Wednesday, October 02, 2013
“for if it was unconstitutional, the people ought to resort to arms”
IN THE HOUSE OF DELEGATES,
Monday, December 17, 1798.
The house resolved itself into a committee of the whole house, on the state of the commonwealth, Mr. Brackenridge in the chair, when Mr. John Taylor's resolutions being still under consideration,
Mr. BARBOUR arose, and observed, that being a young man, he did not intend to have troubled the committee with any remarks upon the subject under discussion, but the solicitude he experienced had impelled him forward. He observed, that the moment on which he arose, might be called the first of his political existence, and yet in that moment he was called upon to decide a question, in which, not only his own fate as a politician, but the welfare of his country was materially involved. Mr. Barbour asked, what must be the sensations of a young man the first instant he stepped on the theatre of public life, to be called on to act a part, in which such important consequences are implicated-( He observed, he experienced those sensations to an eminent degree. But having formed a rule, by which he meant to be governed in his political career, which was, to pursue the line of conduct his judgment dictated as the most proper, he would announce to the committee, and through the committee to the world, the motives which actuated him to give the vote he was about to pronounce, which would be in favor of the adoption of the resolutions. He observed, it had been remarked by every gentleman, whether pro or con, that the event of the present discussion was important. He begged leave to add his testimony likewise to the importance of the subject. And he believed he should not use language too strong, was he to assert, that in the proceedings of this legislature might be read the destinies of America: for issue was joined between monarchical principles on the one hand, and republican on the other; and they were the grand inquest who were to determine the controversy. For should so important a state as Virginia sanction the measures complained of in the resolutions, (which she would do if the resolutions should be rejected,) it would become a step-stone to farther usurpation, until those great rights, which are guaranteed by nature and the constitution, will be destroyed one by one, and a monarchy erected upon the ruins thereof. But on the contrary, if she discountenanced those measures, (as she would do by the adoption of the resolutions,) and could obtain the co-operation of the sister states, it might overawe tyranny, for tyranny in embryo was timid. He asked, could it be necessary, to conjure the members of the committee to be tremulously alive to the importance of the subject, and viewing it free from prepossessions, should give that opinion, which would redound most to their own fame and eventuate in the welfare of their country. He then read the resolutions and observed, the gentleman from Prince George had remarked, that those resolutions invited the people to insurrection and to arms. But Mr. Barbour said, if he could conceive that the consequence foretold would grow out of the measure, he would become its bitterest enemy, for he deprecated intestine commotion, civil war and bloodshed, as the most direful evils which could befal a country, except slavery. A resort to arms was the last appeal of an oppressed, an injured nation, and was never made but when public servants converted themselves by usurpation into masters, and destroyed rights once participated; and then, it was justifiable. But he observed, the idea of that same gentleman was in concert, as would appear by reference to a leading feature in the resolutions, .which was, their being addressed not to the people, but to the sister states; praying in a pacific way their co-operation in arresting the tendency and effect of unconstitutional laws. He observed, it had been said by some gentlemen that they admitted the unconstitutionality of the laws, and yet they would vote against the resolutions, for that the subject exclusively belonged to the people, and if their servants had violated their trust, they ought to substitute others. In answer to this, Mr. Barbour observed, that doctrine like this, was pregnant with every mischief. For once admit, said he, that the states have no check, no constitutional barrier against the encroachment of the general government, we should thereby lessen that weight to which the state governments are entitled in the political machine, which in America is a complex one. We should thereby destroy those checks and balances, which are the sine qua non of their mutual existence and welfare. And the consequence then would be, that instead of harmony and symmetry which has hitherto prevailed, chaos, confusion, and all the evils incident to that situation, would be the inevitable result. In theory this doctrine is alarming, but fortunately for the liberties of America, when it comes to be tried by the rules of reason and sound argument, it is found monstrous and absurd, and therefore its advocates must be few. He observed, that he would undertake to demonstrate that, although the people possessed the right of excluding those who advocated the obnoxious measures, and he hoped would exercise the right, yet the state legislatures not only had a concurrent right, but was equally bound to exercise that right. He asked, who were the parties that formed the compact? Were they not the people and the states? If it had been formed exclusively by the people, he supposed a majority of the people would have been sufficient to have confirmed the compact. But what was the fact? Did not the constitution require, that the consent of nine of the states shall be an indispensable preliminary to its adoption? Again, did it not permit three fourths of the legislatures to alter the constitution, without the intervention of the people? And cannot the states admit new parties to the compact, to wit: by the erection of new states? Again, are not the state legislatures to the senate, what the people are to the representatives? And if the latter possess the power of censure and discharge (which as yet no gentleman would deny,) must it not follow by a parity of reasoning, that the former possess the same power relative to the body elected by themselves? Again, the president is elected by electors, who represent the states as well as the people; for the number of electors are not in proportion to the number of the people alone, but the states as well as the people: for example, the state of Delaware has three electors, when it is entitled to but one representative; whereas Virginia has only twenty-one electors when she is entitled to nineteen representatives. It must follow, then as an incontrovertible deduction, that the states are parties to the compact, and being parties, if the compact was violated (as it was violated) the states have the right and ought to exercise it, to declare that those proceedings, which are an infringement upon the constitution, are not binding. The state legislatures being the immediate representatives of the people, and consequently the immediate guardians of their rights, should sound the tocsin of alarm at the approach of danger, and should be the arm of the people to repel every invasion. If, said he, the alien and sedition laws are unconstitutional, they are not law, and of course of no force. For what are the necessary ingredients to the constitution