Contemporary Opinion of the Virginia and Kentucky Resolutions/II

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The trial of Abijah Adams[1] was conducted by Chief-Justice Dana and lasted through three entire days, the jury rendering its verdict on the morning of the fourth day.[2] Sullivan, the attorney-general, presented the case of the Commonwealth. The prosecution as he presented it "had no connection with the Sedition Act of Congress," but was "under the common law of the State." The articles set forth in the indictment were libels against the General Court of Massachusetts, for "the common law of the country, which was common reason, prohibited such outrages" albeit there was no statute defining libels upon the government. In support of this doctrine the attorney-general argued that the offense described in the indictment was indictable by the common law of England. To obviate the objection that such an action would be an infringement of the freedom of the press, Blackstone's definition, that liberty of the press meant only freedom from restraint prior to publication, was appealed to as authoritative. If the offense charged in the indictment was libellous by the common law of England, the conclusion that it was punishable in Massachusetts was easily reached. The first settlers in Massachusetts brought that doctrine to America with them as a part of the common law.

For the defense, Messrs. Whitman and George Blake presented three lines of argument: 1. The defendant, being merely employed in the office of the Chronicle, was not the real culprit, if there be one; 2. The matter set forth in the indictment was not libellous; 3. Under the constitution of Massachusetts no indictment can be maintained for a libel against the government of the state. Two of these lines of argument possess great interest. The second shows incidentally the opinions of leading Massachusetts Republicans in regard to the constitutional doctrines of the Virginia and Kentucky Resolutions, as expressed in a carefully considered argument before the highest court of the state. The third places in a clear light the extreme doctrines which Federalist judges of 1799 held in theory and sought to put into practice against Republicans who had sufficient courage to proclaim openly their political convictions.

In developing the second line of argument the attorneys for the defense pointed out that the articles upon which the indictment was based could not be regarded as libellous, except by a process of inference and deduction. If these articles contained the charge that the members of the legislature were guilty of treason, it was only as a conclusion, deduced or inferred from certain constitutional principles. The charge of treason was, therefore, not an impeachment of the individual members of the legislature, but of their principles. Even supposing it a reflection upon the legislature and entirely unwarranted, it was only an expression of opinion, and no man should be punished for mere error in opinion, especially if expressed in connection with the premise from which it was drawn.

Realizing, apparently, that about the only reply that could be made to this argument was to assert that the conclusion was wanton and arbitrary because it had no necessary connection with the premise, the attorneys for the defense proceeded to argue that the conclusion was a fair deduction from the premise. Their argument upon this head began with the assertion that since the formation of the federal government no question "had been the cause of more dissension, than the precise extent of the freedom, sovereignty and independence of the States." Citing the controversy over the suability of the states as an evidence that the line between state and federal sovereignty was not yet sharply drawn, they further contended that for the present case it was not necessary to consider the question whether a state legislature had authority to decide upon the constitutionality of any act of Congress, but only to indicate that in some cases "the existence of such authority would not only be manifest, but the necessity of its existence clear and indispensable." In evidence of this proposition, which is in effect almost the doctrine of the Virginia and Kentucky Resolutions, a hypothetical case was cited wherein the reserved rights of the states would indubitably be violated by a law of Congress; in such a case the state legislatures could not be better employed than in protesting, since a protest might lead Congress to repeal its act. Exactly what would happen in case Congress failed to heed the pretest, the attorneys did not indicate. Upon that point they were content to remark, that it was admitted that the state legislatures were not the constitutional tribunals for determining the validity of federal laws "in any other cases than those in which their own sovereignty or power are directly or immediately involved." Even in such cases their decisions were not to be regarded as binding upon the federal government. Having thus reached the point at which all state-sovereignty arguments fail, the matter was not pushed to any definite conclusion. No way out of the dilemma was suggested; but the failure of the logic did not prevent further argument intended to prove that the states must possess the right "to maintain within their respective limits all powers, rights and liberties appertaining to them." Summing up the whole matter of the reasonableness of the conclusion from the given premise, the attorneys for the defense said: "On the whole, whatever may be the merits of the question, there appears to be some little force in the sentiment contained in the Virginia Resolutions: 'that in cases of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states, who are parties thereto, have the right and are in duty bound, to interpose, for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.'"

The second line of argument having shown that the leading Republican newspaper of New England and two of the most prominent Republican lawyers of Boston accepted all or nearly all of the constitutional doctrines of the Virginia and Kentucky Resolutions, we may turn to the third line of argument to learn how the Federalist chief-justice defined liberty of the press for Republican newspapers. The defense maintained that under the constitution of Massachusetts there could be no such thing as a libel upon the government of the state. Admitting that the English practice had been correctly stated they contended that the same rule did not prevail in Massachusetts. The whole body of the common law of England had not been adopted in Massachusetts; an exception had been made by the constitution of such parts as are "repugnant to the rights and liberties contained in this constitution." The question whether the English common-law rule was repugnant to the constitution was a fair problem for the court and the jury. To assist the court and the jury in determining that problem the defense made the point that no statute had been made by either the colony or the province for punishing such libels, denying also that the cases cited by the attorney-general were in point. Making the further admission, for the sake of argument, that the English rule had prevailed in Massachusetts prior to the Revolution, the defense urged that the events of the Revolutionary period had effected a change in the common law upon the subject of libels against the government. Blackstone's definition, that liberty of the press consists only of freedom from restraint prior to publication, was unsuited to the spirit of American institutions. As a better definition of liberty of the press the defense offered to read a passage from John Adams's Canon and Feudal Law.[3] This definition the chief-justice refused to hear, finding excuse that it was published anonymously, that "it was unusual and improper to submit any matter to the jury unsupported by regular authority," and that speculative productions, written at a period of disorder and commotion, "however respectable and illustrious the author," should not be admitted.

