F.W. Randolph: Analysis of Virginia Report

ANALYSIS OF REPORT.
[by F.W. Randolph]

WAIVING objections to the spirit and manner of the counter-resolutions of other states, the Report proceeds to discuss the resolutions of 21st December, 1798, seriatim.

1st Resolution. To maintain and defend the Constitution of the United States, &c. Not liable to objection.

2d Resolution. To oppose every infraction of the Constitution, &c. Not liable to objection.

3d Resolution. That the powers of the Federal Government result from the compact, to which the states are parties: That those powers are limited by the plain sense and intention of the instrument of compact: And that it is the duty of the states to interpose to arrest the deliberate, palpable, and dangerous exercise of powers not granted; wherein consider,

I. The truth of the several propositions affirmed: viz., that,

1. The powers of the Federal Government result from the compact, or Constitution; wherein of,

1. The contemporary discussions when the Constitution was submitted to the people of the states for their ratification.

2. The 12th amendment to the Constitution.

2. The states are parties to the compact, or Constitution: wherein of,

1. The different senses of the word states, and the meaning as here used.

2. The sense in which the Constitution was submitted to, and ratified by the states.

3. The powers are limited by the plain sense and intention of the instrument of compact; wherein consider that,

1. The powers granted are valid only because granted.

2. The powers not granted, are not valid.

4. The states, as sovereign parties to the compact, must construe it in the last resort, and decide if it be violated; wherein consider that,

1. There can be no tribunal superior to the states, in the last resort, they being sovereign.

2. The federal judiciary cannot be the final expositor of the Constitution, except in relation to the other departments of the government; because,

1. Some usurpations, by the forms of the Constitution, cannot be drawn within its control.

2. The decisions of the other departments, in cases not subject to judicial cognizance, would be equally authoritative and final.

3. The usurpations sanctioned, or committed, by the judiciary would be irremediable.

5. The cases for interposition by the states; — only where the violation, by the United States, is

1. Deliberate.

2. Palpable.

3. Dangerous.

6. The object of the interposition:
To arrest the progress of usurpation, and maintain the authorities, rights, and liberties appertaining to the states.

II. The expediency of declaring the truths aforesaid; wherein of

1. The general importance of recurrence to fundamental principles.

2. The particular importance in view of the political doctrines of the day.

4th Resolution. That a spirit has been manifested to enlarge the powers of the Federal Government, by forced constructions, especially of certain general phrases; of which the effect will be to consolidate the states into one sovereignty, and the result a monarchy; wherein of the affirmation —

I. That a spirit has been manifested by the Federal Government to enlarge its powers by forced constructions of the Constitution; whereof the instances are (amongst others),

1. The Bank-law of 1791.

2. The Carriage-tax law of 1794.

3. The Alien and Sedition laws.

II. That indications have appeared of a design to expound certain general phrases, [which although substantially contained in the former Articles of Confederation, were never therein so misconstrued,] so as to destroy the effect of the particular enumeration which explains and limits those phrases; wherein of

1. What general phrases are referred to, —
Those which relate to a provision "for the common defence and general welfare," &c. — Articles of Confederation, Art. VIII.

2. The meaning attached to them, in the Articles of Confederation.

III. Instances of a design so to expound those phrases as to destroy the effect of the particular enumeration of powers; wherein consider,

1. What the instances are,

1. Debates in Congress.

2. Hamilton's Report on Manufactures, 5th December, 1791, wherein he supposes everything in the power of Congress, which concerns the general welfare, and involves the application of money.

3. Report of Committee of House of Representatives on Agriculture, January, 1797; proposing an Agricultural Society under the direction of the Federal Government.

2. The result of such exposition to destroy the effect of the particular enumeration of powers; for,

1. No power of importance, but may involve the application of money.

2. It is no limitation of the power to confine it to cases affecting the general welfare, because all cases may be said to do so.

3. The proper construction of the phrases — To limit the Federal Government to those modes of promoting the general welfare which are afterwards specified.

3. The tendency of such exposition of the general phrases in question to consolidate the states into one sovereignty.

4. The result of such consolidation, a monarchy; by,

1. Enlarging the Executive power as a supplement to the deficiency of laws, which would be greater as the objects of legislative attention were multiplied.

