USA > Virginia > A history of Virginia : from its discovery and settlement by Europeans to the present time. Vol. II > Part 23
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Near the close of the discussion, William B. Giles spoke against the obnoxious laws. He too was severe upon the government ; commented upon the President's letter to the people of Bath, in which he had spoken of the faction in Virginia which ought to be crushed; and opposed his lead- ing measures.b It is to be feared, that at this time, scepticism in religion, and admiration of all that
a Resol. and Debates, 105-123. b Ibid. 197-201.
,
358
AMENDMENT AND ADOPTION. [CHAP. VI.
was French, were closely united with the character of leader in the Republican party of Virginia, There were indeed bright exceptions, and to these the state is chiefly indebted for the triumph of order and peace within her bosom.
Before the resolutions were reported by the com- mittee, two amendments were adopted. The third resolution said the powers of the Federal Govern- ment resulted from the compact "to which the states alone are parties." On motion of Mr. Giles, the word " alone" was stricken out. The accuracy of this amendment is to be determined by the de- finition we apply to the word "state." If, as we have preferred to use it in this work, it includes both the people and the government within certain geographical bounds, then the amendment was hardly necessary ; but if " state" means " state go- vernment" alone, then the amendment was proper. The other change was in the seventh resolution ; it declared that the Alien and Sedition Laws, "the acts aforesaid, are unconstitutional, and not lan, but utterly null, void, and of no force or effect." On motion of John Taylor himself, the words in italics were stricken out.ª Then the resolutions as amended were reported to the House, and after several abortive efforts to vary them, on Friday the 21st of December, they were adopted by a vote of one hundred in the affirmative, and sixty-three in the negative. On the succeeding Monday, the Senate concurred by a vote of fourteen to three.b
A more searching ordeal has seldom been applied a Ibid. 201, 202, 203. b Resol. and Debates, 212, 213.
359
RESOLUTIONS.
1798.]
to any work of the human mind than to the "Reso- lutions of '98-'99," passed by the Virginia Assem- bly ; and it may be added, few compositions have stood the test so well. They were penned by James Madison, and exhibit in perfection the pecu- liarities of his style. The first expresses the re- solve of the Assembly to maintain and defend the Constitution of the United States, and of the State, against all aggression ; the second declares their warm attachment to the Union, and hence their duty to watch over and oppose any infraction of its principles ; the third declares that the powers of, the Federal Government result from the compact to which the states are parties, and are limited by the plain sense and intention of the instrument con- stituting that compact, and to that extent only, are valid, and that in case of a "deliberate, palpable, and dangerous," exercise of other powers, the states have the right, and are bound to interpose; the fourth expresses the regret of the Assembly that the Federal Government had shown a willingness to enlarge its powers by forced constructions, and by so interpreting general clauses, as to destroy the meaning and effect of the particular enumera- tion, the obvious tendency of which course was to consolidation, and at last to monarchy; the fifth particularly assails the " Alien and Sedition Laws," of which the former involved a power not dele- gated, and also blended legislative and judicial functions with executive, and the latter involved a power not only not delegated, but expressly forbid- den, and was also the more alarming, because it
360
KENTUCKY RESOLUTIONS.
[CHAP. VI.
was "levelled against the right of freely examining public characters and measures, and of free com- munication among the people thereon;" the sixth referred to the terms in which Virginia had ratified the Constitution, to her care in guarding liberty of conscience, and of the press, and to her efforts in gaining an amendment for the purpose, and said it would "mark a reproachful inconsistency and cri- minal degeneracy" if she were now indifferent; the seventh made a solemn appeal to their brethren of the other states, " in confidence that they will con- cur with this Commonwealth in declaring, as it does hereby declare, that the acts aforesaid are un- constitutional, and that the necessary and proper measures will be taken by each, for co-operating with this state, in maintaining unimpaired the au- thorities, rights, and liberties reserved to the states respectively, or to the people;" the eighth and ninth provided simply for transmitting a copy of these resolutions to the Legislature of each of the other states, and to the Virginia senators and representatives in Congress.ª
Kentucky had preceded her mother by adopting, during the month of November, resolutions penned by Thomas Jefferson, which went beyond those afterwards approved by Virginia. For one of Mr. Jefferson's protests declared that the Sedition Act, " which does abridge the freedom of the press, is not lan, but is altogether void and of no effect."> And in
¿ The Resolutions are in the Sta. tutes at Large (N. S.), ii. 192, 193; and Resol. and Debates, 209, 210.
b Resol. and Debates, 64-69.
