USA > Kentucky > A history of the commonwealth of Kentucky > Part 27
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It is not meant by the author to shield, or apologize for the licentiousness of the press, for its wanton impugning the motives of public men, and the imputation of its own scan- dalous inventions, much less its unprincipled dissemination of known falsehoods. All such offences, independent of their heinous immorality, their violation of all honorable decorum and liberal discussion in lacerating private feelings, are essen- tially destructive of the sound and valuable influence of the press. It has already impaired the weight which this great instrument of intellectual and moral circulation ought to have on the community. The frequency of falsehood perplexes the discrimination of truth; and the press ceases to be a credible witness at the bar of the public.
But are penal laws the proper instructors for the communi- ty in liberality and decorum of political discussion? Can they
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infuse the moral sensibility and sympathy, which shall cor- rect the fierce and ferocious effusions of political passions and prejudices? No government or court is competent to exercise, these high attributes of political and critical cen- sorship. Opinions are only to be combatted by argument and wit; they are not to be confounded with matters of fact, which may be susceptible of precise testimony and proof. These are the regions of mental freedom, which ought to be open to the excursions of all minds, untrammeled by fears of prosecution. Nor should any intellect be discouraged from penetrating these bowers of philosophic meditation, so pro- ductive of valuable lessons to society; by apprehensions of legal penalties, from the differences of opinion between an author and a jury. In confirmation of these remarks, the first amendment to the Constitution of the United States de- clares, that "Congress 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." The whole spirit and tenor of this constitutional provision seems to prohibit all legislation on these sacred and invidious subjects. It was contended, however, that it was a law restraining the licentiousness of the press, and that the right of giving the truth of a libel in evidence provided by this law, was an alleviation of the common law which forbade it. Yet the fact of there having been no law of libel or scandalum mag- natum, under the federal government, previous to this unfor- tunate attempt to establish one, obviously rendered the liberty both of speech, and of the press, less than it had been. Thus far, in all rational estimation, the law abridged the freedom of both. Besides, the liberty of speculative discussion cannot safely be discriminated from its licentiousness. No doubt these measures originated in a distempered state of public feeling, and high party excitement. The passions were in- dulged to disgraceful and exasperating extremes, and nearly in the same degree on one side as on the other. French and British sympathies overwhelmed the feelings, which should ever bind fellow countrymen together in a band, superior to
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partiality for a foreign nation. One party provoked the other to extremities, which the cooler feelings of neither would sanction. Nor would these unhappy feuds be now referred to, were it not to preserve the additional lesson which they so elo- quently convey, of the injustice, and the dangers of factions to the liberty and prosperity of republics.
Such were the views which generally actuated the repub- licans, as the opponents of President Adams, the elder, de- nominated themselves. But names do not alter things, though they have a fearful operation amidst the fermentations and furies of party.
The sense of Kentucky, was expressed on these obnoxious measures in resolutions, which, with their allied brethren adopted by the legislature of Virginia, have become more memorable than the unhappy discords, which produced them. They have been pressed into the justification of the fatal per- version of the constitution, maintained by the South Carolina doctrine of nullification. These resolutions, which it has since been acknowledged were drafted by Mr. Jefferson,* and com- municated by him to Mr. John Breckenridge of Kentucky, were intoduced by the latter gentleman on the Sth day of November,t into the House of Representatives of Kentucky. The essential and important doctrine, conveyed by these reso- lutions, independent of their protest against the alien and sedition laws was, that the several States composing the Uni- ted States of America, are "united by a compact, under the style and title of a constitution for the United States, that to this compact, each State acceeded, as a State, and is an inte- gral party, its co-States forming 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 dele- gated to itself;" "but, that as in all other cases of com- pact among parties having no common judge, each party has an equal right to judge for itself, as well as of infractions as to mode and manner of redress."
