CHAPTER IV.

KENTUCKY AND VIRGINIA RESOLUTIONS.

During Adams’ administration peace had been endangered by the endeavor

of foreigners to embroil the country in the war then raging in Europe.

In 1798 the Alien Laws giving the power to the President to expel

foreigners, and the Sedition Law punishing seditious acts and libellers

of the government, were passed. The constitutionality of these laws may

be fairly questioned.

Jefferson, the leader of the party in opposition to those in power, was

not a member of the convention that formed the Constitution, he was at

that time serving the country in Europe. He was exceedingly disturbed by

the Alien and Sedition Laws, and has generally been held as the

instigator and author of the Kentucky resolutions condemning them, and

asserting the right of nullification, passed by its Legislature in

November, 1798.[65] The Virginia Assembly soon afterwards, late in

December of that year, passed the famous resolutions so much relied upon

by those claiming the right of nullification and secession. Jefferson

did not find the Legislature of Virginia as compliant as that of

Kentucky; and the resolves passed by Virginia differ fundamentally from

those of Kentucky.

[65] Two drafts of the resolutions in his handwriting were found

amongst his papers and are published in his writings.

At the time they were passed little notice was taken of the Kentucky

resolves, owing undoubtedly to the small importance of the declarations

of the Legislature of a State just admitted to the Union with but few

inhabitants. Besides, Kentucky had no claim to original sovereignty. She

owed her existence, the right of government over her territory, and of

expressing her opinions, to the privilege the General Government had

given her to become a State. How with any decency could such a State

claim to be a sovereign, to pass judgment on the legality of the laws of

the United States from whom came her very being?

Then, after all, resolutions are not laws, and these resolutions of

Kentucky (and the same remark applies to the resolutions of all other

States passing judgment on the laws of the United States declaring them

null and void) are merely the opinion of that particular Legislature

that passed them, a sort of harmless suggestion of superior wisdom.

There is no provision in any of our State constitutions authorizing the

Legislature to give such opinions and the next Legislature may pass

others directly contradictory. They are only entitled to respect as

_opinions_, as would be the opinion of any town meeting or synod of

clergymen or assemblage of citizens.

The Kentucky resolutions declare, and it was the first time any such

declaration was made, the same doctrine that Calhoun and Hayne

subsequently maintained; that the several States are united by compact,

under the style and title of a constitution, in a general government for

special purposes, and when the General Government assumes undelegated

powers its acts are void and of no force.

Then comes the doctrine, that this government created by this compact is

not the exclusive or final judge of the extent of the powers delegated

to it, “but that, as in all other cases of compact among parties having

no common judge, each party has an equal right to judge for itself, as

well of infractions as of the mode and measure of redress.”

Let us examine this reasoning of the Kentucky resolutions. It is that

the States are united in a general government by a compact, called a

constitution, for special purposes, and when the government assumes

undelegated powers its acts are null and void. There is no objection to

calling the Constitution a compact for special purposes only, and

declaring that the government under it has no right to assume not

granted or undelegated powers, and that any such assumption is void and

of no force.

The only objection to this first clause is the ambiguity in the

declaration that _the several States_ are united by compact. The

Constitution may be called a compact; but it cannot be denied that it

was between the people of the different States. It was not a treaty or

agreement made by the State Legislatures or State governments.

In the second clause comes the objectionable clause, that the government

created is not the exclusive or final judge of the extent of the powers

delegated to it.

We have already set forth that in this Constitution, or compact, which

is declared, by those who made it, supreme over all constitutions and

laws of every State, that all cases arising under the Constitution or

laws of the United States shall be tried by its judiciary.[66] Here is a

compact by the people of the several States, that when any questions or

cases arise the United States Judiciary shall have jurisdiction and

decide upon them. The parties to this compact have thus expressly made

that judiciary the final judge of the validity of the laws, and

therefore necessarily of the extent of power delegated to the

government. It cannot be denied that even independent sovereign nations

can establish a tribunal over themselves by arbitration or compact that

shall be conclusive. How then can the supremacy of the judiciary of the

United States be questioned by a State, whose people have deliberately

declared the United States Judiciary supreme over the State

constitution and laws, and that it has supreme judicial authority over

all cases arising under its Constitution and laws.

