Caleb William Loring

KENTUCKY AND VIRGINIA RESOLUTIONS.

During Adams’ administration peace had been endangered by the endeavor of foreigners to embroil the country in the war then raging in Europe. In 1798 the Alien Laws giving the power to the President to expel foreigners, and the Sedition Law punishing seditious acts and libellers of the government, were passed. The constitutionality of these laws may be fairly questioned.

Jefferson, the leader of the party in opposition to those in power, was not a member of the convention that formed the Constitution, he was at that time serving the country in Europe. He was exceedingly disturbed by the Alien and Sedition Laws, and has generally been held as the instigator and author of the Kentucky resolutions condemning them, and asserting the right of nullification, passed by its Legislature in November, 1798.[65] The Virginia Assembly soon afterwards, late in December of that year, passed the famous resolutions so much relied upon by those claiming the right of nullification and secession. Jefferson did not find the Legislature of Virginia as compliant as that of Kentucky; and the resolves passed by Virginia differ fundamentally from those of Kentucky.

At the time they were passed little notice was taken of the Kentucky resolves, owing undoubtedly to the small importance of the declarations of the Legislature of a State just admitted to the Union with but few inhabitants. Besides, Kentucky had no claim to original sovereignty. She owed her existence, the right of government over her territory, and of expressing her opinions, to the privilege the General Government had given her to become a State. How with any decency could such a State claim to be a sovereign, to pass judgment on the legality of the laws of the United States from whom came her very being?

Then, after all, resolutions are not laws, and these resolutions of Kentucky (and the same remark applies to the resolutions of all other States passing judgment on the laws of the United States declaring them null and void) are merely the opinion of that particular Legislature that passed them, a sort of harmless suggestion of superior wisdom. There is no provision in any of our State constitutions authorizing the Legislature to give such opinions and the next Legislature may pass others directly contradictory. They are only entitled to respect as opinions, as would be the opinion of any town meeting or synod of clergymen or assemblage of citizens.

The Kentucky resolutions declare, and it was the first time any such declaration was made, the same doctrine that Calhoun and Hayne subsequently maintained; that the several States are united by compact, under the style and title of a constitution, in a general government for special purposes, and when the General Government assumes undelegated powers its acts are void and of no force.

Then comes the doctrine, that this government created by this compact is not the exclusive or final judge of the extent of the powers delegated to it, “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.”

Let us examine this reasoning of the Kentucky resolutions. It is that the States are united in a general government by a compact, called a constitution, for special purposes, and when the government assumes undelegated powers its acts are null and void. There is no objection to calling the Constitution a compact for special purposes only, and declaring that the government under it has no right to assume not granted or undelegated powers, and that any such assumption is void and of no force.

The only objection to this first clause is the ambiguity in the declaration that the several States are united by compact. The Constitution may be called a compact; but it cannot be denied that it was between the people of the different States. It was not a treaty or agreement made by the State Legislatures or State governments.

In the second clause comes the objectionable clause, that the government created is not the exclusive or final judge of the extent of the powers delegated to it.

We have already set forth that in this Constitution, or compact, which is declared, by those who made it, supreme over all constitutions and laws of every State, that all cases arising under the Constitution or laws of the United States shall be tried by its judiciary.[66] Here is a compact by the people of the several States, that when any questions or cases arise the United States Judiciary shall have jurisdiction and decide upon them. The parties to this compact have thus expressly made that judiciary the final judge of the validity of the laws, and therefore necessarily of the extent of power delegated to the government. It cannot be denied that even independent sovereign nations can establish a tribunal over themselves by arbitration or compact that shall be conclusive. How then can the supremacy of the judiciary of the United States be questioned by a State, whose people have deliberately declared the United States Judiciary supreme over the State constitution and laws, and that it has supreme judicial authority over all cases arising under its Constitution and laws.

