Page:Contemporary Opinion of the Virginia and Kentucky Resolutions, p2.djvu/2

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F. M. Anderson

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 im-