361
.
WASHINGTON AND HENRY.
1798.]
this form it was adopted by Kentucky. But, be- sides the " Old Dominion" and her daughter, no other state spoke openly against the Federal Go- vernment. And there were many citizens of Ame- rica, unblemished in character and high in public confidence, who regarded the "resolutions" with unmingled regret.
(1799.) George Washington had retired to Mount Vernon, to enjoy the repose to which long years of faithful service had entitled him. Yet he could not view unmoved the crisis of his country. He believed he saw in the Republican party of Virginia, materials which threatened to rend asun- der the bonds of the Union. And there was ano- ther patriot then in retirement who looked with equal fear upon the progress of French influence in America. Patrick Henry had opposed the adop- tion of the Constitution, but after it was adopted, he was its steady friend. He thought that most of the individuals composing the contending factions might be sincere, but that some leaders meditated a change in the government.ª He recoiled from contact with France. "Her conduct has made it the interest of the great family of mankind to wish the downfall of her present government." He was alarmed lest she should destroy the pillars of na- tional welfare, "virtue, morality, and religion ;" " this is the armour, and this alone, that renders us invincible ; these are the tactics we should study ; if we lose these, we are fallen indeed." He wished
a P. Henry's letter to Arch. Blair, ary, 1799, in Sparks' Washington, dated Red Hill, Charlotte, 8th Janu- xi. Appen. No. 18, 556-559.
362
WASHINGTON AND HENRY.
[CHAP. VI.
to see John Marshall elected to Congress from Vir- ginia, believing that " he felt and acted as a repub- lican, as an American."a
(January 15.) It was at this juncture that Wash- ington addressed to Mr. Henry a confidential letter, urging him to come forward as a candidate for the General Assembly. He reminds him of the " en- deavours of a certain party among us to disquiet the public mind with unfounded alarms, to arraign every act of the administration, to set the people at variance with the government, and to embarrass all its measures." He deeply regrets that in this course the State of Virginia had taken the lead, for her Legislature had acted, and the chief leaders of the opposition dwelt within her bosom. He ex- presses his conviction that the great mass of the people of the state were well affected towards the government, and believes that one reason why this did not appear, was that " the most respectable and best qualified characters among us, will not come forward." He speaks of a party that hung "upon the wheels of government as a dead weight, op- posing every measure that is calculated for defence and self-preservation," and "abetting the nefarious views of another nation upon our rights," and makes a serious appeal to Mr. Henry to throw his weight into the scale of the national government, by acting in the Assembly of Virginia.b
The effect of this appeal and of his own views of duty upon Patrick Henry is well known. He ap- peared before the people of Charlotte as a candidate
ª Sparks' Washington, xi. 559.
b Sparks, xi. 387-391.
363
DEATH.
1799.]
for their suffrages. He gained the hearts of all by the "setting splendours" of a sun of eloquence which in its zenith, had burned with intolerable glory. He was elected " by his usual commanding majority," and prepared at the next session of the Legislature, to defend the Alien and Sedition Laws. But Providence did not design that his generous heart should be torn by a contest in which his powers would not have made good his cause, and his efforts would only have added bitterness to the opposition. He died on the 6th day of June.ª Simple in manner, pure in morals, dignified in public, affable in private, the great orator of the world, the friend of liberty, the humble Christian, passed away from strife to a land "where the wicked cease from troubling, and the weary are at rest."
And even a greater than he was destined to fall during the same year. At half past eleven o'clock, on the night of Saturday, the 14th of December, GEORGE WASHINGTON breathed his last. When this event became known, for a time the hearts of all men were still,-passion grew calm, prejudice confessed her guilt, party spirit seemed extinguish- ed. All felt that the world had lost her best inha- bitant. A despotic sovereign, and a historian in love with privileged order, have alike rejoiced to do honour to the memory of the Liberator of the human race.b
But the progress of other events soon recalled the
a Wirt, 275-276. nation, 1800, and Alison, Hist. Eu-
b Napoleon, Address to the French rope, i. 445, 446.
