- Alphabetical List of Authors
- Note On the Texts
- Part One: Colonial Settlements and Societies
- Virginia Articles, Laws, and Orders I610–11
- The Mayflower Compact November 11, 1620
- Fundamental Orders of Connecticut January 14, 1639
- The Massachusetts Body of Liberties December 1641
- Charter of Liberties and Frame of Government of the Province of Pennsylvania In America May 5, 1682
- Dorchester Agreement October 8, 1633
- Maryland Act For Swearing Allegiance 1638: Plymouth Oath of Allegiance and Fidelity 1625
- Little Speech On Liberty
- Copy of a Letter From Mr. Cotton to Lord Say and Seal
- Part Two: Religious Society and Religious Liberty In Early America
- The Bloody Tenent, of Persecution, For Cause of Conscience
- A Platform of Church Discipline
- Providence Agreement August 20, 1637: Maryland Act For Church Liberties 1638: Pennsylvania Act For Freedom of Conscience December 7, 1682
- Worcestriensis 1776
- Thanksgiving Proclamation and Letters to Religious Associations
- Farewell Address
- The Rights of Conscience Inalienable
- Letter to the Danbury Baptist Association
- Part Three: Defending the Charters
- Magna Charta 1215
- Petition of Right 1628
- An Account of the Late Revolution In New England and Boston Declaration of Grievances: Boston Declaration of Grievances
- The English Bill of Rights 1689
- The Stamp Act March 22, 1765
- Braintree Instructions
- Resolutions of the Virginia House of Burgesses June 1765: Declarations of the Stamp Act Congress October 24, 1765
- The Rights of the British Colonies Asserted and Proved
- The Act Repealing the Stamp Act March 18, 1766; the Declaratory Act, 1766
- Part Four: the War For Independence
- A Discourse At the Dedication of the Tree of Liberty
- Letters From a Farmer In Pennsylvania, Letters V and Ix
- Declaration and Resolves of the First Continental Congress October 14, 1774
- Virginia Bill of Rights June 12, 1776
- On Civil Liberty, Passive Obedience, and Non-resistance
- Common Sense
- The Declaration of Independence July 4, 1776
- Part Five: a New Constitution
- Thoughts On Government
- Articles of Confederation 1778
- The Essex Result April 29, 1778
- Northwest Ordinance 1787
- Albany Plan of Union July 10, 1754
- Virginia and New Jersey Plans 1787
- The Constitution of the United States of America 1787
- The Federalist , Papers 1, 9, 10, 39, 47–51, 78
- Address of the Minority of the Pennsylvania Convention December 12, 1787
- An Examination of the Leading Principles of the Federal Constitution
- Part Six: the Bill of Rights
- The Federalist , Papers 84 and 85
- Letter I
- Essay I
- Letter Iii
- Memorial and Remonstrance Against Religious Assessments: Virginia Bill For Establishing Religious Freedom
- Speech Introducing Proposed Constitutional Amendments: Debate Over First Amendment Language August 15, 1789: The First Ten Amendments to the Constitution, Or the Bill of Rights 1789
- Commentaries On the Constitution of the United States
- The People V. Ruggles
- Marbury V. Madison
- Barron V. The Mayor and City Council of Baltimore
- Part Seven: State Versus Federal Authority
- Essay V: “brutus” 1787
- Chisholm V. Georgia: U.s. Constitution, Eleventh Amendment 1787
- The Alien and Sedition Acts June 25, 1798: Virginia Resolutions December 21, 1798: Kentucky Resolutions November 10, 1798: Counter-resolutions of Other States 1799: Report of Virginia House of Delegates 1799
- The Duty of Americans, At the Present Crisis
- Report of the Hartford Convention 1815
- Commentaries On the Constitution of the United States: a Familiar Exposition of the Constitution of the United States
- Part Eight: Forging a Nation
- Opinion Against the Constitutionality of a National Bank: Opinion As to the Constitutionality of the Bank of the United States
- Veto Message
- Veto Message
- Commentaries On the Constitution of the United States
- Address to the Young Men’s Lyceum of Springfield, Illinois: Address to the Wisconsin State Agricultural Society, Milwaukee, Wisconsin
- Newspaper Editorials: “direct Taxation” April 22, 1834: “chief Justice Marshall” July 28, 1835: “the Despotism of the Majority” March 25, 1837: “morals of Legislation” April 15, 1837: “the Morals of Politics” June 3, 1837
- Speech On Electioneering
- Speech Before the U.s. Senate (webster): Speech Before the U.s. Senate (hayne)
- Fort Hill Address
- Part Nine: Prelude to War
- Laws Regulating Servants and Slaves, 1630–1852
- “slavery” “agriculture and the Militia”
- The Missouri Compromise 1820–21
- Newspaper Editorials: “governor Mcduffie’s Message” February 10, 1835: “the Question of Slavery Narrowed to a Point” April 15, 1837: “‘abolition Insolence’” July 29, 1837
- Senate Speeches On the Compromise of 1850 Speech On the Slavery Question
- Second Fugitive Slave Law September 18, 1850: Ableman V. Booth (62 Us 506)
- Scott V. Sandford
- The Relative Position and Treatment of the Negroes the Abolitionists—consistency of Their Labors
- What Is Slavery? Slavery Is Despotism
- Kansas-nebraska Act 1856: Fifth Lincoln-douglas Debate October 7, 1858
State versus Federal Authority
One of the central issues at the Constitutional Convention and at the conventions called to consider ratifying that Constitution was this: How could Americans form a government to address their common problems without losing the sovereignty of their individual states? Arguments over representation, the powers of the Supreme Court, congressional taxing power, and even the Bill of Rights in large measure grew out of Americans’ concern to balance the needs of the nation with the rights of the states. Ratification and passage of the Constitution’s first ten amendments did not end this debate. Indeed, it remained at the center of American public life up through the Civil War and, in some ways and in certain quarters, long after.
Questions concerning states’ rights and federal authority erupted at various times before the Civil War. This occurred most explosively in regard to slavery, but two other issues raised tensions to dangerous levels. First, the Alien and Sedition Acts increased presidential powers concerning the status of foreign citizens suspected of foment-ing unrest and limited certain forms of criticism of the national government. Second, the War of 1812 was politically unpopular and raised the issue of the central government’s right to draft citizens of the states into military service. Both called the very existence of the states’ union into question.
Beneath the immediate issues was a constitutional question: Was the United States the creature of its states—a compact among sovereignties—or was it a union of citizens, joined together in a national government, with the states subordinate members of that greater whole?
In this essay, “Brutus” resurrects the American colonists’ distinction between “internal” and “external” taxation. In effect likening the federal government to Great Britain’s empire, Brutus argues that no central government can directly tax the goods or property of a people without taking away their rights. He is particularly concerned about the federal government’s ability to claim authority under the Necessary and Proper Clause—that phrase in the Constitution giving Congress the right to use means “necessary and proper” to carry out its enumerated, specifically granted powers. In Brutus’s view this power could lead to unlimited federal taxation, which would leave states dependent on the central government for their financial survival, effectively destroying state sovereignty.
To the People of the State of New-York
It was intended in this Number to have prosecuted the enquiry into the organization of this new system; particularly to have considered the dangerous and premature union of the President and Senate, and the mixture of legislative, executive, and judicial powers in the Senate.
But there is such an intimate connection between the several branches in whom the different species of authority is lodged, and the powers with which they are invested, that on reflection it seems necessary first to proceed to examine the nature and extent of the powers granted to the legislature.
This enquiry will assist us the better to determine, whether the legislature is so constituted, as to provide proper checks and restrictions for the security of our rights, and to guard against the abuse of power—For the means should be suited to the end; a government should be framed with a view to the objects to which it extends: if these be few in number, and of such a nature as to give but small occasion or opportunity to work oppression in the exercise of authority, there will be less need of a numerous representation, and special guards against abuse, than if the powers of the government are very extensive, and include a great variety of cases. It will also be found necessary to examine the extent of these powers, in order to form a just opinion how far this system can be considered as a confederation, or a consolidation of the states. Many of the advocates for, and most of the opponents to this system, agree that the form of government most suitable for the United States, is that of a confederation. The idea of a confederated government is that of a number of independent states entering into a compact, for the conducting certain general concerns, in which they have a common interest, leaving the management of their internal and local affairs to their separate governments. But whether the system proposed is of this nature cannot be determined without a strict enquiry into the powers proposed to be granted.
This constitution considers the people of the several states as one body corporate, and is intended as an original compact, it will therefore dissolve all contracts which may be inconsistent with it. This not only results from its nature, but is expressly declared in the 6th article of it. The design of the constitution is expressed in the preamble, to be, “in order to form a more perfect union, to establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and posterity.” These are the ends this government is to accomplish, and for which it is invested, with certain powers, among these is the power “to make all laws which are necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof.” It is a rule in construing a law to consider the objects the legislature had in view in passing it, and to give it such an explanation as to promote their intention. The same rule will apply in explaining a constitution. The great objects then are declared in this preamble in general and indefinite terms to be to provide for the common defence, promote the general welfare, and an express power being vested in the legislature to make all laws which shall be necessary and proper for carrying into execution all the powers vested in the general government. The inference is natural that the legislature will have an authority to make all laws which they shall judge necessary for the common safety, and to promote the general welfare. This amounts to a power to make laws at discretion: No terms can be found more indefinite than these, and it is obvious, that the legislature alone must judge what laws are proper and necessary for the purpose. It may be said, that this way of explaining the constitution, is torturing and making it speak what it never intended. This is far from my intention, and I shall not even insist upon this implied power, but join issue with those who say we are to collect the idea of the powers given from the express words of the clauses granting them; and it will not be difficult to shew that the same authority is expressly given which is supposed to be implied in the forgoing paragraphs.
In the 1st article, 8th section, it is declared, “that Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts, and provide for the common defence, and general welfare of the United States.” In the preamble, the intent of the constitution, among other things, is declared to be to provide for the common defence, and promote the general welfare, and in this clause the power is in express words given to Congress “to provide for the common defence, and general welfare.”—And in the last paragraph of the same section there is an express authority to make all laws which shall be necessary and proper for carrying into execution this power. It is therefore evident, that the legislature under this constitution may pass any law which they may think proper. It is true the 9th section restrains their power with respect to certain objects. But these restrictions are very limited, some of them improper, some unimportant, and others not easily understood, as I shall hereafter shew. It has been urged that the meaning I give to this part of the constitution is not the true one, that the intent of it is to confer on the legislature the power to lay and collect taxes, &c. in order to provide for the common defence and general welfare. To this I would reply, that the meaning and intent of the constitution is to be collected from the words of it, and I submit to the public, whether the construction I have given it is not the most natural and easy. But admitting the contrary opinion to prevail, I shall nevertheless, be able to shew, that the same powers are substantially vested in the general government, by several other articles in the constitution. It invests the legislature with authority to lay and collect taxes, duties, imposts and excises, in order to provide for the common defence, and promote the general welfare, and to pass all laws which may be necessary and proper for carrying this power into effect. To comprehend the extent of this authority, it will be requisite to examine 1st. what is included in this power to lay and collect taxes, duties, imposts and excises.
2d. What is implied in the authority, to pass all laws which shall be necessary and proper for carrying this power into execution.
3d. What limitation, if any, is set to the exercise of this power by the constitution.
1st. To detail the particulars comprehended in the general terms, taxes, duties, imposts and excises, would require a volume, instead of a single piece in a news-paper. Indeed it would be a task far beyond my ability, and to which no one can be competent, unless possessed of a mind capable of comprehending every possible source of revenue; for they extend to every possible way of raising money, whether by direct or indirect taxation. Under this clause may be imposed a poll-tax, a land-tax, a tax on houses and buildings, on windows and fire places, on cattle and on all kinds of personal property:—It extends to duties on all kinds of goods to any amount, to tonnage and poundage on vessels, to duties on written instruments, newspapers, almanacks, and books:—It comprehends an excise on all kinds of liquors, spirits, wines, cyder, beer, &c. and indeed takes in duty or excise on every necessary or conveniency of life; whether of foreign or home growth or manufactory. In short, we can have no conception of any way in which a government can raise money from the people, but what is included in one or other of these general terms. We may say then that this clause commits to the hands of the general legislature every conceivable source of revenue within the United States. Not only are these terms very comprehensive, and extend to a vast number of objects, but the power to lay and collect has great latitude; it will lead to the passing a vast number of laws, which may affect the personal rights of the citizens of the states, expose their property to fines and confiscation, and put their lives in jeopardy: it opens a door to the appointment of a swarm of revenue and excise officers to pray upon the honest and industrious part of the community, eat up their substance, and not on the spoils of the country.
2d. We will next enquire into what is implied in the authority to pass all laws which shall be necessary and proper to carry this power into execution.
It is, perhaps, utterly impossible fully to define this power. The authority granted in the first clause can only be understood in its full extent, by descending to all the particular cases in which a revenue can be raised; the number and variety of these cases are so endless, and as it were infinite, that no man living has, as yet, been able to reckon them up. The greatest geniuses in the world have been for ages employed in the research, and when mankind had supposed that the subject was exhausted they have been astonished with the refined improvements that have been made in modern times, and especially in the English nation on the subject—If then the objects of this power cannot be comprehended, how is it possible to understand the extent of that power which can pass all laws which shall be necessary and proper for carrying it into execution? It is truly incomprehensible. A case cannot be conceived of, which is not included in this power. It is well known that the subject of revenue is the most difficult and extensive in the science of government. It requires the greatest talents of a statesman, and the most numerous and exact provisions of the legislature. The command of the revenues of a state gives the command of every thing in it.—He that has the purse will have the sword, and they that have both, have every thing; so that the legislature having every source from which money can be drawn under their direction, with a right to make all laws necessary and proper for drawing forth all the resource of the country, would have, in fact, all power.
Were I to enter into the detail, it would be easy to shew how this power in its operation, would totally destroy all the powers of the individual states. But this is not necessary for those who will think for themselves, and it will be useless to such as take things upon trust, nothing will awaken them to reflection, until the iron hand of oppression compel them to it.
I shall only remark, that this power, given to the federal legislature, directly annihilates all the powers of the state legislatures. There cannot be a greater solecism in politics than to talk of power in a government, without the command of any revenue. It is as absurd as to talk of an animal without blood, or the subsistence of one without food. Now the general government having in their controul every possible source of revenue, and authority to pass any law they may deem necessary to draw them forth, or to facilitate their collection; no source of revenue is therefore left in the hands of any state. Should any state attempt to raise money by law, the general government may repeal or arrest it in the execution, for all their laws will be the supreme law of the land: If then any one can be weak enough to believe that a government can exist without having the authority to raise money to pay a door-keeper to their assembly, he may believe that the state government can exist, should this new constitution take place.
It is agreed by most of the advocates of this new system, that the government which is proper for the United States should be a confederated one; that the respective states ought to retain a portion of their sovereignty, and that they should preserve not only the forms of their legislatures, but also the power to conduct certain internal concerns. How far the powers to be retained by the states, [shall] extend, is the question; we need not spend much time on this subject, as it respects this constitution, for a government without the power to raise money is one only in name. It is clear that the legislatures of the respective states must be altogether dependent on the will of the general legislature, for the means of supporting their government. The legislature of the United States will have a right to exhaust every source of revenue in every state, and to annul all laws of the states which may stand in the way of effecting it; unless therefore we can suppose the state governments can exist without money to support the officers who execute them, we must conclude they will exist no longer than the general legislatures choose they should. Indeed the idea of any government existing, in any respect, as an independent one, without any means of support in their own hands, is an absurdity. If therefore, this constitution has in view, what many of its framers and advocates say it has, to secure and guarantee to the separate states the exercise of certain powers of government it certainly ought to have left in their hands some sources of revenue. It should have marked the line in which the general government should have raised money, and set bounds over which they should not pass, leaving to the separate states other means to raise supplies for the support of their governments, and to discharge their respective debts. To this it is objected, that the general government ought to have power competent to the purposes of the union; they are to provide for the common defence, to pay the debts of the United States, support foreign ministers, and the civil establishment of the union, and to do these they ought to have authority to raise money adequate to the purpose. On this I observe, that the state governments have also contracted debts, they require money to support their civil officers, and how this is to be done, if they give to the general government a power to raise money in every way in which it can possibly be raised, with such a controul over the state legislatures as to prohibit them, whenever the general legislature may think proper, from raising any money. It is again objected that it is very difficult, if not impossible, to draw the line of distinction between the powers of the general and state governments on this subject. The first, it is said, must have the power of raising the money necessary for the purposes of the union, if they are limited to certain objects the revenue may fall short of a sufficiency for the public exigencies, they must therefore have discretionary power. The line may be easily and accurately drawn between the powers of the two governments on this head. The distinction between external and internal taxes, is not a novel one in this country, it is a plain one, and easily understood. The first includes impost duties on all imported goods; this species of taxes it is proper should be laid by the general government; many reasons might be urged to shew that no danger is to be apprehended from their exercise of it. They may be collected in few places, and from few hands with certainty and expedition. But few officers are necessary to be imployed in collecting them, and there is no danger of oppression in laying them, because, if they are laid higher than trade will bear, the merchants will cease importing, or smuggle their goods. We have therefore sufficient security, arising from the nature of the thing, against burdonsome, and intolerable impositions from this kind of tax. But the case is far otherwise with regard to direct taxes; these include poll taxes, land taxes, excises, duties on written instruments, on every thing we eat, drink, or wear; they take hold of every species of property, and come home to every man’s house and packet. These are often so oppressive, as to grind the face of the poor, and render the lives of the common people a burden to them. The great and only security the people can have against oppression from this kind of taxes, must rest in their representatives. If they are sufficiently numerous to be well informed of the circumstances, and ability of those who send them, and have a proper regard for the people, they will be secure. The general legislature, as I have shewn in a former paper, will not be thus qualified, and therefore, on this account, ought not to exercise the power of direct taxation. If the power of laying imposts will not be sufficient, some other specific mode of raising a revenue should have been assigned the general government; many may be suggested in which their power may be accurately defined and limited, and it would be much better to give them authority to lay and collect a duty on exports, not to exceed a certain rate per cent, than to have surrendered every kind of resource that the country has, to the complete abolition of the state governments, and which will introduce such an infinite number of laws and ordinances, fines and penalties, courts, and judges, collectors, and excisemen, that when a man can number them, he may enumerate the stars of Heaven.
I shall resume this subject in my next, and by an induction of particulars shew, that this power, in its exercise, will subvert all state authority, and will work to the oppression of the people, and that there are no restrictions in the constitution that will soften its rigour, but rather the contrary.
Chisholm v. Georgia
U.S. Constitution, Eleventh Amendment
In 1792, the executors of the estate of Alexander Chisholm, a citizen of South Carolina, sued the state of Georgia for failing to pay debts owed to Chisholm. Georgia refused to appear in court, claiming that, as a sovereign state, it could not be sued without its own consent. The Supreme Court held for Chisholm on the ground that the Constitution’s Article 3, section 2, clearly said that states could be sued by citizens of other states. But the issues raised by Chisholm go beyond the language of the Constitution to the nature of the union. The federal government did not see itself as liable to being sued by just anyone at his own pleasure. It regulated when, how, and for what reasons it could be sued. In so doing, it followed the practice in Great Britain, where the king could be “sued” only in special courts that heard pleas as a favor or special grant. States extended federal practice in regard to suits from their own citizens.
In his opinion in Chisholm, Justice Wilson emphasized the sovereignty, not of any government, but of the people. According to Wilson, the real power in any free, republican government rested with the people themselves. And this included the right to give whatever powers they liked to whatever branch or level of government they saw fit. According to Wilson, it was self-evident that the people had not given states the power to refuse to be sued. When the Chisholm Court came to the conclusion that the states were less than sovereign parts of a sovereign union, the result was swift action in Congress and by the States—passing and ratifying the Eleventh Amendment in less than a year. This amendment revoked that constitutional language, reestablishing, for a time, the sovereignty of the states.
Chisholm v. Georgia (2 US 419)
Wilson,Justice. This is a case of uncommon magnitude. One of the parties to it is a State; certainly respectable, claiming to be sovereign. The question to be determined is, whether this State, so respectable, and whose claim soars so high, is amenable to the jurisdiction of the Supreme Court of the United States? This question, important in itself, will depend on others, more important still; and may, perhaps, be ultimately resolved into one, no less radical than this—“do the people of the United States form a Nation?”
A cause so conspicuous and interesting, should be carefully and accurately viewed from every possible point of sight. I shall examine it; 1st. By the principles of general jurisprudence. 2d. By the laws and practice of particular States and Kingdoms. From the law of nations little or no illustration of this subject can be expected. By that law the several States and Governments spread over our globe, are considered as forming a society, not a nation. It has only been by a very few comprehensive minds, such as those of Elizabeth and the Fourth Henry, that this last great idea has been even contemplated. 3dly. and chiefly, I shall examine the important question before us, by the Constitution of the United States, and the legitimate result of that valuable instrument.
I. I am, first, to examine this question by the principles of general jurisprudence. What I shall say upon this head, I introduce by the observation of an original and profound writer, who, in the philosophy of mind, and all the sciences attendant on this prime one, has formed an aera not less remarkable, and far more illustrious, than that formed by the justly celebrated Bacon, in another science, not prosecuted with less ability, but less dignified as to its object; I mean the philosophy of matter. Dr. Reid, in his excellent enquiry into the human mind, on the principles of common sense, speaking of the sceptical and illiberal philosophy, which under bold, but false, pretentions to liberality, prevailed in many parts of Europe before he wrote, makes the following judicious remark: “The language of philosophers, with regard to the original faculties of the mind, is so adapted to the prevailing system, that it cannot fit any other; like a coat that fits the man for whom it was made, and shews him to advantage, which yet will fit very aukward upon one of a different make, although as handsome and well proportioned. It is hardly possible to make any innovation in our philosophy concerning the mind and its operations, without using new words and phrases, or giving a different meaning to those that are received.” With equal propriety may this solid remark be applied to the great subject, on the principles of which the decision of this Court is to be founded. The perverted use of genus and species in logic, and of impressions and ideas in metaphysics, have never done mischief so extensive or so practically pernicious, as has been done by States and sovereigns, in politics and jurisprudence; in the politics and jurisprudence even of those, who wished and meant to be free. In the place of those expressions I intend not to substitute new ones; but the expressions themselves I shall certainly use for purposes different from those, for which hitherto they have been frequently used; and one of them I shall apply to an object still more different from that, to which it has hitherto been more frequently, I may say almost universally, applied. In these purposes, and in this application, I shall be justified by example the most splendid, and by authority the most binding; the example of the most refined as well as the most free nation known to antiquity; and the authority of one of the best Constitutions known to modern times. With regard to one of the terms—State—this authority is declared: With regard to the other—sovereign—the authority is implied only: But it is equally strong: For, in an instrument well drawn, as in a poem well composed, silence is sometimes most expressive.
To the Constitution of the United States the term sovereign, is totally unknown. There is but one place where it could have been used with propriety. But, even in that place it would not, perhaps, have comported with the delicacy of those, who ordained and established that Constitution. They might have announced themselves “sovereign” people of the United States: But serenely conscious of the fact, they avoided the ostentatious declaration.
Having thus avowed my disapprobation of the purposes, for which the terms, State and sovereign, are frequently used, and of the object, to which the application of the last of them is almost universally made; it is now proper that I should disclose the meaning, which I assign to both, and the application, which I make of the latter. In doing this, I shall have occasion incidently to evince, how true it is, that States and Governments were made for man; and, at the same time, how true it is, that his creatures and servants have first deceived, next vilified, and, at last, oppressed their master and maker.
Man, fearfully and wonderfully made, is the workmanship of his all perfect Creator: A State; useful and valuable as the contrivance is, is the inferior contrivance of man; and from his native dignity derives all its acquired importance. When I speak of a State as an inferior contrivance, I mean that it is a contrivance inferior only to that, which is divine: Of all human contrivances, it is certainly most transcendantly excellent. It is concerning this contrivance that Cicero says so sublimely, “Nothing, which is exhibited upon our globe, is more acceptable to that divinity, which governs the whole universe, than those communities and assemblages of men, which, lawfully associated, are denominated States.”
Let a State be considered as subordinate to the people: But let every thing else be subordinate to the State. The latter part of this position is equally necessary with the former. For in the practice, and even at length, in the science of politics there has very frequently been a strong current against the natural order of things, and an inconsiderate or an interested disposition to sacrifice the end to the means. As the State has claimed precedence of the people; so, in the same inverted course of things, the Government has often claimed precedence of the State; and to this perversion in the second degree, many of the volumes of confusion concerning sovereignty owe their existence. The ministers, dignified very properly by the appellation of the magistrates, have wished, and have succeeded in their wish, to be considered as the sovereigns of the State. This second degree of perversion is confined to the old world, and begins to diminish even there: but the first degree is still too prevalent, even in the several States, of which our union is composed. By a State I mean, a complete body of free persons united together for their common benefit, to enjoy peaceably what is their own, and to do justice to others. It is an artificial person. It has its affairs and its interests: It has its rules: It has its rights: And it has its obligations. It may acquire property distinct from that of its members: It may incur debts to be discharged out of the public stock, not out of the private fortunes of individuals. It may be bound by contracts; and for damages arising from the breach of those contracts. In all our contemplations, however, concerning this feigned and artificial person, we should never forget, that, in truth and nature, those, who think and speak, and act, are men.
Is the foregoing description of a State a true description? It will not be questioned but it is. Is there any part of this description, which intimates, in the remotest manner, that a State, any more than the men who compose it, ought not to do justice and fulfil engagements? It will not be pretended that there is. If justice is not done; if engagements are not fulfilled; is it upon general principles of right, less proper, in the case of a great number, than in the case of an individual, to secure, by compulsion, that, which will not be voluntarily performed? Less proper it surely can-not be. The only reason, I believe, why a free man is bound by human laws, is, that he binds himself. Upon the same principles, upon which he becomes bound by the laws, he becomes amenable to the Courts of Justice, which are formed and authorised by those laws. If one free man, an original sovereign, may do all this; why may not an aggregate of free men, a collection of original sovereigns, do this likewise? If the dignity of each singly is undiminished; the dignity of all jointly must be unimpaired. A State, like a merchant, makes a contract. A dishonest State, like a dishonest merchant, wilfully refuses to discharge it: The latter is amenable to a Court of Justice: Upon general principles of right, shall the former when summoned to answer the fair demands of its creditor, be permitted, proteus-like, to assume a new appearance, and to insult him and justice, by declaring I am asovereignState? Surely not. Before a claim, so contrary, in its first appearance, to the general principles of right and equality, be sustained by a just and impartial tribunal, the person, natural or artificial, entitled to make such claim, should certainly be well known and authenticated. Who, or what, is a sovereignty? What is his or its sovereignty? On this subject, the errors and the mazes are endless and inexplicable. To enumerate all, therefore, will not be expected: To take notice of some will be necessary to the full illustration of the present important cause. In one sense, the term sovereign has for its correlative, subject, In this sense, the term can receive no application; for it has no object in the Constitution of the United States. Under that Constitution there are citizens, but no subjects. “Citizen of the United States.” “Citizens of another State.” “Citizens of different States.” “A State or citizen thereof.” The term, subject, occurs, indeed, once in the instrument; but to mark the contrast strongly, the epithet “foreign” is prefixed. In this sense, I presume the State of Georgia has no claim upon her own citizens: In this sense, I am certain, she can have no claim upon the citizens of another State.
In another sense, according to some writers, every State, which governs itself without any dependence on another power, is a sovereign State. Whether, with regard to her own citizens, this is the case of the State of Georgia; whether those citizens have done, as the individuals of England are said, by their late instructors, to have done, surrendered the Supreme Power to the State or Government, and reserved nothing to themselves; or whether, like the people of other States, and of the United States, the citizens of Georgia have reserved the Supreme Power in their own hands; and on that Supreme Power have made the State dependent, instead of being sovereign; these are questions, to which, as a Judge in this cause, I can neither know nor suggest the proper answers; though, as a citizen of the Union, I know, and am interested to know, that the most satisfactory answers can be given. As a citizen, I know the Government of that State to be republican; and my short definition of such a Government is,—one constructed on this principle, that the Supreme Power resides in the body of the people. As a Judge of this Court, I know, and can decide upon the knowledge, that the citizens of Georgia, when they acted upon the large scale of the Union, as a part of the “People of the United States,” did not surrender the Supreme or sovereign Power to that State; but, as to the purposes of the Union, retained it to themselves. As to the purposes of the Union, therefore, Georgia isnota sovereign State. If the Judicial decision of this case forms one of those purposes; the allegation, that Georgia is a sovereign State, is unsupported by the fact. Whether the judicial decision of this cause is, or is not, one of those purposes, is a question which will be examined particularly in a subsequent part of my argument.
There is a third sense, in which the term sovereign is frequently used, and which it is very material to trace and explain, as it furnishes a basis for what I presume to be one of the principal objections against the jurisdiction of this Court over the State of Georgia. In this sense, sovereignty is derived from a feudal source; and like many other parts of that system so degrading to man, still retains its influence over our sentiments and conduct, though the cause, by which that influence was produced, never extended to the American States. The accurate and well informed President Henault, in his excellent chronological abridgment of the History of France, tells us, that, about the end of the second race of Kings, a new kind of possession was acquired, under the name of Fief. The Governors of Cities and Provinces usurped equally the property of land, and the administration of justice; and established themselves as proprietary Seigniors over those places, in which they had been only civil magistrates or military officers. By this means, there was introduced into the State a new kind of authority, to which was assigned the appellation of sovereignty. In process of time the feudal system was extended over France, and almost all the other nations of Europe: And every Kingdom became, in fact, a large fief. Into England this system was introduced by the conqueror: and to this aera we may, probably, refer the English maxim, that the King or sovereign is the fountain of Justice. But, in the case of the King, the sovereignty had a double operation. While it vested him with jurisdiction over others, it excluded all others from jurisdiction over him. With regard to him, there was no superior power; and, consequently, on feudal principles, no right of jurisdiction. “The law, says Sir William Blackstone, ascribes to the King the attribute of sovereignty: he is sovereign and independent within his own dominions; and owes no kind of objection to any other potentate upon earth. Hence it is, that no suit or action can be brought against the King, even in civil matters; because no Court can have jurisdiction over him: for all jurisdiction implies superiority of power.” This last position is only a branch of a much more extensive prin-ciple, on which a plan of systematic despotism has been lately formed in England, and prosecuted with unwearied assiduity and care. Of this plan the author of the Commentaries was, if not the introducer, at least the great supporter. He has been followed in it by writers later and less known; and his doctrines have, both on the other and this side of the Atlantic, been implicitly and generally received by those, who neither examined their principles nor their consequences, The principle is, that all human law must be prescribed by a superior. This principle I mean not now to examine. Suffice it, at present to say, that another principle, very different in its nature and operations, forms, in my judgment, the basis of sound and genuine jurisprudence; laws derived from the pure source of equality and justice must be founded on the consent of those, whose obedience they require. The sovereign, when traced to his source, must be found in the man.
I have now fixed, in the scale of things, the grade of a State: and have described its composure: I have considered the nature of sovereignty; and pointed its application to the proper object. I have examined the question before us, by the principles of general jurisprudence. In those principles I find nothing, which tends to evince an exemption of the State of Georgia, from the jurisdiction of the Court. I find every thing to have a contrary tendency.
II. I am, in the second place, to examine this question by the laws and practice of different States and Kingdoms. In ancient Greece, as we learn from Isocrates, whole nations defended their rights before crouded tribunals. Such occasions as these excited, we are told, all the powers of persuasion; and the vehemence and enthusiasm of the sentiment was gradually infused into the Grecian language, equally susceptible of strength and harmony. In those days, law, liberty, and refining science, made their benign progress in strict and graceful union: The rude and degrading league between the bar and feudal barbarism was not yet formed.
When the laws and practice of particular States have any application to the question before us; that application will furnish what is called an argument a fortiori; because all the instances produced will be instances of subjects instituting and supporting suits against those, who were deemed their own sovereigns. These instances are stronger than the present one; because between the present plaintiff and defendant no such unequal relation is alledged to exist.
Columbus atchieved the discovery of that country, which, perhaps, ought to bear his name. A contract made by Columbus furnished the first precedent for supporting, in his discovered country, the cause of injured merit against the claims and pretentions of haughty and ungrateful power. His son Don Diego wasted two years in incessant, but fruitless, solicitation at the Court of Spain, for the rights which descended to him in consequence of his father’s original capitulation. He endeavoured, at length, to obtain, by a legal sentence, what he could not procure from the favour of an interested Monarch. He commenced a suit against Ferdinand before the Council, which managed Indian affairs: and that Court, with integrity which reflects honour on their proceedings, decided against the King, and sustained Don Diego’s claim.
Other States have instituted officers to judge the proceedings of their Kings: Of this kind were the Ephori of Sparta: of this kind also was the mayor of the Palace, and afterwards the constable of France.
But of all the laws and institutions relating to the present question, none is so striking as that described by the famous Hottoman, in his book entitled Francogallia. When the Spaniards of Arragon elect a King, they represent a kind of play, and introduce a personage, whom they dignify by the name of law, la Justiza, of Arragon. This personage they declare, by a public decree, to be greater and more powerful than their Kings and then address him in the following remarkable expressions. “We, who are of as great worth as you, and can do more than you can do, elect you to be our King, upon the conditions stipulated: But between you and us there is one of greater authority than you.”
In England, according to Sir William Blackstone, no suit can be brought against the King, even in civil matters. So, in that Kingdom, is the law, at this time, received. But it was not always so. Under the Saxon Government, a very different doctrine was held to be orthodox. Under that Government, as we are informed by the Mirror of Justice, a book said, by Sir Edward Coke, to have been written, in part, at least, before the conquest; under that Government it was ordained, that the King’s Court should be open to all Plaintiffs, by which, without delay, they should have remedial writs, as well against the King or against the Queen, as against any other of the people. The law continued to be the same for some centuries after the conquest. Until the time of Edward I. the King might have been sued as a common person. The form of the process was even imperative. “Praecipe Henrico Regi Angliae” &c. “Command Henry King of England” &c.Bracton, who wrote in the time of Henry III. uses these very remarkable expressions concerning the King “in justitia recipienda, minimo de regno suo comparetur”—“in receiving justice, he should be placed on a level with the meanest person in the Kingdom.” True it is, that now in England the King must be sued in his Courts by Petition, but even now, the difference is only in the form, not in the thing. The judgments or decrees of those Courts will substantially be the same upon a precatory as upon a mandatory process. In the Courts of Justice, says the very able author of the considerations on the laws of forfeiture, the King enjoys many privileges; yet not to deter the subject from contending with him freely. The Judge of the High Court of Admiralty in England made, in a very late cause, the following manly and independent declaration. “In any case, where the Crown is a party, it is to be observed, that the Crown can no more withhold evidence of documents in its possession, than a private person. If the Court thinks proper to order the production of any public instrument; that order must be obeyed. It wants no Insignia of an authority derived from the Crown.”
“Judges ought to know, that the poorest peasant is a man as well as the King himself: all men ought to obtain justice; since in the estimation of justice, all men are equal; whether the Prince complain of a peasant, or a peasant complain of the Prince.” These are the words of a King, of the late Frederic of Prussia. In his Courts of Justice, that great man stood his native greatness; and disdained to mount upon the artificial stilts of sovereignty.
Thus much concerning the laws and practice of other States and Kingdoms. We see nothing against, but much in favour of, the jurisdiction of this Court over the State of Georgia, a party to this cause.
