USA > Kentucky > A history of Kentucky and Kentuckians; the leaders and representative men in commerce, industry and modern activities, Volume I > Part 24
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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 as- sumption 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 be- fore specified should stand, these conclusions would flow from them, that the General Government may place any act they think proper on the list of crimes and punish it themselves whether enumerated or not enumerated by the Constitution as 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 suspi- cions may be the evidence, his order the sentence, his officer the executioner, and his breast the sole record of the transactions ; 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 for us all, no ram- part now remains against the passions and the power of a majority in Congress to protect from a like ex- portation, 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 re- claim 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 suspicion of the President, or be thought dan- gerous to his or their elections or other interests public or personal; that the friendless alien has in- deed been selected as the safest subject of a first experiment, but the citizen will soon follow ; 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 revolu- tion and blood, and will furnish new calumnies against republican governments and- new pretexts for those who wish it to be believed that man can- not 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 con-
fidence 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 would 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 as- sented to and accepted, over the friendly strangers to whom the mild spirit of our country and its laws had pledged hospitality and protection ; that the men of our choice have more respected the bare suspicions of the President than the solid rights of innocence, the claims of justification, the sacred force of truth and the forms and substance of law and justice; in questions of power then let no more be heard of confidence in man but bind him down from mischief by the chains of the Constitution; that this Common- wealth does therefore call on its co-States for an expression of their sentiments on the acts concerning aliens and for the punishment of certain crimes hereinbefore specified; plainly declaring whether these acts are, or are not. authorized by the Federal compact.
"And it doubts not that their sense will be so enounced 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 em- banked in a common bottom with their own; that they will concur with this Commonwealth in con- sidering the said acts as so palpably against the Constitution as to amount to an undisguised declara- tion that that compact is not meant to be the meas- ure of the powers of the General Government, but that it will proceed in the exercise over these States of all powers whatsoever; that they will view this as seizing the rights of the States and consolidating them in the hands of the General Government with a power assumed to bind the States (not merely in the cases made Federal) but in all cases whatso- ever, 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 to live under one deriving its powers from its own will and not from our authority, and that the co-States recurring to their natural rights, in cases not made Federal, will concur in declaring these acts void and of no force, and will each take meas- ures of its own for providing that neither these acts nor any others of the General Government not plainly and intentionally authorized by the Constitu-
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tion, shall be exercised within their respective ter- ritories.
"(9)-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 of the co-States to correspond or confer
with them, and that they lay their proceedings before the next session of the Assembly."
"NOTE .- Richmond, March 21, 1832-I have care- fully compared this copy with the Mss. of these resolutions in the handwriting of Thomas Jefferson, and find it a correct and full copy."
"(Signed) TH. JEFFERSON RANDOLPH."
CHAPTER XXVIII.
THE BRECKINRIDGE RESOLUTIONS-TEXT OF ADOPTED RESOLUTIONS-FREEDOM OF SPEECH VIOLATED-ALIEN LAW NULL AND VOID-UNLAWFULLY DEPRIVED OF LIBERTY-PROTEST AGAINST CENTRALIZED GOVERNMENT-CALL UPON THE CO-STATES.
On November 5, 1798, the legislature of Kentucky assembled at Frankfort. On the 7th, John Breckinridge gave notice that on the following day he would move the house to go into committee of the whole for the consid- eration of that portion of the executive's mes- sage which related to the Alien and Sedition laws. Accordingly on the 8th, the house went into committee of the whole on the motion of Mr. Breckinridge, who then offered for adop- tion the Kentucky Resolutions of 1798.
As these resolutions have been so often in- accurately printed, nothing short of a repro- duction of them precisely as they came from the Kentucky legislature would be just or proper. The only difference between the orig- inal and the copy which follows is found in adopting the modern style of spelling, instead of that of the original, and the use of the letter "s" for that of "f" wherever the latter was used, in accordance with the custom and usage of that date.
"KENTUCKY LEGISLATURE "In the House of Representatives "November 10th, 1798
"The House, according to the standing Or- der of the Day, resolved itself into a Commit- tee of the Whole on the state of the Common- wealth
"Mr. Caldwell in the chair.
"And after some time spent therein, the Speaker resumed the Chair and Mr. Caldwell
reported that the Committee had, according to order, had under consideration the Gover- nor's Address and had come to the following resolutions thereupon, which he delivered in at the Clerk's table where they were twice read and agreed to by the House.
I-"Resolved, That the several States com- posing the United States of America, are not united on the principle of unlimited submis- sion to their General Government, but that by compact under the style of a Constitution for the United States and of amendments thereto, they constituted a General Government for special purposes, delegated to that Govern- ment certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whenso- ever the General Government assumes undele- gated powers, its acts are unauthoritative, void and of no force. That to this compact, each State acceded as a State and in an inte- gral 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 parties having no common Judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.
