Chapter L: TREZEVANT and W. TIMMONS, Esqs (5)

There was something in that record, Mr. N. said, which was very singular indeed; something which requires investigation; for unless the fact is different from what his information made it, a most extraordinary circumstance was connected with the third count. It will be seen, from the showing of the record, that the letter upon which the charge is founded, was written before the passage of the law on which the offence was tried. If he was not misinformed, no evidence was adduced in court to show that Mr. LYON did any act subsequent to the writing of his letter in the publication, and that though the thing appeared in print after the law took its effect, all that was done by the writer was done before the law was passed. He thought, therefore, before the House acted upon this subject, an inquiry ought to be had upon it. He did not know what were the wishes of the member from Vermont himself on this subject; he had not put the question to him, because he thought there was no offence contained in the record of which the House ought to take notice. He would say farther, that believing most religiously that the law against which the member from Vermont is said to have offended, is a violation of the constitution of this country, he could not without a breach of his oath, do any act to punish a breach of that law.

Mr. LYON said, he did expect that if he was to have had a second trial, he should have been at liberty to have adduced the evidence upon which a jury had already decided. Gentlemen who have been able to obtain a copy of the record, which he, notwithstanding all his earnest desires to obtain it, had not been able to procure, might also have obtained a copy of the testimony on which this judgment was founded.

Mr. L. thought he had received an unjust trial and a hard sentence. He said unjust, because he was frowned upon by the Judge in a very abrupt manner when he challenged two of the jury, which he had a right to do by a law of the State. The Judge answered me, said Mr. L., "You are unacquainted with the laws of the State." Mr. L. observed that there is a law in the State of Vermont for punishing persons who speak against the public authorities, which gives to the accused the privilege of challenging six of his jury. This privilege, said Mr. L., I was denied, exclusive of the political packing of the jury who tried me. This is the kind of treatment I have received: but I shall submit to the decision of the House without occupying their time on my account, further than my enemies are desirous of so occupying it.

Mr. ALLEN said, nothing but the respect which he entertained for the character who presided at the trial of the member from Vermont would have drawn him from his seat on that occasion. But if he understood the member from Vermont, he said he was frowned upon by the court when he challenged two of his jury, and having been present at the trial, he was able to speak to that fact. He understood the member to make a challenge, and the Judge told him he did not know the laws of Vermont; but so far from any harshness being used towards the member, he must say he never saw a trial more fairly conducted. He thought it did honor to Judge Paterson, who presided. When the member persisted in his opinion, that a law of the State gave him a right to challenge his jury, the Judge replied, "if that was the law, it would require consideration;" and he inquired of the district judge if that was the law, who said it was not. As to the member's being precipitately tried, [Mr. LYON observed, he did say so,] if ever there was a case deliberately tried, or in which unexampled indulgence was shown to the accused, it was this.

The member from Vermont had spoken of the jury being packed. He had seen this asserted in the papers, and the public ought to be informed that the charge is wholly untrue. The member from Vermont must know it is untrue. The jury was drawn from the boxes as is usual, in consequence of an order made by the court in May, which pointed out the particular towns from whence the jury were to be drawn. Mr. A. concluded by saying, he was sorry to find any man base enough to attack the gentleman who presided on this trial, as he believed his conduct to be unimpeachable.

Mr. BAYARD said, considering the lateness of the hour, he should limit his reply to a few observations. He did not know what would bind the gentleman from Virginia; he denies the obligation of the law, and the credibility of the record. He could not expect, therefore, that he would be bound by the obligation of reason.

The gentleman from Virginia, in his defence of the member from Vermont, has gone upon the ground that mere matter of opinion cannot be construed into a libel. He begged leave to differ from that opinion, for which there was not the least ground. Four things, Mr. B. said, are necessary to constitute a crime under the law in question: it is necessary that a publication should be seditious, false, scandalous, and malicious. When these four things appear, whether the publication consists in the assertion of matter of opinion, or matter of fact, it will be within the law, which makes no discrimination on the subject.

Mr. B. did not think it altogether in order to question in this place the regularity of the proceedings of a court of justice. According to the organization of this Government, the powers of it are distributed, and the Judiciary in its department is as sovereign as the Legislature; and it is as improper for the Legislature to question the proceedings of a court as it would be for a court in common cases, to question the obligation of a law. What has the fact been? The judgment of a court has decided, on the verdict of a jury given upon oath, that this case was within the law; and, after a judicial determination, is it for a member of this House to say that the case was not within the law?

