in the arts of delusion, to gain a momentary advantage; 

although the passions of the people were excited for the instant, by which, 

reason, the noblest inhabitant of the human mind had been dethroned, yet 

they (for the people think generally right), at last, under the influence of 

truth, when generally disseminated, would regain their reason unclouded by 

passion, and at that moment they would spurn from them, with inexpressible 

detestation, the authors of their delusion. He hoped, then, that no more 

would be said of the conduct of France, in justification of alien and 

sedition laws. But the gentleman from Prince George had attempted to alarm 

the committee into his opinions, by delineating the fate of the island of 

St. Domingo. He told us that the fertile plains of that island had been 

deluged with seas of blood, and strewed with mangled carcases and mutilated 

limbs; and that if the alien-law had not passed, by which all dangerous 

aliens were excluded, the same fate might have befallen the Southern States. 

The committee were almost taught to tremble at the idea of their houses being 

wrapt in flames; their property a prey to rapine; their lives to massacre; 

their wives, their daughters, and their sisters falling victims to the 

brutal and indiscriminate lust of the negro; and in short everything to 

misery and ruin. But, Mr. Barbour said, he respected too highly the good 

sense and judgment of the committee, to suppose for a moment that attempts 

of that kind would succeed: he knew they would be deemed the meagre, 

unimportant chink of the moment, that would scarcely survive the instant 

that gave them birth. That gentleman's sensibility was aroused only by 

imaginary evils; it was not at leisure to deplore the situation to which the 

unfortunate aliens, by this law, will be reduced. Instead of this class of 

people moving in the elevated sphere of freemen, which they occupied before 

the adoption of this law, they will be sunk into the despicable grade of 

slaves, whose destiny was suspended upon the arbitrary nod of one man. Mr. 

Barbour said, the committee were told, too, of a conspiracy, which had for 

its object a schism in the empire, by which we were to lose the western 

country. Where was the evidence of that? Before he was willing to legislate, 

he said, he must have evidence of the fact, of a fact apparently so 

incredible, and so derogatory to the character of his country. He believed 

the western country, particularly Kentucky, was inhabited by as virtuous and 

as patriotic characters as the world ever produced: men who possessed that 

genuine and fervent regard for the cause of liberty that goes to elevate 

human nature a grade in the scale of animated nature, from which they look 

down with ineffable disdain upon such calumnious charges as those.



Conspiracies, plots, and wild chimeras were always resorted to in 

justification of tyrannic measures. The popular pretext of public good was 

the auxiliary called in to palliate measures pregnant with public evil. And 

too frequently under the mask of a zeal for the welfare of the commonwealth, 

were concealed designs which would eventuate in the destruction of the 

liberties of the people. But they had been told by the gentleman from Prince 

George, that the law was made for two characters, to wit, Talleyrand and 

Volney; and that those characters had, in consequence of the same, sneaked 

off. Independent of the absurdity of the principle, namely, the making a 

general law to suit a particular case, the gentleman was most egregiously 

mistaken in point of fact; for Talleyrand was minister for foreign affairs 

for France, and in France at the time the law passed. How then the law could 

pass to operate on Talleyrand, was to him astonishing. For the character of 

Talleyrand, Mr. Barbour referred to the statement which had been made by the 

gentleman from Prince William. It was sufficient to say, that so long as he 

was supposed to be a martyr to the cause of monarchy, so long he was bosomed 

by Mr. Hamilton and his party. As to Mr. Volney, he said, the cause of truth 

and virtue required he should speak more at large. He had the pleasure of 

seeing that meritorious character whilst in America, but he knew him better 

by history than from personal acquaintance. He from maturity had been 

influenced by the benevolent desire of ameliorating the condition of mankind 

by illuminating the mind, and dispelling superstition. It was for this 

sublime purpose we saw him traversing Asia, and sitting, in meditative 

silence, amidst the ruins of Palmyra, drawing wisdom from experience, and 

developing the causes which contribute to the dissolution of the elements of 

society, and the overthrow of empires, and his capacious mind filled with 

materials of knowledge of the best kind. We saw him returning thence to his 

native country, to publish to the world his acquirements, as so many beacons 

by which those who sit at the head of affairs might guide the vessel of 

state free from those shoals upon which they have so frequently shipwrecked. 

Unfortunately for this philosopher, for France, and for the world, 

Robespierre was at this time at the acme of power. Robespierre, the most 

infamous of mankind, always the enemy to rational and genuine liberty, 

wherever it was found, confined this friend to the species in the instrument 

of despotism, a gloomy jail. By the working of events, a revolution takes 

place in France, by which this sanguinary tyrant met the fate which all 

usurpers merit. Liberty reared its head, and emancipated one of its 

votaries, the enlightened Volney. No sooner was he free from incarceration, 

than he left, once more, his native country in pursuit of wisdom, and 

steered to Columbia, once happy land. He explored this extensive continent, 

and returned once more to Europe to analyze his knowledge, and to benefit 

mankind by disseminating the useful information which he had acquired. This, 

then, was the character against whom such unfounded calumnies have been 

uttered. But unless some evidence was exhibited, he should take the liberty 

to say that they were the offspring of the gentleman's own imagination, 

begotten by the phantom of delusion.



The gentleman from Prince George observed, that the power of making a law 

like the one under discussion should belong to Congress; otherwise, Congress 

would be dependent upon sixteen states. This doctrine would perhaps do, if 

the gentleman was in Convention, and was ascertaining the powers which 

should be exercised by the Congress; but, the committee were not inquiring 

what these powers should be, but what they were. This reasoning, he made no 

doubt, was urged in Convention; but, the representatives of the large 

states, which were but thinly inhabited, were opposed to the power being 

conceded to the General Government; and he had shown, in a former part of 

his argument, that the power of restraining the migration of such persons as 

the states should think proper to admit, was expressly inhibited by the 

Constitution. The same gentleman descanted at large upon the conduct of 

France towards the European powers. Subterfuges of this kind evidently 

demonstrated the distress to which the supporters of this law were reduced. 

For what had the conduct of France to do with an abstract inquiry upon the 

constitutionality of the law under discussion? Arguments of this kind were 

calculated only to inflame the passions at the expense of reason. But, since 

the Committee had been driven into this subject unavoidably, Mr. Barbour 

said he would examine what had been the conduct of France to the European 

powers. Why, she had done to those powers what those powers intended to do 

to her. She had subdued them, and out of the rotten governments, under which 

those countries groaned, had established four republican governments. The 

gentleman said, that the French intrigues succeeded only in republics, 

whilst in monarchies they had no effect. This was a calumny against 

republican government, en masse, and required serious attention and 

refutation.



Mr. Barbour asked, where was the republican government, the overthrow of 

which that gentleman so much deplored? Was there a republican government in 

Europe? No; there were some which had impudently assumed the name; but it 

was a fact not to be controverted, that in those countries the governments 

were completely aristocratic; than which, no government could be worse. But 

perhaps that gentleman had become a disciple of the new philosophy which had 

sprung up under the influence of the present administration, the head of 

which had declared, that aristocracy is the dictate of nature, is 

indispensable to the order of society, and the happiness of mankind, 

(alluding to Mr. Adams's answer to the address of the people of Harrison 

County.) If this principle were admitted as orthodox, the world should 

lament the ruin of aristocracies; but, if it were false, (which he believed 

the greater part of America would not deny,) so far from mourning their 

downfall, it should diffuse general joy. Mr. Barbour said he had now pursued 

the gentleman through all the arguments which he had given into on the score 

of expediency, and trusted he had demonstrated their fallacy. He would now 

call the attention of the committee to a contrast he was about to draw 

between the law and the Constitution. Let it then, for argument's sake, be 

admitted that Congress had a power to make a law relative to aliens; yet 

might not Congress violate that right? As for example, Congress have the 

power of laying a direct tax, yet Congress might violate that right in 

laying a tax without reference to the inhabitants of the state upon which 

the tax was to be laid.



The alien-law, Mr. Barbour said, violated the sixth amendment of the 

Constitution, (the substance of which was, "that no warrant shall issue, but 

upon probable cause, and that, too, supported by oath or affirmation,") in 

this, that the President, without probable cause, without an oath, and 

barely upon suspicion, had a right to apprehend the alien, against whom some 

mercenary informer may have lodged a complaint. It likewise violated the 

seventh amendment, in this; that by the alien-law the President was invested 

with the power of consigning to banishment, without the formality of trial, 

this unfortunate class of people, of which he supposed we had myriads 

amongst us, when by that amendment it is declared, "that no person shall be 

held to answer for a capital or otherwise infamous crime, unless on a 

presentment, or indictment of a grand jury."



By the eighth amendment it is declared, too, that in all criminal 

prosecutions the accused shall enjoy a speedy and public trial by an 

impartial jury of his vicinage, and be informed of the nature and cause of 

the accusation; be confronted with the witnesses against him; have 

compulsory process for obtaining witnesses in his favour; and have the 

assistance of counsel for his defence. It was only necessary to read the 

alien-law, to show the palpable violations of the Constitution. No oath or 

affirmation was requisite; no presentment or indictment by a grand jury 

necessary; no trial by jury; his accusation, conviction and punishment, were 

all to be announced by the Presidential officer in one breath. It was true, 

there might be a kind of mock trial before a tribunal filled with characters 

selected by. the President: a tribunal not under the solemnity of oath, not 

under the least responsibility to public opinion, but from the nature of 

their institution, are taught to kiss the hand from whom they receive their 

authority: a tribunal unknown to our Constitution; and in fact, as far as it 

went, was an epitome of the star chamber and high commission courts. But, 

Mr. Barbour said, he had been told that the aliens were not parties to the 

compact, and therefore were not entitled to the benefit of the compact. He 

contended that by the law of nations, but what weighed still more strongly 

upon his mind, upon principles of reason and humanity, they were entitled to 

the benefit of the rights secured under the Constitution. The Law of Nations, 

Vattel, page 171, section 135, declares that the sovereign authority of a 

state has no right to prevent the migration of persons into its country 

without a good reason. As for example, China has a right to refuse the 

admission of aliens, because its country is completely populated, and 

because the admission of aliens would operate an insuperable injury to its 

citizens. But what good reason could America assign for refusing admittance 

to strangers, with a country extensive, fertile beyond exception, and 

uninhabited. Had not the persecuted alien, then, a claim upon us not to be 

frittered away by the ingenuity of sophistry? Mr. Barbour said, having shown 

that strangers had a claim upon us, and that, by the laws of nations, they 

have a right to come amongst us, he would proceed to prove that when they 

were in this country, they were entitled to the benefit of the law. For this 

purpose, he would refer to Vattel's Law of Nations, page 160-1. It is there 

said, that the law of the land is not only applicable to the particular 

subjects, or citizens of the sovereign authority, but applies to all orders 

of people of every description. It appeared to him a doctrine of the most 

cruel kind, and which he trusted he should never again hear re-echoed from 

these walls, to attempt to narrow the operation of an instrument for the 

purposes of despotism. A benign philosophy would dictate, that the 

Constitution should receive a liberal construction, when the welfare of 

thousands required it. But Mr. Barbour said. that aliens were parties to the 

compact, so far at least as relates to security against oppression. For, by 

coming to this country, they tacitly agree to be bound by the Constitution 

and laws thereof. If an alien committed an offence, how in ordinary cases 

was he tried? As citizens. How was he punished? As citizens. Surely, then, 

as he was to be punished by the laws, he should be entitled to their 

protection. And Vattel further mentions, that an injury done a stranger 

should be punished by the sovereign authority, in as exemplary a manner as 

if done to a citizen.



But it had been said, that the sending off of aliens was no punishment: it 

was a kind of preventive justice. Language like this, was the offspring of a 

cold heart and muddy understanding. What! Was it no punishment to banish a 

fellow-man from a country where he has invested his all? Where he has formed 

the strongest imaginable ties? And in which he expected to find an asylum 

from the fangs of despotism? And perhaps to consign him back to the country, 

from the persecuting tyranny of which he might have fled? Let those who 

advocate this doctrine, bring the case home to themselves, and inquire if 

they would not conceive it a punishment to be banished from a country which 

contained their all. Mr. Barbour observed, that the alien-law had violated 

the Constitution in a very obvious manner, by destroying the main pillar 

upon which all free governments stand, namely, a separation in the three 

great elements of government. By it, the President was invested with 

legislative, executive, and judicial powers, which Montesquieu defines to be 

the essence of despotism. He first gave his assent to the law as President. 

He then legislated in establishing a rule by which the alien is to be tried, 

and every rule was a law. The law itself has established no rule; has 

pointed out nothing which the alien shall avoid; nor yet prescribed anything 

which he shall do. The President, in the gloomy, dark and inaccessible 

recesses of his mind, was then to prescribe the rule, and make it known only 

when he intended to punish under the rule; there, then, he legislated. He 

then was to judge whether the alien had violated his own rule, and if he 

should conceive or suspect that he had, he was then to carry his own 

sentence into effect. If he had been called on to delineate a picture of 

frightful despotism, Mr. Barbour said, he should think he had discharged the 

task by copying the alien-law. The President of the United States was 

invested with the pleasing and humane power of pardoning. What kind of a 

figure would the President exhibit, when he had accused and condemned the 

poor unfortunate alien, to be applied to for a pardon? Was it ever yet known 

in a country which had participated freedom, and had progressed in 

jurisprudence, that the same man or set of men had the power of condemning 

and pardoning at the same time? The enlightened Montesquieu has observed 

that it would create a confusion of ideas, and the world would be at a loss 

to know whether the culprit had been acquitted, or condemned and pardoned. 

In consequence of the measures which had been pursued, the executive branch 

of the government had acquired an undue preponderance of power, which had 

derogated from the other branches; the result of which was, that instead of 

their moving in the dignified sphere of planets, they had dwindled into the 

pitiful character of satellites, which played around the executive with 

servile complaisance. And the liberties of the American, people, which 

revolve around the Constitution as the centre of their system, should that 

be destroyed, would be precipitated into ruin likewise. America was 

destined, he said, to increase the already extended catalogue of despotic 

nations, and we should be compelled to admit the melancholy truth, that man 

is not susceptible of self-government, but is doomed to be governed (he 

trembled whilst he related it) by arbitrary, accursed arbitrary sway. But 

notwithstanding all this, we were told, Hail Columbia, happy land! That the 

people of America were the happiest in the world! What then, were the people 

to wait till the pressure of the evil principle was felt? No. As an elegant 

author expressed it, they augur misgovernment at a distance, and snuff the 

approach of tyranny in every tainted breeze. The political horizon of 

America, which some years ago shone with undiminished lustre, and which 

attracted the admiration of all the world, was now darkened with clouds of 

domestic usurpation, which waited but for some incentive, to burst in 

dreadful violence upon our heads. What an august melancholy scene was here! 

That at the conclusion of the eighteenth century, a time which twenty years 

ago, by the sanguine admirers of the rights of mankind, would have been 

anticipated as the birthday of a general jubilee of emancipation, when 

distant nations would have heard and have quickened into public life by the 

sound, the Virginia Legislature was brought to decide whether, even in 

America itself, the birthplace and cradle of liberty, liberty shall be 

preserved, or whether, bound hand and foot as it was, it shall be offered up 

as a sacrifice upon the altar of vice and ambition. Mr. Barbour then 

expressed himself in the following strong and animated manner: Legislators 

of Virginia! The voice of the people speaks to you; the eyes of the friends 

of liberty throughout the continent, are upon you; and the friends of 

mankind throughout the world are waiting in anxious solicitude the result of 

your deliberation. The road to immortal honour is open before you; the 

temple of fame is within your reach, and the welfare of your country calls 

eminently upon you. By the adoption of the resolutions you raise a rampart 

against the inroads of usurpation, and your names will be wafted down on the 

stream of time, crowned with laurels, and as they pass, will be hailed by a 

grateful posterity with plausive acclamations. But if you reject, you give 

additional weight to the already overgrown power of the general government, 

by which the liberties of the people will be subverted ; and in some after 

time, when our country shall consider us, the people pointing you out shall 

say, there go the authors of our misfortunes.



He then concluded by thanking the committee for the attention they had given 

him.



On motion, the committee then rose, the chairman reported progress, asked 

and obtained leave for the committee to sit again.







____________



               IN THE HOUSE OF DELEGATES,



               Tuesday, December 18, 1798.



The House resolved itself into a committee of the whole House, on the state 

of the commonwealth, Mr. Breckenridge in the chair, when Mr. John Taylor's 

resolutions being still still under consideration,



Mr. MAGILL said, that he arose with sensations never before experienced by 

him; that he conceived the peace of the United States to be involved in the 

decision which the committee were about to make; for the question appeared 

to him to be whether the states should remain united under the federal 

Constitution, or that instrument which they were bound to support, be 

declared of no force or effect; that in delivering his sentiments to the 

committee, he would address himself to the reason of the members, and avoid 

an appeal to their passions; for if the opinion he advocated could not be 

supported upon this ground, he would not resort to any other. That he had 

attended to the arguments of the gentleman from Orange, and those of the 

gentlemen who preceded him on the same side: with their eloquence he was 

pleased, and their talents he admired, but the judgment he had formed upon 

the laws, after the most serious reflection, so far from being shaken, had 

received additional force by the manner in which the debate had been 

conducted. When gentlemen of first-rate talents amuse the fancy with 

eloquent harangues, instead of attempting to inform the understanding, to 

him it was evident that they thought their positions untenable. He said we 

are to decide upon the constitutionality of the "alien and sedition laws," 

as they are generally called, and in so doing are we not erecting ourselves 

into a court of justice, particularly so as (he resolutions declare those 

laws null and void; for where is the department of the government, except 

the judiciary, that can exercise this power? He said that the present 

Assembly was chosen by the people for the ordinary purposes of legislation, 

and he begged to know the source from whence their judicial powers, even 

over a law passed by themselves, in a case where their jurisdiction was 

complete, could be derived. If, said he, it be admitted that we cannot 

judicially act upon a law passed by this or any other Assembly of this 

commonwealth, and that our courts alone can do so, where is that law, point 

out that feature in the federal Constitution, that gives to this body the 

power now about to be exercised? He said that the public papers had teemed 

with invectives against Congress for passing these laws. Could gentlemen say 

this was a criterion to judge them by? He said, that in all the publications 

he had seen, and the arguments he had heard used, the authors had taken for 

granted what remained to be proved. Admit the premises, and the conclusion 

may fairly be drawn. The gentleman from Orange, Mr. Magill said, had 

observed that the President of the United States was a friend to monarchy, 

or in favour of a monarchical government. Admitting this, for argument's 

sake, to be correct, what relation, said he, can it have to the subject now 

under consideration? Will it en. lighten the mind of a man when he is called 

upon to form an opinion upon an important point, to have his judgment drawn 

from that object, by suggesting one foreign and entirely unconnected with 

it? He said, that for his own part, Mr. Adams possessed his highest 

confidence; that he viewed him as the tried and true friend of his country; 

that the happiness of his fellow-citizens was his first object; that he 

looked up to the virtues and talents of Mr. Adams with veneration, and would 

only add, that his administration had in his opinion been pure and 

uncorrupt. These sentiments, though unpopular here, I ever have and will 

avow, said Mr. Magill so long as the measures heretofore pursued, be 

continued. He then contended, that the statement of the gentleman from 

Prince George, respecting the rights of aliens, was correct, and the 

contrary one of the gentleman from Orange not so, and gave his reasons for 

this opinion. He observed, that he meant to be concise in his replies to the 

arguments against the alien-law, as the gentleman from Prince George had 

opened that part of the debate, and would, in concluding it, notice all such 

as he should omit. He said that he adopted this mode, supposing that the 

opening of the sedition act, which had been assigned to him, would take up 

as much time as the House could on that day allow him. He then defined as 

necessary to a perfect knowledge of the subject, the powers of the general 

and, state governments. He observed, that the only true and natural 

foundations of society are the wants of individuals. He said this rule 

applied to the states, considered as such, at the time this Constitution of 

the United States was formed. The insufficiency of the old confederation, 

said he, evinced their wants, and to prevent again experiencing these wants, 

this Constitution was formed. He observed, that to him the Constitution of 

the United States should be thus explained, as giving to the Federal 

government a control over the national affairs; to the state governments, 

the care of state or local concerns. Upon this definition, and the 

Constitution taken together, he proceeded to inquire if the alien-law had 

violated the Constitution in any respect; and he agreed with the gentleman 

from Prince George in his statement respecting aliens, that Vattel's 

doctrine was solid, and to be relied upon. He insisted, that the safety of a 

nation could not be secured, without such a power as this law gave being 

deposited somewhere. He agreed with the gentleman from Spottsylvania, that 

the dispute with France, if it could be avoided, ought not to be introduced; 

but how, said he, can this be done? The unjust and infamous conduct of 

France, should make our government careful how its citizens introduce 

themselves amongst us, with their diplomatic skill; and to guard against 

attempts of that nation and its citizens, this law perhaps was passed. He 

then adverted to Volney and Talleyrand, of whom the gentleman from Prince 

George had spoken, and said, that that gentleman had not been correctly 

understood by the gentleman from Prince William, and others, when they 

alluded to his remarks upon Talleyrand and Volney. The gentleman from 

Spottsylvania had mentioned the independence of the state governments at the 

time of the adoption of the Constitution. He admitted that to be true, but 

said the argument was of no weight, unless it could be proved that they were 

independent now, as their situation at that period was the subject. He then 

made some remarks in answer to the gentleman from Brunswick, upon the first 

clause of the ninth section of the Constitution, restraining Congress from 

prohibiting migration; and he said, the gentleman from Caroline had not 

relied upon that clause, but the gentleman from Orange had. He said, that he 

thought the clause last mentioned, related only to slaves, and his reason 

for thinking so, was founded upon. the language used in the latter part of 

the clause, and the whole Constitution taken together. He then quoted the 

opinion of Mr. George Nicholas, delivered at the time of the adoption of the 

Constitution, in effect the same as his own. He here read the opinion 

delivered by Mr. George Mason, in the debates of the convention in Virginia, 

in regard to the clause referred to, respecting migration and importation 

extending to slaves only. He took this to be the opinion of Mr. Mason, 

inasmuch as his observations, as well as those of others, were confined to 

that description of persons alone. He then mentioned the alien-law of 

Virginia, not, he said, with a wish that if it were erroneous, it should be 

a precedent, but to show what was the opinion of the legislature of this 

state at that time. They had been told, that the Legislature of Virginia had 

a right to pass such a law, and that Congress had not. He contended on the 

contrary, from the Constitution, that the state had a power to pass such a 

law, only until Congress should interfere, by passing one upon the subject. 

He assimilated this to the case of citizenship, upon which laws had been 

passed by the state, that were set aside when Congress passed a general law, 

by the force of that law. He then said, that the clauses in the Constitution 

of the United States, and in the bill of rights of Virginia, securing the 

trial by jury, were couched in general terms, and neither were ever supposed 

to be infringed until the passage of the alien-law by Congress. The people 

of this state had passed such a law for the same reason, as had induced 

Congress to pass one, to wit, to insure domestic tranquillity. Let me ask, 

said he, if here we ought not to pause, and not hastily condemn a former 

legislature of our own state. He then proceeded to show, that by the 

suspension of the writ of habeas corpus, (which the Constitution warranted 

in a particular case,) the trial by jury was taken away even from a citizen. 

Would not then, he said, the true meaning and spirit of the same instrument 

allow it to be taken away from an alien, a person entitled to no absolute 

rights, and who was no party to the compact, in a similar case. He then 

stated at large, the proceedings which took place in the case of the 

suspension of the writ of habeas corpus; and observed, that a person then 

charged, must remain in prison without a hearing, until the emergency had 

ceased. That case then, he said, was in principle the same as the alien-law. 

