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REPLIES OF VERMONT TO THE KENTUCKY AND VIR
GINIA RESOLUTIONS OF 1798.
The resolutions of Kentucky, adopted Nov. 10 1798, were drawn by Mr. JEFFERSON, and the first of the series was in these words:
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.
The resolutions then went on to specify several acts of Congress and constructions of the constitution as infractions of that instrument, and closed by inviting the several states to “ concur in declaring these void and of no force," and to “unite with this Commonwealth in requesting their repeal at the next session of Congress.” These resolutions were condemned by several of the States, and on the 14th of November 1799, Kentucky re-affirmed its doctrine of State-Rights, and in the following words expressly declared that Nullification was the rightful remedy for infractions of the Constitution:
That the several states who formed that instrument being sovereign and independent, have the unquestionable right to judge of the infraction; and that a nullification by those sovereignties of all unauthorized acts done under color of that instrument is the rightful remedy.'
Instead of concurring in the resolutions of Kentucky, the Legislature of Virginia adopted a series of its own, which were drawn by JAMES
2M. W. Cluskey's Political Text Book, 1859, pp. 276–280, 664.
MADISON. These refrained from announcing nullification as “the rightful remedy;" but declared that the powers of the general government resulted from “the compact to which the states are parties;" are “limited by the plain sense and intention" of the constitution; and that "the states, who are parties thereto, have the right, and are in duty bound, to interpose, for arresting the progress of evil, and for maintaining within their respective limits the authorities, rights, and liberties appertaining to them.”
These resolutions found their final and logical outcome in the secession of the Southern States in 1861, and the War of the Rebellion. The legislators of Vermont in 1799 were wiser than they knew; for while they declared that the Kentucky dogmas would “defeat the grand design of our Union,” they did not forecast the holocausts by fire and sword which their sons have most bravely met. The replies of Vermont follow:
IN GRAND COMMITTEE, Oct. 21 1799. Agreeably to the concurrent resolutions of both branches of the legislature, his Èxellency the Governor and Council met the House of Representatives in joint committee to take into consideration the Resolutions of the states of Kentucky and Virginia:' his Excellency in the Chair, Richard Whitney Clerk.
On motion, Resolved, That the said Resolutions be read at large; also that the address of the minority of the House of Representatives of the state of Virginia against the resolutions of the majority of that House, be read.
Mr. Udney Hay then proposed to print the resolutions of Kentucky and Virginia, together with the acts of Congress which were condemned by them, which was negatived.
On motion, Resolved, That a sub-committee consisting of five members, be appointed to take under consideration the said resolutions of Virginia and Kentucky, and report to this Committee an answer or answers expressive of the sense of the Committee thereon. And a committee was appointed of Mr. [Daniel] Chipman, Mr. [John W.] Blake, Mr. [Samuel] Williams, Mr. [Udney] Hay, and Mr. [Councillor Stephen] Jacob.
Oct. 29.—Mr. [Daniel] Chipman, from the sub-committee appointed to prepare and report to the Committee a resolution or resolutions, in answer to the said resolutions of the states of Kentucky and Virginia, reported certain resolutions, which were read as followeth, to wit: THE ANSWER TO THE RESOLUTIONS OF THE STATE OF KENTUCKY.
To his Excellency the Governor, the Hon. Council, and General Assembly convened in joint committee, your sub-committee to whom was referred the resolutions of the states of Kentucky and Virginia, beg leave to report the following answer to the resolutions of the State of Kentucky.
The order of the replies of Vermont is changed from that in the Assembly Journal, to correspond with the fact that the resolutions of Kentucky preceded those of Virginia in point of time.
“ To the Legislature of the state of Kentucky.
We have maturely considered your resolutions of November 10th, 1798. As you invite our opinion, you will not blame us for giving it without disguise, and with decision. In your first resolution, you observe, in substance, “That the states constituted the general government, and that each state as party to the compact, has an equal right to judge for itselt as well of infractions of the constitution, as of the mode and measure of redress. 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 or control the general government.
“ In your second resolution, you certainly misconstrue and misapply an amendment to the Federal Constitution, which, if your construction be true, does not surely warrant the conclusion that as a state you have a right to declare any act of the General Government, which you shall deem unconstitutional, mull and void. Indeed, you actually do declare two acts of the Congress of the United States null and void. If, as a state, you have a right to declare two acts of the Congress of the United States unconstitutional and therefore void, you have an equal right to declare all their acts unconstitutional. Suppose each Legislature possess the power you contend for, each state Legislature would have the right to cause all the acts of Congress to pass in view before them, and reject or approve at their discretion, and the consequences would be, that the government of the Union, falsely calle General, migh operate partially in some states, and cease to operate in others. Would not this defeat the grand design of our Union ?
“In the eighteenth article (sub-division in the eighth section of the Constitution of the United States, we read, That Congress shall have power to make all laws which shall be proper for carrying into execution the Government of the United States. i It you enquire, where is our redress, should the Congress of the United States violate the Constitution, by abusing this power? we point to the right of election, [and] the Judicial courts of the Union ; and, in a jury of our fellow citizens, we find the ever watchful and constitutional guard against this supposed evil.
