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denouncing them as placing our government in the attitude of an ally of European despotism, and an enemy to the extension of liberal political institutions on this continent. That bold and sagacions statesman saw the deep schemes of European sovereigns whose colonial possessions in America were jeopardized, and dared to assail the suicidal policy attempted to be foisted upon us under the specious pretense of non-interference and national morality. In the History of Congress, published by Gales & Seaton, p. 1403, in reference to the discussion of this bill, I find the following:

"Mr. Clay offered some general remarks on the offensive nature of the bill, which, he said, instead of an act to enforce neutrality, ought to be entitled an act for the benefit of his majesty the King of Spain." Again, on the 18th of March, it is reported of Mr. Clay :

"In the threshold of this discussion, he confessed he did not like • much the origin of that act. There had been some disclosures-not in an official form, but in such shape as to entitle them to credence -that showed that act to have been the result of a teasing on the part of foreign agents in this country which he regretted to have seen. But from whatever source it sprung, if it was an act necessary to preserve the neutral relations of the country it ought to be retained; but this he denied.

"In its provisions it went beyond the obligations of the United States to other powers, and that part of it was unprecedented in any nation which compelled citizens of the United States to give bonds not to commit acts without the jurisdiction of the United States which it is the business of foreign nations, and not of this government, to guard against.”

Again, on the same day, this bill being still under consideration, Mr. Clay, alluding to the Spanish minister, said:

“He (Mr. C.) would not treat with disrespect even the minister of Ferdinand, whose cause this bill was intended to benefit: he is a faithful minister, if, not satisfied with making representations to the foreign department, he also attends the proceedings of the Supreme Court to watch its decisions; he affords but so many proofs of the fidelity for which the representatives of Spain have always been distinguished. And how mortifying is it, sir, to hear of the honorary rewards and titles, and so forth, granted for these services; for, if I am not mistaken, our act of 1817 produced the bestowal of some honor on this faithful representative of his majesty; and, if this bill passes which is now before us, I have no doubt he will receive some new honor for his farther success."

Mr. Clay concluded his speech thus:

"Let us put all these statutes out of our way except that of 1794. When was that passed? At a moment when the enthusiasm of liberty ran through the country with electric rapidity; when the whole country en masse was ready to lend a hand and aid the French nation in their struggle, General WASHINGTON, revered name! the Father of his country, could hardly arrest this inclination. Yet, under such circumstances, the act of 1794 was found abundantly sufficient. There was, then, no gratuitous assumption of neutral debts. For twenty years that act has been found sufficient. But some keensighted, sagacious foreign minister finds out that it is not sufficient,

and the act of 1817 is passed. That act we find condemned by the universal sentiment of the country; and I hope it will receive farther condemnation by the vote of the House this day."

In the course of the same debate, Mr. Robertson also intimated the charge that foreign influence, more than domestic policy, produced the passage of that law. He argues :

"This might be a sufficient ground for the ministers of Portugal, of England, and of France to proceed upon; but shall we sympathizo in their feelings on the subject, and be induced by them to pass acts to shackle our citizens, when it is so easy to trace their remonstrances to a general hostility to the cause of any people who are engaged in a struggle to ameliorate their condition by changing their form of government? It does not appear now that that act was passed so much with a view to do what is just to ourselves as to accommodate the views of foreign nations."

But alas! European idens were too much venerated; European influence prevailed, and this unfortunate system was ingrafted upon us. The objections to this act, as interpreted in our day, are:

Its creation of constructive crimes;

Its denial of the right of expatriation, and, under certain circumstances, of emigration even;

Its prohibition of the right of the citizen, in some cases, to avail himself of the rewards of his skill, his ingenuity, or his labor;

Its loading with onerous burdens, and punishing with severe penaltics, fair commercial enterprises and speculations;

Its conferring upon the President and the collectors of ports powers inconsistent with the principles and dangerous to the institutions of our country;

Its branding as criminal acts noble, generous, and patriotic in themselves;

Its assuming to treat the citizens of a free country as the subjects or property of the government.

If all these obnoxious features do not appear distinctly in the act, the construction which has been placed upon them by, at least, one of the judges of the Supreme Court, has marked them in bold and unmistakable outlines.