After the refusal of the chief-justice to listen to any definition of liberty of the press other than that which obtained in England, one would like to know in what terms he defined that subject to the jury. Presumably he adopted the English rule without material qualification, for a verdict of guilty was rendered in accordance with that principle. The prisoner was sentenced to thirty days' imprisonment, payment of the costs of his trial, and to make a recognition in the sum of five hundred dollars to keep the peace and maintain a good behavior for one year.[4] Before sending the prisoner away to jail the chief-justice seized the occasion to deliver a long harangue, in the course of which he declared himself emphatically upon what he called "the monstrous positions" of the Virginia and Kentucky Resolutions.[5]

The imprisonment of Abijah Adams was the most flagrant but not the only instance of the persecution of Massachusetts Republicans for their attitude against the reply to Virginia and Kentucky. Both of the Republican legislative leaders suffered much annoyance at the hands of Federalist zealots. The incidents, though trivial in themselves, are interesting for the light which they throw upon the methods by which the Federalist leaders retained their control over Massachusetts. Bacon, the Republican senator who had unaided opposed the passage of the reply, was held up to ridicule in the Federalist press as the Solitary Nay, a character altogether too contemptible for punishment.[6] Being defeated for re-election to the Senate, Bacon offered himself as a candidate for the House in the town of Stockbridge. A few days before the election a communication appeared in the Centinel,[7] professing to recount an incident in Bacon's early life which the voters of Stockbridge ought to be informed of. According to this correspondent, Bacon while minister of the Old South Church in Boston in pre-Revolutionary days had owned two slaves, a husband and wife. Though Bacon had received them into his church-fellowship, when he perceived the likelihood of his losing them by action of the state he sold the husband, who was transported from Massachusetts, never to see his wife again. "This," says the correspondent, "is the man who stands for liberty and equality." Bacon had no difficulty in proving the story false,[8] but the Centinel took no notice of that fact.

Dr. Aaron Hill, the Republican leader in the House, lived in Cambridge. One night not long after the end of the session of the General Court, a Federalist mob, composed, the Chronicle insinuates, of students from Harvard College, manifested their disapprobation of Dr. Hill's course upon the reply to Virginia and Kentucky by shattering the windows and casements in his house. This outrage, however, redounded to the confusion of the Federalists. When the election for members of the General Court came on, about a month later, the Federalists made Hill and his course upon the reply to Virginia and Kentucky the issue at the largest town-meeting Cambridge had ever known. Hill was returned by three majority, enough Federalists casting their votes in his favor on account of the outrage to secure his election.[9]

It is plain, then, that both the Federalists and the Republicans of Massachusetts took the same general attitude toward the protest and remedy of the Virginia and Kentucky Resolutions as did the members of their respective parties in the Middle States. The Federalists manifested an utterly imperious and intolerant demeanor towards their Republican opponents. The imprisonment of Adams indicates that the Federalists were ready upon the slightest provocation to treat opposition to the policy of the administration, whether federal or state, as a crime. That case certainly does much to explain why Jefferson and other Republican leaders could fear that republican institutions were about to be overthrown.

The Rhode Island newspapers furnished their readers with no original thoughts upon the Virginia and Kentucky Resolutions and with but little information about the manner in which the legislature of the state handled them. The legislature met at East Greenwich on February 18, and nearly all that can be learned of their proceedings for the entire session is that before adjourning on March 9 two sets of resolutions were passed in reply to Virginia and Kentucky. These replies are identical, except in the matter of dates and names, and the vote upon them, unanimous in the Senate and lacking but one of unanimity in the House, would indicate that there was no debate.[10] The brevity of the replies, according to the Providence Journal, is due to the fact that other states having entered fully into the reasons for dissenting from Virginia and Kentucky nothing was thought necessary but "an expression of opinion, and of a few general principles on which that opinion was founded."[11]

In Connecticut the newspapers printed so many documents and articles bearing upon the Virginia and Kentucky Resolutions that their readers must have become quite familiar with them. But among these articles I have been able to find no original discussions and but very little about the action of the state legislature upon the resolutions. While the legislature was in session none of the Connecticut papers published any accounts of its proceedings; after it had adjourned, the Connecticut Courant had a long account, evidently written by a member.[12] This article, copied by all the other papers, constituted their only account of legislative affairs. One paragraph in this article contains all that can be learned about the replies to Virginia and Kentucky, save what is shown by the documents themselves.

