Contemporary Opinion of the Virginia and Kentucky Resolutions
Frank Maloy Anderson
Part I, The American Historical Review, No. 1, pp. 45-63 (October 1899)
The right to complete freedom in the utterance of political opinions has been so long a fundamental principle in the United States that probably few Americans will recall the fact that exactly a hundred years ago the controversy which eventuated in the complete triumph of that principle raged all over the Union. The Virginia and Kentucky Resolutions of 1798, whatever their whole purpose, were designed primarily as a protest against the infringement of this principle by the recently enacted Alien and Sedition Laws. Incidentally they gave expression to a theory concerning the nature of the federal union which was of equal or perhaps greater significance than their protest against all interference with freedom of speech. It is singular that a controversy which involved an expression of opinion by the whole American people upon two questions of so much importance should have been treated by historians as this one has been. Enough and more than enough has been written about the authorship of the resolutions and their ultimate object; but little if any serious effort has been made to ascertain what the people of the United States thought about them. When Jonathan Elliot compiled his now celebrated Debates he was content as regards the Resolutions of 1798 and 1799 merely to reprint a pamphlet published in 1800 by direction of the Virginia legislature, adding the Kentucky Resolutions for both years. From this material one can learn next to nothing of the public sentiment in the two states which induced the passage of the resolutions and but little of the temper in which these resolutions were received in other states. None of the memorials addressed by the county courts to the two legislatures appear in the pages of Elliot; and of sentiment outside of Virginia and Kentucky one can judge only by the answers of the seven states[1] whose legislatures sent to the Virginia legislature replies disapproving of its resolutions. Believing that these seven replies are not sufficient to represent adequately the public opinion of the entire country, I have attempted to extract from contemporary pamphlets and newspapers some account of such reported actions and expressions as will reveal the state of public opinion relative to the resolutions.
Prior to the meeting of the legislatures of Virginia and Kentucky, in 1798, a number of large public meetings, in both states, had denounced the recent measures of the federal government, and particularly the Alien and Sedition Laws. Most of these meetings drew up memorials on the subject and addressed them to the legislature of the state. A comparison of these memorials with the resolutions makes it plain that the passages in the resolutions which arraign the policy of the federal government merely epitomize the memorials on that point. But in respect to the remedy, some of the memorials use only vague and general expressions; others call upon the legislature to formulate the appropriate remedy and pledge the memorialists to accept it.[2] We are warranted, therefore, in concluding that the idea of the remedy which the resolutions put forward originated with their authors, and in brief with Jefferson.
Satisfied that the resolutions of 1798 represent the voice of Virginia and Kentucky in their protest, and the ideas of Thomas Jefferson in the remedy hinted at, let us see how they were regarded in the other states. Maryland, from its proximity, had the first opportunity to express an opinion upon the resolutions. The opportunity was not neglected; before the resolutions of Virginia were received and even before the probable action of that state could have been known at Annapolis, a committee of the House of Delegates was appointed to consider the resolutions of Kentucky. Four days after Virginia had passed her resolutions the report of this committee was agreed to by the House of Delegates by a vote of 58 to 14. This report is very brief and its dissent is expressed in vague and general terms: the resolutions of Kentucky are "highly improper, and ought not to be acceded to," for they "contain sentiments and opinions unwarranted by the Constitution of the United States, and the several acts of Congress to which they refer."[3]
Soon after the Kentucky Resolutions had been thus disposed of the resolutions from Virginia were received and referred to a committee; the report of this committee is longer, more precise, and the proceedings upon it may be known in part.[4] The committee report that after most serious consideration and mature deliberation it is decidedly of the opinion that "a recommendation to repeal the Alien and Sedition Laws would be unwise and impolitic." An equally pointed negative is given to the remedy suggested by Virginia: "No State government by a Legislative act is competent to declare an act of the Federal Government unconstitutional and void, it being an improper interference with that jurisdiction which is exclusively vested in the Courts of the United States." The result of this reasoning is a resolution which differs from the report in only one particular, but that an important one; the resolution omits the declaration contained in the report that the power to pronounce an act of federal legislation unconstitutional and void belongs exclusively to the federal courts. It is therefore only a rejection of the Virginia remedy, not an assertion of a more appropriate one. Unfortunately the debates upon this report and resolution have not been preserved, but the proceedings so far as recorded are worthy of consideration. Prior to the final vote upon the report and resolution five votes were taken upon questions involving some portions of the whole; two of these presented only the question of the expediency of the Alien and Sedition Laws; the other three dealt with the remedy suggested by Virginia. The final vote was forty-two to twenty-four; this would seem to indicate that the endorsement of the Alien and Sedition Laws was made more prominent than the condemnation of the Virginia remedy.[5]
In the Senate the Kentucky Resolutions were presented but no action was taken upon them; in reply to Virginia the resolutions of the House of Delegates were adopted.[6] The action of the state was not officially transmitted to either Virginia or Kentucky.[7]
In Maryland, discussion of the Virginia and Kentucky Resolutions seems to have been confined almost entirely to the legislature; in Pennsylvania the debate over them was more widely extended. Philadelphia, as was natural from its commercial, social, and intellectual prominence, enjoyed the best newspapers published in the United States. These papers, taking notice at an early date of the agitation in Virginia and Kentucky, reported its progress with considerable promptitude and fullness. Unlike most of the papers elsewhere, the Philadelphia press was not content to merely print a portion of the news; resolutions like those of Virginia and Kentucky called for comment, and the kind of comment made is significant. Fenno in the Gazette of the United States presented to his Federalist readers the resolutions of both states together with portions of the speech of Governor Gerrard to the legislature of Kentucky, under the title: "Fruits of French Diplomatic Skill."[8] Dismissing the resolutions without discussion, he attacked the speech. One portion of it he pronounced "a most atrocious train of misrepresentation and falsehood;" another he characterized as "too weak and contemptible to merit much attention;" the whole is an "abominable speech, distinguished no less by the depravity of its sentiments, than the most desperate folly." It was the spirit rather than the matter of the speech that alarmed Fenno; little attention was paid to the remedy which Gerrard had suggested and no attempt was made to show that it might not rightfully be employed. It was the possibility of resistance to federal government rather than the cause of that opposition or the proposed method of resistance that seemed to Fenno the important side of the affair. The resolutions seem to have had upon him an effect similar to that produced upon other Federalist editors, strengthening his already implicit belief in the rapid approach of disaster. On March 4,[9] he pointed out to his readers four "indications of approaching convulsion"; number one is "the imbecility of our frame of government," and allusions make it plain that the imbecility referred to was that which made possible such opposition to the federal government as that of the Virginia and Kentucky Resolutions. The present system he characterized as "a mere experiment," "a jangling and chaotic confusion of federal and state governments, which can compare to nothing more nearly than a farrow of pigs, who have so strengthened and increased on the nourishment she has afforded them, as to be able to insult her authority and resist her controul."
As might have been expected, the bitterest invective came from Cobbett, who in this connection wrote some of his most characteristic paragraphs. At one moment the reader is surprised by a touch showing remarkable insight into some problem then facing the American people; the next moment his admiration is excited by a prophecy since actually realized, or falsified only by circumstances which no man could then have anticipated; meanwhile he is constantly amused by bits of sophistical reasoning, by Cobbett's ignorance of American history or his failure to appreciate some of the most obvious traits of American character. Desiring to properly label Gerrard's speech and the Kentucky Resolutions, Cobbett introduced them to his readers with the remark that he had always apprehended that the chief danger from French influence lay in the possibility that France might acquire Louisiana and aid the Kentuckians in a revolt from which they "were far from being disinclined." That the action of Kentucky is a revolt due to French influence is tacitly but none the less effectively assumed in the observation, "This most impudent speech, from the governor of that country, will enable the reader to judge how far my apprehensions are well founded."[10] To Cobbett, as to Fenno, the mere fact of opposition rather than the manner or the ground of the opposition demanded attention.
When the news of Virginia's action reached Cobbett, his anger burst forth in a long hysterical article, characterized by abusive epithets and the absence of any real argument; the Virginians are taunted with the holding of slaves and advised to study the Constitution which they profess to hold in such veneration, especially that portion of it which declares that all men are born free and equal! The address of the legislature to the people of Virginia is pronounced "little short of high treason," "the most seditious that ever daring demagogue drew up, or that ever a factious assembly had the impudence and folly to sanction."[11] Neither the protest against the Alien and Sedition Laws nor the right of a state to render them void is discussed. In his wrath against the Republicans Cobbett quite forgot to disprove their propositions. A little later he expressed a more deliberate opinion upon the result to which the Virginia and Kentucky opposition would lead. "Virginia will have either a majority in congress or a separation of the states! And, one or the other, I am afraid she will have, ere two years are at an end." But the danger of separation, he thinks, does not come from Virginia alone. "It is very certain, too, that the New Englanders want to get rid of the Southern States. Their interests are as opposite as are the manners of their inhabitants."[12] This idea that New England will resist the impending triumph of Virginian ideas Cobbett elaborates in reply to "Plain Truth," a Virginia correspondent. "In point of fact," argues Plain Truth, "no state can be permitted to withdraw itself from the union. In point of policy, no state ought to be permitted to do so." "I highly applaud," says Cobbett, "the motives of Plain Truth, and most sincerely hope, that his eloquence may produce a good effect among the Virginians. But I must confess, I do not think his reasoning is forcible..... Does he imagine, that the industrious and orderly people of New England will ever suffer themselves to be governed by an impious philosopher or a gambling profligate, imposed upon them by Virginian influence? If he does, he knows little of New England. The New Englanders know well, that they are the rock of the Union. They know their own value; they feel their strength, and they will have their full share of influence in the federal government, or they will not be governed by it. It is clear, that their influence must decrease; because every man has a vote, and the middle and southern states are increasing in inhabitants, five times as fast as New England is. If Pennsylvania joins her influence to that of New England, the balance will be kept up; but, the moment she decidedly throws it into the scale of Virginia, the balance is gone, New England loses her influence in the national government, and she establishes a government of her own."[13]
Looking into the columns of the Aurora for expressions that will indicate the opinions of Pennsylvania Republicans upon the resolutions of their Virginia and Kentucky brethren, a peculiar attitude is discovered. Comment is almost entirely lacking, but the resolutions are published with great gusto along with other protests against the Alien and Sedition Laws. This seems to show that the resolutions were regarded as in the main a protest against obnoxious laws, though the impolicy of insisting too much upon what was likely to prove unpopular in Pennsylvania may have had a share in producing silence as regards the proposed remedy. Yet in August the Observatory, of Richmond, Virginia, copied from a Philadelphia paper a short item which seems to show that some Pennsylvania Republicans did approve of the tenets of their Virginia and Kentucky brethren. "Is not every officer of a state government sworn to support the constitution of the U. States? If the federal government passes laws contravening the constitution, is it not a breach of oath in a state officer to carry such laws into effect? Are not the states as well as the federal government to judge of the Constitution? Is not the Constitution a contract between the different states? Are not they to judge whether this contract be broken or violated? If congress can annul a contract with a foreign nation because of its violation, will not the same justice operate to modifying or annulling a contract between States, which is no longer regarded?"[14]
Legislative action upon the resolutions was not so prompt in Pennsylvania as in Maryland, but when taken was not less decisive. On January 25 the governor transmitted to the legislature the resolutions of Kentucky. In the Senate a motion was at once made to lay them upon the table, apparently for the purpose of securing some discussion of the resolutions. But even this scant courtesy was refused and the motion was defeated by a vote of fourteen to eight.[15] In the House of Representatives no action was taken until February 1, when a course different in sort but similar in purpose was pursued. Six counter-resolutions were adopted "by a considerable majority." These counter-resolutions are devoted almost exclusively to Kentucky's protest and remedy for the Alien and Sedition Laws. These laws are "just rules of civil conduct, and component parts of a system against the aggressions of a nation, aiming at the dominion of the world"; the favorite Federalist argument, that no well-behaved citizen need fear the operation of the Alien and Sedition Laws, is repeated at length. Disapproval of the Kentucky remedy is even more strongly expressed: a declaration by a state legislature that an act of the federal government is void and of no effect is a "revolutionary measure" as dangerous as unwarranted. The House does not stop, however, with denying the Kentucky doctrine but proceeds to enunciate its own counter-doctrine. "Resolved, That in the opinion of this House, the people of the United States have vested in their President and Congress, the right and the power of determining on the intent and construction of the Constitution, as on the ordinary subjects of legislation, and the defence of the Union; and have committed to the Supreme Judiciary of the nation the high authority, of ultimately and exclusively deciding on the constitutionality of all legislative acts."[16]
When the Virginia Resolutions were received, on March 9, the Senate repeated its former action; "voted them under the table" is the description of the Federalist press. The House, as before, dismissed them by resolution, but this time no argument was indulged in.[17] The principles of Virginia "are calculated to excite unwarrantable discontents, and to destroy the very existence of government. They ought to be and are hereby rejected." This resolution was passed by a vote of forty-three to twenty-five, seemingly a party division and indicating that the constitutional doctrines of Virginia were not so heretical in the eyes of Pennsylvania Republicans as to preclude the partial endorsement of them which a vote against the resolution implied.