and the force of a law? It was not only essential they should receive the sanction of the constituted authorities, but the act itself must be in unison with the constitution; for, if an agent should transcend his limited authorities, he would be guilty of usurpation; and all usurpation being founded in wrong, whatever has that only for its support must be void. This being the case, the legislature would be guilty of misprision of treason against the liberties of their constituents if they did not denounce the violations offered to the constitution through the medium of the alien and sedition laws. He observed, it remained for him to show, that the laws alluded to, were unconstitutional. The worthy gentleman from Caroline having proven, in a clear and perspicuous manner, the unconstitutionality of the sedition law, and delineated, in masterly and eloquent language, the consequences of that act, which is entitled to the infamous pre-eminence in the scale of guilt, and as no gentleman had undertaken its defence, Mr. Barbour said, that his remarks would be confined to the alien law alone. And, in order to ascertain whether this law was constitutional or not, reference must be had to the nature of the constitution. The government must be either limited or unlimited. If the latter, it was omnipotent, like the parliament of Great Britain, and was adequate to the purpose of passing any law, however impolitic, absurd or dangerous it might be to the liberties of the people. But, if it were limited, (which was a principle he supposed so clear, that to consume the time of the committee in proving it, would be a supererogation,) it would remain then to be enquired, whether in the limited power granted, a power be given to pass a law like the one now under discussion, or not. He observed, that to comprehend the nature of the constitution of the general government, it might not be unimportant to recur to the political situation of America, prior to the adoption of the federal government. In 1776, the thirteen United States, then the colonies of America, after having been lacerated to the midriff by the vulture fangs of British persecution, threw off their colonial subjugation, and took a stand amongst the nations of the earth. At this time, there were thirteen independent sovereignties tied together by the feeble bands of the articles of confederation. So long as the pressure of external danger was felt, so long the bond of union was found sufficiently strong. So long as all jealousies and rivalships were sacrificed on the altar of public good, the defects of that system were, in some measure, concealed. But, so soon as the pressure of foreign invasion was removed, so soon it was discovered that the system of union created by the confederation was inadequate to the sublime purposes for which it was intended. The people of America saw and deplored the situation with which they were menaced; and the Virginia legislature, sensible of the jeopardy to which their well earned liberties were exposed, were the first to recommend a resolution in the compact by which the states were connected, notwithstanding the senseless yell and malicious calumnies with which certain hireling papers to the east teem, of a disposition in this state to shake off the union. Influenced by this spirit, the convention met in the year 1786, in Annapolis, but broke up without doing any thing effectual. In the year 1787, the convention which met in Philadelphia gave birth to the federal constitution. The object of the general government, ex vi termini, must be for general purposes; and the powers necessary to carry those purposes into effect, were expressly defined; and it was the sense of the American people, contemporaneous with the adoption of the general government, when the attributes and qualities of that government were best understood, that all powers not granted were retained. As an evidence of which, let reference be had, he said, to the twelfth amendment of the federal constitution, which expressly declares, that all powers not granted to the general government, were retained to the states, or the people, respectively. It was then urged, (with propriety too, as the sequel has evinced,) that the federal constitution was defective, in consequence of its wanting a bill of rights. It was answered by the advocates of the constitution, (amongst whom was Mr. Lee of Westmoreland, who now displayed great zeal in support of administration, and consequently, amongst the friends of administration, should have some weight,) that the constitution was better without, than with a bill of rights; for, if there had been, (Mr. Lee observed) an enumeration of particular rights with the friends to forced construction, there would have been a claim, as residuary legatee, to all rights not expressly retained; but in the present government, there were only particular powers granted, and consequently, all powers not granted, are retained to the states, or the people, respectively: a doctrine which he (Mr. Barbour) observed before, had been recognized in the twelfth amendment to the constitution. Mr. Barbour then observed, that he having shown that the government could exercise no power but what was specifically enumerated, it behoved the authors or supporters of the law to show that the power of making a law like the one which was now the subject of discussion, was designated in the list of specific powers. If they could not show it, it must follow, it was an usurpation of power not warranted by the constitution. To ascertain the truth upon this subject, which in argument was desirable, let reference be had, he said, to the section which enumerates the powers that congress can legally exercise, (being the eighth section of the first article.) Any power which congress should exercise, not warranted by that charter, would be an usurpation upon the rights of the states, or the people; and in proportion to the extent of the usurpation, should be the execration of every friend to republican government and the liberties of the people. It would be discovered, when reference was had to the section of the constitution alluded to above, that no power to make an alien law is granted. When gentlemen are called upon to justify the assumption of power, they desert the ground of the law being justifiable agreeable to the letter of the constitution, and take refuge behind the sanctuary of implication. Mr. Barbour then described the danger of implied power, in a warm and animated manner. He begged the committee to be alive to the mischief with which this doctrine was teeming. If, said he, we once abandon the high road which the wisdom of our ancestors has established, and in which the constituted authorities were directed to walk; if we once abandon that palladium of civil liberty, our rights will be immediately gone. No, said he, let us, if our servants turn either to the right or to the left, smite them as of old was Balaam's ass, so that they turn not away from the path to which, if we mean to keep our liberties, they should adhere with undeviating regularity. Promulge it once, said he, to the world, or rather to congress, that they have a right to exercise powers by implication, and it requires not the aid of prophecy to foretell-, if we may judge of the future by the past, that those great and inestimable rights which flow from nature, and are the gift of nature's God, will be assassinated by the rude and unfeeling hand of