4

5.

our Union," which he never ceased | tion. They vehemently disclaimed to regard as of the highest impor- any desire to return to the chronic tance and the greatest beneficence. feebleness and anarchy of the supHistory teaches scarcely anything planted Confederation, and consecramore clearly than that it was the ted their energies to battling against purpose of the framers of the Consti- the measureless ills of an unbalanced tution to render the inhabitants of and centralized despotism. They all the States substantially and per- generally rejected the appellation petually one people, living under a of Anti-Federalists, and chose to be common Government, and known to distinctively known as Republicans. the rest of mankind by a common Thomas Jefferson, who had been abnational designation. The advan- sent as embassador to France throughtages secured to the people of all the out the five or six preceding years, States by the "more perfect Union" and who had therefore taken no conattained through the Constitution, spicuous or decided part either for or were so striking and manifest that, against the Constitution in its incipiafter they had been for a few years ency, became the leader, and was for experienced and enjoyed, they si- many years thereafter the oracle, of lenced all direct and straightforward their party. opposition. Those who had originally opposed and denounced the Constitution became—at least in profession-its most ardent admirers and vigilant guardians. They volunteered their services as its champions and protectors against those who had framed it and with difficulty achieved its ratification. These were plainly and persistently accused of seeking its subversion through the continual enlargement of Federal power by latitudinous and unwarranted construc

3 In the address of the Federal Convention to the people, signed by Washington as its President, September 17, 1787.

4 "Citizens by birth or choice of a common country, that country has a right to concentrate your affections. The name of AMERICAN, which belongs to you in your National capacity, must always exalt the just pride of Patriotism, more than any appellation derived from local discriminations.". Washington's Farewell Address.

5 In the Federal Convention of 1787 (Debate of Monday, June 18th):

Mr. HAMILTON, of New York, said: "The General power, whatever be its form, if it preserves itself, must swallow up the State Governments. Otherwise, it would be swallowed up by them.

It is against all the principles of good government to vest the requisite powers in such

The Federalists, strong in the possession of power, and in the popularity and influence of their great chief, Washington, were early misled into some capital blunders. Among these was the passage of the acts of Congress, famous as the Alien and Sedition laws. The aliens, whom the political tempests then convulsing Europe had drifted in large numbers to our shores, were in good part turbulent, restless adventurers, of desperate fortunes, who sought to embroil

a body as Congress. Two sovereignties cannot exist within the same limits."

Mr. WILSON, of Pennsylvania (June 20th), was tenacious of the idea of preserving the State Governments." But in the next day's debate: "Taking the matter in the more general view, he saw no danger to the States from the General Government. On the contrary, he conceived that, in spite of every precaution, the General Government would be in perpetual danger of encroachments from the State Governments." And

Mr. MADISON, of Virginia, "was of the opinion, in the first place, that there was less danger of encroachment from the General Government than from the State Governments; and, in the second place, that the mischiefs from the encroachments would be less fatal, if made by the former, than if made by the latter."-Madison's Papers, vol. ii., pp. 884, 903, 921.

THE RESOLUTIONS OF '98.

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was far easier to libel a hated opponent than to refute his arguments. The best newspapers of that day would hardly maintain a comparison, either for ability or decorum, with the third class of our time; and personalities largely supplied the place of learning and logic. Hence, many prosecutions under the Sedition law; some of them, doubtless, richly deserved; but all tending to excite hostility to the act and its authors. No other contributed half so palpably to the ultimate overthrow of the Federal ascendency.

When John Adams became President, in 1797, the South had become the stronghold of the Opposition. Mr. Madison had dissolved his earlier association with the great body of the framers of the Constitution, and become the lieutenant of Mr. Jefferson. Kentucky-a Virginia colony and

us in the contest then devastating the Old World. Washington, and the Federal magnates who surrounded him, were inflexibly averse to this, and baffled all attempts to involve us in a foreign war. This very naturally offended the European refugees among us, who looked anxiously to this country for interference to reëstablish them in power and prosperity in their own. Hence, they generally took the lead in reprobating and stigmatizing the negotiation and approval of Jay's treaty with Great Britain, whereby our past differences and misunderstandings with that power were adjusted. They were in good part politicians and agitators by trade, instinctively hostile to a government so cold-blooded and unimpulsive as ours, and ardently desired a change. Regarding them as dangerous and implacable enemies to the established policy of non-inter-offset-was ardently and almost vention, and to those who upheld it, the Alien law assumed to empower the President to send out of the country any foreigner whose further stay among us should be deemed by him incompatible with the public safety or tranquillity. The Sedition law provided for the prosecution and punishment of the authors of false, malicious, and wicked libels on the President, and others high in authority. The facts that no one ever was sent away under the Alien act, and that the Sedition law was hardly more than the common law of libel applied specially to those who should venture to speak evil of dignities, proved rather the folly of such legislation than its necessity or its accordance with the Constitution. Party spirit and party feeling ran high. It

unanimously devoted to the ideas and the fortunes of Jefferson; and he was privately solicited to draft the manifesto, through which the new State beyond the Alleghanies proclaimed, in 1798, her intense hostility to Federal rule. The famous "Resolutions of '98" were thus originated; Mr. Jefferson's authorship, though suspected, was never established until he avowed it in a letter more than twenty years afterward. These resolutions are too long to be here quoted in full, but the first is as follows:

“Resolved, That the several States composing the United States of America are not sion to their General Government, but that, united on the principle of unlimited submisby a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a General Government for special purposes—

6 Signed November 19, 1794; ratified by Washington, August 14, 1795:

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delegated to that Government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force; that to this compact each State acceded as a State, and as an integral party, its co-States forming, as to itself, the | other party; that the Government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitu

tion, the measure of its powers; but that, as in all other cases of compact among powers 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."