Delaware took prompt action upon each set of resolutions; on January 21, both houses of the General Assembly united in the opinion that the resolutions of Kentucky were "a very unjustifiable interference with the general government, and the constituted authorities of the United States, and of dangerous tendency, and therefore not a fit subject for further consideration of the General Assembly."[18] Eleven days later exactly the same words were again employed to dismiss the Virginia Resolutions.[19]
The New Jersey legislature did not meet until January 16, 1799, but its action was foreshadowed two days before in the Federalist, or New Jersey Gazette.[20] The Virginia and Kentucky Resolutions will be dismissed "with contempt," for sedition forms no item of natural rights in New Jersey. Its second argument sounds like an echo of 1787 and shows that the Gazette understood the art of befogging the real issue by an appeal to ancient prejudices. Virginia, in reality, cares little or nothing for the Alien and Sedition Laws; it is the Constitution she aims at destroying, and that because the small states have an equality with herself in the Senate.
Four days after the appearance of this article the legislature disposed of both sets of resolutions in the manner predicted. But this action was not taken before a lively debate in the House had shown exactly the attitude of both the Federalist and the Republican members of the legislature towards the resolutions.[21] Additional interest is given to this debate by the fact that it is one of the two debates in the state legislatures over replies to the Virginia and Kentucky Resolutions which have been preserved for us. Messrs. Campbell and Van Cleve, speaking for the Federalists, urged immediate dismissal by a unanimous vote. About the subject-matter of the resolutions "no honest American could entertain a doubt"; "all seemed to express, both publicly and privately, the most decided disapprobation of them." "The consideration of a suitable reply would involve a waste of time and the public money"; "an appearance of respect for a sister state is not demanded towards one which has shown so little respect for the general government and in its resolutions offered the greatest possible insult to this state"; "a reply must be expressed in terms of the highest disapprobation and probably would be more irritating than the action proposed."
For the Republicans the motions to dismiss the resolutions were opposed by Messrs. Pennington, Southard, Stillwell and Morgan. All four expressed their own disapproval of the resolutions,[22] two of them asserting, without contradiction, that the resolution had no friends in the House.[23] Thus seeming to agree with the Fedderalists as to the merits of the resolutions they advanced a variety of arguments for a different disposal of them, advocating a reply which should state the reasons of the legislature for rejection. The subject-matter of the resolutions involves questions of the highest importance to the welfare and happiness of the states, but upon which there is much difference of opinion and agitation in the public mind. A sister state, especially one of the importance of Virginia should be treated with respect; if the resolutions are indecent, "let us not retort upon them indecency." It is certainly the duty of New Jersey to endeavor to appease, not to irritate, and a well-reasoned reply will be the most likely means of preserving harmony between the states and may tend to work conviction. Many members of the House cannot be persuaded to vote for instant dismissal, and to force a vote upon that issue would create an appearance of division of opinion in regard to the merits of the resolutions. But these arguments were of no avail, for the vote upon the motions to dismiss appears to have been a strict party division, twenty to fifteen. In the Senate no action appears to have been taken, that of the House being regarded as sufficient.
From the debate in the House one might conclude that New Jersey Republicans were not opposed to the Alien and Sedition Laws and differed from the Federalists over the Virginia and Kentucky Resolutions only in desiring a respectful reply to them instead of a summary dismissal. But an inspection of the columns of the Republican newspapers of New Jersey shows beyond all doubt that New Jersey Republicans disapproved of the Alien and Sedition Laws,[24] being on that point in exact accord with their brethren of Virginia and Kentucky. The Centinel of Freedom, the leading Republican paper of the state, published by a kinsman of Pennington, the Republican legislative leader, in commenting on the action of the House in dismissing the resolutions, asks: "What else could compel the exclusive Federalists to such a precipitant measure, but the fear, that upon a fair and candid investigation of the Constitutionality of the Alien and Sedition Acts, they would have been declared unwarrantable by the Legislature?"[25] Even in respect to the remedy it appears that the Republicans in the legislature were not in complete agreement with the Federalists, and that outside the legislature there were various degrees of difference among Republicans, some going, apparently, to the point of accepting the Virginia and Kentucky Resolutions entire.
The attitude of the Republican members of the legislature is shown in a set of resolutions offered by Pennington at the next meeting of the House, on January 21.[26] A long preamble sets forth that from the nature of the federal and state governments, each having powers in some cases exclusive and in others concurrent, and being "without a common judge to fix the precise boundary," it was expected that differences would arise. The amendment clause was provided to secure the adjustment of these differences; therefore, the resolutions call upon Congress to assemble a convention "to amend the Constitution of the United States in such sort, as accurately to define the powers given to the said government of the United States, and precisely to mark out the boundaries of power between the state and general governments, in such a way, if possible, as to leave nothing to construction, and particularly to ascertain, and specially define the powers of the general government relative to crimes." These resolutions show conclusively that the Republican members of the New Jersey legislature did not accept the Federalist doctrine that the Supreme Court of the United States is the final arbiter of differences between the federal government and the states; they further indicate an inclination, to put it no stronger, to accept all the constitutional reasoning of the Virginia and Kentucky Resolutions except the final conclusion, that each state may judge for itself. The resolutions were, of course, rejected by the Federalist majority, being dismissed on their first reading and not suffered to appear in the minutes of the House.
Some New Jersey Republicans were ready to go further; in fact, to accept the resolutions entire. One of these wrote a long article upon the subject for the Genius of Liberty, signing himself "Observor."[27] He was surprised and disappointed that the merits of the Virginia and Kentucky Resolutions were not touched upon in the recent discussion in the House; two points ought to have received attention, (1) whether the Alien and Sedition Laws were constitutional or not; (2) and if they were not, "whether they should adopt the same mode of resolution."
"But perhaps some passive, quiescent member of the house will say, the Legislature of a state have no right to give an opinion, whether a law of Congress is constitutional or not—let Congress, or the federal supreme court, decide such question (and it is no matter which, if either is to decide), but the objection must fall to the ground on a moment's reflection. The constitution is a solemn compact, made between the individual states, as sovereignties, and the U. States collectively; who, as such, possess inherently no such powers, and Congress have no right, whatever to exercise any power not expressly delegated in that compact, and all other power, not so delegated, remains entire, and belongs to the individual states; and as much so as though no such compact had been made, and as much so as the sovereignty of any state or power in Europe. Now let me ask, when a treaty or compact is made between two sovereign powers, and infracted by one of the parties, shall that party, or its court, decide whether it has itself broken the compact or not? When Congress, in a late act, declared France had broken the treaty with us, and that all obligation, on our part, ceased in consequence thereof, was this the case then? Did we wait, or submit it to them to decide, whether they had infracted the compact or not? Surely not, nor can it be right, in the present case, nor in any case whatever, without totally destroying the idea of sovereignty. If the doctrine of the objector is valid, and the states, individually, have no right to judge when the constitution is violated by Congress, there is an end to all state sovereignty, and state legislation, and we are at once consolidated; and it will be futile to elect and pay a state legislature: besides, in the case of the alien law, and many other cases, the supreme court can have no jurisdiction, the suspicion of the President is all-sufficient to inflict the penalty; how then is the supreme court to judge of the constitutionality of a law which it is not to execute?"
The Federalist newspapers of New York state were, for the most·part, content to copy the comments of the Philadelphia representatives of their faith upon the Virginia and Kentucky Resolutions, their own additions being few and short. Of real argument there was less in these additional remarks than in the comments of the Philadelphia papers, but the tone was even firmer. The New York Gazette concluded its account of Gerrard's speech thus: "But, thanks to the wisdom of Congress, WE HAVE A SEDITION LAW: and though a Governor may say much with impunity, the wretched understrappers of the party are doomed to swallow in part the bile with which they would otherwise bespatter the BEST PATRIOTS of America."[28] Another New York city paper pronounced the resolutions an attempt to separate the northern and southern states, adding: "We sincerely wish these efforts to bring the question to a crisis will succeed; and the sooner the better. We are not in the least apprehensive about the issue. There is a spirit of union and firmness in the northern states, .... which, if called to act in the adjustment of civil disputes about alien and sedition laws, will speedily put an end to all town meeting controversies on that subject." This threat it made advisedly, warning sedition-mongers to weigh well the consequences before proceeding further.[29]
Governor Jay communicated the resolutions of Virginia and Kentucky to the legislature promptly, but that body was slow to take action, nothing being done until the Federalists discovered that inaction was being construed as implying disapproval of the federal administration and its alien and sedition policy.[30] On February 15 and 16 the resolutions were discussed in the lower house and disposed of; as the resolution adopted contained no provision for its transmission to Virginia and Kentucky it has hitherto been overlooked, the reply of the Senate being taken for that of the state.[31] No reports of what was said in this debate have been preserved for us, and our sources of information even as regards the procedure are provokingly meagre. The entire matter was disposed of in committee of the whole; four or five attempts were made by the Republicans to amend the resolution offered by the Federalists. One of these was to incorporate a declaration that the Alien and Sedition Laws were unconstitutional and that Congress ought to repeal them; another proposed to expunge from the Federalist resolution the declaration that the right to decide upon the constitutionality of the Alien and Sedition Laws belonged to the judiciary. These, like all the other attempts at amendment, failed; but they are interesting as showing that the Republicans in the New York House of Representatives, like those of New Jersey, endorsed the Virginia and Kentucky protest against the Alien and Sedition Laws and shared to some extent their constitutional doctrines, though they were unwilling to declare that a state may judge for itself in cases of difference with the federal government.
When the final vote came the division was strictly upon party lines, fifty to forty-three. The preamble and resolution adopted are short and directly to the point. The right to decide upon the constitutionality of laws passed by Congress belongs to the judiciary, the assumption of that power by a state legislature is unwarrantable and dangerous; this house, accordingly, disclaims for itself such a power as that assumed by the legislatures of Virginia and Kentucky, to pass upon either the expediency or the constitutionality of the Alien and Sedition Laws, and the committee is discharged from further consideration of the matter.
