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I have recently come to possess a hard
copy of this book, but also discovered it scanned on
Google. I thought Hays' arguments for the Constitution
and its limits on Congress and the federal government are particularly
applicable today. If nothing else it certainly stands Lincoln's argument on
its head by clarifying that the states and their constitutions came before the US
Constitution. Lincoln put the cart before the horse. Be advised that writing
in the 18th century the "s" often appeared as an "f".
These are not typos.
Contempt for Abigail Adams' crafted Alien
& Sedition Act was raging at the time. You'll come to realize how sacrosanct
the people of the time regarded their press. The "General welfare"
clause is another phrase clarified. You'll need to know these things to argue
effectively for preserving our liberties under tyrannical leaders of this
period.
Our task is ever more difficult as I find
it highly unlikely any of our federally elected representatives would even
know what you were talking about in a philosophical discussion on these
matters of liberty. Never you mind them swearing an
oath to uphold the Constitution! First, the people must come to understand
the liberties guaranteed them; once grasped, then elected representatives
from their respective communities will also share the understanding of this
Compact. And you wondered how some areas of our country became more conservative
than others!
Virginia, January, 1799. HORTENSIUS.
TO THE
PEOPLE OF THE UNITED STATES.
IT is the
object of the following addrefs to demonstrate*
that fo much of the late act of Congrefs
commonly called th< Sedition bill, as relates to libels, is not warranted by
the Con ttitution of the United States, and that fo much thereof as re lates to printed
libels, is expref sly forbidden by
it. To thefe tw<
points, my observations will be excluftvely
confined.
The
following principles, it is prefumed, will be
conceded If the reader denies or doubts their truth, he need not pro teed.
The whole argument is founded on a fuppofition tha they are true.
I. That
all power originally belongs to the people.
II. That
the powers of government are powers granted bi the
people.
III. That
the individuals felected from the mafs of the peo pje, to adminifter the
government, poflefs no powers, genera or fpecial, but thofe which are
either, exprefsly, delegated, 01 are neceffary to carry a power exprefsly delegated into effecT:.
IV. That
it has frequently happened in the courfe of humar affairs, and may again happen, that the individuals
thus fe leered may abufe
the power entrufted to them, and may ufurj more power, than was meant to be entrufted to them.
V. That
one abufe does not juftify
another, and that th< ufurpations
of Congrefs cannot be vindicated by the encroach ments of the ftate Legiflatures.
VI. That
the decifion of a conflitutional
queftion, ough not, in
any manner, to be affected by the conduct of France or the opinions of Mr, Jefferfon, or any other
man, or men \. the world, but
mould reft on the immutable principles bf eafon and of truth.
It is on the ground of this laft
poflulate, that no anfwer
is iven to the arguments, founded on
opinions and writings afcrib- d to .Mr. jefferfon and to others ; arid
on the fame ground, fte aid which might be obtained
from the writings and fpeeches f Publius and other diftinguifhed
federalifts, in fupport of
the ofition now meant to be eflablifhed,
is totally rejected. It is tc purpofe
of the prefent addrefs,
not to afcertain what parti-
tlar individuals have thought, but what all
men ought to thinkj oncefning
the powers of government, and the freedom of tc prefs.
t; If air power originally
belongs to the people, thofe who xerclfe" any portion of power, mufl:
derive their authority from le people^ and can pofTefs
no power, that is not given, ex- refsly, or by fair
and neceflary implication. To afcertain
the rccife portion of power, which they have
granted, we mufl jfort to
the inftruments, or writings, by which their
intention > grant power, is exprefled. Thefe inflruments are the Confti- itions of the feveral States, formed at a time when they were
(dependent fovereignties, and the Federal Conftitution which nites all
the States.
The State
Confutations preceded by feveral
years, the for. tation of
the Federal Compact. By thefe ConftitutionSj
gotfi nments were
organized, and the Legiflatures were intrufted ith a general power,
to do what they might think the public 3od required. This power had been exercifed, in all the States, vd
the regulations, which it was thought the public good re^ jiired,
had been adopted. The rights of perfons and things^ jblic and
private wrongs, which furnifh all the materials for
cal and municipal law, had been accurately defined and were ell underftood. Adequate proitijion
'was made to fecure reputatiort
\ well as liberty and life. Still, however, a Federal Govern- ent was deemed effential, to
the peace and happinefs of the 'ople
of America ; not becaufe
the State ihftitutions were defective, and required
amendment ; not becaufe liberty was in danger, or becaufe character was not fuffictently
guarded from jfarnation, but becaufe
there were many important fubjects t which the
State Legiflatures could not act with effeft. They mid noi make effe&uar proviftoa for
paying the public debt* ftor regulate Commerce,
nor borrow money en the credit of the United States, nor eftabliftt
a fyftem of general defence.
