A Sovereign People

by Carol Berkin

  A more serious problem was that each effort to apply the new laws seemed to spur more protests, not only in Virginia and Kentucky but in Pennsylvania, New Jersey, and New York as well. While militia units in Kentucky toasted “trial by jury, the liberty of the press, and no standing army,” local newspapers including the Centinel of Freedom in New Jersey and the Herald of Liberty in Washington, Pennsylvania, were carrying on the same print crusade against the Alien and Sedition Acts as had the Aurora. Opposition was voiced through poetry and song as well as prose. In the poem “War-worn Soldier,” for example, the author urged, “Then freemen assemble at ‘Liberty’s Call’ / Resolve—and to congress petition / That the law called Alien, to nothing may fall / And also the bill of sedition.” Where only a few months before memorials praising John Adams had flooded Congress and the president’s office following the revelations of the XYZ affair, now petitions had begun to pour in, calling for the repeal of the acts. By February 1799, Republican congressmen had presented several hundred petitions from across Pennsylvania alone.54

  Even more ominous for the Federalists was the fact that, by November, the call for repeal had moved off the streets and the pages of newspapers and into the legislatures of Kentucky and Virginia. As early as August 22, a newspaper writer calling himself “Philo-Agis” had suggested that the Kentucky legislature take up the cause, arguing that “united and official action” would carry more weight than would the disparate petitions from obscure towns and villages of the West. When the Kentucky legislature met in November, Governor James Garrard delivered his address in person to the state assembly. Garrard, a farmer and Baptist minister, echoed the view of “Philo-Agis” that a legislative protest was necessary. He considered Kentucky uniquely suited to defend the people’s freedoms because it was, in his words, “remote from the contaminating influence of European politics.” Aware that his state had a reputation for being “if not in a state of insurrection, yet utterly disaffected to the federal government,” Garrard urged the assembly to declare Kentucky’s full support of the US Constitution even as it entered its protest “against all unconstitutional laws and impolitic proceedings.”55

  The Kentucky legislators were more than ready to act. The next day, the entire assembly sat as a committee of the whole to begin its debate on a set of resolutions proposed by John Breckinridge but secretly drafted by Thomas Jefferson. Jefferson’s resolutions had originally been intended for North Carolina, but the fall elections there had gone badly for the Republicans and it was decided to bring them to Kentucky instead. The resulting Kentucky Resolutions, passed by the lower house on November 10 and unanimously concurred in by the state senate three days later, were more than a statement condemning the Alien and Sedition Acts; they were an attempt to revive—and settle—an argument that began when the Constitution was first proposed: Was the Constitution and the government it established a union of the people or a compact entered into by the states?

  The first of the Kentucky Resolutions made clear where Jefferson stood on this fundamental issue. “Resolved,” it said, “that the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes—delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government… that to this compact each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party… each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.” In other words, the states do not lose their separate and independent identities through the creation of the union; as sovereign political entities, they created the general government and gave it limited, special powers while preserving their own authority in all other instances. As Jefferson argued, the sovereign states gave birth to the federal government, and they alone had the right to judge whether it had exceeded the powers granted to it.56

  For Jefferson, this debate over the nature of the federal government should have been settled by the Tenth Amendment, which spelled out the limits and the source of federal power: “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.” This statement coupled with the First Amendment restriction on the federal government regarding freedom of speech and the press were the two pillars upon which the Kentucky Resolutions declared not only the Sedition Act but also the Act to punish frauds committed on the Bank of the United States and the Alien Friends Act to be “altogether void and of no force.” Resolutions 5 and 6 reflected the sectional base of the party of Jefferson and Madison. Resolution 5 echoed the House concern that the Alien Friends Act endangered slave ownership as much as immigrant right of residence. It declared the act illegal, based on the constitutional provision that prohibited any interference with the migration or importation of persons by the states until 1808. Resolution 6 used the Fifth Amendment guarantee of due process to bolster Kentucky’s position that the alien acts were unconstitutional.

  In resolution 7, Jefferson returned to a critical question of interpretation, first raised during the early years of the Washington administration: What was the legitimate extent of the federal government’s power to “make all laws which shall be necessary and proper for carrying into execution the powers” that had been vested in it by the Constitution? Alexander Hamilton had defended the constitutionality of the Bank of the United States on this necessary and proper clause in 1791; at the time, Jefferson had disagreed with his interpretation. Now, in 1798, Jefferson made his argument once again, through the Kentucky Resolutions, declaring that this clause was intended to facilitate the execution of only the limited powers granted to the federal government. It was not, that is, an avenue for the expansion of those powers.