In the Senate, as in the House, consideration of the resolutions was chiefly in committee of the whole; but of the proceedings there nothing has been learned. When the committee rose, on March 5, Mr. Van Vechten, a Federalist leader, reported the preamble and resolution which constitute the New York reply as given in Elliot's Debates. Spencer, the Republican leader, offered a substitute which declared that the senators think "themselves, individually, and in a legislative capacity, invested with the right of expressing their opinions upon the acts and proceedings of Congress; and that in cases of dangerous encroachments and innovations on the rights and sovereignty of the State Legislatures, it would become their bounden duty to mark and proclaim such innovations; yet this committee, most solemnly impressed with the importance and necessity of preserving harmony between the national and state governments at the present eventful period, do not judge it expedient or proper to adopt the resolutions of the States of Virginia and Kentucky." Another Republican member offered a resolution consisting of a brief statement, that it would be improper to adopt the resolutions of Virginia and Kentucky. Debate upon these substitutes was shut off by the previous question, carried by party votes. An amendment offered by Spencer for the purpose of making it appear that the reply of the Senate was chiefly directed against those portions of the Virginia and Kentucky Resolutions which assert for the states a power to render acts of Congress void, was defeated though several Federalists joined with the Republicans on that issue. Then the final vote came and the division was strictly according to party lines, 31 to 7.[32] The questions passed upon in the Senate did not involve the attitude of its members towards the protesting and the remedial features of the Virginia and Kentucky Resolutions so exactly as did those raised in the House, but taking them together they show, beyond much doubt, that the attitude of the Republicans in both houses was the same, endorsement of the protest and partial acceptance of the reasoning upon which the remedy was grounded.[33]
When the Kentucky Resolutions were laid before the General Court of Massachusetts the Federalist leaders in that body seem to have determined that the disapprobation of Massachusetts should be expressed with no uncertain sound. Accordingly, a joint committee of both houses was appointed for their consideration; this committee, consisting of three from the Senate and four from the House, was composed entirely of Federalists and had for its most distinguished members John Lowell and Nathan Dane.[34] The Virginia Resolutions, arriving after the appointment of the committee, were also referred to it.[35]
Both sets of resolutions were in the hands of the committee by January 18, but the report upon them was not presented to the Senate until Saturday, February 2. On the Monday following, as the result of a considerable debate upon the proper form of proceeding, the report was referred back to the committee to be changed from resolutions into a declaration. The next day the report came up for discussion on its merits. What was said by the Federalists cannot be ascertained, as the Senate met in secret session and none of the Federalists published their speeches. There was but one Republican in the Senate, John Bacon of Berkshire, but he made a determined protest against the report of the joint committee and afterwards published his speech in the Chronicle.[36]
Remarking that the committee had chosen to direct their arguments chiefly at establishing the constitutionality of the Alien and Sedition Laws, Bacon announced that his attention would be confined to that question, even to the exclusion of another of at least equal importance, "the question respecting the right finally to judge and determine as to the constitutionality of the acts of the General Government." The remainder of the speech, which occupied four columns in the Chronicle, is a well-considered presentation of the familiar Republican arguments against the constitutionality of the Alien and Sedition Laws; its tone is remarkably moderate throughout. Of course Bacon's reasoning did not convince any of his Federalist colleagues, but it cannot be said to have been without effect, for the President of the Senate moved that the report be referred back to the committee "for the purpose of strengthening it by new and more cogent reasons."[37]
Three days later the committee presented its report again, containing "additional reasons in support of the alien and sedition laws." As now amended the report was passed by a vote of thirty-one to two, one Federalist voting against it because of a passage declaring that in all cases involving the Constitution and laws of the United States the decision belongs to the judiciary. On the day following the matter was reconsidered and the passage altered to read "cases in law and equity," whereupon the objecting Federalist changed sides, leaving the final vote all but unanimous.[38]
In the House of Representatives consideration of the report was confined to a single day, February 12. This debate was open to the public and from the reports of the Mercury and the Chronicle a good idea of the debate may be obtained.[39]
For the Federalists, Mr. Pickman of Salem opened in what the Mercury called "a very able, eloquent and classical speech." He pronounced the Alien and Sedition Laws both constitutional and expedient, denying that aliens had any rights under the Constitution. The greater part of his speech was a defence of what he denominated the chief feature of the report, its constitutional doctrines. It is evident that Pickman dwelt more particularly upon the disastrous consequences which would certainly follow interference by the states than upon the question of their right to interfere, using that ex necessitate method of constitutional argumentation so much employed by the Federalists — a given course of action would result badly, therefore it must be inhibited by the Constitution.
Colonel Barnes of Marlborough denied the right of the state governments to interfere in any manner in federal questions, and from this principle disapproved of giving any opinion upon the subject. This scruple, which was shared by other Federalists, was overcome by the next Federalist speaker, John Lowell, who explained that the report should be considered as only an expression of the individual opinions of the members, not as a legislative declaration. Some such expression of their individual opinions was absolutely imperative under the circumstances, for silence would be construed as assent to the doctrines of Virginia and Kentucky.
Lowell, as the Federalist leader in the House and as a member of the joint committee, made the most elaborate argument in behalf of the report. Three distinct propositions are involved in the report. 1. "The first, and the most important," said Lowell, is "that the State Legislatures have no constitutional right to judge of the acts and measures of the Federal Government." 2. The Alien and Sedition Laws are constitutional. 3. They are also "expedient and necessary." In support of the second and third propositions, Lowell argued that the Alien Law was forced upon the United States by the machinations of France; that the Sedition Law was equally well grounded and, if possible, yet more expedient. For the constitutionality of the Sedition Law Lowell offered no argument, while upon that phase of the Alien Law his only argument was to declare, in reply to a challenge to point out the clause of the Constitution which warranted it, "the very object and scope of the Federal Compact was to invest in one general head the whole National Concerns."
Taking the Federalist speeches in the aggregate there appears to have been considerable warrant for the Chronicle's complaint that the question was superficially argued by the advocates of the report. Doubtless the certainty of a large majority in its favor will account for this and for their maintaining, as the Chronicle charged, an intolerant and contemptuous attitude towards their opponents "more conspicuous than ever disgraced these walls."
On the Republican side five or six short speeches were made by different members, but little can be learned about the ground which they took for opposing the report. The Mercury, the only paper which notices these speeches, states that all of these speakers "professed a strong disapprobation of the Resolutions of Virginia, but could not agree to the proposition adopted by the Senate in reply to them." The only elaborate speech on the Republican side was one read from manuscript by Dr. Aaron Hill of Cambridge in concluding the debate. This, like the speech of Bacon in the Senate, was afterwards published in the Chronicle.[40] The most important feature of it is the portion devoted to a consideration of the declaration contained in the report, that the right to pass upon the constitutionality of federal laws belongs to the federal government. Denying the correctness of this doctrine, Hill set forth what he conceived to be the true nature of the federal union and the rights of the states in cases of encroachment upon their reserved powers.
"The Federal Government is, as the term imports, a confederation of States, and the People of each State have transferred to the United States, such a portion of their power as is, in the Constitution specified, to be exercised by Congress, and have reserved the Remainder to the States, to be exercised by their respective Legislatures . . . From the distribution of power in the Federal and State Constitutions, it appears that Congress are the proper guardians of the one, and the State Legislatures of the others, and while the individual States retain any portion of their sovereignty, they must have the right to judge of any infringement made on their Constitutions, for if the right is transferred exclusively to Congress, or to any department of the General Government, no vestige of sovereignty can remain to the individual States, but they become a consolidated instead of a Federal Government, and the oath and declaration required by our Constitution, will remain a lasting monument of the inconsistency of a People who require of their Agents an oath to defend, without a right to judge whether it is attacked."
This, certainly, is not much short of the remedial doctrines of the Virginia and Kentucky Resolutions. At the conclusion of this speech the vote was taken and the report was accepted.
The action of the General Court was, of course, quite differently received by the Federalist and Republican papers of Boston. Before the report had been considered in either house the Centinel had confidently announced that what such a committee should report "must be correct."[41] When both houses had stamped the report with the seal of their approval the elation of the Centinel knew no bounds; the document will be "an everlasting record of the Wisdom, Patriotism and enlightened Policy of the present times. . . . Indeed, he who now doubts the rectitude of such principles must be worse than an infidel."[42]
When political fanaticism reaches the pitch of arrogance displayed by this remark of the Centinel and by that of the Federalist member of the House, who stigmatized his Republican opponents as a "contemptible minority," one need not be surprised to find Republican dissent, however modest its expression, treated in a summary fashion. The tone of the Chronicle, tested by the standard set in the Centinel and other Federalist papers, was a model for fairness and courtesy towards its opponents; measured even by the standards of today, there was little in its tone to which exception might fairly be taken. But this moderation did not secure its publishers from persecution for persistently adhering to their political convictions. Within a week after the passage of the Massachusetts reply to Virginia and Kentucky, provocation for an attack upon the Chronicle was found in two articles that appeared on February 18. In one of these a correspondent observed that in May 1798 Massachusetts was a "free, sovereign and independent state" except in matters specially committed to the federal government. As proof of this assertion he appealed to the evidence furnished by about two hundred respectable witnesses, who, in order to secure seats in the legislature of the Commonwealth, had taken oath to that fact and to their opinion that it ought to be so. But recently, when the state of Virginia propounded the question whether the sovereignty of the individual states was not invaded by certain acts of Congress, a majority of these same witnesses disclaimed for the legislature of Massachusetts and all the states "any right to decide upon the constitutionality of any act of Congress." This action by the majority of the witnesses led the correspondent to make the following request:
"As it is so difficult for common capacities to conceive of a sovereignty so situated, that the Sovereign shall have no right to decide on any invasion of his constitutional powers; it is hoped for the convenience of those tender consciences who may hereafter be called upon to swear allegiance to the State, that some gentleman skilled in federal logic will show how the oath of allegiance is to be understood, that every man may be so guarded and informed, as not to call upon the Deity to witness a falsehood."
The other article consisted of a few remarks upon Bacon's speech in the Senate. It contained this sentence: "The name of the American Bacon will be handed down to the latest generations of freemen, with high respect and gratitude, while the names of such as have aimed a death wound to the constitution of the United States will rot above ground and be unsavory to the nostrils of every lover of republican freedom."
The next day after the appearance of these articles in the Chronicle the Supreme Judicial Court of the Commonwealth opened its term in Boston. Chief-Justice Dana in his charge to the grand jury called its attention to the articles, remarking that he obtained a copy of the paper by accident, for if he were a subscriber "his conscience would charge him with assisting a traitorous enmity to the Government of his country."[43]
The result of Chief-Justice Dana's harangue to the grand jury was the return of an indictment against Thomas Adams, editor and publisher of the Chronicle, and Abijah Adams, a younger brother, employed in the office of the paper.[44] They were charged with an offense against the peace and dignity of the Commonwealth in "contriving falsely and maliciously to bring the Government into disrespect, hatred and contempt among the good and liege citizens of the commonwealth," and with encouraging sedition, disobedience and opposition to the laws, by the articles already quoted. On February 22 Chief-Justice Dana issued a writ commanding the sheriff to arrest the culprits. Under this writ Abijah Adams was taken into custody, but was released pending his trial upon furnishing bail in the sum of one thousand dollars. Thomas Adams was not arrested. At the time he was suffering from what proved to be a fatal illness, and the sheriff returned a certificate signed by two physicians affirming that he could not be taken before the court without serious danger to his life.