[66] Article III., Sec. 1, of the Constitution.

We must bear in mind that our Constitution and Government would have

been an absurdity and a failure, if every State, as an independent

authority, could question the validity of a United States law or the act

of any of its legal or administrative officers; four and forty different

State judiciaries to decide on what law was valid in each independent

sovereign State or Nation. As Webster and Chief-Justice Marshall said,

and Calhoun admitted, on every constitutional question this theory of

nullification gave as many vetoes as there are States.

Admitting, however, for the argument, that the States are independent

sovereign nations, this nullification doctrine of the Kentucky

resolutions is very faulty. It asserts the right of those who deny the

binding obligation of the compact, to break it; it entirely ignores the

right of the other parties, even when of the majority, who hold to a

different construction, to enforce their view. In all compacts or

agreements between nations there is the right of the independent

sovereign nations, and emphatically when of the majority, to make

another independent nation perform the compact it has made. The majority

is not obliged to yield to the minority. The _ultima ratio_, the final

reasoning of nations is war, and the majority certainly have that

right.

Jefferson himself asserted this right of a confederacy to coerce a

State, a party to an agreement, when he wrote to Cartwright that the

Confederate Congress should send a frigate and compel a State to pay its

quota. Washington was of the same opinion, when, in reference to New

Jersey’s refusal to pay her contribution, he wrote, “that counties in

Virginia and Massachusetts might oppose themselves to the laws of the

State in which they are, as an individual State can oppose itself to the

Federal Government.”[67]

[67] Washington’s letter to Dr. Wm. Gordon. Bancroft’s _History of the

Constitution_, vol. i., p. 320, Appendix.

See also in Jefferson’s _Works_, letter to Madison, April 16, 1781,

approving of coercion by a party to a compact.

The absurdity of the Kentucky resolutions[68] does not end with the

nullification theory. One would imagine the dispute would have been, who

did not write them, not who did. By the Constitution certain powers are

given to Congress, and the authority “to make all laws which shall be

necessary and proper for carrying into execution the foregoing powers.”

The power to punish three offences only is mentioned, but that Congress

had the power to enact all laws necessary to enforce and maintain its

authority is expressly given, and never had been questioned before these

resolutions.

[68] Kentucky resolutions, 4 Elliot, 540.

The authority of Congress is often illustrated by referring to the power

given “to establish post-offices and post-roads.” Under this brief

grant, Congress has passed laws punishing the robbing and obstructing

the mail, and breaking open letters, and has assumed the right of taking

of lands, and building post-offices, and doing everything requisite for

protecting, transmitting, and distributing mail matter. Congress has

also passed laws punishing the bribing of judges and of obstructing or

in any way interfering with judicial processes. In fact, it is difficult

to see how the government could go on without these powers to enforce

and maintain its authority. But this Kentucky Legislature resolved that

Congress had only the power to punish treason, counterfeiting the

securities and coin of the United States, and piracies and felonies

committed on the high seas, and offences against the laws of nations;

because the power to punish these three crimes was alone enumerated in

the Constitution. And it expressly enumerated two acts, one the Sedition

Law, and the other an act to punish forging or uttering counterfeit

bills of the Bank of the United States, “and all other their acts

(‘Congress’) which assume to create, define, or punish crimes other than

those enumerated in the Constitution, are altogether void and of no

force”; that the States only had this power each in its own territory.

The resolutions also arraigned the government for the sedition and other

acts punishing crimes, saying “that the General Government may place

any act they think proper on the list of crimes and punish it

themselves.” It declared “that these and successive acts of the same

character may tend to drive these States into revolution and blood.” It

will be noticed that the resolutions make no claim of a right of

secession. The use of the words revolution and blood implied that

resistance to the laws would be war.