There is, however, at the start, a still more serious objection to the whole of this legislation. It is not only not warranted by the Constitution-it is an attempt to take away from a free people rights which they have never surrendered. It is, to say the least, founded on an entire misconception of the relations which exist between the government and the people under our peculiar system.

This federal government is a limited one. Constituted by the states in their sovereign capacity, it possesses no powers but those clearly delegated to it in the compact of union. This character of our government is not left to inference: it is stamped in express words upon the instrument that created it. There it rests, and casuistry can not blot it out. The "POWERS NOT DELEGATED ARE RESERVED.' "Tho enumeration of certain rights shall not be construed to deny or disparage others retained by the people." When, therefore, it is proposed to legislate upon any subject, the first inquiry must be, whether that subject is within the jurisdiction of Congress. The broadest con

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structionist does not pretend that crimes and misdemeanors generally are within the jurisdiction of the federal government. Whence, then, are derived the powers claimed under the act in question? To what clause of the Constitution do you trace them? There is no semblance of a warrant for them to be found in the Constitution, unless they be included in the power to define and punish "offenses against the law of nations." If the grant of power be not contained in that clause, it is not to be found in any place. The act, to be defined and punished, must be an offense against the law of nations. To offenses of that class is this power limited; to them alone can it be applied. Will it be pretended that, under this power to define and punish, Congress has power to go out of the law of nations, and make offenses or crimes of those acts which, by the law of nations, are not condemned? If so, the whole field of criminal jurisprudence is thrown open to federal legislation, and the specification of a limitation becomes absurd. For instance, the sale of breadstuffs or of clothing by one of our citizens to a nation at war with a friendly power is not forbidden by the law of nations. Will it be assumed, then, that Congress, under the power above quoted, can make such sale a penal offense? Why can this not be done? Because the act is not an offense against the law of nations. That law is referred to in the Constitution as a positive existence. No authority is given to Congress to alter or change it, or to create new offenses. Judging the act of 1818 by these rules, its leading provisions are clearly without the pale of the authority of Congress. The very title of the act, as if in contempt of the limitations of the Constitution, proclaims it a usurpation. Instead of an act to define and punish offenses against the law of nations, it purports to be "An act for the punishment of certain crimes against the United States." Like the alien and sedition laws, it attempts to make a crime of that which was before not even an offense. Now, the law of nations, even as known and acted upon in Europe, where the government generally has entire control over the citizen, or rather the subject-there, I repeat, the law of nations does not regard it as an offense for the citizen to take service under a foreign government at war with a friendly power. The usage is the reverse.-Vattel, b. iii., ch. vii., sec. 110, gives the rule and example:

"The quarrels of another can not deprive me of the free disposition of my rights in the pursuit of measures which I judge advantageous to my country. Therefore, when it is a custom in a nation, in order for employing and exercising its subjects, to permit levies of troops in favor of a power in whom it is pleased to confide, the enemy of this power can not call these permissions hostilities. * He can not even claim, with any right, that the like should be granted him, etc. The Switzers grant levies of troops to whom they please, and nobody has thought proper to quarrel with them on this head." If, then, it be not an offense against the law of nations, even according to the European code, for the citizen of any neutral state to take service under a belligerent nation, what constitutional power has Congress to prohibit the right of a free American citizen to lend his intellect, his wealth, or his sword, to any cause which he believes to be just? And yet the first and second sections of the act of 1818 declare the exercise of this right to be a high crime, and worthy of fine and imprisonment.

The third, fifth, eighth, ninth, and eleventh sections of the act are obnoxious to objections of a similar character. They, in substance, forbid, under severe penalties, the selling, fitting out, arming, furnishing, or adding to the force of any ship or vessel intended to be employed in the service of any foreign state, or to cruise or commit hostilities against the citizens, subjects, or property of any foreign state; and, furthermore, they invest the President and the collectors of ports with extraordinary powers to seize and detain suspected vessels. Now many of these acts, if not all of them, thus made criminal and severely penal, are in strict conformity with the rights of neutrals, acknowledged by the law of nations. The property thus risked may, if seized by a belligerent, be confiscated; but the neutrality of the country whose citizens are engaged in such trade has never been considered as violated thereby. Vattel, in the same connection, proceeds thus:

"Further, it may be affirmed, on the same principles, that if a nation trades in arms, timber, ships, military stores, etc., I can not tako it amiss that it sells such things to my enemy, provided it does not refuse to sell them to mo also. It carries on its trade without any design of injuring me; and in continuing it the same as if I was not engaged in war, that nation gives me no just cause of complaint. It is certain that, as they have no part in my quarrel, they are under no obligations to abandon their trade that they may avoid furnishing my enemy with the means of making war. They only exercise a right which they are under no obligations of sacrificing to me."

