THE FIRST POLITICAL PLATFORM ENUNCIATED IN THE UNITED STATES TO COMMAND GENERAL ATTENTION WAS DRAWN BY MR. MADISON IN 1798, WHOSE OBJECT WAS TO PRONOUNCE THE ALIEN AND SEDITION LAWS UNCONSTITUTIONAL, AND TO DEFINE THE RIGHTS OF THE STATES.
Pronouncing the Alien and Sedition Laws to be unconstitutional, and Defining the rights of the States.—Drawn by Mr. Madison.
Resolved, That the General Assembly of Virginia doth unequivocally express a firm resolution to maintain and defend the Constitution of the United States, and the constitution of this state, against every aggression either foreign or domestic; and that they will support the government of the United States in all measures warranted by the former.
That this Assembly most solemnly declares a warm attachment to the Union of the states, to maintain which it pledges its powers; and, that for this end, it is their duty to watch over and oppose every infraction of those principles which constitute the only basis of that Union, because a faithful observance of them can alone secure its existence and the public happiness.
That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact to which the states are parties, as limited by the plain sense and intention of the instrument constituting that compact, as no farther valid than they are authorized by the grants enumerated in that compact; and that in case 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.
That the General Assembly doth also express its deep regret, that a spirit has, in sundry instances, been manifested by the federal government, to enlarge its powers by forced constructions of the constitutional charter which defines them; and, that indications have appeared of a design to expound certain general phrases (which, having been copied from the very limited grant of powers in the former Articles of Confederation, were the less liable to be misconstrued) so as to destroy the meaning and effect of the particular enumeration which necessarily explains, and limits the general phrases, and so as to consolidate the states by degrees into one sovereignty, the obvious tendency and inevitable result of which would be, to transform the present republican system of the United States into an absolute, or at best, a mixed monarchy.
That the General Assembly doth particularly protest against the palpable and alarming infractions of the Constitution, in the two late cases of the “Alien and Sedition Acts,” passed at the last session of Congress; the first of which exercises a power nowhere delegated to the federal government, and which, by uniting legislative and judicial powers to those of executive, subverts the general principles of free government, as well as the particular organization and positive provisions of the Federal Constitution; and the other of which acts exercises, in like manner, a power not delegated by the Constitution, out on the contrary, expressly and positively forbidden by one of the amendments thereto; a power which, more than any other, ought to produce universal alarm, because it is levelled against the right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed the only effectual guardian of every other right.
That this state having by its Convention, which ratified the Federal Constitution, expressly declared, that among other essential rights, “the liberty of conscience and the press cannot be cancelled, abridged, restrained, or modified by any authority of the United States,” and from its extreme anxiety to guard these rights from every possible attack of sophistry and ambition, having with other states recommended an amendment for that purpose, which amendment was, in due time, annexed to the Constitution, it would mark a reproachful inconsistency, and criminal degeneracy, if an indifference were now shown to the most palpable violation of one of the rights, thus declared and secured; and to the establishment of a precedent which may be fatal to the other.
That the good people of this commonwealth, having ever felt, and continuing to feel the most sincere affection for their brethren of the other states; the truest anxiety for establishing and perpetuating the Union of all: and the most scrupulous fidelity to that Constitution, which is the pledge of mutual friendship, and the instrument of mutual happiness; the General Assembly doth solemnly appeal to the like dispositions in the other States, in confidence that they will concur with this commonwealth, in declaring, as it does hereby declare, that the acts aforesaid are unconstitutional; and, that the necessary and proper measures will be taken by each for co-operating with this state, in maintaining unimpaired the authorities, rights, and liberties, reserved to the states, respectively, or to the people.
That the governor be desired to transmit a copy of the foregoing resolutions to the executive authority of each of the other states, with a request that the same may be communicated to the legislature thereof; and that a copy be furnished to each of the Senators and Representatives representing this state in the Congress of the United States.
1798, December 24th. Agreed to by the Senate.
A true copy from the original deposited in the office of the General Assembly.
Extracts from the Address to the People, which accompanied the foregoing resolutions:—
Fellow-Citizens: Unwilling to shrink from our representative responsibility, conscious of the purity of our motives, but acknowledging your right to supervise our conduct, we invite your serious attention to the emergency which dictated the subjoined resolutions. Whilst we disdain to alarm you by ill-founded jealousies, we recommend an investigation, guided by the coolness of wisdom, and a decision bottomed on firmness but tempered with moderation.
It would be perfidious in those intrusted with the guardianship of the state sovereignty, and acting under the solemn obligation of the following oath: “I do swear, that I will support the Constitution of the United States,” not to warn you of encroachments, which, though clothed with the pretext of necessity, or disguised by arguments of expediency, may yet establish precedents, which may ultimately devote a generous and unsuspicious people to all the consequences of usurped power.
