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2. On the clause which gives Congress power to lay and collect taxes, &c., to pay the debts, and provide for the common defence and general welfare, &c. The effect of this already considered, (ante, p. 179–80,) and supposed not to enlarge the enumerated powers of Congress. 3. On the clause which empowers Congress to make all laws necessary and proper to carry into effect the powers conferred by the Constitution; wherein consider, 1. That this clause confers no new powers, but merely declares [what, at any rate, would have been implied], that the grant of a power shall include the means of its execution. 2. The mode of reasoning to be pursued under this clause. 1. To determine if the power to be exercised is expressed in the Constitution. 2. If not, to see if it is properly incident to any express power, and necessary to its execution. 3. The express power to which the enactment of a sedition law is supposed to be incident: The power to suppress insurrections; wherein consider, 1. That if a power to suppress, authorizes whatever tends to prevent, the power of Congress is unlimited. 2. That the contemporaneous construction, whilst the Constitution was under discussion, was mem. con., that the incidental power must have to the principal the relation of necessity, and not of mere tendency to promote. 3. That such a construction frustrates an appeal to the judiciary, which can exert a judicial control if the relation of necessity is to exist, but not if a tendency to promote is enough. 2. The sedition-act exercises a power positively forbidden by one of the amendments to the Constitution; wherein consider, 1. That the freedom of the press is not to be determined by the meaning of the phrase at common law; and therein consider, 1. That the sedition-act abridges the freedom of publication even by the common law of England. 2. That the common law idea of freedom of the press, viz., exemption from all previous restraint, is not the American idea; because, 1. There is no material difference between a previous restraint, and a subsequent punishment of publications. 2. There is an essential difference between the government of Great Britain, and of America, requiring in the latter greater freedom of remark. 3. The object in the British government is to protect the press from the assaults of the executive. In America we desire to protect it, also, against the legislature. 4. That not only is freedom of the press secured by the Constitution in America, and in England merely by law, and not only does it extend in the former as well to subsequent penalties, as
previous restraint, but the actual freedom is greater in America than in England; wherein consider, 1. The difference in the governments, those of America being wholly elective and responsible. 2. The practice in England in respect to the elective and responsible members of the government. 3. The practice in the several states of the confederacy. 4. The good effects which have resulted from this free animadversion. 1. In the world at large. 2. As respects our Revolution, which was promoted by canvassing the measures of government. 3. As respects the present Federal Constitution, which was substituted for the Articles of Confederation, in consequence of the latter's defects being freely investigated. 3. That freedom of conscience and of religion are guaranteed by the same clause which relates to freedom of the press, and the former cannot be supposed to be limited by the common law meaning. 2. That the amendment in question positively denied to Congress any power over the press, and does not suppose such power to exist, with the qualification that its freedom shall not be abridged; because, 1. The provision was recommended by the ratifying conventions of several states with a view to exclude Congress from all power over the subject. 2. The amendment was introduced in order to quiet the apprehensions of those states. 3. It is more reasonable to deem the power withheld, than to suppose one so important left to vague construction. 4. The peculiar magnitude of some of the powers of the Federal Government, the duration of some of its offices, and the distance of many of the people from the seat of government, are reasons why it might have been the policy of the Federal Constitution to exempt the press from federal jurisdiction. 3. The exercise of this power over the press ought, more than any other, to produce universal alarm; and therein consider, 1. That the responsibility of officers of government cannot be secured without a free investigation of their conduct and motives. 2. That it is the right and duty of every citizen to make such investigation, and promulge the results. 3. That in the several elections, during the continuance of the sedi. tion-act, it would tend to screen the incumbents of office from inquiry. 4. That it is no defence of the act that it allows the truth of the publi. cation to be proved, and only punishes what is false; because, 1. Formal legal proof, even of facts, in political disquisition, is extremely difficult. 2. Opinions, inferences and conjectural observations, necessary concomitants of free inquiry, cannot generally be proved at all, in Court.
5. That it is no defence of the act that the intent must be to defame, or bring into contempt, disrepute, or hatred, for such is ever the object of one who thinks he has discovered an error. 6. That the right of election (which depends on full information) is the essence of a free government, and is impaired by the seditionact. 1. Competitors against incumbents of office have not an equal chance, the latter being shielded by the act. 2. The people capnot fully discuss and ascertain the relative merits of such competitors and incumbents. 6th Resolution. Refers to a declaration of the Virginia Convention which ratified the Federal Constitution, touching freedom of the press, and affirms that it would be a criminal degeneracy now to be indifferent to so palpable a violation thereof, &c.; wherein of, 1. The declaration of the Virginia Convention in tot verbis. 2. Acquiescence in the violation of freedom of the press would yield a similar power over religion and conscience; for, 1. Neither power was delegated. 2. Both were reserved by the same amendment, recommended and made at the same time. 3. The common law measure applies to one, as well as to the other. . 4. A similar form of words is used to guarantee both. 7th Resolution. Professes sincere affection for the people of the other states, and anxiety to perpetuate the Union, and appeals to the other states to concur in declaring the alien and sedition-laws unconstitutional, and to take necessary and proper measures to maintain unimpaired the authorities, rights, and liberties reserved to the states respectively, or to the people; wherein consider, 1. That such declaration is no invasion of the functions of the judiciary, being a mere declaration of opinion. 2. That the relations of the state legislatures to the Federal Government justified such a declaration; for, 1. They might address Congress to repeal the laws. 2. They might instruct or request their own senators and representatives to vote to repeal the laws. 3. They might originate an amendment to the Constitution. 3. That neither the object (to maintain the Constitution, &c.) nor the means (such as were necessary and proper) could be objected to. 4. That during the discussions on the ratification of the Federal Constitution, a vigilant supervision of the Federal Government by the state legislatures, was deemed a recommendation.