Thef were the great objects which could not be
attained, but b] means of a Federal Government, and for the attainment of thefi objects a Federal Government was inftituted. The power therefore, delegated to this
government, were fpecial and limr;
ed, and from the ftate of
things could not have been otheruifo
Nothing can be more obvious, and nothing has been mon generally admitted, than the diftinction
between the principi which is the bafts of the State Governments, and that whic! forms the bafis of the Federal Conftitution.
To the Statt governments, general powers of legiflation are granted, am they may legiflate
on all fubjects, except thole
on which the] are exprefsly forbidden to act. To
the Federal Governmenr fpecific
powers only are given, and Congrefs can legiilate or thofe fubjects only on which
they are expr^fsly authorifed
tc act. The State governments poffefs
all powers, belonging tc the people, except thofe exprefsly withheld : the
general go vernment poflefles
thofe powers only, which are exprefsly
grant ed, or are neceffary
to carry a power exprefsly granted int< effect. When therefore a doubt arifes concerning the confti tutionality of a congreffional
law, the firft queftion
ought re gularly to be, is the power to pafs this law exprefsly grantee
to Congrefs I If it be not exprefsly granted in plain words fo
that purpofe, the next queftion
rnuft be....Is this lawnecefiar;
to carry any power exprefsly granted into effect ? If it be no neceflaryt
there is an end to all doubt or difficulty on the iub
ject, and the law is abfolutely
void.
Let the
Sedition bill be brought to the teft of an examinati en on thefe principles, and the refult
will be, that thofe claule
in it, which punifh infurrection
or aftual oppofttion
to the au thorifed mealures
of government, will be found warranted b1 the
terms and meaning of the federal compact; becaufe tht beft laws would be of no
avail, unlefs Congrefs pofiefled a pow er to punifh thofe, who oppofed their
execution. The powe: of punifhing
acts of oppofttion 10 the laws, therefore, bein^ neceflary, to carry the
laws themfelves into due operation, i readily conceded to belong to Congrefs.
But the inquiry pur fued
farther, on the fame principles, will terminate in a con victjon,
that fo much of the fedition
bill, as relates to. libels, or the government, or the individuals belonging to it, ts not
within the words or meaning of the Conftitution.
It will not be faid that the power of puniitting libels is exprefsly
given.
Several offences
are enumerated which may be defined by the general government; but libels are
not included. If then the power of punifhing libels
is not exprefsly given, it cannot be pcercifed, unlefs it can be
(hewn to be neceffary to carry fome given powers into effect. What is the power exprefsly given, [which is carried into effect, or is in
any fhape aided in its operation, by the power of punifhing libels ? Plain as this
queftion is, it never has been anfwered ; in fact it
cannot be anfwered.
Galiatin propounded it at
the laf t feflion to the
advocates of the edition Bill, with his ufual perfpicuity; yet neither
the elojquence of Otis, nor the ingenuity of Harper
could be brought Jo encounter it
,j One cafe more will
completely illuflrate the doctrine here
.inculcated. In 1792 Congrefs paffed
a law punifhing with death jperfons
concerned in robbing the mail, or ftealing letters from ihe poft-office. If the enumerated powers of the government
.be examined, it will be found that the power to pals fuch
a law is not exprefsly granted ;
ftill however it is warranted by the Conftitution, becaufe it is neceffary to carry into efleft
the general power exprefsly granted to Congrefs, to eftablifh the poft-officq. The pofition, that
Congrefs can exercife no
power that ts not jiven exprefsly, or by neceffary
implication, tho* manifeftly
re- ulting from the nature of a federal compact,
and fupported by every fair and rational conftruflion of the Conftitution
has, from excefs of caution, been exprefsly recognized by the I2th. article
of the Amendments, which declares, '* that powers not delegated to the United
States by the Conflitution, nor prp-
" hibited by it to the States, are referved to the States refpec* tively, or to the people." Solid as the foregoing
principle is, and folemn as its recognition has
been by the people of America, it has been boldly denied by fome, and artfully evaded, by others. It has been ftrenuoufly contended, that Congrefs had power to adopt all meafures,
which they might think conducive to the general wel-?
fare. Mr. S. from South Carolina was the firft who openly pro. claimed it
as his opinion, that conftitutionality, and
expedience, were convertible terms*...
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