Encroachments, springing from a government whose organization cannot be maintained without the co-operation of the states, furnish the strongest incitements upon the state legislatures to watchfulness, and impose upon them the strongest obligation to preserve unimpaired the line of partition.
The acquiescence of the states under infractions of the federal compact, would either beget a speedy consolidation, by precipitating the state governments into impotency and contempt; or prepare the way for a revolution, by a repetition of these infractions, until the people are aroused to appear in the majesty of their strength. It is to avoid these calamities, that we exhibit to the people the momentous question, whether the Constitution of the United States shall yield to a construction which defies every restraint and overwhelms the best hopes of republicanism.
Exhortations to disregard domestic usurpations until foreign danger shall have passed, is an artifice which may be for ever used; because the possessors of power, who are the advocates for its extension, can ever create national embarrassments, to be successively employed to soothe the people into sleep, whilst that power is swelling silently, secretly, and fatally. Of the same character are insinuations of a foreign influence, which seize upon a laudable enthusiasm against danger from abroad, and distort it by an unnatural application, so as to blind your eyes against danger at home.
The sedition act presents a scene which was never expected by the early friends of the Constitution. It was then admitted that the state sovereignties were only diminished by powers specifically enumerated, or necessary to carry the specified powers into effect. Now federal authority is deduced from implication, and from the existence of state law it is inferred that Congress possesses a similar power of legislation; whence Congress will be endowed with a power of legislation in all cases whatsoever, and the states will be stript of every right reserved by the concurrent claims of a paramount legislature.
The sedition act is the offspring of these tremendous pretensions, which inflict a death wound on the sovereignty of these states.
For the honor of American understanding, we will not believe that the people have been allured into the adoption of the Constitution by an affectation of defining powers, whilst the preamble would admit a construction which would erect the will of Congress into a power paramount in all cases, and therefore limited in none. On the contrary, it is evident that the objects for which the Constitution was formed were deemed attainable only by a particular enumeration and specification of each power granted to the federal government; reserving all others to the people, or to the states. And yet it is in vain we search for any specified power, embracing the right of legislation against the freedom of the press.
Had the states been despoiled of their sovereignty by the generality of the preamble, and had the federal government been endowed with whatever they should judge to be instrumental towards union, justice, tranquillity, common defence, general welfare, and the preservation of liberty nothing could have been more frivolous than an enumeration of powers.
All the preceding arguments rising from a deficiency of constitutional power in Congress, apply to the alien act, and this act is liable to other objections peculiar to itself. If a suspicion that aliens are dangerous constitute the justification of that power exercised over them by Congress, then a similar suspicion will justify the exercise of a similar power over natives. Because there is nothing in the Constitution distinguishing between the power of a state to permit the residence of natives and aliens. It is therefore a right originally possessed, and never surrendered by the respective states, and which is rendered dear and valuable to Virginia, because it is assailed through the bosom of the Constitution, and because her peculiar situation renders the easy admission of artisans and laborers an interest of vast importance.
But this bill contains other features, still more alarming and dangerous. It dispenses with the trial by jury; it violates the judicial system; it confounds legislative, executive, and judicial powers; it punishes without trial; and it bestows upon the President despotic power over a numerous class of men. Are such measures consistent with our constitutional principles? And will an accumulation of power so extensive in the hands of the executive, over aliens, secure to natives the blessings of republican liberty?
If measures can mould governments, and if an uncontrolled power of construction is surrendered to those who administer them, their progress may be easily foreseen and their end easily foretold. A lover of monarchy, who opens the treasures of corruption, by distributing emolument among devoted partisans, may at the same time be approaching his object, and deluding the people with professions of republicanism. He may confound monarchy and republicanism, by the art of definition. He may varnish over the dexterity which ambition never fails to display, with the pliancy of language, the seduction of expediency, or the prejudices of the times. And he may come at length to avow that so extensive a territory as that of the United States can only be governed by the energies of monarchy; that it cannot be defended, except by standing armies; and that it cannot be united, except by consolidation.
Measures have already been adopted which may lead to these consequences. They consist:
In fiscal systems and arrangements, which keep a host of commercial and wealthy individuals, embodied and obedient to the mandates of the treasury.
In armies and navies, which will, on the one hand, enlist the tendency of man to pay homage to his fellow-creature who can feed or honor him; and on the other, employ the principle of fear, by punishing imaginary insurrections, under the pretext of preventive justice.
In swarms of officers, civil and military, who can inculcate political tenets tending to consolidation and monarchy, both by indulgences and severities; and can act as spies over the free exercise of human reason.
In restraining the freedom of the press, and investing the executive with legislative, executive, and judicial powers, over a numerous body of men.
