Thursday, December 20, 1798.

The House resolved itself into a committee of the whole House, on the state of the commonwealth, Mr. Breckenridge in the chair, when Mr. John Taylor's resolutions being still under consideration,

General LEE arose, and said that he was sorry he had been prevented from attending his duty in the House earlier in the session. He had thereby lost the opportunity of combating the pernicious system in operation at its commencement, as well as that of obtaining the information which previous discussion must have afforded. Disadvantageously, however, as he felt himself situated, he could not refrain from presenting to the committee those reasons which influenced him in opposing the resolutions. There were, he believed, three propositions on the table: the resolutions proffered by the worthy member from Caroline: counter resolutions proposed by his worthy friend from Prince George, and a resolution proposed by a worthy member from Prince William. To the counter-resolutions he gave his cordial assent: to the last proposition he also assented, as it breathed a spirit congenial to true American policy, and afforded an innocent way of disposing of the resolutions from Caroline. But inasmuch as the rejection of the first resolutions would necessarily involve the approbation of those proposed in opposition, he should apply his observations to effect that object only.

General Lee then contended, that the ruling principle in the resolutions was erroneous. They asserted as a fundamental position, that the existing Constitution was a compact of states. He denied this position: declaring the Constitution to be a compact among the people. The ancient confederation was a compact among the states; it was so in style, manner, and power. But the government under which we now live, was precisely the reverse. What is its style? "We the people." What is its manner? Executed by functionaries appointed mediately or immediately by the people. What is its power? That of the people; derived from them, and based upon them. How then could it be asserted that the present Constitution is a compact of states? And would the committee sanction by their approbation, a declaration palpably wrong? It was true, there was to be drawn from the Constitution some faint support for this erroneous construction. The Senate, one branch of the Federal Government, was elected by the states, as states. This deviation from the general system could not be relied on to destroy the system itself. It was the result of our peculiar situation. The smaller states could not be induced to renounce their existing equality entirely. It was necessary to compromise, in order to obtain the happy Constitution we possess.

To this compromise was attributed the federal feature just mentioned. But this partial departure from the general principles of the system, could not be regarded as covering the broad ground taken in the resolutions. All the branches of government ought to be elected by the states, as states, to maintain the position assumed.

This was not the case, and consequently the resolutions were radically erroneous.

General Lee then proceeded to the examination of the alien and sedition laws. He began with the alien law, which he contended was not a breach of the Constitution. If the law was unconstitutional, he admitted the right of interposition on the part of the General Assembly; nay, it was their duty, and every good citizen was bound to uphold them, in fair and friendly exertions, to correct an injury so serious and pernicious. He would himself cordially contribute his humble mite; but even in that case, he should adopt a very different manner from that contained in the resolutions. Friendship should be the ground, friendship the dress, and friendship the end of his measures. The resolutions inspired hostility, and squinted at disunion.

The objections made to the alien-law were: 1st, It transcends the power of Congress. 2d, It violates that article of the Constitution which leaves to the states the right of admission of emigrants. 3d, It deprives an alien-friend of trial by jury. 4th, It unites legislative, executive, and judicial powers. To the two last, he said, he should particularly attend, as gentlemen preceding him had, he understood, fully noticed the two first. General Lee read some passages from the law, tending to show that the prevention of commission of crime, and not the punishment of a crime committed, was its only object.

He then proceeded to show that trial by jury could only apply on charge of crime committed. It was ludicrous to attempt to apply it in the alien-law; and it was consequently absurd to stigmatize that law, and those who framed it, with violation of the Constitution, by denial of trial by jury, where trial by jury could not possibly apply. The law was in its nature preventive, and sprung from the right of duty of government to protect the states from invasion. The exercise of this right belonged to Congress, and they were the sole judges of the expediency. In their decision, all ought to acquiesce. In case of error or vice, the revolving elections presented a proper corrective, which could be applied to without commotion or disturbance; and which, fairly and judiciously applied, could not fail to cleanse the body politic.

During the debate, it had been well observed by the worthy member from Lunenburg, that the injustice of France might be considered as the root of these measures, and that it was not easy to discuss the latter, without reference to the former. This remark was certainly true, and must have been felt by every gentleman engaged in the discussion. In case of an invasion, a measure dependent only on its practicability, of which practicability our venomous and insatiable foe was the sole judge, what keen and operative aid might not be afforded by the numerous aliens, long fostered by American hospitality, and anxious for an opportunity to display their ingratitude, if we might be permitted to form an opinion of their future conduct by the zeal with which they laboured to expel from the breasts of our citizens all respect for religion and government; preparing, as far as was in their power, the American people for the reaction of the French and Saint Domingo tragedies.

Ought not then Congress to have taken measures to rid their country of such eventual misery? It was their first duty so to do; and supineness on their parts would have been criminal.

But it seems that aliens have rights under our Constitution. It was wonderfully kind, he said, in our fathers to devote their time and money to the care of the Turk, Gaul, and Indian, when the proper object was that of their children. This spurious doctrine, however confidently asserted, was not credited by the gentlemen themselves. They might impose on others, but the discernment of their own minds forbade success in imposing on themselves. An alien would claim no right in this country, unless he could show a treaty for it; excepting his participation in the usual rights of citizens, which he held upon courtesy, and which courtesy could be withdrawn at the pleasure of the sovereign power. Be done then, he said, with all these pretences. They were groundless, and seized only to excite more and more the begun ferment.

The sedition-law, General Lee said, was also declared to be a violation of the Constitution. Let us, said he, examine it. Let us refer to the clause in the Constitution securing the freedom of the press, which we are told by the above law is abridged. By the law you must conspire to oppose a measure of government; or utter, write, or publish, with the intention of opposing, or exciting opposition to government. The publication must also be false, malicious, and scandalous.

