STATE DOCUMENTS ON FEDERAL RELATIONS THE STATES AND THE UNITED STATES. EDITED WITH NOTES BY HERMAN V. AMES, Ph.D. PUBLISHED BY THE DEPARTMENT OF HISTORY, OF THE UNIVERSITY OF PENNSYLVANIA. Sold by the Department of History, University of Pennsylvania, Philadelphia, Pa., and by Longmans, Green & Co., New York. PHILADELPHIA, 1911. PREFACE. THE following collection of documents on the relations of the States to the Federal Government, 1789-1861, comprises typical papers covering the official action of various states in different sections of the country, relative to the chief political and constitutional issues in our history. The documents have been selected especially with a view to illustrate the development of the doctrines of broad and strict construction, the prevalence of the "compact theory" of the Constitution and the doctrine of "State Rights," State opposition to the Federal Judiciary, and the different phases of the slavery controversy, culminating in the secession movement. The truth of the statement of Alexander Johnston, that "Almost every State in the Union in turn declared its own sovereignity and denounced as almost treasonable similar declarations in other cases by other States," is fully sustained by the following documents. In making the collection I was soon confronted by the fact that some of the most valuable illustrative material could only be secured with great difficulty, owing to the inaccessibility or scarcity of the volumes containing the desired documents, or the record of legislative action. Indeed I early learned that nothing approaching a complete collection of the legislative documents of the several States was in existence, although the authorities of the Congressional Library and the New York Public Library were endeavoring to secure such. As a result of this experience I have been deeply impressed with the importance of more attention being paid to the collection and systematic study of this class of State documents, for I believe that only in the light of these records can we realize the full significance of our national development. This compilation was prompted primarily to meet the need for illustrative material in connection with courses in the Constitutional History of the United States given in the University of Pennsylvania. In view of the fact that so few of the resolutions of the State Legislatures and other official documents of the various States were accessible to the general reader, it was believed that the publication of a series of selections from these important, but little used sources would be welcomed by others. This expectation has been fulfilled by the reception given to the successive numbers as they have appeared. With the completion of the series, in the hope of increasing their value and facilitating their use, the several numbers are now presented in one volume. HERMAN V. AMES. Philadelphia, October 30th, 1906. ERRATA. Page 138. The Reports and Resolves of a Committee of the House of Representatives of South Carolina, 1824, does not seem to have been adopted, as stated in the notes on page 136, only considered. Page 152. The statement in § 73 that the "South Carolina Exposition" was adopted by the Legislature is incorrect. The report was adopted by a Committee and presented to the Legislature, which ordered five thousand copies printed. CONTENTS. NUMBER. PAGE. 1. Rhode Island seeks a Commercial Union. 1789 ........ 1 2. Virginia on Assumption of State Debts. 1790 ......... 2 Georgia and the Federal Judiciary. 1793 ........... 7 3. Message of Governor Telfair ................. 8 4. Act Declaratory of Retained Sovereignty of the State ...... 9 New Hampshire and the Federal Judiciary ........... 11 5. First Remonstrance of the Legislature. 1794.......... 12 6. Second Remonstrance of the Legislature. 1795 ......... 13 Kentucky and Virginia Resolutions. 1798, 1799 ........ 15 Replies of the States. 1799 ................16 7. Delaware to Virginia .................... 16 8. Rhode Island to Virginia .................. 17 9. Massachusetts to Virginia .................. 18 10. The Pennsylvania House to Kentucky .............20 11. The Pennsylvania House to Virginia .............. 22 12. The New York Senate to Virginia and Kentucky ........22 13. Connecticut to Virginia ...................24 14. New Hampshire to Virginia and Kentucky ...........34 15. Vermont to Virginia .....................25 Massachusetts on the Embargo. 1809 ............. 26 16. Answer of the Senate ....................28 17. Answer of the House ....................29 18. Resolution on the Enforcement Act ............... 34 19. Delaware and the Embargo. 1809 ..............36 Connecticut and the Enforcement Act. 1809 ..........38 20. Speech of Governor Trumbull ................39 21. Resolutions of the General Assembly .............40 22. Rhode Island on the Embargo. 1809 .............42 Pennsylvania and the Federal Judiciary. 1809 .........45 23. Resolutions of the Legislature ................46 24. Reply of the General Assembly of Virginia. 1810 ........ 49 25. Rejoinder of the House of Representatives of Pennsylvania. 1810. 51 26. Resolutions of Pennsylvania against the Bank. 1811 .......52 27. Resolutions of Virginia against the Bank. 1811.........54 Massachusetts and the Militia Question. 1812-14 ........54 28. Letter of Governor Strong to Secretary of War. 1812 ..... 56 29. Opinion of the Judges of Massachusetts. 1812 ......... 57 30. Connecticut on the Militia Question. 1812 .......... 59 31. Rhode Island and the Militia Question. 1812 ......... 62 32. Vermont and the Militia Question. 1813-14 .......... 63 Governor Chittenden's Speech. 1813 ............ 64 33. Massachusetts on Extension of Territorial Limits. 1813 ..... 65 34. Massachusetts on the Embargo. 1814 ........... 69 35. Connecticut on the Conscription Bill. 1814 .......... 76 Massachusetts and the Call of the Hartford Convention. 1814 .. 77 36. Report adopted by the General Court ............. 78 37. Circular Letter calling the Convention ............ 79 38. Rhode Island's Resolutions of Acceptance .......... 81 39. Resolutions of the Hartford Convention. 1815 ......... 83 Replies of the States. 1815 ................. 86 40. Reply of New Jersey ................... 86 41. Reply of New York .................... 87 42. Resolutions of Pennsylvania against the Bank. 1819 ...... 89 Replies of the States .................. 90 43. Reply of South Carolina. 1821 ............... 91 44. Reply of New York. 1823 ................ 92 45. Ohio on the Bank and Federal Judiciary. 1821 ........ 93 46. Reply of Massachusetts. 1822 ............. 101 47. Virginia on Jurisdiction of the Federal Courts. 1821 ..... 103 Kentucky and the Federal Judiciary. 1821-25 ........ 105 48. Message of Governor Adair. 1823 .............. 106 49. Resolutions of the Legislature. 1823 ............. 107 50. Remonstrance of the Legislature. 1824........... 108 Kentucky and the Federal Judiciary (Continued) ....... 111 51. Message of Governor Desha. 1825 ............. 112 Georgia and the Creek Indians Controversy. 1825-27 ..... 113 52. Letter of Governor Troup to General Gaines. 1825 ...... 115 53. Letter of Governor Troup to the War Department. 1825 .... 116 54. Letter of Governor Troup to the Secretary of War. 1825.... 118 55. Resolutions of the Legislature. 1826 ............ 119 56. Letter of Governor Troup to Georgia Delegation. 1827 .... 122 57. Resolutions of the Legislature. 1827 ............. 123 Georgia and the Jurisdiction of the Cherokees. 1826-31 .... 124 58. Resolutions of the Legislature. 1827 ............. 125 59. The Legislature and the Case of Tassels........... 127 Georgia and the Jurisdiction of the Cherokees (Continued). 1831-35 128 60. Message of Gov. Lumpkin relative to Worcester. 1831..... 129 Resolutions of other States on Georgia's action......... 130 61. Report and Resolutions of Connecticut. 1831 ... 131 Tariff and Internal Improvements..... 133 62. Report of House of Representatives of South Carolina. 1820 ........... 134 63-65. South Carolina on Powers of Federal Government 1824-25 136-139 66-67. Resolves of Virginia. 1826-27 .... 140-143 68. South Carolina and the Harrisburg Convention 1827 144 69. Georgia on the Tariff and Internal Improvements. 1827 146 70. North Carolina on the Tariff 1828 ....... 148 71. Remonstrance of Alabama. 1828 ... 150 72 Counter Resolutions. 1828 .... ...... 151 Remonstrance Against the Tariff of 1828 ..... 152 73. Resolutions of South Carolina 1828 ..... 152 74-75. Georgia on the Tariff of 1828 ..........153-155 76. Resolutions of Mississippi. 1829 ........ 156 77. Resolutions of Virginia. 1829 ........... 156 78-80. Counter Resolutions of Kentucky, Louisiana and Pennsylvania. 1830-32 .. 158-163 Progress of Nullification in South Carolina 164 81. Resolutions on State Rights. 1830 ....... 165 82. The Nullification Movement and the Reply to Jackson. 1831 ....165-168 83. Ordinance of Nullification 1832 .. 169 84 Reply to Jackson's Proclamation 1832 ..... 173 85. South Carolina's Call for a Convention 1832 .... 176 86 Delaware's Reply to South Carolina's Call. 1833 .... 177 Replies of the Co-States to South Carolina. 1832-33 .. 178 87. Georgia on a Southern Convention .... 179 88. Alabama Proposes a Convention ....... 180 89. Resolves of North Carolina........... 183 90. Report and Resolves of Mississippi ...... 183 91. Resolves of Virginia . ......... 185 92 South Carolina's Final Action. 1833 ....... 188 The North-Eastern Boundary Controversy. 1831-32 .. 190 93. Resolutions of Maine. 1832 ......... 190 94. Resolutions of Massachusetts. 1832 ... 191 Early Resolutions on Slavery ........ 193 95. The House of Representatives on the Powers of Congress, 1790 ............ .... 194 96 Resolutions of Virginia on Colonization, 1800-1816 ... 195 The Missouri Contest, 1819-1820 .......... 196 97-100. Resolutions of Pennsylvania, New Jersey, Virginia and Vermont ...................197-203 101. Ohio on Emancipation and Colonization, 1824..... 203 102-104. South Carolina's Reply to Ohio and the Federal Government, 1824 ...........204-208 105. Message of Governor Troop of Georgia, 1825..... 258 Resolutions on the Colonization Society, 1827-1832 ... 209 106. Resolutions of Delaware, 1827 ...... .. 210 107. Resolutions of Georgia, 1827 ........ 211 The South on the Abolition Question, 1831-39 .. 214 108. Resolutions of South Carolina. 1835 ..... 216 Reply of the Northern States, 1836-39 .. 220 109. New York in Reply to the South .. ..... 220 Slavery in the District of Columbia and the Right of Petition, 1836-44 ............ 221. no. Resolutions of Massachusetts, 1837 .... 222 111. Resolutions of New York, 1840 ........ 223 Annexation of Texas, 1837-45 ..... 224 112. Resolution of Vermont, 1837 ......... 225 113. Report of the Legislature of Mississippi, 1837 ... 225 114. Report and Resolution of Alabama, 1837 ..... 227 115 Resolution of South Carolina, 1844 ........ 229 116-117 Massachusetts opposes annexation, 1843-45 .....229-232 Inter-State Controversies, 1837-43 .......... 232 118. South Carolina on Georgia-Maine Controversy, 1839 .. 234 119. Virginia's Controversy with New York, 1840 ..... 235 120. Resolutions of Mississippi, 1841 ....... 235 South Carolina's controversy with Massachusetts .... 237 121. Resolution of South Carolina, 1844 ......... 238 Replies to Massachusetts' proposal to abolish representation for slaves. ....... 239 122. Virginia's Reply, 1844 .... 239 123. Massachusetts against the Mexican War and Slavery. 1847........... .... 241 124-125. Resolutions on the Wilmot Proviso. 1846-50 .... 243-247 126. Vermont on Slavery 1847 .......... 247 Demand for New Fugitive Slave Law .. 249 127. Virginia on Rendition of Fugitive Slaves. 1849 .... 250 Calling a Southern Convention. 1850 ..... 253 128. Mississippi Calls a Southern Convention 1850 ..... 254 Resolutions on Proposed Compromise Measures ..... 258 129. Resolutions of Georgia. Feb, 1850 ....... 259 130. Resolutions of Connecticut. 1850 ........ 261 131. Resolutions of the Nashville Convention 1850 .... 262 Actions of the Southern States on the Compromise ... 269 132. The Georgia Platform. Dec., 1850 ......... 271 133. South Carolina Asserts Right of Secession. 1850-52 .. 272 134. Virginia on Action of South Carolina. 1851 ...... 275 The North on the Compromise ............ 277 135. New Jersey on the Compromise. 1852 ....... 278 136. Louisiana on the Cuban Situation. 1854 ....... 280 137-138. Resolutions on the Kansas-Nebraska Bill. 1854 .... 280-283 139-140. Resolutions on the Kansas-Nebraska Act. 1854-55 ... 284-288 141. Massachusetts on the Fugitive Slave Law. 1855 ... . 288 142-143. Resolutions on the Disturbance in Kansas. 1855-57 .. 289-293 144. Resolutions on the Assault upon Sumner. 1856 .... 293 145-146. Resolutions on the Dred Scott Decision. 1857-59 .. 295-298 147. Resolutions on the Lecompton Constitution. 1857-58 .. 299-300 148. Wisconsin Defies the Federal Courts. 1859 ..... 303 149. New York Denounces the Slave Trade. 1859 ..... 305 Resolutions on the Harper's Ferry Raid. 1859 .... 306 150. Tennessee Condemns the Republican Party. 1859 .. 308 151. South Carolina Proposes a Southern Convention. 1859 . 309 Inauguration of the Secession Movement. 1860 .... 310 152. The Mississippi Legislature Justifies Secession. 1860.. 311 153-154. Coercion or Compromise. 1860-61 ......... 313-316 Extension of the Secession Movement ......... 317 155. Mississippi on the Causes of Secession. 1861 ..... 318 STATE DOCUMENTS ON FEDERAL RELATIONS: THE STATES AND THE UNITED STATES. 