On the 9th, the House resolved itself into a committee of * Taylor's Inquiry, p. 174 ¡ Palladium, 13th, 1798
1
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the whole, on the state of the Commonwealth, when the resolu- tions above mentioned, were moved by Mr. John Brecken- ridge of Fayette, seconded by Mr. Johnson .* A brief debate arose between Mr. William Murray, from Franklin, and the mover: the opposition appears to have been but faint, as far as the meagre report of the discussion can aid conjecture. Mr. Murray, in the report subsisting, confined himself to de- precating an expression of opinion on the part of the legis- lature; "where is the clause," he asked, "which has given you this censorship-where is the clause which has authori- zed you to repeal, or to declare void, the laws of the Uni- ted States? If we have been elected by our fellow citizens, to watch over the interests of our Commonwealth, shall we consume our time-shall we divert our attention from the objects for which we were specially sent here, in fabri- cating theories of government, and pronouncing void the acts of Congress?" After expatiating on the imbecility of the con- federation, and the necessity of forming a closer union and a more energetic government. "This constitution," he show- ed, "was not merely a covenant between integral States, but a compact between several individuals composing these States. Accordingly, the constitution commences with this form of expression: "We, the people of the United States," not "we, the thirteen States of America." In another place, this distinguished gentleman observes, that "the authority to determine that a law is void, is lodged with the judiciary." These sentiments, recorded in an obscure provincial news- paper, are the more worthy of being preserved, for their cu- rious coincidence with the argument of the great orator of Massachusetts, in his triumphant vindication of the supre- macy of the constitution of the United States, over all State laws. On this occasion,t in answer to Mr. Hayne, he said: "The gentleman has not shown-it can not be shown, that the constitution is a compact between the State govern- ments. The constitution itself, in its very front, refutes that proposition; it declares that it is ordained and established by
* The Father of the Hon. R. M. Johnson. 1 January 6th, 1806.
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the people of the United States." The remarks of but one gentleman in reply to Mr. Murray are reported, and they are those of Mr. John Breckenridge, the mover: he obser- ved, "I consider the co-States to be alone parties to the federal compact, and solely authorized to judge in the last resort of the power exercised under the compact Congress being not a party, but merely the creature of the compact, and subject as to its assumption of power, to the final judgment of those by whom, and for whose use, itself and its powers were all created." In another passage he says, "If upon the representation of the States from whom they derive their powers, they should nevertheless attempt to enforce them, I hesitate not to declare it as my opinion, that it is then the right and duty of the several States, to nullify those acts, and protect their citizens from their operation." On the same day, the resolutions passed both Houses,* the Sen- ate unanimously; and they were approved by the Governor on the 16th of November. Important as these resolutions are, as having proceeded from the author of the Declaration of Independence; influential as they were in contributing to effect a great revolution in the administration of the general gov- ernment, they, it must likewise be observed, have had a fatal importance in organizing the wretched and delusive miscon- struction of the constitution, which has lately infatuated some portions of the United States. With these grave and interesting aspects, they will therefore be traced through their history, to the final disclaimer in our own times, of all such doctrines on the part of Kentucky ; when she felt free from the intoxicating delusions of 1798. These expressions of Ken- tucky sentiments on some of the most prominent measures of the administration of the elder Adams, on being laid before the co-States, agreeably to the direction expressed in the 9th resolution, produced counter resolutions from all the States it is believed, but Virginia. She had echoed the same protest drawn by Mr. Madison, more emphatically than any other
* The final votes in the House were as follows :- naya on the Ist resolution, Murray; 2d, Brooke and Murray: 3d, Murray and Poage; 4th, 5th, 6th, 7th, and êth, Murray, @th, Brooke, Murray and Ponge .- Palladim, No. 13. 173c,
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man, the father of the Federal constitution. Here is the cradle of nullification in the resolutions of Messrs. Jefferson and Madison. That the pernicious doctrine was knowingly rocked to growth and strength, by these sages, the author can not believe, against the solemn assurance of so chaste and virtuous a character as that of President Madison.
