IN THE HOUSE OF DELEGATES,
Saturday, December 15, 1798.
The House resolved itself into a committee of the whole House, on the state of the commonwealth, Mr. Brackenridge in the chair, when Mr. John Taylor's resolutions being still under consideration,
Mr. MERCER arose and said, that he felt great difficulty in prevailing upon himself to fake a part in the very interesting discussion which had arisen, and would probably be continued, upon the resolutions submitted to the committee. This difficulty was produced, not by any want of confidence in the rectitude of the opinion which he entertained, or in the purity of the motives that would ultimately direct his vote. On the one hand, he was deeply impressed with the importance of the subject; on the other, he felt and acknowledged his own inability to do justice to its merits; but, in proportion to the magnitude of the question, was his solicitude to explain the principles upon which his opinion was formed. The manner in which the laws complained of had been defended here, and elsewhere, was to his mind more alarming than the laws themselves. It showed that gentlemen were ready to defend, not only existing violations of the federal Constitution, but any infractions which might hereafter be committed upon it. For, if the opinions which the gentleman from Prince George submitted to the committee yesterday, be correct, the nature of that Constitution was changed. It was not what the people and states understood it to be at the time of its ratification. Its powers were enlarged to a dangerous extent. It could no longer be considered as producing a confederation, but certainly established a consolidated government.
Every question, Mr. Mercer said, which related to the respective powers of the state and general government, was, in itself, of magnitude sufficient to engage the whole attention of gentlemen who were desirous of preserving to each its proper powers, and to maintain that entire independence which belongs to each, and which each had a right to enjoy. He was, therefore, surprised, when he heard the member from Prince George, yesterday, calling the attention of the committee to subjects, which, however interesting in themselves, could not be supposed to have the most remote connexion with the resolutions upon the table. Those, said Mr. Mercer, embrace several constitutional questions, which ought to be considered by themselves; they point out a plan by which the friends of the paper believe. a repeal of the supposed unconstitutional acts would be most readily obtained. It was a solemn appeal to the understanding of the committee; yet, the injuries of France to America, her excesses in Europe, always magnified and misrepresented by the enemies of freedom in every quarter of the world, and the misfortunes of St. Domingo, had been pressed with considerable force by that same gentleman. This effort, Mr. Mercer said, had been practised with great effect in the community. It was scarcely possible to consider the measures of our own government, and candidly to examine their influence upon the public happiness, without being subject to the imputation of an undue attachment to a foreign power. He rejoiced in knowing, that as long as the charge had existed, and as often as it had been repeated, not a single instance had been produced throughout America, by which it could be supported. It was used as the apology for a system of measures which could not have been adopted, without receiving the universal disapprobation of all who have a knowledge of the principles of the federal Constitution, and of the clear limitation of power contained in that instrument. For his part, he did not see how a view of the insults offered to America by France, could decide the merit of the resolutions. He hoped the committee were ready to repel the former, as well as to consider the latter. To preserve the Constitution, was to preserve the union; and to maintain that, upon the principles upon which it was originally formed, was to bid defiance to every foreign power, whose conduct might be hostile to the independence and rights of our country.
The gentleman from Prince George had told the committee that the resolutions introduced by the gentleman from Caroline were calculated to rouse the people to resistance, to excite the people of Virginia against the could result from their adoption. They contained nothing more than the federal government. Mr. Mercer did not see how such consequences sentiments which the people in many parts of the state had expressed, and which had been conveyed to the legislature in their memorials and resolutions then lying upon the table. He would venture to say, that an attention to the resolutions before the committee would prove that the qualities attempted to be attached to them by the gentleman could not be found. He begged leave to read the first and second clause, in which it is declared, "that the General Assembly doth unequivocally express a firm resolution to maintain and defend the Constitution of the United States, and the constitution of this state; and that they will support the government of the United States in all measures warranted by the former," and to maintain the union, "it pledges all its powers." Language less calculated to rouse resentment could not be used: nor were the resolutions addressed to the people, and if they were, Mr. Mercer said they would not have been objected to by him on that ground. If the people were not to be confided in, we were wretched indeed. In whom were we to confide, if not in the people? In their virtue and patriotism were all his hopes placed. The history of government had been the history of crime and usurpation. In the purity of administration he could not solely confide. The people were the best, and the only defenders of their liberties; when they became ignorant of the proceedings of their own governments; when public virtue should cease to be their ruling principle, their liberties would experience the same fate, which those of other nations had undergone: power would stand in the place of the Constitution. He hoped no arguments derived from the probable consequences upon the people of adopting the resolutions, would prevent the judgment of the committee from being calmly exercised upon them.