1. Memorial from the State of Rhode Island and Providence Plantations. September Session, 1789. In June of 1789, the Rhode Island Assembly for the sixth time defeated a proposition to call a convention to consider the ratification of the Federal Constitution, but hoping to avert hostile tariff legislation by Congress, it had passed in May an impost law providing for the collection. of the same duties on imports as Congress might lay upon imports into the Union. In September, after re-enacting the law passed by Congress (July 31, 1 U. S. Stat. at Large, 48), they sent the following memorial, an overture for a commercial union. Congress, anticipating the receipt of the memorial, passed an act suspending the impost law in favor of Rhode Island and North Carolina until January 15, 1790. (Sept. 15, 1 U. S. Stat. at Large, 100. Memorial received, Sept. 26, Senate Journal, I Cong., 89 (ed. 1820).) Finally the Rhode Island Assembly called a convention for March 1, 1790, and requested a further suspension of the revenue laws. Congress granted an extension until April I. The convention, however, adjourned without completing its work to May 24, In consequence of its action, the Senate on May 18 passed a bill prohibiting all commercial intercourse with Rhode Island after the 1st of July next, and authorizing the government to demand of that State the payment of its portion of the continental debt without delay. (Annals of Cong., 1, 976; S. J., 1 Cong., 142.) This attitude of the Senate, together with the open threats of coercion in the public press, apparently had an important influence on the convention. That body ratified the constitution, May 29, 1790, by a vote of 34 to 32, also proposing a series of amendments. References: The text is from Rhode Island Colonial Records, X, 356, also slightly changed in American State Papers, Miscellaneous, I, 10. For the history; of prune importance is F. G. Bates, Rhode Island and the Formation of the Union, Chaps. V, VI (N. Y., 1898); cf. Arnold's Rhode Island, II, 536-564 (4th ed.); W. R. Staples, Rhode Island in the Continental Congress, etc., 619 ff; Curtis, Constitution, II, 598-604 (ed. 1860), or I, 692-697 (ed. 1897); Elliot's Debates, I, 336, 337. To the President, Senate and House of Representatives of the eleven United States of America, in Congress assembled: The critical situation in which the people of this state are placed, engage us to make these assurances, in the behalf of their attachment and friendship to their sister states, and of their disposition to cultivate mutual harmony and friendly intercourse. They know themselves to be a handful, comparatively viewed, and although they now stand as it were, alone, they have not separated themselves, or departed from the principles of that Confederation which was formed by the sister states, in their struggle for freedom and in the hour of danger. They seek by this memorial to call to your remembrance the hazard which we have run, the hardships we have endured, the treasures we have spent, and the blood we have lost together in one common cause, and especially the object we had in view — the preservation of our liberty — wherein ability considered they may truly say, they were equal in exertions with the foremost. The effects whereof in great embarrassments and other distresses, consequent thereon, we have since experienced with severity, which common sufferings and common danger we hope and trust will yet form a bond of union and friendship not easily to be broken. Our not having acceded to or adopted the new system of government found and adopted by most of our sister states, we doubt not have given uneasiness to them. That we have not seen our way clear to do it, consistent with our idea of the principle upon which we all embarked together, has also given pain to us; we have not doubted but we might thereby avoid present difficulties, but we have apprehended future mischief. The people of this state from its first settlement have been accustomed and strongly attached to a democratical form of government. They have read in the constitution an approach toward that form of government from which we have lately dissolved our connection at so much hazard of expense of life and treasure, — they have seen with pleasure the administration thereof, from the most important trusts downward, committed to men who have highly merited, and in whom the people of the United States place unbounded confidence. Yet, even on this circumstance, in itself so fortunate, they have apprehended danger by way of precedent. Can it be thought strange then, that with these impressions, they should wait to see the proposed system organized and in operation, to see what further checks and securities would be agreed to, etc. [and] established by way of amendments before they would adopt it as a constitution of government for themselves and their posterity? These amendments we believe have already afforded some relief and satisfaction to the minds of the people of this state: And we earnestly look for the time, when they may with clearness and safety, be again united with their sister states under a constitution and form of government so well poised, as neither to need alteration or be liable thereto by a majority only of nine states out of thirteen, a circumstance which may possibly take place against the sense of a majority of the people of the United States. We are sensible of the extremes to which democratical government is sometimes liable; something of which we have lately experienced, but we esteem them temporary and partial evils compared with the loss of liberty and the rights of a free people. Neither do we apprehend they will be marked with severity by our sister states, when it is considered that during the late trouble, the whole United States, notwithstanding their joint wisdom and efforts, fell into the like misfortune. That from our extraordinary exertions, this state was left in a situation nearly as embarrassing as that during the war. That in the measures which were adopted, government unfortunately had not the aid and support from the monied interest, which our sister states of New York and the Carolinas experienced under similar circumstances, and especially when it is considered that upon some abatement of that fermentation in the minds of the people which is so common in the collision of sentiments and of parties, a disposition appears to provide a remedy for the difficulties we have labored under on that account. We are induced to hope that we shall not be altogether considered as foreigners, having no particular affinity or connection with the United States. But that trade and commerce upon which the prosperity of this state much depends, will be preserved as free and open between this and the United States as our different situations at present can possibly admit. Earnestly desiring and proposing to adopt such commercial regulations on our part as shall not tend to defeat the collection of the revenue of the United States, but rather to act in conformity to, or corporate [co-operate] therewith, and desiring also to give the strongest assurances that we shall during our present situation use our utmost endeavors to be in preparation, from time to time, to answer our proportion of such part of the interest or principal of the foreign and domestic debt, as the United States shall judge expedient to pay and discharge. We feel ourselves attached by the strongest ties of friendship, kindred and of interest with our sister states, and we cannot without the greatest reluctance look to any other quarter for those advantages of commercial intercourse which we conceive to be more natural and reciprocal between them and us.1 2. Virginia on the Assumption of State Debts. December 23, 1790. Virginia especially was opposed to the act for the assumption of State debts, as she had already paid off the greater portion of her revolutionary debt. Jefferson, nearly a month prior to the adoption of this memorial, wrote Morris: "The States of Virginia and North Carolina are peculiarly dissatisfied with this measure. I believe, however, that it is harped on by many to mask their disaffection to the government on other grounds. Its great foe in Virginia is an implacable one." (Patrick Henry.) Jefferson's Works (ed. 1854), III, 198; Writings (Ford's ed.), V, 250. In addition to this memorial, the Legislature of Virginia also passed resolutions, Dec. 21, 1790, one of which pronounced the law in question "repugnant to the Constitution of the United States, as it goes to the exercise of a power not expressly granted to the general government." Hening's Statutes, XIII, 234. As soon as this resolution had passed the House of Delegates, Hamilton wrote to Chief Justice Jay: "This is the first symptom of a spirit which must either be killed or will kill the Constitution of the United States. 1 The formal indorsement is omitted, which practice will be followed usually. I send the resolution to you that it may be considered what ought to be done. Ought not the collective weight of the different parts of the Government to be employed in exploding the principles they contain?" Correspondence and Public Papers of John Jay, III, 405 (N. Y., 1891.). Jay replied: To treat them as very important might render them more so than I think they are. * * * The assumption will do its own work; it will justify itself, and not want advocates. Every indecent interference of State assemblies will diminish their influence; the national government has only to do what is right and, if possible, be silent. If compelled to speak, it should be in a few words strongly evinced of temper, dignity, and self-respect." Ibid., 410. These resolutions were presented to the Senate by Monroe on January 13, 1791, and to the House by Madison on the following day, and communicated by the President on January 17, but Congress took no important action thereon. In Maryland resolutions pronouncing assumption as dangerous to the independent existence of the State government were defeated by the casting vote of the Speaker of the House. North Carolina likewise condemned the measure in vigorous language. References: Text in Hening's Statutes, XIII, 237-239 (Phila., 1833); also in Amer. State Papers, Finance, I, 90, 91. For comments, see Jefferson's Works, III, 152, 166, 167, 198; Jay's Correspondence and Public Papers, III, 405, 410; Hamilton's History of the Republic, IV, 479, 480; McMaster's United States, I, 593. For references on the previous opposition to funding in Congress, see MacDonald's Documents, 47; Channing and Hart's Guide, § 158. IN THE HOUSE OF DELEGATES, THURSDAY, THE 16TH OF DECEMBER, 1790. The General Assembly of the Commonwealth of Virginia to the United States in Congress assembled. Represent, That it is with great concern they find themselves compelled, from a sense of duty, to call the attention of Congress to an act of their last session, intitled "An act making provision for the debt of the United States," which the General Assembly conceive neither policy, justice nor the constitution warrants. Republican policy in the opinion of your memorialists could scarcely have suggested those clauses in the aforesaid act, which limit the right of the United States, in their redemption of the public debt. On the contrary they discern a striking resemblance between this system and that which was introduced into England, at the revolution; a system which has perpetuated upon that nation an enormous debt, and has moreover insinuated into the hands of the executive, an unbounded influence, which pervading every branch of the government, bears down all opposition, and daily threatens the destruction of everything that appertains to English liberty. The same causes produce the same effects! In an agricultural country like this, therefore to erect, and concentrate, and perpetuate a large monied interest, is a measure which your memorialists apprehend must in the course of human events produce one or other of two evils, the prostration of agriculture at the feet of commerce, or a change in the present form of foederal government, fatal to the existence of American liberty. The General Assembly pass by various other parts of the said act which they apprehend will have a dangerous and impolitic tendency, and proceed to show the injustice of it as it applies to this Commonwealth. * * * Your memorialists turn away from the impolicy and injustice of the said act, and view it in another light, in which to them it appears still more odious and deformed. During the whole discussion of the foederal constitution by the convention of Virginia, your memorialists were taught to believe "That every power not granted was retained," under this impression and upon this positive condition, declared in the instrument of ratification, the said government was adopted by the people of this Commonwealth; but your memorialists can find no clause in the constitution authorizing Congress to assume the debts of the states ! As the guardians then of the rights and interests of their constituents, as sentinels placed by them over the ministers of the foederal government, to shield it from their encroachments, or at least to sound the alarm when it is threatened with invasion, they can never reconcile it to their consciences, silently to acquiesce in a measure, which violates that hallowed maxim : a maxim on the truth and sacredness of which the foederal government depended for its adoption in this Commonwealth. But this injudicious act not only deserves the censure of the General Assembly, because it is not warranted by the constitution of the United States, but because it is repugnant to an express provision of that constitution; this provision is "That all debts contracted and engagements entered into, before the adoption of this constitution, shall be as valid against the United States under this constitution as under the confederation," which amounts to a constitutional ratification of the contracts respecting the state debts in the situation in which they existed under the confederation, and resorting to that standard there can be no doubt that in the present question the rights of states as contracting with the United States must be considered as sacred. The General Assembly of the Commonwealth of Virginia confide so fully in the justice and wisdom of Congress upon the present occasion, as to hope that they will revise and amend the aforesaid act generally, and repeal in particular, so much of it as relates to the assumption of the state debts. December the 23d, 1790. Agreed to by the Senate. Georgia and the Federal Judiciary. 1792, 1793. A suit instituted by Chisholm against the State of Georgia came up for a hearing before the Supreme Court in the August term of 1792, but the case was postponed to the February term of the next year, in order that the State of Georgia might have time to deliberate on the measures she ought to adopt. A resolution was introduced into the Georgia House of Representatives, December 14, 1792, declaring that this suit "if acquiesced in by this State would not only involve the same in numberless law-suits for papers issued from the Treasury thereof to supply the armies of the United States, and perplex the citizens of Georgia with perpetual taxes, in addition to those the injustice of the funding system of the United States hath already imposed upon them, but would effectually destroy the retained sovereignty of the States, and would actually tend in its operation to annihilate the very shadow of State government, and to render them but tributary corporations to the government of the United States," therefore the State of Georgia would not be bound by the decision of the Supreme Court in such cases, but would regard it "as unconstitutional and extra-judicial." It further recommended "an explanatory amendment" to the constitution. Apparently the resolution was not adopted, but it represents the policy which the State followed. At the February term of the Supreme Court a written remonstrance on behalf of the State was presented, but otherwise the State declined to appear. The opinion of the Court was rendered February 18, 1793. It was ordered that unless Georgia should appear, or show cause by the first day of the next term, judgment by default should be entered against the State. At the opening of the next session of the Legislature of Georgia, in November, 1793, the Governor called attention to the case in his message as given below. The House of Representatives adopted a report authorizing the preparation of an address to the Legislatures of the several States, "requesting their concurrence in a proposal for an explanatory amendment to the Constitution of the United States, in the second section of the third article," and they also passed a bill, "Declaratory of the retained sovereignty of the State" an extract from which follows. Apparently this measure did not pass the Senate, as the present Secretary of States writes that an examination of the manuscript laws for 1793 fails to disclose it. State sovereignty was aroused elsewhere; two days after the decision of the Court was pronounced a proposed amendment, containing the exact language of the present eleventh amendment, was introduced in Congress by Senator Sedgwick of Massachusetts, against which State a similar suit was pending. The Legislatures of Massachusetts, Connecticut and Virginia each proposed an amendment; the former declaring that the power claimed by the Supreme Court was "dangerous to the peace, safety and independence of the several States and repugnant to the first principles of a Federal Government." Virginia pronounced "the decision of the Supreme Federal Court incompatible with and dangerous to the Sovereignty and Independence of the Individual States, as the same tends to a general consolidation of these confederated Republicks." Congress sent the proposed amendment to the States March 5, 1794, and its ratification was announced by a message of the President, January 8, 1798. At the February term of the Supreme Court 1794, judgment was rendered for the plaintiff, and a "Writ of Enquiry" awarded, but never executed, as the adoption of the eleventh amendment prevented the threatened conflict of authority. References: The Texts are in The Augusta Chronicle and Gazette of the State, December 22, 1792; November 9, 16, 23, and December 7, 1793. This paper contains the House Journal.1 Massachusetts resolutions, Resolves of Mass. (MS.), IX, 108; Copy of Connecticut and Virginia resolutions in Massachusetts Archives. In Hollingsworth v. Virginia (1798), 3 Dallas, 378, it was held that the XI Amendment applied to prior cases. Chisholm v. Georgia, 2 Dallas, 419, 479, 480. For history of this case and the amendment, see Cohen v. Virginia, 6 Wheaton, 406; Ames, Proposed Amendments, Amer. Hist. Assoc. Report, 1896, II, 156, 157, 322; McMaster, II, 182-186; V, 402; Story, Commentaries, II, 481, 482; Thorpe, Const. History of U. S., II, 264-293. 