The Arkansas banner., 1845-11-26
MR. MADIS0N'S REPORT
 ON THE VIRGLJN{a RESOLUTIONS. (C0minRed
VIRGINIA HOUSE OF DELEGATES.
 Session of l799-130O

l Report of the committee to whom were re-
 terred the communications of various States.
 relative to the Resolutions of the last Gen.
 eral Assembly of this State, concerning
 the Alien and Sedition Laws.
 FIFTH RESOLUTION.
 The resolution next in order is eoH.4ined in the following terms:
 "Ihat the General Assembly doth part;e- ularly protest against the paIpable and alarm Ing Iniractlons of the Constitution, in the two late cas~s of the "Alicn and Sedition Aets," passed at the last session of Con- gross; the first which exercises 2 power no- where delegated to the Federal Governments and which, by uniting Legislative and Judi eial powers to those of Executive, subverts the general principles of q free government, as well as the particular organization and positive provisions of the Federal Consttu- ton; and the other of which acts exercises, III like manner, power not delegated by the Constitution; but, on the contrary, ex- pressly and positively forbidden by one of the amendments thereto a power which, more than any other, ought to produce uni yersal alarm; because 1t is leveled against theright of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed the only efiectual guar dian of every other right"
 The subject of this resolution having, it pr resumed, more particularly led the Gen eral Assembly into the proceedings which they communicated to the other States, and being itself of peculiar importance, t de- serves the most critical and faithful investi- gatlon; for the length of which, no other apology will be necessary.
 The subject divides itself into, frsi, 'The Alien Act;' secondly, 'The Sedition Act
 Of the Alien Act 1t Is affirmed by the Resolution, 1st. That 1t exercises power nowhere delegated to the Federal govern ment. 2d. That 1t unites Legislative and Judicial powers to those of the Executive Sd. That this union of power subverts the general principles of free government. ALh That it subver.s tie particular organization and positive provisions of the Federal Con- stitution.
 In order 10 clear the way for a correct view oi the first position, several observations will be promised
 h the first place it is 10 be borne in mind, that, 1t being characteristic feature of the Federal Constitution a5 it was originally rat lied, and an amendment thereto having pre- elsely declared That the powers not dele gated to the United States by the Constitu- ton, nor prohibited by 1t to the States, are reserved to the States respectively, or 10 the people" 1t Is incumbent in this, US in every other exercise of power by the Federal Gov ernment, to prove, from the Constitution, that il grants the particular power exer- cised.
 The next observation to be made, is, that much confusion and fallacy have been thrown into the question, by blending the two cases of aliens, members of hostile nations; and aliens, members ofJriea4g nations These two cases are so obviously and so essentially distinct, that 1t occasions no lituc surprise that the distinction should have been di5ra- garded; and the surprise is so much the greater as il appaars that the two cases are actually distnguishdd 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,' and the other concerning aliens indiscriminately, and consequently extending to aliens of eV- cry nation in peace and amity with the Uni ted States. With respect to alien enemies, no doubt has been intimated as to the Fed eEal authority over them; the Constitution having expressly delegated to Congress the power to declare war against any nation, and of course to treat 1t and all its members as enemies. With respect 10 aliens who arc not enemies, but members of nations in peace and amity with tie United States the power assumed by the Act of Congress is aeeor- dinghy against this Act that the protest of the General Assembly is expressly and exclu- sively directed.
 A third observation is, that, were it admit ted, as is contended, that the 'Act concern ing Aliens has for its object not penal, but PreUeatiUe justice, it would still remain to be proved that 1t comes within the constiu- tional power of the Federal Legislature: and, if within its power, that the Legislature has exercised it in constitutional manner
 In the administration of preventive justice, the following principles have been held sa- cred: that some probable ground of susPl- cion be exhibited before some judicial au- thority; that it be supported by oath or al- firmation; 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 ha- beas corpus, and thus obtain his release, l wrongfully confined and that he may al any time be discharged ilom his recogni- zance, or his confinement, and restored te his former liberty and rights, on the order oi the proper judicial authority, if il shall set 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 10 be judged of not by any judicial authority, but by the Executive Mag istrate alone no oath or affirmation Is re euired; if the suspicion be held reasonable by the President, he may order the suspec- ted Alien to depart the territory of ihe Unl ted States, without the opportunity of avoid ing the sentence by finding pledges for hi 1 future good conduct; as the President ma, limit the time of departure as he pleases the benefit of the writ of habeas corpus ma, be suspended with respect to the party although the eonstitation ordains that 1t shal T .1.- | .