And, that we may shorten the catalogue, in establishing by successive precedents such a mode of construing the Constitution as will rapidly remove every restraint upon federal power.
Let history be consulted; let the man of experience reflect; nay, let the artificers of monarchy be asked what farther materials they can need for building up their favorite system?
These are solemn, but painful truths; and yet we recommend it to you not to forget the possibility of danger from without, although danger threatens us from within. Usurpation is indeed dreadful, but against foreign invasion, if that should happen, let us rise with hearts and hands united, and repel the attack with the zeal of freemen, who will strengthen their title to examine and correct domestic measures by having defended their country against foreign aggression.
Pledged as we are, fellow-citizens, to these sacred engagements, we yet humbly and fervently implore the Almighty Disposer of events to avert from our land war and usurpation, the scourges of mankind; to permit our fields to be cultivated in peace; to instill into nations the love of friendly intercourse; to suffer our youth to be educated in virtue; and to preserve our morality from the pollution invariably incident to habits of war; to prevent the laborer and husbandman from being harassed by taxes and imposts; to remove from ambition the means of disturbing the commonwealth; to annihilate all pretexts for power afforded by war; to maintain the Constitution; and to bless our nation with tranquillity, under whose benign influence we may reach the summit of happiness and glory, to which we are destined by Nature and Nature’s God.
1799, Jan. 23. Agreed to by the Senate.
A true copy from the original, deposited in the office of the General Assembly.
State of Delaware.—In the House of Representatives, Feb. 1, 1799. Resolved, By the Senate and House of Representatives of the state of Delaware, in General Assembly met, that they consider the resolutions from the state of Virginia as a very unjustifiable interference with the general government and constituted authorities of the United States, and of dangerous tendency, and therefore not fit subject for the further consideration of the General Assembly.
Isaac Davis, Speaker of the Senate.
Stephen Lewis, Speaker of the H. of R’s. Test—
State of Rhode Island and Providence Plantations.—In General Assembly, February, A. D. 1799. Certain resolutions of the Legislature of Virginia, passed on 21st of December last, being communicated to this Assembly,
1. Resolved, That in the opinion of this legislature, the second section of third article of the Constitution of the United States in these words, to wit: The judicial power shall extend to all cases arising under the laws of the United States, vests in the federal courts, exclusively, and in the Supreme Court of the United States ultimately, the authority of deciding on the constitutionality of any act or law of the Congress of the United States.
2. Resolved, That for any state legislature to assume that authority, would be,
1st. Blending together legislative and judicial powers.
2d. Hazarding an interruption of the peace of the states by civil discord, in case of a diversity of opinions among the state legislatures; each state having, in that case, no resort for vindicating its own opinions, but to the strength of its own arm.
3d. Submitting most important questions of law to less competent tribunals; and
4th. An infraction of the Constitution of the United States, expressed in plain terms.
3. Resolved, That although for the above reasons, this legislature, in their public capacity, do not feel themselves authorized to consider and decide on the constitutionality of the sedition and alien laws (so called); yet they are called upon by the exigency of this occasion, to declare, that in their private opinions, these laws are within the powers delegated to Congress, and promotive of the welfare of the United States.
4. Resolved, That the governor communicate these resolutions to the supreme executive of the state of Virginia, and at the same time express to him that this legislature cannot contemplate, without extreme concern and regret, the many evil and fatal consequences which may flow from the very unwarrantable resolutions aforesaid, of the legislature of Virginia, passed on the twenty-first day of December last.
Commonwealth of Massachusetts.—In Senate, Feb. 9, 1799. The legislature of Massachusetts having taken into serious consideration the resolutions of the State of Virginia, passed the 21st day of December last, and communicated by his excellency the governor, relative to certain supposed infractions of the Constitution of the United States, by the government thereof, and being convinced that the Federal Constitution is calculated to promote the happiness, prosperity, and safety of the people of these United States, and to maintain that union of the several states, so essential to the welfare of the whole; and being bound by solemn oath to support and defend that Constitution, feel it unnecessary to make any professions of their attachment to it, or of their firm determination to support it against every aggression, foreign or domestic.
But they deem it their duty solemnly to declare, that while they hold sacred the principle, that consent of the people is the only pure source of just and legitimate power, they cannot admit the right of the state legislatures to denounce the administration of that government to which the people themselves, by a solemn compact, have exclusively committed their national concerns: That, although a liberal and enlightened vigilance among the people is always to be cherished, yet an unreasonable jealousy of the men of their choice, and a recurrence to measures of extremity, upon groundless or trivial pretexts, have a strong tendency to destroy all rational liberty at home, and to deprive the United States of the most essential advantages in their relations abroad: That this legislature are persuaded that the decision of all cases in law and equity, arising under the Constitution of the United States, and the construction of all laws made in pursuance thereof, are exclusively vested by the people in the judicial courts of the United States.