364
REMONSTRANCES.
[CHAP. VI.
minds of men from mourning to conflict. When the Resolutions of the Virginia Assembly were made known to the other states, they excited va- ried action. Some may have approved them, but none took open measures to co-operate. Some de- cidedly disapproved, and taking up the matter seri- ously, sent their views in solemn form to the intrac- table Commonwealth. Massachusetts adopted a dignified remonstrance, arguing that if the Consti- tution was violated, the remedy was in the Supreme Court, or in amendments ; that the states were not judges in the matter ; that the Alien and Sedition Laws were both constitutional and expedient, and that therefore she must oppose Virginia.a New Hampshire, Vermont, Connecticut, and Rhode Island and Providence Plantations, all adopted the same general course, with varieties of manner and skill; the Senate of New York, in a preamble and two resolutions, rebuked Virginia and Kentucky, and little Delaware declared that the conduct of her eldest sister was "a very unjustifiable inter- ference with the General Government and consti- tuted authorities of the United States, and of dan- gerous tendency, and therefore not a fit subject for the further consideration of" the said little Dela- ware.' During the legislative session of Virginia for 1799-1800, these several remonstrances were read, and were referred to a committee, together with the resolutions which had called them forth."
(1800.) This gave rise to the celebrated " Re-
a Resol. and Debates, 7-11.
b. Ibid. 5, &c.
c MS. Journal of H. of D. for 1799-1800.
365
MADISON'S REPORT.
1800.]
port" of Mr. Madison. It was prepared, offered, amended in committee, and finally presented to the House. Here, on the 7th of January, it was ap- proved by a vote of one hundred in the affirmative, to sixty in the negative.ª This paper has ever since been regarded with marked reverence by the people of Virginia. It is clear and searching : its eloquence (for it has eloquence) is not that of feel- ing, but of reason ; it shows a power of analysis which has seldom been equalled : it takes up the Resolutions of '98 one by one ; it puts each section, each clause, even each word, into the crucible, and tries it with fire. And in doing this, it reviews the powers of the Federal Government with the mind of a master. Taken in union with subsequent com- mentaries and restrictions, which Mr. Madison him- self applied to it, this Report may still be regarded as a repository of safe principles ; a faithful guide for the citizen and the constitutional lawyer.
Instead of giving an extended review of a work which ought to be in the hands of every American, it will be proper that an attempt shall here be made to extract from this Report, and the commentaries that have followed it, the rules that may be appli- cable to Virginia and to the United States, in the contingencies of their being. These will not be mere " abstractions," for if the opinions of men con- cerning a written instrument, have been so con- trolling as to stop the course of law on the one side, and to send armed ships and soldiers to enforce it on the other, these opinions have a practical weight
a MS. Journal of H. of D., Jan. 7, 1800.
366
POWERS OF CONGRESS.
[CHAP. VI
that may justify every candid attempt to guide them.
First, then, as to the powers of Congress. These are expressed in a particular enumeration, and in certain general clauses. In one or the other of these, every power must be found, and if it be found in neither, it does not exist. The general clauses are : "The Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common de- fence and general welfare of the United States,"a and "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Con- stitution in the Government of the United States, or any department or officer thereof."b By some it had been contended, that the first of these clauses gave Congress indefinite powers of legislation ; whatever they might regard as for the common de- fence and general welfare, that might they do. By others, a meaning somewhat more restricted was approved; in whatever subject an appropriation of money was required, in that subject Congress had indefinite power of legislation for the common defence and general welfare. But Mr. Madison showed that each of these modes of construction was false ; that the clause had been copied from a similar one in the old " Articles of Confederation," and must be construed as that had been ; and that the expressions " common defence and general wel- fare," were to be limited and explained by the par-
a Constit., sec. viii., cl. 1.
b Constit., sec. viii., cl. 18.
367
CONSTRUCTION.