General Lee then asked, if government was worth preserving? If not, let it be annulled. If it was, deny not to it, he said, the means of preserving itself. The Constitution must be very defective, if it held not the power of self-preservation. It was not defective; and a fair construction of it would warrant the sedition-law. Government with us depended for its existence upon the affections of the people. In its preservation the people were interested. Any attempt, by the publication of falsehood to discredit government, and thereby to impair the public confidence in it, was an offence against the people; it was wrong in morality, and ought to be punished. What honest man would complain of a law, which forbids the propagation of malice, slander, and falsehood? What good citizen would not delight in a law, which, while it punishes the above vices, tends to perpetuate the government of his choice? And yet a law of that sort, he said, afforded a fertile topic of abuse and misrepresentation.

General Lee then observed that, "thou shalt not lie," was one of the ten commandments: it was one of the injunctions of the sedition-law. Whoever considered the freedom of speech abridged by the divine law? No man unless lunatic; nor could the freedom of the press be so deemed, without a misconstruction of the Constitution, or of the sedition-law.

This state, he said, had from the Revolution enacted laws of the same sort. In 1776, a committee was appointed for the revision of our laws. Messrs. Pendleton, Wythe, Jefferson, Mason and Lee, composed the committee; able, honourable, and eminent citizens. Among their proposed bills, was to be found one on the subject of libels. A reference to this bill would show its minute resemblance to the sedition-law. Authority such as that just quoted, General Lee said, could not fail in guarding the committee from accrediting the intemperate censures issued against Congress. He would proceed, he said, to another authority in point of time and subject, though one of the respectable gentlemen just named, and the very one of all others to whom gentlemen on the other side attached most weight. Mr. Jefferson, in his correspondence with Mr. Madison, respecting the new Constitution, maintains, said General Lee, the doctrine we contend for. He (Mr. Jefferson) expressly says, that in preventing the abridgment of the freedom of the press, punishment for uttering falsehoods ought not to be inhibited. (3 Jeff. Mem. 25.) The same doctrine is expressed by the same gentleman, in his Notes on Virginia. (Notes on Va., Appendix No. II., p. 233.)

However, General Lee said, he would refer to an authority still higher, the General Assembly of this state in 1776. That august body, the champions of American rights, the patriots who composed our state Constitution, passed a law on this subject in the following words: "That, if any person residing, or being within this commonwealth shall, from and after the publication hereof, by any word, open deed, or act, advisedly and willingly, maintain and defend the authority, jurisdiction, or power of the king, or parliament of Great Britain, the person so offending, being legally convicted thereof, shall be punished with fine and imprisonment, to be ascertained by a jury, so that the fine exceed not the sum of twenty thousand pounds, nor the imprisonment the term of five years:" "and that any person who shall maliciously and advisedly endeavour to excite the people to resist the government of this commonwealth as by law established, or persuade them to return to a dependence upon the crown of Great Britain, or who shall maliciously, or advisedly terrify and discourage the people from enlisting into the service of the commonwealth, or dispose them to favour the enemy, every person so offending, and being thereof legally convicted, shall be punished with fine and imprisonment as aforesaid."

These men, General Lee said, formed our Constitution, and these men passed the law of which the quotation is an extract. They must have understood their own work; they could not mean to violate the Constitution. The law then was not unconstitutional in their opinions, and yet it must be so, if the doctrine now advanced be accurate.

The Constitutions of the state and of the United States, provide in terms equally strong for the security of the freedom of the press. The law above quoted, passed by the state, and the sedition-law, passed by Congress, were of the same sort in word, spirit, and object. If the first be no violation of the state Constitution, the second could not be deemed a violation of the United States Constitution. Other laws passed by the state, all tending to justify the opinions which he and those who thought with him held, General Lee said, might be referred to; especially the law against the divulgers of false news and the law against treason. It had been fully observed by the worthy member from Prince George, that the word "freedom" of the press had a definite meaning; and he had proved incontestably what this technical meaning was, to wit, a freedom from every restraint in printing, but not a freedom from punishment, if the printing was in its tendency injurious to an individual or to the community.

It appeared plainly to his mind then, that the resolutions asserted an untruth, when they charged the two laws with violation of the Constitution. But it seems, he said, that the laws are inexpedient and unwise. Of their expediency and wisdom the people have made Congress the sole judge. They have the best information; their object must be the public good, and it was presumable that the measure was wise and necessary, or their adoption would not have taken place. He would not, he said, examine the question of expediency of the laws, but would examine the expediency of the resolutions. Admitting for a moment, that the laws were unconstitutional, he contended that the course pursued by the resolutions was inadmissible. Prudence frowned on the indecorum and hostility which their face showed, nor was it to be presumed that contumely to the sovereignty of the Union was the likeliest way to obtain a repeal of the laws. The very reverse must happen. Why, then, recur to such an expedient, if the object of repeal be the real object? He hoped that he should be pardoned, he said, when he suspected that repeal of the laws was not the leading point in view. Promotion of disunion and separation of the states, struck him as objects which the resolutions covered. What evils so great could befall the American people? Every measure squinting at such disasters ought to be spurned with zeal. Let us, then, said he, put our veto on the resolutions. Was an individual, he observed, to apply to his friend for redress of some supposed injury, the application would be conveyed in terms polite and friendly. So ought it to be when a state applied to the United States. But why not wait for the operation of the constitutional checks? The united system was made by the whole people, for the management of all affairs national. The same people instituted state governments, for the management of all state affairs. These systems held concurring jurisdiction over some subjects, and of course might occasionally interfere. Who, then, was the proper arbiter between them? Not the state government: the people had given them no such power. The people themselves, the creators of both systems, were the proper judges. Their decision was obtainable under the rules of the Constitution in the revolving elections. The judiciary also was a source of correction of legislative evil; a source fixed by the Constitution, and adequate to cure violations of the same like those now alleged. The state legislatures might also act, but it must be by proposing amendments to the Constitution in either way therein delineated.