ferocious despotism. That body will not only pass alien and sedition laws, which they have had the audacity to pass in the tenth year of the constitution, but will go on to increase the already black catalogue of crimes, new tangled, and existing only in the brain of suspicion and political villainy, till some of the best patriots are sacrificed, and the purest blood of which America boasts streams. The friends of liberty will be sacrificed, as so many obstacles to their ambitious designs, and despotism, covered with the gore of patriots, will stalk with impunity amongst us. But, Mr. Barbour said, he had determined to pursue the gentleman from Prince George through all the meanders and twistings of his argument, and expose its fallacy and danger; that there should be no ground upon which the supporters of this law should find rest: like the dove of old, they should be compelled to take refuge in the ark, which by the resolutions was prepared for their reception. For this reason, for the sake of argument, but for that only, (God forbid it should be for any thing else,) he would admit the principle that congress might legislate by implication, yet it could have no power of the kind which appears to have been exercised in making the alien law. But before he went into that subject, it was necessary he should take notice of some miscellaneous remarks which had fallen from the gentleman from Prince George. That gentleman had observed that congress had passed the law, and that we should hesitate before we declared it unconstitutional; for if it was unconstitutional, the people ought to resort to arms. In answer to this, Mr. Barbour observed, that the circumstance of congress having passed it, if it was intrinsically unconstitutional, did not render the law less so; and although he had a high respect for some of the members of congress in both houses, on account of their talents and integrity, yet some of the warmest advocates of this law and executive measures, were suspicious characters from their situation in life, which was so desperate as not to be endangered, but on the contrary they might try to be bettered by revolution and convulsion. Political profligacy in a republican government sooner or later will meet its fate, the execration of an injured people; but by a change, the Judases of American liberty will aspire to the acme of opulence in the sunshine of monarchy, the most genial climate for the growth of every thing which is abhorrent to republican simplicity and virtue. But, he said, if he had the highest estimation both for their virtue and wisdom, he should exercise his own judgment, with which he had been blessed by the God of nature, and if that condemned it, he should not hesitate to declare in strong terms his disapprobation. He trusted, he said, that the American people were not prepared for unconditional submission and non-resistance. A doctrine like this would have disgraced the last century, and was fit only for the miserable regions of the east, where ignorance, superstition and despotism their sad dominion keep. He trusted that the American people did not intend to attach to servants the attribute of infallibility: if not, the adoption of the law under discussion, by congress, would have no weight upon the mind of the committee. The gentleman urged that we should hesitate, before a declaration was made that the law was unconstitutional. Mr. Barbour asked, what had been the conduct of the committee 1 Had they rushed precipitately into a determination? On the contrary, had not the subject been discussed for several days; and would it not continue to be discussed for several days more? Had not every gentleman an opportunity of delivering his ideas upon the subject? And had not a depth of judgment and a brilliancy of talent been displayed in the discussion, which would do honor to any deliberative body? In short, had not the subject been treated in a manner suited to its importance? What more then could be asked? The gentleman from Prince George was for the people's rising en masse, if the law was unconstitutional. For his part, Mr. Barbour said, he was for using no violence. It was the peculiar blessing of the American people to have redress within their reach, by constitutional and peaceful means. He was for giving congress an opportunity of repealing those obnoxious laws complained of in the resolutions; and thereby effacing from the American character a stain, which, if not soon wiped off, would become indelible. The gentleman from Prince George had further said, that all the other states in the union had met and adjourned, and tacitly acquiesced in the measures which had been pursued by the general government. The gentleman was incorrect in point of fact. The state of Kentucky had, in language as bold as could be used, expressed their execration of some of the leading measures of the general government adopted at their last session; but upon none more particularly than upon the laws complained of in the resolutions. The state of Tennessee was in such a situation, as to require or authorize the governor to convene an extra session. About
what could it be, if it was not the uneasiness experienced by the people of that state at the usurpation of the general government? In respect to the other states being not adverse, he would not contradict the gentleman. But what weight would this remark have upon the committee? Was the conduct of the other states to be the criterion whereby to govern this state? He trusted not. He hoped, that so long as this state kept its independence, it would think and act for itself. Virginia had been always forward in repelling usurpation of every kind; and he trusted she never would forfeit the reputation she had acquired; but always would be the champion of the rights and liberties of America. But, he said, having answered the desultory remarks of the gentleman from Prince George, he would return to the doctrine of implication. That gentleman read the preamble to the federal constitution, to prove that, as the liberty and general welfare of the whole were the object of the constitution, congress had a right to do any thing which might be necessary, in their opinion, to effect that purpose. The inference, Mr. Barbour observed, which had been deduced, was by no means tenable. To assert that the preamble to the constitution should alter or subvert the constitution, or that the preamble gave powers not given in the constitution, was in theory such a monstrous solecism, and so much opposed to every principle of construction, that he did suppose it would be subscribed to but by few. The preamble, to be sure, explains the end of the constitution. It was to secure the liberties and welfare of the American people, (but upon what terms.) Why, upon the terms designated in the constitution. The people of America and the states knew that the powers conceded to the general government by the federal constitution, were adequate to the ends contemplated. Then to pretend to assert that, although those powers, which the states and people designated as those only, which should be exercised, were not the only powers that were granted, was a calumny against the framers of the constitution; for they must have intended to ensnare the people. For what tnind could hesitate to pronounce, that the object of enumerating the powers must have been to fix barriers against the exercise of other powers. And Mr. Barbour demanded to know, what was the