Contemporary Opinion of the Virginia and Kentucky Resolutions/Appendix

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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 thewhole, 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 Governorof 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 withthe 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).