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 


                OF 4798



              SECOND EDITION

          G. P. PUTNAM'S SONS
     NEW YORK                  LONDON
             9bt 3inichcrborhtzr aces


            COPYRIGHT BY
         E. D. WARFIELD

   Electrotyped, Printed and Bound by
Zbe lknicherbocker lpreos, lvew Vort
        G. P. PUTNAM'S SONS




                      S. L. W.


 This page in the original text is blank.



                  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.



  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,


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
  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



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.

     Mid-Summer, 1887.


 This page in the original text is blank.


                  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


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





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



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



                  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



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,




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





same direction and drew a sharp line between the
advocates of a strong and of a feeble central gov-
  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




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
  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




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.




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



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




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



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



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-
  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



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
  It is a matter of general regret that so few
of Mr. Jefferson's letters written just at this crisis

I 7




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