USA > Kentucky > A history of Kentucky and Kentuckians; the leaders and representative men in commerce, industry and modern activities, Volume I > Part 25
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Again, in the eighth resolution of the Jeffer- son series, will be found the following sig- nificant words which are not in the Breckin- ridge series: "That in cases of an abuse of the delegated powers, the members of the general government, being chosen by the peo- ple, a change by the people would be the con- stitutional remedy, but where powers are as-
sumed which have not been delegated, a nulli- fication 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."
And this eighth resolution closes with the following additional remarkable words, not to be found in the Breckinridge series: "Will each take measures of its own for providing that neither these acts nor any others of the General Government, not plainly and inten- tionally authorized by the constitution, shall be exercised within their respective terri- tories."
These two extracts from the Jefferson reso- lutions embody the doctrine of nullification, as exemplified by South Carolina in 1832, but it will be in vain to search for this doctrine in the Breckinridge, or Kentucky resolutions of 1798. And if there were no other differences between the Jefferson and Breckinridge reso- lutions, this variance is fundamental enough to assign to the two sets separate authorship and to class them as formulas of different po- litical creeds.
The Kentucky Resolutions of 1798. while asserting in its length and breadth and depth the doctrine of States Rights, look only to the repeal of unconstitutional laws passed by congress, while the Jefferson resolutions look to the nullification of such acts, and this by a single state.
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The resolutions of 1798 were adopted by the Kentucky legislature without amendment, precisely as they were offered by Mr. Breckin- ridge, but not without opposition. The op- ponents were few as compared with the advo- cates and yet quite a debate occurred between Mr. Breckinridge, the member from Fayette, and Mr. William Murray, the member from Franklin, a lawyer of commanding intellect, learning and eloquence. However interesting a report of the discussion might be to a few special readers, the large space already granted to this important subject, forbids its reproduc- tion here. Other distinguished members of the House-Thomas Clay of Madison, Phile- mon Thompson of Mason, Robert Johnson of Scott, James Smith of Bourbon and Alexan- der McGregor of Fayette-took part in the discussion, but the main debate was between Mr. Breckinridge and Mr. Murray.
On the 10th of November, 1798, the house came to a vote on the resolutions and adopted them without amendment. Just as they had been offered by Mr. Breckinridge, they re- ceived the legislative sanction. There was but one vote against the entire series, and that was by Mr. Murray. One other member voted with Mr. Murray against the second, third, fourth, fifth, sixth, seventh and eighth resolu- tions, and two joined him in voting against the ninth.
On the 13th of November, the resolutions were unanimously adopted by the senate, and on the 16th of the same month, were ap- proved by Governor Garrard. The legislature ordered one thousand copies to be printed and it is from a facsimile of one of these copies that the reproduction of these famous resolu- tions is made in this volume. In conformity with the act providing for the printing, fifty copies were delivered to the governor to be sent to the Kentucky members of congress and to the legislatures of the different states, while the remaining nine hundred and fifty
copies were divided among the legislators for distribution.
It was not long after the governor sent out these resolutions before responses began to come from the different state legislatures.
The little state of Delaware was the first to take action upon the subject. On the Ist of February, 1799, her legislature disposed of the subject in half a dozen lines which character- ized the resolutions, "As a very unjustifiable interference with the General Government and constituted authorities of the United States, and of dangerous tendency, and therefore, not a fit subject for the further consideration of the general assembly."
The yet smaller state of Rhode Island came next in opposition. She declared that the au- thority to pass upon the constitutionality of an act of congress was vested in the judiciary de- partment of the government and that she deemed the Alien and Sedition laws in accord- ance with the constitution. Clearly right in the contention that the question was one for judicial consideration in the final analysis, it is somewhat amusing to observe the legislature which made that contention at once taking judicial notice of the question involved and deciding upon its constitutionality-in other words, usurping the authority of the tribunal to which it appealed. While technically cor- rect in stating that the issues involved were for final judicial declaration, there does not appear to be any constitutional inhibition against the legislature of any state declaring its views upon any act of the congress, as Kentucky had done in the Resolutions of 1798.