But Mr. B. could conceive no idea more groundless than that of the gentleman from Virginia, that mere matters of opinion are not grounds of charges under this law. This the gentleman had made his _alpha_ and _omega_. He wished to know how a distinction was to be made on this subject? If an opinion upon a fact be expressed, and that opinion is false, scandalous, and malicious, ought it not to be subject to prosecution? Does the gentleman say opinions cannot be false? Mr. B. said, he would put a case to the gentleman from Virginia, without any intention of personal reflection, but merely for the sake of the argument. Suppose any person were to say, that in _his opinion_, that gentleman was a _rogue_, or any other _opinion_ casting a gross imputation, would the offence be less, because he had, instead of saying expressly he was a rogue, merely given it as his opinion? But if the gentleman insisted opinions could not be false, how would he get rid of the conclusion? This, Mr. B. conceived, might be sufficient to show that opinions may be false. Or, suppose a man were to say that, in his opinion, another was a traitor, ought he not to be punished as severely as if he had asserted the thing as a fact? The intention and wisdom of this law was, Mr. B. said, to caution men to be guarded in the publication of their opinions; since, by the expression of false opinions the minds of the people may be alienated from their Government. Suppose, for instance, that the gentleman from Virginia, or the member from Vermont, were to harangue the people, and say, in their _opinion_, this law is unconstitutional, and, therefore, not binding; that it ought not to be obeyed, but opposed by force; that it was made by men grasping after power, in defiance of the best interests of their country, in order to answer their own private views. Although this all might be mere matter of opinion, would it not come within the meaning of the law in question? No man on earth, Mr. B. said, would be more opposed to any measure for restraining the expression of honest and well-intentioned opinions, than himself. All that this law does, is to restrain false, malicious, and scandalous opinions. And will the gentleman from Virginia say, that the good of the country, or its liberty, will be promoted by indulging in an expression of what is false, scandalous, and malicious? Could this be liberty? He thought not. Every man, under this law, has the liberty of publishing what he pleases, taking the responsibility upon himself for the truth of what he writes. If he writes only what is true, he is not liable to punishment; if what is false, and that maliciously, it is only reasonable he should be punished for his falsehood and malice.

Suppose a common case, that a man were to say that, in his opinion, another was insolvent, a bankrupt, or a thief, would he not be answerable for this opinion? He certainly would. And ought a man to be permitted to slander the Government and not an individual? If the licentiousness of the press be allowed to go thus far, there will be nothing safe in character; it will always be in the power of a malicious person to rob the best men of their reputation with impunity. He presumed, therefore, that there was no ground for the distinction which the gentleman had attempted to draw.

The gentleman from Virginia had called upon the advocates of this resolution to show, that the member from Vermont could be punished a second time. Mr. B. did not know that the expulsion of a member from his seat could be considered in the light of a punishment. It was merely lopping off from the Legislative body a rotten member who contaminates the whole system. This was done without regard to the member himself, but with a view solely to the health and purity of the body of which he is a member. The constitution, however, left no doubt on the subject.

It is said that the member from Vermont has been re-elected, since his offences were known. He wished the gentleman from Virginia to say, how this fact was ascertained. At one moment he disputes the truth of the record, and says it cannot be considered as conclusive or creditable; yet, at another, he asserts a fact, upon the grounds of an extract of a letter, or a paragraph in a newspaper, of which this House could take no notice. The member was not re-elected to the present Congress, nor was any return made of his re-election to the next. Suppose he had a majority of votes at the late election, may it not hereafter appear that the election was carried by corruption or fraud, and that the member is not entitled to his seat?

It is suggested as a fact that the letter of the member from Vermont was written before the law passed; but the crime is not in the writing of the letter, but in the publication of it. There would have been no crime in scandalously writing, if he had not published the letter. The crime consisted not in the wickedness of his own heart, but the intention to corrupt others; the design to scatter firebrands through the community, with a view of exciting insurrections. If, therefore, he could have proved before the court and jury that he was not accessory to the publication after the passing of the law, he would doubtless have been acquitted; and though he did not think highly of the talents of that member, he supposed, if this had been the case, he would have had wit enough to have availed himself of it.

He would say a word with respect to the consequences of the crime upon a member. In England, a member of the House of Commons may be expelled for libellous matter. Such was the case with Mr. Wilkes; though in this case, the transaction was afterwards expunged from the journals, it was not done upon the principle that the original expulsion was not justifiable, but because he had been expelled for the same offence, after he had been re-elected to the same Parliament.

Believing, as he did, that the member in question disgraced the body to which at present he belonged, he hoped the resolution would be allowed to wash away the blot which marked and disfigured this branch of the Government.

Mr. GALLATIN confessed that, though there were some reasons which diminished his surprise at seeing this resolution on the table, he did not expect to have heard it defended on the ground which the gentleman from Delaware had taken in his last speech. He did not expect that when a judgment, awarded under the sedition law, was under consideration, a gentleman should rise and tell the House that this law applies to the publication of opinions as well as to that of facts; and it was less to be expected from the very gentleman who introduced an amendment into that law, providing that the truth of a charge may be given in evidence. His present declaration amounted to this: that those words were introduced in order to deceive the public, since they could be of no real use.

