The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface
• Part 1: Apprehensions
• The Anti-federalists
• Letters From the Federal Farmer, No. 7 31 December 1787
• “brutus,” Essay Ii 1 November 1787
• Amendments Recommended By the Several State Conventions
• Amendments Proposed By the Virginia Convention 27 June 1788
• Ratification of the State of New York 26 July 1788
• Federalist Concerns
• James Madison to George Washington New York, 11 August 1788
• Madison to Washington New York, 24 August 1788
• James Madison to Thomas Jefferson 21 September 1788
• Madison to Jefferson 8 December 1788
• The Bill of Rights
• Proceedings In the House of Representatives 8 June 1789
• Proceedings In the House of Representatives 13 August 1789
• Apprehensions Unallayed
• “pacificus” to James Madison
• Popular Instruction of Representatives 15 August 1789
• Titles
• Part 2: The Leadership Divides
• Funding and Assumption
• Alexander Hamilton the First Report On Public Credit 14 January 1790
• Debates In the House of Representatives On the First Report On Public Credit 9–18 February 1790
• Thomas Jefferson Memorandum On the Compromise of 1790
• Opposition Out of Doors
• Virginia’s Remonstrance Against the Assumption of State Debts 16 December 1790
• The Constitution and the National Bank
• Alexander Hamilton Notes On the Advantages of a National Bank 27 March 1791
• James Madison’s Speech On the Bank Bill 2 February 1791
• Thomas Jefferson Opinion On the Constitutionality of a National Bank 15 February 1791
• Alexander Hamilton Opinion On the Constitutionality of a National Bank 15 February 1791
• James Madison to Thomas Jefferson On Speculative Excess Summer 1791
• Commerce and Manufactures
• Thomas Jefferson Notes On the State of Virginia 1785
• Jefferson and Madison On Republican Political Economy
• James Madison Speech In the House of Representatives On Commercial Retaliation and Discrimination 25 April 1789
• Congressional Proceedings On Commercial Discrimination 1789
• Alexander Hamilton Report On the Subject of Manufactures 5 December 1791
• The Collision
• James Madison Essays For the National Gazette 1792
• William Branch Giles Speech In the House of Representatives On the Apportionment Bill 9 April 1792
• Letters of Fisher Ames to George Richards Minot 1791–1792
• Philip Freneau “rules For Changing a Limited Republican Government Into an Unlimited Hereditary One” 4 and 7 July 1792
• Alexander Hamilton to Edward Carrington 26 May 1792
• An Administration Divided
• James Madison Further Essays For the National Gazette
• Part III. The French Revolution and the People
• Neutrality
• “an Old French Soldier” (philadelphia) General Advertiser 27 August 1793
• Alexander Hamilton “pacificus,” No. 1 29 June 1793
• James Madison “helvidius,” No. 1 24 August 1793
• James Madison “helvidius,” No. 4 14 September 1793
• Commerce and Seizures
• William Loughton Smith Speech In the House of Representatives 13 January 1794
• James Madison Speech In the House of Representatives 14 January 1794
• James Madison “political Observations” 20 April 1795
• The Popular Societies, the Excise, and the Whiskey Rebellion
• The Democratic Society of Pennsylvania (philadelphia) Principles, Articles, and Regulations 30 May 1793
• Condemnations, Defenses, and Society Attacks On the Excise
• The Rebellion
• “self-created Societies”
• Alexander Hamilton the “camillus” Essays 22 July 1795–9 January 1796
• House Debates On Implementing Jay’s Treaty 1796
• Washington’s Farewell Address 19 September 1796
• Part 4: Liberty and Order
• The Black Cockade Fever
• Philadelphia, 1798
• Addresses to the President, With His Replies April–august 1798
• The Sedition Act 14 July 1798
• Popular Protest
• “advertisement Extraordinary!!!” (philadelphia) Aurora 14 July 1798
• The Kentucky and Virginia Resolutions
• Thomas Jefferson Draft of the Kentucky Resolutions October 1798
• James Madison the Virginia Resolutions 21 December 1798
• State Replies to the Resolutions
• Congressional Report Defending the Alien and Sedition Laws 21 February 1799
• James Madison the Report of 1800
• The Jeffersonian Program
• Thomas Jefferson the First Inaugural Address 4 March 1801
• Thomas Jefferson First Annual Message 8 December 1801
• The Jeffersonian Vision
• Letters of the President 1799–1802
• Edmund Pendleton “the Danger Not Over” 5 October 1801
• Fisher Ames “falkland,” No. 2 6 February 1801
• Repeal of the Judiciary Act of 1801
• Congressional Proceedings
• Editorials On the Repeal “a Friend of the Constitution” [william Cranch], No. 1 Washington Federalist 7 December 1801
• The Impeachment of Samuel Chase, 1804–1805
• Albert Gallatin Report On Internal Improvements 4 April 1808
• The Louisiana Purchase
• Thomas Jefferson to Robert R. Livingston 18 April 1802
• Thomas Jefferson to John C. Breckinridge 12 August 1803
• Thomas Jefferson to Wilson Cary Nicholas 7 September 1803
• [alexander Hamilton] “purchase of Louisiana” New York Evening Post 5 July 1803
• Federalist Alarm
• A Republican Response
• Senate Debates On the Louisiana Purchase 2–3 November 1803
• The Embargo
• An Act Laying an Embargo On All Ships and Vessels In the Ports and Harbors of the United States 22 December 1807
• Resistance, Enforcement, and Repeal
• The War of 1812
• Madison’s War Message 2 June 1812
• Samuel Taggart, Speech Opposing the War 24 June 1812
• Henry Clay, Speech Supporting the War 9 January 1813
• Report and Resolutions of the Hartford Convention 4 January 1815
• Part 7: The End of an Era
• Madison’s Seventh Annual Message 5 December 1815
• Madison’s Veto of the Internal Improvements Bill 3 March 1817
• In Retrospect
• The Adams-jefferson Correspondence John Adams to Thomas Jefferson 13 July 1813
• Thomas Jefferson to Justice William Johnson 12 June 1823
• Republican Farewells
• Bibliography

part 4

Liberty and Order

John Adams defeated Thomas Jefferson in the presidential election of 1796 by a margin of three electoral votes (and Jefferson became vice president under the terms of the Constitution at that time). Washington had left his successor with a crisis. Damaged and offended by Jay’s Treaty, the French Directory announced that France would treat American ships “in the same manner as they suffer the English to treat them.” Seizures followed, and the new administration responded to the crisis much as Washington had responded to the crisis with England in 1794. As Congress increased appropriations for national defense, Adams sent two envoys to join with Charles C. Pinckney, whom the French had refused to accept as minister, to negotiate a resolution. The negotiations failed when unofficial agents of the French foreign minister—referred to in American dispatches as X, Y, and Z—demanded a bribe for Talleyrand, a large American loan to the Republic, and an apology for remarks in Adams’s address to Congress before negotiations could begin.

In April 1798, goaded by Republicans in Congress, who could not believe administration statements that negotiations had failed, Adams released the papers revealing the XYZ Affair. Patriotic fury swept the country, swelling into a widespread fear of treasonable plots between the French and their domestic admirers. On the crest of this hysteria, the Federalists in Congress launched a limited naval war with France and seized the opportunity to attack their domestic opponents. Over the next two years, the Quasi-War and the Federalists’ Alien and Sedition Acts would be the focus of party debates.

The Black Cockade Fever

Philadelphia, 1798

The letters of several national figures capture something of the atmosphere in Philadelphia, in the country, and in the president’s own house during the spring and summer of 1798.

Abigail Adams to Her Sister 7 April 1798

My Dear Sister:

The Senate on Thursday voted to have the dispatches from our envoys made public. … If the communications should have the happy effect which present appearances lead me to hope, that of uniting the people of our country, I shall not regret that they were called for. Out of apprehension what might prove the result of such communications to our envoys, if they still remain in Paris, the President forbore to communicate them and in his message was as explicit as was necessary for those who reposed confidence in him. But such lies and falsehoods were continually circulated, and base and incendiary letters sent to the house addressed to him, that I really have been alarmed for his personal safety, tho I have never before expressed it. With this temper in a city like this, materials for a mob might be brought together in 10 minutes.

Abigail Adams to Her Sister 22 April 1798

My Dear Sister:

… Addresses from the Merchants, Traders & Underwriters have been presented and signed by more than 500 of men of the greatest property here in this city, highly approving the measures of the executive. A similar one from the Grand Jurors, one from York Town, and yesterday, one from the Mayor, Aldermen & common counsel of the city, a very firm and manly address. Others are coming from New York, from Baltimore, and I presume Boston will be no longer behind than time to consult upon the measure. They must in this way show the haughty tyrants that we are not that divided people we have appeared to be; their vile emissaries make all our trouble, and all our difficulty.

Abigail Adams to Her Sister 26 April 1798

My Dear Sister:

I enclose to you a National Song [“Hail Columbia”] composed by [Joseph] Hopkinson. French tunes have for a long time usurped an uncontrolled sway. Since the change in the public opinion respecting France, the people began to lose the relish for them, and what had been harmony now becomes discord. Accordingly there had been for several evenings at the theater something like disorder, one party crying out for the President’s March and Yankee Doodle, whilst §a Ira was vociferated from the other. It was hissed off repeatedly. The managers were blamed. Their excuse was that they had not any words to the President’s March—Mr. Hopkinson accordingly composed these to the tune. Last evening they were sung for the first time. I had a great curiosity to see for myself the effect. I got Mr. Otis to take a box and silently went off with Mr. and Mrs. Otis, Mr. and Mrs. Buck to the play, where I had only once been this winter. … Mr. Fox came upon the stage, to sing the song. He was welcomed by applause. The house was very full, and at every chorus, the most unbounded applause ensued. In short it was enough to stun one. They had the song repeated—After this Rossina was acted. When Fox came upon the [stage] after the curtain dropped to announce the piece for Friday, they called again for the song, and made him repeat it to the fourth time. And the last time, the whole audience broke forth in the chorus whilst the thunder from their hands was incessant, and at the close they rose, gave 3 Huzzas that you might have heard a mile—My head aches in consequence of it. … There have been six different addresses presented from this city alone; all expressive of the approbation of the measures of the executive. Yet daringly do the vile incendiaries keep up in Bache’s paper the most wicked and base, violent & calumniating abuse. … But nothing will have an effect until Congress passes a Sedition Bill, which I presume they will do before they rise.

Abigail Adams to Her Sister 10 May 1798

My Dear Sister:

… The young men of the city as I wrote you on Monday to the amount of near eleven hundred came at 12 o’clock in procession two and two. There were assembled upon the occasion it is said ten thousand persons. … In great order & decorum the young men with each a black cockade marched through the multitude and all of them entered the house preceded by their committee. When a young gentleman by the name of Hare, a nephew of Mrs. Bingham’s, read the address, the President received them in his Levee Room dressed in his uniform, and as usual upon such occasions, read his answer to them, after which they all retired. The multitude gave three cheers and followed them to the State House Yard, where the answer to the address was again read by the chairman of the committee, with acclamations. They then closed the scene by singing the new song, which at 12 o’clock at night was sung by them under our windows, they having dined together or rather a part of them. This scene burnt in the hearts of some Jacobins and they determined either to terrify or bully the young men out of their patriotism. Bache published some saucy pieces the young men resented, and he would have felt the effects of their resentment if some cooler heads had not interposed. Yesterday [the day of Public Humiliation, Fasting, and Prayer] was observed with much solemnity. The meeting houses & churches were filled. About four o’clock as is usual the State House Yard, which is used for a walk, was very full of the inhabitants, when about 30 fellows, some with snow balls in their hats & some with tri-colored cockades, entered and attempted to seize upon the hats of the young men to tear out their cockades. A scuffle ensued when the young men became conquerors, and some of these tri-colored cockades were trampled in the dust. One fellow was taken and committed to jail, but this was sufficient to alarm the inhabitants, and there were everywhere large collections of people. The Light Horse were called out & patrolled the streets all night. A guard was placed before this house tho, through the whole of the proceeding and amidst all the collection, the President’s name was not once mentioned, nor any one grievance complained of, but a foreign attempt to try their strength & to awe the inhabitants if possible was no doubt at the bottom. Congress are upon an Alien Bill. This Bache is cursing & abusing daily. If that fellow & all is not suppressed, we shall come to a civil war. I hope the Gen’ll Court of our state will take the subject up & if they have not a strong Sedition Bill, make one… .

Alexander Hamilton to George Washington 19 May 1798

My Dear Sir,

At the present dangerous crisis of public affairs, I make no apology for troubling you with a political letter. Your impressions of our situation, I am persuaded, are not different from mine. There is certainly great probability that we may have to enter into a very serious struggle with France, and it is more and more evident that the powerful faction which has for years opposed the government is determined to go every length with France. I am sincere in declaring my full conviction, as the result of a long course of observation, that they are ready to new model our constitution under the influence or coercion of France—to form with her a perpetual alliance offensive and defensive—and to give her a monopoly of our trade by peculiar and exclusive privileges. This would be in substance, whatever it might be in name, to make this country a province of France. Neither do I doubt that her standard displayed in this country would be directly or indirectly seconded by them in pursuance of the project I have mentioned.

It is painful and alarming to remark that the opposition faction assumes so much a geographical complexion. As yet from the south of Maryland nothing has been heard but accents of disapprobation of our government and approbation of or apology for France. This is a most portentous symptom & demands every human effort to change it.

In such a state of public affairs it is impossible not to look up to you and to wish that your influence could in some proper mode be brought into direct action. Among the ideas which have passed through my mind for this purpose, I have asked myself whether it might not be expedient for you to make a circuit through Virginia and North Carolina under some pretense of health, etc. This would call forth addresses, public dinners, etc. which would give you an opportunity of expressing sentiments in answers, toasts, etc. which would throw the weight of your character into the scale of the government and revive an enthusiasm for your person that may be turned into the right channel… .

You ought to be aware, My Dear Sir, that in the event of an open rupture with France, the public voice will again call you to command the armies of your country; and though all who are attached to you will, from attachment as well as public considerations, deplore an occasion which should once more tear you from that repose to which you have so good a right, yet it is the opinion of all those with whom I converse that you will be compelled to make the sacrifice. All your past labor may demand, to give it efficacy, this further, this very great sacrifice.

Thomas Jefferson to John Taylor 4 June 1798

Mr. New showed me your letter on the subject of the patent, which gave me an opportunity of observing what you said as to the effect with you of public proceedings, and that it was not unusual now to estimate the separate mass of Virginia and N. Carolina with a view to their separate existence. It is true that we are completely under the saddle of Massachusetts & Connecticut, and that they ride us very hard, cruelly insulting our feelings as well as exhausting our strength and substance. Their natural friends, the three other eastern states, join them from a sort of family pride, and they have the art to divide certain other parts of the Union so as to make use of them to govern the whole. This is not new. It is the old practice of despots to use a part of the people to keep the rest in order, and those who have once got an ascendency and possessed themselves of all the resources of the nation, their revenues and offices, have immense means for retaining their advantages. But our present situation is not a natural one. The body of our countrymen is substantially republican through every part of the Union. It was the irresistible influence & popularity of General Washington, played off by the cunning of Hamilton, which turned the government over to anti-republican hands, or turned the republican members chosen by the people into anti-republicans. He delivered it over to his successor in this state, and very untoward events, since improved with great artifice, have produced on the public mind the impression we see; but still, I repeat it, this is not the natural state. Time alone would bring round an order of things more correspondent to the sentiments of our constituents; but are there not events impending which will do it within a few months? The invasion of England, the public and authentic avowal of sentiments hostile to the leading principles of our Constitution, the prospect of a war in which we shall stand alone, land tax, stamp tax, increase of public debt, etc. Be this as it may, in every free & deliberating society there must, from the nature of man, be opposite parties & violent dissensions & discords; and one of these, for the most part, must prevail over the other for a longer or shorter time. Perhaps this party division is necessary to induce each to watch & relate to the people the proceedings of the other. But if, on a temporary superiority of the one party, the other is to resort to a scission of the Union, no federal government can ever exist. If to rid ourselves of the present rule of Massachusetts & Connecticut, we break the Union, will the evil stop there? Suppose the N. England States alone cut off, will our natures be changed? Are we not men still to the south of that, & with all the passions of men? Immediately we shall see a Pennsylvania & a Virginia party arise in the residuary confederacy, and the public mind will be distracted with the same party spirit. What a game, too, will the one party have in their hands by eternally threatening the other that unless they do so & so, they will join their Northern neighbors. If we reduce our Union to Virginia & N. Carolina, immediately the conflict will be established between the representatives of these two states, and they will end by breaking into their simple units. Seeing, therefore, that an association of men who will not quarrel with one another is a thing which never yet existed, from the greatest confederacy of nations down to a town meeting or a vestry, seeing that we must have somebody to quarrel with, I had rather keep our New England associates for that purpose than to see our bickerings transferred to others. They are circumscribed within such narrow limits, & their population so full, that their numbers will ever be the minority, and they are marked, like the Jews, with such a peculiarity of character as to constitute from that circumstance the natural division of our parties. A little patience and we shall see the reign of witches pass over, their spells dissolve, and the people, recovering their true sight, restore their government to its true principles. It is true that in the meantime we are suffering deeply in spirit and incurring the horrors of a war and long oppressions of enormous public debt. But who can say what would be the evils of a scission, and when & where they would end? Better keep together as we are, haul off from Europe as soon as we can, & from all attachments to any portions of it. And if we feel their power just sufficiently to hoop us together, it will be the happiest situation in which we can exist. If the game runs sometimes against us at home, we must have patience till luck turns, & then we shall have an opportunity of winning back the principles we have lost, for this is a game where principles are the stake. Better luck, therefore, to us all; and health, happiness, & friendly salutations to yourself. Adieu.

Addresses to the President, with His Replies April–August 1798

Through the spring and summer of 1798, as Congress moved to authorize a quasi-war with France, addresses praising the administration poured into Philadelphia, where many were reprinted in the papers. Adams’s replies did much to fan the patriotic fever, to further popular suspicion of the friends of France, and thus to lay the groundwork for repressive legislation.

Address of the Mayor, Aldermen, and Citizens of Philadelphia to the President of the United States April 1798

At a moment when dangers threaten the peace and prosperity of the United States, when foreign violence and rapine have deeply wounded our national honor and injured our lawful commerce, it is presumed the mayor, aldermen, and citizens of the city of Philadelphia will not be unwelcome when they come forward to assure you of their perfect approbation of your administration and their entire confidence in your wisdom, integrity, and patriotism. While we admire the prudence and moderation with which our government has received the unprovoked aggressions of France and the sincerity and equity of your endeavors to conciliate her friendship, we feel the independent pride of Americans in your dignity and firmness. As we are satisfied that nothing has been wanting on your part to preserve to us the blessings of peace and safety, we prepare to meet with fortitude the consequences that may follow the failure of your exertions. Confident that our government has been just and impartial in her dealings with all nations, and grateful for the happiness we have enjoyed under it in the days of tranquility, we do not hesitate to promise it our utmost assistance in the time of difficulty and need. Presiding over the councils of your country in a most eventful crisis, we hope and trust you will find a fixed and energetic support in the people of America.—Permit us to congratulate you on the prospects of unanimity that now presents itself to the hopes of every American, and on the spirit of independent patriotism that is rapidly rising into active exertion—and to offer a sincere prayer that while you continue to serve your country with wisdom and fidelity, you may never find her ungrateful.

Answer

… At a time when all the old republics of Europe are crumbling into dust, and others forming whose destinies are dubious; when the monarchies of the old world are, some of them, fallen, and others are trembling to their foundations; when our own infant republic has scarcely had time to cement its strength or decide its own practi-cable form; when these agitations of the human species have affected our people, and produced a spirit of party which scruples not to go all lengths of profligacy, falsehood, and malignity in defaming our government; your approbation and confidence are to me a great consolation. Under your immediate observation and inspection the principal operations of the government are directed; and to you, both characters and conduct must be intimately known.

I am but one of the American people, and my fate and fortunes must be decided with theirs. As far as the forces of nature may remain to me, I will not be wanting in my duties to them, nor will I harbor a suspicion that they will fail to afford me all necessary aid and support.

While with the greatest pleasure I reciprocate your congratulations “on the prospect of unanimity that now presents itself to the hopes of every American, and on that spirit of patriotism and independence that is rising into active exertion” in opposition to seduction, domination, and rapine, I offer a sincere prayer that the citizens of Philadelphia may persevere in the virtuous course, maintain the honorable character of their ancestors, and be protected from every calamity physical, moral, and political.

Address of the Young Men of the City of Philadelphia, the District of Southwark, and the Northern Liberties May 1798

Sir,

At a period so interesting to the United States, permit us to believe that an address from the youth of Philadelphia, anxious to preserve the honor and independence of their country, will not be unwelcome to their chief magistrate.

Actuated by the same principles on which our forefathers achieved their Independence, the recent attempts of a foreign power to derogate from the dignity and rights of our country awaken our liveliest sensibility and our strongest indignation.

The executive of the United States, filled with a spirit of friendship towards the whole world, has resorted to every just and honorable means of conciliating the affections of the French Republic, who have received their propositions of peace with determined hostility and contempt, have wounded our national independence by insulting its representatives, and calumniated the honor and virtue of our citizens by insinuating that we were a divided, insubordi-nate people.

The youth of the American nation will claim some share of the difficulty, danger, and glory of its defense; and although we do not hold ourselves competent to form an opinion respecting the tendency of every measure, yet we have no hesitation in declaring that we place the most entire confidence in your wisdom, integrity, and patriotism; that we regard our liberty and independence as the richest portion given to us by our ancestors; that we perceive no difference between the illegal and oppressive measures of one government and the insolent attempts now made to usurp our rights by another; that as our ancestors have magnanimously resisted the encroachments of the one, we will no less vigorously oppose the attacks of the other; that at the call of our country we will assemble with promptitude, obey the orders of the constituted authorities with alacrity, and on every occasion act with all the exertion of which we are capable; and for this we pledge ourselves to you, to our country, and to the world.

Answer 7 May 1798

Gentlemen,

Nothing of the kind could be more welcome to me than this address from the ingenuous youth of Philadelphia in their virtuous anxiety to preserve the honor and independence of their country.

For a long course of years, my amiable young friends, before the birth of the oldest of you, I was called to act with your fathers in concerting measures the most disagreeable and dangerous, not from a desire of innovation, not from discontent with the government under which we were born and bred, but to preserve the honor of our country and vindicate the immemorial liberties of our ancestors. In pursuit of these measures, it became, not an object of predilection and choice, but of indispensable necessity to assert our independence, which, with many difficulties and much suffering, was at length secured. I have long flattered myself that I might be gathered to the ashes of my fathers leaving unimpaired and unassailed the liberties so dearly purchased; and that I should never be summoned a second time to act in such scenes of anxiety, perplexity, and danger as war of any kind always exhibits. If my good fortune should not correspond with my earnest wishes and I should be obliged to act with you, as with your ancestors, in defense of the honor and independence of our country, I sincerely wish that none of you may ever have your constancy of mind and strength of body put to so severe a trial as to be compelled, again, in your advanced age to the contemplation and near prospect of any war of offense or defense.

It would neither be consistent with my character nor yours, on this occasion, to read lessons to gentlemen of your education, conduct, and character; if, however, I might be indulged the privilege of a father, I should with the tenderest affection recommend to your serious and constant consideration that science and morals are the great pillars on which this country has been raised to its present population, opulence, and prosperity, and that these alone can advance, support, and preserve it.

Without wishing to damp the ardor of curiosity or influence the freedom of inquiry, I will hazard a prediction that, after the most industrious and impartial researches, the longest liver of you all will find no principles, institutions, or systems of education more fit in general to be transmitted to your posterity than those you have received from your ancestors.

No prospect or spectacle could excite a stronger sensibility in my bosom than this which now presents itself before me. I wish you all the pure joys, the sanguine hopes, and bright prospects which are decent at your age, and that your lives may be long, honorable, and prosperous in the constant practice of benevolence to men and reverence to the divinity, in a country preserving in liberty and increasing in virtue, power, and glory.

The sentiments of this address, everywhere expressed in language as chaste and modest as it is elegant and masterly, which would do honor to the youth of any country, have raised a monument to your fame more durable than brass or marble. The youth of all America must exult in this early sample, at the seat of government, of their talents, genius, and virtues.

America and the world will look to our youth as one of our firmest bulwarks. The generous claim which you now present of sharing in the difficulty, danger, and glory of our defense is to me and to your country a sure and pleasing pledge that your birthrights will never be ignobly bartered or surrendered, but that you will in your turn transmit to future generations the fair inheritance obtained by the unconquerable spirit of your fathers.