  Taken together, the arguments presented in the first and the seventh resolutions embodied key elements of the credo of the Republican Party. The Kentucky legislators were more than ready to endorse them. But Breckinridge, like Kentucky’s governor, was not ready to follow Jefferson’s argument to its logical conclusion. Jefferson’s eighth resolution asserted that “where powers are assumed which have not been delegated a nullification of the act is the rightful remedy.” Although Kentucky’s political leaders retained Jefferson’s Cassandra-like warning that the Alien and Sedition Acts, and future acts resembling them, might “drive these states into revolution and blood,” they were unwilling at this juncture to threaten nullification. Nor were they willing to follow Jefferson’s conclusion that it was up to the state governments, not the federal government itself, to find a remedy to the unconstitutional Alien and Sedition Acts. Instead, Breckinridge inserted a resolution that honored the wishes of local petitions and memorials that the fight for repeal be waged by Kentucky’s representatives and senators in the federal Congress. This was a tacit acknowledgment that the federal government, not the state legislatures, had the authority to determine whether its actions had overstepped constitutional boundaries. In other words, Breckinridge, unlike Jefferson, preferred to rely on the Congress to mend its ways. The practical consequences were as significant as the theoretical implications: the revised eighth section in the Kentucky Resolutions meant that the fate of the acts would be determined by the party politics of Congress rather than by that grand debate over the relationship of the states and the federal government that Jefferson desired. Jefferson hoped to establish the primacy of the states. Kentucky’s legislators wanted to make it clear that, despite their deep concern and resentment of the Alien and Sedition Acts, they remained attached to the federal Constitution. Their duty was not to destroy it but “to preserve it inviolate.”57

  Less than seven weeks later, Virginia followed suit with its own set of resolutions. These resolutions were drafted
by Jefferson’s closest ally, James Madison. Madison’s early nationalism had been eroded by the government’s adoption of Hamilton’s financial and economic programs and by what Madison considered the abuse of the necessary and proper clause. Where once he had labored to protect and energize the federal government, by 1798 he shared Jefferson’s commitment to blocking that government’s encroachment on the authority and power of the states. Although he had retired from Congress in 1797, the Alien and Sedition Acts prompted Madison to return to the political fray as a champion of states’ rights. Jefferson had forwarded the Kentucky Resolutions to Madison in mid-November and encouraged his old friend to write a set of resolutions for their home state.

  The language of Madison’s resulting resolutions was far less provocative and combative than was Jefferson’s; although they agreed that the Constitution was a compact among the states, condemned the Federalists’ use of a loose construction to expand the powers of the federal government, and considered the Alien and Sedition Acts as infractions of the Constitution, Madison’s resolutions contained no talk of “revolution and blood” and no threat of nullification. Madison refused to declare the Alien and Sedition Acts “void & of no force” and would go only so far as to propose that the states should “interpose for arresting the progress of the evil.” Finally, he focused his critique narrowly on the Alien and Sedition Acts and urged other states to take proper measures to advance their repeal. Madison forwarded his draft to Wilson Cary Nicholas, who he assumed would introduce the resolutions when the Virginia legislature convened on December 3. Nicholas, however, showed Madison’s handiwork to Jefferson, who in turn persuaded Nicholas to add the more incendiary claim that the Alien and Sedition laws were “not law, but utterly null, void and of no force or effect.” On December 10, Nicholas handed the resolutions to John Taylor of Caroline, who introduced them to the Virginia assembly. Madison’s authorship of the resolutions was not widely known for more than a decade.

  After a long and contentious debate, the legislature approved the eight resolves that made up the Virginia Resolutions, but Jefferson’s description of the Alien and Sedition Act was expunged from the final version. Although this ensured that the Virginia Resolutions were more restrained than the Kentucky Resolutions, they were so closely linked in the minds of the public that Madison’s effort to be measured and conciliatory was ultimately ineffective. These resolutions passed on December 21, but the vote was far from unanimous. The vote of 100 in favor and 63 opposed made it clear that there was a strong Federalist presence in Virginia’s lower house. Republicans enjoyed firm control in the state senate, however, and that body passed the resolutions by a vote of 14 to 3.58

  By the end of 1798 both the Virginia and the Kentucky Resolutions had made their way to the governments of other states. There was nothing left to do but wait for their responses. When they came, those responses were disheartening to the Republicans and a cause for celebration and relief among Federalists everywhere. Seven states—Delaware, Rhode Island, Massachusetts, New Hampshire, New York, Connecticut, and Vermont—spoke with one voice: any legislature that expressed such “inflammatory and pernicious sentiments and doctrines” must stand alone. In their official responses, these legislatures repeated most of the Federalist arguments made on the floor of the House of Representatives. Rhode Island, for example, took pains to lecture Virginia on the provisions of the Constitution that gave the federal courts exclusive authority to decide the constitutionality of any act or law of Congress. For a state legislature to assume that authority, the Rhode Islanders pointed out, would be to blend legislative and judicial powers—precisely the infraction Virginia had attributed to the provisions of the Alien Acts. Most of the statements expressed concern that the extreme stance taken by Virginia and Kentucky was dangerous, disruptive in a time when a foreign invasion was still possible, and likely to produce “many evil and fatal consequences.” Several insisted that their own legislatures would not deign to judge the constitutionality of the Alien and Sedition Acts, but they were willing to offer their opinions that the laws fell within the powers delegated to Congress. Massachusetts, which submitted the longest reply, declared that Virginia misunderstood the compact that had created the Constitution; it was the consent of the people that gave the federal government its power, not the state governments. Vigilance was admirable, the Massachusetts legislators continued—but, in a direct attack on the Republican leadership, they added that an “unreasonable jealousy” of the men chosen to lead the nation, and a resort to extreme measures, “upon groundless or trivial pretexts,” was not.59

  Maryland, New Jersey, and even Pennsylvania also passed resolutions disapproving of the Virginia and Kentucky Resolutions, but they did not forward them to the governors of those states. In these states, as in the seven who did reply, the votes followed party lines.