If then the laws were deemed unconstitutional, let the question, he said, be left to the people, to the judges: or let the legislature come forward with a proposition for amending the doubtful parts of the Constitution; or with a respectful and friendly memorial, urging Congress to repeal the laws. Thus would our union be strengthened, our friendship perpetuated.

The state judges, he said, had on many occasions interposed when this legislature had passed laws unconstitutional. The remedy had cured the disorder, and tranquillity remained undisturbed. So would do the federal judges. They were as respectable, as trustworthy as were the state judges; in them as much confidence ought to be reposed. For his part, he said, he felt as much confidence; nor could he admit the force of those distinctions which gentlemen laboured to establish, tending to discriminate in favour of state judges and state officers. They were all citizens alike, bound to do their duty; clothed with the authority of the people, and directed by the will of the people. Whether called state or federal judges, sheriff or marshal, was a light and unimportant circumstance.

The resolutions, General Lee said, struck him as recommending resistance. They declared the laws null and void. Our citizens thus thinking, would disobey the laws. This disobedience would be patronised by the state, and could not be submitted to by the United States. Insurrection would be the consequence. We have had one insurrection lately, and that without the patronage of the legislature. How much more likely might an insurrection happen, which seemed to be advised by the Assembly? The scene in Pennsylvania turned out to be a comedy: the same attempt here, he feared, would issue in tragedy. Let us, said he, avoid these numerous ills. All the states are interested in our decision, both as to their reputation and tranquillity. He requested gentlemen then to be temperate, to reject the proffered paper, and adopt some other course.

Division among ourselves at this time, he said, encouraged invasion. He could not bring himself to believe that gentlemen meant to invite the enemy to our country. He could not attribute to gentlemen such motives. But what signified the goodness of their intentions, if their measures produced the effect?

General Lee then concluded by entreating gentlemen to pause. Take this one rash step, said he, and you will be carried step by step till you land in misery, or submit quietly with derision settled upon your heads. Should my efforts, Mr. Chairman, be unavailing, I shall lament my country's fate, and acquiesce in my country's will; and amidst the surrounding calamities, derive some consolation from recollecting my humble exertions to stop the mad career.

Mr. CURETON said, that there had been silence in the committee for some time; and if no other gentleman was disposed to speak, he hoped the question would then be put. The debate had engaged their attention for several days past, and he expected that every member of the committee had made up his mind upon the question.

Mr. John Taylor's resolutions were read by the clerk.

Mr. PETER JOHNSTON then arose, and acknowledged his incompetency to throw any light upon the subject, but hoped to be indulged with a few observations in answer to the gentleman from Westmoreland. He had contended that the states were not parties to the compact, but the people. Mr. Johnston denied the position, and said that every fact in the history of the government would contradict it. If the confederation was formed by states, the states alone possessed the power of dissolving it. And when it was found incompetent, the states, and not the people, directed a convention to frame the Constitution. When that was framed, their power was at an end. The members of it, it was true, were the representatives of the mass of the people of America. But, when the system was framed, it was submitted to the conventions of the people of the several states. If those conventions then assembled under the auspices of the legislatures of the different states, the states were parties. Should the words, "we the people," then change the nature of the compact, contrary to the historical facts of the day? He thought not.

Mr. Johnston then cited the fourth section of the fourth article of the Constitution, which declares, "that the United States shall guarantee to every state in this Union a republican form of government, &c." Also the fifth article, which declares, that "the Congress, whenever two-thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or on the application of the legislatures of two-thirds of the several states, shall call a convention for proposing amendments, which in either case shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three-fourths of the several states, or by conventions of three-fourths thereof, as the one or the other mode of ratification may be proposed by the Congress, &c." From these clauses, he conceived, an irrefragable argument was deducible in favour of his idea. It had been said, however, that from the expression conventions in this article, the states were not parties. Mr. Johnston contended lhat they were, as the other expressions in this article were as strongly in favour of the states being parties, as the word conventions could be in favour of the people being parties. The truth was, that both the states and the people were parties.

He then made several observations in answer to General Lee's argument upon the matter of compromise between the states. This gentleman, too, he said, had asserted that the alien-law extended to prevent offences, and not to punish them. This Mr. Johnston denied, and proceeded to point out the real case of the alien under the law of Congress. He understood the law was designed for alien-friends. There was also an alien-enemy law; and if the former related to alien-enemies, it would have had reference to the latter. But it was general; it related therefore to both. He mentioned the argument of General Lee respecting the entry of aliens into a country, but observed that this point had been before spoken to.

Mr. Johnston also referred to the remarks of Mr. George K. Taylor upon the rights of aliens, and contended that an alien was entitled to justice. If so, he was entitled to the means of obtaining justice, to which a fair trial was indispensable, but was deprived of it by this law. It was in vain to say that the President would not abuse the power. If it was not warrantable by the Constitution, it was still objectionable. It had been said, too, that citizens might live in peace notwithstanding the law. That neither, was any argument if the law was unconstitutional. The gentleman from Westmoreland had placed a particular construction on the word persons. In doing that, the gentleman should have recollected the case of a certain description of persons excluded by the laws of this state from entering the same. The same gentleman had read extracts too from the sedition-law, to show that there must be intent and purpose, in order to bring men within the law. Mr. Johnston asked how intent and purpose were to be made out but by words? To illustrate which he mentioned Lyon's case; and then asked how an intent could be proved, but by deductions from words? Was that any security? An evil intent might be deduced from words, by which none was ever designed. He mentioned as an instance, the story lately circulated amongst them respecting Mr. Tazewell, our senator. It would be, moreover, in the power of the tools of government to place a construction on words which might destroy the person speaking them. The gentleman from Westmoreland had also read extracts from the law of the state respecting aliens, and insisted that Congress had the same right as the state to pass such a law. This Mr. Johnston denied, and contended that the states in that respect had sovereign power, and that Congress had no such power, but a defined and limited power only. To prove which he read the first clause of the ninth section of the first article, in the following words: "The migration or importation of such persons as any of the states now existing, shall think proper to admit, shall not be prohibited prior to the year 1808, &c.;" and then asked, if any law having that effect, had been passed before the adoption of the Constitution? There had not; therefore such clause was inserted. Mr. Jefferson's letter too, had been produced, but was that to be quoted to govern the committee on the occasion? The Constitution should be their guide. And even Mr. Jefferson's letter, as it was stated, did not extend to the business in question; it related only to private regulations.