Address of the Officers and Soldiers of the Chester Light Infantry Company of Volunteers in the County of Delaware and State of Pennsylvania 25 August 1798

Sir,

In the present eventful crisis of public affairs, we beg leave to approach you with affection and confidence: With affection because we believe its constituted authorities have done all that could be done, consistent with national honor and independence, to preserve peace. Believing with you that “a free republic is the best of governments and the greatest blessing to which mortals can aspire,” it is our fixed determination to give it every support in our power, and we trust that under chiefs who have hitherto so ably conducted our country to independence, there will be no doubt of maintaining it against a foe who has left no arts untried to rob us of it. Averse to war, both as Americans and Christians, we should have been happy to have spent our lives in the enjoyment of peace, but when peace is to be the price of national degradation, and the enjoyment of it, if so purchased, wholly insecure, we have no hesitation in choosing the alternative with a confident reliance on that Providence which on more than one occasion has manifestly interfered for the safety and happiness of the American people.

Under these impressions we offer our best services to our country and beg you to accept of this tender of them, with an assurance that as soon as circumstances require it we are ready to take the field. In the presence of the “God of Armies,” we make the offer and pledge ourselves to fulfill it.

Accept, Sir, our best wishes for your happiness; may you have the felicity of seeing our country permanently placed in that situation of peace and independence which your ardent patriotism and unwearied exertions in the cause of genuine freedom lead us to suppose is the prime wish of your heart.

Answer 17 September 1798

Gentlemen,

The affection and confidence expressed in your obliging address of the twenty-fifth of August is very satisfactory to me. Although there is no truth of which I am more fully convinced than this, which you approve, that “a free republic is the best government and the greatest blessing to which mortals can aspire,” it is too apparent from history and experience that such a government has always too many enemies, both within and without, to be ever secure for any long period of time without a constant preparation and readiness for war. Such a government has always within itself its worst enemies in those who are most clamorous and boisterous in its praise.

The Sedition Act 14 July 1798

French and Irish immigrants usually sympathized with revolutionary France in its war with Britain and voted for Republican opponents of what they perceived as the pro-British policies of the Federalist administrations. On 18 June 1798, Congress passed a new Naturalization Act, extending from five to fourteen years the period of residence required for naturalization. On 25 June, it followed with the Alien Act, which gave the president power to summarily deport any alien whose residence he considered dangerous to the United States. (A nonpartisan Alien Enemies Act, passed on 6 July, authorized the president, in the event of a declared war, to arrest, imprison, or deport the citizens of an enemy power.) Within Congress and without, Republicans would insist that the Alien Act unconstitutionally deprived alien friends of a right to a judicial determination of their fates. Even sharper protests would greet the Sedition Act, which was aimed squarely at American citizens who criticized federal officials and programs.

Section 1. Be it enacted … That if any persons shall unlawfully combine or conspire together with intent to oppose any measure or measures of the government of the United States, which are or shall be directed by proper authority, or to impede the operation of any law of the United States, or to intimidate or prevent any person holding a place or office in or under the government of the United States from undertaking, performing, or executing his trust or duty; and if any person or persons, with intent as aforesaid, shall counsel, advise, or attempt to procure any insurrection, riot, unlawful assembly, or combination, whether such conspiracy, threatening, counsel, advice, or attempt shall have the proposed effect or not, he or they shall be deemed guilty of a high misdemeanor, and on conviction before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding five thousand dollars, and by imprisonment during a term not less than six months nor exceeding five years; and further, at the discretion of the court, may be holden to find sureties for his good behavior in such sum and for such time as the said court may direct.

Section 2. That if any person shall write, print, utter, or publish, or shall cause or procure to be written, printed, uttered or published, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States, or to stir up sedition within the United States, or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States, done in pursuance of any such law or of the powers in him vested by the Constitution of the United States, or to resist, oppose, or defeat any such law or act, or to aid, encourage or abet any hostile designs of any foreign nation against the United States, their people or government, then such person, being thereof convicted before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.

Section 3. That if any person shall be prosecuted under this act for the writing or publishing any libel aforesaid, it shall be lawful for the defendant, upon the trial of the cause, to give in evidence in his defense, the truth of the matter contained in the publication charged as a libel. And the jury who shall try the cause shall have a right to determine the law and the fact, under the direction of the court, as in other cases.

Section 4. That this act shall continue to be in force until March 3, 1801, and no longer… .

Popular Protest

The Sedition Act was not a laughing matter. It was enforced by a partisan judiciary and a vigilant, High-Federalist secretary of state—all the more rigorously, in fact, once the crisis with France began to ease. Under its provisions or under the common law of seditious libel, all of the most important Republican newspapers in the country and several of the party’s most influential pamphleteers felt the sting of prosecutions. The Argus and the Time Piece, the only Republican newspapers in New York City, were driven out of business. Men were prosecuted under the Sedition Act for offenses as diverse and as trivial as erecting a liberty pole, advocating the act’s repeal, and expressing a drunken wish that cannon firing a salute were shooting at the president’s “arse.” Benjamin Franklin Bache, the grandson of Benjamin Franklin, whose Philadelphia paper, the General-Advertiser, had added the title Aurora to its masthead and replaced the National Gazette as the leading opposition newspaper when the latter went out of business in 1793, was another of its victims. William Duane, the assistant who succeeded Bache at the Aurora after the latter died in the yellow fever epidemic of 1798, was harried by common law proceedings. Neither ever relented in his condemnations of the Federalist regime, starting with this squib:

“Advertisement Extraordinary!!!” (Philadelphia) Aurora 14 July 1798

Orator Mum takes this very orderly method of announcing to his fellow citizens that a THINKING CLUB will be established in a few days at the sign of the Muzzle in Gag Street. The first subject for cogitation will be:

“Ought a Free People to obey laws which violate the constitution they have sworn to support?”

N.B. No member will be permitted to think longer than fifteen minutes.

The Kentucky and Virginia Resolutions

With the Federalists in control of all three branches of the federal government, Jefferson and Madison decided to arouse the states for a counterattack on the repressive legislation of the summer. Jefferson gave a draft of legislative resolutions to John Breckinridge of Kentucky. Madison drafted a second set, which he would give to Virginia’s John Taylor. Breckinridge or his fellow Kentucky legislators softened Jefferson’s resolutions considerably before they passed the state house of representatives on 10 November 1798, replacing his suggestion that the rightful remedy for federal usurpations was a “nullification” of such acts by each state acting on its own with a declaration that unconstitutional acts were “void and of no force” and a call for the other states to join Kentucky in “requesting their repeal.” The authorship of both sets of resolutions was a closely guarded secret until 1809, when Taylor mentioned Madison in print, and Jefferson’s draft of the Kentucky Resolutions would not become public until later still. The two sets of resolutions nevertheless proved hugely controversial at the time, and during the succeeding generation, their elucidation of a compact theory of the Constitution and a doctrine of state interposition against unconstitutional federal laws would become a groundwork for the doctrines of nullification and secession.

thomas jefferson Draft of the Kentucky Resolutions October 1798

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 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,—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, 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 Constitution, 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.

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 offenses against the law of nations, and no other crimes whatsoever; 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 States, are reserved to the States respectively, or to the people,” therefore the 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 day of June, 1798, entitled “An Act to punish frauds committed on the bank of the United States,” (and all their other acts which assume to create, define, or punish crimes, other than those so 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 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 opinions and exercises, and retained to themselves the right of protecting the same, as this State, 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 law 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 violated 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 cognizance of federal tribunals. That, therefore, the act of Congress of the United States, passed on the 14th day 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 by it to the States, are reserved to the States respectively, or to the people,” the act of the Congress of the United States, passed on the day of July, 1798, entitled “An Act concerning aliens,” which assumes powers 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, inserted 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 said act entitled “An Act concerning aliens,” is contrary to the Constitution, one amendment to 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 public trial by an impartial jury, to be informed of 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 the assistance of counsel for his defense,” 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 accusation, without jury, without public trial, without confrontation of the witnesses against him, without hearing witnesses in his favor, without defense, without counsel, is contrary to the provision 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 courts, the judges of which shall hold their offices during good behavior”; and 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 negative on all legislative powers.

7. Resolved, That the construction applied by the General Government (as is evidenced by sundry of their proceedings) to those parts of the Constitution of the United States which delegate to Congress a power “to lay and collect taxes, duties, imports, and excises, to pay the debts, and provide for the common defense 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 in any department or officer thereof,” goes to the destruction of all limits prescribed to their power by the Constitution: that words meant by the instrument to be subsidiary only to the execution of limited powers, ought not to be so construed as themselves to give unlimited powers, nor a part to be so taken as to destroy the whole residue of that instrument: that the proceedings of the General Government under color of these articles, will be a fit and necessary subject of revisal and correction, at a time of greater tranquillity, while those specified in the preceding resolutions call for immediate redress.

8th. Resolved, That a committee of conference and correspondence be appointed, who shall have in charge to communicate the preceding resolutions to the legislatures of the several States; to assure them that this commonwealth continues in the same esteem of their friendship and union which it has manifested from that moment at which a common danger first suggested a common union: that it considers union, for specified national purposes, and particularly to 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 in cases of an abuse of the delegated powers, the members of the General Government, being chosen by the people, a change by the people would be the constitutional remedy; but, where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, (casus non foederis), to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them: that nevertheless, this commonwealth, from motives of regard and respect for its co-States, has wished to communicate with them on the subject: that with them alone it is proper to communicate, they alone being parties to the compact, and solely authorized to judge in the last resort of the powers exercised under it, Congress being not a party, but merely the creature of the compact, and subject as to its assumptions of power to the final judgment of those by whom, and for whose use itself and its powers were all created and modified: 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, punish it themselves whether enumerated or not enumerated by the Constitution as cognizable by them: that they may transfer its cognizance 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 barrier of the Constitution thus swept away from us all, no rampart now remains against the passions and the powers of a majority in Congress to protect from a like exportation, or other more 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 views, or marked by the suspicions of the President, or be thought dangerous to his or their election, or other interests, public or personal: that the friendless alien has indeed 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 its prey: that these and successive acts of the same character, unless arrested at the threshold, necessarily drive these States into revolution and blood, and will furnish new calumnies against republican government, 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 founded 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 further, 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 our 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 have pledged hospitality and protection: that the men of our choice have more respected the bare suspicions of the President, than the solid right 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 heard 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 herein before 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 unaltered 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 in a common bottom with their own. 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 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 as the cases made federal (casus foederis), 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 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 for providing that neither these 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 co-States to correspond or confer with them; and that they lay their proceedings before the next session of Assembly.

james madison The Virginia Resolutions 21 December 1798

In the House of Delegates

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 all 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 consequence 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 no where 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, but 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 that 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 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, 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 of 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 cooperating 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.

State Replies to the Resolutions

Ten of the fourteen other states responded to Kentucky and/or Virginia, in every case condemning state interference in the federal sphere. The resolutions of Rhode Island and New Hampshire were representative in content and tone.

The State of Rhode Island and Providence Plantations to Virginia February 1799

Certain resolutions of the Legislature of Virginia, passed on the 21st of December last, being communicated to the Assembly,—

1. Resolved, That, in the opinion of this legislature, the second section of the 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;

2nd. 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 the strength of its own arm;

3rd. 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… .

New Hampshire Resolution on the Virginia and Kentucky Resolutions 15 June 1799

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.

Congressional Report Defending the Alien and Sedition Laws 21 February 1799

The committee to whom were referred the memorials of sundry inhabitants … , complaining of the act entitled “An act concerning aliens,” and other late acts of Congress, submit the following report:

It is the professed object of these petitions to solicit a repeal of two acts passed during the last session of Congress, the one “An act concerning aliens,” the other “An act in addition to an act for the punishment of certain crimes against the United States,” on the ground of their being unconstitutional, oppressive, and impolitic.

The committee cannot, however, forbear to notice that the principal measures hitherto adopted for repelling the aggressions and insults of France have not escaped animadversion.

Complaints are particularly directed against the laws providing for a navy; for augmenting the army; authorizing a provisional army and corps of volunteers; for laying a duty on stamped vellum, parchment, and paper; assessing and collecting direct taxes; and authorizing loans for the public service.

With these topics of complaint, in some of the petitions, are intermingled invectives against the policy of the government from an early period and insinuations derogatory to the character of the legislature and of the administration… .

The act concerning aliens and the act in addition to the act entitled an act for the punishment of certain crimes shall be first considered.

Their constitutionality is impeached. It is contended that Congress have no power to pass a law for removing aliens.

To this it is answered that the asylum given by a nation to foreigners is mere matter of favor, resumable at the public will. On this point abundant authorities might be adduced, but the common practice of nations attests the principle.

The right of removing aliens, as an incident to the power of war and peace, according to the theory of the Constitution, belongs to the government of the United States. By the fourth section of the fourth article of the Constitution, Congress is required to protect each state from invasion, and is vested by the eighth section of the fifth article with power to make all laws which shall be proper to carry into effect all powers vested by the Constitution in the government of the United States or in any department or officer thereof; and to remove from the country, in times of hostility, dangerous aliens, who may be employed in preparing the way for invasion, is a measure necessary for the purpose of preventing invasion and, of course, a measure that Congress is empowered to adopt… .

This law is said to violate that part of the Constitution which provides that the trial of all crimes, except in cases of impeachment, shall be by jury; whereas this act invests the President with power to send away aliens on his own suspicion, and thus to inflict punishment without trial by jury.

It is answered, in the first place, that the Constitution was made for citizens, not for aliens, who of consequence have no rights under it, but remain in the country and enjoy the benefit of the laws, not as matter of right, but merely as matter of favor and permission; which favor and permission may be withdrawn whenever the government charged with the general welfare shall judge their further continuance dangerous.

It is answered, in the second place, that the provisions in the Constitution relative to presentment and trial of offenses by juries, do not apply to the revocation of an asylum given to aliens. Those provisions solely respect crimes, and the alien may be removed without having committed any offense, merely from motives of policy or security. The citizen, being a member of society, has a right to remain in the country, of which he cannot be disfranchised, except for offenses first ascertained on presentment and trial by jury.

It is answered, thirdly, that the removal of aliens, though it may be inconvenient to them, cannot be considered as a punishment inflicted for an offense, but, as before remarked, merely the removal from motives of general safety of an indulgence which there is danger of their abusing, and which we are in no manner bound to grant or continue.

The “Act in addition to an act entitled an act for the punishment of certain crimes against the United States,” commonly called the “sedition act,” contains provisions of a two-fold nature: first, against seditious acts; and, second, against libelous and seditious writings. The first have never been complained of, nor has any objection been made to its validity. The objection applies solely to the second; and on the ground, in the first place, that Congress have no power by the Constitution to pass any act for punishing libels, no such power being expressly given; and all powers not given to Congress being reserved to the states, respectively, or the people thereof.

To this objection it is answered that a law to punish false, scandalous, and malicious writings against the government, with intent to stir up sedition, is a law necessary for carrying into effect the power vested by the Constitution in the government of the United States and in the departments and officers thereof, and, consequently, such a law as Congress may pass; because the direct tendency of such writings is to obstruct the acts of the government by exciting opposition to them, to endanger its existence, by rendering it odious and contemptible in the eyes of the people, and to produce seditious combinations against the laws, the power to punish which has never been questioned; because it would be manifestly absurd to suppose that a government might punish sedition and yet be void of power to prevent it by punishing those acts which plainly and necessarily lead to it; and because, under the general power to make all laws proper and necessary for carrying into effect the powers vested by the Constitution in the government of the United States, Congress has passed many laws for which no express provision can be found in the Constitution, and the constitutionality of which has never been questioned; such as the first section of the act now under consideration, for punishing seditious combinations; the act passed during the present session for punishing persons who, without authority from the government, shall carry on any correspondence relative to foreign affairs with any foreign government; the act for the punishment of certain crimes against the United States, which defines and punishes misprision of treason; the tenth and twelfth sections, which declare the punishment of accessories to piracy, and of persons who shall confederate to become pirates themselves, or to induce others to become so; the fifteenth section, which inflicts a penalty on those who steal or falsify the record of any court of the United States; the eighteenth and twenty-first sections, which provide for the punishment of persons committing perjury in any court of the United States, or attempting to bribe any of their judges; the twenty-second section, which punishes those who obstruct or resist the process of any court of the United States; and the twenty-third, against rescuing offenders who have been convicted of any capital offense before those courts; provisions, none of which are expressly authorized, but which have been considered as constitutional because they are necessary and proper for carrying into effect certain powers expressly given to Congress.

It is objected to this act, in the second place, that it is expressly contrary to that part of the Constitution which declares that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the liberty of the press.” The act in question is said to be an abridgment of the liberty of the press and therefore unconstitutional.

To this it is answered, in the first place, that the liberty of the press consists, not in a license for every man to publish what he pleases, without being liable to punishment if he should abuse this license to the injury of others, but in a permission to publish, without previous restraint, whatever he may think proper, being answerable to the public and individuals for any abuse of this permission to their prejudice; in like manner as the liberty of speech does not authorize a man to speak malicious slanders against his neighbor, nor the liberty of action justify him in going by violence into another man’s house, or in assaulting any person whom he may meet in the streets. In the several states the liberty of the press has always been understood in this manner, and no other; and the constitution of every state which has been framed and adopted since the Declaration of Independence asserts “the liberty of the press;” while in several, if not all, their laws provide for the punishment of libellous publications, which would be a manifest absurdity and contradiction if the liberty of the press meant to publish any and every thing without being amenable to the laws for the abuse of this license. According to this just, legal, and universally admitted definition of “the liberty of the press,” a law to restrain its licentiousness in publishing false, scandalous, and malicious libels against the government, cannot be considered as an “abridgment” of its “liberty.”

It is answered, in the second place, that the liberty of the press did never extend, according to the laws of any state, or of the United States, or of England, from whence our laws are derived, to the publication of false, scandalous, and malicious writings against the government, written or published with intent to do mischief, such publications being unlawful and punishable in every state; from whence it follows, undeniably, that a law to punish seditious and malicious publications is not an abridgment of the “liberty of the press”; for it would be a manifest absurdity to say that a man’s liberty was abridged by punishing him for doing that which he never had a liberty to do.

It is answered, thirdly, that the act in question cannot be unconstitutional because it makes nothing penal that was not penal before, and gives no new powers to the court, but is merely declaratory of the common law and useful for rendering that law more generally known and more easily understood. This cannot be denied if it be admitted, as it must be, that false, scandalous, and malicious libels against the government of the country, published with intent to do mischief, are punishable by the common law; for, by the second section of the third article of the Constitution, the judicial power of the United States is expressly extended to all offenses arising under the Constitution. By the Constitution, the government of the United States is established, for many important objects, as the government of the country; and libels against that government, therefore, are offenses arising under the Constitution, and consequently are punishable at common law by the courts of the United States. The act, indeed, is so far from having extended the law and the power of the court, that it has abridged both and has enlarged instead of abridging the “liberty of the press”; for, at common law, libels against the government might be punished with fine and imprisonment at the discretion of the court, whereas the act limits the fine to two thousand dollars and the imprisonment to two years; and it also allows the party accused to give the truth in evidence for his justification, which, by the common law, was expressly forbidden.

And lastly, it is answered that had the Constitution intended to prohibit Congress from legislating at all on the subject of the press, which is the construction whereon the objections to this law are founded, it would have used the same expressions as in that part of the clause which relates to religion and religious tests; whereas the words are wholly different: “Congress,” says the Constitution [First Amendment], “shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof or abridging the freedom of speech, or the press.” Here it is manifest that the Constitution intended to prohibit Congress from legislating at all on the subject of religious establishments, and the prohibition is made in the most express terms. Had the same intention prevailed respecting the press, the same expressions would have been used, and Congress would have been “prohibited from passing any law respecting the press.” They are not, however, “prohibited” from legislating at all on the subject, but merely from abridging the liberty of the press. It is evident they may legislate respecting the press, may pass laws for its regulation, and to punish those who pervert it into an engine of mischief, provided those laws do not “abridge” its “liberty.” Its liberty, according to the well-known and universally admitted definition, consists in permission to publish, without previous restraint upon the press, but subject to punishment afterwards for improper publications. A law, therefore, to impose previous restraint upon the press, and not one to inflict punishment on wicked and malicious publications, would be a law to abridge the liberty of the press, and, as such, unconstitutional.

The foregoing reasoning is submitted as vindicating the validity of the laws in question.

Although the committee believe that each of the measures adopted by Congress during the last session is susceptible of an analytical justification on the principles of the Constitution and national policy, yet they prefer to rest their vindication on the true ground of considering them as parts of a general system of defense, adapted to a crisis of extraordinary difficulty and danger.

It cannot be denied that the power to declare war, to raise and support armies, to provide and maintain a navy, to suppress insurrections, and repel invasions, and also the power to defray the necessary expense by loans or taxes, is vested in Congress. Unfortunately for the present generation of mankind, a contest has arisen and rages with unabated ferocity, which has desolated the fairest portions of Europe and shaken the fabric of society through the civilized world. From the nature and effects of this contest, as developed in the experience of nations, melancholy inferences must be drawn, that it is unsusceptible of the restraints which have either designated the objects, limited the duration, or mitigated the horrors of national contentions. In the internal history of France, and in the conduct of her forces and partisans in the countries which have fallen under her power, the public councils of our country were required to discern the dangers which threatened the United States, and to guard not only against the usual consequences of war, but also against the effects of an unprecedented combination to establish new principles of social action on the subversion of religion, morality, law, and government. Will it be said that the raising of a small army and an eventual provision for drawing into the public service a considerable proportion of the whole force of the country was, in such a crisis, unwise or improvident?

If such should be the assertion, let it be candidly considered whether some of our fertile and flourishing states did not, six months since, present as alluring objects for the gratification of ambition or cupidity as the inhospitable climate of Egypt. What then appeared to be the comparative difficulties between invading America and subverting the British power in the East Indies? If this was a professed, not real object of the enterprise, let it be asked if the Sultan of the Ottoman empire was not really the friend of France at the time when his unsuspecting dependencies were invaded; and whether the United States were not, at the same time, loaded with insults and assailed with hostility? If, however, it be asserted that the system of France is hostile only to despotic or monarchical governments, and that our security arises from the form of our Constitution, let Switzerland, first divided and disarmed by perfidious seductions, now agonized by relentless power, illustrate the consequences of similar credulity. Is it necessary at this time to vindicate the naval armament? Rather may not the inquiry be boldly made, whether the guardians of the public weal would not have deserved and received the reproaches of every patriotic American if a contemptible naval force had been longer permitted to intercept our necessary supplies, destroy our principal source of revenue, and seize, at the entrance of our harbors and rivers, the products of our industry destined to our foreign markets? If such injuries were at all to be repelled, is not the restriction which confined captures by our ships solely to armed vessels of France a sufficient proof of our moderation?

If, therefore, naval and military preparations were necessary, a provision of funds to defray the consequent expenses was of course indispensable; a review of all the measures that have been adopted since the establishment of the government will prove that Congress have not been unmindful of the wishes of the American people to avoid an accumulation of the public debt; and the success which has attended these measures affords conclusive evidence of the sincerity of their intentions. But to purchase sufficient quantities of military supplies to establish a navy and provide for all the contingencies of an army without recourse to new taxes and loans, was impracticable; both measures were, in fact, adopted. In devising a mode of taxation, the convenience and ease of the least wealthy class of the people were consulted as much as possible; and, although the expenses of assessment have furnished a topic of complaint, it is found that the allowances are barely sufficient to ensure the execution of the law, even aided as they are by the disinterested and patriotic exertions of worthy citizens; besides, it ought to be remembered that the expenses of organizing a new system should not, on any principle, be regarded as a permanent burden on the public.

In authorizing a loan of money, Congress have not been inattentive to prevent a permanent debt; in this particular, also, the public opinion and interest have been consulted. On considering the law, as well as the manner in which it is proposed to be carried into execution, the committee are well satisfied in finding any excess in the immediate charge upon the revenue is likely to be compensated by the facility of redemption which is secured to the government.

The alien and sedition acts, so called, form a part, and in the opinion of the committee an essential part, in these precautionary and protective measures adopted for our security.

France appears to have an organized system of conduct towards foreign nations to bring them within the sphere and under the dominion of her influence and control. It has been unremittingly pursued under all the changes of her internal polity. Her means are in wonderful coincidence with her ends: among these, and not least successful, is the direction and employment of the active and versatile talents of her citizens abroad as emissaries and spies. With a numerous body of French citizens and other foreigners, and admonished by the passing scenes in other countries as well as by aspects in our own, knowing they had the power, and believing it to be their duty, Congress passed the law respecting aliens, directing the dangerous and suspected to be removed and leaving to the inoffensive and peaceable a safe asylum.

The principles of the sedition law, so called, are among the most ancient principles of our governments. They have been engrafted into statutes, or practiced upon as maxims of the common law, according as occasion required. They were often and justly applied in the revolutionary war. Is it not strange that now they should first be denounced as oppressive, when they have long been recognized in the jurisprudence of these States?