III. I am, thirdly, and chiefly, to examine the important question now before us, by the Constitution of the United States, and the legitimate result of that valuable instrument. Under this view, the question is naturally subdivided into two others. 1. Could the Constitution of the United States vest a jurisdiction over the State of Georgia? 2. Has that Constitution vested such jurisdiction in this Court? I have already remarked, that in the practice, and even in the science of politics, there has been frequently a strong current against the natural order of things; and an inconsiderate or an interested disposition to sacrifice the end to the means. This remark deserves a more particular illustration. Even in almost every nation, which has been denominated free, the state has assumed a supercilious preeminence above the people, who have formed it: Hence the haughty notions of state independence,state sovereignty and state supremacy. In despotic Governments, the Government has usurped, in a similar manner, both upon the state and the people: Hence all arbitrary doctrines and pretensions concerning the Supreme, absolute, and incontrolable, power of Government. In each, man is degraded from the prime rank, which he ought to hold in human affairs: In the latter, the state as well as the man is degraded. Of both degradations, striking instances occur in history, in politics, and in common life. One of them is drawn from an anecdote, which is recorded concerning Louis XIV. who has been stiled the grand Monarch of France. This Prince, who diffused around him so much dazzling splendour, and so little vivifying heat, was vitiated by that inverted manner of teaching and of thinking, which forms Kings to be tyrants, without knowing or even suspecting that they are so. The oppression, under which he held his subjects during the whole course of his long reign, proceeded chiefly from the principles and habits of his erroneous education. By these, he had been accustomed to consider his Kingdom as his patrimony, and his power over his subjects as his rightful and undelegated inheritance. These sentiments were so deeply and strongly imprinted on his mind, that when one of his Ministers represented to him the miserable condition, to which those subjects were reduced, and, in the course of his representation, frequently used the word L’Etat, the state, the King, though he felt the truth and approved the substance of all that was said, yet was shocked at the frequent repeti-tion of the expression L’Etat; and complained of it as an indecency offered to his person and character. And, indeed, that Kings should imagine themselves the final causes, for which men were made, and societies were formed, and Governments were instituted, will cease to be a matter of wonder or surprise, when we find that lawyers, and statesmen, and philosophers, have taught or favoured principles, which necessarily lead to the same conclusion. Another instance, equally strong, but still more astonishing, is drawn from the British Government, as described by Sir William Blackstone and his followers. As described by him and them, the British is a despotic Government. It is a Government without a people. In that Government, as so described, the sovereignty is possessed by the Parliament: In the Parliament, therefore, the supreme and absolute authority is vested: In the Parliament resides that incontrolable and despotic power, which, in all Governments, must reside somewhere. The constituent parts of the Parliament are the King’s Majesty, the Lord’s Spiritual, the Lord’s Temporal, and the Commons. The King and these three Estates together form the great corporation or body politic of the Kingdom. All these sentiments are found; the last expressions are found verbatim in the commentaries upon the laws of England. The Parliament form the great body politic of England!What, then, or where, are the people? Nothing! No where! They are not so much as even the “baseless fabric of a vision!” From legal contemplation they totally disappear! Am I not warranted in saying, that, if this is a just description; a Government, so and justly so described, is a despotic Government? Whether this description is or is not a just one, is a question of very different import.
In the United States, and in the several States, which compose the Union, we go not so far: but still we go one step farther than we ought to go in this unnatural and inverted order of things. The states, rather than the people, for whose sakes the States exist, are frequently the objects which attract and arrest our principal attention. This, I believe, has produced much of the confusion and perplexity, which have appeared in several proceedings and several publications on state-politics, and on the pòlitics, too, of the United States. Sentiments and expressions of this inaccurate kind prevail in our common, even in our convivial, language. Is a toast asked? “The United States,” instead of the “People of the United States,” is the toast given. This is not politically correct. The toast is meant to present to view the first great object in the Union: It presents only the second: It presents only the artificial person, instead of the natural persons, who spoke it into existence. A State I cheerfully admit, is the noblest work of Man: But, Man himself, free and honest, is, I speak as to this world, the noblest work of God.
Concerning the prerogative of Kings, and concerning the sovereignty of States, much has been said and written; but little has been said and written concerning a subject much more dignified and important, the majesty of the people. The mode of expression, which I would substitute in the place of that generally used, is not only politically, but also (for between true liberty and true taste there is a close alliance) classically more correct. On the mention of Athens, a thousand refined and endearing associations rush at once into the memory of the scholar, the philosopher, and the patriot. When Homer, one of the most correct, as well as the oldest of human authorities, enumerates the other nations of Greece, whose forces acted at the siege of Troy, he arranges them under the names of their different Kings or Princes: But when he comes to the Athenians, he distinguishes them by the peculiar appellation of the people of Athens. The well known address used by Demosthenes, when he harrangued and animated his assembled countrymen, was “O Men of Athens.” With the strictest propriety, therefore, classical and political, our national scene opens with the most magnificent object, which the nation could present. “The people of the United States” are the first personages introduced. Who were those people? They were the citizens of thirteen States, each of which had a separ-ate Constitution and Government, and all of which were connected together by articles of confederation. To the purposes of public strength and felicity, that confederacy was totally inadequate. A requisition on the several States terminated its Legislative authority: Executive or Judicial authority it had none. In order, therefore, to form a more perfect union, to establish justice, to ensure domestic tranquillity, to provide for common defence, and to secure the blessings of liberty, those people, among whom were the people of Georgia, ordained and established the present Constitution. By that Constitution Legislative power is vested, Executive power is vested, Judicial power is vested.
The question now opens fairly to our view, could the people of those States, among whom were those of Georgia, bind those States, and Georgia among the others, by the Legislative, Executive, and Judicial power so vested? If the principles, on which I have founded myself, are just and true; this question must unavoidably receive an affirmative answer. If those States were the work of those people; those people, and, that I may apply the case closely, the people of Georgia, in particular, could alter, as they pleased, their former work: To any given degree, they could diminish as well as enlarge it. Any or all of the former State-powers, they could extinguish or transfer. The inference, which necessarily results, is, that the Constitution ordained and established by those people; and, still closely to apply the case, in particular by the people of Georgia, could vest jurisdiction or judicial power over those States and over the State of Georgia in particular.
The next question under this head, is,—Has the Constitution done so? Did those people mean to exercise this, their undoubted power? These questions may be resolved, either by fair and conclusive deductions, or by direct and explicit declarations. In order, ultimately, to discover, whether the people of the United States intended to bind those States by the Judicial power vested by the national Constitution, a previous enquiry will naturally be: Did those people intend to bind those states by the Legislative power vested by that Constitution? The articles of confederation, it is well known, did not operate upon individual citizens, but operated only upon states, This defect was remedied by the national Constitution, which, as all allow, has an operation on individual citizens. But if an opinion, which some seem to entertain, be just; the defect remedied, on one side, was balanced by a defect introduced on the other; For they seem to think, that the present Constitution operates only on individual citizens, and not on States. This opinion, however, appears to be altogether unfounded. When certain laws of the States are declared to be “subject to the revision and controul of the Congress;” it cannot, surely, be contended that the Legislative power of the national Government was meant to have no operation on the several States. The fact, uncontrovertibly established in one instance, proves the principle in all other instances, to which the facts will be found to apply. We may then infer, that the people of the United States intended to bind the several States, by the Legislative power of the national Government.
In order to make the discovery, at which we ultimately aim, a second previous enquiry will naturally be—Did the people of the United States intend to bind the several States by the Executive power of the national Government? The affirmative answer to the former question directs, unavoidably, an affirmative answer to this. Ever since the time of Bracton, his maxim, I believe, has been deemed a good one—“Supervacuum esset leges condere, nisi esset qui leges tueretur.” “It would be superfluous to make laws, unless those laws, when made, were to be enforced.” When the laws are plain, and the application of them is uncontroverted, they are enforced immediately by the Executive authority of Government. When the application of them is doubtful or intricate, the interposition of the judicial authority becomes necessary. The same principle, therefore, which directed us from the first to the second step, will direct us from the second to the third and last step of our deduction. Fair and conclusive deduction, then, evinces that the people of the United States did vest this Court with jurisdiction over the State of Georgia. The same truth may be deduced from the declared objects, and the general texture of the Constitution of the United States. One of its declared objects is, to form an union more perfect, than, before that time, had been formed. Before that time, the Union possessed Legislative, but uninforced Legislative power over the States. Nothing could be more natural than to intend that this Legislative power should be enforced by powers Executive and Judicial. Another declared object is, “to establish justice.” This points, in a particular manner, to the Judicial authority. And when we view this object in conjunction with the declaration, “that no State shall pass a law impairing the obligation of contracts;” we shall probably think, that this object points, in a particular manner, to the jurisdiction of the Court over the several States. What good purpose could this Constitutional provision secure, if a State might pass a law impairing the obligation of its own contracts; and be amenable, for such a violation of right, to no controuling judiciary power? We have seen, that on the principles of general jurisprudence, a State, for the breach of a contract, may be liable for damages. A third declared object is—“to ensure domestic tranquillity.” This tranquillity is most likely to be disturbed by controversies between States. These consequences will be most peaceably and effectually decided by the establishment and by the exercise of a superintending judicial authority. By such exercise and establishment, the law of nations; the rule between contending States; will be enforced among the several States, in the same manner as municipal law.
Whoever considers, in a combined and comprehensive view, the general texture of the Constitution, will be satisfied, that the people of the United States intended to form themselves into a nation for national purposes. They instituted, for such purposes, a national Government, complete in all its parts, with powers Legislative, Executive and Judiciary; and, in all those powers, extending over the whole nation. Is it congruous, that, with regard to such purposes, any man or body of men, any person natural or artificial, should be permitted to claim successfully an entire exemption from the jurisdiction of the national Government? Would not such claims, crowned with success, be repugnant to our very existence as a nation? When so many trains of deduction, coming from different quarters, converge and unite, at last, in the same point; we may safely conclude, as the legitimate result of this Constitution, that the State of Georgia is amenable to the jurisdiction of this Court.
But, in my opinion, this doctrine rests not upon the legitimate result of fair and conclusive deduction from the Constitution: It is confirmed, beyond all doubt, by the direct and explicit declaration of the Constitution itself. “The judicial power of the United States shall extend, to controversies between two States.” Two States are supposed to have a controversy between them: This controversy is supposed to be brought before those vested with the judicial power of the United States: Can the most consummate degree of professional ingenuity devise a mode by which this “controversy between two States” can be brought before a Court of law; and yet neither of those States be a Defendant? “The judicial power of the United States shall extend to controversies, between a state and citizens of another State.” Could the strictest legal language; could even that language, which is peculiarly appropriated to an art, deemed, by a great master, to be one of the most honorable, laudable, and profitable things in our law; could this strict and appropriated language, describe, with more precise accuracy, the cause now depending before the tribunal? Causes, and not parties to causes, are weighed by justice, in her equal scales: On the former solely, her attention is fixed: To the latter, she is, as she is painted, blind.
I have now tried this question by all the touchstones, to which I proposed to apply it. I have examined it by the principles of general jurisprudence; by the laws and practice of States and Kingdoms; and by the Constitution of the United States. From all, the combined inference is; that the action lies.
Cushing, Justice. The grand and principal question in this case is, whether a State can, by the Foederal Constitution, be sued by an individual citizen of another State?
The point turns not upon the law or practice of England, although perhaps it may be in some measure elucidated thereby, nor upon the law of any other country whatever; but upon the Constitution established by the people of the United States; and particularly upon the extent of powers given to the Foederal Judicial in the 2d section of the 3d article of the Constitution. It is declared that “the Judicial power shall extend to all cases in law and equity arising under the Constitution, the laws of the United States, or treaties made or which shall be made under their authority; to all cases affecting ambassadors or other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies, to which the United States shall be a party; to controversies between two or more States and citizens of another State; between citizens of different States; between citizens of the same State claiming lands under grants of different States; and between a State and citizens thereof and foreign States, citizens or subjects.” The judicial power, then, is expressly extended to “controversies between a State and citizens of another State.” When a citizen makes a demand against a State, of which he is not a citizen, it is as really a controversy between a State and a citizen of another State, as if such State made a demand against such citizen. The case, then, seems clearly to fall within the letter of the Constitution. It may be suggested that it could not be intended to subject a State to be a Defendant, because it would effect the sovereignty of States. If that be the case, what shall we do with the immediate preceding clause; “controversies between two or more States,” where a State must of necessity be Defendant? If it was not the intent, in the very next clause also, that a State might be made Defendant, why was it so expressed as naturally to lead to and comprehend that idea? Why was not an exception made if one was intended?
Again—what are we to do with the last clause of the section of judicial powers, viz. “Controversies between a state, or the citizens thereof, and foreign states or citizens?” Here again, States must be suable or liable to be made Defendants by this clause, which has a similar mode of language with the two other clauses I have remarked upon. For if the judicial power extends to a controversy between one of the United States and a foreign State, as the clause expresses, one of them must be Defendant. And then, what becomes of the sovereignty of States as far as suing affects it? But although the words appear reciprocally to affect the State here and a foreign State, and put them on the same footing as far as may be, yet ingenuity may say, that the State here may sue, but cannot be sued; but that the foreign State may be sued but cannot sue. We may touch foreign sovereignties but not our own. But I conceive the reason of the thing, as well as the words of the Constitution, tend to shew that the Foederal Judicial power extends to a suit brought by a foreign State against any one of the United States. One design of the general Government was for managing the great affairs of peace and war and the general defence, which were impossible to be conducted, with safety, by the States separately. Incident to these powers, and for preventing controversies between foreign powers or citizens from rising to extremeties and to an appeal to the sword, a national tribunal was necessary, amicably to decide them, and thus ward off such fatal, public calamity. Thus, States at home and their citizens, and foreign States and their citizens, are put together without distinction upon the same footing, as far as may be, as to controversies between them. So also, with respect to controversies between a State and citizens of another State (at home) comparing all the clauses together, the remedy is reciprocal; the claim to justice equal. As controversies between State and State, and between a State and citizens of another State, might tend gradually to involve States in war and bloodshed, a disinterested civil tribunal was intended to be instituted to decide such controversies, and preserve peace and friendship. Further; if a State is entitled to Justice in the F0ederal Court, against a citizen of another State, why not such citizen against the State, when the same language equally comprehends both? The rights of individuals and the justice due to them, are as dear and precious as those of States. Indeed the latter are founded upon the former; and the great end and object of them must be to secure and support the rights of individuals, or else vain is Government.
But still it may be insisted, that this will reduce States to mere corporations, and take away all sovereignty. As to corporations, all States whatever are corporations or bodies politic. The only question is, what are their powers? As to individual States and the United States, the Constitution marks the boundary of powers. Whatever power is deposited with the Union by the people for their own necessary security, is so far a curtailing of the power and prerogatives of States. This is, as it were, a self-evident proposition; at least it cannot be contested. Thus the power of declaring war, making peace, raising and supporting armies for public defence, levying duties, excises and taxes, if necessary, with many other powers, are lodged in Congress; and are a most essential abridgement of State sovereignty. Again; the restrictions upon States; “No State shall enter into any treaty, alliance, or confederation, coin money, emit bills of credit, make any thing but gold and silver a tender in payment of debts, pass any law impairing the obligation of contracts;” these, with a number of others, are important restrictions of the power of States, and were thought necessary to maintain the Union; and to establish some fundamental uniform principles of public justice, throughout the whole Union. So that, I think, no argument of force can be taken from the sovereignty of States. Where it has been abridged, it was thought necessary for the greater indispensable good of the whole. If the Constitution is found inconvenient in practice in this or any other particular, it is well that a regular mode is pointed out for amendment. But, while it remains, all offices Legislative, Executive, and Judicial, both of the States and of the Union, are bound by oath to support it.
One other objection has been suggested, that if a State may be sued by a citizen of another State, then the United States may be sued by a citizen of any of the States, or, in other words, by any of their citizens. If this be a necessary consequence, it must be so. I doubt the consequence, from the different wording of the different clauses, connected with other reasons. When speaking of the United States, the Constitution says “controversies to which theUnited Statesshall be a party” not controversies between the United States and any of their citizens. When speaking of States, it says, “controversies between two or more states; between a state and citizens of another state.” As to reasons for citizens suing a different State, which do not hold equally good for suing the United States; one may be, that as controversies between a State and citizens of another State, might have a tendency to involve both States in contest, and perhaps in war, a common umpire to decide such controversies, may have a tendency to prevent the mischief. That an object of this kind was had in view by the framers of the Constitution, I have no doubt, when I consider the clashing interfering laws which were made in the neighbouring States, before the adoption of the Constitution, and some affecting the property of citizens of another State in a very different manner from that of their own citizens. But I do not think it necessary to enter fully into the question, whether the United States are liable to be sued by an individual citizen? In order to decide the point before us. Upon the whole, I am of opinion, that the Constitution warrants a suit against a State, by an individual citizen of another State. . . .
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
The Alien and Sedition Acts
June 25, 1798
December 21, 1798
November 10, 1798
Counter-resolutions of Other States
Report of Virginia House of Delegates
During 1797 and 1798, American diplomats met with officials of the French revolutionary government in an attempt to negotiate continued peace between the two countries. During these negotiations, the French officials demanded bribes totaling $1,250,000 from the Americans in exchange for continued cooperation. The French during this period were engaged in wars and attempts to overthrow governments throughout Europe. In addition, French immigrants to the United States—along with a number of immigrants from Ireland, where pro-French feeling was widespread—were engaged in political activities aimed at unseating Federalist politicians, President John Adams in particular. In response, in 1798 Adams and the Federalist-controlled legislature passed four laws, the most controversial of which were the Alien and Sedition Acts. The Alien Act authorized the president to deport aliens, in time of peace, whom he found to be “dangerous to the peace and safety of the United States.” The Sedition Act made it a high misdemeanor, punishable by fine and imprisonment, to commit any treasonable activity, which was defined to include publishing false, scandalous, and malicious writing concerning the government of the United States. Twenty-five men were arrested under this last act, most of them editors of newspapers loyal to Thomas Jefferson’s Democratic-Republican Party.
Amidst the outcry that ensued, Kentucky and Virginia passed resolutions condemning and refusing to abide by the Alien and Sedition Acts. Written, respectively, by Jefferson and his ally, James Madison, these resolutions once again raised the question of how far federal powers extended within the borders of the several states, and how far the states might go in opposing federal legislation. A number of states issued strongly worded counter-resolutions decrying what came to be called the doctrine of Nullification, according to which states could refuse to enforce or abide by particular federal laws. In response, Madison drafted a report in the Virginia legislature laying out his position on the proper relationship between state and federal sovereignty and authority.
The Alien and Sedition Acts
An Act Concerning Aliens
Section 1. Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That it shall be lawful for the President of the United States, at any time during the continuance of this act, to order all such aliens as he shall judge dangerous to the peace and safety of the United States, or shall have reasonable grounds to suspect are concerned in any treasonable or secret machinations against the government thereof, to depart out of the territory of the United States within such time as shall be expressed in such order; which order shall be served on such alien, by delivering him a copy thereof, or leaving the same at his usual abode, and returned to the office of the Secretary of State, by the marshal, or other person, to whom the same shall be directed. And in case any alien, so ordered to depart, shall be found at large within the United States after the time limited in such order for his departure, and not having obtained a license from the President to reside therein, or having obtained such license, shall not have conformed thereto, every such alien shall, on conviction thereof, be imprisoned for a term not exceeding three years, and shall never after be admitted to become a citizen of the United States: Provided always, and be it further enacted, That if any alien so ordered to depart shall prove, to the satisfaction of the President, by evidence, to be taken before such person or persons as the President shall direct, who are for that purpose hereby authorized to administer oaths, that no injury or danger to the United States will arise from suffering such alien to reside therein, the President may grant a license to such alien to remain within the United States for such time as he shall judge proper, and at such place as he may designate. And the President may also require of such alien to enter into a bond to the United States, in such penal sum as he may direct, with one or more sufficient sureties, to the satisfaction of the person authorized by the President to take the same, conditioned for the good behaviour of such alien during his residence in the United States, and not violating his license, which license the President may revoke whenever he shall think proper.
Sect. 2. And be it further enacted, That it shall be lawful for the President of the United States, whenever he may deem it necessary for the public safety, to order to be removed out of the territory thereof any alien who may or shall be in prison in pursuance of this act; and to cause to be arrested and sent out of the United States such of those aliens as shall have been ordered to depart therefrom, and shall not have obtained a license as aforesaid, in all cases where, in the opinion of the President, the public safety requires a speedy removal. And if any alien so removed or sent out of the United States by the President shall voluntarily return thereto, unless by permission of the President of the United States, such alien, on conviction thereof, shall be imprisoned so long as, in the opinion of the President, the public safety may require.
Sect. 3. And be it further enacted, That every master or commander of any ship or vessel which shall come into any port of the United States after the first day of July next shall, immediately on his arrival, make report in writing to the collector or other chief officer of the customs of such port, of all aliens, if any on board his vessel, specifying their names, age, the place of nativity, the country from which they shall have come, the nation to which they belong and owe allegiance, their occupation, and a description of their persons, as far as he shall be informed thereof, and on failure, every such master and commander shall forfeit and pay three hundred dollars, for the payment whereof, on default of such master or commander, such vessel shall also be holden, and may by such collector or other officer of the customs be detained. And it shall be the duty of such collector or other officer of the customs, forthwith to transmit to the office of the Department of State true copies of all such returns.
Sect. 4. And be it further enacted, That the Circuit and District Courts of the United States shall respectively have cognizance of all crimes and offences against this act. And all marshals and other officers of the United States are required to execute all precepts and orders of the President of the United States, issued in pursuance or by virtue of this act.
Sect. 5. And be it further enacted, That it shall be lawful for any alien who may be ordered to be removed from the United States, by virtue of this act, to take with him such part of his goods, chattels, or other property, as he may find convenient; and all property left in the United States, by any alien who may be removed as aforesaid, shall be and remain subject to his order and disposal, in the same manner as if this act had not been passed.
Sect. 6. And be it further enacted, That this act shall continue and be in force for and during the term of two years from the passing thereof.
Section 1. Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That if any persons shall unlawfully combine or conspire together, with intent to oppose any measure or measures of the government of the United States, which are or shall be directed by proper authority, or to impede the operation of any law of the United States, or to intimidate or prevent any person holding a place or office in or under the government of the United States, from undertaking, performing, or executing his trust or duty: and if any person or persons, with intent as aforesaid, shall counsel, advise, or attempt to procure any insurrection, riot, unlawful assembly, or combination, whether such conspiracy, threatening, counsel, advice, or attempt shall have the proposed effect or not, he or they shall be deemed guilty of a high misdemeanour, and on conviction before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding five thousand dollars, and by imprisonment during a term of not less than six months, nor exceeding five years; and further, at the discretion of the court, may be holden to find sureties for his good behaviour, in such sum, and for such time, as the said court may direct.
Sect. 2. And be it further enacted, That if any person shall write, print, utter, or publish, or shall cause or procure to be written, printed, uttered, or published, or shall knowingly and willingly assist or aid in writing, printing, uttering, or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either House of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either House of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States, or to stir up sedition within the United States; or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States, done in pursuance of any such law, or of the powers in him vested by the Constitution of the United States; or to resist, oppose, or defeat any such law or act; or to aid, encourage or abet any hostile designs of any foreign nation against the United States, their people or government, then such person, being thereof convicted before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.
Sect. 3. And be it further enacted and declared, That if any person shall be prosecuted under this act for the writing or publishing any libel aforesaid, it shall be lawful for the defendant, upon the trial of the cause, to give in evidence in his defence, the truth of the matter contained in the publication charged as a libel. And the jury who shall try the cause shall have a right to determine the law and the fact, under the direction of the court, as in other cases.
Sect. 4. And be it further enacted, That this act shall continue and be in force until the third day of March, one thousand eight hundred and one, and no longer: Provided, That the expiration of the act shall not prevent or defeat a prosecution and punishment of any offence against the law, during the time it shall be in force.
Resolutions, As Adopted by Both Houses of Assembly
- 1. Resolved, That the General Assembly of Virginia doth unequivocally express a firm resolution to maintain and defend the Constitution of the United States, and the Constitution of this State, against every aggression, either foreign or domestic, and that it will support the government of the United States in all measures warranted by the former.
- 2. That this Assembly most solemnly declares a warm attachment to the union of the States, to maintain which, it pledges all its powers; and that for this end it is its duty to watch over and oppose every infraction of those principles, which constitute the only basis of that union, because a faithful observance of them can alone secure its existence, and the public happiness.
- 3. That this Assembly doth explicitly and peremptorily declare that it views the powers of the Federal Government as resulting from the compact, to which the States are parties, as limited by the plain sense and intention of the instrument constituting that compact; as no further valid than they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers not granted by the said compact, the States, who are the parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights, and liberties appertaining to them.
- 4. That the General Assembly doth also express its deep regret that a spirit has in sundry instances been manifested by the Federal Government, to enlarge its powers by forced constructions of the constitutional charter which defines them; and that indications have appeared of a design to expound certain general phrases (which, having been copied from the very limited grant of powers in the former articles of confederation, were the less liable to be misconstrued), so as to destroy the meaning and effect of the particular enumeration, which necessarily explains and limits the general phrases, and so as to consolidate the States by degrees into one sovereignty, the obvious tendency and inevitable result of which would be to transform the present republican system of the United States into an absolute, or at best, a mixed monarchy.
- 5. That the General Assembly doth particularly protest against the palpable and alarming infractions of the Constitution, in the two late cases of the “alien and sedition acts,” passed at the last session of Congress, the first of which exercises a power nowhere delegated to the Federal Government; and which by uniting legislative and judicial powers to those of executive, subverts the general principles of free government, as well as the particular organization and positive provisions of the federal Constitution; and the other of which acts exercises in like manner a power not delegated by the Constitution, but on the contrary expressly and positively forbidden by one of the amendments thereto; 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 among the people thereon, which has ever been justly deemed the only effectual guardian of every other right.
- 6. That this State having by its convention which ratified the federal Constitution, expressly declared, “that among other essential rights, the liberty of conscience and of the press cannot be cancelled, abridged, restrained, or modified by any authority of the United States,” and from its extreme anxiety to guard these rights from every possible attack of sophistry or ambition, having with other States recommended an amendment for that purpose, which amendment was in due time annexed to the Constitution, it would mark a reproachful inconsistency and criminal degeneracy, if an indifference were now shown to the most palpable violation of one of the rights thus declared and secured, and to the establishment of a precedent which may be fatal to the other.
- 7. That the good people of this commonwealth having ever felt, and continuing to feel the most sincere affection to their brethren of the other States, the truest anxiety for establishing and perpetuating the union of all, and the most scrupulous fidelity to that Constitution which is the pledge of mutual friendship, and the instrument of mutual happiness, the General Assembly doth solemnly appeal to the like dispositions of the other States, in confidence that they will concur with this commonwealth in declaring, as it does hereby declare, that the acts aforesaid are unconstitutional, and that the necessary and proper measure will be taken by each, for co-operating with this State in maintaining unimpaired the authorities, rights, and liberties reserved to the States respectively, or to the people.
- 8. That the Governor be desired to transmit a copy of the foregoing resolutions to the executive authority of each of the other States, with a request that the same may be communicated to the legislature thereof. And that a copy be furnished to each of the senators and representatives representing this state in the Congress of the United States.
In the House of Representatives
The House, according to the standing order of the day, resolved itself into a committee of the whole on the state of the commonwealth, Mr. Caldwell in the chair; and after some time spent therein, the Speaker resumed the chair, and Mr. Caldwell reported that the committee had, according to order, had under consideration the Governor’s address, and had come to the following resolutions thereupon, which he delivered in at the clerk’s table, where they were twice read and agreed to by the House.
- 1. Resolved, That the several states composing the United States of America, are not united on the principle of unlimited submission to their general government; but that by compact, under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes, delegated to that government certain definite powers, reserving, each state to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: That to this compact each state acceded as a state, and is an integral party, its co-states forming as to itself, the other party: That the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among parties having no common judge, each party has an equal right to judge for itself, as well of infractions, as of the mode and measure of redress.
- 2. Resolved, That the Constitution of the United States having delegated to Congress a power to punish treason, counterfeiting the securities and current coin of the United States, piracies and felonies committed on the high seas, and offences against the laws of nations, and no other crimes whatever, and it being true as a general principle, and one of the amendments to the Constitution having also declared, “that the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people;” therefore, also, the same act of Congress, passed on the 14th day of July, 1798, and entitled, “an act in addition to the act entitled, an act for the punishment of certain crimes against the United States;” as also the act passed by them on the 27th day of June, 1798, entitled, “an act to punish frauds committed on the Bank of the United States,” (and all other their acts which assume to create, define, or punish crimes other than those enumerated in the Constitution,) are altogether void, and of no force, and that the power to create, define, and punish such other crimes is reserved, and of right appertains, solely and exclusively, to the respective states, each within its own territory.
- 3. Resolved, That it is true as a general principle, and is also expressly declared by one of the amendments to the Constitution, that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people;” and that no power over the freedom of religion, freedom of speech, or freedom of the press, being delegated to the United States by the Constitution, nor prohibited by it to the states, all lawful powers respecting the same did of right remain, and were reserved to the states, or to the people; that thus was manifested their determination to retain to themselves the right of judging how far the licentiousness of speech and of the press may be abridged without lessening their useful freedom, and how far those abuses which cannot be separated from their use, should be tolerated rather than the use be destroyed; and thus also they guarded against all abridgment by the United States of the freedom of religious opinions and exercises, and retained to themselves the right of protecting the same, as this state by a law passed on the general demand of its citizens, had already protected them from all human restraint or interference: and that in addition to this general principle and express declaration, another and more special provision has been made by one of the amendments to the Constitution, which expressly declares, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press,” thereby guarding in the same sentence, and under the same words, the freedom of religion, of speech, and of the press, insomuch, that whatever violates either, throws down the sanctuary which covers the others, and that libels, falsehoods, and defamations, equally with heresy and false religion, are withheld from the cognizance of federal tribunals: that therefore the act of the Congress of the United States, passed on the 14th day of July, 1798, entitled, “an act in addition to the act for the punishment of certain crimes against the United States,” which does abridge the freedom of the press, is not law, but is altogether void and of no effect.
- 4. Resolved, That alien-friends are under the jurisdiction and protection of the laws of the state wherein they are; that no power over them has been delegated to the United States, nor prohibited to the individual states distinct from their power over citizens; and it being true as a general principle, and one of the amendments to the Constitution having also declared, that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people,” the act of the Congress of the United States, passed on the 22d day of June, 1798, entitled “an act concerning aliens,” which assumes power over alien-friends not delegated by the Constitution, is not law, but is altogether void and of no force.
- 5. Resolved, That in addition to the general principle as well as the express declaration, that powers not delegated are reserved, another and more special provision inserted in the Constitution, from abundant caution, has declared, “that 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:” that this commonwealth does admit the migration of alien-friends described as the subject of the said act concerning aliens; that a provision against prohibiting their migration, is a provision against all acts equivalent thereto, or it would be nugatory; that to remove them when migrated, is equivalent to a prohibition of their migration, and is therefore contrary to the said provision of the Constitution, and void.
- 6. Resolved, That the imprisonment of a person under the protection of the laws of this commonwealth, on his failure to obey the simple order of the President, to depart out of the United States, as is undertaken by the said act, entitled “an act concerning aliens,” is contrary to the Constitution, one amendment to which has provided, that “no person shall be deprived of liberty without due process of law,” and that another having provided, “that in all criminal prosecutions, the accused shall enjoy the right to a public trial by an impartial jury, 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 favour, and to have the assistance of counsel for his defence,” the same act undertaking to authorize the President to remove a person out of the United States, who is under the protection of the law, on his own suspicion, without accusation, without jury, without public trial, without confrontation of the witnesses against him, without having witnesses in his favour, without defence, without counsel, is contrary to these provisions, also, of the Constitution, is therefore not law, but utterly void and of no force.That transferring the power of judging any person who is under the protection of the laws, from the courts to the President of the United States, as is undertaken by the same act, concerning aliens, is against the article of the Constitution which provides, that “the judicial power of the United States shall be vested in courts, the judges of which shall hold their offices during good behaviour,” and that the said act is void for that reason also; and it is further to be noted, that this transfer of judiciary power is to that magistrate of the General Government, who already possesses all the executive, and a qualified negative in all the legislative powers.
- 7. Resolved, That the construction applied by the General Government, (as is evinced by sundry of their proceedings,) to those parts of the Constitution of the United States which delegates to Congress a power to lay and collect taxes, duties, imposts, and excises; to pay the debts, and provide for the common defence and general welfare of the United States, and to make all laws which shall be necessary and proper for carrying into execution the powers vested by the Constitution in the Government of the United States, or any department thereof, goes to the destruction of all the limits prescribed to their power by the Constitution: that words meant by that instrument to be subsidiary only to the execution of the limited powers, ought not to be so construed as themselves to give unlimited powers, nor a part so to be taken, as to destroy the whole residue of the instrument: that the proceedings of the General Government under colour of these articles, will be a fit and necessary subject for revisal and correction at a time of greater tranquillity, while those specified in the preceding resolutions call for immediate redress.
- 8. Resolved, That the preceding resolutions be transmitted to the senators and representatives in Congress from this commonwealth, who are hereby enjoined to present the same to their respective houses, and to use their best endeavours to procure, at the next session of Congress, a repeal of the aforesaid unconstitutional and obnoxious acts.
- 9. Resolved, lastly, That the Governor of this commonwealth be, and is hereby authorized and requested to communicate the preceding resolutions to the legislatures of the several states, to assure them that this commonwealth considers union for specified national purposes, and particularly for those specified in their late federal compact, to be friendly to the peace, happiness, and prosperity of all the states: that, faithful to that compact, according to the plain intent and meaning in which it was understood and acceded to by the several parties, it is sincerely anxious for its preservation: that it does also believe, that to take from the states all the powers of self-government, and transfer them to a general and consolidated government, without regard to the special obligations and reservations solemnly agreed to in that compact, is not for the peace, happiness or prosperity of these states: and that therefore, this commonwealth is determined, as it doubts not its co-states are, tamely to submit to undelegated and consequently unlimited powers in no man or body of men on earth: that if the acts before specified should stand, these conclusions would flow from them; that the general government may place any act they think proper on the list of crimes, and punish it themselves, whether enumerated or not enumerated by the Constitution, as cognizable by them; that they may transfer its cognizance to the President or any other person, who may himself be the accuser, counsel, judge and jury, whose suspicions may be the evidence, his order the sentence, his officer the executioner, and his breast the sole record of the transaction; that a very numerous and valuable description of the inhabitants of these states being, by this precedent, reduced as outlaws to the absolute dominion of one man, and the barrier of the Constitution thus swept away from us all, no rampart now remains against the passions and the power of a majority of Congress, to protect from a like exportation or other more grievous punishment the minority of the same body, the legislatures, judges, governors, and counsellors of the states, nor their other peaceable inhabitants who may venture to reclaim the constitutional rights and liberties of the states and people, or who, for other causes, good or bad, may be obnoxious to the views, or marked by the suspicions of the President, or be thought dangerous to his or their elections, or other interests public or personal: that the friendless alien has indeed been selected as the safest subject of a first experiment; but the citizen will soon follow, or rather has already followed; for, already has a sedition-act marked him as its prey: that these and successive acts of the same character, unless arrested on the threshold, may tend to drive these states into revolution and blood, and will furnish new calumnies against republican governments, and new pretexts for those who wish it to be believed, that man cannot be governed but by a rod of iron: that it would be a dangerous delusion, were a confidence in the men of our choice, to silence our fears for the safety of our rights: that confidence is everywhere the parent of despotism; free government is founded in jealousy, and not in confidence; it is jealousy and not confidence which prescribes limited constitutions to bind down those whom we are obliged to trust with power: that our Constitution has accordingly fixed the limits to which and no further our confidence may go; and let the honest advocate of confidence read the alien and sedition-acts, and say if the Constitution has not been wise in fixing limits to the government it created, and whether we should be wise in destroying those limits? Let him say what the government is if it be not a tyranny, which the men of our choice have conferred on the President, and the President of our choice has assented to and accepted, over the friendly strangers, to whom the mild spirit of our country and its laws had pledged hospitality and protection: that the men of our choice have more respected the bare suspicions of the President, than the solid rights of innocence, the claims of justification, the sacred force of truth, and the forms and substance of law and justice. In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief, by the chains of the Constitution. That this commonwealth does, therefore, call on its co-states for an expression of their sentiments on the acts concerning aliens, and for the punishment of certain crimes herein before specified, plainly declaring whether these acts are or are not authorized by the Federal compact. And it doubts not that their sense will be so announced, as to prove their attachment unaltered to limited government, whether general or particular, and that the rights and liberties of their co-states, will be exposed to no dangers by remaining embarked on a common bottom with their own: That they will concur with this commonwealth in considering the said acts as so palpably against the Constitution, as to amount to an undisguised declaration, that the compact is not meant to be the measure of the powers of the general government, but that it will proceed in the exercise over these states of all powers whatsoever: That they will view this as seizing the rights of the states, and consolidating them in the hands of the general government with a power assumed to bind the states, (not merely in cases made federal,) but in all cases whatsoever, by laws made, not with their consent, but by others against their consent: That this would be to surrender the form of government we have chosen, and to live under one deriving its powers from its own will, and not from our authority; and that the co-states, recurring to their natural right in cases not made federal, will concur in declaring these acts void and of no force, and will each unite with this commonwealth, in requesting their repeal at the next session of Congress.
Passed the House of Representatives, Nov. 10th, 1798.
In Senate, November 13th, 1798, unanimously concurred in.
Approved November 16th, 1798.
By the Governor.
Secretary of State
Counter-resolutions of Other States
State of Delaware.In the House of Representatives
Resolved, By the Senate and House of Representatives of the state of Delaware, in General Assembly met, That they consider the resolutions from the state of Virginia, as a very unjustifiable interference with the general government and constituted authorities of the United States, and of dangerous tendency, and therefore not a fit subject for the further consideration of the General Assembly.
Speaker of Senate.
Speaker of House of Representatives.
Resolved, That the above resolutions be signed by the Speaker of the Senate, and by the Speaker of the House of Representatives; and that the Governor of this state be requested to forward the same to the Governor of the state of Virginia.
State of Rhode Island and Providence Plantations.In General Assembly
Certain resolutions of the legislature of Virginia, passed on the twenty-first day of December last, being communicated to this Assembly,
- 1. Resolved, That in the opinion of this legislature, the second section of the third article of the Constitution of the United States, in these words, to wit: The judicial power shall extend to all cases arising under the laws of the United States, vests in the federal courts exclusively, and in the Supreme Court of the United States ultimately, the authority of deciding on the constitutionality of any act or law of the Congress of the United States.