Opposition to these replies was expected by the Federalists, for there were some fifteen or sixteen "Jacobins" in the House, though some of these were "half-way characters." But the answers met with no resistance, most of the Republicans absenting themselves during the vote. The reply to Virginia[13] passed both houses unanimously, while that to Kentucky encountered but two negative votes in the House and none in the Senate. The reply to Kentucky[14] declares that attempts to form a combination of state legislatures for the purpose of controlling the policy of the federal government are foreign to the duties of state legislatures, contrary to the principles of the Constitution, and calculated to introduce anarchy by menacing the existence of the Union. But were the assembly permitted to pass upon the measures of the federal government, it would pronounce the Alien and Sedition Laws constitutional and meriting its entire approbation. In this reply, as also in that to Virginia, the Federalist members of the Connecticut assembly expressed their dissent to both the protest and the remedy of the Virginia and Kentucky Resolutions, while the Republicans by their absence showed that they could not accept it entire.

New Hampshire, as regards the Virginia and Kentucky Resolutions, was the banner state of Federalism. The Federalist newspapers there added little if anything to the discussion of the principles involved, but their comments show a determined front. The Federal Miscellany, of Exeter,[15] accepting the Virginia Resolutions as a threat to arm the militia of Virginia against the federal government, retorted that an allusion to force was improper in a discussion upon matters of government, but Virginia will find her sister states "as able in the field as in the cabinet."

When the resolutions of Virginia and Kentucky reached Governor Gilman the winter session of the legislature was over and, in consequence, the legislative reply of New Hampshire was delayed until June. On the fifth of that month Governor Gilman submitted the resolutions to the legislature, remarking that they appeared to him "of a very extraordinary nature," but that delicacy towards sister states prevented him from making any observations upon them[16] But the legislature evidently did not share in the governor's feeling on the point of delicacy, for it promptly and decisively expressed its observations in very blunt fashion. One reply,[17] addressed to both Virginia and Kentucky, sufficed for the declaration that if the legislature of New Hampshire "for mere speculative purposes" were to express an opinion it would be that the Alien and Sedition Laws were constitutional and "highly expedient"; and that the state legislatures were not the proper tribunals to decide upon the constitutionality of laws enacted by the federal government, that duty being "properly and exclusively confined to the judicial department." This reply, an emphatic demurrer to both the protest and remedy of the Virginia and Kentucky Resolutions, was passed unanimously by both houses. None of the New Hampshire newspapers give any accounts of the proceedings of the legislature upon this reply and, in consequence, I am unable to offer a satisfactory explanation of the unanimity. The attitude of the Republicans elsewhere warrants the conclusion that the Republicans of New Hampshire could not have entirely endorsed the reply to Virginia and Kentucky. Being few in number, probably they absented themselves, as in Connecticut, or remained silent.

Of the replying states Vermont was the most tardy. Its General Assembly did not meet until October 10, 1799, but the spirit of Vermont Federalism, as connected with the Virginia and Kentucky Resolutions, manifested itself earlier. In May there was a rumor that Matthew Lyon, the leader of the Vermont Republicans, who was then serving out a sentence under the Sedition Law, contemplated removal to Kentucky. This announcement led to a characteristic paragraph in a Federalist paper published at Vergennes.[18]

The passage of the great beast [Lyon] and his whelps to that land of paddyism (Kentucky) would be a curious spectacle for the northern and middle states. To drain this state of one thousand families of his followers might be a clear saving of as many halters to this Commonwealth, as well as much expense to towns in providing for the poor, taking up vagrants, would save the girdling of orchards, and still leave the state as much good order, morality and piety as though no such departure had ever happened! Such an addition to Kentucky must be very interesting, and give new support to future resolutions in their legislature."

When the legislature met, Governor Tichenor submitted the resolutions, observing that, as other states had treated them to "severe comment" or "marked contempt," he had not the slightest hesitation in predicting that the Vermont legislature would express its disapprobation of them in a marked degree. The legislature, in reply, told the governor to be assured that the resolutions would be considered and given the treatment which they merited.[19] On October 14 the assembly requested the governor and council to join them a week later for the purpose of considering the resolutions of Virginia and Kentucky.[20] The invitation was accepted, and three meetings in grand committee were held upon the subject.[21] At the first of these meetings a sub-committee of five were appointed to formulate suitable replies; these were reported at the third meeting and accepted by the grand committee.[22] Subsequently the Council and the assembly adopted the replies separately: in the Council both were adopted unanimously; in the assembly the reply to Virginia received 104 votes against 52, that to Kentucky 101 to 50.[23]

The reply to Virginia[24] was decisive and, considering its brevity, remarkably comprehensive. The reply to Kentucky,[25] on the other hand, is long and elaborate, deserving to rank in importance with that of Massachusetts. It is not, like the reply of Massachusetts, a consideration of the general principles involved, but takes up the resolutions of Kentucky one after another and makes reply to them. The fundamental principles of the resolutions of Kentucky contained in the opening declaration are thus epitomized: "That the states constituted the general government, and that each state as party to the compact, has an equal right to judge for itself as well of the infractions of the Constitution, as of the mode and measure of redress." The entire contemporary discussion of the Virginia and Kentucky Resolutions brought out no more significant comment than the answer of Vermont to the doctrine of Kentucky. "This cannot be true. The old confederation, it is true, was formed by the state Legislatures, but the present Constitution of the United States was derived from an higher authority. The people of the United States formed the federal constitution, and not the states, or their Legislatures. And although each state is authorized to propose amendments, yet there is a wide difference between proposing amendments to the constitution, and assuming, or inviting, a power to dictate and control the General Government." This brief reply of Vermont is the only one in all of the answers made by the states which, like the first resolution of Kentucky and the third of Virginia, goes directly to the fundamental question, the nature of the federal union. The declaration of Vermont, properly understood, is not free from all ambiguity on the subject. It does not declare so decisively as to admit of no doubt that the legislature of Vermont thought of the Constitution as ratified by the people of the United States acting en masse, instead of as states. But it leans strongly in that direction and absolutely denies the correctness of the conclusion drawn by Kentucky from the opposite premise.

