xt7wm32n6k3v https://exploreuk.uky.edu/dips/xt7wm32n6k3v/data/mets.xml Warfield, Ethelbert Dudley, 1861-1936. 1894 books b96-3-34067924 English Putnam, : New York : Contact the Special Collections Research Center for information regarding rights and use of this collection. United States. Kentucky and Virginia resolutions of 1798. Alien and Sedition laws, 1798. State rights. Kentucky resolutions of 1798 : an historical study / Ethelbert Dudley Warfield. text Kentucky resolutions of 1798 : an historical study / Ethelbert Dudley Warfield. 1894 2002 true xt7wm32n6k3v section xt7wm32n6k3v THE KENTUCKY RESOLUTIONS OF 4798 AN HISTORICAL STUDY ETHELBERT DUDLEY WARFIELD, LL.D. PRESIDENT OF LAFAYETTE COLLEGE SECOND EDITION G. P. PUTNAM'S SONS NEW YORK LONDON 27 WEST TWENTY-THIRD STREET 24 BEDFORD STREET, STRAND 9bt 3inichcrborhtzr aces i894 COPYRIGHT BY E. D. WARFIELD r887 Electrotyped, Printed and Bound by Zbe lknicherbocker lpreos, lvew Vort G. P. PUTNAM'S SONS DEDICATED TO THE CHERISHED MEMIORY OF S. L. W. W\oOSE LOVE INSPIRED AND HAND COMPLETED THIS LITTLE WORK This page in the original text is blank. CONTENTS. CHAPTER I. Introduction.. . CHAPTER II. .Centticky's Growth towards the Resolutions . . 21 CHAPTER III. John 1,reckinridge the Mover of the Resolutions . . 49 CHAPTER IV. The Resolutions .74 CHAPTER V. The Resolutions before the States and Congress . . ito CHAPTER VI. The Authorship of the Resolutions 13.. 3 CHAPTER VII. The Doctrines and Effects of the Resolutions . . i66 This page in the original text is blank. PREFACE. THis little work was first suggested several years ago by a sense of the inadequacy of the historical accounts of the Kentucky Resolutions of I798. This feeling has steadily increased ever since, and its correctness must be apparent to every one who has remarked the great influence these Resolu- tions have had upon our constitutional and political history. While they have been the cause and occa- sion of much debate and transitory discussion, there is no connected account of the causes and circumstances of their adoption, and their relation to the subsequent history of this country, except such as under many limitations is to be found in the histories of the United States under the Con- stitution. None of these are calculated to make the subject plain to the average reader, and there is scarcely one that is not positively in error as to some important fact. The original documents, many of which have always been accessible, have been singularly neg- lected, and misstatements that at first crept in by inadvertence or unwarranted assumptions, not only have never been corrected by recourse to the sources, vii viii Prjface. but have been repeated till they became the seed of error, later writers competing with each other in reiterating the mistakes of all those who preceded them. The materials used in this book, while no printed work treating of the subjects embraced in its pur- view has been intentionally neglected, are chiefly the original sources-the newspapers of the day and the written accounts of actors upon the stage, but especially the letters and manuscripts of the time, and of the men who were the leaders in the movements against the Alien and Sedition laws, Of all the sources consulted none can be compared for interest and importance to the hitherto almost untouched store of manuscripts forming the Breck- inridge papers and containing John Breckinridge's literary remains. Some part of the contents of this volume has already been published in a series of articles in the Magazines of American and Western History, but in a very abridged form and rather for the sake of provoking criticisms which might lead to a full and complete treatment of the questions connected with the Resolutions than as a permanent contribu- tion to American history. It is hoped that the evidence herein set out may be regarded as justifying a final judgment upon the important and somewhat mooted points of the real mover of the Resolutions in the Kentucky legisla- ture and their true text. It is, perhaps, too much to hope that any final solution of the problems of authorship and interpretation is now, or ever will Preface. be reached. Some new light has been found even upon these difficult questions, and some advance towards a final statement of all the evidence may have been made, even though the desired end has not been attained. If no other good is accom- plished, yet if some part of the credit that is justly due to John Breckinridge, the mover and responsi- ble author of these Resolutions be recovered, this work has not been written in vain. Thanks for aid and encouragement are due to many friends, who have added so much to the ac- complishment of my task that I cannot deny myself the public recognition of their assistance. Chief among these, are Prof. Alexander Johnston, Hon. Wm. C. P. Breckinridge, Col. R. T. Durrett, Pres. James C. Welling, and Hon. James Schouler. ETHELBERT D. WARFIELD. GRASMERE, NEAR LEXINGTON, Ky., Mid-Summer, 1887. 