The necessity that dictated these acts, in the opinion of the committee, still exists.

So eccentric are the movements of the French government that we can form no opinion of their future designs towards our country. They may recede from the tone of menace and insolence to employ the arts of seduction, before they astonish us with their ultimate designs. Our safety consists in the wisdom of the public councils, a cooperation, on the part of the people with the government, by supporting the measures provided for repelling aggressions, and an obedience to the social laws.

After a particular and general review of the whole subject referred to their consideration, the committee see no ground for rescinding these acts of the legislature. The complaints preferred by some of the petitioners may be fairly attributed to a diversity of sentiment naturally to be expected among a people of various habits and education, widely dispersed over an extensive country; the innocent misconceptions of the American people will, however, yield to reflection and argument, and from them no danger is to be apprehended.

In such of the petitions as are conceived in a style of vehement and acrimonious remonstrance, the committee perceive too plain indications of the principles of that exotic system which convulses the civilized world. With this system, however organized, the public councils cannot safely parley or temporize, whether it assumes the guise of patriotism to mislead the affections of the people; whether it be employed in forming projects of local and eccentric ambition, or shall appear in the more generous form of open hostility, it ought to be regarded as the bane of public as well as private tranquillity and order.

Those to whom the management of public affairs is now confided cannot be justified in yielding any established principles of law or government to the suggestions of modern theory; their duty requires them to respect the lessons of experience and transmit to posterity the civil and religious privileges which are the birthright of our country, and which it was the great object of our happy Constitution to secure and perpetuate.

Impressed with these sentiments, the committee beg leave to report the following resolutions:

Resolved, that it is inexpedient to repeal the act passed the last session, entitled “An act concerning aliens.”

Resolved, That it is inexpedient to repeal the act passed the last session, entitled “An act in addition to the act entitled lsquo;An act for the punishment of certain crimes against the United States.’”

Resolved, That it is inexpedient to repeal any of the laws respecting the navy, military establishment, or revenue of the United States.

james madison The Report of 1800

Although he had retired from national office in 1797, Madison stood for reelection to the Virginia House of Delegates in 1799 in order to defend the resolutions of 1798 against the criticisms of the other states. His Report of 1800, dated 7 January, is lengthy, but it is also one of the most important documents of the 1790s. It not only refined the doctrines of 1798, it would also prove a classic defense of First Amendment freedoms.

Whatever room might be found in the proceedings of some of the states who have disapproved of the resolutions of the General Assembly of this commonwealth, passed on the 21st day of December, 1798, for painful remarks on the spirit and manner of those proceedings, it appears to the committee most consistent with the duty as well as dignity of the General Assembly to hasten an oblivion of every circumstance which might be construed into a diminution of mutual respect, confidence, and affection among the members of the union.

The committee have deemed it a more useful task to revise with a critical eye the resolutions which have met with this disapprobation; to examine fully the several objections and arguments which have appeared against them; and to inquire, whether there be any errors of fact, of principle, or of reasoning which the candor of the General Assembly ought to acknowledge and correct… .

The third resolution is in the words following:

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.

On this resolution, the committee have bestowed all the attention which its importance merits: They have scanned it not merely with a strict, but with a severe eye; and they feel confidence in pronouncing that in its just and fair construction, it is unexceptionably true in its several positions, as well as constitutional and conclusive in its inferences.

The resolution declares, first, that “it views the powers of the Federal Government as resulting from the compact to which the states are parties,” in other words, that the federal powers are derived from the Constitution, and that the Constitution is a compact to which the states are parties… .

… The committee satisfy themselves here with briefly remarking that in all the co-temporary discussions and comments which the Constitution underwent, it was constantly justified and recommended on the ground that the powers not given to the government were withheld from it; and that if any doubt could have existed on this subject, under the original text of the Constitution, it is removed as far as words could remove it by the [tenth] amendment, now a part of the Constitution, which expressly declares “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.”

The other position involved in this branch of the resolution, namely, “that the states are parties to the Constitution or compact,” is in the judgment of the committee equally free from objection. It is indeed true that the term “States” is sometimes used in a vague sense, and sometimes in different senses, according to the subject to which it is applied. Thus it sometimes means the separate sections of territory occupied by the political societies within each; sometimes the particular governments established by those societies; sometimes those societies as organized into those particular governments; and lastly, it means the people composing those political societies in their highest sovereign capacity. Although it might be wished that the perfection of language admitted less diversity in the signification of the same words, yet little inconveniency is produced by it where the true sense can be collected with certainty from the different applications. In the present instance, whatever different constructions of the term “States” in the resolution may have been entertained, all will at least concur in that last mentioned; because in that sense the Constitution was submitted to the “States”: In that sense the “States” ratified it; and in that sense of the term “States,” they are consequently parties to the pact from which the powers of the Federal Government result.

The next position is that the General Assembly views the powers of the Federal Government “as limited by the plain sense and intention of the instrument constituting that compact,” and “as no farther valid than they are authorized by the grants therein enumerated.” It does not seem possible that any just objection can lie against either of these clauses. The first amounts merely to a declaration that the compact ought to have the interpretation plainly intended by the parties to it; the other, to a declaration that it ought to have the execution and effect intended by them. If the powers granted be valid, it is solely because they are granted; and if the granted powers are valid because granted, all other powers not granted must not be valid.

The resolution, having taken this view of the federal compact, proceeds to infer “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.”

It appears to your committee to be a plain principle, founded in common sense, illustrated by common practice, and essential to the nature of compacts, that where resort can be had to no tribunal superior to the authority of the parties, the parties themselves must be the rightful judges in the last resort whether the bargain made has been pursued or violated. The Constitution of the United States was formed by the sanction of the states, given by each in its sovereign capacity. It adds to the stability and dignity as well as to the authority of the Constitution that it rests on this legitimate and solid foundation. The states then being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity that there can be no tribunal above their authority to decide in the last resort whether the compact made by them be violated; and consequently that as the parties to it, they must themselves decide in the last resort such questions as may be of sufficient magnitude to require their interposition.

It does not follow, however, that because the states as sovereign parties to their constitutional compact must ultimately decide whether it has been violated, that such a decision ought to be interposed either in a hasty manner or on doubtful and inferior occasions. Even in the case of ordinary conventions between different nations, where, by the strict rule of interpretation, a breach of a part may be deemed a breach of the whole, every part being deemed a condition of every other part and of the whole, it is always laid down that the breach must be both wilful and material to justify an application of the rule. But in the case of an intimate and constitutional union, like that of the United States, it is evident that the interposition of the parties in their sovereign capacity can be called for by occasions only deeply and essentially affecting the vital principles of their political system.

The resolution has accordingly guarded against any misapprehension of its object by expressly requiring for such as interposition “the case of a deliberate,palpable and dangerous breach of the Constitution, by the exercise of powers not granted by it.” It must be a case, not of a light and transient nature, but of a nature dangerous to the great purposes for which the Constitution was established. It must be a case, moreover, not obscure or doubtful in its construction, but plain and palpable. Lastly, it must be a case not resulting from a partial consideration or hasty determination, but a case stamped with a final consideration and deliberate adherence. It is not necessary, because the resolution does not require, that the question should be discussed how far the exercise of any particular power ungranted by the Constitution would justify the interposition of the parties to it. As cases might easily be stated which none would contend ought to fall within that description, cases, on the other hand, might, with equal ease, be stated, so flagrant and so fatal as to unite every opinion in placing them within the description.

But the resolution has done more than guard against misconstruction by expressly referring to cases of a deliberate,palpable, and dangerous nature. It specifies the object of the interposition which it contemplates to be solely that of arresting the progress of the evil of usurpation and of maintaining the authorities, rights and liberties appertaining to the states, as parties to the Constitution.

From this view of the resolution, it would seem inconceivable that it can incur any just disapprobation from those who, laying aside all momentary impressions and recollecting the genuine source and object of the federal constitution, shall candidly and accurately interpret the meaning of the General Assembly. If the deliberate exercise of dangerous powers, palpably withheld by the Constitution, could not justify the parties to it in interposing even so far as to arrest the progress of the evil, and thereby to preserve the Constitution itself as well as to provide for the safety of the parties to it, there would be an end to all relief from usurped power, and a direct subversion of the rights specified or recognized under all the state constitutions, as well as a plain denial of the fundamental principle on which our independence itself was declared.

But it is objected that the judicial authority is to be regarded as the sole expositor of the Constitution in the last resort; and it may be asked for what reason the declaration by the General Assembly, supposing it to be theoretically true, could be required at the present day and in so solemn a manner.

On this objection it might be observed, first, that there may be instances of usurped power which the forms of the Constitution would never draw within the control of the judicial department; secondly, that if the decision of the judiciary be raised above the authority of the sovereign parties to the Constitution, the decisions of the other departments, not carried by the forms of the Constitution before the judiciary, must be equally authoritative and final with the decisions of that department. But the proper answer to the objection is, that the resolution of the General Assembly relates to those great and extraordinary cases in which all the forms of the Constitution may prove ineffectual against infractions dangerous to the essential rights of the parties to it. The resolution supposes that dangerous powers not delegated may not only be usurped and executed by the other departments, but that the judicial department also may exercise or sanction dangerous powers beyond the grant of the Constitution; and consequently that the ultimate right of the parties to the Constitution to judge whether the compact has been dangerously violated must extend to violations by one delegated authority as well as by another, by the judiciary as well as by the executive or the legislature.

However true therefore it may be that the judicial department is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties to the constitutional compact, from which the judicial as well as the other departments hold their delegated trusts. On any other hypothesis, the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers might subvert forever, and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve.

The truth declared in the resolution being established, the expediency of making the declaration at the present day may safely be left to the temperate consideration and candid judgment of the American public. It will be remembered that a frequent recurrence to fundamental principles is solemnly enjoined by most of the state constitutions, and particularly by our own, as a necessary safeguard against the danger of degeneracy to which republics are liable, as well as other governments, though in a less degree than others. And a fair comparison of the political doctrines not unfrequent at the present day with those which characterized the epoch of our Revolution, and which form the basis of our republican constitutions, will best determine whether the declaratory recurrence here made to those principles ought to be viewed as unseasonable and improper or as a vigilant discharge of an important duty. The authority of constitutions over governments, and of the sovereignty of the people over constitutions, are truths which are at all times necessary to be kept in mind; and at no time perhaps more necessary than at the present.

The fourth resolution stands as follows:—

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.

The first question to be considered is whether a spirit has in sundry instances been manifested by the Federal Government to enlarge its powers by forced constructions of the constitutional charter.

The General Assembly having declared their opinion merely by regreting in general terms that forced constructions for enlarging the federal powers have taken place, it does not appear to the committee necessary to go into a specification of every instance to which the resolution may allude. The Alien and Sedition Acts being particularly named in a succeeding resolution are of course to be understood as included in the allusion. Omitting others which have less occupied public attention, or been less extensively regarded as unconstitutional, the resolution may be presumed to refer particularly to the bank law, which from the circumstances of its passage as well as the latitude of construction on which it is founded, strikes the attention with singular force; and the carriage tax, distinguished also by circumstances in its history having a similar tendency. Those instances alone, if resulting from forced construction and calculated to enlarge the powers of the Federal Government, as the committee cannot but conceive to be the case, sufficiently warrant this part of the resolution. The committee have not thought it incumbent on them to extend their attention to laws which have been objected to rather as varying the constitutional distribution of powers in the Federal Government than as an absolute enlargement of them; because instances of this sort, however important in their principles and tendencies, do not appear to fall strictly within the text under review.

The other questions presenting themselves are— 1. Whether indications have appeared of a design to expound certain general phrases copied from the “Articles of Confederation” so as to destroy the effect of the particular enumeration explaining and limiting their meaning. 2. Whether this exposition would by degrees consolidate the states into one sovereignty. 3. Whether the tendency and result of this consolidation would be to transform the republican system of the United States into a monarchy.

1. The general phrases here meant must be those “of providing for the common defense and general welfare.”

In the “Articles of Confederation,” the phrases are used as follows, in article VIII. “All charges of war, and all other expenses that shall be incurred for the common defense and general welfare, and allowed by the United States in Congress assembled, shall be defrayed out of a common treasury.”…

In the existing Constitution, they make the following part of section 8. “The Congress shall have power, to lay and collect taxes, duties, imposts and excises to pay the debts, and provide for the common defense and general welfare of the United States.”

This similarity in the use of these phrases in the two great federal charters might well be considered as rendering their meaning less liable to be misconstrued in the latter; because it will scarcely be said that in the former they were ever understood to be either a general grant of power or to authorize the requisition or application of money by the old Congress to the common defense and general welfare except in the cases afterwards enumerated which explained and limited their meaning; and if such was the limited meaning attached to these phrases in the very instrument revised and remodelled by the present Constitution, it can never be supposed that when copied into this Constitution, a different meaning ought to be attached to them.

That notwithstanding this remarkable security against misconstruction, a design has been indicated to expound these phrases in the Constitution so as to destroy the effect of the particular enumeration of powers by which it explains and limits them, must have fallen under the observation of those who have attended to the course of public transactions. Not to multiply proofs on this subject, it will suffice to refer to the debates of the federal legislature in which arguments have on different occasions been drawn with apparent effect from these phrases in their indefinite meaning.

To these indications might be added, without looking farther, the official report on manufactures by the late Secretary of the Treasury, made on the 5th of December, 1791; and the report of a committee of Congress in January 1797 on the promotion of agriculture. In the first of these it is expressly contended to belong “to the discretion of the national legislature to pronounce upon the objects which concern the general welfare and for which, under that description, an appropriation of money is requisite and proper. And there seems to be no room for a doubt that whatever concerns the general interests of learning, of agriculture, of manufactures, and of commerce are within the sphere of the national councils, as far as regards an application of money.” The latter report assumes the same latitude of power in the national councils and applies it to the encouragement of agriculture, by means of a society to be established at the seat of government. Although neither of these reports may have received the sanction of a law carrying it into effect, yet, on the other hand, the extraordinary doctrine contained in both has passed without the slightest positive mark of disapprobation from the authority to which it was addressed.

Now, whether the phrases in question be construed to authorize every measure relating to the common defense and general welfare, as contended by some, or every measure only in which there might be an application of money, as suggested by the caution of others, the effect must substantially be the same, in destroying the import and force of the particular enumeration of powers which follow these general phrases in the Constitution. For it is evident that there is not a single power whatever which may not have some reference to the common defense or the general welfare, nor a power of any magnitude which in its exercise does not involve or admit an application of money. The government therefore which possesses power in either one or other of these extents is a government without the limitations formed by a particular enumeration of powers; and consequently the meaning and effect of this particular enumeration is destroyed by the exposition given to these general phrases.

This conclusion will not be affected by an attempt to qualify the power over the “general welfare” by referring it to cases where the general welfare is beyond the reach of separate provisions by the individual states; and leaving to these their jurisdictions in cases to which their separate provisions may be competent. For as the authority of the individual states must in all cases be incompetent to general regulations operating through the whole, the authority of the United States would be extended to every object relating to the general welfare which might by any possibility be provided for by the general authority. This qualifying construction therefore would have little, if any, tendency to circumscribe the power claimed under the latitude of the terms “general welfare.”

The true and fair construction of this expression, both in the original and existing federal compacts, appears to the committee too obvious to be mistaken. In both, the Congress is authorized to provide money for the common defense and general welfare. In both is subjoined to this authority an enumeration of the cases to which their powers shall extend. Money cannot be applied to the general welfare otherwise than by an application of it to some particular measure conducive to the general welfare. Whenever, therefore, money has been raised by the general authority, and is to be applied to a particular measure, a question arises whether the particular measure be within the enumerated authorities vested in Congress. If it be, the money requisite for it may be applied to it; if it be not, no such application can be made. This fair and obvious interpretation coincides with, and is enforced by, the clause in the Constitution which declares that “no money shall be drawn from the treasury, but in consequence of appropriations by law.” An appropriation of money to the general welfare would be deemed rather a mockery than an observance of this constitutional injunction.

2. Whether the exposition of the general phrases here combated would not, by degrees, consolidate the states into one sovereignty, is a question concerning which the committee can perceive little room for difference of opinion. To consolidate the states into one sovereignty, nothing more can be wanted than to supercede their respective sovereignties in the cases reserved to them by extending the sovereignty of the United States to all cases of the “general welfare,” that is to say, to all cases whatever.

3. That the obvious tendency and inevitable result of a consolidation of the states into one sovereignty would be to transform the republican system of the United States into a monarchy is a point which seems to have been sufficiently decided by the general sentiment of America. In almost every instance of discussion relating to the consolidation in question, its certain tendency to pave the way to monarchy seems not to have been contested. The prospect of such a consolidation has formed the only topic of controversy. It would be unnecessary, therefore, for the committee to dwell long on the reasons which support the position of the General Assembly. It may not be improper however to remark two consequences evidently flowing from an extension of the federal powers to every subject falling within the idea of the “general welfare.”

One consequence must be to enlarge the sphere of discretion allotted to the executive magistrate. Even within the legislative limits properly defined by the Constitution, the difficulty of accommodating legal regulations to a country so great in extent, and so various in its circumstances, has been much felt; and has led to occasional investments of power in the executive which involve perhaps as large a portion of discretion as can be deemed consistent with the nature of the executive trust. In proportion as the objects of legislative care might be multiplied, would the time allowed for each be diminished, and the difficulty of providing uniform and particular regulations for all be increased. From these sources would necessarily ensue a greater latitude to the agency of that department which is always in existence, and which could best mold regulations of a general nature so as to suit them to the diversity of particular situations. And it is in this latitude, as a supplement to the deficiency of the laws, that the degree of executive prerogative materially consists.

The other consequence would be that of an excessive augmentation of the offices, honors, and emoluments depending on the executive will. Add to the present legitimate stock all those of every description which a consolidation of the states would take from them and turn over to the Federal Government, and the patronage of the executive would necessarily be as much swelled in this case as its prerogative would be in the other.

This disproportionate increase of prerogative and patronage must, evidently, either enable the chief magistrate of the union, by quiet means, to secure his reelection from time to time, and finally to regulate the succession as he might please; or, by giving so transcendent an importance to the office, would render the elections to it so violent and corrupt that the public voice itself might call for an hereditary in place of an elective succession. Whichever of these events might follow, the transformation of the republican system of the United States into a monarchy, anticipated by the General Assembly from a consolidation of the states into one sovereignty, would be equally accomplished; and whether it would be into a mixed or an absolute monarchy might depend on too many contingencies to admit of any certain foresight.

The resolution next in order is contained in the following terms:

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 a 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, but 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 leveled against that 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… .

All [the] principles of the only preventive justice known to American jurisprudence are violated by the Alien Act. The ground of suspicion is to be judged of, not by any judicial authority, but by the executive magistrate alone; no oath or affirmation is required; if the suspicion be held reasonable by the President, he may order the suspected alien to depart the territory of the United States without the opportunity of avoiding the sentence by finding pledges for his future good conduct; as the President may limit the time of departure as he pleases, the benefit of the writ of habeas corpus may be suspended with respect to the party, although the Constitution ordains that it shall not be suspended unless when the public safety may require it in case of rebellion or invasion, neither of which existed at the passage of the act: And the party being, under the sentence of the President, either removed from the United States, or being punished by imprisonment or disqualification ever to become a citizen on conviction of not obeying the order of removal, he cannot be discharged from the proceedings against him and restored to the benefits of his former situation, although the highest judicial authority should see the most sufficient cause for it… .

One argument offered in justification of this power exercised over aliens is that the admission of them into the country being of favor not of right, the favor is at all times revocable… .

But it cannot be a true inference that because the admission of an alien is a favor, the favor may be revoked at pleasure. A grant of land to an individual may be of favor not of right; but the moment the grant is made, the favor becomes a right, and must be forfeited before it can be taken away. To pardon a malefactor may be a favor, but the pardon is not, on that account, the less irrevocable. To admit an alien to naturalization is as much a favor as to admit him to reside in the country, yet it cannot be pretended that a person naturalized can be deprived of the benefit, any more than a native citizen can be disfranchised.

Again it is said that aliens not being parties to the Constitution, the rights and privileges which it secures cannot be at all claimed by them.

To this reasoning also, it might be answered that, although aliens are not parties to the Constitution, it does not follow that the Constitution has vested in Congress an absolute power over them. The parties to the Constitution may have granted, or retained, or modified the power over aliens without regard to that particular consideration.

But a more direct reply is that it does not follow, because aliens are not parties to the Constitution as citizens are parties to it, that whilst they actually conform to it, they have no right to its protection. Aliens are not more parties to the laws than they are parties to the Constitution; yet it will not be disputed that, as they owe on one hand a temporary obedience, they are entitled in return to their protection and advantage… .

The second object against which the resolution protests is the Sedition Act.

Of this act it is affirmed: 1. That it exercises in like manner a power not delegated by the Constitution. 2d. That the power, on the contrary, is expressly and positively forbidden by one of the amendments to the Constitution. 3d. That this is a power which more than any other ought to produce universal alarm because it is leveled against that right of freely examining public characters and measures, and of free communication thereon, which has ever been justly deemed the only effectual guardian of every other right.

I. That it exercises a power not delegated by the Constitution.

Here, again, it will be proper to recollect that the Federal Government being composed of powers specifically granted, with a reservation of all others to the states or to the people, the positive authority under which the Sedition Act could be passed must be produced by those who assert its constitutionality. In what part of the Constitution then is this authority to be found?

Several attempts have been made to answer this question, which will be examined in their order. The committee will begin with one which has filled them with equal astonishment and apprehension; and which, they cannot but persuade themselves, must have the same effect on all who will consider it with coolness and impartiality, and with a reverence for our Constitution in the true character in which it issued from the sovereign authority of the people. The committee refer to the doctrine lately advanced as a sanction to the Sedition Act: “that the common or unwritten law,” a law of vast extent and complexity, and embracing almost every possible subject of legislation, both civil and criminal, “makes a part of the law of these states, in their united and national capacity.” …

Prior to the Revolution, it is certain that the common law under different limitations made a part of the colonial codes. But whether it be understood that the original colonists brought the law with them or made it their law by adoption, it is equally certain that it was the separate law of each colony within its respective limits, and was unknown to them as a law pervading and operating through the whole, as one society.

It could not possibly be otherwise. The common law was not the same in any two of the colonies; in some, the modifications were materially and extensively different. There was no common legislature by which a common will could be expressed in the form of a law; nor any common magistracy by which such a law could be carried into practice. The will of each colony alone and separately had its organs for these purposes.

This stage of our political history furnishes no foothold for the patrons of this new doctrine.

Did, then, the principle or operation of the great event which made the colonies independent states imply or introduce the common law as a law of the union?

The fundamental principle of the revolution was that the colonies were co-ordinate members with each other, and with Great-Britain, of an Empire united by a common Executive Sovereign, but not united by any common Legislative Sovereign. The legislative power was maintained to be as complete in each American Parliament as in the British Parliament. And the royal prerogative was in force in each colony by virtue of its acknowledging the King for its executive magistrate, as it was in Great-Britain by virtue of a like acknowledgment there. A denial of these principles by Great-Britain, and the assertion of them by America, produced the revolution… .

Such being the ground of our revolution, no support nor color can be drawn from it for the doctrine that the common law is binding on these states as one society. The doctrine, on the contrary, is evidently repugnant to the fundamental principle of the revolution.

The Articles of Confederation are the next source of information on this subject.

In the interval between the commencement of the revolution and the final ratification of these Articles, the nature and extent of the union was determined by the circumstances of the crisis rather than by any accurate delineation of the general authority. It will not be alledged that the “common law” could have had any legitimate birth as a law of the United States during that state of things. If it came as such into existence at all, the charter of confederation must have been its parent.

Here again, however, its pretensions are absolutely destitute of foundation. This instrument does not contain a sentence or syllable that can be tortured into a countenance of the idea that the parties to it were with respect to the objects of the common law to form one community. No such law is named or implied, or alluded to, as being in force, or as brought into force by that compact. No provision is made by which such a law could be carried into operation; whilst on the other hand, every such inference or pretext is absolutely precluded by article 2d, which declares “that each state retains its sovereignty, freedom and independence, and every power, jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.” …

Is this exclusion revoked, and the common law introduced as a national law, by the present Constitution of the United States? This is the final question to be examined.

It is readily admitted that particular parts of the common law may have a sanction from the Constitution, so far as they are necessarily comprehended in the technical phrases which express the powers delegated to the government; and so far, also, as such other parts may be adopted as necessary and proper for carrying into execution the powers expressly delegated. But the question does not relate to either of these portions of the common law. It relates to the common law beyond these limitations.

The only part of the Constitution which seems to have been relied on in this case is the 2d sect. of art. III. “The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made or which shall be made under their authority.”