The gentleman from Delaware had constantly confounded matter of fact expressed, not positively, but only as the belief of the writer, and opinions or deduction from facts. If a man, with a view of defaming the government, publishes that, in his opinion, according to his belief, a certain fact does exist, which is susceptible of proof, and is found to be false, the publication, by the law, is undoubtedly a libel. Thus, if a man says that, in his opinion, a man is a thief, a bankrupt, or insolvent, it is not less a libel, than if he said such a person was positively so, because these things are susceptible of proof. But, when we speak of opinion, as distinct from fact, we speak of opinions not susceptible of proof, because they depend upon reasoning, and different opinions may be deduced from the same facts; therefore, we say that such opinions are not matter for prosecution even under this law. But, the gentleman from Delaware says that all opinions are liable to be prosecuted, provided that they can be proved to be false, scandalous, and malicious. Proved false! And who are the judges? To be sure, twelve jurymen, who are sworn to give a verdict according to evidence. And how can the truth of things which cannot be proved by evidence, be determined by evidence? An opinion may be incorrect; and, if judged incorrect by the gentleman from Delaware, it is, according to his reasoning, to be deemed false, and liable to prosecution.

The House had been told by the gentleman from Delaware, that it has nothing to do with this trial, any further than the record; that it ought to be taken as complete evidence of the facts which it contains, which ought not to be disputed. He also tells the House that courts of justice are as independent of the Legislature, as the Legislature of them; that this House has nothing to do with the crime; that it is the conviction only which they ought to take cognizance of. If, said Mr. G., the gentleman from Delaware had not brought forward the resolution now under discussion, we would have had nothing to do with the business. We did not bring forward the subject; we have nothing to do with it. Mr. G. added, I believe I go too far when I say we have nothing to do with it; for I believe it was the duty of the House to have sent the Sergeant-at-Arms for the member from Vermont, and demanded him from confinement, that he might have attended to his duty in this House.

[The SPEAKER said this was not now the question.]

Mr. G. knew this was not the question; he mentioned this to show that the House might have had something to do with the business. But we did not, said he, bring the subject before the House; and, if we have nothing to do with the decision of a court, that decision has nothing to do with us. If the member from Vermont is to be expelled, he ought to be expelled, not because he has been convicted, but because he has committed a crime which renders him unfit to retain his seat. What is that crime? It is stated in the record: and, stated as it is, he did not believe it was sufficient to ground a motion of this kind upon. Whatever is contained in these charges, which is capable of proof, ought to be taken into consideration, but not what is mere matter of opinion. It was generally allowed, he believed, that the paragraphs from what is called Barlow's letter, are of this last description. With respect to the other part of the charge, viz: the extract from a letter said to be written by the member from Vermont himself, to which he meant to confine his observations, he would beg leave to state it. [Mr. G. read it.]

Mr. G. said, the whole of the paragraph was hypothetical; but, supposing that the member from Vermont had declared it as his opinion "that the efforts of the Executive power were not bent on the promotion of the comfort, the happiness, and the accommodation of the people," he wished to know whether this could be considered as a declaration of fact or opinion? There is, perhaps, no measure passed by Congress, which one or other may not think will be contrary to the happiness, comfort, and accommodation of the people of the United States. We had, said he, the other day, the question of a navy before us, the establishment of which many believe is necessary for the promotion of the comfort, happiness, and accommodation of the people; whereas, in my opinion, and in the opinion of many others, it will produce the very reverse. How is this question to be decided? And yet it is known that the President, in his writings and speaking, has recommended the establishment of a navy; and persons writing and speaking against this system, which they ought to do, if they believe the system inimical to the United States, might be charged with bringing the Congress and PRESIDENT into contempt. But, doubtless, this is a mere matter of opinion, and not susceptible of proof by evidence. In order to prove the truth of either assertion, you must bring forward a dissertation _pro_ and _con_.

The next part of the paragraph, viz: "when I shall see every consideration of the public welfare swallowed up," &c. So far as relates to the first member of this sentence, he did not see how it could be proved. He was not of opinion that every consideration of the public welfare was swallowed up in a continual grasp for power; but he did believe that there was a constant disposition, not only in the Executive, but in many gentlemen on this floor, to increase the power of the Executive.

[The SPEAKER said, neither this remark, nor the observations on the Navy, were in order.]

Mr. G. said, that he always wished strictly to adhere to order, and in order to avoid committing any further mistake, he desired to be informed why it was out of order? Was the argument not in point; or was it the declaration of his own opinion, as he went along, that was out of order? He wished to know, as he meant to be guided by the rule adopted by the Chair.

[The SPEAKER repeated that the gentleman from Pennsylvania had been out of order.]