That the people in that solemn compact, which is declared to be the supreme law of the land, have not constituted the state legislatures the judges of the acts or measures of the federal government, but have confided to them the power of proposing such amendments of the Constitution, as shall appear to them necessary to the interests, or conformable to the wishes of the people whom they represent.
That by this construction of the Constitution, an amicable and dispassionate remedy is pointed out for any evil which experience may prove to exist, and the peace and prosperity of the United States may be preserved without interruption.
But, should the respectable state of Virginia persist in the assumption of the right to declare the acts of the national government unconstitutional, and should she oppose successfully her force and will to those of the nation, the Constitution would be reduced to a mere cipher, to the form and pageantry of authority, without the energy of power. Every act of the federal government which thwarted the views or checked the ambitious projects of a particular state, or of its leading and influential members, would be the object of opposition and of remonstrance; while the people, convulsed and confused by the conflict between two hostile jurisdictions, enjoying the protection of neither, would be wearied into a submission to some bold leader, who would establish himself on the ruins of both.
The legislature of Massachusetts, although they do not themselves claim the right, nor admit the authority of any of the state governments, to decide upon the constitutionality of the acts of the federal government, still, lest their silence should be construed into disapprobation, or at best into a doubt of the constitutionality of the acts referred to by the State of Virginia; and, as the General Assembly of Virginia has called for an expression of their sentiments, do explicitly declare, that they consider the acts of Congress, commonly called “the alien and sedition acts,” not only constitutional, but expedient and necessary: That the former act respects a description of persons whose rights were not particularly contemplated in the Constitution of the United States, who are entitled only to a temporary protection, while they yield a temporary allegiance; a protection which ought to be withdrawn whenever they become “dangerous to the public safety,” or are found guilty of “treasonable machination” against the government: That Congress having been especially intrusted by the people with the general defence of the nation, had not only the right, but were bound to protect it against internal as well as external foes. That the United States, at the time of passing the act concerning aliens, were threatened with actual invasion, had been driven by the unjust and ambitious conduct of the French government into warlike preparations, expensive and burthensome, and had then, within the bosom of the country, thousands of aliens, who, we doubt not, were ready to co-operate in any external attack.
It cannot be seriously believed, that the United States should have waited till the poignard had in fact been plunged. The removal of aliens is the usual preliminary of hostility, and is justified by the invariable usages of nations. Actual hostility had unhappily long been experienced, and a formal declaration of it the government had reason daily to expect. The law, therefore, was just and salutary, and no officer could, with so much propriety, be intrusted with the execution of it, as the one in whom the Constitution has reposed the executive power of the United States.
The sedition act, so called, is, in the opinion of this legislature, equally defensible. The General Assembly of Virginia, in their resolve under consideration, observe, that when that state by its convention ratified the Federal Constitution, it expressly declared, “That, among other essential rights, the liberty of conscience and of the press cannot be cancelled, abridged, restrained, or modified by any authority of the United States,” and from its extreme anxiety to guard these rights from every possible attack of sophistry or ambition, with other states, recommend an amendment for that purpose: which amendment was, in due time, annexed to the Constitution; but they did not surely expect that the proceedings of their state convention were to explain the amendment adopted by the Union. The words of that amendment, on this subject, are, “Congress shall make no law abridging the freedom of speech or of the press.”
The act complained of is no abridgment of the freedom of either. The genuine liberty of speech and the press, is the liberty to utter and publish the truth; but the constitutional right of the citizen to utter and publish the truth, is not to be confounded with the licentiousness in speaking and writing, that is only employed in propagating falsehood and slander. This freedom of the press has been explicitly secured by most, if not all, the state constitutions; and of this provision there has been generally but one construction among enlightened men; that it is a security for the rational use and not the abuse of the press; of which the courts of law, the juries, and people will judge; this right is not infringed, but confirmed and established by the late act of Congress.
By the Constitution, the legislative, executive, and judicial departments of government are ordained and established; and general enumerated powers vested in them respectively, including those which are prohibited to the several states. Certain powers are granted in general terms by the people to their general government, for the purposes of their safety and protection. The government is not only empowered, but it is made their duty to repel invasions and suppress insurrections; to guaranty to the several states a republican form of government; to protect each state against invasion, and, when applied to, against domestic violence; to hear and decide all cases in law and equity, arising under the Constitution, and under any treaty or law made in pursuance thereof; and all cases of admiralty and maritime jurisdiction, and relating to the law of nations. Whenever, therefore, it becomes necessary to effect any of the objects designated, it is perfectly consonant to all just rules of construction, to infer, that the usual means and powers necessary to the attainment of that object, are also granted: But the Constitution has left no occasion to resort to implication for these powers; it has made an express grant of them, in the 8th section of the first article, which ordains, “That Congress shall have power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by the Constitution in the government of the United States or in any department or officer thereof.”