1 I am indebted to Mr. William Harden, Librarian Georgia Historical Society, for transcripts of these texts and examination of newspaper files. 3. Extracts from the Message of Governor Edward Telfair, Dated November 4, 1793. The Augusta Chronicle and Gazette of the State, Saturday, November 9, 1793. ******* Notwithstanding certain amendments have taken place in the Federal Constitution, it still rests with the State Legislatures to act thereon as circumstances may dictate. A process from the Supreme Court of the United States, at the instance of Chisholm, Executor of Farquhar, has been served on me and the Attorney General. I declined entering any appearance, as this would have introduced a precedent replete with danger to the Republic, and would have involved this state in complicated difficulties abstracted from the infractions it would have made on her retained sovereignty. The singular predicament to which she has been reduced by savage inroads has caused an emission of paper upwards of one hundred and fifty thousand pounds since the close of the late war, a considerable part of which is yet outstanding, and which in good faith and upon constitutional principles is the debt of the United States. I say were action admissible under such grievous circumstances, an annihilation of her political existence must follow. To guard against civil discord as well as the impending danger, permit me most ardently to request your most serious attention to the measure of recommending to the Legislatures of the several States that they effect a remedy in the premises by an amendment to the constitution; and that to give further weight to this matter the delegation of this state in Congress be required to urge that body to propose such an amendment to the said several Legislatures. * * * 4. Act Declaratory of the Retained Sovereignty of the State. Extracts from the Journal of the House of Representatives, Tuesday, November 19, 1793. The Augusta Chronicle and Gazette of the State, Saturday, November 23, and December 7, 1793. The House proceeded to resolve itself into a committee of the whole, to take under consideration a bill to be entitled an act declaratory of certain parts of the retained sovereignty of the State of Georgia — Mr. Speaker left the chair. Mr. McNeil took the chair of the committee — and some time being spent therein, Mr. Speaker resumed the chair, and Mr. McNeil from the committee of the whole reported that the committee had taken the said bill under consideration, had gone through the same, and had made several amendments thereto, which he reported. And the bill as reported amended, being read, a motion was made by Mr. Waldburger to strike out the following section therein: And be it further enacted, That any Federal Marshal, or any other person or persons levying, or attempting to levy, on the territory of this State, or any part thereof, or on the Treasury, or any other property belonging to the said State, or on the property of the Governor or Attorney-General, or any of the people thereof, under or by virtue of any execution or other compulsory process issuing out of or by authority of the Supreme Court of the United States, or any other Court having jurisdiction under their authority, or which may at any period hereafter under the constitution of the said United States, as it now stands, be constituted, for, or in behalf of the before mentioned Alexander Chrisholm, Executor of Robert Farquhar, or for, or in behalf of, any other person or persons whatsoever, for the payment or recovery of any debt, or pretended debt, or claim, against the said State of Georgia, shall be, and he or they attempting to levy as aforesaid are hereby declared to be guilty of felony, and shall suffer death, without the benefit of clergy, by being hanged. And on the question of striking out as aforesaid, the yeas and nays being required, are as follows: Yeas. Messrs. Barnett, Burnett, Carnes, Fort, R. Jones, J. Jones of Chatham, Waldburger, and Winn — 8. Nays. Messrs. Barrow, Early, Greer, Howell, Hardin, Harris, J. Jones of Burke, G. Jones, Jack, Kemp, Lanier, M'Neil, Rutherford, Simms, Stuart, Walker, Watkins, Worsham, and Wilkinson — 19. So the motion was lost. Ordered, That the bill be engrossed for a third reading. Extracts from the Journal of the House of Representatives, Thursday, November 21, 1793: * * * A bill to be entitled an act declaratory of certain parts of the retained sovereignty of the State of Georgia? was read the third time. And on motion made — Resolved, That the bill be inserted at full length on the journals of this House. Resolved, That the bill do pass under the title of "An act declaratory of certain parts of the retained sovereignty of the State of Georgia." Ordered, That the clerk do carry the same to the Senate and desire their concurrence. New Hampshire and the Federal Judiciary. 1794, 1795. The first of the following remonstrances was due to a decision rendered by the United States Circuit Court for the district of New Hampshire, October 24, 1793, enforcing the decree of the Court of Appeals in Cases of Capture, in a case growing out of the capture of the brigantine "Susannah" by the privateer the "McClary" in October, 1777. The latter vessel was owned and manned by citizens of New Hampshire, but was acting under the commission and authority of Congress. The Courts of New Hampshire condemned the "Susannah" and her cargo as lawful prize, and refused to grant an appeal to Congress as contrary to the law of the State. A petition for an appeal in this case (Treadwell and Penhallow v. trig Susannah) was, however, sent to Congress, and its prayer granted by the Court of Commissioners, June 26, 1779, by virtue of the Resolves of Congress of November 25, 1775 (Journal of Congress [ed. 1800], I, 241, 242.) The case came up for trial before the legal successors of this body, the newly erected Court of Appeals in Cases of Capture (Resolves of January 15, 1780, Jour. of Cong., VI, 10) in September, 1783. This Court reversed the decision of the New Hampshire Courts. Here the case rested until Elisha Doane, one of the appellants, finally brought proceedings in the Federal Circuit Court of New Hampshire in 1793, with the result as indicated above. On a writ of error the case was brought before the Supreme Court of the United States, and judgment was given, February 24, 1795, in the case of Penhallow et. al., v. Doane's Administrators, maintaining the jurisdiction of the United States Courts, and confirming the decision of the inferior courts. The second of the remonstrances was presented to Congress three days later. References: Texts: Amer. State Papers, Misc., I, 79, 123, 124. See the case of Penhallow v. Doane, 3 Dallas, 54, for full facts in the case. For history of the United States Courts prior to the adoption of the Constitution, and incidentally of this case, see J. F. Jameson, The Predecessor of the Supreme Court, in Essays in Const. History, ch. 1; J. C. Bancroft Davis, Courts of Appeal in Prize Cases, 131 United States Reports, Appx. xxix-xxxiv. 5. First Remonstrance of the Legislature, February 20, 1794. State of New Hampshire: To the Senate and House of Representatives of the United States in Congress assembled: The remonstrance of the Legislature of the State of New Hampshire, showeth: — That the citizens of the State of New Hampshire adopted the federal constitution of the United States under the full conviction that more extensive general powers were necessary to be vested in Congress than they ever possessed or pretended that they possessed, when they were entirely dependent on the good-will or the resolves of the several states. But by this adoption they did not then intend, nor does their legislature now choose to admit, that the confederation was in force prior to March, 1781, or that the federal constitution existed with respect to New Hampshire before June, 1788. That a question respecting the powers of Congress and the powers of the several States previous to the constitution or the confederation has been determined in the circuit court for the district of New Hampshire, held at Exeter on the 24th day of October, 1793, in which the foundation of the action was, whether this State, prior to an express grant to Congress, had a right to pass a law final in every way concerning the capture of vessels by this State, or citizens thereof, from the British, the enemy we were then engaged with in war. That the determination of this circuit court was, that the State of New Hampshire had no such power; but that Congress, or a court commissioned by them, could nullify the laws of any particular State; could control their several courts; and that in fact, the constitution of 1789 was unnecessary to be adopted, as it contained no new grant of powers, but only a confirmation of old ones. ******* The states are forbidden by the federal constitution to make any retrospective laws. The Legislature conceived that Congress was under the same obligations; and that their courts could not rejudge cases that were finally adjudged by courts existing prior to its adoption. In fact, the Legislature conceive, and feel no inclination to relinquish the idea that Congress, in its origin, was merely an advisory body, chosen by the several states to consult upon measures for the general good of the whole; that the adoption of measures recommended by them was entirely in the breast of the several States or their Legislatures; that no measure could be carried into effect in any State without its agreement thereto; that the subsequent powers of Congress entirely depended upon the express grants of the State Legislatures; that the Legislature of this State, so far from agreeing to the exercise of the power by Congress or its courts, now determined by the circuit court to have belonged to them, on request from Congress, did not grant, but denied it; that the declaration of independence received effect from its being acceded to by the Legislatures of the several States; and that the confederation was the first act binding upon the States which was not expressly agreed to by them individually; that a declaration by any body whatever contrary thereto is subversive of the principles of the revolution; unsettling all the proceedings of the State Governments prior to the existence of the constitution; and will inevitably involve the States, and this State in particular, in confusion, and will weaken, if not perhaps destroy, the National Government; the true principles of which the State of New Hampshire has, and will always endeavor to maintain. The Legislature of New Hampshire, therefore, again protest and remonstrate against the exercise of any such powers by Congress, or any court or body of men appointed by them, and request that measures may be taken to prevent and annihilate such illegal acts of power. 6. Second Remonstrance of the Legislature, January 16, 1795. To the Senate and House of Representatives of the United States, in Congress assembled: The Memorial of the Legislature of New Hampshire, showeth: That, impelled by a firm attachment to the first principles of a free Government, and the accumulated distresses of a number of their citizens, they again remonstrate to Congress against a violation of state independence and an unwarrantable encroachment in the courts of the United States. [Here follows a statement of the case as they view it.] That this State had a right to oppose the British usurpation in the way it thought best; could make laws as it chose, with respect to every transaction where it had not explicitly granted the power to Congress; that the formation of courts for carrying those laws into execution belonged only to the several States; that Congress might advise and recommend, but the States only could enact and carry into execution; and that the attempts repeatedly made to render the laws of this State in this respect null and void is a flagrant insult to the principle of the revolution; is establishing a Government they hoped to be a blessing on the uniform plea of arbitrary power, on an implication of grants of jurisdiction not intended to be included, nor even in contemplation. Can the rage for annihilating all the power of the States, and reducing this extensive and flourishing country to one domination, make the administrators blind to the danger of violating all the principles of our former Government, to the hazard of convulsions in endeavoring to eradicate every trace of State power, except in the resentment of the people? Can the constitutional exercise of the power of Congress in future be in no other way established than by the belief that the former Congress always possessed the same? Can the remembrance of the manner of our opposition to tyranny, and the gradual adoption of federal ideas, be so painful as to exclude (unless forced into view) the knowledge that Congress, in its origin, was merely an advisory body; that it entirely depended upon the will of the several Legislatures to enforce any measure they might recommend; that the inconveniences of this principle produced the confederation; and, even at that late day, it was declared that powers not expressly delegated to Congress are reserved to the States, or the people, respectively; that the experience of years, of the inefficacy of thirteen Legislatures to provide for the wants and to procure the happiness of the American people, caused the adoption of the present constitution — an adoption totally unnecessary, in point of principle, if the claims of former Congressional power are established. Forced by events, the Legislature of New Hampshire have made the foregoing statements; and while they cheerfully acknowledge the power of Congress in cases arising under the constitution, thus equally resolve not to submit the laws, made before the existence of the present government by this (then independent State) to the adjudication of any power on earth, while the freedom of the Federal Government shall afford any constitutional means of redress. Impressed with the singular merits of the present case, and deprecating the many and complicated evils which must be the necessary consequence of establishing the power claimed by the courts of the United States, and its tendency to produce disaffection to our Government, the Legislature of New Hampshire rest assured that a speedy and just decision will be had, and that the rights of State Governments and the interests of their citizens will be secured against the exercise of a power of a court, or any body of men under Congress, of carrying into effect an unconstitutional decree of a court instituted by a former Congress, and which, in its effects, would unsettle property and tear up the laws of the several states. Kentucky and Virginia Resolutions. 