In , he composed an additional resolution which again was introduced into the Kentucky legislature by Breckenridge and adopted unanimously in December. Although the right of states to nullify federal legislation was restated, the resolution carefully did not advocate Nullification at that time: That this commonwealth does upon the most deliberate reconsideration declare, that the said alien and sedition laws, are in their opinion, palpable violations of the said constitution; and however cheerfully it may be disposed to surrender its opinion to a majority of its sister states in matters of ordinary or doubtful policy; yet, in momentous regulations like the present, which so vitally wound the best rights of the citizen, it would consider a silent acquiesecence as highly criminal: That although this commonwealth as a party to the federal compact; will bow to the laws of the Union, yet it does at the same time declare, that it will not now, nor ever hereafter, cease to oppose in a constitutional manner, every attempt from what quarter soever offered, to violate that compact The causes that led to the Kentucky and Virginia resolutions died away, and the Alien and Sedition Acts were repealed, but the arguments that Jefferson put forward at the time would be recalled later as the nation debated what course to follow on the issue of slavery.
The judicial power of the United States, then, being extended to the punishment of libels against the government, as a common law offence, arising under the constitution which create the government, the general clause gives to the legislature of the union the right to make such laws as shall give that power effect. That such was the contemporaneous construction of the constitution, is obvious from one of the amendments which have been made to it.
The 3d amendment which declares, that Congress shall make no law abridging the liberty of the press, is a general construction made by all America on the original instrument admitting its application to the subject. It would have been certainly unnecessary thus to have modified the legislative powers of Congress concerning the press, if the power itself does not exist.
In a solemn instrument, as is a constitution, words are well weighed and considered before they are adopted. A remarkable diversity of expression is not used, unless it be designed to manifest a difference of intention.
This difference of expression with respect to religion and the press, manifests a difference of intention with respect to the power of the national legislature over those subjects, both in the person who drew, and in those who adopted this amendment.
It becomes then necessary in order to determine whether the act in question be unconstitutional or not, to inquire whether it does in fact ABRIDGE the freedom of the press. A punishment of the licentiousness is not considered as a restriction of the freedom of the press,. The act complained of does not punish any writing not before punishable, nor does it inflict a more severe penalty than that to which the same writing was before liable.
If by freedom of the press is meant a perfect exemption from all punishment for whatever may be published, that freedom never has, and most probably never will exist. It is known to all, that the person who writes or publishes a libel, may be both sued and indicted, and must bear the penalty which the judgment of his country inflicts upon him.
It is also known to all that the person who shall libel the government of the state, is for that offence, punishable in the like manner. Yet this liability to punishment for slanderous and malicious publications has never been considered as detracting from the liberty of the press.
In fact the liberty of the press is a term which has a definite and appropriate signification, completely understood. It signifies a liberty to publish, free from previous restraint, any thing and every thing at the discretion of the printer only, but not the liberty of spreading with impunity false and scandalous slanders which may destroy the peace and mangle the reputation of an individual or of a community.
If this definition of the term be correct, and it is presumed that its correctness is not to be questioned, then a law punishing the authors and publishers of false, malicious and scandalous libels can be no attack on the liberty of the press.
It does not punish any writing not before punishable, nor does it inflict a heavier penalty than the same writing was before liable to.
No man will deny, that at common law, the author and publisher of a false, scandalous and malicious libel against the government or an individual, were subject to fine and imprisonment, at the discretion of the judge. Nor will it be denied, that previous to our revolution, the common law was the law of the land throughout the now United States. We believe it to be a principle incontestibly true, that a change of government does not dissolve obligations previously created, does not annihilate existing laws, and dissolve the bonds of society; but that a People passing from one form of government to another, retain in full force all their municipal institutions not necessarily changed by the change of government.
If this be true, then the common law continued to be the law of the land after the revolution, and was of complete obligation even before the act of our Assembly for its adoption.
Whether similar acts have been passed by the legislature of other states or not, it is certain that in every state the common law is admitted to be in full force, except as it may have been altered by the statute law. The only question is, whether the doctrines of the common law are applicable to libels against the government of the United States, as well as to libels against the governments of particular states.
For such a distinction there seems to be no sufficient reason. It is not to a magistrate of this or that description that the rules of the common law apply. That he is a magistrate, that he is cloathed with the authority of the laws, that he is invested with power by the people, is a sufficient title to the protection of the common law.
The government of the United States is for certain purposes as entirely the government of each state, chosen by the people thereof, and cloathed with their authority, as the government of each particular state is the government of every subdivision of that state; and no satisfactory reason has been heretofore assigned why a general rule common to all, and punishing generally the malicious calumniators of magistrates, should not be as applicable to magistrates chosen for the whole, as to those chosen for its different parts.
If then it were even true that the punishment of the printer of malicious falsehoods affected the liberty of the press, yet the act does not abridge that liberty, since it does not substitute a harsher or severer rule of punishment than that which before existed.