We must bear in mind that our Constitution and Government would have been an absurdity and a failure, if every State, as an independent authority, could question the validity of a United States law or the act of any of its legal or administrative officers; four and forty different State judiciaries to decide on what law was valid in each independent sovereign State or Nation. As Webster and Chief-Justice Marshall said, and Calhoun admitted, on every constitutional question this theory of nullification gave as many vetoes as there are States.

Admitting, however, for the argument, that the States are independent sovereign nations, this nullification doctrine of the Kentucky resolutions is very faulty. It asserts the right of those who deny the binding obligation of the compact, to break it; it entirely ignores the right of the other parties, even when of the majority, who hold to a different construction, to enforce their view. In all compacts or agreements between nations there is the right of the independent sovereign nations, and emphatically when of the majority, to make another independent nation perform the compact it has made. The majority is not obliged to yield to the minority. The ultima ratio, the final reasoning of nations is war, and the majority certainly have that right.

Jefferson himself asserted this right of a confederacy to coerce a State, a party to an agreement, when he wrote to Cartwright that the Confederate Congress should send a frigate and compel a State to pay its quota. Washington was of the same opinion, when, in reference to New Jersey’s refusal to pay her contribution, he wrote, “that counties in Virginia and Massachusetts might oppose themselves to the laws of the State in which they are, as an individual State can oppose itself to the Federal Government.”[67]

The absurdity of the Kentucky resolutions[68] does not end with the nullification theory. One would imagine the dispute would have been, who did not write them, not who did. By the Constitution certain powers are given to Congress, and the authority “to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.” The power to punish three offences only is mentioned, but that Congress had the power to enact all laws necessary to enforce and maintain its authority is expressly given, and never had been questioned before these resolutions.

The authority of Congress is often illustrated by referring to the power given “to establish post-offices and post-roads.” Under this brief grant, Congress has passed laws punishing the robbing and obstructing the mail, and breaking open letters, and has assumed the right of taking of lands, and building post-offices, and doing everything requisite for protecting, transmitting, and distributing mail matter. Congress has also passed laws punishing the bribing of judges and of obstructing or in any way interfering with judicial processes. In fact, it is difficult to see how the government could go on without these powers to enforce and maintain its authority. But this Kentucky Legislature resolved that Congress had only the power to punish treason, counterfeiting the securities and coin of the United States, and piracies and felonies committed on the high seas, and offences against the laws of nations; because the power to punish these three crimes was alone enumerated in the Constitution. And it expressly enumerated two acts, one the Sedition Law, and the other an act to punish forging or uttering counterfeit bills of the Bank of the United States, “and all other their acts (‘Congress’) which assume to create, define, or punish crimes other than those enumerated in the Constitution, are altogether void and of no force”; that the States only had this power each in its own territory.

The resolutions also arraigned the government for the sedition and other acts punishing crimes, saying “that the General Government may place any act they think proper on the list of crimes and punish it themselves.” It declared “that these and successive acts of the same character may tend to drive these States into revolution and blood.” It will be noticed that the resolutions make no claim of a right of secession. The use of the words revolution and blood implied that resistance to the laws would be war.

The resolutions also arraigned the government for the Alien Law, calling it a tyranny, and asking the States to concur with them in considering that the acts of the General Government were so unconstitutional that they 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 proceed in the exercise over these States of all powers whatsoever”; and they ask the States that they will concur in declaring these laws void and of no force, and in requesting their repeal. The resolutions did not call upon the people or State of Kentucky to treat these denounced laws as null and void, but asked the other States to join them in getting Congress to repeal them.