This Constitution has established a Supreme Court of the United States, but has made no provisions for its protection, even against such improper conduct in its presence, as might disturb its proceedings, unless expressed in the section before recited. But as no statute has been passed on this subject, this protection is, and has been for nine years past, uniformly found in the application of the principles and usages of the common law. The same protection may unquestionably be afforded by a statute passed in virtue of the before-mentioned section, as necessary and proper, for carrying into execution the powers vested in that department. A construction of the different parts of the Constitution, perfectly just and fair, will, on analogous principles, extend protection and security against the offences in question, to the other departments of government, in discharge of their respective trusts.
The President of the United States is bound by his oath “to preserve, protect, and defend the Constitution,” and it is expressly made his duty, “to take care that the laws be faithfully executed;” but this would be impracticable by any created being, if there could be no legal restraint of those scandalous misrepresentations of his measures and motives, which directly tend to rob him of the public confidence. And equally impotent would be every other public officer, if thus left to the mercy of the seditious.
It is holden to be a truth most clear, that the important trusts before enumerated cannot be discharged by the government to which they are committed, without the power to restrain seditious practices and unlawful combinations against itself, and to protect the officers thereof from abusive misrepresentations. Had the Constitution withheld this power, it would have made the government responsible for the effects without any control over the causes which naturally produce them, and would have essentially failed of answering the great ends for which the people of the United States declare, in the first clause of that instrument, that they establish the same, viz: “To form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general warfare, and secure the blessings of liberty to ourselves and posterity.”
Seditious practices and unlawful combinations against the federal government, or any officer thereof, in the performance of his duty, as well as licentiousness of speech and of the press, were punishable on the principles of common law in the courts of the United States, before the act in question was passed. This act then is an amelioration of that law in favor of the party accused, as it mitigates the punishment which that authorizes, and admits of any investigation of public men and measures which is regulated by truth. It is not intended to protect men in office, only as they are agents of the people. Its object is to afford legal security to public offices and trusts created for the safety and happiness of the people, and therefore the security derived from it is for the benefit of the people, and is their right.
The construction of the Constitution and of the existing law of the land, as well as the act complained of, the legislature of Massachusetts most deliberately and firmly believe results from a just and full view of the several parts of the Constitution: and they consider that act to be wise and necessary, as an audacious and unprincipled spirit of falsehood and abuse had been too long unremittingly exerted for the purpose of perverting public opinion, and threatened to undermine and destroy the whole fabric of government.
The legislature further declare, that in the foregoing sentiments they have expressed the general opinion of their constituents, who have not only acquiesced without complaint in those particular measures of the federal government, but have given their explicit approbation by re-electing those men who voted for the adoption of them. Nor is it apprehended, that the citizens of this state will be accused of supineness or of an indifference to their constitutional rights; for while, on the one hand, they regard with due vigilance the conduct of the government, on the other, their freedom, safety and happiness require, that they should defend that government and its constitutional measures against the open or insidious attacks of any foe, whether foreign or domestic.
And, lastly, that the legislature of Massachusetts feel a strong conviction, that the several United States are connected by a common interest which ought to render their union indissoluble, and that this state will always co-operate with its confederate states in rendering that union productive of mutual security, freedom, and happiness.
Sent down for concurrence.
In the House of Representatives, Feb. 13, 1799.
Read and concurred.
A true copy. Attest,
State of New York.—In Senate, March 5, 1799.—Whereas, the people of the United States have established for themselves a free and independent national government: And whereas it is essential to the existence of every government, that it have authority to defend and preserve its constitutional powers inviolate, inasmuch as every infringement thereof tends to its subversion: And whereas the judicial power extends expressly to all cases of law and equity arising under the Constitution and the laws of the United States whereby the interference of the legislatures of the particular states in those cases is manifestly excluded: And whereas our peace, prosperity, and happiness, eminently depend on the preservation of the Union, in order to which, a reasonable confidence in the constituted authorities and chosen representatives of the people is indispensable: And whereas every measure calculated to weaken that confidence has a tendency to destroy the usefulness of our public functionaries, and to excite jealousies equally hostile to rational liberty, and the principles of a good republican government: And whereas the Senate, not perceiving that the rights of the particular states have been violated, nor any unconstitutional powers assumed by the general government, cannot forbear to express the anxiety and regret with which they observe the inflammatory and pernicious sentiments and doctrines which are contained in the resolutions of the legislatures of Virginia and Kentucky—sentiments and doctrines, no less repugnant to the Constitution of the United States, and the principles of their union, than destructive to the Federal government and unjust to those whom the people have elected to administer it: wherefore, Resolved, That while the Senate feel themselves constrained to bear unequivocal testimony against such sentiments and doctrines, they deem it a duty no less indispensable, explicitly to declare their incompetency, as a branch of the legislature of this state, to supervise the acts of the general government.