2. Increasing the offices, honours, and emoluments depending on the Executive will, and thereby enabling the chief magistrate to secure his own re-election from time to time, and to regulate the succession.

3. Rendering the Executive office such an object of ambition as to make elections so tumultuous and corrupt, that the people would themselves demand an hereditary succession.

5th Resolution. Protests particularly, against the Alien and Sedition-Acts, as palpable and alarming infractions of the Constitution, &c.; wherein consider,

I. THE ALIEN ACT: — Of which it is said that,

1. It exercises a power not delegated by the Constitution; wherein of

1. Some preliminary observations.

1. The Federal Government possesses only delegated powers; and those not delegated to it are reserved to the states respectively, or to the people. Hence any power exercised, must appear to be granted by the Constitution.

2. Distinguish between alien enemies, over whom the Federal authority, as incident to the power of making war, is complete; and alien friends, to whom it is denied that its power extends.

3. Even if the "Alien-Act" contemplated preventive, only, and not penal justice, and if the former were within the power of Congress, (which is denied,) yet such preventive justice has not been exercised in a constitutional manner. Because the principles of the only preventive justice known to American jurisprudence, require,

1. That some probable ground of suspicion be exhibited to some judicial authority; the act refers it to the President.

2. That it be supported by oath or affirmation; the act requires none.

3. That the party may avoid imprisonment by pledges of legal conduct, sufficient in the judgment of some judicial authority; the act denies this privilege, or refers it to the discretion of the President.

4. The party may have a writ of habeas corpus if wrongfully confined; the act allows the President to send an alien off before he can obtain such writ, thus unconstitutionally suspending the privilege of the writ.

5. The party may be discharged from confinement, by order of the proper judicial authority, for good cause; the act confers the power on the President alone.

4. But the act contemplates penal justice; involving,

1. Banishment from the country of the alien's choice; and perhaps of his tenderest relations.

2. Loss of employment and property.

3. A sea-voyage; dangerous in itself, and also from the casualties incident to time of war.

4. Possible vindictiveness of the country whence he emigrated.

2. Answers to arguments to prove the act constitutional.

1. The admission of aliens being a favour, it is not therefore revocable by the Federal Government; because,

1. If revocable at all, it does not follow that the Constitution has given to that government the power to revoke it.

2. Favours are not always revocable, as grants of land, pardon to a malefactor, naturalization, &c.

2. Aliens not being parties to the Constitution, it does not follow that Congress may invade, as to them, the rights and privileges it secures; because,

1. Such absolute authority may have been left to the states, or at least may not have been conferred on Congress.

2. But aliens, though not parties to the Constitution, are entitled, whilst they conform to it, to its protection, as to the protection of the laws, to which also they are not parties.

3. Upon similar reasoning aliens might not be banished only, but capitally punished by the President, without a trial.

3. That aliens, by the law and practice of nations may be removed at pleasure for offences against the law of nations, and that Congress is authorized to define and punish such offences, does not justify the indiscriminate expulsion of all aliens; because,

1. Alien-enemies alone, are thus subject to the law of nations, alien-friends (except public ministers), being subject to the municipal law.

2. The act being admitted to be penal, must be justified by some offence deserving punishment.

3. Offences for which aliens within the jurisdiction of a country, are punishable, are,

1. Those committed by their states; which is the case of alien-enemies, admitted to be subject to the laws of nations, and so within the control of Congress.

2. Those committed by aliens personally; which is the case of alien-friends, who, like citizens, are subject to the municipal law, and so not amenable to Congress.

4. The laws of nations distinguish between alien-friends, and alien-enemies, allowing the removal of the latter at discretion, but holding the former to be under a temporary allegiance, and entitled to a corresponding protection.

4. That Congress may grant letters of marque and reprisal, and that reprisals may be made on persons as well as property, does not justify the act; because,

1. Reprisals are a mode of obtaining justice by seizure of persons or property for injuries done by a state, or its members, to another state, or its members, when the aggressor refuses redress.

2. No injury is alleged or implied from any particular nation, for which this proceeding may afford reparation. It is directed against aliens of all nations.