For some reasons wholly incomprehensible, these nullifying resolutions of Kentucky and those of Virginia have been seized upon and referred to by late writers in the mistaken belief that they were the same, and are alike declaratory of the right of a State, as an independent sovereign power, to treat as null and void any United States law it deems to be so, and with apparently the belief that they were concurred in to a great extent at the time of their adoption.[69]

No one has suffered more than Madison from this error,—Madison, justly called the father of the Constitution, who, when its adoption seemed to depend upon the acquiescence of New York, and that State hesitated about joining the Union and proposed to make a conditional acceptance, firmly declared an acceptance was absolute and perpetual, who in No. 39 of the Federalist, the work written for the purpose of setting forth the plan of the new government, was no less explicit on the question of nullification, and said: “It is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide is to be established under the general government.... Some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact, ... and it could be safely established under the first alone,”—the General Government. And who later in 1833 wrote to Webster in reference to his speech in answer to Calhoun: “It crushed nullification, and must hasten an abandonment of secession.”[70] His biographers speak of his double dealing in this matter, and even Mr. Hare, in his valuable commentaries on the Constitution, passes the same judgment on his conduct.[71]

But, besides Madison, the fair fame of the State of Virginia, to whom, for its being, the nation owes the greatest debt of gratitude, should not be tarnished by the taint of having so soon declared that the laws of the United States and the acts of its officers could be held and treated as null and void by every State that questioned their validity. From Virginia came Washington, the great general under whose command we became a nation, the presiding officer over the convention that made the Constitution, and who as our first President inaugurated and put successfully into operation the national government, assuming no unauthorized powers. To Virginia also is due the plan of the new government proposed in the convention by Randolph, and ably shaped and developed by Madison and Mason. Nor can we overlook the great Chief-Justice, Marshall, who for so many years and from its early existence defined the powers granted to the government, and maintained them with fairness and without encroachment on those of the States.

In these famed resolutions the Virginia State Assembly, professing a determination to maintain and defend the Constitution of the United States and of the State, and a warm attachment to the Union, declared that the powers of the Federal Government were limited by the plain sense and intention of the instrument constituting the compact the States are parties to, and that in a case of a deliberate, palpable, and dangerous exercise by the Federal Government of other powers not granted by the instrument of the compact between the States, it is the right and duty of the States, the parties thereto, to interpose and arrest the evil and maintain their rights. It asserted, with deep regret, that the Federal Government had enlarged its powers by forced constructions of the constitutional charter which defines them, and that there were indications of a design to consolidate the States into one sovereignty and to transform the government into an absolute or at best a mixed monarchy; that particularly the Alien and Sedition Acts exceeded the powers delegated by the Constitution, and were subversive of the general principles of a free government, and were expressly and positively forbidden by the Constitution; that the good people of this commonwealth, with the truest anxiety for establishing and perpetuating the Union, and with the most scrupulous fidelity to the Constitution, appeal to the other States to concur in declaring the acts aforesaid unconstitutional, and in taking the necessary and proper measures, in co-operation with Virginia to maintain the rights reserved to the States or people.[72]

It is to be borne in mind that the declaration of Virginia is, “that in a case of a deliberate, palpable, and dangerous exercise by the Federal Government of other powers not granted”—(that is, in the case of usurpations), it is the duty of the States, not the duty of a State, to interpose and arrest the evil and maintain their rights. Certainly in such cases some power should interpose, and if States can legally under the Constitution interpose to remedy such an evil, there can be no objection to such interposition. Indeed a usurpation of powers might be so plain and serious as to justify rebellion.

There is apparently a belief amongst some writers since Von Holst published his, so-called, Constitutional History of the United States, that Virginia laid down the doctrine, that “States can interpose.” As if it had been declared there was a right of States to interpose their authority and prevent the United States from enforcing its laws. It is in case of usurpations only Virginia claims that it is a duty and right to interpose to redress this evil. There is no statement how States should interpose; no suggestion that the method should be other than in the way the Constitution sanctions.

It is very much to be regretted that Mr. Henry Adams, in his very able and interesting history of the United States, should have added his great authority to this construction of the resolves. He says the Republican and the Federalist parties “were divided by a bottomless gulf in their theories of constitutional powers.” “The Union was a question of expediency, not of obligation: this was the conviction of the true Virginian school and of Jefferson’s opponents as well as of his supporters, of Patrick Henry as well as of John Taylor of Carolina and of John Randolph of Roanoke”; and “The essence of Virginian republicanism lay in a single maxim—the Government shall not be the final judge of its own powers.”