- 2. Resolved, That for any state legislature to assume that authority would be,1st. Blending together legislative and judicial powers.2d. Hazarding an interruption of the peace of the states by civil discord, in case of a diversity of opinions among the state legislatures; each state having, in that case, no resort for vindicating its own opinion, but to the strength of its own arm.3d. Submitting most important questions of law, to less competent tribunals; and4th. An infraction of the Constitution of the United States, expressed in plain terms.
- 3. Resolved, That although, for the above reasons, this legislature, in their public capacity, do not feel themselves authorized to consider and decide on the constitutionality of the sedition and alien-laws (so called), yet they are called upon by the exigency of this occasion, to declare, that in their private opinions, these laws are within the powers delegated to Congress, and promotive of the welfare of the United States.
- 4. Resolved, That the Governor communicate these resolutions to the supreme executive of the state of Virginia, and, at the same time, express to him, that this legislature cannot contemplate, without extreme concern and regret, the many evil and fatal consequences which may flow from the very unwarrantable resolutions aforesaid of the legislature of Virginia, passed on the twenty-first day of December last.
Commonwealth of Massachusetts. In Senate
The Legislature of Massachusetts, having taken into serious consideration the resolutions of the state of Virginia, passed the 21st day of December last, and communicated by his excellency the Governor, relative to certain supposed infractions of the Constitution of the United States, by the government thereof, and being convinced that the Federal Constitution is calculated to promote the happiness, prosperity and safety of the people of these United States, and to maintain that union of the several states, so essential to the welfare of the whole; and, being bound by solemn oath to support and defend that Constitution, feel it unnecessary to make any professions of their attachment to it, or of their firm determination to support it against every aggression, foreign or domestic.
But they deem it their duty solemnly to declare, that while they hold sacred the principle, that the consent of the people is the only pure source of just and legitimate power, they cannot admit the right of the state legislatures to denounce the administration of that government to which the people themselves, by a solemn compact, have exclusively committed their national concerns: That, although a liberal and enlightened vigilance among the people is always to be cherished, yet an unreasonable jealousy of the men of their choice, and a recurrence to measures of extremity, upon groundless or trivial pretexts, have a strong tendency to destroy all rational liberty at home, and to deprive the United States of the most essential advantages in their relations abroad: That this Legislature are persuaded, that the decision of all cases in law and equity, arising under the Constitution of the United States, and the construction of all laws made in pursuance thereof, are exclusively vested by the people in the judicial courts of the United States.
That the people in that solemn compact, which is declared to be the supreme law of the land, have not constituted the state legislatures the judges of the acts or measures of the Federal Government, but have confided to them the power of proposing such amendments of the Constitution, as shall appear to them necessary to the interests, or conformable to the wishes of the people whom they represent.
That by this construction of the Constitution, an amicable and dispassionate remedy is pointed out for any evil which experience may prove to exist, and the peace and prosperity of the United States may be preserved without interruption.
But, should the respectable state of Virginia persist in the assumption of the right to declare the acts of the national government unconstitutional, and should she oppose successfully her force and will to those of the nation, the Constitution would be reduced to a mere cypher, to the form and pageantry of authority, without the energy of power. Every act of the Federal Government which thwarted the views, or checked the ambitious projects of a particular state, or of its leading and influential members, would be the object of opposition and of remonstrance; while the people, convulsed and confused by the conflict between two hostile jurisdictions, enjoying the protection of neither, would be wearied into a submission to some bold leader, who would establish himself on the ruins of both.
The Legislature of Massachusetts, although they do not themselves claim the right, nor admit the authority, of any of the state governments to decide upon the constitutionality of the acts of the Federal Government, still, lest their silence should be construed into disapprobation, or at best into a doubt of the constitutionality of the acts referred to by the state of Virginia; and, as the General Assembly of Virginia has called for an expression of their sentiments, do explicitly declare, that they consider the acts of Congress, commonly called “the alien and sedition-acts,” not only constitutional, but expedient and necessary: That the former act respects a description of persons whose rights were not particularly contemplated in the Constitution of the United States, who are entitled only to a temporary protection, while they yield a temporary allegiance: a protection, which ought to be withdrawn whenever they become “dangerous to the public safety,” or are found guilty of “treasonable machinations” against the government: That Congress having been especially entrusted by the people with the general defence of the nation, had not only the right but were bound to protect it against internal, as well as external foes.
That the United States, at the time of passing the act concerning aliens, were threatened with actual invasion, had been driven by the unjust and ambitious conduct of the French government into warlike preparations, expensive and burdensome, and had then, within the bosom of the country, thousands of aliens, who, we doubt not, were ready to co-operate in any external attack.
It cannot be seriously believed, that the United States should have waited till the poniard had in fact been plunged. The removal of aliens is the usual preliminary of hostility, and is justified by the invariable usages of nations. Actual hostility had unhappily long been experienced, and a formal declaration of it the government had reason daily to expect. The law, therefore, was just and salutary, and no officer could, with so much propriety be entrusted with the execution of it, as the one in whom the Constitution has reposed the executive power of the United States.
The sedition-act, so called, is, in the opinion of this Legislature, equally defensible. The General Assembly of Virginia, in their resolve under consideration, observe, that when that state, by its convention, ratified the Federal Constitution, it expressly declared, “That, among other essential rights, the liberty of conscience and of the press cannot be cancelled, abridged, restrained or modified by any authority of the United States,” and from its extreme anxiety to guard these rights from every possible attack of sophistry or ambition, with other states, recommended an amendment for that purpose; which amendment was, in due time, annexed to the Constitution; but they did not surely expect that the proceedings of their state convention were to explain the amendment adopted by the union. The words of that amendment, on this subject, are, “Congress shall make no law abridging the freedom of speech, or of the press.”
The act complained of is no abridgment of the freedom of either. The genuine liberty of speech and the press, is the liberty to utter and publish the truth; but the constitutional right of the citizen to utter and publish the truth, is not to be confounded with the licentiousness in speaking and writing, that is only employed in propagating falsehood and slander. This freedom of the press has been explicitly secured by most, if not all the state constitutions; and of this provision there has been generally but one construction among enlightened men; that it is a security for the rational use and not the abuse of the press; of which the courts of law, the juries and people will judge: this right is not infringed, but confirmed and established by the late act of Congress.
By the Constitution, the legislative, executive, and judicial departments of government are ordained and established; and general enumerated powers vested in them respectively, including those which are prohibited to the several states. Certain powers are granted in general terms by the people to their General Government, for the purposes of their safety and protection. That government is not only empowered, but it is made their duty, to repel invasions and suppress insurrections; to guarantee to the several states a republican form of government; to protect each state against invasion, and, when applied to, against domestic violence; to hear and decide all cases in law and equity, arising under the Constitution, and under any treaty or law made in pursuance thereof; and all cases of admiralty and maritime jurisdiction, and relating to the law of nations. Whenever, therefore, it becomes necessary to effect any of the objects designated, it is perfectly consonant to all just rules of construction to infer, that the usual means and powers necessary to the attainment of that object, are also granted: but the Constitution has left no occasion to resort to implication for these powers; it has made an express grant of them, in the eighth section of the first article, which ordains, “That Congress shall have power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by the Constitution in the Government of the United States, or in any department or officer thereof.”
This Constitution has established a supreme court of the United States, but has made no provision for its protection, even against such improper conduct in its presence, as might disturb its proceedings, unless expressed in the section before recited. But as no statute has been passed on this subject, this protection is, and has been for nine years past, uniformly found in the application of the principles and usages of the common law. The same protection may unquestionably be afforded by a statute passed in virtue of the before-mentioned section, as necessary and proper, for carrying into execution the powers vested in that department. A construction of the different parts of the Constitution, perfectly just and fair, will, on analogous principles, extend protection and security against the offences in question, to the other departments of government, in discharge of their respective trusts.
The President of the United States is bound by his oath “to preserve, protect, and defend the Constitution,” and it is expressly made his duty “to take care that the laws be faithfully executed;” but this would be impracticable by any created being, if there could be no legal restraint of those scandalous misrepresentations of his measures and motives, which directly tend to rob him of the public confidence. And equally impotent would be every other public officer, if thus left to the mercy of the seditious.
It is holden to be a truth most clear, that the important trusts before enumerated, cannot be discharged by the government to which they are committed, without the power to restrain or punish seditious practices and unlawful combinations against itself, and to protect the officers thereof from abusive misrepresentations. Had the Constitution withheld this power, it would have made the government responsible for the effects, without any control over the causes which naturally produce them, and would have essentially failed of answering the great ends for which the people of the United States declare, in the first clause of that instrument, that they establish the same, viz: “To form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and posterity.”
Seditious practices and unlawful combinations against the federal government, or any officer thereof, in the performance of his duty, as well as licentiousness of speech and of the press, were punishable on the principles of common law in the courts of the United States, before the act in question was passed. This act, then, is an amelioration of that law in favour of the party accused, as it mitigates the punishment which that authorizes, and admits of any investigation of public men and measures which is regulated by truth. It is not intended to protect men in office, only as they are agents of the people. Its object is to afford legal security to public offices and trusts created for the safety and happiness of the people, and therefore the security derived from it is for the benefit of the people, and is their right.
This construction of the Constitution, and of the existing law of the land, as well as the act complained of, the legislature of Massachusetts most deliberately and firmly believe, results from a just and full view of the several parts of that Constitution; and they consider that act to be wise and necessary, as an audacious and unprincipled spirit of falsehood and abuse had been too long unremittingly exerted for the purpose of perverting public opinion, and threatened to undermine and destroy the whole fabric of the government.
The legislature further declare, that in the foregoing sentiments they have expressed the general opinion of their constituents, who have not only acquiesced without complaint in those particular measures of the federal government, but have given their explicit approbation by re-electing those men who voted for the adoption of them: nor is it apprehended, that the citizens of this state will be accused of supineness, or of an indifference to their constitutional rights; for, while on the one hand, they regard with due vigilance, the conduct of the government: on the other, their freedom, safety, and happiness require, that they should defend that government and its constitutional measures against the open or insidious attacks of any foe, whether foreign or domestic.
And lastly, that the Legislature of Massachusetts feel a strong conviction, that the several United States are connected by a common interest, which ought to render their union indissoluble, and that this state will always co-operate with its confederate states, in rendering that union productive of mutual security, freedom and happiness.
Sent down for concurrence.
In the House of Representatives, Feb. 13, 1799. Read and concurred.
State of New York. In Senate
Whereas the people of the United States have established for themselves a free and independent national government. And whereas it is essential to the existence of every government, that it have authority to defend and preserve its constitutional powers inviolate, inasmuch as every infringement thereof tends to its subversion. And whereas the judicial power extends expressly to all cases of law and equity arising under the Constitution and the laws of the United States, whereby the interference of the legislatures of the particular states in those cases, is manifestly excluded. And whereas our peace, prosperity, and happiness eminently depend on the preservation of the Union, in order to which, a reasonable confidence in the constituted authorities and chosen representatives of the people is indispensable. And whereas every measure calculated to weaken that confidence, has a tendency to destroy the usefulness of our public functionaries, and to excite jealousies equally hostile to rational liberty and the principles of a good republican government. And whereas the Senate, not perceiving that the rights of the particular states have been violated, nor any unconstitutional powers assumed by the general government, cannot forbear to express the anxiety and regret with which they observe the inflammatory and pernicious sentiments and doctrines which are contained in the resolutions of the legislatures of Virginia and Kentucky; sentiments and doctrines no less repugnant to the Constitution of the United States, and the principles of their union, than destructive to the Federal Government, and unjust to those whom the people have elected to administer it: wherefore,
Resolved, That while the Senate feel themselves constrained to bear unequivocal testimony against such sentiments and doctrines, they deem it a duty no less indispen-sable, explicitly to declare their incompetency, as a branch of the legislature of this state, to supervise the acts of the general government.
Resolved, That his excellency the Governor be, and he is hereby requested to transmit a copy of the foregoing resolution to the executives of the states of Virginia and Kentucky, to the end that the same may be communicated to the legislatures thereof.
State of Connecticut
At a general assembly of the state of Connecticut, holden at Hartford, in the said state, on the second Thursday of May, Anno Domini, 1799, his excellency the Governor having communicated to this Assembly sundry resolutions of the legislature of Virginia, adopted in December 1798, which relate to the measures of the general government, and the said resolutions having been considered, it is
Resolved, That this Assembly views with deep regret, and explicitly disavows, the principles contained in the aforesaid resolutions; and particularly the opposition to the “alien and sedition-acts,” acts, which the Constitution authorized; which the exigency of the country rendered necessary; which the constituted authorities have enacted, and which merit the entire approbation of this Assembly. They therefore decidedly refuse to concur with the legislature of Virginia, in promoting any of the objects attempted in the aforesaid resolutions.
And it is further Resolved, that his excellency the Governor be requested to transmit a copy of the foregoing resolution to the Governor of Virginia, that it may be communicated to the legislature of that state.
Passed in the House of Representatives unanimously.
Concurred unanimously, in the upper House.
State of New Hampshire. In the House of Representatives
The committee to take into consideration the resolutions of the General Assembly of Virginia, dated December 21st, 1798; also certain resolutions of the Legislature of Kentucky, of the 10th November, 1798, report as follows:
The Legislature of New Hampshire having taken into consideration certain resolutions of the General Assembly of Virginia, dated December 21, 1798; also certain resolutions of the Legislature of Kentucky, of the 10th of November, 1798:
Resolved, That the Legislature of New Hampshire unequivocally express a firm resolution to maintain and defend the Constitution of the United States, and the Constitution of this state, against every aggression, either foreign or domestic, and that they will support the government of the United States in all measures warranted by the former.
That the state legislatures are not the proper tribunals to determine the constitutionality of the laws of the general government, that the duty of such decision is properly and exclusively confided to the judicial department.
That if the Legislature of New Hampshire, for mere speculative purposes, were to express an opinion on the acts of the general government, commonly called “the alien and sedition-bills,” that opinion would unreservedly be, that those acts are constitutional, and in the present critical situation of our country, highly expedient.
That the constitutionality and expediency of the acts aforesaid, have been very ably advocated and clearly demonstrated by many citizens of the United States, more especially by the minority of the General Assembly of Virginia. The Legislature of New Hampshire, therefore, deem it unnecessary, by any train of arguments, to attempt further illustration of the propositions, the truth of which, it is confidently believed, at this day, is very generally seen and acknowledged.
Which report being read and considered, was unanimously received and accepted, one hundred and thirty-seven members being present.
Sent up for concurrence.
In Senate, the same day, read and concurred unanimously.
Approved, June 15th, 1799.
State of Vermont.In the House of Representatives
The House proceeded to take under their consideration, the resolutions of the General Assembly of Virginia, relative to certain measures of the general government, transmitted to the Legislature of this state, for their consider-ation: Whereupon,
Resolved, That the General Assembly of the state of Vermont do highly disapprove of the resolutions of the General Assembly of Virginia, as being unconstitutional in their nature, and dangerous in their tendency. It belongs not to state legislatures to decide on the constitutionality of laws made by the general government; this power being exclusively vested in the judiciary courts of the Union: That his excellency the Governor be requested to transmit a copy of this resolution to the executive of Virginia, to be communicated to the General Assembly of that state: And that the same be sent to the Governor and Council for their concurrence.
In Council, October 30, 1799.
Read and concurred unanimously.
Report of Virginia House of Delegates
Report of the committee to whom were referred the communications of various states relative to the resolutions of the General Assembly of this state, concerning the Alien and Sedition-Laws
Whatever room might be found in the proceedings of some of the states who have disapproved of the resolutions of the General Assembly of this commonwealth, passed on the 21st day of December, 1798, for painful remarks on the spirit and manner of those proceedings, it appears to the committee most consistent with the duty, as well as dignity of the General Assembly, to hasten an oblivion of every circumstance which might be construed into a diminution of mutual respect, confidence, and affection, among the members of the Union.
The committee have deemed it a more useful task, to revise, with a critical eye, the resolutions which have met with this disapprobation; to examine fully the several objections and arguments which have appeared against them; and to inquire whether there be any errors of fact, of principle, or of reasoning, which the candour of the General Assembly ought to acknowledge and correct.
The first of the resolutions is in the words following:
Resolved, That the General Assembly of Virginia doth unequivocally express a firm resolution to maintain and defend the Constitution of the United States, and the Constitution of this state, against every aggression, either foreign or domestic, and that they will support the government of the United States in all measures warranted by the former.
No unfavourable comment can have been made on the sentiments here expressed. To maintain and defend the Constitution of the United States, and of their own state, against every aggression, both foreign and domestic, and to support the government of the United States in all measures warranted by their Constitution, are duties which the General Assembly ought always to feel, and to which, on such an occasion, it was evidently proper to express its sincere and firm adherence.
In their next resolution—The General Assembly most solemnly declares a warm attachment to the union of the states, to maintain which it pledges all its powers; and that, for this end, it is its duty to watch over and oppose every infraction of those principles, which constitute the only basis of that union, because a faithful observance of them can alone secure its existence and the public happiness.
The observation just made is equally applicable to this solemn declaration, of warm attachment to the union, and this solemn pledge to maintain it; nor can any question arise among enlightened friends of the union, as to the duty of watching over and opposing every infraction of those principles which constitute its basis, and a faithful observance of which can alone secure its existence, and the public happiness thereon depending.
The third resolution is in the words following:
That this Assembly doth explicitly and peremptorily declare, that it views the powers of the Federal Government, as resulting from the compact, to which the states are parties, as limited by the plain sense and intention of the instrument constituting that compact; as no farther valid than they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights, and liberties appertaining to them.
On this resolution, the committee have bestowed all the attention which its importance merits; they have scanned it not merely with a strict, but with a severe eye; and they feel confidence in pronouncing, that, in its just and fair construction, it is unexceptionably true in its several positions, as well as constitutional and conclusive in its inferences.
The resolution declares, first, that “it views the powers of the Federal Government, as resulting from the compact to which the states are parties;” in other words, that the Federal powers are derived from the Constitution, and that the Constitution is a compact to which the states are parties.
Clear as the position must seem, that the federal powers are derived from the Constitution, and from that alone, the committee are not unapprised of a late doctrine, which opens another source of federal powers, not less extensive and important, than it is new and unexpected. The examination of this doctrine will be most conveniently connected with a review of a succeeding resolution. The committee satisfy themselves here with briefly remarking, that in all the cotemporary discussions and comments which the Constitution underwent, it was constantly justified and recommended, on the ground, that the powers not given to the government, were withheld from it; and that, if any doubt could have existed on this subject, under the original text of the Constitution, it is removed, as far as words could remove it, by the 12th amendment, now a part of the Constitution, which expressly declares, “that the powers not delegated to the United States, by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”
The other position involved in this branch of the resolution, namely, “that the states are parties to the Constitution or compact,” is, in the judgment of the committee, equally free from objection. It is indeed true, that the term “states,” is sometimes used in a vague sense, and sometimes in different senses, according to the subject to which it is applied. Thus, it sometimes means the separate sections of territory occupied by the political societies within each; sometimes the particular governments, established by those societies; sometimes those societies as organized into those particular governments; and, lastly, it means the people composing those political societies, in their highest sovereign capacity. Although it might be wished that the perfection of language admitted less diversity in the signification of the same words, yet little inconveniency is produced by it, where the true sense can be collected with certainty from the different applications. In the present instance, whatever different constructions of the term “states,” in the resolution, may have been entertained, all will at least concur in that last mentioned; because, in that sense, the Constitution was submitted to the “states:” in that sense the “states” ratified it: and, in that sense of the term “states,” they are consequently parties to the compact, from which the powers of the federal government result.
The next position is, that the General Assembly views the powers of the federal government, “as limited by the plain sense and intention of the instrument constitut-ing that compact,” and “as no farther valid than they are authorized by the grants therein enumerated.” It does not seem possible, that any just objection can lie against either of these clauses. The first amounts merely to a declaration, that the compact ought to have the interpretation plainly intended by the parties to it; the other to a declaration, that it ought to have the execution and effect intended by them. If the powers granted, be valid, it is solely because they are granted: and, if the granted powers are valid, because granted, all other powers not granted, must not be valid.
The resolution, having taken this view of the federal compact, proceeds to infer, “that, in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states, who are parties thereto, have the right and are in duty bound to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights, and liberties appertaining to them.”
It appears to your committee to be a plain principle, founded in common sense, illustrated by common practice, and essential to the nature of compacts, that, where resort can be had to no tribunal, superior to the authority of the parties, the parties themselves must be the rightful judges in the last resort, whether the bargain made has been pursued or violated. The Constitution of the United States was formed by the sanction of the states, given by each in its sovereign capacity. It adds to the stability and dignity, as well as to the authority of the Constitution, that it rests on this legitimate and solid foundation. The states, then, being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity, that there can be no tribunal above their authority, to decide in the last resort, whether the compact made by them be violated; and, consequently, that, as the parties to it, they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition.
It does not follow, however, that because the states, as sovereign parties to their constitutional compact, must ultimately decide whether it has been violated, that such a decision ought to be interposed, either in a hasty manner, or on doubtful and inferior occasions. Even in the case of ordinary conventions between different nations, where, by the strict rule of interpretation, a breach of a part may be deemed a breach of the whole, every part being deemed a condition of every other part and of the whole, it is always laid down that the breach must be both wilful and material to justify an application of the rule. But in the case of an intimate and constitutional union, like that of the United States, it is evident that the interposition of the parties, in their sovereign capacity, can be called for by occasions only, deeply and essentially affecting the vital principles of their political system.
The resolution has accordingly guarded against any misapprehension of its object, by expressly requiring for such an interposition, “the case of a deliberate, palpable, and dangerous breach of the Constitution, by the exercise of powers not granted by it. It must be a case, not of a light and transient nature, but of a nature dangerous to the great purposes for which the Constitution was established. It must be a case, moreover, not obscure or doubtful in its construction, but plain and palpable. Lastly, it must be a case not resulting from a partial consideration, or hasty determination; but a case stamped with a final consideration and deliberate adherence. It is not necessary, because the resolution does not require that the question should be discussed, how far the exercise of any particular power, ungranted by the Constitution, would justify the interposition of the parties to it. As cases might easily be stated, which none would contend ought to fall within that description; cases, on the other hand, might, with equal ease, be stated, so flagrant and so fatal, as to unite every opinion in placing them within that description.
But the resolution has done more than guard against misconstruction, by expressly referring to cases of a deliberate, palpable, and dangerous nature. It specifies the object of the interposition which it contemplates, to be solely that of arresting the progress of the evil of usurpation, and of maintaining the authorities, rights, and liberties appertaining to the states, as parties to the Constitution.
From this view of the resolution, it would seem inconceivable that it can incur any just disapprobation from those who, laying aside all momentary impressions, and recollecting the genuine source and object of the Federal Constitution, shall candidly and accurately interpret the meaning of the General Assembly. If the deliberate exercise of dangerous powers, palpably withheld by the Constitution, could not justify the parties to it, in interposing even so far as to arrest the progress of the evil, and thereby to preserve the Constitution itself, as well as to provide for the safety of the parties to it, there would be an end to all relief from usurped power, and a direct subversion of the rights specified or recognised under all the state constitutions, as well as a plain denial of the fundamental principle on which our independence itself was declared.
But it is objected that the judicial authority is to be regarded as the sole expositor of the Constitution, in the last resort; and it may be asked for what reason, the declaration by the General Assembly, supposing it to be theoretically true, could be required at the present day and in so solemn a manner.
On this objection it might be observed, first, that there may be instances of usurped power, which the forms of the Constitution would never draw within the control of the judicial department; secondly, that if the decision of the judiciary be raised above the authority of the sovereign parties to the Constitution, the decisions of the other departments, not carried by the forms of the Constitution before the judiciary, must be equally authoritative and final with the decisions of that department. But the proper answer to the objection is, that the resolution of the General Assembly relates to those great and extraordinary cases, in which all the forms of the Constitution may prove ineffectual against infractions dangerous to the essential rights of the parties to it. The resolution supposes that dangerous powers, not delegated, may not only be usurped and executed by the other departments, but that the judicial department also may exercise or sanction dangerous powers beyond the grant of the Constitution; and, consequently, that the ultimate right of the parties to the Constitution, to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority, as well as by another; by the judiciary, as well as by the executive, or the legislature.
However true, therefore, it may be, that the judicial department, is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties to the constitutional compact, from which the judicial as well as the other departments hold their delegated trusts. On any other hypothesis, the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers, might subvert for ever, and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve.
The truth declared in the resolution being established, the expediency of making the declaration at the present day, may safely be left to the temperate consideration and candid judgment of the American public. It will be remembered that a frequent recurrence to fundamental principles, is solemnly enjoined by most of the state constitutions, and particularly by our own, as a necessary safeguard against the danger of degeneracy to which republics are liable, as well as other governments, though in a less degree than others. And a fair comparison of the political doctrines not unfrequent at the present day, with those which characterized the epoch of our revolution, and which form the basis of our republican constitutions, will best determine whether the declaratory recurrence here made to those principles, ought to be viewed as unseasonable and improper, or as a vigilant discharge of an important duty. The authority of constitutions over governments, and of the sovereignty of the people over constitutions, are truths which are at all times necessary to be kept in mind; and at no time perhaps more necessary than at the present.
The fourth resolution stands as follows:
That the General Assembly doth also express its deep regret, that a spirit has in sundry instances, been manifested by the federal government, to enlarge its powers by forced constructions of the constitutional charter which defines them; and that indications have appeared of a design to expound certain general phrases, (which, having been copied from the very limited grant of powers in the former articles of confederation, were the less liable to be misconstrued,) so as to destroy the meaning and effect of the particular enumeration which necessarily explains, and limits the general phrases; and so as to consolidate the states, by degrees, into one sovereignty, the obvious tendency and inevitable result of which would be, to transform the present republican system of the United States into an absolute, or, at best, a mixed monarchy.
The first question here to be considered is, whether a spirit has in sundry instances been manifested by the Federal Government to enlarge its powers by forced constructions of the constitutional charter.
The General Assembly having declared its opinion merely by regretting in general terms that forced constructions for enlarging the federal powers have taken place, it does not appear to the committee necessary to go into a specification of every instance to which the resolution may allude. The alien and sedition-acts being particularly named in a succeeding resolution, are of course to be understood as included in the allusion. Omitting others which have less occupied public attention, or been less extensively regarded as unconstitutional, the resolution may be presumed to refer particularly to the bank law, which from the circumstances of its passage, as well as the latitude of construction on which it is founded, strikes the attention with singular force; and the carriage tax, distinguished also by circumstances in its history having a similar tendency. Those instances, alone, if resulting from forced construction and calculated to enlarge the powers of the Federal Government, as the committee cannot but conceive to be the case, sufficiently warrant this part of the resolution. The committee have not thought it incumbent on them to extend their attention to laws which have been objected to, rather as varying the constitutional distribution of powers in the Federal Government, than as an absolute enlargement of them; because instances of this sort, however important in their principles and tendencies, do not appear to fall strictly within the text under review.
The other questions presenting themselves, are—1. Whether indications have appeared of a design to expound certain general phrases copied from the “articles of confederation” so as to destroy the effect of the particular enumeration explaining and limiting their meaning. 2. Whether this exposition would by degrees consolidate the states into one sovereignty. 3. Whether the tendency and result of this consolidation would be to transform the republican system of the United States into a monarchy.
I. The general phrases here meant must be those “of providing for the common defence and general welfare.”
In the “articles of confederation,” the phrases are used as follows, in Art. VIII. “All charges of war, and all other expenses that shall be incurred for the common defence and general welfare, and allowed by the United States in Congress assembled, shall be defrayed out of a common treasury, which shall be supplied by the several states, in pro-portion to the value of all land within each state, granted to, or surveyed for any person, as such land and the buildings and improvements thereon shall be estimated, according to such mode as the United States in Congress assembled shall from time to time direct and appoint.”
In the existing Constitution, they make the following part of Sec. 8, “The Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts, and to provide for the common defence and general welfare of the United States.”
This similarity in the use of these phrases in the two great federal charters, might well be considered, as rendering their meaning less liable to be misconstrued in the latter; because it will scarcely be said, that in the former they were ever understood to be either a general grant of power, or to authorize the requisition or application of money by the old Congress to the common defence and general welfare, except in the cases afterwards enumerated, which explained and limited their meaning; and if such was the limited meaning attached to these phrases in the very instrument revised and remodelled by the present Constitution, it can never be supposed that when copied into this Constitution, a different meaning ought to be attached to them.
That, notwithstanding this remarkable security against misconstruction, a design has been indicated to expound these phrases in the Constitution, so as to destroy the effect of the particular enumeration of powers by which it explains and limits them, must have fallen under the observation of those who have attended to the course of public transactions. Not to multiply proofs on this subject, it will suffice to refer to the debates of the federal legislature, in which arguments have on different occasions been drawn, with apparent effect, from these phrases, in their indefinite meaning.
To these indications might be added, without looking farther, the official report on manufactures, by the late Secretary of the Treasury, made on the 5th of December, 1791; and the report of a committee of Congress, in January, 1797, on the promotion of agriculture. In the first of these it is expressly contended to belong “to the discretion of the national legislature to pronounce upon the objects which concern the general welfare, and for which, under that description, an appropriation of money is requisite and proper. And there seems to be no room for a doubt, that whatever concerns the general interests of learning, of agriculture, of manufactures, and of commerce, are within the sphere of the national councils, as far as regards the application of money. The latter report assumes the same latitude of power in the national councils, and applies it to the encouragement of agriculture by means of a society to be established at the seat of government. Although neither of these reports may have received the sanction of a law carrying it into effect, yet, on the other hand, the extraordinary doctrine contained in both, has passed without the slightest positive mark of disapprobation from the authority to which it was addressed.
Now, whether the phrases in question be construed to authorize every measure relating to the common defence and general welfare, as contended by some; or every measure only in which there might be an application of money, as suggested by the caution of others; the effect must substantially be the same, in destroying the import and force of the particular enumeration of powers which follow these general phrases in the Constitution. For it is evident that there is not a single power whatever, which may not have some reference to the common defence, or the general welfare; nor a power of any magnitude, which, in its exercise, does not involve or admit an application of money. The government, therefore, which possesses power in either one or other of these extents, is a government without the limitations formed by a particular enumeration of powers; and consequently, the meaning and effect of this particular enumeration is destroyed by the exposition given to these general phrases.
This conclusion will not be affected by an attempt to qualify the power over the “general welfare,” by referring it to cases where the general welfare is beyond the reach of separate provisions by the individual states; and leaving to these their jurisdictions, in cases to which their separate provisions may be competent. For, as the authority of the individual states must in all cases be incompetent to general regulations operating through the whole, the authority of the United States would be extended to every object relating to the general welfare, which might, by any possibility, be provided for by the general authority. This qualifying construction, therefore, would have little, if any tendency, to circumscribe the power claimed under the latitude of the terms “general welfare.”
The true and fair construction of this expression, both in the original and existing federal compacts, appears to the committee too obvious to be mistaken. In both, the Congress is authorized to provide money for the common defence and general welfare. In both, is subjoined to this authority, an enumeration of the cases to which their powers shall extend. Money cannot be applied to the general welfare otherwise than by an application of it to some particular measures, conducive to the general welfare. Whenever, therefore, money has been raised by the general authority, and is to be applied to a particular measure, a question arises whether the particular measure be within the enumerated authorities vested in Congress. If it be, the money requisite for it may be applied to it; if it be not, no such application can be made. This fair and obvious interpretation coincides with, and is enforced by the clause in the Constitution, which declares, that “no money shall be drawn from the treasury, but in consequence of appropriations by law.” An appropriation of money to the general welfare would be deemed rather a mockery than an observance of this constitutional injunction.
2. Whether the exposition of the general phrases here combated would not, by degrees, consolidate the states into one sovereignty, is a question concerning which the committee can perceive little room for difference of opinion. To consolidate the states into one sovereignty, nothing more can be wanted, than to supersede their respective sovereignties in the cases reserved to them, by extending the sovereignty of the United States, to all cases of the “general welfare,” that is to say, to all cases whatever.
3. That the obvious tendency and inevitable result of a consolidation of the states into one sovereignty, would be to transform the republican system of the United States into a monarchy, is a point which seems to have been sufficiently decided by the general sentiment of America. In almost every instance of discussion, relating to the consolidation in question, its certain tendency to pave the way to monarchy seems not to have been contested. The prospect of such a consolidation has formed the only topic of controversy. It would be unnecessary, therefore, for the committee to dwell long on the reasons which support the position of the General Assembly. It may not be improper, however, to remark two consequences evidently flowing from an extension of the federal powers to every subject falling within the idea of the “general welfare.”
One consequence must be, to enlarge the sphere of discretion allotted to the executive magistrate. Even within the legislative limits properly defined by the Constitution, the difficulty of accommodating legal regulations to a country so great in extent, and so various in its circumstances, has been much felt; and has led to occasional investments of power in the executive, which involve perhaps as large a portion of discretion as can be deemed consistent with the nature of the executive trust. In proportion as the objects of legislative care might be multiplied, would the time allowed for each be diminished, and the difficulty of providing uniform and particular regulations for all be increased. From these sources would necessarily ensue a greater latitude to the agency of that department which is always in existence, and which could best mould regulations of a general nature, so as to suit them to the diversity of particular situations. And it is in this latitude, as a supplement to the deficiency of the laws, that the degree of executive prerogative materially consists.
The other consequence would be that of an excessive augmentation of the offices, honours, and emoluments depending on the executive will. Add to the present legitimate stock, all those of every description which a consolidation of the states would take from them, and turn over to the Federal Government, and the patronage of the executive would necessarily be as much swelled in this case, as its prerogative would be in the other.
This disproportionate increase of prerogative and patronage must, evidently, either enable the chief magistrate of the Union, by quiet means, to secure his re-election from time to time, and finally, to regulate the succession as he might please; or, by giving so transcendent an importance to the office, would render the elections to it so violent and corrupt, that the public voice itself might call for an hereditary, in place of an elective succession. Whichever of these events might follow, the transformation of the republican system of the United States into a monarchy, anticipated by the General Assembly from a consolidation of the states into one sovereignty, would be equally accomplished; and whether it would be into a mixed or an absolute monarchy, might depend on too many contingencies to admit of any certain foresight.
The resolution next in order, is contained in the following terms:
That the General Assembly doth particularly protest against the palpable and alarming infractions of the Constitution, in the two late cases of the “alien and sedition-acts,” passed at the last session of Congress; the first of which exercises a power nowhere delegated to the Federal Government; and which, by uniting legislative and judicial powers to those of executive, subverts the general principles of a free Government, as well as the particular organization and positive provisions of the Federal Constitution; and the other of which acts exercises, in like manner, a power not delegated by the Constitution; but, on the contrary, expressly and positively forbidden by one of the amendments thereto: 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 among the people thereon, which has ever been justly deemed the only effectual guardian of every other right.
The subject of this resolution having, it is presumed, more particularly led the General Assembly into the proceedings which they communicated to the other states, and being in itself of peculiar importance, it deserves the most critical and faithful investigation; for the length of which no other apology will be necessary.
The subject divides itself into first, “The alien-act,” secondly, “The sedition-act.”
I. Of the “alien-act,” it is affirmed by the resolution, 1st. That it exercises a power nowhere delegated to the Federal Government. 2d. That it unites legislative and judicial powers to those of the executive. 3d. That this union of power subverts the general principles of free government. 4th. That it subverts the particular organization and positive provisions of the Federal Constitution.
In order to clear the way for a correct view of the first position, several observations will be premised.
In the first place, it is to be borne in mind, that it being a characteristic feature of the Federal Constitution, as it was originally ratified, and an amendment thereto having precisely declared, “That the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people,” it is incumbent in this, as in every other exercise of power by the Federal Government, to prove from the Constitution, that it grants the particular power exercised.
The next observation to be made is, that much confusion and fallacy have been thrown into question, by blending the two cases of “aliens, members of a hostile nation; and aliens, members of friendly nations.” These two cases are so obviously and so essentially distinct, that it occasions no little surprise that the distinction should have been disregarded: and the surprise is so much the greater, as it appears that the two cases are actually distinguished by two separate acts of Congress, passed at the same session, and comprised in the same publication; the one providing for the case of “alien enemies;” the other “concerning aliens” indiscriminately; and consequently extending to aliens of every nation in peace and amity with the United States. With respect to alien enemies, no doubt has been intimated as to the federal authority over them; the Constitution having expressly delegated to Congress the power to declare war against any nation, and of course to treat it and all its members as enemies. With respect to aliens who are not enemies, but members of nations in peace and amity with the United States, the power assumed by the act of Congress is denied to be constitutional; and it is accordingly against this act, that the protest of the General Assembly is expressly and exclusively directed.
A third observation is, that were it admitted, as is contended, that the “act concerning aliens” has for its object not a penal, but a preventive justice, it would still remain to be proved that it comes within the constitutional power of the federal legislature; and if within its power, that the legislature has exercised it in a constitutional manner.
