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.