The resolutions of Virginia were understood by the other States as a denunciation of the laws of Congress, not as an assertion of a right of a State to interpose in their execution. Of the sixteen States, ten—Hildreth informs us, a fact that seems to be now overlooked, Maryland, Delaware, Pennsylvania, New Jersey, New York, Connecticut, Rhode Island, Massachusetts, New Hampshire, and Vermont—answered and condemned them.[73] The resolutions of seven of these ten are in Elliot’s Debates.[74] None of the other States supported them; indeed, from Jefferson’s and Madison’s correspondence, they were afraid North Carolina would also oppose them. The purport of the opposing resolutions is well stated in the report of a Committee of the Legislature of New York made in February, 1833, in the following words:

“These resolutions were met by several of the State Legislatures to whom they had been communicated by counter resolutions protesting against them with much warmth, chiefly on the ground that the act of a State Legislature declaring a law of the United States unconstitutional was in itself an unconstitutional assumption of authority, and an unreasonable interference with the exclusive jurisdiction of the Supreme Court of the United States; accompanied in some instances, with severe denunciation against their disorganizing tendency.”

Some of the States argued the question of the constitutionality and expediency of the Alien and Sedition Laws, and one State approved of the able advocacy and demonstration of their validity and expediency by the minority of the General Assembly of Virginia.

Of the States, whose resolutions are in Elliot’s Debates, two only, New York and New Hampshire, mention the name of Kentucky. Apparently the extreme viciousness of her doctrine escaped notice. In fact the nullification doctrine, the right of each State to resist the execution of United States laws, though asserted at the time by Kentucky, was unnoticed or forgotten until brought to life again by South Carolina thirty years afterwards. The right of secession was not suggested in the resolutions of either Virginia or Kentucky.

Nor did it appear that any one of the Senators or the Representatives of Kentucky ventured to lay before their respective Congressional Houses the nullifying resolutions of that State, notwithstanding the injunction contained in them to that effect.[75]

Kentucky’s Legislature answered the resolutions of the other States regretting the unfounded and uncandid suggestions in them derogatory to her, and then declared an attachment to the Union. The Legislature none the less resolved, that the several States that formed the Constitution were sovereign and independent, having the unquestionable right to judge of infractions, and that in such a case nullification was the rightful remedy. The ending is not however that they nullify, but “this Commonwealth does now enter against them” (the Alien and Sedition Laws) “its solemn PROTEST.”[76] The protest in capital letters: and that is all the State did.

We come again to the Virginia resolutions. When that State, in answer to her resolutions, received the indignant remonstrances of her sister States, she felt obliged to defend her position. That defence was made at great length in her General Assembly held the next year, 1799, by Madison, the author of the resolutions and the chairman of the committee to whom the communications of the other States had been referred. The report which was adopted by the assembly, coming from Madison, the principal constructor of the Constitution, should give no countenance to nullification and secession. Upon examination it will be found that there is none.

It begins with the very conciliatory and dignified statement that, though there might be painful remarks on the spirit and manner of the proceedings of the States who disapprove of the resolutions of Virginia, it is more consistent with the dignity and duty of the General Assembly to hasten an oblivion of every circumstance diminishing the mutual respect, confidence, and affection of the members of the Union.

The explanatory report takes up, first, the resolution to maintain and defend the Constitution of the United States and the warm attachment of Virginia to the Union, and justly says no one can object to this.

The report next notices the assertion that the powers of the Federal Government, as resulting from the compact to which the States are parties, are limited by the plain sense and intention of the instrument constituting that compact. This is merely, the powers of the United States come from and are limited by the Constitution.