The arrest of the younger Adams took place on the twenty-seventh of February and on the following day the Chronicle for the first time took notice of the attack upon itself. Less than ten lines sufficed for the simple announcement that the younger Adams had been arrested and that his trial would begin the next day. Ultimately the indictment and every transaction connected with the affair, the Chronicle promised, would be minutely handled for the public instruction, but prior to the decision, "We scorn to attempt to bias our numerous readers on this subject." This promise was kept and not a single line further appeared in the Chronicle until after the entire affair was over; then the whole case of the defense was published in four installments, aggregating twenty-five columns.[45] From this elaborate argument, brief notices of the trial in the Mercury and Centinel, and the manuscript records of the Supreme Judicial Court a quite complete account of the entire trial can be extracted.
Part II, The American Historical Review, No. 2, pp. 225-244 (December 1899)
The trial of Abijah Adams[1] was conducted by Chief-Justice Dana and lasted through three entire days, the jury rendering its verdict on the morning of the fourth day.[2] Sullivan, the attorney-general, presented the case of the Commonwealth. The prosecution as he presented it "had no connection with the Sedition Act of Congress," but was "under the common law of the State." The articles set forth in the indictment were libels against the General Court of Massachusetts, for "the common law of the country, which was common reason, prohibited such outrages" albeit there was no statute defining libels upon the government. In support of this doctrine the attorney-general argued that the offense described in the indictment was indictable by the common law of England. To obviate the objection that such an action would be an infringement of the freedom of the press, Blackstone's definition, that liberty of the press meant only freedom from restraint prior to publication, was appealed to as authoritative. If the offense charged in the indictment was libellous by the common law of England, the conclusion that it was punishable in Massachusetts was easily reached. The first settlers in Massachusetts brought that doctrine to America with them as a part of the common law.
For the defense, Messrs. Whitman and George Blake presented three lines of argument: 1. The defendant, being merely employed in the office of the Chronicle, was not the real culprit, if there be one; 2. The matter set forth in the indictment was not libellous; 3. Under the constitution of Massachusetts no indictment can be maintained for a libel against the government of the state. Two of these lines of argument possess great interest. The second shows incidentally the opinions of leading Massachusetts Republicans in regard to the constitutional doctrines of the Virginia and Kentucky Resolutions, as expressed in a carefully considered argument before the highest court of the state. The third places in a clear light the extreme doctrines which Federalist judges of 1799 held in theory and sought to put into practice against Republicans who had sufficient courage to proclaim openly their political convictions.
In developing the second line of argument the attorneys for the defense pointed out that the articles upon which the indictment was based could not be regarded as libellous, except by a process of inference and deduction. If these articles contained the charge that the members of the legislature were guilty of treason, it was only as a conclusion, deduced or inferred from certain constitutional principles. The charge of treason was, therefore, not an impeachment of the individual members of the legislature, but of their principles. Even supposing it a reflection upon the legislature and entirely unwarranted, it was only an expression of opinion, and no man should be punished for mere error in opinion, especially if expressed in connection with the premise from which it was drawn.
Realizing, apparently, that about the only reply that could be made to this argument was to assert that the conclusion was wanton and arbitrary because it had no necessary connection with the premise, the attorneys for the defense proceeded to argue that the conclusion was a fair deduction from the premise. Their argument upon this head began with the assertion that since the formation of the federal government no question "had been the cause of more dissension, than the precise extent of the freedom, sovereignty and independence of the States." Citing the controversy over the suability of the states as an evidence that the line between state and federal sovereignty was not yet sharply drawn, they further contended that for the present case it was not necessary to consider the question whether a state legislature had authority to decide upon the constitutionality of any act of Congress, but only to indicate that in some cases "the existence of such authority would not only be manifest, but the necessity of its existence clear and indispensable." In evidence of this proposition, which is in effect almost the doctrine of the Virginia and Kentucky Resolutions, a hypothetical case was cited wherein the reserved rights of the states would indubitably be violated by a law of Congress; in such a case the state legislatures could not be better employed than in protesting, since a protest might lead Congress to repeal its act. Exactly what would happen in case Congress failed to heed the pretest, the attorneys did not indicate. Upon that point they were content to remark, that it was admitted that the state legislatures were not the constitutional tribunals for determining the validity of federal laws "in any other cases than those in which their own sovereignty or power are directly or immediately involved." Even in such cases their decisions were not to be regarded as binding upon the federal government. Having thus reached the point at which all state-sovereignty arguments fail, the matter was not pushed to any definite conclusion. No way out of the dilemma was suggested; but the failure of the logic did not prevent further argument intended to prove that the states must possess the right "to maintain within their respective limits all powers, rights and liberties appertaining to them." Summing up the whole matter of the reasonableness of the conclusion from the given premise, the attorneys for the defense said: "On the whole, whatever may be the merits of the question, there appears to be some little force in the sentiment contained in the Virginia Resolutions: 'that in cases of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states, who are parties thereto, have the right and are in duty bound, to interpose, for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.'"
The second line of argument having shown that the leading Republican newspaper of New England and two of the most prominent Republican lawyers of Boston accepted all or nearly all of the constitutional doctrines of the Virginia and Kentucky Resolutions, we may turn to the third line of argument to learn how the Federalist chief-justice defined liberty of the press for Republican newspapers. The defense maintained that under the constitution of Massachusetts there could be no such thing as a libel upon the government of the state. Admitting that the English practice had been correctly stated they contended that the same rule did not prevail in Massachusetts. The whole body of the common law of England had not been adopted in Massachusetts; an exception had been made by the constitution of such parts as are "repugnant to the rights and liberties contained in this constitution." The question whether the English common-law rule was repugnant to the constitution was a fair problem for the court and the jury. To assist the court and the jury in determining that problem the defense made the point that no statute had been made by either the colony or the province for punishing such libels, denying also that the cases cited by the attorney-general were in point. Making the further admission, for the sake of argument, that the English rule had prevailed in Massachusetts prior to the Revolution, the defense urged that the events of the Revolutionary period had effected a change in the common law upon the subject of libels against the government. Blackstone's definition, that liberty of the press consists only of freedom from restraint prior to publication, was unsuited to the spirit of American institutions. As a better definition of liberty of the press the defense offered to read a passage from John Adams's Canon and Feudal Law.[3] This definition the chief-justice refused to hear, finding excuse that it was published anonymously, that "it was unusual and improper to submit any matter to the jury unsupported by regular authority," and that speculative productions, written at a period of disorder and commotion, "however respectable and illustrious the author," should not be admitted.
After the refusal of the chief-justice to listen to any definition of liberty of the press other than that which obtained in England, one would like to know in what terms he defined that subject to the jury. Presumably he adopted the English rule without material qualification, for a verdict of guilty was rendered in accordance with that principle. The prisoner was sentenced to thirty days' imprisonment, payment of the costs of his trial, and to make a recognition in the sum of five hundred dollars to keep the peace and maintain a good behavior for one year.[4] Before sending the prisoner away to jail the chief-justice seized the occasion to deliver a long harangue, in the course of which he declared himself emphatically upon what he called "the monstrous positions" of the Virginia and Kentucky Resolutions.[5]
The imprisonment of Abijah Adams was the most flagrant but not the only instance of the persecution of Massachusetts Republicans for their attitude against the reply to Virginia and Kentucky. Both of the Republican legislative leaders suffered much annoyance at the hands of Federalist zealots. The incidents, though trivial in themselves, are interesting for the light which they throw upon the methods by which the Federalist leaders retained their control over Massachusetts. Bacon, the Republican senator who had unaided opposed the passage of the reply, was held up to ridicule in the Federalist press as the Solitary Nay, a character altogether too contemptible for punishment.[6] Being defeated for re-election to the Senate, Bacon offered himself as a candidate for the House in the town of Stockbridge. A few days before the election a communication appeared in the Centinel,[7] professing to recount an incident in Bacon's early life which the voters of Stockbridge ought to be informed of. According to this correspondent, Bacon while minister of the Old South Church in Boston in pre-Revolutionary days had owned two slaves, a husband and wife. Though Bacon had received them into his church-fellowship, when he perceived the likelihood of his losing them by action of the state he sold the husband, who was transported from Massachusetts, never to see his wife again. "This," says the correspondent, "is the man who stands for liberty and equality." Bacon had no difficulty in proving the story false,[8] but the Centinel took no notice of that fact.
Dr. Aaron Hill, the Republican leader in the House, lived in Cambridge. One night not long after the end of the session of the General Court, a Federalist mob, composed, the Chronicle insinuates, of students from Harvard College, manifested their disapprobation of Dr. Hill's course upon the reply to Virginia and Kentucky by shattering the windows and casements in his house. This outrage, however, redounded to the confusion of the Federalists. When the election for members of the General Court came on, about a month later, the Federalists made Hill and his course upon the reply to Virginia and Kentucky the issue at the largest town-meeting Cambridge had ever known. Hill was returned by three majority, enough Federalists casting their votes in his favor on account of the outrage to secure his election.[9]
It is plain, then, that both the Federalists and the Republicans of Massachusetts took the same general attitude toward the protest and remedy of the Virginia and Kentucky Resolutions as did the members of their respective parties in the Middle States. The Federalists manifested an utterly imperious and intolerant demeanor towards their Republican opponents. The imprisonment of Adams indicates that the Federalists were ready upon the slightest provocation to treat opposition to the policy of the administration, whether federal or state, as a crime. That case certainly does much to explain why Jefferson and other Republican leaders could fear that republican institutions were about to be overthrown.
The Rhode Island newspapers furnished their readers with no original thoughts upon the Virginia and Kentucky Resolutions and with but little information about the manner in which the legislature of the state handled them. The legislature met at East Greenwich on February 18, and nearly all that can be learned of their proceedings for the entire session is that before adjourning on March 9 two sets of resolutions were passed in reply to Virginia and Kentucky. These replies are identical, except in the matter of dates and names, and the vote upon them, unanimous in the Senate and lacking but one of unanimity in the House, would indicate that there was no debate.[10] The brevity of the replies, according to the Providence Journal, is due to the fact that other states having entered fully into the reasons for dissenting from Virginia and Kentucky nothing was thought necessary but "an expression of opinion, and of a few general principles on which that opinion was founded."[11]
In Connecticut the newspapers printed so many documents and articles bearing upon the Virginia and Kentucky Resolutions that their readers must have become quite familiar with them. But among these articles I have been able to find no original discussions and but very little about the action of the state legislature upon the resolutions. While the legislature was in session none of the Connecticut papers published any accounts of its proceedings; after it had adjourned, the Connecticut Courant had a long account, evidently written by a member.[12] This article, copied by all the other papers, constituted their only account of legislative affairs. One paragraph in this article contains all that can be learned about the replies to Virginia and Kentucky, save what is shown by the documents themselves.
Opposition to these replies was expected by the Federalists, for there were some fifteen or sixteen "Jacobins" in the House, though some of these were "half-way characters." But the answers met with no resistance, most of the Republicans absenting themselves during the vote. The reply to Virginia[13] passed both houses unanimously, while that to Kentucky encountered but two negative votes in the House and none in the Senate. The reply to Kentucky[14] declares that attempts to form a combination of state legislatures for the purpose of controlling the policy of the federal government are foreign to the duties of state legislatures, contrary to the principles of the Constitution, and calculated to introduce anarchy by menacing the existence of the Union. But were the assembly permitted to pass upon the measures of the federal government, it would pronounce the Alien and Sedition Laws constitutional and meriting its entire approbation. In this reply, as also in that to Virginia, the Federalist members of the Connecticut assembly expressed their dissent to both the protest and the remedy of the Virginia and Kentucky Resolutions, while the Republicans by their absence showed that they could not accept it entire.