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II-"Resolved, that the Constitution of the United States, having delegated to Congress a power to punish treason, counterfeiting the se- curities and current coin of the United States, piracies and felonies committed on the High Seas, and offences against the laws of nations, and no other crimes whatever, and it being true, as a general principle, and one of the amendments to the Constitution having also declared 'that the powers not delegated to the United States by the Constitution, nor pro- hibited by it to the States, are reserved to the States respectively or to the people,' therefore, also the same act of Congress passed on the 14th day of July, 1798, and entitled 'An act in addition to the act entitled an act for the pun- ishment of certain crimes against the United States ;' as also, the act passed by them on the 27th day of June, 1798 entitled 'An act to punish frauds committed on the Bank of the United States' ( and all other, their acts which assume to create, define or punish crimes other than those enumerated in the Constitution,) are altogether void and of no force and that the power to create, define and punish such other crimes is reserved and of right, apper- tains solely and exclusively to the respective States, each within its own territory.
III-"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 to it by the the States, are reserved to the States respec- tively 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 prohib- ited by it to the States, all lawful powers re- specting the same did, of right, remain and were reserved to the States or to the people : That thus was manifested their determination to retain to themselves the right of judging how far the licentiousness of speech and of the press may be abridged without lessening
their useful freedom, and how far those abuses which cannot be separated from their use, shall be tolerated rather than the use be destroyed ; and thus also, they guarded against all abridgement by the United States of the freedom of religious opinions and exercises and retained to themselves the right of pro- tecting the same as this State, by a law passed on the general demand of its citizens, had al- ready protected them from all human restraint or interference. And that, in addition to this general principle and express declaration, an- other and more special provision has been made by one of the amendments to the Con- stitution which expressly declares that 'Con- gress shall make no law respecting an estab- lishment of religion or prohibiting the free exercise thereof or abridging the freedom of speech or of the press' thereby guarding in the same sentence and under the same words, the freedom of religion, of speech and of the press, insomuch that whatever violates either throws down the sanctuary which covers the others, and that libels, falsehoods and defama- tion equally with heresy and false religion, are witheld from the cognizance of Federal tribu- nals. That, therefore, the Act of the Con- gress of the United States passed on the 14th day of July, 1798, entitled 'An act in addition to the 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 effect.
IV-"Resolved, that alien friends are under the jurisdiction and protection 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 powers over citizens; and, it being true as a general principle and one of the amendments of the Constitution having also declared, that 'the powers not delegated to the United States by the Constitution nor pro- hibited by it to the States are reserved to the States respectively or to the people' the Act
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of the Congress of the United States passed on the 22d day of June, 1798, entitled 'An act concerning aliens, which assumes power over alien friends not delegated by the Constitu- tion, is not law but is altogether void and of no force.
V-"Resolved, That in addition to the gen- eral principle, as well as the express declara- tion, that powers not delegated are reserved, another and more special provision inserted in the Constitution from abundant caution, has declared 'that the migration or importa- tion 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 or equiv- alent to a prohibition of their migration, and is therefore contrary to the said provision of the Constitution and void.
VI-"Resolved, That the imprisonment of a person under the protection of the laws of this Commonwealth on his failure to obey the simple order of the President to depart out of the United States, as is undertaken by the said act entitled 'An act concerning aliens' is contrary to the Constitution, one amendment 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 a 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 defence,' the 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 accu- sation, without jury, without public trial, with- out confrontation of the witnesses against him, without having 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 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 provided 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 judicial power is to that magistrate of the General Government who already possesses all the Executive, and a qualified negative in all the legislative powers.
VII-"Resolved, That the construction ap- plied by the General Government (as is evi- denced 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, imposts and ex- cises ; to pay the debts and provide for the common defence and general welfare of the United States, and to make all laws which shall be necessary and proper for carrying into execution the powers vested by the Con- stitution in the Government of the United States, or any Department thereof, goes to the destruction of all the limits prescribed to their power by the Constitution-that words meant by that instrument to be subsidiary only to the execution of the limited power ought not to be so construed as themselves to give unlimited powers, nor a part so to be taken as to destroy the whole residue of the instru- ment; that the proceedings of the General Government under color of these articles will
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be a fit and necessary subject for revisal and correction at a time of greater tranquility while those specified in the preceding resolu- tions call for immediate redress.
VIII-"Resolved, That the preceding Reso- lutions be transmitted to the Senators and Representatives in Congress from this Com- monwealth who are hereby enjoined to pre- sent the same to their respective houses and to use their best endeavors to procure at the next session of Congress a repeal of the aforesaid unconstitutional and obnoxious acts.
