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surrections, yet it would not be allowed to sollow, that they might employ all the means tending to prevent them; of which a system of moral in. struction for the ignorant, and of provident support for the poor, might be regarded as among the most efficacious. One argument for the power of the general government to remove aliens, would have been passed in silence, if it had appeared under any authority inserior to that of a report, made during the last session of Congress, to the House of Representatives by a committee, and approved by the House. The doctrine on which this argument is founded, is of so new and so extraordinary a character, and strikes so radically at the political system of America, that it is proper to state it in the very words of the report. a “The act [concerning aliens] is said to be unconstitutional, because to remove aliens is a direct breach of the Constitution, which provides, by the 9th section of the 1st article, that the migration or importation of such persons as any of the states shall think proper to admit, shall not be prohibited by the Congress, prior to the year 1808.” Among the answers given to this objection to the constitutionality of the act, the following very remarkable one is extracted: . “Thirdly, that as the Constitution has given to the states no power to remove aliens, during the period of the limitation under consideration, in the mean time, on the construction assumed, there would be no authority in the country, empowered to send away dangerous aliens, which cannot be admitted.” - . The reasoning here used, would not in any view, be conclusive; be. cause there are powers exercised by most other governments, which in the United States are withheld by the people, both from the general government, and from the state governments. Of this sort are many of the powers prohibited by the declarations of right prefixed to the constitutions, or by the clauses in the constitutions, in the nature of such declarations. Nay, so far is the political system of the United States distinguishable from that of other countries, by the caution with which powers are delegated and defined, that in one very important case, even of commercial regulations and revenue, the power is absolutely locked up against the hands of both governments. A tax on exports can be laid by no constitutional authority whatever. Under a system thus. peculiarly guarded, there could surely be no absurdity in supposing, that alien friends, who if guilty of treasonable machinations may be punished, or if suspected on probable grounds, may be secured by pledges or imprisonment, in like manner with permament citizens, were never meant to be subjected to banishment by any arbitrary and unusual process, either under the one government or the other. , But, it is not the inconclusiveness of the general reasoning in this pas. sage, which chiefly calls the attention to it. It is the principle assumed by it, that the powers held by the states, are given to them by the Consti.
" * The argument contained in the report here referred to, (which may be seen 20 Am. State Papers, 181), in vindication of the constitutionality of the alien and sedition laws, is condensed, but able. It will repay the perusal of the diligent student, who desires
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tution of the United States; and the inference from this principle, that the powers supposed to be necessary which are not so given to state governments, must reside in the government of the United States. The respect, which is felt for every portion of the constituted authorities, forbids some of the reflections which this singular paragraph might excite; and they are the more readily suppressed, as it may be presumed, with justice perhaps, as well as candour, that inadvertence may have had its share in the error. It would be an unjustifiable delicacy, nevertheless, to pass by so portentous a claim, proceeding from so high an authority, without a monitory notice of the fatal tendencies with which it would be pregnant. - Lastly, it is said, that a law on the same subject with the alien-act, passed by this state originally in 1785, and re-enacted in 1792, is a proof that a summary removal of suspected aliens, was not heretofore regarded by the Virginia Legislature, as liable to the objections now urged against such a measure, This charge against Virginia vanishes before the simple remark, that the law of Virginia relates to “suspicious persons being the subjects of any foreign power or state, who shall have made a declaration of war, or actually commenced hostilities, or from whom the President shall apprehend hostile designs;” whereas the act of Congress relates to aliens, being the subjects of soreign powers and states, who have neither declared war, nor commenced hostilities, nor from whom hostile designs are apprehended. . 