It has been asked what cases distinct from those arising under the laws and treaties of the United States can arise under the Constitution other than those arising under the common law; and it is inferred that the common law is accordingly adopted or recognized by the Constitution.

Never perhaps was so broad a construction applied to a text so clearly unsusceptible of it. … Rather than resort to a construction affecting so essentially the whole character of the government, it would perhaps be more rational to consider the expression as a mere pleonasm or inadvertence. But it is not necessary to decide on such a dilemma. The expression is fully satisfied, and its accuracy justified, by two descriptions of cases to which the judicial authority is extended, and neither of which implies that the common law is the law of the United States. One of these descriptions comprehends the cases growing out of the restrictions on the legislative power of the states. For example, it is provided that “no state shall emit bills of credit,” or “make any thing but gold and silver coin a tender in payment of debts.” Should this prohibition be violated, and a suit between citizens of the same state be the consequence, this would be a case arising under the Constitution before the judicial power of the United States. A second description comprehends suits between citizens and foreigners, or citizens of different states, to be decided according to the state or foreign laws; but submitted by the Constitution to the judicial power of the United States; the judicial power being, in several instances, extended beyond the legislative power of the United States… .

To this explanation of the text, the following observations may be added.

The expression, cases in law and equity, is manifestly confined to cases of a civil nature; and would exclude cases of criminal jurisdiction. Criminal cases in law and equity would be a language unknown to the law… .

It is further to be considered, that even if this part of the Constitution could be strained into an application to every common law case, criminal as well as civil, it could have no effect in justifying the Sedition Act; which is an exercise of legislative, and not of judicial power: and it is the judicial power only of which the extent is defined in this part of the Constitution… .

In aid of these objections, the difficulties and confusion inseparable from a constructive introduction of the common law would afford powerful reasons against it.

Is it to be the common law with or without the British statutes?

If without the statutory amendments, the vices of the code would be insupportable.

If with these amendments, what period is to be fixed for limiting the British authority over our laws?

Is it to be the date of the eldest or the youngest of the colonies?

Or are the dates to be thrown together and a medium deduced?

Or is our independence to be taken for the date?

Is, again, regard to be had to the various changes in the common law made by the local codes of America?

Is regard to be had to such changes, subsequent, as well as prior, to the establishment of the Constitution?

Is regard to be had to future as well as past changes?

Is law to be different in every state, as differently modified by its code; or are the modifications of any particular state to be applied to all?

And on the latter supposition, which among the state codes would form the standard?

Questions of this sort might be multiplied with as much ease as there would be difficulty in answering them.

The consequences flowing from the proposed construction furnish other objections equally conclusive… .

If it be understood that the common law is established by the Constitution, it follows that no part of the law can be altered by the legislature; such of the statutes already passed as may be repugnant thereto would be nullified, particularly the “Sedition Act” itself which boasts of being a melioration of the common law; and the whole code with all its incongruities, barbarisms, and bloody maxims would be inviolably saddled on the good people of the United States.

Should this consequence be rejected, and the common law be held, like other laws, liable to revision and alteration by the authority of Congress, it then follows that the authority of Congress is co-extensive with the objects of common law; that is to say, with every object of legislation: For to every such object does some branch or other of the common law extend. The authority of Congress would therefore be no longer under the limitations marked out in the Constitution. They would be authorized to legislate in all cases whatsoever… .

The consequence of admitting the common law as the law of the United States on the authority of the individual states is as obvious as it would be fatal. As this law relates to every subject of legislation, and would be paramount to the constitutions and laws of the states, the admission of it would overwhelm the residuary sovereignty of the states and by one constructive operation new model the whole political fabric of the country.

From the review thus taken of the situation of the American colonies prior to their independence; of the effect of this event on their situation; of the nature and import of the Articles of Confederation; of the true meaning of the passage in the existing Constitution from which the common law has been deduced; of the difficulties and uncertainties incident to the doctrine; and of its vast consequences in extending the powers of the Federal Government and in superceding the authorities of the state governments; the committee feel the utmost confidence in concluding that the common law never was, nor by any fair construction, ever can be, deemed a law for the American people as one community; and they indulge the strongest expectation that the same conclusion will finally be drawn by all candid and accurate inquirers into the subject. It is indeed distressing to reflect that it ever should have been made a question whether the Constitution, on the whole face of which is seen so much labor to enumerate and define the several objects of federal power, could intend to introduce in the lump, in an indirect manner, and by a forced construction of a few phrases, the vast and multifarious jurisdiction involved in the common law; a law filling so many ample volumes; a law overspreading the entire field of legislation; and a law that would sap the foundation of the Constitution as a system of limited and specified powers. A severer reproach could not in the opinion of the committee be thrown on the Constitution, on those who framed, or on those who established it, than such a supposition would throw on them.

The argument then drawn from the common law, on the ground of its being adopted or recognized by the Constitution, being inapplicable to the Sedition Act, the committee will proceed to examine the other arguments which have been founded on the Constitution.

They will waste but little time on the attempt to cover the act by the preamble to the Constitution; it being contrary to every acknowledged rule of construction to set up this part of an instrument in opposition to the plain meaning expressed in the body of the instrument. A preamble usually contains the general motives or reasons for the particular regulations or measures which follow it; and is always understood to be explained and limited by them. In the present instance, a contrary interpretation would have the inadmissible effect of rendering nugatory or improper every part of the Constitution which succeeds the preamble.

The paragraph in art. I, sect. 8, which contains the power to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare, having been already examined, will also require no particular attention in this place. It will have been seen that in its fair and consistent meaning, it cannot enlarge the enumerated powers vested in Congress.

The part of the Constitution which seems most to be recurred to in defense of the “Sedition Act,” is the last clause of the above section, empowering Congress “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 officer thereof.”

The plain import of this clause is that Congress shall have all the incidental or instrumental powers necessary and proper for carrying into execution all the express powers; whether they be vested in the government of the United States more collectively or in the several departments or officers thereof. It is not a grant of new powers to Congress, but merely a declaration, for the removal of all uncertainty, that the means of carrying into execution those otherwise granted are included in the grant.

Whenever, therefore, a question arises concerning the constitutionality of a particular power, the first question is whether the power be expressed in the Constitution. If it be, the question is decided. If it be not expressed, the next inquiry must be whether it is properly an incident to an express power, and necessary to its execution. If it be, it may be exercised by Congress. If it be not, Congress cannot exercise it.

Let the question be asked, then, whether the power over the press exercised in the “Sedition Act” be found among the powers expressly vested in the Congress? This is not pretended.

Is there any express power for executing which it is a necessary and proper power?

The power which has been selected, as least remote, in answer to this question, is that of “suppressing insurrections”; which is said to imply a power to prevent insurrections, by punishing whatever may lead or tend to them. But it surely cannot, with the least plausibility, be said that a regulation of the press and a punishment of libels are exercises of a power to suppress insurrections. The most that could be said would be that the punishment of libels, if it had the tendency ascribed to it, might prevent the occasion of passing or executing laws necessary and proper for the suppression of insurrections.

Has the Federal Government no power, then, to prevent as well as to punish resistance to the laws?

They have the power which the Constitution deemed most proper in their hands for the purpose. The Congress has power, before it happens, to pass laws for punishing it; and the Executive and Judiciary have power to enforce those laws when it does happen.

It must be recollected by many, and could be shown to the satisfaction of all, that the construction here put on the terms “necessary and proper” is precisely the construction which prevailed during the discussions and ratifications of the Constitution. It may be added, and cannot too often be repeated, that it is a construction absolutely necessary to maintain their consistency with the peculiar character of the government, as possessed of particular and defined powers only; not of the general and indefinite powers vested in ordinary governments. For if the power to suppress insurrections includes a power to punish libels; or if the power to punish includes a power to prevent, by all means that may have that tendency; such is the relation and influence among the most remote subjects of legislation that a power over a very few would carry with it a power over all. And it must be wholly immaterial whether unlimited powers be exercised under the name of unlimited powers or be exercised under the name of unlimited means of carrying into execution limited powers.

This branch of the subject will be closed with a reflection which must have weight with all; but more especially with those who place peculiar reliance on the judicial exposition of the Constitution as the bulwark provided against undue extensions of the legislative power. If it be understood that the powers implied in the specified powers have an immediate and appropriate relation to them, as means necessary and proper for carrying them into execution, questions on the constitutionality of laws passed for this purpose will be of a nature sufficiently precise and determinate for judicial cognizance and control. If, on the other hand, Congress are not limited in the choice of means by any such appropriate relation of them to the specified powers; but may employ all such means as they may deem fitted to prevent as well as to punish crimes subjected to their authority; such as may have a tendency only to promote an object for which they are authorized to provide; every one must perceive that questions relating to means of this sort must be questions of mere policy and expediency; on which legislative discretion alone can decide, and from which the judicial interposition and control are completely excluded.

II. The next point which the resolution requires to be proved is that the power over the press exercised by the Sedition Act is positively forbidden by one of the amendments to the Constitution.

The amendment stands in these words—“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

In the attempts to vindicate the “Sedition Act” it has been contended, 1. That the “freedom of the press” is to be determined by the meaning of these terms in the common law. 2. That the article supposes the power over the press to be in Congress, and prohibits them only from abridging the freedom allowed to it by the common law.

Although it will be shown, in examining the second of these positions, that the amendment is a denial to Congress of all power over the press; it may not be useless to make the following observations on the first of them… .

The freedom of the press under the common law is, in the defenses of the Sedition Act, made to consist in an exemption from all previous restraint on printed publications, by persons authorized to inspect and prohibit them. It appears to the committee that this idea of the freedom of the press can never be admitted to be the American idea of it: since a law inflicting penalties on printed publications would have a similar effect with a law authorizing a previous restraint on them. It would seem a mockery to say that no law should be passed preventing publications from being made, but that laws might be passed for punishing them in case they should be made.

The essential difference between the British government and the American constitutions will place this subject in the clearest light.

In the British government, the danger of encroachments on the rights of the people is understood to be confined to the executive magistrate. The representatives of the people in the legislature are not only exempt themselves from distrust, but are considered as sufficient guardians of the rights of their constituents against the danger from the executive. Hence it is a principle that the parliament is unlimited in its power; or in their own language, is omnipotent. Hence, too, all the ramparts for protecting the rights of the people, such as their magna charta, their bill of rights, etc. are not reared against the parliament, but against the royal prerogative. They are merely legislative precautions against executive usurpations. Under such a government as this, an exemption of the press from previous restraint by licensers appointed by the king is all the freedom that can be secured to it.

In the United States, the case is altogether different. The people, not the government, possess the absolute sovereignty. The legislature, no less than the executive, is under limitations of power. Encroachments are regarded as possible from the one as well as from the other. Hence in the United States, the great and essential rights of the people are secured against legislative as well as against executive ambition. They are secured, not by laws paramount to prerogative; but by constitutions paramount to laws. This security of the freedom of the press requires that it should be exempt, not only from previous restraint by the executive, as in Great Britain; but from legislative restraint also; and this exemption, to be effectual, must be an exemption, not only from the previous inspection of licensers, but from the subsequent penalty of laws.

The state of the press, therefore, under the common law, cannot in this point of view, be the standard of its freedom in the United States.

But there is another view under which it may be necessary to consider this subject. It may be alledged that although the security for the freedom of the press be different in Great Britain and in this country; being a legal security only in the former, and a constitutional security in the latter; and although there may be a further difference in an extension of the freedom of the press, here, beyond an exemption from previous restraint to an exemption from subsequent penalties also; yet that the actual legal freedom of the press, under the common law, must determine the degree of freedom which is meant by the terms and which is constitutionally secured against both previous and subsequent restraints.

The committee are not unaware of the difficulty of all general questions which may turn on the proper boundary between the liberty and licentiousness of the press. They will leave it therefore for consideration only how far the difference between the nature of the British government and the nature of the American governments, and the practice under the latter, may show the degree of rigor in the former to be inapplicable to, and not obligatory in, the latter.

The nature of governments elective, limited, and responsible in all their branches may well be supposed to require a greater freedom of animadversion than might be tolerated by the genius of such a government as that of Great Britain. In the latter, it is a maxim that the king, a hereditary, not a responsible magistrate, can do no wrong; and that the legislature, which in two-thirds of its composition is also hereditary, not responsible, can do what it pleases. In the United States, the executive magistrates are not held to be infallible, nor the legislatures to be omnipotent; and both being elective, are both responsible. Is it not natural and necessary under such different circumstances that a different degree of freedom in the use of the press should be contemplated?

Is not such an inference favored by what is observable in Great Britain itself? Notwithstanding the general doctrine of the common law on the subject of the press, and the occasional punishment of those who use it with a freedom offensive to the government; it is well known that with respect to the responsible members of the government, where the reasons operating here become applicable there; the freedom exercised by the press, and protected by the public opinion, far exceeds the limits prescribed by the ordinary rules of law. The ministry, who are responsible to impeachment, are at all times animadverted on by the press, with peculiar freedom; and during the elections for the House of Commons, the other responsible part of the government, the press is employed with as little reserve towards the candidates.

The practice in America must be entitled to much more respect. In every state, probably, in the union, the press has exerted a freedom in canvassing the merits and measures of public men, of every description, which has not been confined to the strict limits of the common law. On this footing, the freedom of the press has stood; on this footing it yet stands. And it will not be a breach either of truth or of candor to say that no persons or presses are in the habit of more unrestrained animadversions on the proceedings and functionaries of the state governments than the persons and presses most zealous in vindicating the act of Congress for punishing similar animadversions on the government of the United States.

The last remark will not be understood as claiming for the state governments an immunity greater than they have heretofore enjoyed. Some degree of abuse is inseparable from the proper use of every thing; and in no instance is this more true than in that of the press. It has accordingly been decided by the practice of the states that it is better to leave a few of its noxious branches to their luxuriant growth than, by pruning them away, to injure the vigor of those yielding the proper fruits. And can the wisdom of this policy be doubted by any who reflect that to the press alone, checkered as it is with abuses, the world is indebted for all the triumphs which have been gained by reason and humanity over error and oppression; who reflect that to the same beneficent source, the United States owe much of the lights which conducted them to the rank of a free and independent nation; and which have improved their political system into a shape so auspicious to their happiness. Had “Sedition Acts,” forbidding every publication that might bring the constituted agents into contempt or disrepute, or that might excite the hatred of the people against the authors of unjust or pernicious measures, been uniformly enforced against the press; might not the United States have been languishing at this day under the infirmities of a sick confederation? Might they not possibly be miserable colonies, groaning under a foreign yoke?

To these observations one fact will be added which demonstrates that the common law cannot be admitted as the universal expositor of American terms which may be the same with those contained in that law. The freedom of conscience and of religion are found in the same instruments which assert the freedom of the press. It will never be admitted that the meaning of the former, in the common law of England, is to limit their meaning in the United States.

Whatever weight may be allowed to these considerations, the committee do not, however, by any means, intend to rest the question on them. They contend that the article of amendment, instead of supposing in Congress a power that might be exercised over the press, provided its freedom be not abridged, was meant as a positive denial to Congress of any power whatever on the subject.

To demonstrate that this was the true object of the article, it will be sufficient to recall the circumstances which led to it, and to refer to the explanation accompanying the article.

When the Constitution was under the discussions which preceded its ratification, it is well known that great apprehensions were expressed by many lest the omission of some positive exception from the powers delegated of certain rights, and of the freedom of the press particularly, might expose them to the danger of being drawn by construction within some of the powers vested in Congress; more especially of the power to make all laws necessary and proper for carrying their other powers into execution. In reply to this objection, it was invariably urged to be a fundamental and characteristic principle of the Constitution; that all powers not given by it were reserved; that no powers were given beyond those enumerated in the Constitution and such as were fairly incident to them; that the power over the rights in question, and particularly over the press, was neither among the enumerated powers nor incident to any of them; and consequently that an exercise of any such power would be a manifest usurpation. It is painful to remark how much the arguments now employed in behalf of the Sedition Act are at variance with the reasoning which then justified the Constitution, and invited its ratification.

From this posture of the subject resulted the interesting question in so many of the conventions whether the doubts and dangers ascribed to the Constitution should be removed by any amendments previous to the ratification, or be postponed, in confidence that as far as they might be proper, they would be introduced in the form provided by the Constitution. The latter course was adopted; and in most of the states, the ratifications were followed by propositions and instructions for rendering the Constitution more explicit and more safe to the rights not meant to be delegated by it. Among those rights, the freedom of the press, in most instances, is particularly and emphatically mentioned. The firm and very pointed manner in which it is asserted in the proceedings of the convention of this state will be hereafter seen.

In pursuance of the wishes thus expressed, the first Congress that assembled under the Constitution proposed certain amendments which have since, by the necessary ratifications, been made a part of it; among which amendments is the article containing, among other prohibitions on the Congress, an express declaration that they should make no law abridging the freedom of the press.

Without tracing farther the evidence on this subject, it would seem scarcely possible to doubt that no power whatever over the press was supposed to be delegated by the Constitution as it originally stood; and that the amendment was intended as a positive and absolute reservation of it.

But the evidence is still stronger. The proposition of amendments made by Congress is introduced in the following terms: “The Conventions of a number of the states having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstructions or abuse of its powers, that further declaratory and restrictive clauses should be added; and as extending the ground of public confidence in the government, will best ensure the beneficent ends of its institution.”

Here is the most satisfactory and authentic proof that the several amendments proposed were to be considered as either declaratory or restrictive; and whether the one or the other, as corresponding with the desire expressed by a number of the states, and as extending the ground of public confidence in the government.

Under any other construction of the amendment relating to the press than that it declared the press to be wholly exempt from the power of Congress, the amendment could neither be said to correspond with the desire expressed by a number of the states, nor be calculated to extend the ground of public confidence in the government.

Nay more; the construction employed to justify the “Sedition Act” would exhibit a phenomenon without a parallel in the political world. It would exhibit a number of respectable states as denying first that any power over the press was delegated by the Constitution; as proposing next, that an amendment to it should explicitly declare that no such power was delegated; and finally, as concurring in an amendment actually recognizing or delegating such a power.

Is then the Federal Government, it will be asked, destitute of every authority for restraining the licentiousness of the press, and for shielding itself against the libellous attacks which may be made on those who administer it?

The Constitution alone can answer this question. If no such power be expressly delegated, and it be not both necessary and proper to carry into execution an express power; above all, if it be expressly forbidden by a declaratory amendment to the Constitution, the answer must be that the Federal Government is destitute of all such authority.

And might it not be asked in turn, whether it is not more probable, under all the circumstances which have been reviewed, that the authority should be withheld by the Constitution than that it should be left to a vague and violent construction: whilst so much pains were bestowed in enumerating other powers, and so many less important powers are included in the enumeration.

Might it not be likewise asked, whether the anxious circumspection which dictated so many peculiar limitations on the general authority would be unlikely to exempt the press altogether from that authority? The peculiar magnitude of some of the powers necessarily committed to the Federal Government; the peculiar duration required for the functions of some of its departments; the peculiar distance of the seat of its proceedings from the great body of its constituents; and the peculiar difficulty of circulating an adequate knowledge of them through any other channel; will not these considerations, some or other of which produced other exceptions from the powers of ordinary governments, all together, account for the policy of binding the hand of the Federal Government from touching the channel which alone can give efficacy to its responsibility to its constituents; and of leaving those who administer it to a remedy for injured reputations under the same laws and in the same tribunals which protect their lives, their liberties, and their properties.

But the question does not turn either on the wisdom of the Constitution or on the policy which gave rise to its particular organization. It turns on the actual meaning of the instrument; by which it has appeared that a power over the press is clearly excluded from the number of powers delegated to the Federal Government.

III. And in the opinion of the committee well may it be said, as the resolution concludes with saying, that the unconstitutional power exercised over the press by the “Sedition Act” ought “more than any other, to produce universal alarm; because it is leveled against that 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.”

Without scrutinizing minutely into all the provisions of the “Sedition Act” it will be sufficient to cite so much of section 2. as follows: “And be it further enacted, that if any person shall write, print, utter or publish, or shall cause or procure to be written, printed, uttered or published, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous, and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with an intent to defame the said government, or either house of the said Congress, or the President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either, or any of them, the hatred of the good people of the United States, etc. then such person being thereof convicted before any court of the United States, having jurisdiction thereof, shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.”

On this part of the act the following observations present themselves.

1. The Constitution supposes that the President, the Congress, and each of its houses, may not discharge their trusts, either from defect of judgment or other causes. Hence, they are all made responsible to their constituents at the returning periods of election; and the President, who is singly entrusted with very great powers, is, as a further guard, subjected to an intermediate impeachment.

2. Should it happen, as the Constitution supposes it may happen, that either of these branches of the government may not have duly discharged its trust; it is natural and proper that, according to the cause and degree of their faults, they should be brought into contempt or disrepute, and incur the hatred of the people.

3. Whether it has, in any case, happened that the proceedings of either or all of those branches evinces such a violation of duty as to justify a contempt, a disrepute or hatred among the people, can only be determined by a free examination thereof, and a free communication among the people thereon.

4. Whenever it may have actually happened that proceedings of this sort are chargeable on all or either of the branches of the government, it is the duty as well as right of intelligent and faithful citizens to discuss and promulge them freely, as well to control them by the censorship of the public opinion as to promote a remedy according to the rules of the Constitution. And it cannot be avoided that those who are to apply the remedy must feel, in some degree, a contempt or hatred against the transgressing party.

5. As the act was passed on July 14, 1798, and is to be in force until March 3, 1801, it was of course that during its continuance, two elections of the entire House of Representatives, an election of a part of the Senate, and an election of a President were to take place.

6. That consequently, during all these elections, intended by the Constitution to preserve the purity or to purge the faults of the administration, the great remedial rights of the people were to be exercised, and the responsibility of their public agents to be screened, under the penalties of this act.

May it not be asked of every intelligent friend to the liberties of his country whether, the power exercised in such an act as this ought not to produce great and universal alarm? Whether a rigid execution of such an act, in time past, would not have repressed that information and communication among the people which is indispensable to the just exercise of their electoral rights? And whether such an act, if made perpetual and enforced with rigor, would not, in time to come, either destroy our free system of government or prepare a convulsion that might prove equally fatal to it.

In answer to such questions, it has been pleaded that the writings and publications forbidden by the act are those only which are false and malicious, and intended to defame; and merit is claimed for the privilege allowed to authors to justify, by proving the truth of their publications, and for the limitations to which the sentence of fine and imprisonment is subjected.

To those who concurred in the act under the extraordinary belief that the option lay between the passing of such an act and leaving in force the common law of libels, which punishes truth equally with falsehood, and submits the fine and imprisonment to the indefinite discretion of the court, the merit of good intentions ought surely not to be refused. A like merit may perhaps be due for the discontinuance of the corporal punishment which the common law also leaves to the discretion of the court. This merit of intention, however, would have been greater, if the several mitigations had not been limited to so short a period; and the apparent inconsistency would have been avoided between justifying the act at one time by contrasting it with the rigors of the common law otherwise in force; and at another time by appealing to the nature of the crisis as requiring the temporary rigor exerted by the act.

But whatever may have been the meritorious intentions of all or any who contributed to the Sedition Act; a very few reflections will prove that its baneful tendency is little diminished by the privilege of giving in evidence the truth of the matter contained in political writings.

In the first place, where simple and naked facts alone are in question, there is sufficient difficulty in some cases, and sufficient trouble and vexation in all, of meeting a prosecution from the government with the full and formal proof necessary in a court of law.

But in the next place, it must be obvious to the plainest minds that opinions, and inferences, and conjectural observations are not only in many cases inseparable from the facts, but may often be more the objects of the prosecution than the facts themselves; or may even be altogether abstracted from particular facts; and that opinions and inferences and conjectural observations cannot be subjects of that kind of proof which appertains to facts before a court of law.

Again, it is no less obvious that the intent to defame or bring into contempt or disrepute or hatred, which is made a condition of the offense created by the act, cannot prevent its pernicious influence on the freedom of the press. For omitting the inquiry how far the malice of the intent is an inference of the law from the mere publication, it is manifestly impossible to punish the intent to bring those who administer the government into disrepute or contempt without striking at the right of freely discussing public characters and measures: because those who engage in such discussions must expect and intend to excite these unfavorable sentiments so far as they may be thought to be deserved. To prohibit therefore the intent to excite those unfavorable sentiments against those who administer the government, is equivalent to a prohibition of the actual excitement of them; and to prohibit the actual excitement of them, is equivalent to a prohibition of discussions having that tendency and effect; which, again, is equivalent to a protection of those who administer the government if they should at any time deserve the contempt or hatred of the people against being exposed to it by free animadversions on their characters and conduct. Nor can there be a doubt, if those in public trust be shielded by penal laws from such strictures of the press as may expose them to contempt or disrepute or hatred, where they may deserve it, that in exact proportion as they may deserve to be exposed will be the certainty and criminality of the intent to expose them, and the vigilance of prosecuting and punishing it; nor a doubt that a government thus entrenched in penal statutes against the just and natural effects of a culpable administration will easily evade the responsibility which is essential to a faithful discharge of its duty.