The cause for the suspension of the writ of habeas corpus was temporary, and 

when the cause had no longer an existence, the effect would also cease. He 

then contended, that when the alien-law had passed, there was good cause to 

apprehend danger from without, and from aliens within our territory: to 

guard against their attempts was proper. He said, the gentleman from James 

City had urged the necessity of aliens being informed of the rule of conduct 

which should govern them upon their arrival in America. In reply to this, 

he, Mr. Magill, would observe, that aliens must know that rule from the law 

of nations, which is a part of the law of every country, and is simply this, 

"interfere not in the governmental affairs of a foreign country, and confine 

your attention to your individual concerns whilst in that country." He 

thought this power given by the law, of removing aliens, properly vested in 

the President. He stated his responsibility, and the eminent services 

rendered by the present President, together with his known attachment to his 

country, as a pledge that he would not act cruelly or unjustly.



The gentleman from Caroline had argued upon the condition upon which the 

Constitution was adopted in Virginia, and upon that point he had understood 

him to say, that the condition being broken, we were no longer bound by the 

ratification. This, Mr. Magill said, was an alarming doctrine. He then 

recapitulated his several arguments, in order, he said, to impress upon them 

what he attempted to prove, and said, that he would then consider the 

sedition-law: and here he requested the attention of the committee, this law 

being in its nature particularly important, citizens being affected by it. 

The freedom of the press, correctly understood, and as it was considered by 

the framers of the Constitution, he contended was not abridged by the law. 

He then read the sedition-act, and said the passage of this law was opposed 

in Congress by those gentlemen who had opposed the defensive measures 

adopted against a foreign nation, and in Virginia it was reprobated on the 

ground of its being unwarranted by the Constitution. Ho asked, is there by 

this law an addition to our penal code, and said, that in his judgment no 

new offence was created by it, everything it forbids being before an offence 

at common law. He said, here it will be proper to inquire, whether the 

doctrines of (he common law apply, or form the basis of our laws: that they 

do so, he took to be clear and evident; such was the opinion entertained in 

the Virginia Convention. He said, that what the doctrines of the common law 

were prior to, and at the establishment of the Constitution of the United 

States, must then be the rule, and the term liberty of the press, as then 

understood, an important consideration. He then read the history of the 

liberty of the press, as laid down by Blackstone, in the fourth volume of 

his Commentaries, and said, this then is the history of the term freedom of 

the press. It was an exemption from all power over publications, unless 

previously approved by licensers. To show that it did not extend to an 

exemption from legal punishment, according to the principles of the common 

law, he said, let us again return to the same author: "Libels are malicious 

defamations of any person, and especially a magistrate, made public, by 

either printing, writing, signs or pictures, in order to provoke him to 

wrath." He proceeded to read Blackstone's definition, with the mode of 

proceeding against persons charged with libellous publications. The liberty 

of the press, as he had stated it, he said was essential to a free state, 

and drew the distinction between the liberty and licentiousness of the 

press. Ho said, with this definition of the freedom of the press, as it was 

before them, with Blackstone's rational observations in their view, can we 

for a moment suppose that Congress, when they concurred in recommending the 

third article of the amendments, and the assemblies of the different states, 

when they ratified and approved that article, intended to procure an 

exemption for writings false, scandalous, and malicious, from punishment, 

according to the principles of the common law. Doth not the judicial power 

of the United States expressly extend to controversies, to which the United 

States shall be a party? Can there be a case, in which the United States 

shall be called a party, if not to those which are offences against the 

United States, their people and government? Was it intended that the 

government should be destitute of the means of defending itself or its 

members7 Have not Congress power, "to make all laws necessary and proper for 

carrying into execution the powers vested by the Constitution in any 

department of the government of the United States?" He said, let us now see 

what construction hath been put upon the twelfth clause of the bill of 

rights in Virginia, by the Assembly of that state, for a law by that body is 

an express declaration of the opinion it entertains. The twelfth clause is, 

" That the freedom of the press is one of the great bulwarks of liberty, and 

can never be restrained but by despotic governments." The Constitution of 

the United States says, in the third article of the amendments, "Congress 

shall make no law respecting an establishment of religion or prohibiting the 

free exercise thereof, or abridging the freedom of speech, or of the press, 

&c." In substance the language is the same. Amongst the laws passed in 1792, 

is one to be seen in page 219 of the Revised Code, entitled, "An act against 

divulgers of false news;" which law enacts, "That whereas," &c. He then read 

the law. The legislature was then of opinion, that divulgers of false news, 

whether printers or others, were not protected by this clause in the bill of 

rights. Are we, he asked, wiser than a former Assembly? This law in our 

code, upon being compared with the law of Congress, will be found much more 

severe than the latter. By the law of Congress, the accused may give in 

evidence in his defence, the truth of the matter contained in the 

publication charged against him, &c. But, said he, is it known to the people 

that in a prosecution for a libel in Virginia, under the state laws, you can 

neither plead nor give in evidence the truth of the matter contained in the 

libel. He said, in a civil action, the truth could be pleaded in bar of the 

suit, and upon proving the plea, a verdict would be found for the defendant. 

He here pointed out the mode of proceeding by indictment against a person 

accused and tried under the state law for a libel; and said here is a 

material distinction between the two laws. He contended, that the freedom of 

the press was not abridged, no new offence being created. He asked, how can 

the officers of government carry the laws of the union into effect, without 

possessing the confidence of the people? He said, what is this law designed 

to prevent, is it the circulation of false and malicious slanders? And if 

so, can any man wish to exercise such a right, even admitting him to possess 

it, the bare use of which would cover him with infamy? He said a law passed 

by us is right, but a similar law passed by Congress, having equal power 

upon the subject-matter, is wrong. He repeated his several arguments in 

order, and said that the committee had been so indulgent, that he would now 

pass on to the resolutions offered: And here, he said, it appeared to him 

that the wisdom of man could not devise a more certain mode of preventing a 

repeal of the laws complained of, than that which the resolutions pointed 

out. Are gentlemen serious, he said, in wishing a repeal? He said, the 

moment that the paper under consideration was adopted, he should consider as 

giving birth to a serious and alarming contest. He said, are we sincere in 

our professions of friendship to the government of the United States? If so, 

why snatch with avidity an opportunity of resorting to a measure violent in 

its nature, before we have made an attempt, moderate and temperate. Would 

this conduct, he said, be pursued by an individual wishing to be reconciled 

to his friend? He said the resolutions are certainly incorrect. The states 

alone are parties! What, are the people entirely excluded? He contended, 

that there is not a state in the Union that hath so unequal a representation 

in the state legislature as Virginia. Are the people of Virginia represented 

according to numbers? No! It is the name of a county. Two hundred 

freeholders have the same voice in this Assembly, as one thousand. This 

statement, he said, the committee knew was accurate, and the two counties 

could be named. He then referred to the third amendment to the Constitution 

of the United Slates, which secures the right of petitioning for a redress 

of grievances. The states, he said, could never be injured whilst that power 

existed; and could he be convinced that the people were aggrieved, he would 

join in a constitutional, moderate way to obtain a redress. He said, the 

Kentucky resolutions, us did ours, declared these laws null and void. If 

they are so, let the proper courts say so. He then proceeded to show that 

the states could not form a coalition; for by the Constitution they are 

prohibited from entering into any confederacy, or making any agreement with 

each other. In substance, he said, this was forming a confederacy. He then 

read an extract from the Federalist, in the writing of which the gentleman 

from Spottsylvania had said. Mr. Madison was concerned.



He said he thought the laws constitutional, and then enumerated the 

consequences of adopting the resolutions before the committee. He enlarged 

upon this subject, and again entreated the committee to pause and seriously 

to reflect upon the awful question before them, for such he really 

considered it. 



Mr. FOUSHEE arose next, and asked if it would be necessary for him to tell 

the committee that the subject was important, after what the gentleman last 

up had said: "that peace or war was to be the consequence." And being so 

important, he (Mr. Foushee) thought that they should most seriously consider 

the matter previous to a decision on the resolutions before the committee. 

He then made some remarks upon the quotations from the law of nations, used 

by Mr. George K. Taylor and Mr. Magill, to show that sovereignty must reside 

in every independent nation, and the power consequently attached to 

sovereignty. This doctrine he did not deny, but said, if the states 

individually were sovereign before and at the time of the adoption of the 

Constitution, which he contended they then were, and still are, he asked 

could any one lay his finger on that part of the Constitution of the United 

States which had taken away their sovereignty in those cases embraced by the 

alien and sedition laws? That the Constitution was a limited compact, and 

contained no powers but those granted. But the common law and implication 

had been resorted to by gentlemen, in support of a contrary doctrine. By 

admitting the common law and this construction to have force, he said, 

Congress might, under these, and the terms general welfare, pass any act 

whatever; thereby setting the Constitution at naught, and making it a dead 

letter; and nothing would be reserved to the states, or to the people. He 

was alarmed, he said, at the method which the gentleman from Prince George 

had adopted, in selecting the alien from the sedition law, in his arguments, 

and confining himself to the former. In doing so, he (Mr. Foushee) feared he 

discovered an intention, under the guise of attacking aliens only, who were 

certainly the roost unpopular inhabitants amongst us, to lay a foundation 

for inflicting similar injuries, in future, on such of our citizens as might 

give offence, and that he thought the selection of this law might keep the 

danger he apprehended out of general view. Mr. Foushee made several 

observations in answer to Mr. G. K. Taylor, respecting the rights of aliens; 

and observed, that, by the alien law, they were deprived unconstitutionally 

of liberty, which he (Mr. Foushee) contended was one of their rights, as 

well as life and property, to which it was acknowledged they were entitled; 

for the loss of their liberty, however, he said, the gentleman from Prince 

George expressed no pity nor offered any excuse, except one, which might be 

the plea of any tyrant. Mr. Foushee then said, he thought and feared, that 

the alien law was but a step to something else, to wit, a precedent under 

which citizens might in future be attacked. Danger too, he said, had been 

assigned as the cause of passing those laws. That cause, he observed, might 

be raised up at any time by an artful President, who could perhaps 

previously get such a treaty made as to suit his purpose; and, under the 

idea of danger, to produce a state of preparation, by which his power might 

be increased, and which might become injurious by the extension of influence 

arising from patronage; for instance, &c. What direful acts and effects of 

usurpation, said he, may not ensue under the pretence alone of danger? The 

unconstitutionality of these laws, he observed, had been so fully proved, 

that it would be unnecessary then for him to say anything further on that 

head; and that, if there was an act at which the human mind could revolt, it 

would be, in his judgment, the denial of such unconstitutionality. He then 

said, that if the doctrine of some gentlemen on the floor of Congress, and 

that contended for by a certain modest pamphleteer, as lately published, and 

which some days past had been so copiously detailed by the member from 

Prince George, and which he (Mr. Foushee) had since seen, could be 

established, he admitted the resolutions must be wrong; but, as he was well 

satisfied such doctrine could not be supported, he thought the resolutions 

ought to receive the sanction of the committee. He mentioned the subject of 

implication again, and dwelt on its direful consequences, many of which he 

particularly enumerated. He then proceeded to answer quotations made by 

gentlemen from certain laws of Virginia, particularly the alien-bill, 

endeavouring, as he supposed, to deduce from thence, power to the general 

government over aliens. He urged, that the latter particularly was a proof 

that the state, and state only, had a right to pass such a law; and 

consequently, that Congress had not the right.



But, he said, the gentleman from Prince George had urged, that if Congress 

had not the power of passing such a law, Virginia might admit under the 

description of aliens, an army of soldiers, for instance, Bonaparte and his 

whole army (if they could get out of Egypt). Mr. Foushee asked, what idea 

must that gentlemen have of the virtue and patriotism of his 

fellow-citizens, in urging such an argument? He said, it might justly be 

called, in the gentleman's own words, a monstrous idea. He then asked, where 

would those doctrines contended for by gentlemen in opposition to the 

resolutions, leave us? Would it not be in a mass of consolidation? Could not 

freemen, he said, assert their rights, without being charged with an 

intention or wish of dissolving the government of the United States? He then 

stated the observations of several gentlemen, in regard to the consequences 

of opposition, as they termed it. That he differed, however, from them in 

regard to the consequences they apprehended, to wit, an invitation of 

foreign invasion, &c.; and he contended strongly for the right of free 

communication and consultation. He observed, that the gentleman from Prince 

George had said, that these acts of Congress having been passed by a 

majority of that body, the members of which had taken an oath to support the 

Constitution of the United States, could we suppose they were unmindful of 

it? The members of this Assembly, Mr. Foushee said, had taken the same oath, 

in addition to other obligations. That they must therefore pursue their 

duty, in discharge of their solemn obligations to this state and the United 

States, without regard to the conduct of other people, although they may 

have acted also under oath. He then recapitulated various arguments of those 

who approved the resolutions, and observed, it had been said by the member 

from Prince George, that this law (meaning the alien-law), although passed, 

would affect very few comparatively, indeed it would be almost as one man 

only. In this light, he (Mr. Foushee) considered it so much the more to be 

dreaded, as an exertion for its repeal might not be sufficiently made, and 

thus a precedent be established. Small beginnings, he said, often produced 

great ends, and required, therefore, to be more narrowly watched. He then 

made a comparison between the structure of the Constitution and the 

universe. The latter he represented to be a system composed of atoms. If, 

said he, it were once to be ascertained that we had a power to destroy or 

annihilate one atom, it would soon be seen that we had a power to destroy 

more atoms; and thereby we should establish a principle, which might go to 

the total destruction of the universe. The same consequences as to the right 

of power over the Constitution, he said, might ensue, for the power over 

each was limited. Danger too, he said, had been repeatedly assigned as a 

cause for those laws. He again asked, what would be the consequence of 

subscribing implicitly to that doctrine? The principles of such a measure, 

he repeated, would be to establish in a designing man, or set of men, at the 

head of the government, all power, which might be continued, even when the 

danger spoken of no longer existed. Precedent, he again said, would be thus 

founded and resorted to; and be urged upon us on every occasion, by saying, 

the same thing has been done before. But if danger alone, added he, had been 

the cause of passing those laws, and they could be justified, even on that 

score, that danger, he said, was now nearly over, or greatly lessened. He 

then referred to historical facts to prove the force of his remarks. These, 

he said. were worthy of being attended to. He again declared himself in 

favour of the resolutions, especially the first. After which he observed, 

that he had confined his observations generally to the alien-law, as he had 

understood the gentleman from Prince George to say, early in the debate, 

that the arguments on the sedition-law would not be gone into, until those 

on the alien-law had been urged and decided on. However, he said, he 

considered the sedition-law of much the greater consequence of the two, as 

the evils were by that law, in his judgment, much aggravated; and that all 

the arguments urged against the alien-law applied with accumulated force 

against the sedition-law; and that he could as yet only account for the 

selection of the alien-law in argument, as being the most distant from, and 

least to be felt by, the citizens at large. Ho then proceeded to state the 

purport of the sedition-law, the construction which had been given to it, 

and the consequences resulting from its operation. And although he admitted, 

that speaking might not be expressly enumerated, yet he said the free 

communication of opinion was prevented, and particularly in the mode of 

writing, printing, &c. He then stated the beneficial effects resulting from 

a free communication of sentiment, and the greater benefits still, flowing 

particularly from the freedom of the press; by means of which, knowledge was 

most extensively diffused. He made several observations in favour of the 

manly language of the resolutions, particularly the first, as holding out 

our express determination to resist usurpation by every constitutional mode, 

as well as invasion; and which he thought would be the most effectual means 

of curing the present evil, as well as preventing similar attempts in 

future. He then made a short recapitulation of the unconstitutionality and 

inexpediency of those laws, and observed, that injustice and deception were 

particularly evident, in his judgment, on the face of the sedition-law, to 

wit: four specified acts, "writing, printing, uttering, and publishing," 

independent of other prohibitions, were made punishable. That it had been 

urged, those various acts might be justified, if they contained the truth. 

He urged in reply, that the justificatory clause only enumerated two items, 

"writing and publishing." That printing and uttering were not in that 

clause; and therefore, justification could not be pleaded in excuse for a 

prosecution founded on either of these.



Mr. BROOKE arose next, and said that he never could consent to sanction the 

passage of resolutions having so alarming and dangerous a tendency as those 

which had been presented to them by the gentleman from Caroline; and before 

ho gave his vote upon the subject, he would beg leave to state to the 

committee, without adverting to the particular merits of the laws that were 

the subject of those resolutions, the reasons that would govern him in his 

vote upon that occasion.



Resolutions such as these, said Mr. Brooke, declaring laws which had been 

made by the government of the United States to be unconstitutional, null, 

and void, were in his opinion, in the highest extreme dangerous and 

improper, inasmuch as they had not only a tendency to inflame the public 

mind; they had not only a tendency to lessen that confidence that ought to 

subsist between the representatives of the people in the general government 

and their constituents, but they had a tendency to sap the very foundation 

of the government, by producing resistance to its laws, and were in the eyes 

of all foreign nations evidence, fatal evidence, of internal discord in this 

country, and of imbecility in our government to protect itself against 

domestic violence and usurpation. For these reasons, he said, he was opposed 

to these resolutions, and did not hesitate to declare himself equally 

opposed to any modification whatsoever of such resolutions, that might be 

intended as an expression of the general sentiment upon this subject, 

because he conceived it to be an improper mode by which to express the 

wishes of the people of this state upon the subject. By what mode then, said 

he, were this Assembly to understand and to express the will of the people 

of Virginia upon the laws that had been called in question? By an act of the 

Virginia Legislature, declaring these laws to be unconstitutional, null, and 

void? No! But by the laws of the general government, to whom the power 

properly belonged of making these laws; and by which their will had been 

already expressed. The government of the United States, he said, was one 

organ of the will of the people; the Legislature of Virginia was another 

organ of the public will. Those two organs, then, of the public will were at 

variance. One of these organs made laws for the government of the United 

States: another of these organs, the inferior one, declared these laws to be 

unconstitutional, null, and void; and the question then was, which of these 

organs were they to obey? The government of the United States, he said, most 

indubitably; because in the government of the United States, the 

representation of the people of this state is more pure and more equal than 

it is or could possibly be in the state government, under the existing state 

Constitution. In the general government, said he, every thirty thousand 

persons are represented; but in the state government, from the great 

inequality in the representation, under the existing state Constitution, it 

was utterly impossible, under existing circumstances, by this mode to 

express the sentiments and wishes of the people of Virginia upon the laws 

that had been called in question. In some counties in the state, said he, 

fifteen hundred or two thousand freeholders constitute the number of 

electors, who are entitled to but two representatives: in other smaller 

counties, one hundred and fifty or two hundred freeholders constitute the 

number of electors, who are entitled to the same number of representatives: 

so that, from this apparent inequality in the representation, circumstanced 

as he was, and a number of other gentlemen in the House, how could they form 

any sort of estimate of the general will of the people upon the subject of 

the laws in question. In the county of Prince William, he knew not what the 

people thought of the laws. The representation from Loudoun, Berkeley, 

Frederic, and many other large counties, were in the same situation. To what 

standard then were they to resort in order to ascertain the general will 

upon the subject? To the laws themselves, he said, he would again reply, 

which have been passed by the general government, where we are equally 

represented, and to whom the authority properly belongs by the Constitution. 

Since the representatives of the people in the general government, then, had 

made these laws, as a good citizen he would obey; as a good citizen he 

valued the Constitution of the United States, which he had sworn to support, 

and which he conceived to be invaded by the resolutions before them; and 

when the people of that part of the country which he had the honour to 

represent, became so exceedingly degenerate, so lost to all regard for the 

great advantages and benefits resulting from a connexion between the states 

under the federal Constitution, as to give him instructions to vote for the 

adoption of resolutions having so alarming and dangerous a tendency as those 

which had been offered by the gentleman from Caroline, he should go in 

mourning for them; he should bid adieu to legislation, and seek an asylum in 

some other region of the globe, among a race of men who had more respect for 

peace and order, and who set a higher value upon the blessings of good 

government. But sensible as he was that his constituents would have 

discernment and patriotism enough to think with him that the resolutions 

offered for our adoption by the worthy member from Caroline, teem with 

principles hostile to the very existence of the general government; that 

they would think with him that any attempt in the state legislature to 

control the operations of the general government by the adoption of 

resolutions inviting the sister states to a cooperation in resisting its 

laws, was equally dangerous and improper as it is unnecessary, he should 

give a negative to these resolutions, and before he sat down, beg leave to 

offer a resolution as a substitute for those which had been presented by the 

member from Caroline. He offered it, he said, at this stage of the business, 

because the tocsin of rebellion had been that day sounded in the House by 

the resolutions accompanying the Governor's letter from the state of 

Kentucky. The sooner then, he said, our determination not to co-operate in 

resisting the laws of the general government should be announced to that 

state, the sooner our determination to support the American government should 

be announced to the nations of the earth, the better. And for this purpose 

he would offer the resolution which he had before referred to. He then read 

his resolution, in the following words: "Resolved, That as it is established 

by the Constitution of the United States, that the people thereof have a 

right to assemble peaceably, and to petition the government for a redress of 

grievances, it therefore appears properly to belong to the people themselves 

to petition when they consider their rights to be invaded by any acts of the 

general government; and it should of right be left to them if they conceive 

the laws lately passed by the Congress of the United States, commonly called 

the ' alien and sedition bills,' to be unconstitutional, or an invasion of 

their rights, to petition for a repeal of the said laws." After reading the 

said resolution, Mr. Brooke handed it in to the clerk's table, where the 

same being again read, was laid upon the table.



On motion of Mr. Johnson, the committee then rose, the chairman reported 

progress, asked, and had leave for the committee to sit again.







____________



               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.







____________



                IN THE HOUSE OF DELEGATES.



               Thursday, December 20, 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,



General LEE arose, and said that he was sorry he had been prevented from 

attending his duty in the House earlier in the session. He had thereby lost 

the opportunity of combating the pernicious system in operation at its 

commencement, as well as that of obtaining the information which previous 

discussion must have afforded. Disadvantageously, however, as he felt 

himself situated, he could not refrain from presenting to the committee 

those reasons which influenced him in opposing the resolutions. There were, 

he believed, three propositions on the table: the resolutions proffered by 

the worthy member from Caroline: counter resolutions proposed by his worthy 

friend from Prince George, and a resolution proposed by a worthy member from 

Prince William. To the counter-resolutions he gave his cordial assent: to 

the last proposition he also assented, as it breathed a spirit congenial to 

true American policy, and afforded an innocent way of disposing of the 

resolutions from Caroline. But inasmuch as the rejection of the first 

resolutions would necessarily involve the approbation of those proposed in 

opposition, he should apply his observations to effect that object only.



General Lee then contended, that the ruling principle in the resolutions was 

erroneous. They asserted as a fundamental position, that the existing 

Constitution was a compact of states. He denied this position: declaring the 

Constitution to be a compact among the people. The ancient confederation was 

a compact among the states; it was so in style, manner, and power. But the 

government under which we now live, was precisely the reverse. What is its 

style? "We the people." What is its manner? Executed by functionaries 

appointed mediately or immediately by the people. What is its power? That of 

the people; derived from them, and based upon them. How then could it be 

asserted that the present Constitution is a compact of states? And would the 

committee sanction by their approbation, a declaration palpably wrong? It 

was true, there was to be drawn from the Constitution some faint support for 

this erroneous construction. The Senate, one branch of the Federal 

Government, was elected by the states, as states. This deviation from the 

general system could not be relied on to destroy the system itself. It was 

the result of our peculiar situation. The smaller states could not be 

induced to renounce their existing equality entirely. It was necessary to 

compromise, in order to obtain the happy Constitution we possess.



To this compromise was attributed the federal feature just mentioned. But 

this partial departure from the general principles of the system, could not 

be regarded as covering the broad ground taken in the resolutions. All the 

branches of government ought to be elected by the states, as states, to 

maintain the position assumed.



This was not the case, and consequently the resolutions were radically 

erroneous.



General Lee then proceeded to the examination of the alien and sedition 

laws. He began with the alien law, which he contended was not a breach of 

the Constitution. If the law was unconstitutional, he admitted the right of 

interposition on the part of the General Assembly; nay, it was their duty, 

and every good citizen was bound to uphold them, in fair and friendly 

exertions, to correct an injury so serious and pernicious. He would himself 

cordially contribute his humble mite; but even in that case, he should adopt 

a very different manner from that contained in the resolutions. Friendship 

should be the ground, friendship the dress, and friendship the end of his 

measures. The resolutions inspired hostility, and squinted at disunion.