1800.]
ticular enumeration that followed. For if not, why was that particular enumeration made at all ? and how was the Government limited at all in its powers ? This reasoning seems too cogent to be resisted. To tell what measures for the common defence and general welfare they may adopt, and to what they may appropriate money, Congress must look to the " enumerated powers."
As to the other general clause, it had been greatly feared in the Virginia debate on the Constitution, and it had been much handled in the attempts to justify the Sedition Law. But a proper caution taught that it was not intended to increase the number of the positive powers of Congress; it was only intended to furnish " all the incidental and in- strumental powers" required for carrying into effect the express powers. When a question should arise, have Congress a certain power, it was to be an- swered by inquiring : is the power expressly given? and if not, then is it "properly an incident to an express power, and necessary to its exercise ?"ª If it be, Congress may exercise it; if it be not, Con- gress should not claim it.
But while these rules of limited construction seem safe and reasonable, they are not to be urged to excess ; the cords of the Constitution must not be drawn so tightly as to strangle the government. " The letter killeth" in politics as well as in reli- gion.b " Qui hæret in litera hæret in cortice," is a maxim as applicable to constitutional as to statute law. In this subject as in others, there is a
a Report, 49. b 2 Corinthians, iii. 6.
368
CONSTRUCTION.
[CHAP. VI.
medium,-a golden mean,-between the extremes of a rigour which would compress the Constitution to its dead letter, and deprive it of health, and the licentiousness of interpretation, which would find all powers in its general clauses. This golden mean may not be stationary, but where it shall be found may be safely decided by caution, patriotism, statesmanship.ª Language is imperfect; some- thing must be confided to the discretion of law- makers whom a free people would choose ; and it is believed that against abuses of this confidence, the Constitution of the United States has as many safeguards as a human system can erect. Even the word " necessary" itself has a plastic meaning, that will expand from the "physical necessity," made absolute by the laws of matter, to the " moral necessity" controlled by the varied passions, appe- tites and motives, which go to determine the human will. And thus the powers of Congress have, without violence, been held to include subjects not within the letter of the charter. Mr. Madison himself approved the view which extended them to a bank.b Subsequently, a great mind, that was ever watchful for state rights, has found power to authorize Congress to improve the navigation of the Mississippi River, and another lover of strict construction has drawn out of the clause making the President commander-in-chief of the army of the United States, power to enable that high func-
& " Lex non exacte definit sed
b Letter to Mr. Ingersoll ; Resol. arbitrio boni viri committit."-Gro- and Debates, 226-228. tius in Blackstone, i. book i. 42.
1
369
REMEDIES.
1800.]
tionary to establish provisional governments in a · conquered territory. Whether or not these two last views be approved in all their length and breadth, it will remain certain, that men who have loved their country, and loved liberty, and loved the Union, and loved the states, have held that Congress have power, under the Constitution, to charter a bank for national purposes, to improve rivers, roads, and harbours, for the good of com- merce between the several states, and so to adjust customs on imports, as to foster domestic industry.
Next, as to real and palpable violations of the Constitution by Congress, what is the remedy ? Congress may go beyond their powers, may in- fringe the charter which gives them being, and may do this so evidently, that doubt would be un- reasonable. But there are remedies; first, the federal judiciary will review the laws, and if they be unconstitutional, will pronounce them void. This is the office of the judiciary under the state governments, and there are higher guarantees for a pure administration of fundamental law under the general, than under the state governments. The judges are selected with more care, and are less liable to local influences. Secondly, free elections will remedy the evil; the delinquent Congress will be displaced; better men will be substituted ; the obnoxious laws will be repealed. Thirdly, the states may secure amendments; two-thirds may propose, and three-fourths consummate an amend- ment which would cut up spurious powers by the roots. And beyond these three constitutional re- VOL. II.
24
370
REMEDIES.
[CHAP. VI.
medies, it is not reasonable to suppose that any illegal action of the Federal Government can gene- rally extend.
