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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 bave 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 govern. ments, 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 declaréd 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. Thylor) 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 pub. lication 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 dénied 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 constitionality 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 desending 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. 4. 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 poise prevailed, from the impatience of the committee to rise, that he could not be distinctly heard, he declined, and sat down. *
On motion, the committee then rose, the chairman reported progress, asked, and had leave for the committee to sit again.
IN THE HOUSE OF DELEGATES,
Friday, December 21, 1798.
The House resolved itself into a committee of the whole House, on the state of the commonwealth, Mr. Breckenridge in the chair, when Mr. John Taylor’s resolutions being still under consideration,
Mr. GEORGE K. TAYLOR arose, and said that when these resolutions were first submitted to the committee, they had been disapproved by him; and that the time which had since elapsed, with the most mature reflection, had quickened his disapprobation into complete aversion and entire disgust. The resolutions contained doctrines and principles the most extravagant and pernicious; declarations unsubstantiated by fact; and an invitation to other states to concur in a breach of that Constitution which they professed to support. To substantiate this charge, he would beg the pardon and patience of the committee, while he examined and criticised certain parts of the resolutions, and while, agreeably to a promise given on a former occasion, he should offer some few remarks on the constitutionality of what is called the sedition-law. The third clause of the resolutions begins in the following terms: “That this Assembly doth explicitly and peremptorily declare that it views the powers of the Federal Government as resulting from the compact to which the states alone are parties.” This declaration, however explicitly and peremptorily made, was unfounded and false: the states are not the only parties to the federal compact. Considered as particular sovereignties of detached parts of the Union, they did not give it birth or organization: the state legislatures were not consulted respecting its