In view of all which the adoption of the following resolution is recommended.
Resolved, That the General Assembly, having carefully and respectfully attended to the proceedings of a number of the states, in answer to its resolutions of December 21, 1798, and having fully reconsidered the
iatter, find it to be its indispensable duty to adhere to the same, as founded in truth, as consonant with the Constitution, and as conducive to its preservation; and more especially to be its duty to renew, as it does hereby renew, its protest against “the alien and sedition acts,” as palpable and alarming infractions of the Constitution.
Report of the committee to whom were referred the communications of various states relative to the resolutions of the General Assembly of this state, concerning the Alien and Sedition-Laws.
WHATEvER room might be found in the proceedings of some of the states who have disapproved of the resolutions of the General Assembly of this commonwealth, passed on the 21st day of December, 1798, for painful remarks on the spirit and manner of those proceedings, it appears to the committee most consistent with the duty, as well as dignity of the General Assembly, to hasten an oblivion of every circumstance which might be construed into a diminution of mutual respect, confidence, and affection, among the members of the Union. The committee have deemed it a more useful task, to revise, with a critical eye, the resolutions which have met with this disapprobation; to examine fully the several objections and arguments which have appeared against them; and to inquire whether there be any errors of fact, of principle, or of reasoning, which the candour of the General Assembly ought to acknowledge and correct. The first of the resolutions is in the words following: Resolved, That the General Assembly of Virginia doth unequivocally express a firm resolution to maintain and defend the Constitution of the United States, and the Constitution of this state, against every aggression, either foreign or domestic, and that they will support the government of the United States in all measures warranted by the former. No unfavourable comment can have been made on the sentiments here expressed. To maintain and defend the Constitution of the United States, and of their own state, against every aggression, both foreign and domes. tic, and to support the government of the United States in all measures warranted by their Constitution, are duties which the General Assembly
ought always to feel, and to which, on such an occasion, it was evidently proper to express its sincere and firm adherence. In their next resolution—The General Assembly most solemnly declares a warm attachment to the union of the states, to maintain which it pledges all its powers; and that, for this end, it is its duty to watch over and oppose every infraction of those principles, which constitute the only basis of that union, because a faithful observance of them can alone secure its existence and the public happiness. The observation just made is equally applicable to this solemn declaration, of warm attachment to the union, and this solemn pledge to maintain it; nor can any question arise among enlightened friends of the union, as to the duty of watching over and opposing every infraction of those principles which constitute its basis, and a faithful observance of which can alone secure its existence, and the public happiness thereon depending. The third resolution is in the words following: That this Assembly doth explicitly and peremptorily declare, that it views the powers of the Federal Government, as resulting from the compact, to which the states are parties, as limited by the plain sense and *ntention of the instrument constituting that compact; as no farther valid than they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights, and liberties appertaining to them. On this resolution, the committee have bestowed all the attention which its importance merits; they have scanned it not merely with a strict, but with a severe eye; and they feel confidence in pronouncing, that, in its just and fair construction, it is unexceptionably true in its several positions, as well as constitutional and conclusive in its inferences. The resolution declares, first, that “it views the powers of the Federal Government, as resulting from the compact to which the states are parties;” in other words, that the Federal powers are derived from the Constitution, and that the Constitution is a compact to which the states are parties." Clear as the position must seem, that the federal powers are derived from
* The position that the powers of the Federal Government result from a compact to which the states are parties, has been assailed as if it assumed that the idea of a Constitution was thereby excluded, and the government converted into a mere confederation. (1 Story's Comms. on Constitution, 287.) But the essential question to which the attention of the writer seems to have been directed, was not as to the nature of the Constitution, whether it were an instrument of confederation, or of government, but it was as to who are the parties thereto, the aggregate people of the whole Union, or the states in their highest sovereign capacity, not represented by their ordinary governments, but by delegates deputed for the sole purpose of expressing the will of the people of each state on the subject.
Whether or not it follows that because the states are parties to the Federal Government, they must, therefore, be the rightful judges in the last resort of alleged usurpations by that government, in any or all of its departments, is submitted to the reader upon the reasoning in the text. (See, also, 1 Tuck. Bl. App. 170.)