1X This page in the original text is blank. THE KENTUCKY RESOLUTIONS OF I 798. CHAPTER I. J\N'TROD UCTION. THE history of the Resolutions of 1798, of the causes which led to them, their authorship, and their influence upon the history of the United States, involves so many problems, and those prob- lems are of so nice a character, that any one must needs feel the greatest hesitancy in undertaking to write it. Questions that have divided men into parties and factions, especially if bitter feelings have been engendered and conflicts provoked by them, must always afford difficult fields for the his- torian. The partisan finds little to commend in the conclusions of the most righteous judge, and if tee doctrinaire has preempted the domain, his judgments are apt to prevail with those whose natural inclinations lead in the direction which he has pursued. Party passion on each side has done its worst to make the history of these resolutions difficult, and doctrinaires have appeared to repre- sent almost every possible point of view. Much as I 2a I roducion. they have been discusscd, and many as are the theories that have been promulgated concerning them, no attelnmt has as yet been made to write their history in a full and connected form. Cer- tainly it may justly he assigned a place among those departments of American history esteemed worthy of separate treatment ; and now that the mists of passion and prejudice that so long forbade any attempt at a candid discussion are nearly dis- sipated, it may not be too much to hope that the day is at last come when a fair-minded and dis- passionate narrative may be written, the general uncertainty that clings to the whole subject be dis- pelled, and some of the errors that have crept into the most weighty accounts be corrected. A clear knowledge of the causes that led to the Resolutions of 1798-9 is indispensable to the under- standing of the problems connected with them. They had the primary cause of their existence not in any temporary condition of affairs, but in the great natural diversity of sentiment common to all men. The trend of human thought constantly leads men, according to their natural temperaments, to separate themselves into two great parties. By whatever names they may be known at different times and places, the one may be roughly designated as Conservative, and the other as Progressive. According to the condition of public affairs the efforts of the one party are directed towards the pres- ervation intact of the existing government and the resistance of all change, or towards the steady strengthening of the hands of authority, and an 2 lnlrodudcion. 3 increase of the prerogative of the executive. While the other party in each instance adopts an opposite course. The natural bent of the one party is tow- ards a strong and highly centralized government, of the other towards a pure democracy. The one finds its dangerous extreme in absolute mon- archy with all the attendant theories of divine right, non-resistance, and so forth, while the latter finds its corresponding extreme in anarchy. In one form or another these opposing theories are always present in the state. Immediately after the Revolutionary war had left this country free but ex- hausted, they began to show themselves in various forms and different degrees of intensity in every part of the land. The general prostration and the natural weight of vis inertia told heavily on the feeble Federation, and the majority of thinking men watched with regret the slow, insidious work of disintegration. The essential weakness of the Federation was more and more widely recognized, till at last the tide set strongly towards a more efficient government, and by constant, almost heroic, efforts the dead weight of opposition was at length raised, and the country fairly made a na- tion. All but the most uncompromising foes of a strong central government joined in one way or another in the movement. The only notable ex- ceptions were to be found among the citizens of those States which hoped to gain by oppressing their weaker neighbors and monopolizing com- merce when the long impending ruin of the effete central government should become an accomplished Introduclion. fact. There were many men, indeed, who were for strengthening the federal head, who yet refused assent to the constitution offered them, but this was on specific not on general grounds. When once the youthful nation was launched on her voyage with the new Constitution, there was a rapid and radical shifting on the part of many. The terms Federalist and Anti-Federalist were applied to very different men at dates so near together as 1788 and 1790; and in a few more years there were fewer still who retained their old party-name, and this without any change of principles. Some of those who on various grounds had made the most determined fight in their several States against ratification, be- came under the new order of things devoted to the party of the administration, which claimed for itself the right to live under the honorable symbol of their late victory, the name of Federalist. No more no- table instance of this class could be cited than the leader of the Virginia minority, the eloquent Henry. Once committed to the new form, he became one of the President's staunchest coadjutors. On the other hand, Madison and Jefferson, who had been so instrumental in bringing about the Annapolis convention, and the former of whom had played such an able part in the Philadelphia conven- tion, drifted in the opposite direction. Jef- ferson who had wavered somewhat at first, was all for the Constitution if the amendments which were eventually secured could be obtained. But by all the dictates of his taste and temper he favored the least centralized form of government that would 4 Itdroduction. 