2. It is next affirmed of the alien act, that it unites legislative, judicial, and executive powers in the hands of the President. However difficult it may be to mark, in every case, with clearness and certainty, the line which divides legislative power, from the other departments of power, all will agree, that the powers referred to these departments may be so general and undefined, as to be of a legislative, not of an executive or judicial nature; and may for that reason be unconstitutional. Details to a certain degree, are essential to the nature and character of a law; and on criminal subjects, it is proper, that details should leave as little as possible to the discretion of those who are to apply and to execute the law. If nothing more were required, in exercising a legislative trust, than a general conveyance of authority, without laying down any precise rules, by which the authority conveyed should be carried into effect; it would follow, that the whole power of legislation might be transferred by the legislature from itself, and proclamations might become substitutes for laws. A delegation of power in this latitude, would not be denied to be a union of the different powers. To determine, then, whether the appropriate powers of the distinct departments are united by the act authorizing the executive to remove aliens, it must be inquired whether it contains such details, definitions and rules, as appertain to the true character of a law; especially, a law by which personal liberty is invaded, property deprived of its value to the owner, and lise itself indirectly exposed to danger. The alien-act declares, “that it shall be lawful for the President to order all such aliens as he shall judge dangerous to the peace and safety of the
United States, or shall have reasonable ground to suspect, are concerned in any treasonable, or secret machinations, against the government thereof, to depart,” &c. Could a power be well given in terms less definite, less particular, and less precise? To be dangerous to the public safety; to be suspected of secret machinations against the government: these can never be mistaken for legal rules or certain definitions. They leave everything to the President. His will is the law. But, it is not a legislative power only, that is given to the President. He is to stand in the place of the judiciary also. His suspicion is the only evidence which is to convict: his order, the only judgment which is to be executed. - - Thus, it is the President whose will is to designate the offensive conduct; it is his will that is to ascertain the individuals on whom it is charged; and it is his will, that is to cause the sentence to be executed. It is rightly affirmed, therefore, that the act unites legislative and judicial powers to those of the executive. 3. It is affirmed, that this union of power subverts the general principles of free government. It has become an axiom in the science of government, that a separation of the legislative, executive, and judicial departments, is necessary to the preservation of public liberty.” Nowhere has this axiom been better understood in theory, or more carefully pursued in practice, than in the United States. 4. It is affirmed that such a union of powers subverts the particular organization and positive provisions of the Federal Constitution. According to the particular organization of the Constitution, its legislative powers are vested in the Congress, its executive powers in the President, and its judicial powers in a supreme and inferior tribunals. The union of any two of these powers, and still more of all three, in any one of these departments, as has been shown to be done by the alien-act, must consequently subvert the constitutional organization of them. That positive provisions, in the Constitution, securing to individuals the benefits of fair trial, are also violated by the union of powers in the alienact, necessarily results from the two facts, that the act relates to alien friends, and that alien friends being under the municipal law only, are entitled to its protection. II. The second object against which the resolution protests, is the sedition-act. Of this act it is affirmed, 1. That it exercises in like manner a power not delegated by the Constitution. 2. That the power, on the contrary, is expressly and positively forbidden by one of the amendments to the Constitution. 3. That this is a power, which more than any other ought to produce universal alarm; because it is levelled against that right of freely examining public characters and measures, and of free communication thereon, which has ever been justly deemed the only effectual guardian of every other right.