Resolved, That his Excellency, the Governor, be, and he is hereby requested to transmit a copy of the foregoing resolution to the executives of the states of Virginia and Kentucky, to the end that the same may be communicated to the legislatures thereof.
A true copy.
State of Connecticut.—At a General Assembly of the state of Connecticut, holden at Hartford, in the said state, on the second Thursday of May, Anno Domini 1799, his excellency the governor having communicated to this assembly sundry resolutions of the legislature of Virginia, adopted in December, 1798, which relate to the measures of the general government; and the said resolutions having been considered, it is
Resolved, That this Assembly views with deep regret, and explicitly disavows, the principles contained in the aforesaid resolutions; and particularly the opposition to the “Alien and Sedition Acts”—acts which the Constitution authorized; which the exigency of the country rendered necessary; which the constituted authorities have enacted, and which merit the entire approbation of this Assembly. They, therefore, decidedly refuse to concur with the legislature of Virginia, in promoting any of the objects attempted in the aforesaid resolutions.
And it is further resolved, That his excellency the governor be requested to transmit a copy of the foregoing resolution to the governor of Virginia, that it may be communicated to the legislature of that state.
Passed in the House of Representatives unanimously.
Concurred, unanimously, in the upper House.
State of New Hampshire.—In the House of Representatives, June 14, 1799.—The committee to take into consideration the resolutions of the General Assembly of Virginia, dated December 21, 1798; also certain resolutions of the legislature of Kentucky, of the 10th of November, 1798; report as follows:—
The legislature of New Hampshire, having taken into consideration certain resolutions of the General Assembly of Virginia, dated December 21, 1798; also certain resolutions of the legislature of Kentucky, of the 10th of November, 1798,—
Resolved, That the legislature of New Hampshire unequivocally express a firm resolution to maintain and defend the Constitution of the United States, and the constitution of this state, against every aggression, either foreign or domestic, and that they will support the government of the United States in all measures warranted by the former.
That the state legislatures are not the proper tribunals to determine the constitutionality of the laws of the general government; that the duty of such decision is properly and exclusively confided to the judicial department.
That if the legislature of New Hampshire, for mere speculative purposes, were to express an opinion on the acts of the general government, commonly called “the Alien and Sedition Bills,” that opinion would unreservedly be, that those acts are constitutional and, in the present critical situation of our country, highly expedient.
That the constitutionality and expediency of the acts aforesaid have been very ably advocated and clearly demonstrated by many citizens of the United States, more especially by the minority of the General Assembly of Virginia. The legislature of New Hampshire, therefore, deem it unnecessary, by any train of arguments, to attempt further illustration of the propositions, the truth of which, it is confidently believed, at this day, is very generally seen and acknowledged.
Which report, being read and considered, was unanimously received and accepted, one hundred and thirty-seven members being present.
Sent up for concurrence.
In Senate, same day, read and concurred in unanimously.
Approved June 15, 1799.
A true copy.
State of Vermont.—In the House of Representatives, October 30, A. D. 1799.—The House proceeded to take under their consideration the resolutions of the General Assembly of Virginia, relative to certain measures of the general government, transmitted to the legislature of this state for their consideration; whereupon,
Resolved, that the General Assembly of the state of Vermont do highly disapprove of the resolutions of the General Assembly of the state of Virginia, as being unconstitutional in their nature and dangerous in their tendency. It belongs not to state legislatures to decide on the constitutionality of the laws made by the general government; this power being exclusively vested in judiciary courts of the Union.
That his excellency the governor be requested to transmit a copy of this resolution to the executive of Virginia, to be communicated to the General Assembly of that state; and that the same be sent to the Governor and Council for their concurrence.
In Council, October 30, 1799.—Read and concurred in unanimously.
The following resolutions passed the House of Representatives of Kentucky, Nov. 10, 1798. On the passage of the first resolution, one dissentient; 2d, 3d, 4th, 5th, 6th, 7th, 8th, two dissentients; 9th, three dissentients.
1. Resolved, That the several states composing the United States of America, are not united on the principle of unlimited submission to their general government; but that by 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, 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 is an integral party; that this 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 Constitution, the measure of its powers; but, that as in all other cases of compact among parties having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.