The right of the state government to interfere in the manner proposed by the resolutions, Mr. Mercer contended, was clear to his mind. He asked, what were the rights belonging to the state governments prior to the existence of the federal Constitution? They were those which belong to all sovereign and independent states. They were perfect and complete. The federal Constitution derived its powers from the people and the states, and could give none but what had been previously in the possession of the states or the people, and by them delegated to the general government. It would not be said, that all power was delegated to the general government; though it had indeed been improperly said, as he should attempt to show before he took his seat, that the powers of the federal government were general. He should attempt to show they were special, and that none but what were specially delegated could be exercised. It appeared to him, that, from the operation of the two separate governments in the same community, there resulted three species of rights to be exercised. There were rights which the " federal government could exclusively exercise, without any interference on the part of the state government; there were rights which could be exercised by each government at the same rime, and there were rights which belonged exclusively to the state government. The latter embraced all which had not been delegated in the federal Constitution to the general government, or prohibited to the states by that instrument. That portion of power which had been delegated to the federal government, did not affect the sovereignty of the states" over the reserved rights; that sovereignty continued entire; and remained as to the reserved rights, what it had been with respect to all the rights, before the federal Constitution. If the remaining rights are sovereign, the states whose sovereignty is invaded by any act of the general government have it as fully in their power to defend and protect these, as they would have had to defend any of their rights if attacked by a foreign power, before the general government had a being. The state believed some of its rights had been invaded by the late acts of the general government, and proposed a remedy whereby to obtain a repeal of them. The plan contained in the resolutions appeared to Mr. Mercer the most advisable. Force was not thought of by any one. The preservation of the federal Constitution, the cement of the Union with its original powers, was the object of the resolutions. The states were equally concerned, as their rights had been equally invaded; and nothing seemed more likely to produce a temper in Congress for a repeal, than a declaration similar to the one before the committee, made by a majority of states, or by several of them. The states had the power of communicating together in producing amendments to the federal Constitution. A proposition for this purpose had been presented to the legislature, during the present session, from the state of Massachusetts, and would be acted upon before their adjournment. It appeared strange that the states might communicate together to amend the Constitution, and were not permitted to do so, in order to protect the same when amended; that they might communicate together when they chose to give away their rights, but could not do it when their reserved rights were invaded. The reverse of this Mr. Mercer was happy in believing was true. The opinion contained in the resolutions was coeval with the Constitution itself, and had been maintained by the most enlightened commentary which had been produced in America upon that instrument (he alluded to a collection of papers written under the signature of Publius, in the state of New York), when the Constitution was under consideration, and generally known by the name of the Federalist. The union of talents exercised in the production of this work had justly entitled it to the attention of every American who is anxious to know the true meaning of the federal Constitution, and the real intent of its powers; and though some of its opinions may be erroneous, it was still the best authority that could be produced. The time of its being written was extremely favourable to the impartiality of its sentiments, as that vindictive party spirit which had now so unhappily extended its baneful influence to almost every individual in the community, could not have affected its supposed authors, one of whose merits had so justly been resounded a few days ago from every side of this house. This authority, when speaking of the checks which the state governments would always have upon the general government, and of the little probability of the latter engrossing powers unobserved, uses the following strong and decided language: "If the majority (in the general government) should be really disposed to exceed the proper limits, the community will be warned of the danger, and will have an opportunity of taking measures to guard against it. Independent of parties in the national legislature itself, as often as the period of discussion arrived, the state legislatures, who will always be not only vigilant, but suspicious and jealous guardians of the rights of the citizens against encroachments from the federal government, will constantly have their attention awake to the conduct of the national rulers, and will be ready enough, if anything improper appears, to sound the alarm to the people, and not only to be the voice, but, if necessary, the arm of their discontent:" vol. 1st, page 166. Their sentiments embraced the plan proposed in the resolutions. They spoke a language much stronger than any which these would be found to contain. We do not wish, said Mr. Mercer, to be the arm of the people's discontent, but to use their voice. The same authority has maintained the right of the states to interfere in the manner expressed in the resolutions submitted to the