* In your third resolution you again severely reprehend the act of Congress commonly called the Sedition bill.' It we possessed the power you assumed, to censure the acts of the General Government, we could not consistently construe the Sedition bill unconstitutional ; because our own constitution guards the freedom of speech and the press in terms as explicit as that of the United States, yet long before the existence of the Federal Constitution, we enacted laws which are stili in force against sedition, intlicting severer penalties than this act of Congress.
“And although the freedom of speech and of the press are declared unalienable in our bill of rights, yet the railer against the civil magistrate, and the blasphemer of his Maker, are exposed to grievous punishment. And no one has been heard to complain that these laws infringe our state Constiution. Our state laws also protect the citizen in his good name : and if the slanderer publish his libel, he is not in a criminal
The words of the constitution are :
To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or otlice thereof.
prosecution indulged, as by the act of Congress, in giving the truth of the facts as exculpatory evidence. Thus accustomed to construe our own Constitution, you will readily conceive that we acquiesce in a similar construction of the Constitution of the United States.
“In your fourth resolution, you declare the Alien Act to be of no force, and not law; that Congress have, in passing that law, assumed a power not delegated by the Constitution, and have thereby deprived the alien of certain Constitutional rights. We ever considered that the Constitution of the United States was made for the benefit of our own citizens; we never conjectured that aliens were any party to the federal compact; we never knew that aliens had any rights among us, except what they derived from the law of nations, and rights of hospitality, which gives them a right to remain in any country while inoffensive-subjects
hem to punishment if disobedient, and to be driven away if suspected of designs injurious to the public welfare.
“ The construction of [that clause of] the Constitution which prohibits Congress from passing laws to prevent emigration [“ migration or importation”] until the year 1808, in your fifth resolution, is certainly erroneous. This clause, we'ever apprehended, had for its object Negro Slaves; and to give it any other construction would be to infer that Congress, after the year 1808, would have power to put a capitation tax upon every alien who should come to reside among us. The idea is too inhospitable to be admitted by a free and generous people.
“In your sixth resolution, you allege that the President is vested with a dangerous power; that, by his simple order, he may remove a suspected alien. We conceive that the President of the United States, as the head of the Government, possesses the best means of knowing the emissaries of our enemies, and we have the fullest confidence in his using his power and knowledge for the public good. You say that an alien has a constitutional right to a trial by jury, to be informeil of the nature and cause of the accusation, to be confronted with the witnesses against him, and to have a compulsatory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence. If an alien among us commit a crime he may indeed be tried by a jury of the country, to which he owes local allegiance; but hy what law shall a man be tried by jury for suspicion? If our country were threatened with invasion, a thousand spies might be sent to spy out our weakness, and to prepare bad men to assist, and weak men to submit to the enemy. Do not the common principles of self-defence enable a government to arrest such emissaries and send them from the country, if only suspected of designs hostile to the public safety ? If not, should some foreign invader approach our coasts, with a powerful fleet and army, those aliens would have a constitutional right to a trial by jury.
“In your last resolution, you say, That contidence is everywhere the parent of despotism; free government is founded in jealousy, and not in contidence. This is a sentiment palpably erroneous, and hostile to the social nature of man. 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 coefidence, while those, who are dishonest themselves, are most apt to suspect others.
"Resolved, That his Excellency, the Governor, be requested to transmit a copy of the foregoing answer to the Resolutions of the state of
· By the Vermont Statute now, when the truth of the words charged as libellous is proved to the satisfaction of the jury, the verdict must be not guilty.
Kentucky, to the executive of that state, to be communicated to the Legislature."
The foregoing answer to the resolutions of the state of Kentucky was read and accepted. THE ANSWER TO THE RESOLUTIONS OF THE STATE OF VIRGINIA.
To his Excellency the Governor, the Hon. Council, and General Assembly, convened in joint committee, your sub-committee, appointed to report a resolution in answer to the resolutions of the state of Virginia, beg leave to report the following resolution, to be recommended by this committee to the Legislature for adoption.
“Resolved, That the General Assembly of the state of Vermont do highly disapprove of the resolutions 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 laws made by the general government ; this power being exclusively vested in the 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."
Which report was accepted by the committee.
The answer to Virginia was adopted, 104 to 52; and the answer to Kentucky, 101 to 50.1
On the 5th of November, thirty-three of the members of the Assembly, who voted against the answers to Kentucky and Virginia, entered upon the journals the reasons of their dissent. This document criticises the “ answers” in several points, but hardly contests the all important principle of constitutional law, on which the efficiency of the general government and the very existence of the Union depend. It claimed for the states a right “ to decide ” on supposed infractions of the constitution, and to “ communicate their sentiments in the comonm way;" but when it came to the point of resistance to alleged infractions of the constitution, they not only saw clearly the dangers of nullification and secession, which in later times were the progeny of the Kentucky and Virginia resolutions of 1798, but affirmed the principle upon which the general government acted under the administration of President Lincoln. The following extract from this paper justifies the statement:
“Let it not be supposed, that in advocating the power of each state to decide on the constitutionality of some laws of the union, we mean to extend that right to any laws which do not infringe on the powers reserved to the states by the twelfth article of the amendments to the constitution. We cannot, therefore, be charged with an intent to justify an opposition, in any manner or form whatever, to the operation of any act of the union. That we conceive to be rebellion, punishable by the courts of the United States."
"Printed Assembly Journal of 1799, pp. 101-104, 107–109.
: The twelfth of the amendments proposed in 1789, but the tenth of those adopted.