Let it be recollected, lastly, that the right of electing the members of the government constitutes more particularly the essence of a free and responsible government. The value and efficacy of this right depends on the knowledge of the comparative merits and demerits of the candidates for public trust; and on the equal freedom, consequently, of examining and discussing these merits and demerits of the candidates respectively. It has been seen that a number of important elections will take place whilst the act is in force; although it should not be continued beyond the term to which it is limited. Should there happen, then, as is extremely probable in relation to some or other of the branches of the government, to be competitions between those who are and those who are not members of the government; what will be the situations of the competitors? Not equal; because the characters of the former will be covered by the “Sedition Act” from animadversions exposing them to disrepute among the people; whilst the latter may be exposed to the contempt and hatred of the people without a violation of the act. What will be the situation of the people? Not free; because they will be compelled to make their election between competitors whose pretensions they are not permitted by the act equally to examine, to discuss, and to ascertain. And from both these situations, will not those in power derive an undue advantage for continuing themselves in it; which by impairing the right of election, endangers the blessings of the government founded on it.

It is with justice, therefore, that the General Assembly hath affirmed in the resolution as well that the right of freely examining public characters and measures, and of free communication thereon, is the only effectual guardian of every other right; as that this particular right is leveled at by the power exercised in the “Sedition Act.”…

The act of ratification by Virginia … stands in the ensuing form.

We, the Delegates of the people of Virginia, duly elected in pursuance of a recommendation from the General Assembly, and now met in Convention, having fully and freely investigated and discussed the proceedings of the federal convention, and being prepared as well as the most mature deliberation hath enabled us, to decide thereon; DO, in the name and in behalf of the people of Virginia, declare and make known, that the powers granted under the Constitution, being derived from the people of the United States, may be resumed by them whensoever the same shall be perverted to their injury or oppression; and that every power not granted thereby remains with them and at their will. That therefore, no right of any denomination can be cancelled, abridged, restrained or modified, by the Congress, by the Senate or House of Representatives acting in any capacity, by the President, or any department or officer of the United States, except in those instances in which power is given by the Constitution for those purposes; and, 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.

Here is an express and solemn declaration by the convention of the state that they ratified the Constitution in the sense that no right of any denomination can be cancelled, abridged, restrained or modified by the government of the United States or any part of it, except in those instances in which power is given by the Constitution; and in the sense particularly, “that among other essential rights, the liberty of conscience and freedom of the press cannot be cancelled, abridged, restrained or modified, by any authority of the United States.”

Words could not well express in a fuller or more forcible manner the understanding of the convention that the liberty of conscience and the freedom of the press were equally and completely exempted from all authority whatever of the United States.

Under an anxiety to guard more effectually these rights against every possible danger, the convention, after ratifying the Constitution, proceeded to prefix to certain amendments proposed by them a declaration of rights, in which are two articles providing, the one for the liberty of conscience, the other for the freedom of speech and of the press.

Similar recommendations having proceeded from a number of other states, and Congress, as has been seen, having in consequence thereof, and with a view to extend the ground of public confidence, proposed among other declaratory and restrictive clauses, a clause expressly securing the liberty of conscience and of the press; and Virginia having concurred in the ratifications which made them a part of the Constitution; it will remain with a candid public to decide whether it would not mark an inconsistency and degeneracy if an indifference were now shown to a palpable violation of one of those rights, the freedom of the press; and to a precedent therein, which may be fatal to the other, the free exercise of religion… .

It has been said that it belongs to the judiciary of the United States, and not to the state legislatures, to declare the meaning of the Federal Constitution.

But a declaration that proceedings of the Federal Government are not warranted by the Constitution is a novelty neither among the citizens nor among the legislatures of the states; nor are the citizens or the legislature of Virginia singular in the example of it.

Nor can the declarations of either, whether affirming or denying the constitutionality of measures of the Federal Government; or whether made before or after judicial decisions thereon, be deemed, in any point of view, an assumption of the office of the judge. The declarations in such cases are expressions of opinion, unaccompanied with any other effect than what they may produce on opinion, by exciting reflection. The expositions of the judiciary, on the other hand, are carried into immediate effect by force. The former may lead to a change in the legislative expression of the general will; possibly to a change in the opinion of the judiciary: the latter enforces the general will whilst that will and that opinion continue unchanged.

And if there be no impropriety in declaring the unconstitutionality of proceedings in the Federal Government, where can be the impropriety of communicating the declaration to other states and inviting their concurrence in a like declaration? What is allowable for one must be allowable for all; and a free communication among the states, where the Constitution imposes no restraint, is as allowable among the state governments as among other public bodies or private citizens. This consideration derives a weight that cannot be denied to it from the relation of the state legislatures to the federal legislature, as the immediate constituents of one of its branches.

The legislatures of the states have a right, also, to originate amendments to the Constitution, by a concurrence of two thirds of the whole number, in applications to Congress for the purpose. When new states are to be formed by a junction of two or more states, or parts of states, the legislatures of the states concerned are, as well as Congress, to concur in the measure. The states have a right, also, to enter into agreements or compacts with the consent of Congress. In all such cases, a communication among them results from the object which is common to them.

It is lastly to be seen, whether the confidence expressed by the resolution that the necessary and proper measures would be taken by the other states for cooperating with Virginia in maintaining the rights reserved to the states, or to the people, be in any degree liable to the objections which have been raised against it.

If it be liable to objection, it must be because either the object or the means are objectionable.

The object being to maintain what the Constitution has ordained is in itself a laudable object.

The means are expressed in the terms “the necessary and proper measures.” A proper object was to be pursued, by means both necessary and proper.

To find an objection, then, it must be shown that some meaning was annexed to these general terms which was not proper; and for this purpose, either that the means used by the General Assembly were an example of improper means, or that there were no proper means to which the terms could refer.

In the example given by the state of declaring the Alien and Sedition Acts to be unconstitutional, and of communicating the declaration to the other states, no trace of improper means has appeared. And if the other states had concurred in making a like declaration, supported too by the numerous applications flowing immediately from the people, it can scarcely be doubted that these simple means would have been as sufficient as they are unexceptionable.

It is no less certain that other means might have been employed, which are strictly within the limits of the Constitution. The legislatures of the states might have made a direct representation to Congress, with a view to obtain a rescinding of the two offensive acts; or they might have represented to their respective senators in Congress their wish that two thirds thereof would propose an explanatory amendment to the Constitution; or two thirds of themselves, if such had been their option, might, by an application to Congress, have obtained a convention for the same object.

These several means, though not equally eligible in themselves, nor probably to the states, were all constitutionally open for consideration. And if the General Assembly, after declaring the two acts to be unconstitutional, the first and most obvious proceeding on the subject, did not undertake to point out to the other states a choice among the farther measures that might become necessary and proper, the reserve will not be misconstrued by liberal minds into any culpable imputation.

These observations appear to form a satisfactory reply to every objection which is not founded on a misconception of the terms employed in the resolutions. There is one other, however, which may be of too much importance not to be added. It cannot be forgotten that among the arguments addressed to those who apprehended danger to liberty from the establishment of the general government over so great a country, the appeal was emphatically made to the intermediate existence of the state governments between the people and that government, to the vigilance with which they would descry the first symptoms of usurpation, and to the promptitude with which they would sound the alarm to the public. This argument was probably not without its effect; and if it was a proper one, then, to recommend the establishment of the constitution; it must be a proper one now, to assist in its interpretation.

The only part of the two concluding resolutions that remains to be noticed is the repetition in the first of that warm affection to the union and its members and of that scrupulous fidelity to the Constitution which have been invariably felt by the people of this state. As the proceedings were introduced with these sentiments, they could not be more properly closed than in the same manner. Should there be any so far misled as to call in question the sincerity of these professions, whatever regret may be excited by the error, the General Assembly cannot descend into a discussion of it. Those who have listened to the suggestion can only be left to their own recollection of the part which this state has borne in the establishment of our national independence; in the establishment of our national constitution; and in maintaining under it the authority and laws of the union, without a single exception of internal resistance or commotion. By recurring to these facts, they will be able to convince themselves that the representatives of the people of Virginia must be above the necessity of opposing any other shield to attacks on their national patriotism than their own consciousness and the justice of an enlightened public; who will perceive in the resolutions themselves the strongest evidence of attachment both to the Constitution and to the union, since it is only by maintaining the different governments and departments within their respective limits that the blessings of either can be perpetuated. The extensive view of the subject thus taken by the committee has led them to report to the house, as the result of the whole, the following resolution.

Resolved, That the General Assembly, having carefully and respectfully attended to the proceedings of a number of the states, in answer to their resolutions of December 21, 1798, and having accurately and fully re-examined and reconsidered the latter, find it to be their indispensable duty to adhere to the same, as founded in truth, as consonant with the Constitution, and as conducive to its preservation; and more especially to be their duty, to renew, as they do hereby renew, their protest against “the Alien and Sedition Acts,” as palpable and alarming infractions of the Constitution.

part 5

The Jeffersonian Ascendancy: Domestic Policy, 1801–1808

The Jeffersonian Program

thomas jefferson The First Inaugural Address 4 March 1801

Friends and Fellow-Citizens,

Called upon to undertake the duties of the first executive office of our country, I avail myself of the presence of that portion of my fellow-citizens which is here assembled to express my grateful thanks for the favor with which they have been pleased to look toward me, to declare a sincere consciousness that the task is above my talents, and that I approach it with those anxious and awful presentiments which the greatness of the charge and the weakness of my powers so justly inspire. A rising nation, spread over a wide and fruitful land, traversing all the seas with the rich productions of their industry, engaged in commerce with nations who feel power and forget right, advancing rapidly to destinies beyond the reach of mortal eye—when I contemplate these transcendent objects, and see the honor, the happiness, and the hopes of this beloved country committed to the issue and the auspices of this day, I shrink from the contemplation, and humble myself before the magnitude of the undertaking. Utterly, indeed, should I despair did not the presence of many whom I here see remind me that in the other high authorities provided by our Constitution I shall find resources of wisdom, of virtue, and of zeal on which to rely under all difficulties. To you, then, gentlemen, who are charged with the sovereign functions of legislation, and to those associated with you, I look with encouragement for that guidance and support which may enable us to steer with safety the vessel in which we are all embarked amidst the conflicting elements of a troubled world.

During the contest of opinion through which we have passed the animation of discussions and of exertions has sometimes worn an aspect which might impose on strangers unused to think freely and to speak and to write what they think; but this being now decided by the voice of the nation, announced according to the rules of the Constitution, all will, of course, arrange themselves under the will of the law, and unite in common efforts for the common good. All, too, will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal law must protect, and to violate would be oppression. Let us, then, fellow-citizens, unite with one heart and one mind. Let us restore to social intercourse that harmony and affection without which liberty and even life itself are but dreary things. And let us reflect that, having banished from our land that religious intolerance under which mankind so long bled and suffered, we have yet gained little if we countenance a political intolerance as despotic, as wicked, and capable of as bitter and bloody persecutions. During the throes and convulsions of the ancient world, during the agonizing spasms of infuriated man, seeking through blood and slaughter his long-lost liberty, it was not wonderful that the agitation of the billows should reach even this distant and peaceful shore; that this should be more felt and feared by some and less by others, and should divide opinions as to measures of safety. But every difference of opinion is not a difference of principle. We have called by different names brethren of the same principle. We are all Republicans, we are all Federalists. If there be any among us who would wish to dissolve this Union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it. I know, indeed, that some honest men fear that a republican government cannot be strong, that this Government is not strong enough; but would the honest patriot, in the full tide of successful experiment, abandon a government which has so far kept us free and firm on the theoretic and visionary fear that this Government, the world’s best hope, may by possibility want energy to preserve itself? I trust not. I believe this, on the contrary, the strongest Government on earth. I believe it the only one where every man, at the call of the law, would fly to the standard of the law, and would meet invasions of the public order as his own personal concern. Sometimes it is said that man cannot be trusted with the government of himself. Can he, then, be trusted with the government of others? Or have we found angels in the forms of kings to govern him? Let history answer this question.

Let us, then, with courage and confidence pursue our own Federal and Republican principles, our attachment to union and representative government. Kindly separated by nature and a wide ocean from the exterminating havoc of one quarter of the globe; too high-minded to endure the degradations of the others; possessing a chosen country, with room enough for our descendants to the thousandth and thousandth generation, entertaining a due sense of our equal right to the use of our own faculties, to the acquisitions of our own industry, to honor and confidence from our fellow-citizens, resulting not from birth, but from our actions and their sense of them; enlightened by a benign religion, professed, indeed, and practiced in various forms, yet all of them inculcating honesty, truth, temperance, gratitude, and the love of man; acknowledging and adoring an overruling Providence, which by all its dispensations proves that it delights in the happiness of man here and his greater happiness hereafter—with all these blessings, what more is necessary to make us a happy and a prosperous people? Still one thing more, fellow-citizens—a wise and frugal Government, which shall restrain men from injuring one another, shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned. This is the sum of good government, and this is necessary to close the circle of our felicities.

About to enter, fellow-citizens, on the exercise of duties which comprehend everything dear and valuable to you, it is proper you should understand what I deem the essential principles of our government, and consequently those which ought to shape its administration. I will compress them within the narrowest compass they will bear, stating the general principle, but not all its limitations. Equal and exact justice to all men, of whatever state or persuasion, religious or political; peace, commerce, and honest friendship with all nations, entangling alliances with none; the support of the state governments in all their rights, as the most competent administrations for our domestic concerns and the surest bulwarks against antirepublican tendencies; the preservation of the General Government in its whole constitutional vigor, as the sheet anchor of our peace at home and safety abroad; a jealous care of the right of election by the people—a mild and safe corrective of abuses which are lopped by the sword of revolution where peaceable remedies are unprovided; absolute acquiescence in the decisions of the majority, the vital principle of republics, from which is no appeal but to force, the vital principle and immediate parent of despotism; a well-disciplined militia, our best reliance in peace and for the first moments of war till regulars may relieve them; the supremacy of the civil over the military authority; economy in the public expense, that labor may be lightly burthened; the honest payment of our debts and sacred preservation of the public faith; encouragement of agriculture, and of commerce as its handmaid; the diffusion of information and arraignment of all abuses at the bar of the public reason; freedom of religion; freedom of the press, and freedom of person under the protection of the habeas corpus, and trial by juries impartially selected. These principles form the bright constellation which has gone before us and guided our steps through an age of revolution and reformation. The wisdom of our sages and blood of our heroes have been devoted to their attainment. They should be the creed of our political faith, the text of civic instruction, the touchstone by which to try the services of those we trust; and should we wander from them in moments of error or of alarm, let us hasten to retrace our steps and to regain the road which alone leads to peace, liberty, and safety.

I repair, then, fellow-citizens, to the post you have assigned me. With experience enough in subordinate offices to have seen the difficulties of this the greatest of all, I have learnt to expect that it will rarely fall to the lot of imperfect man to retire from this station with the reputation and the favor which bring him into it. Without pretensions to that high confidence you reposed in our first and greatest revolutionary character, whose preeminent services had entitled him to the first place in his country’s love and destined for him the fairest page in the volume of faithful history, I ask so much confidence only as may give firmness and effect to the legal administration of your affairs, I shall often go wrong through defect of judgment. When right, I shall often be thought wrong by those whose positions will not command a view of the whole ground. I ask your indulgence for my own errors, which will never be intentional, and your support against the errors of others, who may condemn what they would not if seen in all its parts. The approbation implied by your suffrage is a great consolation to me for the past, and my future solicitude will be to retain the good opinion of those who have bestowed it in advance, to conciliate that of others by doing them all the good in my power, and to be instrumental to the happiness and freedom of all.

Relying, then, on the patronage of your good will, I advance with obedience to the work, ready to retire from it whenever you become sensible how much better choice it is in your power to make. And may that Infinite Power which rules the destinies of the universe lead our councils to what is best, and give them a favorable issue for your peace and prosperity.

thomas jefferson First Annual Message 8 December 1801

Fellow Citizens of the Senate and House of Representatives:

It is a circumstance of sincere gratification to me that on meeting the great council of our nation, I am able to announce to them, on the grounds of reasonable certainty, that the wars and troubles which have for so many years afflicted our sister nations have at length come to an end, and that the communications of peace and commerce are once more opening among them. While we devoutly return thanks to the beneficent Being who has been pleased to breathe into them the spirit of conciliation and forgiveness, we are bound with peculiar gratitude to be thankful to him that our own peace has been preserved through so perilous a season, and ourselves permitted quietly to cultivate the earth and to practice and improve those arts which tend to increase our comforts. The assurances, indeed, of friendly disposition, received from all the powers with whom we have principal relations, had inspired a confidence that our peace with them would not have been disturbed. But a cessation of the irregularities which had affected the commerce of neutral nations, and of the irritations and injuries produced by them, cannot but add to this confidence; and strengthens, at the same time, the hope that wrongs committed on offending friends, under a pressure of circumstances, will now be reviewed with candor and will be considered as founding just claims of retribution for the past and new assurances for the future.

Among our Indian neighbors, also, a spirit of peace and friendship [is] generally prevailing and I am happy to inform you that the continued efforts to introduce among them the implements and the practice of husbandry and of the household arts, have not been without success; that they are becoming more and more sensible of the superiority of this dependence for clothing and subsistence over the precarious resources of hunting and fishing; and already we are able to announce that instead of that constant diminution of their numbers, produced by their wars and their wants, some of them begin to experience an increase of population.

To this state of general peace with which we have been blessed, one only exception exists. Tripoli, the least considerable of the Barbary States, had come forward with demands unfounded either in right or in compact and had permitted itself to denounce war on our failure to comply before a given day. The style of the demand admitted but one answer. I sent a small squadron of frigates into the Mediterranean, with assurances to that power of our sincere desire to remain in peace, but with orders to protect our commerce against the threatened attack. The measure was seasonable and salutary. The bey had already declared war in form. His cruisers were out. Two had arrived at Gibraltar. Our commerce in the Mediterranean was blockaded and that of the Atlantic in peril. The arrival of our squadron dispelled the danger. One of the Tripolitan cruisers having fallen in with and engaged the small schooner Enterprise, commanded by Lieutenant Sterett, which had gone as a tender to our larger vessels, was captured after a heavy slaughter of her men, without the loss of a single one on our part. The bravery exhibited by our citizens on that element will, I trust, be a testimony to the world that it is not the want of that virtue which makes us seek their peace, but a conscientious desire to direct the energies of our nation to the multiplication of the human race and not to its destruction. Unauthorized by the constitution, without the sanction of Congress, to go out beyond the line of defense, the vessel being disabled from committing further hostilities, was liberated with its crew. The legislature will doubtless consider whether, by authorizing measures of offense also, they will place our force on an equal footing with that of its adversaries. I communicate all material information on this subject, that in the exercise of the important function confided by the Constitution to the legislature exclusively, their judgment may form itself on a knowledge and consideration of every circumstance of weight… .

I lay before you the result of the census lately taken of our inhabitants, to a conformity with which we are to reduce the ensuing rates of representation and taxation. You will perceive that the increase of numbers during the last ten years, proceeding in geometrical ratio, promises a duplication in little more than twenty-two years. We contemplate this rapid growth, and the prospect it holds up to us, not with a view to the injuries it may enable us to do to others in some future day, but to the settlement of the extensive country still remaining vacant within our limits, to the multiplications of men susceptible of happiness, educated in the love of order, habituated to self-government, and valu[ing] its blessings above all price.

Other circumstances, combined with the increase of numbers, have produced an augmentation of revenue arising from consumption in a ratio far beyond that of population alone, and … there is reasonable ground of confidence that we may now safely dispense with all the internal taxes, comprehending excises, stamps, auctions, licenses, carriages, and refined sugars, to which the postage on newspapers may be added, to facilitate the progress of information, and that the remaining sources of revenue will be sufficient to provide for the support of government, to pay the interest on the public debts, and to discharge the principals in shorter periods than the laws or the general expectations had contemplated. War, indeed, and untoward events, may change this prospect of things and call for expenses which the imposts could not meet; but sound principles will not justify our taxing the industry of our fellow citizens to accumulate treasure for wars to happen we know not when, and which might not perhaps happen but from the temptations offered by that treasure.

These views, however, of reducing our burdens are formed on the expectation that a sensible, and at the same time a salutary reduction may take place in our habitual expenditures. For this purpose, those of the civil government, the army, and navy will need revisal.

When we consider that this government is charged with the external and mutual relations only of these states; that the states themselves have principal care of our persons, our property, and our reputation, constituting the great field of human concerns, we may well doubt whether our organization is not too complicated, too expensive; whether offices or officers have not been multiplied unnecessarily, and sometimes injuriously to the service they were meant to promote. … Among those who are dependent on executive discretion, I have begun the reduction of what was deemed necessary. The expenses of diplomatic agency have been considerably diminished. The inspectors of internal revenue who were found to obstruct the accountability of the institution, have been discontinued. Several agencies created by executive authority, on salaries fixed by that also, have been suppressed, and should suggest the expediency of regulating that power by law so as to subject its exercises to legislative inspection and sanction. Other reformations of the same kind will be pursued with that caution which is requisite in removing useless things, not to injure what is retained. But the great mass of public offices is established by law and, therefore, by law alone can be abolished. Should the legislature think it expedient to pass this roll in review and try all its parts by the test of public utility, they may be assured of every aid and light which executive information can yield. Considering the general tendency to multiply offices and dependencies, and to increase expense to the ultimate term of burden which the citizen can bear, it behooves us to avail ourselves of every occasion which presents itself for taking off the surcharge; that it may never be seen here that, after leaving to labor the smallest portion of its earnings on which it can subsist, government shall itself consume the residue of what it was instituted to guard.

In our care, too, of the public contributions entrusted to our direction, it would be prudent to multiply barriers against their dissipation by appropriating specific sums to every specific purpose susceptible of definition; by disallowing applications of money varying from the appropriation in object or transcending it in amount; by reducing the undefined field of contingencies and thereby circumscribing discretionary powers over money; and by bringing back to a single department all accountabilities for money where the examination may be prompt, efficacious, and uniform.

An account of the receipts and expenditures of the last year, as prepared by the secretary of the treasury, will as usual be laid before you. The success which has attended the late sales of the public lands shows that with attention they may be made an important source of receipt. Among the payments, those made in discharge of the principal and interest of the national debt will show that the public faith has been exactly maintained. To these will be added an estimate of appropriations necessary for the ensuing year. This last will of course be effected by such modifications of the systems of expense as you shall think proper to adopt.

A statement has been formed by the secretary of war, on mature consideration, of all the posts and stations where garrisons will be expedient and of the number of men requisite for each garrison. The whole amount is considerably short of the present military establishment. For the surplus no particular use can be pointed out. For defense against invasion, their number is as nothing; nor is it conceived needful or safe that a standing army should be kept up in time of peace for that purpose. Uncertain as we must ever be of the particular point in our circumference where an enemy may choose to invade us, the only force which can be ready at every point and competent to oppose them is the body of neighboring citizens as formed into a militia. On these, collected from the parts most convenient, in numbers proportioned to the invading foe, it is best to rely, not only to meet the first attack, but if it threatens to be permanent, to maintain the defense until regulars may be engaged to relieve them. These considerations render it important that we should at every session continue to amend the defects which from time to time show themselves in the laws for regulating the militia until they are sufficiently perfect. Nor should we now or at any time separate until we can say we have done everything for the militia which we could do were an enemy at our door.

The provisions of military stores on hand will be laid before you, that you may judge of the additions still requisite.

With respect to the extent to which our naval preparations should be carried, some difference of opinion may be expected to appear; but just attention to the circumstances of every part of the Union will doubtless reconcile all. A small force will probably continue to be wanted for actual service in the Mediterranean. Whatever annual sum beyond that you may think proper to appropriate to naval preparations would perhaps be better employed in providing those articles which may be kept without waste or consumption, and be in readiness when any exigence calls them into use… .

Agriculture, manufactures, commerce, and navigation, the four pillars of our prosperity, are the most thriving when left most free to individual enterprise. Protection from casual embarrassments, however, may sometimes be seasonably interposed. If in the course of your observations or inquiries they should appear to need any aid within the limits of our constitutional powers, your sense of their importance is a sufficient assurance they will occupy your attention. We cannot, indeed, but all feel an anxious solicitude for the difficulties under which our carrying trade will soon be placed. How far it can be relieved, otherwise than by time, is a subject of important consideration.

The judiciary system of the United States, and especially that portion of it recently erected, will of course present itself to the contemplation of Congress; and that they may be able to judge of the proportion which the institution bears to the business it has to perform, I have caused to be procured from the several States, and now lay before Congress, an exact statement of all the causes decided since the first establishment of the courts and of those which were depending when additional courts and judges were brought in to their aid.