committee, in terms still more applicable. "It may safely be received as an axiom in our political system, that the state governments will, in all possible contingencies afford complete security against invasion of the public liberty by the national authority. Projects of usurpation cannot be masked under pretences so likely to escape the penetration of select bodies of men, as of the people at large. The legislatures will have better means of information. They can discover the danger at a distance; and possessing all the organs of civil power, and confidence of the people, they can at once adopt a regular plan of opposition, in which they can combine all the resources of the community. They can readily communicate with each other in the different states; and unite their common forces for the protection of their common liberty:" vol. 1st, page 176. Here, said Mr. Mercer, we see the opinion of the resolutions so clearly admitted, as to be considered a "political axiom in our system." The right of two different states "to communicate with each other," is here supported by the best defence which the federal Constitution ever received; not only this right is defended, but were the states to "adopt a regular plan of opposition, in which they should combine all their resources," this authority, addressed to the people at the time the Constitution was under consideration, would justify the measure. But no such wish was entertained by the friends of the resolutions. Their object in addressing the states is to obtain a similar declaration of opinion with respect to several late acts of the general government, which seem to violate some of the most invaluable rights secured by the charter of their own existence; and thereby to obtain a repeal of measures unconstitutional in their nature, and hateful in their tendency; measures so justly obnoxious to the people, that they would have found few advocates, but for the vain pretence of their being necessary to defend us against the attempts of France; measures that have divided the community at a moment when union of sentiment is ardently to be wished for by every friend to the interest of his country.
The gentleman from Prince George had introduced the opinions of a learned writer upon the law of nations, to prove which were the rights of aliens. Though, Mr. Mercer did not believe this class of men stood, in a foreign country, upon the narrow ground in which it was attempted to place them, yet, he deemed it entirely unnecessary to inquire what was the nature and extent of their rights; he should contend that the federal government possessed no power over aliens in time of peace; and, therefore, whatever power a sovereign state could exercise with respect to them, under the general law of nations, that power belonged to the state, and not to the general government; the rights of sovereignty did not attach to the federal government in all their extent: it was sovereign only with respect to the rights which it could exercise exclusively: it was limited in its operation, and the boundaries of its authority clearly ascertained; unless, therefore, this power over aliens should be found vested in the general government by the terms of the Constitution, he could not admit it to be derived from implication, or from any general clause in that instrument. Implication would lead us into an endless discussion. The plain sense and meaning of the Constitution should be our guide. In some part of the gentleman's argument he admitted the limited powers of the Constitution; in others he certainly advanced opinions destructive of that limitation. To show that the powers under the Constitution were limited and special, Mr. Mercer, begged leave to refer to the Constitution itself. In the eighth section and first article, there was found a special enumeration of powers; most of the great powers of Congress were here particularly denned. Those which they had a right to exercise, and which were not in this section, were as clearly ascertained in other parts of the instrument: why was this cautious enumeration of powers necessary, except to keep Congress within the strict and literal meaning of the Constitution, and to prevent the assumption of power under any genera] clause? It was intended to prevent them from exercising any power, but what was given. If opinions cotemporaneous with the original discussion of the Constitution in Virginia, can serve us in ascertaining its true meaning, (and they certainly ought,) he would refer gentlemen to the debates in the Convention of this state. The opponents of the Constitution were apprehensive, that by implication, or some general phrases, Congress might assume powers not intended to be conveyed. The advocates of that paper declared, in every day's debate, that these apprehensions were without foundation: that the language was so clear and its powers so well defined, that none could be exercised under it by implication, or that was not found upon its face. Though the evidence of every member who wished the Constitution ratified, might be produced upon this subject, he would mention the opinions of only two gentlemen belonging to that body. "Mr. John Marshall asked if gentlemen were serious when they asserted that if the state governments had power to interfere with the militia, it was by implication. If they were, he asked the committee whether the least attention would not show they were mistaken: each government was to act according to the powers given it. Would any gentleman deny this? He demanded if powers not given were retained by implication? Could any man say so? Could any man say, that this power was not retained by the states, as they had not given it away? For, does not a power remain till it is given away? The state legislatures had power to command and govern their militia before, and have it still, undeniably, unless there be something in this Constitution that takes it