1798, 1799. It has been deemed unnecessary to reprint these resolutions in this series, as this has already been done in various publications. Among the most accessible and convenient of such reprints may be mentioned the following: American History Leaflets, No. 15. (10c. A. Lowell & Co., New York, 1894). William MacDonald, Editor. Select Documents, illustrative of the History of the United States, 148-160. (The Macmillan Co., New York, 1898.) Howard W. Preston, Documents, illustrative of American History, 283-295. (Putnam's, New York, 1886.) The Federalist (Ford's ed., New York, 1898), Appx. 679-686. Elliot's Debates, 528-532, 540-545 (ed. 1861). For a facsimile of a copy of the Kentucky resolutions of 1798, as sent to the other States, cf. Writings of Jefferson (Ford's ed., New York, 1896), VII, inserted between pages 288 and 289. Jefferson's draft is to be found in his Writings (Ford's ed.), VII, 289-309; Works (ed. 1856), IX, 464-471. Also important portions in Am. History Leaflets, No. 15, 17-21. For history of the same, cf. E. D. Warfield, Kentucky Resolutions of 1798 (New York, 1887). For additional bibliography, cf. Channing and Hart, Guide to American History, § 165. Replies of the States. Copies of the Virginia and Kentucky resolutions were sent to the "Co-States." Replies were made to Virginia by the legislatures of New Hampshire, Vermont, Massachusetts, Rhode Island, Connecticut, New York (different replies from the Senate and the House), Delaware, Pennsylvania (the House) and Maryland. Replies to Kentucky were adopted by the following: New Hampshire (same as to Virginia), Vermont, Rhode Island (similar as to Virginia) , Connecticut, New York (the House, same as to Virginia), Pennsylvania, Delaware (similar as to Virginia), Maryland (the House). No State seems to have adopted resolutions at this time approving of the Kentucky and Virginia resolutions. It was in answer to these replies that the second set of Kentucky resolutions (Nov. 22, 1799) and Madison's Report for the Virginia Legislature (1800) were adopted. The minority in the Virginia Legislature issued an "Address containing a Vindication of the Constitutionality of the Alien and Sedition Laws." References: The replies to Virginia from the New England States, the Senate of New York, and from Delaware are in Elliot's Debates (ed. 1861), IV, 532-539; also in a pamphlet entitled The Virginia and Kentucky Resolutions, etc., published by Jonathan Elliot (Washington, May, MDCCCXXXII), 9-15; additional replies are in The American Historical Review, V, 244-252, supplementing an important article by F. M. Anderson, on Contemporary Opinion of the Virginia and Kentucky Resolutions, ibid., 45-63, 225-244. The most important of the replies from eight of the States, either because of the previous or subsequent attitude of these States toward the Federal Government, or because of the declaration in regard to the function of the Federal Judiciary, are here re-printed. 7. Delaware to Virginia.1 IN THE HOUSE OF REPRESENTATIVES, February 1, 1799. Resolved, By the Senate and House of Representatives of the state of Delaware, in General Assembly met, that they consider the resolutions from the state of Virginia, as a very unjustifiable interference with the General Government and constituted authorities of the United States, and of dangerous tendency, and therefore not fit subject for the further consideration of the General Assembly. ISAAC DAVIS, Speaker of the Senate. STEPHEN LEWIS, Speaker of the House of Representatives. Test, JOHN FISHER, C. S. JOHN CALDWELL, C. H. R.2 [Elliot's Va. and Ky. Res., etc., 9]. 1 Similar reply sent to Kentucky. 2 The formal indorsements are omitted in the other cases. 8. The State of Rhode Island and Providence Plantations to Virginia.1 IN GENERAL ASSEMBLY, February, A. D. 1799. Certain resolutions of the Legislature of Virginia, passed on the 21st of December last, being communicated to the Assembly, — 1. Resolved, That, in the opinion of this legislature, the second section of the third article of the Constitution of the United States, in these words, to wit, — " The judicial power shall extend to all cases arising under the laws of the United States," — vests in the Federal Courts, exclusively, and in the Supreme Court of the United States, ultimately, the authority of deciding on the constitutionality of any act or law of the Congress of the United States. 2. Resolved, That for any state legislature to assume that authority would be — 1st. Blending together legislative and judicial powers; 2d. Hazarding an interruption of the peace of the states by civil discord, in case of a diversity of opinions among the state legislatures; each state having, in that case, no resort, for vindicating its own opinions, but the strength of its own arm; 3d. Submitting most important questions of law to less competent tribunals; and, 4th. An infraction of the Constitution of the United States expressed in plain terms. 3. Resolved, That, although, for the above reasons, this legislature, in their public capacity, do not feel themselves authorized to consider and decide on the constitutionality of the Sedition and Alien laws, (so called,) yet they are called upon, by the exigency of this occasion, to declare that, in their private opinions, these laws are within the powers delegated to Congress, and pro-motive of the welfare of the United States. 4. Resolved, That the governor communicate these resolutions to the supreme executive of the state of Virginia, and at the same time express to him that this legislature cannot contemplate, without extreme concern and regret, the many evil and fatal consequences which may flow from the very unwarrantable resolutions aforesaid, of the legislature of Virginia, passed on the twenty-first day of December last. [Elliot's Va. and Ky. Res., 9, 10.] 1 Similar reply sent to Kentucky. Massachusetts to Virginia. IN SENATE, February 9, 1799. The legislature of Massachusetts, having taken into serious consideration the resolutions of the state of Virginia, passed the 21st day of December last, and communicated by his excellency the governor, relative to certain supposed infractions of the Constitution of the United States, by the government thereof; and being convinced that the Federal Constitution is calculated to promote the happiness, prosperity and safety, of the people of these United States, and to maintain that union of the several states, so essential to the welfare of the whole; and being bound by solemn oath to support and defend that Constitution, feel it unnecessary to make any professions of their attachment to it, or of their firm determination to support it against every aggression, foreign or domestic. But they deem it their duty solemnly to declare that, while they hold sacred the principle, that consent of the people is the only pure source of just and legitimate power, they cannot admit the right of the state legislatures to denounce the administration of that government to which the people themselves, by a solemn compact, have exclusively committed their national concerns. That, although a liberal and enlightened vigilance among the people is always to be cherished, yet an unreasonable jealousy of the men of their choice, and a recurrence to measures of extremity, upon groundless or trivial pretexts, have a strong tendency to destroy all rational liberty at home, and to deprive the United States of the most essential advantages in relations abroad. That this legislature are persuaded that the decision of all cases in law and equity arising under the Constitution of the United States, and the construction of all laws made in pursuance thereof, are exclusively vested by the people in the judicial courts of the United States. That the people, in the solemn compact, which is declared to be the supreme law of the land, have not constituted the state legislatures the judges of the acts or measures of the Federal Government, but have confided to them, the power of proposing such amendments of the Constitution, as shall appear to them necessary to the interests, or conformable to the wishes, of the people whom they represent. That, by this construction of the constitution, an amicable and dispassionate remedy is pointed out for any evil which experience may prove to exist, and the peace and prosperity of the United States may be preserved without interruption. But, should the respectable state of Virginia persist in the assumption of the right to declare the acts of the National Government unconstitutional, and should she oppose successfully her force and will to those of the nation, the Constitution would be reduced to a mere cipher, to the form and pageantry of authority, without the energy of power. Every act of the Federal Government which thwarted the views or checked the ambitious projects of a particular state, or of its leading and influential members, would be the object of opposition and of remonstrance; while the people, convulsed and confused by the conflict between two hostile jurisdictions, enjoying the protection of neither, would be wearied into a submission to some bold leader, who would establish himself on the ruins of both. The legislature of Massachusetts, although they do not themselves claim the right, nor admit the authority, of any of the state governments, to decide upon the constitutionality of the acts of the Federal Government, still, lest their silence should be construed into disapprobation, or at best into a doubt as to the constitutionality of the acts referred to by the state of Virginia; and as the General Assembly of Virginia has called for an expression of their sentiments, do explicitly declare, that they consider the acts of Congress, commonly called "the Alien and Sedition Acts," not only constitutional, but expedient and necessary. [Here follows a discussion of these acts.] * * * The legislature further declare, that in the foregoing sentiments they have expressed the general opinion of their constituents, who have not only acquiesced without complaint in those particular measures of the Federal Government, but have given their explicit approbation by re-electing those men who voted for the adoption of them. Nor is it apprehended, that the citizens of this state will be accused of supineness, or of an indifference to their constitutional rights; for while, on the one hand, they regard with due vigilance the conduct of the government, on the other, their freedom, safety, and happiness require that they should defend that government and its constitutional measures against the open or insidious attacks of any foe, whether foreign or domestic. And lastly, that the legislature of Massachusetts feel a strong conviction that the several United States are connected by a common interest, which ought to render their union indissoluble; and that this state will always coφperate with its confederate states in rendering that union productive of mutual security, freedom, and happiness. In the House of Representatives, February 13, 1799. Read and concurred. [Elliot's Va. and Ky. Res., 10-13. 10. Resolutions of the House of Representatives of Pennsylvania to Kentucky, February 9, 1799. Resolved, That in the opinion of this House the people of the United States have vested in their President and Congress, as well the right and power of determining on the intent and construction of the constitution, as on the ordinary subjects of legislation, and the defence of the Union; and have committed to the supreme judiciary of the nation the high authority of ultimately and conclusively deciding upon the constitutionality of all legislative acts. The constitution does not contemplate, as vested or residing in the Legislatures of the several states, any right or power of declaring that any act of the general government "is not law, but is altogether void, and of no effect;" and this House considers such declaration as a revolutionary measure, destructive of the purest principles of our State and national compacts. That it is with deep concern this House observes, in any section of our country, a disposition so hostile to her peace and dignity, as that which appears to have dictated the resolutions of the Legislature of Kentucky. Questions of so much delicacy and magnitude might have been agitated in a manner more conformable to the character of an enlightened people, flourishing under a government adopted by themselves, and administered by the men of their choice. That this House view, as particularly inauspicious to the general principles of liberty and good government, the formal declaration by a legislative body, "that confidence is everywhere the parent of despotism, and that free governments are founded in jealousy." The prevalence of such an opinion cuts asunder all the endearing relations in life, and renews, in the field of science and amity, the savage scenes of darker ages. Governments truly republican and free are eminently founded on opinion and confidence; their execution is committed to representatives, selected by voluntary preference, and exalted by a knowledge of their virtues and their talents. No portion of the people can assume the province of the whole, nor resist the expression of its combined will. This House therefore protests against the principles, calculated only to check the spirit of confidence, and overwhelm with dismay the lovers of peace, liberty and order. That this House consider the laws of the United States, which are the subjects of so much complaint, as just rules of civil conduct, and as component parts of a system of defence against the aggressions of a nation, aiming at the dominion of the world — conducting her attacks more by the arts of intrigue, than by her skill in arms — never striking, until she has deeply wounded or destroyed the confidence of the people in their government — and, in fact, subduing more by the infamous aids of seduction, than by the strength of her numerous legions. The sedition and alien acts this House conceive contain nothing terrifying, but to the flagitious and designing. Under the former, no criminality can be inferred or punishment inflicted, but for writing, printing, uttering, or publishing false, scandalous and malicious aspersions against the government, either House of Congress, or the President of the United States, with an intent to defame and bring them into contempt. Under the latter, the citizens of the United States have not anything more to fear, inasmuch as its operation will only remove foreigners, whose views and conduct are inimical to a government, instituted only for the protection and benefit of the citizens of the United States, and others, whose quiet and submission give them some claim to the blessing. Yet these laws are subjects of loud complaint. But this House forbears an examination into the cause, and only expresses its surprise that such an opposition to them exists! Our country's dearest interest demands everywhere unanimity and harmony in her councils, and this House is unable to discover any means more favourable to those important objects, than confidence in the wise and honest labours of those, in whose hands is resposed the sacred charge of preserving her peace and independence. The voice of the greater number the constitution declares shall pronounce the national will; but in the opinion of this House the provision is vain, unless it be followed by the unfeigned and practical aquiescence of the minor part. Loud and concerted appeals to the passions of the community are calculated to produce discussions more boisterous than wise, and effects more violent than useful. Our prayer therefore is, that our country may be saved from foreign war and domestic strife. That it is the opinion of this House, that it ought not to concur in the design of the resolutions of the Legislature of Kentucky. On motion of Mr Kelly, seconded by Mr. Strickler, Resolved, That the foregoing resolution be signed by the Speaker, and that the Governor be requested to transmit the same to the Governor of Kentucky. [Journal of the House of Representatives of the Commonwealth of Pennsylvania, ix, 198-200. (Philadelphia, 1799.)] 