The resolutions also arraigned the government for the Alien Law, calling

it a tyranny, and asking the States to concur with them in considering

that the acts of the General Government were so unconstitutional that

they amount to an undisguised declaration “that the compact is not meant

to be the measure of the powers of the General Government, but that it

will proceed in the exercise over these States of all powers

whatsoever”; and they ask the States that they will concur in declaring

these laws void and of no force, and in requesting their repeal. The

resolutions did not call upon the people or State of Kentucky to treat

these denounced laws as null and void, but asked the other States to

join them in getting Congress to repeal them.

For some reasons wholly incomprehensible, these nullifying resolutions

of Kentucky and those of Virginia have been seized upon and referred to

by late writers in the mistaken belief that they were the same, and are

alike declaratory of the right of a State, as an independent sovereign

power, to treat as null and void any United States law it deems to be

so, and with apparently the belief that they were concurred in to a

great extent at the time of their adoption.[69]

[69] See vol. i., Bryce’s _American Commonwealth_, p. 328.

No one has suffered more than Madison from this error,--Madison, justly

called the father of the Constitution, who, when its adoption seemed to

depend upon the acquiescence of New York, and that State hesitated about

joining the Union and proposed to make a conditional acceptance, firmly

declared an acceptance was absolute and perpetual, who in No. 39 of the

_Federalist_, the work written for the purpose of setting forth the plan

of the new government, was no less explicit on the question of

nullification, and said: “It is true that in controversies relating to

the boundary between the two jurisdictions, the tribunal which is

ultimately to decide is to be established under the general

government.... Some such tribunal is clearly essential to prevent an

appeal to the sword and a dissolution of the compact, ... and it could

be safely established under the first alone,”--the General Government.

And who later in 1833 wrote to Webster in reference to his speech in

answer to Calhoun: “It crushed nullification, and must hasten an

abandonment of secession.”[70] His biographers speak of his double

dealing in this matter, and even Mr. Hare, in his valuable commentaries

on the Constitution, passes the same judgment on his conduct.[71]

[70] Bledsoe, _Is Jefferson Davis a Traitor_, p. 173.

[71] There are several works on the Constitution by Story, Bancroft,

G. T. Curtis, and others, but none of them that we have seen, except

the recent work of Professor Hare, that ably treats the matter, has

taken up the question of nullification and secession. Apparently the

authors did not think such a claim could be made. Some editions

recently published have notes on this matter.

But, besides Madison, the fair fame of the State of Virginia, to whom,

for its being, the nation owes the greatest debt of gratitude, should

not be tarnished by the taint of having so soon declared that the laws

of the United States and the acts of its officers could be held and

treated as null and void by every State that questioned their validity.

From Virginia came Washington, the great general under whose command we

became a nation, the presiding officer over the convention that made the

Constitution, and who as our first President inaugurated and put

successfully into operation the national government, assuming no

unauthorized powers. To Virginia also is due the plan of the new

government proposed in the convention by Randolph, and ably shaped and

developed by Madison and Mason. Nor can we overlook the great

Chief-Justice, Marshall, who for so many years and from its early

existence defined the powers granted to the government, and maintained

them with fairness and without encroachment on those of the States.