Massachusetts followed Rhode Island. On the 9th of February, 1799, her legislature adopted quite a lengthy argument against the resolutions in which they took a position simi- lar to Rhode Island. While the latter had con- tented herself with briefly saying that she deemed the Alien and Sedition laws constitu- tional, Massachusetts made use of much logic
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to show that those acts were both authorized by the constitution and demanded by the exi- gencies of the times. She even argued the authority for them from the old common law and found in them a mitigation from the se- verity of that law.
New York followed on the 5th of March, with a moderately long preamble and very short resolution denouncing the resolutions as "inflammatory and pernicious" and declar- ing her "incompetency as a branch of the legislature of this state, to supervise the acts of the General Government."
In May, the legislature of Connecticut took action on the subject and showed that she re- garded the position taken by the resolutions against the Alien and Sedition acts as their most objectionable features.
On the 14th of June, New Hampshire ex- pressed herself curtly against the resolutions and assuming a belligerent attitude, declared against the resolutions and putting on her war paint, somewhat ridiculously declared that she intended to defend the constitution of the United States "against every aggression, either foreign or domestic." It does not appear to have occurred to the warlike New Hampshire statemen that the Kentucky Resolutions were a dignified and manly protest against a violation of that same constitution, to the de- fense of which they appeared to be at least legislatively inclined to fly to arms. The "rep- resentative from Bunkum" appears to have made an early appearance in the legislatures of the country and is by no means confined to any particular section.
Vermont followed on the 30th of October, with a declaration against the resolutions in which she said: "It belongs not to state legis- latures to decide on the constitutionality of laws made by the General Government, this power being exclusively vested in the judi- ciary." Again it may be stated that this con- tention appears to be correct, but the right of petition is granted to the people by the consti- fierce sound of the rifle of the savage con-
tution, and if they select to appeal through their legislature, for the repeal of laws deemed by them as obnoxious and unconstitutional, their action is within their rights and far more likely to receive the attention of the law-mak- ing body than a simple petition to congress, though the latter represents thousands of signers and be presented to the house or sen- ate by some man of distinction and then snugly tucked away in a committee room pigeon-hole, there to accumulate dust until the annual cleaning when it takes its way to the paper mill for rehabilitation.
The Kentucky Resolutions of 1798 were adopted one hundred and twelve years ago. They are still quoted today in the United States congress-in the highest courts of the country-and are recognized as a political classic, while the belligerent legislative states- men of New Hampshire, "dead and turned to clay, may serve to stop a crack and keep the winds away."
These seven states were all that enacted for- mal resolutions antagonistic to those of Ken- tucky. An equal number of states-Pennsyl- vania, New Jersey, Maryland, North Carolina, South Carolina, Tennessee and Georgia main- tained silence on the subject.
Virginia alone adopted resolutions similar to those of Kentucky ; so, that of her fifteen sister states, all that then existed, Kentucky had in response to her resolutions one avowed friend, seven open opponents and seven whose silence left conjecture to form such an opinion as it might as to their sentiments. Virginia however, was with Kentucky, and that was a mighty support. The Mother of States and of Statesmen had taken the first begotten of the republic by the tender hand and said "well done." What fear had young Kentucky of avowed enemies or doubtful mutes, when Virginia, with her wise statesmen and glorious memories, was with her? The backwoods statesmen who had so often stood firm at the
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cealed in his native wilds, were not seriously frightened by the roar of the paper artillery fired at them from the distant seashore. They had greeted their polished brethren on the sunny side of the mountains with their Reso-
lutions of 1798 couched in the genteelest lan- guage they could command, and when answers came that seemed rough for State papers they rejoined with the Resolutions of 1799, again genteel, but firm and decisive.
Vol. 1-11.
CHAPTER XXX.
AS TO ACTION OF OTHER STATES-TEXT OF 1799 RESOLUTIONS-NULLIFICATION CLAUSE - SU- PREME COURT, CONSTITUTION'S GUARDIAN.