*

The question, then, recurs, has Congress a right to brand as criminal acts clearly permitted by the law of nations?

Tho sixth section of tho act proposed to be repealed, although in its phraseology, and still more in the interpretation which judicial advocates of constructive powers have placed upon it, it is more odious to the unaffected impulses of the American heart than any of the others, is still not so palpably at variance with the rights of neutrals conceded by the laws of nations. This section forbids, under severe penalties, any person within our territory to begin, set on foot, provide, or prepare the means for any military expedition or enterprise to be carried from this country against the territories of any foreign prince or people with whom we are at peace. This clause, if strictly construed, according to the rules which should govern the interpretation of penal statutes, means only to forbid military associations in the United States intended to proceed from thence in full military organization; but it has been construed by government officials, executive and judicial, to embrace in its penal denunciations those who separately, as private individuals, and without military organization, may choose to leave our country, with or without arms, to combine together elsewhere for the purpose of aiding an oppressed people to achieve their political independence. Such acts on the part of citizens do not involve the neutrality of our country; therefore, penal laws to punish them are not only beyond the scope of congressional powers, but aro also infringements on the unquestionable right of the citizen as well to expatriato himself and unito his fortunes with those of another political community, as to emigrato to foreign lands, and there follow VOL. II.-Q

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pursuits which may not be inconsistent with his allegiance to his country.

I have thus, Mr. Chairman, in this brief argument, considered the constitutionality of this law with reference to the European views of the law of nations. I have shown that the act of 1818 restrains individual rights, private enterprise, and personal liberty beyond the re.quirements of the international code; and, consequently, is without the pale of congressional powers. The power "to define and punish offenses against the law of nations" was confided by the Constitution to Congress, not to the executive or judiciary, for the sole purpose of preventing individuals from compromising the neutrality of the United States. It was never intended to control the private enterprises or speculations of the people. So far, then, as these enterprises do not, according to the established international code, involve the neutrality of the government, it is powerless to restrain them, because the right to do so has never been delegated. The government is responsible to the citizen, but not for him. He may commit, without responsibility to any earthly power, many deeds which the government can not so commit. The latter is always responsible. The American citizen sits enthroned within the charmed circle of his reserved rights, the monarch of his own actions. The reservation of these individual rights is the noblest feature of our system; and he is its worst enemy who, by legislative usurpation or judicial construction, would seek to impair them. The true patriot should watch and guard them from secret as well as open focs.

Even if the penal laws which I have arraigned were strictly constitutional, I would still oppose them as unwise, impolitic, and against the genius of our free institutions. They are founded upon the false assumption that the government should direct the morals and control the sentiment of the people. It is sheer political hypocrisy, or, at least, self-stultification, to crown with honor the memory of the good man Lafayette, whose portrait is deemed worthy to decorate this republican hall in company with that of our own Washington, in our gratitude for the aid which, in despite of his country's laws, he rendered us in the dark hour of our Revolutionary struggle, if we are by legislation to stigmatize as criminal the efforts of our own citizens to bear assistance to a neigboring people groaning under the yoke of an iron despotism-a despotism to which the condition of our ancestors was almost a state of freedom.

If our moral and national obligations to other nations require us to curb, by severe penal statutes, the adventurous and progressive spirit of our people, and we have the constitutional right to do so, let the bond be executed. If no such obligations rest upon us, and we are left free to consult the best interests of our country, it is my opinion that, even if we had the power to retard the progression of the age, it would not be exactly the perfection of wisdom for us to do so. Keeping in view the remarkable and interesting condition of adjacent countries, we can not fail to perceive that we have reached an epoch pregnant with mighty events. A year, a month, even, may determine whether Mexico, Central America, and Cuba shall be European or American. If, as I fear, the eyes of the two great powers of Western Europe are directed to their acquisition, how easy would it be for

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