USA > Kentucky > A history of Kentucky and Kentuckians; the leaders and representative men in commerce, industry and modern activities, Volume I > Part 23
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Not so, however, with the resolutions of young Kentucky, a state only half a dozen years old, when she made them. Her resolves have been living things, fair, active and mighty, from their birth more than five score years ago, until the present moment. They were the strong foundation on which stood the Republican organization, when it began those assaults upon the Federalists which ended in the downfall of the latter and the triumph of the former. They were the broad platform of the great Democratic party which succeeded the Republican. (It may not be pleasant for certain uninformed Democrats of today to know that that party in the days of Jefferson was known as the Republican party.) These resolutions were the animating spirit of the states-rights politicians, who were strong
when the constitution was adopted and whose numbers are yet legion in different parts of our country. They were the badge of true Democracy, the test of the accepted faith of the party for two generations after their adoption, and there are numerous Democrats yet in the land who cherish them as their po- litical gospel. They were claimed, though erroneously, to have furnished the Prome- thean spark which kindled the fiery ordinance of nullification in South Carolina in 1832. They are believed by numbers to have im- parted inspiration to the seceding sovereign states in 1860, which waged against the United States the most stupendous civil war of modern times. They still have their place in the political heart of millions of our people, north, south, east and west, as fresh and po- tent as they were when issued by the Ken- tricky legislators more than one hundred years ago.
But famous and enduring as these resolu- tions have been, they have come to our times through tradition and through history, marred by errors in their wording and false interpre- tation of their meaning. Although they have again and again been printed in handbills, in pamphlets and in books, it is hardly too much to say that with one exception there has never been a full and accurate reproduction of them in any single publication since they were adopted by the Kentucky legislature. Their authorship has been partly attributed to one
* The greater part of the following two chapters is from the pen of Col. R. T. Durrett and originally appeared in the "Southern Bivouac." The mat- ter is reproduced here by his permission .- Author. Vol. I-10.
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who had no share in their composition, and their exclusive paternity has been claimed for one of the illustrious trio who conceived them, when each of his colleagues was entitled to at least a part of the honor. And so the errors in regard to them have gone on and on, until the distinguished Kentuckian who sat in the conference which conceived them, presented them to the legislature and had them adopted by that body, and, in reality, had more to do with them than any other man, has been writ- ten down in some histories as having, like an automaton, only presented another's work to the legislature which adopted them, and, in others, as having had no connection with them whatever. Even as eminent a historian as Richard Hildreth commits the error of plac- ing George Nicholas, instead of John Brecken- ridge, in the conference at Monticello which originated them, and in the legislature which adopted them.
With a view to correcting some of these historic blunders, and laying before the reader of today an accurate copy of these resolutions, as well as other papers connected with them and necessary for their proper understanding, this chapter is undertaken. To accomplish this end, no way seems so simple as a plain statement of the historic facts concerning these resolutions and a reproduction of them, together with other papers connected with them from originals which have long been out of print and which are now so rare as to be out of reach of the general reader. As these resolutions, although issued in Kentucky, were not local in character but eminently national in their scope, there must be many outside of this commonwealth who will be thankful for a true sight of these celebrities of the eight- eenth century.