2. Resolved, That the Constitution of the United States having delegated to Congress a power to punish treason, counterfeiting the securities and current coin of the United States, piracies and felonies committed on the high seas, and offences against the laws of nations, and no other crimes whatever; and it being true, as a general principle, and one of the amendments to the Constitution having also declared, “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 to the people,” therefore also the same act of Congress, passed on the 14th day of July, 1798, and entitled “An act in addition to the act entitled An act for the punishment of certain crimes against the United States;” as also the act passed by them on the 27th day of June, 1798, entitled “An act to punish frauds committed on the Bank of the United States,” (and all other their acts which assume to create, define, or punish crimes other than those enumerated in the Constitution), are altogether void and of no force, and that the power to create, define, and punish such other crimes is reserved, and of right appertains solely and exclusively to the respective states, each within its own territory.
3. Resolved, That it is true, as a general principle, and is also expressly declared by one of the amendments to the Constitution, 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 to the people;” and that no power over the freedom of religion, freedom of speech, or freedom of the press being delegated to the United States by the Constitution, nor prohibited by it to the states, all lawful powers respecting the same did of right remain, and were reserved to the states or to the people; that thus was manifested their determination to retain to themselves the right of judging how far the licentiousness of speech and of the press may be abridged without lessening their useful freedom, and how far those abuses which cannot be separated from their use should be tolerated rather than the use be destroyed; and thus also they guarded against all abridgment by the United States, of the freedom of religious principles and exercises, and retained to themselves the right of protecting the same, as this, stated by a law passed on the general demand of its citizens, had already protected them from all human restraint or interference: and that, in addition to this general principle and express declaration, another and more special provision has been made by one of the amendments to the Constitution, which expressly declares, that “Congress shall make no laws respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press,” thereby guarding in the same sentence, and under the same words, the freedom of religion, of speech, and of the press, insomuch that whatever violates either, throws down the sanctuary which covers the others; and that libels, falsehood, and defamation, equally with heresy and false religion, are withheld from the cognisance of federal tribunals. That therefore the act of the Congress of the United States, passed on the 14th of July, 1798, entitled “An act in addition to the act entitled An act for the punishment of certain crimes against the United States,” which does abridge the freedom of the press, is not law, but is altogether void and of no force.
4. Resolved, That alien friends are under the jurisdiction and protection of the laws of the state wherein they are: that no power over them has been delegated to the United States, nor prohibited to the individual states distinct from their power over citizens; and it being true, as a general principle, and one of the amendments to the Constitution having also declared, that “the powers not delegated to the United States by the Constitution, nor prohibited to the states, are reserved to the states respectively, or to the people,” the act of the Congress of the United States, passed the 22d day of June, 1798, entitled “An act concerning aliens,” which assumes power over alien friends not delegated by the Constitution, is not law, but is altogether void and of no force.
5. Resolved, That in addition to the general principle as well as the express declaration, that powers not delegated are reserved, another and more special provision inferred in the Constitution, from abundant caution has declared, “that the migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year 1808.” That this commonwealth does admit the migration of alien friends described as the subject of the said act concerning aliens; that a provision against prohibiting their migration, is a provision against all acts equivalent thereto, or it would be nugatory; that to remove them when migrated is equivalent to a prohibition of their migration, and is, therefore, contrary to the said provision of the Constitution, and void.
6. Resolved, That the imprisonment of a person under the protection of the laws of this commonwealth on his failure to obey the simple order of the President to depart out of the United States, as is undertaken by the said act, entitled, “An act concerning aliens,” is contrary to the Constitution, one amendment in which has provided, that “no person shall be deprived of liberty without due process of law,” and, that another having provided, “that in all criminal prosecutions, the accused shall enjoy the right to a public trial by an impartial jury, to be informed as to the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have assistance of counsel for his defence,” the same act undertaking to authorize the President to remove a person out of the United States who is under the protection of the law, on his own suspicion, without jury, without public trial, without confrontation of the witnesses against him, without having witnesses in his favor, without defence, without counsel, is contrary to these provisions also of the Constitution, is therefore not law, but utterly void and of no force.
That transferring the power of judging any person who is under the protection of the laws, from the courts to the President of the United States, as is undertaken by the same act concerning aliens, is against the article of the Constitution which provides, that “the judicial power of the United States shall be vested in the courts, the judges of which shall hold their office during good behavior,” and that the said act is void for that reason also; and it is further to be noted that this transfer of judiciary power is to that magistrate of the general government who already possesses all the executive, and a qualified negative in all the legislative powers.