In the administration of preventive justice, the following principles have been held sacred: that some probable ground of suspicion be exhibited before some judicial authority; that it be supported by oath or affirmation; that the party may avoid being thrown into confinement, by finding pledges or sureties for his legal conduct sufficient in the judgment of some judicial authority; that he may have the benefit of a writ of habeas corpus, and thus obtain his release, if wrongfully confined; and that he may at any time be discharged from his recognizance, or his confinement, and restored to his former liberty and rights, on the order of the proper judicial authority, if it shall see sufficient cause.
All these principles of the only preventive justice known to American jurisprudence are violated by the alien-act. The ground of suspicion is to be judged of, not by any judicial authority, but by the executive magistrate alone; no oath or affirmation is required; if the suspicion be held reasonable by the President, he may order the suspected alien to depart the territory of the United States, without the opportunity of avoiding the sentence, by finding pledges for his future good conduct; as the President may limit the time of departure as he pleases, the benefit of the writ of habeas corpus may be suspended with respect to the party, although the Constitution ordains, that it shall not be suspended, unless when the public safety may require it in case of rebellion or invasion, neither of which existed at the passage of the act; and the party being under the sentence of the President, either removed from the United States, or being punished by imprisonment, or disqualification ever to become a citizen on conviction of not obeying the order of removal, he cannot be discharged from the proceedings against him, and restored to the benefits of his former situation, although the highest judicial authority should see the most sufficient cause for it.
But, in the last place, it can never be admitted, that the removal of aliens, authorized by the act, is to be considered, not as punishment for an offence, but as a measure of precaution and prevention. If the banishment of an alien from a country into which he has been invited, as the asylum most auspicious to his happiness; a country where he may have formed the most tender of connexions, where he may have vested his entire property, and acquired property of the real and permanent, as well as the movable and temporary kind; where he enjoys under the laws a greater share of the blessings of personal security and personal liberty than he can elsewhere hope for, and where he may have nearly completed his probationary title to citizenship; if, moreover, in the execution of the sentence against him, he is to be exposed, not only to the ordinary dangers of the sea, but to the peculiar casualties incident to a crisis of war, and of unusual licentiousness on that element, and possibly to vindictive purposes which his emigration itself may have provoked; if a banishment of this sort be not a punishment, and among the severest of punishments, it will be difficult to imagine a doom to which the name can be applied. And if it be a punishment, it will remain to be inquired, whether it can be constitutionally inflicted, on mere suspicion, by the single will of the executive magistrate, on persons convicted of no personal offence against the laws of the land, nor involved in any offence against the law of nations, charged on the foreign state of which they are members.
One argument offered in justification of this power exercised over aliens is, that the admission of them into the country being of favour, not of right, the favour is at all times revocable.
To this argument it might be answered, that allowing the truth of the inference, it would be no proof of what is required. A question would still occur, whether the Constitution had vested the discretionary power of admitting aliens in the federal government, or in the state governments.
But it cannot be a true inference, that because the admission of an alien is a favour, the favour may be revoked at pleasure. A grant of land to an individual may be of favour, not of right; but the moment the grant is made, the favour becomes a right, and must be forfeited before it can be taken away. To pardon a malefactor may be favour, but the pardon is not, on that account, the less irrevocable. To admit an alien to naturalization is as much a favour, as to admit him to reside in the country; yet it cannot be pretended, that a person naturalized can be deprived of the benefit, any more than a native citizen can be disfranchised.
Again, it is said, that aliens not being parties to the Constitution, the rights and privileges which it secures cannot be at all claimed by them.
To this reasoning, also, it might be answered, that although aliens are not parties to the Constitution, it does not follow that the Constitution has vested in Congress an absolute power over them. The parties to the Constitution may have granted, or retained, or modified the power over aliens, without regard to that particular consideration.
But a more direct reply is, that it does not follow, because aliens are not parties to the Constitution, as citizens are parties to it, that whilst they actually conform to it, they have no right to its protection. Aliens are not more parties to the laws, than they are parties to the Constitution; yet, it will not be disputed, that as they owe, on one hand, a temporary obedience, they are entitled in return to their protection and advantage.
If aliens had no rights under the Constitution, they might not only be banished, but even capitally punished, without a jury or the other incidents to a fair trial. But so far has a contrary principle been carried, in every part of the United States, that except on charges of treason, an alien has, besides all the common privileges, the special one of being tried by a jury, of which one-half may be also aliens.
It is said, further, that by the law and practice of nations, aliens may be removed at discretion, for offences against the law of nations; that Congress are authorized to define and punish such offences; and that to be dangerous to the peace of society is, in aliens, one of those offences.
The distinction between alien enemies and alien friends, is a clear and conclusive answer to this argument. Alien enemies are under the law of nations, and liable to be punished for offences against it. Alien friends, except in the single case of public ministers, are under the municipal law, and must be tried and punished according to that law only.
This argument also, by referring the alien-act to the power of Congress to define and punish offences against the law of nations, yields the point that the act is of a penal, not merely of a preventive operation. It must, in truth, be so considered. And if it be a penal act, the punishment it inflicts, must be justified by some offence that deserves it.
Offences for which aliens, within the jurisdiction of a country, are punishable, are first, offences committed by the nation of which they make a part, and in whose offences they are involved: Secondly, offences committed by themselves alone, without any charge against the nation to which they belong. The first is the case of alien enemies; the second, the case of alien friends. In the first case, the offending nation can no otherwise be punished than by war, one of the laws of which authorizes the expulsion of such of its members, as may be found within the country, against which the offence has been committed. In the second case, the offence being committed by the individual, not by his nation, and against the municipal law, not against the law of nations, the individual only, and not the nation, is punishable; and the punishment must be conducted according to the municipal law, not according to the law of nations. Under this view of the subject, the act of Congress, for the removal of alien enemies, being conformable to the law of nations, is justified by the Constitution: and the “act,” for the removal of alien friends, being repugnant to the constitutional principles of municipal law, is unjustifiable.
Nor is the act of Congress, for the removal of alien friends, more agreeable to the general practice of nations, than it is within the purview of the law of nations. The general practice of nations, distinguishes between alien friends and alien enemies. The latter it has proceeded against, according to the law of nations, by expelling them as enemies. The former it has considered as under a local and temporary allegiance, and entitled to a correspondent protection. If contrary instances are to be found in barbarous countries, under undefined prerogatives, or amid revolutionary dangers, they will not be deemed fit precedents for the government of the United States, even if not beyond its constitutional authority.
It is said, that Congress may grant letters of marque and reprisal; that reprisals may be made on persons, as well as property; and that the removal of aliens may be considered as the exercise in an inferior degree, of the general power of reprisal on persons.
Without entering minutely into a question that does not seem to require it, it may be remarked, that reprisal is a seizure of foreign persons or property, with a view to obtain that justice for injuries done by one state or its members, to another state or its members, for which, a refusal of the aggressor requires such a resort to force under the law of nations. It must be considered as an abuse of words to call the removal of persons from a country, a seizure or reprisal on them: nor is the distinction to be overlooked between reprisals on persons within the country and under the faith of its laws, and on persons out of the country.
But, laying aside these considerations, it is evidently impossible to bring the alien-act within the power of granting reprisals; since it does not allege or imply any injury received from any particular nation, for which this proceeding against its members was intended as a reparation. The proceeding is authorized against aliens of every nation; of nations charged neither with any similar proceeding against American citizens, nor with any injuries for which justice might be sought, in the mode prescribed by the act. Were it true, therefore, that good causes existed for reprisals against one or more foreign nations, and that neither persons nor property of its members, under the faith of our laws, could plead an exemption, the operation of the act ought to have been limited to the aliens among us, belonging to such nations. To license reprisals against all nations, for aggressions charged on one only, would be a measure as contrary to every principle of justice and public law, as to a wise policy, and the universal practice of nations.
It is said, that the right of removing aliens is an incident to the power of war, vested in Congress by the Constitution.
This is a former argument in a new shape only; and is answered by repeating, that the removal of alien enemies is an incident to the power of war; that the removal of alien friends, is not an incident to the power of war.
It is said, that Congress are by the Constitution to protect each state against invasion; and that the means of preventing invasion are included in the power of protection against it.
The power of war in general, having been before granted by the Constitution, this clause must either be a mere specification for greater caution and certainty, of which there are other examples in the instrument, or be the injunction of a duty, superadded to a grant of the power. Under either explanation, it cannot enlarge the powers of Congress on the subject. The power and the duty to protect each state against an invading enemy, would be the same under the general power, if this regard to greater caution had been omitted.
Invasion is an operation of war. To protect against invasion is an exercise of the power of war. A power, therefore, not incident to war, cannot be incident to a particular modification of war. And as the removal of alien friends, has appeared to be no incident to a general state of war, it cannot be incident to a partial state, or a particular modification of war.
Nor can it ever be granted, that a power to act on a case when it actually occurs, includes a power over all the means that may tend to prevent the occurrence of the case. Such a latitude of construction would render unavailing every practicable definition of particular and limited powers. Under the idea of preventing war in general, as well as invasion in particular, not only an indiscriminate removal of all aliens might be enforced, but a thousand other things still more remote from the operations and precautions appurtenant to war, might take place. A bigoted or tyrannical nation might threaten us with war, unless certain religious or political regulations were adopted by us; yet it never could be inferred, if the regulations which would prevent war, were such as Congress had otherwise no power to make, that the power to make them would grow out of the purpose they were to answer. Congress have power to suppress insurrections, yet it would not be allowed to follow, that they might employ all the means tending to prevent them; of which a system of moral instruction 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 inferior 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.
“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; because 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 permanent 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 passage, 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 Constitution 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 foreign 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 life 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 alien-act, 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.
This stage of our political history furnishes no foothold for the patrons of 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 empire, 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 empire. 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 “common law” could have had any legitimate birth as a law of the United States during that state of things. If it came, as such, into existence at all, the charter of confederation must have been its parent.
Here again, however, its pretensions are absolutely destitute of foundation. This instrument does not contain a sentence or syllable that can be tortured into a countenance of the idea, that the parties to it were, with respect to the objects of the common law, to form one community. No such law is named or implied, or alluded to as being in force, or as brought into force by that compact. No provision is made by which such a law could be carried into operation; whilst, on the other hand, every such inference or pretext is absolutely precluded by Article 2d, which declares, “that each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.”
Thus far it appears that not a vestige of this extraordinary doctrine can be found in the origin or progress of American institutions. The evidence against it has, on the contrary, grown stronger at every step, till it has amounted to a formal and positive exclusion, by written articles of compact among the parties concerned.
Is this exclusion revoked, and the common law introduced as a national law, by the present Constitution of the United States? This is the final question to be examined.
It is readily admitted, that particular parts of the common law may have a sanction from the Constitution, so far as they are necessarily comprehended in the technical phrases which express the powers delegated to the government; and so far also, as such other parts may be adopted by Congress as necessary and proper for carrying into execution the powers expressly delegated. But, the question does not relate to either of these portions of the common law. It relates to the common law beyond these limitations.
The only part of the Constitution which seems to have been relied on in this case is the 2d Sect. of Art. III. “The judicial power shall extend to all cases in law and equity, arising under this Constitution, the laws of the United States, and treaties made or which shall be made under their authority.”
It has been asked what cases, distinct from those arising under the laws and treaties of the United States, can arise under the Constitution, other than those arising under the common law; and it is inferred, that the common law is accordingly adopted or recognised by the Constitution.
Never, perhaps, was so broad a construction applied to a text so clearly unsusceptible of it. If any colour for the inference could be found, it must be in the impossibility of finding any other cases in law and equity, within the provision of the Constitution, to satisfy the expression; and rather than resort to a construction affecting so essentially the whole character of the government, it would perhaps be more rational to consider the expression as a mere pleonasm, or inadvertence. But, it is not necessary to decide on such a dilemma. The expression is fully satisfied, and its accuracy justified, by two descriptions of cases, to which the judicial authority is extended, and neither of which implies that the common law is the law of the United States. One of these descriptions comprehends the cases growing out of the restrictions on the legislative power of the states. For example, it is provided that “no state shall emit bills of credit,” or “make anything but gold and silver coin a tender in payment of debts.” Should this prohibition be violated, and a suit between citizens of the same state be the consequence, this would be a case arising under the Constitution, before the judicial power of the United States. A second description comprehends suits between citizens and foreigners, or citizens of different states, to be decided according to the state or foreign laws; but submitted by the Constitution to the judicial power of the United States; the judicial power being, in several instances, extended beyond the legislative power of the United States.
To this explanation of the text, the following observations may be added:
The expression, “cases in law and equity,” is manifestly confined to cases of a civil nature; and would exclude cases of criminal jurisdiction. Criminal cases in law and equity would be a language unknown to the law.
The succeeding paragraph of the same section is in harmony with this construction. It is in these words: “In all cases affecting ambassadors, other public ministers, and consuls, and those in which a state shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases [including cases in law and equity arising under the Constitution] the Supreme Court shall have appellate jurisdiction both as to law and fact; with such exceptions, and under such regulations, as Congress shall make.”
This paragraph, by expressly giving an appellate jurisdiction, in cases of law and equity arising under the Constitution, to fact, as well as to law, clearly excludes criminal cases, where the trial by jury is secured; because the fact, in such cases, is not a subject of appeal. And, although the appeal is liable to such exceptions and regulations as Congress may adopt, yet it is not to be supposed that an exception of all criminal cases could be contemplated; as well because a discretion in Congress to make or omit the exception would be improper, as because it would have been unnecessary. The exception could as easily have been made by the Constitution itself, as referred to the Congress.
Once more; the amendment last added to the Constitution, deserves attention, as throwing light on this subject. “The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States, by citizens of another state, or by citizens or subjects of any foreign power.” As it will not be pretended that any criminal proceeding could take place against a state, the terms law or equity, must be understood as appropriate to civil, in exclusion of criminal cases.
From these considerations, it is evident, that this part of the Constitution, even if it could be applied at all to the purpose for which it has been cited, would not include any cases whatever of a criminal nature; and consequently, would not authorize the inference from it, that the judicial authority extends to offences against the common law, as offences arising under the Constitution.
It is further to be considered, that even if this part of the Constitution could be strained into an application to every common law case, criminal as well as civil, it could have no effect in justifying the sedition-act, which is an exercise of legislative, and not of judicial power: and it is the judicial power only, of which the extent is defined in this part of the Constitution.
There are two passages in the Constitution, in which a description of the law of the United States is found. The first is contained in Art. III. sect. 2, in the words following: “This Constitution, the laws of the United States, and treaties made, or which shall be made under their authority.” The second is contained in the second paragraph of Art. VI. as follows: “This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land.” The first of these descriptions was meant as a guide to the judges of the United States; the second, as a guide to the judges in the several states. Both of them consist of an enumeration, which was evidently meant to be precise and complete. If the common law had been understood to be a law of the United States, it is not possible to assign a satisfactory reason why it was not expressed in the enumeration.
In aid of these objections, the difficulties and confusion inseparable from a constructive introduction of the common law, would afford powerful reasons against it.
Is it to be the common law with or without the British statutes?
If without the statutory amendments, the vices of the code would be insupportable.
If with these amendments, what period is to be fixed for limiting the British authority over our laws?
Is it to be the date of the eldest or the youngest of the colonies?
Or are the dates to be thrown together, and a medium deduced?
Or is our independence to be taken for the date?
Is, again, regard to be had to the various changes in the common law made by the local codes of America?
Is regard to be had to such changes, subsequent, as well as prior, to the establishment of the Constitution?
Is regard to be had to future, as well as past changes?
Is the law to be different in every state, as differently modified by its code; or are the modifications of any particular state to be applied to all?
And on the latter supposition, which among the state codes would form the standard?
Questions of this sort might be multiplied with as much ease, as there would be difficulty in answering them.
The consequences flowing from the proposed construction, furnish other objections equally conclusive; unless the text were peremptory in its meaning, and consistent with other parts of the instrument.
These consequences may be in relation to the legislative authority of the United States; to the executive authority; to the judicial authority; and to the governments of the several states.
If it be understood, that the common law is established by the Constitution, it follows that no part of the law can be altered by the legislature; such of the statutes already passed, as may be repugnant thereto would be nullified; particularly the “sedition-act” itself, which boasts of being a melioration of the common law; and the whole code, with all its incongruities, barbarisms, and bloody maxims, would be inviolably saddled on the good people of the United States.
Should this consequence be rejected, and the common law be held, like other laws, liable to revision and alteration, by the authority of Congress, it then follows, that the authority of Congress is co-extensive with the objects of common law; that is to say, with every object of legislation: for to every such object does some branch or other of the common law extend. The authority of Congress would, therefore, be no longer under the limitations marked out in the Constitution. They would be authorized to legislate in all cases whatsoever.
In the next place, as the President possesses the executive powers of the Constitution, and is to see that the laws be faithfully executed, his authority also must be coextensive with every branch of the common law. The additions which this would make to his power, though not readily to be estimated, claim the most serious attention.
This is not all; it will merit the most profound consideration, how far an indefinite admission of the common law, with a latitude in construing it, equal to the construction by which it is deduced from the Constitution, might draw after it the various prerogatives making part of the unwritten law of England. The English constitution itself is nothing more than a composition of unwritten laws and maxims.
In the third place, whether the common law be admitted as of legal or of constitutional obligation, it would confer on the judicial department a discretion little short of a legislative power.
On the supposition of its having a constitutional obligation, this power in the judges would be permanent and irremediable by the legislature. On the other supposition, the power would not expire, until the legislature should have introduced a full system of statutory provisions. Let it be observed, too, that besides all the uncertainties above enumerated, and which present an immense field for judicial discretion, it would remain with the same department to decide what parts of the common law would, and what would not, be properly applicable to the circumstances of the United States.
A discretion of this sort has always been lamented as incongruous and dangerous, even in the colonial and state courts; although so much narrowed by positive provisions in the local codes on all the principal subjects embraced by the common law. Under the United States, where so few laws exist on those subjects, and where so great a lapse of time must happen before the vast chasm could be supplied, it is manifest that the power of the judges over the law would, in fact, erect them into legislators; and that, for a long time, it would be impossible for the citizens to conjecture, either what was, or would be law.
In the last place, the consequence of admitting the common law as the law of the United States, on the authority of the individual states, is as obvious as it would be fatal. As this law relates to every subject of legislation, and would be paramount to the constitutions and laws of the states, the admission of it would overwhelm the residuary sovereignty of the states, and by one constructive operation, new-model the whole political fabric of the country.
From the review thus taken of the situation of the American colonies prior to their independence; of the effect of this event on their situation; of the nature and import of the articles of confederation; of the true meaning of the passage in the existing Constitution from which the common law has been deduced; of the difficulties and uncertainties incident to the doctrine; and of its vast consequences in extending the powers of the Federal Government, and in superseding the authorities of the state governments; the committee feel the utmost confidence in concluding, that the common law never was, nor, by any fair construction, ever can be, deemed a law for the American people as one community; and they indulge the strongest expectation that the same conclusion will finally be drawn, by all candid and accurate inquirers into the subject. It is indeed distressing to reflect, that it ever should have been made a question, whether the Constitution, on the whole face of which is seen so much labour to enumerate and define the several objects of federal power, could intend to introduce in the lump, in an indirect manner, and by a forced construction of a few phrases, the vast and multifarious jurisdiction involved in the common law; a law filling so many ample volumes; a law overspreading the entire field of legislation; and a law that would sap the foundation of the Constitution as a system of limited and specified powers. A severer reproach could not, in the opinion of the committee, be thrown on the Constitution, on those who framed, or on those who established it, than such a supposition would throw on them.
The argument, then, drawn from the common law, on the ground of its being adopted or recognised by the Constitution, being inapplicable to the sedition-act, the committee will proceed to examine the other arguments which have been founded on the Constitution.
They will waste but little time on the attempt to cover the act by the preamble to the Constitution; it being contrary to every acknowledged rule of construction, to set up this part of an instrument, in opposition to the plain meaning expressed in the body of the instrument. A preamble usually contains the general motives or reasons, for the particular regulations or measures which follow it; and is always understood to be explained and limited by them. In the present instance, a contrary interpretation would have the inadmissible effect, of rendering nugatory or improper every part of the Constitution which succeeds the preamble.
The paragraph in Art. I. sect. 8, which contains the power to lay and collect taxes, duties, imposts, and excise; to pay the debts, and provide for the common defence and general welfare, having been already examined, will also require no particular attention in this place. It will have been seen that in its fair and consistent meaning, it cannot enlarge the enumerated powers vested in Congress.
The part of the Constitution which seems most to be recurred to, in defence of the “sedition-act,” is the last clause of the above section, empowering Congress “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.”
The plain import of this clause is, that Congress shall have all the incidental or instrumental powers necessary and proper for carrying into execution all the express powers; whether they be vested in the government of the United States, more collectively, or in the several departments or officers thereof. It is not a grant of new powers to Congress, but merely a declaration, for the removal of all uncertainty, that the means of carrying into execution, those otherwise granted, are included in the grant.
Whenever, therefore, a question arises concerning the constitutionality of a particular power, the first question is, whether the power be expressed in the Constitution. If it be, the question is decided. If it be not expressed, the next inquiry must be, whether it is properly an incident to an express power, and necessary to its execution. If it be, it may be exercised by Congress. If it be not, Congress cannot exercise it.
Let the question be asked, then, whether the power over the press, exercised in the “sedition-act,” be found among the powers expressly vested in the Congress? This is not pretended.
Is there any express power, for executing which it is a necessary and proper power?
The power which has been selected, as least remote, in answer to this question, is that of “suppressing insurrections;” which is said to imply a power to prevent insurrections, by punishing whatever may lead or tend to them. But, it surely cannot, with the least plausibility, be said, that a regulation of the press, and a punishment of libels, are exercises of a power to suppress insurrections. The most that could be said, would be, that the punishment of libels, if it had the tendency ascribed to it, might prevent the occasion of passing or executing laws necessary and proper for the suppression of insurrections.
Has the Federal Government no power, then, to prevent as well as to punish resistance to the laws?
They have the power, which the Constitution deemed most proper, in their hands for the purpose. The Congress has power before it happens, to pass laws for punishing it; and the executive and judiciary have power to enforce those laws when it does happen.
It must be recollected by many, and could be shown to the satisfaction of all, that the construction here put on the terms “necessary and proper,” is precisely the construction which prevailed during the discussions and ratifications of the Constitution. It may be added, and cannot too often be repeated, that it is a construction absolutely necessary to maintain their consistency with the peculiar character of the government, as possessed of particular and defined powers only; not of the general and indefinite powers vested in ordinary governments. For, if the power to suppress insurrection, includes a power to punish libels; or if the power to punish, includes a power to prevent, by all the means that may have that tendency; such is the relation and influence among the most remote subjects of legislation, that a power over a very few, would carry with it a power over all. And it must be wholly immaterial, whether unlimited powers be exercised under the name of unlimited powers, or be exercised under the name of unlimited means of carrying into execution limited powers.
This branch of the subject will be closed with a reflection which must have weight with all; but more especially with those who place peculiar reliance on the judicial exposition of the Constitution, as the bulwark provided against undue extensions of the legislative power. If it be understood that the powers implied in the specified powers, have an immediate and appropriate relation to them, as means, necessary and proper for carrying them into execution, questions on the constitutionality of laws passed for this purpose, will be of a nature sufficiently precise and determinate for judicial cognizance and control! If, on the other hand, Congress are not limited in the choice of means by any such appropriate relation of them to the specified powers; but may employ all such means as they may deem fitted to prevent, as well as to punish, crimes subjected to their authority; such as may have a tendency only to promote an object for which they are authorized to provide; every one must perceive, that questions relating to means of this sort, must be questions of mere policy and expediency, on which legislative discretion alone can decide, and from which the judicial interposition and control are completely excluded.
2. The next point which the resolution requires to be proved, is, that the power over the press exercised by the sedition-act, is positively forbidden by one of the amendments to the Constitution.
The amendment stands in these words—“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
In the attempts to vindicate the “sedition-act,” it has been contended, 1. That the “freedom of the press” is to be determined by the meaning of these terms in the common law. 2. That the article supposes the power over the press to be in Congress, and prohibits them only from abridging the freedom allowed to it by the common law.
Although it will be shown, in examining the second of these positions, that the amendment is a denial to Congress of all power over the press, it may not be useless to make the following observations on the first of them.
It is deemed to be a sound opinion, that the sedition-act, in its definition of some of the crimes created, is an abridgment of the freedom of publication, recognised by principles of the common law in England.
The freedom of the press under the common law, is, in the defences of the sedition-act, made to consist in an exemption from all previous restraint on printed publications, by persons authorized to inspect and prohibit them. It appears to the committee, that this idea of the freedom of the press, can never be admitted to be the American idea of it: since a law inflicting penalties on printed publications, would have a similar effect with a law authorizing a previous restraint on them. It would seem a mockery to say, that no law should be passed, preventing publications from being made, but that laws might be passed for punishing them in case they should be made.
The essential difference between the British government, and the American constitutions, will place this subject in the clearest light.
In the British government, the danger of encroachments on the rights of the people, is understood to be confined to the executive magistrate. The representatives of the people in the legislature, are not only exempt themselves, from distrust, but are considered as sufficient guardians of the rights of their constituents against the danger from the executive. Hence it is a principle, that the parliament is unlimited in its power; or, in their own language, is omnipotent. Hence, too, all the ramparts for protecting the rights of the people, such as their magna charta, their bill of rights, &c., are not reared against the parliament, but against the royal prerogative. They are merely legislative precautions against executive usurpations. Under such a government as this, an exemption of the press from previous restraint by licensers appointed by the king, is all the freedom that can be secured to it.
In the United States, the case is altogether different. The people, not the government, possess the absolute sovereignty. The legislature, no less than the executive, is under limitations of power. Encroachments are regarded as possible from the one, as well as from the other. Hence, in the United States, the great and essential rights of the people are secured against legislative, as well as against executive ambition. They are secured, not by laws paramount to prerogative, but by constitutions paramount to laws. This security of the freedom of the press requires, that it should be exempt, not only from previous restraint by the executive, as in Great Britain, but from legislative restraint also; and this exemption, to be effectual, must be an exemption not only from the previous inspection of licensers, but from the subsequent penalty of laws.
The state of the press, therefore, under the common law, cannot, in this point of view, be the standard of its freedom in the United States.
But there is another view, under which it may be necessary to consider this subject. It may be alleged, that although the security for the freedom of the press, be different in Great Britain and in this country; being a legal security only in the former, and a constitutional security in the latter; and although there may be a further difference, in an extension of the freedom of the press here, beyond an exemption from previous restraint, to an exemption from subsequent penalties also; yet that the actual legal freedom of the press, under the common law, must determine the degree of freedom which is meant by the terms, and which is constitutionally secured against both previous and subsequent restraints.
The committee are not unaware of the difficulty of all general questions, which may turn on the proper boundary between the liberty and licentiousness of the press. They will leave it therefore for consideration only, how far the difference between the nature of the British government, and the nature of the American governments, and the practice under the latter, may show the degree of rigour in the former to be inapplicable to, and not obligatory in the latter.
The nature of governments elective, limited, and responsible, in all their branches, may well be supposed to require a greater freedom of animadversion than might be tolerated by the genius of such a government as that of Great Britain. In the latter, it is a maxim, that the king, an hereditary, not a responsible magistrate, can do no wrong; and that the legislature, which in two-thirds of its composition, is also hereditary, not responsible, can do what it pleases. In the United States, the executive magistrates are not held to be infallible, nor the legislatures to be omnipotent; and both being elective, are both responsible. Is it not natural and necessary, under such different circumstances, that a different degree of freedom, in the use of the press, should be contemplated?
Is not such an inference favoured by what is observable in Great Britain itself? Notwithstanding the general doctrine of the common law, on the subject of the press, and the occasional punishment of those who use it with a freedom offensive to the government; it is well known, that with respect to the responsible members of the government, where the reasons operating here, become applicable there, the freedom exercised by the press, and protected by the public opinion, far exceeds the limits prescribed by the ordinary rules of law. The ministry, who are responsible to impeachment, are at all times animadverted on, by the press, with peculiar freedom; and during the elections for the House of Commons, the other responsible part of the government, the press is employed with as little reserve towards the candidates.
The practice in America must be entitled to much more respect. In every state, probably, in the Union, the press has exerted a freedom in canvassing the merits and measures of public men, of every description, which has not been confined to the strict limits of the common law. On this footing, the freedom of the press has stood; on this footing it yet stands. And it will not be a breach, either of truth or of candour, to say, that no persons or presses are in the habit of more unrestrained animadversions on the proceedings and functionaries of the state governments, than the persons and presses most zealous in vindicating the act of Congress for punishing similar animadversions on the government of the United States.
The last remark will not be understood as claiming for the state governments an immunity greater than they have heretofore enjoyed. Some degree of abuse is inseparable from the proper use of everything; and in no instance is this more true, than in that of the press. It has accordingly been decided by the practice of the states, that it is better to leave a few of its noxious branches to their luxuriant growth, than by pruning them away, to injure the vigour of those yielding the proper fruits. And can the wisdom of this policy be doubted by any who reflect, that to the press alone, chequered as it is with abuses, the world is indebted for all the triumphs which have been gained by reason and humanity, over error and oppression; who reflect, that to the same beneficent source, the United States owe much of the lights which conducted them to the rank of a free and independent nation; and which have improved their political system into a shape so auspicious to their happiness. Had “sedition-acts,” forbidding every publication that might bring the constituted agents into contempt or disrepute, or that might excite the hatred of the people against the authors of unjust or pernicious measures, been uniformly enforced against the press, might not the United States have been languishing at this day, under the infirmities of a sickly confederation? Might they not possibly be miserable colonies, groaning under a foreign yoke?
To these observations, one fact will be added, which demonstrates that the common law cannot be admitted as the universal expositor of American terms, which may be the same with those contained in that law. The freedom of conscience, and of religion, are found in the same instruments which assert the freedom of the press. It will never be admitted, that the meaning of the former, in the common law of England, is to limit their meaning in the United States.
Whatever weight may be allowed to these considerations, the committee do not, however, by any means intend to rest the question on them. They contend that the article of amendment, instead of supposing in Congress a power that might be exercised over the press, provided its freedom was not abridged, was meant as a positive denial to Congress, of any power whatever on the subject.
To demonstrate that this was the true object of the article, it will be sufficient to recall the circumstances which led to it, and to refer to the explanation accompanying the article.
When the Constitution was under the discussions which preceded its ratification, it is well known, that great apprehensions were expressed by many, lost the omission of some positive exception from the powers delegated, of certain rights, and of the freedom of the press particularly, might expose them to the danger of being drawn by construction within some of the powers vested in Congress; more especially of the power to make all laws necessary and proper for carrying their other powers into execution. In reply to this objection, it was invariably urged to be a fundamental and characteristic principle of the Constitution, that all powers not given by it, were reserved; that no powers were given beyond those enumerated in the Constitution, and such as were fairly incident to them; that the power over the rights in question, and particularly over the press, was neither among the enumerated powers, nor incident to any of them; and consequently that an exercise of any such power, would be a manifest usurpation. It is painful to remark, how much the arguments now employed in behalf of the sedition-act, are at variance with the reasoning which then justified the Constitution, and invited its ratification.
From this posture of the subject, resulted the interesting question in so many of the conventions, whether the doubts and dangers ascribed to the Constitution, should be removed by any amendments previous to the ratification, or be postponed, in confidence that as far as they might be proper, they would be introduced in the form provided by the Constitution. The latter course was adopted; and in most of the states, the ratifications were followed by propositions and instructions for rendering the Constitution more explicit, and more safe to the rights not meant to be delegated by it. Among those rights, the freedom of the press, in most instances, is particularly and emphatically mentioned. The firm and very pointed manner, in which it is asserted in the proceedings of the convention of this state, will be hereafter seen.
In pursuance of the wishes thus expressed, the first Congress that assembled under the Constitution, proposed certain amendments which have since, by the necessary ratifications, been made a part of it; among which amendments, is the article containing, among other prohibitions on the Congress, an express declaration that they should make no law abridging the freedom of the press.
Without tracing farther the evidence on this subject, it would seem scarcely possible to doubt, that no power whatever over the press was supposed to be delegated by the Constitution, as it originally stood; and that the amendment was intended as a positive and absolute reservation of it.
But the evidence is still stronger. The proposition of amendment is made by Congress, is introduced in the following terms: “The conventions of a number of the states having at the time of their adopting the Constitution expressed a desire, in order to prevent misconstructions or abuse of its powers, that further declaratory and restrictive clauses should be added; and as extending the ground of public confidence in the government, will best ensure the beneficent ends of its institutions.”
Here is the most satisfactory and authentic proof, that the several amendments proposed, were to be considered as either declaratory or restrictive; and whether the one or the other, as corresponding with the desire expressed by a number of the states, and as extending the ground of public confidence in the government.
Under any other construction of the amendment relating to the press, than that it declared the press to be wholly exempt from the power of Congress, the amendment could neither be said to correspond with the desire expressed by a number of the states, nor be calculated to extend the ground of public confidence in the government.
Nay more; the construction employed to justify the “sedition-act,” would exhibit a phenomenon, without a parallel in the political world. It would exhibit a number of respectable states, as denying first that any power over the press was delegated by the Constitution; as proposing next, that an amendment to it, should explicitly declare that no such power was delegated; and finally, as concurring in an amendment actually recognising or delegating such a power.
Is then the federal government, it will be asked, destitute of every authority for restraining the licentiousness of the press, and for shielding itself against the libellous attacks which may be made on those who administer it?
The Constitution alone can answer this question. If no such power be expressly delegated, and it be not both necessary and proper to carry into execution an express power; above all, if it be expressly forbidden by a declaratory amendment to the Constitution, the answer must be, that the federal government is destitute of all such authority.
And might it not be asked in turn, whether it is not more probable, under all the circumstances which have been reviewed, that the authority should be withheld by the Constitution, than that it should be left to a vague and violent construction; whilst so much pains were bestowed in enumerating other powers, and so many less important powers are included in the enumeration?
Might it not be likewise asked, whether the anxious circumspection which dictated so many peculiar limitations on the general authority, would be unlikely to exempt the press altogether from that authority? The peculiar magnitude of some of the powers necessarily committed to the federal government; the peculiar duration required for the functions of some of its departments; the peculiar distance of the seat of its proceedings from the great body of its constituents; and the peculiar difficulty of circulating an adequate knowledge of them through any other channel; will not these considerations, some or other of which produced other exceptions from the powers of ordinary governments, all together, account for the policy of binding the hand of the federal government, from touching the channel which alone can give efficacy to its responsibility to its constituents; and of leaving those who administer it, to a remedy for their injured reputations, under the same laws, and in the same tribunals, which protect their lives, their liberties, and their properties?
But the question does not turn either on the wisdom of the Constitution, or on the policy which gave rise to its particular organization. It turns on the actual meaning of the instrument; by which it has appeared, that a power over the press is clearly excluded, from the number of powers delegated to the federal government.
3. And in the opinion of the committee, well may it be said, as the resolution concludes with saying, that the unconstitutional power exercised over the press by the “sedition-act,” ought “more than any other, to produce universal alarm; because it is levelled against that right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed the only effectual guardian of every other right.”
Without scrutinizing minutely into all the provisions of the “sedition-act,” it will be sufficient to cite so much of section 2, as follows: “And be it further enacted, that if any person shall write, print, utter, or publish, or shall cause or procure to be written, printed, uttered or published, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with an intent to defame the said government, or either house of the said Congress, or the President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either, or any of them, the hatred of the good people of the United States, &c. Then such person being thereof convicted before any court of the United States, having jurisdiction thereof, shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.”
On this part of the act, the following observations present themselves:
- 1. The Constitution supposes that the President, the Congress, and each of its houses may not discharge their trusts, either from defect of judgment or other causes. Hence, they are all made responsible to their constituents, at the returning periods of election; and the President, who is singly entrusted with very great powers, is, as a further guard, subjected to an intermediate impeachment.
- 2. Should it happen, as the Constitution supposes it may happen, that either of these branches of the government may not have duly discharged its trust, it is natural and proper that, according to the cause and degree of their faults, they should be brought into contempt or disrepute, and incur the hatred of the people.
- 3. Whether it has, in any case, happened that the proceedings of either, or all of those branches, evince such a violation of duty as to justify a contempt, a disrepute or hatred among the people, can only be determined by a free examination thereof, and a free communication among the people thereon.
- 4. Whenever it may have actually happened, that proceedings of this sort are chargeable on all or either of the branches of the government, it is the duty as well as right of intelligent and faithful citizens, to discuss and promulge them freely, as well to control them by the censorship of the public opinion, as to promote a remedy according to the rules of the Constitution. And it cannot be avoided, that those who are to apply the remedy must feel, in some degree, a contempt or hatred against the transgressing party.
- 5. As the act was passed on July 14, 1798, and is to be in force until March 3, 1801, it was of course, that during its continuance, two elections of the entire House of Representatives, an election of a part of the Senate, and an election of a President, were to take place.