In these famed resolutions the Virginia State Assembly, professing a

determination to maintain and defend the Constitution of the United

States and of the State, and a warm attachment to the Union, declared

that the powers of the Federal Government were limited by the plain

sense and intention of the instrument constituting the compact the

States are parties to, and that in a case of a deliberate, palpable, and

dangerous exercise by the Federal Government of other powers not granted

by the instrument of the compact between the States, it is the right and

duty of the States, the parties thereto, to interpose and arrest the

evil and maintain their rights. It asserted, with deep regret, that the

Federal Government had enlarged its powers by forced constructions of

the constitutional charter which defines them, and that there were

indications of a design to consolidate the States into one sovereignty

and to transform the government into an absolute or at best a mixed

monarchy; that particularly the Alien and Sedition Acts exceeded the

powers delegated by the Constitution, and were subversive of the general

principles of a free government, and were expressly and positively

forbidden by the Constitution; that the good people of this

commonwealth, with the truest anxiety for establishing and perpetuating

the Union, and with the most scrupulous fidelity to the Constitution,

appeal to the other States to concur in declaring the acts aforesaid

unconstitutional, and in taking the necessary and proper measures, in

co-operation with Virginia to maintain the rights reserved to the States

or people.[72]

[72] Virginia’s resolutions and explanations, 4 Elliot, 528, 529, 546

to 580.

It is to be borne in mind that the declaration of Virginia is, “that in

a case of a deliberate, palpable, and dangerous exercise by the Federal

Government of other powers not granted”--(that is, in the case of

usurpations), it is the duty of the States, not the duty of a State, to

interpose and arrest the evil and maintain their rights. Certainly in

such cases some power should interpose, and if States can legally under

the Constitution interpose to remedy such an evil, there can be no

objection to such interposition. Indeed a usurpation of powers might be

so plain and serious as to justify rebellion.

There is apparently a belief amongst some writers since Von Holst

published his, so-called, _Constitutional History of the United States_,

that Virginia laid down the doctrine, that “States can interpose.” As if

it had been declared there was a right of States to interpose their

authority and prevent the United States from enforcing its laws. It is

in case of _usurpations only_ Virginia claims that it is a duty and

right _to interpose to redress this evil_. There is no statement how

States should interpose; no suggestion that the method should be other

than in the way the Constitution sanctions.

It is very much to be regretted that Mr. Henry Adams, in his very able

and interesting history of the United States, should have added his

great authority to this construction of the resolves. He says the

Republican and the Federalist parties “were divided by a bottomless gulf

in their theories of constitutional powers.” “The Union was a question

of expediency, not of obligation: this was the conviction of the true

Virginian school and of Jefferson’s opponents as well as of his

supporters, of Patrick Henry as well as of John Taylor of Carolina and

of John Randolph of Roanoke”; and “The essence of Virginian

republicanism lay in a single maxim--the Government shall not be the

final judge of its own powers.”

The resolutions of Virginia were understood by the other States as a

denunciation of the laws of Congress, not as an assertion of a right of

a State to interpose in their execution. Of the sixteen States,

ten--Hildreth informs us, a fact that seems to be now overlooked,

Maryland, Delaware, Pennsylvania, New Jersey, New York, Connecticut,

Rhode Island, Massachusetts, New Hampshire, and Vermont--answered and

condemned them.[73] The resolutions of seven of these ten are in

Elliot’s _Debates_.[74] None of the other States supported them; indeed,

from Jefferson’s and Madison’s correspondence, they were afraid North

Carolina would also oppose them. The purport of the opposing

resolutions is well stated in the report of a Committee of the

Legislature of New York made in February, 1833, in the following words:

“These resolutions were met by several of the State

Legislatures to whom they had been communicated by counter

resolutions protesting against them with much warmth, chiefly

on the ground that the act of a State Legislature declaring a

law of the United States unconstitutional was in itself an

unconstitutional assumption of authority, and an unreasonable

interference with the exclusive jurisdiction of the Supreme

Court of the United States; accompanied in some instances, with

severe denunciation against their disorganizing tendency.”

[73] Hildreth’s _History of U. S._, vol. v., p. 296.

[74] 4 Elliot, pp. 532-9.

Some of the States argued the question of the constitutionality and

expediency of the Alien and Sedition Laws, and one State approved of the

able advocacy and demonstration of their validity and expediency by the

minority of the General Assembly of Virginia.