The objections made to the alien-law were: 1st, It transcends the power of 

Congress. 2d, It violates that article of the Constitution which leaves to 

the states the right of admission of emigrants. 3d, It deprives an 

alien-friend of trial by jury. 4th, It unites legislative, executive, and 

judicial powers. To the two last, he said, he should particularly attend, as 

gentlemen preceding him had, he understood, fully noticed the two first. 

General Lee read some passages from the law, tending to show that the 

prevention of commission of crime, and not the punishment of a crime 

committed, was its only object.



He then proceeded to show that trial by jury could only apply on charge of 

crime committed. It was ludicrous to attempt to apply it in the alien-law; 

and it was consequently absurd to stigmatize that law, and those who framed 

it, with violation of the Constitution, by denial of trial by jury, where 

trial by jury could not possibly apply. The law was in its nature 

preventive, and sprung from the right of duty of government to protect the 

states from invasion. The exercise of this right belonged to Congress, and 

they were the sole judges of the expediency. In their decision, all ought to 

acquiesce. In case of error or vice, the revolving elections presented a 

proper corrective, which could be applied to without commotion or 

disturbance; and which, fairly and judiciously applied, could not fail to 

cleanse the body politic.



During the debate, it had been well observed by the worthy member from 

Lunenburg, that the injustice of France might be considered as the root of 

these measures, and that it was not easy to discuss the latter, without 

reference to the former. This remark was certainly true, and must have been 

felt by every gentleman engaged in the discussion. In case of an invasion, a 

measure dependent only on its practicability, of which practicability our 

venomous and insatiable foe was the sole judge, what keen and operative aid 

might not be afforded by the numerous aliens, long fostered by American 

hospitality, and anxious for an opportunity to display their ingratitude, if 

we might be permitted to form an opinion of their future conduct by the zeal 

with which they laboured to expel from the breasts of our citizens all 

respect for religion and government; preparing, as far as was in their 

power, the American people for the reaction of the French and Saint Domingo 

tragedies.



Ought not then Congress to have taken measures to rid their country of such 

eventual misery? It was their first duty so to do; and supineness on their 

parts would have been criminal.



But it seems that aliens have rights under our Constitution. It was 

wonderfully kind, he said, in our fathers to devote their time and money to 

the care of the Turk, Gaul, and Indian, when the proper object was that of 

their children. This spurious doctrine, however confidently asserted, was 

not credited by the gentlemen themselves. They might impose on others, but 

the discernment of their own minds forbade success in imposing on 

themselves. An alien would claim no right in this country, unless he could 

show a treaty for it; excepting his participation in the usual rights of 

citizens, which he held upon courtesy, and which courtesy could be withdrawn 

at the pleasure of the sovereign power. Be done then, he said, with all 

these pretences. They were groundless, and seized only to excite more and 

more the begun ferment.



The sedition-law, General Lee said, was also declared to be a violation of 

the Constitution. Let us, said he, examine it. Let us refer to the clause in 

the Constitution securing the freedom of the press, which we are told by the 

above law is abridged. By the law you must conspire to oppose a measure of 

government; or utter, write, or publish, with the intention of opposing, or 

exciting opposition to government. The publication must also be false, 

malicious, and scandalous.



General Lee then asked, if government was worth preserving? If not, let it 

be annulled. If it was, deny not to it, he said, the means of preserving 

itself. The Constitution must be very defective, if it held not the power of 

self-preservation. It was not defective; and a fair construction of it would 

warrant the sedition-law. Government with us depended for its existence upon 

the affections of the people. In its preservation the people were 

interested. Any attempt, by the publication of falsehood to discredit 

government, and thereby to impair the public confidence in it, was an 

offence against the people; it was wrong in morality, and ought to be 

punished. What honest man would complain of a law, which forbids the 

propagation of malice, slander, and falsehood? What good citizen would not 

delight in a law, which, while it punishes the above vices, tends to 

perpetuate the government of his choice? And yet a law of that sort, he 

said, afforded a fertile topic of abuse and misrepresentation.



General Lee then observed that, "thou shalt not lie," was one of the ten 

commandments: it was one of the injunctions of the sedition-law. Whoever 

considered the freedom of speech abridged by the divine law? No man unless 

lunatic; nor could the freedom of the press be so deemed, without a 

misconstruction of the Constitution, or of the sedition-law.



This state, he said, had from the Revolution enacted laws of the same sort. 

In 1776, a committee was appointed for the revision of our laws. Messrs. 

Pendleton, Wythe, Jefferson, Mason and Lee, composed the committee; able, 

honourable, and eminent citizens. Among their proposed bills, was to be 

found one on the subject of libels. A reference to this bill would show its 

minute resemblance to the sedition-law. Authority such as that just quoted, 

General Lee said, could not fail in guarding the committee from accrediting 

the intemperate censures issued against Congress. He would proceed, he said, 

to another authority in point of time and subject, though one of the 

respectable gentlemen just named, and the very one of all others to whom 

gentlemen on the other side attached most weight. Mr. Jefferson, in his 

correspondence with Mr. Madison, respecting the new Constitution, maintains, 

said General Lee, the doctrine we contend for. He (Mr. Jefferson) expressly 

says, that in preventing the abridgment of the freedom of the press, 

punishment for uttering falsehoods ought not to be inhibited. (3 Jeff. Mem. 

25.) The same doctrine is expressed by the same gentleman, in his Notes on 

Virginia. (Notes on Va., Appendix No. II., p. 233.) 



However, General Lee said, he would refer to an authority still higher, the 

General Assembly of this state in 1776. That august body, the champions of 

American rights, the patriots who composed our state Constitution, passed a 

law on this subject in the following words: "That, if any person residing, 

or being within this commonwealth shall, from and after the publication 

hereof, by any word, open deed, or act, advisedly and willingly, maintain 

and defend the authority, jurisdiction, or power of the king, or parliament 

of Great Britain, the person so offending, being legally convicted thereof, 

shall be punished with fine and imprisonment, to be ascertained by a jury, 

so that the fine exceed not the sum of twenty thousand pounds, nor the 

imprisonment the term of five years:" "and that any person who shall 

maliciously and advisedly endeavour to excite the people to resist the 

government of this commonwealth as by law established, or persuade them to 

return to a dependence upon the crown of Great Britain, or who shall 

maliciously, or advisedly terrify and discourage the people from enlisting 

into the service of the commonwealth, or dispose them to favour the enemy, 

every person so offending, and being thereof legally convicted, shall be 

punished with fine and imprisonment as aforesaid."



These men, General Lee said, formed our Constitution, and these men passed 

the law of which the quotation is an extract. They must have understood 

their own work; they could not mean to violate the Constitution. The law 

then was not unconstitutional in their opinions, and yet it must be so, if 

the doctrine now advanced be accurate.



The Constitutions of the state and of the United States, provide in terms 

equally strong for the security of the freedom of the press. The law above 

quoted, passed by the state, and the sedition-law, passed by Congress, were 

of the same sort in word, spirit, and object. If the first be no violation 

of the state Constitution, the second could not be deemed a violation of the 

United States Constitution. Other laws passed by the state, all tending to 

justify the opinions which he and those who thought with him held, General 

Lee said, might be referred to; especially the law against the divulgers of 

false news and the law against treason. It had been fully observed by the 

worthy member from Prince George, that the word "freedom" of the press had a 

definite meaning; and he had proved incontestably what this technical 

meaning was, to wit, a freedom from every restraint in printing, but not a 

freedom from punishment, if the printing was in its tendency injurious to an 

individual or to the community.



It appeared plainly to his mind then, that the resolutions asserted an 

untruth, when they charged the two laws with violation of the Constitution. 

But it seems, he said, that the laws are inexpedient and unwise. Of their 

expediency and wisdom the people have made Congress the sole judge. They 

have the best information; their object must be the public good, and it was 

presumable that the measure was wise and necessary, or their adoption would 

not have taken place. He would not, he said, examine the question of 

expediency of the laws, but would examine the expediency of the resolutions. 

Admitting for a moment, that the laws were unconstitutional, he contended 

that the course pursued by the resolutions was inadmissible. Prudence 

frowned on the indecorum and hostility which their face showed, nor was it 

to be presumed that contumely to the sovereignty of the Union was the 

likeliest way to obtain a repeal of the laws. The very reverse must happen. 

Why, then, recur to such an expedient, if the object of repeal be the real 

object? He hoped that he should be pardoned, he said, when he suspected that 

repeal of the laws was not the leading point in view. Promotion of disunion 

and separation of the states, struck him as objects which the resolutions 

covered. What evils so great could befall the American people? Every measure 

squinting at such disasters ought to be spurned with zeal. Let us, then, 

said he, put our veto on the resolutions. Was an individual, he observed, to 

apply to his friend for redress of some supposed injury, the application 

would be conveyed in terms polite and friendly. So ought it to be when a 

state applied to the United States. But why not wait for the operation of 

the constitutional checks? The united system was made by the whole people, 

for the management of all affairs national. The same people instituted state 

governments, for the management of all state affairs. These systems held 

concurring jurisdiction over some subjects, and of course might occasionally 

interfere. Who, then, was the proper arbiter between them? Not the state 

government: the people had given them no such power. The people themselves, 

the creators of both systems, were the proper judges. Their decision was 

obtainable under the rules of the Constitution in the revolving elections. 

The judiciary also was a source of correction of legislative evil; a source 

fixed by the Constitution, and adequate to cure violations of the same like 

those now alleged. The state legislatures might also act, but it must be by 

proposing amendments to the Constitution in either way therein delineated. 



If then the laws were deemed unconstitutional, let the question, he said, be 

left to the people, to the judges: or let the legislature come forward with 

a proposition for amending the doubtful parts of the Constitution; or with a 

respectful and friendly memorial, urging Congress to repeal the laws. Thus 

would our union be strengthened, our friendship perpetuated.



The state judges, he said, had on many occasions interposed when this 

legislature had passed laws unconstitutional. The remedy had cured the 

disorder, and tranquillity remained undisturbed. So would do the federal 

judges. They were as respectable, as trustworthy as were the state judges; 

in them as much confidence ought to be reposed. For his part, he said, he 

felt as much confidence; nor could he admit the force of those distinctions 

which gentlemen laboured to establish, tending to discriminate in favour of 

state judges and state officers. They were all citizens alike, bound to do 

their duty; clothed with the authority of the people, and directed by the 

will of the people. Whether called state or federal judges, sheriff or 

marshal, was a light and unimportant circumstance.



The resolutions, General Lee said, struck him as recommending resistance. 

They declared the laws null and void. Our citizens thus thinking, would 

disobey the laws. This disobedience would be patronised by the state, and 

could not be submitted to by the United States. Insurrection would be the 

consequence. We have had one insurrection lately, and that without the 

patronage of the legislature. How much more likely might an insurrection 

happen, which seemed to be advised by the Assembly? The scene in 

Pennsylvania turned out to be a comedy: the same attempt here, he feared, 

would issue in tragedy. Let us, said he, avoid these numerous ills. All the 

states are interested in our decision, both as to their reputation and 

tranquillity. He requested gentlemen then to be temperate, to reject the 

proffered paper, and adopt some other course.



Division among ourselves at this time, he said, encouraged invasion. He 

could not bring himself to believe that gentlemen meant to invite the enemy 

to our country. He could not attribute to gentlemen such motives. But what 

signified the goodness of their intentions, if their measures produced the 

effect?



General Lee then concluded by entreating gentlemen to pause. Take this one 

rash step, said he, and you will be carried step by step till you land in 

misery, or submit quietly with derision settled upon your heads. Should my 

efforts, Mr. Chairman, be unavailing, I shall lament my country's fate, and 

acquiesce in my country's will; and amidst the surrounding calamities, 

derive some consolation from recollecting my humble exertions to stop the 

mad career. 



Mr. CURETON said, that there had been silence in the committee for some 

time; and if no other gentleman was disposed to speak, he hoped the question 

would then be put. The debate had engaged their attention for several days 

past, and he expected that every member of the committee had made up his 

mind upon the question.



Mr. John Taylor's resolutions were read by the clerk.



Mr. PETER JOHNSTON then arose, and acknowledged his incompetency to throw 

any light upon the subject, but hoped to be indulged with a few observations 

in answer to the gentleman from Westmoreland. He had contended that the 

states were not parties to the compact, but the people. Mr. Johnston denied 

the position, and said that every fact in the history of the government 

would contradict it. If the confederation was formed by states, the states 

alone possessed the power of dissolving it. And when it was found 

incompetent, the states, and not the people, directed a convention to frame 

the Constitution. When that was framed, their power was at an end. The 

members of it, it was true, were the representatives of the mass of the 

people of America. But, when the system was framed, it was submitted to the 

conventions of the people of the several states. If those conventions then 

assembled under the auspices of the legislatures of the different states, 

the states were parties. Should the words, "we the people," then change the 

nature of the compact, contrary to the historical facts of the day? He 

thought not.



Mr. Johnston then cited the fourth section of the fourth article of the 

Constitution, which declares, "that the United States shall guarantee to 

every state in this Union a republican form of government, &c." Also the 

fifth article, which declares, that "the Congress, whenever two-thirds of 

both houses shall deem it necessary, shall propose amendments to this 

Constitution, or on the application of the legislatures of two-thirds of the 

several states, shall call a convention for proposing amendments, which in 

either case shall be valid to all intents and purposes, as part of this 

Constitution, when ratified by the legislatures of three-fourths of the 

several states, or by conventions of three-fourths thereof, as the one or 

the other mode of ratification may be proposed by the Congress, &c." From 

these clauses, he conceived, an irrefragable argument was deducible in 

favour of his idea. It had been said, however, that from the expression 

conventions in this article, the states were not parties. Mr. Johnston 

contended lhat they were, as the other expressions in this article were as 

strongly in favour of the states being parties, as the word conventions 

could be in favour of the people being parties. The truth was, that both the 

states and the people were parties.



He then made several observations in answer to General Lee's argument upon 

the matter of compromise between the states. This gentleman, too, he said, 

had asserted that the alien-law extended to prevent offences, and not to 

punish them. This Mr. Johnston denied, and proceeded to point out the real 

case of the alien under the law of Congress. He understood the law was 

designed for alien-friends. There was also an alien-enemy law; and if the 

former related to alien-enemies, it would have had reference to the latter. 

But it was general; it related therefore to both. He mentioned the argument 

of General Lee respecting the entry of aliens into a country, but observed 

that this point had been before spoken to.



Mr. Johnston also referred to the remarks of Mr. George K. Taylor upon the 

rights of aliens, and contended that an alien was entitled to justice. If 

so, he was entitled to the means of obtaining justice, to which a fair trial 

was indispensable, but was deprived of it by this law. It was in vain to say 

that the President would not abuse the power. If it was not warrantable by 

the Constitution, it was still objectionable. It had been said, too, that 

citizens might live in peace notwithstanding the law. That neither, was any 

argument if the law was unconstitutional. The gentleman from Westmoreland 

had placed a particular construction on the word persons. In doing that, the 

gentleman should have recollected the case of a certain description of 

persons excluded by the laws of this state from entering the same. The same 

gentleman had read extracts too from the sedition-law, to show that there 

must be intent and purpose, in order to bring men within the law. Mr. 

Johnston asked how intent and purpose were to be made out but by words? To 

illustrate which he mentioned Lyon's case; and then asked how an intent 

could be proved, but by deductions from words? Was that any security? An 

evil intent might be deduced from words, by which none was ever designed. He 

mentioned as an instance, the story lately circulated amongst them 

respecting Mr. Tazewell, our senator. It would be, moreover, in the power of 

the tools of government to place a construction on words which might destroy 

the person speaking them. The gentleman from Westmoreland had also read 

extracts from the law of the state respecting aliens, and insisted that 

Congress had the same right as the state to pass such a law. This Mr. 

Johnston denied, and contended that the states in that respect had sovereign 

power, and that Congress had no such power, but a defined and limited power 

only. To prove which he read the first clause of the ninth section of the 

first article, in the following words: "The migration or importation of such 

persons as any of the states now existing, shall think proper to admit, 

shall not be prohibited prior to the year 1808, &c.;" and then asked, if any 

law having that effect, had been passed before the adoption of the 

Constitution? There had not; therefore such clause was inserted. Mr. 

Jefferson's letter too, had been produced, but was that to be quoted to 

govern the committee on the occasion? The Constitution should be their 

guide. And even Mr. Jefferson's letter, as it was stated, did not extend to 

the business in question; it related only to private regulations.



Mr. Johnston then proceeded to consider the consequences of the 

sedition-law; and among others, conceived that the public opinion, 

heretofore found so useful, would be repressed, would be punished by it. Was 

that the liberty which was guaranteed by the Constitution? No; it was a 

shameful attack upon both. All the gentlemen who had spoken upon this 

question, (except the gentleman from Caroline,) instead of arguing the 

constitutional point, had addressed themselves to the passions. He then 

asked what would be the consequence if responsibility was taken from public 

servants? The style of the resolutions too had been complained of. But 

whether the laws were said by the committee to be null and void, or not, was 

a matter, he thought, of little consequence. For if they were 

unconstitutional, they, of course, were null and void. He justified the mode 

of communication which the resolutions proposed. The people might petition 

if they thought proper. But the state, when addressing its own servants, 

ought to act as the resolutions proposed. It had a right to instruct its 

senators, and the people their representatives. However, Mr. Johnston said, 

as the subject was exhausted, he would be satisfied with the remarks he had 

made.



Mr. CURETON arose next, and proceeded to deliver his opinion in respect to 

the powers of the general government and the state governments. How were 

their powers derived? From the people. The convention that framed the 

Constitution was called by the states. The Constitution when framed was 

submitted to the people, who, by convention, ratified it. He asked what 

would be the consequence of an opinion that the states had the balance of 

power alone ? What was it? One-sixteenth part only. He considered that the 

people had powers; and contended that they had the only right to act upon 

the sedition law. And if Congress had usurped a power, which should appear 

to be an innovation on their rights, they would have the power in March next 

to make an example of those who had trampled on those rights; and this mode 

of proceeding was consistent with the Constitution. He then asked why did 

the resolutions embrace both laws? He also made several observations 

respecting the power of passing such a law as the alien-law. He agreed with 

the gentleman from Lunenburg, that the power properly belonged to Congress; 

and asked how could aliens dangerous to the country be sent out of it, if 

the power was not vested in the President.



Mr. Cureton then proceeded to answer the objections of gentlemen in respect 

to the corruption of the officers of the general government; and hoped that 

they should be confined to the constitutionality of the laws: but he still 

contended that the people had the only right to act upon the sedition-law. 

The states never had the power alone; therefore it could not be reserved. It 

belonged to Congress, who were under the correction of the people only. As 

far as the resolutions related to the alien-law, he had no objection, he 

said, to do what was proper: for instance, if it should appear that the law 

was an infringement on the state government, to recommend it to our senators 

in Congress to endeavour to have the same repealed; for that was sanctioned 

by precedent. But the plan of the resolutions, Mr. Cureton said, was a new 

one. He looked upon it as an innovation on the rights of the people, and 

stabbing fundamental principles. He concluded by hoping, therefore, that the 

resolutions would not be agreed to.



Mr. JOHN TAYLOR arose next, and observed that though it was late, and the 

debates had been protracted to great length, he hoped the importance of the 

subject would be considered as a justification for his replying to the 

extraordinary and dangerous arguments which had been urged in opposition to 

the resolutions he had introduced.



A member of Lunenberg had even asserted them to be an act of perfidiousness 

to the people; because, by undertaking to declare one law of Congress 

unconstitutional, the legislature would assume a power of declaring all 

their laws unconstitutional. Let the proposition then be reversed, to 

discover if there be perfidiousness in the case, the side to which it 

attached. Would it be said, that the Legislature could not declare this law 

of Congress unconstitutional, because it could declare no law of Congress 

unconstitutional ? Admitting such a position, did not these consequences 

evidently follow, that the check meditated against Congress in the existence 

of the state governments, was demolished; that Congress might at its 

pleasure violate the constitutional rights of these governments; that they 

must instantly become dependent, and be finally annihilated. Could it be 

perfidious to preserve the freedom of religion, of speech, of the press, and 

even the right of petitioning for a redress of grievances? Gentlemen, in 

defining the laws of Congress, had taken their stand upon this broad 

principle, namely, "That every government inherently possesses the powers 

necessary for its own preservation." Apply this principle to the state 

governments: for, if it be a sound one, they are equally entitled to the 

benefit of it, with the general government. Under this principle then, to 

which his adversary had resorted, and which he therefore could not deny, it 

followed that the state governments have a right to withstand such 

unconstitutional laws of Congress, as may tend to their destruction, because 

such "a power is necessary for their preservation." To illustrate this, 

suppose Congress should be of opinion, that an arrangement of men into 

different ranks would tend to the order of society, and should, as 

preparatory to this end, intermeddle with inheritances, and re-establish 

primogeniture. It could be only urged against such a law, that it was 

unconstitutional; but if the state could not declare any law of Congress 

unconstitutional and void, even such an one as this must be submitted to, 

and of course all powers whatsoever would gradually be absorbed by, and 

consolidated in, the general government.



He observed, that the right of the state to contest the constitutionality of 

a law of Congress could, however, be defended upon better ground, than by 

the reaction of the doctrines of gentlemen on themselves. That a principle 

literally constitutional, theoretically sound, and practically useful, could 

be advanced, on which to rest it. It was this: the people and the states 

could only have intended to invest Congress with a power to legislate 

constitutionally, and the Constitution expressly retains to the people and 

the states, every power not surrendered. If therefore Congress should, as 

was certainly possible, legislate unconstitutionally, it was evident that in 

theory they have done wrong, and it only remained to consider whether the 

Constitution is so defective as to have established limitations and 

reservations, without the means of enforcing them, in a mode, by which they 

could be made practically useful. Suppose a clashing of opinion should exist 

between Congress and the states, respecting the true limits of their 

constitutional territories, it was easy to see, that if the right of 

decision had been vested in either party, that party, deciding in the spirit 

and interest of party, would inevitably have swallowed up the other. The 

Constitution must not only have foreseen the possibility of such a clashing, 

but also the consequence of a preference on either side as to its 

construction. And out of this foresight must have arisen the fifth article, 

by which two-thirds of Congress may call upon the states for an explanation 

of any such controversy as the present, by way of amendment to the 

Constitution; and thus correct an erroneous construction of its own acts, by 

a minority of the states; whilst two-thirds of the states are also allowed 

to compel Congress to call a Convention, in case so many should think an 

amendment necessary for the purpose of checking the unconstitutional acts of 

that body. Thus, so far as Congress may have the power, it might exert it to 

check the usurpations of a state, and so far as the states may possess it, 

an union of two-thirds in one opinion might effectually check the 

usurpations of Congress. And, under this article of the Constitution, the 

incontrovertible principle before stated, might become practically useful; 

otherwise no remedy did exist for the only case which could possibly destroy 

the Constitution, namely, an encroachment by Congress, or the states, upon 

the rights of the other. The case was even strongest in favour of a check in 

the hands of the states upon Congress: for although Congress could never 

alter or amend the Constitution, without the concurrence of three-fourths of 

the states; yet such a concurrence would be able so to alter or amend it, as 

to check the encroachments of Congress, although the whole of that body 

should disagree thereto. The reason for this will exhibit the 

unconstitutionality of the argument, which supposes, that the states hold 

their constitutional rights by the courtesy of Congress. It was this: 

Congress is the creature of the states and of the people; but neither the 

states nor the people are the creatures of Congress. It would be evidently 

absurd, that the creature should exclusively construe the instrument of its 

own existence; and therefore this construction was reserved indiscriminately 

to one or the other of those powers, of which Congress was the joint work; 

namely, to the people, whenever a convention was resorted to, or to the 

states, whenever the operation should be carried on by three-fourths.