Mr. Johnston then proceeded to consider the consequences of the sedition-law; and among others, conceived that the public opinion, heretofore found so useful, would be repressed, would be punished by it. Was that the liberty which was guaranteed by the Constitution? No; it was a shameful attack upon both. All the gentlemen who had spoken upon this question, (except the gentleman from Caroline,) instead of arguing the constitutional point, had addressed themselves to the passions. He then asked what would be the consequence if responsibility was taken from public servants? The style of the resolutions too had been complained of. But whether the laws were said by the committee to be null and void, or not, was a matter, he thought, of little consequence. For if they were unconstitutional, they, of course, were null and void. He justified the mode of communication which the resolutions proposed. The people might petition if they thought proper. But the state, when addressing its own servants, ought to act as the resolutions proposed. It had a right to instruct its senators, and the people their representatives. However, Mr. Johnston said, as the subject was exhausted, he would be satisfied with the remarks he had made.

Mr. CURETON arose next, and proceeded to deliver his opinion in respect to the powers of the general government and the state governments. How were their powers derived? From the people. The convention that framed the Constitution was called by the states. The Constitution when framed was submitted to the people, who, by convention, ratified it. He asked what would be the consequence of an opinion that the states had the balance of power alone ? What was it? One-sixteenth part only. He considered that the people had powers; and contended that they had the only right to act upon the sedition law. And if Congress had usurped a power, which should appear to be an innovation on their rights, they would have the power in March next to make an example of those who had trampled on those rights; and this mode of proceeding was consistent with the Constitution. He then asked why did the resolutions embrace both laws? He also made several observations respecting the power of passing such a law as the alien-law. He agreed with the gentleman from Lunenburg, that the power properly belonged to Congress; and asked how could aliens dangerous to the country be sent out of it, if the power was not vested in the President.

Mr. Cureton then proceeded to answer the objections of gentlemen in respect to the corruption of the officers of the general government; and hoped that they should be confined to the constitutionality of the laws: but he still contended that the people had the only right to act upon the sedition-law. The states never had the power alone; therefore it could not be reserved. It belonged to Congress, who were under the correction of the people only. As far as the resolutions related to the alien-law, he had no objection, he said, to do what was proper: for instance, if it should appear that the law was an infringement on the state government, to recommend it to our senators in Congress to endeavour to have the same repealed; for that was sanctioned by precedent. But the plan of the resolutions, Mr. Cureton said, was a new one. He looked upon it as an innovation on the rights of the people, and stabbing fundamental principles. He concluded by hoping, therefore, that the resolutions would not be agreed to.

Mr. JOHN TAYLOR arose next, and observed that though it was late, and the debates had been protracted to great length, he hoped the importance of the subject would be considered as a justification for his replying to the extraordinary and dangerous arguments which had been urged in opposition to the resolutions he had introduced.

A member of Lunenberg had even asserted them to be an act of perfidiousness to the people; because, by undertaking to declare one law of Congress unconstitutional, the legislature would assume a power of declaring all their laws unconstitutional. Let the proposition then be reversed, to discover if there be perfidiousness in the case, the side to which it attached. Would it be said, that the Legislature could not declare this law of Congress unconstitutional, because it could declare no law of Congress unconstitutional ? Admitting such a position, did not these consequences evidently follow, that the check meditated against Congress in the existence of the state governments, was demolished; that Congress might at its pleasure violate the constitutional rights of these governments; that they must instantly become dependent, and be finally annihilated. Could it be perfidious to preserve the freedom of religion, of speech, of the press, and even the right of petitioning for a redress of grievances? Gentlemen, in defining the laws of Congress, had taken their stand upon this broad principle, namely, "That every government inherently possesses the powers necessary for its own preservation." Apply this principle to the state governments: for, if it be a sound one, they are equally entitled to the benefit of it, with the general government. Under this principle then, to which his adversary had resorted, and which he therefore could not deny, it followed that the state governments have a right to withstand such unconstitutional laws of Congress, as may tend to their destruction, because such "a power is necessary for their preservation." To illustrate this, suppose Congress should be of opinion, that an arrangement of men into different ranks would tend to the order of society, and should, as preparatory to this end, intermeddle with inheritances, and re-establish primogeniture. It could be only urged against such a law, that it was unconstitutional; but if the state could not declare any law of Congress unconstitutional and void, even such an one as this must be submitted to, and of course all powers whatsoever would gradually be absorbed by, and consolidated in, the general government.