11. Resolutions of the House of Representatives of Pennsylvania to Virginia, March 11, 1799. Resolved, That as it is the opinion of this House that the principles contained in the resolutions of the Legislature of Virginia, relative to certain measures of the general government, are calculated to excite unwarrantable discontents, and to destroy the very existence of our government, they ought to be, and are hereby, rejected. [Journal of House of Representatives, ix, 289.] 12. Senate of New York to Virginia and Kentucky.1 1 For reply of the House of Representatives, cf. Amer, Hist. Review, V, 248, 249. IN SENATE, March 5, 1799. Whereas, the people of the United States have established for themselves a free and independent national government: And whereas it is essential to the existence of every government, that it have authority to defend and preserve its constitutional powers inviolate, inasmuch as every infringement thereof tends to its subversion: And whereas the judicial power extends expressly to all cases of law and equity arising under the Constitution and the laws of the United States, whereby the interference of the legislatures of the particular states in those cases is manifestly excluded: And, whereas, our peace, prosperity, and happiness, eminently depend upon the preservation of the Union, in order to which a reasonable confidence in the constituted authorities and chosen representatives of the people is indispensable: And, whereas, every measure calculated to weaken that confidence has a tendency to destroy the usefulness of our public functionaries, and to excite jealousies equally hostile to rational liberty, and the principles of a good republican government: And, whereas, the Senate, not perceiving that the rights of the particular states have been violated, nor any unconstitutional powers assumed by the general government, cannot forbear to express the anxiety and regret with which they observe the inflammatory and pernicious sentiments and doctrines which are contained in the resolutions of the legislatures of Virginia and Kentucky — sentiments and doctrines no less repugnant to the Constitution of the United States, and the principles of their union, than destructive to the Federal Government, and unjust to those whom the people have elected to administer it; wherefore, Resolved, That while the Senate feel themselves constrained to bear unequivocal testimony against such sentiments and doctrines, they deem it a duty no less indispensable, explicity to declare their incompetency, as a branch of the legislature of this state, to supervise the acts of the General Government. Resolved, That his excellency, the governor, be, and he is hereby requested to transmit a copy of the foregoing resolution to the executives of the states of Virginia and Kentucky, to the end that the same may be communicated to the legislatures thereof. [Elliot's Va. and Ky. Res., 13, 14.] 13. Connecticut to Virginia, May, 1799.1 At a General Assembly of the State of Connecticut, holden at Hartford, in the said State, on the second Thursday of May, Anno Domini 1799, his excellency, the Governor, having communicated to this Assembly sundry resolutions of the Legislature of Virginia, adopted in December, 1798, which relate to the measures of the general government, and the said resolutions having been considered, it is Resolved, That this Assembly views with deep regret, and explicitly disavows, the principles contained in the aforesaid resolutions, and particularly the opposition to the "Alien and Sedition Acts" — acts which the Constitution authorized, which the exigency of the country rendered necessary, which the constituted authorities have enacted, and which merit the entire approbation of this Assembly. They, therefore, decidedly refuse to concur with the legislature of Virginia in promoting any of the objects attempted in the aforesaid resolutions. And it is further resolved, That his excellency, the Governor, be requested to transmit a copy of the foregoing resolutions to the Governor of Virginia, that it may be communicated to the Legislature of that State. [Passed both branches unanimously; Elliot's Va. and Ky. Res., 14.] 1 For reply to Kentucky, cf. Amer. Hist. Review, V, 247, 248. 14. New Hampshire to Virginia and Kentucky, June 15, 1799. IN THE HOUSE OF REPRESENTATIVES, June 14, 1799. The committee to take into consideration the resolutions of the General Assembly of Virginia, dated December 21, 1798; also certain resolutions of the Legislature of Kentucky, of the 10th November, 1798, report as follows: The Legislature of New Hampshire, having taken into consideration certain resolutions of the General Assembly of Virginia, dated December 21, 1798; also certain resolutions of the Legislature of Kentucky, of the 10th of November, 1798: Resolved, That the Legislature of New Hampshire unequivocally express a firm resolution to maintain and defend the Constitution of the United States, and the Constitution of this State, against every aggression, either foreign or domestic, and that they will support the government of the United States in all measures warranted by the former. That the State Legislatures are not the proper tribunals to determine the constitutionality of the laws of the general government; that the duty of such decisions is properly and exclusively confided to the judicial department. That, if the Legislature of New Hampshire, for mere speculative purposes, were to express an opinion on the acts of the general government, commonly called "the Alien and Sedition Bills," that opinion would unreservedly be, that those acts are constitutional, and, in the present critical situation of our country, highly expedient. That the constitutionality and expediency of the acts aforesaid, have been very ably advocated and clearly demonstrated by many citizens of the United States, more especially by the minority of the General Assembly of Virginia. The Legislature of New Hampshire, therefore, deem it unnecessary, by any train of arguments, to attempt further illustration of the propositions, the truth of which, it is confidently believed, at this day, is very generally seen and acknowledged. Which report, being read and considered, was unanimously received and accepted, one hundred and thirty-seven members being present. In Senate, same day, read and concurred unanimously. [Elliot's Va. and Ky. Res., 14, 15.] 15. Vermont to Virginia, October 30, 1799.1 1 For protest of the minority, cf. Amer. Hist. Review, V, 249-252. IN THE HOUSE OF REPRESENTATIVES, October 30, A. D. 1799. The House proceeded to take under their consideration the resolutions of the General Assembly of Virginia, relative to certain measures of the general government, transmitted to the Legislature of this State, for their consideration: Whereupon, Resolved, That the General Assembly of the State of Vermont do highly disapprove of the resolutions of the General Assembly of Virginia, as being unconstitutional in their nature, and dangerous in their tendency. It belongs not to State Legislatures to decide on the constitutionality of laws made by the general government; this power being exclusively vested in the judiciary courts of the Union. That his excellency, the governor, be requested to transmit a copy of this resolution to the executive of Virginia, to be communicated to the General Assembly of that State: And that the same be sent to the Governor and Council for their concurrence. In Council, October 30, 1799. Read and concurred unanimously. [Elliot's Va. and Ky. Res., 15.] The General Court of Massachusetts on the Embargo. 1808, 1809. The embargo act, passed December 22, 1807 (U. S. Stat. at Large, II, 451-453), was a first acquiesced in by the majority of the people in New England, and the Democratic-Republican party being in control of the State government of Massachusetts, the General Court passed a resolution, February 8, 1808, declaring that "we consider the imposing of the embargo a wise and highly expedient measure, and from its impartial nature calculated to secure to us the blessings of peace." (Resolves of Mass., 1808, 89, 90.) As the distress resulting from the embargo increased, resistance began to show itself, and gradually political power returned to the party in opposition. The Federalists carried both branches of the legislature by a small majority in the spring of 1808, although the Republican Governor, James Sullivan, was re-elected. The change in the legislature is at once apparent in their "Answers" to the Governor's "Speech," June 9, 1808, in which the embargo is denounced and its constitutionality questioned. (Resolves of Mass., 1808, 164-173; see also Barry's Mass., III, 359, 366, note.) A similar spirit is shown in the November session (Ibid., 207), and on November 18, 1808, the legislature instructed the State's delegation in Congress to procure the repeal of the embargo laws. (Amer. State Papers, Commerce and Navigation, I, 728-729). But Congress, instead of repealing the obnoxious laws, passed a stringent enforcement act, which became a law January 9, 1809. (U. S. Stat. at Large, II, 506-511.) This called forth the pent-up anger and indignation of the Federalists. The protests and resolutions of the various towns in the State vied with each other in their vehemence, and there were ominous whisperings of secession. (Adams, United States, IV, 408-419.) Such was the situation when the General Court re-assembled, January 26, 1809. The Lieutenant-Governor, Levi Lincoln, an ardent supporter of Jefferson, succeeded to the duties of the executive office, owing to the death of the Governor. In his "Speech" to the legislature, he deprecated the agitation against the laws of the land, condemned the action of the town meetings as seditious and uncalled for, and suggested further restraints upon the licentiousness of the press as desirable. (Resolves of Mass., 1809, 221-229.) Both branches of the legislature "answered" with spirit, as the extracts given below show. They also adopted a Report and Resolutions on the petitions of the town-meetings, extracts from which follow; dispatched a Memorial and Remonstrance to Congress (Amer. State Papers, Commerce, etc., I, 776-778) issued an address to the people of the Commonwealth, suggesting as "indepensable amendments" to the Federal Constitution, one abolishing the three-fifths representation for slaves,1 and another "to secure commerce and navigation from a repetition of destructive and insidious theories," and declaring that "nothing less than a perfect union and intelligence among the Eastern States can preserve to them any share of influence in the national government" (Patriotic Proceedings, 126-130; Hildreth, VI, 151-154); denounced the acts of the Lieutenant-Governor in detaching State militia to aid in carrying out the Enforcement Act "as irregular, illegal and inconsistent with the principles of the constitution;" passed a bill "against unreasonable, arbitrary and unconstitutional searches," which was intended to prevent the execution of the Enforcement Act, but which was vetoed by the Governor; and finally, set apart a "Day of Humiliation and Prayer." The threatening attitude of Massachusetts and several of the other New England States led the federal administration to consent to the repeal of the Embargo, and the substitution of a non-intercourse act. (March 1,1709, U. S. Stat. at Large, II, 528-533.) The recent experience of the State led Governor Gore to suggest, and the Legislature to propose, June 20, 1809, an amendment to the Constitution, placing a limit on the duration of an embargo to "thirty days from the commencement of the session of Congress next succeeding that session in which said law shall have been enacted." (Resolves of Mass., 1809, 312, 313, 356, 357.) This recommendation appears to have received only the approval of Connecticut, but was disapproved of by the legislatures of at least eight States. (Ames, Proposed Amendments, 264, 329.) 1 Such an amendment had been proposed by the Legislature in 1804 as a protest against the annexation of Louisiana; for this, and the replies of the other States, see McMaster, III, 44-47; Ames, Proposed Amendments, 45, 46, 326. References: In addition to the above, the texts of the important measures are given in The Patriotick Proceedings of the Legislature of Massachusetts, [Boston, 1809]; several are found in The American Register, 1809, Part II, 183-209 [Phila., 1809]; The Memorial to Congress is also given in Amer. State Papers, Commerce, etc., I, 776-778; Annals of Congress, 10 Cong., 2 Sess., 444-450; for debate on same and refusal to print in House of Rep., Annals, 538, 539; for history, see Adams, United States, IV, esp. 398-453; Hildreth, VI, esp. 75-79, 108-117, 151-154; McMaster, III, esp. 321-331; Channing, The Jeffersonian System, chs. xvi, xvii; Barry, Massachusetts, III, 352-364; Adams, New Eng. Federalism, esp. 372-379; Lodge, Cabot, 366-407 in passim; Quincy, Life of Josiah Quincy, 120-130, 138-165, 171-186; Writings of Jefferson, [Ford's ed.], IX, 202, 227, 235-239, 244, 248-250; X, 352-354, 356; consult Channing and Hart's Guide, § 171; MacDonald's Documents, 176, 177. 