He declares that * "the tenor of the debates, which were ably conducted, and are understood to have been revised for the press by most, if not all, of the speakers, discloses no reference what- ever, to a constitutional right in an individual State, to arrest by force, the operation of a law of the United States." "It is worthy of remark," he observes, "and explanatory of the intentions of the legislature, that the words, 'not law, but utterly null and void, and of no force and effect,' which had followed in one of the resolutions, the word unconstitutional, were struck out by common consent." This is unexceptionable testimony for the intentions of Virginia; coming, as it does, from one of the purest political patriarchs, who was intimately conversant with the history of these transactions, now so unex- pectedly brought under the public scrutiny. It will, however, be observed, that the language of Mr. Breckenridge in the Kentucky legislature, was unequivocally in favor of passing a law to "nullify the acts of Congress, and protect their citizens from their operation."
On these resolutions being laid before the legislature of the other States, counter resolutions were adopted, accompanied by counter reports, which it is believed, in the instance of Massa- chusetts, was expressed with much asperity. These produced the celebrated defence of the resolutions on the part of Virginia, by Mr. Madison. This has hitherto been deemed the very shiboleth and infallible test of immaculate republican faith, on the points involved within their scope; how justly may here- after appear. In Kentucky, upon the re-assembling of the legislature, on the 14th of November, 1799, the first resolutions expressive of the sense of Kentucky, were passed by the house. In the Senate, Mr. John Pope attempted to amend them in their
· Letter to Mr. Everett, Book of the Constitution, p. 87.
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most obnoxious passage, by moving to strike out the words, "that a nullification by those sovereignties, (meaning the indi- vidual States.) of all unauthorized acts done under color of that instrument, (meaning the constitution of the United States,) is the rightful remedy," and inserting the words, "the right of re- monstruting and protesting against such laws belonged to the States." With this amendment, the resolution would have read: "That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction. and the right of remonstrating and pro- testing against such lau, belonged to the States" The amend- ment was carried in committee, but it was rejected by a majority of one, when the committee returned into the house, and the words moved to be stricken out by Mr. Pope, were retained. The resolutions were approved by Gov. Garrard, and the theory of nullification was fixed on Kentucky. But its practical exe- cution was far from being approved; so much so, that when an attempt was made to convert the fire of the resolutions into an act to protect the citizens of this Commonwealth from the operation of the alien and sedition laws, by attaching penalties for any attempt to enforce them; the bill received its death blow in Kentucky, never, we trust. to rise from its polluted tomb, until revolution shall again become the only resource, for pre- serving the liberty and happiness of the Commonwealth.
This sketch would be imperfect, if it did not record the death, as it is most devoutly hoped, of this false. dangerous, and uncon- stitutional doctrine, and its solemn disavowal by the constituted authorities of Kentucky, in their resolutions approved by the Governor,* February 2d. 1833.
The essence of these resolutions is contained in the following extract: "That so long as the present constitution remains unaltered, the legislative enactments of the constituted authori- ties of the United States can only be repealed by the authorities that made them; and if not repealed, can in no wise be finally
+ It is due to the memory of the late amtable and worthy Gor. Breathat, to mention bis particular desire expressed to the author, that he would record the solemn protest of Kentucky, Against this doctrine, so fatal in its tendencies to the peace and happiness of this great and glorious republic.
2 B
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and authoritatively abrogated or annulled, than by the sentence of the Federal Judiciary, declaring their unconstitutionality; that those enactments, subject only to be so repealed or declared null, and treaties made by the United States, are supreme laws of the land; that no State of this Union, has any constitutional right or power to nullify any such enactment or treaty, or to contravene them, or obstruct their execution; that it is the duty of the President of the United States, a bounden, solemn duty to take care that these enactments and treaties be faithfully executed, observed and fulfilled; and we receive with unfeigned and cordial approbation, the pledge which the President has given to the nation in his late proclamation, that he will perform this high and solemn duty."