use of a specific enumeration of powers, if it was intended to invest the general government with sweeping powers? For what could be more awkward or ridiculous, than to see the wisdom of America defining the particular powers, which its government might legally and constitutionally act upon, and in the conclusion, in investing them with general powers, which from the expression must have included all those specific powers, which had been previously granted. Mr. Barbour then referred to Publius, 2d vol. pages 46, 7, 8, as an author, who had treated this subject very fully and ably. The gentleman from Prince George had said, that the last clause of the 8th section of the 1st article, commonly called the sweeping clause, the substance of which is, "That congress shall havp power to pass all laws, which shall be necessary to the carrying into effect the foregoing powers," would justify congress in making the laws complained of. Mr. Barbour asked, what was the object of that clause? It was not to create new powers, but to complete the other powers before granted. This clause was indispensable; without it the constitution would have been a dead letter. For if congress possessed not the power of making laws to carry into effect the powers specifically enumerated, the powers granted would have been useless; since to possess rights which cannot be carried into effect, was just the same as if there were no rights. But no other construction could attach; for that clause speaks only of those powers which before had been granted. And if no power relative to aliens had been granted, this clause could have no possible effect, which he hoped he had sufficiently demonstrated. Mr. Barbour said that the gentleman from Prince George had relied upon the fourth section of the fourth article of the constitution, by which congress guarantees to each state a republican form of government, and binds itself to protect each state from invasion, &c. as one out of which the implied power of making alien laws grew. For he asked how could the general government protect from invasion, without the power of passing a law like the alien; and that it was indispensable the general government should possess the power of expelling aliens: for, if they had not the power, the state of Virginia might admit Buonaparte's army, with him at their head, (if he should ever escape from the Nile.) If, said Mr. Barbour, no other reason could be assigned in favor of the alien law, than an idea so wild as the danger of admitting Buonaparte and his army, its supporters must be in pitiful distress. To anticipate danger of this kind, was to attach to this state not only criminality, and that too of the blackest kind, but stupidity bordering on idiocy, and to set at defiance the uniform experience of mankind. For was it ever yet known that a nation participating the blessings of liberty and peace, invited into its bosom a powerful foe, by which those invaluable blessings might be rifled. An idea of this kind was the child of a mind labouring to but little purpose to find some justification for the opinions it advances. But who could have supposed that the section alluded to, which had for its object only imposing an obligation, should by some be converted into a source of power? What, Mr..Barbour asked, was the object of that section? It was to impose on congress the duty of defending each state from invasion. Congress, in the eighth section, had the power of declaring war; yet, without this section, congress was not bound to exercise this power; and was it not for this section, congress might have seen a state invaded, and yet by the letter of the constitution, would not have been bound to have defended it from invasion, but might have left her to her own resources. To guard against this inconvenience was this section inserted; yet out of this the committee were told new powers are derived to the general government. Mr. Barbour observed, it appeared to him a bold and unjustifiable assertion to say that the expulsion of alien friends was necessary to prevent invasion. For his part, his small intellectual faculties could not perceive the connection. He could readily perceive the necessity of expelling alien enemies; a right which congress possessed, and upon which they had acted; but that the expulsion of a friend was necessary to the prevention of invasion, created in his mind a confusion of ideas. It was asked by the gentleman from Prince George, by what authority did congress exercise control over foreign intercourse, if it was not by implication. Mr. Barbour answered, that the power was granted, he thought, by the third clause of the eighth section of the first article, the second clause of the second section, and the third section of the second article of the federal constitution. By the first, congress has power to regulate commerce with foreign nations. By the second, the president, by and with the advice and consent of the senate, may make treaties, and shall likewise appoint ambassadors and other public ministers and consuls. And by the last, the president is vested with the power of receiving ambassadors and other public ministers: from which it is apparent, that without the aid of implication, the general government possesses the power of regulating foreign intercourse. It was asked too by the same gentleman, by what power did congress erect forts, if it was not by implication? Mr. Barbour answered, by the last clause but one of the eighth section of the first article there was this language: "Congress shall have power to exercise exclusive legislation in all cases whatsoever over such district, &c.:" "And to exercise like authority over all places purchased, by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, &c." Mr. Barbour concluded upon this point, by observing that surely the gentleman had not read the constitution, for if he had he would not have propounded the question, when he must have known the answer would recoil upon him. It was asked too by the gentleman from Prince George, if congress possessed not the power to make the law now under discussion, by what authority did they make a law relative to alien enemies. Mr. Barbour answered he was happy he was able to instruct the gentleman upon the subject of the constitution, which he (Mr. Tay» lor,) had not read, or if he had, it was in a cursory and inattentive manner. He referred the gentleman from Prince George to the eleventh clause of the eighth section of article the first. By that, congress had the power of declaring war. So soon, then, as war shall be declared, by the law of nations, alien enemies become prisoners of war; and being prisoners of war, and congress having the sole power of declaring war, congress had a right to say what should be done with the prisoners, whose destiny congress alone could decide. Again, the power of declaring war was the genus. The prisoners, which shall have been made under that declaration, might be called a species. Now,-as the genus has been granted, the species, which is subordinate to the genus, has been granted likewise; it being an axiom in reason, that the lesser is always included in the greater. To deny the truth of this position, would be as absurd as to say, when A. has tranferred to B. a parcel of land, that the house or the vyood upon the land are not granted likewise. Or, when a transfer in fee simple is made, that the life estate is not given also. But it had been said, that Virginia has