5 subserve the purposes of securing a permanent union of the States, and of rendering that union secure against foreign interference ; and earnestly desired the widest latitude for the exercise of State and personal liberty in domestic affairs; and these natural proclivities had been confirmed and strength- ened by his residence in France. Madison was by nature very moderate in his views. In early life his position leaned rather towards the conservative and centralizing party, and in the last years of his life hie returned to the same position, but under the in- fluence of his great chief and the irresistible current of opinion in Virginia he assumed from the time of the first Congress forth a position not to be distin- guished from that of Mr. Jefferson so long as the latter lived. It is safe to say that a large part of those who be- came known after the adoption of the Constitution as Anti-Federalists, were old Federalists who con- sidered the end they had labored to secure as at- tained when the Constitution was put into effect. They had regarded a strong central government as only a less evil than dismemberment, and when the latter fate was averted they winced at every act that carried the system they had helped to inaugurate into efficient action. The period of Washington's administration was almost entirely consumed in the work of organizing the new government and carry- ing out the provisions of the Constitution. The aspect of affairs when a vigorous nation, fully equipped, with all the insignia of power, had sup- planted the weak and visionary federation was not 6Inroducilton. a little startling to men who had made this their Mete noir. The prophet of such a change would have been laughed to scorn half a dozen years be- fore. Indeed, few of this class, even those who fancied themselves most familiar with the instru- ment, thought it possible to create such a power in so brief a space of time out of the Constitution. This w as doubtless due to a failure to give adequate weight and consideration to two factors which were destined to effect materially the result ; first, the capacity of the country for great and rapid growth, and second, of even more immediate influence, the means and methods that would at once be called into being to effectuate the plain provisions of the Constitution. To those who occupied this position the financial operations of Hamilton were not merely unlooked-for, but they assumed the aspect of unwarranted, and even wicked, violations of the Constitution. Thus step by step as the work of or- ganization went on, the central government devel- oped a power and patronage which was at once surprising and highly disapproved of by many sometime ardent Federalists ; and thereby steadily estranging manv from the administration, it built up an opposition, and an opposition that had a firmer party-basis than most of those who composed it realized. This fundamental division of political opinion, which has now come to be universally recognized, may be wholly or partly concealed by the temper of certain times or the absorbing claims of specific measures, but nevertheless it is always present, 6 Inlrod'uc/zion. and according to the trend given to political action it is pronounced or obscure ; but when this or that diversion has ceased to operate, the old ruts are again followed and the old division made plain. The condition of public affairs, both at home and abroad, during the early years of our national life, ran in courses that made this great division most prominent. Individual tastes were reinforced or modified by the special advantages the one policy or the other offered to the different States or sec- tions of the country. These in turn, even as they dictated, were intensified and accentuated by lean- ings to Lritish or French sympathies. As the one class of ideas was dominant in one country and the other in the other, they to a remarkable extent came to stand for the two policies. It is almost impossible, at the distance of nearly a century, to regard without the liveliest wonder the intense bitterness engendered by these different foreign attachments, and the tremendous influence which they exerted over the minds of our forefathers between the era of the Revolution and the second war with Great Britain. They were not a mere natural hostility against the mother country grow- ing out of the prolonged war, and an equally natural spirit of gratitude for the timely aid of France. They differed from such sentiments so widely as not even to be comparable to them, and did riot end with awakening sympathy and dislike, or even of governing our foreign relations, but ex- tended to our domestic concerns and dictated our home policy. All of these things tended in the 7 8 hz/roducdion. same direction and drew a sharp line between the advocates of a strong and of a feeble central gov- ernment. In addition to these causes there was a special development of what may be called the " individu- alism," which