In the summer of 1798, the Acts of Con- gress known as the Alien and Sedition laws, were passed, the former on the 22d of June and the latter on the 14th of July. The Alien act was designed to rid the country of ob-
noxious foreigners and the Sedition act to punish citizens whose tongues spoke and whose pens wrote too severely against the president and the congress. Never were acts of congress received by a vast majority of the people with more bitter and deep condemna- tion. A cry of indignation went up against them from every quarter of the land. Peti- tions for their repeal, loaded with long lists of signatures, poured in from near and distant sections. Public meetings were held in differ- ent states at which burning resolutions of de- nunciation were adopted and defiant speeches uttered by flaming orators. The opposition newspapers were gorged with terrific articles over such tyrant-destroying signatures as "Brutus" and "Cassius" and inflammatory pamphlets issued to swell the fearful cry of abhorrence. Distinguished foreigners, who had helped with their money or their swords, to gain our liberty, fled from the home of the free as from a land reeking with pestilence. The officers of the Federal courts, meta- morphosed into human gaggers and news- paper censors, used the might of their position for crushing their fellow citizens who had presumed to write or speak unbecomingly of the powers that ruled. Matthew Lyon, a member of congress from Vermont, was in- dicted in the United States court of that state for having too severely criticised the conduct of the president and of the congress, and was fined one thousand dollars and incarcerated in the loathsome prison of Vergennes for four months. The grandson of Matthew Lyon was afterward a prominent citizen of Kentucky, and as Gen. H. B. Lyon, won distinction as a gallant leader of Confederate cavalry in the War between the States.
Indictments were found against other lead- ing men for similar offenses and the fate of Lyon was held up as an earnest of what all might expect who presumed to exercise the freedom of speech and the freedom of the press, guaranteed by the second amendment of
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the constitution. The Federal majority which passed these obnoxious laws still existed in congress, but blind to this portentious rising of the people against them, calmly looked upon the gathering storm without due efforts to ar- rest it until it gathered a strength which fin- ally swept them from power.
In the midst of this tremendous excite- ment incident to the Alien and Sedition laws, John Breckinridge of Kentucky and Wilson C. Nicholas, of Virginia, on a visit to Monti- cello in the fall of 1798 had a conference with Thomas Jefferson, the leader if not the father of the then Republican party, as to the consti- tutionality of these laws and the best mode of averting their danger. From a letter after- wards written by Mr. Jefferson to J. Cabell Breckinridge, a son of John Breckinridge, some important facts are learned as to this meeting of these three distinguished gentle- men and the origin of the Kentucky Resolu- tions. As this letter, when a copy of it was found among the papers of Mr. Jefferson by his executor, was erroneously assumed to have been written to a son of Mr. Nicholas and first given to the public addressed to
Nicholas, on page 344 of the fourth volume of Mr. Randolph's "Life of Jefferson ;" and as this mistake has been unfortunately repeated not only in histories of Kentucky, but those of other states and of the United States, a repro- duction of it here is necessary to the truth of history, as well to the elucidation of the Reso- lutions. The letter in question is as follows :
"MONTICELLO, Dec. 11/21.
"Dear Sir: Your letter of Dec. 19th places me under a dilemma which I cannot solve, but by an exposition of the naked truth. I would have wished this rather to have remained as hitherto, without en- quiry, but your enquiries have a right to be an- swered. I will do it as exactly as the great lapse of time and a waning memory will permit me. I may misremember indifferent circumstances but can be right in substance. At the time when the Re- publicans of our country were so much alarmed at the proceedings of the Federal ascendancy in Con- gress, in the Executive and the Judiciary depart-
ments, it became a matter of serious consideration how head could be made against their enterprises on the Constitution. The leading Republicans in Congress found themselves of no use there, brow- beaten as they were by a bold and overwhelming majority. They concluded to retire from that field; take a stand in their State legislatures, and en- deavor there to arrest their progress. The Alien and Sedition laws furnished the particular occasion. The sympathy between Virginia and Kentucky was more cordial and more intimately confidential than between any other two States of Republican policy. Mr. Madison came into the Virginia Legislature I was then in the Vice Presidency and could not leave my station, but your father, Col. W. C. Nich- olas, and myself happening to be together, the en- gaging the co-operation of Kentucky in an energetic protestation against the constitutionality of these laws