passed a similar law, and therefore, congress must have the right. Doctrine like this should be a warning to the Virginia legislature, not to deviate from the principles of liberty, or the spirit of its constitution, lest it should become a pretext to justify the worst of purposes in the hands of the general government. He observed, that he would not say whether Virginia had done right or wrong, in passing the law alluded to, because it was unimportant in the present discussion. He observed, the doctrine contended for by lha gentleman from Prince George, namely, that congress had a right to pass the law, because Virginia had done so, deserved the most serious attention and unreserved disapprobation of the committee. For, if it be true, the government of the United States would become an absolute consolidated government, and the sovereignty of the states annihilated; from which situation, said Mr. Barbour, good Lord deliver us! But fortunately for us, he said, the position existed only in the mind of ha author. The state legislature had a right to regulate the mode of descents. Agreeable to the doctrine of the gentleman from Prince George, congress would have a right to pass a similar law. Congress would possess the power of reviving the old feudal monarchical principle of primogeniture; and he had no doubt it would be done, because it would be in unison with the other acts of the general government. Yet, no sober man, at this time, would say that congress has a right to say any thing relative to the rules which shall be.observed in the descent of estates. It must be clear and obvious to every man, not infatuated with political fallacy, that there is a line of demarcation drawn between the powers of the state and general governments; and to assert that congress can do, whatever the state can do, is as absurd as to say, the state can do whatever congress can do; a position he did suppose the advocates of congressional omnipotence would be unwilling to admit. Mr. Barbour asked, in what cases congress had a right to call in the aid of implication? (Having admitted for argument that they on particular occasions might resort to that alternative.) For allow the supporters of the principle the utmost latitude for which they contend, it could only be resorted to when the constitution has given a power that cannot be consummated without implication. Wherever the constitution was explicit, implication must be excluded. He said he would illustrate his idea by assimilating this case to the doctrine which would prevail in the instance of presumptive and positive evidence. Where positive evidence from the nature of the case cannot be procured, presumptive evidence is admissible, but where positive evidence can be procured, presumptive evidence is inadmissible. The constitution too, in the ninth section of the first article, is expressly in point. It is to this effect, "the migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the congress prior to the year 1808." This then explicitly declaring that congress shall not inhibit the migration of aliens, if the state should think proper to admit them, must unquestionably exclude the idea of implication, and consequently the deductions drawn from that source, (the source itself being corrupt) must be fallacious. But it might be answered by a quibbler, that the alien law did not prevent the landing of aliens here. But where, Mr. Harbour asked, was the difference between their being prevented from landing, and the very moment they landed being sent off? He begged leave to state a similar instance, which would prove this was a distinction without a difference; namely, if a man should suffer another to come into his house, and the moment he stepped in, should kick him out, would this not be as bad, nay worse than if he had prevented him from coming in at all. The liberal mind looked down with pity and disdain upon such subterfuges; and hesitated not to declare that the alien laws did beyond question violate the constitution of the United States in this part thereof. This part of the constitution being violated should excite universal alarm; because to it was attached particular inviolability by the fifth article, which declares that in this particular the constitution should not be amended prior to the year 1808. Mr. Barbour said, the gentleman from Prince George having exhausted the doctrine of implication, had resorted to that of expediency, and contended that although congress had neither express nor implied power to pass the law, yet it being expedient, it was correct. He said if that doctrine be true, the constitution, instead of being the main pillar of American liberties, was but an institution calculated to ensnare. By the provisions in the constitution, which the American people supposed as so many guarantees to their liberties, they had been trepanned into fatal apathy, whilst they indulged themselves in what they supposed a well grounded reflection, that the checks in the federal government were inviolate. They were now as it were awakened from the fatal repose into which they had been carried by misplaced confidence; and as the people of Caroline well expressed it, this boasted constitution of their own choice, and the rights which it secured, are to evaporate in the crucible of legislative expedience. He said he felt himself unusually agitated at the bare mentioning of such monstrous doctrine. Go, said Mr. Barbour, and read the historic page: it would there be found that expediency has been the invariable pretext of tyranny: it has been with that engine that the liberties of a free people were eternally assailed. If, said he, the time should ever come (which God forbid) when that doctrine should prevail, we might date it as the aera of the downfall of American freedom. From that moment, let the votaries of liberty be shrouded in sackcloth, and with ashes upon their head, deplore the departure of their protecting genius. And, if from America the genius of liberty should ever take her flight, like the vital spirit it would return no more to reanimate the body from which it had flown. The gentleman too, to support the necessity or expediency of the law, resorted to the situation of this country as it related to France. This he said was the favorite theme: this was a ground he had anticipated: it was not new: it had been successfully adopted by the higher orders of government. The conduct of France towards this country had been echoed by the friends of administration from every part of America, and under the momentary delusion created by the dispatches of the American envoys, it was hoped that principles of usurpation might be pushed. The jealous friends of the constitution and the liberties of the people, if they had fortitude to oppose the impulse of the moment, and declare that the general government was bent upon the subversion of republican principles, were branded with the opprobrious epithets of being disorganizers, French partizans, and enemies to all order; and the president of the United States, confident of success from the supposed wisdom of his operations, has condescended to become the head of the party, and has used language which from its billingsgate stylo, as a man he treated with supercilious contempt; but as an American, he would feign shed an obliterating tear, which should efface it forever. As coming from the chief magistrate of the union, it would inflict an indelible stima upon the American name.