The legislature of 1799 assembled at Frank- fort on the 4th of November and by an over- whelming majority John Breckinridge, the mover of the resolutions of 1798, was elected speaker of the house. On the following day, Governor Garrard, after delivering his inaugu- ral address, sent to the legislature the answers which the different states had made to the resolutions of 1798. It was, at first, thought best to take no further action upon these an- swers than to print eight hundred copies for distribution, which was done. Further reflec- tion, however, led to a different conclusion.
On the 8th of November, therefore, the house resolved itself into a committee of the whole on the state of the commonwealth with Joseph Desha, the member from Mason, after- wards governor of the state, in the chair, when John Breckinridge offered for adoption a pre- amble and resolution which he had drawn as a rejoiner to the answers of the different states. On the 14th of November, 1799, this preamble and resolution was unanimously adopted by the house precisely as they had been drawn and offered by Mr. Breckinridge, and after they had been concurred in by the senate and approved by the governor, went forth as the Kentucky Resolutions of 1799. Eight hun- dred copies were printed for distribution with the answers of the different states to the reso- lutions of 1798, and the following is a copy of these originals now in the possession of Col. R. T. Durrett of Louisville, to whom the author acknowledges his indebtedness there-
for, as well as for the original resolutions of 1798 prepared by Mr. Jefferson and Mr. Breckinridge.
"KENTUCKY LEGISLATURE
"In the House of Representatives, "November 14. 1799.
"The House according to the standing order of the day, resolved itself into a committee of the whole house on the state of the common- wealth, Mr. Desha in the chair, and after some time spent therein, the speaker resumed the chair and Mr. Desha reported that the committee had taken under consideration sun- dry resolutions passed by several state legisla- tures on the subject of the Alien and Sedition laws and had come to a resolution thereon which he delivered at the clerk's desk where it was read and unanimously agreed to by the house as follows :
"The Representatives of the good people of this Commonwealth in General Assembly Convened. having maturely considered the answers of several States in the Union to their resolutions passed at the last session, respecting certain unconstitutional laws of Congress, commonly called the Alien and Sedition laws, would be faithless indeed to themselves and to those they represent. were they silently to acquiesce in the principles and doctrines attempted to be main- tained in all those answers, that of Virginia alone excepted. To again enter the field of argument and attempt more fully or forcibly to expose the uncon- stitutionality of these obnoxious laws would, it is apprehended, be as unnecessary as unavailing. We cannot, however, but lament that in the discussion of those interesting subjects, by sundry of the Legis- latures of our sister States, unfounded suggestions
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and uncandid insinuations, derogatory of the true character and principles of the good people of this Commonwealth, have been substituted in place of fair reasoning and sound argument. Our opinions on those alarming measures of the General Govern- ment, together with our reasons for those opinions, were detailed with decency and with good temper, and submitted to the judgment and discussion of our fellow citizens throughout the Union. Whether the like decency and temper have been observed in the answers of most of those States who have denied or attempted to obviate the great truths contained in these resolutions we have now only to submit to a candid world. Faithful to the true principles of the Federal Union, unconscious of any designs to dis- turb the harmony of that Union and anxious only to escape the fangs of despotism, the good people of this Commonwealth are regardless of censure or calumniation. Lest, however, the silence of this Commonwealth should be construed into an acqui- escence in the doctrines and principles advanced and attempted to be maintained by the said answers, or lest those of our fellow citizens throughout the Union who so widely differ from us on these im- portant subjects, should be deluded by the expecta- tion that we shall be deterred from what we con- ceive our duty, or shrink from the principles con- tained in these Resolutions, therefore :
"Resolved, That this Commonwealth considers the Federal Union upon the terms and for the purposes specified in the late compact, as conducive to the liberty and happiness of the several States: That it does now unequivocably declare its attachment to the Union and to that compact agreeable to its obvious and real intention and will be the last to seek its dissolution : That if those who administer the General Government be permitted to transgress the limits fixed by that compact, by a total disregard to the special delegations of power therein contained. an annihilation of the State Governments and the erection upon their ruins of a general consolidated government will be the inevitable consequence.