Mr. Taylor then proceeded to apply these observations to the threats of war, 

and the apprehension of civil commotion, towards which the resolutions were 

said to have a tendency. Are the republicans, said he, possessed of fleets 

and armies? If not, to what could they appeal for defence and support? To 

nothing, except public opinion. If that should be against them, they must 

yield: if for them, did gentlemen mean to say, that public will should be 

assailed by force? If so, should a minority, by the help of the powers of 

government, resort to force for its defence against public opinion; and 

against a state which was pursuing the only possible and ordinary mode of 

ascertaining the opinion of two-thirds of the states, by declaring its own, 

and asking theirs? How could the fifth article of the Constitution be 

brought into practical use, even upon the most flagrant usurpations? War or 

insurrection, therefore, could not happen, except Congress should attempt to 

control public opinion by force; and this it could not be supposed they 

would ever do, not only because the will of the people is the sovereign in 

all republics; but also, because both that will and the will of the states, 

were made the constitutional referee in the case under consideration. Hence 

a movement towards this referee could never be admitted as leading to war or 

commotion, except in those countries where an armed and corrupt minority had 

usurped the government, and would of course behold with abhorrence an 

arbitrament of a majority. Such, however, he hoped would be the respect to 

public opinion, that he doubted not but that the two reprobated laws would, 

be sacrificed, to quiet the apprehensions even of a single state, without 

the necessity of a convention, or a mandate from three-fourths of the 

states, whenever it shall be admitted, that the quiet and happiness of the 

people is the true end and design of government.



With respect, he said, to the remedy proposed in the talents and integrity 

of the continental judges, without regarding the prejudices which might 

probably exist in favour of the government, from which an appointment should 

flow, it might be remarked, that the judges by the Constitution are not made 

its exclusive guardians. That if continental judges were the proper referees 

as to the constitutionality of continental laws, state judges were the 

proper referees as to the constitutionality of state laws; that neither 

possessed a power over the other, whence a clashing of adjudication might 

ensue ; and that. if either had been superior, the same consequences would 

result as would flow from a superiority of Congress, or of the states over 

the other, with this additional aggravation, that the people could not by 

their elections influence a constitutional question, to be decided by the 

judges, as they could to a certain extent, when it was to be decided by a 

general or state legislature: an influence, however, insufficient; because 

it would require six years to change the Senate of the United States, and 

four that of Virginia, during which an unconstitutional law would have done 

its mischief, which was yet greatly preferable to no influence at all.



He observed, that the resolutions had been objected to as being couched in 

language too strong and offensive, whilst it had also been said on the same 

side, that if the laws were unconstitutional, the people ought to fly to 

arms, and resist them. To this he replied that he was not surprised to hear 

the enemies of the resolutions recommending measures which were either 

feeble or rash. Timidity, it was known, only served to invite a repetition 

of injury, whilst an unconstitutional resort to arms would not only justly 

exasperate all good men, but invite those who differed from the friends to 

the resolutions to the same appeal, and produce a civil war. Hence those who 

wished to preserve the peace, as well as the Constitution, had rejected both 

alternatives, and chosen the middle way. They had uttered what they 

conceived to be truth, in firm yet decent language; and they had pursued a 

system which was only an appeal to public opinion, because that appeal was 

warranted by the Constitution, and by principle; and because it gave an 

opportunity to the general government to discover whether they would be 

faithful to the same principle, and thereby establish a precedent, which 

would both now and hereafter have a strong tendency against civil war. That 

this firmness, which was both exhibited and felt, was really necessary as an 

act of friendship to the general government, if it was true, as some 

thought, and as the commotion in the public mind plainly indicated, that a 

farther progress in their system was full of danger to itself, and misery to 

the people. If, said he, we beheld our friend already advanced to the brink 

of a precipice without having discovered it, ought we in friendship slightly 

to admonish him that the very next step might precipitate him into an abyss 

below, or strenuously to warn him of his danger? Again: If a country was to 

be defended, into which the foe could only enter at a single pass, which was 

fortified and garrisoned, ought the resistance of this garrison to be feeble 

and cowardly, and ought they traitorously to surrender this key into their 

country, from a confidence in the enemy? Liberty was that country -- our 

Constitution the fortress -- and ourselves the garrison. Shall we, he said, 

desert our post without even a parley with the assailants? If we did, the 

inevitable consequence must be a consolidation of these states into one 

great sovereignty, which will, from its vast extent, as inevitably settle 

with rapidity into a monarchy, and like all other great empires it must 

resort to those oppressions to support itself, which make the cup of life 

bitter to man. That such a degree of timidity would be as dishonourable as 

the violent measures which gentlemen on the other side recommended in cases 

of constitutional infractions, would be immoral and unconstitutional.



That firmness as well as moderation could only produce a desirable 

coincidence between the states, an example of which having been already set 

by Kentucky, it behooved us so to act as to avoid a difference of opinion as 

to the mode, when we united in the end; because divisions respecting either 

would undoubtedly destroy every hope of a successful issue. In opposition to 

the propriety of soliciting this coincidence, the Constitution, prohibiting 

the states from entering into a confederation among themselves, had been 

quoted. In reply to which he would ask, if an application from one state to 

another to learn its sentiments upon a point relative to the Constitution, 

was to be considered as unconstitutional, as amounting to a confederation? 

In what way could two-thirds of the states consult or unite, so as to 

exercise their right of calling a convention under the fifth article, or in 

what way could three-fourths ever amend the Constitution? This observation 

evinced the incorrectness of such a construction, as had also the practice 

of the states, in submitting each other's resolutions to mutual 

consideration, in a variety of instances.



Mr. Taylor then said that the constitutionality of the laws had been 

defended by the common law. It had been said that the common law attaches 

the rights arising from the law of nations to a sovereignty wherever it 

resides: that therefore a power over aliens devolved under the common law 

upon Congress, and that sedition being also a common law offence, they had a 

right to punish it. If the common law bestowed powers upon Congress, it was 

unnecessary to controvert these laws, because there was hardly any species 

of oppression which it would not justify. Heresy and witchcraft were common 

law offences; the former was a complete engine for tyranny. But the 

Constitution of the Union did nowhere adopt the common law, or refer to it 

as a rule of construction. That as the state constitutions or laws had done 

so under different forms, it evinced that the states must have considered an 

adoption necessary to give it force, and thinking so, it was impossible that 

the state conventions which assented to the Constitution, could ever have 

supposed that they were establishing a government which could at pleasure 

dip their hands into the inexhaustible treasuries of the common law and law 

of nations, and thence extract as much power as they pleased. On the 

contrary, the Constitution of the Union does in its face plainly erect a 

government of powers expressed and limited, and not left to be new-modelled 

at random, or by ambition, by a reference to obsolete or little known codes 

of law, which had never been taken into contemplation during its discussion 

in any state convention.



Having now gotten rid of objections rather collateral, Mr. Taylor said that 

he would come to those which more immediately referred to the objectionable 

laws. It had been said that aliens had no rights: that if they had, such 

rights were only held by the law of nations, which allows them to be removed 

whenever their residence is thought dangerous by the sovereignty; and 

assuming it as granted that the sovereignty of America is in Congress, it 

was therefore concluded that the law was constitutional.



In reply to this argument, he observed, that Congress only possessed a 

special and limited sovereignty, to be exercised in a special and limited 

manner, so as not to conflict with that portion of sovereignty retained to 

the several states, and so as not to violate those constitutional principles 

prescribed for the preservation of liberty. That aliens, under the law of 

nations, were entitled and subjected to the sanctions of municipal law; and 

however their rights as foreigners may be unimportant to us as natives, yet 

it was of vast importance that the fundamental principles of our municipal 

law should not be destroyed, because an alien only was the present victim, 

since it established precedents, and produced consequences, which would 

wound citizens through the sides of aliens. To apply this general remark, he 

said, the Constitution was a sacred portion of municipal law. It had 

empowered Congress " to define and punish offences against the law of 

nations," and it had declared, "that the judicial power shall extend to all 

cases in law and equity arising under this Constitution, or the laws of the 

United States; and that the trial of all crimes shall be by jury." The law 

of nations was therefore in contemplation whilst defining the judiciary 

power. If an alien has done wrong, must it not be a case in law or equity, 

or a crime? At any rate, must it not be a case arising under the 

Constitution, or the laws of the Union? If so, his punishment, supposing the 

act criminal, is to be inflicted by a jury: if not criminal, it is yet 

referred to the judiciary, by the comprehensive terms "all cases." Might not 

precedents then, violating these essential principles of our municipal law, 

be dangerous to citizens, when it was recollected that no difference is 

contemplated by the law of nations, or that municipal law, between aliens 

and citizens touching these rights, during the residence of the former. 

Again: were not the checks contemplated by the Constitution weakened by 

making a President in fact a king of the aliens? Our towns will abound with 

men whose every interest depends upon executive pleasure. Might they not be 

used to influence elections? And what would prohibit their being forced into 

the volunteer corps, then to be armed and officered by the executive? Here 

then, except for the virtues of a temporary chief magistrate, was a mode 

struck out, by which a large force might be embodied and armed, possessing 

no rights, and completely dependent on the will of one man. Was this to 

adjust the balances? Or did it comport with the principles of republicanism? 

If not, in this mode also might citizens be wounded through the sides of 

aliens.



A gentleman from Prince George, he said, had urged, that except for this 

law, the state of Virginia might admit a French army with Bonaparte at their 

head. Of this, he said, there would certainly be as little danger, as that 

under it a President should admit an English army. Because, although it was 

obvious no nation would call in a foreign force to destroy itself, yet 

history was not deficient in cases wherein individuals have resorted to a 

foreign force to enslave the nation. That he meant not to insinuate anything 

to the injury of the present President; but by retorting the argument, to 

show its weakness, by exhibiting the difference between suffering the 

residence of foreigners to depend upon the national legislatures, and 

surrendering it as a great prerogative, to one man.



It had been argued too, that the power given to Congress to protect each 

state against invasion, comprised a power of expelling dangerous incendiary 

aliens; for that Congress ought to be enabled to nip dangerous designs in 

the bud.



If power could be gotten by inferences as loose as these, all attempts to 

limit it might be relinquished. Dangerous designs ought to be nipt in the 

bud. Was it the danger to which the power attached, and not the alienage ? 

If so, dangerous incendiary citizens might also be nipt in the bud without 

trial, and exported at executive will. The protection of a state against 

invasion, is imposed upon Congress as a duty, secondary only to the 

guarantee of a republican form of government, and not bestowed upon them as 

an enlargement of power; and the reason of it is, that the states are 

prohibited from keeping troops or ships of war in time of peace, which 

prohibition does not extend to the Union. Greatly as this argument had been 

relied on, the propriety of this construction was evinced by two 

observations; one, that the states might as far as they could protect 

themselves against invasion, and even raise troops in time of war, proving 

that this was a duty imposed upon Congress, and not an executive power. The 

other, that it is also made the duty of Congress to protect the states 

against domestic violence, but only on application of the state legislature 

or executive. The jealousy evidently exhibited here against the 

interposition of Congress, even in cases of actual domestic violence, by no 

means warrants the supposition, that they might interpose where 

apprehensions of danger only existed. Further, if Congress obtained the 

power constructively from that of repelling invasions, there was nothing to 

limit its exercise to aliens. Again, and again, the committee were told of 

the common law and the sovereignty of Congress. An attempt to excite an 

insurrection had been called an offence at common law; and a power to 

regulate all cases arising under the law of nations, it was said, follows 

sovereignty. Thus every power was bestowed arising from these copious 

sources. He asked, by what part of the Constitution Congress were empowered 

to punish all common law offences, and whether that barbarous, feudal, 

gothic and bloody criminal code was to be let loose upon us by inference and 

implication? Domestic violence, said he, is insurrection. Why was Congress 

specially directed how to act in this common law offence, if they had an 

unlimited power to punish all common law offences? As to these rights of 

sovereignty, it was fair reasoning to urge, that a particular donation of a 

part excluded the idea of a donation of the whole by way of inference. If 

this splendid thing called sovereignty had invested Congress with all the 

powers arising from the law of nations, why was it necessary particularly to 

invest Congress with the power of punishing offences against the law of 

nations? And if Congress, under this sovereignty, derived to themselves an 

unlimited power over aliens, how could it have been necessary to bestow upon 

Congress the special power of naturalizing these very aliens? This doctrine 

of the rights of sovereignty was as dangerous as false. Dangerous, because 

its extent could be never foreseen: false, as violating the idea of limiting 

a government by constitutional rules. From this unlimited source, the 

British Parliament derives its claim of unlimited power. King, lords and 

commons, because sovereign, may do everything. If it was admitted here, 

being in fact a common law doctrine, it not only would absorb the common law 

powers, and those arising from the laws of nations, but also the royal 

prerogatives, and whatever else it bestows upon the British Parliament. Such 

a sovereignty would speedily swallow up the state governments, consolidate 

the Union, and terminate in monarchy.



Mr. Taylor said, that the laws objected to had been largely defended within 

and without doors, upon the ground of laws with similar provisions having 

been passed in this state.



Without stopping, he said, to point out the strong distinguishing features 

between the state laws and those of Congress, it would suffice to show the 

inefficacy of the argument upon other grounds. The powers surrendered to 

Congress and reserved to the states, are by the Constitution evidently 

designed to be defined, and whether successfully or not, it was yet 

impossible to deny the intention of that instrument to concede certain 

powers to the one, and to reserve certain other powers to the other. If then 

it was a sound argument to assert, that Congress may legislate upon a 

subject because a state has already done so; that is, that the exercise of 

the reservation by a state shall enlarge the concession in favour of 

Congress, it followed that the reservation so soon as it was used was lost, 

and that even the limitations upon congressional power ought to be 

understood as only designed to extend it. Further, perhaps no state 

constitution in America exhibits that clear and explicit restraint upon a 

legislative interposition respecting the freedom of religion, the press, and 

petitioning, which was to be found among the amendments of the general 

Constitution. Was it defensible then to assert that Congress, though opposed 

by this positive constitutional barrier, were yet empowered to legislate 

co-extensively upon these subjects with a particular state having no such 

obstruction to surmount.



He said that this extravagant and unjustifiable mode of construing the 

Constitution had even been carried so far as to quote Blackstone, and a 

private letter of Mr. Jefferson; so that if this instrument was to be 

expounded, not by itself, but by the law of nations, the common law of 

England, the laws of the several states, the opinions of English judges, and 

the private letters of individuals, it had only launched us upon the ocean 

of uncertainty, instead of having conducted us into a safe and quiet 

harbour. That Blackstone's definition of the liberty of the press, 

considered as accurate by the gentleman on the other side, amounted to this: 

"the right of publishing anything not prohibited by law without the 

necessity of obtaining a previous license." He wholly quibbles away the 

liberty of the press, in the whim of considering the necessity of a license 

as the only mode of destroying it, whilst he also admits that government may 

prohibit it from printing whatever it pleases. Was it not obvious that the 

end meditated by the liberty of the press, can as effectually be defeated in 

one mode as the other, and that if a government can by law garble, suppress 

and advance political opinion, public information, this great end, upon 

which public liberty depends, will be completely destroyed. According to 

this construction, the Constitution of America has only declared that 

Congress shall not intercept writings by a previous examination, and 

allowance or rejection; but that they may make whatever writings they please 

illegal and penal in any extent. Read, said he, the Constitution, and 

consider if this was all it meant to secure.



Mr. Jefferson's letter, he said, was written before the amendment to the 

Constitution which it recommended: but upon which it could not of course be 

a comment; and therefore this letter, if it had lent any aid to the 

gentlemen on the other side, would be more than balanced by that sublime and 

just construction of the Constitution itself, as to the liberty of the 

press, to be found in the negotiations of the late envoys to France. But 

this letter, as well as plain legal principles, had been egregiously 

misunderstood, and both upon examination, would be found to support the 

argument against the laws. The letter, whilst recommending those securities, 

for which the amendment to the Constitution was afterwards designed, urges 

as an argument, that all were legally answerable for false facts published 

injuring others. This is the letter, and this the legal principle upon which 

a common action of slander was grounded: and laws reaching this evil, 

existed before the sedition-act, in every part of the Union. By a small but 

important deviation both from the letter and the law, a great and dangerous 

delusion was resorted to by the gentlemen on the other side. Falsehood, said 

they, is punishable by law, and Mr. Jefferson admits that it ought to be so; 

and the sedition-law punishing falsehood only, both the laws and Mr. 

Jefferson have united in its approbation previous to its existence. The 

great error in this doctrine arose from dropping the word "fact," and taking 

that of " falsehood," which includes "opinion," as well as fact. Fact was 

capable of proof, opinion was not. To say that such laws as the alien and 

sedition existed, would be to assert a fact, and if he (Mr. Taylor) was 

prosecuted for it, it might be proved. But to assert that these laws were 

unconstitutional and oppressive, and productive of monarchy, would be an 

opinion, constituting a degree of criminality under the sedition-law, 

subjecting a man to punishment, and yet it was not a fact capable of being 

proved. Hence, therefore, the laws of the land, and Mr. Jefferson's letter, 

unite in confining punishment to the publication of false facts, and hence 

opinions were only made punishable in tyrannical governments; because there 

was no standard to determine the truth or falsehood of opinion.



But he said, it had been violently objected that, supposing these laws are 

unconstitutional, the state legislature could have nothing to do with the 

subject; because the people alone are parties to the compact, called the 

Constitution of the United States.



To this objection he answered, that although the framers of the Constitution 

chose to use the style, "we, the people," yet it was notorious, that in 

every step, from its commencement to its termination, the sense of the 

people respecting it, appeared through the medium of some representative 

State Assembly, either legislative or constituent. That the Constitution 

itself, in many parts, recognises the states as parties to the contract, 

particularly in the great articles of its amendment, and that of admitting 

new states into the Union without a reference to the people; and that even 

the government of the Union was kept in motion as to one House of the 

legislature, by the act of the state sovereignties. That added to these 

incontestable arguments to show that the states are parties to the compact, 

the reservation of powers not given, was to the states as well as to the 

people, recognising the states as a contracting party, to whom rights were 

expressly reserved. From all which it followed, though it be not denied that 

the people are to be considered as parties to the contract, that the states 

are parties also, and as parties, were justifiable in preserving their 

rights under the compact against violation; otherwise their existence was at 

an end; for, if their legislative proceedings could be regulated by 

congressional sedition-laws, their independency, and of course their 

existence, were gone. And although it had been within and without doors 

often asserted, that the sedition-act does not extend to words spoken, yet 

if any gentleman would read the first section, and consider the terms " 

counsel or advise," he would find that words are clearly within its letter, 

and that this part of the law seems particularly adapted for a deliberative 

assembly. He said he could not but observe, that this doctrine, that the 

people are to be considered as the only parties to the compact, was 

incomplete. The idea of a person's contracting with himself was absurd. 

Where was the other party? He feared, though it was not avowed, that the 

gentlemen were glancing towards the old doctrine of a compact between 

government and people; a doctrine which effectually destroyed the supremacy 

of the people and the independence of government, no less than the monstrous 

doctrine of allegiance and protection, which falsely supposes, that the 

people are indebted to the government for safety, whereas it is they who 

erect, support, and protect the government. That it was also curious to 

observe, that gentlemen allow the state governments to have been proper 

organs of the will of the people, whilst binding them by the measures 

leading to the Constitution, and that they still allow these organs to be 

capable of expressing their will in the election of senators, and doing any 

other acts for the execution of the Constitution, whilst they deny that they 

are any organs of public will, for the sake of opposing an infringement of 

the same Constitution. Thus, in framing it, and in executing it, in a great 

variety of ways, the will of the people was allowed to express itself 

through this medium; but in saving it from violation, it shall be closed up 

against them; so that there shall be as few obstacles as possible against 

this violation. The people may petition Congress, said gentlemen, against 

the violation, and this was the only proper remedy. Let us, said Mr. Taylor, 

apply this remedy to another case. Suppose a state should, by law, violate 

the Constitution. Would there be no other remedy, but for the people to 

petition that state, or for the judges of that state to decide upon the 

constitutionality of the law? Why would there be another remedy? Because the 

Constitution, having bestowed rights upon the general government, a 

violation of the Constitution which should infringe those rights, would 

justify that government to take measures for its own preservation; because 

the Constitution does not leave the remedy to depend upon a petition of the 

people to the aggressor. Reverse the case, said he. If Congress should 

unconstitutionally infringe rights reserved to the state governments, should 

they depend upon a petition of the people to the aggressor for their 

defence? They were then conducted, he said, to this clear position, that as 

Congress holds the rights bestowed by the Constitution under that, and 

independent of the states; so the states hold the rights reserved by the 

Constitution under that, and independent of Congress; and of course that 

each power possesses the further right of defending those constitutional 

rights against the aggressions of the other; for otherwise it would follow, 

that the power having constitutional rights, to maintain which was however 

unconstitutional, must presently disappear.



He said, that the last argument in favour of the sedition-act had been drawn 

from the law of Virginia respecting treason, which had been read.



With respect to this law, he replied, that the same arguments applied, which 

he had before used, to show the impropriety of quoting state laws, to 

justify congressional. It would be as just to say, that a state could pass 

laws for raising fleets and armies, because Congress had done so, as that 

Congress could infringe the liberty of speech, because the states had done 

so. The states are expressly forbid to do the one, and Congress the other. 

But this reference to the treason law of Virginia furnished a strong 

argument to prove the unconstitutionality of the sedition-act. The law 

evidently considers sedition as being one species constituting that genus 

called treason, which was made up of many parts. It therefore accurately 

expresses the idea of Virginia of the word "treason," and shows how she 

understood it, as used in the Constitution. By that, treason is limited to 

two items, with the punishment of which only, the general government is 

entrusted. Hence it was evident, that Virginia could not have conceived that 

Congress could proceed constitutionally to that species of treason called 

sedition; and if this was not the true construction, what security was 

derived from the restriction in the Constitution relative to treason? 

Congress might designate the acts there specified by that term, and they 

might apply other terms to all other acts, from correcting which, that 

clause of the Constitution intended to prohibit them; by doing which, as in 

the case of sedition, they might go on to erect a code of laws to punish 

acts heretofore called treasonable, under other names, by fine, 

confiscation, banishment or imprisonment, until social intercourse shall be 

hunted by informers out of our country; and yet all might be said to be 

constitutionally done, if principles could be evaded by words.



Mr. Taylor concluded with observing that the will of the people was better 

expressed through organized bodies dependent on that will, than by 

tumultuous meetings; that thus the preservation of peace and good order 

would be more secure; that the states, however, were clearly parties to the 

Constitution, as political bodies; that rights were reserved to them, which 

reservation included a power of preservation; that the legislature of the 

state was under a double obligation to oppose infractions of the 

Constitution, as servants of the people, and also as the guardian of those 

rights of sovereignty, and that qualified independence reserved to the state 

governments by the Constitution; and to act up to this duty was the only 

possible mode of sustaining the fabric of American policy, according to the 

principles prescribed by the American Constitution.



Mr. BAYLEY arose next to reply, he said, to the very extraordinary arguments 

which had fallen from the gentleman from Caroline, and was proceeding to do 

so; but finding that such a noise prevailed, from the impatience of the 

committee to rise, that he could not be distinctly heard, he declined, and 

sat down.



On motion, the committee then rose, the chairman reported progress, asked, 

and had leave for the committee to sit again.







____________



                IN THE HOUSE OF DELEGATES,



                Friday, December 21, 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. GEORGE K. TAYLOR arose, and said that when these resolutions were first 

submitted to the committee, they had been disapproved by him; and that the 

time which had since elapsed, with the most mature reflection, had quickened 

his disapprobation into complete aversion and entire disgust. The 

resolutions contained doctrines and principles the most extravagant and 

pernicious; declarations unsubstantiated by fact; and an invitation to other 

states to concur in a breach of that Constitution which they professed to 

support. To substantiate this charge, he would beg the pardon and patience 

of the committee, while he examined and criticised certain parts of the 

resolutions, and while, agreeably to a promise given on a former occasion, 

he should offer some few remarks on the constitutionality of what is called 

the sedition-law.