Mr. Barbour said, he would not pretend to justify the conduct of France to this country. It was such as met with his disapprobation. It was an event, he said, that would be long deplored, and the consequences thereof were incalculable; for it had become the pretext of those measures, of which he complained. But, he said he felt indignant at this idea, that domestic usurpation was to be justified upon the ground of the maltreatment of a foreign nation; and that the president of the United States should dare brand the guardians of the rights of the people with the offensive name of a faction; and to use his own language, that this faction should be ground into dust and ashes. Whom did Mr. Adams mean to call a faction? A majority of the yeomanry of America. For it was a fact not susceptible of any doubt, that a large majority of real native Americans were opposed to his election and his political opinions; which Mr. Barbour said he would denounce as being hostile to republicanism. For, although Mr. Adams was elected by a majority of three votes, yet it was well known that the majority was produced by artifice and coalition of federal officers, persons deeply concerned in funding and banking systems, refugees, foreigners, (whose whole life had been but a life of warfare against the principles of free government,) bankrupt speculators, and to complete the groupe, all those who could profit by change and convulsion. Mr. Barbour said he would not be understood to pass an indiscriminate censure against all the friends of Mr. Adams; because he believed there were as virtuous and as enlightened characters, friends to his election, as were opposed to it. Neither should he have made any remarks upon the nature of parties, had not the gauntlet been thrown: from that circumstance he thought himself justifiable in taking it up, and causing it to recoil upon the head of its author. He said he supposed he was one of that party, whose fate had been anticipated; but he felt an elevating pride when he was classed with the names of Jefferson and Madison; names which to the latest time, so long as worth, and real patriotism should be respected, would cast a shade upon the author of such sentiments. Mr. Barbour said, for his part he could not perceive the connection between the conduct of Prance and the conduct of our own government; and although the friends of administration had been able by their dexterity in the arts of delusion, to gain a momentary advantage; although the passions of the people were excited for the instant, by which reason, the noblest inhabitant of the human mind had been dethroned, yet they (for the people think generally right,) at last, under the influence of truth, when generally disseminated, would regain their reason, unclouded by passion, and at that moment they would spurn from them with inexpressible detestation, the authors of their delusion. He hoped then that no more would be said of the conduct of France, in justification of alien and sedition laws. But the gentleman from Prince George had attempted to alarm the committee into his opinions, by delineating the fate of the island of St. Domingo. He told us that the fertile plains of that island had been deluged with seas of blood, and strewed with mangled carcases and mutilated limbs; and that if the alien law had not passed, by which all dangerous aliens were excluded, the same fate might have befallen the southern states. The committee were almost taught to tremble at the idea of their houses being wrapt in flames; their property a prey to rapine; their lives to massacre; their wives, their daughters and their sisters falling victims to the brutal and indiscriminate lust of the negro; and in short every thing to misery and ruin. But, Mr. Barbour said, he respected too highly the good sense and judgment of the committee, to suppose for a moment that attempts of that kind would succeed: he knew they would be deemed the meagre, unimportant chink of the moment, that would scarcely survive the instant that gave them birth. That gentleman's sensibility was organized only by imaginary evils; it was not at leisure to deplore the situation to which the unfortunate aliens, by this law, will be reduced. Instead of this class of people moving in the elevated sphere of freemen, which they occupied before the adoption of this law, they will be sunk into the despicable grade of slaves, whose destiny was suspended upon the arbitrary nod of one man. Mr. Barbour said, the committee were told too of a conspiracy, which had for its object a schism in the empire, by which we were to lose the western country. Where was the evidence of that? Before he was willing to legislate, he said, he must have evidence of the fact, of a fact apparently so incredible^ and so derogatory to the character of his country. He believed the western country, particularly Kentucky, was inhabited by as virtuous and as patriotic characters as the world ever produced: men who possessed that genuine and fervent regard for the cause of liberty that goes to elevate human nature a grade in the scale of animated nature, from which they look down with ineffable disdain upon such calumnious charges as those. Conspiracies, plots and wild chimeras were always resorted to in justification of tyrannic measures. The popular pretext of public good was the auxiliary called in to palliate measures pregnant with public evil. And too frequently under the mask of a zeal for the welfare of the commonwealth, were concealed designs which would eventuate in the destruction of the liberties of the people. But they had been told by the gentleman from Prince George, that the law was made for two characters, to wit, Talleyrand and Volney; and that those characters had in consequence of the same, sneaked off. Independent of the absurdity of the principle, namely, the making a general law to suit a particular case, the gentleman was most egregiously mistaken in point of fact; for Talleyrand was minister for foreign affairs for France, and in France at the time the law passed. How then the law could pass to operate on Talleyrand, was to him astonishing. For the character of Talleyrand, Mr. Barbour referred to the statement which had been made by the gentleman from Prince William. It was sufficient to say, that so long as he was supposed to be a martyr to the cause of monarchy, so long he was bosomed by Mr. Hamilton and his party. As to Mr. Volney, he said, the cause of truth and virtue required he should speak more at large. He had the pleasure of seeing that meritorious character whilst in America, but he knew him better by history than from personal acquaintance. He from maturity had been influenced by the benevolent desire of ameliorating the condition of mankind by illuminating the mind and dispelling superstition. It was for this sublime purpose we saw him traversing Asia, and sitting in meditative silence amidst the ruins of Palmyra, drawing wisdom from experience, and developing the causes which contribute to the dissolution of the elements of society, and the overthrow of empires, and his capacious mind filled with materials of knowledge of the best kind. We saw him returning thence to his native country, to publish to the world his acquirements, as so many beacons by which those who sit at the head of affairs might guide the vessel of state free from those shoals upon which they have so frequently shipwrecked. Unfortunately for this philosopher, for France, and for the world, Robespierre was at this time at the acme of power. Robespierre, the most infamous of mankind, always the enemy to national and genuine liberty, wherever it was found, confined this friend to the species in the instrument of despotism, a gloomy jail. By the working of events, a revolution takes place in France, by which this sanguinary tyrant met the fate which all usurpets merit. Liberty reared its head, and emancipated one of its votaries, the enlightened Volney. No sooner was he free from incarceration, than he left once more his native country in pursuit of wisdom, and steered to Columbia, once happy land. He explored this extensive continent, and returned once more to Europe to analyse his knowledge, and to benefit mankind by disseminating the useful information which he had acquired. This then was the character against whom such unfounded calumnies have been uttered. But unless some evidence was exhibited, he should take the liberty to say that they were the offspring of the gentleman's own imagination, begotten by the phantom of delusion.