"That the principle and construction contended for by several of the State Legislatures that the General Government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism since the discretion of those who administer the Government and not the Constitution, would be the measure of their powers: That the several States who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction, and that a nullifica- tion by these sovereignties of all unauthorized acts
done under color of that instrument is the rightful remedy : That this Commonwealth does, upon the most deliberate reconsideration, declare that the said Alien and Sedition laws, are, in their opinion, pal- pable violations of the said Constitution, and how- ever cheerfully it may be disposed to surrender its opinion to a majority of its sister States in matters of ordinary or doubtful policy, yet in momentous regulations like the present, which so vitally wound the best rights of the citizen, it would consider a silent acquiescence as highly criminal: That al- though this Commonwealth, as a party to the Federal compact, will bow to the laws of the Union, yet it does, at the same time, declare that it will not now, nor ever hereafter, cease to oppose in a constitu- tional manner, every attempt, from what quarter so- ever offered, to violate that compact, and finally, in order that no pretexts or arguments may be drawn from a supposed acquiescence in the part of this Commonwealth in the constitutionality of those laws, and be thereby used as precedents for similar future. violations of the Federal Compact, this Common- wealth does now enter against them its solemn pro- test."
These resolutions, while firmly reasserting those of 1798, contain the following nullifica- tion words not to be found in those of 1798: "That the several states who formed that in- strument, being sovereign and independent, have the unquestionable right to judge of its infraction and that a nullification by those sovereignties of all unauthorized acts done under color of that instrument, is the rightful remedy."
This, however, is quite a different nullifica- tion from that of Mr. Jefferson, whose reso- lutions assert the right of a single state to nullify an act of congress, while those of Mr. Breckinridge lodge this power in all the states, subject to the constitution. The differ- ence is broad ; it is the difference between one and all ; the difference between one and many. In the debate upon the resolutions of 1798, Mr. Breckinridge took the ground that a ma- jority of the states might rightfully nullify an unauthorized act of congress. The nearest that he approached to the doctrine of nullifi- cation as asserted by Mr. Jefferson, was that
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a majority of the states, acting in their sover- eign capacity and exercising original powers not delegated to congress, might declare null and void an act of congress plainly unauthor- ized by the constitution and protect their citizens from its operation within their re- spective domains. And this seems to have been the Kentucky understanding of these resolutions, for it appeared from the answers that came from the different states, that nearly a majority had declared against the resolutions of 1798 instead of in favor of them, and that Virginia alone was in full sympathy with Kentucky. The resolutions of 1799 ended with a solemn protest against the unconstitutional acts instead of providing for ordinances to nullify them and protect citi- zens from their operation.
Ours is a constitutional government de- signed to be ordered at all times in accord- ance with an instrument made more than a century ago modified from time to time in solemn manner; treated as a sacred thing born of deliberation hardly less inspired by infallible wisdom than were the writers of Holy . Writ. We maintain a ponderously learned body of men whose most sacred duty it is to keep us in the way of obedience to the constitution. It is seemingly assumed that to vary from the constitution is to commit the unpardonable sin. Our land has been wet with the precious blood of our own people because of this constitution. Sacred though it be, yet the people are strongly at variance in the construction of that instrument. Though the greatest civil war of all history has solved certain of its problems, there re- main yet others to vex and disturb the com- monwealth. Chief Justice Marshall, the
greatest exponent of that instrument, is said by some learned in the law to have given vital form to the meaning of the Great Char- ter of our government. Others, great in their legal knowledge, have disagreed, they dis- agree today with the chief justice of the high- est court in Christendom. The very authors of that great instrument fell out among them- selves, as to the meaning of their act. The differences of their day are the differences of today; will be the differences until time has passed away and the heavens are rolled to- gether like a scroll. It became the bond of union of the colonies with, in certain in- stances, a half-hearted acceptance by those who sacrificed their individual and separate political and national entity for the beautiful promises of federation.
To some thoughtful ones our representative government has over it the shadow of failure, in that the people's representatives do not represent the people's good. The representa- tive should be not merely the mouthpiece of those by whom he is elected; he should be their leader, their wise counsellor, their best friend, expert in public things, clean in his great office. Too often, he is not all this, but because he is not, none should despair of con- stitutional government. The system of our government is a true one, our constitution in the momentous contest of the War Between the States stood the test of the greatest con- flict known to modern ages and if, unhappily, it must meet yet other great tests, the hope and patriotic strength of the people will be about it as a buckler and a shield and it will emerge purified, it may be, by the fires of contest, but yet stronger and more beautiful for the perils through which it has passed.