away." Though the limited powers of the Constitution were in this opinion insisted on, there was still higher authority. It was the instrument of ratification adopted in the Convention of Virginia, which had been mentioned by the gentleman from Caroline. It contained the opinion of the Convention, and declares, "that every power not granted, remains with the people and at their will: that, therefore, no right of any denomination, can be cancelled, abridged, restrained, or modified, by the Congress, by the Senate, or House of Representatives, acting in any capacity, by the President or any department or officer of the United States, except in those instances in which power is given by the Constitution for those purposes; and that, among other essential rights, the liberty of conscience and of the press, cannot be cancelled, abridged, restrained or modified, by any authority of the United States." We see what was the opinion of the State of Virginia, with respect to the powers of the Constitution, when she was called upon to ratify or reject it. But, to remove all doubts, immediately upon its going into operation, certain amendments were made, among which is the following: " The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states, respectively, or to the people." This amendment, now a part of the Constitution, ought to fix the real extent of the powers of Congress. But, the gentleman was not satisfied with it, because the word expressly, was not to be found there. Mr. Mercer hoped the committee would not believe this single term essential to ascertain the limitation of power under which Congress were bound to act. The words of the amendment were general, and conveyed a certain meaning. It was that which the face of the Constitution, in its original form, would warrant, which cotemporaneous opinions had maintained, and which the Convention of Virginia had declared to be true. It was impossible for language to be so explicit as to produce a clause that might not be subject to similar objections; for, if this term had been used in the amendment, gentlemen might have thought it still defective, as others equally strong might have been left out. He therefore supposed, as these evidences ascertained the power of the Federal Constitution to be special, and as no power over aliens, such as has been exercised by Congress, in the law so generally obnoxious, had been, or in his opinion, could be shown to exist in that body, the law itself must be considered repugnant to the Constitution, and as invading the rights of the states.
Many of the remarks of the gentleman from Prince George, were intended to show the expediency of the taw, and the inconveniences that might arise from the want of the power in Congress to pass it. Mr. Mercer considered these remarks entirely foreign from the inquiry before the committee. The only question ought to be, whether it was constitutional or not: if it was not, in his opinion, a violation of the Constitution, which ought to be held sacred, he declared that he would not at this time thus publicly deny its expediency. But there would be no period so critical, as to justify silence upon a departure from the Constitution. It might be believed, that temporary advantages would result; but permanent evil would be the certain consequence: for, if there was a maxim in American politics, it must be, that no law could bo expedient, which was unconstitutional. If it was found inconvenient that Congress had not this power, the remedy was plain: perhaps it was the best feature in the instrument that pointed out the manner in which itself could be amended. It did not consider the present provisions in it as the unalterable effort of the best reason, but left them to the operation of time and experience, by which their defects might be unfolded: when these appeared, the remedy was in amending the Constitution, and not in usurping powers by constructions, so highly forced, as to leave its meaning entirely uncertain; and to lay the foundation for administering the government upon principles unacknowledged by the Constitution, and unknown to the states and the people at the time of its adoption. But the gentleman had supposed, that under the aid of necessary implication, Congress possessed the power of passing the alien friend law; and made his appeal to the last clause in the eighth section, which said, that Congress should have the power "to make all laws which shall be necessary and proper to carry into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof." Mr. Mercer said, this clause had been called in the Convention of Virginia, by the opponents of the Constitution, the sweeping clause. But it was evident, it referred only to the powers expressly "vested" in Congress by the Constitution. It could give no new power. It would be absurd to suppose, that after a special enumeration of powers, limited by the terms of the grant, that any general expressions could so operate, as to produce an increase of authority. It had not been shown to his satisfaction how the law complained of, was "to carry into execution" any power vested by the Constitution "in the government of the United States, or in any department or officer thereof." Under the construction that had been given to it, it involved new powers, nowhere to be found delegated in that instrument : for the true exposition of this clause, he would now refer to the opinion of the other gentleman in the Convention, to whom he had alluded. Mr. Madison, speaking of this clause, said, "It is only superfluity. If that latitude of construction, which he (Mr. Henry) contends for, were to take place, with respect to the sweeping clause, there would be room for those horrors. But it gives no supplementary power. It enables them to execute the delegated powers. It is at most explanatory; for when any power is given, its delegation necessarily involves authority to make laws to execute it."
