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 f