USA > Kentucky > The history of Kentucky, from its earliest discovery and settlement, to the present date, V. 1 > Part 45
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I Butler, p. 267.
345
MARSHALL'S BILL PASSES THE LEGISLATURE.
them; braving all perils, enduring all hardships, and cheerfully laboring to subdue the wilds of nature. Now, when, amidst a cloud of legal perplexi- ties, new even to the subtle priesthood of the law, they were about to lose the fruits of all toils and sacrifices, they could but feel the pain of suspense and danger to the depths of their hearts, when they found the elder patents of foreign claimants brought against the titles of the actual settlers and oc- cupants. The settlement of the country was discouraged by this condition of affairs.
Under the laws and rulings of the courts, not only might the bona fide occupant, who had cleared the ground, erected houses, built barns, planted orchards, and made fields and meadows, be evicted from his premises and divested of his title; but the new and foreign claimant was allowed to take possession and use of all the improvements, without compensation, and to demand of him rent for the use of the land for the time of occupancy. Against this palpable injustice the common sentiment of the people protest- ed, and in tone that demanded redress of grievances.
To meet this demand a bill passed the Legislature and became a law, on the introduction of Humphrey Marshall : "That the occupant of land from which he is evicted, or deprived by better title, shall be excused from pay- ments of rents and profits, accrued prior to the actual notice of the adverse claim ; provided, his possession was peaceable, and he shows a plain and connected title in law or equity deduced from some record, and that the successful claimant should be liable to a judgment against him for all valu- able and lasting improvements made on the land prior to actual notice of adverse claim." This was the application of a remedy in justice, and to the full extent of the law's permission, although the right and jurisdiction of the Legislature were boldly challenged by interested attorneys, on the ground that "it was a violation of the compact of separation with Virginia, which declared that the rights and interests of lands derived from the laws of Vir- ginia should be decided by the laws in force when the compact was made, and this precluded legislation on the subject." The act of the Legislature was sustained by the courts of Kentucky.
1 " In the year 1798. an agitation took place which has scarcely ever been equaled in Kentucky, produced by the passage of two acts of Congress, fa- miliarly known as the Alien and Sedition laws. The sentiment of Kentucky was never more unanimous than in the condemnation of these measures. The governor, in his first communication to the Legislature after their pas- sage, called the attention of that body to these measures by telling them that they had vested the president with high and dangerous powers, and in- trenched on the prerogatives of the individual States, had created an un- common agitation of mind in different parts of the Union, and particularly among the citizens of this Commonwealth. The alien law authorized the president of the United States to order all such aliens as he shall judge dan-
I Butler, p. 282 ; Marshall, Vol. II., p. 255.
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HISTORY OF KENTUCKY.
gerous to the peace and safety of the United States, or shall have reasonable ground to suspect are concerned in treasonable or secret machinations against the government thereof, to depart out of the territory of the United States. By another section, the president was authorized to grant license to any alien to remain within the United States for such time as he shall judge proper, and at such place as he may designate. In addition to these high and arbitrary powers over aliens, whose nations were at peace with the United States, powers so calculated to arouse the jealousies of a people at- tached to their liberties, it was likewise enacted that should any alien return who had been ordered out of the United States by the president, unless by his permission, he shall be imprisoned so long as, in the opinion of the president, the public safety may require.
" The sedition law was still more odious than this measure. It attempted to protect the official conduct of the different branches of the Government of the United States from that free and unrestrained discussion, alone worthy of a people canvassing the public conduct of their agents. This ob- ject it effected by holding any person answerable, by fine and imprisonment, who should print, utter. or publish any false, scandalous, and malicious writing against the Government of the United States, the president of the United States, or either house of Congress, with intent to defame either of them, or excite against either of them the hatred of the good people of the United States. The great objection to this measure is not its subjecting malicious falsities to punishment, but its subjection of opinion, however hon- estly entertained, to fine and imprisonment."
The sense of Kentucky was expressed on these obnoxious measures in what since became, and are yet known as, the famous resolutions of 1798; and which, with their counterpart adopted by the Legislature of Virginia, are memorable both for the discords which produced them, and for the sub- sequent and final efforts at their enforcement-finally misdirected in the gigantic civil war which convulsed the nation in 1860-65. These resolutions are generally believed to have been drafted by Thomas Jefferson; and this view has been strengthened by a letter of Jefferson admitting the author- ship. This claim has been indignantly resented by the relatives of Hon. John Breckinridge, for whom they assert their authorship, as well as respon- sibility. It is reasonably certain that the famous document was discussed, deliberated, and matured in the private council of several statesmen, of whom the two claimants to authorship were most prominent. The mere mechanism of making a draft was of less importance. So conspicuous a part have these Kentucky resolutions played in both State and Federal poli- tics, that it is but due to the completeness of history to place them in full before the reader upon the pages of this work. They were as follows :
"I. Resolved, That the several States composing the United States of America are not united upon the principle of unlimited submission to the General Government; but that by compact under the style and title of a
347
THE FAMOUS RESOLUTIONS OF, 1798.
constitution for the United States, and of amendments thereto, they con- stituted a General Government for special purposes, delegated to that Gov- ernment certain definite powers, reserving each State to itself, the residuary mass of right to their own self-government; and that whensoever the Gen- eral Government assumes undelegated powers, its acts are unauthoritative, void, and of no force; that to this compact each State acceded as a State, and as an integral party, its co-States forming as to itself the other party ; that the Government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself ; since that would have made its discretion, and not the Constitution, the measure of its pow- ers ; 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.