"With respect to the supposed operation of what was denominated the sweeping clause, the gentleman, he said, was mistaken; for, it only extended to the enumerated powers. Should Congress attempt to extend it to any power not enumerated, it would not be warranted by the clause." This opinion must be considered as the just one. It had been maintained by the writer which he had cited, the Federalist. The Constitution itself warranted the truth of it; but, there ought to be no doubt after reading the amendment, which had already been stated. If the power exercised in the law, was not enumerated, neither this, nor any other general clause, could give it to Congress.
The gentleman had called upon the committee, to show in what part of the Constitution the powers of Congress, with respect to foreign nations, were stated. Mr. Mercer hoped he did not mistake his remark, for it was a very important one. If it was true that these great powers, certainly exercised by Congress, were not vested in that body by express terms, but were derived to them by construction or implication, the deduction that would naturally flow from such a truth, would be fatal to the Constitution. It was, if powers so great could be used, without being specially delegated, it showed the extent of implication; and under its operation other powers equally important, and among them, that which Congress had exercised over aliens, might be assumed, but such a position is destructive to the Constitution. Mr. Mercer rejoiced in believing it could not be supported by any argument drawn from the powers of Congress over foreign relations; for none were more expressly delegated than these; he begged leave again to refer to that instrument, which should be our constant guide. In the 10th section of first article, it is declared that "no state shall enter into any treaty, alliance, or confederation." And that "no state shall, without the consent of Congress, enter into any agreement or compact with another state, or with a foreign power, or engage in war, &c." This proved that all power with respect to foreign connexions was taken from the states. It was not among their reserved rights; nor could they exercise it conjointly with Congress, because they were deprived of it by negative words in the Constitution. It belonged exclusively to the general government. To show this, he read the following clauses in the Constitution: "The Congress shall have power to regulate commerce with foreign nations." "To establish an uniform rule of naturalization." "To declare war and grant letters of marque and reprisal." When speaking of the powers of the President, it says, " He shall have power, by and with the advice and consent of the Senate, to make treaties," &c. "And shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls." "He shall receive ambassadors and other public ministers." These clauses embrace all the great objects of a foreign intercourse; they make it clear, that the powers of the general government upon this subject, are expressly delegated, and depend not upon nice constructions or implication.
In these remarks, Mr. Mercer said, he had attempted to show that the federal Constitution was a limited grant of power: that the power which Congress had exercised in the case of the alien law, had been nowhere delegated to them by that instrument, and ought not to be considered within their reach, from implication. That if Congress did not constitutionally possess the power over aliens, which they had exercised, the exercising it was an invasion of the sovereignty of the states; and whenever this took place, the states had a right to communicate with each other, in the manner contemplated by the resolutions now before the committee. But if he had been convinced that this power was vested in Congress, the manner in which they had used it, was equally repugnant to the Constitution, and subversive of some of the most valuable provisions contained in it. It was as necessary they should preserve the distribution of powers actually delegated, according to the mode prescribed in the Constitution, as it was for them not to assume powers which had never been delegated. It was as necessary that one department of the government should not be permitted to use authority, to the constitutional exercise of which only the three branches were competent, as that the whole should assume powers which neither had a right to exercise. The objections to this act had been so often urged, and the public attention so much excited, that it would be useless to dwell upon them at this time: he would briefly mention the objections which he felt to the act, even if Congress had the power over aliens which they had exercised. His first was, that it placed in the hands of the President an union of authority, which by the principles of free government, should always bo kept separate and distinct. It gave him the right to exercise legislative, judicial, and executive powers, which were intended to be kept apart by the Constitution, and never could be united in the same individual, or in the same department of government, without producing a real despotism. To prove that legislative power was vested in the President by this law, he asked what was the distinguishing characteristic of that power, or the highest act that could be performed by it? It was to prescribe a rule of conduct, commanding what was right, and prohibiting what was wrong. What was the rule of conduct prescribed to the alien by this law? What was he commanded to do, and what to avoid? There was no rule of conduct laid down in the law. There was no crime denned. Even the President was not required to say what the alien's duty should be. Everything was confined within his own breast. The class of men intended to be involved under this law, could not know they had sinned, until the punishment was upon them. If he then prescribed the rule of conduct for aliens, he also had the right under the law to judge when that rule was violated: he was the executive department of the government constitutionally, and the duties of legislating and judging were annexed to his new office by this law. The second objection was, that it destroyed the trial by jury, which he considered was extended to all persons by the Constitution. The terms were as general, and as comprehensive, as language could make them. He begged leave to refer to them. "The trial of all crimes, except in cases of impeachment, shall be by jury." "No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment by a grand jury, &c."