The resolves proceed, at great length, to condemn not only the Alien and Sedition laws, as utterly unconstitutional and void, but even the act, recently passed, to punish frauds committed on the Bank of the United States, as well as other acts and parts of acts; and conclude with a call on the other States to unite with Kentucky in condemning and opposing all such usurpations of power by the Federal Government, and by expressing her undoubting confidence

"That they will concur with this commonwealth in considering the said acts as so palpably against the Constitution as to amount to an undisguised declaration that that 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: that they will view this as seizing the rights of the States, and consolidating them in the hands of the General Government, with the

power assumed to bind the States (not merely as to the cases made federal (casus fæderis), but) in all cases whatsoever, by laws made, not with their consent, but by others against their consent: that this would be to surrender the form of government we have chosen, and live under one deriving its

powers from its own will, and not from our

authority; and that the co-States, returning to their natural right in cases not made federal, will concur in declaring these acts void and of no force, and will each take measures of its own in providing that neither these

"Eighth Kentucky Resolve.

acts, nor any others of the General Government, not plainly and intentionally authorized by the Constitution, shall be exercised within their respective territories.

"9th. Resolved, That the said Committee be authorized to communicate, by writing or personal conferences, at any times or places whatever, with any person or persons who may be appointed by any one or more coStates to correspond or confer with them, and that they lay their proceedings before the next session of Assembly."

The Virginia resolves on the same subject, passed by her Legislature in 1799, were drafted by Mr. Madison— doubtless after consultation with his chief, Mr. Jefferson and did not differ materially in spirit or expression from those of Kentucky.

Mr. Jefferson became President on the 4th of March, 1801. Up to this hour, he had been an extreme and relentless stickler for the most rigid

and literal construction of the Federal pact, and for denying to the Government all authority for which express warrant could not be found in the provisions of that instrument. Said he": "In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution."

His fidelity to his declared principle was soon subjected to a searching ordeal. Louisiana fell into the hands of Bonaparte, who, it was not improbable, might be induced to sell it. It was for us a desirable acquisition; but where was the authority for buying it? In the Constitution, there clearly was none, unless under that very power to provide for the general welfare, which, as he had expressly declared, was meant by the instrument "to be subsidiary only to the 998 He execution of limited powers.

8 Seventh Kentucky Resolve.

STRICT AND LOOSE CONSTRUCTION.

was quite too large and frank a man to pretend that his action in this case was justified by the Constitution, as he understood and had always interpreted it. He said :'

"This treaty must of course be laid before both Houses, because both have important functions to exercise respecting it. They, I presume, will see their duty to their country in ratifying and paying for it, so as to secure a good which would otherwise be probably never again in their power. But I suppose they must then appeal to the nation for an additional article to the Constitution, approving and confirming an act which the nation had not previously authorized. The Constitution has made no provision for our holding foreign territory, still less for incorporating foreign nations into our Union. The Executive, in seizing the fugitive occurrence which so much advances the good of their country, have done an act beyond the Constitution. The Legislature, in casting behind them metaphysical subtleties, and risking themselves like faithful servants, must ratify and pay for it, and throw themselves on their country for doing for them unauthorized what we know they would have done for themselves had they been in a situation to do it. It is the case of a guardian, investing the money of his ward in purchasing an important adjacent territory; and saying to him, when of age, 'I did this for your good; I pretend to no right to bind you: you may disavow me, and I must get out of the scrape as I can. I thought it my duty to risk myself for you.' But we shall not be disavowed by the nation, and their act of indemnity will confirm, and not weaken, the Constitution, by more strongly marking out its lines."

In a letter to Wilson C. Nicholas, 10 he examines and thoroughly refutes the assumption, suggested by Mr. N., that the power to purchase Louisiana "might possibly be distilled from the authority given to Congress to admit new States into the Union." says: "But when I consider that the limits of the United States are precisely fixed by the treaty of 1783, and that the Constitution expressly declares itself to be made for the Uni

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ted States, I cannot help believing the intention was not to permit Congress to admit into the Union new States, which should be formed outside of the territory for which, and under whose authority alone, they were then acting. I do not believe it was meant that they might receive England, Ireland, Holland, etc., into it, which would be the case on your construction."

After disposing in like man

ner of "the opinion of those who consider the grant of the treaty-making power as boundless," and completing his demonstration that there was no power whatever in the Constitution, as he construed it, to make this purchase, he, with more good sense than consistency, concludes: "I confess, then, I think it important, in the ent case, to set an example against presbroad construction, by appealing for ever, our friends shall think differnew power to the people. If, howently, certainly I shall acquiesce with satisfaction; confiding, that the good sense of our country will correct the evil of construction when it shall produce ill effects."

When, in 1811, the Territory of Orleans was moulded into the State of Louisiana, Mr. Josiah Quincy, a young and very ardent Federalist who then represented the city of Boston in the House, indulged in what resembled very closely a menace of contingent secession; and similar fulminations were uttered by sundry New England Federalists under the pressure of Mr. Jefferson's Embargo and of the War of 1812. The famous but unsavory Hartford Convention," held near the close of that war, and

11 For proceedings of this Convention, see Niles's Register, January 14, 1815.

| constitutional laws, without overturning the government. It is no doctrine of mine that unconstitutional laws bind the people. The great question is, 'Whose prerogative is it to decide on the constitutionality or unconstitutionality of the laws?' On that, the main debate hinges. The proposition that, in case of a supposed violation of the Constitution by Congress, the States have a constitutional right to interfere and annul the law of Congress, is the proposition of the gentleI do not admit it. If the gentleman had intended no more than to assert the