CHAPTER XXXI.
KENTUCKY'S FIRST CONSTITUTION-NEW CONSTITUTIONAL CONVENTION-A SHORT CONVEN- TION, AND A LONG-FRANCE REJECTS AMERICAN MINISTERS-OUTRAGES ON AMER- ICAN SHIPPING-KENTUCKY DIVIDED IN SENTIMENT-WASHIINGTON AGAIN COMMANDER- IN-CHIEF-AMERICAN NAVAL VICTORIES-PEACE WITH NAPOLEON'S COMING.
The people of Kentucky, many of them at least, were not satisfied with the provisions of their first constitution, as many of those of today are dissatisfied with the latest produc- tion of a constitutional convention which sup- plied the organic system under which the state today endeavors to advance in material interests, yet finds its steps clogged by the un- wise provisions of a crudely conceived and unwisely constructed instrument. It is no answer to this indictment to state that the people of the state at the polls approved of the new constitution by a majority of more than 130,000. The wonder is that the major- ity was not greater. The people of Kentucky were inclined to accept any constitution offered them, rather than have that conven- tion go back to Frankfort and again endeavor to evolve an organic law. They voted for our latest constitution in fear and trembling, hop- ing thus to escape a possibly worse fate. Those who think these words too strong are requested to study the provisions of the pres- ent constitution of Kentucky on the subject of taxation.
But to return to the first constitution is a pleasing relaxation after considering the lat- est production the state has endured in that line. Under the provisions of an act of the legislature, the people in 1797 voted upon the question of calling a convention for the enact- ment of a new constitution. There were then
twenty-one counties organized in the state. The vote in favor of a new constitution was 9,814, for, and 440 against it; but as five counties made no returns, the requisite con- stitutional majority was not apparent and the proposition therefore failed.
At the succeeding session of the legislature a bill providing for a second vote passed the house but was defeated in the senate. The people resented this action and demanded that at the next election they be given the right to express their views as to the calling of a con- vention. There was much discussion in the press and on the hustings. Kentuckians have long been noted for the tendency to have their opinions known of men; they have never been proven guilty of the charge of reticence, but, to the contrary, have always, without fear or favor, informed the world of their opinions. So, in this matter of a second call for a convention there was much eloquence on the hustings and an enlarged discussion in the then meager press of the state.
Under the first constitution, a body of electors, not the voters at large, chose the governor and also the members of the senate. The people, very naturally did not like these conditions. They had fought King George in the Revolution for the right to be represented by men of their own choice; they had fought the Indian for the right to live in Kentucky, and they did not propose to have a small and
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select body of men say who should be their governor, or who should sit as their grave and reverend senators.
Notwithstanding this sentiment, the vote in favor of a new constitution again failed to re- ceive the necessary majority, through ten counties failing to report the vote cast therein. The sentiment in favor of a convention, how- ever, was so strong that when the general assembly met, the necessary two-thirds ma- jority was received and authority was given for the assembling of a constitutional conven- tion which assembled July 22, 1799, with Alexander C. Bullitt, of Jefferson, as presi- dent and Thomas Todd as secretary. The new organic law provided that the governor should be chosen for a term of four years by a majority of the electorate at the polls, in- stead of by a small body of electors who also chose the senate. This latter body, it was provided, should be chosen by the people in twenty-four senatorial districts, an additional senator to be chosen for the three representa- tives who should be chosen above fifty-eight. After the first three years, the senators held their offices for four years as now. The gov- ernor's disapproval of an enactment of the general assembly, instead of being absolute, as under the first constitution, could be overruled by a majority of each house. as is provided today. These changes were the most impor- tant made in the first instrument and after being in session but twenty-seven days, the Convention adjourned, declaring that the for- mer Constitution should remain in full force and effect until June 1, 1800, on which date the second instrument was to become effect- ive.
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