And while on the judiciary organization, it will be worthy your consideration whether the protection of the inestimable institution of juries has been extended to all the cases involving the security of our persons and property. Their impartial selection also being essential to their value, we ought further to consider whether that is sufficiently secured in those states where they are named by a marshal depending on executive will or designated by the court or by officers dependent on them.

I cannot omit recommending a revisal of the laws on the subject of naturalization. Considering the ordinary chances of human life, a denial of citizenship under a residence of fourteen years is a denial to a great proportion of those who ask it, and controls a policy pursued from their first settlement by many of these states and still believed of consequence to their prosperity. And shall we refuse the unhappy fugitives from distress that hospitality which the savages of the wilderness extended to our fathers arriving in this land? Shall oppressed humanity find no asylum on this globe? The constitution, indeed, has wisely provided that, for admission to certain offices of important trust, a residence shall be required sufficient to develop character and design. But might not the general character and capabilities of a citizen be safely communicated to every one manifesting a bona fide purpose of embarking his life and fortunes permanently with us? with restrictions, perhaps, to guard against the fraudulent usurpation of our flag; an abuse which brings so much embarrassment and loss on the genuine citizen, and so much danger to the nation of being involved in war, that no endeavor should be spared to detect and suppress it.

These, fellow citizens, are the matters respecting the state of the nation, which I have thought of importance to be submitted to your consideration at this time. Some others of less moment, or not yet ready for communication, will be the subject of separate messages. I am happy in this opportunity of committing the arduous affairs of our government to the collected wisdom of the Union. Nothing shall be wanting on my part to inform, as far as in my power, the legislative judgment, nor to carry that judgment into faithful execution. The prudence and temperance of your discussions will promote, within your own walls, that conciliation which so much befriends national conclusion; and by its example will encourage among our constituents that progress of opinion which is tending to unite them in object and in will. That all should be satisfied with any one order of things is not to be expected, but I indulge the pleasing persuasion that the great body of our citizens will cordially concur in honest and disinterested efforts, which have for their object to preserve the general and state governments in their constitutional form and equilibrium; to maintain peace abroad and order and obedience to the laws at home; to establish principles and practices of administration favorable to the security of liberty and prosperity, and to reduce expenses to what is necessary for the useful purposes of government.

The Jeffersonian Vision

As he entered the campaign of 1800 and, again, as the Congress began to act on the suggestions of his message of December 1801, the president sketched his program and intentions in letters to his friends. For years, he was to prove remarkably successful in keeping his party behind him. But there were dissidents on both of his extremes.

Letters of the President 1799–1802

To Elbridge Gerry 26 January 1799

… I shall make to you a profession of my political faith, in confidence that you will consider every future imputation on me of a contrary complexion as bearing on its front the mark of falsehood & calumny.

I do then, with sincere zeal, wish an inviolable preservation of our present federal constitution according to the true sense in which it was adopted by the states, that in which it was advocated by its friends, & not that which its enemies apprehended, who therefore became its enemies; and I am opposed to the monarchising its features by the forms of its administration, with a view to conciliate a first transition to a President & Senate for life, & from that to a hereditary tenure of these offices, & thus to worm out the elective principle. I am for preserving to the states the powers not yielded by them to the Union, & to the legislature of the Union its constitutional share in the division of powers; and I am not for transferring all the powers of the states to the general government, & all those of that government to the executive branch. I am for a government rigorously frugal & simple, applying all the possible savings of the public revenue to the discharge of the national debt; and not for a multiplication of officers & salaries merely to make partisans, & for increasing, by every device the public debt, on the principle of its being a public blessing. I am for relying, for internal defense, on our militia solely, till actual invasion, and for such a naval force only as may protect our coasts and harbors from such depredations as we have experienced; and not for a standing army in time of peace, which may overawe the public sentiment; nor for a navy, which, by its own expenses and the eternal wars in which it will implicate us, will grind us with public burthens, & sink us under them. I am for free commerce with all nations; political connection with none; & little or no diplomatic establishment. And I am not for linking ourselves by new treaties with the quarrels of Europe; entering that field of slaughter to preserve their balance, or joining in the confederacy of kings to war against the principles of liberty. I am for freedom of religion, & against all maneuvers to bring about a legal ascendancy of one sect over another: for freedom of the press, & against all violations of the constitution to silence by force & not by reason the complaints or criticisms, just or unjust, of our citizens against the conduct of their agents. And I am for encouraging the progress of science in all its branches; and not for raising a hue and cry against the sacred name of philosophy; for awing the human mind by stories of raw-head & bloody bones to a distrust of its own vision, & to repose implicitly on that of others; to go backwards instead of forwards to look for improvement; to believe that government, religion, morality, & every other science were in the highest perfection in ages of the darkest ignorance, and that nothing can ever be devised more perfect than what was established by our forefathers. To these I will add, that I was a sincere well-wisher to the success of the French Revolution, and still wish it may end in the establishment of a free & well-ordered republic; but I have not been insensible under the atrocious depredations they have committed on our commerce. The first object of my heart is my own country. In that is embarked my family, my fortune, & my own existence. I have not one farthing of interest, nor one fiber of attachment out of it, nor a single motive of preference of any one nation to another, but in proportion as they are more or less friendly to us. But though deeply feeling the injuries of France, I did not think war the surest means of redressing them. I did believe, that a mission sincerely disposed to preserve peace, would obtain for us a peaceable & honorable settlement & retribution; and I appeal to you to say, whether this might not have been obtained, if either of your colleagues had been of the same sentiment with yourself.

These, my friend, are my principles; they are unquestionably the principles of the great body of our fellow citizens, and I know there is not one of them which is not yours also. In truth, we never differed but on one ground, the funding system; and as, from the moment of its being adopted by the constituted authorities, I became religiously principled in the sacred discharge of it to the uttermost farthing, we are united now even on that single ground of difference.

To P. S. Dupont de Nemours 18 January 1802

Dear Sir,—It is rare I can indulge myself in the luxury of philosophy. Your letters give me a few of those delicious moments. Placed as you are in a great commercial town, with little opportunity of discovering the dispositions of the country portions of our citizens, I do not wonder at your doubts whether they will generally and sincerely concur in the sentiments and measures developed in my message of the 7th Jany. But from 40 years of intimate conversation with the agricultural inhabitants of my country, I can pronounce them as different from those of the cities, as those of any two nations known. The sentiments of the former can in no degree be inferred from those of the latter. You have spoken a profound truth in these words, “Il y a dans les etats unis un bon sens silencieux, un esprit de justice froide, qui lorqu’il est question d’emettre un vote comme les bavardages de ceux qui font les habiles.” A plain country farmer has written lately a pamphlet on our public affairs. His testimony of the sense of the country is the best which can be produced of the justness of your observation. His words are “The tongue of man is not his whole body. So, in this case, the noisy part of the community was not all the body politic. During the career of fury and contention (in 1800), the sedate, grave part of the people were still; hearing all and judging for themselves what method to take, when the constitutional time of action should come, the exercise of the right of suffrage.” The majority of the present legislature are in unison with the agricultural part of our citizens, and you will see that there is nothing in the message to which they do not accord. Some things may perhaps be left undone from motives of compromise for a time, and not to alarm by too sudden a reformation, but with a view to be resumed at another time. I am perfectly satisfied the effect of the proceedings of this session of congress will be to consolidate the great body of well meaning citizens together, whether federal or republican, heretofore called. I do not mean to include royalists or priests. Their opposition is immovable. But they will be vox et preterea nihil, leaders without followers. I am satisfied that within one year from this time were an election to take place between two candidates merely republican and federal, where no personal opposition existed against either, the federal candidate would not get the vote of a single elector in the U.S. I must here again appeal to the testimony of my farmer, who says “The great body of the people are one in sentiment. If the federal party and the republican party, should each of them choose a convention to frame a constitution of government or a code of laws, there would be no radical difference in the results of the two conventions.” This is most true. The body of our people, tho’ divided for a short time by an artificial panic, and called by different names, have ever had the same object in view, to wit, the maintenance of a federal, republican government, and have never ceased to be all federalists, all republicans: still excepting the noisy band of royalists inhabiting cities chiefly, and priests both of city and country. When I say that in an election between a republican and federal candidate, free from personal objection, the former would probably get every vote, I must not be understood as placing myself in that view. It was my destiny to come to the government when it had for several years been committed to a particular political sect, to the absolute and entire exclusion of those who were in sentiment with the body of the nation. I found the country entirely in the enemy’s hands. It was necessary to dislodge some of them. Out of many thousands of officers in the U.S. 9 only have been removed for political principle, and 12 for delinquencies chiefly pecuniary. The whole herd have squealed out, as if all their throats were cut. These acts of justice few as they have been, have raised great personal objections to me, of which a new character would be [faded]. When this government was first established, it was possible to have kept it going on true principles, but the contracted, English, half-lettered ideas of Hamilton destroyed that hope in the bud. We can pay off his debt in 15 years; but we can never get rid of his financial system. It mortifies me to be strengthening principles which I deem radically vicious, but this vice is entailed on us by the first error. In other parts of our government I hope we shall be able by degrees to introduce sound principles and make them habitual. What is practicable must often control what is pure theory; and the habits of the governed determine in a great degree what is practicable. Hence the same original principles, modified in practice according to the different habits of different nations, present governments of very different aspects. The same principles reduced to forms of practice accommodated to our habits, and put into forms accommodated to the habits of the French nation would present governments very unlike each other. I have no doubt but that a great man, thoroughly knowing the habits of France, might so accommodate to them the principles of free government as to enable them to live free. But in the hands of those who have not this coup d’oeil, many unsuccessful experiments I fear are yet to be tried before they will settle down in freedom and tranquility. I applaud therefore your determination to remain here, tho’ for yourself and the adults of your family the dissimilitude of our manners and the difference of tongue will be sources of real unhappiness. Yet less so than the horrors and dangers which France would present to you, and as to those of your family still in infancy, they will be formed to the circumstances of the country, and will, I doubt not, be happier here than they could have been in Europe under any circumstances. Be so good as to make my respectful salutations acceptable to Made. Dupont, and all of your family and to be assured yourself of my constant and affectionate esteem.

edmund pendleton “The Danger Not Over” 5 October 1801

Reprinted by the Aurora on 28 October from the Richmond Examiner of 20 October and picked up from there by other papers, this essay by one of Virginia’s most venerable revolutionaries and jurists insisted that a change of men, without a change of measures, would not correct the problems of the 1790s. Appearing just before the meeting of the first Republican Congress, it outlined a program of radical reforms grounded on ideas and assumptions that would eventually flower into an Old Republican opposition to the more moderate course of Jefferson’s and Madison’s administrations.

Although one of my age [eighty] can have little to hope, and less to fear, from forms of government, … and possibly may be charged with intermeddling where he has no interest whenever he utters opinions concerning social regulations; yet I feel impelled by an anxious desire to promote the happiness of my country to submit to the public consideration some reflections on our present political state.

It is far from my intention to damp the public joy occasioned by the late changes of our public agents or to disturb the calm which already presages the most beneficial consequences; on the contrary, I consider this event as having arrested a train of measures which were gradually conducting us towards ruin.

These changes will be a matter of tenfold congratulation if we make the proper use of them: If, instead of negligently reposing upon that wisdom and integrity which have already softened even political malice, we seize an opportunity to erect new barriers against folly, fraud, and ambition; and to explain such parts of the Constitution as have been already, or may be, interpreted contrary to the intention of those who adopted it.

This proposition does not argue a want of proper confidence in our present Chief Magistrate, but the contrary. It can be no censure to believe that he has a nobler destiny to fulfil, than that of making his contemporary countrymen happy for a few years, and that the rare event of such a character at the head of a nation imposes on Us the sacred duty of seizing the propitious opportunity to do all in our power to perpetuate that happiness. As to that species of confidence which would extinguish free inquiry and popular watchfulness, it is never desired by patriotism nor ought to be yielded by freemen.

In pursuit of our purpose, we ought to keep in mind certain principles which are believed to be sound; to enquire whether they have been violated under the Constitution; and then consider how a repetition of those violations may be prevented—As thus:

1. Government is instituted for the good of the community and not to gratify avarice or ambition; therefore, unnecessary increase of debt—appointment of useless officers such as stationary ministers to foreign courts with which we have little connection and sixteen additional judges at a time when the business of the federal courts had greatly diminished—and engaging us in a war abroad for the sake of advancing party projects at home, are abuses in government.

2. The chief good derivable from government is civil liberty; and if government is so constructed as to enable its administration to assail that liberty with the several weapons heretofore most fatal to it, the structure is defective: of this sort, standing armies, fleets, severe penal laws, war, and a multitude of civil officers, are universally admitted to be; and if our government can, with ease and impunity, array those forces against social liberty, the Constitution is defective.

3. Peace is undoubtedly that state which proposes to society the best chance for the continuance of freedom and happiness, and the situation of America is such as to expose her to fewer occasions for war than any other nation, whilst it also disables her from gaining anything by war. But if, by indirect means, the executive can involve us in war not declared by the legislature; if a treaty may be made which will incidentally produce a war, and the legislature are bound to pass all laws necessary to give it full effect; or if the judiciary may determine a war to exist altho’ the legislature hath refused to declare it; then the Constitution is defective, since it admits constructions which pawn our freedom and happiness upon the security of executive patriotism, which is inconsistent with republican principles.

4. Union is certainly the basis of our political prosperity, and this can only be preserved by confining, with precision, the federal government to the exercise of powers clearly required by the general interest or respecting foreign nations and the state governments to objects of a local nature; because the states exhibit such varieties of character and interests that a consolidated general government would be in a perpetual conflict with state interests, from its want of local knowledge or from a prevalence of local prejudice or interest, so as certainly to produce civil war and disunion. If, then, the distinct provinces of the general and state governments are not clearly defined; if the former may assail the latter by penalties and by absorbing all subjects of taxation, if a system leading to consolidation may be formed or pursued, and if, instead of leaving it to the respective states to encourage their agriculture or manufactures as their local interest may dictate, the general government may by bounties or protecting duties tax the one to promote the other, then the Constitution has not sufficiently provided for the continuance of the union by securing the rights of the state governments and local interests.

5. It is necessary for the preservation of republican government that the legislative, executive, and judiciary powers should be kept separate and distinct from each other, so that no man or body of men shall be authorized to exercise more than one of them at the same time. The Constitution, therefore, in consigning to the federal senate a participation in the powers of each department, violates this important principle and tends to create in that body a dangerous aristocracy. And

6. An essential principle of representative government is that it be influenced by the will of the people, which will can never be expressed if such representatives are corrupted or influenced by hopes of office. If this hope may multiply offices and extend patronage, if the president may nominate to valuable offices members of the legislature who shall please him and displease the people by increasing his power and patronage, if he may be tempted to use this power and patronage for securing his reelection, and if he may even bestow lucrative diplomas upon judges whilst they are receiving liberal salaries paid as the price of their independence and purity, then a risk exists lest the legislature should legislate, the judges decide, and the senator concur in nominations with an eye to those offices, and lest the president may appoint with a view to his reelection; and thus may at length appear the phenomenon of a government republican in form without possessing a single chaste organ for expressing the public will.

Many of these observations were foreseen when the Constitution was ratified by those who voted for its adoption, but waived then because of the vast importance of the union, which a rejection might have placed in hazard, of the provision made for amendments as trial should discover defects, and the hope that in the meantime the instrument, with all its defects, might produce social happiness if a proper tone was given to the government by the several agents in its operation. But since experience has evinced that much mischief may be done under an unwise administration and that even the most valuable parts of the Constitution may be evaded or violated, we count no longer to rest our security upon the vain hope which depends on the rectitude of fallible men in successive administrations. But now that the union is as firmly established by the general opinion of the citizens as we can ever hope to be, it behoves us to bring forward amendments which may fix it upon principles capable of restraining human passions.

Having, I trust, shown the utility and necessity of such efforts at this time, I will venture to submit to the consideration of my fellow citizens, with great humility and deference, whether it would not be advisable to have the Constitution amended.

1. By rendering a president ineligible for the next turn and transferring from him to the legislature the appointment of the judges and stationary foreign ministers, making the stipends of the latter to be no longer discretionary in the president.

2. By depriving the senate of all executive power and shortening their term of service, or subjecting its members to removal by their constituents.

3. By rendering members of the legislature and the judges whilst in office [and] for a limited time thereafter incapable of taking any other office whatsoever (the offices of president and vice-president excepted) and subjecting the judges to removal by the concurring vote of both houses of Congress.

4. By forming some check upon the abuse of public credit, which, tho’ in some instances useful, like fleets and armies, may, like those, be carried to extremes dangerous to liberty and inconsistent with economical government.

5. By instituting a fair mode of impaneling juries.

6. By declaring that no treaty with a foreign nation, so far as it may relate to peace or war, to the expenditure of public money, or to commercial regulations, shall be law until ratified by the legislature, the interval between such treaty and the next meeting of Congress excepted, so far as it may not relate to the grant of money.

7. By defining prohibited powers so explicitly as to defy the wiles of construction. If nothing more should be gained, it will be a great acquisition clearly to interdict laws relating to the freedom of speech, of the press, and of religion, to declare that the common law of England or of any other foreign country in criminal cases shall not be considered as a law of the United States, and that treason shall be confined to the cases stated in the Constitution, so as not to be extended further by law or construction or by using other terms such as sedition, etc.—and

8. By marking out with more precision the distinct powers of the general and state governments.

In the Virginia Bill of Rights is expressed this inesti-mable sentiment: “That no free government, or the blessing of liberty, can be preserved to any people but by a firm adherence to justice, moderation, temperance, frugality, and virtue; and by frequent recurrence to fundamental principles.” A sentiment produced, no doubt, by the experience of this melancholy truth, “That of men advanced to power, more are inclined to destroy liberty, than to defend it; there is of course a continual effort for its destruction, which ought to be met by correspondent efforts for its preservation.”

These principles and propositions are most respectfully submitted to my fellow citizens with this observation: “That it is only when great and good men are at the head of a nation that the people can expect to succeed in forming such barriers to counteract recent encroachments on their rights; and whenever a nation is so supine as to suffer such an opportunity to be lost, they will soon feel that the danger was not over.”

fisher ames “Falkland,” No. 2 6 February 1801

In the aftermath of his famous speech on Jay’s Treaty, Ames, who had been suffering from pneumonia and perhaps from tuberculosis for much of the session, declined to stand for reelection. Although a brief term on the governor’s council in Massachusetts would be his only later office, he wrote numerous essays condemning Jeffersonian pandering to the people. This one appeared in the Palladium a month before Jefferson’s inauguration.

… The jacobins and anarchists … will act at first, and until they have brought things into the confusion that democrats ever do, … according to the forms of the Constitution. The legal powers of a president are not too great, and unless a majority in Congress should cooperate in the abuse of them, we have more to apprehend immediately from their neglect. The executive department will probably be suffered to droop in imbecility and to struggle with embarrassments. The men who have hitherto opposed order have not understood nor respected its principles, and it is expected they will more frequently obstruct than enforce them. The Secretary of the Treasury will be treated as a head clerk—his reports and plans will not be asked for nor tolerated, much less adopted. No department of power will be allowed to be safe except that of the House of Representatives—nor that in opposition to a rabble. What if the pipe should get choked up through which the funding system is nourished, what is that to the people?

If, merely by neglect, the work of destruction, though sure, should appear to be too slow and they should be impatient to hasten it by projects of innovation, there must be a majority in Congress. At present, the Senate of the United States is disposed to stand as a barrier against the democratic flood, the very office for which it was erected. Accordingly, we see that the imported patriots of Pennsylvania are already armed to assail the senate of that state as a useless and dangerous branch of government. The like attempt will be made against the Senate of the United States. Indeed, Virginia proposed, some years ago, so to amend that branch that it should become in future a tool in the hands of faction, not a defense against it. All barriers against the licentiousness of democracy will be called usurpations on the people—meaning always the vile, and ignorant, and needy—and be rendered odious in order to be broken down. Demagogues found their influence on the popular passions—they are certainly sincere, therefore, when they execrate senates and courts, and Sedition Laws, and all other impediments to the current of those passions. They pretend to be the friends of liberty, but all demagogues are the rivals and the enemies of free government. The most conspicuous of the new men are demagogues. New York and Pennsylvania were subjected to such influence, and Virginia was trained and disciplined according to its tactics. Hence their victory.

The leading men of the ruling party will certainly endeavor to support and exercise their power in the way that they gained it, by soothing the meanest of the vulgar prejudices and exciting and assuming the direction of their passions. Things that are to be destroyed must be made unpopular, and whatever is popular in Virginia must be attempted. What is popular then? Is credit—is finance—is impost or excise, or the carriage tax, or the stamp act, or the compulsory payment of debts, is trade, and especially trade with the British dominions, popular among those lazy feudal barons? But regulations and restrictions on the commerce of other states, projects and visionary schemes to make France rich and to starve British manufactures, projects of finance to pay debts by discrimination, pretending to give to original holders what we do not owe and denying to purchasing holders what we do. Projects to administer the government without departments, without banks, and without compulsion have been popular, and we are to expect they will be resumed. Impracticable theories will be recommended and if possible established by law, because they are not British, and because they seem to be philosophy.

It is very much to be apprehended that the next House of Representatives in Congress will be hurried away by a democratic impulse. If the majority should be great, they will feel incited to execute the most extravagant of their plans, for which they have long sought the opportunity, conscious that this may not last long and that they may never enjoy another. What will they do? is the question. It has been already hinted, as one equally momentous, what will they not neglect to do? Waiving that consideration, however, for the present, it is material to inquire into the state of their inclinations and of their power; in other words, what they will desire and what they will be able to do.

They will desire to reduce their darling theories to practice. There is in the democratic sect, which will be the prevailing one, a fanaticism that disdains argument and is mad with zeal to make converts; a presumption that disdains experience and is blind to difficulties. … The people are deemed to be perfect in their intelligence and all rulers corrupted by their power. The will or the caprice or, if that could be, the vice of the people, whether regularly and distinctly known or only guessed at, is a law paramount to all laws, not excepting those of public faith and honor, of God and virtue. Hence the instructions of a representative bind him more than the constitution or his oath, his duty or conscience. With all democrats, the state of nature is still assumed as existing, each man being a sovereign invested with power which he has delegated to his representative in Congress as his ambassador, but no man is a subject even of the laws. The very name subject stinks of slavery and is disdainfully disclaimed in the gazettes of the democrats.

There is no temperate man of sense who will take the trouble to examine these gazettes for the last twelve years, who will say that any sensible or safe system of administration could be extracted from them. He will pronounce with decision that their principles are absolutely chimerical and impracticable. It is observable that the machine of our government has moved with a great deal of friction and a very feeble and intermitting momentum. Sensible men have seriously dreaded that it would stop or drop to pieces. The government has not been obeyed in the back country. It has not dared to enforce obedience nor to punish rebellion. Yet the democrats have professed unfeignedly to fear this nerveless government, that could not stand up, but was ever to be held up, as a necromancer whose magic would bind the people in chains of slavery; a giant whose colossal tread would crush them into the earth. Accordingly, for twelve years there is no measure now a law that they did not obstruct in its passage; and not one of any importance that is a law that they originated. Mr. Madison’s abortive commercial resolutions were projected and urged against the opinion of every well-informed merchant in the United States. There is no other plan or system that has even been so much as proposed by the democratic party in Congress. It has been their sufficient employment to oppose all business but to do none. It has even been avowed as a salutary principle of duty thus to check the proneness of our government to extremes unfavorable to the liberty of the people. That our farmers may at once comprehend the usefulness and good sense of this democratic principle of opposing, let them apply a like rule in their own business. Instead of trying to make it easier to do, what would they think of schemes to make it harder? What would they say if, while two of their laborers were getting a load of hay, a third should think it his duty to pitch it off? Would they like to have their axle-trees made square or eight-sided, in order that the wagon wheels might not turn so fast, and perhaps not turn at all? For it is not the fault of this party that the wheels of the government have not stood still.

In a word, the fundamental principle of the democratic system is to consider their own power as liberty and all other power, even that ordained by the Constitution, as despotism.

Accordingly, we may expect that they will feel neither affection nor reverence for the Senate nor the departments, nor even for their democratic president, except as the head of their party, but not as president. They will profess to obey the popular prejudices and passions and rely on their cooperation to sustain their power. Of course, it will be a system of demagogy. Let it be repeated, the power gained by flattering the prejudices of the whisky, the treaty, the French, the house tax and the stamp act and sedition act mobs, and mob-meetings, must be supported as it was obtained. It is hostile to law, order, property, and government, in feeling, principle, tendency, and object.