Mr. G. proceeded. With respect to that part of the paragraph which says, "when I shall see men of firmness, &c., discarded on their application for office," &c. This, said Mr. G., is, in some degree, matter of fact, and in some degree, matter of opinion. It is a matter of fact, so far as that men of firmness, experience, &c., have been turned out of office; and matter of opinion as to what is said of men of meanness being preferred in their place. I do believe, said Mr. G., that the first assertion is true; and what is here written is no more than an illustration of what has been declared upon this floor, that men of certain political opinions, however capable, experienced, firm, and virtuous they might be, were unfit to hold offices. This, Mr. G. said, was the only fact which could be brought under the law, and he thought it a fact capable of being proved to be true. Mr. G. adduced, as evidence of the fact, the cases of the late Commissioner of Revenue for the United States, and of the Commissioner of Loans for the State of New Hampshire, who, he said, it was evident, were turned out of office on account of their political opinions. And he read, in support of his assertion, the publication of the late Commissioner of Loans of New Hampshire.

Another part of this paragraph speaks of "an unbounded thirst for ridiculous pomp." This, said Mr. G., is mere matter of opinion. Take the member from Vermont to the house of the PRESIDENT, and he may call its furniture and appendages, ridiculous pomp; take a member from a different part of the country, and he may declare every thing decent and plain; but take an overgrown nobleman from Great Britain into the house of the PRESIDENT, and he would set down every thing he saw as mean and selfish.

But, I insist upon it, said Mr. G., that matter of opinion ought not to be subject to cognizance by this law. What, said he, is the nature of the crime now proposed to be punished by the expulsion of the member from Vermont? We are told that he has published and uttered false, seditious, and malicious writings; that though these writings may be only matter of opinion, yet if those opinions are false, they come under this law; and, also, that such writings have a tendency to stir up sedition and insurrection.

Mr. G. would not repeat what had been said as to the unconstitutionality of the law under which the member from Vermont had been convicted; but this alone would be a sufficient reason for him to vote against the present motion. But, supposing the law constitutional, is the crime an infamous one? Certainly not. It is a political crime, and will always be determined according to the situation of the parties at the time. For, said he, we may say as much as we please about the purity of our courts and juries, and of our own purity; decisions upon political questions will always be influenced by party spirit. It is we, said Mr. G., that have introduced this spirit into the courts; and having given them political questions to decide, it need not be expected that courts will be free from party prejudice any more than others. Therefore, the falsehood or maliciousness of a publication will be determined by the political opinion of the jury.

As to the manner in which the trial of the member from Vermont had been conducted, he knew nothing of it. He wished the gentleman from Connecticut, (Mr. ALLEN,) who, it seems, was present at the trial, would inform the House what proof was adduced to the court to show that the letter of Mr. LYON was published by him after the sedition law passed. The letter is dated the 20th of June, the law was passed on the 6th of July, and the letter was published in Vermont on the 30th of July. He should be glad to know whether any evidence was adduced to show that Mr. LYON did any thing relative to that publication, after writing the letter from Philadelphia on the 20th of June? If not, it will appear strange, indeed, that he should have been punished for an act done prior to the passage of the law under which he was convicted.

As to the manner in which the jury had been summoned, he supposed it had been done in the usual way. Without saying, however, that the jury was packed, which he did not believe, yet, if the towns out of which the jury was selected, were the towns which had never given Mr. LYON but one or two votes at his election, it necessarily results that the jury were his political enemies; and being called upon to try him for a political offence, they would, of course, convict him.

Mr. G. said, the lateness of the hour would prevent him from detaining the House longer. He would only observe that, considering that the member from Vermont had been tried for a political offence, by a jury opposed to him in opinion, and upon a law passed on political ground at the last session; that he had been punished by an imprisonment of four months, and by a fine of one thousand dollars; that he had been deprived of his seat in the Legislature for three months: he thought it would have been better not to have proposed this resolution.

If this resolution should be adopted, it would follow, Mr. G. said, that every member who shall write any thing which is contrary to the opinion of a majority of this House, whether what he writes be founded in truth or not, will be liable to be expelled, in order to purify the House. Mr. G. thought persecution had followed the member from Vermont long enough. Every candid man must acknowledge that, if he has committed an offence, he has already been sufficiently punished by fine and imprisonment; to expel him from his seat, would carry with it an idea of persecution to the public, and to his constituents, that they would not be permitted to have a representative on this floor. He knew the circumstance of the member from Vermont's having been re-elected could not be introduced as an argument in his favor, but it might serve to show that what he had suffered for was no offence in the eyes of his constituents.

The question was put; when there appeared 49 yeas and 45 nays, as follows:

YEAS.--John Allen, Bailey Bartlett, James A. Bayard,
Jonathan Brace, David Brooks, Christopher G. Champlin, John
Chapman, James Cochran, William Craik, Samuel W. Dana, John
Dennis, William Edmond, Thomas Evans, Abiel Foster, Dwight
Foster, Jonathan Freeman, Henry Glenn, Chauncey Goodrich,
William Gordon, Roger Griswold, William B. Grove, Robert
Goodloe Harper, Thomas Hartley, William Hindman, Hezekiah
L. Hosmer, James H. Imlay, John Wilkes Kittera, Samuel
Lyman, James Machir, William Matthews, Lewis R. Morris,
Harrison G. Otis, Isaac Parker, Josiah Parker, Thomas
Pinckney, John Rutledge, jr., James Schureman, Samuel
Sewall, William Shepard, Thomas Sinnickson, Nathaniel
Smith, Peleg Sprague, George Thatcher, Richard Thomas, Mark
Thompson, Thomas Tillinghast, John E. Van Allen, Robert
Waln, and John Williams.