7. Resolved, That the construction applied by the general government (as is evident by sundry of their proceedings) to those parts of the Constitution of the United States which delegate to Congress power to lay and collect taxes, duties, imposts, excises; to pay the debts, and provide for the common defence and general welfare of the United States, and to make all laws which shall be necessary and proper for carrying into execution the powers vested by the Constitution in the government of the United States, or any department thereof, goes to the destruction of all the limits prescribed to their power by the Constitution: That words meant by that instrument to be subsidiary only to the execution of the limited powers, ought not to be so construed as themselves to give unlimited powers, nor a part so to be taken as to destroy the whole residue of the instrument: That the proceedings of the general government under color of those articles, will be a fit and necessary subject for revisal and correction at a time of greater tranquillity, while those specified in the preceding resolutions call for immediate redress.
8. Resolved, That the preceding resolutions be transmitted to the Senators and Representatives in Congress from this commonwealth, who are enjoined to present the same to their respective Houses, and to use their best endeavors to procure at the next session of Congress a repeal of the aforesaid unconstitutional and obnoxious acts.
9. Resolved lastly, That the governor of this commonwealth be, and is hereby authorized and requested to communicate the preceding resolutions to the legislatures of the several states, to assure them that this commonwealth considers union for special national purposes, and particularly for those specified in their late federal compact, to be friendly to the peace, happiness, and prosperity of all the states—that, faithful to that compact, according to the plain intent and meaning in which it was understood and acceded to by the several parties, it is sincerely anxious for its preservation; that it does also believe, that to take from the states all the powers of self-government, and transfer them to a general and consolidated government, without regard to the special delegations and reservations solemnly agreed to in that compact, is not for the peace, happiness, or prosperity of these states; and that, therefore, this commonwealth is determined, as it doubts not its co-states are, to submit to undelegated and consequently unlimited powers in no man, or body of men on earth: that if the acts before specified should stand, these conclusions would flow from them; that the general government may place any act they think proper on the list of crimes and punish it themselves, whether enumerated or not enumerated by the Constitution as cognisable by them; that they may transfer its cognisance to the President or any other person, who may himself be the accuser, counsel, judge, and jury, whose suspicions may be the evidence, his order the sentence, his officer the executioner, and his breast the sole record of the transaction; that a very numerous and valuable description of the inhabitants of these states, being by this precedent reduced as outlaws to the absolute dominion of one man and the barriers of the Constitution thus swept from us all, no rampart now remains against the passions and the power of a majority of Congress, to protect from a like exportation or other grievous punishment the minority of the same body, the legislatures, judges, governors, and counsellors of the states, nor their other peaceable inhabitants who may venture to reclaim the constitutional rights and liberties of the states and people, or who, for other causes, good or bad, may be obnoxious to the view or marked by the suspicions of the President, or to be thought dangerous to his or their elections or other interests, public or personal; that the friendless alien has been selected as the safest subject of a first experiment; but the citizen will soon follow, or rather has already followed; for, already has a sedition act marked him as a prey: that these and successive acts of the same character, unless arrested on the threshold, may tend to drive these states into revolution and blood, and will furnish new calumnies against republican governments, and new pretexts for those who wish it to be believed, that man cannot be governed but by a rod of iron; that it would be a dangerous delusion were a confidence in the men of our choice to silence our fears for the safety of our rights; that confidence is everywhere the parent of despotism; free government is found in jealousy and not in confidence; it is jealousy and not confidence which prescribes limited constitutions to bind down those whom we are obliged to trust with power; that our Constitution has accordingly fixed the limits to which, and no farther, our confidence may go; and let the honest advocate of confidence read the alien and sedition acts, and say if the Constitution has not been wise in fixing limits to the government it created, and whether we should be wise in destroying those limits? Let him say what the government is, if it be not a tyranny, which the men of our choice have conferred on the President, and the President of our choice has assented to and accepted over the friendly strangers, to whom the mild spirit of our country and its laws had pledged hospitality and protection; that the men of our choice have more respected the bare suspicions of the President than the solid rights of innocence, the claims of justification, the sacred force of truth, and the forms and substance of law and justice. In questions of power, then, let no more be said of confidence in man, but bind him down from mischief by the chains of the Constitution. That this Commonwealth does therefore call on its co-states for an expression of their sentiments on the acts concerning aliens, and for the punishment of certain crimes hereinbefore specified, plainly declaring whether these acts are or are not authorized by the federal compact. And it doubts not that their sense will be so announced as to prove their attachment to limited government, whether general or particular, and that the rights and liberties of their co-states will be exposed to no dangers by remaining embarked on a common bottom with their own: but 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 the compact is not meant to be the measure of the powers of the general government, but that it will proceed in the exercise over these states of all powers whatsoever. That they will view this as seizing the rights of the states and consolidating them in the hands of the general government, with a power assumed to bind the states (not merely in cases made federal) 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 recurring to their natural rights in cases not made federal, will concur in declaring these void and of no force, and will each unite with this Commonwealth in requesting their repeal at the next session of Congress.