The report goes on and says the compact is the Constitution, to which the States are parties. Then is defined what is meant by States. States sometimes mean territories occupied by the political societies within them, sometimes those societies organized into governments, and, “lastly it means the people composing those political societies in their highest sovereign capacity.” It says all will concur in the last-mentioned, “because in that sense the Constitution was submitted to the States, in that sense the States ratified it,” and in that sense they are parties to the compact from which the powers of the Federal Government result. Now, not forgetting it is the States, the people, that are parties, is not this a declaration, an explicit one, that the people of the several States made the Constitution, and not one independent sovereign State with other independent sovereign States?

Then the report further says that the Constitution was formed by the sanction of the States, given by each in its sovereign capacity. Taking the definition of States as before given, this is merely an assertion that in each State the people, who have the sovereign capacity, sanctioned it. After this comes the rather obscure, and possibly objectionable, doctrine. “The States,” meaning the people, “then, being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity that there can be no tribunal above their authority to decide, in the last resort, whether the contract made by them be violated, and consequently that as the parties to it they must themselves decide in the last resort.”

It is to be noticed that the resolution carefully limits the decision of the people or States to “in the last resort.” It does not define when the last resort occurs. But the resolution (what the report is commenting on) is, “that in case of a deliberate, palpable, and dangerous exercise of other powers not granted by the said compact”—that is, in cases of deliberate, palpable, and dangerous usurpation—there is a right of the parties to the compact or government to decide, to act, to resist that usurpation. This is a declaration of the right of revolution; it is an assertion of that right in the last resort,—when argument and reasoning fail; a right that Webster admitted; the right that we the colonies claimed against Great Britain; the right of resistance against deliberate, palpable, dangerous usurpations of power; otherwise there is no redress for tyranny. No one denies this right. If unsuccessful, it is rebellion, and punished as such. So carefully, however, did Virginia assert this right that the explanatory report itself calls attention to “guard against misconstruction.” The interposition is not only to be in cases of deliberate, dangerous, and palpable breaches of the Constitution, but “to be solely that of arresting the progress of the evil of usurpation.” The resolutions do not even claim that in case of usurpation the binding compact of the government is broken up, but that the parties to it, which it has stated to be the people, should solely interfere to arrest the evil. The report proceeds with the statement that if there could be no interposition from usurped powers there is a subversion of rights recognized under State constitutions, and a denial of the fundamental principle upon which our independence was declared.

The report admits as true, “that the judicial department is in all questions submitted to it by the forms of the Constitution to decide in the last resort.” We have only to turn to the Constitution to see how extensive is this submission. It is in all cases arising under the Constitution and the laws made under it, in all cases in which States are parties, in all cases where treaties or the United States are concerned that it has this supreme power of judgment. This is precisely the contrary doctrine to that of nullification.

The explanation further proceeds that it is in the last resort, “in relation to the authorities of the other departments of the government, and not in relation to the rights of the parties to the constitutional compact, from which the judicial as well as the other departments, hold their delegated trusts. On any other hypothesis, the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers, might subvert forever, and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve.” Perhaps it may not be amiss to notice that all judicial power is over the rights of the parties delegating it, the parties to the compact establishing the government. The delegation is not confined to power over the authorities of the other departments of the government, and the delegation of judicial power does annul the authority delegating it as far as the power delegated extends. It does not delegate usurpation of powers, nor does it prevent revolution against usurped powers. This is what the explanation means. But why the exception as to the other departments of government? Usurpation by the judiciary over the other departments is contrary to the conferred powers, and thereby affects the rights of the parties to the compact. It is beyond what they delegate. Such usurpation could very properly be resolved against: even more, resisted “in the last resort.”

Then comes the assertion: “The authority of constitutions over governments and of the sovereignty of the people over constitutions are truths which are at all times to be kept in mind, and at no time perhaps, more necessary than at present.”

As people make constitutions for the sole purpose of conferring powers to governments over themselves which are to be superior and to compel obedience, and punish those refusing it; and as the people always have the power to make new constitutions or to amend them under the regulations they have established; the suggestion of superiority seems a glittering generality, at that time rather out of place.