He observed, that the right of the state to contest the constitutionality of a law of Congress could, however, be defended upon better ground, than by the reaction of the doctrines of gentlemen on themselves. That a principle literally constitutional, theoretically sound, and practically useful, could be advanced, on which to rest it. It was this: the people and the states could only have intended to invest Congress with a power to legislate constitutionally, and the Constitution expressly retains to the people and the states, every power not surrendered. If therefore Congress should, as was certainly possible, legislate unconstitutionally, it was evident that in theory they have done wrong, and it only remained to consider whether the Constitution is so defective as to have established limitations and reservations, without the means of enforcing them, in a mode, by which they could be made practically useful. Suppose a clashing of opinion should exist between Congress and the states, respecting the true limits of their constitutional territories, it was easy to see, that if the right of decision had been vested in either party, that party, deciding in the spirit and interest of party, would inevitably have swallowed up the other. The Constitution must not only have foreseen the possibility of such a clashing, but also the consequence of a preference on either side as to its construction. And out of this foresight must have arisen the fifth article, by which two-thirds of Congress may call upon the states for an explanation of any such controversy as the present, by way of amendment to the Constitution; and thus correct an erroneous construction of its own acts, by a minority of the states; whilst two-thirds of the states are also allowed to compel Congress to call a Convention, in case so many should think an amendment necessary for the purpose of checking the unconstitutional acts of that body. Thus, so far as Congress may have the power, it might exert it to check the usurpations of a state, and so far as the states may possess it, an union of two-thirds in one opinion might effectually check the usurpations of Congress. And, under this article of the Constitution, the incontrovertible principle before stated, might become practically useful; otherwise no remedy did exist for the only case which could possibly destroy the Constitution, namely, an encroachment by Congress, or the states, upon the rights of the other. The case was even strongest in favour of a check in the hands of the states upon Congress: for although Congress could never alter or amend the Constitution, without the concurrence of three-fourths of the states; yet such a concurrence would be able so to alter or amend it, as to check the encroachments of Congress, although the whole of that body should disagree thereto. The reason for this will exhibit the unconstitutionality of the argument, which supposes, that the states hold their constitutional rights by the courtesy of Congress. It was this: Congress is the creature of the states and of the people; but neither the states nor the people are the creatures of Congress. It would be evidently absurd, that the creature should exclusively construe the instrument of its own existence; and therefore this construction was reserved indiscriminately to one or the other of those powers, of which Congress was the joint work; namely, to the people, whenever a convention was resorted to, or to the states, whenever the operation should be carried on by three-fourths.

Mr. Taylor then proceeded to apply these observations to the threats of war, and the apprehension of civil commotion, towards which the resolutions were said to have a tendency. Are the republicans, said he, possessed of fleets and armies? If not, to what could they appeal for defence and support? To nothing, except public opinion. If that should be against them, they must yield: if for them, did gentlemen mean to say, that public will should be assailed by force? If so, should a minority, by the help of the powers of government, resort to force for its defence against public opinion; and against a state which was pursuing the only possible and ordinary mode of ascertaining the opinion of two-thirds of the states, by declaring its own, and asking theirs? How could the fifth article of the Constitution be brought into practical use, even upon the most flagrant usurpations? War or insurrection, therefore, could not happen, except Congress should attempt to control public opinion by force; and this it could not be supposed they would ever do, not only because the will of the people is the sovereign in all republics; but also, because both that will and the will of the states, were made the constitutional referee in the case under consideration. Hence a movement towards this referee could never be admitted as leading to war or commotion, except in those countries where an armed and corrupt minority had usurped the government, and would of course behold with abhorrence an arbitrament of a majority. Such, however, he hoped would be the respect to public opinion, that he doubted not but that the two reprobated laws would, be sacrificed, to quiet the apprehensions even of a single state, without the necessity of a convention, or a mandate from three-fourths of the states, whenever it shall be admitted, that the quiet and happiness of the people is the true end and design of government.

With respect, he said, to the remedy proposed in the talents and integrity of the continental judges, without regarding the prejudices which might probably exist in favour of the government, from which an appointment should flow, it might be remarked, that the judges by the Constitution are not made its exclusive guardians. That if continental judges were the proper referees as to the constitutionality of continental laws, state judges were the proper referees as to the constitutionality of state laws; that neither possessed a power over the other, whence a clashing of adjudication might ensue ; and that. if either had been superior, the same consequences would result as would flow from a superiority of Congress, or of the states over the other, with this additional aggravation, that the people could not by their elections influence a constitutional question, to be decided by the judges, as they could to a certain extent, when it was to be decided by a general or state legislature: an influence, however, insufficient; because it would require six years to change the Senate of the United States, and four that of Virginia, during which an unconstitutional law would have done its mischief, which was yet greatly preferable to no influence at all.

He observed, that the resolutions had been objected to as being couched in language too strong and offensive, whilst it had also been said on the same side, that if the laws were unconstitutional, the people ought to fly to arms, and resist them. To this he replied that he was not surprised to hear the enemies of the resolutions recommending measures which were either feeble or rash. Timidity, it was known, only served to invite a repetition of injury, whilst an unconstitutional resort to arms would not only justly exasperate all good men, but invite those who differed from the friends to the resolutions to the same appeal, and produce a civil war. Hence those who wished to preserve the peace, as well as the Constitution, had rejected both alternatives, and chosen the middle way. They had uttered what they conceived to be truth, in firm yet decent language; and they had pursued a system which was only an appeal to public opinion, because that appeal was warranted by the Constitution, and by principle; and because it gave an opportunity to the general government to discover whether they would be faithful to the same principle, and thereby establish a precedent, which would both now and hereafter have a strong tendency against civil war. That this firmness, which was both exhibited and felt, was really necessary as an act of friendship to the general government, if it was true, as some thought, and as the commotion in the public mind plainly indicated, that a farther progress in their system was full of danger to itself, and misery to the people. If, said he, we beheld our friend already advanced to the brink of a precipice without having discovered it, ought we in friendship slightly to admonish him that the very next step might precipitate him into an abyss below, or strenuously to warn him of his danger? Again: If a country was to be defended, into which the foe could only enter at a single pass, which was fortified and garrisoned, ought the resistance of this garrison to be feeble and cowardly, and ought they traitorously to surrender this key into their country, from a confidence in the enemy? Liberty was that country — our Constitution the fortress — and ourselves the garrison. Shall we, he said, desert our post without even a parley with the assailants? If we did, the inevitable consequence must be a consolidation of these states into one great sovereignty, which will, from its vast extent, as inevitably settle with rapidity into a monarchy, and like all other great empires it must resort to those oppressions to support itself, which make the cup of life bitter to man. That such a degree of timidity would be as dishonourable as the violent measures which gentlemen on the other side recommended in cases of constitutional infractions, would be immoral and unconstitutional.