  With the exception of Maryland, no southern legislature produced or submitted formal statements. But if these southern states chose not to critique or criticize the positions taken by Virginia and Kentucky, neither did they volunteer to join them in open protest.

  The combination of criticism and silence led Kentucky to issue a new and even bolder set of resolutions in December 1799. The state admitted the futility of presenting its arguments again. The legislators had made their case “with decency and with temper,” but the answers they received were awash in “unfounded suggestions” and “uncandid insinuations,” and they were “derogatory of the true character and principles of the good people of this commonwealth.” Yet, because silence might be taken for an acceptance of the arguments made by other states, Kentucky considered it necessary to issue new resolutions. These were more radical than the ones issued a year before, for they now asserted that “the nullification of all unauthorized acts done under colour of that instrument [the Constitution], is the rightful remedy.”60

  Only a few years before, when Kentucky was still part of Virginia, the people of the region had greeted a federal excise tax with an almost casual contempt, ignoring the law that imposed it without making any reference to its constitutionality. But now, in 1799, Kentucky felt compelled to justify its opposition to a set of federal laws out of respect for the Constitution. As the legislature (and Jefferson) saw it, nullification was a mechanism for preserving the integrity of that founding document, not a rejection of the government it created. Yet Kentucky was not ready to stand alone in defiance of an illegitimate federal law. It resolved instead to bow to the laws of the Union but to continue to oppose, “in a constitutional manner,” the violation of the compact that created the federal government. Nevertheless, the concept of nullification had entered the political vocabulary of the nation.

  6

  “No Stamp Act, No Sedition Act. No Alien Bills, No Land Tax, downfall to the Tyrants of America.”

  —David Brown, 1798

  IN 1799, WHILE state governments discussed the merits of the Virginia and Kentucky Resolutions and President Adams moved toward a diplomatic solution to the problems with France, Timothy Pickering and the courts continued their arrests and trials under the Sedition Act. Many of the cases begun in 1798 were still pending, including the prosecution of the Adams brothers of Massachusetts and William Durrell and John Daly Burk of New York. There were new offenders to prosecute as well. In March 1799, the law finally caught up with an itinerant philosopher, David Brown, who had persuaded a group of Republicans in Dedham, Massachusetts, to construct a “liberty pole” in 1798. The liberty pole was a familiar symbol of defiance of government authority; it had been used by American revolutionaries in the years before independence was declared and again by the whiskey rebels in the early 1790s. But it was not the Dedham pole itself but the placard attached to it that sealed Brown’s fate. The sign read “No Stamp Act, No Sedition Act. No Alien Bills, No Land Tax, downfall to the Tyrants of America; Peace and retirement to the President; Long Live the Vice-President.” Local Massachusetts Federalists in this most Federalist of Federalist states had quickly chopped
the pole down and mounted a statewide search for Brown. They had the satisfaction of seeing him and one of his allies indicted and convicted in June 1799.61

  The fall of that year brought several additional new cases. Matthew Lyon was indicted for the second time, and Charles Holt, the editor of a Connecticut paper, the New London Bee, was charged with sedition for writing an article critical of Alexander Hamilton and the provisional army Hamilton commanded. Jedidiah Peck, a member of the New York State Assembly from Oswego County, was brought to court for collecting signatures on a petition that demanded repeal of the Alien and Sedition Acts. And, in November, Pickering struck a blow against the leading Republican newspaper in New York City, the Argus, or Greenleaf’s New Daily Advertiser, charging the widow of its editor and the paper’s foreman with seditious libel for announcing that Hamilton planned to silence the Aurora by purchasing it.62

  But Pickering’s most ambitious new cases came in 1800, just as Adams’s three new Federalist commissioners were negotiating a détente with France. The first case was brought against Thomas Cooper that April. Cooper had immigrated to America in 1794, leaving behind a reputation as an opponent of the Church of England and a Jacobin. He settled in Pennsylvania, where he became part of a circle of likeminded English dissenters. By 1799, he was editing a small newspaper and launching written attacks on the president, calling him a “power-mad despot.” In an effort to silence—or at least embarrass—Cooper, the Federalist champion Fenno printed an anonymous letter in his Gazette that revealed that this adamant critic of John Adams had once applied to the president for a government post. The clear implication was that the rejection of his request lay behind Cooper’s hostility. An enraged Cooper responded that he had applied for the job before Adams became an opponent of liberty. He then accused Adams of interfering in a court case involving a sailor whom the British government accused of participating in a mutiny aboard a navy vessel. The president’s willingness to turn the man over to the British, despite the sailor’s claim to US citizenship, was, Cooper suggested, clear evidence that Adams was a tool of Great Britain. This accusation earned Cooper an arrest and indictment by a grand jury.