16. Extract from the Answer of the Senate, January, 1809. MAY IT PLEASE YOUR HONOUR, ******* The people of New England perfectly understand the distinction between the Constitution and the Administration. They are as sincerely attached to the former as any section of the United States. They may be put under the ban of the empire, but they have no intention of abandoning the Union. And we have the pleasure explicitly to declare our full concurrence with your Honour, "that such suggestions are not less a libel upon the great body of the New England people, than on their patriotism." As the government of the Union is a confederation of equal and independent states with limited powers, we agree with your Honour "that this is not unbecoming any member of the Union with firmness and moderation to question the justness or policy of measures while they are pending and ripening for adoption." and we learn with concern from your Honour, "that there are stages when questions" — without even excepting questions involving unalienable rights — "can be no longer open to controversy and opposition" — "stages when an end must be put to debate and a decision thence resulting be respected by its prompt and faithful execution, or government loses its existence and the people are ruined." * * * We owe it to ourselves and to the people distinctly to deny this doctrine, at once novel and pernicious. ******* We beg leave to observe, that those rights, which the people have not chosen to part with, should be exercised by them with delicacy — only in times of great danger — not with "distraction and confusion" — not to oppose the laws, but to prevent acts being respected as laws, which are unwarranted by the commission given to their rulers. On such occasions, passive submission, would, on the part of the people, be a breach of their allegiance, and on our part treachery and perjury. For the people are bound by their allegiance, and we are additionally bound by our oaths to support the Constitution of the State — and we are responsible to the people, and to our God, for the faithful execution of the trust. But your Honor is pleased to observe, that "the union have their favorite projects — states, towns and individuals have theirs" and to inquire whether "thus jarring with augmented resentments we are to rush together in ruinous collisions." Can it be necessary to remind your Honor that the aggressor is responsible for all the consequences, which you have been pleased so pathetically to describe? That the people have not sent us here to surrender their rights but to maintain and defend them? — and, that we have no authority to dispense with the duties thus solemnly imposed: ******* We most heartily concur with your Honor, "that there is a point in national sensibility, as in the feelings of men, where patience and submission end." And when that crisis shall arrive your Honor may rest assured that the people of New England "will (as you have been pleased to say) rally round the national constitution." But, Sir they will not "cling" to an administration which has brought them to the brink of destruction — they will not "keep their hold in the extremity of its exit," nor "sink with it into the frightful abyss." No, Sir ! The people of Massachusetts will not willingly become the victims of fruitless experiment. [Resolves of Massachusetts, 1809, 231-235]. 17. Extracts from the Answer of the House. MAY IT PLEASE YOUR HONOUR, ******* We are unwilling to believe that any division of sentiment can exist among the New England States or their inhabitants as to the obvious infringement of rights secured to them by the Constitution of the United States; and still more so that any man can be weak or wicked enough to construe a disposition to support that Constitution and preserve the union by a temperate and firm opposition to acts which are repugnant to the first principles and purposes of both, into a wish to recede from the other states. If a secession has been conceived by the states or people referred to in your Honour's communication, it is unknown to the House of Representatives, who absolutely disclaim any participation therein, or having afforded the least colour for such a charge. If ever such suspicions existed they can have arisen only in the minds of those who must be sensible that they had adopted and were persisting in, measures which had driven the people to desperation, by infringing rights which the citizens of Massachusetts conceive to be unalienable, and which they fondly hoped had been inviolably secured to them by the federal compact. The Legislature and people of Massachusetts ever have been and now are firmly and sincerely attached to the union of the States, and there is no sacrifice they have not been, and are not now, willing to submit to, in order to preserve the same, according to its original purpose. Of this truth your Honour must be conceived. ******* That the regulation of our commercial intercourse and our national defence, is most wisely confided to the general government, is a truth so plain and palpable, that we should hold it unnecessary to be repeated here, were it not for the purpose of concurring with your Honour in the justice of the sentiment; but the liberty of discussing the measures of our general government with freedom and firmness, though with fairness and moderation, is a right the House of Representatives never will relinquish. We cannot agree with your Honour that in a free country there is any stage at which the constitutionality of an act may no longer be open to discussion and debate; at least it is only upon the high road to despotism that such stages can be found. At such a point the Government undertaking to extend its powers beyond the limits of the constitution, degenerates into tyranny. The people, if temperate and firm, will, we confidently rely, eventually triumph over such usurpations. Were it true, that the measures of government once passed into an act, the constitutionality of that act is stamped with the seal of infallibility, and is no longer a subject for the deliberation of remonstrance of the citizen, to what monstrous lengths might not an arbitrary and tyrannical administration carry its power. It has only to pass through rapid readings and mid-night sessions, without allowing time for reflection and debate to the final enacting of a bill and before the people are even informed of the intention of their rulers, their claims are riveted, and the right of complaint denied them. Were such doctrine sound, what species of oppression might not be inflicted on the prostrate liberties of our country. If such a doctrine were true, our constitution would be nothing but a name — nay worse, a fatal instrument to sanctify oppression, and legalize the tyranny which inflicts it. Nothing but madness or imbecility could put at hazard the existence of a "balanced government, capable of operating and providing for the public good," unless the administration of that Government, by its arbitrary impositions had endangered or destroyed the very objects for the protection of which it had been instituted. Should such a case ever occur, on the administration who should usurp powers and violate such sacred obligations, must rest the odium of having hazarded a government "so safe, so reasonable and so beyond everything else essential to the liberty and happiness of our fellow citizens." ******* It cannot be denied, that jealousy and distrust have arisen among the people of Massachusetts, and much it is to be regretted, that they have been so well founded. A system of policy ruinous to their interests, and uncongenial to their enterprising spirit — a system for which the administration has yet, in our opinion, assigned no adequate reason, has borne most heavily and unequally on the northern and commercial States. For relief from this oppression the people fondly looked to the meeting of Congress — but alas ! how fatally have their hopes been blasted: Their humble prayers have been answered by an act so arbitrary and oppressive, that it violates the first principles of civil liberty, and the fundamental provisions of the Constitution. At such a moment and under such a pressure, when everything which freemen hold dear, is at stake it cannot be expected and it ought not to be wished, that they should suffer in silence. The House of Representatives cannot admit that laws which operate unequally are unavoidable. The government, in their opinion, has no right to sacrifice the interests of one section of the Union to the prejudices, partialities, or convenience, of another. We perfectly agree with your Honour in the general principle that, in a free government, the majority must determine and decide upon all existing or projected measures. But it will be recollected, that the decision of that majority, to be binding, must be constitutional and just. Government is formed for the security of the citizen, and the protection of its rights. Whenever his liberty is infringed, his rights violated or unprotected, if not absolved from his allegiance, he may demand redress, and take all lawful measures to obtain it. ******* The early habits and constant practice of our fathers and ourselves have led us, on every great emergency, and on the pressure of political calamities, to resort to town meetings, wherein the general sense of the people might be collected. This practice, so wholesome and salutary, was one of the most influential means employed in bringing about the glorious revolution which established our independence. It was against these meetings, therefore, that the strong arm of royal power was elevated, in the year seventeen hundred and seventy-four, and they were prohibited under severe penalties. Had the British ministry of that day attended to the voice of the people so expressed, they would have avoided the evils which they had afterwards so much reason to deplore. The expression of the publick sentiment has become necessary to counteract the errours and misrepresentations of those who have falsely inculcated upon the administration of the General Government a belief, that the measures they were pursuing were satisfactory to the people. From the suppression of these meetings would liberty have more to apprehend than from any other cause whatever. From such a cause should we most dread "the overturning the splendid edifice erected by the wisdom and valour of our fathers." A privilege so wisely secured by our constitution, we cannot hesitate to declare the citizens of Massachusetts will never resign. ******* In the description which your Honour has drawn of the situation of our country previous to the adoption of the federal constitution, we cannot but observe the very strong resemblance which it bears to the picture of the present times. "Our government, humbled and inefficient, our Union a thread, our commerce unprotected, our revenue nothing, individuals embarrassed, grievances complained of, our rulers censured, town and county resolutions published, combinations formed, non-compliance with the laws announced, property sold for one-third its value, the insolvent imprisoned, and the courts of justice stopped;" that this description applies to the present state of parts, if not the whole, of our country, we believe will not be denied. Whence comes it that from a state of the most flourishing prosperity a few months should have produced a change so truly astonishing? It is not in the restless and unsteady habits of the people, till lately contented and happy, that we must look for the causes of these frightful calamities; it is in the pernicious and dreadful consequences of this shallow system of Embargo and Non Intercourse, that we shall find the fruitful sources of our country's ruin. We do most sincerely hope that neither Virginia or any other state may ever succeed in "dictating measures to Congress and by a convulsed state of things force their adoption." However, such an usurpation might from various causes endure for a time, the returning good sense of the people would eventually restore the equilibrium and effectually prevent those tempestuous scenes which your Honour has so eloquently described. "The importance and the interesting and perilous nature of the crisis," have excited the most alarming reflections in our minds, and we doubt not that every member of the Legislature will devote himself to the arduous yet necessary duty of "devising some reconciling expedient to quiet the agitated minds of our citizens," and to relieve them from the weight of these unconstitutional restrictions. ******* [Resolves of Massachusetts, 1809, 236-242.] 18. Resolutions of the Enforcement Act, February 15, 1809. The report and resolutions of the joint committee on petitions from the town meetings was made February 1, 1809. The same were adopted by the Senate, on the 11th inst., by a vote of 19 to 18. (MS. Senate Journal, 1808-09, vol. 29, pp. 196-209.) The House concurred, on the 15th inst., by a vote of 205 to 139. (MS. House Journal, May, 1808-March, 1809, pp. 278-282. The Report and Resolutions are also given in Patriotick Proceedings, pp. 41-53. ******* On viewing these provisions of the act under consideration, the committee do unequivocally declare their solemn conviction, that it is in many particulars, unjust, oppressive, and unconstitutional. They would by no means contend that this opinion, if confirmed and adopted by the legislature, would be decisive of the question. While the laws continue to have their free course, the judicial courts are competent to decide this question, and to them every citizen, when aggrieved, ought to apply for redress. It would be derogatory to the honour of the commonwealth to presume that it is unable to protect its subjects against all violations of their rights, by peaceable and legal remedies. While this state maintains its sovereignty and independence, all the citizens can find protection against outrage and injustice in the strong arm of the state government. Any forcible resistance, therefore, by individuals, to the execution of this act of Congress, is not only unnecessary, but would be highly inexpedient and improper; it would endanger the public peace and tranquility, and tend essentially to injure and put at hazard that cause, on which nearly the whole people are now so zealously united. The committee are deeply sensible of the accumulated distress which has so long oppressed the whole community, and borne with aggravation on some particular parts of it. They cannot too highly applaud the unexampled patience and forbearance which has been already exhibited under this pressure of undeserved calamities. And they would earnestly recommend the exercise of the same forbearance, until all those peaceable and orderly means which the constitution and laws of our country will permit, and all those political expedients, which our habits and usages can suggest, shall have been exhausted in vain. It is to be regreted that no immediate and efficacious remedy can now be proposed for these numerous and aggravated evils. The committee, however, consider it their duty to recommend, without loss of time, all such measures as have appeared to them to be now practicable, and calculated to remove or alleviate the publick distress; they therefore ask leave to Report in part, A bill to secure the people of this commonwealth against unreasonable, arbitrary and unconstitutional searches in their dwelling houses — and also the following Resolutions. Resolved, That the act of the Congress of the United States passed on the ninth day of January in the present year, for enforcing an act laying an embargo, and the several acts supplementary thereto, is, in the opinion of the legislature, in many respects, unjust, oppressive and unconstitutional, and not legally binding on the citizens of this state. But notwithstanding this opinion, in order finally to secure a certain and permanent relief, it is earnestly recommended to all parties aggrieved by the operation of this act, to abstain from forcible resistance, and to apply for their remedy in a peaceable manner to the laws of the commonwealth. Resolved, That a suitable remonstrance be prepared, and immediately forwarded to the Congress of the United States, from this legislature, expressing their opinions and feelings on the several subjects of complaint contained in the said petitions, and particularly urging the appeal of the said act of Congress, passed on the ninth of January last. Resolved, That the legislature of this commonwealth will zealously co-operate with any of the other states, in all legal and constitutional measures, for procuring such amendments to the constitution of the United States, as shall be judged necessary to obtain protection and defence for commerce, and to give the commercial states their fair and just consideration in the government of the Union; and for affording permanent security, as well as present relief, from the oppressive measures under which they now suffer. Resolved, That the honourable the president of the Senate, and the honourable the speaker of the House of Representatives, be requested to transmit a copy of this report, and the resolutions thereon, to the legislatures of such of our sister states, as manifest a disposition to concur with us in measures to rescue our common country from impending ruin, and to preserve inviolate the union of the states. 