The explanation then defends the assertion in the resolutions, that these assumptions of powers, extending the sovereignty of the United States, supersede the sovereignty of the States in the cases reserved to them, and that its result “would be to transform the republican system of the United States into a monarchy.” This fear that the government would by assuming undelegated powers end in a monarchy was the objection to the Constitution made in the convention that formed it, and in the conventions of the people of the different States when they adopted it. And in the Virginia resolutions it is said to be “the general sentiment of America.” It is further argued this great assumption of increased prerogative and patronage of the President might enable him to secure his re-election and regulate the succession and establish it as hereditary. This fear of that day to us seems absurd; but in the days of George the Third, and not so many years from the Stuarts, it had a more plausible foundation.

The explanation further says, and it is in fact an admission of its truth, “that it has been stated that it belongs to the judiciary of the United States and not to the State Legislatures to declare the meaning of the Federal Constitution.” “But a declaration that proceedings of the Federal Government are not warranted by the Constitution is a novelty neither among the citizens nor among the Legislatures of the States.”

The report then takes up and undertakes to defend the resolve, that the government has manifested a spirit to enlarge its granted powers by a forced construction of the Constitution. It instances especially the Alien and Sedition Laws, and declares the Alien Law to be unconstitutional, because it gave the President legislative and judicial powers in addition to those of the Executive. The Act, it says, enabled him to send out of the country, in times of peace, aliens, citizens of a friendly nation whom he should judge dangerous to the public safety or suspect of treacherous or secret machinations against the government, giving him thus legislative power, making his will the law. He also is the judiciary; without the oath or affirmation of an accuser, his suspicion the only evidence to convict; his order the only judgment to be executed. And this order may be so made as to deprive the victim of the privilege of the habeas corpus.

The Sedition act was also claimed to be beyond the power of Congress for many reasons, and emphatically because it punished by fine and imprisonment false, scandalous, and malicious writings against the government; thus abridging the liberty of the press, the provision in the amendments of the constitution for which Virginia had been so strenuous.

In conclusion and in relation to these resolves the report says, nor can declarations either denying or affirming the constitutionality of measures of the government be deemed, in any point of view as assumption of the office of the judge. They “are expressions of opinion unaccompanied with any other effect than that they may produce an opinion by exciting reflection.” They “may lead to a change in the legislative expressions of the general will—possibly to a change in the opinion of the judiciary.”[77]

“And there can be no impropriety in communicating such a declaration to other States,” “and inviting their concurrence in a like declaration.” Then it speaks of the legitimate rights of States to originate amendments to the Constitution; that it was not improper or objectionable in Virginia to ask the States to take “the necessary and proper measures” to maintain the rights reserved to the States or people; and that if the other States had concurred, “it can be scarcely doubted these simple measures would have been as sufficient as they are unexceptionable.” This is a statement that the resolutions were a mere matter of opinion and that the laws complained of were unconstitutional, and if the other States had been of the same opinion, the States might have constitutionally remedied the evil.

Again is a repetition of the warm affection of the people of the State to the Union, and the explanation calls to remembrance the part the State had borne in the establishment of the “National Constitution,” and subsequently of maintaining its authority without a single exception of internal resistance or commotion, and a declaration that the people of Virginia must be above the necessity of opposing any other shield to attacks on their national patriotism, “that the resolutions themselves are the strongest evidence of attachment both to the Constitution and the Union.” “And as the result of the whole,” they adhere to their resolutions and “renew their protest against Alien and Sedition acts as palpable and alarming infractions of the Constitution.” Madison in a letter to Edward Everett informs us the words, “not law but utterly null, void, and of no force or effect,” which followed the word “unconstitutional” in the resolutions as to the Alien and Sedition laws, were struck out by consent, and also that, “the tenor of the debate discloses no reference whatever to a constitutional right in an individual State to arrest by force the operation of a law of the United States.”[78]

These resolutions and the explanation—Virginians always put them together—were nominally the political creed of the republican party that so long ruled the United States. They were a denunciation—perhaps a partisan one—of alleged unconstitutional laws made by the federal party in the administrations of Washington and Adams, and expressed a belief, which few to-day will say was warranted, that there was a design in them to transform the government into an absolute or at best a mixed monarchy.