That firmness as well as moderation could only produce a desirable coincidence between the states, an example of which having been already set by Kentucky, it behooved us so to act as to avoid a difference of opinion as to the mode, when we united in the end; because divisions respecting either would undoubtedly destroy every hope of a successful issue. In opposition to the propriety of soliciting this coincidence, the Constitution, prohibiting the states from entering into a confederation among themselves, had been quoted. In reply to which he would ask, if an application from one state to another to learn its sentiments upon a point relative to the Constitution, was to be considered as unconstitutional, as amounting to a confederation? In what way could two-thirds of the states consult or unite, so as to exercise their right of calling a convention under the fifth article, or in what way could three-fourths ever amend the Constitution? This observation evinced the incorrectness of such a construction, as had also the practice of the states, in submitting each other's resolutions to mutual consideration, in a variety of instances.

Mr. Taylor then said that the constitutionality of the laws had been defended by the common law. It had been said that the common law attaches the rights arising from the law of nations to a sovereignty wherever it resides: that therefore a power over aliens devolved under the common law upon Congress, and that sedition being also a common law offence, they had a right to punish it. If the common law bestowed powers upon Congress, it was unnecessary to controvert these laws, because there was hardly any species of oppression which it would not justify. Heresy and witchcraft were common law offences; the former was a complete engine for tyranny. But the Constitution of the Union did nowhere adopt the common law, or refer to it as a rule of construction. That as the state constitutions or laws had done so under different forms, it evinced that the states must have considered an adoption necessary to give it force, and thinking so, it was impossible that the state conventions which assented to the Constitution, could ever have supposed that they were establishing a government which could at pleasure dip their hands into the inexhaustible treasuries of the common law and law of nations, and thence extract as much power as they pleased. On the contrary, the Constitution of the Union does in its face plainly erect a government of powers expressed and limited, and not left to be new-modelled at random, or by ambition, by a reference to obsolete or little known codes of law, which had never been taken into contemplation during its discussion in any state convention.

Having now gotten rid of objections rather collateral, Mr. Taylor said that he would come to those which more immediately referred to the objectionable laws. It had been said that aliens had no rights: that if they had, such rights were only held by the law of nations, which allows them to be removed whenever their residence is thought dangerous by the sovereignty; and assuming it as granted that the sovereignty of America is in Congress, it was therefore concluded that the law was constitutional.

In reply to this argument, he observed, that Congress only possessed a special and limited sovereignty, to be exercised in a special and limited manner, so as not to conflict with that portion of sovereignty retained to the several states, and so as not to violate those constitutional principles prescribed for the preservation of liberty. That aliens, under the law of nations, were entitled and subjected to the sanctions of municipal law; and however their rights as foreigners may be unimportant to us as natives, yet it was of vast importance that the fundamental principles of our municipal law should not be destroyed, because an alien only was the present victim, since it established precedents, and produced consequences, which would wound citizens through the sides of aliens. To apply this general remark, he said, the Constitution was a sacred portion of municipal law. It had empowered Congress " to define and punish offences against the law of nations," and it had declared, "that the judicial power shall extend to all cases in law and equity arising under this Constitution, or the laws of the United States; and that the trial of all crimes shall be by jury." The law of nations was therefore in contemplation whilst defining the judiciary power. If an alien has done wrong, must it not be a case in law or equity, or a crime? At any rate, must it not be a case arising under the Constitution, or the laws of the Union? If so, his punishment, supposing the act criminal, is to be inflicted by a jury: if not criminal, it is yet referred to the judiciary, by the comprehensive terms "all cases." Might not precedents then, violating these essential principles of our municipal law, be dangerous to citizens, when it was recollected that no difference is contemplated by the law of nations, or that municipal law, between aliens and citizens touching these rights, during the residence of the former. Again: were not the checks contemplated by the Constitution weakened by making a President in fact a king of the aliens? Our towns will abound with men whose every interest depends upon executive pleasure. Might they not be used to influence elections? And what would prohibit their being forced into the volunteer corps, then to be armed and officered by the executive? Here then, except for the virtues of a temporary chief magistrate, was a mode struck out, by which a large force might be embodied and armed, possessing no rights, and completely dependent on the will of one man. Was this to adjust the balances? Or did it comport with the principles of republicanism? If not, in this mode also might citizens be wounded through the sides of aliens.

A gentleman from Prince George, he said, had urged, that except for this law, the state of Virginia might admit a French army with Bonaparte at their head. Of this, he said, there would certainly be as little danger, as that under it a President should admit an English army. Because, although it was obvious no nation would call in a foreign force to destroy itself, yet history was not deficient in cases wherein individuals have resorted to a foreign force to enslave the nation. That he meant not to insinuate anything to the injury of the present President; but by retorting the argument, to show its weakness, by exhibiting the difference between suffering the residence of foreigners to depend upon the national legislatures, and surrendering it as a great prerogative, to one man.

It had been argued too, that the power given to Congress to protect each state against invasion, comprised a power of expelling dangerous incendiary aliens; for that Congress ought to be enabled to nip dangerous designs in the bud.