The third clause of the resolutions begins in the following terms:



"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 alone are parties." This declaration, however explicitly and 

peremptorily made, was unfounded and false: the states are not (he only 

parties to the federal compact. Considered as particular sovereignties of 

detached parts of the Union, they did not give it birth or organization: the 

state legislatures were not consulted respecting its adoption. It was the 

creature of the people of United America; their voice spoke it into birth; 

their will upholds and supports it. To demonstrate this it would be 

necessary to recur to the history of the present Constitution, and to 

examine some of its features.



When the British colonies in America, now the United States, dissolved their 

connexion with the parent country and declared themselves independent, they 

entered into certain articles of confederation and union. This was an act of 

the states. It was begun by the state representatives in Congress. The 

articles of confederation, when digested, were sent to the legislatures of 

every state for consideration. They were ratified by the legislature of each 

state in the Union. They profess themselves to be articles of confederation 

and perpetual union between the states: they relate, in every article, not 

to the people, but to the states: they were submitted to, and adopted by, not 

the people, but the states; and of them it may truly be said that they were 

"a compact to which the states alone were parties."



As these articles of confederation acted exclusively on the states, and as 

they prescribed no method of compelling delinquent states to obey the 

requisitions of Congress, their weakness and inefficacy became shortly 

visible. The most pressing demands were disregarded, or partially obeyed; 

and the evils and expenses of war were thus protracted and increased. Still, 

however, the American spirit and love of freedom rose superior to every 

difficulty, and obtained, after an arduous struggle, peace and independence. 

No sooner was the danger removed which had hitherto compelled some respect 

to the recommendations of Congress, than the impotence of that body became 

conspicuous, and the futility of that plan of government which possesses no 

sanction to enforce obedience to its laws was demonstrated. In defence of 

our liberties a considerable debt had been incurred. Justice and policy 

called on the United States to pay the interest of this debt, if they could 

not discharge the principal; but they called in vain. Congress indeed 

recommended that a duty of five per cent. ad valorem, should for this 

purpose be laid on all goods imported into the United States; but their 

recommendation was disregarded. The certificate given to the soldier for his 

toil and blood in the day of battle, depreciated and became worthless; every 

public contract was uncomplied with; a total disregard prevailed as to 

national sentiment and honour; symptoms of distrust, jealousy, and rivalship 

among the several states appeared. The Union seemed fast crumbling into 

annihilation, and the national character at home and abroad was sunk and 

degraded. The people of America began to be sensible of their situation. 

Delegates were at first sent from a few of the states to Annapolis, for the 

purpose of devising and recommending commercial arrangements. These 

delegates recommended that a convention from the several states should be 

appointed for the purpose of revising and amending the articles of 

confederation. Their idea was adopted. Each state appointed delegates to 

this convention, and it assembled at Philadelphia, for the purpose of 

proposing amendments to the articles of confederation.



The deliberation of a few days convinced the convention that an amendment of 

that instrument was impracticable, and that no government could be efficient 

or permanent which operated not on the individuals of the community, but 

altogether on the state sovereignties, and which could not compel obedience 

to its laws by the punishment of the disobedient and refractory. They 

adopted, therefore, a plan at once bold and judicious. It was to recommend a 

new form of government for general purposes, by taking from the states the 

control of all matters relating to the general welfare, and vesting these in 

the government of the Union: by dividing this government into legislative, 

executive, and judiciary departments, which should at once prescribe and 

enforce the rules of general conduct, without the aid or intervention of the 

state legislatures, and which should have power to punish the disobedient 

and refractory.



Here it was to be observed, he said, that the convention acted without the 

express authority of the state legislatures. They were deputed to amend the 

old articles of confederation: they were not authorized to propose new forms 

of government. Their love of country, indeed, induced them to attempt a 

scheme or project of government to be submitted to their fellow-citizens, 

and their wisdom enabled them to accomplish its structure. But the state 

governments were no parties to this project, since they deputed the authors 

of it for different purposes, and were ignorant of the change about to be 

recommended.



That the convention itself did not consider that the states were, or would 

be the only parties to this compact, was evident from the language used in 

the commencement of the new Constitution: "We the people of the United 

States, in order to form a more perfect union, &c.;" not "we the states of 

New Hampshire, &c.;" yet they had the old articles of confederation before 

them, where the states were constantly mentioned, and the people not once 

named. Why was the word "states" purposely discarded, and the word "people" 

purposely introduced, if, as these resolutions declare, the states alone are 

parties to the compact?



The convention, after having finished the Constitution, came to the 

following resolutions:



"Resolved, That the preceding Constitution be laid before the United States 

in Congress assembled, and that it is the opinion of this convention that it 

should afterwards be submitted to a convention of delegates chosen in each 

state by the people thereof, under the recommendation of its legislature, 

for their assent and ratification; and that each convention assenting to and 

ratifying the same, should give notice thereof to the United States in 

Congress assembled.



"Resolved, That it is the opinion of this convention, that as soon as the 

conventions of nine states shall have ratified this Constitution, the United 

States in Congress assembled, should fix a day on which electors should be 

appointed," &c.



The former articles of confederation being in truth a compact of the states, 

were submitted to the state legislatures. The Constitution of the United 

States was "submitted to a convention of delegates chosen in each state by 

the people thereof." The articles of confederation were assented to and 

ratified by the state legislatures. The Constitution of the United States 

was assented to and ratified by conventions chosen in each state by the 

people thereof. If the states in their political corporate capacity, be as 

the resolutions declare, the only parties to the latter compact, why was its 

consideration submitted not to the state legislatures, but to the people of 

the United States, in their several conventions?



Again: so soon as the conventions of nine states should have ratified the 

Constitution, the convention recommended that a day should be fixed for the 

appointment of electors, &c., in order that the government should be put 

into operation. Why should the commencement of the operations of the 

government be postponed until the conventions of nine states should have 

ratified the Constitution? Because the states were extremely unequal in size 

and population, and consequently a majority of conventions might have 

ratified the Constitution, when in truth a majority of the whole people had 

rejected it: but this could not be the case when the conventions of nine 

states had ratified it; because any nine states formed a majority of the 

people contained in the thirteen. Did not this circumstance then prove, that 

the present is a government proceeding from the people, and that they are 

material, if not the exclusive original parties to it? If so, how could it 

be said that the states alone are parties to the compact?



Further: the fifth article to the Constitution declares that "the Congress, 

whenever two-thirds of both Houses shall deem it necessary, shall propose 

amendments to this Constitution, or on the applications of the legislatures 

of two-thirds of the several states, shall call a convention for proposing 

amendments." In each of these modes of obtaining amendments, the people are 

evidently recognised as parties to the compact: -- " Congress, whenever 

two-thirds of both Houses shall deem it necessary, shall propose 

amendments:" but one House of Congress, the House of Representatives, is the 

immediate representative of the people, the other House, the Senate, is the 

immediate representative of the states; whenever then, two-thirds of the 

representatives of the people and two-thirds of the representatives of the 

states shall concur in deeming it necessary, they may propose amendments. 

Was not this a recognition that the people generally, as well as the 

particular state sovereignties, are interested in the operations of the 

government? How then could the states alone be said to be the parties to it? 

"Or, on the applications of the legislatures of two-thirds of the several 

states, shall call a convention for proposing amendments." Here the idea was 

still supported, that the representatives of a majority of the whole people 

must combine in the application, which majority it is supposable, will be 

two-thirds of the states. The article proceeds "which (amendments) in either 

case shall be valid to all intents and purposes, as part of this 

Constitution, when ratified by the legislatures of three-fourths of the 

several states, or by conventions in three-fourths thereof, as the one or 

the other mode of ratification may be proposed by the Congress." Thus 

Congress might if they should think proper, divest the states in their 

political corporate character, of all agency in ratifying amendments by 

submitting them not to the legislatures of the states, but to conventions of 

the people. Did this prove that the states alone are parties to this 

compact?



At the time of our separation from the government of Great Britain, the 

people of each state in the Union, represented in convention, established 

for that state, a constitution or form of government. This having been 

established by the immediate representatives of the people, deputed for that 

particular and especial purpose, is not amendable or alterable except by the 

same people or their representatives, deputed for that special purpose; yet 

the second clause of the sixth article of the Federal Constitution, is in 

the following words: "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, and the judges in every state shall be bound thereby, 

anything in the constitution or laws of any state to the contrary 

notwithstanding." By this clause, the Constitution, laws and treaties of the 

United States, are declared to be paramount and superior to the constitution 

and laws of every particular state; and where they may come into collision, 

the latter must yield to the former. Who could have deprived the state 

constitutions of their former supremacy, and made them subservient not only 

to the Constitution, but to constitutional laws and treaties of the United 

States, except the sovereign people, the source and fountain of all power? 

And after this should we be told that the states alone are parties to the 

compact, when so plain and palpable a proof was exhibited to the contrary?*



Let those, said Mr. Taylor, who charge us with anti-republican sentiments, 

and with political blindness or heresy, examine this part of their own 

creed, and declare whether it savours of republicanism or orthodoxy? We have 

long and fondly cherished the idea, that all government in America was the 

work and creature of the people; we have regarded them with reverence and 

bowed down before their supremacy. But it was reserved for this period and 

for this Legislature to convince us of our error, and to prove that in 

America, as in Turkey and in France, the people are nothing, and that the 

state legislatures are everything.



The fourth clause of the resolutions is in the following words: "That the 

General Assembly doth express its deep regret, that a spirit has in sundry 

instances been manifested by the Federal Government to enlarge its powers by 

forced constructions of the constitutional charter which defines them; 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 charge against the Federal Government, contained in this clause, Mr. 

Taylor said, was of the most serious nature, and merited mature deliberation 

before it should be adopted. If it be true, that government was criminal 

indeed, and merited, not reprehension only, but the severest chastisement; 

if it be true, the present administrators of that government should be 

hurled from their seats with universal execration, and submitted to the 

vengeance of a justly enraged people. If it be true, it was our duty



* The answer to this ingenious train of reasoning is given in the Report, 

post, p. 191.



to advise, and it was the duty of our constituents to practise opposition 

and resistance; to draw the sword from the "sleep of its scabbard," and to 

cut out this foul cancer before its roots shall have taken too fatal a 

spread. But, was it true? If it be, in what instance was it so? The 

resolutions declared, that "a spirit to enlarge its powers, and to 

CONSOLIDATE THE STATES, so as to introduce MONARCHY, has been manifested by 

the general government in sundry instances." What were those instances? 

Would it not have been kind and proper to enumerate them, when it was to 

enlighten the blindness of those less keen-sighted than our legislative 

illuminati? For we, said he, who approve not these resolutions, discern not 

in the government these " forced constructions of the constitutional 

charter;" those " designs to consolidate the states by degrees into one 

sovereignty;" those unconstitutional efforts "to enlarge its powers so as to 

transform the present republican system into an absolute, or at best; a 

mixed monarchy." On the contrary, said he, we suppose that we see the best 

form of government ever devised by human sagacity, wisely administered, so 

as to promote and increase the general prosperity and happiness of the 

people. We ask, where is there seen so much real happiness, prosperity, and 

liberty as in these United States? We demand, whether the sun, from his 

rising in the morning, until his setting beams are quenched in the west, 

beholds so fortunate a people? Why, then, should we interrupt their repose, 

disturb their harmony, and poison their tranquillity, by unfounded 

suggestions, that their government means to rivet monarchy upon them? The 

"sundry instances" of this intention, mentioned during this debate, were a 

fleet, an army, taxes, the alien and sedition-laws. What causes have given 

birth to these measures? A preconcerted plan of the government to introduce 

monarchy? No! They derive their origin from a more noble source; from a 

determination to reject, with disdain, the insolent demand of tribute to a 

foreign nation; from a proper care to protect our commerce from the 

piratical depredations of that nation, and from a fixed resolve to vindicate 

our soil from hostile invasion. Let us, I pray you, said he, recollect the 

history of late events. Has not our government sent repeated embassies to 

Prance, and have not those embassies been repeatedly and contumeliously 

rejected? Was not Genera] Pinckney threatened with imprisonment? Were not 

the three envoys insulted with a demand that their country should become 

tributary to France? and was not that country threatened with the fate of 

Venice if the demands should be refused? Was there a man among us who could 

bear the idea of paying tribute to any foreign country? And when the 

consequence of the refusal, has been aggravated depredations on our trade, 

and the threat of erasing us from the list of nations, was there one so base 

who would not prepare for defence? What was the situation of things when our 

small navy was first equipped? Numbers of French picaroons at the mouths of 

all our principal rivers, lay in wait for our ships, and few of them 

escaped. What, said he, has been the consequence since that navy has, been 

equipped? These pirates have been chased to their homes; our coasts are no 

longer insulted; the price of the productions of our soil has increased, and 

our flag floats on the ocean, respectable and respected. Was not this 

measure more wise, more patriotic, and more economical than to have 

permitted our trade still to be the prey of French cruisers, and to have 

suffered a vital wound to be inflicted on the industry and happiness of our 

citizens, from the diminished value of their commodities, which would have 

been the unavoidable result? Will not, said he, this navy enable us, in case 

of invasion, to transport men and the munitions of war immediately and 

expeditiously from one port to another of the Union? Will it not be able to 

gall and distress an invading enemy? Why, then, shall so wise and so 

necessary a measure be construed into an effort to crush republicanism and 

establish monarchy on its ruins?



But the regular army which is to be raised will be the death of our liberty. 

Standing armies in all countries have been the engines of despotism, and 

they will become so in this.



Fortunately there are two clauses in the Constitution of the United States, 

which prove that so long as the representatives of the people remain 

uncorrupt, no great danger can be apprehended from standing armies. The 

first clause of the seventh section of the first article declares, that "all 

bills for raising revenue shall originate in the House of Representatives." 

The twelfth clause of the eighth section of the same article gives Congress 

power to "raise and support armies," but declares, "that no appropriation of 

money for that use shall be for a longer term than two years." It is 

Congress, and not the President, who are to "raise and support armies." 

Armies cannot be raised and supported without revenue. The bills for raising 

this revenue must originate in the House of Representatives. Appropriations 

of money to raise and support an army, shall not be for a longer term than 

two years. The House of Representatives itself is elected for two years only. 

After a first, or at most a second appropriation for this purpose, a new 

election of representatives must take place. If the new House of 

Representatives deem the army useless or dangerous, they will refuse to 

appropriate for its support, and it must be disbanded. Thus the danger to be 

apprehended from an army raised for an indefinite period appears not to be 

great. But the present army, from the terms of its enlistment, was to 

continue in service only during the existing differences with France. After 

they shall cease it will be disbanded, and while they continue it must be 

necessary. For let it be remembered that our foe possesses a lust of 

dominion insatiable; armies numerous and well-disciplined, inured to 

conquest and flushed with victory, officers alert and skilful, commanders 

distinguished and renowned. Let it be remembered that she is as destitute of 

friends as of principle, and that as she has sent one army under Bonaparte 

to pillage the East, as a compensation for their services she may send 

another for the same purposes to rifle the West. Against this host of 

invaders, hungry as death and insatiable as the grave, shall we oppose only 

militia? In such a conflict what would be our chance? A band of militia 

ill-armed and completely undisciplined, to measure weapons with men inured 

to blood, and with whom murder is a science! How long would our militia be 

able to remain in the field? Each man among them would at first be hurried 

from his plough, and from the embraces of his wife and children, with 

scarcely a moment's warning. That wife and those children would soon require 

his return, or the farm would remain uncultivated, and distress and misery 

would be their portion. The first detachment of militia must then within 

three or four months be relieved by another. At the moment when they have 

formed an idea of the first rudiments of war, they would be succeeded by 

others completely new and undisciplined. Was an army thus composed, likely 

to prove effectual in resisting the invasion of veterans inured to combat 

and accustomed to victory? Did the experience of the late war with Great 

Britain demonstrate the superlative efficacy of militia? Why were the 

Southern States plundered, ravaged, and for a time subdued by Cornwallis? 

Because he was opposed principally by militia, whose want of skill could not 

resist the British bayonet. Was the patriotism of the men of 1776 to be now 

disputed? It could not be; yet they had recourse to regular soldiers, by 

whom the great and important victories of America were obtained, and who, 

when peace was re-established, although unpaid and distressed, returned 

peaceably to their homes and their firesides. Of whom was that army 

composed? Of our fathers and our brethren. Of whom will the present army be 

composed? Of our brethren and our sons. Who led that army to battle and to 

conquest? WASHINGTON. Who will conduct this? The same great and good 

WASHINGTON. Will he whose virtue and honour have been proved in the most 

trying seasons; whose fame has never been surpassed in the annals of 

mankind, and who is the constant theme of applause and admiration throughout 

the globe, in his latter days prove so degenerate as to become the tool of 

ambition and the destroyer of liberty? Of that liberty which his exertions 

established, and of that Constitution which he contributed to frame, to 

organize, and to administer? The idea was too absurd to be seriously 

entertained, and therefore this part of the subject, he said, he would 

dismiss with the following observation: -- A regular army was principally 

composed of men who, having from choice embraced the military profession, 

did not by their absence materially impede the labour of the society, or 

occasion domestic difficulties and distress: of militia, a great proportion 

were fathers of families, whose absence from their homes was extremely 

inconvenient and ruinous. The death of the regular soldier was of little 

comparative importance -- the death of the militiaman, who leaves behind him 

a wife and family of young children, was a serious evil. The regular army was 

prompt, skilful, and effectual; the militia army must always be languid in 

its operations, undisciplined, and ineffectual. Instead, then, of aiming at 

monarchy, our government labours, by the establishment of this army, to 

secure success to our efforts for freedom, and to spare a lavish and ruinous 

waste of the blood of our citizens.



Taxes, he said, are the necessary result of warlike preparations. These we 

have been compelled to adopt, by the insolence, the machinations, and the 

hostilities of France. They are the present price of our independence: and 

where the stake is so precious, no real American could begrudge them.



In the fifth clause of the resolutions, "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."



On the subject of the alien-law, Mr. Taylor observed, that he had before 

given his ideas at large, and should at present only repeat that from the 

authorities adduced by him on a former occasion, and from the reason of the 

thing, it appeared that the entry of an alien into any country was matter of 

favour in the sovereign power of that country, and not matter of right on 

the part of the alien. During his stay, the country to which he has migrated 

affords him hospitality and protection: during the same period, he owes 

respect and obedience to its laws. But the country exacts from him no 

allegiance: he is not bound to fight the battles of that country: he is 

exempt from serving in the militia: he is not subject to the taxes that have 

only a relation to the citizens: he retains all his original privileges in 

the country which gave him birth: the state in which he resides has no right 

over his person, except when he is guilty of crime: he is not obliged like 

the citizens, to submit to all the commands of the sovereign: but, if such 

things are required from him as he is not willing to perform, he may at will 

quit the country. The government has no right to detain him except for a 

time, and for very particular reasons. The writers on the law of nations 

therefore universally agree that the nation has a right to send him away 

whenever his stay becomes inconvenient or dangerous to its repose.



The Constitution of the United States, from its preamble, and from every 

article and section of the instrument, demonstrates that it was the 

intention and design of its framers to vest every power relating to the 

general welfare and tranquillity of the Union in the General Government. 

Each particular case could not be foreseen; and therefore the powers are 

given in general terms, and conclude with the particular power "to make all 

laws which shall be necessary and proper for carrying into execution the 

foregoing powers, and all other powers vested by the Constitution in the 

Government of the United States, or in any department or officer thereof." 

With this palpable intention of its framers in our view, we ought to give to 

the instrument a liberal as well as candid interpretation. If the General 

Government possesses not the power of removing dangerous aliens, but that 

power is vested exclusively in the particular states, one of the principal 

views of the old confederation would remain in all its vigour. While through 

the instrumentality of these characters insurrection and treason are maturing 

into birth, the Government will of itself be unable to avert the mischief, 

and must humbly supplicate sixteen independent and jealous sovereignties to 

carry its designs for the public safety into effect. It must disclose to 

each state the most important and delicate secrets, as that state will 

require testimony before it begins to act. It may in repeated instances be 

subjected to the mortification and danger of a refusal, and the alien might 

frequently depart from one state willing to exclude him, and take refuge in 

another determined to protect him. Thus the peace and safety of the Union 

might at all times be endangered; and the same government which can declare 

war against the foreign nation, shall not before that event takes place, be 

able to exclude from its soil the most dangerous and abandoned subject of 

that nation, although his residence may be the bane of public tranquillity.



Congress has power "to provide for calling forth the militia, to execute the 

laws of the Union, suppress insurrections, and repel invasions." When the 

insurrection or invasion has taken place, Congress may by the militia 

suppress the one, and repel the other. But the Constitution declares 

further, that "the United States shall guarantee to every state in this 

Union a republican form of government, and shall protect each of them 

against invasion; and on application of the legislature, or of the 

executive, (when the legislature cannot be convened,) against domestic 

violence." The power before recited had given Congress power to call forth 

the militia to suppress insurrections, and repel invasions. The section last 

mentioned directs them to protect each state against invasion and domestic 

violence. Are these two clauses of precisely the same meaning and import? 

Then the framers of the Constitution were guilty of tautology. But they are 

not of the same import. The first gives the power of suppressing 

insurrections, and repelling invasions, when insurrections or invasions 

should exist: the latter directs Congress to protect each state against 

invasions or domestic violence, which might threaten and impend. Protection 

necessarily implies and includes the prevention of mischief and danger. In 

protecting the states then against invasion, Congress must use the means of 

preventing the evil; and the clause before recited gives them in express 

terms the power to make all laws necessary and proper for carrying into 

execution any power vested in them by the Constitution. Congress then 

foresaw, from the dispute existing between the United States and France, 

that war might be the probable result, and that invasion might be the 

consequence of war. To protect the states against this invasion, a proper 

measure appeared to be the exclusion of dangerous aliens. They were vested 

by the Constitution with power to pass all laws necessary and proper to 

protect the states against invasion, and they therefore constitutionally 

passed the alien-law.



But against this construction of the Constitution, Mr. Taylor said, a 

gentleman from Orange had given the committee an extract from Publius, of 

which it could only be said, that the doctrine contained therein, although 

unquestionably sound and incontrovertible, did not apply to the present 

question. To prove this, let the extract itself, he said, be read again. It 

is in the following words: "It has been urged and echoed that the 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, 

amounts to an unlimited commission to exercise every power which may be 

alleged to be necessary for the common defence or general welfare." No 

stronger proof could have been given of the distress under which these 

writers labour for objections, than their stooping to such a 

misconstruction.



Had no other enumeration or definition of the powers of the Congress been 

found in the Constitution, than the general expressions just cited, the 

authors of the objection might have had some colour for it; though it would 

have been difficult to find a reason for so awkward a form of describing an 

authority to legislate in all possible cases. A power to destroy the freedom 

of the press, the trial by jury, or even to regulate the course of descents, 

or the forms of conveyances, must be very singularly expressed by the terms 

"to raise money for the general welfare." Publius afterwards proceeds to 

state other arguments exposing the fallacy of the opinion urged by the 

opposers of the Constitution against this article. But let it be remembered 

that the subject which Publius was discussing was this, whether the power 

given Congress "to lay and collect taxes, duties, imposts, and excises, to 

pay the debts, and provide for the common defence and general welfare," gave 

to Congress a right of legislating on every subject whatsoever. Now, who 

among us, said Mr. Taylor, has cited this clause in favour of the alien-law? 

Has any one of us, continued he, contended that Congress possesses the right 

of legislating on every subject? And because this clause does not give them 

such a power, did it follow that the power to protect the states from 

invasion does not authorize them, on the prospect of war, to exclude 

dangerous aliens? Some authority more applicable must be produced before we 

shall be proved to be in the wrong. In defence of the alien-law, Mr. Taylor 

observed, that he would make no further observations, but would call the 

attention of the committee for a few minutes, to what is called the 

sedition-law. In his remarks on this, from the wide range he had taken, he 

should be compelled to be much more concise than he bad intended to be.