This is the general description of the party. The detail of the measures that they will probably pursue is only a matter of conjecture. But the most fearful conjecture is corroborated by the analogy of the party here with the principles and examples of France. If they should exercise power, now they are in, with the same spirit that they have opposed while they were out, revolution and confusion have no terrors that would deter, no extremes that would stop them. Is there one principal head of legislation on which their ideas have been temperate, rational, and salutary? On the contrary, is there one on which they have not avowed and urged the wildest and most disorganizing theories of their own, and like objections to the systems devised by others? Banks, credit, finance, revenue, commerce, manufactures, fisheries, army, and navy are subjects that have afforded so many classes of absurdities. Within, they would restore chaos by the jumble of committees, instead of the heads of departments.—Without, they would court the curse of a French alliance, while they inconsistently affect to separate America from Europe and its politics. They have tried on all momentous questions to interpret the Constitution to mean nothing and to pervert it with amendments that would make it mean less—and worse.

What, then, are we to expect from such men but the execution of their systems? But will they be able to do it?

There will be impediments. Let us examine their nature. It is not the nature of democracy to stop short of extremes, and least of all in the delirium of newly acquired power. The Senate of the United States will be truly republican and a barrier against licentiousness. Such will be its disposition. But its firmness will much depend on the energy of the true federal republicans dispersed through the nation. We are to expect every method of intimidation will be used by the jacobins, as in Pennsylvania, to bend the Senate from virtue. Finding, as they will find, that these men will not change their principles, they will raise a clamor in all the federal states to change the men. This, however, will take time that is precious, because it is short—for such the reign of democracy will be. In Massachusetts we have had experience of the noble firmness of our senate when they saved the state from Shays, perhaps the union from civil war and confusion.

The judiciary is another rampart against the foes of all right. There is no question of the virtue of the judges. But when jacobin juries have to determine on great contested cases, we have seen enough to make us dread their perversion of the law. The best things, when misapplied, are the worst. Jacobin verdicts for damages might prove proscriptions and confiscations to the federalists.

There will also be a spirited and able minority in Congress, who will expose the bad principles and tendencies of the democratic measures. There public opinion will discern a center of light and heat. The old republican principles, the wise and tried measures and institutions of the federal administrations, will there have skillful advocates and bold champions. It cannot be that such champions will not be strongly reinforced from the sound and enlightened part of the public. New England is not democratic, and many who now think the system of the party delightful in prospect will abhor it in the trial. It cannot be tried without shaking New England to its center. All its interests and systems and even its institutions, political and religious, are such as are detested by the democrats, because they are the strong entrenchments of an enemy. Expect, then, to see them often mined and at last battered in breach.

Repeal of the Judiciary Act of 1801

On 27 February 1801, after the resolution of the electoral tie between Jefferson and Burr, the lame-duck Sixth Congress passed a new Judiciary Act. Federalists had long insisted that the old act of 1789 was inadequate to the nation’s needs, leaving the United States with too few circuit courts and requiring Supreme Court justices to ride circuit. The new law created sixteen circuit courts, increased the number of federal marshals, clerks, and attorneys, and reduced the Supreme Court from six Justices to five. Jefferson was convinced that the act of 1801 was a Federalist ploy to pack the courts with partisans of the defeated party, and, indeed, it was said that John Adams was signing commissions for the new positions until midnight on inauguration day. Repeal of the act was a leading recommendation of Jefferson’s First Annual Message. In the course of the congressional debates, members of both parties also reviewed the struggle of the past ten years.

Congressional Proceedings

The Senate Friday, 8 January 1802

Agreeably to the order of the day, the Senate proceeded to the consideration of the motion made on the 6th instant, to wit:

Mr. Breckinridge then rose and addressed the President, as follows:

It will be expected of me, I presume, sir, as I introduced the resolution now under consideration, to assign my reasons for wishing a repeal of this law. This I shall do; and shall endeavor to show,

1. That the law is unnecessary and improper, and was so at its passage; and

2. That the courts and judges created by it can and ought to be abolished.

1st. That the act under consideration was unnecessary and improper is, to my mind, no difficult task to prove. No increase of courts or judges could be necessary or justifiable unless the existing courts and judges were incompetent to the prompt and proper discharge of the duties consigned to them. To hold out a show of litigation, when in fact little exists, must be impolitic; and to multiply expensive systems and create hosts of expensive officers, without having experienced an actual necessity for them, must be a wanton waste of the public treasure.

The [executive] document before us shows that, at the passage of this act, the existing courts, not only from their number, but from the suits depending before them, were fully competent to a speedy decision of those suits. It shows that on the 15th day of June last, there were depending in all the circuit courts (that of Maryland only excepted, whose docket we have not been furnished with) one thousand five hundred and thirty-nine suits. It shows that eight thousand two hundred and seventy-six suits of every description have come before those courts in ten years and upwards. From this it appears that the annual average amount of suits has been about eight hundred.

But sundry contingent things have conspired to swell the circuit court dockets. In Maryland, Virginia, and in all the Southern and Southwestern States, a great number of suits have been brought by British creditors; this species of controversy is nearly at an end.

In Pennsylvania, the docket has been swelled by prosecutions in consequence of the Western insurrection, by the disturbances in Bucks and Northampton Counties; and by the Sedition Act. These I find amount in that state to two hundred and forty suits… .

In most of the states there have been prosecutions under the Sedition Act. This source of litigation is, I trust, forever dried up. And, lastly, in all the states a number of suits have arisen under the excise law; which source of controversy will, I hope, before this session terminates, be also dried up.

But this same document discloses another important fact; which is, that notwithstanding all these untoward and temporary sources of federal adjudication, the suits in those courts are decreasing; for, from the dockets exhibited (except Kentucky and Tennessee, whose suits are summed up in the aggregate) it appears that in 1799 there were one thousand two hundred and seventy-four and in 1800 there were six hundred and eighty-seven suits commenced; showing a decrease of five hundred and eighty-seven suits.

Could it be necessary then to increase courts when suits were decreasing? Could it be necessary to multiply judges when their duties were diminishing? And will I not be justified, therefore, in affirming that the law was unnecessary and that Congress acted under a mistaken impression when they multiplied courts and judges at a time when litigation was actually decreasing?

But, sir, the decrease of business goes a small way in fixing my opinion on this subject. I am inclined to think that, so far from there having been a necessity at this time for an increase of courts and judges, that the time never will arrive when America will stand in need of thirty-eight federal judges. Look, sir, at your Constitution, and see the judicial power there consigned to federal courts, and seriously ask yourself, can there be fairly extracted from those powers subjects of litigation sufficient for six supreme and thirty-two inferior court judges? To me it appears impossible… .

I will now inquire into the power of Congress to put down these additional courts and judges.

First, as to the courts, Congress are empowered by the Constitution “from time to time, to ordain and establish inferior courts.” The act now under consideration is a legislative construction of this clause in the Constitution, that Congress may abolish as well as create these judicial officers; because it does expressly, in the twenty-seventh section of the act, abolish the then existing inferior courts for the purpose of making way for the present. This construction, I contend, is correct; but it is equally pertinent to my object, whether it be or be not. If it be correct, then the present inferior courts may be abolished as constitutionally as the last; if it be not, then the law for abolishing the former courts and establishing the present was unconstitutional and consequently repealable.

But independent of this legislative construction, on which I do not found my opinion, nor mean to rely my argument, there is little doubt indeed, in my mind, as to the power of Congress on this law. The first section of the third article vests the judicial power of the United States in one Supreme Court and such inferior courts as Congress may, from time to time, ordain and establish. By this clause Congress may, from time to time, establish inferior courts; but it is clearly a discretionary power, and they may not establish them. … It would, therefore, in my opinion, be a perversion, not only of language, but of intellect, to say, that although Congress may, from time to time, establish inferior courts, yet, when established, that they shall not be abolished by a subsequent Congress possessing equal powers. It would be a paradox in legislation.

2d. As to the judges. … [T]he Constitution affords the proper checks to secure their honesty and independence in office. It declares they shall not be removed from office during good behavior; nor their salaries diminished during their continuance in office. From this it results that a judge, after his appointment, is totally out of the power of the President and his salary secured against legislative diminution during his continuance in office… .

But because the Constitution declares that a judge shall hold his office during good behavior, can it be tortured to mean that he shall hold his office after it is abolished? Can it mean that his tenure should be limited by behaving well in an office which did not exist? Can it mean that an office may exist although its duties are extinct? Can it mean, in short, that the shadow, to wit, the judge, can remain, when the substance, to wit, the office, is removed? It must have intended all these absurdities or it must admit a construction which will avoid them… .

… It is a principle of our Constitution, as well as of common honesty, that no man shall receive public money but in consideration of public services. Sinecure offices, therefore, are not permitted by our laws or Constitution… .

Upon the whole, sir, as all courts under any free government must be created with an eye to the administration of justice only; and not with any regard to the advancement or emolument of individual men; as we have undeniable evidence before us that the creation of the courts now under consideration was totally unnecessary; and as no government can, I apprehend, seriously deny that this Legislature has a right to repeal a law enacted by a preceding one, we will, in any event, discharge our duty by repealing this law; and thereby doing all in our power to correct the evil… .

Mr. Morris, of New York.—Mr. President, I am so very unfortunate that the arguments in favor of the motion have confirmed my opinion that the law to which it refers ought not to be repealed. The honorable mover has rested his proposition on two grounds:

1st. That the Judiciary Law passed last session is unnecessary; and

2dly. That we have a right to repeal it and ought to exercise that right.

The numerical mode of argument made use of to establish his first point is perfectly novel, and commands my tribute of admiration. This is the first time I ever heard the utility of the courts of justice estimated by the number of suits carried before them… .

The expense arising under this law, that it is proposed to repeal, amounts to thirty thousand dollars, exclusive of fifteen thousand dollars estimated for contingent expenses, making, together, forty-five thousand dollars. But let us not stint that allowance; throw in a few thousand more, and let the whole be stated at fifty thousand; apportion this sum among the people of the United States, according to the census lately taken, and you will find that each individual will pay just one cent. And for this insignificant saving of a cent a man, we are called upon to give up all that is valuable to a nation… .

Gentlemen say, recur to the ancient system. What is the ancient system? Six judges of the Supreme Court to ride the circuit of America twice a year and sit twice a year at the seat of government. … Cast an eye over the extent of our country, and a moment’s consideration will show that the First Magistrate, in selecting a character for the bench, must seek less the learning of a judge than the agility of a post-boy. … I have been told by men of eminence on the bench, that they could not hold their offices under the old arrangement.

What is the present system? You have added to the old judges seven district and sixteen circuit judges. What will be the effect of the desired repeal? Will it not be a declaration to the remaining judges that they hold their offices subject to your will and pleasure? And what will be the result of this? It will be that the check established by the Constitution, wished for by the people, and necessary in every contemplation of common sense, is destroyed. … Did the people of America vest all powers in the Legislature? No; they had vested in the judges a check intended to be efficient—a check of the first necessity, to prevent an invasion of the Constitution by unconstitutional laws—a check which might prevent any faction from intimidating or annihilating the tribunals themselves.

On this ground, said Mr. Morris, I stand to arrest the victory meditated over the Constitution of my country; a victory meditated by those who wish to prostrate that Constitution for the furtherance of their own ambitious views. Not of him who had recommended this measure, nor of those who now urge it; for, on his uprightness and their uprightness, I have the fullest reliance; but of those in the back-ground who have further and higher objects. These troops that protect the outworks are to be first dismissed. Those posts which present the strongest barriers are first to be taken, and then the Constitution becomes an easy prey… .

Tuesday, 12 January 1802

Mr. Tracy, of Connecticut.—Feeble as I am, I have thought it my duty to offer my sentiments on this subject. Owing to severity of indisposition I have not been in my place, nor have I heard any of the discussion. This circumstance will be my apology, if, in the remarks I shall make, repetitions shall occur on the one hand and apparent inattention to arguments on the other… .

Soon after the first law was enacted, as early as the year 1793, and I believe sooner, complaints were made of the system of circuit courts. … Experience taught us that some alteration in the system was requisite. It will be recollected that the judges had to travel over this extensive country twice in each year and to encounter the extremes of both heat and cold. Of this they complained; but this was not all; the business was not done… .

I take it to be a sound rule, adopted by all wise and deliberate bodies, not to repeal an existing law until experiment shall have discovered errors or unless there is a vice so apparent on the face of the law as that justice shall require an immediate destruction of it. Has there been time to gain information by experiment? No man will pretend this as a justification of the repeal; for the little time the law has been in force, so far as I have obtained any knowledge upon the subject, it has gained credit… .

Is this system so very vicious, that it deserves nothing but abhorrence and destruction? It costs us a little more than thirty thousand dollars, and by it the number of circuit judges is increased to sixteen; and by it likewise is contemplated reducing the number of supreme judges to five, when it can constitutionally be done… .

But there is another objection to the repeal of the judiciary law, which in my mind is conclusive: I mean the letter and spirit of the Constitution.

In the formation of every government in which the people have a share in its administration, some established and indisputable principles must be adopted. In our government, the formation of a Legislative, Executive, and Judiciary power is one of the incontrovertible principles; and that each should be independent of the other, so far as human frailty will permit, is equally incontrovertible. Will it be expected, that I should quote Sidney, De Lolme, Montesquieu, and a host of elementary writers to prove this assertion? There is probably no conflict of opinion upon this subject. When we look into our Constitution of government, we shall find, in every part of it, a close and undeviating attention to this principle. Our particular form is singular in its requirements, that full force and operation be given to this all important principle. Our powers are limited, many acts of sovereignty are prohibited to the national government and retained by the states, and many restraints are imposed upon state sovereignty. If either, by accident or design, should exceed its powers, there is the utmost necessity that some timely checks, equal to every exigency, should be interposed. The Judiciary is established by the Constitution for that valuable purpose… .

… The great object of the independence of the Judiciary must here have reference not only to our Executive, but our Legislature. The Legislature with us is the fountain of power. No person will say that the judges of the Supreme Court can be removed, unless by impeachment and conviction of misbehavior; but the judges of the inferior courts, as soon as ordained and established, are placed upon precisely the same grounds of independence with the judges of the Supreme Court. Congress may take their own time to ordain and establish, but the instant that is done, all the rights of independence attach to them.

If this reasoning is correct, can you repeal a law establishing an inferior court under the Constitution? Will it be said that although you cannot remove the judge from office, yet you can remove his office from him? Is murder prohibited, and may you shut a man up and deprive him of sustenance till he dies, and this not be denominated murder? The danger in our Government is, and always will be, that the Legislative body will become restive and perhaps unintentionally break down the barriers of our Constitution. It is incidental to man, and a part of our imperfections, to believe that power may be safely lodged in our hands. We have the wealth of the nation at command and are invested with almost irresistible strength; the judiciary has neither force nor wealth to protect itself. That we can, with propriety, modify our judiciary system so that we always leave the judges independent is a correct and reasonable position; but if we can, by repealing a law, remove them, they are in the worst state of dependence… .

I am strongly impressed with the magnitude of this subject; perhaps the whims of a sick man’s fancy have too much possessed me to view it correctly; but, sir, I apprehend the repeal of this law will involve in it the total destruction of our Constitution. It is supported by three independent pillars: the Legislative, Executive, and Judiciary; and if any rude hand should pluck either of them away, the beautiful fabric must tumble into ruins. The Judiciary is the center pillar, and a support to each by checking both; on the one side is the sword and on the other is the wealth of the nation; and it has no inherent capacity to defend itself… .

This Constitution is an invaluable inheritance; if we make inroads upon it and destroy it, no matter with what intentions, it cannot be replaced; we shall never have another… .

The House of Representatives Thursday, 18 February 1802

Mr. Giles said that … it must be obvious to the most common observer that, from the commencement of the Government of the United States, and perhaps before it, a difference of opinion existed among the citizens. … On one side, it was contended that in the organization of the Constitution a due apportionment of authority had not been made among the several departments; that the legislature was too powerful for the executive department; and to create and preserve a proper equipoise, it was necessary to infuse in the executive department, by legislation, all artificial powers compatible with the Constitution, upon which the most diffusive construction was given; or, in other words, to place in executive hands all the patronage it was possible to create, for the purpose of protecting the President against the full force of his constitutional responsibility to the people. On the other side, it was contended that the doctrine of patronage was repugnant to the opinions and feelings of the people; that it was unnecessary, expensive, and oppressive; and that the highest energy the government could possess would flow from the confidence of the mass of the people, founded upon their own sense of their common interests. Hence, what is called party in the United States grew up from a division of opinion respecting these two great characteristic principles. … A variety of circumstances existed in the United States at the commencement of the government, and a great number of favorable incidents continued afterwards to arise, which gave the patronage system the preponderancy during the first three presidential terms of election; notwithstanding it was evident that the system was adopted and pursued in direct hostility to the feelings and opinions of a great portion of the American people. The government was ushered into operation under a vast excitement of federal fervor, flowing from its recent triumph on the question of adopting the Constitution. At that time a considerable debt was afloat in the United States, which had grown out of the Revolutionary War. This debt was of two kinds: the debt proper of the United States, or engagements made by the United States in their federal capacity; the other, the state debts, or engagements entered into by the respective states for the support of the common cause.

The favorers of the patronage system readily availed themselves of these materials for erecting a moneyed interest; gave to it a stability, or qualified perpetuity, and calculated upon its certain support in all their measures of irresponsibility.

This was done not only by funding the debt proper of the United States, but by assuming the payment of the state debts and funding them also; and it is believed, extending the assumption beyond the actual engagements of the states. Hence the Federal axiom, that a public debt is a public blessing. Shortly after this event, an Indian war sprang up—he would not say by what means—in consequence of which an army was added to the list of patronage. The Algerines commenced a predatory war upon the commerce of the United States, and thence a navy formed a new item of patronage. Taxes became necessary to meet the expenses of this system, and an arrangement of internal taxes, an excise, &c., still swelled the list of patronage. But the circumstance which most favored this system was the breaking out of a tremendous and unprecedented war in those countries of Europe with which the United States had the most intimate relations. The feelings and sympathies of the people of the United States were so strongly attracted by the tremendous scenes existing there that they considered their own internal concerns in a secondary point of view. After a variable conduct had been pursued by the United States in relation to these events, the depredations committed upon commerce and the excitements produced thereby enabled the Administration to indulge themselves in a more decisive course, and they at once pushed forward the people to the X, Y, Z of their political alphabet, before they had well learned and understood the A, B, C of the principles of the Administration.

Armies and navies were raised, and a variety of other schemes of expense were adopted, which placed the Administration in the embarrassing predicament either to violate their faith with their public creditors or to resort to new taxes. The latter alternative was preferred, accompanied with other strong coercive measures to enforce obedience. A land tax was laid for two millions of dollars. This measure awakened the people to a sense of their situation; and shook to the foundation all those federal ramparts which had been planned with so much ingenuity and erected around the executive with so much expense and labor. Another circumstance peculiarly favorable to the advocates of executive patronage was that, during the two first presidential terms, the Chief Executive Magistrate possessed a greater degree of popularity and the confidence of the people than ever was or perhaps will ever be again attached to the person occupying that dignified station. The general disquietude which manifested itself in consequence of these enterprising measures, in the year 1800, induced the Federal party to apprehend that they had pushed their principles too far, and they began to entertain doubts of the result of the presidential election, which was approaching. In this state of things, it was natural for them to look out for some department of the government in which they could entrench themselves in the event of an unsuccessful issue in the election and continue to support those favorite principles of irresponsibility which they could never consent to abandon.

The Judiciary department, of course, presented itself as best fitted for their object, not only because it was already filled with men who had manifested the most indecorous zeal in favor of their principles, but because they held their offices by indefinite tenures and of course were further removed from any responsibility to the people than either of the other departments. Accordingly, on the 11th of March 1800, a bill for the more convenient organization of the courts of the United States was presented to the House of Representatives. This bill appears to have had for its objects, First, the gradual demolition of the state courts, by increasing the number and extending the jurisdiction of the federal courts. Second, to afford additional protection to the principles of the then existing Administration by creating a new corps of judges of concurring political opinions. … At the next session, after the result of the late election was ascertained, the bill, after having undergone some considerable alterations, was passed into the law now under discussion. This law, it is now said, is inviolable and irrepealable. It is said, the independence of the judge will be thereby immolated. … We are now called upon to rally round the Constitution as the ark of our political safety. Gentlemen, discarding all generalizing expressions and the spirit of the instrument, tie down all construction to the strict letter of the Constitution. He said, it gave him great pleasure to meet gentlemen on this ground; and the more so, because he had long been in the habit of hearing very different language from the same gentlemen. He had long been in the habit of hearing the same gentlemen speak of the expressions of “the common defense and the general welfare” as the only valuable part of the Constitution; that they were sufficient to obliterate all specifications and limitations of power. … But, he said, as if it was always the unfortunate destiny of these gentlemen to be upon extremes, they have now got round to the opposite extreme point of the political compass, and even beyond it. For, he said, they not only tie down all construction to the letter of the instrument, but they tell us that they see and call upon us also to see written therein, in large capital characters, “the independence of judges”; which, to the extent they carry the meaning of the term, is neither to be found in the letter or spirit of that instrument, or in any other political establishment, he believed, under the sun… .

Friday, 19 February 1802

Mr. Bayard.—Mr. Chairman, I must be allowed to express my surprise at the course pursued by the honorable gentleman from Virginia (Mr. Giles) in the remarks which he has made on the subject before us. … Every effort has been made to revive the animosities of the House and inflame the passions of the nation. … That there may be a few individuals having a preference for monarchy is not improbable; but will the gentleman from Virginia, or any other gentleman, affirm in his place that there is a party in the country who wish to establish monarchy? Insinuations of this sort belong not to the Legislature of the Union. Their place is an election ground or an alehouse. Within these walls they are lost; abroad, they have an effect, and I fear are still capable of abusing the popular credulity.

We were next told of the parties which have existed, divided by the opposite views of promoting executive power and guarding the rights of the people… .

I know that this is the distinction of party which some gentlemen have been anxious to establish; but this is not the ground on which we divide. I am satisfied with the constitutional powers of the executive and never wished nor attempted to increase them; and I do not believe that gentlemen on the other side of the House ever had a serious apprehension of danger from an increase of executive authority. No, sir, our views as to the powers which do and ought to belong to the general and state governments are the true sources of our divisions. I cooperate with the party to which I am attached because I believe their true object and end is an honest and efficient support of the general government in the exercise of the legitimate powers of the Constitution… .

He represents the government as seizing the first moment which presented itself to create a dependent moneyed interest, ever devoted to its views. What are we to understand by this remark of the gentleman? Does he mean to say that Congress did wrong in funding the public debt? Does he mean to say that the price of our liberty and independence ought not to have been paid? Is he bold enough to denounce this measure as one of the Federal victims marked for destruction? Is it the design to tell us that its day has not yet come, but is approaching; and that the funding system is to add to the pile of Federal ruins? Do I hear the gentleman say we will reduce the Army to a shadow; we will give the Navy to the worms; the Mint, which presented the people with the emblems of their liberty and of their sovereignty, we will abolish; the revenue shall depend upon the winds and waves; the judges shall be made our creatures; and the great work shall be crowned and consecrated by relieving the country from an odious and oppressive public debt? These steps, I presume, are to be taken in progression. The gentleman will pause at each, and feel the public pulse. As the fever increases he will proceed, and the moment of delirium will be seized to finish the great work of destruction… .

After, Mr. Chairman, the honorable member had exhausted one quiver of arrows against the late executive, he opened another, equally poisoned, against the judiciary. He has told us, sir, that when the power of the government was rapidly passing from Federal hands—after we had heard the thundering voice of the people which dismissed us from their service—we erected a judiciary which we expected would afford us the shelter of an inviolable sanctuary. The gentleman is deceived. We knew better, sir, the characters who were to succeed us, and we knew that nothing was sacred in the eyes of infidels. No, sir, I never had a thought that anything belonging to the Federal Government was holy in the eyes of those gentlemen. I could never, therefore, imagine that a sanctuary could be built up which would not be violated. I believe these gentlemen regard public opinion, because their power depends upon it; but I believe they respect no existing establishment of the government; and if public opinion could be brought to support them, I have no doubt they would annihilate the whole. I shall at present only say further, on this head, that we thought the reorganization of the judicial system a useful measure, and we considered it as a duty to employ the remnant of our power to the best advantage of our country… .

I know, sir, that some have said, and perhaps not a few have believed, that the new system was introduced not so much with a view to its improvement of the old, as to the places which it provided for the friends of the administration. This is a calumny so notoriously false, and so humble, as not to require nor to deserve an answer upon this floor. It cannot be supposed that the paltry object of providing for sixteen unknown men could have ever offered an inducement to a great party basely to violate their duty, meanly to sacrifice their character, and foolishly to forego all future hopes.