The gentleman from Prince George observed, that the power of making a law like the one under discussion, should belong to congress; otherwise, congress would be dependent upon sixteen states. This doctrine would perhaps do, if the gentleman was in convention, and was ascertaining the powers which should be exercised by the congress; but, the committee were not enquiring what these powers should be, but what they were. This reasoning, he made no doubt, was urged in convention; but, the representatives of the large states, which were but thinly inhabited, were opposed to the power being conceded to the general government; and he had shown, in a former part of his argument, that the power of restraining the migration of such persons as the states should think proper to admit, Was expressly inhibited by the constitution. The same gentleman descanted at large upon the conduct of France towards the European powers. Subterfuges of this kind evidently demonstrated the distress to which the supporters of this law were reduced. For what had the conduct of France to do with an abstract inquiry upon the constitutionality of the law under discussion. Alternatives of this kind were calculated only to inflame the passions at the expense of reason. But since the committee had been driven into this subject unavoidably, Mr. Barbour said he would examine what had been the conduct of France to the European powers. Why, she had done to those powers what those powers intended to do to her. She had subdued them, and out of the rotten governments, under which those countries groaned, had established four republican governments. The gentleman said, that the French intrigues succeeded only in republics, whilst in monarchies they had no effect. This was a calumny against republican government, en masse, and required serious attention and refutation.
Mr. Barbour asked, where was the republican government, the overthrow of which that gentleman so much deplored? Was there a republican government in Europe? No; there were some which had impudently assumed the name; but, it was a fact, not to be controverted, that in those countries the governments were completely aristocratic; than which, no government could be worse. But perhaps that gentleman had become a disciple of the new philosophy which had sprung up under the influence of the present administration, the head of which had declared, that aristocracy is the dictate of nature, is indispensable to the order of society, and the happiness of mankind, (alluding to Mr. Adams's answer to the address of the people of Harrison county.) If this principle were admitted as orthodox, the world should lament the ruin of aristocracies; but if it were false, (which he believed the greater part of America would not deny,) so far from mourning their downfall, it should diffuse general joy. Mr. Barbour said he had now pursued the gentleman through all the arguments which he had given into on the score of expediency, and trusted he had demonstrated their fallacy. He would now call the attention of the committee to a contrast he was about to draw between the law and the constitution. Let it then for argument sake be admitted that congress had a power to make a law relative to aliens; yet might not congress violate that right: As for example, congress have the power of laying a diredl tax, yet congress might violate that right in laying a tax without reference to the inhabitants of the state upon which the tax was to be laid. The alien law, Mr. Barbour said, violated the sixth amendment of the constitution, (the substance of which was, "that no warrant shall issue, but upon probable cause, and that too supported by oath or affirmation,") in this, that the president, without probable cause, without an oath, and barely upon suspicion, had a right to apprehend the alien, against whom some mercenary informer may have lodged a complaint. It likewise violated the seventh amendment in this; that by the alien law the president was invested with the power of consigning to banishment, without the formality of trial, this unfortunate class of people, of which he supposed we had myriads amongst us, when by that amendment it is declared, " that no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury."
By the eighth amendment it is declared too, that in all criminal prosecutions the accused shall enjoy a speedy and public trial by an impartial jury of his vicinage; and to be informed of .the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and have the assistance of counsel for his defence. It was only necessary to read the alien law, to show the palpable violations of the constitution. No oath or affirmation was requisite; no presentment or indictment by a grand Jury necessary; no trial by jury; his accusation, conviction and punishment, were all to be announced by the presidential officer in one breath. It was true, there might be a kind of mock trial before a tribunal filled with characters selected by the president: a tribunal not under the solemnity of oath, not under the least responsibility to public opinion, but from the nature of their institution, are taught to kiss the hand from whom they receive their authority: a tribunal unknown to our constitution; and in fact, as far as it went was an epitome of the star chamber and high commission courts. But, Mr. Barbour said, he had been told that the aliens were not parties to the compact, and therefore were not entitled to the benefit of the compact. He contended that by the law of nations, but what weighed still more strongly upon his mind, upon principles of reason and humanity, they were entitled to the benefit of the rights secured under the constitution. The law of nations, Vattel, page 171, section 135, declares that the sovereign authority of a state has no right to prevent the migration of persons into its country without a good reason. As for example, China has a right to refuse the admission of aliens, because its country is completely populated, and because the admission of aliens would operate an insuperable injury to its citizens. But what good reason could America assign for refusing admittance to strangers, with a country extensive, fertile beyond exception, and uninhabited. Had not the persecuted alien then a claim upon us not to be frittered away by the ingenuity of sophistry? Mr. Barbour said, having shown that strangers had a claim upon us, and that by the laws of nations they have a right to come amongst us, he would proceed to prove that when they were in this country, they were entitled to the benefit of the law. For this purpose he would refer to Vattel's law of nations, page 160-1. It js there said, that the law of the land is not only applicable to the particular. subjects, or citizens of the sovereign authority, but applies to all orders of people of every description. It appeared to him a doctrine of the most cruel kind, and which he trusted he should never again hear re-e.choed from these walls, to attempt to narrow the operation of an instrument for the purposes of despotism. A benign philosophy would dictate, that the constitution .should receive a liberal construction, when the welfare of thousands required it? But Mr. Barbour said, that aliens were parties to the compact, so far at least as relates to' security against oppression. For by coming to this country, they tacitly agree to be bound by the constitution and laws thereof. If an alien committed an offence, how in ordinary cases, was he tried 1 As citizens. How was he punished? As citizens. Surely then, as he was to be punished by the laws, he should be entitled to their protection. And Vattel further mentions, that an injury done a stranger should be punished by the sovereign authority, in as exemplary a manner as if done to a citizen.