He presumed that it would be conceded by all who heard him, that each 

individual possessed from nature certain rights of great value and 

importance. Among these was the right to liberty and to life; and, what was 

of no smaller importance than the other two, the right to his good name and 

reputation. For even in a state of nature, where the will of each individual 

was his law, and his power the measure of that law, and where consequently 

eternal strife and confusion must prevail, a good name would be of no small 

importance to its possessor. He, who when chance or misfortune had thrown 

his brother savage into his power, did not rob or abuse him, but bound up 

his wounds and dismissed him in peace, would be respected by the man he had 

benefited, and by all others who should hear of the circumstance, and would 

in consequence be in some degree secure against insult and attack. But in a 

state of society the possession of reputation must for obvious causes be of 

infinite importance. This state was the result of a compact formed by the 

component individuals for the enjoyment of their natural rights to greater 

advantage and with greater certainty. Each owes to the regulations of the 

society implicit obedience; and the society is equally bound to guarantee 

and to vindicate to each, his natural and social rights. Invasions 

therefore, against property, liberty, or life, have been punished in every 

society and under every form of government; but the natural right to 

reputation is as dear and invaluable to its possessor as any other 

whatsoever; it is essential to his comfort and happiness; he could never be 

supposed to have consented to its surrender; and invasions of it ought, 

therefore, to be punished by the society as well as invasions of property, 

liberty, or life. For no possession whatsoever is of such real value as an 

honest fame: in comparison with it, the possession of property is of little 

consequence. Property, in reality, adds nothing to the respectability of its 

possessor. When lost it may be regained; or if for ever lost, its former 

owner may still be respectable. But the loss of reputation is a much more 

serious mischief. It is irretrievable. Who could bear to be regarded by his 

fellow-citizens as destitute of principle and honour, and to be viewed by 

the world with contempt and detestation? Who would be unaffected at being 

deprived by the stroke of calumny of the friend he loved? Whose feelings 

would remain untortured, when the mistress he adored, whose smiles were 

those of affection, and whose eyes proclaimed the dominion of love, should 

be everlastingly estranged from him? When that bosom which before glowed 

with genial and sympathetic fires, should, touched by the breath of calumny, 

become cold and icy as the everlasting snows that envelope the pole? Such 

were the mischiefs accruing from the loss of reputation to the individual in 

his private capacity. But suppose him possessed of those virtues which 

dignify human existence, and of those talents which adorn it, and wishing to 

exert those virtues and those talents in a public capacity for the benefit 

of his fellow-citizens; if his reputation be blasted, or his character 

tainted, he would be spurned by those citizens from their presence: his 

talents would render him an object of greater odium: he would remain hated 

and despised through life, and execrated even after his death. Was the loss 

of property then to be compared with this injury? Nay, was not the loss of 

character equal or superior in mischief to the loss of existence? The 

murdered man dies an object of universal sympathy and regret, -- the 

recollection of his virtues is cherished, and his foibles and vices are 

excused or forgotten. But the man whose reputation is tainted, lives an 

object of universal contempt and disgust, and dies the theme of infamy and 

execration. Accordingly in every society, and throughout all time, a remedy 

has been afforded to the injured individual for calumnious attacks upon his 

reputation. And what would be the consequence of impunity to such an 

offence? The injured man, having no redress from the laws of his country, 

would arrogate to himself the right of revenge, and a mournful scene of 

assault, bloodshed and death, would be the unavoidable and melancholy 

result. These things could not be tolerated in a state of society; and 

accordingly slander and libels are punished with us by the common law. By 

the common law is understood the unwritten law of nature and reason, 

applying to the common sense of every individual, and adopted by long and 

universal consent. This common law attaches itself to every government which 

the people may establish. It existed in Great Britain when our ancestors 

migrated from that country, and it followed them to this. It prevailed in 

every state throughout the Union, before their separation from the British 

empire, and it regulates the whole American people now. A government, then, 

established by that people for the general safety and general happiness, 

will of necessity be guided in cases of general interest and concern, by the 

principles and regulations of the same common law. By that common law, 

unfounded calumny of magistrates generally, was matter of punishment, of a 

more severe punishment than in cases affecting the reputation of private 

individuals, because in the former instance the function rather than the man 

was the object of attack. And whenever magistrates of a new description are 

appointed, the old principles of the common law immediately apply to them, 

and calumnies against them are of course punishable. Thus when these states 

became independent of Great Britain, a number of officers of government we 

re created unknown to the former colonial establishments; but no one had 

ever thought it necessary to declare by statute, that slanders of them shall 

be punishable. When the Constitution of the United States was formed, a new 

description of officers, before unknown, was created: the common law 

pervaded and regulated every portion of the people which formed that 

Constitution; and consequently the rules of the common law immediately 

attached themselves to those officers. Consequently slanders of the 

President of the United States, of members of Congress, and of other 

officers of the general government, are punishable by the common law; 

because slanders of those characters are injuries not so much to the man, as 

to the community. Ours is a government which must rest for its support on 

the public sentiment. While the people approve it, it will nourish; when 

they withdraw their affections, it must expire. Unfounded calumnies against 

the officers of government, who administer and conduct it, tend to weaken 

the confidence and affection of the people for the government itself. The 

Constitution of the United States, it is acknowledged by all, authorizes the 

government to punish acts of resistance to its measures. Would it not be 

strange, if, when it authorizes them to punish acts of resistance, it should 

prevent them from punishing acts tending to introduce resistance? That the 

government must look on tame and passive while the mischief is preparing, 

and be incapable of action until that mischief has ripened into effect, when 

its actions and operations may perhaps be unavailing. That it shall be fully 

able to suppress and punish actual insurrection, but shall be incapable of 

preventing it. This would surely be absurd. And as the Constitution of the 

United States is the work of the whole American people; as every man of that 

people is regulated by the common law; as that common law attaches itself to 

the state governments, established by that people, and punished unfounded 

calumnies of state magistrates, why shall it be said not to attach itself to 

the government of the whole American people? And why shall it not punish 

unfounded calumnies of the magistrates of the general government? Why is the 

state magistrate protected by the common law? Because he is a public 

functionary, and calumnies of him injure the public. Was not a magistrate of 

the general government also a public functionary? Would not calumnies 

against him also injure the public? And if the functionary of the part be 

protected by law, how shall it be said that the functionary of the whole is 

left unprotected? Surely reason proclaims, that in proportion to the 

magnitude of the trust reposed in the functionary, would be the mischief 

arising from false, scandalous, and malicious representations of his 

conduct. The most unfounded calumnies against the governor of a particular 

state could only rouse the discontent, or excite the opposition of that 

state. But unfounded calumnies against the President of the United States, 

may paralyse, convulse, and destroy the Union. The reason of the common law 

applies, therefore, more powerfully to the magistrate of the general 

government than to the magistrate of the state government. But this is the 

general feature of that law, and of reason, that the person being a 

magistrate of whatever grade or description, and being vested with the 

authority of the laws, ought to be protected.



That the principles of the common law apply to the general government, is 

obvious from the second section of the third article of the Constitution, 

which declares, that "the judicial powers 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," and "to 

controversies to which the United States shall be party." The judiciary, in 

cases arising under the laws of the United States, will be regulated by 

those laws: and in cases arising under treaties, by those treaties and the 

law of nations; but what cases can arise under the Constitution, as 

distinguished from cases arising under the laws of the United States and 

under treaties, except cases to be decided by the rules and principles of 

the common law? And these in "controversies to which the United States shall 

be party," will, unless altered or modified by law, operate in their full 

extent.



This is not the only instance in which the common law is recognised in the 

Constitution; for the ninth amendment is in these words: "in suits at common 

law, where the value in controversy shall exceed twenty dollars, the right 

of trial by jury shall be preserved; and no fact tried by a jury shall be 

otherwise re-examined in any court of the United States, than according to 

the rules of the common law." When in the re-examination of facts tried by a 

jury, the courts of the United States are expressly prohibited from 

observing any other than the rules of the common law, the Constitution 

itself declares, that the common law applies to those courts; and if it 

applies in one instance, it must apply in all others coming within their 

sphere, unless where it is altered by act of Congress.



The common law has been thus shown to apply to the government of the United 

States as well as to the governments of the particular states and to 

particular individuals. One rule of the common law is, "that he who writes, 

utters or publishes a false, scandalous, and malicious libel against a 

magistrate or the government, shall be punished by fine and imprisonment." 

The writer, utterer or publisher, therefore, of a false, scandalous and 

malicious libel against the government of the United States, or any 

magistrate thereof, is at common law, punishable by fine and imprisonment.



The objection to the punishment of libels, that truth is the sufficient 

antagonist of error, and needs no assistance, Mr. Taylor said, was not 

correct: that falsehood was light and volatile; she flew on the wings of the 

wind, she spread her mischiefs with inconceivable velocity: that truth was 

the child of experience, and the companion of time; she scarcely ever 

outstripped, and rarely kept pace with her companion. What mischief in all 

ages and in all countries have been occasioned to individuals, and to the 

public, by malignant falsehoods, before truth could arrive to detect and 

protect them. How would these mischiefs be aggravated, if they should remain 

unpunished by the laws? The fairest reputation, when frequently assailed, 

must be diminished in the public esteem. Each scandalous report finds some 

believers; and at length the most charitable will be disposed to think that 

such repeated charges could not be made without some foundation. They will 

increase in proportion to the talents and the station of the injured 

individual, and unless they be punished by the laws, the most splendid 

abilities, and unsullied virtues, must cease to be useful, and sink into 

disgrace.



Mr. Taylor said, from what had been said, it would appear that the right to 

punish libels against governments, or their officers, is founded in the 

principles of nature, of reason, and of common law. The act of Congress on 

this subject, said he, punishes nothing before unpunishable: it creates no 

new crime: it inflicts no new punishment: but on the contrary, it mollifies 

and alleviates the rigours of the common law; for at common law, the amount 

of the fine, and the time of imprisonment, are unlimited, and regulated only 

by the discretion of the court trying the offence: by the act in question, 

the fine is limited at the utmost to two thousand dollars, and the 

imprisonment to two years.



But the opposers of this law assert, that however the principles of the 

common law may apply to the government of the United States, in ordinary 

cases, and whatever might have been their original power to punish libels, 

this power is now taken away by the third amendment to the Constitution.



This amendment is in the following 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."



The difference of the terms used in this amendment, Mr. Taylor said, was 

remarkable. "Congress shall make no law respecting an establishment of 

religion, or prohibiting the free exercise thereof." Consequently, they dare 

not touch the subject of religion at all. But further, they "shall make no 

law abridging the freedom of speech, or of the press," not "respecting the 

freedom of speech, or of the press." When religion is concerned, Congress 

shall make no law respecting the subject:



when the freedom of the press is concerned, Congress shall make no law 

abridging its freedom; but they may make any laws on the subject which do 

not abridge its freedom. And in fact, the eighth section of the first 

article of the Constitution authorizes them in express terms "to promote the 

progress of science and useful arts, By securing for limited times, to 

authors and inventors, the exclusive right to their respective writings and 

discoveries." Now if Congress could not make any laws respecting the freedom 

of the press, they could not secure for limited times to authors their 

respective writings, by prohibiting those writings from being published and 

vended, except by those whom the authors should expressly permit. They may 

consequently make laws respecting the press, provided they do not abridge 

its freedom. To abridge the freedom of the press, Mr. Taylor said, was to 

impose upon it restraints or prohibitions which it did not experience 

before; or to increase the penalties attached to former offences accruing 

from its licentiousness. If then the sedition-law does impose upon the press 

restraints or prohibitions which it did not experience before that act was 

passed, or if it increases the penalties attached to former offences arising 

from its licentiousness, it was conceded to be unconstitutional.



But it had been demonstrated, he said, that the common law embraces and 

attaches itself to the constitution and government of the United States; and 

that it punishes with indefinite fine and imprisonment the writing, 

uttering, or printing false, scandalous, and malicious libels. When the act 

in question, then, only punishes the same false, scandalous, and malicious 

writing by fine and imprisonment to a definite amount, and for a definite 

period, it does not impose upon the press restraints or prohibitions which 

it did not experience before, nor does it increase former penalties; it 

therefore does not abridge its freedom, and is consequently constitutional. 

To suppose that because Congress are prohibited from making laws abridging 

the freedom of the press, they cannot punish the vile slanders and infamous 

calumnies which from time to time issue from it, against the government, Mr. 

Taylor said, was to suppose that the people of America had given a solemn 

and constitutional sanction to vice and immorality; that they had completely 

privileged the infamous offence of lying; and that every individual had 

consented, in case of his being employed by the United States, to release 

the society from the. protection and vindication of his natural right to 

reputation.



The persons who framed the amendments to the Constitution of the United 

States, were certainly men of distinguished abilities and information. Among 

them was a great proportion of lawyers, whose peculiar study had been the 

common law. Perhaps every one of them had read and maturely considered 

Blackstone's Commentaries; these would inform him, that in England, the 

terms " freedom of the press," had an appropriate signification, to wit: 

exemption from previous restraint on all publications whatever, with 

liability, however, on the part of the publisher, to individuals or the 

public, for slanders affecting private reputation or the public peace. 

Certainly every one of them was acquainted with the laws of his own state, 

where the terms " freedom of the press," had precisely the same meaning as 

in England. When, then, in the amendments to the Constitution they speak of 

"the freedom of the press," must it not be presumed they intended to convey 

that appropriate idea, annexed to the term both in England and in their 

native states? And a reference to Blackstone will clearly point out, both 

the emancipation of the press in that country from its former shackles, and 

the true import and meaning there and here, of the term "freedom of the 

press." "The art of printing," says that valuable writer, "soon after its 

introduction, was looked upon (as well in England as in other countries) as 

merely a matter of state, and subject to the coercion of the crown. It was, 

therefore, regulated with us by the king's proclamations, prohibitions, 

charters of privilege and of license, and finally, by the decrees of the 

Court of Star Chamber, which limited the number of printers, and of presses 

which each should employ, and prohibited new publications, unless previously 

approved by proper licensers. On the demolition of this odious jurisdiction, 

in 1641, the long parliament of Charles I. after their rupture with that 

prince, assumed the same powers as the Star Chamber exercised with respect to 

the licensing of books, and in 1643, 1647, 1649 and 1652, issued their 

ordinances for that purpose, founded principally on the Star Chamber decree 

of 1637. In 1662, was passed the statute 13 and 14 Car. II. c. 33, which 

(with some few alterations) was copied from the parliamentary ordinances. 

This act expired 1679, but was revived by statute 1 Jas. II. c. 17, and 

continued till 1692. It was then continued for two years longer, by statute 

4 W. & M. c. 24; but though frequent attempts were made by the government to 

revive it in the subsequent part of that reign, yet the parliament resisted 

it so strongly, that it finally expired, and the press became properly free 

in 1694, and has ever since so continued." The same writer thus elegantly 

defines the liberty of the press. "The liberty of the press is, indeed, 

essential to the nature of a free state; but this consists in laying no 

previous restraints upon publications, and not in freedom from censure for 

criminal matter, when published. Every freeman has an undoubted right to lay 

what sentiments he pleases before the public: to forbid this, is to destroy 

the freedom of the press; but, if he publishes what is improper, mischievous 

or illegal, he must take the consequence of his own temerity. To subject the 

press to the restrictive power of a licenser, as was formerly done, both 

before and since the revolution, is to subject all freedom of sentiment to 

the prejudices of one man, and make him the arbitrary and infallible judge 

of all controverted points in learning, religion, and government. But, to 

punish (as the law does at present) any dangerous or offensive writings, 

which, when published, shall, on a fair and impartial trial, be adjudged of 

a pernicious tendency, is necessary for the preservation of peace and good 

order, of government and religion, the only solid foundations of civil 

liberty. Thus the will of individuals is still left free; the abuse only of 

that free will, is the object of legal punishment. Neither is any restraint 

hereby laid upon freedom of thought or inquiry; liberty of private sentiment 

is still left; the disseminating or making public of bad sentiments, 

destructive of the ends of society, is the crime which society corrects." "A 

man (says a fine writer on this subject) may be allowed to keep poisons in 

his closet, but not publicly to vend them as cordials. And to this we may 

add, that the only plausible argument heretofore used for the restraining 

the just freedom of the press, 'that it was necessary to prevent the daily 

abuse of it,' will entirely lose its force, when it is shown (by a 

seasonable exertion of the laws) that the press cannot be abused to any bad 

purpose, without incurring a suitable punishment; whereas it never can be 

used to any good one, when under the control of an inspector. So true will 

it be found, that to censure the licentiousness, is to maintain the liberty 

of the press." 



In England, said Mr. Taylor, the laying no previous restraints upon 

publications, is freedom of the press. In every one of the United States the 

laying no previous restraints upon publications hath always been, and still 

is deemed the freedom of the press. In England, notwithstanding the freedom 

of the press, the publication of false, scandalous, and malicious writings 

is punishable by fine and imprisonment. In every one of the United States, 

notwithstanding the freedom of the press, the publication of false, 

scandalous, and malicious writings is punishable in the same manner. If the 

freedom of the press be not therefore abridged in the government of any 

particular state, by the punishment of false, scandalous, and malicious 

writings, how could it be said to be abridged when the same punishment is 

inflicted on the same offence by the government of the whole people?



If it should be thought that this point required further elucidation, let 

us, said Mr. Taylor, look for it in the Constitution of the state of 

Virginia. It had been said that the general government, being constituted 

for particular purposes, possesses only such powers as are granted: and this 

was conceded to be true. It had been also said that the state governments, 

being constituted for the general regulation of the people in each state, 

possess all powers which the people have not expressly retained to 

themselves; and this, for the sake of argument, shall also be granted. Yet 

it would not be disputed that the powers retained by the people to 

themselves in their state Constitution, are as sacred and inviolable as 

those retained by the people to themselves in the Constitution of the United 

States. Now the people of Virginia, in their state constitution, appear to 

have been as jealous of this freedom of the press, as were the people of the 

United States in the formation of the Federal Constitution. For if the 

Constitution of the United States declares, that Congress shall "make no law 

abridging the freedom of speech or of the press," the Constitution of 

Virginia, in the twelfth article of the bill of rights, declares, "that the 

freedom of the press is one of the great bulwarks of liberty, and can never 

be restrained but by despotic governments." The legislature of Virginia 

therefore, Mr. Taylor said, could no more pass a law restraining the freedom 

of the press, than Congress could pass a law abridging the freedom of the 

press. The liberty of the press could not be restrained without being 

abridged. Yet it had never been doubted that false, scandalous, and 

malicious writings are punishable in Virginia. In the year 1792 the 

legislature of this state passed a law "against divulgers of false news," 

and no one suggested that the liberty of the press was thereby restrained. 

In the same session another act was passed, declaring "that any person who 

shall, by writing or advised speaking, endeavour to instigate the people of 

this commonwealth to erect or establish any government separate from, or 

independent of, the government of Virginia, within the limits thereof, 

without the assent of the legislature of this commonwealth for that purpose 

first obtained, shall be adjudged guilty of a high crime and misdemeanour, 

and on conviction, shall be subject to such pains and penalties, not 

extending to life or member, as the Court before whom the conviction shall 

be, shall adjudge." Neither was this law deemed unconstitutional. Now if the 

legislature of Virginia could pass laws punishing divulgers of false news, 

and writers advising the people to particular detrimental acts, without 

restraining the freedom of the press, could not the legislature of the Union 

punish false, scandalous, and malicious writings tending to destroy the 

government, or to bring it into hatred and contempt, without abridging the 

freedom of the press? To say that they could not, was to declare that 

punishing the licentiousness, is abridging the freedom, of the press; and 

that licentiousness and freedom are synonymous terms.



Every man, continued Mr. Taylor, has a right to freedom of action; but no 

one supposed that this bestowed upon him the right to assault another on the 

highway. Every one has a right to the freedom of the press; but should he 

use it so as to assault the happiness of an individual or the repose of 

society, without being liable to punishment for the mischief he had 

occasioned? 



It had been said that false, scandalous, and malicious libels against the 

government of the United States, or any officer thereof, are punishable in 

the courts of each state respectively; but this was believed to be 

incorrect. Libels against state magistrates, or such officers of the general 

government as reside in Virginia, are punishable in our state courts, 

because the injured persons reside within the limits of the state, 

contribute to its support, and are entitled to protection from it: but 

libels against the magistrates of a foreign nation, or of a sister state, 

or of the general government, residing out of this state, are not punishable 

in our courts, because the injured individuals in these cases are not bound 

by our state laws, do not sustain the burdens, or contribute to the support 

of the commonwealth, and are consequently not entitled to its protection. 

But it would not be denied, that an infamous slander of the President of the 

United States, tending to produce insurrection, was equally mischievous, if 

published by a citizen of Virginia, as if published by a citizen of 

Pennsylvania. The courts of the United States, therefore, must take 

cognizance of the case, or the offence would remain unpunished. Every public 

incendiary would, by palpable misrepresentations and abominable falsehoods, 

continually agitate and convulse the minds of the people. That affection 

towards the government which alone supports it, would shortly be withdrawn, 

and would speedily fall, to rise no more.



On the sedition-law, Mr. Taylor said, he would make no further remarks, but 

would proceed to other parts of the resolutions.



The seventh resolution is in the words following: "That the good people of 

this commonwealth having ever felt and continuing to feel the most sincere 

affection to their brethren of the other states, the truest anxiety for 

establishing and 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 solemnly 

appeal to the like dispositions of the other states, in confidence that they 

will concur with this commonwealth in declaring, as it does hereby declare, 

that the acts aforesaid are unconstitutional and not law, but utterly null, 

void, and of no effect, 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 peoples"



On this resolution, Mr. Taylor said, two remarks would be submitted. The 

legislature of one state in the Union declares two acts passed by a majority 

of the representatives of the whole American people, to be unconstitutional 

and not law, but utterly null, void, and of no effect. They declare this, 

not as an opinion, but as a certain and incontrovertible fact; in 

consequence of which the people of the state owe no submission to the laws. 

Have, continued he, the representatives of a part, a power thus to control 

and to defeat the acts of the whole? In the Congress of the United States, 

the people of each state are fairly and equally represented in proportion to 

the population of that state. If, after a majority in that Congress have 

decided that certain laws are constitutional and expedient, the legislature 

of Virginia hath a right to annul those laws by declaring them to be 

unconstitutional, the old republican maxim that the majority must govern was 

exploded, and the Union would be dissolved. If the state of Virginia could 

repeal and annul the alien and sedition-laws, she could repeal and annul any 

other acts of Congress; and if she hath the right, every other state must 

possess it likewise.



If any act passed by Congress be unconstitutional, the judges of the federal 

court, who are unbiassed by party, and unwarped by prejudice, and who are 

selected for their superior talents and integrity, afforded a constitutional 

check upon the legislature. The people themselves are another most powerful 

check; for they will know the vote of their representatives, and if they 

deem the law for which they voted to be unconstitutional, they will order 

them to depart at the ensuing election, and replace them with others more 

wise and more virtuous. Here were two peaceable and happy modes of 

correcting the mischief: Whereas, for one or more jealous state legislatures 

to endeavour to repel or control the acts of Congress by their sovereign 

power, was at once to introduce disunion and civil war. The government of 

the Union, which might have yielded to fair reason and argument, will never 

give way to the threats or force of these rival sovereignties. If they do, 

the powers and energies of the Federal Government would be from that moment 

destroyed. They will determine to try the experiment whether the Union shall 

govern a few states, or a few states shall rule the Union. The certain 

consequence will be a resort to arms, civil war, and carnage, and a probable 

dismemberment of the Union.



Of such consequences, in such an event, the framers of the Constitution were 

aware. They, therefore, wisely in the tenth section of the first article 

declared that "no state shall, without the consent of the Congress, enter 

into any agreement or compact with another state or with a foreign power." 