is generally found as a prominent feature of that theory of government which looks towards liberalism and democracy. That is, the development of the importance of the individual in relation to the State. Mr. Jefferson wvas a most advanced advocate of this principle. Under his leadership it was gradually advanced, and finding a ready acceptance, especially in the South and West, became one of the greatest forces in the development and permanence of the party he founded. The noble system of English law, which from the time of the first settlements had been firmly established in the colonies, had for some time been marked by a comparative neglect of the individual, a neglect which in its administration had been accentuated to such an extent that at the era of our revolution English jurisprudence seemed much too indifferent to the personal rights of citizens. Property rights were preferred to per- sonal rights, and the most trifling violations of the former were visited with much more speedy and severe punishment than the most serious assaults upon the latter. The libel law was peculiarly op- pressive, and its administration had been a scandal and a shame. The prosecutions under this law for a century before this country achieved its indepen- dence, had been enough to discourage the most hdroducdion. 9 courageous friends of free speech and a free press. From this, source Mr. Jefferson drew a wholesome dread of any incroachments upon the freedom of the individual in whatever sphere, and curtailments of it were too recent and too great for it to be regarded as a figment of his brain. It appealed to him very strongly, falling in as it did with his natural habit of thought. Many regarded it as sufficiently guaranteed by the Constitution, but his fear and unrest were never satisfied even by so perfect a continuing guaranty, and he never ceased to watch over it jealously. He showed the first force of his convictions on this subject in the particular enumeration in the Declaration of Independence of the rights of "life, liberty, and the pursuit of happiness," again in his insistence upon the addition of a bill of rights to the Con- stitution, and in his watchful care throughout his career. There are many instances in which it behooves us to keep in view the dominant influ- ence of this individualism on Mr. Jefferson's mind. It is not only the key to many of his own acts, but to the problems that afterwards grew out of them when it was attempted to wrest them to a widely different meaning. The natural result of these in- clinations was exhibited in his steady advocacy of a general government of minimum power, a foster- ing of the influence of the States as the natural bulwarks against a strong central power, and his unwearied struggle for what was, indeed, the great end of all his policy, a democracy of the purest and simplest type, possessing all the power capable of be- I0 11-oduclion. ing lodged in its hands and itself exercising as far as possible all the functions of government, itself the master, its office-holders the servants, and dictating and rightly requiring from all the most republican implicity. Such, in brief outline, were the sentiments of those who regarded the vigorous policy so prompt- ly adopted and put into operation under Washing- ton, with dislike and distrust. The overshadowing influence of the President held many to the warm support of the administration who would otherwise have been in the ranks of the opposition, and a far greater number yielded acquiescence to the same spell. There was, however, a steady growth towards the principles of those opposed to central- ization. But for a long time they lacked both organization and party-name. Of leaders there was no lack. New York offered some brilliant candi- dates for headship ; Massachusetts herself could have supplied an able champion ; but by general consent the position was accorded to Virginia. Not at once, indeed, but gradually. In the House of Representatives, Madison quickly won the first place, but he was then, as ever afterwards, second to Jefferson, and by the time that the third presi- dential election had come, Jefferson was almost without a rival. Had the party been better organ- ized, with a clearer enunciation of principles, they would have made a much better stand even thus early. They lacked cohesion sadly, and hitherto they were without any party-name of general ac- ceptation. The name of Anti-Federalist was too IO .JI/rodutzonz. negative, and to some still smacked of a false po- sition ; the name of Democrat, which was not un- commonly given at the time, was a term of reproach and grew out of the unfortunate conduct of Genet, and the taste of French affairs was then fast grow- ing bitter in all men's mouths. They had already begun to give themselves out as Republicans, and then to join the two names into Democratic-Republi- cans; but as yet this name had not become fairly fixed upon the party. Such was the general state of affairs when Adams became President, and Jefferson Vice-President. Mr. Jefferson with his unfailing political sagacity had remarked the weaknesses in the great body of men who thought with him, and now began a sys- tematic course directed towards the remedying of those defects. His first