5. That Congress has power to make war does not justify the act, which is applicable to alien-friends.

6. That Congress may protect each state against invasion, and provide for repelling invasion, does not justify it; because,

1. These powers do not add to the general power of war.

2. Invasion is only one operation of war; and what is not incident to the power of war generally, cannot be so to any of its operations.

3. A power to act when a case occurs, does not include a power over all means which tend to prevent the occurrence; which would frustrate every practicable definition of limited powers. Thus it would involve,

1. A power over religion, lest a bigoted and tyrannical state should invade us on account of our belief.

2. A power over popular instruction, and over the provision for the poor, as tending to prevent insurrections, &c.

7. That the Constitution has given to the states no power to remove aliens, and that there would be, else, no power in the country to send away such as are dangerous, does not justify the Alien-act; because,

1. Several powers are withheld from both the federal and state governments, — as to tax exports; so that the non-possession of a power by the state governments, does not imply its possession by the federal government.

2. The powers of the state governments are not the gift of the Federal Constitution, but the residuum remaining in the states, after the delegation of certain specific powers to the Union.

8. The Alien-Act is not vindicated by the example of the Virginia law of 1785, re-enacted in 1792, which referred to alien-enemies.

2. The Alien-Act unites legislative, executive, and judicial power in the hands of the President.

1. Legislative: Because details, especially as to crimes, are essential to the idea of a law; and here every circumstance of danger, suspicion, and secret machination is to be defined by the will of the President.

2. Judicial: Because the President is to judge whether the circumstances exist, which he, as a legislator, has resolved shall be suspicious, &c.

3. Executive: Because he is to execute his own decrees, by removal of the party suspected.

3. This union of powers subverts the general principles of free government, which require the three great functions to be kept in distinct hands.

4. It also subverts the particular organization of the Federal Constitution, which provides for the separation of those powers.

II. THE SEDITION-ACT; — Of which it is said that,

1. It exercises a power not delegated by the Constitution, wherein of

1. The argument that the common law is part of the law of the United States in their national capacity: therein consider,

1. That before the Revolution, the common law, however it may have existed, with more or less modification in all the colonies, did not pervade the whole as one society; because,

1. It was not the same in any two colonies: the modifications being materially different in many.

2. There was no common legislature to enact, nor common magistracy to enforce it.

2. That the Revolution did not imply, nor introduce it as a law of the Union; because,

1. The fundamental principle of the Revolution was, that the colonies were united by a common executive, but not by a common legislative sovereign.

2. Parliamentary regulation of trade [mere practice without right], was acquiesced in without inquiry, but the assumption of a power to legislate in all cases, resulted in the conclusion that Parliament could not legislate in any case.

3. The interval between the beginning of the Revolution and the final ratification of the Articles of Confederation, did not introduce it; the nature and extent of the Union being, in that interval, determined by the crisis only.

4. The Articles of Confederation did not adopt it; because,

1. Nothing in the instrument countenances such an idea.

2. Every power, jurisdiction, and right, not expressly delegated, is retained.

5. The present Constitution did not introduce it; wherein consider,

1. That particular parts of the common law may have a sanction from the Constitution; being,

1. So much as is comprehended in the technical phrases thereof.

2. Such other parts as Congress may adopt as means necessary and proper to carry into effect the powers delegated.

2. The clause supposed to justify the conclusion that the common law, generally, is the law of the Union, viz.:
That which extends the judicial power to all cases in law and equity, arising under the Constitution, laws, &c., of the United States; wherein consider,

1. That cases may arise under the Constitution, distinct from such as arise out of laws and treaties, without supposing the common law part of the Constitution, viz.:

1. Cases involving restrictions on states; as to emit bills of credit, &c.

2. Cases between citizens of different states, &c.

2. That the phrase, "cases in law and equity," refers only to civil cases: whereas the common law includes criminal cases also; because,

1. Criminal cases in law and equity, would be a language unknown to the law.

2. Appellate jurisdiction, in such cases of "law and equity," is given (with one or two exceptions) to the Supreme Court, both as to law and fact, which excludes criminal cases.