The resolution last cited, however, invited the other states to " take the 

necessary and proper measures for co-operating with this state in 

maintaining unimpaired the authorities, rights, and liberties reserved to 

the states respectively, or to the people." Could other states co-operate 

with this for these purposes, unless by virtue of some previous agreement or 

compact? To co-operate, was to act in concert. Must not some agreement or 

compact among the states precede their acting in concert? It must in the 

nature of things. Does not the Constitution forbid this agreement or compact 

in positive and express terms? Were we not, then, inviting our sister states 

to a deliberate and palpable breach of the Constitution; and this at the 

moment when we were so liberally reviling Congress for an imputed breach of 

the same instrument? Did their example authorize us to violate what we had 

solemnly sworn to support and preserve? Or did an act which was not to be 

tolerated in the wicked Congress, become venial or laudable when committed 

by the saints composing this Assembly?



These resolutions, continued Mr. Taylor, must have some ultimate object; and 

it had been demanded what that object was? The gentleman from Caroline had 

answered, that it was ultimately to induce the states to call another 

general convention for the amendment of the Constitution. How unfortunate 

and ruinous such an experiment would be, the reflection of a few moments 

must convince us.



When the circumstances and the time when the convention assembled which 

formed our present Constitution, and the importance and difficulty of the 

task which they undertook and executed, were considered, we had ample cause 

to return our fervent thanks to the Almighty for the issue of their labours. 

At that time the weakness and inefficacy of the articles of confederation 

was perceived and acknowledged by us all; our contracts were undischarged; 

our credit was destroyed; and our character as a nation was contemptible 

both at home and abroad. All America united in the sentiment that change was 

essential: all America deputed members to the convention which introduced 

that change. Foreign nations despised us too much to interfere in the 

deliberations of that body, or of the state conventions which afterwards 

adopted the instrument. Even under these circumstances, the harmony with 

which the plan was recommended, and the unanimity with which it was adopted, 

were subjects of amazement and wonder. 



But what would be the consequence and effect of a convention summoned to 

amend the Constitution at the present moment? Now, said he, party-spirit 

unfortunately flames and rages. Some think the Constitution as perfect as it 

could be made, while others consider it as the harbinger of monarchy, and 

others again, supposed that the powers of government require an increase of 

energy and power. A spirit of mutual concession could no longer be expected. 

The delegates from the northern and southern parts of the Union would behold 

each other with jealousy and suspicion. They would never unite in the same 

project. They might agree indeed, in pulling down the present building, but 

they would never agree in erecting another.



This too, is a period when the whole European world is convulsed and in 

arms; our rising importance attracts their attention and excites their 

fears. Even in the present state of things, their ministers and agents were 

continually intriguing among our citizens. Would they remain idle and 

unemployed while the convention was deliberating? Would they not afford fuel 

to the name of party, and prepare the public mind to reject every scheme 

which might be proposed? Was it not reasonable to he expected that the 

consequence of their exertions, and our own ferments, would be confusion, 

anarchy, civil war, and disunion? Enjoying, then, as we do, every happiness 

to which reason can aspire, shall we, said he, wantonly attempt a change by 

which little could be obtained, and everything might be sacrificed.



In Virginia, Mr. Taylor said, the general sentiment was that the government 

of the United States verges towards, and will ultimately settle in, a 

monarchy. But the measures of that government are supported by a majority of 

the House of Representatives, and by a still greater majority of the Senate. 

From this obvious proof of the prevailing sentiment throughout the Union, 

was it to be expected that another government would be framed vesting 

smaller or fewer powers in the executive, than he at present exercises? 

Would not our object, on the contrary, be defeated, since the general 

convention would probably enlarge instead of diminish the powers of the 

national government? No other consequence, therefore, could at the present 

time, and under existing circumstances, follow such an experiment, but 

increase of dissatisfaction and disgust, and a more ardent disposition to 

dissever the bonds of union which now connect all America.



In such a convention, in vain should we reckon on the superior importance, 

power, and influence of Virginia. A majority of states would never agree to 

summon another convention unless it should be previously agreed and declared 

that the votes shall be taken as in the former convention, by states. In 

such a convention, where the influence of Delaware or Rhode Island would be 

as great, and their respective votes would weigh as much as those of 

Virginia and Pennsylvania, what would be our chance of carrying our 

particular objects into effect. The smaller states already behold us with 

jealousy and apprehension. Each representative would come prepared to watch, 

to oppose and circumvent every other. Northern and southern, eastern and 

western parties and interests would immediately appear; and the convention, 

after a restless and turbulent session, which would increase instead of 

diminish the rage of faction among their constituents, would rise in 

confusion. The sound of peace would be no longer heard; the sentiment of 

union would no longer continue, but the sword would be drawn, the union for 

ever dismembered, and the bloody history of Europe would be retraced in the 

melancholy annals of divided and hostile America.



How sad and gloomy a contrast would such a state of things afford to the 

present flattering and happy aspect of our affairs. At this day, said Mr. 

Taylor, America, united under one government, experiences an increase of 

wealth and population unknown to any other country. Mild and equal laws, 

industrious and enterprising citizens, peace among ourselves and respect 

from foreign nations, render us the envy of every other part of the globe. 

Mr. Taylor then concluded with the following observation: May HE who rules 

the hearts of men, still dispose us to yield obedience to the constitutional 

acts of the majority; may He avert the mischiefs which these resolutions are 

calculated to produce; may He increase the love of union among our citizens; 

may no precipitate acts of the Legislature of Virginia convulse or destroy 

it; and to sum up all in one word, may it be perpetual!



Mr. GILES arose next, and said, as he had but lately appeared before the 

committee, he would not have obtruded any observations upon it, had not some 

remarks which had fallen from gentlemen made some impression upon him. 

Therefore, though unprepared, he would make a few observations. He then 

observed, that for several years past he had had an opportunity of 

considering the systems pursued by both the state government and General 

Government. Of those he considered the system of Virginia the best and 

mildest. For after twenty years' operation, little mischief could be proved 

to have proceeded from it; but, on the contrary, much good had been done by 

the administration of it in that time. There had been no complaint that he 

had heard respecting the injury of person or property; and there had been at 

the same time less energy in it than in any other government whatever. The 

injunctions of law had been duly obeyed, and of the laws of the United 

States particularly, of as much so here as in any other state. What had been 

the cause of this? Not the rigour, but the mildness of the laws. And were 

such principle always to be attended to, the necessity of energy in the 

executive branch would never exist. Mr. Giles then asked what was that 

energy? It was despotism. Whence had sprung the distinction of parlies? Not 

while Virginia was left to herself. He then proceeded to pass a high 

eulogium on her system, which had been felt by him in private life; for he 

confessed that he had never acted in a public character in this body before? 

Whence then did party-spirit arise? It had been since that new doctrine had 

taken place of strengthening the hands of the executive of the United 

States, to give it an energy. And he proceeded to show of what kind that 

was.



Since that period, he said, efforts to resist had originated. Mr. Giles then 

requested the committee to examine the powers of the General Government, and 

observe what was the opinion formed of them at its commencement. He then 

mentioned certain systems which had been established in the course of its 

operation, such as the funding-system, bank, &c. These systems being 

established, it would be thought necessary from time to time, to give them 

energy. He said, there was a kind of sophistry used by the General 

Government in assigning that for the means which was in fact the end; and 

stated for example the case of invasion and insurrection. The sedition-law 

had been called the means for preventing them; but he (Mr. Giles) declared 

the contrary to be the fact. The sedition-law was truly the end, and an 

invasion was made use of as the means to introduce it. He would examine the 

Constitution, he said; and there he found the language as plain as the 

English language could be. Still, however, that language, plain as it was, 

was avoided by calling an end a means. The sedition-law, then, was an end to 

suppress a certain party in the United States. But it had been predicted by 

gentlemen, that many mischievous consequences would attend the adoption of 

the plan proposed by the resolutions before the committee. Mr. Giles 

contended, however, that if such consequences did take place, they would not 

proceed from any act of this Assembly, but from these acts of Congress 

already passed. As for himself, he wished as much as others to preserve 

happiness. His efforts were tending to that end. An oath, too, had been 

spoken of. What was it ? "To support the Constitution of the United States." 

It became then the duty of the members of this Assembly, who had taken such 

an oath, to support the Constitution. But it had been said, that on this 

occasion a resort must be made to the judiciary and to the people. Why so? 

said Mr. Giles. The members of this Assembly have taken the same oath to 

support the Constitution as the judiciary and the people. It became then as 

much their duty to support it, as it was that of the others. He then asked, 

how was the Constitution to be supported; and said, that it was by resisting 

all attacks upon it, not any particular acts only. But the right of the 

members of this Assembly to speak their opinions upon the subject was 

questioned. It was said, that they must inform the people so: that they must 

do it, that the judges must do it, and that they their representatives 

wished not to do it themselves. Mr. Giles then said, that the measures of 

our present government tended to the establishment of monarchy, limited or 

absolute. It had been said, too, that the people only were parties to the 

compact. But Mr. Giles asked what was an association of people? A federal? 

No; it was asocial compact. How then would they support it as a federal 

compact, if it were only a social compact? The state government was truly of 

the latter kind. The General Government was partly of each kind. The 

objection to the word only then was correct, and before he concluded, he 

should move to strike it out. But he acknowledged "that they were then 

acting as a state. The gentleman from Westmoreland had delivered his opinion 

respecting the formation of the government. In this opinion, Mr. Giles said, 

the gentleman was partly correct, and partly incorrect. The United States 

would perhaps have been in a different situation, if what the gentleman had 

asserted had been established. He then proceeded to show in what manner 

several states in the Union appointed their electors to choose a President, 

which was by their legislatures. The federal idea, then, of the other side 

was not correct. And if, on the other hand, the government were a social 

compact, he pronounced monarchy to be near at hand, the symptoms and causes 

of which he particularly pointed out: and concluded that the state 

legislatures alone, at this time prevented monarchy. He then said, that in 

proportion as the powers of the government were extended, new excuses for 

more energy would arise. And what was energy? A coercing of the public will. 

He then observed how little energy was exerted in Virginia. The energy of 

the laws was sufficient. He hoped, then, that the right of the committee to 

proceed to examine the subject would not be denied. The gentleman from 

Prince George had dwelt upon the present happiness of the people, to disprove 

which Mr. Giles called to mind the rigorous proceedings of the government, 

and particularly cited the case of Matthew Lyon, whom, notwithstanding the 

reports propagated to his prejudice, he said he would aver to be a man of 

much worth. The effects of these laws of Congress were not yet sufficiently 

known. The medium of information had heretofore been contracted and 

imperfect. This House was then undertaking to make them more known. The 

critical situation of the United States, too, had been mentioned: that 

France and England both had a view towards us; and that therefore great 

caution should be used.



He then proceeded to take notice of the measures adopted by the last 

Congress. The cause for them held out, was the danger to be apprehended from 

a certain foreign power. This cause had produced the laws respecting the 

navy, the army, aliens, and the sedition-law, which last operated upon 

citizens, and not foreigners. Those gentlemen, he said, who never had been 

about the seat of government, could form no conception of the exertions of 

persons who were continually infusing into men's minds, the notions of 

energy. Mr. Giles then read an answer of the President of the United States, 

to show what he had in view in respect to that foreign power so much feared. 

It was his answer to the address of the people of Bath. He read it, and 

proceeded to comment on the latter part of it respecting a party in Virginia 

to be crushed into dust and ashes. He asked what was that party? They were 

said to be French partisans. But by whom were they so called? He asked, too, 

who were the favourers of the resolutions? Not Frenchmen, but good citizens. 

This was the party then to be crushed, before the schemes of the President 

could be effected. He said that he could produce more answers of the 

President, avowing the same principles and design, as that already cited, 

but he would not tire the committee with them. He declared himself, however, 

to be as good a, citizen as the President. Why then was he to be crushed 

into dust and ashes? He then expressed his disapprobation of the measures 

adopted by the government respecting the army and navy. He asked, of what 

characters would they be composed? Of the idle and dissipated part of the 

community? On the contrary, who were the patriots who would protect their 

country? This very party mentioned by the President would repel any 

invasion. It was true they had no arms, but they would find arms. Mr. Giles 

then said that he approved of the argument used by the gentleman from 

Caroline, respecting the volunteers, but wished it to be somewhat more 

extended. He thought it a much more serious matter than any other. The 

gentleman from Caroline had used it in regard to the President's enlisting 

aliens merely. But Mr. Giles said he would ask, further, of whom those 

companies were to be composed? Not of farmers or farmers' sons, but chiefly 

of aliens. He himself believed that the operation of the last-mentioned law 

was intended to unite both. But it was said the people would protect the 

Constitution; that the judges would protect it. He then observed, that 

opposition to foreign power was always the pretence to usurpation. To prove 

that, he instanced the case of Rome. There, he said, whenever the people 

found themselves oppressed, and solicited redress, they were told by their 

rulers that was not the time; that the common wealth was in danger; that the 

Volsci were at their gates. Mr. Giles then said, that by the measures 

adopted by the last Congress, nothing had been left undone to carry us into 

monarchy. But union was now said to be necessary. What was that union for? 

To abridge the freedom of the press. Was that desirable? He compared this to 

the case of robbers forming an union for the purpose of robbing. And said, 

that good was the object of the union of the states, and not mischief. He 

then adverted to the distinction between opinion and fact. He said Mr. 

Jefferson's was a good distinction. And that the assertion of false fact was 

punishable before the sedition-law was passed; but the assertion of false 

opinion was not. There was no standard to ascertain that; there was, 

however, in respect to false fact. This sedition-law, then, deprived men of 

the freedom of speech. It prescribed the punishment of a new thing. Opinion 

heretofore, had ranged at large, had always prevailed. Mr. Giles then asked, 

how was the restriction of opinion introduced in France. It was brought 

about in Robespierre's reign of terrorism. He then asked how this party 

mentioned by the President was to be crushed? Incarceration would not be 

sufficient. In regard to the restriction of opinion, he compared our 

situation to that of France, in the reign of Robespierre. As for himself, he 

feared not the system, but thought the most effectual mode was now pursued 

to introduce the same despotism here as had prevailed in France, He approved 

the mode adopted by the resolutions, in making a declaration to conflict 

with other opinions. He then referred to our situation, and said that he 

felt himself as much interested as any one to ward off war, but he thought 

the worst of all things was ultimately submission; and that a constitutional 

violation was more degrading than anything. But the resolutions had been 

charged with containing invective. He said if there were any, it must arise 

from simple language, expressing simple truths. However, if better could be 

used he would be willing to agree to it. But he doubted whether should even 

the Lord's Prayer be introduced before them, and undergo a criticism, they 

could be brought to agree to it. It had been said, that if this Assembly 

critically examined the measures of the general government, they should use 

more pleasant terms. But Mr. Giles said they were not terms, but truths that 

were unpleasant. He proceeded next to consider the alien-law, and to answer 

the observations of gentlemen in respect to aliens having no rights. In 

advocating the rights of aliens, he said, he did not consider what was 

popular, but what was justice. A stranger coming into a country had a right 

to protection. It was not a matter of favour only. A great number of persons 

already admitted into this country, he said, were not citizens. They would 

be affected by this law. He insisted that aliens were not only entitled to a 

trial by jury, but to that particular benefit of a jury de medieta 

telingiae, by the law in force both in England and here. It had been said, 

however, that this was not a trial of guilt, but to prevent it. That, he 

said, made no difference. A trial was still necessary. He conceived that 

there was no foreign, but a domestic reason for this law. It was said that 

the French were ambitious. But was this a ground for the laws to affect our 

domestic operations? If they were repealed the government would be as firm 

as it was now. The administration, he said, was not the government. The 

government could subsist without it. For instance, it was once thought in 

Switzerland that it was necessary to keep a bear amongst them, for their 

prosperity and safety. After awhile the bear broke his chain and run away. 

For some time after, the people continued to lament his escape, and expected 

that some dreadful calamity would befall them. But, after waiting some time, 

and finding that no such calamity arrived, they began to bring themselves by 

degrees to believe, that the bear was of no use, and that they could do as 

well without him, as with him. Mr. Giles then said that he was as much in 

favour of government as any man, and would contribute as liberally to its 

support, but was not an advocate for improper measures. He then proceeded to 

consider the sedition-law. He observed, that the gentleman from Prince 

George had mentioned the God of Heaven. But he had nothing to do with the 

Constitution. If he had, it was omnipotent. On the contrary, Mr. Giles said, 

that the powers of government were derived from the Constitution, and not 

from the reason and nature of things. Implication, he said, was a dangerous 

doctrine. There was an express prohibition of all powers not granted by the 

Constitution. The Constitution and this law convey to the mind different 

impressions. The derivation of power, he again insisted, could not be proved 

otherwise than from the Constitution. The powers not given by that were 

retained to the states, or to the people. What, then, was given to each? The 

general government, he said, should not be entrusted to decide upon 

character, or in case of murder. That power was reserved to the states. That 

was the proper authority for regulating and deciding upon these matters. Mr. 

Giles made some further observations on the last clause of the law last 

mentioned, and then said, that declaring these acts of Congress 

unconstitutional, satisfied the oaths of the members of this Assembly. He 

would agree to stop after that, if they thought proper, and to strike out 

everything beyond it. If gentlemen thought the laws were unconstitutional, 

they were bound to say so, otherwise it would be a dereliction of the oath 

which they had taken. For his part, he said, he should vote for something 

which would express his opinion upon the subject. He would, however, at any 

rate, move to strike out of the resolutions before the committee, the word 

alone.



Mr. NICHOLAS seconded Mr. Giles's motion for striking out of the resolutions 

the word alone; and further observed, that either the gentleman from Prince 

George or himself, misunderstood the gentleman from Caroline, in respect to 

calling a convention. He hoped, therefore, that the gentleman from Caroline 

would explain himself upon that point. Mr. Nicholas then stated what he 

understood that gentleman to say, which he himself approved; but on the 

contrary, did not approve the calling a convention.



Mr. BOLLING said, that he understood the gentleman from Caroline in the same 

manner that the gentleman who was last up did, in respect to calling a 

convention. Mr. Bolling also made several observations to show that the 

gentleman from Prince George had misunderstood Mr. Jefferson's letter which 

had been quoted by him.



Mr. JOHN TAYLOR said he would explain in a few words what he had before 

said. That the plan proposed by the resolutions would not eventuate in war, 

but might in a convention. He did not admit, or contemplate, that a 

convention would be called. He only said, that if Congress, upon being 

addressed to have those laws repealed, should persist, they might, by a 

concurrence of three-fourths of the states, be compelled to call a 

convention. Mr. Taylor further said, that while up he would himself move to 

strike out certain words of the resolutions, if the same were in order; 

which being agreed to without a question taken, Mr. Taylor proceeded to do 

so.



The original resolutions offered by him to the House, and referred to the 

committee of the whole House on the state of the commonwealth, were in the 

following words:



Resolved, As the opinion of this committee, 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, and that it will 

support the government of the United States in all measures warranted by the 

former. 



That this Assembly most solemnly declares a warm attachment to the union of 

the states, to maintain which, it pledges all its powers; and that for this 

end it is its duty to watch over and oppose every infraction of those 

principles, which constitute the only basis of that union, because a 

faithful observance of them can alone secure its existence, and the public 

happiness.



That this Assembly doth explicitly and peremptorily declare that it views 

the powers of the federal government as resulting from the compact, to which 

the states alone 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.



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 constructions of the constitutional charter 

which defines them; 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.



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 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.



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 or 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.



That the good people of this commonwealth having ever felt, and continuing 

to feel the most sincere affection to their brethren of the other states, 

the truest anxiety for establishing and 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 solemnly appeal to the like dispositions of the other states, 

in confidence that they will concur with this commonwealth in declaring, as 

it does hereby declare, that the acts aforesaid are unconstitutional, and 

not law, hut utterly null, void, and of no force or effect, 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 word "alone" in the third clause, and the words "and not law, but 

utterly null, void, and of no force or effect," in the seventh clause, were 

stricken out of the foregoing resolutions.



Mr. John Taylor's resolutions thus amended, being then read by the chairman, 

Mr. Brooke moved to amend the same, by substituting in lieu thereof the 

resolution which he had offered to the committee on Tuesday, the 18th 

instant, and which was then laid upon the table. The question was put 

thereupon, and the amendment disagreed to by the committee. The main 

question was then put on Mr. John Taylor's resolutions as amended by 

himself, and agreed to.



The committee then rose, and Mr. Breckenridge reported, that the committee 

of the whole House on the state of the commonwealth had had the same under 

their consideration, and had come to certain resolutions thereupon, which he 

handed in to the clerk's table, (being Mr. John Taylor's resolutions, as 

above stated, amended and agreed to by the committee.)



General LEE then arose and observed, that although desirous of ending the 

debate, yet wishing, with the gentleman from Amelia, to meliorate the paper 

before them, by striking out some other part of the resolutions, he would 

move an amendment to that effect. He then read the fourth clause of the 

resolutions, and objected to the same as containing assertions which he 

could not believe, and at the same time also a high charge against the 

general government. He therefore moved to strike out that clause.



Mr. BOLLING said, that in order to convince the gentleman from Westmoreland 

of the futility of his proposition, he hoped that no other gentleman would 

disgrace himself, and the wisdom of the House, by gratifying the gentleman 

with a reply on the occasion. He (Mr. Bolling) had arisen, therefore, to 

second the gentleman's motion, and to give him complete satisfaction by 

bringing the question to an end.



Mr. GILES made some remarks in favour of the clause proposed to be stricken 

out. He stated several reasons to show why it should be retained; and 

concluded by expressing his objection to its being stricken out. 



Mr. NICHOLAS hoped the motion made by the gentleman from Westmoreland, for 

expunging the clause in question, would not prevail. Without that clause, it 

was true, he would vote for the resolutions, but his anxiety about them 

would be very much lessened, if it was expunged; for then it would appear, 

that none of the measures of the Federal Government were objected to but the 

alien and sedition-bills. This was not the fact; and it must also be in the 

recollection of many gentlemen in that House, that some of those members who 

were now most loud in support of the measures of which he and his friends 

complained, and who denied with most confidence the right of the Assembly to 

interfere, had themselves upon other occasions acted very differently, and 

justified that interference. One of the gentlemen distinguished himself in a 

particular instance, for which he had his most hearty approbation, as he 

considered it a subject highly interesting to the happiness of his country. 