On points so extremely interesting, a difference of opinion will be entertained. On such occasions all parties must be expected to maintain their real opinions, but to maintain them with moderation and with decency. The will of the majority must prevail, or the republican principle is abandoned and the nation is destroyed.
If upon every constitutional question which presents itself, or on every question we choose to term constitutional, the construction of the majority shall be forcibly opposed, and hostility to the government excited throughout the nation, there is an end of our domestic peace, and we may ever bid adieu to our representative government. The legislature of Virginia has itself passed more than one unconstitutional law, but they have not been passed with an intention to violate the constitution.
On being decided to be unconstitutional by the legitimate authority, they have been permitted to fall. Had the judges deemed them constitutional, they should have been maintained. The same check, nor is it a less efficient one, exists in the government of the union. The judges of the United States are as independent as the judges of the state of Virginia, nor is there any reason to believe them less wise and less virtuous.
It is their province, and their duty to construe the constitution and the laws, and it cannot be doubted, but that they will perform this duty faithfully and truly. They will perform it unwarmed by political debate, uninfluenced by party zeal.
Let us in the mean time seek a repeal of any acts we may disapprove, by means authorized by our happy constitution, but let us not endeavor to disseminate among our fellow citizens the most deadly hate against the government of their own creation, against the government, on the preservation of which we firmly believe the peace and liberty of America to depend, because in some respects its judgment has differed from our own.
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 a fit subject for the further consideration of the General Assembly.
Resolved , That the above resolutions be signed by the Speaker of the Senate, and by the Speaker of the House of Representatives; and that the Governor of this state be requested to forward the same to the Governor of the state of Virginia.
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.
That the people in that 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 cypher, 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.
That the United States, at the time of passing the act concerning aliens , were threatened with actual invasion, had been driven by the unjust and ambitious conduct of the French government into warlike preparations, expensive and burdensome, and had then, within the bosom of the country, thousands of aliens, who, we doubt not, were ready to co-operate in any external attack.
It cannot be seriously believed, that the United States should have waited till the poniard had in fact been plunged. The removal of aliens is the usual preliminary of hostility, and is justified by the invariable usages of nations. Actual hostility had unhappily long been experienced, and a formal declaration of it the government had reason daily to expect. The law, therefore, was just and salutary, and no officer could, with so much propriety be entrusted with the execution of it, as the one in whom the Constitution has reposed the executive power of the United States.
The sedition-act, so called, is, in the opinion of this Legislature, equally defensible. The act complained of is no abridgment of the freedom of either. The genuine liberty of speech and the press, is the liberty to utter and publish the truth; but the constitutional right of the citizen to utter and publish the truth, is not to be confounded with the licentiousness in speaking and writing, that is only employed in propagating falsehood and slander.
This freedom of the press has been explicitly secured by most, if not all the state constitutions; and of this provision there has been generally but one construction among enlightened men; that it is a security for the rational use and not the abuse of the press; of which the courts of law, the juries and people will judge: this right is not infringed, but confirmed and established by the late act of Congress. By the Constitution, the legislative, executive, and judicial departments of government are ordained and established; and general enumerated powers vested in them respectively, including those which are prohibited to the several states.
Certain powers are granted in general terms by the people to their General Government, for the purposes of their safety and protection.
That government is not only empowered, but it is made their duty, to repel invasions and suppress insurrections; to guarantee to the several states a republican form of government; to protect each state against invasion, and, when applied to, against domestic violence; to hear and decide all cases in law and equity, arising under the Constitution, and under any treaty or law made in pursuance thereof; and all cases of admiralty and maritime jurisdiction, and relating to the law of nations.
This Constitution has established a supreme court of the United States, but has made no provision for its protection, even against such improper conduct in its presence, as might disturb its proceedings, unless expressed in the section before recited.
But as no statute has been passed on this subject, this protection is, and has been for nine years past, uniformly found in the application of the principles and usages of the common law.
The same protection may unquestionably be afforded by a statute passed in virtue of the before-mentioned section, as necessary and proper, for carrying into execution the powers vested in that department. A construction of the different parts of the Constitution, perfectly just and fair, will, on analogous principles, extend protection and security against the offences in question, to the other departments of government, in discharge of their respective trusts.
And equally impotent would be every other public officer, if thus left to the mercy of the seditious. It is holden to be a truth most clear, that the important trusts before enumerated, cannot be discharged by the government to which they are committed, without the power to restrain or punish seditious practices and unlawful combinations against itself, and to protect the officers thereof from abusive misrepresentations.
Seditious practices and unlawful combinations against the federal government, or any officer thereof, in the performance of his duty, as well as licentiousness of speech and of the press, were punishable on the principles of common law in the courts of the United States, before the act in question was passed.
This act, then, is an amelioration of that law in favour of the party accused, as it mitigates the punishment which that authorizes, and admits of any investigation of public men and measures which is regulated by truth.
It is not intended to protect men in office, only as they are agents of the people. Its object is to afford legal security to public offices and trusts created for the safety and happiness of the people, and therefore the security derived from it is for the benefit of the people, and is their right.