became a subject of consultation. Those gen- tlemen pressed me strongly to sketch resolutions for that purpose, your father undertaking to present them to that Legislature with a solemn assurance, which I strictly required, that it should not be known from what quarter they came. I drew and delivered them to him and in keeping their origin secret he fulfilled his pledge of honor. Some years after this, Col. Nicholas asked me if I would have any objec- tion to its being known that I had drawn them. I pointedly enjoined that it should not. Whether he had unguardedly intimated it before to any one I know not, but I afterwards observed in the papers repeated imputations of them to me; on which, as has been my practice on all occasions of imputation, I have observed entire silence. The question, in- deed, has never before been put to me, nor should I answer it to any other than yourself. seeing no good end to be proposed by it, and the desire for tran- quility inducing with me a wish to be withdrawn from public notice. Your father's zeal and talents were too well-known to deserve any additional dis- tinction from the penning these resolutions. That circumstance surely was of far less merit than the proposing and carrying them through the Legisla- ture of his State. The only fact in this statement on which my memory is not distinct is the time and occasion of the consultation with your father and Mr. Nicholas. It took place here, I know, but whether any other person was present, or communi- cated with, is my doubt. I think Mr. Madison was either with us or consulted, but my memory is un- certain as to minute details. I fear, dear sir, we are now on such another crisis with this difference only, that the Judiciary branch is alone and single- handed in the present assaults on the Constitution,
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but its assaults are more sure and deadly, as from an agent seemingly passive and unassuming. May you and your contemporaries meet them with the same determination and effect as your father and his did the Alien and Sedition laws, and preserve inviolate a Constitution which, cherished in all its chastity and purity, will prove in the end a blessing to all the nations of the Earth. With these prayers, accept those for your own happiness and pros- perity."
"THOMAS JEFFERSON."
While it is painful to see, in the foregoing letter, so broad a claim upon the part of Mr. Jefferson to the authorship of these resolu- tions, without an ample acknowledgment that they were drafted in conformity with the previously agreed views of himself, John Breckinridge and Wilson C. Nicholas and pos- sibly Mr. Madison, and without a suggestion that they had been materially altered by John Breckinridge before he laid them before the Kentucky legislature which adopted them, the letter shows that in this meeting at Monticello, it was agreed between these distinguished gen- tlemen that the best way to counteract the Alien and Sedition laws was to array the state legislatures against them. To this end, a se- ries of resolutions was to be prepared for the Kentucky legislature which should make this state, in cooperation with Virginia, put forth a solemn protest against the constitutionality of these laws, and Mr. Breckinridge, then a member of the Kentucky legislature, was to undertake to have them adopted by that body. This conclusion having been reached at the conference, it was but natural and courteous that Mr. Jefferson should have been invited to draft the resolutions. He was vice presi- dent of the United States and the acknowl- edged leader of the political party then gather- ing strength for its impending conflict with the Federalists and destined in its triumph, to make him the successor of Mr. Adams in the presidential chair. The conference, moreover, was at the home of Mr. Jefferson, and it would have been scarcely less than rude for
his guests not to have urged their host to sketch the resolutions. When the promise, therefore, of secrecy, was made, Mr. Jeffer- son did draw a series of resolutions and de- liver them to Mr. Breckinridge.
The resolutions thus drawn by Mr. Jeffer- son were not, however, identical with those which Mr. Breckinridge afterwards presented to the Kentucky legislature and which were adopted by that body. The first seven of the Breckinridge, or Kentucky resolutions, are the same as these numbers of the Jefferson draft, except as to a few unimportant verbal changes ; but the eighth and ninth of the Breckinridge or Kentucky set, are radically different from these numbers in the Jefferson draft. Mr. Breckinridge, after receiving the Jefferson draft, evidently exercised his right to so alter the text as to make the resolutions meet his own views and conform to his under- standing of their tenor and import as agreed in the conference. As it is the purpose of this paper to supply both the Jefferson and the Breckinridge or Kentucky resolutions, no at- tempt is made here to point out the differences between the two. As the Jefferson resolutions come first in historical sequence, they are given first here, from a copy of them as found in his papers after his death, by his executor, Mr. Thomas Jefferson Randolph :
TEXT OF JEFFERSON RESOLUTIONS.