How gentlemen could reconcile their opinions at past periods, with those 

they supported at this day, it was incumbent upon them to show. Mr. Nicholas 

said, it was with the deepest regret that he reviewed the principal measures 

of the Federal Government, as they appeared to him to tend directly to a 

consolidation of the state governments, which he believed would eventuate in 

monarchy. Upon all questions about the division of power, everything had 

been given to the executive from Congress, everything to Congress from the 

states. The general phrases in the Constitution, which were only intended to 

explain and limit the powers of the general government, have been considered 

as giving powers, thereby destroying the effect of the particular 

enumeration of powers, and of the security derived from the twelfth 

amendment to the Constitution. He would state the particular acts which he 

thought most obnoxious. The first in point of time were the bank and 

assumption laws, for which he could find no authority in the Constitution of 

the United States, and by which the commercial and monied interests of this 

country had been devoted to certain individuals and their theories, and 

concentred a force more powerful and operative than an army of twenty 

thousand men. The British treaty and its effects were so well known to this 

House, that it was unnecessary to dilate upon that subject. The doctrine 

about appropriations of money was so important in its consequences, that it 

merited the most serious attention of the people of America. The 

Constitution declares, that "no money shall be drawn from the treasury but 

in consequence of appropriations made by law;" notwithstanding which, it is 

now contended, that the President may by his single act, bind the Congress 

to make appropriations, whether they deem them proper or not, thereby 

transferring from the representatives of the people to the executive 

magistrate, the command of the national purse. The stamp-act subjects the 

people to an obnoxious and inconvenient tax, and changes already, and may 

change still more hereafter, the system of evidence which the state laws 

required in their own courts. The ultimate effect of this may be to shut up 

the state courts; for it is even contended, that delivery bonds are subject 

to the tax. If this be true, other process may be taxed so highly as may 

amount to a denial of justice: the transferring the important power of 

borrowing money and raising armies, vested by the Constitution in Congress, 

to the President: the utter neglect of the militia: the attempt to render 

them useless and unnecessary, by raising standing armies, and by authorizing 

the President to employ any number of volunteers that he may think proper, 

when the only reason for a preference of volunteers that occurred to him 

was, that the President had the appointment of the officers of those corps, 

whereas the militia officers were appointed by the state governments, 

greatly excited his suspicion. He confessed, his objections to these corps 

had been very much increased since he had seen a letter from the Secretary 

of War,* from which it appeared to him that the design was to arm one part 

of the people against the other. He well remembered, that when the 

Constitution was under discussion, great stress was laid upon this 

circumstance; and it was believed it would give great security to the state 

governments, and to the liberties of the people; but so great a revolution 

had a few years produced, that some gentlemen were willing to abandon 

principles that have been heretofore deemed the most sacred. The conduct of 

the executive in bestowing offices, more in the style of rewards for the 

support of particular measures, than from any regard to the general merits 

of the citizens called to fill them, and upon the same ground removing from 

office every man who ventures to hazard an opinion in opposition to any of 

the measures that have been pursued, necessarily created alarm. He mentioned 

the removal from office of Mr. Tenche Coxe and Mr. Gardiner, in support of 

what he had said, and expressed a fear, that by these means that numerous 

and influential class of citizens, who ought to consider themselves as the 

public servants, might be made the creatures of executive power; and if, 

said Mr. Nicholas, the day should ever come that the office of President 

should devolve upon an ambitious man, public officers might be made the most 

powerful instruments to promote his views. The influence would operate upon 

all those who expect, or want public employment.



Mr. Nicholas then observed, there was another subject, which he felt the 

greatest pain at mentioning. Nothing but its importance and connexion with 

the subject in discussion should induce him to do it. The judiciary 

department of every government should be most pure; there should not be a 

suspicion of a previous bias upon the mind of the judge. Every man who goes 

into a court ought to consider himself as in a sanctuary. The utmost 

ingenuity of man had been exercised to form a judiciary that should be 

beyond the reach of influence. Was the conduct of the judiciary what it 

ought to have been? He had always supposed courts were instituted to 

dispense justice between man and man, between individuals and the society; 

but he feared that facts might be stated from which it might be inferred 

that it was considered by some that there were other objects, such as the 

propagating of particular opinions; that there was united in the same man, 

the duties of a missionary and of a judge. He said this point of his 

argument was so disagreeable to him, that he



* Extract of a letter from the Secretary of War to an officer of high rank 

in the militia of Virginia, who had communicated the wish of several 

volunteer companies to tender their services.



"It being deemed important not to accept of companies composed of 

disaffected persons, who might from improper motives be desirous to intrude 

themselves into the army under pretence of patriotic association, it will be 

proper certificates from prominent and known characters, setting forth the 

principles of the associates, those of the officers elect, -- -- -- 

especially; and that the company hare complied with the prerequisite 

condition of the law, be also presented."



would not dwell upon it, but would dismiss it with a declaration that he 

felt great pleasure in saying that there were judges to whom he had never 

heard extra-judicial interference in political matters attributed. Mr. 

Nicholas observed, that thinking of the measures that he had stated as he 

did, he could not consent to expunge the clause. Indeed, if he did not give 

his full assent to what was stated in that clause, he would have been 

willing to confine the efforts of the House to procure the repeal of the 

alien and sedition-bills. But considering these as a part of a system that 

brought into jeopardy the dearest interests of his country, he thought it 

was their duty to represent to the other states the whole ground of the 

public uneasiness. As to the alien and sedition-laws, he had intended at an 

earlier part of the debate to have made some observations, but other 

gentlemen on the same side with himself, had expressed his opinions better 

than he could have done. He would therefore only say that he considered them 

as unconstitutional, and that if the principle was once established that 

Congress have a right to make such laws, the tenure by which we hold our 

liberty would be entirely subverted. Instead of rights independent of human 

control, we must be content to hold by the courtesy and forbearance of those 

whom we have heretofore considered as the servants of the people. Mr. 

Nicholas said he had been a member of the convention that adopted the 

Constitution; that he had been uniformly a friend to it; that he considered 

himself as now acting in support of it; that he knew it was the artifice of 

those on the other side to endeavour to attach a suspicion of hostility to 

the government to those who differed with them in opinion. For his part, he 

despised such insinuations, as far as they might be levelled at him. He 

appealed to his past life, and to his situation for his justification. Upon 

what gentlemen's claim to exclusive patriotism was founded, he was yet to 

learn. The friends of the resolutions yielded to none in disinterested 

attachment to their country, to the Constitution of the United States, to 

union, and to liberty. The conduct and the motives of all would be judged of 

by the people of this country, to whom they were all known. Mr. Nicholas had 

full confidence that the amendment would be rejected, and the resolutions 

without further alteration, would meet the approbation of a great majority 

of that House.



General LEE said, that he wished to refute the observations of the gentleman 

last up, in favour of retaining the clause. (He was proceeding to do so, 

when he was interrupted by Mr. Nicholas, who observed that the gentleman had 

misunderstood him, and then declared in substance what he had before 

actually said.)



After such explanation, General Lee proceeded to justify the measures of the 

General Government in respect to the removal of persons from office. As to 

Mr. Coxe, as far as he could recollect the circumstances of his conduct, he 

thought his removal proper. And as to Mr. Gardiner, he confessed it was a 

case with which he was quite unacquainted. In respect to the judiciary being 

forward in delivering their opinions on public measures, he would observe 

that the state judges had done, and still did the same. He blamed them not 

for it. For the appointment of men as judges did not deprive them of their 

rights as citizens. But nothing of this kind, he said, would prove the 

propriety of the clause proposed to be stricken out.



General Lee then observed, that he considered the argument of the gentleman 

from Amelia, in respect to the connexion between the alien-law, and the law 

concerning volunteers, weak. For his army of aliens being soldiers by 

compulsion, would turn against the President, instead of assisting him. The 

gentleman, too, had called in question the ends which the government had in 

view in raising an army and navy. General Lee proceeded to answer the 

objections upon that head, by pointing out those ends. As to the alien and 

sedition-laws, he contended that the only real view in passing them, was to 

protect us from foreign invasion. He denied that there was an inclination in 

the General Government to crush a party. The construction placed by the 

gentleman from Amelia, upon the President's answer to the address of the 

people of Bath was erroneous. General Lee then read part of that answer, and 

placed a different construction upon the expressions which it contained. He 

conceived the President's meaning only to be, that it depended upon Virginia 

to say whether or not there was a party in the United States to be crushed, 

&c.; not positively asserting on his part, that there was such a party.



General Lee then observed, that if the people could govern themselves, how 

could that be done but by obedience to the laws? Their freedom could not be 

preserved by any other mode. For if the principle of obeying the will of the 

majority was once destroyed, it would prostrate all free government. But the 

gentleman from Amelia had considered himself as one of the party to be 

crushed, alluded to by the President. He (General Lee) was surprised at such 

an idea. That gentleman had committed no crime. He had for some time before, 

been honoured with a seat in Congress. And there, although he had generally 

been in a minority, yet it was nothing more than the situation in which he 

(General Lee) had often been placed here. In neither was there any 

criminality. A difference, it was true, did exist between these cases; and 

he derived consolation from reflecting, that though he himself was in a 

minority here, he was still in a majority with that body which properly had 

the determination of national matters. He concluded with hoping that the 

amendment would prevail.



Mr. TYLER arose next, and said that an able general would fight and struggle 

to the last. When driven from one stronghold, he would retreat to another; 

and finding himself no longer able to oppose superior numbers, he would 

attempt to divide his enemy. Mr. Tyler believed the plan on the present 

occasion, was to divide the republican members, but he hoped the gentleman's 

plan would not succeed; and that the clause would be retained. He thought it 

contained solemn truths. He doubted not but that many of the measures of the 

General Government had a tendency to monarchy, absolute or limited. These 

measures had been pointed out by the gentleman from Albemarle. He would 

however state them over again. Mr. Tyler did so. He particularly relied on 

the growing influence of the executive, and the probability of an alliance 

with a corrupt monarchy, and an open rupture with a republic, which he said 

had been openly advocated by gentlemen of high character. He inquired what 

had been the effects of executive influence in Great Britain? He said, that 

by the revolution of 1688, and by several statutes of Parliament passed 

about that time, many of the great rights of the people, and the principles 

of freedom had been established; but that it might, at this time, be well 

doubted if the people were more free than they were before the revolution. 

This was to be ascribed to the immense influence of the crown, which had 

three millions at disposal. He demanded what other cause had prevented a 

reform in Parliament, upwards of three hundred of whose members were chosen 

by a fewer number of electors. He asked if there was not some similitude 

between the systems pursued by our administration, and that of Great 

Britain? He said that the people of Great Britain were clamorous for peace, 

and Lord Malmesbury was sent to make peace; but he returned, and made no 

peace. He would not follow the comparison. Our fears, he said, had been 

assailed. He inquired whom were we to fear? He feared no man, and no 

measure, but that of offending the people; and he believed that the people 

were never offended at any effort to maintain their rights, or to protect 

their liberties. The gentleman from Westmoreland had said, that the gentleman 

from Amelia could not consider himself as one of the party to be crushed, 

and had asked what crime that gentleman had committed. Mr. Tyler said, that 

the gentleman from Amelia had committed a crime; the crime of differing in 

opinion with the administrators of the government. This was the crime that 

had incarcerated Mr. Lyon. He asked what prospect have we of a change of 

these measures, which he viewed as the harbingers, the forerunners of 

monarchy, either limited or absolute. Were we not told that they must have 

more men, and a little more money; augment our standing army, and increase 

our navy; and force the construction of the Constitution to warrant alien 

and sedition-bills? Mr. Tyler concluded by hoping that the clause would be 

retained. He believed it contained the truth, and was very important; and 

thought that the people of Virginia called for some such measure.







____________



Mr. John Taylor's resolutions, as amended, agreed to by the

Committee, and reported to the House (ante, p. 149-50), being read

the second time, a motion was made, and the question being put, to

amend the same by expunging from them the fourth clause in the

following words:



"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 constructions of the

constitutional charter which defines them; 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."



It passed in the negative, ayes 68 -- noes 96.



On a motion made by General Lee, seconded by Mr. Bolling,

ordered,



that the names of the ayes and noes on the foregoing question be

inserted in the journal.



The names of those who voted in the affirmative, are Messrs. Bailey,

Ware, Anderson, Porterfield, Poage, White, Otey, Logwood, Tate,

Baker, Breckenridge, M'Guire, Moorman, Spencer, Bedford,

Harrison, Herbert, Magill, Bynum, Reives, John Mathews, Cavendish,

Royal, Snyder, King, Fisher, Simons, Godwin, Young, Richard

Corbin, Thomas Lewis, Turner, Wallace, Pollard, Gregory, Powell,

Clapham, Cowan, Evans, Ingles, James Taylor, Watkins, Upshur,

Darby, Claughton, Clarke, Divan, Cure-ton, George K. Taylor,

Brooke, Robinson, Ellegood, M'Coy, Coonrod, Wilson, Glasscock,

Caruthers, Andrew Alexander, Davis, Charles Lewis, Blow, Booth,

Lee, Bradley, Drope, Crockett, Griffin, Andrews -- 68.



And the names of those who voted in the negative, are Messrs. Cabell,

Nicholas, Walker, Giles, Fletcher, Bolling, William Allen, Colwell,

Perrow, John Taylor, Buckner, Tyler, Cheatham, Thomas A. Taylor,

Daniel, Roberts, Shackelford, Peterson Goodwyn, Pegram, Booker,

Daingerfield, Webb, Jennings, Horner, Haden, Payne, Greer,

Benjamin Cooke, Hall, Pleasants, Heath I. Miller, Jones, M'Kinzie,

Starke, Thompson, Jackson, Prunty, Selden, Price, Martin, Redd,

John Allen, Tazewell, Shearman, Joseph Carter, Callis, Meriwether,

Chadwell, Francis Eppes, Hudgins, Litchfield, Roebuck, Hill, Nelson,

Mark Alexander, Segar, Richard H. Corbin, Scott, Butt, James S.

Mathews, Willis Riddick, Josiah Riddick, Semple, Hurst, Freeman

Eppes, Dupuy, M'Kinley, Barbour, Wright, Moseley, Woodson,

Purnall, Johnston, Pope, Rentfro, William Carter, Hadden, Barnes,

Cockrell, Browning, Gatewood, Dulaney, Mercer, Stannard,

Nathaniel Fox, John Fox, Faulcon, Seward, Mason, Cary, Burn-ham,

Hungerford, Meek, Shield, Foushee, Newton -- 96.



A motion was then made, and the question being put, to amend the

said resolutions, by striking out from the word "Resolved," to the end

of the same, and inserting in lieu thereof the following words:



" That as it is established by the Constitution of the United States, that

the people thereof have a right to assemble peaceably, and to petition

the government for a redress of grievances, it therefore appears

properly to belong to the people themselves to petition, when they

consider their rights to be invaded by any acts of the general

government; and it should be left to them, if they conceive the laws

lately passed by the Congress of the United States, commonly called

the 'alien and sedition-laws,' to be unconstitutional, or an invasion of

their rights, to petition for a repeal of the said laws."



It also passed in the negative, ayes 60 -- noes 104.



On a motion made by Mr. Brooke, seconded by Mr. Griffin,

ordered, that the names of the ayes and noes on the foregoing question

be inserted in the journal.



The names of those who voted in the affirmative, are Messrs. Bailey,

Ware, Anderson, Porterfield, Poage, White, Otey, Logwood, Tate,

Baker, Breckenridge, M'Guire, Moorman, Spencer, Herbert, Magill,

Bynum, Reives, J. Mathews, Cavendish, Royall, Snyder, King, Fisher,

Simons, Nelson, Evans, Ingles, Jas. Taylor, Watkins, Upshur, Darby,

Clarke, Divan, Cureton, George K. Taylor, Brooke, Robinson,

Ellegood, M'Coy,



Coonrod, Wilson, Davis, Charles Lewis, Blow, Booth, Lee, Bradley,

Drope, Crockett, Griffin, Andrews, Godwin, Thomas Lewis, Turner,

Wallace, Pollard, Powell, Clapham, Cowan -- 60.



And the names of those who voted in the negative, are Messrs. Cabell,

Nicholas, Walker, Giles, Fletcher, Bolling, William Allen, Colwell,

Perrow, John Taylor, Buckner, Bedford, Harrison, Tyler, Cheatham,

Thomas A. Taylor, Daniel, Roberts, Shackelford, Peterson Goodwyn,

Pegram, Booker, Daingerfield, Webb, Jennings, Horner, Haden,

Payne, Greer, Benjamin Cooke, Hall, Pleasants, Heath I. Miller,

Jones, M'Kinzie, Starke, Thompson, Jackson, Prunty, Selden, Price,

Martin, Redd, John Allen, Tazewell, Young, Richard Corbin, Gregory,

Shearman, Joseph Carter, Callis, Meriwether, Chadwell, Francis

Eppes, Hudgins, Litchfield, Roebuck, Hill, Marke Alexander, Segar,

Richard H. Corbin, Scott, Butt, James S. Mathews, W. Riddick, J.

Riddick, Semple, Hurst, Claughton, Freeman Eppes, Dupuy,

M'Kinley, Barbour, Wright, Moseley, Woodson, Purnall, Johnston,

Pope, Rentfro, William Carter, Hadden, Barnes, Glass-cock,

Caruthers, Andrew Alexander, Cockrell, Browning, Gatewood,

Dulaney, Mercer, Stannard, Nathaniel Pox, John Fox, Faulcon,

Seward, Mason, Cary, Burnham, Hungerford, Meek, Shield,

Foushee, Newton -- 104.



And then the main question being put, that the House do agree with the

committee of the whole House in the resolutions as reported, It passed

in the affirmative, ayes 100 -- noes 63. On a motion made by Mr.

John Taylor, seconded by Mr. Nicholas, ordered, that the names of

the ayes and noes on the foregoing question be inserted in the journal.



The names of those who voted in the affirmative, are Messrs. Cabell,

Nicholas, Walker, Giles, Fletcher, Boiling, William Allen, Colwell,

Perrow, John Taylor, Buckner, Harrison, Tyler, Cheatham, Thomas

A. Taylor, Daniel, Roberts, Shackelford, P. Goodwyn, Pegram,

Booker, Daingerfield, Webb, Jennings, Horner, Haden, Payne, Greer,

Benjamin Cooke, Hall, Pleasants, Heath I. Miller, Jones, M'Kinzie,

Starke, Thompson, Jackson, Prunty, Selden, Price, Martin, Redd,

John Allen, Tazewell, Young, Richard Corbin, Gregory, Shearman,

Joseph Carter, Callis, Meriwether, Chadwell, Francis Eppes, Hudgins,

Litchfield, Roebuck, Hill, Mark Alexander, Segar, Richard H. Corbin,

Scott, Butt, James S. Mathews, W. Riddick, J. Riddick, Semple,

Hurst, Claughton, Freeman Eppes, Dupuy, M'Kinley, Barbour,

Wright, Moseley, Woodson, Purnall, Johnston, Pope, Rentfro, William

Carter, Hadden, Glasscock, Cockrell, Browning, Gatewood, Dulaney,

Mercer, Stannard, Nathaniel Fox, John Fox, Faulcon, Seward,

Mason, Cary, Burnham, Hungerford, Meek, Shield, Foushee, Newton

-- 100.



And the names of those who voted in the negative are Messrs. Bailey,

Ware, Anderson, Porterfield, Poage, White, Otey, Logwood, Tate,

Baker, Breckenridge, M'Guire, Moorman, Spencer, Bedford,

Herbert, Magill, Bynum, Reives, John Matthews, Cavendish, Snyder,

King, Fisher, Simons, Godwin, Thomas Lewis, Turner, Wallace,

Pollard, William Clarke, Royall, Powell, Clapham, Cowan, Nelson,

Evans, Ingles, James Taylor, Watkins, Upshur, Darby, Divan,

Cureton, George K. Taylor,



Brooke, Robinson, Ellegood, M'Coy, Coonrod, Wilson, Caruthers,

Andrew Alexander, Davis, Charles Lewis, Blow, Booth, Lee,

Bradley, Drope, Crockett, Griffin, and Andrews -- 63.



The House then ordered that the clerk do carry the said resolutions to

the Senate for their concurrence.



IN SENATE, Monday, December 24, 1798.



The House, according to the order of the day, resolved itself into a

committee of the whole House, on the resolutions of the House of

Delegates, concerning certain acts of the Congress of the United

States, passed at their last session; and after some time spent therein,

Mr. Speaker resumed the chair, and Mr. Preston reported that the

committee had, according to order, taken the said resolutions under

their consideration, and had gone through the same, and had directed

him to report the same without any amendment.



A motion was then made to amend the fifth resolution, by striking out

the words "two late cases of the alien and," and on the question to

agree to the same,



It passed in the negative -- Ayes 5, Noes 12. The ayes and noes

were required on the above question. Ayes -- Burwell Bassett,

Francis Peyton, Benjamin Temple, John Haymond, John Eyre -- 5.



Noes -- Creed Taylor, Richard Kennon, Thomas Royster, Archibald

Stewart, French Strother, Hugh Holmes, George Carrington, John

Preston, John Hoomes, Thomas Newton, Nicholas Cabell, George

Penn -- 12.



And then the main question being put, that the House do agree to the

said resolutions,



It was resolved in the affirmative. Ayes 14, Noes 3. Ordered, That the

clerk do acquaint the House of Delegates therewith. On the above

question the ayes and noes were required. Ayes -- Creed Taylor,

Richard Kennon, Burwell Bassett, Thomas Royster, Archibald

Stewart, French Strother, Hugh Holmes, George Carrington, John

Preston, John Hoomes, Benjamin Temple, Thomas Newton, Nicholas

Cabell, George Penn -- 14.



Noes -- Francis Peyton, John Haymond, John Eyre -- 3.





____________



The General Assembly, when these resolutions were adopted,

consisted of the following persons: -- the federalists' names being in

italics.



HOUSE OF DELEGATES.



ACCOMAC. John Wise, Thomas M. Bailey.



AMHERST.



Wm. H. Cabell, Wm. Ware.



AUGUSTA.



Andrew Anderson, Robert Porterfield.



ALBEMARLE.



Wilson C. Nicholas, Succeeded Jan. 28, 1799, by Wm. Woods,

Francis Walker. 



AMELIA. Alex. Jones, Succeeded 17th Dec. 1799, by Joshua

Chaffin, Wm. B. Giles.



BATH.



George Poage, John White.



BEDFORD.



Isaac Otey, Thos. Logwood.



BERKELEY.



Magnus Tate, John Baker.



BOTETOURT.



James Breckenridge, John Miller.



BRUNSWICK. James Fletcher, Wm. Ruffin.



BUCKINGHAM.



Powhatan Bolling. Wm. Allen.



BROOKE.



Francis M'Guire, Robert Calwell.



CAMPBELL.



Daniel B. Perrow, Achilles Moorman.



CAROLINE.



John Taylor, George Buckner.



CHARLOTTE.



Gideon Spencer, Robert Bedford,



CHARLES CITY.



Collier Harrison, Samuel Tyler.



CHESTERFIELD.



Matthew Cheatham, Th. Augustus Taylor.



CUMBERLAND.



John Hatcher, Wm. Daniel, Jr. CULPEPER.



John Roberts,



John Shackelford, Jr.



DINWIDDIE. Peterson Goodwin, John Pegram, Jr.



ELIZABETH CITY.



George Booker, W. Westwood.



ESSEX.



John Daingerfield, James Webb.



FAIRFAX. Roger West,



(did not attend.) John Carlyle Herbert. FAUQUIER. Augustine

Jennings, Gustavus B. Horner,



FLUVANNA.



Joseph Haden, James Payne,



FREDERICK.



Archd. Magill, Lewis Wolfe.



FRANKLIN.



Moses Greer, Benj. Cooke.



GREENSVILLE.



Turner Bynum. Nathanl. Reives.



GLOUCESTER.



Mordecai Cooke, Wm. Hall.



GOOCHLAND.



James Pleasants, Jr. Heath T. Miller.



GREENBRIAR.



John Mathews, Wm. H. Cavendish.



GRAYSON.



Minitree Jones, Greenberry G. M'Kinzie.



HALIFAX. Wm. Royall, Richard Howson.



HAMPSHIRE.



John Snyder, Alex. King.



HANOVER.



Thomas Starke. John Thompson.



HARRISON. John G. Jackson, John Prunty.



HARDY.



Jacob Fisher, Christian Simons. HENRICO.



Miles Selden,



Wm. Price.



HENRY.



Joseph Martin, John Redd.



ISLE OF WIGHT.



Josiah Godwin, Thomas Whitefield, Succeeded Jan. 2, 1799, by

James Johnston.



JAMES CITY,



John Allen, Littleton W. Tazewell,



KING AND QUEEN.



Henry Young, Richard Corbin,



KANAWHA.



Wm. Morris, Jr., Thos. Lewis.



KING GEORGE.



Thos. Turner, Gustavus B. Wallace.



KING WILLIAM.



Robt. Pollard, Wm. Gregory.



LANCASTER.



Martin Shearman, Joseph Carter.



LOUDOUN. Burr Powell, Saml. Clapham.



LOUISA. Wm. O. Callis, Thomas Meriwether.



LEE.



David Chadwell, Charles Cooke.



LUNENBURG.



Francis Epes, Wm. Cowan,



MATTHEWS.



Holden Hudgins, Zadock Litchfield.



MADISON.



Robert Roebuck, Henry Hill.



MECKLENBURG.



John Nelson, Mark Alexander.



MIDDLESEX.



Wm. Segar, Richard H. Corbin.



MONONGALIA.