"Nor be deprived of life, liberty, or property, without due process of law." "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury, &c.," "be informed of the nature and cause of the accusation: to be confronted with the witnesses against him: to have compulsory process for obtaining witnesses in his favour; and to have the assistance of counsel for his defence." These just, humane, and most invaluable of all privileges, were taken from the alien: his "liberty" was to be suspended without any "crime" being defined, which he ought to avoid; without any "trial by jury," of which "no person" is to be deprived under the Constitution; there was no "information of the nature and cause of the accusation" to be communicated to him; he was "to be confronted with no witnesses; counsel could not be heard in his favour;" his liberty depended upon the mercy and justice of an individual. The third objection was, that it virtually destroyed the right of the states, under the ninth section of the first article of the Constitution; for though the states might admit the "migration or importation" of such persons as they might think proper prior to a certain period, it was to little purpose, if the President, influenced by his own suspicions, could send them away. The argument of the gentleman from Prince George, seemed to relinquish the point. He observed, that the law would have been unconstitutional, if it had been a permanent one, passed prior to the year 1808, since it would then defeat this section. Mr. Mercer said, he could not see how its being temporary, would prevent the same effect from being produced: for, if the power of Congress could pass such a law for two years, it might ex. tend to the year 1808. If they possessed the right to originate the law, and keep it in force for any term, however short, they could certainly defeat the ninth section altogether; because, as often as the period arrived when this temporary law was to expire, they had only to pass it again for a limited time; and by thus keeping it temporary, bring about the year 1808; after which the gentleman supposed the right would be in Congress. The law being only a temporary one, therefore, could not possibly prove it to be constitutional.
Much had been said, by the member from Prince George, respecting the conduct of aliens, and the dangers that were to be apprehended from them. Mr. Mercer did not suppose that the friends of the resolutions felt it their duty to defend, or to blame that conduct, whatever it might have been, without having ever understood any acts to have been performed by that class of men by which American rights had suffered. The statement of the gentleman might be true, and still it did not affect the question before the committee. The object of the resolutions was not to defend aliens, but to protect the Constitution, which had been violated in the case of these men. If, under the intention of removing dangerous aliens, the principles of that instrument would be openly violated, and some of its wisest provisions set aside, the same- might take place with respect to native citizens. If it was infringed upon in one instance, the same might happen in any other.
With respect to the sedition law, as it was generally called, Mr. Mercer said he would not take up the time of the committee in making any observations upon it. He was willing to let the proof of its unconstitutional quality rest upon the argument of the gentleman from Caroline. He would only say, it was odious in his sight. It was certainly unnecessary, unless the general government had reason to doubt the virtue and patriotism of the people. If that government would pursue measures compatible with the Constitution, and calculated to preserve the country in a state of peace, and not hasten that unhappy crisis with which we were threatened, when war should be found unavoidable, every citizen would be ready to defend his country's rights against the attempts of any nation upon earth. Mr. Mercer believed, if it had not been for the unfortunate difference between America and France, there would have been few voices ready to approve of several of the late acts of the general government. That difference had been made the pretext for exercising power in a manner which, two years past, would have been universally condemned. He hoped the committee would distinguish between the aggressions of France, and the operations of our own government. The alarm of foreign invasion, created by government, was not a modern thing. When power wished to encroach, the same had been excited in every age and country. At this time, two instances occurred to him. When Charles the Seventh of France wished to establish a standing army in that country, he told the people it was necessary to be ready against invasions from England. But when all danger was removed, the army was kept up, and afflicted the nation for centuries. Charles was the first king of France who levied a tax without the consent of the states-general. When Cardinal Ximenes introduced a standing army into Spain, the people were informed it was necessary to protect them against the invasion of the Moors from Africa; but when these were expelled the country and their power destroyed, the army was continued. History afforded many similar instances. It proved, that the moment for power to enlarge its privileges was that of public agitation and alarm; he would make no inferences with a view of applying them to the general government. Every gentleman in the committee might make his own deductions. Mr. Mercer concluded by observing, that he should vote for the resolutions, unless arguments could be offered to prove to his satisfaction, that the acts complained of were constitutional.