This construction of the Constitution, and of the existing law of the land, as well as the act complained of, the legislature of Massachusetts most deliberately and firmly believe, results from a just and full view of the several parts of that Constitution; and they consider that act to be wise and necessary, as an audacious and unprincipled spirit of falsehood and abuse had been too long unremittingly exerted for the purpose of perverting public opinion, and threatened to undermine and destroy the whole fabric of the government.
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 co-operate with its confederate states, in rendering that union productive of mutual security, freedom and happiness.
Sent down for concurrence. Certain resolutions of the legislature of Virginia, passed on the twenty-first day of December last, being communicated to this Assembly,. 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.
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 opinion, but to the strength of its own arm.
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 promotive of the welfare of the United States.
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.
A true copy,. 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 on 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, explicitly 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.
At a general assembly of the state of Connecticut, holden at Hartford, in the said state, on the second Thursday of May, Anno Domini, , his excellency the Governor having communicated to this Assembly sundry resolutions of the legislature of Virginia, adopted in December , which relate to the measures of the general government, and the said resolutions having been considered, it is. 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 resolution to the Governor of Virginia, that it may be communicated to the legislature of that state.
The committee to take into consideration the resolutions of the General Assembly of Virginia, dated December 21st, ; also certain resolutions of the Legislature of Kentucky, of the 10th November, , report as follows:. The Legislature of New Hampshire having taken into consideration certain resolutions of the General Assembly of Virginia, dated December 21, ; also certain resolutions of the Legislature of Kentucky, of the 10th of November, 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 decision is properly and exclusively confided to the judicial department.
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.
Sent up for concurrence. 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.
It is uncertain who wrote this restatement of the Kentucky Resolutions. THE representatives of the good people of this commonwealth in general assembly convened, having maturely considered the answers of sundry states in the Union, to their resolutions passed at the last session, respecting certain unconstitutional laws of Congress, commonly called the alien and sedition laws, would be faithless indeed to themselves, and to those they represent, were they silently to acquiesce in principles and doctrines attempted to be maintained in all those answers, that of Virginia only excepted.
To again enter the field of argument, and attempt more fully or forcibly to expose the unconstitutionality of those obnoxious laws, would, it is apprehended be as unnecessary as unavailing. We cannot however but lament, that in the discussion of those interesting subjects, by sundry of the legislatures of our sister states, unfounded suggestions, and uncandid insinuations, derogatory of the true character and principles of the good people of this commonwealth, have been substituted in place of fair reasoning and sound argument.
Our opinions of those alarming measures of the general government, together with our reasons for those opinions, were detailed with decency and with temper, and submitted to the discussion and judgment of our fellow citizens throughout the Union. Whether the decency and temper have been observed in the answers of most of those states who have denied or attempted to obviate the great truths contained in those resolutions, we have now only to submit to a candid world.
Faithful to the true principles of the federal union, unconscious of any designs to disturb the harmony of that Union, and anxious only to escape the fangs of despotism, the good people of this commonwealth are regardless of censure or calumniation. Least however the silence of this commonwealth should be construed into an acquiescence in the doctrines and principles advanced and attempted to be maintained by the said answers, or least those of our fellow citizens throughout the Union, who so widely differ from us on those important subjects, should be deluded by the expectation, that we shall be deterred from what we conceive our duty; or shrink from the principles contained in those resolutions: therefore.
The Report was adopted by the Virginia General Assembly in January of , reaffirming its commitment to its original Resolutions. The text of the Report is from the National Archives. The resolutions were adopted by the House of Delegates, as JM had written them, on 21 December by a vote of to The Senate followed suit after little debate on 24 December by a vote of 14 to 3. Copies were then sent to the governor of each state.
Notice of the passage of the resolutions was published in the same paper on 4 January ; and the resolutions as finally passed were printed in the Philadelphia Gazette of the United States four days later.
Volumes in this series are designated by the month in which the session began. Gallatin, 21 Dec. Whatever political benefits JM had anticipated from casting his arguments in temperate and conciliatory language were lost by the coupling of his resolutions with those adopted in Kentucky. Seven states replied to the overtures of Virginia and Kentucky, and their reaction was uniformly unfavorable. Most states insisted that under the Supremacy Clause of the Constitution Article VI , the states had no power to block enforcement of federal laws and that the courts should be relied upon to strike down unconstitutional laws a position which both Jefferson and Madison had endorsed in the context of the Bill of Rights.
At the time of their passage, authorship of both documents was known to only a few close associates. Madison had left Congress in before returning to the Virginia House of Delegates in , but his affiliation with Jefferson was well-known.
Though the other states rejected the Kentucky and Virginia Resolutions, the measures served effectively as political propaganda and helped unite the Democratic-Republican party. The Sedition Act expired in March Bitter rivalries, character assassinations, an electoral deadlock and a tie-breaking vote in the House of Representatives — the Election of had it all.
See what all the fuss was about ». Kentucky and Virginia Resolutions. An article courtesy of the Thomas Jefferson Encyclopedia. Click for more.
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