The second resolution of Kentucky pronounced the Alien and Sedition Laws "altogether void and of no force" as contrary to the principles of the Constitution, Amendment X. declaring "that the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively or the people." To this Vermont rejoined that Kentucky misconstrued and misapplied the amendment, but that even if one adopted the construction which Kentucky put upon that amendment, its conclusion was not warranted. Under that conclusion all the acts of Congress would be brought in review before the state legislatures, while the Constitution of the United States provides that "Congress shall have power to make all laws which shall be proper for carrying into execution the government of the United States."

The third and fourth resolutions of Kentucky were disposed of in the reply of Vermont in a manner which was doubtless entirely satisfactory to the Federalists of the state, but which will not commend itself to candid and unbiassed minds. Kentucky had asserted that the Alien and Sedition Laws were unconstitutional because they infringed upon the reserved rights of the states. Vermont, while purporting to reply to the argument of Kentucky, shifted the ground from the operation of the laws upon the reserved rights of the states to their operation upon the rights of individuals. Thus ignoring the real question, Vermont argued that the Sedition Law was constitutional because a similar law was constitutional in Vermont and the Alien Law also because aliens have no rights under the Constitution.

The remainder of the reply is not so important. The sophistry of the fifth Kentucky resolution was correctly declared and the particular feature of the Alien Act which Kentucky had denounced in its sixth resolution was defended. One omission should be noted. Kentucky in its seventh resolution had made a remarkably cogent argument against a latitudinarian construction of the general-welfare clause of the Constitution. This resolution was the only one to which Vermont failed to reply. The concluding words of Vermont are important as evidence of the spirit in which its reply to Kentucky was framed. Kentucky had remarked in the course of its argument, "that confidence is everywhere the parent of despotism." To this Vermont rejoined in a general declaration which carried with it a concrete application. "The experience of ages evinces the reverse is true, and that jealousy is the meanest passion of narrow minds, and tends to despotism; and that honesty always begets confidence, while those who are dishonest themselves, are most apt to suspect others."

Upon replies so interesting as those of Vermont it is much to be regretted that we have not a full report of the discussion, particularly as the vote in the assembly indicates that there was strong opposition to their adoption. But information is not wholly lacking; on the last day of the session thirty-three members entered upon the journal of the assembly a statement of the reasons for their votes against the replies.[26] From this statement we learn that the reply to Virginia as reported by the sub-committee denied to the state legislatures even the right to deliberate upon the constitutionality of federal legislation, but that this extreme doctrine was stricken out upon the motion of a majority member. The minority objected to the replies because they regarded the Alien and Sedition Laws as both inexpedient and unconstitutional. Unfortunately the statement does not make equally plain the attitude of the minority regarding the other important feature of the Virginia and Kentucky Resolutions, namely, their doctrine of the proper remedy for unconstitutional federal legislation. The minority declared that they could not assent to the view advanced by the majority, that the Virginia and Kentucky remedy was an unconstitutional assumption of power not belonging to the state legislatures. Without stating explicitly its own theory the minority alluded to itself as "advocating the power of each state to decide on the constitutionality of some laws of the union;" this right it limited to laws which "infringe on the powers reserved to the states, by the tenth article of the amendments to the constitution." Nothing was said to indicate the manner in which this right was to be exercised, and an express disclaimer was entered against "an intent to justify an opposition, in any manner or form whatever, to the operation of any act of the union." Such opposition would be "rebellion, punishable by the courts of the United States." From these somewhat contradictory declarations the only conclusion which we are warranted in drawing is that the Vermont Republicans agreed in part at least with their Virginia and Kentucky brethren upon the remedy for unconstitutional federal legislation. Upon a yet more fundamental point, the nature of the federal union, their agreement was complete; the Vermont minority declared "that the states individually, compose one of the parties to the federal compact or constitution."

None of the states south of Virginia sent replies and but little can be learned about the cause of their failure to do so. The legislature of North Carolina was in session when the Kentucky Resolutions reached that state but adjourned before those of Virginia arrived. The Kentucky resolutions were laid before it, but the few notices of its action upon them are so ambiguously phrased that the precise action taken cannot be ascertained. In the Senate the Kentucky Resolutions were certainly read and laid upon the table, where they were permitted to remain without any definite action upon them.[27] About the same time the resolutions were sent to the House, but whether that body endorsed them and sent them to the Senate or took into account the action of the Senate and took no action itself cannot be ascertained.[28] The fact that there was a Republican majority in the lower house and that it passed a resolution calling upon Congress to repeal the Alien and Sedition Laws would point to the former course as the more probable. The few notices which I have been able to collect regarding the session of this legislature in the fall of 1799 make no mention of any action upon either set of resolutions.