IX-"Resolved, lastly, that the Governor of this Commonwealth be and is hereby author- ized and requested to communicate the preced- ing resolutions to the Legislatures of the sev- eral States ; to assure them that this Common- wealth considers Union for specified national purposes, and particularly for those specified in their late Federal Compact, to be friendly to the peace, happiness and prosperity of all the States; that, faithful to that compact ac- cording 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 their powers of self-government and transfer them to a gen- eral and consolidated Government without re- gard to the special delegations and reserva- tions solemnly agreed to in that compact, is not for the peace, happiness or prosperity of these States, and that therefore, this Com- monwealth is determined, as it doubts not its co-States are, tamely to submit to undelegated and consequently unlimited powers in no man or body of men on earth: that if the acts be- fore specified should stand, these conclusions would flow from them: That the General Government may place any act they think proper on the list of crimes and punish it themselves, whether enumerated or not enum- erated 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 execu- tioner, and his breast the sole record of the transaction ; that a very numerous and valu- able discription of the inhabitants of these States being, by this precedent, reduced as out- laws 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 power of a major- ity of Congress to protect them from a like exportation or other more grievous punish- ment the minority of the same body, the Legis- latures, Judges, Governors and Counsellors of the States nor their other peaceable inhabi- tants who may venture to reclaim the constitu- tional 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 elections or other interests, public or personal : that the friend- less alien has indeed been selected as the safest subject of a first experiment, but the citizen will soon follow, or rather has already fol- lowed for already has a Sedition act marked him as its prey ; that these and successive acts of the same character, unless arrested on the threshold, may tend to drive these States into revolution and blood, and will furnish new calumnies against Republican Governments and new pretexts for those who wish it to be believed that man cannot be governed except 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
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may go, and let the honest advocates 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 Govern- ment is if it be not a tyranny which the men of our choice have conferred on the President and the President of our choice has assented to and accepted, over the friendly strangers to whom the mild spirit of our country and its laws, had pledged hospitality and protection ; that the men of our choice have more re- spected the bare suspicions of the President than the solid rights of innocence, the claims of justification, the sacred force of truth and the forms and substance of law and justice. In questions of power then, let no more be heard of confidence in man but bind him down from mischief by the chain of the Con- stitution.
"That the 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 Govern- ment, whether general or particular, and that the rights and liberties of their co-States will be exposed to no dangers by remaining em- barked on a common bottom with their own. That they will concur with the Commonwealth in considering the said acts as so palpably against the Constitution as to amount to an
undisguised declaration that the Compact is not meant to be the measure of the powers of the General Government but that it will pro- ceed in the exercise and these States of all powers whatsoever: That they will view this as seizing the rights of the States and consoli- dating them in the hands of the General Gov- ernment with a power assumed to bind the States (not merely in cases made Federal) but in all cases whatsoever by laws mnade, not with their consent but by others against their consent ; That this would be to surrender the form of government we have chosen, and to live under one deriving its powers from its own will and not from our authority, and that the co-States, recurring to their natural rights in cases not made Federal, will concur in de- claring these acts void and of no force, and will each unite with this Commonwealth in requesting their repeal at the next session of Congress.
"EDMUND BULLOCK, S. H. R. "JOHN CAMPBELL, S. S. pro tem.
"Passed the House of Representatives Nov. 10, 1798.
"Attest THOMAS TODD, C. H. R.
In Senate, November 13, 1798; unanimously concurred in.
Attest B. THURSTON, Clk. Senate.
Approved Nov. 16, 1798. JAMES GARRARD, G. K.
By the Governor HARRY TOULMIN, Secretary of State.
CHAPTER XXIX.
NULLIFICATION NOT IN KENTUCKY RESOLUTIONS-ADOPTED WITHOUT. AMENDMENT-SOURCE OF FOREGOING DRAFT-OTHER STATE LEGISLATURES RESPOND SUPPORTED BY MOTHER ALONE.
By comparing the Jefferson resolutions with those of Breckinridge, it will be seen that there is a radical difference between them. The Jefferson set provide, at the beginning of the eighth resolution, which is a long one, em- bodying various matters, for a committee of conference and correspondence to communi- cate the resolutions to the different state legis- latures, with a view to inducing these bodies to declare null and void acts of congress not au- thorized by the constitution, while the eighth resolution in the Breckinridge set is short and provides only for transmitting the resolutions to the Kentucky senators and representatives in congress, with a view to securing the repeal of the unconstitutional acts.
Human ingenuity could hardly use words to express thoughts and embody principles more antagonistic. To repeal an act of congress in the way pointed out by the constitution, has no conceivable similarity with its nullification by a single state, in its assumption of a sover- eignty over and above congress. The two principles are the antipodes of the political globe.
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