But it had been said, that the sending off of aliens was no punishment: it was a kind of preventive justice. Language like this, was the offspring of a cold heart and muddy understanding. What! Was it no punishment to banish a fellow man from a country where he has invested his all? Where he has formed the strongest imaginable ties.? And in which he expected to find an asylum from the fangs of despotism? And perhaps to consign him back to the country, from the persecuting tyranny of which he might have fled? Let those who advocate this doctrine, bring the case home to themselves, and enquire if they would not conceive it a punishment to be banished from a country which contained their all. Mr. Barbour observed, that the alien law had violated the constitution in a very-obvious manner by destroying the main pillar upon which all free governments stand, namely, a separation in the three great elements of government. By it, the president was invested with legislative, executive and judicial powers, which Montesquieu defines to be the essence of despotism. He first gave his assent to the law as president. He then legislated in establishing a rule by which the alien is to be tried, and every rule was a law. The law itself has established no rule; has pointed out nothing which the alien shall avoid; nor yet prescribed any thing which he shall do. The president, in the gloomy, dark and inaccessible recesses of his mind, was then to prescribe the rule, and make it known only when he intended to punish under the rule; there then he legislated. He then was to judge whether the alien had violated his own rule, and if he should conceive or-suspect that he had, he was then to carry his own sentence into effect. If he had been called on to delineate a picture of frightful despotism, Mr. Barbour said, he -should think he had discharged the task by copying the alien law. The president of the United States was invested with the pleasing and humane power of pardoning. What kind of a figure would the president exhibit, when he had accused and condemned the poor unfortunate alien, to be applied to for a pardon? Was it ever yet known in a country which had participated freedom, and had progressed in jurisprudence, that the same man or set of men had the power of condemning and pardoning at the same lime? The enlightened Montesquieu has observed that it would create a confusion of ideas, and the world would be at a loss to know whether the culprit had been acquitted, or condemned and pardoned. In consequence of the measures which had been pursued, the executive branch of the government had acquired .an undue preponderance of power, •which had derogated from the other branches: the result of which was, that instead of their moving in the dignified sphere of planets, they had dwindled into the pitiful character of satellites, which played around the executive with servile complaisance. And the liberties of the American people, which revolve around the constitution as the centre of their system, should that be destroyed, would be precipitated into ruin likewise. America was destined, he said, to increase the already extended catalogue of despotic nations, and we should be compelled to admit the melancholy truth, that man is not susceptible of self government, but is doomed to be governed (he trembled whilst he related it,) by arbitrary, accursed arbitrary sway. But notwithstanding all this, we were told, hail Columbia, happy land! That the people of America were the happiest in the world! What then, were the people to wait till the pressure of the evil principle was felt? No. As an elegant author expressed, they augur misgovernment at a distance, and snuff the approach of tyranny in every tainted breeze. The political horizon of America, which some years ago shone with undiminished lustre, and which attracted the admiration of all the world, was now darkened with clouds of domestic usurpation, which waited but for some incentive to burst in dreadful violence upon our heads. What an august melancholy scene was here! That at the conclusion of the eighteenth century, a time which twenty years ago, by the sanguine admirers of the Tights of mankind, would have been anticipated as the birth day of a general jubilee of emancipation, when distant nations would have heard and have quickened into public life by the sound, the Virginia legislature was brought to decide whether even in America itself, the birth place and cradle of liberty, liberty shall be preserved, or whether bound hand and foot as it was, it shall be offered up as a sacrifice upon the altar of vice and ambition. Mr. Barbour then expressed himself in the following strong and animated manner: Legislators of Virginia! The voice of the people speaks to you: the eyes of the friends of liberty throughout the continent, are upon you: and the friends of mankind throughout the world-, are waiting in anxious solicitude the result of your deliberation. The road to immortal honor is open before you: the temple of fame is within your reach, and the welfare of your country calls eminently upon you. By the adoption of the resolutions you raise a rampart against the inroads of usurpation, and your names will be wafted down on the stream of time, crowned with laurels, and as they pass will be hailed by a grateful posterity with plausive acclamations. But if you reject, you give additional weight to the already overgrown power of the general government, by which the liberties of the people will be subverted; and in some after time, when our country shall consider us, the people pointing you out shall say, there go the authors of our misfortunes.
He then concluded by thanking the Committee for the attention they had given him.
On motion, the committee then rose, the chairman reported progress, asked and obtained leave for the committee to sit again.
[Resolutions of Virginia and Kentucky, Penned By Madison And Jefferson, In Relation To The Alien And Sedition Laws; And The Debates And Proceedings In The House Of Delegates Of Virginia, On The Same, In December 1798. Richmond: Robert I. Smith. 1835. Printed By Samuel Shepard.]