CHAPTER XVII.
Convention of 1799-Essential alterations of the o'd Constitution-New Constitution- Spirit of the Laws from Marshall-State of the Kentucky River-New government of Kentucky-Changes in the state of society-Commercial difficulties-Election of Presi- dent Jefferson-Joy of Kentucky-Repeat of the Circuit courts of the United States, and of the internal taxes-Insurance Company-Circuit court system.
No measure of importance suggests itself to the author, at this stage of his history, without digressing beyond any neces- sity, into the narrative of national affairs, too often forced upon the early story of Kentucky; excepting the convention for framing a new constitution, in the 7th year of the old one.
This body assembled on the 22d of July, 1799; it was organized by the same number of representatives, which the counties were entitled to in the election of the House of Representatives, and elected by the ordinary voters; but the duration of the body was limited to four months. It pro- ceeded to business by choosing Alexander S. Bullitt, a mem- ber from the county of Jefferson for its president, and Thomas Todd, the veteran clerk of Kentucky, as its clerk.
No report of the debates of this body, is known to exist; although proposals for taking and publishing them, are con-
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tamed in the newspapers of the day. The various points of division can not therefore be stated; but as a substitute for this narration, a brief analysis of the important altera- tions in the government by the new constitution, will be offered. The first radical change is, the constitution of the Senate and Executive; the former of which instead of being elected by a college of electors, is distributed among a certain number of senatorial districts, not less than twenty- four, and an additional senator to be chosen for every three representatives, which shall be elected above fifty-eight. One fourth of this body is renewed every year, so that after the first three years, the senators hold their offices for four years.
The Governor instead of being elected by the same col- lege of electors as the Senate, is chosen every four years by the voters directly; but instead of possessing the effec- tual negative of the old constitution, he is overruled on dis- approving a law by a simple majority of all the members elected. Thus is the executive responsibility swallowed up by the legislature, and the representative of the whole com- monwealth, is scarcely capable of exercising any effectual check in behalf of the people, over the errors or the mistakes incident to all popular bodies; and which are so usefully subjected to the re-examination of the community, as well as to that of their representatives, by an efficient veto. At present the executive veto is calculated to bring that de- partment of the government into contempt, by its imperfect powers of withstanding the moral force and the esprit du corps, so characteristic of popular bodies. The patronage, which the Governor possesses in so simple and economical a community, furnishes a very confined and indirect influence. Most of the offices within his gift are irremovable at his pleasure. With these two essential alterations, the latter most indubitably for the worse, the new constitution was reported after the labors of twenty-seven days, on the 17th of August. It declared the former frame of government to be in force until the Ist of June, 1800; when the new fundamental law of the State was to go into operation.
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It is, the author thinks, a matter of regret, that altera- tions of our constitution, should not be authorized to be submitted by the ordinary legislature whenever two-thirds, or other number beyond a bare majority, should think them necessary; without prohibiting the assemblage of a conven- tion, whenever substantially and unequivocally required by the people. A provision like the above, such as is intro- - duced into the constitution of the United States, is so well designed to save the community, from the hazard of sub- mitting the whole frame of its fundamental law, to the ordeal, often so dangerous, of an unlimited convention. In- deed no sound and discreet community, should suffer itself to be cajoled or terrified into so perilous a political lottery, until the defects and mischiefs of the existing government; as well as their remedies are clearly, precisely, and gen- erally stated and discussed.