NAYS.--George Baer, jr., Abraham Baldwin, David Bard,
Robert Brown, Samuel J. Cabell, Thomas Claiborne, William
Charles Cole Claiborne, Matthew Clay, John Clopton, Thomas
T. Davis, John Dawson, George Dent, Joseph Eggleston, Lucas
Elmendorph, William Findlay, John Fowler, Nathaniel
Freeman, jr., Albert Gallatin, James Gillespie, Andrew
Gregg, John A. Hanna, Carter B. Harrison, Jonathan N.
Havens, Joseph Heister, David Holmes, Walter Jones, Edward
Livingston, Matthew Locke, Nathaniel Macon, Blair
McClenachan, Joseph McDowell, Anthony New, John Nicholas,
Thompson J. Skinner, Samuel Smith, William Smith, Richard
Sprigg, Richard Stanford, Thomas Sumter, Abram Trigg, John
Trigg, Philip Van Cortlandt, Joseph B. Varnum, Abraham
Venable, and Robert Williams.

The SPEAKER, declaring the state of the vote, said, the constitution requiring two-thirds of the members present to expel a member, the resolution is not carried.

SATURDAY, February 23.

Mr. J. PARKER, from the Navy Committee, reported a bill authorizing the augmentation of the Marine Corps; which was committed.

MONDAY, February 25.

Mr. GREGG presented two petitions praying for a repeal of the alien and sedition laws; the one from Cumberland County, signed by 270 persons; the other from Mifflin County, in Pennsylvania, signed by 314 persons.

Mr. GALLATIN presented another petition of the same kind from Chester County, signed by 692 persons.

Mr. LIVINGSTON, one of a similar nature, signed by 2,500 citizens of New York.

Mr. HEISTER, one of the same kind, from 1,400 inhabitants of Berks County.

Mr. BAYARD, one from the inhabitants of Newcastle County, State of Delaware, signed by between 700 and 800 persons.

Mr. BAYARD and Mr. BROWN each of them presented petitions to the same effect, signed by a small number of persons.

The whole were referred as usual.

On motion of Mr. LIVINGSTON, the petition presented some days ago from a number of alien Irishmen against the alien bill, was also referred--44 to 35.

_Alien and Sedition Laws._

On motion of Mr. GOODRICH, the House went into a Committee of the Whole on the report of a select committee, on the petitions praying for a repeal of the alien and sedition laws; which was read by the Chairman, as follows:

The committee to whom was referred the memorials of sundry
inhabitants of the counties of Suffolk and Queen, in the
State of New York; of Essex County, in New Jersey; of the
counties of Philadelphia, York, Northampton, Mifflin,
Dauphin, Washington, and Cumberland, in Pennsylvania; and
of the county of Amelia, in Virginia; complaining of the
act, entitled "An act concerning aliens," and other late
acts of Congress, submit the following report:

[The report was a condensation of the arguments used in
support of the two bills by the members who supported them,
and was accompanied by three resolutions, offered for the
adoption of the House.]

Impressed with these sentiments, the committee beg leave to
report the following resolutions:

_Resolved_, That it is inexpedient to repeal the act passed
the last session, entitled "An act concerning aliens"

_Resolved_, That it is inexpedient to repeal the act passed
the last session, entitled "An act in addition to the act,
entitled 'An act for the punishment of certain crimes
against the United States.'"

_Resolved_, That it is inexpedient to repeal any of the
laws respecting the Navy, Military Establishment, or
revenue of the United States.

The question being upon agreeing to the first resolution declaring it to be inexpedient to repeal the alien law,

Mr. GALLATIN rose and spoke as follows:

Mr. Chairman: This subject was so fully discussed during the last session, that I would not have addressed the committee on this occasion, did I not entertain some hope that the change of circumstances which has taken place since the laws were enacted, and above all, the sense which so many of our fellow-citizens have expressed on their propriety and constitutionality, may induce the House to reconsider their decision of last year.

Petitions, signed by near 18,000 freemen of this State alone, collected in a few counties and within a few weeks, have been laid on your table, earnestly requesting Congress to repeal laws, at best of a doubtful nature, and passed under an impression of danger which does not now seem to exist, of general alarm, which has nearly subsided.

Sixteen hundred of my immediate constituents have joined in these petitions, and their opinion on this subject being the same which I have uniformly entertained, I feel it forcibly to be my duty to examine the reasoning used by the select committee who have reported against the repeal of the obnoxious laws.