New Hampshire, as regards the Virginia and Kentucky Resolutions, was the banner state of Federalism. The Federalist newspapers there added little if anything to the discussion of the principles involved, but their comments show a determined front. The Federal Miscellany, of Exeter,[15] accepting the Virginia Resolutions as a threat to arm the militia of Virginia against the federal government, retorted that an allusion to force was improper in a discussion upon matters of government, but Virginia will {ind her sister states "as able in the field as in the cabinet."
When the resolutions of Virginia and Kentucky reached Governor Gilman the winter session of the legislature was over and, in consequence, the legislative reply of New Hampshire was delayed until June. On the fifth of that month Governor Gilman submitted the resolutions to the legislature, remarking that they appeared to him "of a very extraordinary nature," but that delicacy towards sister states prevented him from making any observations upon them[16] But the legislature evidently did not share in the governor's feeling on the point of delicacy, for it promptly and decisively expressed its observations in very blunt fashion. One reply,[17] addressed to both Virginia and Kentucky, sufficed for the declaration that if the legislature of New Hampshire "for mere speculative purposes" were to express an opinion it would be that the Alien and Sedition Laws were constitutional and "highly expedient"; and that the state legislatures were not the proper tribunals to decide upon the constitutionality of laws enacted by the federal government, that duty being "properly and exclusively confined to the judicial department." This reply, an emphatic demurrer to both the protest and remedy of the Virginia and Kentucky Resolutions, was passed unanimously by both houses. None of the New Hampshire newspapers give any accounts of the proceedings of the legislature upon this reply and, in consequence, I am unable to offer a satisfactory explanation of the unanimity. The attitude of the Republicans elsewhere warrants the conclusion that the Republicans of New Hampshire could not have entirely endorsed the reply to Virginia and Kentucky. Being few in number, probably they absented themselves, as in Connecticut, or remained silent.
Of the replying states Vermont was the most tardy. Its General Assembly did not meet until October 10, 1799, but the spirit of Vermont Federalism, as connected with the Virginia and Kentucky Resolutions, manifested itself earlier. In May there was a rumor that Matthew Lyon, the leader of the Vermont Republicans, who was then serving out a sentence under the Sedition Law, contemplated removal to Kentucky. This announcement led to a characteristic paragraph in a Federalist paper published at Vergennes.[18]
The passage of the great beast [Lyon] and his whelps to that land of paddyism (Kentucky) would be a curious spectacle for the northern and middle states. To drain this state of one thousand families of his followers might be a clear saving of as many halters to this Commonwealth, as well as much expense to towns in providing for the poor, taking up vagrants, would save the girdling of orchards, and still leave the state as much good order, morality and piety as though no such departure had ever happened! Such an addition to Kentucky must be very interesting, and give new support to future resolutions in their legislature.
When the legislature met, Governor Tichenor submitted the resolutions, observing that, as other states had treated them to "severe comment" or "marked contempt," he had not the slightest hesitation in predicting that the Vermont legislature would express its disapprobation of them in a marked degree. The legislature, in reply, told the governor to be assured that the resolutions would be considered and given the treatment which they merited.[19] On October 14 the assembly requested the governor and council to join them a week later for the purpose of considering the resolutions of Virginia and Kentucky.[20] The invitation was accepted, and three meetings in grand committee were held upon the subject.[21] At the first of these meetings a sub-committee of live were appointed to formulate suitable replies; these were reported at the third meeting and accepted by the grand committee.[22] Subsequently the Council and the assembly adopted the replies separately: in the Council both were adopted unanimously; in the assembly the reply to Virginia received 104 votes against 52, that to Kentucky 101 to 50.[23]
The reply to Virginia[24] was decisive and, considering its brevity, remarkably comprehensive. The reply to Kentucky,[25] on the other hand, is long and elaborate, deserving to rank in importance with that of Massachusetts. It is not, like the reply of Massachusetts, a consideration of the general principles involved, but takes up the resolutions of Kentucky one after another and makes reply to them. The fundamental principles of the resolutions of Kentucky contained in the opening declaration are thus epitomized: "That the states constituted the general government, and that each state as party to the compact, has an equal right to judge for itself as well of the infractions of the Constitution, as of the mode and measure of redress." The entire contemporary discussion of the Virginia and Kentucky Resolutions brought out no more significant comment than the answer of Vermont to the doctrine of Kentucky. "This cannot be true. The old confederation, it is true, was formed by the state Legislatures, but the present Constitution of the United States was derived from an higher authority. The people of the United States formed the federal constitution, and not the states, or their Legislatures. And although each state is authorized to propose amendments, yet there is a wide difference between proposing amendments to the constitution, and assuming, or inviting, a power to dictate and control the General Government." This brief reply of Vermont is the only one in all of the answers made by the states which, like the first resolution of Kentucky and the third of Virginia, goes directly to the fundamental question, the nature of the federal union. The declaration of Vermont, properly understood, is not free from all ambiguity on the subject. It does not declare so decisively as to admit of no doubt that the legislature of Vermont thought of the Constitution as ratified by the people of the United States acting en masse, instead of as states. But it leans strongly in that direction and absolutely denies the correctness of the conclusion drawn by Kentucky from the opposite premise.
The second resolution of Kentucky pronounced the Alien and Sedition Laws "altogether void and of no force" as contrary to the principles of the Constitution, Amendment X. declaring "that 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 the people." To this Vermont rejoined that Kentucky misconstrued and misapplied the amendment, but that even if one adopted the construction which Kentucky put upon that amendment, its conclusion was not warranted. Under that conclusion all the acts of Congress would be brought in review before the state legislatures, while the Constitution of the United States provides that "Congress shall have power to make all laws which shall be proper for carrying into execution the government of the United States."
The third and fourth resolutions of Kentucky were disposed of in the reply of Vermont in a manner which was doubtless entirely satisfactory to the Federalists of the state, but which will not commend itself to candid and unbiassed minds. Kentucky had asserted that the Alien and Sedition Laws were unconstitutional because they infringed upon the reserved rights of the states. Vermont, while purporting to reply to the argument of Kentucky, shifted the ground from the operation of the laws upon the reserved rights of the states to their operation upon the rights of individuals. Thus ignoring the real question, Vermont argued that the Sedition Law was constitutional because a similar law was constitutional in Vermont and the Alien Law also because aliens have no rights under the Constitution.
The remainder of the reply is not so important. The sophistry of the fifth Kentucky resolution was correctly declared and the particular feature of the Alien Act which Kentucky had denounced in its sixth resolution was defended. One omission should be noted. Kentucky in its seventh resolution had made a remarkably cogent argument against a latitudinarian construction of the general-welfare clause of the Constitution. This resolution was the only one to which Vermont failed to reply. The concluding words of Vermont are important as evidence of the spirit in which its reply to Kentucky was framed. Kentucky had remarked in the course of its argument, "that confidence is everywhere the parent of despotism." To this Vermont rejoined in a general declaration which carried with it a concrete application. "The experience of ages evinces the reverse is true, and that jealousy is the meanest passion of narrow minds, and tends to despotism; and that honesty always begets confidence, while those who are dishonest themselves, are most apt to suspect others."
Upon replies so interesting as those of Vermont it is much to be regretted that we have not a full report of the discussion, particularly as the vote in the assembly indicates that there was strong opposition to their adoption. But information is not wholly lacking; on the last day of the session thirty-three members entered upon the journal of the assembly a statement of the reasons for their votes against the replies.[26] From this statement we learn that the reply to Virginia as reported by the sub-committee denied to the state legislatures even the right to deliberate upon the constitutionality of federal legislation, but that this extreme doctrine was stricken out upon the motion of a majority member. The minority objected to the replies because they regarded the Alien and Sedition Laws as both inexpedient and unconstitutional. Unfortunately the statement does not make equally plain the attitude of the minority regarding the other important feature of the Virginia and Kentucky Resolutions, namely, their doctrine of the proper remedy for unconstitutional federal legislation. The minority declared that they could not assent to the view advanced by the majority, that the Virginia and Kentucky remedy was an unconstitutional assumption of power not belonging to the state legislatures. Without stating explicitly its own theory the minority alluded to itself as "advocating the power of each state to decide on the constitutionality of some laws of the union;" this right it limited to laws which "infringe on the powers reserved to the states, by the tenth article of the amendments to the constitution." Nothing was said to indicate the manner in which this right was to be exercised, and an express disclaimer was entered against "an intent to justify an opposition, in any manner or form whatever, to the operation of any act of the union." Such opposition would be "rebellion, punishable by the courts of the United States." From these somewhat contradictory declarations the only conclusion which we are warranted in drawing is that the Vermont Republicans agreed in part at least with their Virginia and Kentucky brethren upon the remedy for unconstitutional federal legislation. Upon a yet more fundamental point, the nature of the federal union, their agreement was complete; the Vermont minority declared "that the states individually, compose one of the parties to the federal compact or constitution."
None of the states south of Virginia sent replies and but little can be learned about the cause of their failure to do so. The legislature of North Carolina was in session when the Kentucky Resolutions reached that state but adjourned before those of Virginia arrived. The Kentucky resolutions were laid before it, but the few notices of its action upon them are so ambiguously phrased that the precise action taken cannot be ascertained. In the Senate the Kentucky Resolutions were certainly read and laid upon the table, where they were permitted to remain without any definite action upon them.[27] About the same time the resolutions were sent to the House, but whether that body endorsed them and sent them to the Senate or took into account the action of the Senate and took no action itself cannot be ascertained.[28] The fact that there was a Republican majority in the lower house and that it passed a resolution calling upon Congress to repeal the Alien and Sedition Laws would point to the former course as the more probable. The few notices which I have been able to collect regarding the session of this legislature in the fall of 1799 make no mention of any action upon either set of resolutions.
In South Carolina the legislature adjourned on December 21,[29] too early to have received either set of resolutions. Before it met again in November of 1799 the papers of the state had made the people familiar with the resolutions. On November 28, Governor Rutledge submitted both sets of resolutions to the legislature, but made no comments upon them.[30] Within five days of the end of the session the legislature had taken no action upon them, but beyond that point I am unable to trace the course of legislative proceedings in South Carolina. After the legislature had adjourned the Aurora[31] contained an item stating on the authority of a member of the legislature that the session was so short that it left no time for action in the matter, but had any action been taken it would have been favorable. Making allowance for the bias of the Aurora, we may conclude that probably the South Carolina legislature failed to act upon the resolutions of Virginia and Kentucky because it sympathized with the protest against the Alien and Sedition Laws but scarcely knew its own mind upon the matter of the remedy.
About the state of public opinion in Georgia and Tennessee even less can be learned than of the Carolinas. The legislature of Georgia was in session in February 1799 and certainly took no formal action expressing disapproval of the resolutions. One item, to be found in many Northern papers, states that the legislature postponed consideration of the resolutions for one session.[32] Although this is not verified by other items, I am inclined to think that it is correct. At the next session, I can find no mention of any action in the matter, though the notices of the proceedings of the legislature are quite complete. Probably no action was taken. For Tennessee nothing can be said except that its legislature sent no reply to Virginia and Kentucky. Various items appeared in the Northern papers purporting to relate what action Tennessee had taken, but they are conflicting and none of them bear any marks of credibility.