… I have heard much said about the additional courts created by the act of last session. I perceive them spoken of in the President’s Message. In the face of this high authority, I undertake to state, that no additional court was established by that law. Under the former system there was one Supreme Court, and there is but one now. There were seventeen district courts, and there are no more now. There was a circuit court held in each district, and such is the case at present. Some of the district judges are directed to hold their courts at new places, but there is still in each district but one district court. What, sir, has been done? The unnatural alliance between the supreme and district courts has been severed, but the jurisdiction of both these courts remains untouched. The power of authority of neither of them has been augmented or diminished. The jurisdiction of the circuit court has been extended to the cognizance of debts of four hundred dollars, and this is the only material change in the power of that court. The chief operation of the late law is a new organization of the circuit courts. To avoid the evils of the former plan, it became necessary to create a new corps of judges. It was considered that the Supreme Court ought to be stationary, and to have no connection with the judges over whose sentences they had an appellate jurisdiction… .

The Supreme Court has been rendered stationary. Men of age, of learning, and of experience are now capable of holding a seat on the bench; they have time to mature their opinions in causes on which they are called to decide, and they have leisure to devote to their books and to augment their store of knowledge. It was our hope, by the present establishment of the court, to render it the future pride, and honor, and safety of the nation. It is this tribunal which must stamp abroad the judicial character of our country. It is here that ambassadors and foreign agents resort for justice; and it belongs to this high court to decide finally, not only on controversies of unlimited value between individuals and on the more important collision of state pretensions, but also upon the validity of the laws of the states and of this government. Will it be contended that such great trusts ought to be reposed in feeble or incapable hands? …

Let us next consider, sir, the present state of the circuit courts.

There are six courts, which sit in twenty-two districts; each court visits at least three districts, some four. The courts are now composed of three judges of equal power and dignity. Standing on equal ground, their opinions will be independent and firm. Their number is the best for consultation, and they are exempt from the inconvenience of an equal division of opinion. But what I value most, and what was designed to remedy the great defect of the former system, is the identity which the court maintains. Each district has now always the same court. Each district will hereafter have a system of practice and uniformity of decision. The judges of each circuit will now study, and learn, and retain the laws and practice of their respective districts. It never was intended, nor is it practicable, that the same rule of property or of proceeding should prevail from New Hampshire to Georgia. The old courts were enjoined to obey the laws of the respective states. Those laws fluctuate with the will of the state legislatures, and no other uniformity could ever be expected but in the construction of the Constitution and statutes of the United States. This uniformity is still preserved by the control of the Supreme Court over the courts of the circuits. Under the present establishment, a rational system of jurisprudence will arise. The practice and local laws of the different districts may vary, but in the same district they will be uniform. The practice of each district will suggest improvements to the others, the progressive adoption of which will in time assimilate the systems of the several districts… .

[Mr. Bayard here stated, that he … observed that the common hour of adjournment had gone by, and that he should sit down in order to allow the Committee to rise, if they thought proper; and that he should beg leave to be heard the following day upon the second point. After some conversation, the Committee rose, reported—and the House adjourned.]

Saturday, 20 February 1802

The House again resolved itself into a Committee of the Whole on the bill sent from the Senate, entitled “An act to repeal certain acts respecting the organization of the Courts of the United States, and for other purposes.”

Mr. Bayard.—… I have considered it as conceded, upon all hands, that the legislature have not the power of removing a judge from his office; but it is contended only that the office may be taken from the judge. Sir, it is a principle in law, which ought, and I apprehend does, hold more strongly in politics, that what is prohibited from being done directly is restrained from being done indirectly. Is there any difference, but in words, between taking the office from a judge and removing a judge from the office? Do you not indirectly accomplish the end which you admit is prohibited? I will not say that it is the sole intention of the supporters of the bill before us to remove the circuit judges from their offices, but I will say that they establish a precedent which will enable worse men than themselves to make use of the legislative power for that purpose upon any occasion. If it be constitutional to vacate the office, and in that way to dismiss the judge, can there be a question as to the power to re-create the office and fill it with another man? Repeal to-day the bill of the last session, and the circuit judges are no longer in office. To-morrow, rescind the repealing act (and no one will doubt the right to do it), and no effect is produced but the removal of the judges… .

It was once thought by gentlemen who now deny the principle, that the safety of the citizen and of the states rested upon the power of the judges to declare an unconstitutional law void. How vain is a paper restriction if it confers neither power nor right! Of what importance is it to say, Congress are prohibited from doing certain acts, if no legitimate authority exists in the country to decide whether an act done is a prohibited act? …

If, said Mr. B., you mean to have a Constitution, you must discover a power to which the acknowledged right is attached of pronouncing the invalidity of the acts of the legislature which contravene the instrument. Does the power reside in the states? Has the legislature of a state a right to declare an act of Congress void? This would be erring upon the opposite extreme. It would be placing the general government at the feet of the state governments. It would be allowing one member of the Union to control all the rest. It would inevitably lead to civil dissension and a dissolution of the general government. Will it be pretended that the state courts have the exclusive right of deciding upon the validity of our laws? I admit that they have the right to declare an act of Congress void. But this right they enjoy in practice, and it ever essentially must exist, subject to the revision and control of the courts of the United States. If the state courts definitively possessed the right of declaring the invalidity of the laws of this Government, it would bring us in subjection to the states. The judges of those courts, being bound by the laws of the state, if a state declared an act of Congress unconstitutional, the law of the state would oblige its courts to determine the law invalid. This principle would also destroy the uniformity of obligation upon all the states, which should attend every law of the government. If a law were declared void in one state, it would exempt the citizens of that state from its operation, whilst obedience was yielded to it in the other states. I go further, and say, if the states or state courts had a final power of annulling the acts of this government, its miserable and precarious existence would not be worth the trouble of a moment to preserve. It would endure but a short time, as a subject of derision, and, wasting into an empty shadow, would quickly vanish from our sight… .

Let me now suppose that in our frame of government the judges are a check upon the legislature; that the Constitution is deposited in their keeping. Will you say afterwards that their existence depends upon the legislature? That the body whom they are to check had the power to destroy them? … Can any thing be more absurd than to admit that the judges are a check upon the legislature, and yet to contend that they exist at the will of the legislature? A check must necessarily imply a power commensurate to its end. The political body designed to check another must be independent of it, otherwise there can be no check. What check can there be when the power designed to be checked can annihilate the body which is to restrain it?

I go further, Mr. Chairman, and take a still stronger ground. … If you pass the bill upon your table the judges have a constitutional right to declare it void. I hope they will have courage to exercise that right; and if, sir, I am called upon to take my side, standing acquitted in my conscience and before my God of all motives but the support of the Constitution of my country, I shall not tremble at the consequences.

The Constitution may have its enemies, but I know that it has also its friends. I beg gentlemen to pause before they take this rash step. There are many, very many, who believe, if you strike this blow, you inflict a mortal wound on the Constitution. There are many now willing to spill their blood to defend that Constitution. Are gentlemen disposed to risk the consequences? … Will they risk civil dissension, will they hazard the welfare, will they jeopardize the peace of the country, to save a paltry sum of money—less than thirty thousand dollars?

… Sir, the morals of your people, the peace of the country, the stability of the government, rest upon the maintenance of the independence of the judiciary. It is not of half the importance in England that the judges should be independent of the Crown, as it is with us that they should be independent of the legislature. Am I asked, would you render the judges superior to the legislature? I answer, no, but co-ordinate. Would you render them independent of the legislature? I answer, yes, independent of every power on earth, while they behave themselves well. The essential interests, the permanent welfare of society, require this independence… .

Friday, 26 February 1802

Mr. Nicholson.—… Sir, when I am told that the party advocating this repeal have grown out of the party originally opposed to the Constitution, and are now about to prostrate it, I feel more than I am willing to express; but when gentlemen talk about parties in this country, permit me to turn their attention to an earlier period of our political history, to that period when our liberties and independence were at stake, and when every nerve was strong to resist the encroachments of tyranny. At this time where were many of that gentleman’s political friends? Upon examination it will be found that many of them basely deserted their country in her distress and were openly fighting in the ranks of her enemies. In the list of my political friends, none such are to be found, for we do not require their support. But I can look about me, upon my right hand and upon my left, and can see men, even upon this floor, advocating the present bill, who bore the burden of the Revolutionary war, who drew their swords to establish the independence we now enjoy, and who will not hesitate to draw them again if those threats are carried into execution which have been recently thrown out against the Constitution. I know men too, equally distinguished for their talents and their virtues, friendly to this repeal, who signed the Constitution as members of the General Convention, who used every effort to promote its adoption, and who, I have no doubt, are ready to defend it to the last moment. There are men likewise, and gentlemen dare not contradict me, who refused their signatures to the Constitution as members of the General Convention, and who opposed it in every stage of its adoption, but were afterwards received into favor and were high in the confidence of the former administration. Which of these two descriptions of persons are most likely to cherish the Constitution, I cheerfully leave to the American people to decide… .

The gentleman from North Carolina, who opened the debate, … commenced an unwarrantable attack upon a majority of the House by declaring that on the seventh of December the same spirit of innovation had entered these walls which had laid waste the fairest portions of Europe; that it was now about to tear down all the valuable institutions which had been erected by former administrations and even to destroy the Constitution itself. Did gentlemen imagine that such observations were to pass unnoticed? Did they suppose that we would sit tamely down under an imputation at once so heavy and so groundless? Was it not natural that we should go back and look into the nature and origin of those measures which had been denominated the fairest institutions and which the gentleman had particularized as the debt, the taxes, the judiciary, and the mint? Yes, sir, the gentleman from Virginia did take a view of these fair institutions, and did show, whatever might have been the motives of their authors, that their inevitable tendency was to strengthen the power of the executive. It is this undue influence of the executive power of the government that we wish to reduce; it is this influence that we wish to confine within its proper limits, in order to prevent the government from taking that course which most republican governments have heretofore taken; to prevent it from arriving at that goal where the spirit of republicanism is lost and monarchy commences… .

When we attempt to correct these errors, let us not be told that we are about to prostrate the Constitution. The Constitution is as dear to us as to our adversaries, and we will go as far to support it. It is by repairing the breaches that we mean to save it and to set it on a firm and lasting foundation, that shall resist the attacks of its enemies and defy the encroachments of ambition. We are yet a young nation and must learn wisdom from the experience of others. By avoiding the course which other nations have steered, we shall avoid likewise their catastrophe. Public debts, standing armies, and heavy taxes have converted the English nation into a mere machine to be used at the pleasure of the crown. … It is true we have had no riot act, but we have had a Sedition Act, calculated to secure the conduct of the executive from free and full investigation; we have had an army, and still have a small one, securing to the executive an immensity of patronage; and we have a large national debt, for the payment of the principal and interest of which it is necessary to collect “yearly millions,” by means of a cloud of officers spread over the face of the country. By repealing a part of the taxes from which a part of this money has been raised, we not only lessen the burdens of the people, but we likewise discharge a large portion of those officers who are appointed by the executive and who add greatly to his influence.

This debt, which now hangs as a dead weight about us, had been called the price of our independence, and has been spoken of as a debt due to the “war-worn soldier,” which we assumed and funded to alleviate his sufferings. This position I cannot assent to. When the veteran soldier returned from the fatigues and hardships of the war, to enjoy domestic comfort, he brought with him, as an evidence of the service he had rendered, nothing but his certificates and his wounds. They were, indeed, honorable testimonials; the latter he felt would remain with him while life lasted, and the former he left with the hope that, one day or other, his country would be in a situation to pay him; but the hard hand of poverty pressed upon him, and stern necessity compelled him to part with them for a pittance. The rich and cunning speculator, who had sheltered himself from the storm, now came out to prey upon his distress, and, for two shillings and sixpence in the pound, he purchased this poor reward of toil and hardship. When you were about to make provision for the payment of this debt, you were called on, loudly called on, by the voice of humanity, by the spirit of justice, to make a discrimination in favor of the soldier. He asked you to give to the speculator what the speculator had advanced, but to give the balance to the poor, though valiant soldier, who had faithfully earned it in the frozen regions of Canada or the burning sands of South Carolina; you regarded him not; to his tale of distress you turned a deaf ear; his services and his sufferings were forgotten; the cold and hunger he had endured, the blood he had spilt, were no longer remembered; you cast him upon the unfeeling world, a miserable dependent upon charity for subsistence. Let not then the gentleman from Delaware call this debt the price of our independence or a compensation to the war-worn soldier. To him it was a poor compensation indeed. Its effect was to intrench yourselves around by rich speculators, whose interest and influence you secured, and who would be ready to support you in any measures, provided you would insure them the payment of the interest on that debt, which was funded for their benefit, but which was created at the hazard and expense of a brave and meritorious soldiery. From motives of a shameful policy you enabled the proud speculator to roll along in his gilded chariot, while the hardy veteran, who had fought and bled for your liberties, was left to toil for his support or to beg his bread from door to door.

But this debt, iniquitous as we deem the manner of its settlement, we mean to discharge; but we mean not to perpetuate it; it is no part of our political creed that “a public debt is a public blessing.” We will, I trust, make ample provision for its final redemption; and when in a few days a proposition shall be submitted for the annual appropriation of seven millions and three hundred thousand dollars to this object, I challenge gentlemen on the other side of the House, who express so much anxiety about public faith, to be as forward in support of this measure as I shall be. We will then show to the American nation who are most inclined to support the public credit, whether those who are desirous of paying the debt or those who are anxious for its perpetuation.

The member from Delaware told us that the gentleman from Virginia (Mr. Giles), after exhausting one quiver, had unlocked another and discharged it upon the judges. … But why all this uneasiness about dismissals from office? Have the friends of gentlemen heretofore been so eager in their pursuit of the loaves and fishes that they are now unwilling to surrender them? Have they enjoyed them with such peculiar delight that they now murmur at the exercise of the constitutional right which the President possesses of displacing from office all those whom he thinks unfit for the duties and of putting in those who, in his opinion, are better qualified? Surely when gentlemen are so strenuously contending for the constitutional rights of the judiciary, they ought not to murmur at the exercise of a constitutional right by the executive. Nor do I think they can with any propriety complain when it is recollected that, although the President had the power of disposing of all offices, yet he has left by far the larger proportion in the possession of men who are personally and politically his enemies. From the great discontent expressed on the subject of removals, it might seem that the judges themselves were rather the objects of general solicitude than the system of constitutional privileges of the judiciary.

This judiciary, however, the gentleman from Delaware has said, in that same spirit of Christian meekness which appears to have characterized him throughout, he never considered a sanctuary, because he knew that nothing was sacred in the eyes of infidels. May I be permitted to ask what the honorable gentleman means by infidels? … If, sir, an unqualified aversion to the high-fashioned opinion that a public debt is a public blessing; if a total unbelief in the propriety of laying heavy and oppressive taxes to pay a useless and expensive army; if the strongest reprobation or every law calculated to restrain the liberty of the press and thereby prevent the nation from inquiring into its own concerns; if the entire rejection of the odious principle that the reins of government are to be placed in the hands of a set of men who are independent of and beyond the control of the people, afford any evidence of infidelity, then do I avow myself as much an infidel as any man living… .

Mr. N. sat down; the Committee rose, and the House adjourned.

Saturday, 27 February 1802

The House again resolved itself into a Committee on the bill sent from the Senate, entitled “An act of repeal certain acts respecting the organization of the Courts of the United States, and for other purposes.”

Mr. Nicholson (in continuation) offered his acknowledgments to the Committee for consenting to hear him again today… .

… We say that we have the same right to repeal the law establishing inferior courts that we have to repeal the law establishing post offices and post roads, laying taxes, or raising armies. This right would not be denied but for the construction given to that part of the Constitution which declares that “the judges both of the supreme and inferior courts shall hold their offices during good behavior.” The arguments of gentlemen generally have been directed against a position that we never meant to contend for: against the right to remove the judges in any other manner than by impeachment. This right we have never insisted on. … Our doctrine is that every Congress has a right to repeal any law passed by its predecessors, except in cases where the Constitution imposes a prohibition… .

… The independence of the three branches of government has, in my opinion, been much talked of without being fairly defined or correctly understood. The powers of our government are distributed under three different heads, and are committed to the different departments. The legislative power extends to the enacting, revising, amending, or repealing all laws, as the various interests of the nation may require. The judiciary power consists in an authority to apply those laws to the various controversies which may arise between man and man, or between the government and its citizens, and to pronounce sentence agreeably to the dictates of their judgment and consciences. After the judicial decree, it then becomes the business of the executive to carry it into effect according to its true intent, and conformably to the laws of the land. In all governments where they have the semblance of freedom, the great desideratum has been to keep these three branches so entirely separate and distinct as that the powers of neither should be exercised by the other; or, in other words, that the legislative powers should never be exercised by the executive or the judiciary, that the judicial powers should not be exercised by the legislative or executive, and that the executive powers should not be exercised by the legislature or judiciary. But there is no government on the face of the earth, whose history I am acquainted with, in which a total and entire independence has been established. In England the judiciary hold their offices at the will of Parliament. In the States of Vermont, Massachusetts, Connecticut, Rhode Island, New Jersey, Pennsylvania, Delaware, Maryland, and Georgia, the judges are either elected by the legislature for a limited time, or are subject to removal by them; in New York, some of the judges are in the same situation; in New Hampshire, the legislature are authorized to limit the duration of their commissions, and, I believe, are in the habit of doing so; and in Maryland, Virginia, North Carolina, South Carolina, and Georgia, the executive is absolutely dependent on the legislature for his continuance in office, being annually or biennially elected. In Tennessee, and in most, perhaps all of the others, both the judiciary and the executive are dependent on the legislature for the amount and payment of their salaries. Yet, sir, in all these states, where we find no such idea of independence as is now contended for, there has been no confusion, no disorder. The people are happy and contented, and I venture to affirm, are more free than the inhabitants of any other part of the globe. They are happy, because none can oppress them; they are free, because they have a control over their public agents. But if the public agents of the federal government are to be set above the nation and are to be invested with the arbitrary and uncontrolled powers which some gentlemen insist on, who can say where they will stop, or what bounds shall be prescribed to them? Man is fond of power, is continually grasping after it, and is never satisfied. He is not, therefore, to be trusted. Unlimited confidence is the bane of a free government. Those who would retain their freedom, must likewise retain power over agents, or they will be driven to destruction. I have been taught to believe, that the power is never so safe as in the hands of those for whose benefit it is to be employed. I consider it in their hands when it is delegated to representatives freely chosen by themselves for a short period, and immediately responsible to them for its use. “Power in the people has been well compared to light in the sun; native, original, inherent, and not to be controlled by human means.” But power, when once surrendered to independent rulers, instantly becomes a despot, and arms itself with whips and chains. While the people retain it in their own hands, it exalts the character of a nation, and is at once their pride and their security; if they surrender it to others, it becomes restless and active, until it debases the human character, and enslaves the human mind; it is never satisfied until it finally tramples upon all human rights. It is against this surrender of power that I contend; it is this vital principle of the Constitution that I never will yield. The people are the fountain of all power; they are the source from which every branch of this government springs, and never shall any act of mine place one branch beyond their control… .

Editorials on the Repeal “A Friend of the Constitution” [William Cranch], No. 1 Washington Federalist 7 December 1801

… [If a provision creating a dependent judiciary] had stolen into the Constitution, offered to the states for their acceptance, we need only examine the several governments they have framed for themselves to determine what would have been its fate. We cannot doubt but that so pernicious a principle would have been universally execrated; the opponents of the Constitution would throughout our continent have taken this strong ground:—from every quarter of the nation, the danger to which liberty would have been exposed from an enslaved judiciary, would have resounded in our ears: and not all the necessity, nor all the other excellencies of that instrument, could have saved it from rejection. For this I appeal to the opinions then entertained by those who acted either in the general or state conventions, and conjure them by the sacred flame of patriotism which then glowed in their bosoms, and which cannot yet be entirely extinguished to examine well the causes which have changed their opinions, before they yield to that change.

If at any time before the late revolution in men (I hope not fatally in measure) the abstract proposition, unapplied to particular characters, of creating a dependent judiciary, had been made to the people of America, who would have been found to have supported it? Who would not with all his powers have reprobated a doctrine so fraught with baneful consequences, so surcharged with danger to the dearest rights of man? If the first or second administration could have so deviated from their principles as to have countenanced such a measure, how would it have been received by those who, under a third administration, are themselves its patrons? Let their efforts to agitate the public mind on the mission of Mr. Jay answer this question.

What can have produced this ominous change? The very men who then affected to tremble for the independence of the judiciary, because a judge might be bribed by being appointed to a temporary employment without emolument, who affected to tremble for the constitution because a judge entered on the performance of duties he was not forbidden to discharge; now boldly and openly support a measure which totally prostrates that independence, by making the office dependent on the will of the legislature, and at the same time inflicts a vital wound on the constitution, which explicitly declares the tenure of the judicial office to be during good behavior.

These things require the serious consideration, not only of the wise and good, but of all those who, from any motives whatever, wish to perpetuate to themselves and their posterity, the blessings of civil liberty.

The subject shall be more closely examined in a succeeding number.

“A Friend of the Constitution” [William Cranch], No. 5 Washington Federalist 12 December 1801

… To the judicial department in every society is committed the important power of deciding between the government and individuals, and between different individuals having claims on each other. The dearest interests of man, life, liberty, reputation, and property, often depend on the integrity and talents of the judge. All important as is this department to the happiness and safety of individuals, it is from its structure much exposed to invasion from the other departments and but little capable of defending itself from the attacks which insatiate ambition, wearing the public good as a mask, will make upon it. It wields not the sword, nor does it hold the purse. It stands aloof from both. What is still more decisive, its purity, its decorum of station, requires a total abstinence from the use of those means by which popular favor is to be obtained. In a government constituted like that of the United States, popularity is a real power, and those who hold it will always be found too mighty for such as they may choose to attack. It will be forever arranged on the side of those whom the people elect, and their very election evinces that they possess it. Whenever then the representatives of the people enter into a contest with the judges, power is all on one side, and the issue will seldom be favorable to the weaker party. The judiciary can only expect support from the considerate and patriotic, who see, when yet at a distance, the evils to result necessarily from measures to which numbers may be impelled by their present passions.

The judiciary then not only possesses not that force which will enable it to encroach on others to aggrandize itself or to enlarge its own sphere, but is not even able to protect itself in the possession of those rights which are conferred upon it for the benefit of the people. Incapable of acting offensively, its real and only character is that of a shield for the protection of innocence, a tribunal for the faithful execution and exposition of the law. This character it will retain unless it be made subservient to the views of one of the other departments of government. Thus debased, it becomes in the hands of the executive or legislature one of the most terrible instruments of oppression with which man has ever been scourged. “Were the power of judging,” says the justly celebrated Montesquieu, “joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor.”

Impressed with the force of these eternal truths, the wise and good of America, the enlightened friends of civil liberty and of human happiness, have fought to separate the judiciary from, and to render it independent of, the executive and legislative powers. They have used all the means they possessed to render this independence secure and permanent, for they have laid its foundation in the Constitution of their country. Before we tear up this foundation, and tumble into ruins the fair edifice erected on it, let us pause for a moment and examine the motives which led to its formation.

In all governments created by consent, the essential objects to be obtained are security from external force and protection from internal violence. In arming government with powers adequate to these objects, the possibility of their being turned upon individuals ought never to be forgotten. It is the province of wisdom so to modify them as not to impair their energies when directed to the purposes for which they were given, and yet to render them impotent if employed in the hateful task of individual oppression. The best security yet discovered, is found in the principle that no man shall be condemned, no pains or penalties incurred, but in conformity with laws previously enacted and rendered public.

But the acknowledgment of this principle would be of no avail without its practical use. To obtain this, the laws must be applied with integrity and discernment to the cases which occur. If the same passions which direct the prosecution dictate its decision, innocence will cease to afford protection, and condemnation will certainly follow arraignment. It is therefore indispensable to individual safety that the tribunal which decides should, as far as possible, be a stranger to the passions and feelings which accuse: that it should be actuated by neither hope nor fear: that it should feel no interest in the event and should be under the influence of no motive which might seduce it from the correct line of duty and of law.

It is not in prosecutions instituted by the government only that such a tribunal is necessary. In civil actions between man and man it is not less essential. Justice may sometimes be unpopular, and the powerful may sometimes be wrong. What shall then protect the weak? What shall shield prosecuted virtue? What but purity in the judgment seat and exemption from those prejudices and dispositions which for a time obscure right and tempt to error?

The principle which could alone preserve this purity was believed to have been discovered. It was to remove all those irresistable temptations to a deviation from rectitude which interest will create by rendering the judges truly independent—by making the tenure of their office during good behavior.… It was supposed that men thus independent would, in a sense of duty, find motives sufficiently strong to support them in an upright administration of justice against the influence of those who govern or the still more powerful influence of popular favor. If this expectation should sometimes be disappointed, it must yet be acknowledged that the principle affords the fairest prospect to be furnished by human means of obtaining a good so all important to the felicity of man… .