The act concerning aliens comes first under consideration. Two laws were passed during the last session of Congress on that subject, the one concerning aliens generally, and the other respecting alien enemies. No petition has been presented against the last, and it would remain in force even if the first should, agreeably to the request of the petitioners, be repealed. The petitions apply solely to those provisions of the first act which are not included in the last. The provision, therefore, complained of, and which is the subject-matter of the reference to the committee, is that which authorizes the President to remove out of the territory of the United States, "all such aliens, (being natives, citizens, denizens, or subjects of a nation which is _not_ at war with the United States, and which has _not_ perpetrated, attempted, or threatened any invasion or predatory incursion against the territory of the United States,) 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."

This authorization is considered by the petitioners as unconstitutional--1st, because such power being neither among the specific powers granted by the constitution of the General Government, nor necessary to carry into effect any of those specific powers, is, both by incontestable deduction, and by the 12th amendment, reserved to the individual States; 2d, because, even supposing such power to be by implication comprehended among those granted to the General Government, its exercise is, for the present, expressly prohibited to that Government by the section which provides that the migration or importation of such persons as any of the States shall think proper to admit shall not be prohibited by Congress prior to the year 1808; and 3dly, because aliens are supposed to come under the general description of persons to whom, by the constitution, the right of a trial of all crimes by jury is secured.

In answer to the first objection, it is not contended that the power of removing such aliens is specifically granted by the constitution. But it is insisted, first, that every nation has a power at will to admit, or to remove aliens; second, that this power is necessary and proper in order to carry into effect the specific powers vested in Congress to declare war and to protect each State from invasion.

To admit the first position in its full extent does not destroy the force of the objection; for that objection rests not on a supposition that the power of removing aliens does not exist in the nation; but on the principle that it is not one of those granted by the nation to the General Government; that it is one of those intrusted by the nation to the Governments of the individual States respectively. The second position is predicated on a construction of the clause of the constitution and an application of that construction to the act, which to me appear inadmissible. The expressions used in that clause are "necessary and proper." The idea conveyed by the word "proper" is implied in that of the word "necessary," for whatever is necessary must be proper. The addition of the word "proper" was therefore useless, unless designed more precisely to ascertain the meaning of the word "necessary," the better to prevent a construction "that by necessity nothing more was meant than propriety," and to establish, beyond contradiction, that whatever might by Congress be thought proper, was not on that account to be judged necessary. Hence the meaning of the word "necessary" is confined in that clause to its strict sense, to wit: the power of passing laws without which some of the powers delegated to Congress could not be carried into effect.

In the present case it cannot be said that a power generally to remove aliens, not belonging to a nation from which a war or invasion is apprehended, is necessary or even proper in order to protect the States against such a war or invasion. Aliens individually may commit acts tending to assist the enemy, and, in such case, it would become necessary to punish them. Should a body of armed aliens (the supposed case of the select committee) land with views evidently hostile, to whatever nation they might belong, the act itself would be an invasion, and the necessity of repelling, or if another expression is selected, of removing them, would be self-evident and immediately flowing from the specific power delegated to Congress to protect the States against invasions. But it is preposterous to say that the necessity of a general removal of alien friends flows from the apprehension of an invasion. The law concerning aliens, however, does not designate the acts which shall establish the necessity of their removal individually. Although they may not have been concerned in any machinations against Government; although the machinations in which they may have been concerned shall not have tended to promote or assist an invasion; and although their machinations might be sufficiently prevented and punished in the common course of law; although, therefore, their removal may not be necessary to protect the States against an invasion; yet, by the present law, they are liable to be removed, if they shall be suspected of being concerned in those machinations. Their having actually and individually committed certain acts is requisite to constitute that necessity which alone can justify the exercise of the power delegated by this law. And yet that removal, which, in order to be constitutional, should rest on its necessity, depends, by the provisions of this law, on the bare suspicion of a necessity. But necessity implies proof, and cannot rest on suspicion. The law cannot be supported by the constitution unless that instrument had declared that Congress shall have power to pass laws which they may suspect to be proper or necessary in order to carry into effect certain specific powers delegated to them.

But the law does not even confine its operation to cases when a war or invasion should be apprehended. Supposing the alarms on that subject to be completely at an end, still the power remains with the PRESIDENT to remove aliens suspected by him to be concerned in secret machinations against Government. The power delegated by this law is not applicable exclusively to cases where it may be thought necessary in order to carry into effect the power to protect States against an invasion. It is to apply generally and under color of its necessity for executing certain specific powers, it may be exercised in a case where that specific power, on which alone it rests, has itself, nothing on which to operate. Although it may happen that there shall be no necessity to protect States against invasion, it will even then, according to this constructive doctrine, still be lawful to do an act which cannot be constitutional, except on account of its being necessary to protect States against invasion.