From the detailed study which has preceded, the following general conclusions seem warranted:
1. North of the Potomac the Federalists, being in a majority in every state, secured emphatic expressions of disapproval for the Virginia and Kentucky Resolutions, either by legislative replies or other legislative action intended to be even more emphatic than a formal reply. South of the Potomac, where the Republican strength was rapidly rising, it had not yet been sufficiently consolidated to secure expressions of approval for even a portion of the resolutions; but it was strong enough to prevent any formal disapproval of them, as in the North.
2. The replies, formulated everywhere by the Federalists, declare the Alien and Sedition Laws both expedient and constitutional, thus constituting a most emphatic counter-protest to the protesting feature of the Virginia and Kentucky Resolutions. The replies further assert, as regards the remedy hinted at by Virginia and Kentucky, that the states have no right to pass upon the constitutionality of laws enacted by Congress; and nearly all of them, in terms more or less direct, point to the federal judiciary as the proper authority to decide upon the constitutionality of federal laws.
3. The entire reasoning of both the Virginia and the Kentucky Resolutions of 1798 was grounded upon the assertion, plainly expressed in each set of resolutions, that the Union was the result of a compact to which the states were parties. This fundamental doctrine received no attention in any of the replies or the discussions over them, so far as the latter have been preserved, except in the reply of Vermont to Kentucky. It is probable that this assertion of Virginia and Kentucky was more generally accepted in 1799 than it was later; and it is certain that neither the Republican who asserted it nor the Federalist who denied it had any adequate conception of the results to which a logical development of the doctrine would lead.
4. The Republicans, wherever their attitude can be learned, fully endorsed the protesting features of the Virginia and Kentucky Resolutions and accepted in part the reasoning upon which the remedy was grounded, though few went to the full extent of the Virginia and Kentucky doctrines.
When the Kentucky legislature sent forth its resolutions the excitement in that state did not entirely cease. George Nicholas, who with Breckenridge had been the leader of the movement in Kentucky, published a pamphlet early in January 1799 for the purpose of putting the case of Kentucky in proper light. It bore the title A Letter from George Nicholas of Kentucky to His Friend in Virginia, and though dated three days prior to the passage of the Kentucky resolutions was really a defense of them. Nicholas denied most emphatically that the people of Kentucky contemplated separating from the Union,[33] of improper opposition to the federal laws on the part of Kentucky. The laws of which Kentucky complained were of two sorts: one kind was constitutional, but impolitic; the other was unconstitutional and impolitic. The former Kentucky would remonstrate against, but would obey promptly as long as they remained in force. Although the latter might be treated as dead letters, "yet we contemplate no means of opposition, even to these unconstitutional acts, but an appeal to the real laws of our country."[34]
This letter by George Nicholas brought out a rejoinder, which was issued at Cincinnati by a writer who signed himself, "An Inhabitant of the North-Western Territory."[35] After a most elaborate defense of the whole policy of the federal administration, this writer called upon unprejudiced men to read the resolutions of Clark County, those of other counties throughout the state, and especially the resolutions of the Kentucky legislature, and then to say whether all these did not tend directly towards securing a dissolution of the Union. In fact Kentucky had refused obedience to the federal laws and so far as it could do so it had dissolved the Union.[36] Then taking up Nicholas's classification of the objectionable laws, the writer argued that the only right of a state legislature touching either class of laws was the right of remonstrance. The second might be brought before the supreme federal judiciary, which is the constituted authority for determining such matters.[37]
Aside from what can be learned from these two pamphlets, little can now be ascertained about the attitude of the people of Kentucky prior to the meeting of the legislature in November, 1799. But the pamphlets, both of which appear to have been well known in the state, are sufficient to show that the feature of the resolutions of 1798 upon which the people of Kentucky had not already expressed their opinions was clearly put before them. Knowing this we may conclude that the legislature elected that fall represented the deliberate opinion of the people of Kentucky upon the remedy hinted in the resolutions of the previous year.
In Virginia the questions raised by the resolutions of 1798 were constantly before the people until after the elections of 1800. Copies of the resolutions and of the address prepared by the legislature to accompany them were sent to each county in the state. To counteract the effect of the address the Federalist minority in the legislature issued a protest.[38] This protest is said to have been written by John Marshall, but it contains little in reply to the remedial doctrines of the Virginia resolutions. The main object of the protest, as its title indicates, was to demonstrate the constitutionality of the Alien and Sedition Laws. Throughout the state the address of the legislature and the protest of the minority were variously received, according to the political sympathies uppermost in the community. In Greenbrier County the court of justices tore the copies of the legislative address into pieces and trampled them under foot;[39] Fairfax County returned its copies to the governor,[40] while Norfolk borough[41] and Pittsylvania County[42] adopted resolutions against the action taken by the legislature. In the Republican counties the address of the legislature was publicly read and the copies distributed to those in attendance upon the court.
The Federalist campaign against the resolutions of 1798 began at once and was never permitted to lag. The circulation of the minority protest was followed up by copying from the Federalist papers outside of the state nearly all that was said or done against the resolutions of the legislature.[43] As the elections approached appeal after appeal to redeem the state went forth from the Federalist leaders, In nearly all of these appeals the resolutions of the preceding year are directly or indirectly made the issue for the decision of the people.
The most elaborate of these appeals was a pamphlet of fifty-six pages, issued as early as February by a citizen of Westmoreland County, who signed himself "Plain Truth."[44] After setting forth the advantages of the Union and the evils which would certainly result from dismemberment, Plain Truth maintained that union was possible only under the existing government. This premise he followed up by a consideration of certain measures which he thought indicated a desire on the part of their promoters to bring about disunion. These measures were, of course, the Virginia Resolutions of 1798. In considering these measures Plain Truth went directly to the fundamental proposition of the third Virginia resolution, that the Union was the result of a compact to which the states were parties. "This assertion," said Plain Truth, "is believed to be untrue in fact, and dangerous in principle. The paper from which the powers of the federal government result, and which is termed by the resolutions, a compact, is the constitution of the United States. To this constitution the state governments are not parties in any greater degree than the general government itself. They are in some respects the agents for carrying it into execution, and so are the Legislature and Executive of the Union; but they are not parties to the instrument, they did not form or adopt it, nor did they create or regulate its powers. They were incapable of either. The people, and the people only were competent to these important objects."[45] In support of this doctrine, Plain Truth argued that the states were parties to the old confederation, but that the present federal Constitution was formed to remedy that defect and "was proposed, not to the different state governments, but to the people for their consideration and adoption." As evidence of this difference between the confederation and the present federal union, he cited the language of the preamble of the Constitution. "The Constitution was in truth what it professes to be—entirely the act of the people themselves. It derives no portion of its obligation from the state governments. It was sanctioned by the people themselves, assembled in their different states in convention. They acted in their original, and not in their political character."[46] Having shown to his satisfaction that the people were the parties to the Constitution, Plain Truth made his point against the resolutions of Virginia by demanding, "Why are the people excluded from our view, and states substituted in their places?" The motive which inspired the legislature to make this claim for the states, Plain Truth argued, was a desire to arrogate to itself power which properly belonged to the people.[47] This argument of Plain Truth's was, of course, an unfair one, since it was based on a mistaken reading of the third Virginia resolution. Plain Truth treated the term states in the resolutions as if it was synonymous with the term state governments, whereas in the resolutions the term states means the people of each state. The treatment by Plain Truth of the fundamental doctrine of the third Virginia resolution is none the less instructive because it is fallacious. It shows plainly that the issue of national or state sovereignty, as raised by the Virginia Resolutions, was not overlooked in the Virginia campaign following their adoption. It indicates that the idea of state sovereignty was plainly put before the people of Virginia for their endorsement or rejection, though the details of the doctrine were not so clearly formulated as later.
The pamphlet by Plain Truth is, perhaps, as good an illustration as could be chosen to exemplify the character of the arguments used by the Federalists against the Virginia Resolutions. Almost all of the Federalist appeals were grounded upon the declaration that the Republicans were seeking a dissolution of the Union, a charge which the Republicans as earnestly denied.[48] In their zeal against Republicans the federalists did not distinguish between opposition to the policy of the federal administration and resistance to the federal government. That doughty old warrior, Daniel Morgan, issued an appeal to his fellow-citizens: "My God! can it be possible! that a body, supposed to be collected from the wisdom and virtue of the State, convened to deliberate for its honor and advantage, and to coöperate with the General Government in maintaining the independence, union, and constitution thereof, against foreign influence and intrigue, should so far lose sight of that object as to attempt to foment divisions, create alarms, paralize the measures of defense, and, in short, render abortive every prudent and wise exertion? Had an angel predicted this some years ago, it would not have gained belief—yet it is too evident now to need testimony. Attempts have been made to separate us from our government; they are daily making; and I am sorry to say, with too much success. Again I say, my fellow-citizens, support our government, do not support in your elections anyone who is not friendly thereto."[49]
The Republicans throughout the campaign were upon the defensive. In the main they were content to deny any knowledge of a desire for disunion, to inveigh against the Alien and Sedition Laws, and to point to the resolutions of the legislature as a conclusive answer to all the Federalist attacks[50] Incidentally in the course of these arguments the remedial features of the Virginia Resolutions, the one portion of them which had not been passed upon by the people the preceding year, received much attention.
The result of the elections in 1799 was a decided triumph for the Republicans, the slight gain made by the Federalists being not at all commensurate with the exertions which they put forth. Under the circumstances this result indicated that the people of Virginia upon second consideration approved of their own verdict of the preceding year regarding the constitutionality and expediency of the Alien and Sedition Laws and also of the remedy for those laws which their legislature had formulated.
When the Virginia legislature met, the replies of the other states were referred to a committee, of which Madison was chairman. The report of that committee,[51] since known as Madison's Report, after carefully considering each of the resolutions of the preceding year, recommended a reaffirmation of them. This action was taken after the counter-resolutions offered by the Federalist minority had been voted down by a vote of ninety-eight to fifty-seven. The vote may be regarded as a fair approximation to the division of public opinion in Virginia.
The resolutions offered by the minority argued against the report of Madison's committee in its defence of both the protesting and the remedial features of the Virginia Resolutions of 1798.[52] But one peculiar feature of the minority resolutions is worthy of attention here. As has been already remarked more than once in the course of this article, the argument for the remedy hinted at in the Virginia Resolutions was grounded upon the doctrine that the states were parties to the compact which resulted in the federal union. Madison in his argument for the resolution which contained this doctrine was forced to consider the meaning of the term states. The conclusion arrived at was that the term states in the resolutions meant "the people composing those political societies, in their highest sovereign capacity."[53] Thus, according to Madison's further reasoning, the people of each state instead of the people of the United States en masse, were the parties to the Constitution. In the counter-resolutions offered by the Federalists this interpretation of the parties to the Constitution is accepted entirely. The conclusion which the Federalists drew from this premise, as applied to the particular question then at hand, was quite different from that drawn by Madison, but the agreement between them is significant, for it shows that many of the Federalists as well as the Republicans accepted the fundamental doctrine of state sovereignty.