The methods to arrest the evils of these alleged unconstitutional assumptions of undelegated powers were stated to be authorized by the Constitution itself. And by the concurrence with Virginia of the other States to whom the resolutions were submitted, they, the States, might remedy the alleged evils by their representatives in Congress or by the choice of Senators of different opinions; there were to be, the Virginia explanation said, no less than two Congresses before the laws expired by their limitation; or if necessary, the explanation further said, the States by a convention could alter the Constitution.

The resolutions are those of strict constructionists of the powers granted by the Constitution; they in no way assert the nullification doctrines of Kentucky, which some thirty years afterwards were revived and developed to their logical result of secession by Calhoun and South Carolina.

The prosecutions under the Sedition law, the arresting and carrying through the country and the fining and imprisoning as criminals, for the expression of opinions, of men whom the Republicans held as eminent and respectable, such as Thomas Cooper, Jefferson’s dear friend, had very great influence in the defeat of the federal party under the elder Adams and of the triumph of Jefferson and the Republicans.

The resolutions of Virginia alarmed Washington as exhibiting a discontent with the Union. He wrote to Patrick Henry, one of the Virginians Henry Adams names, to induce him to interpose his great influence in the matter.[79] Henry, whose impassioned eloquence had done so much to bring Virginia into the war of the revolution, who ably and persistently opposed in the Virginia convention the acceptance of the Constitution from fear that the great powers given to the United States would be fatal to liberty, had become one of its strongest supporters. He shared Washington’s anxiety. Though he had often been Governor of the State, and had declined offers of the most important national offices under Washington, he offered himself as a candidate for election to the House of Burgesses, to do what he could to put an end to this discontent and what he considered the rash measures of the State. In his speech before his constituents, he declared that Virginia had quitted the sphere in which she had been placed by the Constitution in daring to pronounce upon the validity of federal laws, and asked, “whether the county of Charlotte would have any authority to dispute an obedience to the laws of Virginia, and he pronounced Virginia to be to the Union what the county of Charlotte was to her.”[80] Nor did he believe that resistance would be peaceful; for he warned the people that the opposition of Virginia to the acts of the General Government must beget their enforcement, and that war would ensue with Washington and a veteran army as opponents. It was the period of our hostility with France, and Washington had been made commander-in-chief. Henry was chosen to the House of Burgesses by a large majority, but died before the session began in which Virginia’s conciliatory explanation of her resolves and her loyalty and attachment to the Union and the supremacy of those laws in all delegated powers was made.

The other two distinguished Virginians whom Mr. Adams mentions, are John Taylor of Caroline and John Randolph of Roanoke. Taylor, a great friend of Jefferson’s, in 1823 published a book called New Views of the Constitution of the United States. Of so little importance, so little known, were the Kentucky resolutions then that he does not cite them, as far as we can find from our examination, which we do not claim to be thorough. In the preface he speaks of his “survey as not devoid of novelty.” He controverts at great length the opinions of Hamilton and Madison, as given in the Federalist and a pamphlet published in South Carolina with similar views, called National and State Rights Considered by One of the People. His views of the Constitution are, as he says, new. He advances the doctrine that in a conflict between the laws and measures of the State and General Government neither shall prevail, but substantially the State should, unless three fourths of the States by an amendment of the Constitution should decide otherwise.

John Randolph of Roanoke was notorious for his eccentricities and vagaries, his attacks on all parties and all policies; if he had any opinion it was probably, as he said, that the Virginia resolutions and their explanations were “his political Bible.” What the resolutions and explanations are we have endeavored to set forth.