Mr. POPE arose next, and made several general observations in answer to those which had fallen" from Mr. George K. Taylor, respecting the necessity of deliberation before decision in favour of the alien law, and concerning Volney and Talleyrand. He then proceeded to observe, that as to Talleyrand, the gentleman from Prince George was not correct as to what he had related of him; but besides, that he had not related the whole story. He had represented him to be a great rascal indeed, and a very great rascal he himself would acknowledge he was. But that he would still give them a further account of that Mr. Talleyrand, as true as that which the gentleman from Prince George had related. He then proceeded to mention that, in the course of Talleyrand's stay in America, he had been for some time much countenanced by some of the conspicuous characters in New York, of whom he particularly mentioned the gentleman who never broke a command, who never disturbed the quiet or repose of any family; that gentleman who inviolably kept the. sacred vow he made
to his bride on the day of marriage. But as soon as these gentlemen discovered his political opinions to be different from what they supposed them to be when they admitted him into their society, they instantly broke off all communication with him, and ever afterwards reviled and persecuted him. He made some observations respecting Volney; and then asked how the gentleman from Prince George had found out the story which he had related of Volney, when Porcupine or Goodloe Harper never could? Perhaps he had learnt it from Billy Wilcox; and who was he? A mere automaton. He could say this he could say that anything or nothing. He was directed altogether by the breaker of the matrimonial vow. The gentleman from Prince George had spoken of Frenchmen sneaking away. But sneaking as they were, he said, he believed all Europe sneaked before them. However, he said, he was no champion for the French, any more than for the British. He thought we had no business with either of them. He then spoke of British aggressions upon our commerce. But these, he said, were not felt by the executive of the United States, as well as many of its citizens. He then complimented Mr. George K. Taylor upon his talent in moving the passions. He had exercised that talent so effectually a session or two before, as to draw tears from the members of that house, (alluding to the speech delivered in favour of the new criminal law,) and he himself must confess, indeed, that the gentleman had, on the subject then before them, dealt more in pathos than in argument. He then asked why the gentleman, when reviling Genet, did not say something of Liston too? He believed that he (Liston) had done us as much harm as ever Genet did. As a proof, he instanced the Spanish transaction. But when that was stated to that great man, Mr. Pickering, he said that we were to pay no kind of credit to it, for he was satisfied that our good allies, the British, did not intend to injure us. The gentleman from Prince George, he said, had introduced a damsel, and that was the damsel of liberty. When he had done so, he, (Mr. Pope,) cold as his blood was, confessed that he was seized with an ecstacy. But when, at the same time, the gentleman would not permit that damsel to remain within these walls, he acknowledged that his feelings were very much wounded indeed. For he (Mr. Pope), was fond of all damsels, but particularly so of the damsel of liberty. And if he were so, cold as his blood was, what might they not expect from that young, athletic gentleman, whose warmth of blood was so plainly visible. The same gentleman, he said, had also dwelt upon the Saint Domingo horrors. The alien law, he (Mr. Pope) said, had not removed them. He believed all the emigrants from that place were aristocrats: but they had not been removed. The gentleman had also mentioned the determinations of the other states. As well as he could recollect, he said, he conceived that such determinations extended only to an approbation of the measures of the Executive in regard to the negotiation with France. But, be they what they would, we were not bound to follow their example. Kentucky had differed from them. He asked who had knocked at the doors of the aristocratic Senate of the United States but Virginia? She had been the chief means of opening them. In that instance, then, she had weight. He wished, therefore, that on this occasion they should do what they thought right. That, too, might probably have weight. If it should not, they would at least discharge their duty. At any rate, he thought the determination, according to the resolutions which they were about to make, would not lead to war, as was apprehended; and therefore they might safely agree to pass them. However, he said, he did not feel himself so rigidly attached to the resolutions, but that he would be willing to agree to any modification of them to accommodate gentlemen, provided the substance of them should be so retained as to go to declare the laws of Congress under their consideration, unconstitutional.