Of the States, whose resolutions are in Elliot’s _Debates_, two only,

New York and New Hampshire, mention the name of Kentucky. Apparently the

extreme viciousness of her doctrine escaped notice. In fact the

nullification doctrine, the right of each State to resist the execution

of United States laws, though asserted at the time by Kentucky, was

unnoticed or forgotten until brought to life again by South Carolina

thirty years afterwards. The right of secession was not suggested in the

resolutions of either Virginia or Kentucky.

Nor did it appear that any one of the Senators or the Representatives of

Kentucky ventured to lay before their respective Congressional Houses

the nullifying resolutions of that State, notwithstanding the injunction

contained in them to that effect.[75]

[75] Hildreth’s _History_, vol. v., 296.

Kentucky’s Legislature answered the resolutions of the other States

regretting the unfounded and uncandid suggestions in them derogatory to

her, and then declared an attachment to the Union. The Legislature none

the less resolved, that the several States that formed the Constitution

were sovereign and independent, having the unquestionable right to judge

of infractions, and that in such a case nullification was the rightful

remedy. The ending is not however that they nullify, but “this

Commonwealth does now enter against them” (the Alien and Sedition Laws)

“its solemn PROTEST.”[76] The protest in capital letters: and that is

all the State did.

[76] 4 Elliot, 545.

We come again to the Virginia resolutions. When that State, in answer to

her resolutions, received the indignant remonstrances of her sister

States, she felt obliged to defend her position. That defence was made

at great length in her General Assembly held the next year, 1799, by

Madison, the author of the resolutions and the chairman of the committee

to whom the communications of the other States had been referred. The

report which was adopted by the assembly, coming from Madison, the

principal constructor of the Constitution, should give no countenance to

nullification and secession. Upon examination it will be found that

there is none.

It begins with the very conciliatory and dignified statement that,

though there might be painful remarks on the spirit and manner of the

proceedings of the States who disapprove of the resolutions of Virginia,

it is more consistent with the dignity and duty of the General Assembly

to hasten an oblivion of every circumstance diminishing the mutual

respect, confidence, and affection of the members of the Union.

The explanatory report takes up, first, the resolution to maintain and

defend the Constitution of the United States and the warm attachment of

Virginia to the Union, and justly says no one can object to this.

The report next notices the assertion that the powers of the Federal

Government, as resulting from the compact to which the States are

parties, are limited by the plain sense and intention of the instrument

constituting that compact. This is merely, the powers of the United

States come from and are limited by the Constitution.

The report goes on and says the compact is the Constitution, to which

the States are parties. Then is defined what is meant by States. States

sometimes mean territories occupied by the political societies within

them, sometimes those societies organized into governments, and, “lastly

it means the people composing those political societies in their

highest sovereign capacity.” It says all will concur in the

last-mentioned, “because in that sense the Constitution was submitted to

the States, in that sense the States ratified it,” and in that sense

they are parties to the compact from which the powers of the Federal

Government result. Now, not forgetting it is the States, the people,

that are parties, is not this a declaration, an explicit one, that the

people of the several States made the Constitution, and not one

independent sovereign State with other independent sovereign States?

Then the report further says that the Constitution was formed by the

sanction of the States, given by each in its sovereign capacity. Taking

the definition of States as before given, this is merely an assertion

that in each State the people, who have the sovereign capacity,

sanctioned it. After this comes the rather obscure, and possibly

objectionable, doctrine. “The States,” meaning the people, “then, being

the parties to the constitutional compact, and in their sovereign

capacity, it follows of necessity that there can be no tribunal above

their authority to decide, in the last resort, whether the contract made

by them be violated, and consequently that as the parties to it they

must themselves decide in the last resort.”