3. The judicial power is not (by Amendment XI. of Constitution) to be construed to extend to any suit in law or equity, of an individual against a state; which also excludes the idea of criminal cases.

3. That the phrase, "cases in law and equity," referring at any rate only to civil cases, could not justify the Sedition-Act, which is a criminal statute.

4. That the clause in question, though it involved the common law, both in civil and criminal cases, defines the extent of the judicial, and not of the legislative power.

3. That the descriptions in the Constitution of the law of the United States, do not embrace the common law, viz.:

1. That which is meant as a guide to United States judges, "The Constitution, and laws and treaties in pursuance thereof." Article III., section I.

2. That which is meant as a guide to state judges, "The Constitution, and laws and treaties in pursuance thereof, shall be the supreme law of the land." Article VI.

4. The difficulties and consequences of a constructive introduction of the common law, viz.:

1. The difficulties:

1. Is it with or without the British statutes?

2. If with them, to what period; the oldest or youngest colony, or a mean?

3. Is regard to be had to colonial modifications? If so, which? how? &c.

2. The consequences flowing from such construction.

1. As to the several departments of the Federal Government: and therein as to,

1. The legislative authority of the Union:

1. If the common law be established by the Constitution,

1. No part of it could be altered. Statutes mitigating its barbarous severities, including the sedition-law itself, would be void.

2. The whole code, with all its incongruities, &c., would be inviolably saddled on the people.

2. If the common law be supposed not fixed by the Constitution, but liable to alteration by Congress, It extends the authority of Congress to every subject of legislation, (for the common law embraces all,) and emancipates it from all limitations.

2. The executive authority:

1. The President's authority to execute, will be coextensive with the legislative power to enact.

2. The President's authority might be extended to the prerogatives which the common law confers on the crown.

3. The judicial authority:

1. If the common law has a constitutional obligation, The judges would possess a discretion little short of legislative power, which would be permanent and uncontrollable.

2. If it be of only legal obligation, subject to Congress:

1. The dangerous discretion would exist, of determining what parts of the common law are adapted to the circumstances of the country.

2. This discretion must continue until Congress could enact a full system of laws.

2. As to the authority of the states:
Their residuary sovereignty would be overwhelmed by this one construction.

2. Other arguments founded on various parts of the Constitution, viz.:

1. On the preamble to the Constitution; wherein consider,
That this part of an instrument is never allowed to be set up in opposition to the plain meaning of the body thereof.

2. On the clause which gives Congress power to lay and collect taxes, &c., to pay the debts, and provide for the common defence and general welfare, &c.
The effect of this already considered, (ante, p. 179-80,) and supposed not to enlarge the enumerated powers of Congress.

3. On the clause which empowers Congress to make all laws necessary and proper to carry into effect the powers conferred by the Constitution; wherein consider,

1. That this clause confers no new powers, but merely declares [what, at any rate, would have been implied], that the grant of a power shall include the means of its execution.

2. The mode of reasoning to be pursued under this clause.

1. To determine if the power to be exercised is expressed in the Constitution.

2. If not, to see if it is properly incident to any express power, and necessary to its execution.

3. The express power to which the enactment of a sedition law is supposed to be incident:
The power to suppress insurrections; wherein consider,

1. That if a power to suppress, authorizes whatever tends to prevent, the power of Congress is unlimited.

2. That the contemporaneous construction, whilst the Constitution was under discussion, was nem. con., that the incidental power must have to the principal the relation of necessity, and not of mere tendency to promote.

3. That such a construction frustrates an appeal to the judiciary, which can exert a judicial control if the relation of necessity is to exist, but not if a tendency to promote is enough.

2. The sedition-act exercises a power positively forbidden by one of the amendments to the Constitution; wherein consider,

1. That the freedom of the press is not to be determined by the meaning of the phrase at common law; and therein consider,

1. That the sedition-act abridges the freedom of publication even by the common law of England.

2. That the common law idea of freedom of the press, viz., exemption from all previous restraint, is not the American idea; because,

1. There is no material difference between a previous restraint, and a subsequent punishment of publications.

2. There is an essential difference between the government of Great Britain, and of America, requiring in the latter greater freedom of remark.