In order, therefore, to support the constitutionality of the law, the select committee must suppose, in the first place, that Congress may pass laws, without a certainty of their being necessary for carrying into execution some of the specific powers granted to them; that is to say, that Congress have a right to pass laws which may be unnecessary for that purpose. In the next place, that if a certain law is necessary only for executing a constitutional measure of a temporary nature, that law may constitutionally be executed, although the temporary measure itself should not be executed at all; that is to say, that the incidental power may be exercised for a purpose different than that of executing the original power on which it rests.

The application of that constructive doctrine to the sedition and alien laws justifies a conclusion that, if adopted, it will substitute in that clause of the constitution a supposed usefulness or propriety to the necessity expressed and contemplated by the instrument, and will, in fact, destroy every limitation of the powers of Congress. It will follow that instead of being bound by any positive rule laid down by their charter, the discretion of Congress, a discretion to be governed by suspicions, alarms, popular clamor, private ambition, and by the views of fluctuating factions, will justify any measure they may please to adopt; that, instead of being bound by a constitution, they may claim the omnipotence of a British Parliament; that all the reserved powers of the people or of the States will be swallowed up at their pleasure by that undefined discretion; in a word, that the constitution itself, so far as respects a limitation of powers, is by that doctrine completely annihilated. Even the positive checks, which, in a few instances, prohibit the exercise of certain powers, will not prove a sufficient guard against an inordinate appetite to legislate on some favorite subject.

Thus, in the case of the sedition law, the prohibitory clause, respecting an abridgment of the liberty of the press, is attempted to be construed away by star-chamber definitions, by exotic doctrines, which, if suffered to flourish, will overshadow and smother every plant of American growth; doctrines incompatible with the principles of a Government elective in all its Executive and Legislative branches; of a Government which the people, the sole fountain of power, cannot properly carry into execution, if the sources of information are shut up from them; if a free and full discussion of every public measure is at the will of those who enjoy only a delegated authority, checked and embarrassed by prosecutions for libels, grounded solely on the British system of hereditary prerogative.

And thus, in the case of the alien law, it is said that the temporary prohibition enjoined on Congress, to forbid the importation of persons, must be understood as applying only to slaves; and that a power to remove emigrants may be constitutionally exercised, though that of prohibiting their migration should be unconstitutional.

The evidence of members of the Convention which framed the constitution, has sometimes been offered to prove that that body by _persons_, meant _slaves_. But the evidence of those members cannot prove any thing beyond their own individual intention, or, at most, their belief of what might have been the intention of some other members. Nor is, on any possible supposition, the intention of the Convention itself of any importance to decide the true meaning of the constitution. For they were not the legislators who passed and ratified the act, but only the framers who drew the instrument and offered it for consideration. As well might the Judges of the Supreme Court be induced in their decision on a point of law, to abandon the clear construction pointed out by the precise meaning of the words of the statute, on account of the supposed opinion of some one of the members of the committee of this House that had drafted the law, as we be guided by what was, at the time, the meaning of some of the gentlemen who drew the constitution. After a lapse of ten years, it is preposterous to receive parole evidence against a sacred record. Are the people of America to be told, after a lapse of ten years, that the delegation of powers, which they sanctioned under the impression of what on its face appeared to be its meaning, is to receive a contrary construction, bottomed on private meaning, on the unknown opinion of the members of a body whose deliberations were secret? And if, even through mistake, those individuals adopted expressions which conveyed a different meaning from what they intended, is that supposed intention to prevail over the explicit sense of those expressions?

But we are told by the select committee, that "there could not have been the least reason" for confining the restriction to the then existing States, and to a period of twenty years, had the restriction "been intended" to apply to all emigrants in general. Here again, a supposed intention is brought as an argument against the general acceptation of the word "persons." The question is not, whether we are at a loss to find the reasons which dictated a modification of the restriction. Yet, if we were to recur to suppositions, we might as well suppose that the then existing States, which alone formed the constitution, felt interested only for themselves, and not for future non-existing States; and that those States, who were interested in promoting the migration of free persons, were satisfied with the same regulation which satisfied those States who were apprehensive of an interference in the importation of slaves. But the only question is, whether modification is contradictory with the common acceptation of the word "persons," which, it will not be denied, in its natural sense, will apply to free as well as to the other description of individuals? Whether there is any thing absurd or repugnant to common sense, in saying that Congress shall not, for twenty years, prohibit the migration of free persons in the existing States? If there be nothing inconsistent in that provision, the modification of the restriction cannot modify and alter the meaning of the word "persons."

Was there any possibility of doubt on the sense of that word, it might be explained by other parts of the constitution and by other expressions in the clause itself.

The 2d section of the 1st article of the constitution, speaking of the mode of ascertaining the respective numbers of the several States, declares that they shall be determined by adding to "the whole number of free persons" (including those bound to service for a term of years, and excluding Indians not taxed) "three-fifths of all other persons." A sentence in which the word _persons_ is expressly applied first to freemen, and secondly to slaves.