It is to be noticed that the resolution carefully limits the decision of

the people or States to “in the last resort.” It does not define when

the last resort occurs. But the resolution (what the report is

commenting on) is, “that in case of a deliberate, palpable, and

dangerous exercise of other powers not granted by the said

compact”--that is, in cases of deliberate, palpable, and dangerous

usurpation--there is a right of the parties to the compact or government

to decide, to act, to resist that usurpation. This is a declaration of

the right of revolution; it is an assertion of that right in the last

resort,--when argument and reasoning fail; a right that Webster

admitted; the right that we the colonies claimed against Great Britain;

the right of resistance against deliberate, palpable, dangerous

usurpations of power; otherwise there is no redress for tyranny. No one

denies this right. If unsuccessful, it is rebellion, and punished as

such. So carefully, however, did Virginia assert this right that the

explanatory report itself calls attention to “guard against

misconstruction.” The interposition is not only to be in cases of

deliberate, dangerous, and palpable breaches of the Constitution, but

“to be _solely_ that of arresting the progress of the evil of

_usurpation_.” The resolutions do not even claim that in case of

usurpation _the binding compact of the government is broken up_, but

that the parties to it, which it has stated to be the people, should

solely interfere to arrest the evil. The report proceeds with the

statement that if there could be no interposition from _usurped_ powers

there is a subversion of rights recognized under State constitutions,

and a denial of the fundamental principle upon which our independence

was declared.

The report admits as true, “that the judicial department is in all

questions submitted to it by the forms of the Constitution to decide in

the last resort.” We have only to turn to the Constitution to see how

extensive is this submission. It is in all cases arising under the

Constitution and the laws made under it, in all cases in which States

are parties, in all cases where treaties or the United States are

concerned that it has this supreme power of judgment. This is precisely

the contrary doctrine to that of nullification.

The explanation further proceeds that it is in the last resort, “in

relation to the authorities of the other departments of the government,

and not in relation to the rights of the parties to the constitutional

compact, from which the judicial as well as the other departments, hold

their delegated trusts. On any other hypothesis, the delegation of

judicial power would annul the authority delegating it; and the

concurrence of this department with the others in usurped powers, might

subvert forever, and beyond the possible reach of any rightful remedy,

the very Constitution which all were instituted to preserve.” Perhaps it

may not be amiss to notice that all judicial power is over the rights of

the parties delegating it, the parties to the compact establishing the

government. The delegation is not confined to power over the authorities

of the other departments of the government, and the delegation of

judicial power does annul the authority delegating it as far as the

power delegated extends. It does not delegate usurpation of powers, nor

does it prevent revolution against usurped powers. This is what the

explanation means. But why the exception as to the other departments of

government? Usurpation by the judiciary over the other departments is

contrary to the conferred powers, and thereby affects the rights of the

parties to the compact. It is beyond what they delegate. Such usurpation

could very properly be resolved against: even more, resisted “in the

last resort.”

Then comes the assertion: “The authority of constitutions over

governments and of the sovereignty of the people over constitutions are

truths which are at all times to be kept in mind, and at no time

perhaps, more necessary than at present.”

As people make constitutions for the sole purpose of conferring powers

to governments over themselves which are to be superior and to compel

obedience, and punish those refusing it; and as the people always have

the power to make new constitutions or to amend them under the

regulations they have established; the suggestion of superiority seems a

glittering generality, at that time rather out of place.

The explanation then defends the assertion in the resolutions, that

these assumptions of powers, extending the sovereignty of the United

States, supersede the sovereignty of the States in the cases reserved to

them, and that its result “would be to transform the republican system

of the United States into a monarchy.” This fear that the government

would by assuming undelegated powers end in a monarchy was the objection

to the Constitution made in the convention that formed it, and in the

conventions of the people of the different States when they adopted it.

And in the Virginia resolutions it is said to be “the general sentiment

of America.” It is further argued this great assumption of increased

prerogative and patronage of the President might enable him to secure

his re-election and regulate the succession and establish it as

hereditary. This fear of that day to us seems absurd; but in the days of

George the Third, and not so many years from the Stuarts, it had a more

plausible foundation.

The explanation further says, and it is in fact an admission of its

truth, “that it has been stated that it belongs to the judiciary of the

United States and not to the State Legislatures to declare the meaning

of the Federal Constitution.” “But a declaration that proceedings of the

Federal Government are not warranted by the Constitution is a novelty

neither among the citizens nor among the Legislatures of the States.”