- 6. That consequently, during all these elections, intended by the Constitution to preserve the purity, or to purge the faults of the administration, the great remedial rights of the people were to be exercised, and the responsibility of their public agents to be screened, under the penalties of this act.
May it not be asked of every intelligent friend to the liberties of his country, whether the power exercised in such an act as this, ought not to produce great and universal alarm? Whether a rigid execution of such an act, in time past, would not have repressed that information and communication among the people, which is indispensable to the just exercise of their electoral rights? And whether such an act, if made perpetual, and enforced with rigour, would not, in time to come, either destroy our free system of government, or prepare a convulsion that might prove equally fatal to it?
In answer to such questions, it has been pleaded that the writings and publications forbidden by the act, are those only which are false and malicious, and intended to defame; and merit is claimed for the privilege allowed to authors to justify, by proving the truth of their publications, and for the limitations to which the sentence of fine and imprisonment is subjected.
To those who concurred in the act, under the extraordinary belief that the option lay between the passing of such an act, and leaving in force the common law of libels, which punishes truth equally with falsehood, and submits the fine and imprisonment to the indefinite discretion of the court, the merit of good intentions ought surely not to be refused. A like merit may perhaps be due for the discontinuance of the corporal punishment, which the common law also leaves to the discretion of the court. This merit of intention, however, would have been greater, if the several mitigations had not been limited to so short a period; and the apparent inconsistency would have been avoided, between justifying the act at one time, by contrasting it with the rigors of the common law, otherwise in force, and at another time by appealing to the nature of the crisis, as requiring the temporary rigour exerted by the act.
But, whatever may have been the meritorious intentions of all or any who contributed to the sedition-act, a very few reflections will prove, that its baneful tendency is little diminished by the privilege of giving in evidence the truth of the matter contained in political writings.
In the first place, where simple and naked facts alone are in question, there is sufficient difficulty in some cases, and sufficient trouble and vexation in all, of meeting a prosecution from the government, with the full and formal proof necessary in a court of law.
But in the next place, it must be obvious to the plainest minds, that opinions, and inferences, and conjectural observations, are not only in many cases inseparable from the facts, but may often be more the objects of the prosecution than the facts themselves; or may even be altogether abstracted from particular facts; and that opinions and inferences, and conjectural observations, cannot be subjects of that kind of proof which appertains to facts, before a court of law.
Again: It is no less obvious, that the intent to defame or bring into contempt or disrepute, or hatred, which is made a condition of the offence created by the act, cannot prevent its pernicious influence on the freedom of the press. For, omitting the inquiry, how far the malice of the intent is an inference of the law from the mere publication, it is manifestly impossible to punish the intent to bring those who administer the government into disrepute or contempt, without striking at the right of freely discussing public characters and measures: because those who engage in such discussions, must expect and intend to excite these unfavourable sentiments, so far as they may be thought to be deserved. To prohibit, therefore, the intent to excite those unfavourable sentiments against those who administer the government, is equivalent to a prohibition of the actual excitement of them; and to prohibit the actual excitement of them, is equivalent to a prohibition of discussions having that tendency and effect; which, again, is equivalent to a protection of those who administer the government, if they should at any time deserve the contempt or hatred of the people, against being exposed to it, by free animadversions on their characters and conduct. Nor can there be a doubt, if those in public trust be shielded by penal laws from such strictures of the press, as may expose them to contempt or disrepute, or hatred, where they may deserve it, in exact proportion as they may deserve to be exposed, will be the certainty and criminality of the intent to expose them, and the vigilance of prosecuting and punishing it; nor a doubt, that a government thus intrenched in penal statutes, against the just and natural effects of a culpable administration, will easily evade the responsibility, which is essential to a faithful discharge of its duty.
Let it be recollected, lastly, that the right of electing the members of the government, constitutes more particularly the essence of a free and responsible government. The value and efficacy of this right, depends on the knowledge of the comparative merits and demerits of the candidates for public trust; and on the equal freedom, consequently, of examining and discussing these merits and demerits of the candidates respectively. It has been seen, that a number of important elections will take place whilst the act is in force, although it should not be continued beyond the term to which it is limited. Should there happen, then, as is extremely probable in relation to some or other of the branches of the government, to be competitions between those who are, and those who are not, members of the government, what will be the situations of the competitors? Not equal; because the characters of the former will be covered by the “sedition-act” from animadversions exposing them to disrepute among the people; whilst the latter may be exposed to the contempt and hatred of the people, without a violation of the act. What will be the situation of the people? Not free; because they will be compelled to make their election between competitors, whose pretensions they are not permitted, by the act, equally to examine, to discuss, and to ascertain. And from both these situations, will not those in power derive an undue advantage for continuing themselves in it; which by impairing the right of election, endangers the blessings of the government founded on it?
It is with justice, therefore, that the General Assembly have affirmed in the resolution, as well that the right of freely examining public characters and measures, and free communication thereon, is the only effectual guardian of every other right, as that this particular right is levelled at, by the power exercised in the “sedition-act.”
The resolution next in order is as follows:
That this state having by its convention, which ratified the federal Constitution, expressly declared, that among other essential rights, “the liberty of conscience and of the press cannot be cancelled, abridged, restrained or modified by any authority of the United States,” and from its extreme anxiety to guard these rights from every possible attack of sophistry and ambition, having, with other states, recommended an amendment for that purpose, which amendment was, in due time, annexed to the Constitution, it would mark a reproachful inconsistency, and criminal degeneracy, if an indifference were now shown to the most palpable violation of one of the rights thus declared and secured; and the establishment of a precedent, which may be fatal to the other.
To place this resolution in its just light, it will be necessary to recur to the act of ratification by Virginia, which stands in the ensuing form:
We, the delegates of the people of Virginia, duly elected in pursuance of a recommendation from the General Assembly, and now met in convention, having fully and freely investigated and discussed the proceedings of the federal convention, and being prepared as well as the most mature deliberation hath enabled us to decide thereon, do, in the name and in behalf of the people of Virginia, declare and make known, that the powers granted under the Constitution, being derived from the people of the United States, may be resumed by them, whensoever the same shall be perverted to their injury or oppression; and that every power not granted thereby, remains with them, and at their will. That, therefore, no right of any denomination can be cancelled, abridged, restrained, or modified, by the Congress, by the Senate, or House of Representatives, acting in any capacity, by the President, or any depart-ment or officer of the United States, except in those instances in which power is given by the Constitution for those purposes; and that, among other essential rights, the liberty of conscience and of the press, cannot be cancelled, abridged, restrained, or modified, by any authority of the United States.
Here is an express and solemn declaration by the convention of the state, that they ratified the Constitution in the sense, that no right of any denomination can be cancelled, abridged, restrained, or modified by the government of the United States or any part of it; except in those instances in which power is given by the Constitution; and in the sense particularly, “that among other essential rights, the liberty of conscience and freedom of the press cannot be cancelled, abridged, restrained, or modified, by any authority of the United States.”
Words could not well express, in a fuller or more forcible manner, the understanding of the convention, that the liberty of conscience and the freedom of the press, were equally and completely exempted from all authority whatever of the United States.
Under an anxiety to guard more effectually these rights against every possible danger, the convention, after ratifying the Constitution, proceeded to prefix to certain amendments proposed by them, a declaration of rights, in which are two articles providing, the one for the liberty of conscience, the other for the freedom of speech and of the press.
Similar recommendations having proceeded from a number of other states, and Congress, as has been seen, having in consequence thereof, and with a view to extend the ground of public confidence, proposed, among other declaratory and restrictive clauses, a clause expressly securing the liberty of conscience and of the press; and Virginia having concurred in the ratifications which made them a part of the Constitution, it will remain with a candid public to decide, whether it would not mark an inconsistency and degeneracy, if an indifference were now shown to a palpable violation of one of those rights, the freedom of the press; and to a precedent therein, which may be fatal to the other, the free exercise of religion.
That the precedent established by the violation of the former of these rights, may, as is affirmed by the resolution, be fatal to the latter, appears to be demonstrable, by a comparison of the grounds on which they respectively rest; and from the scope of reasoning, by which the power over the former has been vindicated.
First. Both of these rights, the liberty of conscience and of the press, rest equally on the original ground of not being delegated by the Constitution, and consequently withheld from the government. Any construction, therefore, that would attack this original security for the one, must have the like effect on the other.
Secondly. They are both equally secured by the supplement to the Constitution; being both included in the same amendment; made at the same time, and by the same authority. Any construction or argument, then, which would turn the amendment into a grant or acknowledgment of power with respect to the press, might be equally applied to the freedom of religion.
Thirdly. If it be admitted that the extent of the freedom of the press, secured by the amendment, is to be measured by the common law on this subject, the same authority may be resorted to, for the standard which is to fix the extent of the “free exercise of religion.” It cannot be necessary to say what this standard would be; whether the common law be taken solely as the unwritten, or as varied by the written law of England.
Fourthly. If the words and phrases in the amendment, are to be considered as chosen with a studied discrimination, which yields an argument for a power over the press, under the limitation that its freedom be not abridged, the same argument results from the same consideration, for a power over the exercise of religion, under the limitation that its freedom be not prohibited.
For, if Congress may regulate the freedom of the press, provided they do not abridge it, because it is said only “they shall not abridge it,” and is not said, “they shall make no law respecting it,” the analogy of reasoning is conclusive, that Congress may regulate and even abridge the free exercise of religion, provided they do not prohibit it, because it is said only “they shall not prohibit it,” and is not said, “they shall make no law respecting, or no law abridging it.”
The General Assembly were governed by the clearest reason, then, in considering the “sedition-act,” which legislates on the freedom of the press, as establishing a precedent that may be fatal to the liberty of conscience; and it will be the duty of all, in proportion as they value the security of the latter, to take the alarm at every encroachment on the former.
The two concluding resolutions only remain to be examined. They are in the words following:
That the good people of this commonwealth, having ever felt and continuing to feel the most sincere affection for their brethren of the other states; the truest anxiety for establishing and perpetuating the union of all; and the most scrupulous fidelity to that Constitution, which is the pledge of mutual friendship, and the instrument of mutual happiness; the General Assembly doth solemnly appeal to the like dispositions in the other states, in confidence that they will concur with this commonwealth in declaring, as it does hereby declare, that the acts aforesaid are unconstitutional; and, that the necessary and proper measures will be taken by each, for co-operating with this state, in maintaining unimpaired the authorities, rights, and liberties reserved to the states respectively, or to the people.
That the governor be desired to transmit a copy of the foregoing resolutions to the executive authority of each of the other states, with a request that the same may be communicated to the legislature thereof; and that a copy be furnished to each of the senators and representatives representing this state in the Congress of the United States.
The fairness and regularity of the course of proceeding here pursued, have not protected it against objections even from sources too respectable to be disregarded.
It has been said, that it belongs to the judiciary of the United States, and not the state legislatures, to declare the meaning of the Federal Constitution.
But a declaration that proceedings of the Federal Government are not warranted by the Constitution, is a novelty neither among the citizens, nor among the legislatures of the states; nor are the citizens or the legislature of Virginia, singular in the example of it.
Nor can the declarations of either, whether affirming or denying the constitutionality of measures of the Federal Government, or whether made before or after judicial decisions thereon, be deemed, in any point of view, an assumption of the office of the judge. The declarations, in such cases, are expressions of opinion, unaccompanied with any other effect than what they may produce on opinion, by exciting reflection. The expositions of the judiciary, on the other hand, are carried into immediate effect by force. The former may lead to a change in the legislative expression of the general will; possibly to a change in the opinion of the judiciary; the latter enforces the general will, whilst that will and that opinion continue unchanged.
And if there be no impropriety in declaring the unconstitutionality of proceedings in the Federal Government, where can be the impropriety of communicating the declaration to other states, and inviting their concurrence in a like declaration? What is allowable for one, must be allowable for all; and a free communication among the states, where the Constitution imposes no restraint, is as allowable among the state governments as among other public bodies or private citizens. This consideration derives a weight, that cannot be denied to it, from the relation of the state legislatures to the federal legislature, as the immediate constituents of one of its branches.
The legislatures of the states have a right also to originate amendments to the Constitution, by a concurrence of two-thirds of the whole number, in applications to Congress for the purpose. When new states are to be formed by a junction of two or more states, or parts of states, the legislatures of the states concerned are, as well as Congress, to concur in the measure. The states have a right also to enter into agreements or compacts, with the consent of Congress. In all such cases, a communication among them results from the object which is common to them.
It is lastly to be seen, whether the confidence expressed by the resolution, that the necessary and proper measures would be taken by the other states for co-operating with Virginia in maintaining the rights reserved to the states, or to the people, be in any degree liable to the objections which have been raised against it.
If it be liable to objection, it must be because either the object or the means are objectionable.
The object being to maintain what the Constitution has ordained, is in itself a laudable object.
The means are expressed in the terms “the necessary and proper measures.” A proper object was to be pursued, by means both necessary and proper.
To find an objection, then, it must be shown that some meaning was annexed to these general terms, which was not proper; and, for this purpose, either that the means used by the General Assembly were an example of improper means, or that there were no proper means to which the terms could refer.
In the example given by the state, of declaring the alien and sedition-acts to be unconstitutional, and of communicating the declaration to the other states, no trace of improper means has appeared. And if the other states had concurred in making a like declaration, supported, too, by the numerous applications flowing immediately from the people, it can scarcely be doubted, that these simple means would have been as sufficient, as they are unexceptionable.
It is no less certain that other means might have been employed, which are strictly within the limits of the Constitution. The legislatures of the states might have made a direct representation to Congress, with a view to obtain a rescinding of the two offensive acts; or, they might have represented to their respective senators in Congress their wish, that two-thirds thereof would propose an explanatory amendment to the Constitution; or two-thirds of themselves, if such had been their option, might, by an application to Congress, have obtained a convention for the same object.
These several means, though not equally eligible in themselves, nor probably, to the states, were all constitutionally open for consideration. And if the General Assembly, after declaring the two acts to be unconstitutional, the first and most obvious proceeding on the subject, did not undertake to point out to the other states a choice among the farther measures that might become necessary and proper, the reserve will not be misconstrued by liberal minds into any culpable imputation.
These observations appear to form a satisfactory reply to every objection which is not founded on a misconception of the terms employed in the resolutions. There is one other, however, which may be of too much importance not to be added. It cannot be forgotten, that among the arguments addressed to those who apprehended danger to liberty from the establishment of the General Government over so great a country, the appeal was emphatically made to the intermediate existence of the state governments, between the people and that government, to the vigilance with which they would descry the first symptoms of usurpation; and to the promptitude with which they would sound the alarm to the public. This argument was probably not without its effect; and if it was a proper one then, to recommend the establishment of the Constitution, it must be a proper one now, to assist in its interpretation.
The only part of the two concluding resolutions that remains to be noticed, is the repetition in the first, of that warm affection to the union and its members, and of that scrupulous fidelity to the Constitution, which have been invariably felt by the people of this state. As the proceedings were introduced with these sentiments, they could not be more properly closed than in the same manner. Should there be any so far misled as to call in question the sincerity of these professions, whatever regret may be excited by the error, the General Assembly cannot descend into a discussion of it. Those, who have listened to the suggestion, can only be left to their own recollection of the part which this state has borne in the establishment of our national independence, in the establishment of our national Constitution, and in maintaining under it the authority and laws of the Union, without a single exception of internal resistance or commotion. By recurring to these facts, they will be able to convince themselves, that the representatives of the people of Virginia, must be above the necessity of opposing any other shield to attacks on their national patriotism, than their own consciousness, and the justice of an enlightened public; who will perceive in the resolutions themselves, the strongest evidence of attachment both to the Constitution and to the Union, since it is only by maintaining the different governments and departments within their respective limits, that the blessings of either can be perpetuated.
The extensive view of the subject thus taken by the committee, has led them to report to the House, as the result of the whole, the following resolution:
Resolved, That the General Assembly, having carefully and respectfully attended to the proceedings of a number of the states, in answer to its resolutions of December 21, 1798, and having accurately and fully re-examined and reconsidered the latter, finds it to be its indispensable duty to adhere to the same, as founded in truth, as consonant with the Constitution, and as conducive to its preservation; and more especially to be its duty to renew, as it does hereby renew, its protest against “the alien and sedition-acts,” as palpable and alarming infractions of the Constitution.
The Duty of Americans, at the Present Crisis
Timothy Dwight (1752–1817) was a strict Calvinist minister, an author of patriotic songs and poems, president of Yale College, and secretary of the Hartford Convention that considered New England’s grievances arising from the War of 1812 (see the next selection). The sermon reproduced here was preached on the Fourth of July, 1798, in the midst of the crisis rooted in American disagreements with the French revolutionary government.
The Duty of Americans, at the Present Crisis
Behold I come as a thief: Blessed is he that watcheth, and keepeth his garments, lest he walk naked, and they see his shame.
Revelation XVI. xv.
This passage is inserted as a parenthesis in the account of the sixth vial. To feel its whole force it will be necessary to recur to that account, and to examine it with some attention. It is given in these words.
V. 12. “And the sixth angel poured out his vial upon the great river Euphrates; and the water thereof was dried up, that the way of the king of the east might be prepared.”
13. “And I saw three unclean spirits like frogs come out of the mouth of the dragon, and out of the mouth of the beast, and out of the mouth of the false prophet.[”]
14. “For they are the spirits of devils, working miracles, which go forth unto the kings of the earth, and of the whole world, to gather them to the battle of that great day of God Almighty.”
15. “Behold I come as a thief: Blessed is he that watcheth, and keepeth his garments, lest he walk naked, and they see his shame.”
16. “And he gathered them together into a place called in the Hebrew tongue Armageddon.”
To this account is subjoined that of the seventh vial; at the effusion of which is accomplished a wonderful and most affecting convulsion of this guilty world, and the final ruin of the Antichristian empire. The circumstances of this amazing event are exhibited at large in the remainder of this, and in the three succeeding chapters.
Instead of employing the time, allowed by the present occasion, in stating the several opinions of commentators concerning this remarkable prophecy, opinions which you can examine at your leisure, I shall, as briefly as may be, state to you that, which appears to me to be its true meaning. This is necessary to be done, to prepare you for the use of it, which is now intended to be made.
In the 12th verse, under a natural allusion to the manner in which the ancient Babylon was destroyed, a description is given us of the measures, used by the Most High to prepare the way for the destruction of the spiritual Babylon. The river Euphrates surrounded the walls, and ran through the middle, of the ancient Babylon, and thus became the means of its wealth, strength and safety. When Cyrus and Cyaxares, the kings of Persia and Media, or, in the Jewish phraseology, of the east, took this celebrated city, they dried up, or emptied, the waters of the Euphrates, out of its proper channel, by turning them into a lake, or more probably a sunken region of the country, above the city. They then entered by the channel which passed through the city, made themselves masters of it, and overturned the empire. The emptying, or drying up, of the waters of the real Euphrates thus prepared the way of the real kings of the east for the destruction of the city and empire of the real Babylon. The drying up of the waters of the figurative Euphrates in the like manner prepares the way of the figurative kings of the east for the destruction of the city and empire of the figurative Babylon. The terms waters, Euphrates, kings, east, Babylon, are all figurative or symbolical; and are not to be understood as denoting real kings, or a real east, any more than a real Euphrates, or a real Babylon. The whole meaning of the prophet is, I apprehend, that God will, under this vial, so diminish the wealth, strength, and safety, of the spiritual or figurative Babylon, as effectually to prepare the way for its destroyers.
In the remaining verses an event is predicted, of a totally different kind; which is also to take place in the same period. Three unclean spirits, like frogs, are exhibited as proceeding out of the mouth of the dragon or Devil, of the beast or Romish government, and of the false prophet, or, as I apprehend, of the regular clergy of that hierarchy. These spirits are represented as working miracles, as going forth to the kings, of the whole world, to gather them; and as actually gathering them together to the battle of that great day of God Almighty, described in the remainder of this chapter, and in the three succeeding ones. Of this vast enterprise the miserable end is strongly marked, in the name of the place, into which they are said to be gathered—Armageddon—the mountain of destruction and mourning.
The writer of this book will himself explain to us what he intended by the word spirits in this passage. In his 1st Epistle, ch. iv. v. 1. he says, “Beloved, believe not every spirit; but try the spirits, whether they be of God; because many false prophets are gone out into the world.”
i.e. Believe not every teacher, or doctrine, professing to come from God; but examine all carefully, that ye may know whether they come from God, or not; for many false prophets, or teachers passing themselves upon the church for teachers of truth, but in reality teachers of false doctrines, are gone out into the world.
In the same sense, if I am not deceived, is the word used in the passage under consideration. One great characteristic and calamity of this period is, therefore, that unclean teachers, or teachers of unclean doctrines, will spread through the world, to unite mankind against God. They are said to be three; i.e. several; a definite number being used here, as in many other passages of this book, for an indefinite one; to come out of the mouths of the three evil agents abovementioned; i.e. to originate in those countries, where they have principally co-operated against the kingdom of God; to be unclean; to resemble frogs; i.e. to be lothesome, clamorous, impudent, and pertinacious; to be the spirits of demons, i.e. to be impious, malicious, proud, deceitful, and cruel; to work miracles, or wonders; and to gather great multitudes of men to battle, i.e. to embark them in an open, professed enterprise, against God Almighty.
Having thus summarily explained my views of this prophecy, I shall now for the purpose of presenting it in a more distinct and comprehensive view, draw together the several parts of it in a paraphrase.
In the sixth great division of the period of providence, denoted by the vials filled with divine judgments and emptied on the world, the wealth, strength and safety of the Antichristian empire will be greatly lessened, and thus effectual preparation will be made for its final overthrow.
In the meantime several teachers of false and immoral doctrines will arise in those countries, where the powers of the Antichristian empire have especially distinguished themselves, by corrupting the truth, and persecuting the followers, of Christ; the character of which teachers and their doctrines will be impure, lothesome, impudent, pertinacious, proud, deceitful, impious, malicious, and cruel.
These teachers will, by their doctrines and labours, openly, professedly, and in an unusual manner, contend against God, and against his kingdom in this world, and will strive to unite mankind in this opposition.
Nor will they fail of astonishing success; for they will actually unite a large part of the human race, particularly in Christendom, in this impious undertaking.
But they will only unite them to their destruction; a destruction most awfully accomplished at the effusion of the seventh vial.
From this explanation it is manifest, that the prediction consists of two great and distinct parts; the preparation for the overthrow of the Antichristian empire; and the embarkation of men in a professed and unusual opposition to God, and to his kingdom, accomplished by means of false doctrines, and impious teachers.
By the ablest commentators the fifth vial is considered as having been poured out at the time of the Reformation. The first is supposed, and with almost absolute certainty, to have begun to operate not long after the year 800. If we calculate from that period to the year 1517, the year in which the Reformation began in Germany, the four first vials will be found to have occupied about four times 180 years. 180 years may therefore be estimated as the greatest, and 170 years as the least, duration of a single vial. From the year 1517 to the year 1798 there are 281 years. If the fifth vial be supposed to have continued 180 years, its termination was in the year 1697; if 170, in 1687. Of course the sixth vial may be viewed as having been in operation more than 100 years.
You will now naturally ask, What events in the Providence of God, found in this period, verify the prediction?
To this question I answer, generally, that the whole complexion of things appears to me to have, in a manner surprisingly exact, corresponded with the prediction. The following particulars will evince with what propriety this answer is returned.
Within this period the Jesuits, who constituted the strongest branch, and the most formidable internal support, of the Romish hierarchy, have been suppressed.
Within this period various other orders of the regular Romish clergy have in some countries been suppressed, and in others greatly reduced. Their permanent possessions have been confiscated, and their wealth and power greatly lessened.
Within this period the Antichristian secular powers have been in most instances exceedingly weakened. Poland as a body politic is nearly annihilated. Austria has deeply suffered. Venice and the popish part of Switzerland as bodies politic have vanished. The Sardinian monarchy is on the eve of dissolution. Spain, Naples, Tuscany, and Genoa, are sorely wounded; and Portugal totters to its fall. By the treaty, now on the tapis in Germany, the Romish archbishoprics and bishoprics, in that empire, are proposed to be secularized, and as distinct governments to be destroyed. As the strength of these powers was the foundation, on which the hierarchy rested; so their destruction, or diminution, is a final preparation for its ruin.
In France, Belgium, the Italian, and Cis-rhenane republics, a new form of government has been instituted, the effect of which, whether it shall prove permanent, or not, must be greatly and finally to diminish the strength of the hierarchy.
In France, and in Belgium, the whole power and influence of the clergy of all descriptions have, in a sense, been destroyed; and their immense wealth has been diverted into new channels. In France, also, an open, violent, and inveterate war has been made upon the hierarchy, and carried on with unexampled bitterness and cruelty.
Within this period, also, the revenues of the pope have been greatly curtailed; the territory of Avignon has been taken out of his hands; and his general weight and authority have exceedingly declined.
Within the present year his person has been seized, his secular government overturned, a republic formed out of his dominions, and an apparent and at least temporary end put to his dominion.
To all these mighty preparations for the ruin of the Antichristian empire may be added, as of the highest efficacy, that great change of character, of views, feelings, and habits, throughout many Antichristian countries, which assures us completely, that its former strength can never return.
Thus has the first part of this remarkable prophecy been accomplished. Not less remarkable has been the fulfilment of the second.
About the year 1728, Voltaire, so celebrated for his wit and brilliancy, and not less distinguished for his hatred of christianity and his abandonment of principle, formed a systematical design to destroy christianity, and to introduce in its stead a general diffusion of irreligion and atheism. For this purpose he associated with himself Frederic the II, king of Prussia, and Mess. D’Alembert and Diderot, the principal compilers of the Encyclopedie; all men of talents, atheists, and in the like manner abandoned. The principal parts of this system were, 1st. The compilation of the Encyclopedie; in which with great art and insidiousness the doctrines of natural as well as Christian theology were rendered absurd and ridiculous; and the mind of the reader was insensibly steeled against conviction and duty. 2. The overthrow of the religious orders in Catholic countries; a step essentially necessary to the destruction of the religion professed in those countries. 3. The establishment of a sect of philosophists to serve, it is presumed, as a conclave, a rallying point, for all their followers. 4. The appropriation to themselves, and their disciples, of the places and honours of members of the French Academy, the most respectable able literary society in France, and always considered as containing none but men of prime learning and talents. In this way they designed to hold out themselves, and their friends, as the only persons of great literary and intellectual distinction in that country, and to dictate all literary opinions to the nation. 5. The fabrication of books of all kinds against christianity, especially such as excite doubt, and generate contempt and derision. Of these they issued, by themselves and their friends, who early became numerous, an immense number; so printed, as to be purchased for little or nothing, and so written, as to catch the feelings, and steal upon the approbation, of every class of men. 6. The formation of a secret academy, of which Voltaire was the standing president, and in which books were formed, altered, forged, imputed as posthumous to deceased writers of reputation, and sent abroad with the weight of their names. These were printed and circulated, at the lowest price, through all classes of men, in an uninterrupted succession, and through every part of the kingdom.
Nor were the labours of this academy confined to religion. They attacked also morality and government, unhinged gradually the minds of men, and destroyed their reverence for every thing heretofore esteemed sacred.
In the mean time, the Masonic societies, which had been originally instituted for convivial and friendly purposes only, were, especially in France and Germany, made the professed scenes of debate concerning religion, morality, and government, by these philosophists , who had in great numbers become Masons. For such debate the legalized existence of Masonry, its profound secresy, its solemn and mystic rites and symbols, its mutual correspondence, and its extension through most civilized countries, furnished the greatest advantages. All here was free, safe, and calculated to encourage the boldest excursions of restless opinion and impatient ardour, and to make and fix the deepest impressions. Here, and in no other place, under such arbitrary governments, could every innovator in these important subjects utter every sentiment, however daring, and attack every doctrine and institution, however guarded by law or sanctity. In the secure and unrestrained debates of the lodge, every novel, licentious, and alarming opinion was resolutely advanced. Minds, already tinged with philosophism, were here speedily blackened with a deep and deadly die; and those, which came fresh and innocent to the scene of contamination, became early and irremediably corrupted. A stubborn incapacity of conviction, and a flinty insensibility to every moral and natural tie, grew of course out of this combination of causes; and men were surely prepared, before themselves were aware, for every plot and perpetration. In these hot beds were sown the seeds of that astonishing Revolution, and all its dreadful appendages, which now spreads dismay and horror throughout half the globe.
While these measures were advancing the great design with a regular and rapid progress, Doctor Adam Weishaupt, professor of the canon law in the University of Ingolstadt, a city of Bavaria (in Germany) formed, about the year 1777, the order of Illuminati. This order is professedly a higher order of Masons, originated by himself, and grafted on ancient Masonic institutions. The secresy, solemnity, mysticism, and correspondence of Masonry, were in this new order preserved and enhanced; while the ardour of innovation, the impatience of civil and moral restraints, and the aims against government, morals, and religion, were elevated, expanded, and rendered more systematical, malignant, and daring.
In the societies of Illuminati doctrines were taught, which strike at the root of all human happiness and virtue; and every such doctrine was either expressly or implicitly involved in their system.
The being of God was denied and ridiculed.
Government was asserted to be a curse, and authority a mere usurpation.
Civil society was declared to be the only apostasy of man.
The possession of property was pronounced to be robbery.
Chastity and natural affection were declared to be nothing more than groundless prejudices.
Adultery, assassination, poisoning, and other crimes of the like infernal nature, were taught as lawful, and even as virtuous actions.
To crown such a system of falshood and horror all means were declared to be lawful, provided the end was good.
In this last doctrine men are not only loosed from every bond, and from every duty; but from every inducement to perform any thing which is good, and, abstain from any thing which is evil; and are set upon each other, like a company of hellhounds to worry, rend, and destroy. Of the goodness of the end every man is to judge for himself; and most men, and all men who resemble the Illuminati, will pronounce every end to be good, which will gratify their inclinations. The great and good ends proposed by the Illuminati, as the ultimate objects of their union, are the overthrow of religion, government, and human society civil and domestic. These they pronounce to be so good, that murder, butchery, and war, however extended and dreadful, are declared by them to be completely justifiable, if necessary for these great purposes. With such an example in view, it will be in vain to hunt for ends, which can be evil.
Correspondent with this summary was the whole system. No villainy, no impiety, no cruelty, can be named, which was not vindicated; and no virtue, which was not covered with contempt.
The names by which this society was enlarged, and its doctrines spread, were of every promising kind. With unremitted ardour and diligence the members insinuated themselves into every place of power and trust, and into every literary, political and friendly society; engrossed as much as possible the education of youth, especially of distinction; became licensers of the press, and directors of every literary journal; waylaid every foolish prince, every unprincipled civil officer, and every abandoned clergyman; entered boldly into the desk, and with unhallowed hands, and satanic lips, polluted the pages of God; inlisted in their service almost all the booksellers, and of course the printers, of Germany; inundated the country with books, replete with infidelity, irreligion, immorality, and obscenity; prohibited the printing, and prevented the sale, of books of the contrary character; decried and ridiculed them when published in spite of their efforts; panegyrized and trumpeted those of themselves and their coadjutors; and in a word made more numerous, more diversified, and more enormous exertions, than an active imagination would have preconceived.
To these exertions their success has been proportioned. Multitudes of the Germans, notwithstanding the gravity, steadiness, and sobriety of their national character, have become either partial or entire converts to these wretched doctrines; numerous societies have been established among them; the public faith and morals have been unhinged; and the political and religious affairs of that empire have assumed an aspect, which forebodes its total ruin. In France, also, Illuminatism has been eagerly and extensively adopted; and those men, who have had, successively, the chief direction of the public affairs of that country, have been members of this society. Societies have also been erected in Switzerland and Italy, and have contributed probably to the success of the French, and to the overthrow of religion and government, in those countries. Mentz was delivered up to Custine by the Illuminati; and that general appears to have been guillotined, because he declined to encourage the same treachery with respect to Manheim.
Nor have England and Scotland escaped the contagion. Several societies have been erected in both of those countries. Nay in the private papers, seized in the custody of the leading members in Germany, several such societies are recorded as having been erected in America, before the year 1786.
It is a remarkable fact, that a large proportion of the sentiments, here stated, have been publicly avowed and applauded in the French legislature. The being and providence of God have been repeatedly denied and ridiculed. Christ has been mocked with the grossest insult. Death, by a solemn legislative decree has been declared to be an eternal sleep. Marriage has been degraded to a farce, and the community, by the law of divorce, invited to universal prostitution. In the school of public instruction atheism is professedly taught; and at an audience before the legislature, Nov. 30, 1793, the head scholar declared, that he and his schoolfellows detested a God; a declaration received by the members with unbounded applause, and rewarded with the fraternal kiss of the president, and with the honors of the sitting.
I presume I have sufficiently proved the fulfilment of the second part of this remarkable prophesy; and shewn, that doctrines and teachers, answering to the description, have arisen in the very countries specified, and that they are rapidly spreading through the world, to engage mankind in an open and professed war against God. I shall only add, that the titles of these philosophistical books have, in various instances, been too obscene to admit of a translation by a virtuous man, and in a decent state of society. So fully are these teachers entitled to the epithet unclean.
Assuming now as just, for the purposes of this discourse, the explanation, which has been given, I shall proceed to consider the import of the text.
The text is an affectionate address of the Redeemer to his children, teaching them that conduct, which he wills them especially to pursue in this alarming season. It is the great practical remark, drawn by infinite wisdom and goodness from a most solemn sermon, and cannot fail therefore to merit our highest attention. Had he not, while recounting the extensive and dreadful convulsion, described in the context, made a declaration of this nature, there would have been little room for the exercise of any emotions, beside those of terror and despair. The gloom would have been universal and entire; a blank midnight without a star to cheer the solitary darkness. But here a hope, a promise, is furnished to such as obey the injunction, by which it is followed; a luminary like that, which shone to the wise men of the east, is lighted up to guide our steps to the Author of peace and salvation.
Blessed, even in this calamitous season, saith the Saviour of men, is he that watcheth, and keepeth his garments, lest he walk naked and they see his shame.
Sin is the nakedness and shame of the scriptures, and righteousness the garment which covers it. To watch and keep the garments is, of course, so to observe the heart and the life, so carefully to resist temptation and abstain from sin, and so faithfully to cultivate holiness and perform duty, that the heart and the life shall be adorned with the white robes of evangelical virtue, the unspotted attire of spiritual beauty.
The cautionary precept given to us by our Lord is, therefore,
That we should be eminently watchful to perform our duty faithfully, in the trying period, in which our lot is cast.
To those, who obey, a certain blessing is secured by the promise of the Redeemer.
[I.] The great and general object, aimed at by this command, and by every other, is private, personal obedience and reformation of life; personal piety, righteousness, and temperance.
To every man is by his Creator especially committed the care of himself; of his time, his talents, and his soul. He knows, or may know, better than any other man, his wants, his sins, and his dangers, and of course the means of relief, reformation, and escape. No one, so well as he, can watch the approach of temptation, so feelingly pray for divine assistance, or so profitably resolve on future obedience. In truth no resolutions, no prayers, no watchfulness of others, will profit him at all, unless seconded by his own. No other person can make any useful impressions on our hearts, or our lives, unless by rousing in us the necessary exertions. All extraneous labours terminate in this single point: it is the end of every doctrine, exhortation, and reproof, of every moral and religious institution.
The manner, in which such obedience is to be performed, and such reformation accomplished, is described to you weekly in the desk, and daily in the scriptures. A detail of it, therefore, will not be necessary, nor expected, on the present occasion. You already know what is to be done, and the manner in which it is to be done. You need not be told, that you are to use all efforts of your own, and to look humbly and continually to God to render those efforts successful; that you are to resist carefully and faithfully every approaching temptation, and every rising sin; that you are to resolve on newness of life, and to seize every occasion, as it presents itself, to honour God, and to bless your fellow men; that you are strenuously to contend against evil habits, and watchfully to cherish good ones; and that you are constantly to aim at uniformity and eminency in a holy life, and to “adorn the doctrine of God our Saviour in all things.”
But it may be necessary to remind you, that personal obedience and reformation is the foundation, and the sum, of all national worth and prosperity. If each man conducts himself aright, the community cannot be conducted wrong. If the private life be unblamable, the public state must be commendable and happy.
Individuals are often apt to consider their own private conduct as of small importance to the public welfare. This opinion is wholly erroneous and highly mischievous. No man can adopt it, who believes, and remembers, the declarations of God. If “one sinner destroyeth much good,” if “the effectual fervent prayer of a righteous man availeth much,” if ten righteous persons, found in the polluted cities of the vale of Siddim, would have saved them from destruction, the personal conduct of no individual can be insignificant to the safety and happiness of a nation. On the contrary, the advantages to the public of private virtue, faithful prayer and edifying example, cannot be calculated. No one can conjecture how many will be made better, safer, and happier, by the virtue of one.