impulses towards a coopera- tion with the policy that Mr. Adams might pursue were of brief duration. Their points of view were hopelessly at variance. The President was an avowed admirer of the British Constitution, he had pronounced views of an aristocratical nature, and he was an uncom- promising friend of strong government. The Vice- President, great as he was, was undeniably sus- picious, and especially so of the northern Federalists. Even he forgot, that while at the Court of St. James Mr. Adams had pursued a most manly and independent course, and that, whatever his theories were, he had proved his patriotism and 1 Jefferson's Works, vol. iv., pp. 153, i54 e seq., e. i66. I I 2naw'oduclion. republicanism in his masterly leadership in the first years of the Continental Congress. The distrust was probably mutual, but the President was the one to whom confidence and cooperation were due, and instead of that the Vice-President was the leader of the opposition and his rival for the suf- frages of the people. The situation was too much for the administration. The President early gave offence by inauspicious speeches in regard to the re- lation of British and French influences, and kindred matters. The friends of France took especial ex- ception to a remark to the effect that the American and French revolutions possessed not one point in common. Madison and Jefferson criticised this utterance freely in their correspondence, and it be- came the text for a public warning against a man who could hold such an opinion. Meanwhile our relations with France were growing more and more complicated. The performances of Genet pro- duced a great revulsion of feeling on the part of many ardent French sympathizers. And from the time of his coming there was never quite the same feeling that had once prevailed. When Washing- ton left office Adet's commission was suspended, and though he continued in Philadelphia, he was no longer accredited to the government. Charles Cotesworth Pinckney had set out bearing Monroe's recall and his own credentials to St. Denis. When he arrived he was received with much hauteur, and finally informed that the Directory declined to recognize him. All this had transpired in the last days of Washington's administration, but the news I 2 Introduction. had not reached this country when Adams was in- augurated. The country generally was exasperated by the rejection of Pinckney, and the circumstances of that rejection made the course of France, which for a long time had been directed towards a separa- tion between the executive and a large body of the people, more patent than at any previous time. But Adams declared it to be his desire to heal the dif- ferences if possible, and to do all in his power to prevent the breach from widening. In order to accomplish this he summoned Congress to a special session in May and expressed his intention of nom- inating a commission to be sent to France to en- deavor to bring about an accommodation. This commission as first drawn was to consist of Pinck- ney, Dana, and Marshall, but Dana declined, and Gerry was substituted for him. Gerry and Mar- shall set out promptly and joined Pinckney in Hol- land. Their credentials and instructions were ade- quate to the broadest scope of negotiation and there was great hope that they would be able to effect an accommodation. But at the same time there was a growing distrust of French attitudes, and particu- larly of the increasing power of Buonaparte. Even Mr. Jefferson was doubtful what the times would bring forth. Time slipped away. Negotiation was slow and communication between the countries imperfect. Public interest was fairly on tip-toe. The envoys had reached Paris early in October, and six months had now elapsed. Just at this moment the weight was lifted from the President's heart which had been so sorely stung by insult and I3 Introduclion. vituperation. The X. Y. Z. despatches arrived and were made public on the 3d of April, 1798. A tremendous revulsion of feeling was the result. "Millions for defence, not one cent for tribute," became the cry on every hand. Adams was for once almost a popular hero. Federalism was in high feather. A French war seemed imminent, and for the moment would have been received with ac- clamation by all parties. This seemed to be the time to press forward vigorous measures that would undo much past evil and prevent much future an- noyance. The programme embraced three acts. The first a change of the naturalization law ; the second an alien act ; the third a sedition act. The effect of the first was to alter the period of residence necessary to citizenship from five to four- teen years, to require a registration of all white aliens, and to forbid the naturalization of alien enemies. The Alien Act permitted the banishment of aliens under the simple order of the President, and in case of refusal to depart it authorized im- prisonment and deprivation of the right to become a citizen. This was for alien friends, for the act drew this distinction. Alien enemies could be de- tained, banished, imprisoned, all at the discretion of the President. This was a most remarkable stretch of authority, but the Sedition Act was far more radical. It originated in the Senate, and must have alarmed not