"Resolved: That the several States composing the United States of America, are not united on the principle of unlimited submission to the 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 Gen- eral 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 cre-
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ated 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 descretion 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 fel- onies upon 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 de- clared, 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 the people,' therefore the act of Congress passed on the 14th of July, 1798, and entitled 'An act in addi- tion 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 other their 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 ex- clusively 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 Constitu- tion nor prohibited by it to the States, were 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 pro- hibited by it to the States, all lawful powers respect- ing the same did of right remain and were reserved to the States or the people: that thus was manifested their determination to retain 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 can- not be separated from their use, should be toler- ated rather than the use be destroyed; and thus also, they guarded against all abridgement by the United States of the freedom of religious opin- ions and exercises, and retained to themselves the
right of protecting the same; as this State by law passed on the general demand of its citizens, had already protected them from all human restraints 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 sen- tence and under the same words, the freedom of re- ligion, of speech and of the press, insomuch that whatever violates either throws down the sanctuary which covers the others and that libels, falsehood and defamation, equally with heresy and false re- ligion, 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 an 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 pro- hibited to the individual States distinct from their power over citizens, and it being true, as a gen- eral principle and one of the amendments to the Constitution having also declared that 'the powers not delegated to the United States by the Constitu- tion 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 con- cerning aliens.' which assumes power over alien friends not delegated by the Constitution, is not law but is altogether void and of no force
"(5)-Resolved: That in addition to the general principle, as well as the express declaration that powers not delegated are reserved. another and more special provision 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 emigration of alien friends described as the sub- jects of the said act concerning aliens; that a pro- vision against prohibiting their migration is a pro- vision against all acts equivalent thereto, as it would be nugatory; that to remove them when emigrated
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is equivalent to a prohibition of their migration and is therefore contrary to the said provision of the Constitution and void.
"(6)-Resolved : That the imprisonment of a person under the protection of the laws of this Commonwealth on his failure to obey the simple order of the President to depart out of the United States, as is undertaken by the said act entitled 'an act concerning aliens,' is contrary to the Constitu- tion, one amendment of 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 proceedings the accused shall enjoy the right to a public trial by an impartial jury ; to be informed of the nature and cause of the ac- cusation ; to be confronted with the witnesses against him; to have compulsory process for obtaining wit- nesses in his favor, and to have the assistance of counsel for his defense.' The same act, undertaking to authorize the President of the United States to remove a person out of the United States who is under the protection of the law, on his own suspi- cion, without accusation, without jury, without public trial, without confrontation of the witnesses against him, without hearing witnesses in his favor, with- out defense, without counsel, is contrary to these provisions. also of the Constitution, is therefore not law, but utterly void and of no force; that trans- ferring the power of judging any person who is under the protection of the law, 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 that the said act is void for that reason also; and it is further to be noted that this transfer of judiciary power is to that magistrate of the General Government who already possesses all the executive and a negative on all the 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 debt 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 Govern- ment of the United States or in any department or offices thereof,' goes to the destruction of all the
limits prescribed to their power by the Constitution ; that words meant by that instrument to be subsidiary only to the execution of 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 proceed- ings 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 tranquility while those specified in the preceding resolutions call for immediate redress.
"(8)-Resolved : That a committee of Confer- ence and Correspondence be appointed, who shall have in charge to communicate the preceding resolu- tions to the Legislatures of the several States; to assure them that this Commonwealth continues in the same esteem for 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 pur- poses, and particularly for those specified in their late Federal Compact, to be friendly to the peace, hap- piness 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 delega- tions and reservations solemnly agreed to in that compact, is not for the peace, happiness nor pros- erity of these States; and, that therefore, this Com- monwealth is determined, as it doubts not its co- States are, to submit to undelegated and conse- quently unlimited powers in no man or body of men on earth; that in cases of the 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 right remedy; that every State has a natural right, in cases not within the compact, to nullify of their own authority all assumptions of power by others within their limits ; that without their right they would be under the dominion, absolute and unlimited, of whatsoever 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
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