The report then takes up and undertakes to defend the resolve, that the

government has manifested a spirit to enlarge its granted powers by a

forced construction of the Constitution. It instances especially the

Alien and Sedition Laws, and declares the Alien Law to be

unconstitutional, because it gave the President legislative and judicial

powers in addition to those of the Executive. The Act, it says, enabled

him to send out of the country, in times of peace, aliens, citizens of a

friendly nation whom he should judge dangerous to the public safety or

suspect of treacherous or secret machinations against the government,

giving him thus legislative power, making his will the law. He also is

the judiciary; without the oath or affirmation of an accuser, his

suspicion the only evidence to convict; his order the only judgment to

be executed. And this order may be so made as to deprive the victim of

the privilege of the _habeas corpus_.

The Sedition act was also claimed to be beyond the power of Congress for

many reasons, and emphatically because it punished by fine and

imprisonment false, scandalous, and malicious writings against the

government; thus abridging the liberty of the press, the provision in

the amendments of the constitution for which Virginia had been so

strenuous.

In conclusion and in relation to these resolves the report says, nor can

declarations either denying or affirming the constitutionality of

measures of the government be deemed, in any point of view as assumption

of the office of the judge. They “are _expressions of opinion

unaccompanied with any other effect_ than that they may produce an

opinion by exciting reflection.” They “may lead to a change in the

legislative expressions of the general will--possibly to a change in the

opinion of the judiciary.”[77]

[77] 4 Elliot, 578.

“And there can be no impropriety in communicating such a declaration to

other States,” “and inviting their concurrence in a like declaration.”

Then it speaks of the legitimate rights of States to originate

amendments to the Constitution; that it was not improper or

objectionable in Virginia to ask the States to take “the _necessary and

proper measures_” to maintain the rights reserved to the States or

people; and that if the other States had concurred, “it can be scarcely

doubted these simple measures would have been as sufficient as they are

unexceptionable.” This is a statement that the resolutions were a mere

matter of opinion and that the laws complained of were unconstitutional,

and if the other States had been of the same opinion, the States might

have constitutionally remedied the evil.

Again is a repetition of the warm affection of the people of the State

to the Union, and the explanation calls to remembrance the part the

State had borne in the establishment of the “National Constitution,” and

subsequently of maintaining its authority without a single exception of

internal resistance or commotion, and a declaration that the people of

Virginia must be above the necessity of opposing any other shield to

attacks on their national patriotism, “that the resolutions themselves

are the strongest evidence of attachment both to the Constitution and

the Union.” “And as the result of the whole,” they adhere to their

resolutions and “renew their protest against Alien and Sedition acts as

palpable and alarming infractions of the Constitution.” Madison in a

letter to Edward Everett informs us the words, “not law but utterly

null, void, and of no force or effect,” which followed the word

“unconstitutional” in the resolutions as to the Alien and Sedition laws,

were struck out by consent, and also that, “the tenor of the debate

discloses no reference whatever to a constitutional right in an

individual State to arrest by force the operation of a law of the United

States.”[78]

[78] Madison’s letter to Everett, before referred to. Oct. No. _N.

Amer. Review_, 1830.

These resolutions and the explanation--Virginians always put them

together--were nominally the political creed of the republican party

that so long ruled the United States. They were a denunciation--perhaps

a partisan one--of alleged unconstitutional laws made by the federal

party in the administrations of Washington and Adams, and expressed a

belief, which few to-day will say was warranted, that there was a

design in them to transform the government into an absolute or at best a

mixed monarchy.

The methods to arrest the evils of these alleged unconstitutional

assumptions of undelegated powers were stated to be authorized by the

Constitution itself. And by the concurrence with Virginia of the other

States to whom the resolutions were submitted, they, the States, might

remedy the alleged evils by their representatives in Congress or by the

choice of Senators of different opinions; there were to be, the Virginia

explanation said, no less than two Congresses before the laws expired by

their limitation; or if necessary, the explanation further said, the

States by a convention could alter the Constitution.