merely the friends of France and the Republican party, but equally all clear-sighted friends of freedom and of calm legis- lation. As introduced, its first section declared 14 Introduction. France to be a public enemy, and made the giving of comfort or aid to Frenchmen or France by any one owing allegiance to the United States treason, and punishable with death. The second clause miade the concealing or withholding of information concerning the acts made treason by the preceding section misprision of treason, and punishable by fine and imprisonment. The third was directed against combinations and conspiracies to resist the laws and the execution of the laws by officers of the United States. This crime of sedition was punishable by fine and imprisonment, and the judges were given authority to require securities for future good conduct. The fourth section was di- rected against seditious publications. It would have been wonderful had such a meas- ure become a law. It was tremendously sweeping in its provisions; to pronounce France and her people enemies when not in a state of declared war was unexampled, and to make it a high misde- meanor to use language "tending to justify the hostile conduct of the French government" a great stretch of censorship. The first two sections were stricken out bodily ; not, however, till they had served to create alarm, and to supply a bugbear wherewith to frighten the uneasy, as examples of what the administration party desired and were working to obtain. The last two sections were purged of their more objectionable features, but a residuum remained ample to awake the fiercest in- vectives and the most determined opposition. It now included the two classes of seditious practices hnfrodliclzon. and the publication of seditious libels on the gov- ernment and its officers. Two clauses were added to modify the effect of these provisions. Section three permitted the truth in action for libel to be set up as a defence, contrary to the previous prac- tice, and section four limited the continuance of this act to the period of the current administration, that is, to 'March 3, I80I. Even before these laws were enacted a feeling of alarm spread everywhere. In the extreme Federal- ist States, no doubt, a feeling of triumph and ex- ultation prevailed, but even in their borders there was no lack of dismay among the minority. The opposition in Congress labored strenuously to prevent their passage, but in vain. Once passed, the country was thrown into a perfect ferment. The different portions of the country were affected according to the dominant political opinion. Where the Federalists were strong political feeling bore them headlong into prosecutions under the new powers. In the Republican States a sense of injury and danger went hand in hand, and the question of the hour was how to repel the threatening de- struction. Mr. Jefferson did not fail to see that the great opportunity for his party had come. His keen political sagacity detected in an instant the fatal mistake the administration had made, and he began at once to look about him for the best means to turn his opponents' mistake to his own advantage. Naturally he felt some delicacy in appearing too forward in assailing a government of Inlrodeclion. which he himself was the second in office. Never- theless Le lent himself willingly to the task of organizing, in a quiet way, a systematic assault upon these laws of Congress, and at once opened a cor- respondence calculated to elicit the best judgment of his coadjutors and gradually drew out a pro- gramme of action. Virginia was by no means unanimous in repro- bating these laws. She had a large and influential body of Federalists, who were led by bold and able leaders, and, as is not infrequently the case with minorities largely constituted of the wealthy and cultivated, many of the Virginia Federalists were extreme in their convictions and partisanship. But the influence of Jefferson wvas paramount and the result of Jeffersonian principles soon appeared on every hand. Meetings were held in many of the counties upon their county court days at which were adopted addresses or series of resolutions con- demning or praying for the repeal of these laws. Among these counties were Prince Edward, Goochland, Orange, Augusta, Amelia, Powhattan, Louisa, and Caroline. Except Kentucky it made the greatest show of resistance. New York, New Jersey, and Pennsylvania sent petitions of appeal to Congress, and the latter, being especially aroused by the plain personal attack contained in these laws upon the popular Gallatin, was very active in doing what was possible to secure the repeal. It is a matter of general regret that so few of Mr. Jefferson's letters written just at this crisis I 7 i8 introduction. appear in his published works. Those that are before us contain more expressions of suspicions of surveillance and inspection on the part of the post- office than of opinions on the situation. His gen- eral views are, however, sufficiently well known. He wholly opposed the course the government was pursuing, but deplored any thought of violent measures, arguing very forcibly in a letter to John Tavlor of Carolina, ' that men were prone to differ, parties were inevitable, and the constant