Wherever wealth, politeness, talents, and office, lend their aid to the inherent efficacy of virtue, its influence is proportionally greater. In this case the example is seen by greater numbers, is regarded with more respectful attention, and felt with greater force. The piety of Hezekiah reformed and saved a nation. Men far inferior in station to kings, and possessed of far humbler means of doing good, may still easily circulate through multitudes both virtue and happiness. The beggar on the dunghill may become a public blessing. Every parent, if a faithful one, is a public blessing of course. How delightful a path of patriotism is this?
It is also to be remembered, that this is the way, in which the chief good, ever placed in the power of most persons, is to be done. If this opportunity of serving God, and befriending mankind, be lost, no other will by the great body of men ever be found. Few persons can be concerned in settling systems of faith, moulding forms of government, regulating nations, or establishing empires. But almost all can train up a family for God, instil piety, justice, kindness and truth, distribute peace and comfort around a neighbourhood, receive the poor and the outcast into their houses, tend the bed of sickness, pour balm into the wounds of pain, and awaken a smile in the aspect of sorrow. In the secret and lowly vale of life, virtue in its most lovely attire delights to dwell. There God, with peculiar complacency, most frequently finds the inestimable ornament of a meek and quiet spirit; and there the morning and the evening incense ascends with peculiar fragrance to heaven. When angels became the visitors, and the guests, of Abraham, he was a simple husbandman.
Besides, this is the great mean of personal safety and happiness. No good man was ever forgotten, or neglected, of God. To him duty is always safety. Around the tabernacle of every one, that feareth God, the angel of protection will encamp, and save him from the impending evil.
II. Among the particular duties required by this precept, and at the present time, none holds a higher place than the observation of the Sabbath.
The Sabbath and its ordinances have ever been the great means of all moral good to mankind. The faithful observation of the sabbath is, therefore, one of the chief duties and interests of men; but the present time furnishes reasons, peculiar, at least in degree, for exemplary regard to this divine institution. The enemies of God have by private argument, ridicule, and influence, and by public decrees, pointed their especial malignity against the Sabbath; and have expected, and not without reason, that, if they could annihilate it, they should overthrow christianity. From them we cannot but learn its importance. Enemies usually discern, with more sagacity, the most promising point of attack, than those who are to be attacked. In this point are they to be peculiarly opposed. Here, peculiarly, are their designs to be baffled. If they fail here, they will finally fail. Christianity cannot fall, but by the neglect of the Sabbath.
I have been credibly informed, that, some years before the Revolution, an eminent philosopher of this country, now deceased, declared to David Hume, that Christianity would be exterminated from the American colonies within a century from that time. The opinion has doubtless been often declared and extensively imbibed; and has probably furnished our enemies their chief hopes of success. Where religion prevails, their system cannot succeed. Where religion prevails, Illuminatism cannot make disciples, a French directory cannot govern, a nation cannot be made slaves, nor villains, nor atheists, nor beasts. To destroy us, therefore, in this dreadful sense, our enemies must first destroy our Sabbath, and seduce us from the house of God.
Religion and Liberty are the two great objects of defensive war. Conjoined, they unite all the feelings, and call forth all the energies, of man. In defense of them, nations contend with the spirit of the Maccabees; “one will chase a thousand, and two put ten thousand to flight.” The Dutch, in defense of them, few and feeble as they were in their infancy, assumed a gigantic courage, and grew like the fabled sons of Alous to an instantaneous and gigantic strength, broke the arms of the Spanish empire, swept its fleets from the ocean, pulled down its pride, plundered its treasures, captivated its dependencies, and forced its haughty monarch to a peace on their own terms. Religion and liberty are the meat and the drink of the body politic. Withdraw one of them, and it languishes, consumes, and dies. If indifference to either at any time becomes the prevailing character of a people, one half of their motives to vigorous defense is lost, and the hopes of their enemies are proportionally increased. Here, eminently, they are inseparable. Without religion we may possibly retain the freedom of savages, bears, and wolves; but not the freedom of New-England. If our religion were gone, our state of society would perish with it; and nothing would be left, which would be worth defending. Our children of course, if not ourselves, would be prepared, as the ox for the slaughter, to become the victims of conquest, tyranny, and atheism.
The Sabbath, with its ordinances, constitutes the bond of union to christians; the badge by which they know each other; their rallying point; the standard of their host. Beside public worship they have no means of effectual discrimination. To preserve this is to us a prime interest and duty. In no way can we so preserve, or so announce to others, our character as christians; or to effectually prevent our nakedness and shame from being seen by our enemies. Now, more than ever, we are “not to be ashamed of the gospel of Christ.” Now, more than ever, are we to stand forth to the eye of our enemies, and of the world, as open, determined christians; as the followers of Christ; as the friends of God. Every man, therefore, who loves his country, or his religion, ought to feel, that he serves, or injures, both, as he celebrates, or neglects, the Sabbath. By the devout observation of this holy day he will reform himself, increase his piety, heighten his love to his country, and confirm his determination to defend all that merits his regard. He will become a better man, and a better citizen.
The house of God is also the house of social prayer. Here nations meet with God to ask, and to receive, national blessings. On the Sabbath, and in the sanctuary, the children of the Redeemer will, to the end of the world, assemble for this glorious end. Here he is ever present to give more than they can ask. If we faithfully unite, here, in seeking his protection, “no weapon formed against us will prosper.”
3. Another duty, to which we are also eminently called, is an entire separation from our enemies. Among the moral duties of man some hold a higher rank than political ones, and among our own political duties none is more plain, or more absolute, than that which I have now mentioned.
In the eighteenth chapter of this prophecy, in which the dreadful effects of the seventh vial are particularly described, this duty is expressly enjoined on christians by a voice from heaven. “And I heard another voice from heaven, saying, Come out of her, my people, that ye be not partakers of her sins, and that ye receive not of her plagues.” Under the evils and dangers of the sixth vial, the command in the text was given; under those of the seventh, the command which we are now considering. The world is already far advanced in the period of the sixth. In the text we are informed, that the Redeemer will hasten the progress of his vengeance on the enemies of his church, during the effusion of the two last vials. If, therefore, the judgments of the seventh are not already begun, a fact of which I am doubtful, they certainly cannot be distant. The present time is, of course, the very period for which this command was given.
The two great reasons for the command are subjoined to it by the Saviour—“that ye be not partakers of her sins; and that ye receive not of her plagues”; and each is a reason of incomprehensible magnitude.
The sins of these enemies of Christ, and Christians, are of numbers and degrees, which mock account and description. All that the malice and atheism of the dragon, the cruelty and rapacity of the beast, and the fraud and deceit of the false prophet, can generate, or accomplish, swell the list. No personal, or national, interest of man has been uninvaded; no impious sentiment, or action, against God has been spared; no malignant hostility against Christ, and his religion, has been unattempted. Justice, truth, kindness, piety, and moral obligation universally, have been not merely trodden under foot; this might have resulted from vehemence and passion; but ridiculed, spurned, and insulted, as the childish bugbears of drivelling idiocy. Chastity and decency have been alike turned out of doors; and shame and pollution called out of their dens to the hall of distinction, and the chair of state. Nor has any art, violence, or means, been unemployed to accomplish these evils.
For what end shall we be connected with men, of whom this is the character and conduct? Is it that we may assume the same character, and pursue the same conduct? Is it, that our churches may become temples of reason, our Sabbath a decade, and our psalms of praise Marseillois hymns? Is it, that we may change our holy worship into a dance of Jacobin phrenzy, and that we may behold a strumpet personating a goddess on the altars of Jehovah? Is it that we may see the Bible cast into a bonfire, the vessels of the sacramental supper borne by an ass in public procession, and our children, either wheedled or terrified, uniting in the mob, chanting mockeries against God, and hailing in the sounds of Ca ira the ruin of their religion, and the loss of their souls? Is it, that we may see our wives and daughters the victims of legal prostitution; soberly dishonoured; speciously polluted; the outcasts of delicacy and virtue, and the lothing of God and man? Is it, that we may see, in our public papers, a solemn comparison drawn by an American Mother club between the Lord Jesus Christ and a new Marat; and the fiend of malice and fraud exalted above the glorious Redeemer?
Shall we, my brethren, become partakers of these sins? Shall we introduce them into our government, our schools, our families? Shall our sons become the disciples of Voltaire, and the dragoons of Marat, or our daughters the concubines of the Illuminati?
Some of my audience may perhaps say, “We do not believe such crimes to have existed.” The people of Jerusalem did not believe, that they were in danger, until the Chaldeans surrounded their walls. The people of Laish were secure, when the children of Dan lay in ambush around their city. There are in every place, and in every age, persons “who are settled upon their lees,” who take pride in disbelief, and “who say in their heart, the Lord will not do good, neither will he do evil.” Some persons disbelieve through ignorance; some choose not to be informed; and some determine not to be convinced. The two last classes cannot be persuaded. The first may, perhaps, be at least ashamed, when they are told, that the evidence of all this, and much more, is complete, that it has been produced to the public, and may with a little pains-taking be known by themselves.
There are others, who, admitting the fact, deny the danger. “If others,” say they, “are ever so abandoned, we need not adopt either their principles, or their practices.” Common sense has however declared, two thousand years ago, and God has sanctioned the declaration, that “Evil communications corrupt good manners.” Of this truth all human experience is one continued and melancholy proof. I need only add, that these persons are prepared to become the first victims of the corruption by this very selfconfidence and security.
Should we, however, in a forbidden connection with these enemies of God, escape, against all hope, from moral ruin, we shall still receive our share of their plagues. This is the certain dictate of the prophetical injunction; and our own experience, and that of nations most intimately connected with them, has already proved its truth.
Look for conviction to Belgium; sunk into the dust of insignificance and meanness, plundered, insulted, forgotten, never to rise more. See Batavia wallowing in the same dust; the butt of fraud, rapacity, and derision, struggling in the last stages of life, and searching anxiously to find a quiet grave. See Venice sold in the shambles, and made the small change of a political bargain. Turn your eyes to Switzerland, and behold its happiness, and its hopes, cut off at a single stroke: happiness, erected with the labour and the wisdom of three centuries; hopes, that not long since hailed the blessings of centuries yet to come. What have they spread, but crimes and miseries; Where have they trodden, but to waste, to pollute, and to destroy?
All connection with them has been pestilential. Among ourselves it has generated nothing but infidelity, irreligion, faction, rebellion, the ruin of peace, and the loss of property. In Spain, in the Sardinian monarchy, in Genoa, it has sunk the national character, blasted national independence, rooted out confidence, and forerun destruction.
But France itself has been the chief seat of the evils, wrought by these men. The unhappy and ever to be pitied inhabitants of that country, a great part of whom are doubtless of a character similar to that of the peaceable citizens of other countries, and have probably no voluntary concern in accomplishing these evils, have themselves suffered far more from the hands of philosophists, and their followers, than the inhabitants of any other country. General Danican, a French officer, asserts in his memoirs, lately published, that three millions of Frenchmen have perished in the Revolution. Of this amazing destruction the causes by which it was produced, the principles on which it was founded, and the modes in which it was conducted, are an aggravation, that admits no bound. The butchery of the stall, and the slaughter of the stye, are scenes of deeper remorse, and softened with more sensibility. The siege of Lyons, and the judicial massacres at Nantes, stand, since the crucifixion, alone in the volume of human crimes. The misery of man never before reached the extreme of agony, nor the infamy of man its consummation. Collot D. Herbois and his satellites, Carrier and his associates, would claim eminence in a world of fiends, and will be marked with distinction in the future hissings of the universe. No guilt so deeply died in blood, since the phrenzied malice of Calvary, will probably so amaze the assembly of the final day; and Nantes and Lyons may, without a hyperbole, obtain a literal immortality in a remembrance revived beyond the grave.
In which of these plagues, my brethren, are you willing to share? Which of them will you transmit as a legacy to your children?
Would you escape, you must separate yourselves. Would you wholly escape, you must be wholly separated. I do not intend, that you must not buy and sell, or exhibit the common offices of justice and good will; but you are bound by the voice of reason, of duty, of safety, and of God, to shun all such connection with them, as will interweave your sentiments or your friendship, your religion or your policy, with theirs. You cannot otherwise fail of partaking in their guilt, and receiving of their plagues.
4thly. Another duty, to which we are no less forcibly called, is union among ourselves.
The same divine Person, who spoke in the text, hath also said, “A house, a kingdom, divided against itself cannot stand.” A divided family will destroy itself. A divided nation will anticipate ruin, prepared by its enemies. Switzerland, Geneva, Genoa, Venice, the Sardinian territories, Belgium, and Batavia, are melancholy examples of the truth of this declaration of our Saviour; beacons, which warn, with a gloomy and dreadful light, the nations who survive their ruin.
The great bond of union to every people is its government. This destroyed, or distrusted, there is no center left of intelligence, counsel, or action; no system of purposes, or measures; no point of rallying, or confidence. When a nation is ready to say, “What part have we in David, or what inheritance in the son of Jesse?” it will naturally subjoin, “Every man to his tent, O Israel!”
The candour and uprightness, with which our own government has acted in the progress of the present controversy, have forced encomiums even from its most bitter opposers, and excited the warmest approbation and applause of all its friends. Few objects could be more important, auspicious, or gratifying to christians, than to see the conduct of their rulers such, as they can, with boldness of access, bring before their God, and fearlessly commend to his favour and protection.
In men, possessed of similar candour, adherence to our government, in the present crisis, may be regarded as a thing of course. They need not be informed, that the existing rulers must be the directors of our public affairs, and the only directors; that their views and measures will not and cannot always accord with the judgment of individuals, as the opinions of individuals accord no better with each other; that the officers of government are possessed of better information than private persons can be; that, if they had the same information, they would probably coincide with the opinions of their rulers; that confidence must be placed in men, imperfect as they are, in all human affairs, or no important business can be done; and that men of known and tried probity are fully deserving of that confidence.
At the present time this adherence ought to be unequivocally manifested. In a land of universal suffrage, where every individual is possessed of much personal consequence as in ours, the government ought, especially in great measures, to be as secure, as may be, of the harmonious and cheerful co-operation of the citizens. All success, here, depends on the hearty concurrence of the community; and no occasion ever called for it more.
But there are, even in this state, persons, who are opposed to the government. To them I observe, That the government of France has destroyed the independence of every nation, which has confided in it.
That every such nation has been ruined by its internal divisions, especially by the separation of the people from their government.
That they have attempted to accomplish our ruin by the same means, and will certainly accomplish it, if they can;
That the miseries suffered by the subjugated nations have been numberless and extreme, involving the loss of national honour, the immense plunder of public and private property, the conflagration of churches and dwellings, the total ruin of families, the butchery of great multitudes of fathers and sons, and the most deplorable dishonour of wives and daughters;
That the same miseries will be repeated here, if in their power.
That there is, under God, no mean of escaping this ruin, but union among ourselves, and unshaken adherence to the existing government;
That themselves have an infinitely higher interest in preserving the independence of their country, than in any thing, which can exist, should it be conquered;
That they must stand, or fall, with their country; since the French, like all other conquerors, though they may for a little time regard them, as aids and friends, with a seeming partiality, will soon lose that partiality in a general contempt and hatred for them, as Americans. That should they, contrary to all experience, escape these evils, their children will suffer them as extensively as those of their neighbours; and
That to oppose, or neglect, the defence of their country, is to stab the breast, from which they have drawn their life.
I know not that even these considerations will prevail: if they do not, nothing can be suggested by me, which will have efficacy. I must leave them, therefore, to their consciences, and their God.
In the mean time, since the great facts, of which this controversy has consisted, have not, during the preceding periods, been thoroughly known, or believed, by all; and since all questions of expediency will be viewed differently by different eyes; I cannot but urge a general spirit of conciliation. To men labouring under mere mistakes, and prejudices void of malignity, hard names are in most cases unhappily applied, and unkindness is unwisely exhibited. Multitudes, heretofore attached to France with great ardour, have, from full conviction of the necessity of changing their sentiments and their conduct, come forth in the most decisive language, and determined conduct, of defenders of their country. More are daily exhibiting the same spirit and measures. Almost all native Americans will, I doubt not, speedily appear in the same ranks; and none should, in my opinion, be discouraged by useless obloquy.
5. Another duty, injoined in the text, and highly incumbent on us at this time, is unshaken firmness in our opposition.
A steady and invincible firmness is the chief instrument of great achievements. It is the prime mean of great wealth, learning, wisdom, power and virtue; and without it nothing noble or useful is usually accomplished. Without it our separation from our enemies, and our union among ourselves, will avail to no end. The cause is too complex, the object too important, to be determined by a single effort. It is infinitely too important to be given up, let the consequence be what it may. No evils, which can flow from resistance, can be as great as those, which must flow from submission. Great sacrifices of property, of peace, and of life, we may be called to make, but they will fall short of complete ruin. If they should not, it will be more desirable, beyond computation, to fall in the honourable and faithful defence of our families, our country, and our religion, than to survive, the melancholy, debased, and guilty spectators of the ruin of all. We contend for all that is, or ought to be, dear to man. Our cause is eminently that, in which “he who seeketh to save his life shall lose it, and he who loseth it,” in obedience to the command of his Master, “shall find it” beyond the grave. To our enemies we have done no wrong. Unspotted justice looks down on all our public measures with a smile. We fight for that, for which we can pray. We fight for the lives, the honor, the safety, of our wives and children, for the religion of our fathers, and for the liberty, “with which Christ hath made us free.” “We jeopard our lives,” that our children may inherit these glorious blessings, be rescued from the grinding insolence of foreign despotism, and saved from the corruption and perdition of foreign atheism. I am a father. I feel the usual parental tenderness for my children. I have long soothed the approach of declining years with the fond hope of seeing my sons serving God and their generation around me. But from cool conviction I declare in this solemn place, I would far rather follow them one by one to an untimely grave, than to behold them, however prosperous, the victims of philosophism. What could I then believe, but that they were “nigh unto cursing, and that their end was to be burned.”
From two sources only are we in danger of irresolution; avarice, and a reliance on those fair professions, which our enemies have began to make, and which they will doubtless continue to make, in degrees, and with insidiousness, still greater.
On the first of these sources I observe, that, if we grudge a part of our property in the defence of our country, we lose the whole; and not only the whole of our property, but all our comforts, and all our hopes. Every enjoyment of life, every solace of sorrow, will be offered up in one vast hecatomb at the shrine of pride, plunder, impurity, and atheism. Those “who fear not God, regard not man.” All interests, beside their own, are in the view of such men the sport of wantonness, of insolence, and of a heart of millstone. They and their engines will soon tell you, if you do not put it out of their power, as one of the same engines told the miserable inhabitants of Neuwied (in Germany) unhappily placing confidence in their professions. Hear the story, in the words of Professor Robison,
If ever there was a spot upon earth, where men may be happy in a state of cultivated society, it was the little principality of Neuwied. I saw it in 1770. The town was neat, and the palace handsome and in good state. But the country was beyond conception delightful; not a cottage that was out of repair; not a hedge out of order. It had been the hobby of the prince (pardon me the word) who made it his daily employment to go through his principality, and assist every housholder, of whatever condition, with his advice and with his purse; and when a freeholder could not of himself put things into a thriving condition, the prince sent his workmen and did it for him. He endowed schools for the common people and two academies for the gentry and the people of business. He gave little portions to the daughters, and prizes to the well-behaving sons of the labouring people. His own houshold was a pattern of elegance and oeconomy; his sons were sent to Paris, to learn elegance, and to England, to learn science and agriculture. In short the whole was like a romance, and was indeed romantic. I heard it spoken of with a smile at the table of the bishop of Treves, and was induced to see it the next day as a curiosity. Yet even here the fanaticism of Knigge (one of the founders of the Illuminati) would distribute his poison, and tell the blinded people that they were in a state of sin and misery, that their prince was a despot, and that they would never be happy ’till he was made to fly, and ’till they were made all equal.
They got their wish. The swarm of French locusts sat down at Neuwied’s beautiful fields, in 1793, and intrenched themselves; and in three months prince’s and farmers’ houses, and cottages, and schools, and academies, all vanished. When they complained of their miseries to the French general, René le Grand, he replied, with a contemptuous and cutting laugh, “All is ours. We have left you your eyes to cry.”
Will you you trust such professions? Have not your enemies made them to every country, which they have subjugated? Have they fulfilled them to one? Will they prove more sincere to you? Have they not deceived you in every expectation hitherto? On what grounds can you rely on them hereafter?
Will you grudge your property for the defence of itself, of your families, of yourselves. Will you preserve it to pay the price of a Dutch loan? to have it put in requisition by the French Directory? to label it on your doors, that they may, without trouble and without a tax bill, send their soldiers and take it for the use of the Republic? Will you keep it to assist them to pay their fleets and armies for subduing you? and to maintain their forts and garrisons for keeping you in subjection? Shall it become the purchase of a French fete, holden to commemorate the massacres of the 10th of August, the butcheries of the 3d of September, or the murder of Louis the 16th, your former benefactor? Shall it furnish the means for representatives of the people to roll through your streets on the wheels of splendour, to imprison your sons and fathers; to seize on all the comforts, which you have earned with toil, and laid up with care; and to gather your wives, sisters, and daughters, into their brutal seraglios? Shall it become the price of the guillotine, and pay the expense of cleansing your streets from brooks of human blood?
Will you rely on men whose principles justify falshood, injustice, and cruelty? Will you trust philosophists? men who set truth at nought, who make justice a butt of mockery, who deny the being and providence of God, and laugh at the interests and sufferings of men? Think not that such men can change. They can scarcely be worse. There is not a hope that they will become better.
But perhaps you may be alarmed by the power, and the successes, of your enemies. I am warranted to declare, that the ablest judge of this subject in America has said, that, if we are united, firm, and faithful to ourselves, neither France, nor all Europe, can subdue these states. Against other nations they contended with great and decisive advantages. Those nations were near to them, were divided, feeble, corrupted, seduced by philosophists, slaves of despotism, and separated from their government. None of these characters can be applied to us, unless we voluntarily retain those, which depend on ourselves. Three thousand miles of ocean spread between us and our enemies, to enfeeble and disappoint their efforts. They will not here contend with silken Italians, with divided Swissers, nor with self-surrendered Belgians and Batavians. They will find a hardy race of freemen, uncorrupted by luxury, unbroken by despotism; enlightened to understand their privileges, glowing with independence, and determined to be free, or to die: men who love, and who will defend, their families, their country, and their religion: men fresh from triumph, and strong in a recent and victorious Revolution. Doubled, since that Revolution began, in their numbers, and quadrupled in their resources and advantages, at home, in a country formed to disappoint invasion, and to prosper defence, under leaders skilled in all the arts and duties of war, trained in the path of success, they have, if united, firm, and faithful, every thing to hope, and, beside the common evils of war, nothing to fear.
Think not that I trust in chariots and in horses. My own reliance is, I hope, I ardently hope yours is, also, on the Lord our God. All these are his most merciful blessings, and, as such, most supporting consolations to us. They are the very means, which he has provided for our safety, and our hope. Stupidity, sloth, and ingratitude, can alone be blind to them as tokens for good. We are not, my brethren, to look for miracles, nor to expect God to accomplish them. We are to trust in him for the blessings of a regular and merciful providence. Such a providence is over us for good. I have recited abundant proofs, and could easily recite many more. All these are means, with which we are to plant, and to water, and in answer to our prayers God will certainly give the increase.
But I am peculiarly confident in the promised blessing of the text. Our contention is a plain duty to God. The same glorious Person, who has commanded it, has promised to crown our obedience with his blessing, and has thus illumined this gloomy prediction, and shed the dawn of hope and comfort over this melancholy period.
To you the promise is eminently supporting. He has won your faith by the great things he has already done for your fathers, and for you. The same Almighty Hand, which destroyed the fleet of Chebucto by the storm, and whelmed it in the deep; which conducted into the arms of Manly, and of Mugford, those means of war, which for the time saved your country; which raised up your Washington to guide your armies and your councils; which united you with your brethren against every expectation and hope; which disappointed the devices of enemies without, and traitors within; which made the winds and the waves fight for you at Yorktown; which has, in later periods, repeatedly disclosed the machinations of your enemies, and which has now roused a noble spirit of resistance to intrigue and to terror; will accomplish for you a final deliverance from the hand of those, “who seek your hurt.” He has been your fathers’ God, and he will be yours.
Look through the history of your country. You will find scarcely less glorious and wonderful proofs of divine protection and deliverance, uniformly administered through every period of our existence as a people, than shone to the people of Israel in Egypt, in the wilderness, and in Canaan. Can it be believed, can it be, that Christianity has been so planted here, the church of God so established, so happy a government constituted, and so desirable a state of society begun, merely to shew them to the world, and then destroy them? No instance can be found in the providence of God, in which a nation so wonderfully established, and preserved, has been overthrown, until it had progressed farther in corruption. We may be cast down, but experience only will prove to me, that we shall be destroyed.
But the consideration, which ought of itself to decide your opinions and your conduct, and which adds immense weight to all the others, is that the alternative, as exhibited in the prediction, and in providence, is beyond measure dreadful, and is at hand. “Behold,” saith the Saviour, “I come as a thief”—suddenly, unexpectedly, alarmingly—as that wasting enemy, the burglar, breaks up the house in the hour of darkness, when all the inhabitants are lost in sleep and security. How strongly do the great events of the present day shew this awful advent of the King of Kings to be at the doors?
Turn your eyes, for a moment, to the face of providence, and mark its new and surprising appearance. The Jews, for the first time since the destruction of Jerusalem by Adrian, have, in these states, been admitted to the rights of citizenship; and have since been admitted to the same rights in Prussia. They have also, as we are informed, appointed a solemn delegation to examine the evidences of Christianity. In the Austrian dominions, it is asserted, they have agreed to observe the Christian Sabbath; and in England, have in considerable numbers embraced the Christian religion. New and unprecedented efforts have been made, and are fast increasing, in England, Scotland, Germany, and the United States, for the conversion of the heathen. Measures have, in Europe, and in America, been adopted, and are still enlarging, for putting an end to the African slavery, which will within a moderate period bring it to an end. Mohammedism is nearly extinct in Persia, one of the chief supports of that imposture. In Turkey, its other great support, the throne totters to its fall. The great calamities of the present period have fallen, also, almost exclusively upon the Antichristian empire; and almost every part of that empire has drunk deeply of the cup. France, Belgium, Spain, Ireland, the Sardinian monarchy, the Austrian dominions, Venice, Genoa, popish Switzerland, the Ecclesiastical State, popish Germany, Poland, and the French West-Indies, have all been visited with judgments wonderful and terrible; and in exact accordance with prophecy have furthered their own ruin. The kings, or states, of this empire are now plainly “hating the whore, eating her flesh, and burning her with fire.” Batavia, protestant Switzerland, some parts of protestant Germany, and Geneva, have most unwisely, not to say wickedly, refused “to come out” and have therefore “partaken of the sins, and received of the plagues,” of their enemies. To the same unhappy cause our own smartings may all be traced; but blessed be God, there is reason to hope, that “we are escaping from the snare of the fowler.”
So sudden, so unexpected, so alarming a state of things has not existed since the deluge. Every mouth proclaims, every eye looks its astonishment. Wonders daily succeed wonders, and are beginning to be regarded as the standing course of things. As they are of so many kinds, exist in so many places, and respect so many objects; kinds, places and objects, all marked out in prophecy, exhibited as parts of one closely united system, and to be expected at the present time; they shew that this affecting declaration is even now fulfilling in a surprising manner, and that the advent of Christ is at least at our doors. Think how awful this period is. Think what convulsions, what calamities, are portended by that great Voice out of the temple of heaven from the Throne—“It is done!” by the voices and thunderings and lightnings, by the unprecedented shaking of the earth, the unexampled plague of hailstones, the fleeing of the islands, the vanishing of the mountains, the rending asunder of the Antichristian empire, the united ascent of all its sins before God, the falling of the cities of the nations, the general embattling of mankind against their Maker, and their final overthrow, in such immense numbers, that “all the fowls shall be filled with their flesh.”
“God is jealous, and the Lord revengeth; the Lord revengeth and is furious; the Lord will take vengeance on his adversaries, he reserveth wrath for his enemies. The Lord is slow to anger, and great in power, and will not at all acquit the wicked. The Lord hath his way in the whirlwind, and in the storm, and the clouds are the dust of his feet. The mountains quake at him, and the hills melt; and the earth is burnt at his presence, yea the world, and all that dwell therein. Who can stand before his indignation? Who can abide in the fierceness of his anger?”
In this amazing conflict, amidst this stupendous and immeasurable ruin, how transporting the thought, that safety and peace may be certainly found. O thou God of our fathers! our own God! and the God of our children! enable us so to watch, and keep our garments, in this solemn day, that our shame appear not, and that both we and our posterity may be entitled to the blessing which thou hast promised.
Report of the Hartford Convention
On December 15, 1814, a group of delegates from states and counties in New England met in Hartford, Connecticut, to discuss problems arising from the War of 1812. The convention secretary was Timothy Dwight. New England had consistently opposed the war with Great Britain. The Federalist Party, which remained strong in this region despite its losses elsewhere, had opposed the federal government’s embargo of British shipping, and the New England states had refused to allow the federal government to take over control of local militia. While several members of this convention had publicly considered seeking a separate peace between Great Britain and New England, effectively severing ties of union to the United States, the convention produced a more moderate report.
Report of the Hartford Convention
The Delegates from the Legislatures of the States of Massachusetts, Connecticut, and Rhode-Island, and from the Counties of Grafton and Cheshire in the State of New-Hampshire and the County of Windham in the State of Vermont, assembled in Convention, beg leave to report the following result of their conference
The Convention is deeply impressed with a sense of the arduous nature of the commission which they were appointed to execute, of devising the means of defence against dangers, and of relief from oppressions proceeding from the act of their own Government, without violating constitutional principles, or disappointing the hopes of a suffering and injured people. To prescribe patience and firmness to those who are already exhausted by distress, is sometimes to drive them to despair, and the progress towards reform by the regular road, is irksome to those whose imaginations discern, and whose feelings prompt, to a shorter course.—But when abuses, reduced to system and accumulated through a course of years have pervaded every department of Government, and spread corruption through every region of the State; when these are clothed with the forms of law, and enforced by an Executive whose will is their source, no summary means of relief can be applied without recourse to direct and open resistance. This experiment, even when justifiable, cannot fail to be painful to the good citizen; and the success of the effort will be no security against the danger of the example. Precedents of resistance to the worst administration, are eagerly seized by those who are naturally hostile to the best. Necessity alone can sanction a resort to this measure; and it should never be extended in duration or degree beyond the exigency, until the people, not merely in the fervour of sudden excitement, but after full deliberation, are determined to change the Constitution.
It is a truth, not to be concealed, that a sentiment prevails to no inconsiderable extent, that Administration have given such constructions to that instrument, and practised so many abuses under colour of its authority, that the time for a change is at hand. Those who so believe, regard the evils which surround them as intrinsic and incurable defects in the Constitution. They yield to a persuasion, that no change, at any time, or on any occasion, can aggravate the misery of their country. This opinion may ultimately prove to be correct. But as the evidence on which it rests is not yet conclusive, and as measures adopted upon the assumption of its certainty might be irrevocable, some general considerations are submitted, in the hope of reconciling all to a course of moderation and firmness, which may save them from the regret incident to sudden decisions, probably avert the evil, or at least insure consolation and success in the last resort.
The Constitution of the United States, under the auspices of a wise and virtuous Administration, proved itself competent to all the objects of national prosperity, comprehended in the views of its framers. No parallel can be found in history, of a transition so rapid as that of the United States from the lowest depression to the highest felicity—from the condition of weak and disjointed republics, to that of a great, united, and prosperous nation.
Although this high state of public happiness has undergone a miserable and afflicting reverse, through the prevalence of a weak and profligate policy, yet the evils and afflictions which have thus been induced upon the country, are not peculiar to any form of Government. The lust and caprice of power, the corruption of patronage, the oppression of the weaker interests of the community by the stronger, heavy taxes, wasteful expenditures, and unjust and ruinous wars, are the natural offspring of bad Administrations, in all ages and countries. It was indeed to be hoped, that the rulers of these States would not make such disastrous haste to involve their infancy in the embarrassments of old and rotten institutions. Yet all this have they done; and their conduct calls loudly for their dismission and disgrace. But to attempt upon every abuse of power to change the Constitution, would be to perpetuate the evils of revolution.
Again, the experiment of the powers of the Constitution, to regain its vigour, and of the people to recover from their delusions, has been hitherto made under the greatest possible disadvantages arising from the state of the world. The fierce passions which have convulsed the nations of Europe, have passed the Ocean, and finding their way to the bosoms of our citizens, have afforded to Administration the means of perverting public opinion, in respect to our foreign relations, so as to acquire its aid in the indulgence of their animosities, and the increase of their adherents. Further, a reformation of public opinion, resulting from dear bought experience, in the Southern Atlantic States, at least, is not to be despaired of. They will have felt, that the Eastern States cannot be made exclusively the victims of a capricious and impassioned policy.—They will have seen that the great and essential interests of the people, are common to the South and to the East. They will realize the fatal errors of a system, which seeks revenge for commercial injuries in the sacrifice of commerce, and aggravates by needless wars, to an immeasurable extent, the injuries it professes to redress. They may discard the influence of visionary theorists, and recognize the benefits of a practical policy. Indications of this desirable revolution of opinion, among our brethren in those States, are already manifested.—While a hope remains of its ultimate completion, its progress should not be retarded or stopped, by exciting fears which must check these favourable tendencies, and frustrate the efforts of the wisest and best men in those States, to accelerate this propitious change.
Finally, if the Union be destined to dissolution, by reason of the multiplied abuses of bad administrations, it should, if possible, be the work of peaceable times, and deliberate consent.—Some new form of confederacy should be substituted among those States, which shall intend to maintain a federal relation to each other.—Events may prove that the causes of our calamities are deep and permanent. They may be found to proceed, not merely from the blindness of prejudice, pride of opinion, violence of party spirit, or the confusion of the times; but they may be traced to implacable combinations of individuals, or of States, to monopolize power and office, and to trample without remorse upon the rights and interests of commercial sections of the Union. Whenever it shall appear that these causes are radical and permanent, a separation by equitable arrangement, will be preferable to an alliance by constraint, among nominal friends, but real enemies, inflamed by mutual hatred and jealousy, and inviting by intestine divisions, contempt, and aggression from abroad. But a severance of the Union by one or more States, against the will of the rest, and especially in a time of war, can be justified only by absolute necessity. These are among the principal objections against precipitate measures tending to disunite the States, and when examined in connection with the farewell address of the Father of his country, they must, it is believed, be deemed conclusive.
Under these impressions, the Convention have proceeded to confer and deliberate upon the alarming state of public affairs, especially, as affecting the interests of the people who have appointed them for this purpose, and they are naturally led to a consideration, in the first place, of the dangers and grievances which menace an immediate or speedy pressure, with a view of suggesting means of present relief; in the next place, of such as are of a more remote and general description, in the hope of attaining future security.
Among the subjects of complaint and apprehension, which might be comprised under the former of these propositions, the attention of the Convention has been occupied with the claims and pretensions advanced, and the authority exercised over the militia, by the executive and legislative departments of the National Government. Also, upon the destitution of the means of defence in which the Eastern States are left; while at the same time they are doomed to heavy requisitions of men and money for national objects.
The authority of the National Government over the militia is derived from those clauses in the Constitution which give power to Congress “to provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions”—Also “to provide for organizing, arming and disciplining the militia, and for governing such parts of them as may be employed in the service of the United States, reserving to the States respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress.” Again, “The President shall be Commander in Chief of the army and navy of the United States, and of the militia of the several States, when called into the actual service of the United States.” In these specified cases only, has the National Government any power over the militia; and it follows conclusively that for all general and ordinary purposes, this power belongs to the States respectively, and to them alone. It is not only with regret, but with astonishment, the Convention perceive that under colour of an authority conferred with such plain and precise limitations, a power is arrogated by the executive government, and in some instances sanctioned by the two Houses of Congress, of controul over the militia, which if conceded, will render nugatory the rightful authority of the individual States over that class of men, and by placing at the disposal of the National Government the lives and services of the great body of the people, enable it at pleasure to destroy their liberties, and erect a military despotism on the ruins.
An elaborate examination of the principles assumed for the basis of these extravagant pretensions, of the consequences to which they lead, and of the insurmountable objections to their admission, would transcend the limits of this Report. A few general observations, with an exhibition of the character of these pretensions, and a recommendation of a strenuous opposition to them, must not however be omitted.
It will not be contended that by the terms used in the constitutional compact, the power of the National Government to call out the militia is other than a power expressly limited to three cases. One of these must exist as a condition precedent to the exercise of that power—Unless the laws shall be opposed, or an insurrection shall exist, or an invasion shall be made, Congress, and of consequence the President as their organ, has no more power over the militia than over the armies of a foreign nation.
But if the declaration of the President should be admitted to be an unerring test of the existence of these cases, this important power would depend, not upon the truth of the fact, but upon executive infallibility. And the limitation of the power would consequently be nothing more than merely nominal, as it might always be eluded. It follows therefore that the decision of the President in this particular cannot be conclusive. It is as much the duty of the State authorities to watch over the rights reserved, as of the United States to exercise the powers which are delegated.