19. Delaware and the Embargo. January 30, 1809 Delaware, the only Federalist State outside of New England, next showed its opposition to the embargo policy of the administration, through the adoption of the following resolutions by the House of Representatives. When these resolutions were presented to the Senate, February 1, a systematic attempt was made to defeat them, by motions to postpone, or to substitute other resolutions strongly indorsing the policy of the administration. These, however, were defeated, but several amendments modifying the language of the resolutions were agreed to, as follows: 1) Striking out the words in the third resolution, "as a war measure worse than futile." 2) Striking out the fifth resolution. 3) Striking out the words "unwise and arbitrary laws" in the seventh resolution, and inserting in lieu therefor the words "laws however oppressive." 4) Causing the last part of the eighth resolution to read, "and that they will defend their country, when necessary, from the aggression of every foreign or domestic foe." Thus amended the resolutions were concurred in by the Senate by a vote of 5 yeas to 3 nays, but the House immediately refused to accept the Senate's amendments. The Senate thereupon reconsidered their amendments, adhering to all, except the one striking out the fifth resolution, from which it receded. Thus the two houses failed to agree. But in December the Legislature passed resolutions disapproving of the amendment to the Federal Constitution, proposed by Massachusetts, limiting the duration of an embargo. References: Text: — Journal of the House of Representatives, 1808-1809, January 27 and 30, 1809, pp. 62, 63; Journal of the Senate, 1808-1809, January 31, and February 1, 1809, pp. 64, 65, 74-81. Dover, 1809. Resolutions disapproving amendment, Annals, 11 Congress, Part I, 658. IN THE HOUSE OF REPRESENTATIVES, JANUARY 30, 1809. Whereas, the measures pursued by the government of the United States, have justly excited considerable interest in the United States, and silence on our part might be construed into an approbation of those measures — Therefore, 1. Resolved, By the Senate and House of Representatives of the State of Delaware, in General Assembly met, That we cannot approve the policy of those measures that have annihilated the commerce of the United States, and brought distress and ruin on our citizens, while at the same time they have done no injury to the enemies of our country; that we cannot approve the policy of an administration that does not act with impartiality and sincerity towards all foreign nations. 2. Resolved, That the people of the United States have a right freely to navigate the ocean, and to carry on a fair and honest commerce, and that we highly disapprove a policy that relinquishes these rights, or dares not defend them. 3. Resolved, That we consider the embargo, as a war measure, worse than futile, as a measure injurious to ourselves, destructive to the best interests of the country, and evidently intended to be partial in its operations against the belligerent nations; and that it becomes the United States, a great and gallant nation, to defend its rights in a manly, open and efficient manner. 4. Resolved, That we consider the act to enforce, and make more effectual, an act, entitled, "An act laying an embargo on all ships and vessels in the ports and harbors of the United States," and the several acts supplementary thereto, approved on the ninth of January, one thousand eight hundred and nine, by the President of the United States, as an invasion of the liberty of the people, and the constitutional sovereignty of the State governments. 5. Resolved, That it will be dangerous to the freedom of these States, to place at the disposal of the President of the United States a standing army of fifty thousand volunteers. 6. Resolved, That, in our opinion, the present embarrassed and unhappy situation of our country might have been avoided, if the administration had pursued the wise and prudent policy of the immortal WASHINGTON. 7. Resolved, nevertheless, that we have the fullest confidence, that the patriotism of the good people of the United States will induce them to submit to unwise and arbitrary laws, rather than resort to violence; and that they will use the remedy pointed out by the constitution for the evils under which they surfer, rather than jeopardize the union of the States, and the independence of their country, by an open opposition to the laws. 8. Resolved, also, that the legislature and people of the State of Delaware feel no foreign partiality, and that they will defend their country from the aggression of every foreign foe. Connecticut and the Enforcement Act. February, 1809. In Connecticut the Federalists had retained unbroken control of all departments of the State government, and the great majority of the people sympathized with Massachusetts in its opposition to the embargo. Naturally, therefore, upon receipt of the circular letter from the Secretary of War of January 18, 1809, requesting the governors to designate special officers of the militia, "of known respect for the laws," to aid in the enforcement of the embargo, Governor Trumbull replied, February 4, 1809, declining to take the "responsibility" of complying with the request, on the ground "that neither the constitution nor the statutes of this State," nor "the constitution or laws of the United States," authorized such an act, and also stating that "the great mass of the citizens of this State" regarded the enforcement act as "unconstitutional in many of its provisions, interfering with the State sovereignties, and subversive of the guaranteed rights, privileges and immunities of the citizen of the United States." The Governor then called a special session of the General Assembly, and addressed it in the famous speech given below. The legislature at once responded, passing, first, a resolution approving the action of the Governor in calling it together; next, a series of Resolves condemning the enforcement act and the attempts to carry it out, and finally issued an Address to the People in justification of the action taken. Resolves: The texts of the Resolutions and the Address of the General Assembly were officially published. A rare pamphlet (16 pages, 8°) without title-page or imprint, but containing the above-mentioned documents, as well as the Enforcement Act, is in the Library of the Connecticut Historical Society, Hartford;1 the Governor's Speech, the Correspondence of the Secretary of War and the Governor, and the Report and Resolutions proposed by the Committee of the House of Representatives (nearly the same as later passed) are in The American Register for 1809 (Phila., 1809), Part II, 176-181. The circular letter of the Secretary of War is also given in the Writings of Jefferson (Ford's ed.), IX, 237, 238. Consult the following general histories: Adams, IV, 417, 418, 455, 456; Hildreth, VI, 120, 121; McMaster, III, 331, 332; Scouler, II, 173, 193. See also references under Massachusetts and the Embargo. 1 I am indebted to Mr. Albert C. Bates, Librarian, for directing my attention to this pamphlet. 20. Speech of Governor Jonathan Trumbull at the Opening of the Special Session of the Legislature, February 23, 1809. Gentlemen of the Council, Mr. Speaker, and Gentlemen of the House of Representatives. Impressed with the importance of the communications which I have now to lay before you — prompted also by the concurrent petitions of a number of the citizens of this State, conveyed to me with their resolutions adopted in their several town meetings, convoked for the purpose; and having had under my own consideration, the very alarming crisis of our national affairs, arising from a variety of measures adopted and contemplated by our national legislature, more especially from the permanency of the embargo, with the means resorted to for its more rigorous enforcement, and particularly the late law of Congress, passed on the 9th day of January last, containing many very extraordinary, not to say unconstitutional provisions for its execution: I have viewed the prospect so momentous and threatening, that I have not hesitated to convene the Legislature of the State, at this unusual time, in order that they may have an opportunity to consider and deliberate on the extraordinary situation into which our country seems about to be plunged, if not speedily prevented: and to devise such constitutional measures as in their wisdom may be judged proper to avert the threatening evil. It will be useful for the legislature to take a view of the various measures of the national legislature, during their present and preceding sessions, not only those which have immediate relation to the embargo, but other acts which have been and are under their consideration, affecting the rights, interests, welfare, and even the peace of the Union. Indeed, it would be useful for the general good, if the State Legislatures were often to cast a watchful eye towards the general government, with a view, candidly to consider, and judiciously discern, whether the powers delegated to the United States are not exceeded, or are so exercised as not to interfere with or counteract those which are reserved by the people for their own management. When under the direction of a wise and prudent discernment, a temperate caution — not an over jealous disposition, such an examination will always prove a wholesome measure. On the present occasion, it will be unnecessary for me to enter into any particular statement of our private sufferings, or the threatening aspect of our public situation, in relation to the unprecedented acts of our General Government which are accumulating upon us. The individual feelings and experience of the members of this Legislature, now convened from all parts of the State, will speak the private distresses which have been produced by these acts: and your general information will give you, gentlemen, a correct view of the dangers which impend our public interests, liberty, rights and property, arising from the same source. Despairing of substantial relief from any other quarter, the people are now looking with anxious solicitude and hope, to the wisdom and direction of the Legislature of their own choice; and seem confident that some mode may be devised to remove the pressure under which they are at present suffering. To your collected wisdom and prudence they submit the task. And may it not be hoped, that, with our united efforts under a temperate, discreet and firm consideration of our situation and circumstances, we may be able by the influence of divine aid, to fulfil the just and reasonable expectations of our fellow citizens? Whenever our national legislature is led to overleap the prescribed bounds of their constitutional powers, on the State Legislatures, in great emergencies, devolves the arduous task — it is their right — it becomes their duty, to interpose their protecting shield between the right and liberty of the people, and the assumed power of the General Government. ******** [American Register, 1809, Pt. II, 176, 177.] 21. Resolutions of the General Assembly. At a special session of the General Assembly of the State of Connecticut, held at Hartford, on the twenty-third day of February, A. D. 1809. This Assembly have attended with anxious concern, to the several acts of Congress interdicting foreign commerce, and more especially to an act, approved on the 9th day of January last, by the President of the United States, under the title of "An Act, to enforce and make more effectual an act laying an embargo on all ships and vessels in the ports and harbors of the United States." After solemn deliberation and advisement thereon, the General Assembly are decided in the opinion, and do Resolve, that the acts aforesaid are a permanent system of measures, abandoning undeniable rights; interdicting the exercise of constitutional privileges, and unprecedented in the annals of nations; and do contain provisions for exercising arbitrary powers, grievous to the good people of this State, dangerous to their common liberties, incompatible with the constitution of the United States, and encroaching upon the immunities of this State. Resolved, That to preserve the Union, and support the constitution of the United States, it becomes the duty of the Legislatures of the States, in such a crisis of affairs, vigilantly to watch over, and vigorously to maintain, the powers not delegated to the United States, but reserved to the States respectively, or to the people; and that a due regard to this duty, will not permit this Assembly to assist, or concur in giving effect to the aforesaid unconstitutional act, passed, to enforce the Embargo. Resolved, That this Assembly highly approve of the conduct of his Excellency the Governor, in declining to designate persons to carry into effect, by the aid of military power, the act of the United States, enforcing the Embargo, and that his letter addressed to the Secretary for the Department of War, containing his refusal to make such designation, be recorded in the public records of this State, as an example to persons, who may hold places of distinguished trust, in this free and independent republic. Resolved, That the persons holding executive offices under this State, are restrained by the duties which they owe this State, from affording any official aid or co-operation in the execution of the act aforesaid; and that his Excellency the Governor be requested, as commander in chief of the military force of this State, to cause these resolutions to be published in general orders: And that the secretary of this State be and he is hereby directed to transmit copies of the same to the several sheriffs and town clerks. Resolved, That his excellency the Governor be requested to communicate the foregoing resolutions to the President of the United States, with an assurance that this Assembly regret that they are thus obliged under a sense of paramount public duty to assert the unquestionable right of this State to abstain from any agency in the execution of measures, which are unconstitutional and despotic. Resolved, That this Assembly accord in sentiment, with the Senate and House of Representatives, of the commonwealth of Massachusetts, that it is expedient to affect certain alterations in the constitution of the United States; and will zealously cooperate with that commonwealth and any other of the States, in all legal and constitutional measures for procuring such amendments to the constitution of the United States as shall be judged necessary to obtain more effectual protection and defence for commerce; and to give to the commercial States their fair and just consideration in the Union, and for affording permanent security, as well as present relief, from the oppressive measures, under which they now suffer. Resolved, That his Excellency the Governor be requested to transmit copies of the foregoing resolutions to the President of the Senate, and Speaker of the House of Representatives, in the commonwealth of Massachusetts, and to the Legislatures of such of our sister States, as manifest a disposition to concur, in restoring to commerce its former activity, and preventing the repetition of measures which have a tendency, not only to destroy it, but to dissolve the Union, which ought to be inviolate. General Assembly, special session, February, 1809. JOHN COTTON SMITH, Speaker of the House of Representatives. JONATHAN TRUMBULL, Governor. Attest, SAMUEL WYLLYS, Secretary. [Pamphlet containing Resolves, etc., 7, 8.] 