Mr. JOHN ALLEN arose next, and said he was not accustomed to make apologies for anything he wished to say in this house, nor should he do so in the present case; the subject was of too much importance to require any. And, notwithstanding his ill state of health, he rose to give his feeble aid in favour of the wounded daughter of liberty. In deciding on a constitutional question, he did not expect that the understanding was to be banished, and the passions only left to be their guide. But, he found that the gentleman from Prince George, through the whole of his lengthy harangue, relied solely on the force and effect of the latter. That gentleman informed them that he should confine his observations to the alien law, and attempt to prove it constitutional. How did he do this? By describing, in the most terrific colours, the conduct of the French towards us, and other nations; and then asserting, that the alien law was made to protect us from the French. But, before the gentleman indulged himself in his description of the cruelties and aggressions committed by the French, he should have proved that this law related only to that nation. But it clearly was not so. It extends to all nations alike, and without discrimination. The law need only be read to prove the truth of this assertion.
Unless, then, it appeared that we were threatened with, or had danger to apprehend from, all the nations on earth, that law could not be justified, even by the gentleman's own arguments. The gentlemen had further observed, that if this law had been permanent, it would be unconstitutional; but, if temporary, it would not. Mr. Allen said, in his opinion, there was no difference between the cases. He could not discover how a clause in a law declaring that it should expire at a particular period, could make the law constitutional. But, the gentleman did not appear to rely much on that argument; only that it gave him an opportunity of returning again to his favourite theme, a description of French cruelties. But, said the gentleman, the admission of aliens in a country was a matter of favour, and not of right. But, Mr. Allen averred, that the admission of alien friends into a country was not a matter of favour; and even if it were, when they were in a country they were entitled to certain rights, which he enumerated, and which, he said, were derived to them from the laws of nature, nations, and humanity. The gentleman admitted that an alien could not be deprived of life or property without a trial, and that by jury. If so, surely they should not be deprived of their liberty without trial, and that too by jury. But, perhaps, in these modern days, life and property only are to be held sacred, while liberty is to be exposed to the whim or caprice of a single man. If, indeed, this be the case, and liberty is considered of less value than property, then the argument of the gentleman should have some weight. But, we are taught by the Constitution to rank liberty next to life. If, therefore, an alien cannot be deprived of his property without trial by jury, he certainly should not be deprived of his liberty without the same kind of trial. On that account, then, he said, the law was apparently unconstitutional. But suppose, he said, it was absolutely necessary to provide by law for sending aliens out of this country, who had the power to do so? Congress, or the states? He declared that the states had. He read the first clause of the ninth section respecting the migration of persons prior to the year 1808, as proof of the assertion. But, even if Congress had such a power, they had no right to vest it in the President, for reasons that had already been given, and that were too apparent not to be understood. He then proceeded to point out the danger of placing too much power in the hands of the Executive. He stated instances of the unhappy effects proceeding from it in Britain; and was afraid we had much danger to apprehend from a desire in Congress to increase executive power. This law, vesting in the President such enormous powers, the gentleman from Prince George observed, was made for the purpose of getting rid of two individuals, and as they had sneaked out of the country, there was no farther necessity for the law. To what extremity, said Mr. Allen, must the United States have been reduced. How must they be degraded, when we are informed that it was necessary to make the President absolute tyrant over perhaps a million of people, to get rid of two men.
But it was urged as an objection to the adoption of the resolutions under consideration, that (he people were the proper tribunal to decide upon the constitutionality of the laws, and that they would shortly decide the question at the next election. Mr. Allen contended, that was not a proper mode for the decision of such a question, for that the people often voted from personal or local attachments; and that they were not always apprised of the opinions of the different candidates; and he instanced his own district as proof of the latter assertion. But, he said, if this was a proper mode of deciding this question, he believed there was no doubt how the people would determine. And this house, by the re-election of a senator of the United States the other day, had already decided the question. Mr. Allen then concluded by making some general observations on the dangerous consequences of deriving powers from implication; and said, that he at that moment experienced too much bodily pain to be able to proceed further.
On motion of Mr. Magill, the committee then rose, the chairman reported progress, asked, and had leave to sit again.
Part II | Debate Dec. 14 | Debate Dec. 17 | Randolph Contents | Text Version