Intrinsically the Kentucky Resolutions of 1799 and Madison's Report are equally important with the resolutions of 1798, or more so. In view of this fact it is much to be regretted that we know little as to what was thought of them outside of Virginia and Kentucky. The resolutions were widely copied, appearing in nearly all of the leading newspapers, but in nearly every instance that I have found, they appeared in the same issue with the announcement of the death of Washington. Sorrow so completely filled the public mind and the newspapers were so much taken up with details of his death, his funeral, and the local commemorations, that the Kentucky Resolutions were overlooked. The resolutions of 1799 were not officially communicated to the other states and did not directly demand an answer. In form they were a solemn protest and in that light they seem to have been regarded. All the Federalist newspapers which made any comment upon them treated them as mere reiteration of those of the preceding year, failing to perceive that there was an important difference between the two sets.[54]
In Virginia, Madison's Report was greeted by the Republicans as a conclusive reply to the answers of the states and a complete vindication of the Virginia Resolutions.[55] It was widely circulated, and according to the Richmond Examiner, was of much service to the Republican cause in the elections held in the spring of 1800.[56] In New England the Report appears to have been little known. I have not been able to find any newspaper taking particular notice of it, or even giving it enough attention to enable its readers to obtain an idea of the arguments contained in the Report. The newspapers of the Middle States appear not to have given it more attention than those of New England, but there is some little evidence to show that it was quite well known in New York and Pennsylvania. An edition of it was published at Albany,[57] and Alexander Addison published at Philadelphia an elaborate reply to it.[58] In this reply Addison repeated with approval the reasoning of Madison, that the word states is equivalent to the expression the people of each state. From this premise he concluded, "It appearing then, that the people of the several states are the parties to the compact in the constitution, it will not follow that because the parties to a compact must be the judges whether it has been violated, the Legislatures of each state are the judges whether the constitution has been violated." Madison's argument would be true only upon the supposition that the state legislatures were the parties to the Constitution.[59] Addison does not seem to have perceived that his argument pushed a step further would have established the principle, that the people of Virginia, acting in their highest sovereign capacity, would have the right to judge for themselves whether the constitutional compact had been violated. Addison was concerned only to prove that the remedy hinted at by the third Virginia resolution and Madison's defense of it were incorrect. In this he succeeded beyond all question, but at the same time he unwittingly supplied one piece of conclusive evidence that many of the Federalists saw nothing out of the way in agreeing with their Republican opponents in the fundamental doctrine of the Virginia and Kentucky Resolutions, that the Union is the result of a compact to which the states are the parties.
It only remains to add a few words upon one important question. How far were the Virginia and Kentucky Resolutions influential in determining the presidential election of 1800? It has been often asserted that the principles of these resolutions were accepted by the American people in that election. Unless one can show by documentary evidence, as I have tried to do for the discussions of 1799, that these resolutions were discussed in the campaign of 1800 and their principles clearly made an issue, this amounts to nothing more than assertion. I have not been able to find any such documentary evidence. Invective against the Alien and Sedition Laws can be found in great plenty, but of direct allusions to the Virginia and Kentucky Resolutions or to their constitutional doctrines, I can find outside of Virginia only the very little that has been indicated in the two preceding paragraphs. From this evidence I am forced to conclude that the verdict of 1800, while a conclusive endorsement of the protest of the Virginia and Kentucky Resolutions, was not, so far as can be shown, an endorsement of either the remedy hinted at or the principles upon which it was founded. In a word, the remedy and its principles were not an issue in that campaign.
Appendix, The American Historical Review, No. 2, pp. 244-252 (December 1899)
For contemporary opinion of the Resolutions of 1798, Elliot's Debates (IV. 558–565), contains only the replies sent by six state legislatures and the Senate of New York to Virginia. The collection fails to represent adequately even the opinion of the state legislatures, since it does not include the replies sent to Kentucky and the resolutions which in several states were adopted by one or both houses of the legislature but not officially transmitted to Virginia and Kentucky. So far as I know no attempt has ever yet been made to supply the omissions in Elliot's collection. The following constitute all of the necessary supplement which I have been able to find, except the replies of the Rhode Island and Vermont legislatures to Kentucky; the former is identical with its reply to Virginia, save in the matter of name and date; the latter has already been published. in the Records of the Governor of the State of Vermont, IV. 526–529. All of the legislative documents following, except C, are printed from certified copies of the legislative journals.
A. Replies to the Kentucky Resolutions of 1798.
Report concurred in by the Maryland House of Delegates, December 28, 1798.
The committee to whom were referred the resolutions of the legislature of Kentucky report, that they have taken the same under their consideration, and are of opinion that the said resolutions contain sentiments and opinions unwarranted by the Constitution of the United States, and the several acts of congress to which they refer; that said resolutions are highly improper, and ought not to be acceded to by the legislature of this state. (Report of the Votes and Proceedings of the House of Delegates of the State of Maryland at November Session, 1798.)
Resolutions of the House of Representatives of Pennsylvania, adopted February 9, 1799.
Resolved, That in the opinion of this House the people of the United States have vested in their President and Congress, as well the right and power of determining on the intent and construction of the constitution, as on the ordinary subjects of legislation, and the defence of the Union; and have committed to the supreme judiciary of the nation the high authority of ultimately and conclusively deciding upon the constitutionality of all legislative acts. The constitution does not contemplate, as vested or residing in the Legislatures of the several states, any right or power of declaring that any act of the general government "is not law, but is altogether void, and of no effect;" and this House considers such declaration as a revolutionary measure, destructive of the purest principles of our State and national compacts.
That it is with deep concern this House observes, in any section of our country, a disposition so hostile to her peace and dignity, as that which appears to have dictated the resolutions of the Legislature of Kentucky. Questions of so much delicacy and magnitude might have been agitated in a manner more conformable to the character of an enlightened people, flourishing under a government adopted by themselves, and administered by the men of their choice.
That this House view, as particularly inauspicious to the general principles of liberty and good government, the formal declaration by a legislative body, "that confidence is every where the parent of despotism, and that free governments are founded in jealousy." The prevalence of such an opinion cuts asunder all the endearing relations in life, and renews, in the field of science and amity, the savage scenes of darker ages. Governments truly republican and free are eminently founded on opinion and confidence; their execution is committed to representatives, selected by voluntary preference, and exalted by a knowledge of their virtues and their talents. No portion of the people can assume the province of the whole, nor resist the expression of its combined will. This House therefore protests against principles, calculated only to check the spirit of confidence, and overwhelm with dismay the lovers of peace, liberty and order.
That this House consider the laws of the United States, which are the subjects of so much complaint, as just rules of civil conduct, and as component parts of a system of defence against the aggressions of a nation, aiming at the dominion of the world—conducting her attacks more by the arts of intrigue, than by her skill in arms—never striking, until she has deeply wounded or destroyed the confidence of a people in their government—and, in fact, subduing more by the infamous aids of seduction, than by the strength of her numerous legions. The sedition and alien acts this House conceive contain nothing terrifying, but to the ilagitious and designing. Under the former, no criminality can be infered or punishment inflicted, but for writing, printing, uttering, or publishing false, scandalous and malicious aspersions against the government, either House of Congress, or the President of the United States, with an intent to defame and bring them into contempt. Under the latter, the citizens of the United States have not any thing more to fear, inasmuch as its operation will only remove foreigners, whose views and conduct are inimical to a government, instituted only for the protection and benefit of the citizens of the United States, and others, whose quiet and submission give them some claim to the blessing. Yet these laws are subjects of loud complaint. But this House forbears an examination into the cause, and only expresses its surprise that such an opposition to them exists! Our country's dearest interest demands every where unanimity and harmony in her councils, and this House is unable to discover any means more favourable to those important objects, than confidence in the wise and honest labours of those, in whose hands is reposed the sacred charge of preserving her peace and independence. The voice of the greater number the constitution declares shall pronounce the national will; but in the opinion of this House the provision is vain, unless it be followed by the unfeigned and practical acquiescence of the minor part. Loud and concerted appeals to the passions of the community are calculated to produce discussions more boisterous than wise, and effects more violent than useful. Our prayer therefore is, that our country may be saved from foreign war and domestic strife.
That it is the opinion of this House, that it ought not to concur in the design of the resolutions of the Legislature of Kentucky.
On motion of Mr. Kelly, seconded by Mr. Strickler,
Resolved, That the foregoing resolution be signed by the Speaker, and that the Governor be requested to transmit the same to the Governor of Kentucky. (Journal of the House of Representatives of the Commonwealth of Pennsylvania, Vol. IX., Philadelphia, 1799, pp. 198–200.)Resolutions of the Delaware Legislature.
Resolved by the Senate and House of Representatives of the State of Delaware, That the resolutions from the State of Kentucky are a very unjustifiable interference with the General Government and Constituted Authorities of the United States, and of dangerous tendency, and therefore not a fit subject for the further consideration of this General Assembly. Resolved That the above resolution be Signed by the Speaker of the Senate, and by the Speaker of the House of Representatives, and that the Governor of this State be requested to forward the same to the Governor of the State of Kentucky. (Journal of the Senate, session begun January 1, 1799, p. 43. Text differing slightly from that given by Elliot.)
The following is an extract from the message of Governor Daniel Rogers of Delaware, submitted to the General Assembly of the State on January 7, 1799. It was not known to me at the time of publication of the previous article.
You will also herewith receive other resolutions of a very different tendency, transmitted to me by his Excellency the Governor of the State of Kentucky. These resolutions seem to me, both by their language and object, to assume a form extremely hostile to the peace and happiness of the United States. According to my understanding, the Legislature of that State undertake to exercise a power not vested in them, but which is expressly delegated to another tribunal. If the laws of which they complain are unconstitutional, it belongs to the judiciary, and not to any Legislature to declare them to be so. As well may the Legislature of Kentucky or of any other State decide upon all and every other law of Congress. And if a measure of this kind is to be resorted to on every occasion, when a law becomes disagreeable to a particular State, however necessary it may be for the good of the whole, the Constitution, which was a "result of a spirit of amity and of mutual deference and concession" will soon become a shield to the fractions and discontented, and instead of promoting "the lasting welfare of our country" will involve us in disputes which may finally terminate in our utter ruin. It is expressly declared in the fourth article "that the Constitution and the laws of the United States, which shall be made in pursuance thereof, shall be the supreme law of the land," and in the third article "that the Judicial power shall extend to all cases in Law and Equity, arising under the Constitution and the laws of the United States, etc." Hence it is evident that there is a proper authority to decide upon every Act of Congress, without the interference of the Legislature of any State, and that it is as unconstitutional in a Legislature to assume a judicial Power as it would be in Congress to enact a law not warranted by the Constitution. (Journal of the Senate.)
Resolutions of the Connecticut General Assembly.
Resolved that the attempt to form a combination of the Legislatures of the several states for the avowed purpose of controuling the measures of the Government is foreign to the duties of the State Legislatures; Hostile to the existance of our national Union, and opposed to the principles of the Constitution, with these impressions this Assembly doth deeply regret that a spirit should Exist in the Legislature of any State capable of dictating Resolutions like those now under consideration; Resolutions calculated to subvert the Constitution and to introduce discord and anarchy. were this Assembly permitted to decide on the Measures of the General Government, they would declare the Acts against which the aforesaid Resolutions are particularly aimed, strictly Constitutional, but it is sufficient to remark that the administration of the Government meets their entire approbation, and that the Alien, and Sedition Acts are wisely calculated among others, to establish justice, insure domestic tranquility, provide for the common defence, promote the General welfare, and secure the blessings of Liberty to themselves, and their posterity. And therefore this Assembly doth refuse to concur with the Legislature of Kentucky in promoting any of the Objects attempted by the aforesaid Resolutions; And it is further Resolved That the Secretary of this State transmit a Copy of the foregoing Resolution to the Secretary of the State of Kentucky with a request that the same be communicated to the Legislature of said State. (MS. Records of the State of Connecticut, Vol. VI., 1797–1801, Session of May, 1799, p. 31.)
B. Replies to the Virginia Resolutions of 1798.
Report concurred in and Resolution adopted by the Maryland House of Delegates, January 16, 1799, and by the Senate, January 19, 1799.