The resolutions are those of strict constructionists of the powers

granted by the Constitution; they in no way assert the nullification

doctrines of Kentucky, which some thirty years afterwards were revived

and developed to their logical result of secession by Calhoun and South

Carolina.

The prosecutions under the Sedition law, the arresting and carrying

through the country and the fining and imprisoning as criminals, for the

expression of opinions, of men whom the Republicans held as eminent and

respectable, such as Thomas Cooper, Jefferson’s dear friend, had very

great influence in the defeat of the federal party under the elder Adams

and of the triumph of Jefferson and the Republicans.

The resolutions of Virginia alarmed Washington as exhibiting a

discontent with the Union. He wrote to Patrick Henry, one of the

Virginians Henry Adams names, to induce him to interpose his great

influence in the matter.[79] Henry, whose impassioned eloquence had done

so much to bring Virginia into the war of the revolution, who ably and

persistently opposed in the Virginia convention the acceptance of the

Constitution from fear that the great powers given to the United States

would be fatal to liberty, had become one of its strongest supporters.

He shared Washington’s anxiety. Though he had often been Governor of the

State, and had declined offers of the most important national offices

under Washington, he offered himself as a candidate for election to the

House of Burgesses, to do what he could to put an end to this discontent

and what he considered the rash measures of the State. In his speech

before his constituents, he declared that Virginia had quitted the

sphere in which she had been placed by the Constitution in daring to

pronounce upon the validity of federal laws, and asked, “whether the

county of Charlotte would have any authority to dispute an obedience to

the laws of Virginia, and he pronounced Virginia to be to the Union

what the county of Charlotte was to her.”[80] Nor did he believe that

resistance would be peaceful; for he warned the people that the

opposition of Virginia to the acts of the General Government must beget

their enforcement, and that war would ensue with Washington and a

veteran army as opponents. It was the period of our hostility with

France, and Washington had been made commander-in-chief. Henry was

chosen to the House of Burgesses by a large majority, but died before

the session began in which Virginia’s conciliatory explanation of her

resolves and her loyalty and attachment to the Union and the supremacy

of those laws in all delegated powers was made.

[79] Washington’s letter to Henry, Sparks’ _Washington_, vol. xi., p.

387. The letter also contains his opinion of those in opposition to

the government.

[80] Wirt’s _Life of Patrick Henry_, pp. 393, 394. Moses Coit Tyler’s

_Life of Patrick Henry_, p. 373.

The other two distinguished Virginians whom Mr. Adams mentions, are John

Taylor of Caroline and John Randolph of Roanoke. Taylor, a great friend

of Jefferson’s, in 1823 published a book called _New Views of the

Constitution of the United States_. Of so little importance, so little

known, were the Kentucky resolutions then that he does not cite them, as

far as we can find from our examination, which we do not claim to be

thorough. In the preface he speaks of his “survey as not devoid of

novelty.” He controverts at great length the opinions of Hamilton and

Madison, as given in the _Federalist_ and a pamphlet published in South

Carolina with similar views, called _National and State Rights

Considered by One of the People_. His views of the Constitution are, as

he says, new. He advances the doctrine that in a conflict between the

laws and measures of the State and General Government neither shall

prevail, but substantially the State should, unless three fourths of the

States by an amendment of the Constitution should decide otherwise.

John Randolph of Roanoke was notorious for his eccentricities and

vagaries, his attacks on all parties and all policies; if he had any

opinion it was probably, as he said, that the Virginia resolutions and

their explanations were “his political Bible.” What the resolutions and

explanations are we have endeavored to set forth.

Nullification, Secession, Webster's Argument, and the Kentucky and Virginia Resolutions Considered in Reference to the Constitution and Historically · 第 4 / 6 章