This session closed the legislature functions under the old constitution; after having added six hundred and fifty laws to the statute book in eight years, rather more than eighty per annum. "Occasional observations having been made, with a view to convey an idea to the reader, of the character of the session acts, nothing more of the kind will be added here. Whovever attends to the subject, will be struck with the frequent changes in the courts, and in the execution laws; which, if it were possible, should be fixed and immutable. The observer of the legislative course under the constitution, can but be equally affected, by the frequent ocurrence of acts which violate private rights to real property, as well by their retro-active effects, as by vesting power in one or another. to sell lands belonging to infants, as well as those of adults, without their consent. Relief, also, of one kind or other, either to private individ- uals who should have been left to seek it in a court of law, or equity; or to public functionaries, who had violated the laws, and ran to the legislature to cover their igno- rance or design from the consequences, by legalizing what was illegally done, makes a figure in the code; besides
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those acts of direct interference between creditor and debtor, by means of replevy, and otherwise: which taken together as a body of evidence, goes to prove great defects in the political morality of the law makers, and separately, furnishes precedents for every species of irregular and in- correct legislation. Not that there are no good laws; there are certainly many; for at different times, different moral and political feeling have prevailed: but so predominant has been the disposition to change, that but few acts have escaped its ignorance, its love, its rage, or its malice."
Such are the free criticisms of a scrutinizing observer of our laws .* The author does not pretend to sit in judg- ment upon a body of legislation, which neither his learning nor his experience qualifies him to perform: yet he has seen much within his own circumscribed sphere of remark, to justify this reproof of an experienced statesman. It is republished and commended to the attention of our future legislators, in the fond hope, that where the reproach upon our government is merited, they will exert themselves, until it is utterly re- moved from the proud escutcheon of Kentucky.
During the session just recounted,t a survey of the Kentucky river, from Frankfort to its mouth, by Martin Hawkins, was communicated to the legislature. It exhibited a fall of forty-nine feet and four inches, in an extent of four thousand five hundred and fifty yards; broken into eighteen different falls of unequal length. An estimate of the expense necessary to make each of them navigable, amounted to nine hundred and twenty dollars. At the same time it was suggested that ten thousand dollars would remove all obstructions to the navigation of the river, throughout its whole extent: and that there were persons ready to undertake the work, at a thousand dollars a year, and receive their pay in land, at fifty dollars a hundred acres. These pro- posals, tempting as they appear at this day, and particularly when the public lands of the State have been sold from forty to twenty dollars per hundred arres, were rejected.
On the first day of June, 1800, the new constitution went
+ Humphrey Marshall, Esq. 2B *
Marshall 2,317.
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into operation, "without even an emotion, much less commo- tion," as it has been rather quaintly remarked. It is at least evidence of a contented state of society, free from the agita- tions, which have so frequently and so painfully convulsed the State, and destroyed the harmony of its social intercourse. No better evidence of the public tranquillity can be given, than that the same Governor, who had presided over the Com- monwealth under the old constitution, received the suffrages of the people for the same office, under the new frame of gov- ernment. James Garrard was chosen Governor, and Alexan- der S. Bullitt, the old and respected President of the Senate, and of the convention, was elected Lieutenant Governor; an office which did not literally exist under the former constitu- tion; though its provisional duty was to be discharged by the Speaker of the Senate, which is the only extraordinary duty of the existing Lieutenant Governor.
It has been remarked, that about this time the changes in the wealth and property of society in Kentucky began to be more strikingly obvious. The distance between the extremes of property became more marked. Such are the inevitable operations of unequal exertions, talents, and opportunities in any community; where industry and enterprise are, as they ought to be, free to exert themselves, and where they are secured in their acquisitions, when they have made them. Nor can there be a doctrine more fatal to the prosperity of well ordered society, than any outcry of aristocracy, which, under a false and pre- tended denunciation of wealth, whether directly or indirectly the reward of merit, undermines the security and the reputa- bleness of property, which are the very roots of the greatest social blessings. No person is readier than the author, to dis- dain and despise the airs and liberties of the merely purse- proud; yet the proper object of contempt is, not the property, or its fruits, which they possess. They are consecrated by the laws and the eternal interests of civilized society, of which they form the life and value. But the true point of indignation, and the just mark of scorn is, the littleness of soul, which estimates man, who ought to be the rich epitome of mind and
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