The Committee to whom were referred the resolutions from the legislature of Virginia, respecting the alien and sedition laws passed at the last session of congress, report, that they have had the same under their most serious consideration, and after mature deliberation declare it as their decided opinion, that no state government, by a legislative act, is competent to declare an act of the federal government unconstitutional and void, it being an improper interference with that jurisdiction, which is exclusively vested in the courts of the United States; independently of the above consideration, your committee, viewing the present crisis of affairs, believe it incumbent on them to express their opinion, that a recommendation to repeal the alien and sedition laws would be unwise and impolitic; they therefore submit to the house the propriety of adopting the following resolution: Resolved, That the general assembly of Maryland highly disapprove of the sentiments and opinions contained in the resolutions of the legislature of Virginia, inasmuch as they contain the unwarrantable doctrine of the competency of a state government, by a legislative act, to declare an act of the federal government unconstitutional and void, and as they contain a request for our co-operation with them in obtaining a repeal of laws, which, at this crisis, we believe are wise and politic. (Report of the Votes and Proceedings of the House of Delegates of the State of Maryland at November Session, 1798.)
Resolution adopted by the House of Representatives of Pennsylvania, March 11, 1799.
Resolved, That as it is the opinion of this House that the principles contained in the resolutions of the Legislature of Virginia, relative to certain measures of the general government, are calculated to excite unwarrantable discontents, and to destroy the very existence of our government, they ought to be, and are hereby, rejected. (Journal of the House of Representatives of the Commonwealth of Pennsylvania, Vol. IX., Philadelphia, 1799, p. 289.)
C. Reply to both the Virginia and the Kentucky Resolutions of 1798.
Reply of the New York House of Representatives.
Whereas it appears to this House, that the right of deciding on the constitutionality of all laws passed by the Congress of the United States, appertains to the judiciary department—And whereas the assumption of that right is unwarrantable, and has a direct tendency to destroy the independence of the General Government—And whereas this House disclaims the power which is assumed in and by the Legislatures of the States of Kentucky and Virginia of the sixteenth of November and the twenty-fourth of December last of questioning in a legislative capacity either the expediency or constitutionality therein referred to: therefore Resolved, That the Committee of the whole House be discharged from any further consideration of the message of his excellency the Governor of the twelfth day of January last, and the said resolutions which accompany the same. (Albany Centinel, February 19, 1799. H. U.).
D. Protest of the Vermont Minority.
Tuesday, the 5th of November, 1799. 9 o'clock, A. M.
Mr. Hay laid before the House a statement of the reasons which influenced the minority, in the votes for passing the resolutions in answer to the resolutions of the states of Virginia and Kentucky, which were read as followeth, to wit.
We, the undersigned, being a part of the fifty, who refused their assent to the acceptance of the reports, recommended by the grand committee of the Legislature to this House, on the Virginia and Kentucky resolutions, respecting the acts commonly known by the titles of the "alien and sedition bill," do assign the following, as some of the reasons which occasioned our dissent.
Because, although we zealously urged at an early period of the session, and again earnestly solicited, when this important business was last before us, that all the official papers which had been presented to the House on this subject, be printed for the use of the members, previous to their entering into argument, or deciding on the question, this very reasonable request was refused, as will appear from the journals. Notwithstanding which refusal, the report of this House, on the Kentucky resolutions, commences with declaring "That we have maturely considered them."
Because, therefore, impressed with an opinion, that truth never shuns the light, and that sound argument never evades investigation, we could not believe that these resolutions, had time and opportunity been afforded for freely comparing each article with the others, would [have] appeared to the House, fraught with all the bad consequences attributed to them, in the two separate reports addressed to the Legislatures of these states.
Because, without going into an investigation of the constitutionality of what is generally termed the "Sedition Bill," we have ever been of an opinion, with that much and deservedly respected statesman, Mr. Marshal, (whose abilities and integrity have been doubted by no party, and whose spirited and patriotic defence of his country's rights, has been universally admired) that "it was calculated to create unnecessarily, discontents and jealousies, at a time, when our very existence as a nation may depend on our union."
Because, the "Alien Bill," as it is generally termed, grants to the President a power unknown to, and inconsistent with the general features of the constitution of the United States, through the whole whereof is displayed the divine principles of mildness, freedom, and liberality.
Because likewise, at the time it was passed, it could not refer to alien enemies, and must therefore, of course, involve alien friends in all the disastrous consequences, which may arise from this excess of power, unprecedented, we believe, on any similar occasion, in a free government.
It would here be improper to neglect observing, that it was but eleven days after this act passed, before another was enacted, which respected alien enemies, against which last act, the breath of discontent has never been known to be uttered.
Because, by the ninth section of the constitution of the United States, it is declared, "The migration or importation of such persons, as any of the states now existing shall think proper to admit, shall not be prohibited by Congress, prior to the year eighteen hundred and eight, but a tax or duty may be imposed on such importation, not exceeding ten dollars for each persons."
Migration is an appropriate term, and we hesitate not to affirm, constantly implies a freedom of will in the person migrating, and is therefore contra-distinguished from importation, which must have had respect to slaves only; which distinction is clearly evinced to have been contemplated, in the above section of the constitution, for in the latter part thereof it is declared, "that a tax or duty, may be imposed by Congress, on the importation of such persons," while it is perfectly silent as to that tax, on the migration of persons.
Because, by this law, alien friends, and the President is empowered, it is true, not to interdict their landing, but to banish them as soon as he shall think proper, after they are landed, and inflict that severe punishment, without their being heard—without even the color of trial—without the pretence of their having committed any crime, except that very extraordinary one of being suspected—without, in short, assigning any reason why he does so. By which power, the intention of that part of the constitution, as far as it respects the migration of persons, though still in force, may absolutely and completely be defeated, and we therefore should esteem ourselves highly deficient in the duty we owe to our constituents—unfaithful to the sacred trust reposed in us by them—unmindful of the solemn oath we have taken, "Not to do, or consent to any act or·thing whatever, that shall have a tendency to lessen, or abridge the rights and privileges of the people, as declared by the constitution of this state," were we to refrain from expressing our decided opinion that the act granting this power, is an undisguised breach of the constitution of the United States, because it deprives the states individually, of a privilege, which we think, clearly remains vested in each of them, by the first article of the ninth section of the constitution, compared with the twelfth article of the amendments thereto.
Because, in addition to the above reasons, we maintain a lively sense of the admonition of our darling, our beloved WASHINGTON, who, in his farewell address to the militia, on the western insurrection, proclaims this fact, and his opinion thereon, with a warmth worthy his truly patriotic bosom, that "The dispensation of justice, against offenders, belongs to civil magistrates, and let it ever be our pride and our glory, to keep the sacred deposit there inviolated."
Because, we conceive that some of the expressions in the reports alluded to, are highly objectionable, of which we shall only mention two. In the report on the Virginia resolutions, is the following unequivical assertion; "It belongs not to state Legislatures to decide on the constitutionality of laws made by the general government." Here we must observe, that the report came recommended for our acceptance, by the grand committee of the Legislature, with the words deliberate or between the words to and decide; but the prohibition of a state from deliberating 'on the constitutionality of the laws made by the general government,' appeared so radically erroneous and inconsistent, that a motion was made by one of the defenders of the report, as it now stands, to strike out the words 'deliberate or,' which was agreed to without a dissenting voice, none of those who had voted for printing the official papers, having interfered in the debate.
While, therefore, we highly respect the abilities and precision of the majority of this House, we are compelled to declare, that in our opinion, this amendment renders, if possible, the assertion still more palpably preprosperous, by subjecting each individual state to a degree of humiliation, incalculably painful, and immoderately degrading. For as it appears clearly by the twelfth article of the amendments to the constitution, as has been before observed, that the states individually, compose one of the parties to the federal compact or constitution, it does of course follow, that each state must have an interest in that constitution being pure and inviolate.
By the report, as amended and adopted by the House, each state is tacitly permitted the wretched, despicable prerogative of deliberating through their Legislature, on the real or supposed infraction of a compact, in which they are highly interested. But when they have deliberated, there they must stop, for they cannot communicate their sentiments in the common way, because that must necessarily involve their decision on the question; but this is declared in the report, to be an unconstitutional assumption of power, 'not belonging to state Legislatures.'
As we cannot yield our assent to this new method of tantalizing Legislative bodies, we willingly and cheerfully relinquish to the honorable inventors, all the profit and honor which may arise from the discovery.
Because, each state in the union, is by this diminutive explanation of their rights, debarred from a privilege, not only daily exercised by individual citizens, but in no instance attempted to be denied to them by the great legislative body of the union. As a proof of which we refer to the report of the committee of Congress, to whom was referred the memorials and petitions complaining of the act entitled 'An act concerning aliens,' on the twenty-fifth of February last, who admit in their report, that the memorialists declare this act to be unconstitutional, oppressive, and impolitic, 'and that some of the petitions are conceived in a style of vehement and acrimonious remonstrance,' but not a lisp of blame leaks out from this committee because the petitioners gave their decision, against the constitutionality of this law. From which it appears to us, that the report of this house voluntarily, though we are far from thinking intentionally, sacrifices a valuable prerogative of this state, not expected, much less demanded by the government of the union.
Let it not be supposed, that in advocating the power of each state to decide on the constitutionality of some laws of the union, we mean to extend that right to any laws, which do not infringe on the powers reserved to the states, by the twelfth article of the amendments to the constitution. We cannot, therefore, be charged with an intent to justify an opposition, in any manner or form whatever, to the operation of any act of the union. That we conceive to be rebellion, punishable by the courts of the United States.
Because, in the latter part of the report on the Kentucky resolutions, the term jealousy, which is therein affirmed 'to be the foundation of a free government,' is stigmatized in the report, 'as the meanest passion of narrow minds,' and a suggestion in our opinion ungenerous, is warmed in immediately afterwards, the intention of which, without entering deeply into the spirit of innuendoes, cannot be well misunderstood.
Whether jealousy, in a political sense, be a virtue or a vice, depends, we conceive, on the object by which it is produced, and the extent to which it is carried. As a proof of this, we will once more quote an admonition of our illustrious Washington, in his farewell address to his fellow-citizens. 'Against the insidious wiles of foreign influence (says he) I conjure you to believe me fellow-citizens, the jealousy of a free people ought constantly to be awake.'
But from this part of the report we were compelled to dissent for another reason, still more cogent, for by our consent, we should have acknowledged that the great body of our general constituents, had justly incurred the obloquy of possessing 'the meanest passion of narrow minds.' In a late address of thanks to his Excellency the Governor, to which this House unanimously concurred, we say, 'That our constituents entertain too high a sense, are too jealous of their own rights, ever to infringe wantonly, or intentionally, on those of any friendly nation.' From which it follows, that either this House entertained a most ignominious and disrespectful opinion of their constituents—that what is virtuous in them, is vicious in the Legislature of Kentucky—or that the explanation of the term jealous, in the report to which we have given our dissent, as applied to the subject of the Kentucky resolutions is altogether erroneous, ungenerous, and unfounded. The last of which three propositions, is the only one of them to which we could or can give our assent.
And lastly, we assign as a principal reason of our dissent, because we believe that the most pressing of our social duties, as citizens of the union, is to guard with a watchful scrupulosity, against the smallest breech of our federal constitution, to which we look up with admiration, with pleasure and respect, as the great and impregnable bulwark of [if] properly defended, of our political salvation.—(Journal of the General Assembly of the State of Vermont, October, 1799, pp. 148–152).