If power could be gotten by inferences as loose as these, all attempts to limit it might be relinquished. Dangerous designs ought to be nipt in the bud. Was it the danger to which the power attached, and not the alienage ? If so, dangerous incendiary citizens might also be nipt in the bud without trial, and exported at executive will. The protection of a state against invasion, is imposed upon Congress as a duty, secondary only to the guarantee of a republican form of government, and not bestowed upon them as an enlargement of power; and the reason of it is, that the states are prohibited from keeping troops or ships of war in time of peace, which prohibition does not extend to the Union. Greatly as this argument had been relied on, the propriety of this construction was evinced by two observations; one, that the states might as far as they could protect themselves against invasion, and even raise troops in time of war, proving that this was a duty imposed upon Congress, and not an executive power. The other, that it is also made the duty of Congress to protect the states against domestic violence, but only on application of the state legislature or executive. The jealousy evidently exhibited here against the interposition of Congress, even in cases of actual domestic violence, by no means warrants the supposition, that they might interpose where apprehensions of danger only existed. Further, if Congress obtained the power constructively from that of repelling invasions, there was nothing to limit its exercise to aliens. Again, and again, the committee were told of the common law and the sovereignty of Congress. An attempt to excite an insurrection had been called an offence at common law; and a power to regulate all cases arising under the law of nations, it was said, follows sovereignty. Thus every power was bestowed arising from these copious sources. He asked, by what part of the Constitution Congress were empowered to punish all common law offences, and whether that barbarous, feudal, gothic and bloody criminal code was to be let loose upon us by inference and implication? Domestic violence, said he, is insurrection. Why was Congress specially directed how to act in this common law offence, if they had an unlimited power to punish all common law offences? As to these rights of sovereignty, it was fair reasoning to urge, that a particular donation of a part excluded the idea of a donation of the whole by way of inference. If this splendid thing called sovereignty had invested Congress with all the powers arising from the law of nations, why was it necessary particularly to invest Congress with the power of punishing offences against the law of nations? And if Congress, under this sovereignty, derived to themselves an unlimited power over aliens, how could it have been necessary to bestow upon Congress the special power of naturalizing these very aliens? This doctrine of the rights of sovereignty was as dangerous as false. Dangerous, because its extent could be never foreseen: false, as violating the idea of limiting a government by constitutional rules. From this unlimited source, the British Parliament derives its claim of unlimited power. King, lords and commons, because sovereign, may do everything. If it was admitted here, being in fact a common law doctrine, it not only would absorb the common law powers, and those arising from the laws of nations, but also the royal prerogatives, and whatever else it bestows upon the British Parliament. Such a sovereignty would speedily swallow up the state governments, consolidate the Union, and terminate in monarchy.

Mr. Taylor said, that the laws objected to had been largely defended within and without doors, upon the ground of laws with similar provisions having been passed in this state.

Without stopping, he said, to point out the strong distinguishing features between the state laws and those of Congress, it would suffice to show the inefficacy of the argument upon other grounds. The powers surrendered to Congress and reserved to the states, are by the Constitution evidently designed to be defined, and whether successfully or not, it was yet impossible to deny the intention of that instrument to concede certain powers to the one, and to reserve certain other powers to the other. If then it was a sound argument to assert, that Congress may legislate upon a subject because a state has already done so; that is, that the exercise of the reservation by a state shall enlarge the concession in favour of Congress, it followed that the reservation so soon as it was used was lost, and that even the limitations upon congressional power ought to be understood as only designed to extend it. Further, perhaps no state constitution in America exhibits that clear and explicit restraint upon a legislative interposition respecting the freedom of religion, the press, and petitioning, which was to be found among the amendments of the general Constitution. Was it defensible then to assert that Congress, though opposed by this positive constitutional barrier, were yet empowered to legislate co-extensively upon these subjects with a particular state having no such obstruction to surmount.

He said that this extravagant and unjustifiable mode of construing the Constitution had even been carried so far as to quote Blackstone, and a private letter of Mr. Jefferson; so that if this instrument was to be expounded, not by itself, but by the law of nations, the common law of England, the laws of the several states, the opinions of English judges, and the private letters of individuals, it had only launched us upon the ocean of uncertainty, instead of having conducted us into a safe and quiet harbour. That Blackstone's definition of the liberty of the press, considered as accurate by the gentleman on the other side, amounted to this: "the right of publishing anything not prohibited by law without the necessity of obtaining a previous license." He wholly quibbles away the liberty of the press, in the whim of considering the necessity of a license as the only mode of destroying it, whilst he also admits that government may prohibit it from printing whatever it pleases. Was it not obvious that the end meditated by the liberty of the press, can as effectually be defeated in one mode as the other, and that if a government can by law garble, suppress and advance political opinion, public information, this great end, upon which public liberty depends, will be completely destroyed. According to this construction, the Constitution of America has only declared that Congress shall not intercept writings by a previous examination, and allowance or rejection; but that they may make whatever writings they please illegal and penal in any extent. Read, said he, the Constitution, and consider if this was all it meant to secure.

Mr. Jefferson's letter, he said, was written before the amendment to the Constitution which it recommended: but upon which it could not of course be a comment; and therefore this letter, if it had lent any aid to the gentlemen on the other side, would be more than balanced by that sublime and just construction of the Constitution itself, as to the liberty of the press, to be found in the negotiations of the late envoys to France. But this letter, as well as plain legal principles, had been egregiously misunderstood, and both upon examination, would be found to support the argument against the laws. The letter, whilst recommending those securities, for which the amendment to the Constitution was afterwards designed, urges as an argument, that all were legally answerable for false facts published injuring others. This is the letter, and this the legal principle upon which a common action of slander was grounded: and laws reaching this evil, existed before the sedition-act, in every part of the Union. By a small but important deviation both from the letter and the law, a great and dangerous delusion was resorted to by the gentlemen on the other side. Falsehood, said they, is punishable by law, and Mr. Jefferson admits that it ought to be so; and the sedition-law punishing falsehood only, both the laws and Mr. Jefferson have united in its approbation previous to its existence. The great error in this doctrine arose from dropping the word "fact," and taking that of " falsehood," which includes "opinion," as well as fact. Fact was capable of proof, opinion was not. To say that such laws as the alien and sedition existed, would be to assert a fact, and if he (Mr. Taylor) was prosecuted for it, it might be proved. But to assert that these laws were unconstitutional and oppressive, and productive of monarchy, would be an opinion, constituting a degree of criminality under the sedition-law, subjecting a man to punishment, and yet it was not a fact capable of being proved. Hence, therefore, the laws of the land, and Mr. Jefferson's letter, unite in confining punishment to the publication of false facts, and hence opinions were only made punishable in tyrannical governments; because there was no standard to determine the truth or falsehood of opinion.