" 2. Resolved, That the Constitution of the United States having dele- gated to Congress power to punish treason, counterfeiting the securities and current coin of the United States, piracies and felonies committed on the high seas, and offenses against the laws of nations, and no other crimes whatever; and it being true as a general principle, and one of the amend- ments to the Constitution having also declared, 'that the powers not dele- gated to the United States by the Constitution, nor prohibited 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 punishment 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 Consti- tution), are altogether void and of no force; and that the power to create, define, and punish such other crimes is reserved, and of right appertains, solely and exclusively, to the respective States, each within its own terri- tory.
"3. Resolved, That it is true as a general principle, and is also expressly declared by one of the amendments to the Constitution, that 'the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people; and that no power over the freedom of religion, freedom of speech, or freedom of the press, being delegated to the United States by the Constitution, nor prohibited by it to the States. all lawful powers respecting the same did of right remain, and were reserved to the States, or to the people;' that thus was manifested their determination to retain to themselves the right of judg- ing 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 tolerated, rather than the use be destroyed; and thus also they guarded against all abridgment by the United
348
HISTORY OF KENTUCKY.
States of the freedom of religious opinions and exercises, and retained to themselves the right of protecting the same; as this State, by a law passed on the general demand of its citizens, had already protected them from all human restraints or interference. And that in addition to this general prin- ciple and express declaration, another and more special provision has been made by one of the amendments to the Constitution, which expressly de- clares that 'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press;' thereby guarding in the same sentence, and under the same words, the freedom of religion, of speech, and of the press, insomuch, that whatever violates either, throws down the sanctuary which covers the others; and that libels, falsehoods, and defamation, equally with heresy and false religion, are withheld from the cognizance of Federal trib- unals. That therefore the act of the Congress 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.
"4. Resolved, That alien friends are under the jurisdiction and protec- tion of the laws of the State wherein they are; that no power over them has been delegated to the United States, nor prohibited to the individual States distinct from their power over citizens; and it being true as a 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 Consti- tution, nor prohibited by it to the States, are reserved to the States respect- ively, or to the people,' the act 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 Constitution, is not law, but is altogether void and of no force.
"5. Resolved, That in addition to the general principle, as well as the express declaration that powers not delegated are reserved, another and more special provision inserted in the Constitution, from abundant caution, has declared 'that the migration or importation of such persons as any of the States now existing shall think proper to admit shall not be prohibited by the Congress prior to the year 1808;' that this Commonwealth does admit the migration of alien friends described as the subject of the said act con- cerning aliens; that a provision against prohibiting their migration is a pro- vision against all acts equivalent thereto, or it would be nugatory ; that to remove them when migrated is equivalent to a prohibition of their migra- tion, 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-
349
A REPEAL PRAYED.
tion, 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 as- sistance of counsel for his defense,'the same act undertaking to authorize the president to remove a person out of the United States who is under the protection of the law, on his own suspicion, without accusation, without jury, without public trial, without confrontation of the witnesses against him, without having witnesses in his favor, without 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 provides that 'the judicial power of the United States shall be vested in the 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 qualified negative in all the legisla- tive powers.
" 7. Resolved, That the construction applied by the General Government (as is evinced by sundry of their proceedings) to those parts of the Consti- tution of the United States which delegate to Congress power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and general welfare of the United States, and to make all laws which shall be necessary and proper for carrying into execution the powers vested by the Constitution in the Government of the United States, or 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 powers, 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 instrument; that the proceedings of the General Government, under color of these articles, will be a fit and necessary subject for revisal and correction at a time of greater tranquillity, while those specified in the preceding resolutions call for immediate redress.
" 8. Resolved, That the preceding resolutions be transmitted to the sen- ators and representatives in Congress from this Commonwealth, who are hereby enjoined to present 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.