The arrangement of the United States into military districts, with a small portion of the regular force, under an officer of high rank of the standing army, with power to call for the militia, as circumstances in his judgment may require; and to assume the command of them, is not warranted by the Constitution or any law of the United States. It is not denied that Congress may delegate to the President of the United States the power to call forth the militia in the cases which are within their jurisdiction—But he has no authority to substitute military prefects throughout the Union, to use their own discretion in such instances. To station an officer of the army in a military district without troops corresponding to his rank, for the purpose of taking command of the militia that may be called into service, is a manifest evasion of that provision of the Constitution which expressly reserves to the States the appointment of the officers of the militia; and the object of detaching such officer cannot be well conceived to be any other than that of superseding the Governour or other officers of the militia in their right to command.
The power of dividing the militia of the States into classes and obliging such classes to furnish by contract or draft, able bodied men, to serve for one or more years for the defence of the frontier, is not delegated to Congress. If a claim to draft the militia for one year for such general object be admissible, no limitation can be assigned to it, but the discretion of those who make the law. Thus with a power in Congress to authorize such a draft or conscription, and in the Executive to decide conclusively upon the existence and continuance of the emergency, the whole militia may be converted into a standing army disposable at the will of the President of the United States.
The power of compelling the militia and other citizens of the United States by a forcible draft or conscription to serve in the regular armies as proposed in a late official letter of the Secretary of War, is not delegated to Congress by the Constitution, and the exercise of it would be not less dangerous to their liberties, than hostile to the sovereignty of the States. The effort to deduce this power from the right of raising armies, is a flagrant attempt to pervert the sense of the clause in the Constitution which confers that right, and is incompatible with other provisions in that instrument. The armies of the United States have always been raised by contract, never by conscription, and nothing more can be wanting to a Government possessing the power thus claimed to enable it to usurp the entire controul of the militia, in derogation of the authority of the State, and to convert it by impressment into a standing army.
It may be here remarked, as a circumstance illustrative of the determination of the Executive to establish an absolute controul over all descriptions of citizens, that the right of impressing seamen into the naval service is expressly asserted by the Secretary of the Navy in a late report. Thus a practice, which in a foreign government has been regarded with great abhorrence by the people, finds advocates among those who have been the loudest to condemn it.
The law authorizing the enlistment of minors and apprentices into the armies of the United States, without the consent of parents and guardians, is also repugnant to the spirit of the Constitution. By a construction of the power to raise armies, as applied by our present rulers, not only persons capable of contracting are liable to be impressed into the army, but those who are under legal disabilities to make contracts, are to be invested with this capacity, in order to enable them to annul at pleasure contracts made in their behalf by legal guardians. Such an interference with the municipal laws and rights of the several States, could never have been contemplated by the framers of the Constitution. It impairs the salutary controul and influence of the parent over his child—the master over his servant—the guardian over his ward—and thus destroys the most important relations in society, so that by the conscription of the father, and the seduction of the son, the power of the Executive over all the effective male population of the United States is made complete.
Such are some of the odious features of the novel system proposed by the rulers of a free country, under the limited powers derived from the Constitution. What portion of them will be embraced in acts finally to be passed, it is yet impossible to determine. It is, however, sufficiently alarming to perceive, that these projects emanate from the highest authority, nor should it be forgotten, that by the plan of the Secretary of War, the classification of the militia embraced the principle of direct taxation upon the white population only; and that, in the House of Representatives, a motion to apportion the militia among the white population exclusively, which would have been in its operation a direct tax, was strenuously urged and supported.
In this whole series of devices and measures for raising men, this Convention discern a total disregard for the Constitution, and a disposition to violate its provisions, demanding from the individual States a firm and decided opposition. An iron despotism can impose no harder servitude upon the citizen, than to force him from his home and his occupation, to wage offensive wars, undertaken to gratify the pride or passions of his master. The example of France has recently shewn that a cabal of individuals assuming to act in the name of the people, may transform the great body of citizens into soldiers, and deliver them over into the hands of a single tyrant. No war, not held in just abhorrence by a people, can require the aid of such stratagems to recruit an army. Had the troops already raised, and in great numbers sacrificed upon the frontier of Canada, been employed for the defence of the country, and had the millions which have been squandered with shameless profusion, been appropriated to their payment, to the protection of the coast, and to the naval service, there would have been no occasion for unconstitutional expedients. Even at this late hour, let Government leave to New-England the remnant of her resources, and she is ready and able to defend her territory, and to resign the glories and advantages of the border war, to those who are determined to persist in its prosecution.
That acts of Congress in violation of the Constitution are absolutely void, is an undeniable position. It does not, however, consist with the respect and forbearance due from a confederate State towards the General Government, to fly to open resistance upon every infraction of the Constitution. The mode and the energy of the opposition, should always conform to the nature of the violation, the intention of its authors, the extent of the injury inflicted, the determination manifested to persist in it, and the danger of delay. But in cases of deliberate, dangerous, and palpable infractions of the Constitution, affecting the sovereignty of a State, and liberties of the people; it is not only the right but the duty of such a State to interpose its authority for their protection, in the manner best calculated to secure that end. When emergencies occur which are either beyond the reach of the judicial tribunals, or too pressing to admit of the delay incident to their forms, States, which have no common umpire, must be their own judges, and execute their own decisions. It will thus be proper for the several States to await the ultimate disposal of the obnoxious measures, recommended by the Secretary of War, or pending before Congress, and so to use their power according to the character these measures shall finally assume, as effectually to protect their own sovereignty, and the rights and liberties of their citizens.
The next subject which has occupied the attention of the Convention, is the means of defence against the common enemy. This naturally leads to the inquiries, whether any expectation can be reasonably entertained, that adequate provision for the defence of the Eastern States will be made by the National Government? Whether the several States can, from their own resources, provide for self-defence and fulfil the requisitions which are to be expected for the national Treasury? and, generally what course, of conduct ought to be adopted by those States, in relation to the great object of defence?
Without pausing at present to comment upon the causes of the war, it may be assumed as a truth, officially announced, that to achieve the conquest of Canadian territory, and to hold it as a pledge for peace, is the deliberate purpose of Administration. This enterprize, commenced at a period when Government possessed the advantage of selecting the time and occasion for making a sudden descent upon an unprepared enemy, now languishes in the third year of the war. It has been prosecuted with various fortune, and occasional brilliancy of exploit, but without any solid acquisition. The British armies have been recruited by veteran regiments. Their navy commands Ontario. The American ranks are thinned by the casualties of war. Recruits are discouraged by the unpopular character of the contest, and by the uncertainty of receiving their pay.
In the prosecution of this favourite warfare, Administration have left the exposed and vulnerable parts of the country destitute of all efficient means of defence. The main body of the regular army has been marched to the frontier.—The navy has been stripped of a great part of its sailors for the service of the Lakes. Meanwhile the enemy scours the sea-coast, blockades our ports, ascends our bays and rivers, makes actual descents in various and distant places, holds some by force, and threatens all that are assailable, with fire and sword. The sea-board of four of the New-England States, following its curvatures, presents an extent of more than seven hundred miles, generally occupied by a compact population, and accessible by a naval force, exposing a mass of people and property to the devastation of the enemy, which bears a great proportion to the residue of the maritime frontier of the United States. This extensive shore has been exposed to frequent attacks, repeated contributions, and constant alarms. The regular forces detached by the national Government for its defence, are mere pretexts for placing officers of high rank in command. They are besides confined to a few places, and are too insignificant in number to be included in any computation.
These States have thus been left to adopt measures for their own defence. The militia have been constantly kept on the alert, and harassed by garrison duties, and other hardships, while the expenses, of which the National Government decline the reimbursement, threaten to absorb all the resources of the States. The President of the United States has refused to consider the expense of the militia detached by State authority, for the indispensable defence of the State, as chargeable to the Union, on the ground of a refusal by the Executive of the State, to place them under the command of officers of the regular army. Detachments of militia placed at the disposal of the General Government, have been dismissed either without pay, or with depreciated paper. The prospect of the ensuing campaign is not enlivened by the promise of any alleviation of these grievances. From authentic documents, extorted by necessity from those whose inclination might lead them to conceal the embarrassments of the Government, it is apparent that the treasury is bankrupt, and its credit prostrate. So deplorable is the state of the finances, that those who feel for the honour and safety of the country, would be willing to conceal the melancholy spectacle, if those whose infatuation has produced this state of fiscal concerns, had not found themselves compelled to unveil it to public view.
If the war be continued, there appears no room for reliance upon the national government for the supply of those means of defence, which must become indispensable to secure these States from desolation and ruin. Nor is it possible that the States can discharge this sacred duty from their own resources, and continue to sustain the burden of the national taxes. The Administration, after a long perseverance in plans to baffle every effort of commercial enterprize, had fatally succeeded in their attempts at the epoch of the war. Commerce, the vital spring of New-England’s prosperity, was annihilated. Embargoes, restrictions, and the rapacity of revenue officers, had completed its destruction. The various objects for the employment of productive labour, in the branches of business dependent on commerce, have disappeared. The fisheries have shared its fate. Manufactures, which Government has professed an intention to favour and to cherish, as an indemnity for the failure of these branches of business, are doomed to struggle in their infancy with taxes and obstructions, which cannot fail most seriously to affect their growth. The specie is withdrawn from circulation. The landed interest, the last to feel these burdens, must prepare to become their principal support, as all other sources of revenue must be exhausted. Under these circumstances, taxes, of a description and amount unprecedented in this country, are in a train of imposition, the burden of which must fall with the heaviest pressure upon the States east of the Potowmac. The amount of these taxes for the ensuing year, cannot be estimated at less than five millions of dollars upon the New-England States, and the expenses of the last year for defence, in Massachusetts alone, approaches to one million of dollars.
From these facts, it is almost superfluous to state the irresistible inference that these States have no capacity of defraying the expense requisite for their own protection, and, at the same time, of discharging the demands of the national treasury.
The last inquiry, what course of conduct ought to be adopted by the aggrieved States, is in a high degree momentous. When a great and brave people shall feel themselves deserted by their Government, and reduced to the necessity either of submission to a foreign enemy, or of appropriating to their own use, those means of defence which are indispensable to self-preservation, they cannot consent to wait passive spectators of approaching ruin, which it is in their power to avert, and to resign the last remnant of their industrious earnings, to be dissipated in support of measures destructive of the best interests of the nation.
This Convention will not trust themselves to express their conviction of the catastrophe to which such a state of things inevitably tends. Conscious of their high responsibility to God and their country, solicitous for the continuance of the Union, as well as the sovereignty of the States, unwilling to furnish obstacles to peace—resolute never to submit to a foreign enemy, and confiding in the Divine care and protection, they will, until the last hope shall be extinguished, endeavour to avert such consequences.
With this view they suggest an arrangement, which may at once be consistent with the honour and interest of the National Government, and the security of these States. This it will not be difficult to conclude, if that government should be so disposed. By the terms of it these States might be allowed to assume their own defence, by the militia or other troops. A reasonable portion, also, of the taxes raised in each State might be paid into its treasury, and credited to the United States, but to be appropriated to the defence of such State, to be accounted for with the United States. No doubt is entertained that by such an arrangement, this portion of the country could be defended with greater effect, and in a mode more consistent with economy, and the public convenience, than any which has been practised.
Should an application for these purposes, made to Congress by the State Legislatures, be attended with success, and should peace upon just terms appear to be unattainable, the people would stand together for the common defence, until a change of Administration, or of disposition in the enemy, should facilitate the occurrence of that auspicious event. It would be inexpedient for this Convention to diminish the hope of a successful issue to such an application, by recommending, upon supposition of a contrary event, ulterior proceedings. Nor is it indeed within their province. In a state of things so solemn and trying as may then arise, the Legislatures of the States, or Conventions of the whole people, or delegates appointed by them for the express purpose in another Convention, must act as such urgent circumstances may then require.
But the duty incumbent on this Convention will not have been performed, without exhibiting some general view of such measures as they deem essential to secure the nation against a relapse into difficulties and dangers, should they, by the blessing of Providence, escape from their present condition, without absolute ruin. To this end a concise retrospect of the state of this nation under the advantages of a wise Administration, contrasted with the miserable abyss into which it is plunged by the profligacy and folly of political theorists, will lead to some practical conclusions. On this subject, it will be recollected, that the immediate influence of the Federal Constitution upon its first adoption, and for twelve succeeding years, upon the prosperity and happiness of the nation, seemed to countenance a belief in the transcendency of its perfection over all other human institutions. In the catalogue of blessings which have fallen to the lot of the most favoured nations, none could be enumerated from which our country was excluded—A free Constitution, administered by great and incorruptible statesmen, realized the fondest hopes of liberty and independence—The progress of agriculture was stimulated by the certainty of value in the harvest—and commerce, after traversing every sea, returned with the riches of every clime.—A revenue, secured by a sense of honour, collected without oppression, and paid without murmurs, melted away the national debt; and the chief concern of the public creditor arose from its too rapid diminution.—The wars and commotions of the European nations, and the interruptions of their commercial intercourse afforded to those who had not promoted, but who would have rejoiced to alleviate their calamities, a fair and golden opportunity, by combining themselves to lay a broad foundation for national wealth.—Although occasional vexations to commerce, arose from the furious collisions of the powers at war, yet the great and good men of that time conformed to the force of circumstances which they could not controul, and preserved their country in security from the tempests which overwhelmed the old world, and threw the wreck of their fortunes on these shores.—Respect abroad, prosperity at home, wise laws made by honoured legislators, and prompt obedience yielded by a contented people, had silenced the enemies of republican institutions.—The arts flourished—the sciences were cultivated—the comforts and conveniences of life were universally diffused—and nothing remained for succeeding administrations, but to reap the advantages, and cherish the resources, flowing from the policy of their predecessors.
But no sooner was a new administration established in the hands of the party opposed to the Washington policy, than a fixed determination was perceived and avowed of changing a system which had already produced these substantial fruits. The consequences of this change, for a few years after its commencement, were not sufficient to counteract the prodigious impulse towards prosperity, which had been given to the nation. But a steady perseverance in the new plans of administration, at length developed their weakness and deformity, but not until a majority of the people had been deceived by flattery, and inflamed by passion, into blindness to their defects. Under the withering influence of this new system, the declension of the nation has been uniform and rapid. The richest advantages for securing the great objects of the Constitution have been wantonly rejected. While Europe reposes from the convulsions that had shaken down her ancient institutions, she beholds with amazement this remote country, once so happy and so envied, involved in a ruinous war, and excluded from intercourse with the rest of the world.
To investigate and explain the means whereby this fatal reverse has been effected, would require a voluminous discussion. Nothing more can be attempted in this Report, than a general allusion to the principal outlines of the policy which has produced this vicissitude. Among these may be enumerated
First.—A deliberate and extensive system for effecting a combination among certain States, by exciting local jealousies and ambition, so as to secure to popular leaders in one section of the Union, the controul of public affairs in perpetual succession. To which primary object most other characteristics of the system may be reconciled.
Secondly.—The political intolerance displayed and avowed, in excluding from office men of unexceptionable merit, for want of adherence to the executive creed.
Thirdly.—The infraction of the judiciary authority and rights, by depriving judges of their offices in violation of the Constitution.
Fourthly.—The abolition of existing Taxes, requisite to prepare the Country for those changes to which nations are always exposed, with a view to the acquisition of popular favour.
Fifthly.—The influence of patronage in the distribution of offices, which in these States has been almost invariably made among men the least intitled to such distinction, and who have sold themselves as ready instruments for distracting public opinion, and encouraging administration to hold in contempt the wishes and remonstrances of a people thus apparently divided.
Sixthly.—The admission of new States into the Union, formed at pleasure in the western region, has destroyed the balance of power which existed among the original States, and deeply affected their interest.
Seventhly.—The easy admission of naturalized foreigners, to places of trust, honour or profit, operating as an inducement to the malcontent subjects of the old world to come to these States, in quest of executive patronage, and to repay it by an abject devotion to executive measures.
Eighthly.—Hostility to Great-Britain, and partiality to the late government of France, adopted as coincident with popular prejudice, and subservient to the main object, party power. Connected with these must be ranked erroneous and distorted estimates of the power and resources of those nations, of the probable results of their controversies, and of our political relations to them respectively.
Lastly and principally.—A visionary and superficial theory in regard to commerce, accompanied by a real hatred but a feigned regard to its interests, and a ruinous perseverance in efforts to render it an instrument of coercion and war.
But it is not conceivable that the obliquity of any administration could, in so short a period, have so nearly consummated the work of national ruin, unless favoured by defects in the Constitution.
To enumerate all the improvements of which that instrument is susceptible, and to propose such amendments as might render it in all respects perfect, would be a task, which this Convention has not thought proper to assume.—They have confined their attention to such as experience has demonstrated to be essential, and even among these, some are considered entitled to a more serious attention than others. They are suggested without any intentional disrespect to other States, and are meant to be such as all shall find an interest in promoting. Their object is to strengthen, and if possible to perpetuate, the Union of the States, by removing the grounds of existing jealousies, and providing for a fair and equal representation and a limitation of powers, which have been misused.
The first amendment proposed, relates to the apportionment of Representatives among the slave holding States. This cannot be claimed as a right. Those States are entitled to the slave representation, by a constitutional compact. It is therefore merely a subject of agreement, which should be conducted upon principles of mutual interest and accomodation, and upon which no sensibility on either side should be permitted to exist. It has proved unjust and unequal in its operation. Had this effect been foreseen, the privilege would probably not have been demanded; certainly not conceded. Its tendency in future will be adverse to that harmony and mutual confidence, which are more conducive to the happiness and prosperity of every confederated State, than a mere preponderance of power, the prolific source of jealousies and controversy, can be to any one of them. The time may therefore arrive, when a sense of magnanimity and justice will reconcile those States to acquiesce in a revision of this article, especially as a fair equivalent would result to them in the apportionment of taxes.
The next amendment relates to the admission of new States into the union.
This amendment is deemed to be highly important, and in fact indispensable. In proposing it, it is not intended to recognize the right of Congress to admit new States without the original limits of the United States, nor is any idea entertained of disturbing the tranquillity of any State already admitted into the union. The object is merely to restrain the constitutional power of Congress in admitting new States. At the adoption of the Constitution, a certain balance of power among the original parties was considered to exist, and there was at that time, and yet is among those parties, a strong affinity between their great and general interests.—By the admission of these States that balance has been materially affected, and unless the practice be modified, must ultimately be destroyed. The Southern States will first avail themselves of their new confederates to govern the East, and finally the Western States multiplied in number, and augmented in population, will controul the interests of the whole. Thus for the sake of present power, the Southern States will be common sufferers with the East, in the loss of permanent advantages. None of the old States can find an interest in creating prematurely an overwhelming Western influence, which may hereafter discern (as it has heretofore) benefits to be derived to them by wars and commercial restrictions.
The next amendments proposed by the Convention, relate to the powers of Congress, in relation to Embargo and the interdiction of commerce.
Whatever theories upon the subject of commerce, have hitherto divided the opinions of statesmen, experience has at last shewn that it is a vital interest in the United States, and that its success is essential to the encouragement of agriculture and manufactures, and to the wealth, finances, defence, and liberty of the nation. Its welfare can never interfere with the other great interests of the State, but must promote and uphold them. Still those who are immediately concerned in the prosecution of commerce, will of necessity be always a minority of the nation. They are, however, best qualified to manage and direct its course by the advantages of experience, and the sense of interest. But they are entirely unable to protect themselves against the sudden and injudicious decisions of bare majorities, and the mistaken or oppressive projects of those who are not actively concerned in its pursuits. Of consequence, this interest is always exposed to be harassed, interrupted, and entirely destroyed, upon pretence of securing other interests. Had the merchants of this nation been permitted, by their own government, to pursue an innocent and lawful commerce, how different would have been the state of the treasury and of public credit! How short-sighted and miserable is the policy which has annihilated this order of men, and doomed their ships to rot in the docks, their capital to waste unemployed, and their affections to be alienated from the Government which was formed to protect them! What security for an ample and unfailing revenue can ever be had, comparable to that which once was realized in the good faith, punctuality, and sense of honour, which attached the mercantile class to the interests of the Government! Without commerce, where can be found the aliment for a navy; and without a navy, what is to constitute the defence, and ornament, and glory of this nation! No union can be durably cemented, in which every great interest does not find itself reasonably secured against the encroachment and combinations of other interests. When, therefore, the past system of embargoes and commercial restrictions shall have been reviewed—when the fluctuation and inconsistency of public measures, betraying a want of information as well as feeling in the majority, shall have been considered, the reasonableness of some restrictions upon the power of a bare majority to repeat these oppressions, will appear to be obvious.
The next amendment proposes to restrict the power of making offensive war. In the consideration of this amendment, it is not necessary to inquire into the justice of the present war. But one sentiment now exists in relation to its expediency, and regret for its declaration is nearly universal. No indemnity can ever be attained for this terrible calamity, and its only palliation must be found in obstacles to its future recurrence. Rarely can the state of this country call for or justify offensive war. The genius of our institutions is unfavourable to its successful prosecution; the felicity of our situation exempts us from its necessity.—In this case, as in the former, those more immediately exposed to its fatal effects are a minority of the nation. The commercial towns, the shores of our seas and rivers, contain the population, whose vital interests are most vulnerable by a foreign enemy. Agriculture, indeed, must feel at last, but this appeal to its sensibility comes too late. Again, the immense population which has swarmed into the West, remote from immediate danger, and which is constantly augmenting, will not be averse from the occasional disturbances of the Atlantic States. Thus interest may not unfrequently combine with passion and intrigue, to plunge the nation into needless wars, and compel it to become a military, rather than a happy and flourishing people. These considerations which it would be easy to augment, call loudly for the limitation proposed in the amendment.
Another amendment, subordinate in importance, but still in a high degree expedient, relates to the exclusion of foreigners, hereafter arriving in the United States, from the capacity of holding offices of trust, honour or profit.
That the stock of population already in these States, is amply sufficient to render this nation in due time sufficiently great and powerful, is not a controvertible question—Nor will it be seriously pretended, that the national deficiency in wisdom, arts, science, arms or virtue, needs to be replenished from foreign countries. Still, it is agreed, that a liberal policy should offer the rights of hospitality, and the choice of settlement, to those who are disposed to visit the country.—But why admit to a participation in the government aliens who were no parties to the compact—who are ignorant of the nature of our institutions, and have no stake in the welfare of the country, but what is recent and transitory? It is surely a privilege sufficient, to admit them after due probation to become citizens, for all but political purposes.—To extend it beyond these limits, is to encourage foreigners to come to these states as candidates for preferment. The Convention forbear to express their opinion upon the inauspicious effects which have already resulted to the honour and peace of this nation, from this misplaced and indiscriminate liberality.
The last amendment respects the limitation of the office of President, to a single constitutional term, and his eligibility from the same State two terms in succession.
Upon this topic, it is superfluous to dilate. The love of power is a principle in the human heart which too often impels to the use of all practicable means to prolong its duration. The office of President has charms and attractions which operate as powerful incentives to this passion. The first and most natural exertion of a vast patronage is directed towards the security of a new election. The interest of the country, the welfare of the people, even honest fame and respect for the opinion of posterity, are secondary considerations. All the engines of intrigue; all the means of corruption, are likely to be employed for this object. A President whose political career is limited to a single election, may find no other interest than will be promoted by making it glorious to himself, and beneficial to his country. But the hope of reelection is prolific of temptations, under which these magnanimous motives are deprived of their principal force. The repeated election of the President of the United States from any one State, affords inducements and means for intrigue, which tend to create an undue local influence, and to establish the domination of particular States. The justice, therefore, of securing to every State a fair and equal chance for the election of this officer from its own citizens is apparent, and this object will be essentially promoted by preventing an election from the same State twice in succession.
Such is the general view which this Convention has thought proper to submit, of the situation of these States, of their dangers and their duties. Most of the subjects which it embraces have separately received an ample and luminous investigation, by the great and able assertors of the rights of their Country, in the National Legislature; and nothing more could be attempted on this occasion, than a digest of general principles, and of recommendations, suited to the present state of public affairs. The peculiar difficulty and delicacy of performing, even this undertaking, will be appreciated by all who think seriously upon the crisis. Negotiations for Peace, are at this hour supposed to be pending, the issue of which must be deeply interesting to all. No measures should be adopted, which might unfavorably affect that issue; none which should embarrass the Administration, if their professed desire for peace is sincere; and none, which on supposition of their insincerity, should afford them pretexts for prolonging the war, or relieving themselves from the responsibility of a dishonorable peace. It is also devoutly to be wished, that an occasion may be afforded to all friends of the country, of all parties, and in all places, to pause and consider the awful state to which pernicious counsels, and blind passions, have brought this people. The number of those who perceive, and who are ready to retrace errors, must it is believed be yet sufficient to redeem the nation. It is necessary to rally and unite them by the assurance that no hostility to the Constitution is meditated, and to obtain their aid, in placing it under guardians, who alone can save it from destruction. Should this fortunate change be effected, the hope of happiness and honor may once more dispel the surrounding gloom. Our nation may yet be great, our union durable. But should this prospect be utterly hopeless, the time will not have been lost, which shall have ripened a general sentiment of the necessity of more mighty efforts to rescue from ruin, at least some portion of our beloved Country.
That it be and hereby is recommended to the Legislatures of the several States represented in this Convention, to adopt all such measures as may be necessary effectually to protect the citizens of said States from the operation and effects of all acts which have been or may be passed by the Congress of the United States, which shall contain provisions, subjecting the militia or other citizens to forcible drafts, conscriptions, or impressments, not authorised by the Constitution of the United States.
Resolved, That it be and hereby is recommended to the said Legislatures, to authorize an immediate and earnest application to be made to the Government of the United States, requesting their consent to some arrangement, whereby the said States may, separately or in concert, be empowered to assume upon themselves the defence of their territory against the enemy; and a reasonable portion of the taxes, collected within said States, may be paid into the respective treasuries thereof, and appropriated to the payment of the balance due said States, and to the future defence of the same. The amount so paid into the said treasuries to be credited, and the disbursements made as aforesaid to be charged to the United States.
Resolved, That it be, and it hereby is, recommended to the Legislatures of the aforesaid States, to pass laws (where it has not already been done) authorizing the Governours or Commanders in Chief of their militia to make detachments from the same, or to form voluntary corps, as shall be most convenient and conformable to their Constitutions, and to cause the same to be well armed, equipped and disciplined, and held in readiness for service; and upon the request of the Governour of either of the other States to employ the whole of such detachment or corps, as well as the regular forces of the State, or such part thereof as may be required and can be spared consistently with the safety of the State, in assisting the State, making such request to repel any invasion thereof which shall be made or attempted by the public enemy.
Resolved, That the following amendments of the Constitution of the United States, be recommended to the States represented as aforesaid, to be proposed by them for adoption by the State Legislatures, and, in such cases as may be deemed expedient, by a Convention chosen by the people of each State.
And it is further recommended, that the said States shall persevere in their efforts to obtain such amendments, until the same shall be effected.
First. Representatives and direct taxes shall be apportioned among the several States which may be included within this union, according to their respective numbers of free persons, including those bound to serve for a term of years and excluding Indians not taxed, and all other persons.
Second. No new State shall be admitted into the union by Congress in virtue of the power granted by the Constitution, without the concurrence of two thirds of both Houses.
Third. Congress shall not have power to lay any embargo on the ships or vessels of the citizens of the United States, in the ports or harbours thereof, for more than sixty days.
Fourth. Congress shall not have power, without the concurrence of two thirds of both Houses, to interdict the commercial intercourse between the United States and any foreign nation or the dependencies thereof.
Fifth. Congress shall not make or declare war, or authorize acts of hostility against any foreign nation without the concurrence of two thirds of both Houses, except such acts of hostility be in defence of the territories of the United States when actually invaded.
Sixth. No person who shall hereafter be naturalized, shall be eligible as a member of the Senate or House of Representatives of the United States, nor capable of holding any civil office under the authority of the United States.
Seventh. The same person shall not be elected President of the United States a second time; nor shall the President be elected from the same State two terms in succession.
Resolved. That if the application of these States to the government of the United States, recommended in a foregoing Resolution, should be unsuccessful, and peace should not be concluded, and the defence of these States should be neglected, as it has been since the commencement of the war, it will in the opinion of this Convention be expedient for the Legislatures of the several States to appoint Delegates to another Convention, to meet at Boston, in the State of Massachusetts, on the third Thursday of June next, with such powers and instructions as the exigency of a crisis so momentous may require.
Resolved, That the Hon. George Cabot, the Hon. Chauncey Goodrich, and the Hon. Daniel Lyman, or any two of them, be authorized to call another meeting of this Convention, to be holden in Boston, at any time before new Delegates shall be chosen, as recommended in the above Resolution, if in their judgment the situation of the Country shall urgently require it.
Hartford, January 4th, 1814.
- George Cabot,
- James Hillhouse,
- Nathan Dane,
- John Treadwell,
- William Prescott,
- Zephaniah Swift,
- Harrison G. Otis,
- Nathaniel Smith,
- Timothy Bigelow,
- Calvin Goddard,
- Joshua Thomas,
- Roger M. Sherman,
- Samuel S. Wilde,
- Daniel Lyman,
- Joseph Lyman,
- Samuel Ward,
- Stephen Longfellow, Jr
- Edward Manton,
- Daniel Waldo,
- Benjamin Hazard,
- Hodijah Baylies,
- Benjamin West,
- George Bliss,
- Mills Olcott,
- Chauncey Goodrich,
- William Hall, Jr.
Commentaries on the Constitution of the United States
A Familiar Exposition of the Constitution of the United States
Seven years after the first publication of Commentaries on the Constitution of the United States, Story published a version for high school and college students under the title A Familiar Exposition of the Constitution of the United States. Selections here, taken from both the Commentaries and Familiar Exposition, concern the Constitution’s Supremacy Clause—establishing that federal laws shall be accepted as the law of the land whenever they come in conflict with any state’s laws.
Commentaries on the Constitution of the United States
Supremacy of Laws
§1830. The next clause [in the Constitution] is “This constitution, and the laws of the United States, which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land. And the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding.”
§1831. The propriety of this clause would seem to result from the very nature of the constitution. If it was to establish a national government, that government ought, to the extent of its powers and rights, to be supreme. It would be a perfect solecism to affirm, that a national government should exist with certain powers; and yet, that in the exercise of those powers it should not be supreme. What other inference could have been drawn, than of their supremacy, if the constitution had been totally silent? And surely a positive affirmance of that, which is necessarily implied, cannot in a case of such vital importance be deemed unimportant. The very circumstance, that a question might be made, would irresistibly lead to the conclusion, that it ought not to be left to inference. A law, by the very meaning of the term, includes supremacy. It is a rule, which those, to whom it is prescribed, are bound to observe. This results from every political association. If individuals enter into a state of society, the laws of that society must be the supreme regulator of their conduct. If a number of political societies enter into a larger political society, the laws, which the latter may enact, pursuant to the powers entrusted to it by its constitution, must necessarily be supreme over those societies, and the individuals, of whom they are composed. It would otherwise be a mere treaty, dependent upon the good faith of the parties, and not a government, which is only another name for political power and supremacy. But it will not follow, that acts of the larger society, which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. They will be merely acts of usurpation, and will deserve to be treated as such. Hence we perceive, that the above clause only declares a truth, which flows immediately and necessarily from the institution of a national government. It will be observed, that the supremacy of the laws is attached to those only, which are made in pursuance of the constitution; a caution very proper in itself, but in fact the limitation would have arisen by irresistible implication, if it had not been expressed.
§1832. In regard to treaties, there is equal reason, why they should be held, when made, to be the supreme law of the land. It is to be considered, that treaties constitute solemn compacts of binding obligation among nations; and unless they are scrupulously obeyed, and enforced, no foreign nation would consent to negotiate with us; or if it did, any want of strict fidelity on our part in the discharge of the treaty stipulations would be visited by reprisals, or war. It is, therefore, indispensable, that they should have the obligation and force of a law, that they may be executed by the judicial power, and be obeyed like other laws. This will not prevent them from being cancelled or abrogated by the nation upon grave and suitable occasions; for it will not be disputed, that they are subject to the legislative power, and may be repealed, like other laws, at its pleasure; or they may be varied by new treaties. Still, while they do subsist, they ought to have a positive binding efficacy as laws upon all the states, and all the citizens of the states. The peace of the nation, and its good faith, and moral dignity, indispensably require, that all state laws should be subjected to their supremacy. The difference between considering them as laws, and considering them as executory, or executed contracts, is exceedingly important in the actual administration of public justice. If they are supreme laws, courts of justice will enforce them directly in all cases, to which they can be judicially applied, in opposition to all state laws, as we all know was done in the case of the British debts secured by the treaty of 1783, after the constitution was adopted. If they are deemed but solemn compacts, promissory in their nature and obligation, courts of justice may be embarrassed in enforcing them, and may be compelled to leave the redress to be administered through other departments of the government. It is notorious, that treaty stipulations (especially those of the treaty of peace of 1783) were grossly disregarded by the states under the confederation. They were deemed by the states, not as laws, but like requisitions, of mere moral obligation, and dependent upon the good will of the states for their execution. Congress, indeed, remonstrated against this construction, as unfounded in principle and justice. But their voice was not heard. Power and right were separated; the argument was all on one side; but the power was on the other. It was probably to obviate this very difficulty, that this clause was inserted in the constitution; and it would redound to the immortal honour of its authors, if it had done no more, than thus to bring treaties within the sanctuary of justice, as laws of supreme obligation. There are, indeed, still cases, in which courts of justice can administer no effectual redress; as when the terms of a stipulation import a contract, when either of the parties engages to perform a particular act the treaty addresses itself to the political, and not to the judicial, department; and the legislature must execute the contract, before it can become a rule for the courts.
§1833. It is melancholy to reflect, that, conclusive as this view of the subject is in favour of the supremacy clause, it was assailed with great vehemence and zeal by the adversaries of the constitution; and especially the concluding clause, which declared the supremacy, “any thing in the constitution or laws of any state to the contrary notwithstanding.” And yet this very clause was but an expression of the necessary meaning of the former clause, introduced from abundant caution, to make its obligation more strongly felt by the state judges. The very circumstance, that any objection was made, demonstrated the utility, nay the necessity of the clause, since it removed every pretence, under which ingenuity could, by its miserable subterfuges, escape from the controlling power of the constitution.
§1834. To be fully sensible of the value of the whole clause, we need only suppose for a moment, that the supremacy of the state constitutions had been left complete by a saving clause in their favour. “In the first place, as these constitutions invest the state legislatures with absolute sovereignty, in all cases not excepted by the existing articles of confederation, all the authorities contained in the proposed constitution, so far as they exceed those enumerated in the confederation, would have been annulled, and the new congress would have been reduced to the same impotent condition with their predecessors. In the next place, as the constitutions of some of the states do not even expressly and fully recognize the existing powers of the confederacy, an express saving of the supremacy of the former would, in such states, have brought into question every power contained in the proposed constitution. In the third place, as the constitutions of the states differ much from each other, it might happen, that a treaty or national law, of great and equal importance to the states, would interfere with some, and not with other constitutions, and would consequently be valid in some of the states, at the same time, that it would have no effect in others. In fine, the world would have seen, for the first time, a system of government founded on an inversion of the fundamental principles of all government; it would have seen the authority of the whole society everywhere subordinate to the authority of the parts; it would have seen a monster, in which the head was under the direction of the members.”
§1835. At an early period of the government a question arose, how far a treaty could embrace commercial regulations, so as to be obligatory upon the nation, and upon congress. It was debated with great zeal and ability in the house of representatives. On the one hand it was contended, that a treaty might be made respecting commerce, as well as upon any other subject; that it was a contract between the two nations, which, when made by the president, by and with the consent of the senate, was binding upon the nation; and that a refusal of the house of representatives to carry it into effect was breaking the treaty, and violating the faith of the nation. On the other hand, it was contended, that the power to make treaties, if applicable to every object, conflicted with powers, which were vested exclusively in congress; that either the treaty making power must be limited in its operation, so as not to touch objects committed by the constitution to congress; or the assent and co-operation of the house of representatives must be required to give validity to any compact, so far as it might comprehend these objects: that congress was invested with the exclusive power to regulate commerce; that therefore, a treaty of commerce required the assent and co-operation of the house of representatives; that in every case, where a treaty required an appropriation of money, or an act of congress to carry it into effect, it was not in this respect obligatory, till congress had agreed to carry it into effect; and, that they were at free liberty to make, or withhold such appropriation, or act, without being chargeable with violating the treaty, or breaking the faith of the nation. In the result, the house of representatives adopted a resolution declaring, that the house of representatives do not claim any agency in making treaties; but when a treaty stipulates regulations on any of the subjects submitted to the power of congress, it must depend for its execution, as to such stipulations, on a law or laws to be passed by congress; and that it is the constitutional right and duty of the house of representatives, in all such cases, to deliberate on the expediency or inexpediency of carrying such treaty into effect, and to determine and act thereon, as in their judgment may be most conducive to the public good. It is well known, that the president and the senate, on that occasion, adopted a different doctrine, maintaining, that a treaty once ratified became the law of the land, and congress were constitutionally bound to carry it into effect. At the distance of twenty years, the same question was again presented for the consideration of both houses, upon a bill to carry into effect a clause in the treaty of 1815 with Great Britain, abolishing discriminating duties; and, upon that occasion, it was most ably debated. The result was, that a declaratory clause was adopted, instead of a mere enacting clause, so that the binding obligation of treaties was affirmatively settled.