The prohibitory clause itself declares that the migration or importation of such persons as any of the States, &c., shall not be prohibited. The word "migration," as contradistinguished from "importation," clearly implies the free will of the person, and applies exclusively to free persons.

The select committee have also informed us that the power to send off emigrants, who abuse the indulgence granted them to remain, is a very different thing from the power of preventing emigration; meaning, I suppose, that although Congress might be forbidden by the constitution to prohibit migration, they may constitutionally send off such emigrants. Was the power claimed by this law, that of punishing by transportation aliens convicted of certain offences, defined by the law, although the constitutional necessity of the mode of punishment would still remain to be proven, yet the argument of the committee would deserve some consideration. But it is denied that there is the least difference between a power of prohibiting emigration and that of sending off any alien at the will of the PRESIDENT, merely because he is suspected by that Magistrate. The transportation of the emigrant does not rest on any act committed by him, but on the degree of suspicion entertained by the PRESIDENT. The removal, therefore, contemplated by the law, is not the special removal of certain emigrants, but a general power to remove all the emigrants, on suspicion, if the PRESIDENT shall please. I must confess that, to my understanding, that power to remove all emigrants would, if exercised, (and the law authorizes its general exercise,) amount precisely to the same thing with a general prohibition of emigration.

So far is it true that the clause of the constitution admits of a construction which would defeat its object; that, at the end of it, we find a provision permitting Congress to lay a duty of ten dollars, not on migration, but on the importation of persons. Had it not been for that provision, Congress could not even have checked that importation by any duty. As the clause now stands, they cannot check the migration by any duty whatever, nor the importation by a duty higher than ten dollars. And yet it is contended that notwithstanding so much caution, Congress may, by a general power of sending off emigrants, evade the restriction laid upon them, and altogether prevent the effect of migration.

Finally, if there be any difference between the power of prohibiting migration and that of sending off emigrants, it consists in this, that it might have been apprehended that, under color of the general power over commerce given to Congress, they might, by duties or other commercial regulations, have prevented or checked migration; but that there does not exist any power granted to the General Government by the constitution which can rationally serve as a pretence to claim an authority to remove emigrants generally. And the only deduction to be thence inferred is, that the clause now under consideration, although it might be proper for preventing the exercise of the first power, was unnecessary for the last purpose--a conclusion to which I agree in its full extent, and which it seems to me I have already fully established in the first part of my arguments.

The select committee (driven thereto, perhaps, by the weakness of the ground they were compelled to defend) have recurred to a last argument, the most extraordinary, perhaps, of any they have advanced. Having said, in the former part of their report, that every nation had a right to send off aliens at will, they afterwards assert that, "as the constitution has given to the States no power to remove aliens," it is necessary to conclude that the power devolves to the General Government.

It is, I believe, the first time it has been suggested that the powers of the individual States were derived from the Constitution of the United States. That constitution has heretofore been considered as a delegation of powers to the General Government, and not to the several States. But the assertion of the committee may be shortly answered by reading the twelfth amendment to the constitution, viz: "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." In order to prove that the powers are not reserved to the States, it is necessary to prove that they are delegated to Congress; and the committee, with that kind of logic which pervades the whole of their report, in order to prove that powers are delegated to Congress, assume the position that they do not belong to the States. The constitution declares that the powers not prohibited to the States are reserved to them, and the committee asserts that the powers not given to the States, are not reserved to them. It would seem, as the committee had been desirous of justifying, by their own arguments, what I have advanced, that the doctrine necessary to support the constitutionality of this law would infallibly swallow up all the powers of the several States.

That the States had a right to legislate on this subject never was denied. It is a fact, that some of them have legislated upon it. Virginia has passed an alien law, which has been quoted by the supporters of the law of Congress. It was strange enough, that on a constitutional question, whether the United States or the several States had a right to pass such laws, the advocates for the right of Congress should quote a law of one of the States, which proved the very reverse of their doctrine. But their object was to puzzle and confound, and not to enlighten the understanding; and if they meant to rescue the law of Congress from the charge of impropriety and injustice, by the instance of that of Virginia, they have been guilty of a gross misrepresentation; for the act of that State, so far from being similar to that complained of, is not a law concerning alien friends, but a law respecting alien enemies, perfectly similar to that of Congress, of which no one complains, and which passed without opposition.

To the argument against the law, drawn from that part of the constitution which secures the trial of all crimes by jury, the most satisfactory answer given by the committee is, that aliens not being parties to the constitution, have no rights under it. Without entering into an examination of the constitutional question arising on that point, I will only remark, that the construction is harsh; and that, to transport emigrants, "merely from motives of policy," and "without their having committed any offence," is often unjust--always oppressive and cruel. The manner in which aliens have been invited to this country, and the peculiar situation in which they stand, justify the assertion.