3. The object in the British government is to protect the press from the assaults of the executive. In America we desire to protect it, also, against the legislature.

4. That not only is freedom of the press secured by the Constitution in America, and in England merely by law, and not only does it extend in the former as well to subsequent penalties, as previous restraint, but the actual freedom is greater in America than in England; wherein consider,

1. The difference in the governments, those of America being wholly elective and responsible.

2. The practice in England in respect to the elective and responsible members of the government.

3. The practice in the several states of the confederacy.

4. The good effects which have resulted from this free animadversion.

1. In the world at large.

2. As respects our Revolution, which was promoted by canvassing the measures of government.

3. As respects the present Federal Constitution, which was substituted for the Articles of Confederation, in consequence of the latter's defects being freely investigated.

3. That freedom of conscience and of religion are guaranteed by the same clause which relates to freedom of the press, and the former cannot be supposed to be limited by the common law meaning.

2. That the amendment in question positively denied to Congress any power over the press, and does not suppose such power to exist, with the qualification that its freedom shall not be abridged; because,

1. The provision was recommended by the ratifying conventions of several states with a view to exclude Congress from all power over the subject.

2. The amendment was introduced in order to quiet the apprehensions of those states.

3. It is more reasonable to deem the power withheld, than to suppose one so important left to vague construction.

4. The peculiar magnitude of some of the powers of the Federal Government, the duration of some of its offices, and the distance of many of the people from the seat of government, are reasons why it might have been the policy of the Federal Constitution to exempt the press from federal jurisdiction.

3. The exercise of this power over the press ought, more than any other, to produce universal alarm; and therein consider,

1. That the responsibility of officers of government cannot be secured without a free investigation of their conduct and motives.

2. That it is the right and duty of every citizen to make such investigation, and promulge the results.

3. That in the several elections, during the continuance of the sedition-act, it would tend to screen the incumbents of office from inquiry.

4. That it is no defence of the act that it allows the truth of the publication to be proved, and only punishes what is false; because,

1. Formal legal proof, even of facts, in political disquisition, is extremely difficult.

2. Opinions, inferences and conjectural observations, necessary concomitants of free inquiry, cannot generally be proved at all, in court.

5. That it is no defence of the act that the intent must be to defame, or bring into contempt, disrepute, or hatred, for such is ever the object of one who thinks he has discovered an error.

6. That the right of election (which depends on full information) is the essence of a free government, and is impaired by the sedition-act.

1. Competitors against incumbents of office have not an equal chance, the latter being shielded by the act.

2. The people cannot fully discuss and ascertain the relative merits of such competitors and incumbents.

6th Resolution. Refers to a declaration of the Virginia Convention which ratified the Federal Constitution, touching freedom of the press, and affirms that it would be a criminal degeneracy now to be indifferent to so palpable a violation thereof, &c.; wherein of,

1. The declaration of the Virginia Convention in tot verbis.

2. Acquiescence in the violation of freedom of the press would yield a similar power over religion and conscience; for,

1. Neither power was delegated.

2. Both were reserved by the same amendment, recommended and made at the same time.

3. The common law measure applies to one, as well as to the other.

4. A similar form of words is used to guarantee both.

7th Resolution. Professes sincere affection for the people of the other states, and anxiety to perpetuate the Union, and appeals to the other states to concur in declaring the alien and sedition-laws unconstitutional, and to take necessary and proper measures to maintain unimpaired the authorities, rights, and liberties reserved to the states respectively, or to the people; wherein consider,

1. That such declaration is no invasion of the functions of the judiciary, being a mere declaration of opinion.

2. That the relations of the state legislatures to the Federal Government justified such a declaration; for,

1. They might address Congress to repeal the laws.

2. They might instruct or request their own senators and representatives to vote to repeal the laws.

3. They might originate an amendment to the Constitution.

3. That neither the object (to maintain the Constitution, &c.) nor the means (such as were necessary and proper) could be objected to.

4. That during the discussions on the ratification of the Federal Constitution, a vigilant supervision of the Federal Government by the state legislatures, was deemed a recommendation.

In view of all which the adoption of the following resolution is recommended.

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 fully reconsidered the latter, find 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.

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