In South Carolina the legislature adjourned on December 21,[29] too early to have received either set of resolutions. Before it met again in November of 1799 the papers of the state had made the people familiar with the resolutions. On November 28, Governor Rutledge submitted both sets of resolutions to the legislature, but made no comments upon them.[30] Within five days of the end of the session the legislature had taken no action upon them, but beyond that point I am unable to trace the course of legislative proceedings in South Carolina. After the legislature had adjourned the Aurora[31] contained an item stating on the authority of a member of the legislature that the session was so short that it left no time for action in the matter, but had any action been taken it would have been favorable. Making allowance for the bias of the Aurora, we may conclude that probably the South Carolina legislature failed to act upon the resolutions of Virginia and Kentucky because it sympathized with the protest against the Alien and Sedition Laws but scarcely knew its own mind upon the matter of the remedy.

About the state of public opinion in Georgia and Tennessee even less can be learned than of the Carolinas. The legislature of Georgia was in session in February 1799 and certainly took no formal action expressing disapproval of the resolutions. One item, to be found in many Northern papers, states that the legislature postponed consideration of the resolutions for one session.[32] Although this is not verified by other items, I am inclined to think that it is correct. At the next session, I can find no mention of any action in the matter, though the notices of the proceedings of the legislature are quite complete. Probably no action was taken. For Tennessee nothing can be said except that its legislature sent no reply to Virginia and Kentucky. Various items appeared in the Northern papers purporting to relate what action Tennessee had taken, but they are conflicting and none of them bear any marks of credibility.

From the detailed study which has preceded, the following general conclusions seem warranted:

1. North of the Potomac the Federalists, being in a majority in every state, secured emphatic expressions of disapproval for the Virginia and Kentucky Resolutions, either by legislative replies or other legislative action intended to be even more emphatic than a formal reply. South of the Potomac, where the Republican strength was rapidly rising, it had not yet been sufficiently consolidated to secure expressions of approval for even a portion of the resolutions; but it was strong enough to prevent any formal disapproval of them, as in the North.

2. The replies, formulated everywhere by the Federalists, declare the Alien and Sedition Laws both expedient and constitutional, thus constituting a most emphatic counter-protest to the protesting feature of the Virginia and Kentucky Resolutions. The replies further assert, as regards the remedy hinted at by Virginia and Kentucky, that the states have no right to pass upon the constitutionality of laws enacted by Congress; and nearly all of them, in terms more or less direct, point to the federal judiciary as the proper authority to decide upon the constitutionality of federal laws.

3. The entire reasoning of both the Virginia and the Kentucky Resolutions of 1798 was grounded upon the assertion, plainly expressed in each set of resolutions, that the Union was the result of a compact to which the states were parties. This fundamental doctrine received no attention in any of the replies or the discussions over them, so far as the latter have been preserved, except in the reply of Vermont to Kentucky. It is probable that this assertion of Virginia and Kentucky was more generally accepted in 1799 than it was later; and it is certain that neither the Republican who asserted it nor the Federalist who denied it had any adequate conception of the results to which a logical development of the doctrine would lead.

4. The Republicans, wherever their attitude can be learned, fully endorsed the protesting features of the Virginia and Kentucky Resolutions and accepted in part the reasoning upon which the remedy was grounded, though few went to the full extent of the Virginia and Kentucky doctrines.

When the Kentucky legislature sent forth its resolutions the excitement in that state did not entirely cease. George Nicholas, who with Breckenridge had been the leader of the movement in Kentucky, published a pamphlet early in January 1799 for the purpose of putting the case of Kentucky in proper light. It bore the title A Letter from George Nicholas of Kentucky to His Friend in Virginia, and though dated three days prior to the passage of the Kentucky resolutions was really a defense of them. Nicholas denied most emphatically that the people of Kentucky contemplated separating from the Union,[33] of improper opposition to the federal laws on the part of Kentucky. The laws of which Kentucky complained were of two sorts: one kind was constitutional, but impolitic; the other was unconstitutional and impolitic. The former Kentucky would remonstrate against, but would obey promptly as long as they remained in force. Although the latter might be treated as dead letters, "yet we contemplate no means of opposition, even to these unconstitutional acts, but an appeal to the real laws of our country."[34]

This letter by George Nicholas brought out a rejoinder, which was issued at Cincinnati by a writer who signed himself, "An Inhabitant of the North-Western Territory."[35] After a most elaborate defense of the whole policy of the federal administration, this writer called upon unprejudiced men to read the resolutions of Clark County, those of other counties throughout the state, and especially the resolutions of the Kentucky legislature, and then to say whether all these did not tend directly towards securing a dissolution of the Union. In fact Kentucky had refused obedience to the federal laws and so far as it could do so it had dissolved the Union.[36] Then taking up Nicholas's classification of the objectionable laws, the writer argued that the only right of a state legislature touching either class of laws was the right of remonstrance. The second might be brought before the supreme federal judiciary, which is the constituted authority for determining such matters.[37]

Aside from what can be learned from these two pamphlets, little can now be ascertained about the attitude of the people of Kentucky prior to the meeting of the legislature in November, 1799. But the pamphlets, both of which appear to have been well known in the state, are sufficient to show that the feature of the resolutions of 1798 upon which the people of Kentucky had not already expressed their opinions was clearly put before them. Knowing this we may conclude that the legislature elected that fall represented the deliberate opinion of the people of Kentucky upon the remedy hinted in the resolutions of the previous year.