But there may be mischief beyond them all. It may happen under the influence of polluting causes, not lightly to be anticipated, that Congress shall exercise unconstitutional powers oppressive to a state, and at the same time the federal judiciary shall be so corrupted that they will not declare these powers void, and at the same time the ballot- box shall be so prostituted that it will not displace the authors of these powers, and at the same time a majority of the states shall be so degraded by self-interest or fanaticism, that they will not pro- vide amendments to destroy these powers : is there then any remedy for the suffering state ? There is, but it is not under the Constitution. It does not consist in declaring the law null and void within her limits, and in refusing to permit it to be enforced until three fourths of the states shall pro- nounce in its favour, while all the time the nulli- fying state shall remain in the Union, claiming its protection, sharing its benefits, and sending repre- sentatives to its government.ª In the Constitution there is absolutely nothing from which, either by expression or implication, such power could be derived, and its exercise would run counter to the principles on which government is founded. It would enable one state "to give the law and even the Constitution" to nineteen states ;b for the one state,
1
a Madison's Letter to Everett ; Resol. and Debates, 221 ; Hon. H. S. Tucker's Lect. on Const. Law, 192.
b Letter to Everett, 222.
371
RIGHT OF REVOLUTION.
1800.]
while yet enjoying the benefits of the Union, would be exempt from an act of Congress to which the others would be subjected ; and the very necessity for nullifying, presupposes that nineteen states would not consent to the remedy by amendment. Therefore, the nineteen must either submit their judgments to the decision of the one, or else must allow her to enjoy an exemption from which they are themselves wholly debarred. Virginia has never held a doctrine so inconsistent with the principles of government. In 1798, she pretended not to nullify. She struck out of her seventh re- solution words which would have had that ten- dency. She expressed only her opinion, and in- vited her sister states to join with her in adopting necessary and proper measures for " maintaining unimpaired the authorities, rights, and liberties reserved to the states respectively, or to the people."ª
The remedy for the aggravated mischief of which we have spoken, is found in the sacred right of revolution. It is not under but above the charter of government. When any people shall be able no longer to bear the tyranny of their rulers, they have a right given by the law of nature, to overthrow the government, and re- establish it on a basis that shall secure their wel- fare. And the same doctrine will apply to a state under the federal system of America. If the Constitution be so long and so deliberately violated
a Resol. and Debates, 203-210; 224; Tucker's Lectures on Constit. Mr. Madison to Mr. Everett, 223, Law, 191, 192
-
372
RIGHT OF REVOLUTION.
[CHAP. VI.
that all ordinary remedies are found to be ineffec- tive, then the state will be released from her fealty to the government. She will have the revolu- tionary right to throw off all remaining shackles, and, rejecting alike the privileges and the claims of the Union, to arrest its laws within her territory, and declare herself perfectly independent. If the other states shall assent, and shall permit her quietly to withdraw, then a peaceful revolution will have been effected; but if they shall attempt to force her to submit to the federal dominion, she will have no alternative except an appeal to arms, and to the God of battles.
But while this final resort is left to every state, the highest reason will suggest that its exercise is not even to be thought of, except in the last neces- sity. Nothing has ever yet occurred in America that would approach to its justification; and as the patriot watches the workings of the federal system in the light of the nineteenth century, he finds growing evidences that its remedies are more po- tent than its abuses, and that its most dangerous trials have been borne. During the past two hun- dred and ten years, the examples of England, of France, and of America, have, to some extent, fur- nished rules for construing the doctrine of revolu- tion. The violations of the federal charter which would justify a state in armed resistance, must be not merely " deliberate, palpable, and dangerous," but long-continued and tyrannical. They must attain a point at which the evils of submission would be worse than the horrors of civil war.
373
1800.]
JAMES THOMPSON CALLENDER.
When this point shall be attained, the principles of the charter of American freedoma will apply, and resistance will become duty. It is believed that there is but one subject connected with the interests of the United States, which, by any proximate possibility, can lead to such result.
From this attempt to explain the principles by which, we believe, Virginia is guided in her con- tact with the Federal Government, we turn again to her history, and find, within the compass of a single year, beautiful illustrations of their sound- ness. A law which she then believed to be, and which a vast majority of American statesmen have since believed to have been, unconstitutional, was actually to be enforced on her soil ; an effort was to be made to interpose the remedy of the federal judi- ciary, and it was to fail; Virginia was to submit, and then by the operation of the ballot-box, the law, its authors and its progeny were to be swept from power.
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