1. That it exercises a power not delegated by the Constitution. Here again, it will be proper to recollect, that the Federal Government being composed of powers specifically granted, with a reservation of all others to the states or to the people, the positive authority under which the sedition-act could be passed must be produced by those who assert its constitutionality. In what part of the Constitution, then, is this authority to be found? Several attempts have been made to answer this question, which will be examined in their order. The committee will begin with one, which has filled them with equal astonishment and apprehension; and which, they cannot but persuade themselves, must have the same effect on all, who will consider it with coolness and impartiality, and with a reverence for our Constitution, in the true character in which it issued from the sovereign authority of the people. The committee refer to the doctrine lately advanced as a sanction to the sedition-act, “that the common or unwritten law,” a law of vast extent and complexity, and embracing almost every possible subject of legislation, both civil and criminal, makes a part of the law of these states, in their united and national capacity.” The novelty and, in the judgment of the committee, the extravagance of this pretension, would have consigned it to the silence in which they have passed by other arguments, which an extraordinary zeal for the act has drawn into the discussion: But the auspices under which this innovation presents itself, have constrained the committee to bestow on it an attention, which other considerations might have forbidden. In executing the task, it may be of use to look back to the colonial state of this country, prior to the Revolution; to trace the effects of the Revolution which converted the colonies into independent states; to inquire into the import of the articles of confederation, the first instrument by which the union of the states was regularly established; and finally, to consult the Constitution of 1788, which is the oracle that must decide the important question. In the state, prior to the Revolution, it is certain that the common law, under different limitations, made a part of the colonial codes. But whether it be understood that the original colonists brought the law with them, or made it their law by adoption; it is equally certain, that it was the separate law of each colony within its respective limits, and was unknown to them, as a law pervading, and operating through the whole, as one society. It could not possibly be otherwise. The common law was not the same in any two of the colonies; in some, the modifications were materially and extensively different. There was no common legislature, by which a common will could be expressed in the form of a law; nor any common magistracy, by which such a law could be carried into practice. The will of each colony, alone and separately, had its organs for these purposes.
* The argument that the sedition-act was justified by the common law, and that the common law is part of the law of the Federal Government, is stated at length by Mr. George K. Taylor, in the debate on the resolutions, Ante, p. 133, et seq. See, also, 1 Tuck. Bl. Part I. Appendix, p. 378, n. E.
This stage of our political history furnishes no foothold for the patrons f this new doctrine. - ‘Did then the principle or operation of the great event which made the colonies independent states, imply or introduce the common law as a law of the Union ? The fundamental principle of the Revolution was, that the colonies were co-ordinate members with each other, and with Great Britain, of an em. pire, united by a common executive sovereign, but not united by any common legislative sovereign. The legislative power was maintained to be as complete in each American parliament, as in the British parliament. And the royal prerogative was in force in each colony, by virtue of its acknowledging the king for its executive magistrate, as it was in Great Britain, by virtue of a like acknowledgment there. A denial of these principles by Great Britain, and the assertion of them by America, produced the Revolution. There was a time, indeed, when an exception to the legislative separation of the several component and coequal parts of the empire obtained a degree of acquiescence. The British parliament was allowed to regulate the trade with foreign nations, and between the different parts of the em. pire. This was, however, mere practice without right, and contrary to the true theory of the Constitution. The conveniency of some regulations, in both those cases, was apparent ; and as there was no legislature with power over the whole, nor any constitutional pre-eminence among the legislatures of the several parts, it was natural for the legislature of that particular part which was the eldest and the largest, to assume this function, and for the others to acquiesce in it. This tacit arrangement was the less criticised, as the regulations established by the British parliament operated in favour of that part of the empire which seemed to bear the principal share of the public burdens, and were regarded as an indemnification of its advances for the other parts. As long as this regulating power was confined to the two objects of conveniency and equity, it was not complained of, nor much inquired into. But, no sooner was it perverted to the selfish views of the party assuming it, than the injured parties began to feel and to reflect; and the moment the claim to a direct and . indefinite power was ingrafted on the precedent of the regulating power, the whole charm was dissolved, and every eye opened to the usurpation. The assertion by Great Britain of a power to make laws for the other members of the empire in all cases whatsoever, ended in, the discovery that she had a right to make laws for them in no cases whatsoever. Such being the ground of our Revolution, no support nor colour can be drawn from it, for the doctrine that the common law is binding on these states as one society. The doctrine, on the contrary, is evidently repugnant to the fundamental principle of the Revolution. The articles of confederation are the next source of information on this subject. In the interval between the commencement of the Revolution and the final ratification of these articles, the nature and extent of the Union was determined by the circumstances of the crisis, rather than by any accurate delineation of the general authority. It will not be alleged, that the