In Virginia the questions raised by the resolutions of 1798 were constantly before the people until after the elections of 1800. Copies of the resolutions and of the address prepared by the legislature to accompany them were sent to each county in the state. To counteract the effect of the address the Federalist minority in the legislature issued a protest.[38] This protest is said to have been written by John Marshall, but it contains little in reply to the remedial doctrines of the Virginia resolutions. The main object of the protest, as its title indicates, was to demonstrate the constitutionality of the Alien and Sedition Laws. Throughout the state the address of the legislature and the protest of the minority were variously received, according to the political sympathies uppermost in the community. In Greenbrier County the court of justices tore the copies of the legislative address into pieces and trampled them under foot;[39] Fairfax County returned its copies to the governor,[40] while Norfolk borough[41] and Pittsylvania County[42] adopted resolutions against the action taken by the legislature. In the Republican counties the address of the legislature was publicly read and the copies distributed to those in attendance upon the court.

The Federalist campaign against the resolutions of 1798 began at once and was never permitted to lag. The circulation of the minority protest was followed up by copying from the Federalist papers outside of the state nearly all that was said or done against the resolutions of the legislature.[43] As the elections approached appeal after appeal to redeem the state went forth from the Federalist leaders, In nearly all of these appeals the resolutions of the preceding year are directly or indirectly made the issue for the decision of the people.

The most elaborate of these appeals was a pamphlet of fifty-six pages, issued as early as February by a citizen of Westmoreland County, who signed himself "Plain Truth."[44] After setting forth the advantages of the Union and the evils which would certainly result from dismemberment, Plain Truth maintained that union was possible only under the existing government. This premise he followed up by a consideration of certain measures which he thought indicated a desire on the part of their promoters to bring about disunion. These measures were, of course, the Virginia Resolutions of 1798. In considering these measures Plain Truth went directly to the fundamental proposition of the third Virginia resolution, that the Union was the result of a compact to which the states were parties. "This assertion," said Plain Truth, "is believed to be untrue in fact, and dangerous in principle. The paper from which the powers of the federal government result, and which is termed by the resolutions, a compact, is the constitution of the United States. To this constitution the state governments are not parties in any greater degree than the general government itself. They are in some respects the agents for carrying it into execution, and so are the Legislature and Executive of the Union; but they are not parties to the instrument, they did not form or adopt it, nor did they create or regulate its powers. They were incapable of either. The people, and the people only were competent to these important objects."[45] In support of this doctrine, Plain Truth argued that the states were parties to the old confederation, but that the present federal Constitution was formed to remedy that defect and "was proposed, not to the different state governments, but to the people for their consideration and adoption." As evidence of this difference between the confederation and the present federal union, he cited the language of the preamble of the Constitution. "The Constitution was in truth what it professes to be—entirely the act of the people themselves. It derives no portion of its obligation from the state governments. It was sanctioned by the people themselves, assembled in their different states in convention. They acted in their original, and not in their political character."[46] Having shown to his satisfaction that the people were the parties to the Constitution, Plain Truth made his point against the resolutions of Virginia by demanding, "Why are the people excluded from our view, and states substituted in their places?" The motive which inspired the legislature to make this claim for the states, Plain Truth argued, was a desire to arrogate to itself power which properly belonged to the people.[47] This argument of Plain Truth's was, of course, an unfair one, since it was based on a mistaken reading of the third Virginia resolution. Plain Truth treated the term states in the resolutions as if it was synonymous with the term state governments, whereas in the resolutions the term states means the people of each state. The treatment by Plain Truth of the fundamental doctrine of the third Virginia resolution is none the less instructive because it is fallacious. It shows plainly that the issue of national or state sovereignty, as raised by the Virginia Resolutions, was not overlooked in the Virginia campaign following their adoption. It indicates that the idea of state sovereignty was plainly put before the people of Virginia for their endorsement or rejection, though the details of the doctrine were not so clearly formulated as later.

The pamphlet by Plain Truth is, perhaps, as good an illustration as could be chosen to exemplify the character of the arguments used by the Federalists against the Virginia Resolutions. Almost all of the Federalist appeals were grounded upon the declaration that the Republicans were seeking a dissolution of the Union, a charge which the Republicans as earnestly denied.[48] In their zeal against Republicans the federalists did not distinguish between opposition to the policy of the federal administration and resistance to the federal government. That doughty old warrior, Daniel Morgan, issued an appeal to his fellow-citizens: "My God! can it be possible! that a body, supposed to be collected from the wisdom and virtue of the State, convened to deliberate for its honor and advantage, and to coöperate with the General Government in maintaining the independence, union, and constitution thereof, against foreign influence and intrigue, should so far lose sight of that object as to attempt to foment divisions, create alarms, paralize the measures of defense, and, in short, render abortive every prudent and wise exertion? Had an angel predicted this some years ago, it would not have gained belief—yet it is too evident now to need testimony. Attempts have been made to separate us from our government; they are daily making; and I am sorry to say, with too much success. Again I say, my fellow-citizens, support our government, do not support in your elections anyone who is not friendly thereto."[49]

The Republicans throughout the campaign were upon the defensive. In the main they were content to deny any knowledge of a desire for disunion, to inveigh against the Alien and Sedition Laws, and to point to the resolutions of the legislature as a conclusive answer to all the Federalist attacks[50] Incidentally in the course of these arguments the remedial features of the Virginia Resolutions, the one portion of them which had not been passed upon by the people the preceding year, received much attention.