But he said, it had been violently objected that, supposing these laws are unconstitutional, the state legislature could have nothing to do with the subject; because the people alone are parties to the compact, called the Constitution of the United States.

To this objection he answered, that although the framers of the Constitution chose to use the style, "we, the people," yet it was notorious, that in every step, from its commencement to its termination, the sense of the people respecting it, appeared through the medium of some representative State Assembly, either legislative or constituent. That the Constitution itself, in many parts, recognises the states as parties to the contract, particularly in the great articles of its amendment, and that of admitting new states into the Union without a reference to the people; and that even the government of the Union was kept in motion as to one House of the legislature, by the act of the state sovereignties. That added to these incontestable arguments to show that the states are parties to the compact, the reservation of powers not given, was to the states as well as to the people, recognising the states as a contracting party, to whom rights were expressly reserved. From all which it followed, though it be not denied that the people are to be considered as parties to the contract, that the states are parties also, and as parties, were justifiable in preserving their rights under the compact against violation; otherwise their existence was at an end; for, if their legislative proceedings could be regulated by congressional sedition-laws, their independency, and of course their existence, were gone. And although it had been within and without doors often asserted, that the sedition-act does not extend to words spoken, yet if any gentleman would read the first section, and consider the terms " counsel or advise," he would find that words are clearly within its letter, and that this part of the law seems particularly adapted for a deliberative assembly. He said he could not but observe, that this doctrine, that the people are to be considered as the only parties to the compact, was incomplete. The idea of a person's contracting with himself was absurd. Where was the other party? He feared, though it was not avowed, that the gentlemen were glancing towards the old doctrine of a compact between government and people; a doctrine which effectually destroyed the supremacy of the people and the independence of government, no less than the monstrous doctrine of allegiance and protection, which falsely supposes, that the people are indebted to the government for safety, whereas it is they who erect, support, and protect the government. That it was also curious to observe, that gentlemen allow the state governments to have been proper organs of the will of the people, whilst binding them by the measures leading to the Constitution, and that they still allow these organs to be capable of expressing their will in the election of senators, and doing any other acts for the execution of the Constitution, whilst they deny that they are any organs of public will, for the sake of opposing an infringement of the same Constitution. Thus, in framing it, and in executing it, in a great variety of ways, the will of the people was allowed to express itself through this medium; but in saving it from violation, it shall be closed up against them; so that there shall be as few obstacles as possible against this violation. The people may petition Congress, said gentlemen, against the violation, and this was the only proper remedy. Let us, said Mr. Taylor, apply this remedy to another case. Suppose a state should, by law, violate the Constitution. Would there be no other remedy, but for the people to petition that state, or for the judges of that state to decide upon the constitutionality of the law? Why would there be another remedy? Because the Constitution, having bestowed rights upon the general government, a violation of the Constitution which should infringe those rights, would justify that government to take measures for its own preservation; because the Constitution does not leave the remedy to depend upon a petition of the people to the aggressor. Reverse the case, said he. If Congress should unconstitutionally infringe rights reserved to the state governments, should they depend upon a petition of the people to the aggressor for their defence? They were then conducted, he said, to this clear position, that as Congress holds the rights bestowed by the Constitution under that, and independent of the states; so the states hold the rights reserved by the Constitution under that, and independent of Congress; and of course that each power possesses the further right of defending those constitutional rights against the aggressions of the other; for otherwise it would follow, that the power having constitutional rights, to maintain which was however unconstitutional, must presently disappear.

He said, that the last argument in favour of the sedition-act had been drawn from the law of Virginia respecting treason, which had been read.

With respect to this law, he replied, that the same arguments applied, which he had before used, to show the impropriety of quoting state laws, to justify congressional. It would be as just to say, that a state could pass laws for raising fleets and armies, because Congress had done so, as that Congress could infringe the liberty of speech, because the states had done so. The states are expressly forbid to do the one, and Congress the other. But this reference to the treason law of Virginia furnished a strong argument to prove the unconstitutionality of the sedition-act. The law evidently considers sedition as being one species constituting that genus called treason, which was made up of many parts. It therefore accurately expresses the idea of Virginia of the word "treason," and shows how she understood it, as used in the Constitution. By that, treason is limited to two items, with the punishment of which only, the general government is entrusted. Hence it was evident, that Virginia could not have conceived that Congress could proceed constitutionally to that species of treason called sedition; and if this was not the true construction, what security was derived from the restriction in the Constitution relative to treason? Congress might designate the acts there specified by that term, and they might apply other terms to all other acts, from correcting which, that clause of the Constitution intended to prohibit them; by doing which, as in the case of sedition, they might go on to erect a code of laws to punish acts heretofore called treasonable, under other names, by fine, confiscation, banishment or imprisonment, until social intercourse shall be hunted by informers out of our country; and yet all might be said to be constitutionally done, if principles could be evaded by words.

Mr. Taylor concluded with observing that the will of the people was better expressed through organized bodies dependent on that will, than by tumultuous meetings; that thus the preservation of peace and good order would be more secure; that the states, however, were clearly parties to the Constitution, as political bodies; that rights were reserved to them, which reservation included a power of preservation; that the legislature of the state was under a double obligation to oppose infractions of the Constitution, as servants of the people, and also as the guardian of those rights of sovereignty, and that qualified independence reserved to the state governments by the Constitution; and to act up to this duty was the only possible mode of sustaining the fabric of American policy, according to the principles prescribed by the American Constitution.

Mr. BAYLEY arose next to reply, he said, to the very extraordinary arguments which had fallen from the gentleman from Caroline, and was proceeding to do so; but finding that such a noise prevailed, from the impatience of the committee to rise, that he could not be distinctly heard, he declined, and sat down.

On motion, the committee then rose, the chairman reported progress, asked, and had leave for the committee to sit again.

Part II | Debate Dec. 19 | Debate Dec. 21 | Randolph Contents | Text Version