"9. Resolved, lastly, That the governor of this Commonwealth be and is hereby authorized and requested to communicate the preceding resolutions
350
HISTORY OF KENTUCKY.
to the Legislatures of the several 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, according to the plain intent and meaning in which it was understood and acceded to by the several parties, it is sincerely anxious for its preservation ; that it does also believe that to take from the States all the powers of self- government and transfer them to a general and consolidated government, without regard to the special delegations and reservations solemnly agreed to in that compact, is not for the peace, happiness, or prosperity of these States, and that, therefore, this Commonwealth is determined, as it doubts not its co-States are, tamely to submit to undelegated, and consequently un- limited, powers in no man or body of men on earth; that if the acts before specified should stand, these conclusions would flow from them : That the General Government may place any act they think proper on the list of crimes and punish it themselves, whether enumerated or not enumerated by the Constitution, as recognizable by them; that they may transfer its cog- nizance to the president or any other person, who may himself be the ac- cuser, counsel, judge, and jury, whose suspicious may be the evidence, his order the sentence, his officer the executioner, and his breast the sole record of the transaction ; that a very numerous and valuable description of the in- habitants of these States being by this precedent reduced as outlaws to the absolute dominion of one man, and the barriers of the Constitution thus swept away from us all, no rampart now remains against the passions and the power of a majority of Congress to protect from a like exportation or other more grievous punishment the minority of the same body, the Legisla- tures, judges, governors, and counselors of the States, nor their other peaceable inhabitants who may venture to reclaim the constitutional rights and liberties of the States and people; or who for other causes, good or bad, may be obnoxious to the views, or marked by the suspicions, of the presi- dent, or be thought dangerous to his or their elections, or other interests, public or personal; that the friendless alien has, indeed, been selected as the safest subject of a first experiment; but the citizen will soon follow -- or, rather, has already followed-for already has a sedition act marked him as its prey ; that these and successive acts of the same character, unless arrested 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 can not be governed but by a rod of iron; that it would be a dangerous delusion, were a confi- dence 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 govern- ment 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
351
END OF THE RESOLUTIONS.
fixed the limits to which and no further our confidence may go; and let the honest advocate of confidence read the alien and sedition acts, and say if the Constitution has not been wise in fixing limits to the government it created, and whether we should be wise in destroying those limits. Let him say what the Government is if it be not a tyranny which the men of our choice have conferred on 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 respected the bare suspicions of the president than the solid rights of innocence, the claims of justification, the sacred force of truth, and the form 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 senti- ments 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 announced as to prove their attachment unaltered to limited gov- ernment, whether general or particular, and that the rights and liberties of their co States will be exposed to no danger by remaining embarked on a common bottom with their own; that they will concur with this Common- wealth in considering the said acts as so palpable 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 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 cases made Federal, but in all cases whatsoever, by laws made, not with their consent, but by others against their consent; that this would be to surrender the form of government we have chosen, and to live under one deriving its power from its own will, and not from our au- thority; and that the co-States, recurring to their natural right in cases not made Federal, will concur in declaring these acts void and of no force, and will each unite with this Commonwealth in requesting their repeal at the next session of Congress.
"Approved November 16, 1798. "JAMES GARRARD, Governor of Kentucky.
" By the governor.
" HARRY TOULMIN, Secretary of State.
" Similar resolutions, drafted by James Madison, and familiarly known as the 'Virginia resolutions of 1798,' were adopted by the Legislature of that State, on the 21st of December. 1798, and likewise directed to be for- warded by the governor to the Legislatures of other States, for consideration. Dissenting and condemnatory views were adopted in resolutions passed by
352
HISTORY OF KENTUCKY.
Delaware, on February 1, 1799; by the State of Rhode Island and Provi- dence Plantation, in the same month; by Massachusetts, on February 13th ; by New York, on March 5th; by Connecticut, on the second Thursday of May; by New Hampshire, on the 14th of June, and by Vermont, on the 30th of October ensuing.
"On Thursday, November 14, 1799, the Kentucky House of Repre- sentatives, Mr. Desha in the chair, having had under consideration the resolutions of the several State Legislatures above referred to, on the subject of the alien and sedition laws, unanimously adopted the following, which the Senate, on the 22d, concurred in :
" The representatives of the good people of this Commonwealth, in Gen- eral Assembly convened, having maturely considered the answers of sundry 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 maintained in all those answers, that of Virginia only ex- cepted. To again enter the field of argument, and attempt more fully or forcibly to expose the unconstitutionality of those obnoxious laws, would, it is apprehended, be as unnecessary as unavailing. We can not, however, but lament that, in the discussion of those interesting subjects, by sundry of the Legislatures of our sister States, unfounded suggestions and uncandid insinuations, derogatory of the true character and principles of the good people of this Commonwealth, have been substituted in place of fair reason- ing and sound argument. Our opinions of these alarming measures of the General Government, together with our reasons for those opinions, were detailed with decency and with temper, and submitted to the discussion and judgment 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 con- tained in those 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 disturb the harmony of that Union, and anxious only to escape the fangs of despotism, the good people of this Commonwealth are regard- less of censure or calumniation. Lest, however. the silence of this Com- monwealth should be construed into an acquiescence 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 those important subjects, should be deluded by the expec- tation that we shall be deterred from what we conceive our duty, or shrink from the principles contained in those resolutions; therefore,
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