The result of the elections in 1799 was a decided triumph for the Republicans, the slight gain made by the Federalists being not at all commensurate with the exertions which they put forth. Under the circumstances this result indicated that the people of Virginia upon second consideration approved of their own verdict of the preceding year regarding the constitutionality and expediency of the Alien and Sedition Laws and also of the remedy for those laws which their legislature had formulated.

When the Virginia legislature met, the replies of the other states were referred to a committee, of which Madison was chairman. The report of that committee,[51] since known as Madison's Report, after carefully considering each of the resolutions of the preceding year, recommended a reaffirmation of them. This action was taken after the counter-resolutions offered by the Federalist minority had been voted down by a vote of ninety-eight to fifty-seven. The vote may be regarded as a fair approximation to the division of public opinion in Virginia.

The resolutions offered by the minority argued against the report of Madison's committee in its defence of both the protesting and the remedial features of the Virginia Resolutions of 1798.[52] But one peculiar feature of the minority resolutions is worthy of attention here. As has been already remarked more than once in the course of this article, the argument for the remedy hinted at in the Virginia Resolutions was grounded upon the doctrine that the states were parties to the compact which resulted in the federal union. Madison in his argument for the resolution which contained this doctrine was forced to consider the meaning of the term states. The conclusion arrived at was that the term states in the resolutions meant "the people composing those political societies, in their highest sovereign capacity."[53] Thus, according to Madison's further reasoning, the people of each state instead of the people of the United States en masse, were the parties to the Constitution. In the counter-resolutions offered by the Federalists this interpretation of the parties to the Constitution is accepted entirely. The conclusion which the Federalists drew from this premise, as applied to the particular question then at hand, was quite different from that drawn by Madison, but the agreement between them is significant, for it shows that many of the Federalists as well as the Republicans accepted the fundamental doctrine of state sovereignty.

Intrinsically the Kentucky Resolutions of 1799 and Madison's Report are equally important with the resolutions of 1798, or more so. In view of this fact it is much to be regretted that we know little as to what was thought of them outside of Virginia and Kentucky. The resolutions were widely copied, appearing in nearly all of the leading newspapers, but in nearly every instance that I have found, they appeared in the same issue with the announcement of the death of Washington. Sorrow so completely filled the public mind and the newspapers were so much taken up with details of his death, his funeral, and the local commemorations, that the Kentucky Resolutions were overlooked. The resolutions of 1799 were not officially communicated to the other states and did not directly demand an answer. In form they were a solemn protest and in that light they seem to have been regarded. All the Federalist newspapers which made any comment upon them treated them as mere reiteration of those of the preceding year, failing to perceive that there was an important difference between the two sets.[54]

In Virginia, Madison's Report was greeted by the Republicans as a conclusive reply to the answers of the states and a complete vindication of the Virginia Resolutions.[55] It was widely circulated, and according to the Richmond Examiner, was of much service to the Republican cause in the elections held in the spring of 1800.[56] In New England the Report appears to have been little known. I have not been able to find any newspaper taking particular notice of it, or even giving it enough attention to enable its readers to obtain an idea of the arguments contained in the Report. The newspapers of the Middle States appear not to have given it more attention than those of New England, but there is some little evidence to show that it was quite well known in New York and Pennsylvania. An edition of it was published at Albany,[57] and Alexander Addison published at Philadelphia an elaborate reply to it.[58] In this reply Addison repeated with approval the reasoning of Madison, that the word states is equivalent to the expression the people of each state. From this premise he concluded, "It appearing then, that the people of the several states are the parties to the compact in the constitution, it will not follow that because the parties to a compact must be the judges whether it has been violated, the Legislatures of each state are the judges whether the constitution has been violated." Madison's argument would be true only upon the supposition that the state legislatures were the parties to the Constitution.[59] Addison does not seem to have perceived that his argument pushed a step further would have established the principle, that the people of Virginia, acting in their highest sovereign capacity, would have the right to judge for themselves whether the constitutional compact had been violated. Addison was concerned only to prove that the remedy hinted at by the third Virginia resolution and Madison's defense of it were incorrect. In this he succeeded beyond all question, but at the same time he unwittingly supplied one piece of conclusive evidence that many of the Federalists saw nothing out of the way in agreeing with their Republican opponents in the fundamental doctrine of the Virginia and Kentucky Resolutions, that the Union is the result of a compact to which the states are the parties.

It only remains to add a few words upon one important question. How far were the Virginia and Kentucky Resolutions influential in determining the presidential election of 1800? It has been often asserted that the principles of these resolutions were accepted by the American people in that election. Unless one can show by documentary evidence, as I have tried to do for the discussions of 1799, that these resolutions were discussed in the campaign of 1800 and their principles clearly made an issue, this amounts to nothing more than assertion. I have not been able to find any such documentary evidence. Invective against the Alien and Sedition Laws can be found in great plenty, but of direct allusions to the Virginia and Kentucky Resolutions or to their constitutional doctrines, I can find outside of Virginia only the very little that has been indicated in the two preceding paragraphs. From this evidence I am forced to conclude that the verdict of 1800, while a conclusive endorsement of the protest of the Virginia and Kentucky Resolutions, was not, so far as can be shown, an endorsement of either the remedy hinted at or the principles upon which it was founded. In a word, the remedy and its principles were not an issue in that campaign.