22. Report and Resolutions of Rhode Island on the Embargo. March 4, 1809. The following resolutions were adopted by both branches of the General Assembly on March 4, 1809; in the Senate by a vote of 7 to 4, in the House, 35 to 28. Extracts from the report of the Committee which submitted the resolutions are also given. Rhode Island appears to have been the last State to take action condemning the embargo. In New Hampshire resolutions against the embargo were rejected by the House, December 23, 1808, by a vote of 25 to 101. (National Intelligencer, Jan. 6, 1809.) Many of the other States passed resolutions approving the policy of the administration, those of North Carolina, of December 5, 1808 (Amer. State Papers, Misc., I, 944, 945), and of Virginia, of February 7, 1809 (Acts of the General Assembly of Virginia, 1808-09, 99-104), may be taken as typical. The report accompanying the resolutions of Virginia is of considerable interest, as containing a reason for the failure of the embargo. It says: "If it has failed, in any degree, as a measure of constraint, your committee believe that it is not because our enemies have not felt its force, but because they believe we have felt it too sensibly; because the unfortunate opposition which the measure has met in some parts of the union, has inspired them with a fallacious hope, that we, ourselves, either could not or would not bear its privations." The text of the resolutions of Rhode Island is from Acts and Resolves of _ Rhode Island General Assembly held at E. Greenwich on the fourth Monday of February, 1809, 32, 33. 1 1 I am indebted to Mr. Clarence S. Brigham, Librarian of the Rhode Island historical Society, for verifying the text of these resolutions. The State of Rhode Island and Providence Plantations. The Committee to whom were referred the memorials, petitions and resolutions of the towns [here follow the names of twelve towns], beg leave to report * * * that it would be a paradox in the history of the human mind, if a people, who from the foundation of their government have ever manifested the most warm and zealous attachment to civil liberty, should regard with indifference its extinguishment. It would betray an ignorance of their true interests, if they did not esteem it the "more perfect union of these States," as it is declared and provided for in the federal constitution as the parent and perpetuator of their political prosperity. That it would be a reflection on their discernment and sagacity, if they did not foresee that the dissolution of the Union may be more surely, and as speedily affected by the systematick oppression of the government, as by the inconsiderate disobedience of the people. That the people of this State, as one of the parties to the Federal compact, have a right to express their sense of any violation of its provisions and that it is the duty of this General Assembly as the organ of their sentiments and the depository of their authority, to interpose for the purpose of protecting them from the ruinous inflictions of usurped and unconstitutional power. ********* Resolved, That the several acts of the Congress of the United States laying an embargo, by the permanent interdiction of foreign commerce, and by the numerous and vexatious restrictions upon the coasting trade, do, in the opinion of this General Assembly, infringe upon the undeniable rights and privileges of the good people of this State. Resolved, That the act of Congress of the 9th of January last, enforcing the several embargo acts, is in many of its provisions unjust, oppressive, tyrannical and unconstitutional. Resolved, That to preserve the Union and to support the constitution of the United States, it becomes the duty of this General Assembly, while it is cautious not to infringe upon the constitution and delegated powers and rights of the General Government, to be vigilant in guarding from usurpation and violation, those powers and rights which the good people of this State have expressly reserved to themselves, and have ever refused to delegate. Resolved, That a committee be appointed and instructed to prepare a suitable remonstrance, addressed to the Congress of the United States, expressive of the feelings and opinions of this General Assembly on the several subjects of complaint in the aforesaid petitions, memorials and resolves; and praying the repeal of the aforesaid obnoxious and oppressive laws, and that Congress will in their wisdom devise efficacious measures for the preservation of the peace of the United States; and that said committee report the same at the next session of the General Assembly. Resolved, That his Excellency the Governor be requested to transmit copies of the foregoing report and resolutions to the President of the Senate and the Speaker of the House of Representatives of the State of Massachusetts, and to the Governor of the State of Connecticut, and the Legislatures of such other States as have manifested or may manifest a disposition to concur with us in the adoption of constitutional measures for the preservation of the Union of the States, and for the removal of the political evils under which we are now suffering. STATE DOCUMENTS ON FEDERAL RELATIONS: THE STATES AND THE UNITED STATES. Pennsylvania and the Federal Judiciary. The Olmstead Case. 1809. The following resolutions present the final phase in a conflict, of more than thirty years duration, between the United States and the State of Pennsylvania over their respective jurisdictions. This conflict grew out of the appeal of Gideon Olmstead from the judgment of the Pennsylvania Court of Admiralty, in regard to the distribution of the prize money in the case of the sloop "Active," in 1778, to the Committee of Appeals of Congress.1 This Committee reversed the decision, but their jurisdiction was denied by the Legislature and the other State authorities, and the enforcement of the decree was successfully withstood by the State until 1808. In that year the dispute was revived by the application of the Attorney General to the Supreme Court, in behalf of Olmstead, for a writ of mandamus commanding Judge Peters of the District Court to enforce the judgment previously given (1779). The application was granted by Chief Justice Marshall, February 23, 1809, in one of his most characteristic and important opinions, in which he solemnly declared, "If the legislatures of the several States may, at will, annul the judgments of the Courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery; and the nation is deprived of the means of enforcing its laws by the instrumentality of its own tribunals." (U.S. v. Peters, 5 Cranch, 136.) Judge Peters issued the writ, but the attempt of the United States Marshal to serve it was resisted by a brigade of the State militia, under the command of General Bright, which had been called out by Governor Snyder, February 27, 1809. The Marshal thereupon summoned a posse-comitatus of two thousand men, but in order to avoid bloodshed, fixed the day for the service of the warrant to three weeks ahead. In the mean time the Governor's appeal to President Madison to intervene was firmly declined. The Legislature, however, in justification of the action of the State, adopted an elaborate state rights report and the subjoined resolutions. The doctrines underlying these resolutions had been maintained by the Courts of the State in the opinions of Chief Justice McKean in 1792 in the case of Ross et al. v. Rittenhouse (2 Dallas, 160), a case growing out of the Olmstead case, and in 1798 in the case of Res Publica v. Cobbett (3 Dallas, 473, 474). When these resolutions were presented to Congress, June 9, 1809, the House of Representatives refused to print them by vote of 63 to 50. (Annals, 258-260.) For the action of the States on this proposal, see No. 24. The Legislature, however, at the same time, opened a way for retreat by placing at the disposal of the Governor a sum of money, equal to that in dispute, to be used as "might appear advisable and proper." On the 15th of April, the Marshal, eluding the vigilance of the militia, succeeded in executing his process, and two days later Chief Justice Tilghman, of the State Supreme Court, after presenting a forcible exposition of the rights of the State and of the United States (Brightly's Reports, Penna., 14, 15; Amer. Reg. 1809, 171), issued the writ of habeas corpus, and the sum in dispute was finally turned over by the State authorities. Subsequently General Bright and others were tried for obstructing the process of the United States District Court in the Circuit Court, and were finally convicted and sentenced to fine and imprisonment, but were pardoned by the President on the ground that "they had acted under a mistaken sense of duty." A Committee of the State Senate, March 3, 1810, reported in favor of a bill donating a tract of two hundred acres of land to each of the condemned, "in consideration of their services and sufferings," but the measure failed. (Journal of the Senate of Penna. (1809-10), 382). 1 For action of New Hampshire in a similar case, cf. ante, pp. 11-15. References: Sources. For message of Gov. Snyder, Report of the Committee and Resolutions, cf. Journal of the Senate of Penna., 1808-09, 268, 269, 295-307; Journal of the House, 615-629, 692-697, 786-798; Resolutions and correspondence given in Annals of Cong., 11 Cong., .2 Sess., Pt. II, 2253-2269; Resolutions in Pamphlet Laws of Penna., 1808-09, 200; Amer. State Papers, Misc. II, 2-7; Annual Register, 1809, 150-175, 168-174; Niles' Register, XLIII, Sup. 24. Two contemporary pamphlets: The whole Proceedings in the Case of Olmstead v. Rittenhouse, by Richard Peters, Jr. (Phila., 1809); The Trial of General Bright in the Circuit Court of the United States for the District of Pennsylvania. (Phila., 1809.) General accounts: H.L.Carson in Pinna. Mag. XVI, 385-393; also in The Green Bag,VII, 17; Hildreth, VI, 155-164; McMaster, V, 403-406. Early history of the case set forth in U. S. v. Peters, 5 Cranch, 115. Davis in 131 U. S. Reports, Appx. XXIX-XXXIV; Jameson in Essays in Const. History, 17-23. 23. Resolution of the Legislature of Pennsylvania, April 3, 1809. ****** And whereas the causes and reasons which have produced this conflict between the general and state government should be made known, not only that the state may be justified to her sister states, who are equally interested in the preservation of the state rights; but to evince to the Government of the United States that the Legislature, in resisting encroachments on their rights, are not acting in a spirit of hostility to the legitimate powers of the United States' courts; but are actuated by a disposition to compromise, and to guard against future collisions of power, by an amendment to the constitution: and that, whilst they are contending for the rights of the State, that it will be attributed to a desire of preserving the federal government itself, the best features of which must depend upon keeping up a just balance between the general and state governments, as guaranteed by the constitution. Be it therefore known, that the present unhappy dispute has arisen out of the following circumstances: [Here follows a detailed statement of their view of the case.] Although the Legislature reverence the constitution of the United States and its lawful authorities, yet there is a respect due to the solemn and public acts, and to the honor and dignity of our own state, and the unvarying assertion of her right, for a period of thirty years, which right ought not to be relinquished, Therefore, Resolved by the Senate and House of Representatives of the Commonwealth of Pennsylvania, &c. That, as a member of the Federal Union, the Legislature of Pennsylvania acknowledges the supremacy, and will cheerfully submit to the authority of the general government, as far as that authority is delegated by the constitution of the United States. But, whilst they yield to this authority, when exercised within Constitutional limits, they trust they will not be considered as acting hostile to the General Government, when, as guardians of the State rights, they can not permit an infringement of those rights, by an unconstitutional exercise of power in the United States' courts. Resolved, That in a government like that of the United States, where there are powers granted to the general government, and rights reserved to the states, it is impossible, from the imperfections of language, so to define the limits of each, that difficulties should not some times arise from a collision of powers: and it is to be lamented, that no provision is made in the constitution for determining disputes between the general and state governments by an impartial tribunal, when such cases occur. Resolved, That from the construction the United States' courts give to their powers, the harmony of the states, if they resist encroachments on their rights, will frequently be interrupted; and if to prevent this evil, they should, on all occasions yield to stretches of power, the reserved rights of the States will depend on the arbitrary power of the courts. Resolved, That, should the independence of the states, as secured by the constitution, be destroyed, the liberties of the people in so extensive a country cannot long survive. To suffer the United States' courts to decide on STATE RIGHTS will, from a bias in favor of power, necessarily destroy the FEDERAL PART of our Government: And whenever the government of the United States becomes consolidated, we may learn from the history of nations what will be the event. To prevent the balance between the general and state governments from being destroyed, and the harmony of the States from being interrupted, Resolved, That our Senators in Congress be instructed, and our Representatives requested, to use their influence to procure an amendment to the Constitution of the United States, that an impartial tribunal may be established to determine disputes between the general and state governments; and, that they be further instructed to use their endeavors, that in the meanwhile, such arrangements may be made, between the government of the Union and of this State, as will put an end to existing difficulties. Resolved, That the Governor be requested to transmit a copy of these resolutions, to the Executive of the United States, to be laid before Congress, at their next session. And that he be authorized and directed to correspond with the President on the subject in controversy, and to agree to such arrangements as may b