§1836. From this supremacy of the constitution and laws and treaties of the United States, within their constitutional scope, arises the duty of courts of justice to declare any unconstitutional law passed by congress or by a state legislature void. So, in like manner, the same duty arises, whenever any other department of the national or state governments exceeds its constitutional functions. But the judiciary of the United States has no general jurisdiction to declare acts of the several states void, unless they are repugnant to the constitution of the United States, notwithstanding they are repugnant to the state constitution. Such a power belongs to it only, when it sits to administer the local law of a state, and acts exactly, as a state tribunal is bound to act. But upon this subject it seems unnecessary to dwell, since the right of all courts, state as well as national, to declare unconstitutional laws void, seems settled beyond the reach of judicial controversy.
A Familiar Exposition of the Constitution of the United States
General Power to make Necessary and Proper Laws
§206. The next power of Congress is, “to make all laws, which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department, or officer thereof.”
§207. This clause is merely declaratory of a truth, which would have resulted by necessary implication from the act of establishing a National Government, and investing it with certain powers. If a power to do a thing is given, it includes the use of the means, necessary and proper, to execute it. If it includes any such means, it includes all such means; for none can, more correctly than others, be said exclusively to appertain to the power; and the choice must depend upon circumstances, to be judged of by Congress. What is a power, but the ability or faculty of doing a thing? What is the ability to do a thing, but the power of employing the means necessary to its execution? What is a legislative power, but a power of making laws? What are the means to execute a legislative power, but laws? What is the power, for instance, of laying and collecting taxes, but a legislative power, or a power to make laws to lay and collect taxes? What are the proper means of executing such a power, but necessary and proper laws? In truth, the constitutional operation of the government would be precisely the same, if the clause were obliterated, as if it were repeated in every article. It would otherwise result, that the power could never be exercised; that is, the end would be required, and yet no means allowed. This would be a perfect absurdity. It would be to create powers, and compel them to remain for ever in a torpid, dormant, and paralytic state. It cannot, therefore, be denied, that the powers, given by the Constitution, imply the ordinary means of execution; for, without the substance of the power, the Constitution would be a dead letter. If it should be asked, why, then, was the clause inserted in the Constitution; the answer is, that it is peculiarly useful, in order to avoid any doubt, which ingenuity or jealousy might raise upon the subject. There was also a clause in the Articles of Confederation, which restrained the authority of Congress to powers expressly granted; and, therefore, it was highly expedient to make an explicit declaration, that that rule of interpretation, which had been the source of endless embarrassments under the Confederation, should no longer prevail. The Continental Congress had been compelled, in numerous instances, to disregard that limitation, in order to escape from the most absurd and distressing consequences. They had been driven to the dangerous experiment of violating the Confederation, in order to preserve it.
§208. The plain import of the present clause is, that Congress shall have all the incidental and instrumental powers, necessary and proper to carry into execution the other express powers; not merely such as are indispensably necessary in the strictest sense, (for then the word “proper” ought to have been omitted,) but such also as are appropriate to the end required. Indeed, it would otherwise be difficult to give any rational interpretation to the clause; for it can scarcely be affirmed, that one means only exists to carry into effect any of the given powers; and if more than one should exist, then neither could be adopted, because neither could be shown to be indispensably necessary. The clause, in its just sense, then, does not enlarge any other power, specifically granted; nor is it the grant of any new power. It is merely a declaration, to remove all uncertainty, that every power is to be so interpreted, as to include suitable means to carry it into execution. The very controversies, which have since arisen, and the efforts, which have since been made, to narrow down the just interpretation of the clause, demonstrate its wisdom and propriety. The practice of the government, too, has been in conformity to this view of the matter. There is scarcely a law of Congress, which does not include the exercise of implied powers and means. This might be illustrated by abundant examples. Under the power “to establish post offices and post roads,” Congress have proceeded to make contracts for the carriage of the mail, have punished offences against the establishment, and have made an infinite variety of subordinate provisions, not one of which is found expressly authorized in the Constitution. A still more striking case of implied power is, that the United States, as a government, have no express authority given to make any contracts; and yet it is plain, that the government could not go on for an hour without this implied power.
§209. There are many other cases, in which Congress have acted upon implied powers, some of which have given rise to much political discussion, and controversy; but it is not within the design of this work to examine those cases, or to express any opinion respecting them. It is proper, however, that the reader should be apprized, that among them, are the questions respecting the power of Congress to establish a national bank; to make national roads, canals, and other internal national improvements; to purchase cessions of foreign territory, (such, for example, as Louisiana and Florida;) to lay embargoes, without any fixed limitation of the time of their duration; and to prohibit intercourse or commerce with a foreign nation for an unlimited period.
§210. And here terminates the eighth section of the Constitution professing to enumerate the powers of Congress. But there are other clauses, delegating express powers, which, though detached from their natural connection in that instrument, should be here brought under review, in order to complete the enumeration.
Prohibitions on the United States
§221. We next come to the consideration of the prohibitions and limitations upon the powers of Congress, which are contained in the ninth section of the first article, passing by such, as have been already incidentally discussed.
§222. The first clause is, “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 eighteen hundred and eight. But a tax or duty may be imposed upon such importation, not exceeding ten dollars for each person.”
§223. This clause, as is manifest from its language, was designed solely to reserve to the Southern States, for a limited period, the right to import slaves. It is to the honor of America, that she should have set the first example of interdicting and abolishing the slave trade, in modern times. It is well known, that it constituted a grievance, of which some of the Colonies complained, before the Revolution, that the introduction of slaves was encouraged by the parent country, and that the prohibitory laws, passed by the Colonies, were negatived by the Crown. It was, doubtless, desirable, that the importation of slaves should have been at once interdicted throughout the Union. But it was indispensable to yield something to the prejudices, the wishes, and the supposed interests of the South. And it ought to be considered as a great point gained, in favor of humanity, that a period of twenty years should enable Congress to terminate, in America, (as Congress in fact have terminated the African slave trade,) a traffic, which has so long and so loudly upbraided the morals and justice of modern nations.
§224. The next clause is, “The privilege of the writ of habeas corpus shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it.” In order to understand the exact meaning of the terms here used, recourse must be had to the common law. The writ of habeas corpus, here spoken of, is a writ known to the common law, and used in all cases of confinement, or imprisonment of any party, in order to ascertain whether it is lawful or not. The writ commands the person, who detains the party, to produce his body, with the day and cause of his detention, before the Court or Judge, who issues the writ, to do, submit to, and receive, whatever the Court or Judge shall direct at the hearing. It is hence called the writ of habeas corpus ad subjiciendum, from the effective words of the writ, (when it was issued, as it originally was, in the Latin language) that you (the person, detaining the party,) have the body (habeas corpus) to submit (ad subjiciendum) to the order of the Court or Judge. And if the cause of detention is found to be insufficient, or illegal, the party is immediately set at liberty by the order of the Court or Judge. It is justly, therefore, esteemed the great bulwark of personal liberty, and is grantable, as a matter of right, to the party imprisoned. But as it had often, for frivolous reasons of state, been suspended or denied in the parent country, to the grievous oppression of the subject, it is made a matter of constitutional right in all cases, except when the public safety may, in cases of rebellion or invasion, require it. The exception is reasonable, since cases of great urgency may arise, in which the suspension may be indispensable for the preservation of the liberties of the country against traitors and rebels.
§225. The next clause is, “No bill of attainder, or ex post facto law, shall be passed.” A bill of attainder, in its technical sense, is an act passed by the legislature, convicting a person of some crime, for which it inflicts upon him, without any trial, the punishment of death. If it inflicts a milder punishment, it is usually called a bill of pains and penalties. Such acts are in the highest degree objectionable, and tyrannical, since they deprive the party of any regular trial by jury, and deprive him of his life, liberty, and property, without any legal proof of his guilt. In a republican government, such a proceeding is utterly inconsistent with first principles. It would be despotism in its worst form, by arming a popular Legislature with the power to destroy, at its will, the most virtuous and valuable citizens of the state.
§226. To the same class, belong ex post facto laws, that is, (in a literal interpretation of the phrase,) laws made after the act is done. In a general sense, all retrospective laws are ex post facto; but the phrase is here used to designate laws to punish, as public offences, acts, which, at the time when they were done, were lawful, or were not public crimes, or, if crimes, which were not liable to so severe a punishment. It requires no reasoning to establish the wisdom of a prohibition, which puts a fixed restraint upon such harsh legislation. In truth, the existence of such a power in a legislature is utterly incompatible with all just notions of the true ends and objects of a republican government.
§227. The next clause (not already commented on) is, “No money shall be drawn from the treasury, but in consequence of appropriations made by law. And a regular statement and account of the receipts and expenditures of all public money shall be published from time to time.” The object of this clause is, to secure regularity, punctuality, fidelity, and responsibility, in the keeping and disbursement of the public money. No money can be drawn from the treasury by any officer, unless under appropriations made by some act of Congress. As all the taxes raised from the people, as well as the revenues arising from other sources, are to be applied to the discharge of the expenses, and debts, and other engagements of the government, it is highly proper, that Congress should possess the power to decide, how and when any money should be applied for these purposes. If it were otherwise, the Executive would possess an unbounded power over the public purse of the nation; and might apply all its monied resources at his pleasure. The power to control and direct the appropriations, constitutes a most useful and salutary check upon profusion and extravagance, as well as upon corrupt influence and public peculation In arbitrary governments, the prince levies what money he pleases from his subjects, disposes of it, as he thinks proper, and is beyond responsibility or reproof. It is wise, in a republic, to interpose every restraint, by which the public treasure, the common fund of all, should be applied, with unshrinking honesty, to such objects, as legitimately belong to the common defence, and the general welfare. Congress is made the guardian of this treasure; and, to make their responsibility complete and perfect, a regular account of the receipts and expenditures is required to be published, that the people may know, what money is expended, for what purposes, and by what authority.
§228. The next clause is, “No title of nobility shall be granted by the United States; and no person, holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign state.” A perfect equality of rights, privileges, and rank, being contemplated by the Constitution among all citizens, there is a manifest propriety in prohibiting Congress from creating any titles of nobility. The other prohibition, as to presents, emoluments, offices, and titles from foreign governments, besides aiding the same general object, subserves a more important policy, founded on the just jealousy of foreign corruption and undue influence exerted upon our national officers. It seeks to destroy, in their origin, all the blandishments from foreign favors, and foreign titles, and all the temptations to a departure from official duty by receiving foreign rewards and emoluments. No officer of the United States can without guilt wear honors borrowed from foreign sovereigns, or touch for personal profit any foreign treasure.
Prohibitions on the States
§229. Such are the prohibitions upon the government of the United States. And we next proceed to the prohibitions upon the States, which are not less important in themselves, or less necessary to the security of the Union. They are contained in the tenth section of the first article.
§230. The first clause is, “No State shall enter into any treaty, alliance, or confederation; grant letters of marque or reprisal; coin money; emit bills of credit; make any thing but gold or silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts; or grant any title of nobility.”
§231. The prohibition against a State’s entering into any treaty, alliance or confederation, is indispensable to the preservation of the rights and powers of the National Government. A State might otherwise enter into engagements with foreign governments, utterly subversive of the policy of the National Government, or injurious to the rights and interests of the other States. One State might enter into a treaty or alliance with France, and another with England, and another with Spain, and another with Russia,—each in its general objects inconsistent with the other; and thus, the seeds of discord might be spread over the whole Union.
§232. The prohibition to “grant letters of marque and reprisal” stands on the same ground. This power would hazard the peace of the Union by subjecting it to the passions, resentments, or policy of a single State. If any State might issue letters of marque or reprisal at its own mere pleasure, it might at once involve the whole Union in a public war; or bring on retaliatory measures by the foreign government, which might cripple the commerce, or destroy the vital interests of other States. The prohibition is, therefore, essential to the public safety.
§233. The prohibition to “coin money” is necessary to our domestic interests. The existence of the power in the States would defeat the salutary objects intended, by confiding the like power to the National Government. It would have a tendency to introduce a base and variable currency, perpetually liable to frauds, and embarrassing to the commercial intercourse of the States.
§234. The prohibition to “emit bills of credit.”— Bills of credit are a well-known denomination of paper money, issued by the Colonies before the Revolution, and afterwards by the States, in a most profuse degree. These bills of credit had no adequate funds appropriated to redeem them; and though on their face they were often declared payable in gold and silver, they were in fact never so paid. The consequence was, that they became the common currency of the country, in a constantly depreciating state, ruinous to the commerce and credit, and disgraceful to the good faith of the country. The evils of the system were of a most aggravated nature, and could not be cured, except by an entire prohibition of any future issues of paper money. And, indeed, the prohibition to coin money would be utterly nugatory, if the States might still issue a paper currency for the same purpose.
§235. But the inquiry here naturally occurs; What is the true meaning of the phrase “bills of credit” in the Constitution? In its enlarged, and perhaps in its literal sense, it may comprehend any instrument, by which a State engages to pay money at a future day, (and, of course, for which it obtains a present credit;) and thus it would include a certificate given for money borrowed. But the language of the Constitution itself, and the mischief to be prevented, which we know from the history of our country, equally limit the interpretation of the terms. The word “emit” is never employed in describing those contracts, by which a State binds itself to pay money at a future day for services actually received, or for money borrowed for present use. Nor are instruments, executed for such purposes, in common language denominated “bills of credit.” To emit bills of credit, conveys to the mind the idea of issuing paper, intended to circulate through the community for ordinary purposes, as money, which paper is redeemable at a future day. This is the sense, in which the terms of the Constitution have been generally understood. The phrase (as we have seen) was well known, and generally used to indicate the paper currency, issued by the States during their colonial dependence. During the war of our Revolution, the paper currency issued by Congress was constantly denominated, in the acts of that body, bills of credit; and the like appellation was applied to similar currency issued by the States. The phrase had thus acquired a determinate and appropriate meaning. At the time of the adoption of the Constitution, bills of credit were universally understood to signify a paper medium intended to circulate between individuals, and between government and individuals, for the ordinary purposes of society. Such a medium has always been liable to considerable fluctuation. Its value is continually changing; and these changes, often great and sudden, expose individuals to immense losses, are the sources of ruinous speculations, and destroy all proper confidence between man and man. In no country, more than our own, had these truths been felt in all their force. In none, had more intense suffering, or more wide-spreading ruin accompanied the system. It was, therefore, the object of the prohibition to cut up the whole mischief by the roots, because it had been deeply felt throughout all the States, and had deeply affected the prosperity of all. The object of the prohibition was not to prohibit the thing, when it bore a particular name; but to prohibit the thing, whatever form or name it might assume. If the words are not merely empty sounds, the prohibition must comprehend the emission of any paper medium by a State government for the purposes of common circulation. It would be preposterous to suppose, that the Constitution meant solemnly to prohibit an issue under one denomination, leaving the power complete to issue the same thing under another. It can never be seriously contended, that the Constitution means to prohibit names, and not things; to deal with shadows, and to leave substances. What would be the consequence of such a construction? That a very important act, big with great and ruinous mischief, and on that account forbidden by words the most appropriate for its description, might yet be performed by the substitution of a name. That the Constitution, even in one of its vital provisions, might be openly evaded by giving a new name to an old thing. Call the thing a bill of credit, and it is prohibited. Call the same thing a certificate, and it is constitutional.
§236. Connected with this, is the prohibition, No State shall “make any thing but gold and silver coin a tender in payment of debts.” The history of the State laws on this subject, while we were Colonies, as well as during the Revolution, and afterwards before the adoption of the Constitution, is startling at once to our morals, to our patriotism, and to our sense of justice. In the intermediate period between the commencement of the Revolutionary War, and the adoption of the Constitution, the system had attained its most appalling character. Not only was paper money declared to be a tender in payment of debts; but other laws, having the same general object, and interfering with private debts, under the name of appraisement laws, instalment laws, and suspension laws, thickened upon the statute book of many States in the Union, until all public confidence was lost, and all private credit and morals were prostrated. The details of the evils, resulting from this source, can scarcely be comprehended in our day. But they were so enormous, that the whole country seemed involved in a general bankruptcy; and fraud and chicanery obtained an undisputed mastery. Nothing but an absolute prohibition, like that contained in the Constitution, could arrest the overwhelming flood; and it was accordingly hailed with the most sincere joy by all good citizens. It has given us that healthy and sound currency, and that solid private credit, which constitute the true foundation of our prosperity, industry, and enterprise.
§237. The prohibition, to “pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts,” requires scarcely any vindication or explanation, beyond what has been already given. The power to pass bills of attainder, and ex post facto laws, (the nature of which has been already sufficiently explained,) is quite as unfit to be intrusted to the States, as to the General Government. It was exercised by the States during the Revolutionary War, in the shape of confiscation laws, to an extent, which, upon cool reflection, every sincere patriot must regret. Laws “impairing the obligation of contracts” are still more objectionable. They interfere with, and disturb, and destroy, private rights, solemnly secured by the plighted faith of the parties. They bring on the same ruinous effects, as paper tender laws, instalment laws, and appraisement laws, which are but varieties of the same general noxious policy. And they have been truly described, as contrary to the first principles of the social compact and to every principle of sound legislation.
§238. Although the language of this clause, “law impairing the obligation of contracts,” would seem, at first view, to be free from any real ambiguity; yet there is not perhaps a single clause of the Constitution, which has given rise to more acute and vehement controversy. What is a contract? What is the obligation of a contract? What is impairing a contract? To what classes of laws does the prohibition apply? To what extent does it reach, so as to control prospective legislation on the subject of contracts? These and many other questions, of no small nicety and intricacy, have vexed the legislative halls, as well as the judicial tribunals, with an uncounted variety and frequency of litigation and speculation.
§239. In the first place, What is to be deemed a contract, in the constitutional sense of this clause? A contract is an agreement to do, or not to do, a particular thing; or (as was said on another occasion) a contract is a compact between two or more persons. A contract is either executory, or executed. An executory contract is one, in which a party binds himself to do, or not to do, a particular thing. An executed contract is one, in which the object of the contract is performed. This differs in nothing from a grant; for a contract executed conveys a thing in possession; a contract executory conveys only a thing in action. Since, then, a grant is in fact a contract executed, the obligation of which continues; and since the Constitution uses the general term, contract, without distinguishing between those, which are executory, and those, which are executed; it must be construed to comprehend the former, as well as the latter. A State law, therefore, annulling conveyances between individuals, and declaring, that the grantors shall stand seized of their former estates, notwithstanding those grants, would be as repugnant to the Constitution, as a State law, discharging the vendors from the obligation of executing their contracts of sale by conveyances. It would be strange, indeed, if a contract to convey were secured by the Constitution, while an absolute conveyance remained unprotected. That the contract, while executory, was obligatory; but when executed, might be avoided.
§240. Contracts, too, are express, or implied. Express contracts are, where the terms of the agreement are openly avowed, and uttered at the time of the making of them. Implied contracts are such, as reason and justice dictate from the nature of the transaction, and which, therefore, the law presumes, that every man undertakes to perform. The Constitution makes no distinction between the one class of contracts and the other. It then equally embraces, and equally applies to both. Indeed, as by far the largest class of contracts in civil society, in the ordinary transactions of life, are implied, there would be very little object in securing the inviolability of express contracts, if those, which are implied, might be impaired by State legislation. The Constitution is not chargeable with such folly, or inconsistency. Every grant, in its own nature, amounts to an extinguishment of the right of the grantor, and implies a contract not to reassert it. A party is, therefore, always estopped by his own grant. How absurd would it be to provide, that an express covenant by a party, as a muniment attendant upon the estate, should bind him for ever, because executory, and resting in action; and yet, that he might reassert his title to the estate, and dispossess his grantee, because there was only an implied covenant not to reassert it.
§241. In the next place, What is the obligation of a contract? It seems agreed, that, when the obligation of contracts is spoken of in the Constitution, we are to understand, not the mere moral, but the legal obligation of contracts. The moral obligation of contracts is, so far as human society is concerned, of an imperfect kind, which the parties are left free to obey or not, as they please. It is addressed to the conscience of the parties, under the solemn admonitions of accountability to the Supreme Being. No human lawgiver can either impair, or reach it. The Constitution has not in contemplation any such obligations, but such only, as might be impaired by a State, if not prohibited. It is the civil obligation of contracts, which it is designed to reach, that is, the obligation, which is recognised by, and results from, the law of the State, in which it is made. If, therefore, a contract, when made, is by the law of the State declared to be illegal, or deemed to be a nullity, or a naked pact, or promise, it has no civil obligation; because the law, in such cases, forbids its having any binding efficacy, or force. It confers no legal right on the one party, and no correspondent legal duty on the other. There is no means allowed, or recognised to enforce it; for the maxim is, that from a mere naked promise no action arises. But when it does not fall within the predicament of being either illegal, or void, its obligatory force is coextensive with its stipulations.
§242. Nor is this obligatory force so much the result of the positive declarations of the municipal law, as of the general principles of natural, or (as it is sometimes called) universal, law. In a state of nature, independent of the obligations of positive law, contracts may be formed, and their obligatory force be complete. Between independent nations, treaties and compacts are formed, which are deemed universally obligatory; and yet in no just sense can they be deemed dependent on municipal law. Nay, there may exist (abstractly speaking) a perfect obligation in contracts, where there is no known and adequate means to enforce them. As, for instance, between independent nations, where their relative strength and power preclude the possibility, on the side of the weaker party, of enforcing them. So, in the same government, where a contract is made by a State with one of its own citizens, which yet its laws do not permit to be enforced by any action or suit. In this predicament are the United States, who are not suable on any contract made by themselves; but no one doubts, that these are still obligatory on the United States. Yet their obligation is not recognised by any positive municipal law, in a great variety of cases. It depends altogether upon principles of public or universal law. Still, in these cases, there is a right in the one party to have the contract performed, and a duty on the other side to perform it. But, generally speaking, when we speak of the obligation of a contract, we include in the idea some known means acknowledged by the municipal law to enforce it. Where all such means are absolutely denied, the obligation of the contract is understood to be impaired, although it may not be completely annihilated. Rights may, indeed, exist, without any present adequate correspondent remedies between private persons. Thus, a State may refuse to allow imprisonment for debt; and the debtor may have no property. But still the right of the creditor remains; and he may enforce it against the future property of the debtor. So, a debtor may die without leaving any known estate, or without any known representative. In such cases, we should not say, that the right of the creditor was gone; but only, that there was nothing, on which it could presently operate. But suppose an administrator should be appointed, and property in contingency should fall in, the right might then be enforced to the extent of the existing means.
§243. The civil obligation of a contract, then, although it can never arise, or exist, contrary to positive law, may arise or exist independently of it; and it may be, exist, notwithstanding there may be no present adequate remedy to enforce it. Wherever the municipal law recognises an absolute duty to perform a contract, there the obligation to perform it is complete, although there may not be a perfect remedy.
§244. In the next place, What may properly be deemed impairing the obligation of contracts, in the sense of the Constitution? It is perfectly clear, that any law, which enlarges, abridges, or in any manner changes the intention of the parties, resulting from the stipulations in the contract, necessarily impairs it. The manner or degree, in which this change is effected, can in no respect influence the conclusion; for, whether the law affect the validity, the construction, the duration, the discharge, or the evidence of the contract, it impairs its obligation, although it may not do so, to the same extent, in all the supposed cases. Any deviation from its terms, by postponing, or accelerating the period of performance, which it prescribes, or by imposing conditions not expressed in the contract, or by dispensing with the performance of those, which are a part of the contract, however minute, or apparently immaterial in their effects upon it, impairs its obligation. A fortiori, a law, which makes the contract wholly invalid, or extinguishes, or releases it, is a law impairing it. Nor is this all. Although there is a distinction between the obligation of a contract, and a remedy upon it; yet if there are certain remedies existing at the time, when it is made, all of which are afterwards wholly extinguished by new laws, so that there remain no means of enforcing its obligation, and no redress for its violation; such an abolition of all remedies, operating immediately, is also an impairing of the obligation of such contract. But every change and modification of the remedy does not involve such a consequence. No one will doubt, that the Legislature may vary the nature and extent of remedies, so always, that some substantive remedy be in fact left. Nor can it be doubted, that the Legislature may prescribe the times and modes, in which remedies may be pursued; and bar suits, not brought within such periods, and not pursued in such modes. Statutes of limitations are of this nature; and have never been supposed to destroy the obligation of contracts, but to prescribe the times, within which that obligation shall be enforced by a suit; and in default thereof, to deem it either satisfied, or abandoned. The obligation to perform a contract is coeval with the undertaking to perform it. It originates with the contract itself, and operates anterior to the time of performance. The remedy acts upon the broken contract, and enforces a preexisting obligation. And a State Legislature may discharge a party from imprisonment upon a judgement in a civil case of contract, without infringing the Constitution; for this is but a modification of the remedy, and does not impair the obligation of the contract. So, if a party should be in jail, and give a bond for the prison liberties, and to remain a true prisoner, until lawfully discharged, a subsequent discharge by an act of the Legislature would not impair the contract; for it would be a lawful discharge in the sense of the bond.
§245. These general considerations naturally conduct us to some more difficult inquiries growing out of them; and upon which there has been a very great diversity of judicial opinion. The great object of the framers of the Constitution undoubtedly was, to secure the inviolability of contracts. This principle was to be protected in whatever form it might be assailed. No enumeration was attempted to be made of the modes, by which contracts might be impaired. It would have been unwise to have made such an enumeration, since it might have been defective; and the intention was to prohibit every mode or device for such purpose. The prohibition was universal.
§246. The question has arisen, and has been most elaborately discussed, how far the States may constitutionally pass an insolvent law, which shall discharge the obligation of contracts. It is not doubted, that the States may pass insolvent laws, which shall discharge the person, or operate in the nature of a cessio bonorum, or a surrender of all the debtor’s property, provided such laws do not discharge, or intermeddle with, the obligation of contracts. Nor is it denied, that insolvent laws, which discharge the obligation of contracts, made antecedently to their passage, are unconstitutional. But the question is how far the States may constitutionally pass insolvent laws, which shall operate upon, and discharge contracts, which are made subsequently to their passage. After the most ample argument, it has at length been settled, by a majority of the Supreme Court, that the States may constitutionally pass such laws operating upon future contracts, although not upon past.
§247. The remaining prohibition is, to “grant any title of nobility,” which is supported by the same reasoning as that already suggested, in considering the like prohibition upon the National Government.
§248. The next clause, omitting the prohibition (already cited) to lay any imposts or duties on imports or exports, is, “No State shall, without the consent of Congress, lay any duty on tonnage; keep troops, or ships of war, in time of peace; enter into any agreement or compact with another State, or with a foreign power; or engage in war unless actually invaded, or in such imminent danger, as will not admit of delay.” That part, which respects tonnage duties, has been already considered. The other parts have the same general policy in view, which dictated the preceding restraints upon State power. To allow the States to keep troops, or ships of war, in time of peace, might be hazardous to the public peace or safety, or compel the National Government to keep up an expensive corresponding force. To allow the States to enter into agreements with each other, or with foreign nations, might lead to mischievous combinations, injurious to the general interests, and bind them into confederacies of a geographical or sec-tional character. To allow the States to engage in war, unless compelled so to do in self-defence and upon sudden emergencies, would be (as has been already stated) to put the peace and safety of all the States in the power and discretion of any one of them. But an absolute prohibition of all these powers might, in certain exigencies, be inexpedient, and even mischievous; and, therefore, Congress may, by their consent, authorize the exercise of any of them, whenever, in their judgement, the public good shall require it.
§249. We have thus passed through the positive prohibitions introduced upon the powers of the States. It will be observed, that they divide themselves into two classes; those, which are political in their character, as an exercise of sovereignty; and those, which more especially regard the private rights of individuals. In the latter, the prohibition is absolute and universal. In the former, it is sometimes absolute, and sometimes subjected to the consent of Congress. It will, at once, be perceived, how full of difficulty and delicacy the task was, to reconcile the jealous tenacity of the States over their own sovereignty, with the permanent security of the National Government, and the inviolability of private rights. The task has been accomplished with eminent success. If every thing has not been accomplished, which a wise forecast might have deemed proper for the preservation of our national rights and liberties in all political events, much has been done to guard us against the most obvious evils, and to secure a wholesome administration of private justice. To have attempted more, would probably have endangered the whole fabric; and thus might have perpetuated the dominion of misrule and imbecility.
§250. It has been already seen, and it will hereafter more fully appear, that there are implied, as well as express, prohibitions in the Constitution upon the power of the States. Among the former, one clearly is, that no State can control, or abridge, or interfere with the exercise of any authority under the National Government. And it may be added, that State laws, as, for instance, State statutes of limitations, and State insolvent laws, have no operation upon the rights or contracts of the United States.
§251. And here end our commentaries upon the first article of the Constitution, embracing the organization and powers of the Legislative department of the government, and the prohibitions upon the State and National Governments. If we here pause, but for a moment, we cannot but be struck with the reflection, how admirably this division and distribution of legislative powers between the State and National Governments is adapted to preserve of the liberty, and to promote the happiness of the people of the United States. To the General Government are assigned all those powers, which relate to the common interests of all the States, as comprising one confederated nation; while to each State is reserved all those powers, which may affect, or promote its own domestic interests, its peace, its prosperity, its policy, and its local institutions. At the same time, such limitations and restraints are imposed upon each government, as experience has demonstrated to be wise to control any public functionaries, or as are indispensable to secure the harmonious operations of the Union.
Justice Iredell issued what is now generally termed the opinion of the Court; Justice Wilson’s more famous opinion was written separately but in concurrence with Iredell’s.—B. F.
Ar. 1. s. 1o.
The Darius of Daniel
In the mention of all these evils brought on the Romish hierarchy, I beg it may be remembered, that I am far from justifying the iniquitous conduct of their persecutors. I know not that any person holds it, and all other persecution, more in abhorence. Neither have I a doubt of the integrity and piety of multitudes of the unhappy sufferers. In my view they claim, and I trust will receive, the commiseration, and, as occasion offers, the kind offices of all men possessed even of common humanity.
The celebrated French Dictionary of Arts and Sciences, in which articles of theology were speciously and decently written, but, by references artfully made to other articles, all the truth of the former was entirely and insidiously overthrown to most readers, by the sophistry of the latter.
So far was this carried, that a Mr. Beauzet, a layman, but a sincere christian, who was one of the forty members, once asked D’Alembert how they came to admit him among them? D’Alembert answered, without hesitation, “I am sensible, this must seem astonishing to you; but we wanted a skilful grammarian, and among our party, not one had acquired a reputation in this line. We know that you believe in God, but, being a good sort of man, we cast our eyes upon you, for want of a philosopher to supply your place.” Brit. Crit. Art. Barruel’s Memoirs of the History of Jacobinism. August 1797.
The words philosophism and philosophists may in our opinion, be happily adapted, from this work, to designate the doctrines of the deistical sect; and thus to rescue the honourable terms of philosophy and philosopher from the abuse, into which they have fallen. Philosophism is the love of sophisms and thus completely describes the sect of Voltaire. A philosophist is a lover of sophists. Brit. Crit. Ibid.
See a four years Residence in France, lately published by Mr. Cornelius Davis of New-York. This is a most valuable and interesting work, and exhibits the French Revolution in a far more perfect light than any book I have seen. It ought to be read by every American.
See Journal of Convention, p. 222, 282, 293.
The Federalist, No. 33. See Gibbons v. Ogden, 9 Wheat. R. 210, 211; McCulloch v. Maryland, 4 Wheat. R. 405, 406.—This passage from the Federalist (No. 33) has been, for another purpose, already cited in Vol. I. § 340; but it is necessary to be here repeated to give due effect to the subsequent passages.
Ibid. See also 1 Tuck. Black. Comm. App. 369, 370.
See The Federalist, No. 64.
See Act of Congress, 7th July, 1798, ch. 84; Talbot v. Seeman, 1 Cranch, 1; Ware v. Hylton, 3 Dall. 361, Per Iredell J.
Ware v. Hylton, 3 Dall. R. 199. See also Gibbons v. Ogden+ 69, 9 Wheat. R. 210, 211; Letter of Congress of 13th April, 1787; 12 Journ. of Congress, 32.
See Iredell J.’s reasoning in Ware v. Hylton, 3 Dall. R. 270 to 277; 5 Marshall’s Life of Washington, ch. 8, p. 652, 656; 1 Wait’s State Papers, 45, 47, 71, 81, 145; Serg. on Const. ch. 21, p. 217, 218, ch. 33, p. 396, 397, (2d edit. ch. 21, p. 218, 219, ch. 34, p. 406, 407.)—“A treaty,” said the Supreme Court, in Foster v. Neilson, 2 Peters’s R. 314, “is in its nature a contract between two nations, not a legislative act. It does not generally effect of itself the object to be accomplished, especially so far, as its operation is infraterritorial; but is carried into execution by the sovereign power of the respective parties to the instrument. In the United States a different principle is established. Our constitution declares a treaty to be the law of the land. It is consequently to be regarded by courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision.”
Circular Letter of Congress, 13th April, 1787; 12 Journ. of Congress, 32 to 36.
See the opinion of Iredell J. in Ware v. Hylton, 3 Dall. 270 to 277.
Id. 276, 277. See Journal of Convention, p. 222, 282, 283, 293.
The importance of this power has been practically illustrated by the redress afforded by courts of law in cases pending before them upon treaty stipulations. See United States v. The Peggy, 1 Cranch, 103; Ware v. Hylton, 3 Dall. R. 199, 244, 261; United States v. Arradondo, 6 Peters’s R. 691; Soulard v. Smith, 4 Peters’s Sup. R. 511; Case of Jonathan Robbins, 1 Hall’s Journ. of Jurisp. 25; Bees Adm’rs Rep. 263; 5 Wheat. Rep. App.
Foster v. Neilson, 2 Peters’s Sup. R. 254, 314. See also the Bello Corunnes, 6 Wheat. R. 171; Serg. on Const. ch. 33, p. 397, 398, 399, (ch. 34, p. 407, 408, 409, 410, 2d edit.)
See The Federalist, No. 44, 64.
The Federalist, No. 44.
The question arose in the debate for carrying into effect the British Treaty of 1794.
See Journal of House of Representatives, 6th April, 1796; 5 Marshall’s Life of Washington, ch. 8, p. 650 to 659; Serg. on Const. ch. 33, p. 401, (2d edit. ch. 34, p. 410, 411); 1 Debates on British Treaty, by F. Bache, 1796, p. 374 to 386; 4 Elliot’s Deb. 244 to 248.—President Washington, on this occasion, refused to deliver the papers respecting the British Treaty of 1794, called for by the house of representatives; and asserted the obligatory force of the treaty upon congress in the most emphatic terms. He added, that he knew, that this was understood in the convention to be the intended interpretation, and he referred to the Journal of the Convention (see Journal of Convention, p. 284, 325, 326, 339, 342, 343) to show, that a proposition was made, “that no treaty should be binding on the United States, which was not ratified by a law;” and that it was explicitly rejected. (5 Marshall’s Life of Washington, ch. 8, p. 654 to 658.) At a much earlier period, viz. in 1790, the same point came before the cabinet of President Washington in a treaty proposed with the Creek Indians. Upon that occasion, there seems to have been no doubt in the minds of any of his cabinet of the conclusiveness of a treaty containing commercial stipulations. Mr. Jefferson, on that occasion, firmly maintained it. A treaty, (said he,) made by the president with the concurrence of two thirds of the senate is the law of the land, and a law of a superior order, because it not only repeals past laws, but cannot itself be repealed by future ones. The treaty then will legally control the duty act, and the act for securing traders in this particular instance. Yet Mr. Jefferson afterwards, (in Nov. 1793,) seems to have fluctuated in opinion, and to have been unsettled, as to the nature and extent of the treaty-making power. 4 Jefferson’s Corresp. 497, 498.
Serg. on Const. ch. 33, p. 402, (2d edit. ch. 34, p. 411) 2 Elliot’s Deb. 273 to 279.—Upon this occasion, a most admirable speech was delivered by the late William Pinkney, in which his great powers of reasoning and juridical learning had an ample scope. See Wheaton’s Life of Pinkney, p. 517.
Marbury v. Madison, 1 Cranch, 137, 176.
Calder v. Bull, 3 Dall. R. 386; S. C. 1 Peters’s Cond. R. 172, 177.
Satterlee v. Matthewson, 2 Peters’s Sup. R. 380, 413.
See Serg. on Const. ch. 33, p. 391, (2d edit. ch. 34, p. 401); 1 Kent’s Comm. Lect. 20, p. 420, 421, (2d edit. p. 448, 449, 450.)