  1. In the following account of the trial the elaborate argument, published in the Chronicle from April 11 to May 2, 1799, is followed unless some other authority is cited.
  2. Massachusetts Mercury, March 8, 1799; Columbian Centinel, March 6, 1799.
  3. This passage is in John Adams, Works, III. 456–459.
  4. Manuscript records of the Massachusetts Supreme Judicial Court, Vol. 1799, folio 183, No. 8191. The costs amounted to at least thirty-two dollars and thirty-one cents.
  5. Columbian Centinel, March 30, 1799.
  6. Columbian Centinel, April 27, 1799. This article was copied by nearly all the Federalist papers of the state.
  7. April 27, 1799.
  8. The Western Star (Stockbridge), May 20, 1799. A. A. S. This was a Federalist paper.
  9. Columbian Centinel, May 8, 1799; Chronicle, April 11, 1799.
  10. The Newport Mercury, March 5, 1799. H. U. Acts and Resolves, February session, 1799, pp. 17, 18; Elliot's Debates, ed. 1836, IV. 558.
  11. March 6, 1799. H. U.
  12. June 6, 1799. A. A. S.
  13. Elliot, IV. 564.
  14. Infra, pp. 247, 248.
  15. February 13, 1799. H. U.
  16. Courier of New Hampshire, June 15, 1799. H. U.
  17. Elliot, IV. 564–565.
  18. Reprinted by the Albany Centinel, May 17, 1799. H. U.
  19. Records of the Governor and Council of Vermont, IV. 512–513.
  20. Extract from the Journal of the Assembly given in the Records of the Governor and Council of Vermont, IV. 228.
  21. Records of the Governor and Council of Vermont, IV. 231, 233, 240.
  22. Extract from the Journal of the Assembly given in the Records of the Governor and Council of Vermont, IV. 526.
  23. Records of the Governor and Council of Vermont, IV. 242, 529.
  24. Elliot, IV. 565.
  25. Records, IV. 526–529.
  26. For the text of their statement see pp. 249–252, post. A summary and extract are given in Records, IV. 529.
  27. Albany Centinel, January 22, 1799. H. U.
  28. Ibid.
  29. Carolina Gazette, passim. Wisc. H. S.
  30. City Gazette and Daily Advertiser (Charleston), December 10, 1799. H. U.
  31. January 30, 1800. H. U. The sessional Acts and Resolves give no evidence of action.
  32. The Political Focus (Leominster, Mass.), April 11, 1799. H. U.
  33. Pp. 21–24. H U.
  34. P. 31.
  35. Observations on a Letter from George Nicholas of Kentucky to His Friend in Virginia. By an inhabitant of the North-Western Territory. Cincinnati, February 14, 1799. H. U.
  36. P. 29.
  37. Pp. 37–39.
  38. The Address of the Minority in the Virginia Legislature to the People of that State, containing a Vindication of the Constitutionality of the Alien and Sedition Laws. Pamphlet, H. U.
  39. Columbian Mirror (Alexandria), April 23, 1799. H. U.
  40. Massachusetts Spy, April 17, 1799. A. A. S. Calendar of Virginia State Papers, IX. 14.
  41. Calendar of Virginia State Papers, IX. 20.
  42. The Virginia Federalist, September 14, 1799. A. A. S.
  43. A good example of this class of articles will be found in one copied by the Windham Herald, April 12, 1799, from the Virginia Federalist.
  44. Plain Truth: Addressed to the People of Virginia. B. A.
  45. P. 19.
  46. P. 20.
  47. P. 20.
  48. The Virginia Argus, April 12, 1799. A. A. S.
  49. Columbian Mirror, April 18, 1799. H. U.
  50. The Examiner (Richmond), March 29, 1799. H. U.
  51. Elliot's Debates, IV. 572 (Washington ed. 1836).
  52. Proceedings of the Virginia Assembly on the Answers of Sundry States to their Resolutions, 1800. Pamphlet, H. U. Pp. 100–102
  53. Elliot's Debates, IV. 573 (Washington ed. 1836).
  54. For examples see the Salem Gazette, December 27, 1799 (H. U.); the Massachusetts Spy, January 1, 1800 (A. A. S.); Albany Centinel, December 24, 1799 (H. U.); the Spectator (N. Y.), December 18, 1799 (H. U.); Massachusetts Mercury, December 24, 1799; Kennebec Intelligencer, January 18, 1800 (H. U.).
  55. The Press (Richmond), January 31, 1800. A. A. S.
  56. April 29, 1800.
  57. There is a copy of this edition in the Boston Public Library.
  58. Analysis of the Report of the Committee of the Virginia Assembly, on the Proceedings of Sundry of the other States in Answer to their Resolutions. By Alexander Addison. Philadelphia, 1800. Pamphlet, B. A.
  59. Pp. 6–8.